If we send you a purchase order, it will contain these terms and conditions. By working with us, discussing an order, a potential order or otherwise, you agree to be bound solely by these terms and conditions. If any discrepancy exists in the terms of the Purchase Order you receive and this one, then the one we have directly transmitted to you shall prevail.
THIS PURCHASE ORDER (“Order”) IS EXPRESSLY CONDITIONED ON ACCEPTANCE OF THE TERMS AND CONDITIONS HEREOF. Oral or written notice of acceptance by Vendor, preparation to perform by Vendor including the making of any Samples and/or shipment of all or any part of the merchandise including Samples specified in this Order (‘Merchandise’) shall constitute acceptance by Vendor of the terms and conditions contained herein. BY ACCEPTANCE OF THIS ORDER, VENDOR REPRESENTS AND AGREES AS FOLLOWS:
1. If the shipping or delivery dates set forth on the face hereof cannot be met, Vendor will promptly inform Buyer in writing of Vendor’s best possible shipping or delivery dates which shall become part of this Order, if at all, only upon Buyer’s written acceptance thereof.
2. Vendor hereby grants to Buyer the irrevocable right, by all means now or hereafter existing, to: (a) market, promote the sale of and sell the Merchandise; INTENTIONALLY DELETED (c) use, perform, play, synchronize, and/or demonstrate, as applicable, the Merchandise, its contents, and/or any promotional, advertising or similar material supplied by Vendor for use in connection with such Merchandise (“Promotional Material”); and (d) use the names, photographs, likenesses, voices and/or biographies of any individuals performing in or otherwise associated with the production of the Merchandise as contained in the Merchandise, its contents and/or any Promotional Material. Buyer makes no representations with regard to the number of times, if any, that Merchandise will be marketed or promoted by Buyer.
3. In addition to and without prejudice to any and all other warranties, express or implied by law, Vendor represents, warrants and covenants to Buyer that: (a) Vendor possesses all licenses, permits, rights, powers and consents required to enter into and perform this Order, to sell to Buyer the Merchandise referenced herein and to grant to Buyer the rights granted herein; (b) Vendor’s performance hereunder does not violate any agreement, instrument, judgment, order or award of any court or arbitrator (c) all Merchandise furnished hereunder, including the production, sale, packaging, labeling, safety, testing, importation and transportation thereof, and all representations, advertising, prices, and allowances, discounts or other benefits made, offered or authorized by Vendor in connection therewith, shall at all times comply with all applicable federal, state, local, industry and foreign statutes, laws, rules, regulations and orders, standards and guidelines (collectively, “Laws”); (d) where applicable, reasonable and representative tests as prescribed by Laws or governmental authorities have been performed or will be performed before shipment from Vendor to the warehouse designated by Buyer (the “Warehouse”); (e) all Merchandise furnished hereunder shall be new, first quality merchandise and conform to all representations by Vendor, instructions, specifications, and samples, shall be free from all defects (including latent defects) in workmanship, material and design, and shall not be reworked, rebuilt or refurbished merchandise; (f) all manufacturers’ warranties are effective and enforceable by both Buyer and its customers; (g) all Marks which are part of or appear in connection with the Merchandise and/or Promotional Material, and/or any component thereof, are valid and genuine, and the sale, promotion of the sale and performance of the Merchandise and/or Promotional Material, and/or any component thereof, will not infringe upon any domestic or foreign Marks, rights of privacy or publicity and/or any other third party rights, or cause Buyer to be liable to Vendor or any third party for any additional fees, costs or expenses; (h) the title of Vendor to the Merchandise is good and free and clear of all encumbrances and liens, and its transfer hereunder rightful; (i) neither the Merchandise nor any component part thereof is subject to any import quota restriction, rule or regulation preventing or forbidding the importation, use, promotion for sale or sale of the Merchandise or any component part thereof, or any duty, tariff, or penalty in connection therewith, except as previously disclosed in writing by Vendor to Buyer; (j) the Merchandise and similar goods are not and have not been subject to product liability or infringement claims, except as disclosed on the face hereof; (k) the same or similar merchandise is not being and will not be offered to any other purchaser at any time, for any reason or on any terms.
