- ACCEPTANCE AND GOVERNING PROVISIONS
This Purchase Order constitutes an offer by Buyer which is accepted by Seller solely in accordance with the terms set forth herein and on the face of the Purchase Order upon the earlier of Seller’s (i) signing and returning the acknowledgment copy hereof, or (ii) commencement of effort, or delivery in whole or in part of articles or the furnishing of services required herein, or (iii) failure to take exception to the terms herein and on the face of the Purchase Order within 21 days of the Purchase Order date. This Purchase Order is a complete and exclusive statement of terms and supersedes all prior agreements, and no course of dealing or usage of the trade shall be applicable unless expressly incorporated in the Purchase Order. No additional or different terms (except additional warranties given by Seller) contained in Seller’s quotation, acknowledgment, invoice or other forms shall become a part of the contract, notwithstanding any failure by Buyer to specifically object to such terms, and notwithstanding Buyer’s act of accepting or paying for any shipment or similar act of Buyer. Buyer agrees to purchase the goods described on the face hereof only upon Seller’s complete acceptance of all the terms and conditions of this order, without modification or additions thereto.
All supplemental sheets, schedules, exhibits, specifications, drawings, data or riders which may be annexed hereto or referenced herein are made part of the Purchase Order. Seller acknowledges that it has available to it all specifications, drawings and data incorporated in this Purchase Order and that they are adequate to enable Seller to perform the work called for herein in accordance with the delivery schedule.
Seller shall deliver a separate original, detailed invoice dated as of the date of actual shipment and one copy to Feld Entertainment, Inc. (“Buyer”) for each shipment made by Seller on this order. Unless otherwise specified in the Purchase Order, an invoice shall not be issued prior to shipment of items, and payment will not be made prior to receipt of items and a correct, corresponding invoice. Credit and discount periods will be computed from the date of Buyer’s receipt of the correct invoice to the date Buyer’s payment is postmarked.
If this order is not priced, it shall not be filled at prices higher than those last quoted or charged the Buyer, unless such increased price shall have been authorized by the Buyer in writing.
All materials or articles ordered will be subject to final inspection and approval at the delivery point of the Buyer. Any articles which do not comply with this order or which contain defective material or workmanship may be rejected by Buyer irrespective of inspection, delivery, acceptance or payment therefor. The Buyer may hold any articles rejected for cause for the Seller’s instructions, or the Buyer may return them to the Seller at Seller’s expense. The Buyer will not be liable for items delivered to it which were not specifically identified in this order or which were delivered to it in a damaged condition.
The Seller warrants that the articles to be supplied under this contract are fit and sufficient for the purpose intended; that they are merchantable, of good quality and free from defect, whether patent or latent, in material and workmanship and conform to any required specifications provided for herein. The Seller warrants that it has good title to the article(s) supplied and that they are free and clear of all liens and encumbrances. Such warranties, together with service warranties and guarantees, shall run to the Buyer, its successors and assigns. Seller also warrants that any item(s) sold to Buyer hereunder shall meet or exceed all applicable requirements under applicable state or federal laws, including, without limitation, all Occupational Safety and Health Act (OSHA) standards and regulations and shall bear the appropriate label or listing mark from Underwriters Laboratories (UL) or such other Nationally Recognized Testing Laboratory (NRTL) recognized by OSHA as of the date of purchase. If requested by Buyer, Seller will provide Buyer with the results of tests performed by the NRTL confirming that said item(s) compl(ies) with all such requirements.
The Seller shall not disclose any information concerning this order to any third party except as herein specified. If any item(s) ordered hereby is being or is to be specially fabricated or produced for Buyer, Seller agrees not to disclose the processes, methods and designs used or applied in producing each such item to any third party. Unless the written consent of the Buyer is first obtained, the Seller shall not in any manner advertise or publish or release for publication any statement mentioning the Buyer or the fact that the Seller has furnished or contracted to furnish to the Buyer items and/or services required by the Purchase Order, or quote the opinion of any employees of the Buyer.
