PURCHASE ORDER TERMS AND CONDITIONS
(Last modified July 27, 2023)
Please read these Terms and Conditions carefully. They describe your rights and your obligations.
The English version of these Terms and Conditions controls over a version in another language.
These Terms and Conditions are being issued as part of a purchase commitment (a "Purchase Order") that is being made by the Purchaser (as defined below) to the Seller (as defined below) via Paramount Global's vendor portal (which utilizes systems such as the Ariba Network) (the "Vendor Portal").
1. Document Components; Binding Agreement
(a) The order detail in the Vendor Portal that was prepared by the Purchaser is considered the face of the Purchase Order (the "Face"). The transaction described in the order detail on the Face is governed by these Purchase Order Terms and Conditions (these "Terms"). The order detail on the Face describes the purchase and/or license (the "Purchase") of certain goods, software, rights and/or services (together, the "Materials"). (i) The Face, (ii) these Terms, (iii) any document executed by Buyer and Seller that is referenced on the Face (a "Referenced Document") and (iv) any document executed by Buyer and Seller that by its terms covers the Purchase of the Materials but that is not referenced on the Face (an "Unreferenced Document") constitute the entire agreement between Buyer and Seller with respect to the Purchase referenced on the Face ((i), (ii), (iii) and (iv) together, this "Agreement"). This Agreement is binding with respect to the Purchase of the Materials described on the Face.
(b) In the event of any conflicting provisions between or among components of this Agreement, the following order of priorities governs (descending, with the lower number superseding the higher number): (i) the description of the Materials and the amount and timing of the payment in respect of the Purchase as set forth on the Face, (ii) a Referenced Document, (iii) an Unreferenced Document but only to the extent that both parties agree that such Unreferenced Document was intended to cover the Purchase of the Materials described on the Face, and (iv) these Terms. If the Face contains any terms that are outside the reasonable scope of a description of the Materials and the amount and timing of the payment in respect of the Purchase, and if such additional terms attempt to vary any other part of the components of this Agreement, then such variances are to be ignored and are not to be binding on either party unless both parties agree.
On the Face, the entity listed immediately next to the word "From" is referred to as the "Purchaser" of the Materials. On the Face, the entity listed immediately next to the word "To" is referred to as the "Seller". However, there may be certain circumstances when the order detail is viewable in a different format. Under such circumstances, the entity listed immediately next to the words "Ship To" is referred to as the "Purchaser" of the Materials; and the entity listed immediately next to the word "Supplier" is referred to as the "Seller". In either case, the Purchaser is the Paramount Entity that is identified in the order detail in the Vendor Portal. "Affiliate" means any entity directly or indirectly controlled by Paramount Global either now or in the future, and the term "Affiliate" includes Paramount Global if the Purchaser is any Paramount Entity other than Paramount Global. An entity "controls" another entity when it owns fifty percent (50%) or more of the outstanding shares having voting rights, membership or partnership interests, or when it has management or operational control through a management agreement or otherwise. A "Paramount Entity" means either Paramount Global or one of its Affiliates. The Purchaser, together with its Affiliates, is referred to as, the "Buyer". The term "Seller" includes its subsidiaries and affiliates.
3. Offer and Acceptance; Other Terms Not Binding
(a) Prior to the issuance of the Purchase Order, the Seller provided to Buyer (1) a quote, (2) a bid, (3) a proposal, or (4) other communication of that nature, under which Seller offered to provide the Materials to the Buyer ((1), (2), (3) or (4), the "Offer"). The listing of the Purchase Order in the Vendor Portal by Buyer is Buyer's acceptance of the Offer and Buyer's agreement to purchase the Materials, provided, however, Buyer's acceptance of the Offer and Buyer's agreement to purchase the Materials is expressly conditioned upon Seller's consent to be bound by these Terms as a part of this Agreement. This Agreement is the entire contract between Buyer and Seller relating to the Purchase of the Materials.
(b) Any reference in this Agreement to any (1) a quote, (2) a bid, (3) a proposal, or (4) other communication of that nature, under which Seller offered to provide the Materials to the Buyer (together, "Seller's Proposals") (except as set forth in Section 3(d) below) is limited to the description of the Materials that are subject to the Purchase, and any terms and conditions stated in Seller's Proposals other than the description of the Materials is superseded by this Agreement and is not binding on Buyer.
(c) An acknowledgement of this agreement by Seller (for instance, by taking an action within the Vendor Portal) operates as confirmation of these Terms as a part of this Agreement by the Seller even if the acknowledgement states terms and conditions that are additional to or different from (the "Acknowledgement's Terms") the Terms stated in this Agreement. No portion of the Acknowledgement's Terms are binding on the Buyer. The acknowledgement of these Terms and/or this Agreement by Seller may only operate as a counteroffer with respect to the description of the Materials and the amount and timing of the payment in respect of the Purchase if (and only if) Buyer lists a revised Purchase Order with the terms of the counteroffer in the Vendor Portal. Such listing of the revised terms is Buyer's acceptance of the counteroffer, provided, however, Buyer's acceptance of the counteroffer and Buyer's agreement to purchase the Materials is expressly conditioned upon Seller's consent to be bound by these Terms as a part of this Agreement.
(d) Any terms and conditions stated in Seller's Proposals, the Acknowledgement's Terms and any other terms and conditions of Seller are not binding upon Buyer except to the extent Buyer and Seller have (i) specifically executed by hand (or placed an electronic signature on) a document in which such terms and conditions are explicitly agreed upon and (ii) delivered to the other that signed document. See Section 21(b)(iii) below.
(e) Commencement of performance by Seller, or receipt of payment from Buyer without immediate return or refund by Seller, also constitutes Seller's consent to be bound by the Terms as part of this Agreement.
4. Specifications and Description; Ownership, License and Support
4.1 (a) The Seller must provide the Materials described on the Face in accordance with any specifications, drawings, samples, descriptions, instructions, or any other requirements submitted by Buyer to Seller, or provided by Seller to Buyer and agreed by Buyer prior to Purchaser's creation of the order detail in the Vendor Portal (together, the "Specifications"). The Specifications are incorporated herein and are made part of this Agreement. Seller may not make substitutions without the written consent of Buyer. In the case of any ambiguity in the Specifications, Seller must consult with Buyer before performing; and absent agreed upon clarifications, Buyer's interpretation of any such ambiguity controls.
