Acceptance. Any purchase order (“PO”) issued by Gibson Brands, Inc. or any of its affiliates (“Gibson”) under these terms and conditions (“Terms”) shall become a binding contract upon the earlier of (i) your (“Seller”) written acceptance of a PO to which these Terms are attached, (ii) commencement of performance of any services by Seller (“Services”), or (iii) shipment of any goods, products, materials, supplies, equipment, or software (whether in object or source code and whether installable, available on a software-as-a-service basis, or embedded in any Goods, including any firmware, middleware, database, operating system, application, user interface, and machine code) (“Goods”) to Gibson, in each case within the time frame(s) set forth in the applicable PO. No course of dealing or usage of trade shall be used to modify, supplement, or explain any term herein. Any different or additional terms or conditions in any Seller quotation, acknowledgment, commencement, or invoice shall constitute a counteroffer, and no contract shall exist unless accepted in writing by Gibson. Notwithstanding the foregoing, if Seller has commenced performance prior to Gibson’s written acceptance, then such additional or different terms shall be deemed null and void, and these Terms shall prevail. In no event shall Gibson be bound by any “shrink-wrap,” “click-wrap,” or other similar terms or conditions for any Goods or Services. Gibson may, from time to time, change or supplement these Terms upon notice to Seller to apply to any Services performed or Goods provided following such notice. For the avoidance of doubt, nothing in these Terms is intended to supersede the terms of any agreements between Gibson and Seller that predate these Terms.
Changes. Gibson may, at any time, add, delete, or change all or any part of the scope of a PO, and Seller agrees to perform Services and/or deliver Goods accordingly. If any such addition, deletion, or change causes an increase or decrease in the cost of or in the time required to perform Services and/or deliver Goods, Seller shall submit detailed information substantiating such claims. If required in Gibson’s reasonable discretion, an equitable adjustment shall be made to the price, time of performance, or both, and the PO shall be modified in writing accordingly.
Delivery. Time is of the essence. Quantities, delivery schedules, and any specifications for Goods must be as specified in the applicable PO or, if not specified therein, as directed by Gibson in writing. Seller may be liable for any losses or expenses suffered or incurred by Gibson arising out of Seller’s failure to conform and/or comply with Gibson’s specifications and delivery schedules. If Gibson must obtain substitute Goods or Services in order to satisfy the requirements set forth in a PO, then Seller shall be liable to Gibson for any resulting costs or damages, including the excess of the cost of such substitute item over the price set forth in the PO, and any costs relating to expedited shipping (if any). Seller shall ensure that the packaging, labeling, and shipping of any Goods (i) comply with all requirements set forth in a PO (if any), all applicable international, federal, state, and local laws, rules, and regulations (“Laws”), and all specifications provided by Gibson; and (ii) is in accordance with the best commercial practices and protect the Goods from loss or damage. No charge will be allowed for any form of packaging, shipping, or transporting unless otherwise set forth in a PO, and damage to any Goods not packed to ensure protection shall be charged to Seller. Each package must contain a memorandum showing shipper’s name, contents of package, and Gibson’s PO number (excluding software-as-a-service Goods). Except as otherwise set forth in a PO: (a) all shipments shall be made F.O.B. for deliveries; (b) title to Goods passes to Gibson upon acceptance; and (c) Seller pays all freight and related charges and is responsible for filing loss and damage claims prior to acceptance of delivery at destination by Gibson. Notwithstanding the foregoing, title and risk of loss for Goods subject to a consignment agreement pass upon release of the Goods from the consigned stock. In the event transportation is performed by a carrier retained by or for Gibson, Seller will provide the carrier with all necessary handling and other information in accordance with and/or necessary for compliance with applicable Law. Seller shall notify Gibson, immediately and in writing, of any actual or potential delay in delivery or shipment.
