Purchase Order Terms and Conditions
1. Acceptance: This Order constitutes the offer of Penguin Random House LLC (PRH) and shall become a binding contract upon the terms and conditions set forth herein upon the earlier of acceptance of this Order by Seller or delivery of the goods or services hereunder. This offer may be accepted only upon its terms. The terms of any separate written contract between PRH and Seller shall govern in case of any inconsistency with this Order. Additional or different terms and conditions contained in any offer or acceptance by Seller, oral and written, shall not be binding upon PRH unless expressly agreed to in writing by an authorized representative of PRH. The Order is revocable until notice of acceptance by Seller is received by PRH.
2. Specifications: Seller shall comply with any specifications stated on the face of this Order or submitted by PRH herewith. Any and all specifications, blue prints, prints, copy or other data or information submitted herewith shall remain PRH property, may be subject to recall at any time, and shall not be disclosed or utilized in any way by Seller except in the performance of this Order or subsequent Orders placed by PRH.
3. Inspection and Rejection: Inspection shall be on PRHs premises unless otherwise agreed in writing. The signature of PRH's receiving clerk is for count of original packages only and not for acceptance of contents. Where applicable, net delivered weight, count and actual tare shall govern shipment. Notwithstanding prior inspection, payment or use, PRH shall have the right, within a reasonable time after delivery or actual discovery of a defect, whichever is later, to reject any article that is defective in materials or workmanship or that does not conform to the specifications or other requirements of this Order. At PRH's option, rejected materials shall be destroyed or returned to Seller, freight collect, and Seller will be debited for the inbound freight plus handling. Rejected materials shall be deemed to be the property of Seller.
4. Representations, Warranties and Indemnities: Seller represents and warrants that all items and parts thereof delivered under this Order are free from defects; conform to applicable specifications; are suitable for the intended purposes; do not violate any third-party rights, including intellectual property rights; have been tested and comply in all respects, including labeling, with federal, state and applicable foreign safety and customs standards, laws and regulations including without limitation the Consumer Product Safety Act, the Consumer Product Safety Improvement Act of 2008, the Federal Hazardous Substances Act, the Flammable Fabrics Act, the Labeling of Hazardous Art Materials Act, California Proposition 65, ASTM F-963 and ASTM D4236 (as currently in effect and if applicable) and such other standards as shall be specified by PRH; are not hazardous substances, banned hazardous substances or misbranded hazardous substances within the meaning of the Federal Hazardous Substances Act and the regulations issued thereunder; and do not contain a defect which could create a substantial hazard and do not present an unreasonable risk of injury or death within the meaning of Section 15(b) of the Consumer Product Safety Act. Seller further represents and warrants that it complies with all applicable labor (including child labor) laws, minimum wage, and wage and hour laws; it employs only workers who are the legal minimum working age or at least 14 years of age, whichever is greater; does not use any prison, indentured, bonded or forced labor; and complies with all applicable environmental laws and legislation, including without limitation the Lacey Act. Seller shall indemnify, defend, and hold harmless PRH, PRHs employees, affiliates, successors, assigns, customers and users of PRH products, against all claims, demands, liabilities, losses, damages, or suits of any nature, and all costs and expenses thereof, including settlement amounts and reasonable attorneys' fees, arising out of, or based upon any alleged facts which if established would constitute any breach of any representation or warranty of Seller in this Order. All of Seller's representations, warranties and indemnities in this Order shall survive any inspection, delivery or acceptance of the materials or services covered by this Order or payment therefor by PRH.
5. Prices and Taxes: Except as may be otherwise provided in this Order, all prices listed include all applicable federal, state and local taxes. No change in the prices listed in this Order may be made by Seller without the express written consent of PRH. Invoices must be rendered for each shipment under this Order on date of shipment and must contain the purchase order number on the front of the invoice. If not received promptly, invoices may be returned for re-dating. The Seller warrants that the prices of the items covered by this Order are not in excess of Seller's lowest prices in effect on the date of this Order for comparable quantities of similar items. PRH is not responsible for any late charges on past due invoices. Unless otherwise specified, payment shall be in U.S. dollars.
