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PURCHASE ORDER GENERAL TERMS AND CONDITIONS
1.1 The purchase order, together with these terms and conditions, and any attachments and exhibits, specifications, drawings, notes, instructions and other information physically attached or incorporated by reference to the purchase order (collectively, the “Purchase Order”), constitutes the entire and exclusive agreement between Eighth Day Sound Systems, Inc. (“Eighth Day”) and the supplier (the “Supplier”) identified in the Purchase Order. No other document, including the Supplier’s proposal, quotation, or acknowledgement form, will be part of the Purchase Order, unless specifically agreed to in writing by Eighth Day.
1.2 Terms contained in the Supplier's response to, or acknowledgement or acceptance of, the Purchase Order, if any, that are additional to, or different from, the terms set forth herein (which terms would constitute a counter-offer by Supplier) are specifically rejected by Eighth Day. Eighth Day’s offer to purchase as provided in the Purchase Order may not be modified by Supplier counter-offers. Despite the foregoing, if the Purchase Order is deemed an acceptance by Eighth Day of a Supplier offer or counter-offer, then such acceptance is expressly made conditional on Supplier's assent to all of the terms of the Purchase Order, including those that are additional to, or different from, the terms of Supplier's offer or counter-offer.
1.3 Supplier’s written acceptance of the Purchase Order, or its commencement of performance of obligations under the Purchase Order, whichever occurs first, constitutes Supplier’s acceptance of the Purchase Order, including these terms and conditions.
1.4 These terms and conditions are subject to change without notice. The applicable terms and conditions are those in effect on this web page at the time the Supplier accepts the Purchase Order. Therefore, Supplier should read these terms and conditions at the time it accepts any future purchase order from Supplier.
2.1 “Intellectual Property Rights” means any and all tangible and intangible: (a) 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; (b) trademark, trade dress, and trade name rights and similar rights; (c) trade secret rights; (d) patents, designs, algorithms, utility models, and other industrial property rights, and all improvements thereto; (e) 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 (f) all registrations, applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in force (including any rights in any of the foregoing).
2.2 “Preexisting Materials” means any Intellectual Property Rights or tangible personal property of Supplier or Eighth Day created before the date of this Purchase Order or outside the scope of this Purchase Order.
2.3 “Products” means tangible goods that the Purchase Order requires Supplier to supply.
2.4 “Services” means the services that the Purchase Order requires Supplier to perform.
2.5 “Subcontractor” means a third party performing Work under an agreement with Supplier.
2.6 “Supplier Personnel” means Supplier’s employees, consultants, agents, independent contractors, and Subcontractors.
2.7 “Third Party Intellectual Property” means the Intellectual Property Rights of a third party that Supplier uses or incorporates into the Work.
2.8 “Work” means Products, Services, and any tangible manifestation or work of authorship resulting from Services.
3.1 If a delivery date is specified in the Purchase Order, time is of the essence and delivery must be completed within the time specified. Supplier will immediately notify Eighth Day if Supplier’s timely performance under the Purchase Order is delayed or likely to be delayed.
3.2 If Supplier fails to deliver all of the Work by the specified delivery date, Eighth Day may reject such Work. Eighth Day may then purchase substitute items or services elsewhere and require Supplier to pay Eighth Day the difference between the cost to do so and the Purchase Order price, together with any resulting losses and incidental or consequential damages.
3.3 Supplier is responsible for any extra costs or damages incurred by Supplier to meet the specified delivery date.
3.4 Unless Eighth Day expressly instructs otherwise, Supplier will deliver all Work to Eighth Day’s facility at the address set forth in the Purchase Order.
3.5 Title and risk of loss for the Work does not pass to Eighth Day until properly delivered to Eighth Day and accepted under Section 5 of these terms and conditions.
Price and Payment.
4.1 Supplier will sell the Work to Eighth Day for the price specified by the Purchase Order. In no event will Eighth Day be required to pay more to Supplier than that price. If the Purchase Order does not specify a price: (a) the price for the Work provided will be the price last quoted by Supplier for the Work, or the lowest prevailing market price for the Work or for similar Work, whichever is lower; and (b) Supplier must notify Eighth Day of the price and obtain Eighth Day’s acceptance of it prior to fulfilling the Purchase Order.
4.2 Supplier warrants that the quoted price, if any, is the lowest price at which the Work or similar work is sold by Supplier to other customers. If Supplier reduces its price for such work during the term of this Purchase Order, Supplier will reduce the price under this Purchase Order accordingly.
4.3 Eighth Day will pay the price in accordance with the payment terms set forth in the Purchase Order or, if the Purchase Order does not specify terms, previously agreed upon or stated terms. Unless the Purchase Order specifies otherwise, payment terms count from the later of: (a) date of delivery; (b) date of Eighth Day’s acceptance; or (c) Eighth Day’s receipt of a properly prepared invoice.
