Elsevier standard terms of purchase for suppliers
Subject to section 2, these terms of purchase (the "TP") shall apply to all offers, purchase orders, proposals and agreements made between Elsevier ("Elsevier") and any vendor or its agent ("Vendor") relating to any products and/or services provided to Elsevier (the "Products" and/or "Services") and, except as set out in section 2, the TP and the offer, purchase order, proposal or agreement (including any related schedules or exhibits or attachments which are referred to) shall form the entire agreement between Elsevier and Vendor (the "Agreement") relating to the Products and/or Services and shall supersede any previous terms which applied to products and/or services already provided. For the purposes of the TP, 'Elsevier' shall mean the company within the Elsevier group that is purchasing the Products and/or Services.
2. Variations and Conflicting Terms
Any variation to the TP shall have no effect unless expressly agreed in writing (referring to the varied provision of the TP by section number) and signed or otherwise confirmed by an authorised signatory of Elsevier (including where such signature is given as an electronic signature or such agreement and confirmation is given by email).
If there is any conflict or inconsistency between the TP and any other terms which the parties have agreed relating to the Products and/or Services, the terms of the TP shall prevail over those terms to the extent of any conflict or inconsistency, unless either (i) the other terms expressly refer to a provision of the TP by section number and expressly vary that provision (as described above) or (ii) the other terms are set out in a separate written contract document which has been expressly agreed and signed or otherwise executed and is in force between the parties, in which case the separate written contract document shall prevail and the TP shall not apply at all.
Elsevier shall have the right to request reasonable changes (including additions and omissions) from time to time in the specifications, drawings, designs, quantity, packing instructions, destination, or delivery schedule of the Products and/or Services. If any such change affects the price of the Products and/or Services or the time required for Vendor's performance under the Agreement, Elsevier and Vendor may negotiate an equitable adjustment in the price or delivery schedule or both, provided that all claims for adjustments under this section shall be made by Vendor to Elsevier in writing within 30 days after Elsevier makes the change to which the adjustment relates.
4. Prices and Taxes
Vendor shall provide the Products and/or Services at the price or prices stated in the Agreement. Any increases in any stated price need to be reflected through an amendment in writing. If no price is stated, no delivery or performance shall take place unless Vendor submits a quote to Elsevier and such quote is accepted by Elsevier in writing. Prices are not subject to change without Elsevier's written consent. Unless expressly stated in the Agreement or unless Elsevier expressly agrees otherwise in writing, the price shall include all applicable taxes (including VAT as applicable and sales taxes) and other charges relating to any Products or Services such as handling, loading, freight, transport, finance, insurance, packaging, shipping, duties, customs, tariffs, and other government imposed surcharges. Elsevier does not accept any additional financial or bank charges, and no such charges shall be valid hereunder. VAT as applicable and/or any other taxes, including but not limited to sales tax, shall be separately stated on the Vendor's invoice.
5. Payment Terms and Invoicing Requirements
Where pricing is on the basis of 'time and materials' for Services then, unless the Agreement specifies otherwise, Vendor will provide Elsevier with an invoice each month in arrears for amounts due per the Agreement. Where pricing is on the basis of a fixed price for Products or Services with or without milestone payments or on the basis of 'time and materials' on achievement of certain milestones then, unless the Agreement specifies otherwise, Vendor will provide Elsevier with an invoice on delivery of conforming Products or on completion of the Services or on achievement of the relevant milestone, as the case may be, for amounts due per the Agreement.
Vendor shall ensure that its invoices contain the information required by and are submitted in accordance with the procedures set out in the Elsevier Invoicing Requirements for Suppliers in force from time to time, a copy of which is available at http://www.elsevier.com/wps/find/termsconditions.cws_home/invoicingsuppliers. Any credit notes which are issued should follow the same format and submission requirements as for invoices.
Invoices which do not so comply shall not be considered as correct invoices and shall be returned to Vendor and shall reset the 'due by' date. Vendor shall co-operate with any third party appointed by Elsevier to carry out billing audits on such invoices. Vendor must invoice Elsevier for any goods or services within six months of the date on which it became entitled to issue an invoice under the TP, and Elsevier shall not accept and shall not be obliged to pay any invoice which is issued late.
