Purchase Order Terms and Conditions for Suppliers

APPLICABILITY: A purchase order (“PO”) is an offer by ICW Group Holdings, Inc., on behalf of itself and its subsidiaries, including but not limited to Insurance Company of the West (“ICW”) for the purchase of the goods or services (the “Goods” or the “Services”) specified on the face of the PO from the party to whom the PO is addressed (“Seller”) in accordance with, and subject to, these purchase order terms and conditions (“Terms”) except to the extent the Seller and ICW agreed otherwise in a separate written agreement executed by authorized representative of each party. The applicable PO, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the PO, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the PO, unless otherwise stated herein. These Terms apply to any repaired or replacement Goods or Services provided by Seller hereunder. ICW is not obligated to any minimum purchase or future purchase obligations under the PO.

ACCEPTANCE: The PO is not binding on ICW until Seller accepts the PO or starts to perform in accordance with the PO. ICW may withdraw the PO at any time before it is accepted by Seller.

ELECTRONIC PROCUREMENT PORTAL: Seller acknowledges and confirms ICW’s electronic procurement portal (“Portal”) at https://www.icwgroup.com/about/suppliers/ or its successor site. Seller will maintain, and provide accurate and complete supplier information in the Portal including, but not limited to, company information, including accurate payment details and supporting documentation, confirmation of PO, and submission of electronic invoices through the Portal.

PACKAGING OF GOODS: Seller, at its cost, will package goods in accordance with good commercial practice. Each shipping container will be marked as follows: (1) Seller’s name and address; (2) Ship To name and address: and (3) PO number.

TITLE AND RISK OF LOSS: Title and risk of loss of the Goods will not pass to ICW until ICW actually receives and takes possession of the Goods at the place of delivery, verified by signed delivery receipt.


PLACE OF DELIVER; DELIVERY DATE: The place of delivery will be that set forth on the PO under “Ship To.” Seller shall deliver the Goods or Services in the quantities and on the date(s) specified in the PO or as otherwise agreed in writing by the parties (the “Delivery Date”). Timely delivery of the Goods or Services is of the essence. If Seller fails to deliver the Goods or Services in full on the Delivery Date, ICW may terminate the PO immediately by providing written notice to Seller and Seller shall indemnify ICW against any losses, claims, damages, and reasonable costs and expenses attributable to Seller’s failure to deliver the Goods or Services on the Delivery Date.

QUANTITY: If Seller delivers more than or less than the number of the quantity of the Goods ordered, ICW may reject all or any Goods. Any such rejected Goods shall be returned to Seller at Seller’s risk and expense.

AMENDMENT AND MODIFICATION: No change to the PO is binding upon ICW unless it is in writing, specifically states that it amends the PO and is signed by an authorized representative of ICW.

RIGHT OF INSPECTION: ICW will have the right to inspect and reject the Goods, at delivery, without liability to ICW. If ICW rejects any portion of the Goods, ICW has the right, effective upon written notice to Seller, to: (a) rescind the PO in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If ICW requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective Goods and the delivery of replacement Goods.

INVOICES AND PAYMENT: Seller will submit in Portal separate invoices after each delivery, which will include: (1) the PO number; (2) itemized items, prices and transportation charges, if any, and a copy of the bill of lading and the freight waybill when applicable. Payment will not be due until the above instruments are received by ICW in Portal. Payment will be made in accordance with the Payment Terms as listed in the governing PO, or as provided in the applicable Statement of Work, Master Agreement, or similar agreement, between the parties, and if no such payment terms exist, then payment shall be made within forty-five (45) days after ICW’s receipt of a valid invoice. In no event will ICW be responsible for charges submitted more than one hundred thirty-five (135) days following the last day of the month in which such charges were incurred, unless ICW agrees in advance in writing to a longer period. All invoice inquires and status escalations should be directed to accountspayable@icwgroup.com.

WARRANTY OF INDEMNITY: Goods and Services to be provided hereunder are to be warranted of merchantable quality, free of defects of material, design, or workmanship, suitable for ordinary use, and not infringe or misappropriate any third party’s patent or other intellectual property rights. Seller agrees to defend, protect and save and hold harmless ICW, its affiliates, directors, managers, officers, shareholders, partners, agents, attorneys, accountants, and employees against all suits in law or in equity and from damages, claims, demands and judgments for alleged or actual breach of warranty, negligence, insufficiency or illegality of design, manufacture, fabrication, assembly, processing, labeling or infringement of patents or copyrights, arising from the purchase, resale or use of the articles to be supplied hereunder.

WARRANTY OF TITLE: Seller warrants that the title to all material, supplies and equipment furnished under any contract are free of liens and encumbrances.