4.4 Supplier is responsible for all applicable federal, state, and local taxes and duties.
Inspection and Acceptance. Eighth Day may reject any or all of the Work which does not conform to the applicable requirements within 10 business days of Supplier’s delivery of the Work. At Eighth Day’s option, Eighth Day may: (a) return the nonconforming Work to Supplier, at Supplier’s expense, for a full refund or credit; (b) require Supplier to replace the non-conforming Work; (c) require Supplier to repair the non-conforming Work so that it meets the requirements; or (d) purchase substitute items or services elsewhere and require Supplier to pay Eighth Day the difference between the cost to do so and the Purchase Order price, together with any resulting losses and incidental or consequential damages. As an alternative to (a) through (d), Eighth Day may accept the non-conforming Work conditioned on Supplier providing a refund or credit in an amount Eighth Day reasonably determines to represent the diminished value of the non-conforming Work. Eighth Day’s payment to Supplier for Work prior to Eighth Day’s timely rejection of such Work as non-conforming will not be deemed as acceptance by Eighth Day.
Ownership and License.
6.1 Except as provided in Section 6.2 of these terms and conditions, upon acceptance, Eighth Day becomes the sole and exclusive owner of all Work and Supplier irrevocably assigns and transfers to Eighth Day all of its worldwide right and title to, and interest in, the Work, including (without limitation) all Intellectual Property Rights and all Intellectual Property Rights fixed in any tangible component of the Work or incorporated into the Work.
6.2 Each party owns all right, title, and interest in and to any of its Preexisting Materials. Supplier grants Eighth Day a perpetual, irrevocable, worldwide, unrestricted, transferable, royalty-free, nonexclusive license, with the right to sublicense and authorize the granting of sublicenses, to use and reproduce Supplier’s Preexisting Materials in the Work to the extent necessary for Eighth Day’s exercise and exploitation of its rights in the Work or to achieve the purposes for which it contracted with Supplier.
6.3 Supplier will obtain and grant to Eighth Day a nonexclusive, royalty-free, worldwide, perpetual, irrevocable, transferable, sub-licensable license to use all Third Party Intellectual Property Rights incorporated into, required to use, or delivered with the Work.
Representations and Warranties. Supplier represents and warrants that:
7.1 It has the full power to enter into this Purchase Order and to perform its obligations under it.
7.2 It has the right and unrestricted ability to assign the Work to Eighth Day, including, without limitation, the right to assign any Work performed by Supplier Personnel and Subcontractors.
7.3 The Work will: (a) conform to Eighth Day’s specifications and Supplier’s quotation or proposal; (b) be free from defects in materials or workmanship; (c) be merchantable; and (d) if Supplier knows or has reason to know the particular purpose for which Eighth Day intends to use the Work, be fit for that particular purpose.
7.4 The Work, Eighth Day’s use of the Work, and the use of the Work by an Eighth Day client or other third party to whom the Work is provided, 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, or whether recognized under U.S. or foreign law.
Limitation of Liability. In no event will Eighth Day or its clients be liable to Supplier for any lost revenues, lost profits, incidental, indirect, consequential, special, or punitive damages. In no event will Eighth Day be liable to Supplier for any acts or omissions by a third-party, including, without limitation, any acts or omissions by Eighth Day’s clients in connection with the Work. In no event will Eighth Day’s or its clients’ liability to Supplier on any claim, of any kind, arising out of or in connection with the Purchase Order or the Work exceed the price allocable to the Work that gives rise to or is related to the claim.
Statute of Limitations. Supplier must commence any action arising under or related to this Purchase Order within one year after the cause of action has accrued.
Non-Assignment. Supplier will not assign any of its rights or delegate any of its obligations under the Purchase Order, and has no power to so assign or delegate, without the written consent of Eighth Day. Any attempted assignment or delegation in violation of this Section is void and ineffective.
Indemnification. Supplier will defend, indemnify and hold Eighth Day, its affiliates, clients, and each other third party to whom the Work is provided, and each of their shareholders, members, directors, officers, employees and agents, harmless against all claims, demands, actions, causes of action, suits, judgments, settlements, costs, fees, penalties, damages, attorneys’ fees and all other liabilities and obligations whatsoever (collectively, the “Losses”) allegedly or actually resulting from or arising out of: (a) any defect in the Work provided under the Purchase Order, (b) any act or omission by Supplier or its employees, agents, or Subcontractors in connection with performing the Purchase Order, either on Buyer’s property or in the course of their employment or engagement with Supplier, (c) any breach of warranty under the Purchase Order, (d) any breach of the Purchase Order by Supplier; or (f) any infringement of a third-party’s Intellectual Property Rights or any other rights. This indemnification obligation shall continue indefinitely notwithstanding any delivery, inspection, tests, acceptance, payment, or termination.
12.1 For Convenience. Eighth Day may terminate this Purchase Order at any time, for no reason or for any reason, upon 10 days written notice to Supplier. Upon receipt of notice of such termination, Supplier will inform Eighth Day of the extent to which it has completed performance as of the date of the notice, and Supplier will collect and deliver to Eighth Day whatever Work then exists. Eighth Day will pay Supplier for all Work performed and accepted through the effective date of the termination, provided that Eighth Day will not be obligated to pay any more than the payment that would have become due had Supplier completed and Eighth Day accepted the Work. Eighth Day will have no further payment obligation in connection with any termination.