Elsevier shall pay a correct invoice within forty five (45) days of the later of (i) the scheduled date for delivery or performance or achievement of the milestone, (ii) the actual date of delivery of conforming Products and/or Services or achievement of the milestone, (iii) the date on which Elsevier received a correct invoice from Vendor, (iv) where there are Products subject to acceptance testing, upon Elsevier's final acceptance of the Products. Notwithstanding the foregoing, Elsevier shall be entitled to a 2% discount on the amount due if it pays an invoice within ten (10) days of receipt. Elsevier shall only be obliged to effect payments by means of a wire transfer or other electronic means. No payment shall be effected by means of cash or check.
Without prejudice to any other rights or remedies of Elsevier, Elsevier shall be entitled to withhold payment of all or part of an invoice in the event that Elsevier has a bona fide dispute concerning such invoice, while Vendor will continue to be obliged to deliver the Products and/or perform the Services pending resolution of the dispute.
Notwithstanding the above, Elsevier's payment of the price does not indicate its acceptance of the Products and/or Services nor its waiver of any warranty rights in respect of the Products and/or Services. Payment shall not prejudice Elsevier's rights to return nonconforming Products and/or not to accept the Services nor its right to receive credit or reimbursement for the nonconforming Products and/or not accepted Services.
Elsevier does not accept additional financial charges, including but not limited to interest, in the event of late payment, and no such charges shall be valid hereunder. In the event applicable country-specific laws prohibit the exclusion of additional financial charges or impose a mandatory statutory interest rate where a contract makes no provision for interest on late payment, the parties agree that the only financial charge the parties will be entitled to claim in the event of late payment (provided the amount is not the subject of a bona fide dispute) will be interest on any amount due from the day after the date on which payment was due up to and including the date of payment in full (both before and after any judgment) calculated from day to day at a rate per annum equal to 4% above LIBOR or any equivalent index in the relevant country.
6. Delivery and Risk of Loss
Time is of the essence, if any shipment, delivery of Products or performance of Services is made which is not in all respects in accordance with the terms and conditions of the delivery schedule, and if so, Elsevier shall be entitled to reject such shipments or deliveries not then made and cancel the Agreement without any liability to Vendor and without prejudice to Elsevier's rights to claim damages against Vendor. Such damages may include, but shall not be limited to, the amount of any compensation or penalty which Elsevier is required to pay its customers by reason of late delivery of the Products and/or Services. Vendor shall promptly inform Elsevier in writing if it is unable to make timely delivery. If Elsevier is obliged to purchase Products and/or Services elsewhere due to Vendor's failure to make timely delivery, Vendor will be liable for the difference in price and any excess costs that Elsevier incurs.
Unless Elsevier otherwise agrees in writing, Vendor shall deliver the Products and/or Services DDP ("delivered duty paid") at Elsevier's facility as stated on the purchase order.
Vendor shall ensure that Elsevier's purchase order number appears on all packing lists and bills of lading or other shipping documents and shall appear on each package, container or each shipment made pursuant to the Agreement.
All Products may be inspected and tested for acceptance by Elsevier at all reasonable times and places before, during or after manufacture. If any Products are defective in materials, workmanship, or are otherwise not in conformity with the requirements or specifications, and this is attributable to Vendor, Elsevier shall have the right, whether or not payment has been made by Elsevier, to reject the Products or require that such Products be corrected or replaced promptly with satisfactory materials or workmanship. The rejected Products may, at Elsevier's discretion, be returned to Vendor at Vendor's expense and the risk of loss shall pass to Vendor upon Elsevier's delivery of the Products to the common carrier. The costs of inspection of any Products rightfully rejected shall be charged to Vendor.
All Services may be tested for acceptance by Elsevier at all reasonable times during, or upon completion, of the Services. If the Services are not in conformity with the requirements or specifications, and this is attributable to Vendor, Elsevier shall have the right, whether or not payment has been made by Elsevier, to reject the Services or require that such Services are corrected in order to comply with the requirements or specifications. The costs of inspection of any Services rightfully rejected shall be charged to Vendor.