Quality and Inspection. Gibson’s acceptance of any Goods or Services ordered under these Terms are contingent upon inspection and testing by Gibson, notwithstanding any prior payments or expressions of acceptance or general satisfaction. Preliminary inspections by or on behalf of Gibson shall not accelerate nor extend the delivery or performance schedules for any POs. Gibson or its third-party designee may inspect any Goods at the place of manufacture or storage at any time preceding and prior to shipment. All Goods are subject to Gibson’s approval notwithstanding prior inspection or payment and, if not satisfactory or non-conforming or in accordance with specifications, may, at Gibson’s option, be returned to Seller at Seller’s expense and the amounts paid therefor by Gibson shall be refunded promptly to Gibson, or Supplier shall replace such Goods with conforming Goods. All Services are subject to Gibson’s approval notwithstanding prior inspection or payment and, if not satisfactory or in accordance with specifications, may, at Gibson’s sole option, be re-performed at Seller’s expense, deducted from the open or future balances due to Seller by Gibson, or the amounts paid therefor by Gibson shall be refunded promptly to Gibson. Gibson’s acceptance of Goods or Services shall not relieve Seller of any obligations hereunder and is without prejudice to Gibson’s rights in the event of any latent defects, fraud, or errors.
Payments. Except as otherwise set forth in a PO, or agreed by the parties in writing, the prices set forth in a PO shall not be increased without Gibson’s prior written consent. If a price is not stated for any Goods or Services in any PO, Seller shall invoice Gibson for such Goods or Services at the lower of (i) the lowest then-prevailing market price of such Goods or Services, or (ii) the last price quoted to Gibson as reflected in Gibson’s records. Gibson may withhold payment if Seller’s invoice is incorrect or does not conform to Gibson’s invoicing instructions or for any disputed invoice, and such amount shall be paid, without interest, solely upon the cause of the withholding being eliminated. All amounts due under these Terms shall be subject to deduction by Gibson for any setoff or counterclaim arising out of this or any other PO or contracts with, or other obligations of, Seller. Except as otherwise set forth in a PO, all invoices are payable within ninety (90) days from the later of the date of acceptance of Goods or Services or from the date an undisputed invoice is received by Gibson. Unless otherwise specified in a PO, all amounts shall be invoiced and paid in the currency of the country in which Gibson is located. The prices specified in a PO shall include all taxes required under applicable Law on the date of performance, excluding any taxes based on Seller’s income or assets or any taxes on hosted or cloud services (if any).
Warranties. Seller represents and warrants that the Goods and Services (to the extent applicable) shall: (i) be new and not contain any reconditioned parts or materials unless otherwise specified in a PO; (ii) conform to the specifications, drawings, samples, labels, and other descriptions furnished or specified by Gibson; (iii) be of the highest quality and workmanship, merchantable, suitable for the purposes intended, and free from defects, whether patent or latent, in material, workmanship, design, and title, and free of any liens, security interests, or other encumbrances; (iv) to the extent consisting of, incorporating, or providing access to any software, conform to and perform in accordance with its documentation and not contain any malicious code that is capable of accessing, modifying, deleting, damaging, disabling, deactivating, interfering with, or otherwise harming any computers, networks, data or electronically stored information, or computer programs or systems, or permitting any other party to do so; (v) be executed in a professional, good, and workmanlike manner by qualified, trained, and experienced workers in strict conformity with the highest standards of the industry and trade; and (vi) not infringe, misappropriate, or otherwise violate the intellectual property or proprietary rights of a third party. Seller represents and warrants that it shall have all necessary rights, permits, and licenses necessary to provide the Goods, Services, and any work product resulting from the Services (“Work Product”) and shall comply with all applicable Laws and Gibson’s Supplier Quality Assurance Manual , which Gibson shall provide to Seller on request and which may be updated from time to time. Seller shall assign and pass through to Gibson any third-party warranties or rights in or to the Goods or Services. Seller represents and warrants that Seller is not debarred or subject to debarment by any governmental authority, and that Seller will not employ, subcontract with, or otherwise use any third party who or which is debarred or subject to debarment in connection with Seller’s performance of this PO. If Gibson determines that any Goods or Services do not comply with applicable warranties, Gibson may, at its sole option, and in each case at Seller’s sole expense: (a) reject such Goods or Services and/or purchase substitute goods and/or services including expedited transportation; (b) require Seller to repair or correct such Goods or re-perform such Services as necessary to render them in conformance with such warranties, and consistent with Gibson’s time schedule and RMA processes; (c) return such Goods to the extent not consisting of services (and if applicable return the deliverable of any Services), and receive a full refund; and/or (d) make any corrections required to cause such Goods or Services to fulfill such warranties and/or repair, replace, and/or recall products that incorporate or are potentially affected by such Goods and charge Seller, and Seller agrees to pay or reimburse Gibson, for the related liabilities and expenses suffered or incurred by Gibson in accordance with Gibson’s Cost of Poor Quality (“CoPQ”) calculation and the Cost Recovery Notification (CRN) processes which Gibson shall provide to Seller on request and which may be updated from time to time.