4.2 Ownership of the Output of all Services.
(a) If the Materials prepared by Seller pursuant to this Agreement are in the nature the output of professional services or creative services, such as, (i) software, designs, plans, creative, artistic, audiovisual or other materials; (ii) drawings, illustrations, artwork photographs, logos, storyboards, animation and/or other graphic or optical materials; (iii) text and other literary materials; music, sounds, and musical compositions; filmed and/or taped footage and sound recordings; (iv) trailers, television spots and/or other audiovisual materials; software, code or programming special effects; and/or (v) all other types of output of professional services or creative services that are subject to protection under United States Copyright Laws, then Seller agrees that all such Materials, whether or not included in the final version thereof, shall be created and produced as a "work-made-for-hire" for Buyer as defined in the United States Copyright Laws, and that Buyer therefore owns all of the rights comprised in the copyright in and to such Materials. If, for any reason, any portion of the Materials are deemed not to be a work-made-for-hire under United States Copyright Laws, then Seller hereby assigns to Buyer all of Seller's right, title and interest (including the copyright) in and to such Materials or portions thereof. Seller acknowledges that some or all of the Materials (as may be designated by Buyer from time to time) may have been specially commissioned by Buyer for use as part of an audiovisual work or as a supplementary work to an audiovisual work prepared for the purpose of introducing, illustrating, explaining or assisting in Buyer's use of such audiovisual work. Title to all intangible Materials created as part of any engagement under this Agreement passes to Buyer automatically when such item is fixed in a tangible medium, whether or not such item is complete or delivered, and all rights, title and interest in such intellectual property or Materials exclusively vests at such time in Buyer.
(b) With respect to any tangible Materials prepared by Seller pursuant to the Agreement that are not covered by Section 4.2(a) above, Seller hereby irrevocably assigns to Buyer all right, title and interest in and to such Materials, and Seller agrees that Buyer is the sole and exclusive owner of such Materials throughout the world and in perpetuity. Title to all tangible Materials prepared by Seller pursuant to this Agreement passes to Buyer automatically upon Delivery (as defined below) of such goods. Prior to such passage of title, Seller bears all risks of the loss of or damage to any such goods.
(c) Buyer has the sole and exclusive right to use or refrain from using all Materials prepared pursuant to this Agreement, in whole or in part, in its sole and absolute discretion, in whatever manner or medium it may desire, including the right to (i) cut, edit, revise, alter and/or otherwise modify; (ii) freely use, perform, distribute, exhibit, televise and exploit; and/or (iii) license others to do any of the foregoing and in any media now known or hereafter devised.
(d) Seller expressly waives the exercise of any provision of law known as "droit moral" or any similar law that may be recognized in any country or place, and agrees not to institute, support, maintain or permit any action or proceeding on the grounds that Buyer's use of any Materials provided by Seller constitutes a violation or infringement of Seller's droit moral or is in any way a defamation or mutilation of such Materials.
(e) Seller shall promptly notify Buyer if Seller becomes aware of any right of, or protection afforded to, a third party that might (i) affect Seller's ability to provide the Materials hereunder, (ii) limit Buyer's freedom to use or sell such Materials anywhere in the world, or (iii) limit Buyer's rights to the results and proceeds of such Materials anywhere in the world.
(f) If any software or software-as-a-service is referenced on the Face, or if any software is provided as part of any services, or if any software is incorporated into or provided with any goods, then Seller hereby grants to Buyer and Buyer's third-party service providers: (i) for software with a fixed term stated on the Face, a non-transferable, non-exclusive, paid-up, irrevocable, worldwide license to access, use, duplicate, create derivative works, display and benefit from such software for the period of the term stated on the Face; and (ii) for software that does not have a fixed term stated on the Face, a non-transferable, non-exclusive, paid-up irrevocable, worldwide license to access, use, duplicate, create derivative works, display and benefit from such software in perpetuity. Buyer's third-party service providers may only access and use the software on behalf of, and for the benefit of, Buyer.
(g) If any maintenance or support for any goods or software is referenced on the Face, then Seller shall provide to Buyer the level of maintenance and support that is referenced on the Face in a manner that is no less favorable than the highest level of maintenance and support that Seller then offers to its other customers who have purchased that level of maintenance and support. In any event, all maintenance and support referenced on the Face is to include all standard upgrades, updates, bug-fixes and error-correction services.
4.3 Nothing contained in this Agreement obligates Buyer to utilize the results and proceeds of any of the Materials provided or performed by Seller under this Agreement.
5. Shipment and Delivery
(a) Shipment. For each shipment, Seller shall comply with customs-related obligations, all applicable regulations or other legal requirements and compliances concerning the manufacturing, packaging and delivery of the Materials, including origin marking or labeling requirements, invoicing and documentation requirements of the destination country, and local content origin requirements.
(b) Delivery. Time is of the Essence with respect to Seller's furnishing the Materials in the manner and time periods described on the Face. Delivery is deemed to have occurred as follows: (i) in respect of goods, when the goods arrive at Buyer's location identified on the Face and are acknowledged in writing as received by Buyer; (ii) in respect of software and/or rights, when the subject software and/or rights are made available to Buyer for use or download; and (iii) in respect of services, upon Buyer's Acceptance of such services (in each case of (i)-(iii) above, the "Delivery"). The term "Deliver" or "Delivered" means Seller's Delivery of the Materials. Receipt of late Delivery by Buyer does not: (x) constitute a waiver of Buyer's rights or remedies, including the right to hold Seller liable for any loss or damage resulting therefrom; or (y) act as a modification of Seller's obligation to Deliver Materials in the future on or before the applicable Delivery date specified on the Face and in accordance with any other Delivery terms that Buyer may specify on the Face. Buyer reserves the right to reject any Materials Delivered prior to or after the applicable Delivery date and to return, at Seller's sole risk and expense, any such early or late Delivery, or to defer payment on early Deliveries until the times scheduled therefor. Where the date of Delivery of the Materials is to be specified after the listing of the Purchase Order in the Vendor Portal, then Seller shall give Buyer reasonable prior notice of the specified date, which is subject to Buyer's approval. A packing note quoting the Purchase Order number must accompany each Delivery or consignment of the Materials and must be prominently displayed. Buyer shall not be obligated to return to the Seller any packaging materials for the Materials.
6. Inspection, Acceptance Testing, Transfer of Title/Risk of Loss
(a) Inspection. All Materials are subject to inspection by Buyer both before and after Delivery ("Inspection"). Buyer reserves the right to reject and refuse Delivery of Materials that do not comply with the express or implied Specifications. Buyer shall return non-conforming Materials to Seller at Seller's sole risk and expense.
