Terms and Conditions

STANDARD TERMS AND CONDITIONS

Effective 1/1/2013

•Standard Terms and Condition. Unless otherwise expressly agreed to in writing by the company that is issuing the purchase order (the “Customer”) and the Vendor, these Standard Terms and Conditions (the "Standard Terms and Conditions") shall apply to the exclusion of any additional or different terms and conditions stipulated or referred to by the Vendor in its pre-contract negotiations, authorization or purchase order or as otherwise implied by law, trade, custom, practice or course of dealing.

•Representations. Customer may authorize the Vendor to proceed with work either by issuance of a purchase order or other communication. Any contract made between Customer and the Vendor shall be subject to these Standard Terms and Conditions and, except as expressly set forth herein or as may be set forth in a written Vendor Agreement, no representative or agent of the Customer has authority to agree upon any terms or make any representations which are in addition to or inconsistent with these Standard Terms and Conditions or to enter any contract except on the basis of them. Any term, condition, representation or statement in addition to or inconsistent with these Standard Terms and Condition will not bind the Customer unless the addition or modification is in writing and signed by a duly authorized representative of the Customer. In the event Customer and Vendor enter into a written and executed Vendor Agreement and any term or condition herein conflicts with a term or condition specifically set forth in the Vender Agreement, the term and/or condition in the Vendor Agreement shall control.

•Incorporation of Customer’s Terms. If a Vendor has not given a written acknowledgement of the Customer’s order, these Standard Terms and Conditions will nonetheless apply to the contract provided that the Vendor has had prior notice of them.

•Independent Contractor Status. Both the Customer and Vendor intend and specifically agree that these Standard Terms and Conditions do not create any partnership, joint venture, or Customer relationship between them. Notwithstanding anything herein to the contrary, each party hereto shall be and remain an independent contractor and nothing herein shall be deemed to constitute the parties as partners; neither party will have the authority or hold itself out as having the authority to bind the other.

•Warranty. The Vendor expressly warrants that all goods or services covered by an order will conform to the specifications, drawings, samples or descriptions furnished to or by the Customer. The Customer reserves the right at any time to direct changes, or cause the Vendor to make changes or to otherwise change the scope of the work covered by the order, and the Vendor agrees to promptly make such changes; any difference in price or time for performance resulting from such changes shall be equitably adjusted by the Customer after receipt of documentation in such form and detail as the Customer may direct. Goods will be merchantable, of good material and workmanship and free from defects. In addition, the Vendor acknowledges that the Vendor knows of the Customer’s intended use and expressly warrants that all goods covered by an order which have been selected, designed, manufactured, or assembled by the Vendor, based upon the Customer’s stated use, will be fit and sufficient for the particular purpose intended by the Customer. With respect to services, the Vendor shall be responsible to the generally accepted standards of ordinary and reasonable skill and care usually exercised by similar suppliers at the time and location such services are rendered. Any disclaimer of warranty contained in Vendor's purchase orders, invoices or otherwise are waived and or no force or effect.

•Quotations and Prices. Any order submitted to the Vendor by the Customer within sixty (60) days of quotation by the Vendor shall be eligible for acceptance by the Vendor provided that the order corresponds in all respects with the Vendor’s quotation. The quotation shall be incorporated herein by reference and be part of the contract of sale. In the event that an order does not state price or delivery, the Customer shall not be bound to any prices or delivery to which it has not specifically agreed in writing. Unless an order specifies otherwise, the Vendor is liable for and shall pay all taxes, impositions, changes and exactions imposed on or measured by an order except for applicable sales and use taxed that are separately stated on the Vendor’s invoice. Prices shall not include any taxes, impositions, charges or exactions for which the Customer has furnished a valid exemption certificate or other evidence of exemption.

•Shipping Instructions. The Vendor shall be responsible for ensuring the proper packaging of goods. All goods shall be shipped prepaid, insured for the Vendor’s full price and F.O.B. to the Customer’s main office or other address provided to the Vendor by the Customer. No charges will be allowed for packing, crafting, freight and any other services unless so specified in the order. The Vendor shall at all times comply with the Customer’s written shipping instructions. Unless otherwise directed, all items shipped on the same day from and to a single location must be consolidated on one bill of lading or air bill, as appropriate. The Vendor shall submit all required shipping papers to the Customer prior to final payment. Purchase order numbers shall appear on all correspondence, shipping labels, and shipping documents wherever possible.

•Time for Performance. Time is of the essence and failure to deliver goods or services in accordance with an order, if unexcused, shall be considered a material breach of any contract between the Vendor and the Customer. The Vendor shall notify the Customer in writing immediately of any actual or potential delay to performance. No acts of the Customer, including, without limitation, modifications of an order or acceptance of late deliveries, shall constitute a waiver of this provision. The Customer also reserves the right to refuse or return at the Vendor’s risk and expense shipments made in excess of the Customer’s orders or in advance of required schedules or to defer payment on advance deliveries until scheduled delivery dates.

