Terms & Conditions - updated May 9, 2024
Purchase Order Terms and Conditions:
These Purchase Order Terms and Conditions (“Terms”) govern the provision of services (“Services”) and products (including software, deliverables, and all other tangible results of Services) (“Products”) provided by the entity identified as ‘Supplier’ (“Supplier”) on the purchase order (the “PO”) to the InnovAge entity identified on the PO (“InnovAge”), each a "Party", collectively, “Parties”. These Terms apply only to transactions that do not have a written and signed agreement between the Parties. If, however, the Parties have entered into a separate, written, general, master, or other agreement intended to govern the provisions being made under the PO (“Existing Agreement”), such Existing Agreement shall govern, and the Terms that conflict with such Existing Agreement shall be of no effect.
1. General.
1.1. Acceptance of Terms. Supplier’s acceptance of InnovAge’s PO, invoicing against a PO, commencement of Services, or shipment of Products by Supplier shall constitute agreement to these Terms. If no event of acceptance (as described above) occurs or, if no time frame is indicated in the applicable PO, within fifteen (15) days after the date InnovAge issues the PO to Supplier (beginning on the date of the PO), InnovAge may deem that Supplier has rejected the PO. In addition, InnovAge may deem that Supplier has rejected the PO if Supplier only partially accepts any of these Terms. In either event, InnovAge may avail itself of alternative suppliers and shall not incur any penalties or be assessed any costs, damages, or liability in doing so.
These Terms apply to everything listed in the PO and constitute InnovAge’s offer to Supplier, which InnovAge may revoke at any time prior to Supplier’s acceptance. Any individual PO is not an acceptance by InnovAge of any offer to sell, any quotation, or any proposal. Reference in any PO to any such offer to sell, quotation, or proposal will not constitute a modification of these Terms.
1.2. Rejection of Inconsistent Supplier Terms. InnovAge rejects any terms contained in any proposal, quotation, acknowledgment, invoice, or other communication of Supplier inconsistent with these Terms. Any terms and conditions contained within or attached to any document which are inconsistent with these Terms, or which attempt to add to or modify these Terms in any way, shall not be deemed accepted or legally binding.
1.3 Absence of Written Agreement. Should the Supplier be unable to supply a written Existing Agreement showing different terms and conditions from these Terms, Supplier agrees to waive or withdraw the supplemental or modifying terms and conditions and contract with InnovAge exclusively based on these Terms, or negotiate a new agreement in good faith.
1.4 No Waiver of Terms. Acceptance of Services and/or Products by InnovAge shall not constitute or be deemed to constitute acceptance of any terms that conflict with these Terms.
1.5 Amendment of Terms. InnovAge may amend these Terms at any time by posting a revised version on its website located at www.InnovAge.com/po-terms. The amended version will become effective and replace the prior version at the time it is posted. Supplier will be bound by and comply with the Terms posted at the time the PO is issued by InnovAge.
2. Basis of the Bargain.
Except to the extent set forth above, these Terms form the basis of the bargain for the Services and/or Products and constitute the entire agreement between InnovAge and Supplier with respect thereto. InnovAge’s obligation to accept delivery of any Supplier Services and/or Products is contingent upon Supplier’s acceptance of these Terms.
3. Non-Exclusive.
Unless otherwise indicated in the Existing Agreement, all PO’s are nonexclusive and InnovAge does not make any commitment or guarantee for any minimum or maximum purchase.
4. On-Time Delivery.
Supplier shall provide the Services and deliver the Products on time and in accordance with the quantities and delivery locations specified by InnovAge. Time is of the essence as to the provision of Services and delivery of Products. If Supplier is unable to provide the Services or deliver the Products on time, Supplier will promptly notify InnovAge and assign additional resources as needed to meet the required date.
5. Pricing, Taxes, Offset.
5.1 Pricing. InnovAge will pay for the Services and/or Products at the price set forth in the applicable PO. All PO prices for tangible Products are DDP (Incoterms 2020) Supplier’s factory, distribution center or warehouse, provided that such shipment point shall be in the continental United States (“Supplier’s Domestic Shipping Point”). For the avoidance of doubt, PO prices include all charges for packaging and crating Products for shipment as well as all taxes, tariffs, duties, or other charges levied, assessed, or imposed on the Services and/or Products or charged by any governmental authority, foreign or domestic, associated with importing the Products into the United States. Any price increase that does not conform to the applicable PO must be explicitly approved by InnovAge in writing. If no price is set forth on the front of the PO, the Services and/or Products will be billed at the price last quoted or at the prevailing market price, whichever is lower, and, in any event, Services and/or Products ordered under any PO will not be billed at a higher price than last quoted or charged without InnovAge's specific written authorization. No extra charges of any kind will be allowed unless specifically agreed to in writing by InnovAge. If Supplier reduces its prices for such Services and/or Products during the term of any PO, Supplier shall correspondingly reduce the prices of Services and/or Products sold thereafter to InnovAge.
