1. ACCEPTANCE: These terms and conditions and the documents referred to herein govern all Purchase Orders ("Orders") for goods, materials and products (“Products”) or services (“Services”) issued by Tap Machine, Inc. (“TMI”) to the Supplier identified on each Order. Fulfillment of any part of an Order, or any other conduct by Supplier which recognizes the existence of a contract, shall constitute acceptance by Supplier of such Order and all of the included terms and conditions (the "Contract Terms"). Acceptance is limited to the Contract Terms of this Order, and TMI objects to any terms proposed in Supplier's proposal, counter-proposal, sales note, acknowledgment or other form of acceptance of the Order which add to, modify, or conflict with the Contract Terms. No local, general or trade custom or usage shall be deemed to affect this Order unless expressly agreed to in writing. Any such proposed terms shall be void and the Contract Terms constitute the complete statement of the terms and conditions between Supplier and TMI. The Contract Terms may be modified only by a written instrument executed by Supplier and TMI. If this Order has been issued by TMI in response to Supplier's offer and if any of the Contract Terms add to, modify or conflict with any terms of Supplier's offer, then the issuance of this Order by TMI shall constitute an acceptance of Supplier's offer subject to the express condition that Supplier assents to the Contract Terms. Supplier shall be deemed to have so assented and acknowledged unless Supplier notifies TMI to the contrary in a writing signed by Supplier's authorized representative within five business (5) days of receipt of this Order. This Order does not create an agency, partnership, franchise or joint venture. TMI reserves the right to engage an alternate supplier for the Products or Services at any time for any reason.
2. TERMINATION: TMI may terminate for convenience at any time by written notice any Order or its obligation to purchase any Product or Services from Supplier. In the event of termination, Supplier must stop all work relating to the Order immediately. If an Order is terminated for convenience, then the termination date shall be not less than five business (5) days from the date of notice, unless otherwise mutually agreed to by the parties. TMI shall pay for any Product or Service received prior to the effective date of termination on a pro rata basis according to the portion of work performed prior to termination. Unless TMI has requested and received a refund in respect of any undelivered Products or terminated Services, it shall be entitled to the delivery of all Products and completion of all Services for which it has paid prior to the effective date of the termination. In addition to any other remedy provided at law or equity, either party shall have the right to immediately terminate or cancel an Order, and any obligation to purchase, sell or provide a Product or Service, in the event the other party (a) breaches or fails to comply with any condition of the Order or any related agreement, and such failure is not remedied within thirty (30) days after written notice thereof has been given to such other party; (b) becomes insolvent; or (c) becomes subject to any bankruptcy proceeding. Further, TMI shall have the right to immediately terminate an Order and its obligation to purchase a Product or Service in the event that Supplier makes an unauthorized use of TMI’s trademarks, patents, copyrights or any other TMI intellectual property.
3. CONFIDENTIALITY: Supplier shall hold all TMI Confidential Information which has been provided in strict confidence, shall not use in any way or disclose any Confidential Information directly or indirectly to any other party and such information shall be used by Supplier only in those facilities where the Products are manufactured or Services are rendered and only in connection with the manufacture of the Products or provision of Services. Confidential Information shall mean secret or proprietary information of, or data maintained as confidential by TMI. All records, files, documents, information, data and other similar items relating to TMI’s business operations, regardless of who prepared them, shall remain the exclusive property of TMI.
4. WARRANTY: Supplier warrants that all Products and Services supplied to TMI by Supplier shall conform to the specifications, drawings or other description upon which this Order is based, shall be fit and sufficient for the purpose intended, merchantable, of good material and workmanship and free from defects. Inspection, testing, acceptance or use of the Products by TMI shall not affect Supplier's obligations under this warranty, and such warranty shall survive inspection, testing, acceptance and use. Supplier agrees to replace or correct promptly defects of any Products or Services not conforming to the foregoing warranty without expense to TMI. In the event of Supplier's failure to correct defects in or replace non-conforming Products or Services promptly, TMI may, after reasonable notice to Supplier, make such corrections or effect cover at Supplier's expense.