12.2 For Cause. Eighth Day may terminate the Purchase Order, without any liability to Supplier, if: (a) Supplier does not make deliveries as specified; (b) Supplier breaches any of the terms of the Purchase Order; or (c) Supplier fails to provide to Eighth Day, upon request, with reasonable assurance of future performance.
12.3 Survival. Any rights or obligations that, either expressly or by their nature, extend beyond the expiration or termination of the Purchase Order shall survive the expiration or termination of the Purchase Order.
Confidentiality. Supplier will not advertise, publish, or otherwise disclose to others, either directly or indirectly, that it has provided Work for Eighth Day or for Eighth Day’s clients, nor will Supplier disclose any information relating to the Purchase Order to others. All information furnished by Eighth Day to Supplier, especially information concerning Eighth Day’s clients, is confidential and must be treated as such. Supplier will not disclose any such information to any other person, or use such information itself or for any purpose, other than performing its obligations under the Purchase Order. This Section applies to drawings, specifications, documents, or works of authorship prepared by Supplier for Eighth Day in connection with this Purchase Order. No commercial, financial, or technical information disclosed in any manner or at any time by Supplier to Eighth Day will be deemed secret or confidential, and Supplier shall have no claims against Eighth Day with respect thereto. If Supplier desires to disclose confidential information to Eighth Day, such disclosure must be made under a separate written confidentiality agreement. This Section survives any expiration or termination of the Purchase Order.
Insurance. Supplier shall obtain and maintain all applicable and appropriate insurance, including, without limitation, business, workers’ compensation, auto, errors and omissions, professional, and commercial general liability, in an amount that 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. Upon Eighth Day’s request, Supplier will provide certificates of insurance evidencing such insurance signed by an authorized representative of the insurance company and will name Eighth Day as an additional insured.
Claims Adjustment. Eighth Day may, at any time and without notice, deduct or set-off Supplier’s claims for money due or to become due from Eighth Day against any claims that Eighth Day has or may have against Supplier.
Compliance with Laws. Supplier represents and warrants that it will comply with all applicable local, national, and foreign laws and regulations pertaining to its performance of its obligations under this Purchase Order.
Governing Law. The Purchase Order shall be governed by and construed in accordance with the laws of the State of Ohio.
Arbitration. Any controversy or claim arising out of or relating to the Purchase Order, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association (the “AAA”) in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. The place of arbitration shall be Cleveland, Ohio. Supplier and Eighth Day shall work together to select an arbitrator from a list provided by the AAA that is mutually satisfactory to them. If Supplier and Eighth Day cannot agree on an arbitrator, each shall choose an arbitrator from a list provided by the AAA. The two arbitrators so selected shall then select a third arbitrator from the AAA’s list. That third arbitrator shall then alone preside over and decide the matter. The judgment of the arbitrator shall be binding and final on all parties.
Amendments. This Purchase Order shall not be superseded or modified except in writing, signed by all parties, and stating their intent to supersede or modify the Purchase Order.
Severability. If any term or provision of the Purchase Order is found to be invalid, illegal, or otherwise unenforceable, the same shall not affect the other terms or provisions hereof or the whole of the Purchase Order, but such terms or provisions shall be deemed modified to the extent necessary to render such terms or provisions enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the parties herein set forth.
Waiver. No waiver by Eighth Day of any breach of a term or condition of the Purchase Order will constitute a waiver of any other breach or a waiver of such term or condition.
NON-DISCLOSURE AGREEMENT - ACCESS TO FTP SITE
This Agreement made on the date access is granted by and between requester (Participant), and Eighth Day Sound Systems, Inc, an Ohio corporation, doing business at 5450 Avion Park Drive, Highland Heights, Ohio.
In consideration for Participants access to information and for other good and valuable consideration, receipt and sufficiency of which is hereby acknowledged, this shall confirm your agreement as follows:
1) While access is granted, Participant shall become aware of certain methods, practices and procedures with which Eighth Day Sound conducts its business and which both parties agree is proprietary information and as such are trade secrets.
2) Participant will not at any time, divulge, furnish, or make available, either directly or indirectly, to any person, firm, corporation or other entity any proprietary information used by Eighth Day Sound. Participant agrees that all such matters and information shall be kept strictly and absolutely confidential.
3) Participant acknowledges that a breach of any of the provisions of this Agreement may result in continuing and irreparable damages to Eighth Day Sound for which there may be no adequate remedy at law and that Eighth Day Sound in addition to all other relief available, shall be entitled to issuance of an injunction restraining Participant from committing or continuing any breach of this Agreement.
4) It is acknowledged and agreed that this Agreement shall be governed by and construed under the laws of the State of Ohio and in the event of any suit to enforce or interpret this Agreement shall be deemed to have been executed within the State of Ohio, and any actions shall be instituted solely and exclusively in the court of Common Pleas in the County of Cuyahoga, State of Ohio.
ACCEPTED AND AGREED UPON GRANTING OF ACCESS