MANDATORY TERMS AND CONDITIONS
Any person or entity ("Vendor") who wants to supply Products or Services (as defined in Section 1) to Michael Stapleton Associates, Ltd. d/b/a MSA Security or its subsidiaries (collectively, "MSA") must accept these Mandatory Vendor Terms and Conditions ("Agreement") without change.
BY ACCEPTING THIS AGREEMENT, YOU (A) ON BEHALF OF YOURSELF AND THE ENTITYTHAT YOU REPRESENT, AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE; (B) CERTIFY THAT YOU ARE AN OFFICER OF VENDOR WHO IS AUTHORIZED TO BIND VENDOR TOTHIS AGREEMENT; AND (C) THAT THESE TERMS AND CONDITIONS SUPERSEDE ANY TERMS AND CONDITIONS PROVIDED BY OR ISSUED BY VENDOR.
Purchase Orders; Pricing and Taxes: This Agreement governs MSA’s purchase of Products orServices from Vendor. "Products" means all goods, including labeling and packaging, provided to MSA.“Services” means the performance of work on behalf of MSA. MSA is not obligated to purchase Products or Services, and Vendor is not obligated to sell Products or Services, until Vendor accepts a purchase order ("PO"). Vendor will not substitute Products or Services, nor combine or consolidate POs without MSA’s consent. Documents that MSA signs acknowledging receipt of Products or Services do not constitute acceptance of the Products or Services. MSA may modify or cancel POs without penalty before Vendor delivers Products or Services to MSA. The PO provides Product or Services prices and payment terms, excluding discounts or rebates. Prices include any commissions and other charges,unless otherwise noted. Except as otherwise provided in this Section, Vendor may charge MSA anyapplicable taxes that Vendor is legally obligated to charge purchasers of the Products or Services, if the tax amounts are stated separately on Vendor's invoice for the Products or Services. Vendor isresponsible for other fees, taxes and duties, including any taxes Vendor may owe on payments Vendorreceives under the Agreement. If Vendor requests (or MSA provides to Vendor) a resale certificate forthe state in which MSA is registered for sales and use taxes, then Vendor will not charge or collect from MSA any taxes covered by such certificate.
Payment Terms; Invoicing: Products or Services fees shall be paid by MSA within thirty (30) days of MSA’s receipt of an undisputed invoice (referencing a valid PO) from Vendor thereof. All payments due hereunder by MSA to Vendor shall be made in U.S. Dollars via check or wire transfer (at MSA’s discretion). In the event MSA disputes in good faith any amount listed and owing in an Vendor invoice, MSA shall pay the remaining undisputed amount of such invoice in accordance with the terms hereof, and the parties shall promptly discuss resolving payment due on any disputed amount.
1. Product Images/Information: Vendor will make available to MSA (including permitting MSA to collect from Vendor's website) all textual materials or metadata requested by MSA for a Product ("Product Information"), including product name, UPC, brand, list price, electronic images, any Product information or warnings required by law to be disclosed in any sale or advertisement of the Product, country of origin. At Vendor's sole discretion, Vendor may choose to provide MSA with Promotional Materials. "Promotional Materials" means any logos, publicity images, and other content or materials Vendor makes available to MSA. Vendor grants MSA a non-exclusive, worldwide, perpetual, irrevocable and royalty-free license to: (a) use, copy and display the Product Information and Promotional Materials on or in connection with any website (or similar ecommerce channel); (b) convert to digital electronic form, excerpt, reformat, adapt or otherwise create derivative works of the Product Information and Promotional Materials; and (c) use all trademarks, service marks, or tradenames included in the Product Information and Promotional Materials.
