[THESE TERMS AND CONDITIONS DO NOT APPLY TO ORDERS PLACED PURSUANT TO WRITTEN AGREEMENTS SIGNED BY BOTH PARTIES]
Supplier, by accepting this Purchase Order (this “Order”), expressly warrants and agrees with Company (as defined below) as follows:
This Order may be accepted by a seller (“Supplier”) of goods or services (“Products”) only on the exact terms and conditions set forth in this Order, including any attachment hereto and any document or agreement incorporated herein by reference, all of which shall constitute the final, complete and exclusive statement of the terms and conditions of the agreement between Supplier and Company regarding the purchase and sale of Products covered by this Order. Any additional or different terms and conditions contained in Supplier’s invoice or other document, including any click wrap, EULA or other terms and conditions that an end user may be required to accept in order to use the Product, shall be deemed material alterations within the meaning of the Uniform Commercial Code, and shall not be applicable to this Order, or form the basis of any agreement between Supplier and Company. If shipment is made of any Products, any Products are provided by Supplier hereunder, or Supplier accepts payment for any Products, it is understood and agreed that the terms and conditions of this Order are satisfactory to and accepted by Supplier in their entirety, without modification, notwithstanding the lack of Supplier’s written approval hereof. In the event the terms of this Order conflict with the terms of any attachment hereto or any document or agreement incorporated by reference (including, without limitation, by imposing a greater obligation or liability upon Supplier than that imposed herein), the terms of such attachment, document or agreement shall control.
"Company" shall mean the entity issuing this Order. However, Company may purchase the Products described in this Order with the intent to transfer such Products to one or more of Company’s affiliated or related companies, and such affiliated or related companies shall be deemed intended third-party beneficiaries under this Order and all rights of Company, and all obligations and warranties of Supplier, contained in this Order shall inure to the benefit of such affiliated or related companies. In such event, the affiliated or related companies to which the Products are transferred shall be deemed to be a “Company” under this Order.
Supplier warrants that the Products:(a) shall strictly conform in all respects to the applicable sample, drawing, description and/or specifications; (b) shall be of first-class quality and free from defects in design, materials and workmanship; (c) shall be fit for the purpose(s) intended; (d) shall be free from any security interest, lien and/or other encumbrance; (e) shall be rightfully conveyed by Supplier with good and marketable title; (f) shall not infringe the rights of any third party; and (g) shall comply (and that the manufacture of such Products shall comply) with all applicable federal, state and local laws, codes, regulations and rules of the country of origin and the country of destination (provided that in the event of conflicting requirement, the more stringent requirements shall apply). Supplier shall obtain and pay for all necessary federal, state and local licenses and permits necessary to enable it to perform this Order (and upon Company’s request, Supplier shall furnish Company with copies of its receipts for such payments and of such licenses and permits). Supplier agrees to provide a certificate of compliance relative to the provisions of this paragraph with each shipment of Products if Company so requests, and also agrees to permit Company, or its designees, upon reasonable notice, the right to inspect the testing records and procedures of the Products and to test Products for compliance with the provisions of this paragraph. Inclusion of express warranties and representations by Supplier shall not be deemed a waiver of such other warranties as may be implied or expressly set forth in law or fact.
With respect to all Products constituting software and related documentation that Supplier provides to Company pursuant to this Order (collectively, “Software”), Supplier hereby grants to Company, and Company accepts, a nonexclusive, worldwide right and license to use, execute, display, copy and perform the Software during the term set forth in the Order. The employees, agents and contractors of Company and its affiliates may use the Software in accordance with the terms of this Order. The Software may be copied in any machine readable or printed form only in support of the licensed use of the Software and for backup and archival purposes. The Software may be transferred and used on any computer system at any location of Company or its affiliates.
Supplier represents and warrants that: (a) the Software shall conform to and will operate in accordance with all documentation therefor supplied by Supplier to Company; (b) there are no defects or any limitations in the Software which would render it unsuitable for use; (c) the media on which the Software is contained shall contain no computer instructions whose purpose is to disrupt, damage or interfere with Company’s use of any of its data, programs or computer or telecommunications facilities for their commercial purposes; (d) unless expressly authorized in writing by Company, the Software shall not contain (i) any mechanism which electronically notifies Supplier of any fact or event, nor (ii) any key, node lock, time-out, logic bomb or other function, implemented by any means, which may restrict Company’s use of or access to any programs, data or equipment; and (e) Supplier will promptly, at its sole cost, correct or replace the Software if the Software does not conform to the requirements of clauses (a), (b), (c) or (d) above. If Supplier fails to correct or replace any Software that does not meet the foregoing warranties within a reasonable period of time, Company shall have the option of returning the Software to Supplier and receiving a refund of the amounts paid therefor by Company. Company and Supplier expressly agree that the Uniform Computer Transactions Act, regardless of the form in which designated, enacted or implemented, shall not apply to the matters set forth herein.
