Certified Supply and Services Agreement
This Supply and Services Agreement (“Agreement”) shall govern all purchases of goods and services described in each Purchase Order (“PO”) issued by InnerWorkings, Inc. or its subsidiary signing this Agreement (“INWK”) to the supplier signing this Agreement (“Supplier”) or any of its affiliates, and any other transactions between such parties. Supplier and INWK agree that other members of the INWK group of companies are authorized to order goods and services from Supplier under and in accordance with the terms and conditions of this Agreement, and that upon acceptance of a PO from another member of the INWK group by Supplier or its respective affiliate, this Agreement shall govern the parties to the PO and the supply of goods and services thereunder and reference to “INWK” herein shall refer to such member of the INWK group. Supplier agrees, on behalf of itself and each of its affiliates, to be bound by all of the terms and conditions of this Agreement.
Invoice Submission: All invoices must be uploaded to the INWK supplier portal within 5 days of delivery of goods. Invoices are deemed to be received on the date that Supplier uploads the invoice to the INWK supplier portal. INWK will send an electronic communication confirming receipt. Supplier invoices should only incorporate one PO, and the PO number should be clearly noted on the invoice. Any invoices with an incorrect or missing PO number, or that are otherwise not in accordance with INWK’s requirements for invoicing, will not be accepted.
Quantity Variation / Substitutions / Transportation: Specified allowance, if any, for “overs / unders” is provided on each PO. No substitution or modification of any goods, component parts, raw materials, processes or manufacturing sites may be made without INWK’s prior written consent. Time is of the essence with respect to Supplier’s performance of this Agreement and any PO. If in order to comply with INWK’s required delivery date, it becomes necessary for goods to be shipped by a more expensive mode than specified on the PO, any resulting premium transportation cost shall be borne by Supplier. No transportation costs that are above the original PO value will be charged to or paid by INWK (unless specifically approved in writing by INWK) and in the event any unapproved charges are applied to an INWK account with a third-party shipper, INWK may reduce any payments due to Supplier hereunder to offset such amounts.
Title and Risk of Loss: Unless the PO expressly states otherwise:
For shipments within the United States, the Ex Works (“EXW”) point at which title and risk of loss pass from the Supplier toINWK shall be the point at which the Supplier transfers the goods to a third-party carrier (Incoterms® 2010). Risk of loss and title remain with the Supplier until that transfer is effected.
For shipments not within the United States, unless other stated in the PO, the Delivery Duty Paid (“DDP”) point for all goods shall be the delivery location designated on the PO (Incoterms® 2010). Risk of loss will transfer to INWK when the goods specifically described in the PO are received and accepted by INWK. The Supplier assumes full responsibility for packing, packaging, mailing, transportation and liability for loss and/or damages, even if INWK has accepted to pay the freight or other charges during transportation.
Supplier also bears risk of loss for any paper or other materials provided to Supplier from INWK or at INWK’s direction per the above.
Ownership: All specifications, documents, artwork, drawings, sketches, dummies, film positives, negatives, separations, deliverables, goods, intellectual property, Confidential Information (as defined below), or other information or materials or portions thereof (“Proprietary Materials”) delivered to Supplier by INWK or INWKs client or created by Supplier pursuant to this Agreement or any PO shall be and remain INWK’s property, and shall be deemed a “work made for hire” (as defined in the U.S. Copyright Act of 1976), as applicable. If, for any reason, such Proprietary Materials shall not legally be deemed a “work made for hire,” under applicable law, then Supplier hereby irrevocably assigns and agrees to assign all of Supplier’s right, title, and interest thereto to INWK. Supplier represents and warrants that it has obtained waivers of moral rights in the Proprietary Materials from the authors thereof, and that it has rightful ownership of the Proprietary Materials such that it is able to make such assignment hereunder.