2. Representations; Warranties: Vendor represents, warrants and covenants that: (a) the Products are genuine and free from defects; (b) all materials and other items incorporated into the Products are new (not refurbished or reconditioned, without MSA’s prior written consent), unless Vendor has received MSA’s prior written consent otherwise; (c) the Product Information and Promotional Materials are accurate and complete, and MSA’s purchase, use, or re-sale of any of the Products or Services or MSA’s exercise of its license rights in this Agreement will not violate any third party's rights; (d) Vendor will comply with all laws and rules relating to the Products, and the Products, Product Information, Promotional Materials and import documentation (if applicable) comply with all applicable laws and rules; (e) the Products may be lawfully marketed, sold and distributed throughout the U.S. without restriction (e.g., no required disclosures, licenses, or registrations) other than any specific restrictions or prohibitions disclosed by Vendor and consented to by MSA in writing; (f) no Product contains ingredients that are regulated by the U.S. Drug Enforcement Administration as a controlled substance or listed chemical; (g) no Products will be provided to MSA that are subject to U.S. Department of Transportation regulations as hazardous materials without MSA’s prior written consent; (h) no Products were produced, manufactured, assembled, or packaged by forced, prison or child labor (defined as age 15 or the minimum working age within the applicable jurisdiction, whichever is older); (i) Vendor possesses clean and clear title to, and has the unencumbered right to sell, each and every one of the Products supplied or to be supplied to MSA; (j) if Vendor is providing Services, Vendor will perform, or will cause to be performed, the Services (1) in a commercially reasonable manner and professional level of service, and (2) in all material respects in accordance with applicable laws and regulations; (k) Vendor has not and shall not, nor has it permitted or shall permit any of its subsidiaries or affiliates, or any of its or their respective directors, officers, managers, employees, independent contractors, representatives or agents (collectively, “Representatives”) to: (1) promise, authorize or make any payment to, or otherwise contribute any item of value to, directly or indirectly, any non-U.S. government official, in each case, in violation of the U.S. Foreign Corrupt Practices Act (“FCPA”) or any other applicable anti-bribery or anti-corruption law; and (l) Vendor is currently in compliance with and shall at all times during the term of this Agreement remain in compliance with the regulations of the Office of Foreign Assets Control (“OFAC”) of the U.S. Department of Treasury, including those named on OFAC’s Specially Designated and Blocked Persons List, and any statute, executive order, including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism, or other governmental action relating thereto.
3. Product Returns; Effect of Remedies; Product Recalls: MSA may return at Vendor's expense any Product that (a) is damaged or defective, (b) does not conform to agreed specifications or to samples, (c) is subject to recall or a claim of infringement of a third party’s rights, (d) was not ordered in the applicable PO, or (e) does not comply with this Agreement. Title and risk of loss for all products returned under this Agreement will pass to Vendor upon delivery by MSA to the carrier. Payment of an invoice does not limit MSA’s remedies. Vendor will provide MSA immediate written notice of any recall. Vendor is responsible for costs MSA incurs in connection with a recall.
4. Shipping: The parties will agree which party is responsible for managing and paying for transportation of Products to MSA. When MSA pays for transportation, Vendor will deliver the Products to the MSA-designated carrier and title and risk of damage or loss for the Products will pass to MSA when Vendor delivers the Products to the carrier. When Vendor pays for transportation, title and risk of damage or loss for the Products will pass to MSA when MSA accepts the Products. If MSA is the importer of any Products, Vendor will prepare and submit all documents required to enter those Products into the United States, and will pay any additional fees or charges due to insufficient documentation. Vendor will be the importer, at its expense, of any Products MSA returns to Vendor to a location outside the United States.
5. Performance of the Services: Vendor will cause its employees and independent contractors providing the Services (“Vendor Personnel”) to cooperate with the employees and independent contractors of MSA. Vendor shall, and shall cause its Representatives to, cooperate with the provision by or on behalf of MSA for the Services hereunder, including providing any information or documentation necessary or appropriate for the provision of the Services. For purposes of this Agreement, a party’s “Representatives” will mean any affiliate of such party and the partners, directors, officers, employees, independent contractors, advisors, agents and representatives of such party and its affiliates (provided, that for purposes of this Agreement, each party shall not be treated as a Representative of the other party).
6. Indemnification: Vendor will defend, indemnify and hold harmless MSA, its subsidiaries, and their respective officers, directors, employees, and agents ("MSA Indemnitee") against any claim that arises, directly or indirectly, from: (a) any death of or injury to any person, damage to any property or any other damage or loss due to any defect in or use of any Product or Vendor’s performances of the Services; (b) any Product recall; (c) any infringement or misappropriation of any proprietary right of a third party arising from Products, Services, Product Information, Promotional Materials, or other content Vendor provides to MSA; (d) Vendor's negligence, strict liability or intentional misconduct; (e) Vendor's breach of this Agreement or any representation or warranty in this Agreement; (f) Vendor's failure to perform Services as set forth in this Agreement; and (g) to state accurate Product descriptions, adequate warnings, or instructions (individually, a "Claim", and collectively, the "Claims"). Vendor will defend, indemnify and hold harmless each MSA Indemnitee against any liability, loss, damage, cost or expense (including reasonable attorneys' fees) incurred by that MSA Indemnitee relating to any Claim, except to the proportional extent the liability is caused by the gross negligence or willful misconduct of that MSA Indemnitee as determined by a final, non-appealable order of a court having jurisdiction. Vendor will not consent to the entry of a judgment or settle a Claim without the MSA Indemnitee's prior written consent, which may not be unreasonably withheld. Vendor will use counsel reasonably satisfactory to the MSA Indemnitee, and the MSA Indemnitee will cooperate in the defense at Vendor's sole expense. If any MSA Indemnitee reasonably determines that any Claim might have an adverse effect, that MSA Indemnitee may take control of the defense at its expense (without limiting Vendor's indemnification obligations). Vendor's obligations under this Section 6 are independent of its other obligations under this Agreement.
