Additional Terms and Conditions
NO PERSON AUTHORIZED TO BIND BUYER BY ORDER EXCEPT UNDER CONDITIONS OF THIS ORDER FORM
These Additional Terms and Conditions will apply to Enesco, LLC and/or any subsidiary or affiliate buying under this Agreement, including without limitation Enesco Limited, Enesco Canada Corporation, Enesco France S.A.S., Enesco Asia Limited, Enesco China Limited and the D56, Gregg Gift, and Our Name is Mud divisions of Enesco, LLC. Such entities (along with any future subsidiaries, affiliates and divisions of Enesco, LLC) are collectively referred to as "Buyer" and the manufacturer or other seller hereunder is referred to as "Seller."
- The order referencing these Additional Terms and Conditions (referred to as "the order" or "this order") is Buyer's offer to Seller and does not constitute an acceptance by Buyer of any offer to sell. Any reference to such offer to sell or proposal is solely for the purpose of incorporating the description and specifications of the goods and services contained therein (the "Goods") to the extent that such description and specifications do not conflict with the description and specifications on the face of this order. This order consists only of the terms contained herein and on the face of this order, in any letters of credit, or bank draft and any supplements, specifications or other documents expressly incorporated herein by reference.
- By acknowledging receipt of this order, or by shipping the goods or performing the services called for by this order, Seller agrees to the terms and conditions of sale contained in this order. Any additional terms or conditions contained in any acknowledgement of this order by Seller shall be deemed objected to by Buyer without need of further notice of objection and shall be of no effect nor in any circumstance binding upon Buyerunless specifically accepted by Buyer in a signed writing. Acceptance or rejection by Buyer of any such additional terms or conditions shall not constitute an acceptance of any other additional terms or conditions.
- Buyer shall have the right to inspect the goods upon arrival without regard to manner of shipment or prior terms contained in this Agreement. All goods furnished shall be properly packaged in a manner acceptable to Buyer, free of defects and strictly comply with specifications. Defective, damaged and nonconforming goods may be returned to Seller at Seller's expense for credit or refund at Buyer's option.
- The Goods shall become the property of the Buyer when the Goods are delivered to the Buyer or its authorized agent, unless the product is earlier paid for by Buyer and segregated for Buyer by Seller.
- The Seller will make the Goods available to the Buyer in accordance with the terms of this order, pay all packing, boxing, handling, transport and loading charges in connection with the foregoing, and meet all other charges arising in connection with the Goods up to the time of delivery. Until actually delivered to the Buyer, the Goods shall remain at the Seller's risk.
- Time is of the essence of this order and all delivery dates must be strictly complied with by the Seller. In the event of the Seller's failure to deliver the Goods at such time as is required by the Buyer, the Seller shall be liable for damages or loss suffered by the Buyer arising directly and naturally in the ordinary course of events from that breach, including lost profits and consequential damages, and Seller shall, at Buyer's request, pay for expedited delivery such as air freight.
If this order provides expressly or impliedly for delivery by installments, each installment will be deemed to be the subject matter of a separate order. If the Goods are to be delivered by installments, and there is a failure by the Seller to deliver a particular installment by the due date, the Buyer may refuse to accept any further installments from the Seller, without prejudice to the right of the Buyer to procure the outstanding installments from an alternative source of supply and hold the Seller responsible for any increase in price and other incidental expenses.
- All shipping memoranda and packaging shall bear the item number. Cartons, inner packs, etc., shall be plainly marked and accompanied by a packing slip specifying the goods, the Buyer's item number, specifications, and weight or quantity in each package or container. If cartons and inner packs, etc. are not properly marked, Buyer may charge Seller for performing this task. Seller shall also include with shipped products any product testing or safety documentation required by law or otherwise specified by Buyer from time to time.
- In filling this order, the Seller hereby guarantees that no article delivered pursuant to this order is a misbranded or banned hazardous substance within the meaning of the U.S. Federal Hazardous Substances Labeling Act and/or any similar foreign, regional or local law (a "Hazardous Substance Act"). The Seller certifies and guarantees that in performance of this order all applicable U.S. and foreign Federal, State and local laws, regulations, ordinances and orders have been complied with.
- In the event any article purchased hereunder shall become a banned hazardous substance, under a Hazardous Substances Act, or be the subject of a recall as deemed advisable by Buyer under a Hazardous Substances Act, the U.S. Consumer Product Safety Improvement Act of 2008, Health Canada related laws and regulations, the UK Consumer Protection Act of 1987 or any similar or related act or law in the U.S. or elsewhere, Seller agrees that it will take back all existing stocks in Buyer's and/or Buyer's dealers' possession and/or dealers' customers' possession or consumer's possession, and will promptly reimburse Buyer for such returned articles at the price originally paid by Buyer to Seller (plus Buyer's shipping and customs/import costs, to the extent not recoupable by Buyer), plus costs for return shipment to Seller, including any and all reasonable costs incurred by Buyer in returning such articles from its dealers,its dealers' customers and/or consumers. The determination as to when a recall shall be instituted as well as the extent and administration of such recall shall be in Buyer's sole discretion, provided that Buyer shall comply with all relevant laws. In the event Buyer acquires information which requires notification under Sec. 15 of the Consumer Safety Act or any similar foreign or local law, Buyer will promptly notify the Consumer Product Safety Commission (and/or applicable foreign agency, if any) and Seller, without incurring any liability to Seller as a result of such notification.
