These Purchase Order Terms (“PO Terms”) and any attachments hereto are the sole agreement between Amherst Studio Cuero, LLC and/or its subsidiaries or affiliates (collectively “Amherst”) that are issuing a PO pursuant to these PO Terms and the Vendor identified on the face of a PO (“Vendor”) regarding the goods (“Goods”) or services (“Services”) specified in the PO to which these PO Terms apply. No other documents, including Vendor’s proposals, invoices, quotations or acknowledgements shall become part of the PO Terms unless expressly approved in writing by Amherst. Notwithstanding the foregoing, if there is a separate executed agreement (an “Agreement”) between Amherst and Vendor with respect to the Goods and/or the Services specified in the PO, then the Agreement shall apply to the purchase and sale of the applicable Goods and Services and such Agreement shall take precedence over these PO Terms in such case.
2.1 Performance. Time is of the essence in the performance of this PO and if the Goods are not delivered or the Services not provided in the manner and at the times specified, Amherst reserves the right without liability and in addition to its other rights and remedies to take either or both of the following actions: (a) direct expedited delivery of the Goods or performance of Services, with any difference in cost caused by such change paid by Vendor, and/or (b) purchase substitute goods and charge Vendor with any loss or additional costs Amherst incurs. Vendor’s performance is not deemed completed until the Goods or Services have been accepted by Amherst.
2.2 Hazardous or Toxic Materials. Vendor agrees at all times and under all circumstances to conform to Amherst’s policies and procedures regarding safe and secure worksites including those with respect to hazardous or toxic materials requirements.
2.2 Inspection. All Goods and Services purchased hereunder are subject to inspection by Amherst at all reasonable times and places notwithstanding the terms of payment, and in any event, prior to final acceptance. No inspection made prior to final acceptance will relieve Vendor from responsibility for failure to meet the requirements of these PO Terms.
3.1 Price. All pricing in the PO shall be inclusive of applicable value added taxes, sales and use taxes and other similar taxes, freight charges and duties.
3.2 Taxes. Taxes, if applicable, shall be noted separately in Vendor’s invoice, and Amherst shall remit such taxes to Vendor. Vendor will not invoice or otherwise attempt to collect from Amherst any taxes with respect to which Amherst has provided Vendor with (i) a valid resale or exemption certificate, (ii) evidence of direct payment to the applicable authority, or (iii) other evidence that such taxes do not apply.
3.3 Shipping. Vendor shall, at its expense, package and preserve the Goods in such a manner that they will arrive at the designated delivery point free from damage. An original packing slip must accompany Goods.
3.4 Invoicing. Vendor shall submit invoices for payment of Fees as directed by Amherst via Amherst’s electronic invoicing function using the applicable PO Number. Invoices must contain the following information, as applicable: PO number, part numbers, description of services, prices and extended totals. Supporting documentation, if applicable, must be provided in connection with all invoices. Invoices submitted hereunder will be paid net 30 days after receipt of a compliant invoice or acceptance of Goods or Services by Amherst, whichever occurs later. Any applicable adjustments in Vendor’s invoices due to late performance, rejections or other failures to comply with these PO Terms may be made by Amherst prior to payment. Payment does not constitute final acceptance. Amherst, at its option, and without prior notice to Vendor, shall have the right to setoff or deduct from any Vendor invoice, any credits, refunds or claims of any kind due Amherst.
4.1 Notice of Delay. Vendor shall give Amherst prompt written notice of any prospective failure to ship Goods or provide Services by the delivery date specified by Amherst or as noted in the PO.
4.2 Change or Cancellation. Amherst may, by written notice to Vendor, make changes to any one or more of the following: (a) specifications for Services or Goods, (b) quantity, and (c) place and/or time of performance. For any reason or no reason, Amherst may also direct Vendor to suspend in whole or in part the provision of Goods or the performance of Services hereunder permanently or for such period of time as may be determined by Amherst to be necessary or desirable. If any such change or suspension causes an increase or decrease in the cost or time required for the performance of Services or provision of Goods hereunder, an adjustment may be made in the price or delivery schedule, or both, and the PO will be modified accordingly. Any claim for adjustment by Vendor will be deemed waived unless asserted in writing within ten (10) days from receipt by Vendor of the notice of change.
