These terms and conditions (“TERMS”) apply to any and all purchase orders, releases or other means of ordering (“AGREEMENT”) between seller (“SELLER”) and Scentsible, LLC, (“BUYER”) (individually “PARTY; collectively “PARTIES”) relating to goods/services (individually “GOODS” “SERVICES” and collectively “GOODS/SERVICES”).
1. RETURN OF GOODS. BUYER is entitled to return to SELLER any GOODS that are not in full compliance with this AGREEMENT at SELLER’s expense for credit to BUYER at the full price plus all reasonable costs and expenses associated with such return.
2. SERVICES NOT IN COMPLIANCE WITH THESE TERMS. If SERVICES are not in full compliance with these TERMS and any related AGREEMENT, then BUYER is entitled to a credit or to withhold payment in whole or in part, and BUYER, upon prior written notice to SELLER, may employ a third party to perform SELLER’s obligations under any AGREEMENT at SELLER’s expense.
3. TERMINATION FOR CONVENIENCE BY BUYER. BUYER is entitled to terminate any AGREEMENT for convenience with not less than five (5) calendar days written notice to SELLER, without any penalty, liability or further obligation.
4. DUE DATE FOR PAYMENT. The due date for payment is calculated from the date the accurate invoice is received at the location as designated by BUYER. In no event will payment occur prior to BUYER’s receipt of the GOODS, or the date of performance of the corresponding SERVICES or, if required, prior to the date where BUYER obtains government approval for payment, whichever is later. BUYER may withhold payment if SELLER’s invoice is inaccurate or does not meet BUYER’s invoice requirements or if SELLER’s invoice does not meet legal or tax requirements. Each invoice submitted by SELLER will describe the work performed and the corresponding charges in a manner reasonably satisfactory to BUYER.
5. REPRESENTATIONS AND WARRANTIES RELATING TO THE GOODS/SERVICES. SELLER represents and warrants that at the time when title passes to BUYER, and for the shelf life of the GOODS, the GOODS and any parts thereof (article(s), chemical or other component(s) or composition(s)): (i) are in full compliance with the specifications which are either attached to any AGREEMENT or incorporated by reference (“SPECIFICATIONS”); (ii) are safe and otherwise appropriate and fit for BUYER’s intended use; (iii) are of merchantable quality and free from latent and patent defects; and (iv) are in full compliance with all applicable LAWS. SELLER represents and warrants that at the time of performance of the SERVICES, and continuously thereafter, the SERVICES: (i) are in full compliance with the SPECIFICATIONS; (ii) are done in a competent, workmanlike manner and free from defects in materials and workmanship, whether latent or patent; (iii) are in conformity with the standards of care employed by leading vendors in the services industry for projects of this kind and scope; and (iv) are in full compliance with all applicable LAWS.
6. TITLE AND LIENS. At the time when risk of loss passes to BUYER, SELLER will pass to BUYER good and marketable title to the GOODS, free and clear of all liens, claims, security interests, pledges, charges, mortgages, deeds of trusts, options, or other encumbrances of any kind (“LIENS”). SELLER will keep any of BUYER's property in the possession or the control of SELLER or any of its subcontractors free and clear of any LIENS and will identify it as BUYER's property.
7. INTELLECTUAL PROPERTY RIGHTS. SELLER represents and warrants that the GOODS/SERVICES and any resulting work product will not infringe, violate, or misappropriate any copyrights, patents, trademarks, design rights or registrations, trade secrets, confidential information, or similar intellectual property rights (collectively “IP RIGHTS”) of any third party. SELLER represents and warrants that at the time hereof there are no claims being asserted and no actions pending or threatened against SELLER by any third party that the GOODS/SERVICES and any resulting work product allegedly infringe, violate or misappropriate third party IP RIGHTS. SELLER will provide BUYER with immediate notice of such claims or actions as they arise.
8. CHILD LABOR AND FORCED LABOR. SELLER will not employ children, prison labor, indentured labor, bonded labor or use corporal punishment or other forms of mental and physical coercion as a form of discipline. In the absence of any national or local law, an individual of less than 15 years of age is considered as a child. If local LAWS set the minimum age below 15 years of age but are in accordance with exceptions under International Labor Organization Convention 138, the lower age will apply.
