TERMS AND CONDITIONS OF PURCHASE
The purchase order, together with these terms and conditions, any Statement of Work (as defined, below) and any attachments and exhibits, specifications, drawings, notes, instructions and other information, whether physically attached or incorporated by reference (collectively, the “Purchase Order”), constitutes the entire and exclusive agreement between LD Products, Inc. (“LD Products”) and the supplier (the “Supplier”) identified in the Purchase Order. LD Products' submission of the Purchase Order is conditioned on Supplier’s agreement that any terms different from or in addition to the terms of the Purchase Order, whether communicated orally or contained in any purchase order confirmation, invoice, acknowledgement, release, acceptance or other written correspondence, irrespective of the timing, shall not form a part of the Purchase Order, even if Supplier purports to condition its acceptance of the Purchase Order on LD Products’ agreement to such different or additional terms. Supplier’s electronic acceptance, acknowledgement of this Purchase Order, or commencement of performance constitutes Supplier’s acceptance of these terms and conditions. The Purchase Order does not constitute a firm offer within the meaning of Section 2205 of the California Commercial Code, and may be revoked at any time prior to acceptance. Notwithstanding the foregoing, if a master agreement covering procurement of the Products or Services described in the Purchase Order exists between Supplier and LD Products, the terms of such master agreement shall prevail over any inconsistent terms herein.
2.1 “Deliverables” means the deliverables specified in the Purchase Order (and any
Statement of Work) to be delivered before the delivery date.
2.2 “Delivery Date” means the date or dates specified in the Purchase Order by which the Supplier is required to deliver the Work.
2.3 “Intellectual Property Rights” means any and all tangible and intangible: (i) copyrights and other rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents, designs, algorithms, utility models, and other industrial property rights, and all improvements thereto; (v) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise; and (vi) all registrations, applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in force (including any rights in any of the foregoing).
2.4 “Product” means tangible goods specified in the Purchase Order to be delivered on or before the Delivery Date.
2.5 “Services” means the services that Supplier shall perform for LD Products specified in the Purchase Order (and any Statement of Work).
2.6 “Statement of Work” or “SOW” means the document, if any, specifying, without limitation, the scope, objective, and time frame of the Work that Supplier shall perform for LD Products.
2.7 “Subcontractor” means a third party performing work under an agreement (a “subcontract”) with Supplier.
2.8 “Supplier Personnel” means Supplier’s employees, consultants, agents, independent contractors and Subcontractors.
2.9 “Third Party Intellectual Property” means the Intellectual Property Rights of a third party which Supplier uses or incorporates into the Work.
2.10 “Work” means the Deliverables, Products and Services specified in the Purchase Order, including any SOW.
3.1 Time is of the essence in Supplier’s performance of its obligations under the Purchase Order. Supplier will immediately notify LD Products if Supplier’s timely performance under the Purchase Order is delayed or is likely to be delayed. LD Products’ acceptance of Supplier’s notice will not constitute LD Products’ waiver of any of Supplier’s obligations.
3.2 If Supplier delivers Work after the Delivery Date, LD Products may reject such Work.
3.3 LD Products will hold any Work rejected under this Purchase Order at Supplier’s risk and
expense, including storage charges, while awaiting Supplier’s return shipping instructions. Supplier will bear all return shipping charges, including without limitation, insurance charges LD Products incurs on Supplier’s behalf. LD Products may, in its sole discretion, destroy or sell at a public or private sale any rejected Work for which LD Products does not receive return shipping instructions within a reasonable time, and apply the proceeds, if any, first toward any storage charges.
3.4 Supplier will preserve, pack, package and handle the Deliverables and Products so as to protect the Deliverables and Products from loss or damage and in accordance with best commercial practices in the absence of any specifications LD Products may provide. Without limiting the foregoing, Supplier shall observe the requirements of any local laws and regulations relating to hazardous Work, including, without limitation, with respect to its accompanying information, packing, labeling, reporting, carriage and disposal.
3.5 Supplier will include with each delivery of Products a packing list identifying the Purchase Order number, the LD Products internal ID number for each of the Products (if applicable), a description and the quantity of each of the Products, and the date of shipment.