If InnovAge issues Supplier a Blanket PO, Supplier shall provide the Services and/or Products subject to the pricing agreed in writing between InnovAge and Supplier at the time the Blanket PO is issued (e.g., in a corresponding rate card or price sheet, or the ‘Notes’ section of the PO). Supplier is not authorized under any Blanket PO to provide any additional Products, modify the scope of Services, or to charge any more for Services and/or Products than as agreed in writing at the time the Blanket PO was issued, and InnovAge will not be required to pay any unauthorized amounts. “Blanket PO” means a PO that authorizes Supplier to provide recurring Services and/or Products resulting in multiple InnovAge payments over a period of time as may be specified on the PO.
5.2 Taxes. InnovAge is not liable for taxes that Supplier is legally obligated to pay (e.g., any applicable income taxes, withholding taxes, tax deductions, or the equivalent). InnovAge may withhold any taxes it is required by law to withhold and pay such taxes to the appropriate taxing authority. InnovAge will pay to Supplier any sales tax, use tax, value added tax (VAT), consumption tax, or equivalent which Supplier is required by law to collect from InnovAge, and will be billed to InnovAge by Supplier as a separate line item on the applicable invoice. Supplier will provide valid tax invoices to InnovAge to support any charges. InnovAge will pay only such taxes as are authorized in advance and appropriately itemized on the invoice. Supplier is responsible for all taxes related to the Services and/or Products not appropriately authorized and/or itemized on the applicable invoice.
5.3 Offset. InnovAge may, without limiting its other rights or remedies, offset (i.e., set off) any amount owed to it by the Supplier against any amount owed by InnovAge to the Supplier.
6. Invoicing.
6.1 Invoice Required. Supplier shall invoice InnovAge for Services that have been provided and/or Products that have been delivered in accordance with these Terms and the applicable PO. Supplier shall ensure that invoices submitted include accurate and complete information, including the PO number and all supporting documentation InnovAge requests to substantiate payments. Invoices for contingent workers must include a detailed time tracking breakdown for each contingent worker for the time period being billed. If InnovAge is responsible to pay for freight, it should be listed as a separate line item on any invoice.
6.2 Electronic Invoices. Invoices must be submitted electronically to VendorAP@innovage.com.
6.3 Late Invoices. Failure to submit a correct invoice for amounts owed by InnovAge within sixty (60) days after the event giving rise to the payment is a waiver by Supplier of InnovAge’s liability for the amounts due.
7. Payment.
Upon receipt of each valid, correct, and undisputed invoice, InnovAge will pay all invoiced amounts to the Supplier within sixty (60) days of receiving a valid, correct, and undisputed invoice. InnovAge may execute a two percent (2%) payment discount if payment is made within twenty (20) days of receipt of the invoice, or a one percent (1%) payment discount if payment is made within forty (40) days of receipt of the invoice. Disputed, incorrect, or incomplete invoices may result in delayed payment and may be returned by InnovAge to Supplier for correction and reissue. Discount periods shall be computed from either the date of actual delivery of the Services and/or Products or the date an acceptable invoice is received, whichever is later. The InnovAge entity identified on the PO is the sole InnovAge entity responsible for payment. Payment of any invoice shall not constitute acceptance or approval of the respective Services and/or Products.
8. Transportation and Packaging.
8.1 Shipping Requirements. All shipments of tangible Products will be DDP (Incoterms 2020) Supplier’s Domestic Shipping Point. “DDP” means delivered duty paid as defined by the International Chamber of Commerce in its publication “Incoterms 2020; ICC Official Rules for the Interpretation of Trade Terms.” Once Products are at Supplier’s Domestic Shipping Point, customs cleared, InnovAge shall be responsible for (a) the cost of shipment, subject to the remaining provisions of this section, from Supplier’s Domestic Shipping Point to InnovAge’s ship-to location(s), and (b) any taxes or other charges levied, assessed, or imposed by any governmental authority on the sale of the delivered Products or measured by the prices or the value of, or imposed upon the use of, the Products after shipment, DDP Supplier’s Domestic Shipping Point, customs cleared. Freight charges for shipments that are not compliant with this section will not be reimbursed and may be deducted from Supplier’s invoice(s) including any costs incurred by InnovAge as a result thereof. Supplier will be liable for risk of loss and excess freight charges resulting from noncompliance with this section.
8.2 Delivery Dates. Unless otherwise mutually agreed, Supplier is required to meet the delivery dates specified in any quote or invoice that is subject to a PO. In the event a delivery date is not met, then, without limiting any other rights and remedies available to InnovAge at law or in equity, Supplier agrees to (a) if tangible goods, immediately ship the pertinent Products to InnovAge or (b) if software or other intangible Products, immediately deliver electronically. Supplier will use reasonable efforts to maintain a safety stock inventory on long lead-time Products. In the event the Supplier fails to deliver the Products, or perform the Services, by the date specified in the PO, InnovAge may, at its option, terminate the PO.
8.3 Expedited Delivery. With respect to Products that Supplier is unable to deliver on-time, upon InnovAge’s request, Supplier will deliver the affected Products using priority freight delivery (at Supplier’s expense).