6. Delivery: (a) Delivery shall be made F.O.B. the ship-to address shown on the face of this Order unless otherwise specified thereon. If the Order specifies FOB shipping point: (i) all shipments moving in one day to the same location via the same carrier should be consolidated on one bill of lading; (ii) unless otherwise specifically instructed, shipments via limited liability carriers (Air Freight, Federal Express, UPS, etc.) and those subject to released value ratings shall be declared at the value which will secure the lowest transportation charge; and (iii) any losses resulting from deviation from PRH's routing instructions will be charged to Seller's account. Risk of loss shall not pass to PRH until goods have been accepted by PRHs authorized representative. In the event of rejection of the goods by PRH, Seller shall bear all expense necessary to return goods to Seller. (b) Deliveries are to be made both in the quantities and at the times specified either on the front side of this Order or in schedules furnished by PRH. Overruns or underruns by printers and lithographers not exceeding 5% of the quantity ordered will be considered satisfaction of this order, prices to be adjusted on a pro rata basis to the prices for the quantities ordered. Time of delivery shall be of the essence. PRH may from time to time change delivery schedules or direct temporary suspension of scheduled shipments. PRH, at its option, reserves the right to either approve a revised delivery schedule or to terminate the Order in the event of default by Seller or if shipments are not made within the specified time. PRH reserves the right to hold Seller accountable for any costs or damages incurred by PRH as a result of late delivery. (c) All items delivered shall be suitably boxed so as to be protected against hazards of shipment, storage and exposure. Different types of merchandise and items from different purchase orders shall be separately packed and all packages shall be labeled to show this Purchase Order number, quantity, date and description of each item. Itemized packing slips; complete with this Purchase Order number, must accompany each delivery. All invoicing must contain this Purchase order number. No extra charge shall be made for shipment, delivery, packaging or packing materials unless specifically set forth on the front part of this Order.
7. Changes: PRH may at any time by written Order make changes in any of the following: (i) drawings, designs or specifications where the items to be furnished are to be specifically manufactured; (ii) method of shipment or packing and (iii) place of delivery. If any such change causes an increase or decrease in the cost of, or the time required for the performance of any part of the work under this Order, an equitable adjustment shall be made in the contract price or delivery schedule or both, and the Order shall be modified in writing accordingly. Any claim by Seller for such equitable adjustment under this clause must be asserted within twenty (20) days from the date of receipt by Seller of PRHs notification of change hereunder. PRH may cancel any portion of this Order not yet shipped (except products made specially to PRHs specifications for which manufacture has been commenced) in the event PRH is unable to use such products due to any cause.
8. PRH Furnished Materials: All materials furnished or specifically paid for by PRH shall be the property of PRH, shall be subject to removal from the Seller's possession at any time without additional cost upon demand by PRH, shall be used only in filling Orders from PRH, shall be kept separate from other materials or tools and shall be clearly identified as the property of PRH. Seller represents and warrants that (i) it will take all steps necessary to ensure that any digital files provided by PRH are securely maintained, that access is strictly limited to personnel who require access to fill Orders from PRH, that no copies are made except as needed to fill Orders from PRH and that such files and copies will be returned to PRH upon request, and (ii) any data or other information concerning PRH's business or users of its websites, mobile sites, applications or other consumer facing services that are made accessible by PRH to Seller hereunder shall be securely maintained by Seller, not disclosed or transferred to any other party and used only to fill Orders from PRH. In the event Seller discovers a breach (or potential breach) of security of such data or information, it shall notify PRH within twenty-four (24) hours of discovery thereof. In addition, Seller assumes all liability for loss or damage to PRH furnished materials, with the exception of normal wear or tear, and agrees to supply detailed statements of inventory upon request of PRH. Sketches, copy, dummies, art work, film, type, lithographs, plates, engravings, electrotypes, negatives, positives and digital files whether or not separately billed shall remain PRH's exclusive property, and no use of such material or any ideas obtained therefrom will be made by Seller unless agreed to in writing by PRH.
9. Photographs, Artwork; Design, Text: Unless otherwise indicated on the face of this Order, photographs, transparencies, films, design, artwork and text delivered by Seller pursuant to this Order are work made for hire, which shall be owned by PRH. If for any reason such work does not constitute work made for hire, Seller hereby transfers and assigns to PRH all rights therein, including without limitation the copyright in such work.
10. Information Disclosed: Unless otherwise expressly provided in this Order or otherwise expressly agreed to in writing by PRH, no information or knowledge, heretofore or hereafter disclosed to PRH, in the performance of or in connection with this Order, shall be deemed to be confidential or proprietary, and any such information or knowledge shall be free from any restrictions as part of the consideration for this Order.
11. Assignment and Set Off: Any attempted assignment of this Order or any interest therein or any payment due or to become due thereunder, without the express written consent of PRH shall be null and void. Seller shall not subcontract this Order without PRH's express written consent. PRH shall have the right to reduce and set-off against any amount payable hereunder any indebtedness or other claim which PRH may have against Seller, however, and whenever arising.
12. Excusable Delays: Absent Seller's fault or negligence, Seller shall not be charged with any liability for failure or delay in making deliveries due to any cause beyond Seller's control provided that Seller notifies PRH in writing within five days after the cause of such failure becomes known, or with reasonable care should have become known, to Seller. In the event of such failure or delay, PRH shall have the right at its option, without any liability to Seller, to cancel by notice in writing to Seller the affected portion or portions of this Order. Similarly, PRH shall be excused for any failure or delay in its performance herein due to any cause beyond its control and without its fault or negligence.
13. Labor Disputes: Wherever an actual or potential labor dispute is delaying or threatening to delay the performance of this Order, Seller shall immediately give notice thereof to PRH.
