TERMS AND CONDITIONS OF PURCHASE BY TV ONE BROADCAST SALES CORPORATION
1. Applicability. The purchase order (“Purchase Order”) together with these terms and conditions, which are hyperlinked from the Purchase Order or otherwise provided to Seller, collectively constitute an offer by the Buyer for the purchase of the goods (“Goods”) or services (“Services” and together with the Goods, the “Ordered Items”) specified from the Seller in accordance with these terms and conditions and the Purchase Order. Upon acceptance of this offer by Seller, these terms and conditions and the Purchase Order shall constitute a binding agreement (the “Agreement”) between the Buyer and the Seller, and apply to all purchases of the Ordered Goods by Buyer from Seller, as such Ordered Items may be described on the face of the Purchase Order. This offer will be deemed accepted by the Seller upon the first of the following to occur: (a) Seller making, signing or delivering to Buyer any letter, for or other writing or instrument acknowledging acceptance, (b) any performance by Seller under the offer, or (c) the passage of three (3) days after Seller’s receipt of a Purchase Order without written notice to Buyer that Seller does not accept such Purchase Order. In the event of any conflict between the Agreement and any other document or instrument submitted by Seller, the Agreement will prevail. The Agreement, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the Ordered Items and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both oral and written, with respect to the Ordered Goods unless a separate overriding written contract has been entered into and signed by both parties. Buyer expressly limits acceptance of the Agreement to the terms stated herein and in the Purchase Order. Such terms expressly exclude any of Seller’s terms and conditions of sale or any other document issued by Seller in connection with the Ordered Goods. Any additional, different, or inconsistent terms or conditions contained in any form, acknowledgement, acceptance, or confirmation used by Seller in connection with the implementation of the Purchase Order are hereby objected to and rejected by Buyer, however such proposal does not operate as a rejection of the Agreement (unless such variances are in the terms of the description, quantity, price or delivery schedule of the Ordered Items), but will be deemed a material alteration thereof, and the Agreement shall be deemed accepted by the Seller without any additional, different or inconsistent terms.
2. Shipment and Delivery; Alternate Source.
(a) All Goods must be (i) suitably packed or otherwise prepared by Seller for shipment to prevent damage, to obtain the lowest transportation and insurance rates, and to meet the carrier’s requirements, and (ii) shipped in accordance with the instructions on the Purchase Order. Expenses incurred due to failure to comply with these terms are the responsibility of Seller. Seller’s name, complete ship to address and Purchase Order number must appear on all invoices, bills of lading, packing slips, cartons and correspondence. Bills of lading must be attached to invoices submitted, showing carrier, number of cartons and weight and date of shipment. Packing slips must accompany all shipments listing contents of shipment in detail. Title to and all risk of loss or damage to Goods remains with Seller until receipt by Buyer of conforming Goods at the required destination. Terms of shipping are F.O.B. the Buyer’s delivery location unless otherwise noted on the Purchase Order. Time is of the essence. Deliveries are to be made only in the quantities and at the times specified in the Purchase Order. Until delivery takes place, Seller must keep the Goods separately stored and identified as Buyer's property. Seller's right to possession shall terminate immediately in the event an Agreement is terminated by the Buyer pursuant to an event of insolvency as set out in Section 7. Seller grants and shall procure an irrevocable right to Buyer or its agents to enter any premises where the Goods are kept or may be stored in order to inspect them, or where Seller's right to possession has terminated, to recover them.
(b) If delivery is not expected to be made on time, Seller must immediately notify Buyer and take reasonable steps, at its cost, to expedite delivery. The Seller shall not deliver an order more than five business days in advance of an agreed delivery date without the prior written consent of the Buyer. Buyer may cancel any order if delivery is not made on time or if notice is given that a delivery is expected to be late.
(c) Buyer may reject any delivery or cancel all or any part of any Purchase Order if Seller fails to make delivery in conformity with the terms and conditions of the Agreement including, without limitation, any failure of Goods to conform to the specifications (“Specifications”) and performance criteria published by Seller for Goods. Buyer’s acceptance of any non-conforming delivery shall not constitute a waiver of its right to reject future deliveries. If Seller (i) fails to supply Goods, (ii) fails to supply Goods meeting Specifications, or (iii) fails to meet Buyer’s delivery schedules and delivery requirements, and Seller does not provide a comparable quality substitute (for which substitution Seller must assume any expense and price differential), then Buyer may, in its sole discretion, purchase Goods from another supplier as an alternate source as Seller, in its sole discretion, deems necessary. In such event, Seller shall reimburse Buyer for any additional costs and expenses incurred by Buyer in purchasing Goods from such other supplier as an alternate source. Upon identification and notification of defective Goods or nonconforming shipments, Buyer shall receive full credit either for scrap or return, which credit will include full costs paid to Seller, together with shipping, processing and related costs, if applicable. Within 5 business days of notification of the defective Goods, Seller shall submit to Buyer a written explanation of the root cause and corrective actions implemented to prevent reoccurrence. This Section 2 shall apply equally to any repaired or replacement Goods.