•Termination for Convenience. The Customer may, by notice in writing, terminate an order or work under an order for convenience and without cause, in whole or in part, at any time, and such termination shall not constitute default. In the event of partial termination, the Vendor is not excused from performance of the non-terminated balance of work under the order. The Vendor shall be reimbursed for actual, reasonable, substantiated and allowable costs, plus a reasonable profit not to exceed twenty (20%) percent for work performed to date of termination. The Customer may take immediate possession of all work so performed upon written notice of termination to the Vendor.

•Termination for Default. The Customer may, by notice in writing, terminate an order in whole or part at any time: in the event of Vendor's breach of any one or more of these Standard Terms and Conditions; in the event of Vendor's breach of a Vendor Agreement, if any; in the event Vendor fails to make progress so as to endanger performance; in the event Vendor fails to provide adequate assurance of future performance. In the event of partial termination, the Vendor is not excused from performance of the non-terminated balance of work under the order. In the event of the Vendor’s default, the Customer may exercise any or all rights accruing to it, both at law or in equity.

•Force Majeure. Customer shall not be responsible or liable for any delay or failure to perform its obligations to Vender that directly or indirectly results from or is contributed to any cause beyond reasonable control and without their fault or negligence. Such causes include, but are not limited to, fire, floods, explosions, strikes, accidents, foreign or domestic embargos, seizures, acts of God, insurrection, war, the adoption or enactment of any law, ordinance, regulation, ruling or order directly or indirectly interfering with or rendering burdensome the delivery of performance hereunder, or the lack of usual means of transportation.

•Ownership Rights. All of the Vendor’s specifications, information, data, drawings, software and other items supplied to the Customer by the Vendor shall be disclosed to the Customer on a nonproprietary basis and may be used and disclosed by the Customer without restriction, unless the Customer has executed a separate agreement restricting the use and disclosure of such information, data, software and the like. All of the Customer’s specifications, information, data, drawings, software and the other items that are supplied by the Customer to the Vendor or are obtained or developed by the Vendor in the performance of an order or paid for by the Customer shall be proprietary to the Customer and shall be used only for purposes of providing goods or the performance of an order paid for by the Customer. The Vendor agrees that all work to be created as part of a contribution to a collective work, or as part of an audiovisual work, or as a translation, or as a compilation or derivation thereof, shall be considered a “work made for hire” in accordance with the provisions of the United States Copyright Act of 1976 as amended. Even if such work is not within the meaning of the term “work made for hire” as defined by the United States Copyright Act of 1976 as amended, the Vendor additionally agrees to assign to the Customer all copyrights and other intellectual property rights throughout the world in such work, including all derivative works and adaptations and all other works prepared by the Vendor for the Customer.

•Proprietary and Confidential Information. As used herein, “Trade Secrets” are information of special value, not generally known to the public or competitors, which Customer has taken steps to maintain as secret from persons other than those selected by the Customer. “Confidential Information” is information relating to the Customer's business operations that may be acquired by Vendor in the course and scope of its activities for Customer. To the extent allowed by law, irrespective of its effect on trade secret status, the controlled disclosure of Confidential Information to business associates of Customer for legitimate business purposes and the availability of the Confidential Information to others outside Customer through independent investigation and effort will not remove it from protected status as Confidential Information under this Agreement if Vendor was first entrusted with or otherwise learned of the Confidential Information while providing services to Customer under the Vendor Agreement. Trade Secrets, Confidential Information, and Confidential Client Information (as defined below) are collectively referred to in this Agreement as “Proprietary Information.” Proprietary Information may be both a Trade Secret and Confidential Information, but need not be both to be protected hereunder. Information intentionally disclosed or authorized for disclosure to the general public by Customer is not considered Proprietary Information. Customer Proprietary Information is and remains the sole and exclusive property of Customer and shall be held in strict confidence. “Confidential Client Information” means all information about Customer's clients’ business affairs that is provided to Vendor by Customer or about which Vendor learns while providing Vendor Services that is not already known or readily available to the general public. Vendor will not engage in any unauthorized use or disclosure of Confidential Client Information. Vendor either has or will institute policies regarding communications about Customer's client matters such as, but not limited to, restrictions against: a) discussing a client’s affairs with other clients or third parties, b) identifying Customer's clients when discussing projects with a potential or existing client, c) discussing confidential client matters in public places or at social events where conversations may be overheard or d) sharing reports or client deliverables with another client. Vendor agrees that Proprietary Information and Confidential Client Information is strictly confidential and is not to be disclosed to, nor used by any person, firm or corporation for any reason whatsoever (including but not limited to being used as client samples in Vendor’s sales presentations, conferences, trade shows or sales portfolio) that is not specifically authorized herein. Vendor agrees to take all reasonable steps to protect the Proprietary Information and Confidential Client Information from disclosure, either intentionally or unintentionally, to third persons and otherwise protect the confidentiality of such Proprietary Information and Confidential Client Information and the privacy of same. Any Proprietary Information and/or Confidential Client Information provided by Customer or to which Vendor is exposed in providing Vendor Services, regardless of the form or media to which it is transferred, will be kept strictly confidential. Unless otherwise agreed to in writing, Vendor agrees that it will not duplicate or copy any Proprietary Information or Confidential Client Information. Upon written request by Customer, Vendor will return all Proprietary Information and Confidential Client Information to Customer, including but not limited to any remaining materials / disks / artwork / copies. Vendor also agrees that it will not retain any Proprietary Information or Confidential Client Information after Customer has requested its return. Unless otherwise agreed to in writing, overruns and spoilage from Customer projects will be shredded and destroyed upon completion of each project or returned to Customer. The Vendor agrees that, except as otherwise expressly provided herein, there is no obligation on the part of the Customer, either expressed or implied, to maintain the confidentiality of any of the Vendor’s information.

