1. ACCEPTANCE OF TERMS AND CONDITIONS.
1.1 THE FIRST TO OCCUR OF ANY OF THE FOLLOWING EVENTS WILL CONSTITUTE FRANCHISEE’S OR VENDOR’S, AS THE CASE MAY BE, CONCLUSIVE ACCEPTANCE OF THE RESPECTIVE PURCHASE ORDER AND THESE TERMS AND CONDITIONS: (i) Franchisee’s issuance of a Franchisee Purchase Order; (ii) Vendor’s written acceptance of a CEC Purchase Order; (iii) Vendor’s commencement of any work or services toward performance of the CEC Purchase Order; or (iv) Vendor’s shipment or provision, in whole or in part, of any Products or Services ordered.
1.2 Any acceptance by Franchisee or Vendor stating additional or different terms from those stated in the Purchase Order shall operate as an acceptance by Franchisee/Vendor, but the terms and conditions of the Purchase Order and these Terms and Conditions shall take precedence over any and all such additional or differing terms. CEC hereby gives Franchisee and Vendor notice of CEC’s objection to such additional, modifying or differing terms. No such modifying, differing or additional terms in Franchisee’s or Vendor’s acceptance shall be binding or effective unless CEC expressly agrees to such different or added term in a writing signed by both respective parties.
The terms herein shall have the following meanings:
2.1 “CEC” means CEC Entertainment, LLC, a Texas limited liability company, and its subsidiaries (e.g., CEC Entertainment Concepts, L.P., Peter Piper, LLC, and SPT Distribution Company, LLC) and affiliates.
2.2 “CEC Purchase Order” means an order from CEC for Products or Services from the Vendor, all of which are issued under these terms and conditions and any additional terms and conditions included by CEC on the face of a purchase order.
2.3 “Franchisee” means a person who has executed either a development agreement or franchise agreement with CEC for the rights to operate a Chuck E. Cheese restaurant and who has placed an order with CEC.
2.4 “Franchisee Purchase Order” means an order from Franchisee for Products or Services from CEC, all of which are issued under these terms and conditions and any additional terms and conditions included by Franchisee on the face of a purchase order, provided those additional terms and conditions do not conflict with this Agreement.
2.5 “Purchase Order” means collectively CEC Purchase Order and Franchise Purchase Order.
2.6 “Products” and “Services” means any products or services ordered from Vendor as indicated on the face of a CEC Purchase Order.
2.7 ʺTerm and Conditions” means the terms and conditions in this document.
2.8 “Vendor” means the party with whom CEC has placed a CEC Purchase Order.
3.1 CEC Purchase Order. Vendor agrees to furnish the Products and/or Services called for by the CEC Purchase Order at the price(s) stated therein. If Vendor decreases prices for any items to be furnished hereunder, the price of all unshipped items shall be adjusted to the lower prices. If the CEC Purchase Order is placed on an open order basis, and in the absence of a subsequent agreement, then the price to CEC shall not be higher than Vendor’s lowest prevailing price in effect on the date of the CEC Purchase Order for the same or substantially similar Products or Services of comparable quality.
3.2 Franchisee Purchase Order. CEC agrees to furnish the Products and/or Services called for by the Franchisee Purchase Order at the price(s) stated therein.
4.1 CEC Purchase Order. Vendor bears sole and exclusive responsibility for the reporting and payment of liabilities for Taxes (as defined below) that arise due to Vendor’s business operations including Taxes that may become due and payable as the result of the purchase, use, or ownership of assets as well as any liabilities for Taxes Vendor has the legal obligation to collect from CEC and remit to the appropriate taxing jurisdiction(s) arising from the sale, trade, exchange or transfer of goods and services (including intangible property). If appropriate and when valid (pursuant to the applicable tax law and regulations), CEC will provide Vendor a properly completed and executed sales tax exemption certificate. In such a case, Vendor agrees not to invoice or collect sales tax (or valued added tax, if applicable) on the sale of goods and services that are not otherwise subject to sales tax or sold pursuant to a sales tax exemption certificate provided to Vendor by CEC.
