The Purchase Order (PO") appearing on the face or first page hereof, together with these Terms and Conditions herein ("Terms and Conditions"), constitutes an offer by John Paul Mitchell Systems ("Company ") to purchase from the vendor identified thereon ("Vendor"). Vendor shall acknowledge in writing acceptance of Company's PO within forty-eight (48) hours of receipt of the PO. If Vendor fails to acknowledge acceptance or reject the PO within forty-eight (48) hours of receipt, the PO shall be deemed accepted by Vendor. Vendor's acknowledgment shall constitute acceptance by Vendor in full of the PO, including that all goods or services ordered by Company pursuant to the PO will be scheduled for delivery in accordance with the dates specified by Company covered by this PO, and all of its Terms and Conditions. Unless otherwise provided herein, it is understood and agreed that the written acceptance by Vendor of this PO, or, in the absence of such written acceptance, Vendor's deemed acceptance as provided herein, or shipment or delivery of any portion of the PO or performance of any services requested covered by this PO, shall also constitute acceptance in full by Vendor of this PO and all of its Terms and Conditions, and that such acceptance is expressly limited to such Terms and Conditions. No waiver, alteration or modification of any of the Terms and Conditions shall be binding on Company, and is expressly rejected by Company, unless made in writing and agreed to in writing by Company's Vice President of Procurement ("Authorized Signatory").
Company will not accept or be held responsible for goods or services delivered or performed unless they have been ordered by this PO. If Vendor has any objections to the PO, they must be raised by Vendor within forty-eight (48) hours of receipt of the PO. No modification, deviation, addition or deletion of any requirement or substitution of goods or services may be made, nor will any charges for quantity in excess of original PO or additional services be allowed unless authorized in writing by Company's Authorized Signatory by change order and a change in price is agreed upon, in writing.
Any reference covered by this PO to Vendor's quotation does not imply acceptance of any terms and conditions in Vendor's quotation. Any terms and conditions in Vendor's quotation which are in conflict or inconsistent with the Terms and Conditions covered by this PO are expressly rejected and excluded.
Company's net cost for each item listed shall not exceed that appearing opposite each item listed covered by this PO. Vendor warrants that all goods or services are sold to Company at prices no less favorable than the lowest prices currently offered by Vendor for such comparable goods or services to any third party. In the event Vendor agrees to sell comparable goods or services to a third party on pricing and/or discount terms more favorable than those offered to Company during the term of the PO, the same pricing and/or discount terms shall apply to all comparable goods or services purchased by Company and Vendor agrees to reduce the prices hereof accordingly.
Time is of the essence in the performance of this PO, and all deliveries shall be made in strict accordance with the shipping schedules set forth covered by this PO. Vendor shall not increase the quantities of the ordered goods, and shall not ship partial orders, without Company's prior written consent on a case-by-case basis. Shipments in excess of those authorized may be returned to Vendor and Vendor shall pay Company for all expenses incurred in conjunction with such shipments, including but not limited to packing, handling, sorting, and transportation expenses. Company may, from time to time, change shipping schedules, place of delivery, and/or method of shipment covered by this PO or contained in such written instructions, or direct temporary suspension of such scheduled shipment, without cost, penalty or liability to Company. Delivery in whole or in part shall not be made more than three (3) business days prior to the agreed delivery date or dates unless otherwise agreed to by Company. For early deliveries, Company reserves the right to delay payment of the associated invoice or to return the goods at Vendor's sole risk and expense. Unless otherwise covered by this PO, all shipments of goods shall be Ex Works place of Vendor using such carrier(s) as Company may select. Title to goods shall at all times be vested in Company. All shipments shall be accompanied by a detailed packing list that references the Company batch number and the item number for the goods, the PO number associated with the shipment, and the quantity in each shipment covered by the packing list.
Vendor must advise Company immediately upon learning of any shipment delays. Company may cancel all or a portion of the delayed shipments without penalty at any time prior to the date of the delayed shipment, and Vendor shall immediately return any deposit paid for the canceled goods or services. In such event, Company may purchase the goods or services elsewhere and Vendor agrees to reimburse Company's cost in excess of those established herein necessitated by so doing.