4.3 No Process or Design Changes. Vendor shall not make any process or design changes affecting Goods or Services without Amherst’s prior written consent.
4.4 Forecasts. Any forecasts provided by Amherst shall not constitute a commitment of any type by Amherst.
5.1 Warranties. Vendor warrants that all Goods will (i) be manufactured, processed, and assembled by Vendor or its authorized subcontractors; (ii) be free from defects in design, material and workmanship; (iii) conform to specifications and any requirements and certifications regarding any rules, regulations or laws pursuant to the return of hazardous material; (iv) be new and contain first-quality components and parts; (v) be free and clear of all liens, encumbrances, restrictions, and claims against title or ownership; and (vi) not infringe any patent, trademark, copyright or other intellectual property right of a third party. Vendor warrants that all Services will be performed with the highest degree of skill and judgment exercised by recognized professionals performing the same or similar services. These warranties are in addition to all other warranties, express, implied or statutory. Payment for, inspection of, or receipt of the Goods or Services does not constitute a waiver of any breach of foregoing warranties.
5.2 Remedies. In the event of any breach of the foregoing warranties, Vendor will, at its own expense and at Amherst’s option (and sole discretion) either: (a) provide replacement Goods satisfactory to Amherst, (b) re-perform the nonconforming Services to the satisfaction of Amherst, or (c) refund to Amherst the total amount paid for such Goods or Services. The remedies herein stated shall be cumulative and in addition to any other or further remedies provided in law or equity.
Amherst and Vendor acknowledge that in their course of dealings, Vendor may acquire from Amherst confidential and proprietary information about Amherst, its business activities and operations, its employees, trade secrets or any other information which by its sense or nature should reasonably be considered confidential (the “Confidential Information”). Confidential Information will only be disclosed to Vendor’s employees, agents or consultants with a need to know and who are under a written obligation to keep the information confidential. Vendor will not disclose the Confidential Information to any third parties. Vendor will use the same degree of care but no less than a reasonable degree of care that it uses with regard to its own confidential information to prevent the disclosure of Confidential Information.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL AMHERST’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS PO EXCEED THE TOTAL AMOUNT ACTUALLY PAID OR PAYABLE BY AMHERST TO VENDOR FOR THE APPLICABLE GOODS OR SERVICES PROVIDED UNDER THIS PO NOR WILL AMHERST OR ITS RELATED LEGAL ENTITIES BE LIABLE FOR ANY LOST REVENUES, LOST PROFITS, INCIDENTAL, DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF.
If Goods include software, firmware or documentation, Vendor grants to Amherst a nonexclusive, perpetual, royalty free, worldwide license to use, reproduce, display, prepare derivative works of the documentation and distribute such, software, firmware or documentation directly or as integrated into other goods and/or services used by Amherst.
9 INDEMNIFICATION AND INSURANCE
9.1 INDEMNITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, VENDOR AGREES TO AND SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS AMHERST, AND THE RESPECTIVE AGENTS, AFFILIATES, ASSIGNS, AND EMPLOYEES (THE “AMHERST INDEMNITEES”) FROM AND AGAINST ANY AND ALL LIABILITIES, LOSSES, COSTS, SUITS, DAMAGES AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES AND COSTS WHETHER PRE-TRIAL, AT TRIAL, MEDIATION OR ARBITRATION AND/OR IN CONNECTION WITH ANY APPEAL), ARISING FROM ANY CLAIMS, WHETHER OR NOT OCCASIONED OR CONTRIBUTED BY THE NEGLIGENCE OF THE AMHERST INDEMNITEES OR ANY OF THEM (EXCEPT AS AND TO THE EXTENT OTHERWISE PROHIBITED BY APPLICABLE LAW)(COLLECTIVELY, “CLAIMS”), FOR OR INCURRED IN CONNECTION WITH ANY INJURY OR DAMAGE TO OR SUFFERED BY PERSONS OR PROPERTY OF ANY KIND OR NATURE TO THE EXTENT SUCH INJURY OR DAMAGE ARISES OUT OF OR RESULTS FROM (A) ANY ACTUAL OR ALLEGED VIOLATION OR BREACH BY VENDOR OF ANY OF THE TERMS AND CONDITIONS OF THESE PO TERMS; (B) THE PERFORMANCE OF THE SERVICES BY VENDOR, ANY VENDOR SUBCONTRACTOR, OR OTHER PERSONS FOR WHOM VENDOR IS RESPONSIBLE UNDER THESE PO TERMS (COLLECTIVELY, THE “VENDOR PARTIES AND EACH, A “VENDOR PARTY”); (C) THE ACTS OR OMISSIONS OF VENDOR OR ANY VENDOR PARTY; (D) any bodily injury, death of any person, or damage to real or tangible personal property caused by acts or omissions of VENDOR OR any VENDOR Party; AND (E) ATTACHMENTS, LIENS OR CLAIMS OF VENDOR OR ANY VENDOR PARTY RESULTING FROM VENDOR’S OR ANY VENDOR PARTY’S PERFORMANCE UNDER THESE PO TERMS.