- BUYER’S RIGHTS IN SELLER’S DATA AND PATENTS
If at any time during the performance of the terms of the Purchase Order (i) the Seller suspends business operations or becomes bankrupt or insolvent; (ii) the Purchase Order is terminated for default; or (iii) if at any time within five (5) years from the date of the Purchase Order, Seller, for any reason, discontinues acceptance of orders of items similar to those ordered hereunder, the Buyer shall have a royalty-free nonexclusive license to use and license others to use Seller’s patents, designs, processes, know how, drawings, and technical data relating to the supplies and services as defined in the Purchase Order for purposes of producing and selling items required to be supplied by Buyer’s contracts with its customers. In order to accomplish an orderly transition to Buyer’s new source, the Seller further agrees to provide the Buyer with necessary technical aid and assistance at reasonable prices.
- DESIGN AND INVENTION RIGHTS
Any information which Seller may disclose to Buyer with respect to the design, manufacture, sale or use of the items covered by the Purchase Order, including, without limitation, all designs, inventions, ideas, trade secrets, technical data and engineering know-how (e.g. photographs, negatives, artwork, engineering drawings, working drawings, bills of materials and/or associated items) made or acquired by Seller in performance of such work or in supplying such items (collectively, “D & I”) shall be deemed to have been disclosed as part of the consideration for the Purchase Order and shall become the property of Buyer, and Buyer shall have exclusive right, title and interest in and to any patents, copyrights or other protection obtainable. Seller also agrees to furnish Buyer with said item(s) at Buyer’s request and to communicate promptly to the Buyer complete details of any and all D & I (whether or not patentable or copyrightable) conceived of, developed or first implemented by Seller or any of its employees in connection with the performance of the Purchase Order. Upon Buyer’s request, Seller shall assign to Buyer all right, title and interest of the Seller or its employees in such D & I, and to perform all acts and execute all papers necessary to vest in the Buyer full right, title and interest therein, including, without limitation, executing or causing its employees to execute any applications, assignments or other documents determined necessary by Buyer to facilitate the procurement of such patents, copyrights or other protection by Buyer.
- DRAWINGS, SPECIFICATIONS AND TECHNICAL INFORMATION PROVIDED BY BUYER
Drawings, data, designs, inventions and other technical information supplied by Buyer in connection herewith (hereinafter called “Buyer Data”), shall remain Buyer’s property and shall be proprietary and held in confidence by Seller. Buyer Data shall not be reproduced, used or disclosed to others by Seller without Buyer’s prior written consent. Upon completion of work by Seller under the Purchase Order, Seller shall promptly return, unless otherwise directed, all Buyer Data to Buyer together with all copies or reprints thereof then in Seller’s possession or control, and Seller shall thereafter make no further use, either directly or indirectly, of any Buyer Data or any information derived therefrom without Buyer’s prior written consent.
- INDEMNIFICATION AND INSURANCE
This order is placed upon the condition that Seller shall protect, hold harmless and indemnify Buyer from and against any and all claims, demands, losses, costs, damages, liens, suits, judgments, penalties, expenses (including, without limitation, attorney’s fees) and liabilities of every kind arising directly or indirectly out of, or in connection with Seller’s operation conducted under this order, any defect or alleged defect in design, material or workmanship in connection with the items ordered hereby, and any failure of such items to conform to, or failure of Seller to comply with, applicable laws and regulations. The word “Buyer” as used in this agreement shall include Buyer as well as Buyer’s parent, subsidiary, related and affiliated corporations and their officers, employees and agents. Seller shall carry comprehensive general liability insurance including coverage for injuries, including death, and property damages, with minimum limitations of One Million Dollars ($1,000,000.00) combined single limit per occurrence, and shall carry Workers’ Compensation coverage in the amounts required by law. Seller shall provide Buyer with a Certificate of Insurance evidencing said coverage and naming Buyer as an additional insured on such general liability policy, and providing that no cancellation or material change in such coverage will be made effective unless Buyer has been given at least 30 days prior written notice thereof.