(d) Buyer may, without liability, at least 14 days prior to the scheduled delivery date defer delivery on any or every Ordered Item by giving oral notice to Seller of any necessary rescheduling (which oral notice is to be confirmed in writing within 10 days of the oral notice)
3. Prices; Payment. Prices for all Ordered Items will be as stated in the Purchase Order, and include all applicable taxes; provided, however, that in no event will the price charged by Seller under the Agreement be less favourable than the lowest price charged by Seller to other customers purchasing similar or lesser quantities of the Ordered Items. Payment terms for all Ordered Items will be as stated in the Purchase Order. Buyer shall be entitled to set off any amounts owing at any time from Seller to Buyer or any of its affiliated companies against any amount payable at any time by Buyer or such affiliates in connection with the Agreement.
4. Inspection/Testing. Payment for the Ordered Items does not constitute acceptance thereof. Buyer has the right to inspect all Ordered Items and to reject any or all Ordered Items that are in Buyer's judgment defective or nonconforming. The Buyer shall not be deemed to have accepted any Goods until it has had a reasonable time to inspect them following delivery, or, in the case of a latent defect in the Goods, until a reasonable time after the latent defect has become apparent Buyer may request, at its option, repair or replacement of rejected Ordered Items or a refund of the purchase price. Ordered Items supplied in excess of the quantities specified in the Purchase Order may be returned to Seller at Seller's expense. Buyer reserves the right to use rejected materials, as it believes advisable or necessary to meet its contractual obligations to customers, without waiving any rights against Seller. Nothing contained in the Agreement relieves Seller from the obligation of testing, inspection and quality control.
5. Confidentiality and Proprietary Rights. Each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party or use the other's Confidential Information for any purpose other than as expressly permitted under this Agreement. For these purposes “Confidential Information” means information (whether in oral, written or electronic form) belonging or relating to that party, its business affairs or activities which is not in the public domain
and which: (i) either party has marked as confidential or proprietary, (ii) either party, orally or in writing, has advised the other party is of a confidential nature, or (iii) due to its character or nature, a reasonable person in a like position and under like circumstances would treat as confidential; but shall not include information that (i) is or becomes publicly known through no act or omission of the receiving party (ii) was in the other party's lawful possession prior to the disclosure (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure (iv) is independently developed by the receiving party, which independent development can be shown by written evidence; or (v) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body or by the rules of a recognised stock exchange or listing authority. Each party shall agree to take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
6. Warranties. Seller represents and warrants that: (a) all Ordered Items and Seller's performance under the Agreement will (i) conform to all applicable drawings, specifications, descriptions, and samples furnished to or supplied by the Seller, (ii) be of satisfactory quality and free from defects in design, material, and workmanship, (iii) be in compliance with all then applicable laws (whether foreign or domestic), including without limitation laws related to the health and safety of consumers and the protection of the environment and child labour laws; (iv) will be fit for the purpose for which such Goods are commonly supplied; and (v) will be fit for any purpose held out by the Seller or made known to the Seller by the Buyer; (b) the Ordered Items do not infringe upon or violate any intellectual property, right of privacy or other proprietary or property right of any third party; (c) it has the right to grant, and hereby grants, Buyer a licence to use any software embedded or incorporated into any Ordered Items; (d) all Services will be performed with reasonable skill and care and in accordance with good industry practice; and (e) it has complied and shall comply with all laws applicable to its performance under the Agreement.
7. Termination. Buyer may terminate the Agreement in whole or in part (i) upon 15 days’ written notice to Seller at any time for convenience (ii) immediately upon written notice if Seller defaults in the performance of its obligations under the Agreement and is unable to cure the default within 10 days following notice of the default, (iii) immediately upon written notice in the event the Seller suffers an event of insolvency including suspending, or threatening to suspend, payment of its debts or being deemed unable to pay its debts in the ordinary course as determined by Buyer in its reasonable determination or an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the Seller; a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Seller. Upon the termination of the Agreement, in whole or in part, by Buyer for any reason, Seller shall immediately (a) stop all work under the terminated Agreement, (b) cause any of its suppliers or subcontractors to cease work, and (c) preserve and protect work in progress and materials on hand purchased for or committed to under the Agreement in its own and in its suppliers' or subcontractors' plants pending Buyer's instructions. Buyer shall not owe Seller any lost profit or payment for any materials or Goods that Seller may consume or sell to others in its ordinary course of business.