7. Limitation of Liability: In no event will MSA be liable for any indirect, incidental, special, consequential, punitive, exemplary or reliance damages (including lost or anticipated revenues or profits) arising out of the Agreement or the provision of the Services based upon any theory of liability, even if MSA is advised of the possibility of such damages. No individual member, officer, official, employee, volunteer, agent or affiliate of MSA shall be personally liable hereunder, and no recourse shall be held against any such party’s assets by reason of a breach of the Agreement by MSA or otherwise.
8. Insurance: Vendor warrants and represents to MSA that it has and will maintain during the term of the Agreement: (i) worker’s compensation coverage (including employment liability insurance), which is sufficient under the laws of the State of New York, covering all persons employed by it in providing the Services; and (ii) commercial general or public liability insurance having a limit of at least $2,000,000 for bodily injury, death and property damage combined per occurrence for any one person and a limit of at least $3,000,000 for injuries in the aggregate for all claims of bodily injury, death and property damage combined.
9. Confidential Information: Vendor will (a) protect MSA’s information that is identified as confidential or that reasonably should be considered confidential; (b) use this information only to fulfill its obligations under this Agreement; and (c) promptly return to MSA or destroy this information when this Agreement terminates. This Section 9 covers all confidential information regardless of when Vendor receives it, including prior to or after the execution or acceptance of this Agreement. Vendor will not use any trademark, service mark, commercial symbol, or other MSA proprietary right; issue press releases or other publicity relating to MSA or this Agreement; or refer to MSA in promotional materials.
10. Independent Contractor: At all times hereunder, Vendor shall be acting as an independent contractor. Nothing contained in the Agreement shall be construed to constitute Vendor as a partner, employee, joint venturer or agent of MSA, nor shall either party hereto have any authority to bind the other party in any respect, it being intended that each party hereto shall remain an independent contractor responsible for its own actions.
11. Termination: Either party may terminate this Agreement with sixty (60) days' prior written notice, subject to Vendor fulfilling all POs it accepts before the effective date of termination. The provisions of this Agreement which by their nature are intended to survive termination of the Agreement (including indemnification, limitation of liability, insurance, and confidentiality) shall survive termination. Any MSA subsidiary may issue a PO under this Agreement, and POs are the separate obligation of the subsidiary that issues the PO. Vendor will not assign this Agreement, or any obligation or right (including any right to payment) in the Agreement, without MSA’s prior written consent.
12. Governing Law; Jurisdiction; Jury Waiver. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, regardless of conflict of laws principles. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY IRREVOCABLY WAIVES THE RIGHT TO A TRIAL BY JURY IN CONNECTION WITH ANY LITIGATION OR OTHER LEGAL PROCEEDING BASED ON, ARISING OUT OF OR RELATING TO THIS AGREEMENT. Any action brought to enforce the terms of this Agreement, and/or any action arising in relation to the Services, whether brought by Vendor and/or MSA shall be brought before the state or federal courts sitting in New York County (or any appellate courts thereof), to which exclusive jurisdiction both parties hereto hereby submit. Each party expressly waives any claim or defenses based on inconvenient venue or forum or lack of personal jurisdiction.
13. Notices: All notices, approvals and consents provided for herein shall be in writing and be given in person, by nationally recognized overnight courier, by U.S. mail or by means of facsimile or email, and shall become effective: (a) on delivery if given in person; (b) on the date of affirmative confirmation of receipt if sent by facsimile or email; (c) one (1) business day after delivery to the overnight service; or (d) three (3) business days after being mailed, with proper postage and documentation, for first-class registered or certified mail, prepaid, in any case, to the address of the party as set below (provided, that except for notices delivered via email, a copy of each notice shall also be sent simultaneously via email to the applicable recipient), as such address may be modified by written notice of such party in accordance with the requirements of this Section 13:
If to the Vendor:
If to MSA:
with a copy (which shall not constitute notice), to each of:
14. Revisions; Continued Use: MSA reserves the right to change any of the terms and conditions contained in this Agreement, including any policies incorporated herein, at any time and in its sole discretion. Any changes will be effective upon the earlier to occur of:
(a) emailing the revised terms, conditions or policies, or notice of such changes, to Vendor at Vendor's e-mail notice address. VENDOR'S CONTINUED ACCEPTANCE OF PURCHASE ORDERS FOLLOWING MSA’S E-MAILING OR POSTING OF ANY REVISED TERMS, CONDITIONS, OR POLICIES, OR ANY NOTICE OF ANY SUCH REVISIONS, WILL CONSTITUTE VENDOR'S ACCEPTANCE OF THE REVISIONS. IF VENDOR DOES NOT AGREE TO ANY CHANGES TO THIS AGREEMENT, VENDOR MUST NOT CONTINUE TO ACCEPT PURCHASE ORDERS, AND MUST GIVE MSA NOTICE IN ACCORDANCE WITH SECTION 13 ABOVE.