8.4 Packaging. All Products must be packaged in the manner specified by InnovAge and shipped in the manner and by the route and carrier designated by InnovAge. If InnovAge does not specify the manner in which the Products must be packaged, Supplier shall handle and package all Products ordered by InnovAge so as to protect such Products from loss or damage and in conformance with commercially reasonable practices, government regulations, and other applicable standards. Supplier shall be responsible for all loss, damage, or harm to any of the Products which are damaged during transit as a result of Supplier’s inadequate or improper packing, or failure to pack and ship in accordance with these Terms.
8.5 Documentation. It is agreed that all technical documentation and other literature necessary for the proper use of the Products will be provided to InnovAge with the Products, unless otherwise directed by InnovAge, and its cost is included in the price.
9. Inspection.
9.1 Products. All Products are subject to InnovAge’s inspection and approval. Rejected Products will be returned at Supplier’s expense and risk. If within thirty (30) days of delivery, any Products are rejected by InnovAge, InnovAge will determine in its sole discretion whether it will accept either a refund, a credit, or a replacement for the rejected Products. Products supplied in excess of specified quantities may be either returned to Supplier at Supplier’s expense and risk (such payment shall be made prior to the return of Products by InnovAge) or retained by InnovAge without additional charge. Final acceptance or rejection of the Products will be made as promptly as practical after delivery except as otherwise provided in the PO, but failure to inspect and accept or reject Products or failure to detect defects by inspection, will neither relieve Supplier from responsibility for such Products as are not in accordance with these Terms nor impose liabilities on InnovAge for them. InnovAge's payment for the Products shall not constitute its acceptance of the Products.
Should InnovAge receive a shortage of Products, or receive Products that are damaged, defective, and/or non-conforming which is not apparent upon initial inspection but may become apparent upon further examination or use of such Products, InnovAge reserves the right to return the Products to Supplier with all rights InnovAge has with respect to rejected Products. InnovAge shall be entitled to full indemnity and reimbursement for all damages, loss, or expenses of any kind incurred by InnovAge in connection with defective, non-conforming, recalled, or damaged Products delivered by or on behalf of Supplier including, without limitation, labor, downtime, freight, storage, replacement, repossession, truck rolls, transportation, InnovAge service outages, third-party property damage, and all other costs that directly or indirectly arise from defective, non-conforming, recalled, or damaged Products, unless caused solely by InnovAge’s willful or gross negligence.
9.2 Supplier Inspection. Supplier will provide and maintain an inspection and process control system acceptable to InnovAge covering the Products ordered. Records of all inspection work by Supplier will be kept complete and available to InnovAge during the performance of any PO and for seven (7) years after Supplier's completion of the applicable PO.
9.3 Services. InnovAge has the right to evaluate the Services, as applicable, to determine whether they meet the requirements that are specified in the PO and Existing Agreement, or as may otherwise be agreed upon in writing by the Parties. If InnovAge determines, in its sole discretion, that the Services do not meet such requirements, InnovAge may notify Supplier in writing that it is rejecting the non-conforming Services and the reasons for such rejection. Supplier shall re-perform the applicable rejected Services for InnovAge as soon as commercially possible, but in no event later than ten (10) calendar days, and InnovAge may re-evaluate such Services after such re-performance to determine whether the re-performed Services meet the applicable requirements of the PO (“Correction Process”). If Supplier does not, in InnovAge’s determination, remedy the rejected Services, InnovAge may elect to allow Supplier to repeat the Correction Process until InnovAge accepts the re-performed Services or requests a refund of all sums previously paid by InnovAge for such rejected Services and, if applicable, cancel the PO.
10. Product Change Orders.
At any time, InnovAge may issue a change order to the drawings, designs, configurations, quantities, requirements, specifications, methods of shipment or packing, delivery schedules and/or location(s) of delivery applicable to the Products. If any change order affects the cost of the Products, the Parties will work in good faith to mutually agree upon an equitable adjustment to the purchase price, delivery schedule, or both. Supplier cannot make any substitution of any Products without InnovAge’s prior written approval. Information, such as technical information or guidance provided to Supplier by representatives of InnovAge, will not be construed as a change within the meaning of this section.
11. Suspension or Termination.
11.1 Suspension. InnovAge may suspend (for a reasonable period) any PO at any time, with or without cause, in whole or in part, by providing prior written notice to Supplier. In such event, Supplier shall immediately stop all production or processing of the Products and/or all work associated with the Services and cause any suppliers and/or subcontractors to cease all production or processing related to the applicable Products and/or all work associated with the Services.
11.2 Termination for Cause. InnovAge may terminate any PO in whole or in part with immediate effect if, at any time after the PO commences, the Supplier: (a) commits a material or persistent breach of contract and (if capable of cure) fails to make good faith remedy of said breach within ten (10) days after receiving notice of the breach; (b) commits a material breach which cannot be rectified; or (c) becomes insolvent or makes an assignment for the benefit of creditors. If a PO is terminated for cause, InnovAge will not be liable to Supplier for any amount other than for the Services and/or Products delivered to and accepted by InnovAge in writing up to the date of termination, and Supplier shall be liable to InnovAge for all costs, expenses and damages sustained by InnovAge due to the cause that gave rise to the termination. For purposes of this Section, the “date of termination” shall be the date the notice of termination was sent by InnovAge to Supplier.