8. Indemnity. Seller shall defend, indemnify and hold harmless Buyer, its affiliates, officers, employees and agents against all claims, damages, liability, losses, fines, or judgments, including costs, legal fees, and other expenses (whether direct or indirect), relating to or arising out of (a) Seller’s breach of the Agreement; (b) death or injuries to persons or property due to Seller’s breach of the Agreement; (c) the failure of the Goods or Seller's performance of the Services to comply with the requirements of the Agreement, or (d) infringement of a third party’s intellectual property rights in any Goods or Services.
9. Catastrophic Defects. Seller shall, within 30 days of Buyer's demand, indemnify Buyer or its designated third party service provider for all costs and expenses of parts, labour, administrative costs, shipping costs, replacement Goods costs and other expenses (including reasonable attorneys’ fees and expenses) related to or arising from a Catastrophic Defect, Goods recall or Goods field fix. “Catastrophic Defect” will be deemed to occur when: (a) the representations and warranties set forth in Section 6 are breached with respect to (i) 3% or more of the Goods shipped within any three-month period, or (ii) 1% of the Goods shipped within the first six months of the initial agreement between Seller and Buyer; (b) the return and exchange rate of the Goods sold by Seller to Buyer is in excess of the category average for the Goods, as determined by Buyer’s records; (c) a single or single group of defects in Goods (any manufacturing defect that affects the Goods cosmetically or functionally) is determined by Buyer to impact more than 10% of such Goods; (d) Goods (including any service parts, replacement parts, spare parts, assemblies and tools required for servicing Goods) recall is necessary in the reasonable opinion of Buyer or Seller; or (e) the Goods should be pulled from the marketplace to comply with applicable law as determined by Buyer in its sole discretion (including but not limited to, cases of a voluntary or mandatory consumer Goods safety recall).
10. Insurance. Seller shall, and shall require that its subcontractors shall, obtain and at all times maintain, from reputable insurance companies, adequate levels of insurance (including products liability and public liability adequate) to cover its obligation under this Agreement and under applicable law. At Buyer's request, Seller shall have Buyer added as an additional insured on the commercial general liability insurance policy and shall furnish Buyer with a certificate of insurance and applicable insurance policy endorsements evidencing such insurance. The Seller shall do nothing to invalidate any insurance policy or to prejudice the Buyer's entitlement under it and notify the Buyer if any policy is (or will be) cancelled or its terms are (or will be) subject to any material change. If any part of the Agreement involves Seller’s performance on the Buyer’s premises or at any place where the Buyer conducts operations, or with material or equipment furnished to Seller by Buyer, Seller shall take all necessary precautions to prevent injury to person or property during the progress of Seller’s work.
11. Limitation of Liability. In no event shall Buyer's aggregate liability for any loss or damage arising out of or in connection with or resulting from the Agreement exceed the price allocable to the Goods or Services or unit thereof which gives rise to the claim, except that the Seller may charge the Buyer interest on any payment received later than 60 days after its due date in accordance with Section 3 at a rate of 2% per annum.
12. Governing Law/Jurisdiction. The Agreement, its interpretation and any disputes arising out of or in connection with it (including non-contractual disputes) shall be governed by, and construed in accordance with, the laws of the State of Kentucky (including but not limited to the Uniform Commercial Code as in effect in the State of Kentucky), without regard to Kentucky’s conflict of law principles. Buyer and Seller expressly acknowledge and agree that the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) does not apply to the Agreement and such parties have voluntarily elected to opt out of the application of CISG to the Agreement. Buyer's rights under the Agreement are cumulative and in addition to any other legal or equitable remedies it may have against Seller. Buyer and Seller irrevocably agree and submit to the exclusive jurisdiction of any state or federal court located in Kenton County, Kentucky to bring an action or otherwise exercise a right or remedy, and Buyer and Seller irrevocably waive any objection based on forum non conveniens and any objection to venue of any such action or proceeding.
13. Compliance Matters. Seller must comply with all Buyer policies applicable to, and notified to, Seller. Seller must strictly comply with all applicable statutes, laws and regulations (“Laws”), including without limitation, all applicable environmental, health and safety, trade, and import/export Laws. Seller agrees to notify Buyer on any inherent hazard related to the Goods being purchased under the Agreement that would expose the hazard during the handling, transportation, storage, use, resale, disposal or scrapping of the Goods. Said notice shall be sent to Buyer’s Global Supply Chain Manager and shall specify the product name, the nature of the hazard, property precautions that must be taken by Buyer or others, all applicable Safety Data Sheets, and any other additional information that Buyer should reasonably expect to know to protect its interest, property and/or personnel.