4. Vendor hereby agrees to protect, defend, hold harmless and indemnify Buyer, its subsidiaries and affiliates, and each of their, respective customers, programming and other distributors, employees, agents, officers, directors, successors and assigns, from and against any and all claims, actions, suits, costs, liabilities, damages and expenses (including, but not limited to, reasonable attorneys’ fees) based upon or resulting from: (a) any alleged or actual infringement of the Marks, rights of publicity or privacy and/or any other third party rights arising from the sale, promotion of the sale and/or performance of the Merchandise, contents and/or the Promotional Material; (b) any alleged or actual defect in any of the Merchandise; (c) any alleged or actual injury or death to person or damage to property arising out of the furnishing, use or performance of the Merchandise: (d) breach by Vendor of any representations, warranties or covenants; and (e) any alleged or actual violation by Vendor and/or the Merchandise of any applicable Laws. In the event Buyer notifies Vendor in writing of a claim, demand, action, suit or other matter (“Claim”) to which the foregoing indemnity applies, Vendor shall provide prompt assurance of its ability to so indemnify buyer, to Buyer’s reasonable satisfaction, and Vendor shall commence to defend such Claim, at its sole cost and expense; within five (5) days after receiving Buyer’s written notice. If Vendor fails to provide such assurance or fails to commence such defense within such five (5) – day period, Buyer may, at its option, assume the defense or settlement of such Claim in its own name and all recoveries from such Claim shall belong to Buyer. In the latter event, which shall be in addition to any and all other rights Buyer may have at law or in equity, Buyer may elect counsel to represent it, and Vendor shall be solely responsible for the payment or reimbursement, at Buyer’s option, of counsel fees and all other fees and costs incurred in defending such Claim, for any and all damages arising thereunder, and for any and all amounts paid by Buyer in settlement thereof.
5. Time is of the essence. Buyer reserves the right to cancel this Order or any part hereof, with no liability or obligation to Vendor, in the event: (a) Buyer is notified that any Merchandise or Mark infringes or is alleged to infringe upon any third party rights; (b) Vendor breaches or is anticipated to breach this Order; (c) Merchandise conforming to specifications will not be shipped or delivered on the dates and in the quantities specified on the face hereof; (d) fire, flood, windstorm, earthquake, war, strike, or any other casualty or occurrence of a similar nature substantially and adversely affects Buyer’s premises or business; or (e) any substantial change to Buyer’s business (for whatever reason) occurs. The order is considered pending and cancellable at any time until Vendor has successfully completed the First Piece Sample approval process based or received a written waiver of such process. Details of the First Piece Sample process are referenced in the Buyer’s Quality Assurance Handbook and available only upon request.
6. Merchandise shipped or delivered to the Warehouse prior to the first permitted ship or delivery date specified on the face hereof, may, at Buyer’s option, be returned to Vendor, at Vendor’s risk and expense, and upon such return, shall be held by Vendor for Buyer until shipment or delivery on the specified date. Merchandise shipped or delivered to the Warehouse after the last permitted ship or delivery date specified on the face hereof may, at Buyer’s option, be returned to Vendor, at Vendor’s risk and expense, and upon such return, Buyer may cancel this Order, in whole or in part, without liability. Unless otherwise stated on the face hereof, Vendor shall ship the Merchandise in one shipment. In the event of shipment or receipt of an unauthorized quantity, Buyer may, at its option, either reject or accept the entire shipment unless partial shipments are authorized on the face hereof. Additional freight charges resulting from partial shipments shall be borne by Vendor. Partial shipments shall not cause Vendor’s obligations to become severable. Unless otherwise stated on the face hereof, Vendor shall pay or reimburse Buyer, at the direction of Buyer, for all freight, packing and insurance incident to the shipment of the Merchandise, including, but not limited to, loading and unloading charges, mileage charges, taxes, tolls and other fees. Vendor agrees to follow Buyer’s instructions with respect to shipment, routing and packaging. Vendor’s failure to comply with the terms and conditions set forth in this Section or in Buyer’s shipping regulations (including chargeback program) (“Regulations”) or in any applicable standards provided by Buyer to Vendor (“Standards”), in effect as of the date of this Order, and which are incorporated herein by reference, may, at Buyer’s option, result in the imposition of charges as set forth in such documents. Any such charges assessed may be deducted from any amounts due or which may become due to Vendor. Copies of the Regulations and Standards are available to Vendor upon written request to Buyer.