Indemnities. Seller shall indemnify and hold harmless Gibson and its affiliates from any claims and all resulting liabilities, losses, damages, costs, and expenses (including reasonable attorneys’ fees) arising out of or resulting from (i) a breach of these Terms; (ii) the Goods, Services, or Work Product; (iii) any breach of Seller’s obligations or warranties; or (iv) any negligence, fraud, or willful misconduct of Seller or its personnel.
Insurance. Unless as otherwise agreed by the parties in writing, Seller shall obtain and maintain in effect, at its sole cost and expense, the following insurance policies for the following amounts: (i) commercial general liability, including product liability, completed operations, and contractual liability coverage, with limits that are at least the equivalent of a combined bodily injury and property damage single limit of $1,000,000 per occurrence and $3,000,000 in the aggregate; (ii) workers’ compensation for statutorily required amounts; (iii) employer’s liability with at least $1,000,000 per occurrence; and (iv) excess liability coverage of at least $5,000,000. Seller shall name Gibson as an additional insured on the liability policies required. All of the policies shall include a waiver of subrogation stating that Seller, on behalf of its insurers, agrees to waive any right of subrogation that such insurers may have against Gibson arising out of or related to a PO or these Terms. Seller shall furnish Gibson with certificates of insurance including a provision that Gibson will receive written notice of non-renewal, cancellation, or material change of coverage at least thirty (30) days prior thereto. The required insurance coverages must be issued by insurance companies (a) acceptable to Gibson, (b) with a minimum A.M. Best rating of A-minus (or an equivalent rating from another recognized rating agency), and (c) authorized to do insurance business wherever the Goods are utilized or Services performed. If written on a claims made form, the required insurance shall be maintained by Seller for five (5) additional years after completion, cancellation, or termination of these Terms.
Intellectual Property. All Work Product shall be deemed “work made for hire” to the extent permitted by Law, and shall be owned solely by Gibson. Unless otherwise set forth in a PO, and except as set forth in clauses (ii) and (iii) of this sentence, (i) Seller hereby assigns and transfers to Gibson all right, title, and interest in and to the Goods and any Work Product, including all intellectual property rights therein; (ii) notwithstanding clause (i), each party will continue to own all of its intellectual property existing prior to the date of the PO or created or developed independently of the PO (“Prior IP”), provided that Seller hereby grants Gibson a perpetual, irrevocable, royalty-free, worldwide, non-exclusive license, including the right to sublicense (“Use License”), covering all of Seller’s Prior IP in the Goods and Work Product to the extent necessary or desirable for Gibson’s use of the Goods or Work Product; and (iii) Seller will obtain and transfer to Gibson a Use License cover all third-party intellectual property incorporated into, required to use, or delivered with the Goods or Work Product. Seller will provide Gibson with all assistance reasonably required to perfect the rights granted herein.