3.6 Unless LD Products expressly instructs otherwise, Supplier will deliver all Work to the address set forth in the Purchase Order. Seller assumes responsibility for all shipping and delivery charges including, without limitation, customs, duties, costs, taxes and insurance. Risk of loss of the Work passes to LD Products upon acceptance in accordance with Section 6, below.
4. PRICE AND PAYMENT
4.1 Unless otherwise specified in the Purchase Order, the price for the Work includes all taxes and other charges, e.g. shipping and delivery charges, duties, customs, tariffs, imposts and government-imposed surcharges. Supplier will, at LD Products’ request, break-out from the price all such taxes and other charges, in its invoices. Supplier shall use its best efforts to assist LD Products in all legal efforts to minimize the taxes resulting from the performance of this Purchase Order.
4.2 LD Products will pay Supplier the price set forth in the Purchase Order within the time period set forth in the Purchase Order following the later of: (i) the Delivery Date; (ii) the date of LD Products’ acceptance of all of the Work; or (iii) LD Products’ receipt of a properly prepared invoice.
A properly prepared invoice must include the Purchase Order number and, if required in the Purchase Order, Supplier’s certification of conformance of the Work to the requirements. Payment will be in U.S. currency. LD Products may, at any time, set-off any amounts Supplier owes LD Products against any amounts LD Products owes to Supplier or any of its affiliated companies.
5. OWNERSHIP AND LICENSE
5.1 LD Products is the sole and exclusive owner of all Deliverables. Supplier irrevocably assigns and transfers to LD Products all of its worldwide right and title to, and interest in, the Deliverables, including all associated Intellectual Property Rights.
5.2 Notwithstanding Section 5.1, Supplier grants to LD Products a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, transferable, sublicensable license to any Intellectual Property Rights in the Deliverables which arose outside the scope of the Purchase Order or SOW to the extent necessary for LD Products to exercise its rights in Deliverables as reasonably contemplated by the Purchase Order or SOW.
5.3 Supplier grants to LD Products a non-exclusive, worldwide, royalty-free, irrevocable, perpetual, transferable, sublicensable license to any Intellectual Property Rights in Products or Services which are necessary for LD Products to use, import, copy, execute, reproduce, display, perform, and distribute copies of and modify (including creating improvements and derivative works based on) the Products or Services.
6. INSPECTION AND ACCEPTANCE
LD Products may reject any or all of the Work which does not conform to the applicable requirements within ten (10) business days of Supplier’s delivery of the Work. At LD Products’ option, LD Products may (i) return the non-conforming Work to Supplier for a refund or credit or; (ii) require Supplier to replace the non-conforming Work. As an alternative to (i) and (ii), LD Products may accept the non- conforming Work conditioned on Supplier providing a refund or credit in an amount LD Products reasonably determines to represent the diminished value of the non-conforming Work. LD Products’ payment to Supplier for Work prior to LD Products’ timely rejection of such Work as non-conforming will not be deemed as acceptance by LD Products.
7.1 LD Products may, at any time, change the Work by changing (i) the quantity of the Work; (ii) the scope of the Services; (iii) the Delivery Date; (iv) applicable drawings, designs, and specifications; (v) the method of shipment or packing; or (vi) the place of delivery of the Products.
7.2 If a change by LD Products under Section 7.1 causes an increase or decrease in the cost of or the time required for Supplier’s performance, then the price, Delivery Date or both will be equitably adjusted, and the parties will amend the Purchase Order accordingly in writing. Supplier will request an equitable adjustment no later than twenty (20) days from Supplier’s receipt of LD Products’ change notification; provided, however, that LD Products may extend the request period upon Supplier’s request.