(b) Acceptance Testing. All Materials furnished are subject to Acceptance Testing in Buyer's reasonable discretion. Seller shall inform Buyer as soon as any Materials are ready for Buyer to begin Acceptance Testing. After Delivery of the relevant Materials, Buyer shall use commercially reasonable efforts to commence Acceptance Testing as soon as practical under the circumstances. Neither payment by Buyer of any fees to Seller nor use of the Materials for a reasonable amount of time prior to Acceptance constitutes Buyer's Acceptance of the Materials. Buyer shall use commercially reasonable efforts to inform Seller of its Acceptance or rejection of the Materials in question within five (5) business days of completing Acceptance Testing ("Acceptance Date"). If Buyer Accepts any Materials, it shall inform Seller in writing of its Acceptance of those Materials; provided, however, that Acceptance of any Materials is revocable by Buyer upon failure of Acceptance Testing for any other Materials described on the Face. If Buyer determines in its reasonable discretion that the relevant Materials, or any portion thereof, fail to meet the Acceptance Criteria, then Buyer shall use commercially reasonable efforts to inform Seller via email in reasonable detail the reasons for Buyer's rejection as soon as practical under the circumstances (a "Rejection Notice"). Upon receipt of a Rejection Notice, Seller shall use all commercially reasonable efforts to immediately (but in any event no later than ten (10) days, unless a longer period is mutually agreed by the parties, or is otherwise established by applicable law), correct all deficiencies that are referenced in such Rejection Notice. Thereafter, Seller shall resubmit the relevant Materials to Buyer for retesting, and Buyer shall retest the relevant Materials, in accordance with this Section 6(b). If the relevant Materials still fail Acceptance Testing, Buyer may in its sole discretion: (i) grant Seller additional time to correct the outstanding deficiencies; or (ii) without prejudice to any of Buyer's other rights and remedies under this Agreement, at law or in equity, and to the extent permitted by applicable law, (A) inform the Seller of the final rejection of the relevant Materials (the "Final Rejection"), (B) terminate in whole or in part the relevant Purchase, or (C) terminate in whole or in part this Agreement, in which event ((A), (B) or (C)) Seller shall promptly refund (without any set off or counterclaim) all fees and expenses paid to Seller hereunder in respect of the rejected Materials.
(c) Certain Definitions. For the purpose of this Agreement, the following terms have the following meanings: (i) "Acceptance Testing" means testing performed by Buyer in accordance with the applicable Acceptance Test Plan to determine whether the relevant Materials comply with the Acceptance Criteria; (ii) "Acceptance Criteria" means (A) any Specifications set forth or referenced in this Agreement and (B) Buyer's reasonable expectations for such Materials based on the Specifications; (iii) "Acceptance Test Plan" means (A) the plan (if any) for testing the applicable Materials as may be agreed upon by the parties, and (B) such other testing as may be determined by Buyer in its reasonable discretion; and (iv) "Acceptance" or "Accept" means if Buyer determines in its reasonable discretion that the relevant Materials comply with the Acceptance Criteria.
(d) Transfer of title. Transfer of title and risk of loss of tangible Materials is specified in Section 4.2 above. Upon Final Rejection, title and risk of loss of the relevant tangible Materials reverts to Seller whereupon Seller once again bears all risks of the loss of or damage to such Materials.
7. Payment Terms, Money Damages Only, No Injunctive Relief
(a) Unless otherwise specified on the Face, Seller shall submit invoices to Purchaser via the Vendor Portal. Such invoices must show the breakdown and distribution of charges and applicable expenses by task. Purchaser shall pay Seller within ninety (90) days after the later to occur of (i) Seller has satisfactorily performed its obligations hereunder and properly delivered the Materials, (ii) Purchaser has Accepted the same, and (iii) Purchaser has received an accurate invoice for the Materials (90 days after the later of those to occur is referred to as, the "Due Date"). In the event that Purchaser for whatever reason fails to make payment to Seller by the Due Date, then prior to taking any other action Seller shall provide a written reminder notice to Buyer in which Seller represents that that each of points 7(a)(i), (ii) and (iii) have been fulfilled and Seller demands such payment.
(b) Purchaser's liability for any default in payment and Seller's rights and remedies therefor are expressly limited to the recovery of money damages only. Seller shall not, under any circumstances, be entitled to impair or affect any of the rights acquired by, or to be acquired by, Purchaser under this Agreement; and Seller agrees to not seek the same. Seller shall not seek any injunctive or other equitable relief related to any rights granted under this Agreement. Seller shall not seek to terminate or rescind any rights granted under this Agreement.
(c) For all Materials specified on the Face that are to be provided on a time & materials basis, the quantities specified on the Face indicate the maximum quantities that Seller is required to provide and from which the Buyer may from time to time choose to receive a portion. Under all circumstances, the Seller shall only invoice for, and the Buyer shall only be obligated to pay for, Materials that have been actually provided and Accepted by Buyer.
The term "Local Taxes" means all local, state and regional, VAT, GST, excise, sales and use taxes, but excludes any taxes related to Seller's income, assets, or obligations as an employer. All Local Taxes when applicable that are to be paid by Buyer must be stated separately on the Face and on Seller's invoice. Seller's invoices will only be accepted by Buyer if Seller's invoices conform in all respects with the local legal requirements, including where applicable the relevant local law of the Specified Jurisdiction (defined below) or EU Directives as needed for Buyer to recover input VAT. Unless otherwise specified on the Face, the prices stated on the Face include all Local Taxes. Seller is liable for the payment of all Local Taxes to the appropriate taxing authorities and Buyer is not itself liable for any Local Tax with respect to payments made to Seller under this Agreement. Buyer is not liable for any taxes related to Seller's income, assets, or obligations as an employer. Buyer may be obligated by law to withhold tax on payments to Seller; provided, however, even where Buyer has failed to so withhold, Seller remains liable for such taxes and any other taxes for which Buyer incurs a liability as withholding agent for the tax liabilities of Seller; and Buyer shall have the right to recover such liability from Seller.
9. Audit Rights
Buyer may audit the books and records of Seller relating to the Purchase contemplated by this Agreement to verify the accuracy of Seller's invoices herein and compliance with the Terms of this Agreement.
