Terms and Conditions
GENERAL. The vendor/seller (“H & W Wire Corporation”) identified on the attached purchase order confirmation (the “PO”) shall provide the purchaser identified on the PO (“Purchaser”) all products and/or services set forth in the PO in accordance with the terms and conditions set forth herein (collectively, such products and/or services, the “Deliverables”).
PURCHASE ORDER. If the parties have executed an agreement that is intended to govern the purchase of the Deliverables described on this PO, then such agreement shall control the purchase of such Deliverables described on this PO, and these terms and conditions shall not apply. Otherwise, the PO, these terms and conditions, and any written instructions or schedules supplied by Purchaser herewith or issued by Purchaser pursuant hereto (collectively, this “Agreement”), constitute the complete and final agreement between Purchaser and H & W Wire Corporation with respect to the Deliverables, and no agreement not mutually agreed to or other understanding in any way purporting to modify or rescind this Agreement shall be binding upon Purchaser unless otherwise agreed to by Purchaser in writing. This Agreement shall be deemed to be accepted by H & W Wire Corporation as of the earliest date on which H & W Wire Corporation does any of the following: (a) signs the PO; or (b) either, (i) in writing, orally, or by conduct agrees to provide the Deliverables; (ii) consents to the Agreement by means of an electronic signature, which may include responding affirmatively to an email indicating H & W Wire Corporation’s acceptance of the Agreement; or (iii) commences providing any part of the Deliverables, at which point and on which date a legally binding contract between the parties as to the Agreement comes into existence. Acceptance of this Agreement constitutes acceptance of all specifications, terms, and conditions herein. Any addition to or modification of any terms or conditions of this Agreement by H & W Wire Corporation is to be construed as a proposal for additions to this Agreement.
DELIVERY. Delivery shall be made at such place or places as Purchaser may specify, in accordance with the shipping instructions established by Purchaser in the PO or in subsequent notices to H & W Wire Corporation. H & W Wire Corporation shall keep Purchaser fully informed of progress under the PO and shall promptly notify Purchaser whenever there is doubt that delivery will be affected on schedule. H & W Wire Corporation shall follow Purchaser’s instructions as to manner of shipment, carriers, routing, prepayment of freight, and other matters. If the Deliverables are delivered in advance of the delivery schedule, Purchaser may, at its option, place the Deliverables in storage at H & W Wire Corporation’s expense and for H & W Wire Corporation’s account until the time provided for delivery.
TIMELINESS. Time is of the essence in this Agreement and with respect to the fulfillment of the PO. H & W Wire Corporation shall provide the Deliverables in accordance with the time frames set forth in the PO or otherwise communicated by Purchaser to H & W Wire Corporation from time to time. Purchaser shall be obligated to pay net thirty (30) days from the time of shipment.
OWNERSHIP. H & W Wire Corporation agrees: (i) that any services rendered, equipment and personnel supplied, and rights granted pursuant to this Agreement shall not confer in H & W Wire Corporation any rights of ownership in the subject matter of this Agreement, the Deliverables, or any part thereof, which shall remain exclusively in Purchaser; and (ii) any material produced by or on behalf of Purchaser pursuant to this Agreement shall be considered a “work made for hire” as contemplated by the United States Copyright Act and to the extent said material is not recognized as a “work made for hire,” H & W Wire Corporation hereby assigns all rights of copyright and copyright renewal in said material or any part thereof to Purchaser.
WARRANTIES. H & W Wire Corporation represents and warrants that (i) the Deliverables will conform to the specifications, instructions, drawings, requirements, standards, samples, or other descriptions set forth in this Agreement (including the PO) or otherwise furnished or specified by Purchaser (collectively, the “Specifications”), and will be fit and sufficient for the purposes intended, and are merchantable, of good material and workmanship, and free from defect; and (ii) all Deliverables provided hereunder shall meet the highest standards of the relevant industry (including without limitation information security standards), and shall not infringe upon, misappropriate, or violate in any respect, when used by Purchaser in any manner or media, the intellectual property, confidentiality, or other rights of any person, firm or entity. The warranties recited in this Agreement shall be in addition to those implied by or available at law and shall exist notwithstanding the acceptance and inspection by Purchaser of all or a part of the Deliverables with respect to which such warranties and remedies are applicable.
ACCEPTANCE. After the Deliverables have been provided to Purchaser, Purchaser may at any time evaluate the Deliverables to determine whether such Deliverables satisfy the Specifications. If Purchaser determines at any time in its sole discretion that the Deliverables do not satisfy the Specifications, Purchaser may, at its option, require that H & W Wire Corporation (i) promptly re-perform or replace the Deliverables such that they satisfy all Specifications; or (ii) terminate this Agreement and/or any portion of the PO, in which case H & W Wire Corporation shall refund within 30-days
INVOICES, PAYMENT TERMS. The fees payable for the Deliverables are as set forth in the PO, and are inclusive of all costs and expenses necessary to provide the Deliverables (except as expressly set forth herein), and no extra charges of any kind, including charges for boxing, packing, loading, or freight, will be allowed unless specifically agreed to by Purchaser in writing. No partial invoicing shall be permitted unless expressly set forth in the PO. Purchaser has thirty (30) days from Purchaser’s receipt of a complete and accurate invoice at time of shipment of Deliverables to pay for the Goods described therein, unless expressly provided otherwise in the PO. Purchaser will pay a 5% interest charge per thirty (30) days of late payment.