14. Cumulative Remedies and Applicable Law: The rights and remedies herein reserved to PRH shall be cumulative and additional to any other or further rights and remedies provided in law and equity. This Order shall be deemed to be a contract under, and shall be governed and interpreted in accordance with, the laws of the state shown in the PRH address on the face of this Order. The state or federal courts in the state shown in the PRH address on the face of this Order shall have exclusive jurisdiction and shall be the exclusive venue to decide any dispute arising out of or related to this Order.
15. Non-Waiver of Rights: The failure of PRH to insist upon strict performance of any of the terms and conditions of this Order, or to exercise any rights or remedies, shall not be construed as a notification or waiver of any such terms or conditions or rights or remedies. No waiver shall be effective unless stated in writing signed by PRH.
16. Publicity, Promotion or Advertising: Seller shall not, without PRHs prior written consent, disclose any terms of this Order nor issue any news release, advertisement, publicity or promotional material regarding this Order (including denial or confirmation thereof).
17. Invoices; Cash Discount: Notwithstanding any contrary payment terms in any invoice from Seller, PRH shall pay all undisputed invoices in accordance with the payment terms on the face of this Order. Discount periods shall be calculated either from the date of acceptable invoice or from date of receipt and acceptance of the goods or performance of services, whichever is later. Errors, omissions or delays in receiving invoices shall be considered just cause for withholding payment without loss of cash discount privilege.
18. Default: Upon the happening of any one or more of the following events, PRH shall forthwith have the unrestricted right to cancel and terminate this Order without cost or liability to PRH: (a) Seller's insolvency or inability to meet obligations as they become due; (b) filing of voluntary or involuntary petition of bankruptcy by or against Seller; (c) institution of legal proceedings against Seller by creditors or stockholders; (d) appointment of a receiver for Seller by any court of competent jurisdiction; and (e) the making by Seller of any misrepresentation hereunder or Seller's breach any of its obligations hereunder, in each case where such misrepresentations or breach is not or cannot be cured within fifteen (15) days of PRH's written notice to Seller thereof. The acceptance of goods or performance by Seller after the occurrence of any of the events above enumerated shall not constitute a waiver of any of PRH's rights hereunder or impair the right of PRH to cancel any remaining undelivered or unperformed portion of this Order.
19. Equal Employment Opportunity: Where applicable, pursuant to respectively Executive Order No. 11246, the Vietnam Era Veterans Readjustment Assistance Act of 1974, and the Rehabilitation Act of 1973, and except where exempt therein, the Seller agrees to perform fully its obligations: (i) not to discriminate against and to take affirmative action to assure equal employment opportunity for all qualified persons without regard to race, color, religion, sex, sexual orientation, gender identity or national origin; (ii) not to discriminate against and to take affirmative action to employ and advance in employment qualified protected veterans and qualified individuals with disabilities; and (iii) to take appropriate measures to assure that minority business enterprises are considered fairly as subcontractors and suppliers under this Order. The clauses set forth at 41 C.F.R. Sections 60-1.4, 60-250.4, 60-300.5, and 60-741.5, to the degree applicable, are incorporated herein by reference as if they were set out in full. Where used therein the terms "contractor" shall mean Seller (which includes Seller's suppliers or subcontractors) and "contract" shall mean Purchase Order or Subcontract.
20. Service or Installation of Work: If this Order covers services, labor acceptable to PRH must be used on this job. Seller and Seller's employees shall not be deemed employees of PRH for any purpose whatsoever. Unless otherwise agreed in writing, work performed hereunder shall be owned by PRH and/or deemed work made for hire. Seller further warrants that if, in the course of the performance of this Order, its agents, employees or subcontractors enter upon premises occupied or under control of PRH or its customers or suppliers, Seller shall take all precautions necessary to prevent the occurrence of any injury to any person or damage to any property arising out of any acts of omission of its employees or subcontractors. The Seller shall have in effect such insurance as will protect PRH from any such risks and from any claims under any applicable worker's compensation, occupational safety and labor or employment laws. Coverage will provide: (a) PRH and its affiliates and subsidiaries shall be named as additional insureds as well as the Seller; (b) protection for Seller from and against any and all claims for damage to property and injuries to persons (including sickness, disease, or loss of life), either in Seller's employ or otherwise no matter how caused; (c) compliance with the requirements (including worker's compensation statutes, disability benefit laws and any other similar employee benefits acts) of any applicable federal, state or municipal authority having jurisdiction; and (d) coverage for such other contractual liabilities as are expressly assumed by Seller under this Order. Seller shall furnish PRH with a Certificate of Insurance, which shall be subject to approval of PRH, evidencing the insurance and limits as may be determined by PRH to be necessary to comply with the obligations of Seller under this Order. Each and every policy or contract shall require the insurance company to provide at least twenty (20) days written notice to PRH of its intention to cancel or not renew. Seller shall furnish a new Certificate in the event of cancellation or expiration of any policy or contract during the progress of the work, and does hereby agree that in the event, and to the extent the coverage is reasonably insufficient, PRH will make such purchase and so charge Seller.