Seller represents, warrants and makes a continuing covenant to Buyer that:
(a) (i) all goods furnished hereunder are merchantable, fit for the intended use and free from defects in workmanship; (ii) all Materials furnished hereunder conform to, perform in accordance with, and will be performed in accordance with, the applicable Specifications; (iii) all Materials and output of services furnished hereunder do not, and the use thereof by Buyer will not, infringe, misappropriate or violate any copyright, patent, trade secret, trademark, moral right or any other intellectual property or other proprietary right of any third party; (iv) Materials furnished hereunder are free from all undisclosed charges, third party claims, encumbrances or liens and Seller has all titles, rights and permissions necessary to fulfilling its obligations under this Agreement; (v) all Materials used in line with their intended purpose will not cause injury (including death) or damage to any person or property; (vi) Seller shall perform all services with appropriately qualified and trained personnel, with due care and diligence and to very high standards of quality; and (vii) Seller shall provide all goods new from the manufacturer or in the case of parts they must meet original manufacturer specifications, unless specifically stated otherwise in the Face or a Referenced Document.
(b) Seller shall use only qualified personnel to perform the services, and shall be fully responsible for the supervision, management and control of its Representatives.
(c) Seller shall, and shall cause its Representatives to, comply with: (i) all applicable Laws, and (ii) if on Buyer's premises, with all of Buyer's rules, policies and procedures.
(d) Seller, (i) while performing services on Buyer's premises, shall repair and restore to the original condition all damage caused in connection with the performance of the services, and (ii) after completion of the services, shall promptly remove all rubbish, tools and surplus materials and leave the job site broom clean.
(e) Seller is responsible for all acts, errors and omissions of its representatives, affiliates, subsidiaries, personnel, employees, officers, directors, members, managers, partners, consultants, temporary resources, agents, suppliers, contractors, subcontractors and subprocessors (together, "Representatives").
(f) Software referenced on the Face that is hosted by the Seller shall be available to Buyer not less than 99.9% of the time, except for maintenance that is scheduled in advance. Seller shall provide Buyer with not less than five (5) days' prior written notice of any scheduled maintenance.
The representations, warranties and covenants contained in this Agreement survive inspection, Delivery, Acceptance and payment, and are in addition to any other warranties or service guarantees of Seller.
11. Compliance with Laws
(a) Seller's performance of all obligations hereunder, and Delivery of the Materials, must be in strict compliance with all applicable law, including (x) all international, regional, federal, state and local laws, directives, rules, regulations, orders of any governmental authority, regulatory agency or quasi-regulatory agency, ordinances, and guidelines from self-regulatory bodies that have the force of law, (y) all laws related to bribery, corruption, export control, privacy and data protection, protection of human health, the environment and labor matters, and (z) all laws of the jurisdiction (i) in which the Materials are created or performed, (ii) from which the Materials are sent and/or used, and (iii) into which the Materials are to be Delivered and/or used ((x), (y) and (z) together, "Laws").
(b) If Seller receives a written charge of its non-compliance with any Law, and if that charge may in anyway effect Seller's ability to perform under this Agreement, then Seller shall promptly notify Buyer of such charge and keep Buyer informed of any developments related thereto.
(c) Buyer is an equal opportunity employer and a federal contractor. Consequently, if Seller is doing business in the United States, then in connection with its provision of the Materials, Seller shall: (i) comply with the following, if applicable: (A) Executive Order 11246 and the Rehabilitation Act of 1973, as amended, and the equal opportunity clauses set forth in 41 CFR § 60-1.4(a) and 41 CFR § 60-250.5(a), which are incorporated herein by reference; and (B) the Vietnam Era Veterans' Readjustment Assistance Act of 1974, and the equal employment opportunity clause set forth in 41 CFR § 60-250.5(a), which is incorporated herein by reference; and (ii) use commercially reasonable efforts to identify, secure bids from, and engage minority and women-owned business enterprises.
(d) Labor-Related Matters. (i) Seller shall coordinate the work of its employees and those of its contractors and subcontractors to avoid conflicts with other Representatives of Buyer who perform any other functions for Buyer. (ii) Seller represents, warrants and makes a continuing covenant that (A) it has the capability, expertise and means required to Deliver the Materials; (B) in Delivering the Materials on the premises of Buyer, Seller shall comply with all safety and fire prevention rules applicable to those premises and assumes for itself and its Representatives any and all risks and hazards arising out of the Delivery of the Materials; and (C) certifies that all personnel assigned to Deliver Material under this Agreement (x) will be paid and provided at least the minimum rates of wage and benefits required by law or under the applicable contract with such personnel (including any legally enforceable policy, practice or procedure); and (y) are eligible to work in the United States in accordance with federal immigration laws, and Seller has obtained and retained all documents required under federal immigration laws to establish such eligibility (whether or not such personnel are employees of Seller). (iii) Seller shall assign personnel to Deliver the Materials under this Agreement who shall work in harmony with all other personnel at Buyer's locations. (iv) Seller is liable to Buyer for all damages associated with a labor disruption caused by or related to Seller, including indirect damages and damages incurred by Buyer's landlord and co-tenants for which Seller is responsible.
12. Additional Compliance Provisions
(a) Toxic Substances and Environmental Requirements. Hazardous goods must be marked by the Seller with international danger symbols and display the name of the material in English consistent with the provisions of the United Nations Globally Harmonized System of Classification and Labelling of Chemicals (GHS). Materials must be accompanied by emergency information (in the language used by governmental authorities in the jurisdiction of the Purchaser) in the form of written instructions, labels and markings. All information held by, or reasonably available to the Seller regarding any potential hazards known to exist in the transport, handling or use of the goods supplied must be immediately communicated and confirmed in writing to Buyer.
(b) Classification of Dangerous Goods. Seller warrants that: (i) items shipped to a particular country will conform and comply with all applicable Laws within that particular country; and (ii) for items shipped to European Union destinations, Seller will notify Buyer of the "Classification of Dangerous Goods" in conformity with the "European Agreement concerning the International Carriage of Dangerous Goods" prior to the first delivery of such items.
(c) Chemical Substances in the United States. For items shipped to or to be used within the United States, Seller warrants that: (i) each and every chemical substance delivered under, or used in connection with the transactions contemplated by, this Agreement (the "Chemical Substances") are, at the time of sale, use, transfer and/or Delivery, included on the list of inventoried chemical substances compiled and published by the Administrator of the Environmental Protection Agency pursuant to section 8(b) of the Toxic Substance Control Act (42 U.S.C. § 2607(b)), as may be amended; (ii) Seller shall submit to Buyer all Safety Data Sheets, prepared in accordance with OSHA Hazardous Communication Standard, 29 CFR 1910.1200, for each Chemical Substance delivered; (iii) all of the equipment, materials or substances furnished hereunder have been completely and accurately labeled pursuant to all applicable Laws, including the requirements of 40 CFR Part 82, Protection of Stratospheric Ozone; or that such equipment, materials or substances do not require such labeling; and (iv) best engineering practices were employed in the manufacture or formulation of all such equipment, materials or substances so as to minimize to the extent practical any hazard to persons or the environment.
