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TERMS AND CONDITIONS FOR SEATTLE TIMES PURCHASESThese terms and conditions apply unless otherwise agreed to in writing by both parties. Definitions. Whenever used in this Order, the terms used shall be defined as follows: (a) "Buyer" or "Seattle Times" means the Seattle Times Company and/or its affiliates, (b) "Supplier", "Seller" or "Vendor" shall mean the individual, partnership, corporation, party or any other entity performing as Seller, (c) "Goods" means all goods, services, materials, products, equipment, information, drawings, documents or other items provided or to be provided under this Order, (d) "Specified" means appearing on or incorporated in this Order, (e) "Order" or "Agreement" means the purchase of specified Goods or agreement to perform services placed with Seller by an authorized agent of Buyer as represented in this document. Acknowledgement. Seller shall be deemed to have agreed to all
of the provisions of this Order upon the first of the following to occur:
(a) Seller acknowledges this order by any commercially acceptable means,
or (b) Seller ships Goods to Buyer in accordance with this Order, or
(c) Seller begins performance of service. Buyer may, at any time prior
to such occurrence, cancel this Order without any liability or obligation
of, or cost to, Buyer. Price and Payment. Payment of the specified prices shall constitute full compensation for the goods and satisfactory performance of all of Seller's obligations under this Order. Seller must reference the Purchase Order number and Seller's Tax Identification Number on all invoices. Buyer may, at its discretion, take all early payment discounts offered by Seller. The date for determination of early payment, or for other payment terms shall be the later of (a) the date Buyer receives a correct, undisputed invoice, or (b) the date Buyer accepts the Goods, with all required documentation, at the specified Ship To address. Delivery/Acceptance. Time is of the essence. Seller shall furnish sufficient labor and management forces, plant, and equipment and shall work such hours as may be required to assure timely delivery. Seller shall properly package Goods for protection against damage or deterioration that may result from shipment, storage, handling or other such cause. Unless otherwise agreed, shipments under this Order shall be F.O.B. Destination as defined in Uniform Commercial Code paragraph 2-319(1)b and shipped at Seller's risk and expense. Title to Goods shall pass to Buyer upon unloading at destination, subject to Buyer's right of inspection, test, approval, and acceptance within a reasonable time thereafter. Buyer may inspect Goods or materials in Seller's plant during production, when made to special or particular specifications, without waiving its right to subsequent rejection for undiscovered or latent defects. Buyer may reject and return at Seller's risk and expense any portion of a shipment that is defective or fails to conform to specifications without invalidating the remainder of the order. Buyer's payment of any bill before actual inspection and acceptance of Materials shall not waive Buyer's rights hereunder. Cancellation/Termination. Buyer reserves the right at any time and from time to time, with or without cause, to terminate all or any part of the undelivered or unfinished portion of the Order by notice to Seller. Buyer's responsibility hereunder shall be limited to payment for only services performed prior to the effective date of termination. Payment for any direct costs associated with work performed must be negotiated at time of termination. Under no circumstances shall Seller be entitled to payment for anticipated profits, unabsorbed overhead, or interest on borrowing by reason of such termination. In no event shall Buyer be liable for any consequential, special, incidental or indirect damages, including without limitation lost profits, under these terms. Entire Agreement. This Order constitutes the sole and only agreement between the parties and supersedes any prior understandings, written or oral, between the parties with respect to the products, materials, or equipment provided or services rendered. No modification, alteration or waiver of this Order or any provision hereof shall be effective unless in writing and signed by both parties. No course of prior dealings, no usage of trade, and no course of performance shall be used to modify, supplement or explain any terms used in this agreement. If this Order is placed in conjunction with a negotiated contract signed by both parties, the terms and conditions of the negotiated Agreement shall apply. Warranties. Seller expressly warrants that all articles, materials, goods and services delivered hereunder (a) will conform to the applicable drawings, specifications, samples or other descriptions given in all respects, (b) will be of good quality material and workmanship, (c) will be merchantable and will meet good industry standards and practices, (d) will be free from defects, (3) will comply with all applicable statutes, rules, ordinances, codes and regulations, and (f) will be free and clear of any and all claims, liens, and encumbrances whatsoever. These warranties shall survive any inspection, delivery, acceptance, or payment by the Seattle Times. All of Seller's warranties set forth herein and in any order shall be enforceable by the Seattle Times, the Seattle Times' customers and any subsequent owner or operator of the goods purchase by the Seattle Times. Any inspection or acceptance of such goods by the Seattle Times shall not be deemed to alter, waive, extinguish or otherwise affect the obligation of Seller or the rights of the Seattle Times, its customers or subsequent owners or operators under these warranties. Indemnification. (1) Seller will indemnify, hold harmless and defend Buyer from all liability for loss, damage, expenses (including legal expenses), or