5. PRICE: This Order must not be filled at a price higher than shown on the Order. All monetary amounts are in U.S. dollars unless otherwise specified. Any change must be authorized on a Change Order written by TMI. If no price is shown, Supplier must notify TMI of the price and TMI’s acceptance must be obtained in writing before filling the Order. The price shall not in any event be higher than the lowest price Supplier provides to any of Supplier's other customers ordering similar quantities. Delivery of Products shall be f.o.b. point specified by TMI on the Order. Supplier will not charge for boxing, packing, crating or other charges. Supplier’s prices include and Supplier shall be responsible for paying all costs, charges and expenses, including without limitation all shipping, transportation, logistical and customs charges, incurred prior to delivering the Products to the f.o.b. point specified.
6. TAXES: TMI will not be liable for any taxes with respect to an Order, except for documented sales, use, excise, ad valorem, value added or consumption taxes imposed by any governmental authority for the purchase of the Products or Services Supplier provides to TMI which Supplier is required by law to collect from TMI. TMI shall not be liable for any taxes if TMI has provided a tax exemption certificate. TMI will be entitled to deduct withholding taxes required by law from the amount of such fees. Supplier shall act as an independent contractor in the performance of its services hereunder.
7. INVOICES: Supplier agrees to issue invoices referencing the Order number, description and quantity of items, unit prices, total due and ship to address. Taxes, if any, that are to be collected by Supplier shall be stated separately and shall be remitted by Supplier to the appropriate taxing authority. All invoices shall be mailed to TMI at 20 Cedar Street, Suite 105, New Rochelle, New York 10801, USA.
8. FORCE MAJEURE: Neither TMI nor Supplier shall be liable to the other for any loss, injury, delay or damage whatsoever suffered or incurred by the other party due to causes beyond such party’s control, including but not limited to, acts of God, strikes or other labor disturbances or third parties, war, sabotage, acts of terrorism and any other cause or causes, whether similar or dissimilar to those herein specified, which cannot be controlled by such party. If any party is prevented from performing any of its obligations hereunder by the occurrence of such events, then the affected party shall be excused from performance for so long as such occurrence exists.
9. INTELLECTUAL PROPERTY: TMI is the owner and/or exclusive licensee of certain trademarks (“Marks”) related to its business. Each and every part of the Marks (including the design and appearance of any Products which bear any of the Marks) are, and shall remain, the sole property of TMI (or the owner thereof if such Marks are licensed to TMI). Supplier, for itself and its affiliates, agrees that it will not infringe or misuse the Marks; contest or attack TMI’s rights in the Marks; or file any application for any trademark, or obtain or attempt to obtain ownership of any trademark, in any country of the world, which refers to any of the Marks. Supplier’s right to manufacture any Products bearing any of the Marks shall extend only as set forth in the Order and is subject to the Contract Terms. Supplier may not sell any Products or other goods bearing any of the Marks to any person or entity except TMI. TMI may terminate Supplier’s right to manufacture any Products bearing any of the Marks at any time for any reason. Supplier will inform TMI if any Products or its components are subject to patent protection by Supplier or any third party, and shall release, indemnify and hold TMI harmless for any claims arising from Supplier’s failure to provide such notice. Supplier agrees that all qualifying works created by Supplier on behalf of TMI (the "Work"), if any, shall be considered to be a work made for hire. Supplier acknowledges and agrees that the Work (and all rights therein, including, without limitation, copyright) shall be the sole and exclusive property of TMI. If for any reason the Work would not be considered a work made for hire, Supplier does hereby sell, assign and transfer to TMI, its successors and assigns, the entire right, title and interest in and to the copyright in the Work and all associated proprietary rights. Supplier agrees to execute all papers and to perform such other acts as necessary to secure for TMI the rights described herein. Supplier shall not contest, dispute or otherwise object to TMI’s rights described herein. Except for any materials contributed to the Work by TMI, Supplier warrants that it is the sole developer of the Work and has full power to make this agreement, and that the Work or any Product or other goods or services does not infringe any patent, trademark, copyright or violate any other intellectual or proprietary rights of third parties.