(d) Chemical Substances outside of the United States. For items shipped to or to be used outside of the United States, Seller warrants for each and every Chemical Substance delivered under or used in connection with the transactions contemplated by this Agreement that (i) the Seller has complied and shall comply with all applicable laws related to the sale, use, transfer and/or delivery of such Chemical Substance; and (ii) best engineering practices were employed in the manufacture or formulation of all such equipment, materials or substances so as to minimize to the extent practical any hazard to persons or the environment.
(e) Supplier Compliance Policy. Seller and its Representatives shall comply with Buyer's Supplier Compliance Policy set forth at https://www.viacomcbs.com/files/documents/ViacomCBS_Supplier_Compliance_Policy2.pdf (or any successor URL) and any other local compliance policy established by the Buyer and made available to Seller. Any breach by Seller or its Representatives of these policies constitutes a material breach of this Agreement.
(f) Diversity Policy. (i) Seller shall use commercially reasonable efforts to meet or exceed the Diverse Minimum Spend by engaging Diverse Secondary Suppliers ("Seller's Diversity Obligation"). Seller shall maintain accurate and complete records relating to the fulfillment of Seller's Diversity Obligation. (ii) If the transaction described on the Face contemplates an engagement of ninety (90) days of more, Seller shall develop and maintain a written plan (the "Supplier Diversity Plan") outlining how Seller intends to meet or exceed Seller's Diversity Obligation. The Supplier Diversity Plan must include, at a minimum, (A) the scope of work to be performed by Diverse Secondary Suppliers, (B) the nature and type of Diverse Secondary Suppliers that Seller intends to use to fulfill Seller's Diversity Obligation and (C) a plan to ensure that Seller meets or exceeds Seller's Diverse Minimum Spend. Seller shall make the Supplier Diversity Plan available to Purchaser for review from time to time upon request. (iii) If the transaction described on the Face contemplates an engagement of one hundred eighty (180) days of more, then Seller shall within fifteen (15) days following the end of each calendar quarter submit a report to Purchaser ("Quarterly Diversity Report"), in the form and format reasonably requested by Purchaser, setting forth the total spend on Diverse Secondary Suppliers during the immediately prior calendar quarter. Each Quarterly Diversity Report must include, at a minimum, (A) Seller's total spend on Diverse Secondary Suppliers, and (B) a breakdown by category of Diverse Suppliers. If and as requested, Seller shall submit its Quarterly Diversity Reports via a Supplier Diversity Program automated portal and Seller shall report on its total spend on Diverse Secondary Suppliers for time periods other than a calendar quarter. The following terms have the following meanings: "Diverse Suppliers" means a business that (A) is certified by a Purchaser-approved third-party certification agency as being owned or controlled by individuals who are minorities, women, lesbian, gay, bisexual, transgender, veterans or disabled; and (B) meets such other similar and reasonable qualifications as may be determined by Purchaser from time to time. "Supplier Diversity Program" means Purchaser's program that is designed to encourage the utilization of Materials provided by Diverse Suppliers. "Diverse Minimum Spend" means the then-current minimum spend requirement determined by Purchaser in its reasonable discretion and set forth on the Face that Seller is to spend with Diverse Secondary Suppliers. "Diverse Secondary Suppliers" means Seller's subcontractors and suppliers that are Diverse Suppliers and that are involved in providing Materials to Purchaser under this Agreement.
(a) Buyer may from time to time by informing the Seller in writing (for which an email is sufficient) suspend or modify in whole or in part the transaction described in the order detail on the Face (each, a "Change Order"). If requested by Buyer, the parties shall negotiate in good faith to come to an agreement on such requested change and if necessary on an adjustment to the applicable fees, costs and/or expenses. Unless otherwise directed by Buyer, during the period of such negotiation Seller shall continue to perform and provide Materials pursuant to this Agreement. Any claims by Seller for adjustment under this Section 13 must be asserted in writing within thirty (30) days after the date of receipt by Seller of the Change Order, and must specify the amount claimed and supporting cost figures.
(b) Without limiting any part of Section 13(a) above, Buyer has the right and the power at any time to make changes to the transaction described in the order detail on the Face, such as, with respect to drawings, designs, specifications, materials, packaging, time and place of delivery, method of transportation, quantities of materials or goods, nature or type of services or other details set forth in the transaction described in the order detail on the Face. Seller agrees that the basis of this Agreement includes Buyer's right and power to make the foregoing changes, and Seller accepts Buyer's ability to do so as part of this Agreement.
Buyer may cancel this Agreement at any time for its convenience in whole or in part by providing written notice to Seller that specifies the effective date of cancelation, which may be the date of delivery of such notice. Upon cancelation, Buyer shall pay only for such portions of the Materials actually Delivered and Accepted by Buyer in accordance with this Agreement up until and including the date of cancellation.
(a) Confidential Information. Seller shall hold all Confidential Information of Buyer in strict confidence. Further, Seller shall not use any Confidential Information for any purpose other than the performance of its obligations under this Agreement Seller shall not disclose any Confidential Information of Buyer to any other person or entity. Seller shall only disclose the most limited amount of Confidential Information to those Representatives of Seller who (i) need to know such Confidential Information for the purpose of performing Seller's obligations under this Agreement, and (ii) are bound by confidentiality obligations that are no less stringent than the obligations on Seller herein with respect to the Confidential Information. "Confidential Information" means any and all information relating to Buyer or disclosed by Buyer in connection with the Purchase contemplated by this Agreement; provided, however, that Confidential Information does not include information that is generally known by the public without breach of the Terms of this Agreement. For Buyer, "Confidential Information" includes any and all non-public information relating to any of Buyer's businesses or projects, such as, relating to any film, video, internet, media, motion picture or project (together, a "Project") that is being discussed, developed, produced, acquired, sold, marketed or released by Buyer; including marketing or release plans or strategies; marketing materials; and including technical, financial or business information, its personnel or any of its Affiliates. If Seller is required by law or otherwise to disclose any Confidential Information, then Seller shall provide Buyer with prompt prior written notice of such requirement so that Buyer may seek a protective order for the continued confidential treatment of the requested Confidential Information.
