1. OFFER, ACCEPTANCE

1.1 A Purchase Order (“PO”) is an offer to Supplier (as defined in this PO) by the company listed under ‘Invoice To’ (the “Agency”) agency to enter into the purchase and supply agreement it describes. Supplier’s commencement of work thereunder will constitute acceptance of the offer.

1.2 Acceptance is expressly limited to the terms of Agency’s offer. Once accepted, such PO together with these terms and conditions (“T&Cs”) will be the complete and exclusive statement of the purchase agreement, unless the Supplier and Agency have entered into a separate, executed written agreement (the “Agreement”). Any modifications proposed by Supplier to these T&C are expressly rejected by Agency and shall not become part of the agreement in the absence of Agency’s written acceptance.

2. AGENCY. Agency hereafter, is acting solely for the benefit of its client and not as principal. All rights, benefits, privileges and properties vested in Agency pursuant to this T&Cs are vested in Agency for the benefit of its client.

3. COPYRIGHT OWNERSHIP. In the event that any materials furnished by the Supplier (as defined in the respective Purchase Order hereunder (“the Materials”) are copyrightable subject matter, Supplier and Agency hereby agree that the Materials shall be a work made for hire and the property of Agency as agent for Advertiser. In the event that any Materials are not copyrightable subject matter, or for any reason cannot legally be a work made for hire, then and in such event Supplier hereby assigns all right, title and interest to said Materials to Agency as agent for Advertiser, and agrees to execute such documents as may be necessary to evidence such assignment(s). Any terms of ownership or use other than as provided in this paragraph must be specifically stated in writing on the front of this PO; otherwise, any limitations on ownership or use shall be deemed void. Unless Agency’s written approval is obtained, Supplier may not include in the Materials any work of authorship in which copyright is not owned by Supplier. In the event Supplier incorporates any work of authorship not owned by it in supplying the Materials, Supplier shall acquire for Agency any 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 on the front of this PO, the rights of Agency include, but are not limited to: (a) the right to use the Materials in any manner as Agency shall determine; (b) the right to alter or rearrange such Materials; and (c) the right to sell or otherwise exploit such Materials. Agency’s rights shall be exclusive throughout the world and Supplier shall not use, license or permit the use of the Materials for any other purpose.

4. SOFTWARE. Unless otherwise noted in writing, the provisions of Paragraph 3 above regarding copyright ownership of the Materials by Agency apply equally to any software (including computer programming, source and object code, and HTML formatting) that may constitute or be included in the Materials (“the Software”). In the event Supplier retains ownership of any such Software, as identified on the fact of this PO, Supplier hereby grants to Agency a perpetual, royalty-free, transferable license to use, modify, license, sublicense or otherwise transfer or use such Software.

5. WARRANTIES. Unless otherwise provided on the front of the PO, Supplier hereby represents and warrants that: (a) no third party has any rights in, to, or arising out of, the Materials; (b) Supplier has full and exclusive right and power to enter into this agreement; (c) all models and any other likenesses which are used in the Materials, and the owner of any unique or unusual inanimate objects which are used in the Materials, have executed releases allowing unlimited use by Agency, and Supplier shall not be entitled to payment for the Materials unless all releases have been delivered to Agency in a timely manner; (d) the Materials comply with Agency’s specifications and are free from any material defects in design or workmanship (e) the Materials comply with and/or have been produced in accordance with all applicable federal, state and municipal laws and regulations; and (f) Supplier shall carry insurance in an amount not less than $1,000,000 covering its indemnity obligations contained in this PO.

6. INDEMNITY. Supplier hereby agrees to indemnify and hold harmless Agency, its client and their respective parent companies, subsidiaries and commonly owned or controlled affiliates and their respective officers, directors and employees and their respective assigns, successors in interest and licensees (“Indemnitees”) from and against any loss, fine, damage (whether arising by contract, tort, statute or otherwise) or expenses, including but not limited to reasonable attorneys’ fees (including an allocation for in-house counsel fees) that Indemnitees may suffer as a result of any breach or alleged breach of the foregoing warranties or as a result of claims or actions of any kind or nature resulting from the use in any manner of the Materials, including amounts expended in pursuing right under this clause against Supplier. Agency similarly agrees to indemnify and hold harmless Supplier and its assigns and licensees with respect to any materials supplied by Agency. Agency shall be responsible for the content of all materials provided to Supplier in fulfilling this PO.