10. INDEMNITY: Supplier hereby agrees to release, defend, indemnify and hold TMI, Sidney Frank Importing Co., Inc., Mast- Jägermeister (USA), Inc., Mast-Jägermeister SE, and/or any of their related companies and business partners, and each of their owners, officers, directors, employees and/or agents harmless against any and all legitimate bona fide claims, demands, causes of action and judgments (including reasonable attorney’s fees, expert fees and court costs) of any third party arising from or relating to (i) a breach of any representation or warranty made by Supplier, (ii) infringement by Supplier of a patent, copyright, trademark, trade secret or other intellectual or proprietary right of a third party, (iii) personal injury, death, property damage or other loss sustained by such third party relating to or arising from any Product produced by or Service provided by Supplier, (iv) an alleged or actual design defect, production defect or other defect, (v) the negligence or willful misconduct of Supplier, or (vi) failure of Supplier to comply with any applicable law in any jurisdiction.
11. INSURANCE/INDEPENDENT SUPPLIERS: Supplier shall furnish TMI with certificates of insurance from companies meeting an A.M. Best rating of at least A XV showing that Supplier is covered by commercial general liability insurance and products liability insurance with limits of not less than $2,000,000 per occurrence for bodily injury and $1,000,000 per occurrence for property damage, as well as suitable workers compensation insurance. These insurance policies shall name TMI as an additional insured, be primary and non-contributory to any insurance available or maintained by TMI. Additional insurance requirements may apply as determined by TMI. No exceptions to these coverages may be made unless approved in writing by TMI. Failure to provide such a certificate shall not constitute a waiver of this requirement.
12. LIMITATION OF LIABILITY: IN NO EVENT WILL TMI BE LIABLE TO SUPPLIER OR ANY THIRD PARTY, IN CONTRACT, TORT OR OTHERWISE, FOR ANY LOSS OF PROFITS OR BUSINESS, OR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, ARISING FROM OR AS A RESULT OF THESE CONTRACT TERMS, ANY ORDER OR ANY AGREEMENT BETWEEN THE PARTIES RELATING TO THE PRODUCTS, SERVICES OR DELIVERABLES SUPPLIER PROVIDES.
13. CHANGES: All Products and Services furnished pursuant to this Order shall strictly conform to the specifications, directions, instructions, designs, descriptions and warranties set forth herein. TMI reserves the right to make changes in drawings, designs, specifications, scope of work to be performed, time and place of delivery and method of transportation. If such change is to be made, it will be evidenced in writing by TMI in the form of a revised Order (“Change Order”). Supplier may not make any changes without TMI's written Change Order acknowledging the change.
14. PACKAGING: Unless otherwise specified, the Products Supplier sells to TMI shall be (a) packed, marked and otherwise prepared for shipment in a manner which is in accordance with good commercial practice, (b) acceptable to common carriers for shipment at the lowest rate for the particular Products and in accordance with applicable regulations, and (c) adequate to insure safe arrival at the named destination. Supplier agrees to mark all containers with necessary lifting, handling, and shipping information and also order numbers, date or dates. A packing list must be enclosed in all shipments showing the Order number and exact quantity and description of the Products shipped.
15. RISK OF LOSS: Regardless of the method of shipment used, Supplier agrees to deliver all Products specified on the Order to the location(s) specified at Supplier's own risk. Supplier shall bear the risk of loss, destruction or damage until the items are delivered to the f.o.b. point specified by TMI, except as provided in Section 17 hereof.
16. DELIVERY: Time is of the essence. Supplier agrees to comply with TMI's shipping and delivery schedules without delay. The Date Required set forth on the Order is the latest date on which Supplier will deliver the Products to the f.o.b. point specified or complete and deliver the Services to TMI. No partial shipments, changes or substitutions in specifications may be made without TMI's prior written consent. TMI's acceptance of late shipments or partial shipments shall not constitute a waiver of any of TMI's rights to collect damages for Products not delivered or for late delivery. Supplier shall report to TMI any delays in a schedule immediately as they become known to Supplier. TMI reserves the right to cancel this Order and effect cover if Supplier cannot comply with the schedule(s) indicated on this Order. If dates are not specified on this Order, Supplier shall procure materials, fabricate, assemble and ship goods or provide services only as authorized by shipment releases TMI issues to Supplier. TMI may from time to time, and with reasonable notice, suspend schedules specified in the Order or such shipment releases.