INSURANCE: During the term of the PO and for a period of at least two years thereafter, Seller shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $1,000,000 per occurrence with a 2,000,000 aggregate with financially sound and reputable insurers acceptable to ICW. Upon ICW’s request, Seller shall provide ICW with a certificate of insurance (“COI”) from Seller’s insurer evidencing the insurance coverage specified in the PO. The COI shall name Insurance Company of the West, and its parent company, affiliates, officers, directors and employees as additional insureds, and will be primary and not contributing with any insurance coverage maintained by ICW or its affiliates. Seller shall provide ICW with 30 days’ advance written notice in the event of a cancellation or material change in Seller’s insurance policy. Except where prohibited by law, Seller shall require its insurer to waive all rights of subrogation against ICW’s insurers and ICW.

Seller will also carry Workers’ Compensation insurance in accordance with the applicable law of the state in which the work is performed and Employer’s Liability insurance with minimum policy limits of $1,000,000 per occurrence. Seller agrees that the Workers’ Compensation and Employer’s Liability insurance will be the sole and exclusive remedy of Seller and Seller-provided employees for all claims and causes of action that could be alleged against ICW and its parent company, affiliates, officers, directors, agents and employees by Seller or Seller-provided employees.

COMPLIANCE WITH LAW: Seller is in compliance with and shall comply with all applicable laws, regulations, and ordinances. Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under the PO. Seller shall comply with all export and import laws of all countries involved in the sale of Goods or Services under the PO. Seller assumes all responsibility for shipments of Goods requiring any government import clearance. ICW may terminate the PO if any government authority imposes antidumping duties, countervailing duties, or any retaliatory duties on the Goods or Services. Without limitation of the foregoing, Seller represents and warrants that it has provided no item of value to any of ICW’s employees or agents for the purpose of procuring the PO.

TERMINATION: The performance of work under the PO may be terminated in whole or in part by ICW by a written “Notice of Termination” specifying the extent to which performance of work under the PO is terminated and the date upon which such termination becomes effective. ICW will not be liable to Seller for any work done, or materials purchased, after such termination or for lost profits or other damages.

WAIVER: No waiver by any party of any of the provisions of the PO shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the PO, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the PO shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

CONFIDENTIAL INFORMATION: All non-public, confidential, or proprietary information of ICW, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by ICW to Seller, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with the PO is confidential, solely for the use of performing the PO, and may not be used for any other purpose, disclosed or copied unless authorized by ICW in writing. Upon ICW’s request, Seller shall promptly return all documents and other materials received from ICW. ICW shall be entitled to injunctive relief without bond for any violation of this section. This section shall not apply to information that is: (a) in the public domain; (b) known to Seller at the time of disclosure; (c) rightfully obtained by Seller on a non-confidential basis from a third party; or (d) independently developed by Seller without relying on any ICW confidential information.

FORCE MAJEURE: If either party hereto is delayed in carrying out its obligations under the PO because of acts of God, war or riot or labor stoppages, the party will give notice and full particular of such delay supported by sufficient evidence, in writing, to the other party within a reasonable time after occurrence of delay and the time for performance by the party will be extended by the number of days of the delay, except as herein after provided.

ASSIGNMENT: Seller shall not assign, transfer, delegate, or subcontract any of its rights or obligations under the PO without the prior written consent of ICW, which may be withheld in ICW’s sole discretion. Any purported assignment or delegation in violation of this section shall be null and void. No assignment or delegation shall relieve Seller of any of its obligations hereunder.

NO AGENCY: The relationship between the parties is that of independent contractors. Nothing contained in the PO shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from the PO.

PREVAILING TERMS: If a contract exists between Seller and ICW for this purchase, the contract terms will take precedence.

SUBSTITUTES: Seller will not, at any time, substitute replacement Goods for any materials ordered or otherwise deviate in any manner from the specification contained in this PO.

GOVERNING LAW: The PO and all related documents, and all matters arising out of or relating to the PO, whether arising from contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of California, United States of America without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of California.

SUBMISSION TO JURISDICTION: Each party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other party in any way arising from or relating to the PO, in any forum other than the U.S. District Court for the Southern District of California or the courts of the State of California sitting in San Diego County, and any appellate court from any thereof. Each party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

CUMULATIVE REMEDIES: The rights and remedies under the PO are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.

NOTICES: All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the PO or to such other address that may be designated by the receiving party in writing, and with respect to ICW, a copy to the attention of General Counsel. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in the PO, a Notice is effective only (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this section.

SEVERABILITY: If any term or provision of the PO is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the PO or invalidate or render unenforceable such term or provision in any other jurisdiction.

SURVIVAL: Provisions of the PO which by their nature should survive beyond the expiration or earlier termination of this PO will remain in force after such expiration or earlier including, but not limited to, the following provisions: Warranty of Indemnification, Insurance, Compliance with Law, Confidential Information, Governing Law, Submission to Jurisdiction and Survival. With respect to Confidential Information that constitutes a trade secret under applicable law, the rights and obligations set forth in the Confidential Information section hereof shall survive the expiration or earlier termination of the PO until, if ever, such Confidential Information loses its trade secret protection other than due to an act or omission of Seller.