8. Elsevier Materials and Content
Elsevier retains all right, title and interest in and to any materials which Elsevier provides or makes available to Vendor in connection with the delivery of the Products and/or Services. All materials (including all physical media which contain or record any Elsevier materials or content) provided or made available to Vendor shall be held at Vendor's risk and shall be insured by Vendor while in its custody or control in an amount equal to the replacement cost thereof with the proceeds of a loss to be paid to Elsevier. Upon completion or termination of the Agreement all such materials not incorporated in the Products and/or Services shall be returned to Elsevier in good condition unless otherwise agreed.
Without prejudice to the generality of section 10, any content which is provided or made available to Vendor by or on behalf of Elsevier in connection with the Products and/or Services, including without limitation all book and/or journal and/or website text, drafts, manuscripts, articles, contributions, editorial material, pictures, illustrations, photographs, charts, audio and video recordings and other copyright works, and all pre-production copies or versions, proofs, samples and final copies or versions of any such content whether in any paper or electronic form ("Elsevier Content") shall be kept confidential until formal publication by Elsevier. Vendor shall have in place and maintain appropriate and up-to-date technical and organisational measures designed to protect all such Elsevier Content against unauthorised access, disclosure, copying or distribution, whether before or after formal publication of such Elsevier Content, and Vendor shall in addition comply with Elsevier's reasonable instructions from time to time in any matters relating to the protection of Elsevier's intellectual property rights and the prevention of piracy of Elsevier Content.
9. Intellectual Property
With the exception of any of Vendor's pre-existing materials, including any upgrades or enhancements thereof which Vendor makes in the ordinary course of providing products or services to its customers, (altogether "Vendor's Materials") which will remain the property of Vendor or its licensors, all work product, technology, inventions, devices, processes, know-how, documents, reports, studies, plans, charts, diagrams, designs, illustrations, photographs, audio and video recordings, computer programs, source codes, software elements, data, databases, names and logos, original works of authorship, and other tangible or intangible material or deliverables of any nature developed and/or created by or on behalf of Vendor specifically for Elsevier and relating to the Products and/or Services (altogether "Deliverables") and any patents, copyright, trade mark and service mark and domain name rights, rights in passing off and unfair competition, rights in designs and databases, rights to apply for registration or protection of any of the foregoing, and all other forms of intellectual property protection, trade secret rights, proprietary rights or statutory protections whether registrable or not (altogether "Intellectual Property Rights") in the Deliverables, shall be created as work for hire and shall be in all respects the property of Elsevier and shall be delivered to Elsevier promptly upon request. If any right, title or interest in any Intellectual Property Right in any Deliverable shall be considered under any applicable law as being other than a work for hire which is the property of Elsevier, Vendor hereby assigns and transfers to Elsevier all of its worldwide right, title and interest in all the Intellectual Property Rights in such Deliverable, unless otherwise expressly agreed.
Vendor hereby grants Elsevier and its affiliates, employees, sub-contractors, successors, customers and other end users of the Products and/or the Services a perpetual, irrevocable, royalty-free, fully paid-up, worldwide, non-exclusive license to use any of Vendor's Materials which are required to be used in order to get the full benefit of the Deliverables and the Intellectual Property Rights therein and/or the Products and/or the Services. Vendor agrees to disclose promptly in writing to Elsevier all Intellectual Property Rights which it creates in any Deliverables upon request from Elsevier. Vendor agrees to assist Elsevier in every reasonable way, at Elsevier's expense, to secure, perfect, apply for and register in Elsevier's name, and maintain and defend for Elsevier's benefit, all Intellectual Property Rights in any Deliverables, as Elsevier deems appropriate.
Vendor agrees to hold all information provided or made available by or for Elsevier, in either written or any electronic format, including but not limited to documents, data, illustrations, design information, drawings, specifications, reports, requests for quotation or proposals, technical information, customer information, sales and operations information, cost and pricing information, marketing and financial or other business information, and all Elsevier Intellectual Property Rights as referred to in section 9 (altogether "Information"), in the strictest confidence. No dissemination of any Information is permitted without the explicit consent of Elsevier.