17. INSPECTION/TESTING/REJECTION: Payment by TMI for the Products or Services delivered hereunder shall not constitute TMI's acceptance. TMI retains the right to inspect the Products or Services and to reject any or all of the Products or Services which are in TMI's judgment defective. Products rejected by TMI or supplied in excess of quantities called for herein may be returned to Supplier at Supplier's expense. TMI may charge Supplier all expenses of unpacking, examining, repacking, and reshipping such Products. In the event TMI receive Products whose defects is not apparent on examination, TMI reserves the right to require the replacement, as well as payment of any resulting damages.
18. ASSIGNMENTS: Supplier may not assign, subcontract or transfer this Order without TMI's prior written approval. All claims for monies due or to become due from TMI shall be subject to deduction by TMI for any setoff or counterclaim arising out of this or any other Orders with Supplier whether such setoff or counterclaim arise before or after such permitted assignment or subcontract by Supplier.
19. PREMIUM TRANSPORTATION: If it becomes necessary for Supplier to ship by a more expensive mode than specified on the face of this Order in order to meet a schedule, Supplier shall pay any resulting premium transportation cost unless Supplier can establish to TMI's satisfaction that the necessity for the change in routing is occasioned by force majeure events.
20. EXPORT/IMPORT: Any export credits belong to TMI, and Supplier shall furnish all documents required for international shipments, and upon request, all documents required by TMI to obtain export credits and customs drawback and remission. Supplier shall include a priced invoice with the master packing slip for international shipments. Upon TMI's request, Supplier shall furnish certificates that identify the country of origin of the materials used in the Products TMI purchase from Supplier and the value added thereto in each country.
21. COMPLIANCE WITH LAWS. Supplier warrants that it holds all permits, licenses and other authorizations in compliance with and shall abide by all applicable laws and regulations of the United States of America and the country of its domicile. Supplier warrants that all Products and Services comply with all laws, regulations, orders and other requirements applicable in any jurisdiction: (a) in which any such Products are manufactured; (b) through or to which any such Products are transported or delivered; and (c) in which any such Services are provided. Supplier warrants that all Products and Services comply with all laws, regulations, orders or requirements of the United States and any other applicable jurisdiction (including individual states and local requirements) that apply to any such Products and Services. Supplier further warrants that all Products and substances contained therein comply with all hazardous substance and consumer product health and safety laws, regulations and requirements of the United States and any other applicable jurisdiction, including, but not limited to all U.S. Food and Drug Administration, U.S. Consumer Products Safety Commission and other U.S. federal and individual state standards. Supplier warrants that there has been no intentional addition of any toxic materials during the manufacturing process or otherwise to any materials or Products that Supplier sells to TMI.
Supplier will provide Material Safety Data Sheets as required by TMI.
22. REMEDIES: TMI's remedies shall be cumulative and shall include any remedies allowed by law. Waiver of any breach by TMI shall not constitute TMI's waiver of any other breach of the same or any other provision. Acceptance of any items or payments therefore shall not waive any breach.
23. GOVERNING LAW/SUBMISSION TO JURISDICTION: This Order and all relations between the parties shall be governed by, and construed in accordance with, the laws of the State of New York, United States of America. Supplier consents to the exclusive jurisdiction of the U.S. District Court for the Southern District of New York and of any of the courts of the State of New York in any dispute arising between the parties and submits to the personal jurisdiction of such courts. All documents exchanged between the parties, shall be in English.
24. ENTIRE AGREEMENT: This Order shall constitute the entire agreement between Supplier and TMI, and shall incorporate by reference the Corporate Compliance Guidelines letter between the parties (if any). In the event any of the terms and provisions of this Order are in violation of, or prohibited by, any applicable law or regulation, such terms and provisions shall be deemed as amended or deleted to conform to such law or regulation without invalidating or amending or deleting any of the other terms or conditions of this Order.