9.2 TO THE EXTENT THAT ANY APPLICABLE LAW PROHIBITS OR LIMITS INDEMNIFICATION BY VENDOR FOR CLAIMS CAUSED BY THE NEGLIGENCE OR MISCONDUCT OF ANY OF THE AMHERST INDEMNITEES, THE OBLIGATIONS SET FORTH IN SECTION 9.1 SHALL BE LIMITED TO THE REQUIREMENTS OF SUCH LAW.
9.3 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, VENDOR’S indemnification obligation shall: (i) survive termination of THESE PO TERMS and/or completion of the Services; (ii) extend to claims occurring after termination of THESE PO TERMS or completion of the Services; and (iii) not be limited in any manner by the VENDOR’s insurance coverage under this Agreement.
9.4 Vendor shall maintain at its expense and at all times during the term beginning on the effective date of this PO and at any time at which Vendor is providing Services or Goods to Amherst, the insurance coverages as follows:
(a) Workers’ Compensation and Employers’ Liability Insurance with coverage of not less than $1,000,000 each accident (or in the case of Workers Compensation, the minimum required by law), both coverages to apply to liability as applicable under any state or federal statute or through any common law process;
(b) Business Automobile Liability Insurance with a combined single limit for bodily injury and property damage of not less than $1,000,000 each accident; and
(c) Commercial General Liability Insurance with a combined single limit for bodily injury, personal injury and property damage limit of not less than $1,000,000 per occurrence ($2,000,000 aggregate).
Amherst may terminate this PO in whole or in part at any time and without cause. Upon notice of termination, Vendor will inform Amherst of the extent to which it has completed its performance including Services provided and Goods delivered through the date of such notice. Amherst will pay Vendor for Goods and Services accepted and performed through the effective date of the termination notice and Amherst will have no further payment obligation in connection with any termination.
All records, software, files, data, reports, information, work product, notes, plans, strategies, intellectual property and other information provided by Amherst or prepared or developed by or for Amherst pursuant to this PO (“Work Product”) is the property of Amherst and, to the extent applicable, will constitute works made for hire under applicable law. Vendor assigns all intellectual property rights in the Work Product to Amherst and agrees to complete any documents requested by Amherst to perfect its ownership in the Work Product. All materials, equipment and other information supplied to Vendor by Amherst will remain the property of Amherst and be returned to Amherst when no longer needed by Vendor in connection with the provision of Services and Goods hereunder, and in any event upon the expiration or earlier termination of this PO.
12.1 No Assignment. Vendor shall not delegate or assign its rights or obligation without Amherst’s prior written consent. Any attempted delegation or assignment by Vendor without such consent shall be void.
12.2 Choice of Law. These PO Terms shall be governed and construed in accordance with the laws of the State of Texas without regard to its conflict-of-laws rules. The Parties disclaim the United Nations Convention on Contracts for the International Sale of Goods, which shall not apply to these PO Terms or the Parties’ performance hereunder.
12.3 Illegal/Unenforceable Terms. In the event that any provision of these PO Terms shall be adjudged illegal or otherwise unenforceable, such provision shall be severed and the balance of these PO Terms shall continue in full force and effect.
12.4 Updates. Vendor agrees that Amherst may from time to time make reasonable updates to these PO Terms.