Confidentiality. In the course of providing Goods and/or performing the Services hereunder, Seller shall not, without the prior written consent of Gibson, directly or indirectly, use, disclose, or allow the unauthorized access to any drawings, plans, specifications, blueprints, software, equipment designs, prices, samples, formulas, processes, data, instructions, and other information in any form furnished or made available to or for Seller by or for Gibson (collectively, “Confidential Information”). All Confidential Information shall remain the sole and exclusive property of Gibson. Seller shall limit the use or disclosure of any Confidential Information to its personnel who (i) need to know such information and (ii) are subject to written obligations of confidentiality equivalent to those set forth herein. Seller shall be responsible for any disclosure or misuse of Confidential Information by any personnel to whom Seller makes Confidential Information available as if such disclosure or misuse resulted from Seller’s acts or omissions. Seller shall use at least the same degree of care in safeguarding Confidential Information as it uses in safeguarding its own comparable information, but in no event using less than a reasonable degree of care. If Seller becomes legally compelled to disclose any Confidential Information, Seller may disclose such Confidential Information to the extent legally required; provided, however, that Seller shall first notify Gibson in writing of such requirement so that Gibson may seek a protective order or similar remedy. Upon request by Gibson, Seller shall promptly, at Gibson’s option and Seller’s expense (a) return to Gibson all Confidential Information and retain no copies, and (b) erase or destroy all Confidential Information and confirm in writing that it has done so, in each case to the extent requested by Gibson. Seller acknowledges that any breach of this Section may cause immediate and irreparable harm to Gibson for which monetary damages would be inadequate and that, accordingly, Gibson may, in addition to all other remedies, seek injunctive relief for any breach by Seller of this Section without proof of actual damages and without the posting of bond or other security.
Termination. Gibson reserves the right to, at any time, to terminate all or part of a PO following a breach of these Terms by Seller. Upon termination, Seller immediately shall stop performance, and Gibson shall be responsible solely for the payment of the applicable POs for Goods that have been accepted or Services performed as of the termination date. Seller WAIVES ANY RIGHTS UNDER LAW OR IN EQUITY TO seek DAMAGES BASED ON Gibson’s EXERCISE OF ITS RIGHT TO TERMINATE WITHOUT CAUSE PURSUANT TO THE TERMS OF THIS Section.
Records and Audit. Gibson shall have the right to request to examine and audit the books and records of Seller at any reasonable time. Such books and records shall be maintained for at least five (5) years from completion of delivery of Goods or performance of Services and shall be adequate to enable determination and substantiation of (i) the accuracy of any payments required to be made under the relevant PO, related taxes and duties, and materials and supplies used by Seller; and (ii) compliance with the provisions of the relevant PO and/or these Terms. Seller shall ensure that all requirements in this Section are incorporated into all subcontracts at any tier related to the Goods and Services provided hereunder. Any such audit shall be conducted at the expense of Gibson; provided, that if such audit indicates that Seller overcharged Gibson by more than two percent (2%), then Seller shall bear the costs of such audit.
Assignment. Seller shall not assign, delegate, or otherwise transfer, in whole or in part, any rights, duties, claims, or obligations hereunder, whether voluntarily or by operation of Law, including by subcontracting, without Gibson’s prior written consent. Any such attempted assignment, delegation, or other transfer without Gibson’s prior written consent shall be null and void. Nothing herein shall prohibit or limit Gibson’s ability to assign, delegate, or transfer any rights hereunder.
Import and Export; Anti-Corruption; Statements to Governments; Modern Slavery. Gibson directs and expects Seller to follow all U.S. export and import laws, including the Export Administration Regulations, laws administered by the U.S. Customs and Border Protection, and U.S. economic sanctions administered by the Department of Treasury, as well as all applicable provisions of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (“CITES”) as CITES has been implemented under U.S. law and the laws of any other country or governmental entity that has jurisdiction over the transaction. Gibson further directs and expects that Seller will not make any false or fraudulent statements to any department or agency of the U.S. or any other government in performing its duties under these Terms. In addition, Gibson directs and expects that Seller shall not make, offer, promise, or authorize the making of any payment of money or any other thing of value to a government official or employee, official or employee of an international organization or political party, candidate for political office, or any other person where the payment is made, offered, promised, or authorized to corruptly obtain or retain or direct to any other person any business advantage. Seller shall ensure that all requirements in this Section are incorporated into all subcontracts at any tier related to the Goods and Services provided hereunder. Further, the Supplier will not, and will procure that any other persons who perform services or supply goods for or on behalf of it in connection with this Agreement will not engage in any practice or omit to do any act or thing that amounts to modern slavery as defined under the Modern Slavery Act (“Modern Slavery Practice”).