8. REPRESENTATIONS AND WARRANTIES
8.1 Supplier represents and warrants that (i) it has the full power to enter into the Purchase Order and to perform its obligations under the Purchase Order; (ii) it has the right and unrestricted ability to assign the Work to LD Products including, without limitation, the right to assign any Work performed by Supplier Personnel and Subcontractors; (iii) the Work, and LD Products’ use of the Work, does not and will not infringe upon any third party’s Intellectual Property Rights, right of publicity or privacy, or any other proprietary rights, whether contractual, statutory or common law; (iv) Supplier will not disclose to LD Products, bring onto LD Products’ premises, or induce LD Products to use any confidential or proprietary information that belongs to anyone other than LD Products or Supplier which is not covered by a non-disclosure agreement between LD Products and Supplier; (v) Supplier’s Work shall conform to LD Products’ specifications, Supplier’s quotation or proposal, and Supplier’s brochures or catalogs, and if none of the foregoing is applicable, then such Work shall be suitable for the intended use; and (vi) no Products contain or include components (a) containing PCB’ (polychlorinated biphenyls) chemical substances, (b) manufactured using a cadmium plating process or contain a chemical substance or mixture that is or becomes subject to a reporting requirement under Section 8(e) of the Toxic Substances Control Act, 15 U.S.C. Section 2607(e), as in effect at time of shipment.
8.2 In the event that the Work consists of refilled or remanufactured printer ink cartridges (“Refilled Cartridges”), Supplier represents and warrants that (i) the Refilled Cartridges were first sold in the United States, and that the Refilled Cartridges are not comingled with cartridges first sold outside the United States; (ii) the Refilled Cartridges were only repaired or restored to a usable condition and not impermissibly reconstructed as defined and explained in Aro Manufacturing Co. v. Convertible Top Replacement Co., 365 U.S. 336 (1961); Jazz Photo Corporation et al, v. International Trade Commission, et al, 264 F.3d 1094 (Fed. Cir. 2001); and Fuji Film Co. Ltd. v. International Trade Commission, et al., 474 F.3d 1281 (Fed. Cir. 2007); (iii) the packaging of the Refilled Cartridges clearly and prominently states that the cartridges are “refilled” or “remanufactured” and does not include any false or misleading claims regarding the location where the cartridges were refilled or the satisfaction of OEM specifications; and (iv) all third-party trademarks, service marks and trade names have been removed from the Refilled Cartridges and packaging.
8.3 LD Products warrants and represents to Supplier that it has the full power to enter into the Purchase Order and to perform its obligations under the Purchase Order.
8.4 TO THE EXTENT ALLOWED BY APPLICABLE LAW, NO OTHER WARRANTIES ARE MADE, EITHER EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
9. ASSIGNMENT AND SUBCONTRACTING
9.1 Supplier may not assign any of its rights or delegate any of its obligations under the Purchase Order without LD Products’ prior written consent, which LD Products will not unreasonably withhold. LD Products may, at its option, void any attempted assignment or delegation undertaken without LD Products’ prior written consent.
9.2 Supplier may not subcontract any of its rights or obligations under the Purchase Order without LD Products’ prior written consent. If LD Products consents to the use of a Subcontractor, Supplier will: (i) guarantee and will remain liable for the performance of all subcontracted obligations; (ii) indemnify LD Products for all damages and costs of any kind, subject to the limitations in Section 12 (Indemnification), incurred by LD Products or any third party and caused by the acts and omissions of Supplier’s Subcontractors; and (iii) make all payments to its Subcontractors. If Supplier fails to timely pay a Subcontractor for work performed, LD Products will have the right, but not the obligation, to pay
the Subcontractor and offset any amount due to Supplier by any amount paid to the Subcontractor. Supplier will defend, indemnify and hold LD Products harmless for all damages and costs of any kind, without limitation, incurred by LD Products and caused by Supplier’s failure to pay a Subcontractor.
9.3 To the extent allowed by applicable law, no person who is not a party to the Purchase Order shall be entitled to enforce or take the benefit of any of its terms whether as a result of applicable legislation, custom or otherwise.
10. TERM AND TERMINATION
10.1 If LD Products and Supplier have entered into a SOW, and if the term of the Purchase Order expires before the expiration or termination of the SOW, then the Purchase Order will remain in effect until such SOW is either terminated or the Work is completed and accepted.
