Purchase Order Terms and Conditions
1. Acceptance: This Order constitutes the offer of Penguin Random House LLC (RH) and shall become a binding contract upon the terms and conditions set forth herein when accepted by Seller. This offer may be accepted only upon its terms. Additional or different terms and conditions contained in any offer or acceptance by Seller, oral and written, shall not be binding upon RH unless expressly agreed to in writing by RH. The Order is revocable until notice of acceptance by Seller is received by RH.
2. Specifications: Seller shall comply with any specifications stated on the face of this Order or submitted herewith. Any and all specifications, blue prints, prints, copy or other data submitted herewith shall remain RH property and may be subject to recall at any time. Such information shall not be disclosed or utilized in any way except in the performance of this Order or subsequent Orders placed by RH.
3. Inspection and Rejection: Inspection shall be on RHs premises unless otherwise agreed in writing. Notwithstanding prior inspection, payment for, or use of the goods, RH shall have the right to reject any article which is defective in material and workmanship; or otherwise not in conformity with the specifications or other requirements of this Order, within a reasonable time after delivery or actual discovery of a defect in materials or workmanship, whichever occurs later. Materials rejected as not conforming to this Order shall be returned to the Seller, freight collect, and the Seller will be debited for the inbound transportation cost plus handling expense. Such rejected material shall be deemed to be the property of Seller.
4. Warranties and Indemnities: Seller warrants that all items and parts thereof delivered under this Order will be free from defects in design, material and workmanship; will conform to applicable specifications and/or drawings; and suitable for the intended purposes; and will not violate or infringe upon any patent, patent right, trademark, copyright or other proprietary or personal right, except insofar as such violation arises from materials supplied by RH to Seller. Seller further warrants that its products are not hazardous as that term is defined in the Consumer Product Safety Act and the Federal Hazardous Substance Act and that it has complied with all testing procedures required for its products, if any. 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 RH 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 RH from any such risks and from any claims under any applicable Workmans Compensation or Occupational Health or Safety Acts. Seller shall indemnify, defend, and hold harmless RH, RHs employees, and customers and users of RH Products, against all claims, demands, liabilities, losses, damages, or suits of any nature, and all costs and expenses thereof, including reasonable attorneys fees, arising out of, or based upon any alleged facts which if established would constitute any breach of warranty of Seller. This warranty and indemnity shall survive any inspection, delivery or acceptance of the materials or services covered by this Order or payment therefor by RH.
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 RH. 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 Sellers lowest prices in effect on the date of this Order for comparable quantities of similar items. RH is not responsible for any late charges on past due invoices.
6. Delivery: (a) Delivery shall be made F.O.B. RHs place of business at the address shown on the face of this Order unless otherwise specified thereon. If the Order specifies FOB shipping point, then for shipments made F.O.B. shipping point: (a) all shipments moving in one day to the same location via the same carrier should be consolidated on one bill of lading. Multiple packages in the same Railway Express shipment should be tied into 10-lb bundles. (b) Unless otherwise specifically instructed, shipments via limited liability carriers (REA Exp.., Air Exp., Air Freight, UPS, etc.) and those subject to released value ratings shall be declared at the value which will secure the lowest transportation charge. (c) Any losses resulting from deviation from Randoms routing instructions will be charged to Sellers account. Risk of loss shall not pass to RH until goods have been accepted by RHs authorized representative. In the event of rejection of the goods by RH, 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 RH. Overruns or underruns by printers and lithographers not exceeding 10% 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. RH may from time to time change delivery schedules or direct temporary suspension of scheduled shipments. RH, 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. RH reserves the right to hold Seller accountable for any additional costs or damages incurred by RH 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 shall be separately packed and packages shall be labeled to show the number of this Order, quantity, date and description of item. Itemized packing slips showing the number of this Order must accompany each delivery. No extra charge shall be made for packaging or packing materials unless specifically set forth on the front part of this Order.
7. Changes: RH 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 anypart 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 RHs notification of change hereunder. RH may cancel any portion of this Order not yet shipped (except products made specially to RHs specifications for which manufacture has been commenced) in the event RH is unable to use such products due to any cause.