- Any typographical, clerical or other error or omission in any offer, order or other document or information issued by Buyer shall be subject to correction without any liability on the part of the Buyer.
- The specifications, drawings, designs, manufacturing data and any other material(s) or information transmitted to Seller by Buyer in connection with the performance of this purchase order are proprietary and of a confidential nature and constitute trade secrets and confidential information, the disclosure of which would cause irreparable harm for which Buyer lacks a remedy at law and for which Buyer is entitled to equitable relief without the necessity of posting a bond. Seller covenants and agrees that it will not disseminate, reveal or otherwise make available to others, or use for its own purpose, any information or material concerning Buyer learned by Seller in the course of fulfilling this PO.
- Seller warrants that (i) the product will be merchantable, free of all defects of material and workmanship and conform to the description, drawings, specifications (including required testing for lead and other substances, such testing, and the publishing, posting and inclusion in product shipments of General Conformity Certificates (GCC's") related thereto, to be completed at Seller's sole expense), samples furnished or specified by Buyer, (ii) Seller will convey good title to the product, (iii) the product(s) do not and will not violate any third parties' rights and (iv) the product being delivered is free of any security interest or any other lien or encumbrance. Inspection, test, acceptance or use of the goods furnished hereunder shall not affect Seller's obligation under this warranty and such warranties shall survive inspection, test, acceptance and use. Seller shall replace or correct defects of any goods or services not conforming to the foregoing warranty promptly, without expense to Buyer, upon notification of such nonconformity by Buyer. In the event Seller fails to correct defects in or to replace nonconforming goods or services promptly, Buyer after notice to Seller, may make such corrections or replace such goods and services and charge Seller for the cost incurred by the Buyer, and deduct or off-set for such amounts, including all amounts prepaid (if any), costs of inspection, storage, and other expenses, loss of profit and consequential losses.
- Buyer may delay delivery and/or acceptance occasioned by causes beyond its control.
- The Seller shall comply with the then current rules and regulations, if any, of the relevant Buyer under this Agreement as provided or published by such Buyer from time to time (the "Enesco Guidelines"), and all laws, regulations, requirements and rulings of the U.S. Federal Government and of the States, and any similar foreign or provincial laws including, without limitation, with respect to sanitary requirements, tickets, labels or other identifications marks, and all other requirements. To the extent that there is a conflict between the Enesco Guidelines and any applicable laws or regulations, such laws and regulations shall take precedence and govern.
- All designs, tools, molds, samples, patterns, drawings and other information or equipment supplied by Buyer to Seller or purchased by Buyer from Seller relating to, or for the manufacture of, the materials contracted for shall be and remain the sole property of Buyer, and are removable by Buyer at any time. Seller agrees that it will preserve, maintain and keep the said items in good condition, properly identified with Seller's name stamped or engraved on such items, and segregated and will replace said items when necessary at no charge to Buyer. Seller expressly agrees it will not use any of said items in the production, manufacture or design of any articles or materials for any other individual or company without first obtaining Buyer's written permission. Upon termination of this contract, said items shall be returned to Buyer unless Buyer otherwise directs in writing. Said items shall be fully insured by Seller against any and all losses and Seller shall be responsible to Buyer for any such loss.
- Seller shall indemnify and at its own expense defend and hold harmless Buyer and its officers, owners, employees, agents and customers from (i) any claim of infringement of any patent, copyright, trademark, trade secret or other intellectual property right, including rights of publicity, privacy, unfair competition and idea misappropriation by reason of the manufacture, use or sale of any goods furnished hereunder and (ii) any claim, loss or liability of any type based on Seller's breach of any warranty, covenant or other term of this Agreement or any act or omission by any officer or employee of Seller; and Seller will pay any judgment which may be recovered against Buyer or its customers and any suit based upon such claim provided that timely notice of such claim is given Seller. Seller shall indemnify, defend and hold Buyer harmless from and against any and all actions, claims, suits, liability, cost and expenses arising or resulting from or in connection with any infringement, use or misuse, of any and all patented or unpatented inventions or processes, trademarks, copyrights, trade secrets, rights of publicity or privacy and matters which may be considered as or be unfair competition or idea misappropriation.
- The Seller shall not assign or delegate to another the performance required by acceptance of this order without written approval signed by Buyer.
- This Purchase Order shall be governed by and construed in accordance with the laws of the jurisdiction in which the applicable Buyer resides, and the parties agree and consent that jurisdiction and venue of all matters relating hereto shall be vested exclusively in the federal, state or other local courts within the jurisdiction of such Buyer. The United Nations Convention on Contracts for International Sales of Goods is explicitly excluded.