10.2 LD Products may terminate this Purchase Order, any SOW, or both at any time, for no reason or for any reason, upon 15 days written notice to Supplier. Upon receipt of such termination notice, Supplier will promptly inform LD Products of the extent to which it has completed performance under the Purchase Order as of the date of the notice, and Supplier will collect and deliver to LD Products whatever Work then exists. LD Products will pay Supplier for all Work performed and accepted through the effective date of the termination, provided that LD Products will not be obligated to pay any more than the payment that would have become due had Supplier completed and LD Products had accepted the Work. LD Products will have no further payment obligation in connection with any termination.
10.3 Either party may terminate the Purchase Order, any SOW or both, immediately by delivering written notice to the other party upon the occurrence of any of the following events: (i) a receiver is appointed for either party or its property; (ii) either makes a general assignment for the benefit of its creditors; (iii) either party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor's relief law, if such proceedings are not dismissed within 60 days; or (iv) either party is liquidating, dissolving, or ceasing to do business in the ordinary course.
10.4 LD Products may immediately terminate the Purchase Order upon written notice to Supplier if there is a change in ownership representing 20 percent or more of the equity ownership of Supplier.
10.5 Either party may terminate this Purchase Order, any SOW or both, immediately by delivering written notice to the other party for any material breach not cured within 30 days of receipt of notice of the breach. LD Products shall have no further payment obligation to Supplier under any terminated SOW if LD Products terminates the SOW under this Section 10.5.
10.6 Sections 5, 8, 11-13 and 16-17 and any obligations or duties which, by their nature extend beyond the expiration or termination of the Purchase Order, shall survive the expiration or termination of the Purchase Order.
11. CONFIDENTIAL INFORMATION AND PUBLICITY
11.1 If LD Products and Supplier have entered into a Non-Disclosure Agreement (“NDA”) which covers disclosure of confidential information under the Purchase Order, and if the term of the NDA expires before the expiration or termination of the Purchase Order, then the term of the NDA shall be automatically extended to match the term of the Purchase Order.
11.2 The parties shall treat the terms, conditions, and existence of the Purchase Order as Confidential Information as defined in the NDA, if any.
11.3 Supplier shall obtain LD Products’ written consent prior to any publication, presentation, public announcement, or press release concerning its relationship as a supplier to LD Products.
12.1 As used in this Section, a “Claim” is any claim, demand, loss, damage, liability, cost or expense (including professional fees and costs as incurred) for which one party (the “Indemnifying Party”) may be obligated to defend, indemnify and hold the other party (the “Indemnified Party”) harmless.
12.2 Supplier shall defend, indemnify and hold LD Products harmless from and against any and all Claims as incurred, arising out of or in connection with any (i) act or omission of Supplier (including its Subcontractors) in the performance of the Work; (ii) breach of this Agreement, including, without limitation, breach of warranties in paragraph 8; (iii) infringement of a third party’s Intellectual Property Rights or any other rights; or (iv) violation of any federal, state or local law, rule, regulation, order, judgment or decree.
12.3 LD Products shall indemnify and hold Supplier harmless from and against any and all Claims as incurred, arising out of or in connection with: (i) Supplier’s use of LD Products’ products or services in connection with the Work, or (ii) Supplier’s use of information or materials provided to Supplier by LD Products.
12.4 The Indemnified Party will provide the Indemnifying Party with prompt written notice of the Claim for which the Indemnified Party intends to claim such indemnification, and Indemnifying Party shall have the right to participate in, and, to the extent the Indemnifying Party so desires, to assume sole control of the defense thereof with counsel selected by the Indemnifying Party; provided, however, and notwithstanding the foregoing, that the Indemnified party hall have the absolute right to retain its own counsel, with the fees and expenses to be paid by the Indemnifying Party. The Indemnifying Party will have no authority to settle any Claim on the Indemnified Party’s behalf.
12.5 If a third party enjoins or interferes with LD Products’ use of any Work, then in addition to Supplier’s obligations under Section 12.2, Supplier will use its best efforts to (i) obtain any licenses necessary to permit LD Products to continue to use the Work; (ii) replace or modify the Work as necessary to permit LD Products to continue to use of the Work; or if (i) and (ii) are not commercially reasonable, then (iii) promptly refund to LD Products the amount paid for any Work for which a third party enjoins or interferes with LD Products’ use of the Work.