7. REJECTION AND APPROVAL RIGHTS. Agency reserves the right to reject and not pay for any Materials not delivered in accordance with the specifications of this PO, including timely delivery which is of the essence. Notice of defects in workmanship or design of the Materials, or notice of rejection of the Materials, will be forwarded to Supplier promptly after Agency and/or Advertiser have reviewed the Materials. If approval rights of Agency are to be limited in any way, it is the responsibility of Supplier to obtain Agency’s written consent to such limitations, either on the front of this PO, or in a separate, written agreement, signed by Agency. Supplier agrees that no use of the Materials need be submitted to it for any further approval, and Agency will be without liability to Supplier for any distortion or illusionary effect resulting from use of the Materials.
8. ENTIRE AGREEMENT; AMENDMENTS. The terms and conditions set forth herein constitute the entire agreement between the parties, unless the parties have entered into a separate executed agreement. The price specified in this PO is firm except for the addition of sales and use taxes applicable to the Materials. No variation in any of the terms of this PO will be effective unless made in writing and executed by each of the parties hereto.

9. CANCELLATION. This PO may be canceled by Agency at any time prior to its acceptance of the Materials, upon written notice to Supplier. In such event, Agency will pay Supplier, in lieu of the price specified on the front of this PO, the direct noncancellable costs theretofore incurred by Supplier 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. Agency will not be responsible for any cancellation fees or penalties to Supplier unless so provided on the front of this PO.

10. CONFIDENTIALITY. Supplier covenants and agrees that it will not disseminate, reveal or otherwise make available to others, or use for its own purpose, any information of a proprietary or confidential nature concerning Agency, Advertiser, or any of their respective clients, assigns or successors in interest, learned by Supplier in the course of fulfilling this PO, including but not limited to, trade secrets and confidential information, advertising and promotional materials, ideas, plans, techniques and products.

11. ASSIGNMENT/THIRD PARTIES. The fulfillment of this PO, or any sums payable hereunder, may not be assigned by Supplier without the prior written consent of Agency. Except for Advertiser, this T&Cs is not intended to benefit any third party and no third-party action is permitted under this T&Cs.

12. GOVERNING LAW. The parties agree and consent that jurisdiction and venue of all matters relating here to shall be vested exclusively in the federal, state and local courts within the state in which the Agency office issuing this PO is located. The provisions hereof shall be interpreted in accordance with the substantive laws
of the state in which the Agency office issuing this PO is located, without regard to its conflict of laws rule.

13. WAIVER. No failure by either party to exercise any power given it under this T&Cs, 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 T&Cs shall constitute a waiver of the party’s right to demand exact compliance with this T&Cs terms.

14. SETOFF. All claims for money due or to become due from Agency or Advertiser shall be subject to deduction or setoff by Agency or Advertiser by reasons of any claim, counterclaim or debt arising out of this or any other transaction with Supplier.

15. INDEPENDENT CONTRACTOR. It is understood that Supplier’s status under this T&Cs is that of an independent contractor and that all persons engaged by Supplier in performing its obligations shall not be deemed employees of Agency or Advertiser. Supplier shall make whatever payments may be due such persons and comply with all governmental regulations. Supplier shall indemnify and hold harmless Agency and Advertiser against any claims and demands resulting from Supplier’s failure to comply with provisions of this Paragraph.

16. DISPUTE RESOLUTION. Any claim or controversy between the parties arising out of this T&Cs shall be resolved by arbitration. A single arbitrator engaged in the practice of law shall conduct the arbitration under the then current rules of the American Arbitration Association. The arbitrability of claims shall be determined under federal law. The arbitrator shall have authority to award compensatory damages only. 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.

17. EQUAL OPPORTUNITY EMPLOYER. Agency is an equal employment opportunity employer and is a federal contractor. Consequently, Supplier agrees that, to the extent applicable, it will comply with Executive Order 11246, the Vietnam Era Veterans Readjustment Assistance Act of 1974 and Section 503 of the Vocational Rehabilitation Act of 1973 and also agrees that these laws are incorporated herein by this reference. Supplier also agrees to comply with the provisions of Executive Order13201 Compliance (29 CFR Part 470), relating to the notice of employee rights concerning payment of union dues.

18. SEQUENTIAL LIABILITY. Unless otherwise set forth by Agency on the PO, Supplier agrees to hold Agency solely liable for payment to the extent proceeds have cleared from its client to Agency for services performed or goods purchased in accordance with this PO. For sums owing but not cleared to Agency, Supplier agrees to postpone any demand for payment until Agency has received funds from its client.

19. VENDOR CODE OF CONDUCT. Supplier agrees to abide by and comply with Agency’s Code of Conduct and related policies as they relate to gift giving and personal favors.