11.3 Default. By written notice of default to Supplier, InnovAge may (a) terminate all or any part of a PO if Supplier fails to perform, or so fails to make progress as to endanger performance of a PO in accordance with its terms, and does not cure such failure within a period of ten (10) days (or such longer period as InnovAge may authorize in writing) after receipt of notice from InnovAge specifying such failure and (b) procure, on such terms as it will deem appropriate, Services and/or Products similar to those so terminated. Supplier will continue performance of a PO to the extent not terminated and will be liable to InnovAge for any excess costs for such similar Services and/or Products. As an alternate remedy, and in lieu of termination for default, InnovAge, at its sole discretion, may elect to extend the delivery schedule and/or waive other deficiencies in Supplier's performance, in which case an equitable reduction in the PO price will be negotiated. If Supplier for any reason anticipates difficulty in complying with the required delivery date, or in meeting any of the other requirements of a PO, Supplier will promptly notify InnovAge in writing. If Supplier does not comply with InnovAge's delivery schedule, InnovAge may require delivery by fastest way and charges resulting from the premium transportation must be fully prepaid and absorbed by Supplier. The rights and remedies of InnovAge provided in this Section will not be exclusive and are in addition to any other rights and remedies provided by the Uniform Commercial Code, by law, at equity, or under the PO.
11.4 Bankruptcy & Insolvency. In the event of any proceeding by or against either Party under any law relating to bankruptcy, insolvency, reorganization, or relief of the debtors, all rights, licenses, and covenants granted hereunder will continue without termination, rejection, or avoidance by virtue of such proceeding, however, InnovAge may decide to terminate the PO immediately. If a proceeding is instituted by or against either Party under any law relating to bankruptcy, insolvency, reorganization, or relief of the debtors, the other Party may retain and exercise all of its rights and elections under the U.S. Bankruptcy Code. If Supplier believes that it is about to become or becomes insolvent, is or is about to become subject to a petition in bankruptcy, or misses any debt payments, it shall provide immediate notice to InnovAge at the address in the Notice section below.
11.5 Termination for Convenience. InnovAge may terminate any PO in whole or in part at any time and for any reason upon written notice to Supplier. Upon such termination, (a) Supplier will, to the extent and at the times specified by InnovAge, stop all work on the Services and/or Products that have been cancelled, incur no further costs, and protect all property in which InnovAge has or may acquire an interest, and (b) InnovAge's liability will be limited to reasonable termination charges mutually agreed by Supplier and InnovAge, provided that Supplier must specify any proposed charges in writing within fifteen (15) days after termination. In no event will InnovAge’s payment for Services and/or Products exceed the applicable PO price. InnovAge will pay Supplier for all Services and/or Products received up to the termination date. Notwithstanding anything to the contrary stated herein, Supplier will not be paid for Services and/or Products, work or costs incurred by Supplier or Supplier’s suppliers and subcontractors that Supplier could reasonably have avoided after the date of termination.
11.6 Surviving Provisions. The following sections, along with any other sections or provisions that by their nature should survive, will survive the delivery of Services and/or Products and/or termination of the applicable PO for any reason: “Inspection,” “Warranties,” “Indemnification; Liens,” “LIMITATION OF INNOVAGE’S LIABILITY,” “Remedies,” and “Governing Law and Jurisdiction.”
12. Warranties.
12.1 General Warranties. Supplier represents and warrants that all Services and/or Products are free of any claim of any nature by any third party and that Supplier will convey clear title to InnovAge. The prices for the Services and/or Products sold to InnovAge under any PO are no less favorable than those currently extended to any other customer for the same or similar goods and/or services in equal or lesser quantities. Supplier shall not act in any fashion or take any action that will render InnovAge liable for a violation of any applicable anti-bribery legislation (including without limitation, the U.S. Foreign Corrupt Practices Act), which prohibits the offering, giving, or promising to offer or give or receiving, directly or indirectly, money or anything of value to any third party to assist it, them, or InnovAge in retaining or obtaining business or in procuring the Services and/or Products. All warranties of Supplier herein or that are implied by law shall survive any inspection, delivery, acceptance, or payment by InnovAge. Any attempt by Supplier to limit, disclaim, or restrict these warranties or any remedies of InnovAge, by acknowledgment or otherwise, in accepting or performing pursuant to the applicable PO, will be null, void, and ineffective without InnovAge's written consent.
12.2 Product Warranties. Without in any way disclaiming implied remedies or limiting remedies for breach, Supplier represents and warrants that (a) all Products delivered will be free from defect of material and workmanship, will be merchantable, safe, fit, and appropriate for the purpose for which Products of that kind are normally used or purchased for; (b) all Products will substantially conform to the specifications, drawings, requirements, and/or descriptions of the Products; (c) all intellectual property (other than those of InnovAge) used by Supplier in connection with the Products are either owned by Supplier or Supplier has all authorizations and licenses necessary to deliver the Products to InnovAge and are free from infringement; (d) Supplier has all rights necessary to grant a license for InnovAge’s use of all software Products and all software will substantially conform to published specifications current at the time of delivery; (e) all Products will be produced, labeled, shipped, invoiced, furnished, provided, and delivered in compliance with all laws, regulations, and ordinances, including without limitation, U.S. import and export laws; and (f) Supplier will comply with all additional requirements of InnovAge when the procurement, performance, delivery, or provision of the Products necessitate that an employee, agent, or subcontractor of Supplier work within or upon InnovAge’s premises. For third-party products, Supplier hereby assigns or agrees to otherwise pass through, to the extent possible, the manufacturer’s and/or licensor’s warranties.