Vendor shall provide invoices to Company electronically, and shall include a reference on the invoice to the associated PO. Vendor shall provide separate invoices for each Company PO, and the prices for the goods shown on the Vendor invoice shall match the prices indicated on the associated Company PO. No term or condition on any Vendor invoice inconsistent with the Terms and Conditions covered by this PO shall be binding on Company.
All goods shall be subject to inspection count and testing upon receipt by Company at its warehouse or other place of delivery, notwithstanding any prior inspection or prior payment by Company. In the event any goods are defective in material or workmanship, or otherwise fail to meet the specifications or warranties on this PO, Company shall have the right to reject the goods. Rejected goods will be held for Vendor's instructions at Vendor's sole risk or returned to Vendor at Vendor's sole risk and expense for credit or replacement. At Company's option, Vendor shall either (i) credit Company's account and/or refund to Company the purchase price of any such rejected goods or (ii) promptly replace such rejected goods with non-defective, conforming goods. Company's inventory count will be accepted as final and conclusive on all shipments and Vendor shall promptly credit Company's account and/or refund to Company the purchase price of any shortages or, at Company's request, promptly complete the shipment by delivery of additional goods.
Vendor warrants that the goods covered by this PO (and their sale or use, alone or in combination, according to the specifications or Vendor's specifications or recommendations, if any) will not infringe any United States or foreign patent, trademark, trade dress, design or copyright or other intellectual property and agrees to defend, at Vendor's own and sole expense, indemnify and hold harmless Company, and any person or entity selling or using any of the goods purchased by Company, against all claims, judgments, decrees, costs and expenses resulting from any alleged infringement. In addition to any indemnification as provided hereunder, if by virtue of a patent, trademark, trade dress, design, or copyright, or other intellectual property right infringement action an injunction is issued against Company which prohibits or limits the use of any goods or services procured hereunder, Vendor shall either, at Company's option: (i) supply Company non-infringing replacement goods or services of a similar kind and quality; (ii) replace the goods or services with goods or services which are substantially similar in functionality and performance, or (iii) refund Company the amounts paid for the affected goods or services. All of the foregoing shall be in addition to and not in lieu of any claim for damages that Company may have.
Vendor represents and warrants that the goods and services covered by this PO: (a) will conform to the specifications, formulas, drawings, samples, requirements or other description or requirements furnished or specified by Company; (b) will be free from defects in material and workmanship; (c) will be merchantable and will be fit for the particular purpose intended; and (d) will be free from defects or deficiencies of any kind. Any defects or deficiencies that are discovered as a result of normal use or operation of the goods within twelve (12) months of the date of actual receipt by Company at Company's designated location of the goods will either be replaced or repaired (at Company's sole discretion), at no charge to Company. Vendor further represents and warrants that with regard to all goods furnished to Company covered by this PO, upon receipt by Company of such goods, Company will acquire good and marketable title thereto, free and clear of all liens and encumbrances. In the event that Vendor is acting as a reseller of completed goods, Vendor shall "pass-through" any warranties received from the manufacturer or licensor of such goods and, to the extent, granted by such manufacturer or licensor, Company shall be the beneficiary of such manufacturer's or licensor's warranties with respect to the goods. The warranties and remedies provided for in this paragraph and Paragraph 8 herein (Inspection Count) shall be in addition to those implied by or available at law and shall exist notwithstanding the acceptance by Company of all or a part of the goods with respect to which warranties and remedies are applicable.
Company reserves the right to cancel all or any part of the undelivered portion of this PO without liability if Vendor does not make delivery as specified within the time stated covered by this PO, or breaches any of Terms and Conditions, including the warranties. Failure of Company to take any one or more deliveries hereunder when due, if such failure is due to, caused by, or otherwise attributable to: acts of God including but not limited to earthquake, fire, flood and other natural disasters; strike or other labor disturbances; accidents; war (declared or undeclared); enemy action, civil insurrection or riot; epidemics or pandemics; governmental orders or regulations; legal interferences or prohibitions; or other causes affecting their facilities beyond the control of the party affected, interfering with the acceptance of delivery by Company, shall not subject the Company to any liability to Vendor. Company reserves the right to terminate work on the goods covered by this PO by Vendor, in whole or in part, at any time upon giving written notice to Vendor. Vendor shall reserve in all of its orders relating to this PO the right to terminate or cancel. Whether or not such right to terminate or cancel is reserved, Company's liability or cost arising out of terminated orders (without fault by Vendor) shall be limited to actual cost incurred by Vendor applicable to this PO at the time of termination and shall not include any anticipatory profit or other damages.