(b) Unless otherwise agreed in writing, no commercial, financial, technical or business information of Seller disclosed in any manner or at any time by Seller shall be deemed confidential; and Seller shall have no rights against Buyer with respect thereto, except such rights as may exist under patent laws and except with respect to the pricing of Seller's Materials under this Agreement.
(c) Personal Data and Data Protection. In the event any Personal Data is disclosed or otherwise made available to Seller or its Representatives, then Seller shall, and shall cause its Representatives to, comply with the Paramount Global Data Protection and Information Security Agreement (the "DPA") accessible at https://legal.paramount.com/security-and-privacy (or any successor URL). The DPA is incorporated by this reference and is made part of these Terms. "Personal Data" has the meaning given to it in the DPA.
(d) All items furnished by Buyer to Seller pursuant to this Agreement are the sole property of Buyer and may not be copied, duplicated or furnished to third parties, or copied, duplicated or otherwise used by Seller other than to fulfill its obligations under this Agreement, without the prior written authorization of Buyer. Seller shall exercise all due care in protecting the security and integrity of all items furnished to Seller by Buyer. Seller shall inform Buyer of all of its security procedures that are to be used to protect Buyer's items, and Buyer shall have the right to approve or direct reasonable changes to such security procedures. In addition, Buyer may, in its sole discretion, require Seller to establish specific security procedures with respect to specific items, and Seller shall abide by such procedures. In the event of any breach by Seller of its security obligations, Buyer shall be entitled to immediately terminate this Agreement in whole or in part.
(a) Seller represents, warrants and provides a continuing covenant that it shall at all relevant times, during the period of performance under this Agreement (the "Coverage Period"), have adequate insurance coverage in accordance with Buyer's standards and requirements, including comprehensive Commercial General / Public Liability insurance. Seller further agrees upon Buyer's request to furnish certificates of insurance evidencing that Seller has and will maintain such insurance. Such certificates must set forth the name of the insurer, policy number, expiration date, and limits of liability.
(b) Unless otherwise agreed in writing by Buyer, to comply with Section 16(a) Seller shall have in place during the Coverage Period at least the following insurance (with an equivalent or greater amount of coverage in the currency used by governmental authorities in the jurisdiction of the Purchaser):
(i) Commercial General / Public Liability Insurance covering premises/operations liability, independent contractors' liability, contractual liability, products liability, completed operations liability, broad form property damage liability, personal injury liability and bodily injury and death coverage in an amount of USD5,000,000 per occurrence and USD5,000,000 in the aggregate combined single limit for bodily injury (including death), personal injury or property damage;
(ii) Workers Compensation Insurance as required by applicable law, or if outside of the United States, Employers Liability Insurance (or local equivalent) in the amount of USD3,000,000 (or as otherwise required by applicable law) per occurrence, including a waiver of subrogation in favor of Buyer;
(iii) if vehicles are used in connection with the obligations of Seller hereunder, Business Auto / Motor Liability Insurance covering owned, hired and non-owned vehicles with a combined single limit of USD1,000,000 per occurrence for bodily injury, personal injury (including death) and property damage;
(iv) if the performance of services by Seller is required on the Face, Professional Liability/Errors and Omissions Insurance covering (A) Seller's acts, errors and omissions, (B) the negligence or willful misconduct of Seller and/or its Representatives, and (C) the infringement of any proprietary rights, copyrights or trademarks of any third party in connection with the performance of the services by Seller, Seller's Representatives, and/or any of Seller's Materials, in each case in an amount of not less than USD5,000,000;
(v) if Seller is providing hosting services under this Agreement or Seller is storing Buyer's information on a server that is owned or available for use by Seller and its customers, Cyber Liability Policy Insurance with minimum limits of USD5,000,000 per occurrence, that includes coverage for security and privacy liability, cyber extortion, event management/breach response services, network interruption, security failure, system failures, network security breach, denial of service, implementation of a malicious code, theft or destruction of data, unauthorized access and similar claims arising out of or relating to Seller's products, software, or services; and
(vi) Seller shall name the Purchaser as an additional insured and provide that Buyer is to be notified of any policy changes upon thirty (30) days' prior written notice.
(a) Seller shall defend, indemnify, be liable for and hold harmless Buyer, its assignees, transferees and Representatives and any of its or their directors, officers, employees, shareholders, partners, members, licensees and agents (each an "Indemnitee") from and against any and all damages, losses, costs, expenses, liabilities, claims and causes of action, including reasonable attorneys' fees in the defense and disposition of such matters, whether proven or not, and in relation to enforcing this indemnification provision (together, "Damages"), arising in connection with any claim or allegation (each, a "Claim") by any third party in any way relating to:
(i) Seller's performance or non-performance of any obligation in this Agreement;
(ii) one or more acts, errors or omissions by Seller, or Seller's Representatives that allegedly or actually result in whole or in part, directly or indirectly, in (A) personal injury (including death) or (B) damage to real property, personal property or natural resources;
(iii) any Materials or the use thereof allegedly or actually (A) infringing, (B) misappropriating, (C) breaching or (D) violating any copyright, trademark, patent, trade secret, other intellectual property right, right of privacy, common law right, moral right or any other right;
(iv) Seller's alleged or actual (A) negligence, (B) willful misconduct, (C) intentional non-performance and/or (D) malfeasance (intentional and/or reckless wrongdoing with or without malicious or tortious intent); or
(v) an alleged or actual breach by Seller of Section 15 (Confidentiality) of this Agreement.
(b) With respect to a Claim, an Indemnitee shall notify Seller in writing promptly after the Indemnitee becomes aware of a Claim (though a failure to promptly notify only limits Seller's obligations hereunder to the extent Seller is actually and materially prejudiced by such failure). If (i) Seller within a reasonable time after receipt of notice of a Claim, or at any other time, fails to defend the Indemnitee with counsel that is reasonably acceptable to the Indemnitee, (ii) the Claim arises pursuant to Section 17(a)(iii) above, (iii) the Claim arises in connection with any Materials that were provided by Seller and that were incorporated into any product, item, or materials owned or controlled by Buyer, or (iv) the Claim alleges unfair competition resulting from similarity in design, trademark or appearance of goods or materials or the result and proceeds of any services furnished hereunder, then (in the case of (i), (ii), (iii) or (iv)) the Indemnitee is entitled to engage counsel of its choosing, control the defense, and undertake the compromise or settlement of such Claim all at Seller's expense. The party controlling the defense of the Claim must keep the other party reasonably apprised of the status of the defense.