In the event that Sales Tax is erroneously invoiced and/or collected by Vendor, then Vendor agrees to refund said amounts to CEC immediately upon its discovery or notification by CEC to Vendor (regardless of Vendors ability to recover the erroneously invoiced and collected tax from the taxing jurisdiction). In the event that Vendor subsequently discovers that it has under collected and/or failed to invoice any Taxes to CEC (“Uncollected Taxes”), Vendor shall notify CEC (“Tax Notice”), and provide information sufficient to allow the CEC to ascertain whether or not the Uncollected Taxes were previously paid by the CEC to a taxing jurisdiction on its own accord (e.g., “use” or “consumption” based tax, self‐reported or paid by CEC as a result of an audit assessment, or by any other means). If the Uncollected Taxes have been previously paid to a taxing jurisdiction, then CEC shall provide Vendor with proof of payment and those amounts shall not be owed or payable to Vendor by CEC or any other party. In no event shall CEC be obligated for Uncollected Taxes resulting from goods and services invoiced to CEC unless it has been notified (in writing) in the manner described above (“Tax Notice”) by Vendor within (18) eighteen months of the earlier of the original invoice date or the delivery date of the goods and services the Uncollected Tax relates (“18‐Month Notification Period”). With respect to any Taxes (including Uncollected Taxes) arising from goods and services invoiced to CEC prior to the 18‐Month Notification Period and absent a Tax Notice, Vendor agrees to defend and hold harmless CEC (without any limitation) for Taxes that Vendor failed to invoice, collect, and/or pay to the proper taxing jurisdiction including any applicable interest and penalties, attorneys’ fees, court costs and/or professional, expert or consultants’ fees and costs. Each invoice (including any invoice that may be in the form of a purchase order or work order) at a minimum shall separately state the following (if applicable): (a) quantity, (b) description of good/services, (c) freight, (d) handling, (e) labor, (f) rent, (g) fuel surcharge, (h) sales tax (or valued added tax, whichever is applicable), and state if the goods and/or services are taxable or non‐taxable as such relates to sales tax (or valued added tax, whichever is applicable).
Taxes mean all taxes imposed of any nature imposed by any governmental authority or taxing jurisdiction including federal, state, local or foreign net income tax, alternative or add‐on minimum tax, profits or excess profits tax, franchise tax, gross income tax, adjusted gross income or gross receipts tax, unemployment or employment related tax (including employee withholding or employer payroll tax, FICA, FUTA or SUTA), real or personal property tax, ad valorem tax, sales or use tax, excise tax, stamp or customs duty tax, withholding or back up withholding tax, value added tax, severance tax, prohibited transaction tax, premium tax, occupation tax, license tax, windfall profits tax, environmental tax, capital stock tax, disability tax, transfer tax, registration tax, estimated tax or other tax of any kind, whether computed on a separate or consolidated, unitary or combined basis or in any other manner, together with any interest or any penalty, addition to tax or additional amount, whether disputed or not and including any obligation to indemnify or otherwise assume or succeed to the tax liability of any other Person.
4.2 Franchisee Purchase Order. CEC bears sole and exclusive responsibility for the reporting and payment of liabilities for Taxes (as defined in Section 4.1 above) that arise due to CEC’s business operations. In the event that CEC has the legal obligation to collect Taxes (e.g., sales tax or valued added tax) from Franchisee resulting from the sale, trade, exchange, transfer of tangible or intangible property, rent, or provision of service, such applicable Tax shall be invoiced to Franchisee and Franchisee shall pay such Tax to CEC unless Franchisee provides CEC a valid and properly completed, executed sales tax exemption certificate. In such a case, CEC agrees not to invoice or collect sales tax or valued added tax on the sale of goods and services that are not otherwise subject to sales tax or sold pursuant to a sales tax exemption certificate provided to CEC. CEC has the legal obligation to remit to the appropriate taxing jurisdiction(s) sales tax and valued added tax collected from Franchisee.
5. DUTIES AND TARIFFS.
CEC reserves its rights to claim U.S. Customs duty drawback for any Products sold to a Franchisee pursuant to a Franchisee Purchase Order for which Franchisee is the exporter of record. Franchisee acknowledges and consents to such reservation. Franchisee shall cooperate so as to facilitate CEC’s ability to promptly claim and collect, duty drawbacks, including, without limitation, the execution of any and all documents required by U.S. law or as otherwise reasonably necessary to claim and collect any duty drawbacks.
6. INVOICING, DISCOUNTS & PAYMENTS.
6.1 CEC Purchase Order Invoices. Vendor will issue individual invoices for each shipment made under a CEC Purchase Order. An acceptable invoice shall be in duplicate and shall include, without limitation:
(i) the Purchase Order number;
(ii) point of shipment;
(iii) manner of shipment;
(iv) transportation charges, if any;
(v) a description of the items;
(vi) quantities and unit prices for all Products and/or Services delivered and being invoiced; and
(vii) Any applicable discount basis.
No charge shall be made for cartage, handling or other extraordinary expense, excluding transportation, unless authorized by CEC in the Purchase Order. Payment terms are generally thirty (30) days following receipt of an acceptable invoice, unless stated differently on the Purchase Order. However, Vendor will not assess any interest charges on payments due, whether or not payment is made before of after the anticipated payments schedule. Payment will be deemed to paid when CEC mails the check.
6.2 Franchisee Purchase Order Invoices. CEC will issue individual invoices for each shipment made under a Franchisee Purchase Order. An acceptable invoice shall be in duplicate and shall include, without limitation:
(i) the Purchase Order number;
(ii) point of shipment;
(iii) manner of shipment;
(iv) transportation charges, if any;
(v) a description of the items;
(vi) quantities and unit prices for all Products and/or Services delivered and being invoiced; and
(vii) Any applicable discount basis.