injury to person or property in any manner arising out of or incident to the performance of this Order, the goods or services provided herein, or any other acts or omission of Seller, including without limitation claims related to or arising from patent, copyright, trade secret or trademark infringement or misappropriation. (2) If Seller or any of its subcontractors or suppliers performs any activities or uses Buyer's equipment or materials on premises owned, leased, possessed or controlled by Buyer, or at any location specified under this Order, Seller shall (a) take all necessary precautions to prevent bodily injury and property damage in connection with such activities; (b) attest and provide proof that Seller's agent performing activity has met all safety and training required by law and is qualified to use tools, materials or equipment necessary to perform activity, and agree such person will comply will all rules, regulations and code of conduct of such premises (c) release, defend, indemnify and hold harmless Buyer from all claims, losses, liability, damages, costs and expenses (including attorney's fees) that may arise out of or incident to breach of any of Seller's obligations or warranties hereunder, or on account of personal injury or death of any person including employees of both Buyer and Seller, property damage, or any actual or alleged violation of law or infringement of patent rights resulting directly or indirectly from Seller's performance hereunder; (d) Seller shall procure and maintain at its expense during the term hereof, policies of insurance of the types and in amounts no less than the minimum coverage specified below, with insurance companies, and upon terms satisfactory to Buyer. Original certificates of issuance of each and every such policy shall be delivered to the Seattle Times upon execution of this Order and shall be updated to Buyer for changes and renewals during the term of this Order. Each such insurance policy shall name Buyer as an additional insured; this requirement is waived for Workers' Compensation insurance. Such insurance shall include coverage for the contractual liabilities assumed by the Seller. Such insurance shall be considered primary of any similar insurance carried by the Indemnitees. Minimum coverage requirements shall be: Comprehensive General Liability (including contractual and products' liability) Combined Single Limit of $1,000,000; Workers' Compensation and Employers' Liability: a. Workers' Compensation at statutory limits, b. Employer's Overhead Liability limit of $1,000,000; Automobile Liability, Combined single limit of $1,000,000. Certificates of Insurance shall not be cancelable without thirty (30) days' prior written notice to Buyer. Upon request, Seller shall furnish complete sets of its insurance policies to Buyer for review. (3) Seller shall pay for any royalties, license fees and patent or invention rights or copyrights or trade and service marks and defend and indemnify Buyer for all lawsuits or claims for the infringement of any patent or invention rights or copyrights or trade or service marks involved in the products, materials, or equipment provided or services rendered pursuant to this Agreement. Seller shall hold harmless and save Seattle Times and its affiliates, officers, agents, and employees from liability of any kind, including costs and expenses for, or on account of any patented or unpatented invention, process, article or appliance furnished and/or used in the performance of this Order. Severability. In case one or more of the provisions contained in Order shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. Independent Contractor. Seller will, at all times during the performance of this Order and in connection with any services rendered by Seller to Buyer, be considered an independent contractor. No employer-employee relationship is created by the Order or by Seller's service to Buyer. Buyer is not obligated to provide Workers' Compensation insurance covering Seller's personnel or any other employee benefits. At no time shall Seller represent itself to be an agent or representative of Buyer. Confidentiality. Seller shall not at any time, except as necessary in the performance of this Order or as authorized in writing by Buyer, supply, disclose, or otherwise permit access to any information concerning or in any way related to Buyer's information or other matter pertaining the Buyer's business which Seller may in any way acquire by reason of performance of this Order. Force Majeure. Neither party shall be liable or responsible to the other for any loss or damage or for any delays or failure to perform due to causes beyond its reasonable control, including, but not limited to, acts of God, employee strikes, epidemics, war, riots, earthquakes, flood, fire, sabotage or any other circumstances of like character. Taxes. Unless otherwise specified, Seller is responsible for taxes including but not limited to those measured by or upon and, its gross or net income, franchise, privilege, excise, property or ad valorem. Governing Law and Venue. This Agreement shall be governed by and construed under and in accordance with the laws of the State of Washington, and all obligations of the parties created hereunder are performable in King County, Washington. Venue for any dispute arising out of this Agreement or the subject matter thereof, or related directly or indirectly to the foregoing, shall be in King County, State of Washington. Costs and Attorneys' Fees. If any litigation is brought to enforce, or arises out of, this Agreement or any term, clause, or provision thereof, the prevailing party shall be awarded its reasonable attorneys' fees together with expenses and costs incurred with such litigation, including necessary fees, costs, and expenses for services rendered, as well as subsequent to judgment in obtaining execution thereof. |
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