(c) If Seller is controlling the defense of the Claim, then it shall defend the Indemnitee with counsel that is reasonably acceptable to the Indemnitee. The Indemnitee shall (at the Seller's expense) (i) reasonably cooperate with Seller and its attorneys in the investigation, trial and defense of a Claim and (ii) provide Seller with all information within Indemnitee's possession or control that is reasonably required for the defense of the Claim.
(d) If Seller is controlling the defense of the Claim, then Seller is entitled to settle such Claim against Indemnitee (without the prior consent of the Indemnitee) if (but only if) such settlement (i) does not involve any remedy other than the payment of money by Seller, (ii) does not impose any fault or liability, either directly or indirectly, on any Indemnitee, and (iii) provides for full and unconditional release of all implicated Indemnitees in respect of all fault and liability.
(e) If there are multiple potential indemnitors of the Indemnitee, then the Indemnitee shall request that the other potential indemnitors cooperate with Seller. Having other potential indemnitors in a Claim is not a basis for Seller to not fully defend, indemnify and hold harmless the Indemnitees.
(f) This Section 17 does not limit any other rights an Indemnitee may have at law or in equity.
18. Limitation of Liability
(a) TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER BUYER NOR SELLER IS LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES IN CONNECTION WITH THE PURCHASE CONTEMPLATED BY THIS AGREEMENT, WHETHER OR NOT LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, EVEN IF IT IS ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES.
(b) Buyer's liability to Seller on any claim of any kind for any direct damages or loss arising out of or in connection with this Agreement is expressly limited to the recovery of money damages only and shall in no case exceed the price allowable in respect of the Materials giving rise to the claim.
(c) Any claim action resulting from any breach on the part of Buyer as to the Materials delivered or performed under this Agreement must be commenced within one year after the cause of action has accrued.
19. No Publicity
Seller shall not use Buyer’s name, or trademarks (or that of any of its Affiliates, divisions, products or brands) or impliedly refer to any of them in any advertising, promotional literature, press release or other form of public disclosure without the prior written approval of the appropriate officer of Buyer. Any violation of this Section 19 is a material breach of this Agreement.
20. Mediation, Binding Arbitration, Governing Law, Limited Court Actions, Jurisdiction and Venue
(a) Mediation: A party claiming that a Dispute has arisen must give written notice to the other party setting out the nature of the Dispute ("Dispute Notice"). Upon receipt of the Dispute Notice, senior representatives of Buyer and Seller shall make reasonable efforts to resolve the Dispute amicably ("Informal Dispute Resolution"). If the Dispute is not resolved by Informal Dispute Resolution within 14 days of receipt of the Dispute Notice, or such further period as the parties may agree in writing, any party may commence arbitration as provided below. Nothing in this Section 20(a) shall affect a party's right to seek interim relief from an emergency arbitrator. If an emergency arbitrator mechanism is unavailable, a party may seek such interim relief as noted in Section 20(d)(iv) below.
(b) Binding Arbitration: All disputes arising out of or in connection with this Agreement (a "Dispute") shall be referred to and finally resolved by arbitration under the then current Rules of Arbitration of the International Chamber of Commerce by a single arbitrator. The language of the arbitration is to be English. The place and seat of arbitration is to be the city listed below that is closest to the address of the entity listed as the Purchaser: New York, Los Angeles, London, Paris, Tel Aviv, Hong Kong, Singapore, Miami, Santiago de Chile, Port Louis (Mauritius) or Sydney. The arbitrator is authorized to order interim and conservatory measures. The arbitrator shall have the discretion to decide the case, in whole or part, solely on the documents submitted by the parties.
(c) Governing Law: This Agreement is governed by and construed in accordance with the laws of the Specified Jurisdiction listed below, without regard to the conflict of laws provisions thereof.
(i) If the Purchaser is Paramount Global, CBS Broadcasting Inc. or Viacom International Inc., then the Specified Jurisdiction is the State of New York (United States);
(ii) if the Purchaser is Paramount Pictures Corporation, then the Specified Jurisdiction is the State of California (United States);
(iii) if the Purchaser is any other entity that is domiciled in the United States, then the Specified Jurisdiction is the State of New York (United States);
(iv) if the Purchaser is an entity that is not domiciled in the United States and the jurisdiction in question is mentioned in Section 22 below, then the Specified Jurisdiction is as listed in Section 22 below; or
(v) if the Purchaser is an entity that is not domiciled in the United States and the jurisdiction in question is not mentioned in Section 22 below, then the Specified Jurisdiction is the State of New York (United States);
provided, however, that in all cases, regardless of the Purchaser entity, and regardless of the Specified Jurisdiction, the United States Arbitration Act, 9 USC §§1-16, as amended (the "Federal Arbitration Act"), governs any arbitration proceeding. For the avoidance of doubt, the United Nations Convention on the International Sale of Goods does not apply to this Agreement.
(d) Limited Court Actions: Either party may apply to a court as specified in Section 20(e) below only (i) to compel or dispute arbitration in accordance with the terms of this Agreement, (ii) to enforce or challenge enforcement of an arbitration award, (iii) to bring a claim under the Federal Arbitration Act, or (iv) if an emergency arbitrator mechanism is unavailable, for preliminary and/or permanent injunctive relief, subject to Section 7(b) and Section 18(b) of these Terms.
(e) Jurisdiction and Venue: For the limited purposes identified in Section 20(d) above, the parties submit to the exclusive jurisdiction and venue of the commercial courts listed below:
(i) if the Purchaser entity is domiciled in China, then the courts of Hong Kong, S.A.R;
(ii) if the Purchaser entity is domiciled in Russia, then the Russian state commercial courts;
(iii) if the Purchaser entity is domiciled in one of the following countries, then the English Courts in London: Afghanistan, Algeria, Armenia, Azerbaijan, Bahrain, Cyprus, Djibouti, Egypt, Georgia, Iran, Iraq, Jordan, Kazakhstan, Kuwait, Kyrgyzstan, Lebanon, Libya, Mauritania, Morocco, Oman, Pakistan, Palestinian Territories, Qatar, Saudi Arabia, Somalia, Somaliland, Sudan, Syria, Tunisia, Turkey, Turkmenistan, Sahrawi Arab Democratic Republic, United Arab Emirates, Uzbekistan and Yemen;
(iv) if the Purchaser entity is domiciled in Israel, then the competent courts in Tel Aviv-Jaffa, Israel;
(v) if the Purchaser entity is domiciled in the State of California, then the State or federal (if federal jurisdiction exists) courts located in Los Angeles County, USA; and if the Purchaser entity is domiciled in any other State or territory of the United States of America, then the State or federal (if federal jurisdiction exists) courts located in the County and State of New York, USA; or
(vi) if the Purchaser entity is domiciled in any jurisdiction not listed in Section 20(e)(i), (ii), (iii), (iv) or (v) above, then the commercial courts of the jurisdiction of the registered domicile or principal place of business of the Purchaser entity.