Except as may otherwise be provided in this Order: (a) all prices specified herein shall be firm and Supplier warrants that such prices are not less favorable than those charged to other customers of Supplier for similar or the same or like Products in equal or smaller quantities; (b) all costs of insurance, packaging, storage and transportation shall be the sole responsibility of Supplier and all transportation costs resulting from deviation from shipping instructions and any other costs incurred by Company because of Supplier’s non-compliance with the terms and conditions of this Order, including, without limitation, shipping deadlines, shall be paid by Supplier or charged to Supplier’s account; (c) title and risk of loss or damage to any Products shall be solely on Supplier and shall pass to Company only upon acceptance; (d) Supplier shall assume and pay all taxes (excluding federal, state and local sales, use and excise taxes, which Supplier shall collect and pay where applicable), fees, assessments and other charges required by law due to the sale of items or performance of work, all of which shall be separately itemized, with all nontaxable items, such as labor charges and charges for maintenance or support services, separately itemized and identified as nontaxable charges; (e) the number assigned by Company to this Order (the "Order Number") shall appear on all tags, invoices, containers, bills of lading, express receipts, packing lists, or other documents relating to this Order; (f) shipment shall be accompanied by a shipping notice or a packing slip describing the contents of each package or container showing weight, quantity and Order Number; (g) Supplier shall show pricing on its invoice (any discount period offered by Supplier shall begin from the date the invoice is received by Company); (h) Supplier shall show federal excise, state and/or local taxes, if any, separately on its invoice; and (i) Supplier’s invoices shall furnish such other detail and documentation as requested by Company, and payment of each invoice shall be subject to Company’s prior acceptance of the Products and shall be due no earlier than 60 days following such acceptance or receipt of the invoice, whichever occurs later. Invoices must be received electronically via emailed submission to the address indicated on this Order. Supplier shall execute and submit New Supplier and W-9 (or W-8) forms specified by Company, providing accurate ACH or wire information, as a condition to being paid and acknowledges that payment hereunder by Company may be subject to tax withholding as required by applicable law. It is the sole responsibility of the Supplier to notify the Company, in writing, of any changes to the information provided on these forms, prior to invoicing. Before final settlement of Supplier’s obligations and payment by Company, Supplier shall satisfy Company of the payment and release of all debts, taxes, liens, claims, charges and obligations of Supplier arising by operation of law, or otherwise, out of Supplier’s performance of this Agreement. Company may withhold funds due Supplier hereunder or otherwise, without interest, sufficient to assure itself of the discharge of all such obligations, or to satisfy any provisions of law relating to any claims it may have against Supplier arising from this Agreement or its performance. Supplier shall provide, when applicable, a list of product ingredients and/or a Hazardous Materials Data Sheet, and/or drawings and specifications of the Products supplied to Company. Supplier shall notify Company of any special hazards associated with the handling, storage and use of the Products. Supplier shall advise Company if any ingredient of the Products appears on the U.S. Department of Labor’s Carcinogen List or Hazardous Data Sheet. All electrical equipment and goods must have UL and OSHA approval.
Time for Supplier’s performance is of the essence under this Order. Supplier shall immediately notify Company if Supplier will not be able to perform, deliver or complete all or any part of this Order by the specified delivery or completion date (and shall specify the earliest possible time for such performance, delivery or completion); whereupon Company shall have the option to cancel all or any part of this Order without obligation to Supplier other than notice and without prejudice to any of Company’s other rights or remedies under this Order or at law. Company shall have the right to inspect all Products and reject any and all Products which are not delivered or completed in the quantities ordered or by the specified date(s) or do not comply with any warranty or other requirement of this Order; however, in the event of acceptance, such action shall not be construed as a waiver of Company's right to recover damages for late delivery or completion, nor shall Company be obligated to accept further Products under this Order. To the extent Supplier is performing work under this Order, Company may terminate this Order at any time, without cause, upon 10 days’ written notice to Supplier; in such event, Company’s sole obligation to Supplier shall be to pay for work completed through the date of termination (including any proven loss of reasonable profits sustained based upon the percentage of work completed through the date of termination), provided Supplier complies with any instructions from Company in its notice, but in no event shall Supplier be entitled to recovery of any unabsorbed overhead, anticipatory profits or damages for termination except as expressly set forth in this paragraph.