8. RH Furnished Materials: All materials furnished or specifically paid for by Random shall be the property of RH, shall be subject to removal at any time without additional cost upon demand by RH, shall be used only in filling Orders from RH, shall be kept separate from other materials or tools and shall be clearly identified as the property of RH. Seller assumes all liability for loss or damage, with the exception of normal wear or tear, and agrees to supply detailed statements of inventory upon request of RH.
(a) Sketches, copy, dummies, art work, type, lithographs, plates engravings, electrotypes, negatives and positives whether or not separately billed shall remain RHs exclusive property, and no use of such material or any ideas obtained therefrom will be made unless agreed to in writing by RH.
9. Photographs, Artwork: Photographs, transparencies, films and artwork delivered by Seller pursuant to this Order are deemed licensed for reproduction and use in works published or sold by RH or any subsidiary of RH as well as for reproduction and use in sales materials for promotion of these works.
10. Information Disclosed: Unless otherwise expressly provided in this Order or otherwise expressly agreed to in writing by RH, no information or knowledge, heretofore or hereafter disclosed to RH, 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: Assignment of this Order or any interest therein or any payment due or to become due thereunder, without the written consent of RH shall be void. RH shall have the right to reduce and set-off against any amount payable hereunder any indebtedness or other claim which RH may have against Seller, however, and whenever arising.
12. Excusable Delays: Absent Sellers fault or negligence, Seller shall not be charged with any liability for failure or delay in making deliveries due to any cause beyond the Sellers control provided that Seller notifies RH 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, RH shall have the right at its option, without any liability to Seller, to cancel by notice in writing to Seller the portion or portions of this Order affected. Similarly, RH shall be excused for failure or delay in 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 RH.
14. Cumulative Remedies and Applicable Law:The rights and remedies herein reserved to RH 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 RH address on the face of this Order.
15. Non-Waiver of Rights: The failure of RH 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. No waiver shall be effective unless stated in writing signed by RH.
16. Publicity, Promotion or Advertising: Seller shall not, without RHs 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. Cash Discount: 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, RH shall forthwith have the unrestricted right to cancel and terminate the within contract without cost or liability to RH:
(a) Sellers 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;
(e) Seller makes any misrepresentation hereunder or breaches any of its obligations hereunder and such misrepresentations or breach is not or cannot be cured within fifteen (15) days of such notice. The acceptance of goods or performance after the occurrence of any of the events above enumerated shall not affect the right of RH to cancel its additional obligations.
19. Equal Employment Opportunity: Where applicable, pursuant to respectively (i) Executive Order No. 111246, (ii) the Vietnam Era Veterans Readjustment Assistance Act of 1974k, (iii) the Rehabilitation Act of 1973, and (iv) Executive Order No. 11825, and except where exempt therein, the Seller agrees to perform fully its obligations (i) to take affirmative action to assure equal employment opportunity for all qualified persons without regard to race, color, religion, sex or national origin, (ii) to take affirmative action to employ and advance in employment qualified disabled veterans and veterans of the Vietnam era, (iii) to take affirmative action to employ and advance in employment qualified handicapped individuals, (iv) disabled veterans and veterans of the Vietnam era, (v) to take affirmative action to employ, and advance in employment qualified handicapped individuals, (vi) to take appropriate measures to assure that minority business enterprises are considered fairly as subcontractors and supplier under this Agreement. The clauses set forth at 41 C.F.R. Sections 60-14, 60-250, 4, 60-741 and 1-1, 1310-2, 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 Sellers, 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 RH must be used on this job. If under this Order Seller is required to furnish insurance (such requirement being mandatory in all Orders for labor or services), Seller shall purchase and maintain at Sellers expense and to such limits, from those companies which are acceptable to RH, such coverage as will protect Seller from claims which may arise or result from Sellers operations under this Order. Coverage will provide:
(a) RH 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 Sellers employ or otherwise no matter how caused.
(c) Compliance with the requirements (including Workmens Compensation statutes, disability benefit laws and any other similar employee benefits acts) of any applicable federal, state or municipal authority having jurisdiction.
(d) For such other contractual liabilities as are expressly assumed by the Seller under this Order. Seller shall furnish RH with a Certificate of Insurance which shall be subject to approval of RH, evidencing the Insurance and limits as may be determined necessary to comply with the operations 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 RH 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, RH will make such purchase and so charge Seller.