- USE OF BUYER’S TRADEMARK
Seller, by this order, shall acquire no right to use the name of Buyer or the name of any of its related, affiliated or subsidiary companies (either alone or in conjunction with or as a part of any other word or name) or any fanciful characters or designs of the Buyer or any of its related, affiliated or subsidiary companies, nor shall Seller use such name, character or designs
- a) in any advertising, publicity, promotion, nor
- b) to express or to imply any endorsement of Seller’s products or services, nor
- c) to use any of said names, characters or designs in any other manner (whether or not similar to uses prohibited by subparagraphs a) and b) above, excepting only to manufacture and deliver in accordance with this order such items as are hereby ordered by Buyer).
Seller shall defend, indemnify and hold harmless Buyer from and against all claims, damages, costs and expenses, including, without limitation, attorney’s fees, arising from the infringement or alleged infringement of any patent, trademark, copyright or other rights of third parties arising out of the materials or services supplied by Seller pursuant to this Purchase Order unless the infringement arises directly out of compliance by Seller with specifications provided by Buyer.
- TIME OF THE ESSENCE; DELAY AND RIGHT TO CANCEL
Time is of the essence as to all dates and times for performance set forth on the face of the Purchase Order. If the Seller refuses or fails to complete performance in accordance with and within the time specified in this Purchase Order or any written extension thereof, Buyer may terminate the rights of Seller to deliver the articles, except when (i) delay of Seller in delivering performance is due to unforeseen causes beyond the control and without the fault or negligence of Seller; (ii) such delay does not exceed a total period of 10 business days; and (iii) Seller immediately gives notice of the cause of such delay to Buyer in writing, including all relevant information with respect thereto. Seller shall insert a clause requiring such immediate notification of delay in any subcontract hereunder.
- COMPLIANCE WITH STATUTES AND REGULATIONS
Seller warrants and certifies that in connection with the performance of this contact it will comply with all applicable federal, state and local statutes, rules, regulations, and ordinances.
Any dispute, claim or grievance arising out of or relating to the interpretation, application or performance of this Purchase Order with an amount in controversy greater than One Thousand, Five Hundred Dollars ($1,500.00) shall be submitted to arbitration in Vienna, Virginia under the then-existing rules of the American Arbitration Association. The decisions and the arbiter’s award rendered after any such arbitration shall be final and binding upon the parties. All costs incurred by the prevailing party in any such arbitration, including reasonable attorney’s fees, shall be paid by the other party.
- TITLE AND RISK OF LOSS
Title to and all risk of loss of or damage to supplies to be delivered hereunder shall remain on Seller until such supplies are delivered to Buyer at the destination specified on the face of the Purchase Order. Seller shall bear all risk of loss or damage to supplies rejected by Buyer, after notice of rejection until such supplies are redelivered to Buyer, except for loss, destruction or other damage to such rejected supplies resulting from the gross negligence of officers, agents, or employees of Buyer acting within the scope of their employment. Passing of title upon delivery shall not constitute acceptance of the items by Buyer.
- ASSIGNMENT AND SUBCONTRACTING
Neither the Purchase Order or any interest hereunder may be assigned or transferred by Seller without the prior written consent of Buyer. Payments to the Seller or any authorized assignee of any claim under the Purchase Order shall be subject to reduction or set-off for any present or future claim or claims which Buyer may have against Seller. Seller shall not subcontract the furnishing of any of the complete or substantially complete items required by the Purchase Order without the prior written approval of the Buyer.
This Purchase Order and its Terms and Conditions constitute the entire understanding between the parties and may not be modified, superseded or otherwise altered except by a written instrument signed by an authorized representative of the Buyer’s Purchasing Department and delivered by Buyer to Seller.