Vendor shall (i) restrict disclosure and use of the Information solely to those staff who need to know the same, (ii) advise those staff of their obligations with respect to the Information, and (iii) use and copy the Information only for the purposes of providing the Products and/or Services.
These restrictions shall not apply to the extent that any Information (i) was previously known to Vendor free of any obligation to keep it confidential, or (ii) is or becomes publicly available, other than by unauthorized disclosure by Vendor, or (iii) is received from a third party whose disclosure does not violate any confidentiality obligation, or (iv) is required to be disclosed by law.
Vendor shall not make any announcement or otherwise publicize the existence of or disclose to any person the terms of the Agreement between the parties without the prior written consent of Elsevier. Vendor shall not list Elsevier on any list of its customers or use any of Elsevier's trademarks or service marks in its marketing material without prior written consent.
Vendor represents and warrants to Elsevier that the Products shall be delivered free from all defects in materials and workmanship, shall be of good quality, shall conform strictly to any specifications, drawings, or samples which may have been provided to or furnished by Elsevier, and shall be fit for the particular purposes for which the Products are intended by Elsevier. Vendor further warrants that it will have good title to the Products free and clear of all liens and encumbrances and will transfer such title to Elsevier.
Vendor represents and warrants to Elsevier that the Services shall be completed in a professional, workmanlike manner, with the degree of skill and care that is required by current, good and sound professional procedures. Further, Vendor warrants that the Services shall be completed in accordance with applicable specifications and shall be correct and appropriate for the purposes intended by Elsevier.
Vendor represents and warrants to Elsevier that it operates and maintains appropriate and up-to-date IT security systems, policies and procedures which are designed to protect its IT systems from viruses, trojan horses, spyware, worms, logic bombs or other analogous malicious code ("Malware") and so minimise the risk that Malware will be transmitted from Vendor's IT systems to Elsevier or to other customers or contacts, including to Elsevier's customers. Where the Products contain or comprise any software or other electronic or digitally-stored data or code or where the provision of the Services (including any Deliverables) involves the provision (whether in physical form or via any hosting or download or other transmission) of any software or other electronic or digitally-stored data or code, Vendor represents and warrants that these will be checked before being sent or transmitted or made available to Elsevier or to another person on behalf of Elsevier or to any customer of Elsevier and will be free and clear of any Malware.
Vendor represents and warrants to Elsevier that the Products and/or Services (including any Deliverables) shall not infringe any patent, copyright, trademark, trade secret or other intellectual property, proprietary or contract right of any third party.
Vendor warrants that the prices charged to Elsevier do not exceed the prices charged to any other purchaser for like quantities of the same or substantially similar Products and/or Services.
Vendor shall indemnify, defend and hold harmless Elsevier and each affiliate of Elsevier and each of their directors, officers, employees, agents, shareholders, customers and other end users of the Products and/or Services ("Indemnitees") and defend any Indemnitee against all claims, liabilities, losses, damages, costs and expenses (including legal fees) brought against or incurred by any Indemnitee because of
(i) any breach by Vendor of any of its warranties to, or agreements with, Elsevier,
(ii) any claim that the Products and/or Services (including any Deliverables) infringe any patent, trademark, copyright or any other intellectual property right, anywhere in the world,
(iii) any death, injury or damage to any person or property alleged to have been caused by the Products and/or Services or by Vendor's or any of Vendor's subcontractors' manufacture of the Products or performance of the Services, or
(iv) any contract or commitment entered into or made by Vendor with any third party that provides goods, materials or services to Vendor.
Should Elsevier's use, or use by its affiliates, agents, subcontractors, distributors or customers, of any of the Products and/or Services (including any Deliverables) be enjoined, be threatened by injunction, or be the subject of any legal proceeding for alleged infringement, Vendor shall, at its sole cost and expense,
(i) substitute fully equivalent non-infringing Products and/or Services;
(ii) modify the Products and/or Services so that they no longer infringe but remain fully equivalent in functionality;
(iii) obtain for Elsevier, its affiliates, agents, subcontractors, distributors and customers the right to continue the use of the Products and/or Services; or
(iv) if none of the foregoing is possible, refund all amounts paid for the infringing Products and/or Services.