7. Merchandise furnished hereunder which is not in compliance with this Order, the Regulations or the Standards, which is returned by any of Buyer’s customers for any reason, which fails to meet Buyer’s quality control tests, which fails to meet Buyer’s carrier’s quality, drop or other tests, or which is or may be used in conjunction with merchandise furnished and rejected (or acceptance thereof revoked) under this Order or another order, may be rejected (or acceptance thereof by Buyer revoked) at Buyer’s option and returned to Vendor. All expense of unpacking, examining, repacking, storing, returning, and reshipping any Merchandise rejected (or acceptance of which has been revoked) as aforesaid shall be at Vendor’s expense and risk. With respect to such returned Merchandise, Buyer shall, at its option, receive a credit or refund of all amounts paid by Buyer for such Merchandise, including, without limitation, in-bound freight charges (notwithstanding contrary Freight Terms, if any, set forth on the face hereof), in the event that Buyer shall opt to receive a refund, Vendor shall pay Buyer in immediately available funds within fifteen (15) days of Buyer’s request. In the event that Buyer shall opt to receive a credit, Buyer may apply such credit toward any amounts due or which may become due to Vendor. Vendor agrees that Merchandise rejected or returned for any reason pursuant to the terms of this Order, whether or not such rejection is
disputed by Vendor, will not be resold or otherwise distributed by Vendor unless all labels or other characteristics identifying Buyer and/or displaying any trade name or trademark of Buyer have been first removed. Authorization is expressly granted to Buyer to return Merchandise without additional authorization, and Vendor hereby agrees to accept such returns even without Buyer’s request for return authorization labels. Merchandise returned or rejected by Buyer is not to be replaced by Vendor without the prior written approval of Buyer. Vendor acknowledges that the Buyer does not inspect each item at receipt of Merchandise and that defects, imperfections, nonconformity with any representations, warranties or covenants set forth herein may not be discovered by Buyer until Merchandise shall have been purchased by its customers and returned to Buyer. Buyer’s inspection, discovery of a breach of warranty, failure to make an inspection or failure to discover a breach of warranty shall not constitute a waiver of any of Buyer’s rights or remedies whatsoever.
8. For all items ordered herein, Vendor will supply upon request and within seven days, samples of paper, design materials, CAD drawings, sketches, dimensions and all product information, of the ordered items to Buyer.
9.For all ordered item, the Buyer is the sole owner of all intellectual property associated with creating the order, including elevations, furniture layouts, master moulds, CADS, and any and all other designs. Such designs, sketches, CAD renderings, carvings, all design elements and master molds shall become the Intellectual and Physical Property of Buyer once Vendor has submitted a sketch or electronic drawing and/or depiction of the item to Buyer by email or other conveyance for Buyer’s approval to begin work on the design of the item and eventual production of the physical item.
10. Vendor shall not assign this Order, or any part hereof, without the prior written consent of Buyer, and any such attempted assignment shall be void at the election of Buyer. All claims for money due or to become due from Buyer shall be subject to deduction by Buyer for any setoff or counterclaim arising out of this Order or any other of Buyer’s orders or agreements with Vendor, whether such set-off or counterclaim arose before or after any assignment by Vendor.
11. Unless specified otherwise on the face hereof, the time for payment shall begin to accrue upon receipt of Merchandise at the Buyer’s Warehouse or receipt of a final invoice, whichever occurs later. Buyer agrees to not unreasonably hold Merchandise at first point of entry or clearance in the designated country of importation listed on the face hereof or communicated to Vendor, to prevent timely arrival at Buyer’s prescribed Warehouse. If EOM pay terms are set forth on the face hereof and the Merchandise or invoice, as applicable, is received on or after the twenty-fifth day of the month, End of Month terms begin on the first (1 st) day of the immediately succeeding month. If pay terms are set forth in both the “Initial Payment” and “Subsequent Payment” designations on the face hereof, then (a) the “Initial Payment” designation sets forth the terms of Buyer’s initial payment to Vendor for the Merchandise received which payment will be the aggregate purchase price for such Merchandise less the Reserve (as 1 defined in Section 9) and adjusted for any credits, debits, customer returns, refunds, allowances and unsold Merchandise (where applicable) as of the time of such payment (collectively, “Adjustments”), and (b) the “Subsequent Payment” designation sets forth the terms of any subsequent payment due from Buyer to Vendor which payment will be the Receive after Adjustments. If no payment terms are set forth in the “Subsequent Payment” designation, then the “Initial Payment” will be the aggregate purchase price for such Merchandise after Adjustments. Payment of all or any portion of the invoice does not constitute acceptance of any merchandise covered by this Order and is without prejudice to any and all rights, remedies, claims or defenses of Buyer against Vendor and/or any third party.