9. COMPLIANCE WITH LAWS. SELLER will and will cause any person or entity acting on its behalf to fully comply with all applicable governmental, legal, regulatory and professional requirements, including but not limited to anti-money laundering, anti-corruption and anti-bribery laws (including, without limitation, the Foreign Corrupt Practices Act, the UK Bribery Act and Proceeds of Crime Act, and commercial bribery laws) (collectively "LAWS"). SELLER will promptly notify BUYER if SELLER (i) receives any notice, demand, summons or complaint from any governmental or regulatory authority, agency or other body relating to the subject matter of any AGREEMENT, and will take all steps, at SELLER's expense, to resolve any issues as promptly as practicable or any request or demand in violation of the LAWS or (ii) violates any LAWS.
11. SELLER DIVERSITY PROGRAM. If SELLER has operations (production, sales, administrative) located in the United States of America or sells any goods/services to the United States of America which are involved in SELLER’s performance under any AGREEMENT, then, to the extent legally permissible, SELLER is expected to develop strategies aimed at meeting the goals of BUYER's minority and women-owned business development program.
12. SELLER'S INDEMNIFICATION OF BUYER AND INDEMNIFICATION PROCEDURE FOR THIRD PARTY CLAIMS. SELLER will indemnify BUYER, its parent, its affiliates and subsidiaries and their respective agents, officers, directors and employees (“SCENTSIBLE, LLC”) from and against any claims, including third party claims, loss, cost, damage or expense, fines, amounts paid in settlement, and reasonable legal fees and expenses (collectively “CLAIMS”), arising out of or related to any of the following: (i) SELLER’s breach of these TERMS or any AGREEMENT; (ii) the negligence, gross negligence, bad faith, intentional or willful misconduct of SELLER or SELLER’s subcontractors or their respective employees or other representatives; or (iii) bodily injury, death or damage to personal property arising out of or relating to SELLER’s performance under these TERMS or any AGREEMENT. Within sixty (60) calendar days after receipt of notice of the commencement of any third-party legal proceedings against SCENTSIBLE, LLC for which SCENTSIBLE, LLC seeks indemnity in accordance with this Section 12, SCENTSIBLE, LLC will notify SELLER. Upon BUYER’s request, SELLER will assume, at its own expense, the defense of any such third-party legal proceedings with reputable counsel reasonably acceptable to BUYER and is entitled to settle any such third-party legal proceedings with BUYER’s written consent, not to be unreasonable withheld or delayed. BUYER, at SELLER’s cost, will reasonably cooperate with SELLER in the defense of such action as SELLER may reasonably request. SELLER will pay any damages assessed against SCENTSIBLE, LLC.
13. INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION AND INDEMNIFICATION PROCEDURE FOR THIRD PARTY INTELLECTUAL PROPERTY CLAIMS. SELLER will, at its own expense, defend and indemnify SCENTSIBLE, LLC from and against all CLAIMS to the extent arising out of or related to the GOODS/SERVICES or any parts thereof allegedly infringing, violating or misappropriating third party IP RIGHTS. If any GOODS/SERVICES or parts thereof become, or are likely to become, the subject of an IP RIGHTS infringement, violation or misappropriation, then SELLER will, at its own expense, promptly take the following actions in the listed order of priority: (a) secure the rights necessary to continue using the GOODS/SERVICES and any parts thereof; or (b) replace or modify such GOODS/SERVICES or parts thereof to make them non-infringing, such that the replacement or modification will not degrade the performance or quality of the GOODS/SERVICES. BUYER will, at its own expense, defend, and indemnify SELLER from and against all CLAIMS to the extent arising out of or related to the GOODS/SERVICES or any parts thereof allegedly infringing, violating or misappropriating third party IP RIGHTS arising out of or related to specifications provided by BUYER and not offered by SELLER as an option where such infringement would not have arisen without such specifications. Within sixty (60) calendar days after its receipt of notice of the commencement of any third-party legal proceeding, a PARTY seeking indemnification in accordance with this Section 13 (“INJURED PARTY”) will notify the other PARTY (“BREACHING PARTY”). The BREACHING PARTY is relieved from its indemnity obligation to the extent the BREACHING PARTY has suffered actual prejudice resulting from a failure to notify on time. The BREACHING PARTY will assume, at its own expense, the defense of any such third-party legal proceedings with reputable counsel reasonably acceptable to INJURED PARTY and is entitled to settle any such third-party legal proceedings with INJURED PARTY’s written consent, not to be unreasonably withheld or delayed. The INJURED PARTY at the BREACHING PARTY’s cost, will reasonably cooperate with the BREACHING PARTY in the defense of such action as the BREACHING PARTY may reasonably request. The BREACHING PARTY will pay any damages assessed against the INJURED PARTY.