(a) This Agreement supersedes any prior understanding or written or oral agreements between the parties and constitutes the entire agreement between Buyer and Seller with respect to the Purchase of the Materials described on the Face.
(b) (i) The order detail in the Vendor Portal may be agreed upon within the Vendor Portal. In addition, any part of this Agreement may be executed by electronic signature, facsimile and in any number of counterparts, each of which is deemed an original but all of which together constitute a single instrument. (ii) Any amendment, modification, extension, release, discharge or waiver of this Agreement is not binding upon Buyer except to the extent Buyer has specifically accepted such change within the Vendor Portal or Buyer has specifically executed by hand (or placed an electronic signature on) a document in which the same is explicitly agreed upon. (iii) Buyer is not bound by Seller's Proposals, the Acknowledgement's Terms and any other terms and conditions of Seller by the clicking of a button with a mouse or the pressing of an enter key on a keyboard to "accept" or "agree" to electronically displayed terms. All such electronically displayed terms are rejected by Buyer.
(c) Unless otherwise set forth in this Agreement, all notices, requests, demands and other communications hereunder must be in writing and are deemed given (i) if delivered personally, on the date of delivery; (ii) if delivered by a courier express delivery service, on the date of delivery: if to Buyer: to the name and address of Buyer on the Face, with a copy to Paramount Global, 1515 Broadway, New York, NY 10036 Attention: General Counsel; and if to Seller: at the name and address of Seller set forth on the Face.
(d) The parties to this Agreement are independent contractors. Nothing herein creates a partnership, joint venture, relationship of employment, agency or other association between the parties or any of the parties' officers, directors, employees, consultants, agents or independent subcontractors.
(e) No waiver of a breach of any provision hereof constitutes a waiver by Buyer of any other breach or of any other provision. If any provision of this Agreement is held to be invalid, the remainder of this Agreement remains in full force and effect.
(f) Neither this Agreement nor any interest under it may be assigned by Seller without Buyer's prior written consent. Buyer may assign its rights or delegate its obligations under this Agreement and any interest hereunder to another entity, Affiliate or individual who obtains control (as defined in Section 2 of these Terms) of the business of the Purchaser that is primarily receiving the benefits of this Agreement. Upon such assignment and a written assumption of liability hereunder by the assignee that is delivered to Seller, Buyer is discharged of any further liability pursuant to this Agreement.
(g) Interpretive guidance: In this Agreement: (i) words in the singular include the plural and vice versa, and words of one gender include the other gender as the context requires; (ii) The word "including" and words of similar import mean "including, without limitation" or mean "including but not limited to", unless otherwise specified; (iii) The word "or" is exclusive such that, for example, when a condition is stated as "if 'x' or 'y'" it means that: (A) if x is true by itself, the condition is satisfied; (B) if y is true by itself, the condition is satisfied; or (C) if x is true and y is true, the condition is satisfied; (iv) Descriptive headings are for the convenience of the reader, and are not used to add to or limit the meaning or interpretation of relevant terms.
(h) The following Sections survive the termination or expiration of this Agreement: 1, 2, 3, 4.2, 6(d), 7, 8, 9, 10, 11, 12, 15, 16, 17, 18, 19, 20, 21 and 22.
22. English Version Controls, Jurisdictional Variations
In the event of a conflict between the English version of these Terms and a version in another language, the English version shall control. A translation to another language is provided simply as a convenience for the reader. Purchaser is not responsible for any ommissions, errors, or inaccuaracies in a provided translation. The parties are bound by each provision in the English version of these Terms even if the translated version of such provision is completely omitted, contains errors, or is otherwise inaccurate.
Sections 1 through 21 of these Terms (the "Forgoing Sections") are subject to and modified by the provisions of this Section 22; and in the event of a conflict between the Forgoing Sections and the provisions of this Section 22, then this Section 22 shall control.
(a) Australia: With respect to a Purchaser that is domiciled or has its principal place of business in Australia, the following applies:
(i) These Terms are to be governed by and construed according to the laws of the Australian Capital Territory, without reference to conflict of laws principles.
(b) Chile: With respect to a Purchaser that is domiciled or has its principal place of business in Chile, the following applies:
(i) Section 7(a) (Payment Terms) of the Forgoing Sections is modified such that ninety (90) days is adjusted to be thirty (30) days.
(c) Israel: With respect to a Purchaser that is domiciled or has its principal place of business in Israel, the following applies:
(i) These Terms are to be governed by and construed according to the laws of the State of Israel, without reference to conflict of laws principles.
(ii) Section 4.2 (Ownership of the Output of all Services) of the Forgoing Sections is modified as follows: Seller explicitly agrees that all Materials created, whether or not included in the final version thereof, shall be created and produced as a "commissioned work” pursuant to article 35 of the Israeli Copyrights Act 2008, whereby Buyer shall own all of the rights comprised in the copyright in and to such Materials as of their creation. If, for any reason, any portion of the Materials are deemed not to be a "commissioned work” pursuant to Article 35 of the Israeli Copyrights Act 2008, then Seller hereby assigns to Buyer all of Seller's right, title and interest (including the copyright) in and to such Materials or portions thereof.
(iii) Section 7(a) (Payment Terms) of the Forgoing Sections is modified such that ninety (90) days is adjusted to be forty five (45) days.
(iv) Section 16 (Insurance) of the Forgoing Sections does not apply with respect to a Purchase between a Purchaser that is domiciled or has its principal place of business in Israel and a Seller that is domiciled or has its principal place of business in Israel.
(d) Japan: With respect to a Seller that is domiciled or has its principal place of business in Japan, the following applies:
(i) Section 7(a) (Payment Terms) of the Forgoing Sections is modified such that ninety (90) days is adjusted to be sixty (60) days but only as and when required by applicable law in Japan, such as, the 'Act against Delay in Payment of Subcontract Proceeds' (Act No. 120 of June 1, 1956).