Infringing Products shall be returned to Vendor at Vendor's risk and expense. If requested by Elsevier, Vendor shall maintain product liability and public liability or other insurance which provides, under the terms of the primary policy or by contractual liability endorsement if necessary, coverage in respect of claims involving bodily injury or property damage arising out of or in connection with the Products and/or Services.
In the event of a breach of the terms and conditions of the Agreement by Vendor, Elsevier shall have all remedies provided by law subject to Vendor's right to collect the price for any part of the Products and/or Services accepted by Elsevier. In no event shall Elsevier be liable to Vendor, Vendor's agents, Vendor's employees or any third party for any incidental, indirect, special or consequential damages arising out of, or in connection with the provision of the Products and/or Services, whether or not Elsevier was advised of the possibility of such damages. In no event shall Elsevier's liability exceed the agreed upon price.
Vendor will comply fully with all applicable laws, ordinances, codes, regulations, standards and judicial and administrative orders relating to its duties, obligations and performance under this Agreement, including without limitation, export and import, anti-corruption, data protection and environmental laws. Vendor will secure with the applicable customs authority all necessary clearances, licenses, and exemptions, and make all required fillings and disclosures relating to the provision of the Products and/or Services. Vendor shall not export, directly or indirectly, any technology, software or commodity of U.S. origin or having U.S. content to countries or nationals of those countries wherever located listed in U.S. Export Administration Regulations, as modified from time to time, unless authorized by appropriate government license or regulations. Whenever Elsevier requests it to do so, Vendor shall promptly furnish to Elsevier copies of such documentation. Vendor will fully comply with the Reed Elsevier Supplier Code of Conduct and, if Vendor is Processing any Personal Information as part of its performance under this Agreement, Vendor will fully comply with the Reed Elsevier Privacy and Data Protection Requirements for Suppliers ("Processing" and "Personal Information" being as defined in those Requirements).
Without prejudice to the foregoing, Vendor acknowledges that Elsevier is subject to, and Vendor shall also comply with, applicable domestic and foreign anti-bribery laws and regulations that regulate Elsevier's business activities, including, without limitation, the United States Foreign Corrupt Practices Act and the UK Bribery Act. Vendor and its officers, directors, employees and agents shall engage only in legitimate business and ethical practices in commercial operations and in relation to its dealings with any employee or official of a government agency or any other government owned, operated or controlled entity (including, without limitation, state run universities, hospitals and libraries), or political parties or candidates (jointly "Government Official"). Neither Vendor nor any of its officers, directors, employees or agents shall pay, offer, give, promise or authorize the payment, directly or indirectly, of any monies or anything of value to any commercial contact or Government Official for the purpose or intent to induce such person to use his/her authority to help Vendor, Elsevier, and/or any affiliate of Elsevier for personal gain or for that of Elsevier or Elsevier's affiliates (any such act, a "Prohibited Payment"). A Prohibited Payment does not include a payment of reasonable and bona fide expenditures, such as, without limitation, travel or lodging expenses, which are directly related to the promotion, demonstration or explanation of products or services or the execution or performance of a contract, provided that such payments are permissible under applicable laws. Vendor further agrees that it will not accept any payment or other benefit in money or in kind from any person as an inducement or reward for any act or forbearance or in connection with any matter or business transacted by or on behalf of Elsevier.
This following paragraph is only applicable to the extent that any of the Services under the Agreement will be performed by staff within the US in respect of US Government contracts held by Elsevier. Unless exempt, this contractor [Elsevier] and subcontractor [Vendor] shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability. If applicable, the contractor [Elsevier] and subcontractor [Vendor]shall also abide by the requirements 41 CFR § 61-300.10 regarding veterans' employment reports and 29 CFR Part 471, Appendix A to Subpart A regarding posting a notice of employee rights.