Confidential Information: All information to which Supplier is given access or which is made available to Supplier as a result of its relationship with INWK is referred to herein as “Confidential Information.” Confidential Information is delivered solely for the purpose of Supplier’s performance of this Agreement and any PO and Supplier shall not disclose to others nor use for any purpose other than to perform this Agreement or any PO without INWK’s express prior written consent. Under no circumstances will Supplier transmit, store, or access Confidential Information from any location outside the United States, or outside the country of origin if not the United States, without the prior written consent of INWK. For purposes of this Agreement, Confidential Information shall include, without limitation, all technology, know-how, processes, software, databases, trade secrets, contracts, all historical and financial information, business strategies, operating data and organizational and cost structures, product descriptions, and pricing information. Confidential Information also includes any other information that is deemed to be nonpublic personal information or personally identifiable information under applicable privacy or data security laws or regulations. This Agreement and the relationship between the parties, as well as any other current and future commercial agreements that may govern the relationship between Supplier and INWK and their affiliates, shall also be considered Confidential Information of INWK. Confidential Information shall not include information that: (a) was in Supplier’s possession, free of any obligation of confidence, prior to receipt from INWK, as proven by the Supplier’s written records; (b) is in the public domain through no breach of duty; or (c) is independently developed by Supplier without use of or reference to any Confidential Information.
Return of Materials: At any time, INWK may demand and Supplier shall immediately return, or at INWK’s direction destroy, any and all Proprietary Materials that relates to INWK and/or INWK’s clients that is in the possession of Supplier.
Relationship: Supplier’s relationship with INWK is that of an independent contractor, and this Agreement shall not create a partnership, agency, joint venture, or employment relationship. Supplier will provide the services using its own human resources and will be solely responsible for compliance with labor, social security and other laws applicable to it and such workers. Supplier shall indemnify, defend and hold INWK from all any and all liability related to its employees and workers and compliance with applicable law. Entry into this Agreement makes Supplier eligible to enter into POs with INWK; however, INWK is not required to award any POs or to provide any minimum volume to Supplier.
Warranty: Supplier expressly warrants all (i) goods delivered under each PO shall be free from defects in material and workmanship and of the quality, size, and dimensions ordered and (ii) work performed under each PO will be in conformity with all plans, specifications, and other data incorporated as part of the PO. Each PO issued in the United States incorporates by reference all terms of the Uniform Commercial Code as adopted in the State of Illinois (the “UCC”) providing any protection to a buyer, including but not limited to all warranty protection (express or implied) and all buyer remedies under the UCC. All goods and services shall also be subject to any stricter warranties specified in the PO or in other materials incorporated by reference.
Indemnification / Hold Harmless: Supplier agrees to indemnify, defend and hold harmless INWK and INWK’s clients from any and all third-party claims that may result directly or indirectly from Supplier’s production or supply of goods and services, or failure to do so, pursuant to a PO, or Supplier’s negligence or breach of this Agreement.
Insurance: Supplier shall, at its own cost, maintain the following insurance during the term of this Agreement: (a) Worker’s Compensation and Occupational Disease Insurance with statutory limits and Employer’s Liability coverage with a minimum limit of $500,000 per occurrence; (b) Automobile Liability Insurance with a minimum limit of $1,000,000 per occurrence covering all owned, non-owned and hired vehicles; (c) General Liability Insurance including Product Liability Insurance with a minimum limit of $1,000,000 per occurrence; and (d) Errors and Omissions/ Professional Liability Insurance with a minimum limit of $1,000,000 per occurrence (or the equivalent. For Suppliers located outside the U.S., Supplier shall, maintain in force an insurance, with a reputable insurance company, to cover such heads of liability as may arise under or in connection with the Agreement or any PO.
Assignment / Subcontracting: Supplier shall not assign this Agreement or any PO or any benefits arising from any PO without prior written consent of INWK and, unless otherwise agreed upon in writing, the rights of any assignee shall be subject to all set-offs, counterclaims, and other comparable rights. Except as otherwise agreed in writing by INWK, Supplier shall not delegate or subcontract its obligations under this Agreement or any PO. Any successor or assignee of Supplier and its affiliates shall be bound by all of the terms and conditions of this Agreement.
Non-Solicitation: During the Term of this Agreement and for a period of 24 months after the Term, Supplier agrees not to directly or indirectly solicit for employment any employees of INWK.
Non-Circumvent: During the Term of this Agreement and for a period of 24 months after the Term, Supplier agrees not to directly or indirectly solicit, accept work from, or otherwise circumvent INWK’s relationship with any INWK client serviced under this Agreement or about which Supplier receives Confidential Information (in a PO or otherwise) pursuant to this Agreement.
Where the Supplier can meet all of the following requirements, the foregoing limitation shall apply only to the category or categories of goods or services that the Supplier provides to the relevant INWK client under this Agreement:
Supplier can demonstrate to the reasonable satisfaction of IW that Supplier has, or had within the prior 12 months, an existing bonafide direct supplier-customer relationship with such INWK client (an “Existing Direct Relationship”); and
Supplier gives written notice of such Existing Direct Relationship to INWK within one business day of receiving INWK’s relevant PO or request for quotation.