14. Seller As An Independent Contractor. Seller shall perform the obligations of the Agreement as an independent contractor and under no circumstances shall be considered to be an agent or employee of Buyer. The Agreement shall not in any way be construed as creating a partnership or any other kind of joint undertaking between Buyer and Seller. Seller is solely responsible for all federal, state and local taxes, contributions and other liabilities with regard to payments by Buyer to Seller.
15. Anti-Corruption. Seller shall at all times conduct its activities in accordance with all applicable laws, rules, regulations, sanctions and orders related to anti-bribery or anti-corruption legislation including, but not limited to, the U.S. Foreign Corrupt Practices Act of 1977 (“Relevant Requirements"). The Seller shall (i) comply with all policies of the Buyer regarding anti-corruption as may be notified to it from time to time, and any relevant industry code, in each case as the Buyer or the relevant industry body may update them from time to time (“Relevant Policies”) and (ii) have and maintain in place throughout the term of this Agreement its own policies and procedures to ensure compliance with the Relevant Requirements and the Relevant Policies and will enforce them where appropriate (iii) promptly report to the Buyer any request or demand for any undue financial or other advantage of any kind received by the Seller in connection with the performance of this Agreement; (iv) immediately notify the Buyer if a foreign public official becomes an officer or employee of the Seller or acquires a direct or indirect interest in the Seller (and the Seller warrants that it has no foreign public officials as officers, employees or direct or indirect owners at the date of this Agreement); (v) within six months of the date of this Agreement, and annually thereafter, certify to the Buyer in writing signed by an officer of the Seller, compliance with this section 15 by the Seller and all other persons for whom the Seller is responsible pursuant to this Section 15. The Seller shall provide such supporting evidence of compliance as the Supplier may reasonably request. The Seller shall ensure that any person associated with the Seller who is performing services or providing goods in connection with this Agreement does so only on the basis of a written contract which imposes on and secures from such person terms equivalent to those imposed on the Seller in this section 15 (“Relevant Terms”). The Seller shall in all circumstances be responsible for the observance and performance by such persons of the Relevant Terms, and shall in all circumstances be directly liable to the Buyer for any breach by such persons of any of the Relevant Terms howsoever arising. Breach of this section 15 shall be deemed a irremediable, material breach of this Agreement by the Seller.
16. Cooperation. The Seller shall provide all such evidence as the Buyer may reasonably request in order to verify any invoices submitted by the Seller or any discount statement or other cost reductions achieved by the Seller (including the dates on which cost reductions were achieved). In addition, the Supplier shall, on request, allow the Buyer to inspect and take copies of (or extracts from) all relevant records and materials of the Seller relating to the supply of the Goods as may be reasonably required in order to verify such matters.
17. General. The invalidity of any provision contained in the Agreement will not affect the validity of any other provision. This Agreement, together with any previous confidentiality agreement entered into between the parties, constitutes the entire agreement and understanding of the parties relating to the subject matter hereof. This Agreement supersedes all prior written and oral agreements and all other communications between the parties. Each party agrees that it shall have no remedies in respect of any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement. Buyer's failure to insist on performance of any term or condition or to exercise any right or privilege shall not waive any such term, condition, right or privilege unless such waiver is set out in writing and signed by both parties. The Agreement may be amended or modified only by a written instrument separately signed by Buyer or Seller. Seller shall not subcontract, encumber or assign its rights and obligations under the Agreement, in whole or in part, without Buyer's prior written consent. The provisions of Sections 5-9, 11, 12 and 17 survive termination of the Agreement. Nothing in the Agreement confers upon any person other than Seller and Buyer any right or remedy under or by reason of this Agreement. The Seller shall, at the request and cost of the Buyer, do or procure the doing of all such further acts, and execute or procure the valid execution of all such document, as may from time to time be necessary in the Buyer’s reasonable opinion to give full effect to this Agreement. All notices, requests, consents and other communications required or permitted to be delivered hereunder must be made in writing and delivered by facsimile or by hand, via overnight delivery service or by registered or certified mail, postage prepaid, to the address or facsimile number of the other party in the Purchase Order (or such other address or facsimile number as may be notified in writing by that party for these purposes). Notices shall be deemed to be received at the time at which it would have been delivered in the normal course of post, or in the case of facsimile, on the date on which the facsimile is transmitted by the sender according to the facsimile confirmation report.