15. Intellectual Property: Except as expressly set forth in this Section 15, MSA does not grant to Vendor any license, right, title or interest in, to, under or with respect to any trade secrets, designs, patents, trademarks, copyrights, inventions, data or any intellectual property held by MSA ("MSA Intellectual Property"). Upon MSA’s request, Vendor will provide MSA with all information and documentation that is known to Vendor relating to MSA Intellectual Property.
16. Remedies: Subject to Section 6, the rights and remedies provided in this Agreement and all other rights and remedies available to either party at law or in equity are cumulative and not exclusive of any other right or remedy now or hereafter available at law or in equity. Without limiting the foregoing, Vendor acknowledges that if Vendor breaches its obligations set forth in this Agreement, MSA will suffer irreparable harm for which monetary damages would be inadequate. MSA shall be entitled to temporary and/or permanent restraints or other injunctive or equitable remedies to prevent further violation of this Agreement, without the without the necessity of proving actual damages or that money damages would be insufficient and without the necessity of posting bond or other security.
17. Severability: In the event that any provision of this Agreement or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto. The parties further agree to replace such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.
18. Conflicts of Interest: Vendor represents and warrants that Vendor shall promptly disclose to MSA any actual or potential conflict of interest involving MSA upon Vendor becoming aware of such conflict or potential conflict. For purposes of this requirement, a conflict of interest shall exist when Vendor engages in, or plans to engage in, any activities, associations, or interests that conflict with, or create an appearance of a conflict with, Vendor’s obligations under the terms of this Agreement.
19. Requirements for Federal Subcontractors: Vendor shall comply with all Federal requirements applicable to Federal subcontractors, including without limitation those requirements relating to Federal Acquisition Regulation (FAR) flow downs as codified at Title 48, Chapter 1 of the Code of Federal Regulations (CFR); equal employment opportunity; minority business subcontracting; small business subcontracting; labor surplus area subcontracting; and clean air and water. At MSA’s request, Vendor shall execute and shall be bound by any certifications or agreements incorporating such requirements in forms approved by MSA.
20. Anti-Bribery; Anti-Corruption: Vendor agrees that it, and each of its direct or indirect owners or other financial interest holders (“Owners”), directors, employees, and every person working for it or on its behalf (collectively, “Representatives”) will not violate the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act 2010, or any other applicable laws and regulations prohibiting public or commercial bribery, extortion, kickbacks, or other unlawful of improper means of conducting business. Vendor agrees that, should it or any of its Owners or Representatives learn of or suspect any act or circumstance, in connection with performance of this Agreement, that may constitute a violation of such laws, it will promptly advise a member of MSA’s Legal Department in writing of that knowledge or suspicion.
21. Assignment: Neither this Agreement nor any of the rights hereunder may be transferred or assigned by either party hereto without the prior written consent of the other party. A sale, merger or other transaction in which all or substantially all of the equity or assets of MSA are transferred to another party shall not be deemed an assignment hereunder and shall not require any consent from Vendor. The Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and/or permitted assigns.
22. Construction: Vendor acknowledges it has reviewed this Agreement, and any exhibits that may be incorporated herein, has had an opportunity to seek the advice of counsel, and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of these documents or any amendments thereto.
23. Entire Agreement: This Agreement and any other exhibits incorporated herein (i) constitute the entire agreement between the parties with respect to the subject matter hereof, superseding all prior understandings, whether oral or written, including any proposals or responses thereto; and (ii) can be amended only by an instrument in writing signed by MSA. The preprinted terms and conditions appearing on or attached to any purchase order or other written document of Vendor are for the administrative convenience of Vendor and are not a part of this Agreement, and no action, including, without limitation, the issuing of any invoice by Vendor based on the Purchase Order, will bind MSA with respect to any such term and condition.
MSA is licensed by the New York Department of State, Division of Licensing Services.