Each party shall have the right to terminate the Agreement by written notice with immediate effect upon the occurrence of either of the following events:
(i) the other party's insolvency or actions indicating insolvency such as the filing of a petition by or against such party, or such party's attempt to make a general assignment for the benefit of creditors or composition or voluntary arrangement with creditors, or
(ii) the other party's failure to comply with any of its obligations under the Agreement if such failure continues for more than 10 days after notice thereof is given by such party.
Should Elsevier terminate the Agreement Elsevier may, at its option and without prejudice to any other rights or remedies it may have, take possession of the Products and/or the work product of the Services in whatever stage of completion they may be, with or without seeking a writ of replevin or pursuing any other judicial process or remedy. If Elsevier terminates the Agreement because of Vendor's failure to comply with any of its obligations under the Agreement, Elsevier may, upon taking possession of the Products and/or Services, if the Products and/or Services are not completed, complete or contract with any other person(s) to complete the Products and/or Services, and Vendor shall be liable for all costs, expenses or damages of any kind whatsoever which Elsevier has incurred or suffered.
Elsevier may, by written notice to Vendor, terminate the Agreement, or any part thereof, for any reason or no reason, for Elsevier's convenience and with immediate effect or with such notice as Elsevier may specify. Upon termination, Vendor shall immediately cease with the delivery and/or performance under the Agreement. In the event Elsevier terminates for convenience, Elsevier shall pay for all Services satisfactorily performed up to the date of termination, and for Vendor's actual, agreed upon, reasonable, out of pocket costs incurred directly as a result of such termination. For Products Vendor shall be entitled to
(i) the actual cost, plus 5% of said cost, of manufacturing materials which Vendor is unable to cancel, return or divert to other uses within 90 days of the termination date; and
(ii) the reasonable cost of direct labour incurred by Vendor up to the termination date.
The amount of reimbursement shall not exceed the total price for the Products and/or Services as stated in the Agreement. Where the Agreement is terminated with immediate effect, Elsevier shall have no responsibility for Products delivered and/or Services performed after Vendor's receipt of the notice of termination.
The formation, existence, construction, performance, validity and all aspects of the Agreement shall be governed by the law of the corporate domicile of Elsevier which is purchasing the Products and/or Services. The parties agree to submit to the exclusive jurisdiction of the courts of that same corporate domicile.
Vendor shall not be entitled to assign, subcontract or delegate any obligations or performance of the Products and/or Services or any part of them without the prior written consent of Elsevier. Elsevier's consent to assignment, subcontracting or delegation of any obligation of Vendor under the Agreement shall not relieve Vendor of responsibility for performance of the obligation. Elsevier may assign the rights and obligations under the Agreement or any part of it to any person, firm or company.
Vendor shall not have and waives any security interest in or lien upon any of the Products and/or Services. Vendor grants to Elsevier a security interest in all amounts that Vendor owes to Elsevier to secure Vendor's obligations to Elsevier in respect of the Products and/or Services.
The relationship between Vendor and Elsevier is and will be that of seller and buyer and not a joint venture, partnership, principal-agent, broker, sales representative or franchise relationship.
Notwithstanding anything else contained in the Agreement, Vendor confirms that Elsevier can share the benefits and rights which are granted to Elsevier pursuant to the Agreement with any entity being part of the Reed Elsevier group of companies, as if each reference conferring a benefit on Elsevier also included an express reference to such entity. This is without any separate or further payment being required but subject to such entity complying with the same restrictions (other than payment) as those which apply to Elsevier pursuant to the Agreement. Furthermore, Vendor confirms that any company within the Reed Elsevier group of companies can discharge the obligations of Elsevier, subject to Elsevier remaining liable for any of its obligations which are not so discharged.
If any provision of the Agreement is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Agreement and the remainder of such provision shall continue in full force and effect. Failure or delay by Elsevier in enforcing or partially enforcing any provision (or pursuing any breach) of the Agreement will not be construed as a waiver of any of its rights under the Agreement.
The following clauses of the TP will survive the termination or expiration of the Agreement between Vendor and Elsevier: 6, 7, 8, 9, 10, 11, 12, 13, 15 and 16.
Version 1.3 last updated 13 August 2014