The failure of either party at any time to require performance by the other party of any provision in these Terms and Conditions shall in no way affect the full right to require such performance at any time thereafter, and neither shall the waiver by either party of a breach of any provision in these Terms and Conditions constitute a waiver of any succeeding breach of the same or any other such provision nor constitute a waiver of the provision itself. Remedies herein reserved shall be cumulative and additional to any other remedies provided by law.
This PO, together with any written instructions by Company issued hereunder, contains the complete and final agreement between Company and Vendor as to the purchase and sale of goods or services covered by this PO, and no agreement or other understanding in any way purporting to modify these Terms and Conditions shall be binding upon Company unless made in writing and signed by Company's Authorized Signatory.
Vendor shall not assign, transfer or delegate in any manner to any other person or entity, in whole or part, the performance of any services or the supply of any goods covered by this PO.
Vendor hereby agrees to be responsible for and to comply with all applicable laws, regulations, and orders in connection with the performance of services and/or manufacture of goods or provision of services covered by this PO. Acceptance of this PO shall constitute a warranty by Vendor of Vendor's full compliance with all laws.
In any action or dispute arising out of or relating to this PO or an invoice based on it, or these Terms and Conditions or their breach, including the determination of the scope or applicability of this agreement to arbitrate ("Dispute"), shall be exclusively determined by arbitration as set forth in either Subsection (a) or (b) below as applicable. Company and Vendor waive the right to proceed in any other jurisdiction or forum:
(a) IF VENDOR'S ADDRESS LOCATED IN USA: Company and Vendor agree to final binding arbitration of any Dispute in the County of Los Angeles, California, before a single arbitrator. The arbitration shall be administered by JAMS. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof; or (b) IF VENDOR'S ADDRESS LOCATED OUTSIDE USA: Company and Vendor agree to final binding arbitration of any Dispute in the County of Los Angeles, California USA under the Rules of Arbitration of the International Chamber of Commerce by a single arbitrator appointed in accordance with the said Rules. The award of the arbitrator shall be in writing, shall be final and binding upon the parties, and may, as allowed by law, include injunctive relief. Judgment on such award may be entered in any court of appropriate jurisdiction, or application may be made to that court for a judicial acceptance of the award and an order of enforcement, as the party seeking to enforce the award may elect.
Vendor shall indemnify, defend and hold Company, its agents, consignees, employees, and representatives harmless from and against all claims, demands, liabilities, loss, damages, expenses, proceedings, actions or causes of action or government inquiries, including reasonable attorneys' fees and expenses and costs (collectively, "Claims") by reason of, arising out of, or in any way connected with this PO and these Terms and Conditions, including the breach of any representation, warranty or covenant hereunder and, as applicable, the negligent performance of services hereunder); provided, however, that Vendor shall not be obligated to indemnify Company with respect to Claims due to the sole negligence or willful misconduct of Company (other than where the Company's negligence consists of its failure to discover a condition caused or permitted to exist by Vendor or any authorized subcontractor of Vendor).
Except as may be otherwise provided by this PO, the contract price includes all applicable federal, state and local taxes. Vendor shall be required to obtain and pay for any licenses, permits, and inspections by public bodies required in connection with the goods or services. Vendor shall assume and pay all taxes (excluding federal, state and local sales, use and excise taxes, which Vendor shall collect and pay where applicable), fees, assessments and other charges required by law due to the sale or lease of goods or services, including performance of services, all of which shall be separately itemized, with all nontaxable items, such as labor charges and charges for maintenance or support services, separately itemized and identified as nontaxable charges. In the event Company has agreed by this PO to pay any taxes, Vendor shall show federal excise, state and or local taxes, if any, separately on its invoice. Vendor shall execute a Form W-9 (or the like form for the applicable country) in the form specified by Company as a condition to being paid and acknowledges that payment hereunder by Company may be subject to tax withholding as required by applicable law.