InnovAge's inspection, test, acceptance, or use of the Products shall not affect Supplier's obligations under these warranties. Supplier shall replace or correct, at InnovAge's option and at Supplier's cost, defects in any Products not conforming to these warranties.
12.3 Services Warranties. If Supplier provides any Services to InnovAge, Supplier represents and warrants that (a) it possesses adequate skill, training, expertise, knowledge and experience to perform the Services in a competent and professional manner; (b) it has sufficient personnel and equipment available to perform the Services within the milestones, timelines, and time frames specified by InnovAge; (c) all Supplier personnel, agents, representatives, and contractors will abide by InnovAge’s work rules and regulations; (d) it will deliver and perform the Services in substantial conformance with the requirements, specifications, timelines, and instructions of InnovAge; (e) it possesses or will possess all necessary rights to grant to InnovAge the stated ownership interests and licenses in and to the Services delivered hereunder (including, if necessary, any right, title, and interest in and to all work or work product developed or produced in connection with the Services); (f) it will perform the Services in a good and workmanlike manner; and (g) it will assign and transfer to InnovAge all warranties, including warranties granted to Supplier and warranties granted to third party(s) associated with any Services in order for InnovAge to utilize the Services including any and all components, software, and/or hardware.
12.4 Compliance with Laws. Supplier represents and warrants that it is in compliance with, and all Services and/or Products supplied hereunder have been provided or produced in compliance with, all applicable provisions of all federal, state, and local laws and ordinances including all related lawful orders, rules, and regulations. Supplier shall comply with any provisions, representations, agreements, or contractual clauses required to be included or incorporated by reference or operation of law in any PO. Supplier shall be required to obtain and pay for any license, permit, inspection, or listing by any public body or certification organization required in connection with the manufacture, performance, completion, or delivery of any Product and/or Services.
13. Indemnification; Liens.
13.1 Indemnification. Supplier shall, at its own cost and expense, indemnify, defend, and hold InnovAge and its officers, directors, employees, agents, parent, subsidiaries, and affiliates harmless from and against all claims, demands, actions, causes of action, proceedings, damages, judgements, awards, penalties, fines, levies, losses, costs, expense, and/or liabilities including, without limitation, litigation expenses and reasonable attorneys' fees actually incurred, arising from, related to, or based upon (a) the Services, Products, or other performance of obligations under the PO caused personal injury (including death) or property damage; (b) actual or alleged misappropriation or infringement of any intellectual property rights of a third party; (c) claims made by any subcontractor of Supplier that it has not been paid for Services undertaken by such subcontractor, specifically including, but not limited to, claims for any monies retained by Supplier; (d) the delivery, nature, or intended use of the Services and/or Products; (e) Supplier’s obligations or liability for compensation, tax, unemployment compensation, workers compensation, insurance, or benefit matters; (f) any allegation or claim brought by any employee of Supplier related to hiring, retention, promotion, discharge, compensation, or other terms or conditions of employment; (g) any determination by any federal, state, or local government, agency, any court, or other authority that Supplier or an employee, agent, representative, or subcontractor of Supplier is an employee of InnovAge for any purpose; (h) arise or are alleged to have arisen as a result of negligent or intentional acts or omissions of Supplier or Supplier Personnel, or a breach by Supplier of any of these Terms; (i) any breach of warranty or misrepresentation by Supplier hereunder; and/or (j) any noncompliance by Supplier or its employees, agents, representatives, licensees, invitees, designees, or subcontractors with any of its obligations under these Terms.
13.2 Liens. If any person or entity employed or hired by, through or under Supplier, files any claim against InnovAge (each, a “Claim”) or files a mechanic’s or materialmen’s lien against property owned or leased by InnovAge (each a “Lien”), then Supplier shall, at its cost and expense and within ten (10) days after receipt of written notice advising of the Claim or the Lien, cause the same to be bonded over, paid, and released, or otherwise released of record. This provision is not intended to, and does not imply, that InnovAge is consenting to the filing of any such Lien. If Supplier fails to comply with the aforementioned ten-day (10-day) payment and release provision, Supplier shall be in material breach of these Terms and InnovAge may withhold any payment or amounts due until such time as Supplier has complied with this section and take whatever other measures are reasonably necessary, including, without limitation, the payment of fees, charges and other amounts required to release such Lien and Supplier will, upon demand, reimburse InnovAge for any costs and expenses incurred by InnovAge in releasing such Lien.