12. Until date of shipment or delivery to Buyer, Vendor shall meet its lower prices and the lower prices of legitimate competition, or accept cancellation at Buyer’s option. Buyer, in its sole discretion, shall determine the price at which Merchandise shall be offered for sale to its customers and shall retain all handling and shipping charges collected from its customers.
13. For purposes of this Order, “Confidential Information” means any agreement between Buyer and Vendor, all information in whatever form transmitted relating to the past, present or future business affairs, including without limitation, the sale of Merchandise, customer lists and other customer information, research, development, operations, security, broadcasting, merchandising, marketing, distribution, financial, programming and data processing information of Buyer or another party whose information Buyer has in its possession under obligations of confidentiality, which is disclosed by Buyer, its subsidiaries, affiliates, employees, agents, officers or directors to Vendor or which is produced or developed during the working relationship between the parties. Confidential Information shall not include any information of Buyer that is lawfully required to be disclosed by Vendor to any governmental agency or is otherwise required to be disclosed by law, provided that before making such disclosure Vendor shall give Buyer an adequate opportunity to interpose an objection or take action to assure confidential handling of such information. Vendor shall not disclose any Confidential Information to any person or entity except employees of Vendor as required in the performance of their employment-related duties in connection with this Order, nor will Vendor use the Confidential Information for any purpose other than those purposes expressly contemplated herein. Vendor shall not use any information obtained from Buyer’s customers (e.g., through warranty cards or otherwise) to offer for sale to such customers any goods or services. Vendor shall not include with any Merchandise, any information that would enable Buyer’s customers to acquire, either directly or indirectly, any additional merchandise from persons other than Buyer without first obtaining Buyer’s written consent. In the event of a breach or threatened breach of this Section by Vendor, Buyer shall be entitled to obtain from any court of competent jurisdiction, preliminary and permanent injunctive relief, including, but not limited to temporary restraining orders, which remedy shall be cumulative and in addition to any other rights and remedies to which Buyer may be entitled. Vendor agrees that the Confidential Information referred to in this Section is valuable and unique and that disclosure or use thereof in breach of this Section will result in immediate irreparable injury to Buyer. Vendor shall inform those persons or entities having access or exposure to Confidential Information hereunder, of Vendor’s obligations under this Section.
14. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the Swiss Confederation, without regard to
its conflict of law provisions or the conflict of law provisions of any other jurisdiction and without regard to its place of acceptance. Vendor and Buyer expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods, if applicable. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may apply for binding arbitration. The seat of arbitration shall be anywhere in Switzerland, language of arbitration shall be English and an arbitrator shall be appointed by either consent of the parties or by the president of the ASA (Swiss Arbitration Association). The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Buyer further retains rights to assign the terms of this Purchase Order, dispute or any other matter pursuant to this Order to any of its subsidiaries or partner companies for any purpose at any time. Vendor hereby irrevocably agrees to service of process by certified mail, return receipt requested, to its address as set forth on the face of this Order or to such other address as Vendor may deliver to Buyer in writing.
15. No waiver by Buyer of any term, provision or condition hereof shall be deemed to constitute a waiver of any other term, provision or condition of this Order, or a waiver of the same or of any other term, provision or condition with regard to subsequent transactions or subsequent parts of the same transaction, including without limitation, subsequent shipments under this Order.
16. If any provision contained in this Order shall be determined to be unenforceable or prohibited by law, then such provision shall be void, and the remaining provisions herein shall not in any way be affected or impaired thereby.
17. Vendor shall not issue any publicity or press release regarding Buyer or Buyer’s activities hereunder without first obtaining Buyer’s prior written approval and consent to such release.
18. This Order and any other written warranties and specifications, the Regulations and Standards, and the terms, conditions and agreements herein and therein, constitute the full understanding of the parties hereto and a complete and exclusive statement of the terms of the parties’ agreement concerning the Merchandise furnished hereunder.
19. No condition, understanding or agreement purporting to modify or vary the terms of this Order shall be binding unless hereafter made in writing and duly executed by the party to be bound, and no modification shall be effected by the acknowledgment or acceptance of this Order or of invoices, shipping documents or other documents containing terms of conditions at variance with or in addition to those set forth herein.
20. Notwithstanding any legal presumption to the contrary, the covenants, conditions, representations, indemnities and warranties contained in this Order, including, but not limited to Sections 3, 4, 7 and 13 hereof, shall survive inspection, delivery, acceptance and payment, shall be binding upon Vendor and its successors and permitted assigns, and shall run in favor of Buyer and its successor and assigns.