Supplier agrees that INWK may withdraw a PO at any time within five business days of receiving Supplier’s notice of an Existing Direct Relationship. For purposes of clarity, Supplier shall treat any information in the PO or that it otherwise learns in the course of providing goods or services under this Agreement as Confidential Information, and such information shall not be used by Supplier circumvent INWK’s relationship with any INWK client or for any purpose other than carrying out its obligations hereunder.
Compliance with Laws / Code: Supplier shall comply with all applicable laws, rules, and regulations, including, without limitation: (a) the United States Foreign Corrupt Practices Act, the UK Bribery Act, and all other applicable laws relating to bribery or corruption, and (b) the Consumer Product Safety Improvement Act of 2008, California Proposition 65 (as applicable), and all other applicable laws relating to product safety or hazardous materials. Additionally, Supplier shall comply with the then current “InnerWorkings Supplier Code of Conduct,” as updated from time to time and available on the INWK supplier portal.
Gratuities: No gratuities (in the form of entertainment, gifts or otherwise) or kickbacks shall be offered or given by Supplier to any employee of INWK or INWK’s client.
Audit: Supplier agrees to permit INWK and its designated agents to audit Supplier’s compliance with this Agreement and any PO, including unannounced on-site inspections of manufacturing facilities and employer-provided housing; reviews of books and records including employment files; and private interviews with employees. Supplier will maintain on site all documentation establishing compliance with this Agreement.
Entire Agreement/Amendments: Any terms and conditions provided by Supplier or included or referenced in any order confirmation from Supplier are null and void. All amendments to this Agreement or any PO must be in a writing signed by Supplier and INWK.
Force Majeure: Neither Supplier nor INWK shall be liable to the other for any delay or failure in performance due to a force majeure event that is beyond the reasonable control of the party unable to perform. If a force majeure event occurs, the party delayed or unable to perform shall give immediate notice to the other party, and the other party may terminate the affected PO if the force majeure event remains in effect for more than 5 days. A force majeure event means acts of God, wars, riots, terrorism, civil insurrections, and abnormal forces of nature.
Bankruptcy or Insolvency: If Supplier makes an assignment for the benefit of creditors, or admits in writing its failure or inability to perform its obligations under any PO, or becomes the subject of an “order for relief” within the meaning of that phrase in the U.S. Bankruptcy Code, or applies for or consents to the appointment of a receiver for any of its property, or suffers any analogous event of insolvency in any jurisdiction, INWK may terminate this Agreement or any PO, at any time, effective immediately upon notice. Such termination shall not relieve either party from any obligations accrued hereunder up to the date of notice of termination.
Governing Law / Forum: This Agreement will be governed by the internal laws of the State of Illinois without regard to conflict of laws. All legal actions relating to this Agreement, any PO, or any transaction governed hereby shall be commenced within the federal or state courts located in Chicago, IL. Supplier and INWK each hereby expressly consent to applicable law and venue and jurisdiction of such courts by signing below. The United Nations Convention on the International Sale of Goods (Vienna 1980) shall not apply.
Term: The term of this Agreement shall commence on the date of Supplier’s signature below, and either Supplier or INWK may terminate this Agreement by giving 60 days’ notice to the other party, provided that these terms and conditions shall continue in force during the performance of any PO that has not been completed prior to termination (“Term”). INWK may terminate this Agreement or any PO immediately due to Supplier’s breach of this Agreement or any PO.
Survival: The following provisions herein shall survive the termination or expiration of this Agreement and any PO: Ownership, Confidential Information, Return of Materials, Relationship, Warranty, Indemnification / Hold Harmless, Non-Solicitation, Non-Circumvent, Governing Law / Forum, and Survival.
Authority: The Supplier represents that the individual executing this Agreement is authorized to enter into this Agreement on Supplier’s behalf.
Language: INWK and Supplier expressly agree that this Agreement and all ancillary documents, including each PO, shall be drafted solely in English. INWK et Supplier ont expressément convenu que cette Entente, ainsi que tout document y afférent soient rédigés, y compris chaque bon de commande en anglais seulement.
INWK AND SUPPLIER ACKNOWLEDGE THAT THEY HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY IT.