12.6 Nothing in this Section shall limit any other remedy of the parties.
13.1 NOTWITHSTANDING ANYTHING ELSE IN THE PURCHASE ORDER OR OTHERWISE, LD PRODUCTS WILL NOT BE LIABLE TO SUPPLIER WITH RESPECT TO THE SUBJECT MATTER OF THE PURCHASE ORDER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS IN THE AMOUNT LD PRODUCTS PAID TO SUPPLIER IN THE SIX MONTHS PRECEDING THE EVENT OR CIRCUMSTANCE GIVING RISE TO SUCH LIABILITY.
13.2 IN NO EVENT WILL LD PRODUCTS BE LIABLE TO SUPPLIER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS ARISING OUT OF, OR IN CONNECTION WITH, THE PURCHASE ORDER, WHETHER OR NOT LD PRODUCTS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
13.3 THE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. NOTHING IN THE PURCHASE ORDER LIMITS EITHER PARTY'S LIABILITY FOR BODILY INJURY OF A PERSON, DEATH, OR PHYSICAL DAMAGE TO PROPERTY OR ANY LIABILITY WHICH CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
Supplier will secure and maintain insurance providing coverage for liabilities to third parties for bodily injury (personal injury) and damage to property in amounts sufficient to protect LD Products in the event of such injury or damage, and will be in compliance with any and all laws, regulations or orders addressing the liabilities of an employer to its employees for injuries and disease suffered in connection with employment. Supplier further will maintain such additional types and limits of insurance as is customary for a company of similar size and similar operations to Supplier in the jurisdiction or jurisdictions in which Supplier’s operations take place.
15. COMPLIANCE WITH LAWS
Supplier represents and warrants that it will comply with all applicable local and national laws and regulations pertaining to its performance of its obligations under this Purchase Order. In particular and without limitation, Supplier shall not act in any fashion or take any action that will render LD Products liable for a violation of the U.S. Foreign Corrupt Practices Act (“FCPA”), which prohibits the offering, giving or promising to offer or give, directly or indirectly, money or anything of value to any official of a government, political party or instrumentality to assist it or LD Products in obtaining or retaining business or in carrying out the Services. Supplier’s failure to comply with the FCPA shall constitute a material breach of this Purchase Order.
16. GOVERNING LAW
The Purchase Order will be construed in accordance with, and all disputes will be governed by, the laws of the State of California, without regard to its conflict of laws rules. The parties specifically waive application of the UN Convention on Contracts for the International Sale of Goods. Supplier irrevocably consents to the personal jurisdiction of the state and federal courts in and for Los Angeles County, California, and irrevocably waives any claim it may have that any proceedings brought in such courts have been brought in an inconvenient forum.
17.1 Any notice to be given under the Purchase Order will be in writing and addressed to the party at the address stated in the Purchase Order. Notices will be deemed given and effective (i) if personally delivered, upon delivery; (ii) if sent by an overnight service with tracking capabilities, upon receipt; (iii) if sent by fax or electronic mail, at such time as the party which sent the notice receives confirmation of receipt by the applicable method of transmittal; or (iv) if sent by certified or registered mail, within five days of deposit in the mail.
17.2 If there is a conflict between or among the Purchase Order and any documents attached to and incorporated by reference, the conflict will be resolved as follows:
(a) A conflict between the terms of the Purchase Order and those set forth in an exhibit or hyperlink will be resolved in favor of the Purchase Order.
(b) A conflict between the terms of the Purchase Order and those set forth in an SOW will be resolved in favor of the SOW.
(c) A conflict between the terms of an exhibit or hyperlink and those set forth in an SOW will be resolved in favor of the SOW.
17.3 If any court of competent jurisdiction holds that any provision of the Purchase Order is illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of the Purchase Order will not be affected or impaired, and all remaining terms of this Purchase Order remain in full force and effect, provided that this provision shall not be applied to defeat the intent of the parties.
17.4 A party’s election not to insist on strict performance of any requirement of the Purchase Order will not operate or be construed to waive any future omission or breach, or any other provision of the Purchase Order.