14. Insurance.
Except as otherwise expressly agreed to in writing by InnovAge, Supplier, at its sole cost and expense, shall procure and maintain the following insurance policies: (a) general liability and professional liability insurance, (b) Worker's Compensation insurance, (c) commercial automobile liability insurance, (d) bodily injury and property damage including owner, non-owned, and hired vehicles, (e) in those circumstances where the Services involve data management, transmission or storage, or access to InnovAge’s network, cyber security liability insurance, and (f) any other insurance as required by law or common practice in the Supplier’s industry. Supplier’s insurance shall provide for limits of at least $1,000,000 per occurrence and $2,000,000 in the aggregate. All policies are meant to insure InnovAge and its agents and employees against any claims for damages arising by reason of personal injury or death occasioned directly or indirectly in connection with the performance of, or delivery of, any Services and/or Products provided by Supplier, the use of any property provided by Supplier, and the activities performed by Supplier in connection with the applicable PO.
On or before acceptance of a PO, Supplier shall furnish to InnovAge a certificate of insurance (“COI”) with respect to the required insurance coverage naming InnovAge as additional insured, and thereafter shall notify InnovAge of any forthcoming or actual cancellation, non-renewal, modification, or change in coverage (each an "Adverse Event") immediately upon Supplier's learning of the Adverse Event. Supplier’s insurance will be considered the primary coverage for claims relating to the Services and/or Products.
If Supplier does not provide InnovAge with COIs when requested or if, in InnovAge’s opinion, Supplier’s insurance coverage does not provide adequate coverage, and Supplier does not furnish evidence of acceptable coverage within ten (10) days after InnovAge so requests from Supplier, InnovAge shall have the right to: immediately terminate any PO(s) and all outstanding authorizations of expenditure in whole or in part, or withhold payment for the Services and/or Products until evidence of acceptable coverage is provided. Supplier shall not pursue any claim against InnovAge relating to the Services and/or Products until Supplier first makes claim against Supplier's insurance.
15. LIMITATION OF INNOVAGE’S LIABILITY.
IN NO EVENT WILL INNOVAGE BE LIABLE TO SUPPLIER FOR LOST OR ANTICIPATED PROFITS OR FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY PURCHASE ORDER. INNOVAGE'S MAXIMUM AGGREGATE LIABILITY ON ANY CLAIM OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND/OR PRODUCTS DELIVERED OR PERFORMED UNDER ANY PURCHASE ORDER WILL BE LIMITED TO THE TOTAL AMOUNT PAID BY INNOVAGE TO SUPPLIER FOR SUCH SERVICES AND/OR PRODUCTS. IF SERVICES AND/OR PRODUCTS ARE ONGOING, INNOVAGE’S MAXIMUM AGGREGATE LIABILITY TO SUPPLIER WILL BE LIMITED TO THE TOTAL AMOUNT PAID BY INNOVAGE TO SUPPLIER DURING THE THREE (3) MONTHS PRIOR TO THE OCCURRENCE OF THE LAST EVENT GIVING RISE TO LIABILITY.
16. Remedies.
No remedy hereunder is intended to be exclusive of any other remedies available at law or equity. Each Party’s rights and remedies are cumulative and additional to remedies provided at law or in equity. No delay, neglect, or forbearance on the part of either Party in enforcing against the other Party these Terms will be, or deemed to be, a waiver or prejudice in any way against any right of that Party under any applicable PO.
17. Intellectual Property.
All ideas, concepts, designs, slogans, plans, advertising, or promotional materials, or any other materials submitted, created, and/or developed by Supplier for InnovAge pursuant to these Terms, including, without limitation, the Services and/or Products and all associated documentation, excluding any incorporated materials previously created and/or owned by Supplier (and identified as such, in writing, prior to incorporation into any deliverable, as set forth below) (collectively, the “InnovAge Materials”), shall be InnovAge’s sole and exclusive property, free from any claim, lien for balance due, or rights of retention thereto on the part of Supplier. Each deliverable resulting from the Services will be a “work made for hire” as that term is defined in the Copyright Act. If under any applicable law the fact that any deliverable is a work made for hire is not effective to place ownership of such deliverable and all rights therein in InnovAge, or if for any reason any such deliverable is deemed not to be a work made for hire, then to the fullest extent allowable under such applicable law, Supplier hereby assigns and transfers to InnovAge all rights, including the copyright, in such deliverable. Supplier shall have no right to disclose or use any of the InnovAge Materials for any purpose, including any publicity, whatsoever without InnovAge’s prior written consent. These Terms constitutes Supplier’s express assignment of the InnovAge Materials and all associated documentation, and the assignment is effective as soon as possible under any law, statute, rule, or regulation. Supplier agrees, at InnovAge’s sole cost and expense, to (a) assist InnovAge in taking any legal action that may be required to perfect and defend InnovAge’s copyrights, trademarks, trade dress, patents, trade secrets, and other intellectual properties in and to any of the InnovAge Materials, and (b) sign, upon InnovAge’s request, any further documents to perfect the assignment of rights as set forth herein or as otherwise may be necessary for InnovAge’s full enjoyment and exploitation of such rights.