14. OWNERSHIP OF INTELLECTUAL PROPERTY. SELLER retains ownership of any creative idea, design, development, invention, works of authorship, know-how, or work results (“CREATIONS”) and IP RIGHTS owned by the SELLER prior to the EFFECTIVE DATE, and SELLER owns any CREATIONS and IP RIGHTS created by or on behalf of SELLER to the extent not created as a direct result of the SERVICES (collectively, “SELLER’S IP”). SELLER grants BUYER a non-exclusive, royalty-free, worldwide, perpetual, irrevocable, assignable, sub-licensable license under SELLER’S IP to practice in any way to receive the full benefit of the SERVICES and any resulting work product or copy, maintain, support, modify, enhance or further develop SELLER’S IP. SELLER will provide BUYER with a physical embodiment of SELLER’S IP in any form as reasonably requested by BUYER. BUYER retains ownership of CREATIONS and IP RIGHTS owned by the BUYER prior to the EFFECTIVE DATE, and BUYER owns any CREATIONS and IP RIGHTS created by or on behalf of SELLER to the extent created as a direct result of the SERVICES (collectively, “BUYER’S IP”). BUYER’S IP created by SELLER is considered a work made for hire to the extent available under copyright law. To the extent it is not considered work made for hire, SELLER assigns to BUYER royalty-free, worldwide, perpetually, and irrevocably, all rights in BUYER’S IP to the fullest extent permitted by law. To the extent such an assignment is not legally permissible, SELLER grants BUYER an exclusive, royalty-free, worldwide, perpetual, irrevocable, assignable, sub-licensable and unrestricted license to such BUYER’S IP to the fullest extent permitted by law. SELLER will execute any documents that BUYER reasonably determines are necessary to document BUYER’S rights in BUYER’S IP or to secure or perfect any IP RIGHTS relating to BUYER’S IP. BUYER grants SELLER a revocable-at-will, non-exclusive, royalty-free, worldwide license under BUYER’S IP necessary to perform the SERVICES. SELLER will cause its employees or subcontractors’ employees to assign to SELLER any BUYER’S IP created by SELLER and to comply with SELLER’S obligations set forth in this Section 14. To the extent legally permissible, SELLER waives any moral rights in BUYER’S IP, including but not limited to the right to be named as author, the right to modify, the right to prevent mutilation and the right to prevent commercial exploitation. To the extent such waiver is not legally permissible, BUYER will have the irrevocable right to exercise any moral rights in BUYER’S IP on SELLER’S behalf to the fullest extent permitted by law.
15. INSURANCE REQUIREMENTS. SELLER will maintain and cause its subcontractors to maintain at their expense sufficient and customary insurance coverage with generally acceptable underwriters. Such insurance will include SCENTSIBLE, LLC as additional insured in connection with SELLER’s performance under these TERMS or any AGREEMENT to be stated explicitly on the Certificate(s) of Insurance. SELLER hereby irrevocably and unconditionally waives and will cause its insurers to irrevocably and unconditionally waive any rights of subrogation for claims against SCENTSIBLE, LLC, to be documented to BUYER’s satisfaction.
16. ASSIGNMENT. SELLER will not delegate, subcontract, transfer or assign these TERMS or any AGREEMENT or any of its rights or obligations, whether in whole or in part, without the prior written consent of BUYER, not to be unreasonably withheld or delayed. In no case will SELLER delegate, subcontract, transfer or assign any of its obligations to any party that is subject to international sanctions imposed by the UN, EU or US whether by means of a designated list (including OFAC’s SDN list and the BIS lists) or otherwise. BUYER is entitled, without restriction, to delegate, subcontract, transfer or assign any AGREEMENT or any of its rights or obligations, whether in whole or in part, without the prior written consent of SELLER.