CHANGES. Purchaser may at any time and from time to time, by notice to H & W Wire Corporation, make changes in (i) the Specifications applicable to the Deliverables; and (ii) the method of shipment and packing, the place of delivery/performance, and/or the delivery/performance schedules for the Deliverables. If any such changes increase or decrease the cost or time required to perform under this Agreement, Purchaser may make, in its sole discretion, an equitable adjustment in the purchase price or the delivery schedule, or both.
TERMINATION. The term of this Agreement shall commence on the date set forth in the PO (or, if earlier, the date on which this Agreement is accepted as described in Section 2 and shall continue until H & W Wire Corporation has completed providing all Deliverables to Purchaser’s satisfaction. Purchaser may terminate this Agreement, in whole or in part, at any time without cause and without incurring any liability. Purchaser’s sole and exclusive obligation to H & W Wire Corporation upon such termination shall be the payment of unpaid charges due and payable for Deliverables properly performed or provided in accordance with the terms hereof as of the effective date of termination.
PURCHASER MATERIALS. Any technical, financial, or other information of Purchaser, and any other information, property, trade secrets, materials, designs, or alloys of Purchaser and/or any affiliate, subsidiary, or parent of Purchaser (each, a “Purchaser Affiliate”), and any employee or contactor of Purchaser or any Purchaser Affiliate that is received by H & W Wire Corporation in the course of providing Deliverables hereunder is referred to herein as “Purchaser Materials”. H & W Wire Corporation shall hold in confidence and not disclose the Purchaser Materials, and H & W Wire Corporation shall not use the Purchaser Materials for any purpose except solely as needed to provide the Deliverables. H & W Wire Corporation shall not access or attempt to access any Purchaser Materials that are not provided by Purchaser for the purposes of providing the Deliverables hereunder. H & W Wire Corporation shall return (or, to the extent expressly instructed by Purchaser, destroy) all Purchaser Materials at the earlier to occur of Purchaser’s request or the termination or expiration of this Agreement. All Purchaser Materials are the Confidential Information of Purchaser and shall remain the sole and exclusive property of Purchaser. H & W Wire Corporation shall be responsible for any and all risk of loss and damage to Purchaser Materials that are provided to H & W Wire Corporation in connection with this Agreement. The obligations set forth in this Section 13 hereunder shall survive for a period of five (5) years following the last date on which H & W Wire Corporation provides any Deliverables hereunder.
INFRINGEMENT. H & W Wire Corporation warrants that the Deliverables and Purchaser’s purchase, use or sale of thereof , in the form furnished to Purchaser, or as changed or combined in accordance with H & W Wire Corporation’s specifications or recommendations, will not violate, misappropriate and/or infringe any valid patent, copyright, trademark, trade secret or other proprietary rights, and H & W Wire Corporation agrees to defend any claim, action, or suit that may be brought against Purchaser for infringement of patent, copyright, trademark, trade secret or other proprietary right by reason of Purchaser’s purchase, use, or sale of such Deliverables. H & W Wire Corporation also agrees to indemnify and hold Purchaser harmless from and against all judgments, decrees, damages, costs, and expenses recovered against Purchaser or sustained by Purchaser on account of such actual or alleged infringement.
REMEDIES; WAIVER. The remedies herein reserved shall be cumulative, and additional to any other or further remedies provided at law or equity. No failure to enforce or insist upon strict compliance with any provision of this PO shall be deemed to constitute a waiver of rights to demand strict compliance with the terms hereof. No waiver of any term or condition of this Agreement shall be deemed or construed to be a waiver of such term or condition in the future, or of any subsequent breach of said term or any other terms of this Agreement. In the event of a breach by Purchaser, H & W Wire Corporation waives equitable relief and its remedies shall be limited solely to an action for damages at law. H & W Wire Corporation acknowledges that (a) the Deliverables are of a unique nature, (b) Purchaser cannot be adequately compensated at law for any breach by H & W Wire Corporation, and (c) Purchaser shall be entitled to, among other remedies, injunctive relief in the event of H & W Wire Corporation’s breach.
INDEMNIFICATION. H & W Wire Corporation indemnifies and holds Purchaser, and Purchaser Affiliates, its and their licensees, successors and assigns, and each of their officers, directors, agents and employees (referred to collectively hereinafter as “Indemnified Parties”) harmless from and against any damages, liabilities, claims, demands, costs, and expenses, including without limitation, court costs and reasonable attorneys’ fees and expenses, of whatsoever type or nature or howsoever incurred (referred to collectively hereinafter as “Damages”), arising out of or incurred in connection with H & W Wire Corporation’s performance under this PO, or the breach by H & W Wire Corporation of any representation, warranty, or covenant made by H & W Wire Corporation under this Agreement, or out of or in connection with the purchase, use, rental or resale by Purchaser of any Deliverables furnished under this PO.