- Seller represents that it is an Equal Opportunity Employer and does not discriminate against any employee or applicant for employment because of race, religion, age, nationality, social or ethnic origin, sexual orientation, gender, political opinion or disability, disabled veteran or other prohibited status. All applicable provisions of U.S. and foreign law, rules and regulations are incorporated herein by reference. Seller represents and warrants that it adheres to all foreign, federal, state, local, municipal and other applicable laws, rules, codes, policies and regulations regarding wage and hour laws, minimum employee age, compensation and proper and safe working conditions, and that it does not employ or use any forced or coerced labor or labor under the age of 15 (or 14 where allowed by local law).
- In the event that any Goods furnished by the Seller hereunder are or contain copyrightable subject matter, Seller hereby agrees that the Goods shall be a work made for hire and the property of Buyer. In the event that any such Goods are not copyrightable subject matter, or for any reason cannot legally be a work made for hire, then and in such event Seller hereby assigns all right, title and interest to said Goods to Buyer, and agrees to execute such documents as may be necessary to evidence such assignment(s). Any terms of ownership or use other then as provided in this paragraph must be specifically stated in writing and signed by Buyer; otherwise, any limitations on ownership or use shall be deemed void. Unless Buyer's prior written approval is obtained, seller may not include in the Goods any work of authorship in which copyright is not owned by Seller. In the event Seller incorporates any work of authorship not owned by it in supplying the Goods, Seller shall acquire for Buyer any and all rights necessary to perfect a perpetual, royalty-free, transferable license to use, modify, license, sublicense or otherwise transfer or use such work of authorship. Unless otherwise provided in a signed writing, the rights of Buyer include, but are not limited to: (a) the right to use the Goods in any manner as Buyer shall determine; (b) the right to alter or rearrange such Goods; and (c) the right to sell or otherwise exploit such Goods. Buyer's rights shall be exclusive throughout the world and Seller shall not use, license or permit the use of the Goods for any other purpose. Unless otherwise noted in writing, the provisions of this Paragraph apply equally to any software (including computer programming, source and object code, and HTML formatting).
- Seller shall obtain and maintain, at its own expense, comprehensive general liability insurance, including product liability and contractual liability coverage with limits acceptable to Buyer in its discretion.
- This PO may be canceled by Buyer at any time prior to its acceptance of the Goods, upon written notice to Seller. In such event, Buyer will pay Seller, in lieu of the price specified on the front of this PO, the direct noncancellable costs theretofore incurred by Seller and any direct noncancellable costs committed in the performance of its obligations hereunder prior to such cancellation; provided, however, that the total amount of such costs shall not exceed the price specified on the face of this PO. Buyer will not be responsible for any cancellation fees or penalties to Seller, nor will any amounts be due Seller if the P.O. is cancelled due to any breach or late delivery by Seller caused primarily by the fault of Seller. Seller will, in the event of any cancellation or other similar event under this PO, destroy any Goods at Seller's cost (unless otherwise agreed to in writing by Buyer), and Seller acknowledges that it will not sell or deliver any Goods hereunder to any party other than a Buyer or its designee.
- No failure by either party to exercise any power given it under this Agreement, or to insist upon strict compliance by the other party of any obligation hereunder, and no custom or practice of the parties at variance with this Agreement shall constitute a waiver of a party's right to demand exact compliance with this Agreement's terms.
- All claims for money due or to become due from Buyer shall be subject to deduction or setoff by Buyer by reasons of any claim, counterclaim or debt arising out of this or any other transaction with Seller.
- It is understood that Seller's status under this Agreement is that of an independent contractor and that Seller is not an agent, employee or partner of, or joint venturer with Buyer and does not have any power to bind Buyer in any way with respect to third parties. Seller further warrants that all persons engaged by Seller in performing its obligations shall not be deemed employees of Buyer. Seller shall make whatever payments may be due such persons and comply with all governmental laws, rules and regulations.
- This Agreement supersedes any prior written or oral agreements, commitments and obligations between the parties, and any such prior agreement is hereby canceled and of no further force and effect; provided that if the parties have an effective Manufacturing Agreement, this Agreement will be read in conjunction with that agreement, with this Agreement governing in the case of any conflict. Buyer reserves the right, in its sole discretion, to amend the terms hereof from time to time, and the most recent version hereof at the time of shipment by the Seller will be deemed the Agreement for purposes of that order.
- Any claim or controversy between the parties arising out of this Agreement shall be resolved by arbitration, at an arbitration venue and subject to the rules prevailing at the location of the Buyer. The arbitrator's award shall be final and binding and may be entered in any court having jurisdiction thereof. Each party shall bear its own costs and attorneys' fees.
- If any one or more provisions of this Agreement shall be adjudged or declared illegal or unenforceable, the same shall not in any way affect or impair the validity or enforceability of all or any other provision of this Agreement.
- The remedies available to the Buyer under this Agreement shall be without prejudice to any other rights either at common law or under statute, which it may have against the Seller.