18. Confidentiality.
18.1 Confidentiality. "Confidential Information" means all oral, written, and electronic information including, without limitation, business plans, business information, customer data, customer lists and information, business methods and processes, forecasts, inventions, designs, documents, drawings, financial analysis, financial statements, reports and other financial information, market information, marketing plans, processes, products, workflows, system configurations, product plans, research, services, specifications, trade secrets, proprietary information, know-how or any other information, furnished by either Party to the other in connection with any PO whether furnished before, on, or after the PO issue date. The Party disclosing information is referred to as the "Owner" of the information, and the Party receiving the information is referred to as the "Recipient." All notes, memoranda, analyses, compilations, studies, and other documents, whether prepared by Owner, Recipient, or others, to the extent they contain or otherwise reflect information furnished in connection with the PO will also be considered Confidential Information. Confidential Information does not include information which (a) becomes generally available to the public other than as a result of disclosure by Recipient in violation of these Terms, (b) was known by the Recipient at the time of disclosure of the information by the Owner, (c) was or becomes available to the Recipient from a source other than the Owner if, to the best of Recipient's knowledge, that source was not legally bound to the Owner to maintain the confidentiality of the information, or (d) independently developed by Recipient without reference to the Confidential Information.
The Parties agree to keep all Confidential Information confidential and will not, without prior written consent of Owner, (y) use, for itself or on behalf of any other person, any portion of the Confidential Information for any purpose other than to effectuate the applicable PO, or (z) disclose any portion of the Confidential Information to any person, other than to employees, officers, directors, consultants, contractors, and/or agents who have a need to know in connection with the work under the applicable PO (those that actually receive Confidential Information are referred to as “Representatives”). For purposes of this Section, the term "person" will mean any corporation, partnership, individual, or any other entity, controlling, controlled by, or under common control of either Party, and their officers, sponsors, equity owners, directors, employees, consultants, agents, and representatives. Recipient will inform those Representatives to whom Confidential Information is disclosed of the confidential nature of the Confidential Information and will direct them to comply with these Terms as if they were equally bound by them. Recipient will have those Representatives to whom Confidential Information is disclosed to sign a nondisclosure agreement in content substantially similar to these Terms, except to the extent such persons are otherwise already required by contractual, legal, or fiduciary obligations (i.e., by means of employment with Recipient) to keep the Confidential Information confidential as provided herein. Each Party agrees to notify the other Party in writing of any misuse or misappropriation of such Confidential Information of the other Party which may come to its attention.
All Confidential Information supplied by either Party shall remain the property of and shall be returned to the Owner or destroyed upon request. No copies of any Confidential Information may be made without the express prior permission of the Owner. The Parties agree that all intellectual property rights in all content, and all works of authorship, arising from the Parties’ discussions, negotiations, and actions in furtherance of a potential business relationship shall be the property each Party. No right or license, other than as expressly stated in these Terms, is granted to Recipient in connection with the Confidential Information.
Recipient’s obligations regarding Confidential Information expire three (3) years after the date of disclosure or three (3) years after the termination of any PO, whichever is later. Notwithstanding the foregoing, each Party shall maintain the confidentiality of the other Party’s Confidential Information that such Party maintains as a trade secret for as long as such Party maintains such Confidential Information as a trade secret.
18.2 No Press Release or Publicity. Supplier shall not issue, procure, or permit any third party to issue a press release or other publicity regarding InnovAge or its Related Entities, or the PO or its subject matter, without InnovAge’s prior written consent. “Related Entities” means any business entity that controls, is controlled by, or is under common control with an entity, where “control” means that the entity possesses, directly or indirectly, the power to direct the management policies of the other entity (whether through ownership of voting securities, an interest in registered capital, by contract, or otherwise).
19. Personnel & Resources
19.1. Required Resources. Supplier will provide all personnel, equipment, software, materials, and other resources necessary to provide the Services and/or Products.
19.2 Management of Supplier Personnel. Supplier is solely responsible for managing any Supplier personnel including but not limited to hiring, firing, designating where and when Supplier personnel perform Services, work assignments, practices, policies, and procedures, and ensuring compliance with all applicable laws and regulations.
19.3. Subcontractors. Supplier shall be liable for the services and affairs of its subcontractors in the same way as for its own services and affairs. Supplier’s conflicts, if any, with its subcontractors shall be of no concern to InnovAge and shall not affect Supplier’s obligations under the PO. At InnovAge’s request, Supplier shall inform InnovAge of the subcontractors with whom Supplier has contracted for the purpose of complying with Supplier’s obligations under any PO.
19.4 Work on InnovAge's Premises. If Supplier's work under any PO requires Supplier to be on InnovAge’s premises, Supplier will take all necessary precautions to prevent any injury to persons or damage to property, including following any rules, procedures, or other InnovAge requirements.
19.5 Support. Supplier shall provide, at no cost to InnovAge, all technical, operational, and informational support relating to the Services and/or Products that InnovAge deems necessary to use the Services and/or Products.