INSURANCE. Upon the request of Purchaser, H & W Wire Corporation shall furnish Purchaser with evidence that H & W Wire Corporation has adequate general liability and property damage insurance in amounts and with companies acceptable to Purchaser, and evidence that H & W Wire Corporation has made adequate provisions for satisfying workmen’s and unemployment compensation claims. H & W Wire Corporation shall submit to Purchaser certificates evidencing such coverage and naming Purchaser as an additional insured upon Purchaser’s request. All such policies shall provide that the coverage thereunder shall not be terminated without at least ten (10) days’ prior written notice to Purchaser. H & W Wire Corporation’s failure to provide said certificate(s) of insurance upon Purchaser’s request shall, at Purchaser’s option, release Purchaser from any obligations under this PO.
UNDER NO CIRCUMSTANCES SHALL PURCHASER OR PURCHASER AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, PUNITIVE, INCIDENTAL OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, ALL (DIRECT OR INDIRECT) LOST PROFITS OR LOST BUSINESS OPPORTUNITIES,
HOWEVER ARISING, WHETHER FROM THIS AGREEMENT, IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE, WHETHER OR NOT PURCHASER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, UNDER NO
CIRCUMSTANCES SHALL PURCHASER’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, EXCEED THE AGGREGATE AMOUNT PAYABLE BY PURCHASER TO H & W WIRE
CORPORATION FOR THE DELIVERABLES.
17. NAME USAGE. H & W Wire Corporation shall not use or reference Purchaser’s or any Purchaser Affiliate’s name, logo, marks, or materials for
any advertising, marketing, sales, or promotional purposes (including press releases or the inclusion of Purchaser’s or any Purchaser
Affiliate’s name on any customer list of H & W Wire Corporation) or any other purpose without the express written consent of Purchaser.
18. LIENS. All Deliverables shall be free of all liens or other encumbrances and if Purchaser requests, a formal release of any liens or other
encumbrances filed will be delivered to Purchaser.
19. COMPLIANCE WITH LAW AND INDUSTRY BEST PRACTICES. H & W Wire Corporation shall comply with all applicable federal, state and local
laws, rules, regulations, and orders. H & W Wire Corporation shall adhere to industry best practices and applicable industry compliance
(including security) standards.
20. NOTICES. Any notice or communication required to be given by either party under this Agreement shall be in writing and shall be hand
delivered, sent by certified or registered mail, return receipt requested, or sent by a nationally recognized overnight courier to the addresses
indicated below. Such notices shall be deemed given on the date delivered if hand delivered or on the date it is officially recorded as
delivered by return receipt or recordation by the overnight courier service. Either party may change its address for notice purposes upon
issuance of notice thereof in accordance with this Section 24. All notices to H & W Wire Corporation shall be provided at the address set forth
in the PO. All notices to Purchaser shall be provided at the address set forth in the PO with a copy to: Turner Broadcasting System, Inc., Legal
Department, 1050 Techwood Drive, NC10514A, Atlanta, Georgia 30318, Attention: General Counsel.
21. GOVERNING LAW; JURISDICTION AND VENUE. This Agreement and all matters arising out of or relating to this Agreement shall be governed
by the laws of New York, USA, without regard to its conflict of law provisions. The exclusive jurisdiction for any dispute, controversy or claim
arising out of or relating to this Agreement shall be the state and federal courts located in New York, New York; provided that either Party
may seek injunctive or other equitable relief in any court of competent jurisdiction to enforce or protect its intellectual property rights or
22. EXCUSABLE DELAYS. Neither Purchaser nor H & W Wire Corporation shall be liable for any delay in performing or a failure to perform under
this PO arising from strikes, labor unrest, fires, acts of God, war, acts of government or any federal, state, local, public, or administrative
authority, or any other causes, contingencies, or occurrences beyond the control and without the fault or negligence of Purchaser or H & W
Wire Corporation. In the event of a failure by H & W Wire Corporation to perform under this PO arising from any of the causes or events set
forth in this Section, Purchaser shall be entitled to terminate this PO as to all undelivered Deliverables or unperformed services or any part
thereof or to obtain Deliverables covered by this PO elsewhere for the duration of such failure and to reduce, pro rata, and without any
obligation to H & W Wire Corporation, the quantity or amount of Deliverables ordered from H & W Wire Corporation under this PO.
23. HEADINGS. The headings at the beginning of each of the Sections hereof are for reference only and shall not affect the meaning or
construction of this Agreement.
24. SURVIVAL. The definitions contained herein and Sections 2, 5-9, 11-17, and 19-29 of this Agreement shall survive the termination or
expiration of this Agreement for any reason.
25. INDEPENDENT CONTRACTORS. H & W Wire Corporation acknowledges and agrees that H & W Wire Corporation and its employees, agents,
and contractors, are independent contractors, rather than agents or employees of Purchaser. Nothing herein shall be deemed to create an
employment, joint venture, agency, or partnership relationship between the parties hereto, and neither party is authorized nor shall act
toward any third party, individual entity, or the public in any manner that would indicate any such relationship to the other.