Vendor shall notify Company of any special hazards associated with the handling, storage and use of the goods. Vendor shall advise Company if any ingredient of the goods appears on the U.S. Department of Labor's Carcinogen List or Hazardous Data Sheet, or California's Proposition 65 List. All electrical equipment must have UL, CE and OSHA approval, in addition to any other applicable registrations or certifications. Vendor agrees to indemnify Company for and hold it harmless from any and all taxes which Company may have to pay and any and all liabilities (including, but not limited to, judgments, penalties, fines, interest, damages, costs and expenses, including reasonable attorney's fees) which may be obtained against, imposed upon or suffered by Company or which Company may incur by reason of its failure to deduct and withhold from the compensation payable hereunder any amounts required or permitted to be deducted and withheld from the compensation of an individual under the provisions of any statutes heretofore or hereafter enacted or amended requiring the withholding of any amount from the compensation of an individual. If it should be determined that Company is legally required to make deductions from any amounts owed to Vendor under this PO (e.g., withholding taxes, social security contributions, etc.), Company shall have the right to do so.
In the event that any word, phrase, clause, sentence, or other provision hereof shall violate any applicable stature, ordinance or rule of law in any jurisdiction in which it is used, such provision shall be ineffective to the extent of such violation without invalidating any other provision hereof.
Vendor will immediately notify Company of any goods sold or leased in this PO which fails to comply with an applicable safety rule or standard of the Consumer Product Safety Commission, Food & Drug Adminstration, the Environmental Protection Agency or other similar governmental agency, or which contains a defect which could create or presents a substantial risk to the health of, or injury to, the public or to the environment by itself or when used by Company within the scope of its intended purpose. Vendor shall reimburse Company for all losses, damages, costs and expenses including attorneys' fees, incurred in connection with the removal of such goods from use and sale, including but not limited to recalls, withdrawals and destruction. Vendor shall further immediately notify Company of any complaint (formal or informal) that goods or services do not comply with applicable safety rules or standards or otherwise contains a defect rendering the goods or services unsafe.
Under no circumstances shall either party be liable to the other for any special, indirect or consequential loss or damage whether or not such loss or damage is caused by the fault or negligence of such party, its employees, agents or contractors and whether or not the parties have been apprised of the possibility of such losses or damages. This exclusion of liability for special, indirect or consequential loss or damage is intended to apply to damage or loss of a "commercial" nature such as, but not limited to, loss of profits or revenue, cost of capital, loss of use of equipment or facilities, or claims of customers due to loss of service. This exclusion is not intended to apply to: (i) loss or damage incidental to a default, termination, suspension or defect in the goods such as, but not limited to, additional managerial and administrative costs and expenses incurred in effecting a "cover" under a Vendor default; (ii) loss or damage to property or personal injuries (including death) directly caused by Vendor's or Company's negligence, or (iii) Vendor's indemnification obligations hereunder.
Vendor acknowledges Company's Supplier Code of Conduct ("Code") and No Tolerance Policies (collectively with the Code, the "Policies") under which Company expects Vendor and Vendor's suppliers to comply with all applicable laws and regulations of the countries and regions in which Company operate, and to conduct business activities in an honest, ethical and responsible manner. The Policies, as amended from time to time, can be found at https://www.paulmitchell.com/legal.
At any time and without notice, Company and its authorized representatives will have the right, at its expense, to visit Vendor's facilities to conduct social and environmental audits, which may include a review of the books and records of the Vendor, worker interviews and site inspections to confirm compliance with the Policies.
Any contract for sale and these Terms and Conditions, and all disputes arising therefrom, shall be governed by and resolved in accordance with the laws of the State of California, USA, without regard for any conflict of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded.
Vendor agrees that these Terms and Conditions along with the agreed upon terms on the front of this PO make up the entire agreement; provided however, that if Vendor and Company have entered into a separate written agreement pertaining to the subject matter hereof, the terms of that agreement shall govern in the event of any conflicting terms.