20. Force Majeure; Business Continuity.
Neither Party will be liable for delays in the performance of any obligations under these Terms when the delays are caused by war, acts of nature, pandemic, epidemic, or other similar causes beyond the reasonable control of the nonperforming Party; provided, however, that such event is objectively unforeseeable (at the time of accepting the PO), unavoidable (in terms of occurrence or impact), and impossible to overcome (each, a “Force Majeure Event”). The nonperforming Party may not rely upon a Force Majeure Event to excuse performance to the extent nonperformance would have resulted without regard to such Force Majeure Event, or if the fault or negligence of the nonperforming Party contributed to such Force Majeure Event. Additionally, obligations of indemnification under these Terms will not be relieved, delayed, or limited due to Force Majeure Events. Price increases of materials and/or labor are not considered a Force Majeure Event. The nonperforming Party must: (a) notify the other Party in writing, (b) use commercially reasonable efforts to minimize the length, and mitigate the effects, of the delay; and (c) once the Force Majeure Event no longer prevents performance, promptly proceed with diligence to perform all of its obligations. InnovAge may use “self-help” to obtain or accomplish one or more aspects of the Services and/or Products that may be the cause of the delay, in which case InnovAge will have the right to offset the costs and expenses incurred in connection with InnovAge’s self-help efforts against the PO price. In the event that a Force Majeure Event lasts more than fifteen (15) calendar days, InnovAge may, in its sole discretion, terminate the PO.
Supplier represents and warrants that it has implemented and will maintain a business continuity plan whereby Supplier can continue to operate its business in the event of a natural disaster, government shutdown, or civil order issued in connection with a global, national, or regional health crisis.
21. Additional Terms.
21.1 Notice. Any notice required by these Terms must be in writing and must be sent overnight by USPS postage prepaid by certified mail, return receipt requested. Notices to InnovAge will be sent to: InnovAge, 8950 E. Lowry Blvd, Denver, CO 80230, Attention: Legal, with a copy Legal@innovage.com. Notices to Supplier will be sent to Supplier at Supplier’s address listed on the applicable PO. Notice is deemed effective three (3) days after being placed in the United States mail.
21.2 Governing Law and Jurisdiction. These Terms and any PO hereunder and the rights and obligations of the Parties shall be governed by and construed and enforced under the laws of the State of Colorado and specifically the UCC of Colorado, without regard to its choice of law principles. The Convention on Contracts for the International Sale of Goods shall not apply to any PO. Venue and jurisdiction shall reside in the Federal and State courts located in Denver, Colorado for disputes pertaining to the Services and/or Products delivered under any PO. Any claim alleging or otherwise resulting from a breach by InnovAge of any obligations arising with respect to these Terms must be filed within one (1) year after the pertinent cause of action arises.
21.3 Records. Supplier shall maintain all records, contracts, and accounts related to the Services and/or Products during the term of the PO and for three (3) years thereafter. During the term of the PO and for three (3) years thereafter, InnovAge or an independent certified public accountant reasonably acceptable to Supplier may, at any time, audit Supplier’s records and inspect Supplier’s facilities to verify that Supplier has complied with its obligations under the PO.
21.4. Assignment. Supplier may not assign any PO, in whole or in part, without the written consent of InnovAge.
21.5. No Third-Party Beneficiaries. Persons not a party to a PO shall have no rights under it or in connection with it.
21.6. No Sovereign Immunity. To the extent Supplier may be entitled in any jurisdiction to claim immunity (whether state or sovereign or otherwise) from service of process, jurisdiction, suit, judgment, execution, attachment, or legal process with respect to its obligations under the Terms, or to the extent that, in any such jurisdiction, such immunity may be attributed to it, Supplier hereby irrevocably agrees not to claim, and hereby irrevocably waives, such immunity to the fullest extent permitted by the laws of such jurisdiction with the intent, inter alia, that such waiver of immunity shall have irrevocable effect.
21.7. Independent Contractor. The Parties agree that Supplier and its employees and agents are independent contractors for all purposes and not employees of, partners of, or joint venturers with, InnovAge. Nothing in these Terms or in any applicable PO shall be deemed to constitute a fiduciary relationship between InnovAge and Supplier, nor shall anything be deemed to create an agency relationship between InnovAge and Supplier. Supplier will furnish at its cost and expense all labor, equipment, materials, travel, supervision, training, and any other items necessary to provide the Services and/or Products. Supplier will be solely responsible at all times for withholding or payment of all Federal, State, and local income and other payroll taxes with respect to its employees, including contributions from them as required by law, and for its acts and omissions or the acts and omissions of its agents, employees, and subcontractors.
21.8. No Waiver. No delay or failure to act in the event of a breach of these Terms shall be a waiver of that or any subsequent breach of any provision of these Terms. In addition, no waiver will be implied from conduct or failure to enforce or exercise rights under these Terms, nor will any waiver be effective unless in a writing signed by a duly authorized representative of a Party claimed to have waived.
21.9. Severability. If a court of competent jurisdiction finds any provision of these Terms unlawful or unenforceable, that provision will be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the remainder of these Terms will continue in full force and effect.
21.10. Construction. Section headings are for convenience of reference only and should not be considered in construing or interpreting these Terms. The words “will” and “shall” are used in a mandatory, not a permissive, sense, and the word “including” is intended to be exemplary, not exhaustive, and will be deemed followed by “without limitation.”
21.11. Entire Agreement. These Terms, together with the applicable PO(s) and/or any attachments issued or entered into pursuant to these Terms, and any applicable Existing Agreement, constitute the entire understanding and agreement between the Parties. Any prior or contemporaneous oral or written communications or agreements between the Parties with respect to the Services and/or Products not expressly set forth herein are of no force or effect.