Supplier shall maintain in strict confidence, and not disclose to any other person or entity, all nonpublic, confidential, proprietary and/or trade secret information, including without limitation Company Data (as defined below), acquired or learned from Company without Company’s prior written permission, which may be withheld in the absolute discretion of Company. Under this Order, Supplier shall acquire no right to use, and shall not use, the “Hulu” name or logo, (either alone or in conjunction with or as part of any other word or name), or any other fanciful characters, designs, trademarks, trade names or copyrighted works of Hulu, LLC or its subsidiary or affiliated companies (including without limitation “The Walt Disney Company” or the name “Disney”): (a) in any of its advertising, publicity or promotions, (b) to express or imply any endorsement by Company of Supplier’s products or services, or (c) for any other purpose or in any other manner, except only as necessary for Supplier to properly perform pursuant to this Order.
While this Order remains in effect and for three years thereafter, Supplier shall maintain Product Liability and Commercial General Liability Insurance to include contractual and products/completed operations, with minimum limits of $1,000,000 on an occurrence form basis, and Automobile Liability coverage with minimum combined single limits of $1,000,000 protecting it and Company from claims for personal injury (including bodily injury and death) and property damage which may arise from or in connection with Supplier’s performance hereunder or from or out of any negligent act or omission of Supplier, its officers, directors, employees, agents or subcontractors. To the extent this Order involves Supplier’s storage or transmission of Company Data (as defined below), Supplier shall also maintain Professional Liability (Errors and Omissions) insurance covering the types of Products provided by Supplier with limits of no less than $5 million per claim and $5 million as an annual aggregate. To the extent this Order includes Supplier’s performance of services on property owned, leased or designated by Company, Supplier shall also maintain Workers’ Compensation Insurance as required by applicable law and Employer’s Liability Insurance with minimum limits of $1,000,000 per occurrence. All such insurance shall be with companies and on forms acceptable to Company and shall provide that coverage may not be reduced or canceled unless 30 days prior written notice is furnished to Company. All insurance shall be primary and not contributory with regard to any other insurance available to Company. All insurance shall be written by companies with a BEST Guide rating of B+VII or better, and such policies shall contain a waiver of subrogation.
Supplier shall defend (if required by Company and with counsel selected by Company), indemnify and hold harmless Company, its parent, subsidiary and affiliated companies, and the officers, directors, employees and agents of each, from all claims, demands, liabilities, actions, judgments, damages, losses, settlements, costs and expenses (including without limitation penalties, interest and attorney fees) arising directly or indirectly from or out of any actual or alleged: (a) defect in design, material or workmanship of the Products ordered hereunder; (b) infringement of a patent, trademark, copyright or other intellectual property right of a third party, or misappropriation of trade secrets or other confidential information of a third party, regarding any Product; (c) price discrimination or price fixing regarding any of the prices specified herein; (d) negligent or willful act, error or omission of Supplier, its officers, directors, employees, agents, invitees or subcontractors; (e) failure by Supplier to perform any of its obligations hereunder; (f) breach of the warranties (express, implied and by statute) and representations made by Supplier herein; and (g) any occupational injury or illness sustained by an employee or agent of Supplier in furtherance of this Order. Supplier expressly and unconditionally waives its rights to raise as a defense to its obligations under this paragraph any intervening, contributing or comparative negligence (whether active or passive) by Company. The foregoing indemnity shall not be limited by the insurance requirements of paragraph 9. If Company brings an action against the Supplier to enforce any provision of this Agreement and prevails therein, Company may recover its reasonable attorneys' fees in addition to any other remedy it may have at law or in equity.
Supplier has and will maintain throughout the term of this Agreement, security procedures consistent with the guidelines, rules and regulations promulgated by the U.S. Customs and Border Protection, Department of Homeland Security, as the same may be amended from time to time, including without limitation the guidelines, rules and regulations in connection with the Customs - Trade Partnership Against Terrorism ("C-TPAT"). Upon request, Supplier will provide Company a copy of its C-TPAT certification/verification, if Supplier is certified/verified, or documentation evidencing security procedures if Supplier is not C-TPAT certified, verified or eligible for certification and/or verification or by providing an equivalent World Customs Organization accredited security program administered by a foreign customs authority. Company reserves the right to place on hold and/or cancel any purchase order if Supplier does not maintain adequate security procedures. Supplier agrees to fully comply with all applicable U.S trade and economic sanctions and export control laws and regulations, including but not limited to those administered by the U.S. Department of Commerce, Department of State, and Department of Treasury’s Office of Foreign Assets Control. Supplier agrees to fully comply with the United States Foreign Corrupt Practices Act of 1977 and any amendments thereto (and any local or foreign equivalent), including any relevant laws of the jurisdiction where this Order is being entered into or will be performed.