17. INDEPENDENT CONTRACTOR STATUS. The PARTIES are independent contractors with respect to each other, and nothing in these TERMS or any AGREEMENT will be construed to place the PARTIES in the relationship of partners, joint ventures, fiduciaries or agents. Neither PARTY is granted any right or any authority to assume or to create an obligation or to bind the other PARTY. SELLER will perform under these TERMS and any AGREEMENT with trained personnel and SELLER acknowledges that BUYER has no labor relationship with, right, power, authority or duty to select, hire, manage, discharge, supervise or direct any of SELLER’s employees, agents, subcontractors or their employees. SELLER will indemnify and defend BUYER against any claims of SELLER’s employees, agents, subcontractors or their employees alleging employment with BUYER. SELLER acknowledges that BUYER may earn a commission or rebate resulting from BUYER negotiating terms with third parties for SELLER’s benefit.
18. PUBLIC DISCLOSURES. Except as required by LAWS or with BUYER’s prior written consent, SELLER (i) will not disclose the existence or the terms and conditions of these TERMS or any AGREEMENT or the existence of a relationship between the PARTIES to any party, and (ii) will not use BUYER’s, its parents’, its affiliates’ or subsidiaries’ corporate names or trademarks.
19. MODIFICATION AND WAIVER. Any amendment, modification, waiver, or discharge of these TERMS or any AGREEMENT is only valid if it is in writing and signed by an authorized representative of the PARTY against which such amendment, modification, waiver, or discharge is sought to be enforced and specifically references this Section. No waiver of any breach, or the failure of a PARTY to enforce any of the terms of these TERMS or any AGREEMENT, will affect that PARTY’s right to enforce the TERMS. Any other modification, amendment or waiver of any provision of these TERMS is null and void.
20. GOVERNING LAW AND CONSTRUCTION. These TERMS and any AGREEMENT are governed by and interpreted for any and all purposes in accordance with the internal laws of the State of Texas which is where the BUYER is located without reference to principles of conflicts of laws and the United Nations Convention on International Sale of Goods has no force or effect on transactions under or relating to these TERMS or any AGREEMENT. The courts sitting in, or having principal jurisdiction in Dallas County, Texas have exclusive jurisdiction of all disputes under these TERMS or any AGREEMENT.
21. SURVIVAL PROVISION. The expiration or termination of these TERMS or any AGREEMENT will not affect the terms of any AGREEMENT that expressly provide that they will survive expiration or termination or which out of necessity must survive expiration or termination.
22. INSPECTION AND AUDIT RIGHTS OF THE BUYER. For a period up to two years after the later of expiration or termination of these TERMS and any AGREEMENT and to the extent legally permissible and upon reasonable notice by BUYER, SELLER will permit BUYER, or a third party reasonably acceptable to the PARTIES, access to any area of SELLER’s facilities, personnel, computer systems and books and records relating to SELLER’s performance under any AGREEMENT to determine SELLER’s compliance with these TERMS and such AGREEMENT.
23. ACCEPTANCE. SELLER REPRESENTS AND WARRANTS THAT (I) THESE TERMS PREVAIL OVER ANY GENERAL TERMS AND CONDITIONS OF TRADE, INCLUDING BUT NOT LIMITED TO SELLER’S GENERAL TERMS AND CONDITIONS AND HAS BEEN REVIEWED AND ACCEPTED BY SELLER AND (II) PERFORMANCE UNDER THESE TERMS OR ANY AGREEMENT INCORPORATING THESE TERMS CONSTITUTES SELLER’S UNCONDITIONAL ACCEPTANCE OF THESE TERMS. ALL AGREEMENTS EXPRESSLY LIMIT ACCEPTANCE TO THE TERMS OF THIS OFFER AND BUYER HEREBY OBJECTS TO ANY DIFFERENT OR ADDITIONAL TERMS CONTAINED IN ANY RESPONSE TO ANY AGREEMENT.