•Infringement. The Vendor warrants that all work, materials, services, equipment, parts and other items provided by the Vendor pursuant to an order, which are not of the Customer’s design, shall be free from claims of infringement (including misappropriation) of third party intellectual property rights and that any use or sale of such items by the Customer or any of the Customer’s customers shall be free from any claims of infringement. The Vendor may replace or modify infringing items with comparable items acceptable to the Customer of substantially the same form, fit and function so as to remove the source of infringement. If the use or sale of any of the above items is enjoined as a result of claims, suits, or actions alleging infringement, the Vendor, at no expense to the Customer, shall obtain for the Customer and its customers the right to use and sell said items.

•Compliance with Law. The Vendor warrants that the materials to be furnished and/or the services to be rendered under an order shall be manufactured, sold, used and rendered in compliance with all relevant federal, state, local law, orders, rules, ordinances, and regulations. Any good shipped to the Customer will be produced in compliance with the Fair Labor Standards Act of 1938 as amended.

•Responsibility and Insurance. The Vendor shall be responsible for the actions and failure to act of all parties retained by, through, or under the Vendor in connection with performance of an order. The Vendor shall maintain and cause its subcontractors to maintain such General Liability, Property Damage, Employer’s Liability, Workers’ Compensation, Professional Errors and Omissions and Motor Vehicle Liability (Personal Injury and Property Damage) Insurance in such amounts as will protect the Vendor (and its subcontractors) and the Customer from said risks. The Vendor shall provide the Customer with certificates evidencing required insurance upon the Customer’s request.

•Indemnification. The Vendor shall defend, indemnify and hold the Customer, its employees, officers, owners, directors, agents and assigns, harmless against all claims relating to, arising out of or in any way connected with the Vendor’s provision of goods or services or compliance with applicable laws and regulations. This indemnity provision is intended to meet the Express Negligence doctrine and extends to all claims and causes of action against Customer including claims for Customer's own negligence. In addition, the Vendor shall reimburse the Customer on demand for any payment made by the Customer with respect to any claim, including, without limitation, actual attorney’s fees, litigation expenses and all other expenses of the Customer.

•Enforcement of Restrictive Covenants. A breach of paragraphs 12 and/or 13 will cause irreparable injury for which adequate monetary remedies are not available to the Customer. Therefore, in addition to any other remedies that may be available, the Vendor agrees that the Customer may obtain a temporary restraining order, preliminary injunction or other equitable relief to prevent or remedy any breach of paragraphs 12 and 13.

•Conciliation. In the event of any dispute regarding this Agreement, prior to instituting a lawsuit and as a condition precedent to the filing of a lawsuit, Vendor agrees to mediate the dispute by use of any mediator on the approved-list of mediators in use by the Dallas County District Courts at that time. The cost of mediation shall be borne equally by the parties. If Vendor initiates Court Proceedings based upon a dispute to which this conciliation paragraph applies without first attempting to resolve the matter through mediation, then at the discretion of the Judge, such action may be abated until mediation has been completed and the Vendor shall not be entitled to recover attorneys' fees, even if fees would otherwise be recoverable by Vendor in any such court proceeding.

•Continuing Obligations. The Vendor agrees that paragraphs 12, 13, 14, 17 and 19 shall remain in full force and effect beyond the termination or expiration of any contract made between the Customer and the Vendor, and shall be binding on the Vendor’s assigns, executors, administrators, and other legal representatives.

•Entirety of Agreement, Applicable Law and Assignability. These terms and conditions, together with the terms of any Vendor Agreement executed by the parties, shall constitute the entire understanding between the Customer and Vendor relating to the goods or services provided by Vendor. The parties agree that these Standard Terms and Conditions and any Vendor Agreement between Customer and Vendor shall be interpreted and construed in accordance with the laws of the State of Florida without reference to any conflict of law provisions. Each party consents to the jurisdiction of the Courts of the State of Texas sitting in Dallas, Collin or Denton Counties and waives the defense of an inconvenient forum. If any provision of these General Terms and Conditions is held to be invalid or unenforceable, these Standard Terms and Conditions shall be ineffective only to the extent of the invalidity, without affecting or impairing the validity or enforceability of the remainder of the provisions or the remaining provisions of any Vendor Agreement between Customer and Vendor. A failure of either party to enforce or strictly observe any provision of these Standard Terms and Conditions on one or more instances will not operate as a waiver of the provision as to the future. The Vendor shall not assign its rights or obligations under these Standard Terms and Conditions or any Vendor Agreement between Customer and Vendor without the written authorization of the Customer.