This Order shall be governed by the laws of the state of California, without regard to California’s principles of conflicts of laws. Any dispute between the parties arising out of or relating to this Order that cannot be resolved by good faith negotiations shall be submitted for trial to a court in California having subject matter jurisdiction. The parties hereby consent to the exclusive jurisdiction of such court and agree to accept service of process outside California. Supplier is an independent contractor and nothing herein shall be construed to create a partnership, employment, agency or joint venture relationship between Supplier and Company. This Order, and any rights and obligations hereunder, may not be subcontracted or assigned by Supplier, nor shall it be assignable by operation of law, without Company’s prior written permission, which may be withheld in the absolute discretion of Company. No waiver of any breach, right or remedy shall constitute a continuing waiver, nor shall it be construed as a waiver of any other breach, right or remedy. This Order may be supplemented or modified only by a written agreement between Supplier and Company signed by both parties. This Order shall be interpreted in accordance with its fair meaning and not against either of the parties.
All notices given hereunder shall, unless otherwise specifically provided, be given in writing, by mail or electronic mail, at the respective addresses of Supplier and Company set forth in this Order, unless either party at any time or times designates another address for itself by notifying the other party thereof by certified mail, in which case all notices to such party shall thereafter be given at its most recently so designated address. Notice given by mail shall be deemed given on the date of delivery thereof with postage prepaid. Notice given by electronic mail shall be deemed given upon receipt thereof by the recipient.
If Supplier, as a result of providing Products under this Order either: (a) receives customer credit card information; (b) processes credit card information for Company; (c) provides software, equipment or systems that Company will use to process credit card information; or (d) stores credit card information electronically or otherwise for Company, then Supplier represents, warrants and covenants that Supplier is in compliance, and will remain in compliance, with the current Payment Card Industry ("PCI") Data Security Standard as specified at: https://www.pcisecuritystandards.org/pci_security. In addition, if Supplier is required to obtain a PCI audit as part of required PCI compliance, upon Company's request, Supplier shall provide to Company a copy of its most current PCI audit.
If Supplier, in the course of providing Products under this Order, receives, processes, stores, or is exposed to or granted access to Company Data (defined below), Supplier agrees to establish and use adequate and appropriate technical and organizational measures, procedures, and controls that meet or exceed current industry standards to protect the privacy, security, integrity and confidentiality of such Company Data, including without limitation, by maintaining a written information security program that includes all the necessary policies, procedures, training, technology controls, and other safeguards to protect the Company Data from unauthorized access, use, disclosure, alteration, or destruction and regular assessments, testing and updates to all such measures. Supplier shall not collect, use, retain, disclose or otherwise process any Company Data, even if anonymized or aggregated, for any purposes other than to provide the Products to Company. Supplier shall store and retain Company Data only for such periods as needed to provide the Products hereunder and otherwise in accordance with any applicable data retention and disposal laws. If at any time requested by Company in writing, Supplier shall securely return or promptly destroy (at Company’s election) all Company Data in its possession. If Company requests that Supplier destroy the Company Data, Supplier shall destroy the Company Data and provide certification of such destruction within ten (10) days of such request. “Company Data” means data, content or materials provided by Company or its affiliates to, or collected by, Supplier in any form, including any such data, content or materials used, processed, generated or stored in connection with Company’s and its affiliates’ use of the Product, or derived from, or in connection with, the foregoing, including, without limitation any information that refers, is related to, or is associated with an identified or identifiable individual, including, without limitation: (a) an individual’s first name or first initial and last name, with or without a physical address; (b) an email address; or (c) an IP address. Supplier will immediately, and in no event later than twenty-four (24) hours, notify Company of any actual, attempted, or suspected threat or hazard to the security or integrity of the Company Data (a “Security Breach”) and will, at its own expense, investigate and take all commercially reasonable steps, and pay the costs to prevent, mitigate, and remediate the effects of such a Security Breach, including the costs of any consumer notification or remediation services. Without limiting any other remedy in the Agreement, Supplier shall reimburse, indemnify, and hold Company harmless for all reasonable investigation, remediation, forensic and legal costs and any related claims, actions, judgments, damages, liabilities, costs, and expenses, including reasonable attorneys’ fees and costs, incurred by Company in connection with a Security Breach. Upon Company’s request, Supplier will promptly assist Company with its compliance under applicable law regarding Company Data, including, without limitation, to respond to and comply with requests from individuals exercising their rights under applicable law, to comply with inquiry from regulators, to report and remedy a Security Breach, and to conduct required audits and assessments. Supplier agrees that the transfer of Company Data to Supplier under this agreement does not constitute a “Sale” of “Personal Information” and that Supplier will not “Sell” the Company Data as such terms are defined under applicable law, including the California Consumer Privacy Act. Supplier hereby certifies that it understands and will comply with these restrictions and obligations. Company shall have the right to terminate any Order immediately without penalty if Supplier fails to comply with any of the terms of Paragraph 14 or this Paragraph 15.
Paragraphs 3 through 5 and 8 through 16 of this Order shall survive the expiration or earlier termination of this Order.