General Provisions. All rights and remedies of Gibson set forth herein shall be cumulative and in addition to any other or further rights and remedies provided in law or equity. Under no circumstances shall Gibson be liable for any anticipated profits or for incidental, consequential, special, exemplary, or punitive damages in connection with these Terms or any PO. Failure of Gibson to insist upon strict performance of these Terms shall not be deemed to be a waiver of any of Gibson’s rights or remedies. No waiver by Gibson of any default by Seller of any term or condition of these Terms shall be effective unless in writing and signed by an authorized representative of Gibson, nor shall any such waiver constitute a waiver of any other default or of the same default on a future occasion. Seller’s representations, warranties, indemnification obligations, obligations related to Confidential Information, and all other provisions that may be reasonably interpreted or construed as surviving completion, cancellation, or termination of a PO shall survive. These terms and conditions, and any PO hereto, shall be governed by the Laws of the State of Tennessee and the United States of America without regard to their conflicts of law principles. Each Party hereby waives all defenses alleging lack of personal jurisdiction and forum non conveniens related thereto. Furthermore, Each Party knowingly, unconditionally, and absolutely waives any right to trial by jury in any action relating to these Terms. The parties expressly exclude the applicability of the United Nations Convention on Contracts for the International Sale of Goods.
Arbitration. Without limiting a Party’s ability to seek an injunction pursuant to Section 10 of these Terms, any dispute arising out of these Terms shall be settled by binding arbitration in Nashville, Tennessee, United States of America. The Dispute shall be conducted in accordance with the commercial arbitration rules of the American Arbitration Association (“AAA”); provided, that the rules set forth in this Section shall govern such dispute to the extent they conflict with the rules of AAA. Each dispute shall be conducted by three arbitrators, who shall be appointed pursuant to the AAA rules. The arbitrators shall have the authority to apportion liability between the parties, but shall not have the authority to award any damages or remedies not available under, or in excess of, the express terms and limitations of these Terms. Upon written notice by a party to the other party of a demand for arbitration hereunder, the parties shall use their best efforts to cause the dispute to be conducted in an expeditious manner. The parties shall be permitted to conduct discovery in accordance with the Federal Rules of Civil Procedure. All other procedural matters shall be within the discretion of the appointed arbitrators. In the event a party fails to comply with the procedures in any dispute in a manner deemed material by the arbitrators, the arbitrators shall fix a reasonable period of time for compliance and, if the party does not comply within said period, a remedy deemed just by the arbitrators, including an award of default, may be imposed. The determination of the arbitrators shall be final and binding on the parties. The parties shall each be responsible for their own expenses in connection with such arbitration, including without limitation counsel fees and fees of experts; provided, however, that the parties shall share equally in the expense of the arbitrators. The award of the arbitrators may be enforced in any court having jurisdiction thereof. Each party hereby consents (i) to the non-exclusive jurisdiction of the federal and state courts of Davidson County, Tennessee, United States of America, for any action (a) to compel arbitration, (b) to enforce any award of the arbitrators, or (c) at any time prior to the qualification and appointment of the arbitrators, for temporary, interim, or provisional equitable remedies; and (ii) to service of process in any such action by registered mail or any other means provided by Law. Should this Section be deemed invalid or otherwise unenforceable for any reason, it shall be severed and the parties agree that exclusive jurisdiction and venue for any dispute shall be in the federal or state courts having jurisdiction over Davidson County, Tennessee, United States of America.