7. DELIVERY AND RISK OF LOSS. TIME IS OF THE ESSENCE. Delivery shall be strictly in accordance with the schedule set forth in the Purchase Order and any anticipated or actual delays in shipment shall be reported immediately to the appropriate party. Delivery in advance of the schedule set forth in the CEC Purchase Order need not be accepted by CEC, but if accepted, CEC reserves the right to defer inspection and/or payment according to the original schedule. Any delivery is accepted subject to final inspection and test of the items by CEC at final destination. Acceptance of the goods by CEC shall not relieve Vendor from any of its obligations and warranties hereunder. In no event shall CEC’s payment be deemed to constitute acceptance.
7.1 CEC Purchase Orders.
- FOB Point of Shipment. In the event the price stated on the front of the Purchase Order is F.O.B. point of shipment, CEC will accept delivery of the items purchased as loaded in railroad cars or trucks at point of shipment and title and risk of loss to the materials will pass to CEC upon loading into railroad cars or trucks.
- FOB Destination. In the event the price stated on the front of this Purchase Order is F.O.B. destination, title and risk of loss to the items shall pass to CEC upon arrival of the items at the specified destination. Destination, as used herein, is CEC’s uploading facility.
7.2 Franchisee Purchase Orders. Unless otherwise authorized by CEC in writing, all Products ordered by Franchisee shall be FOB Point of Shipment. Franchise will, therefore, accept delivery of the items purchased as loaded in railroad cars or trucks at point of shipment and title and risk of loss to the materials will pass to CEC upon loading into railroad cars or trucks.
- CEC Purchase Orders. Import/Export clearances shall be the responsibility of Vendor, and freight and duties shall be the responsibility of CEC. Title and risk of loss shall pass to CEC when Products are handed off, cleared for import, to CEC’s designated carrier at CEC’s named place, provided however, that the risk of loss shall remain with Vendor as to any Products which are not accepted by CEC or which are rejected by CEC.
- Franchisee Purchase Orders. Import/Export clearances shall be the responsibility of Vendor, and freight and duties shall be the responsibility of CEC. Title and risk of loss shall pass to CEC when Products are handed off, cleared for import, to CEC’s designated carrier at CEC’s named place, provided however, that the risk of loss shall remain with Vendor as to any Products which are not accepted by CEC or which are rejected by CEC.
8. PACKING, SHIPMENT, SERVICES.
8.1 CEC Purchase Orders. All Products shall be suitably prepared and packed for shipment according to CEC’s instructions and in a manner which follows good commercial practice, is acceptable to common carriers for shipment at the lowest rate, and is adequate to insure safe arrival. If shipment by premium transportation becomes necessary in order to fulfill Vendor’s delivery obligations under a CEC Purchase Order, the Vendor will pay premium transportation charges unless shipment is F.O.B. point of shipment, in which case the Vendor will pay the difference between such premium transportation and the minimum of shipping charges. Vendor shall furnish for each shipment receipted bill of lading or other receipts from the carrier. All shipments and documents related thereto must bear Vendor’s name, the CEC Purchase Order number, identification of contents, and indicate the quantities and the gross, tare and net weight of each material shipped. A packing list shall accompany each package or shipment. In the absence of a packing list, CEC’s count of the number of units in the shipment shall be conclusive. All Services shall be performed to high industry standards by knowledgeable personnel skilled in the field.
8.2 Tracking Labels. If product being shipped to CEC pursuant to a CEC Purchase Order is a children’s product as defined by the Consumer Product Safety Act as amended by the Consumer Product Safety Improvement Act of 2008 (“CPSIA”), then the Vendor must affix tracking labels as required by the CPSIA.
8.3 Franchisee Purchase Orders. All Products provided pursuant to a Franchisee Purchase Order shall be suitably prepared and packed for shipment in a manner which follows good commercial practice, is acceptable to common carriers for shipment at the lowest rate, and is adequate to insure safe arrival.
9. ACCEPTANCE. Payment for Products and Services ordered hereunder shall not constitute acceptance. All items and Services are subject to CEC’s inspection and test before final acceptance at CEC’s premises. No item or Service shall be deemed accepted by CEC until CEC has given written notice of such acceptance to Vendor. If any inspection or test is made on Vendor’s premises, Vendor shall provide CEC’s inspectors with reasonable facilities and assistance at no additional charge. In the event of rejection of Products or Services, CEC will have the right, at its sole option, to return the Products for prompt refund of previous payments, if any, return the Products for prompt replacement with conforming Products, hold the Products for prompt correction by Vendor at CEC’s plant, accept the Products subject to an equitable adjustment in price, or notify Vendor of nonconforming Products or Services and receive a full refund therefore. Rejected Products returned to Vendor will be returned at Vendor’s risk and expense. All corrective work will be performed at Vendor’s expense. If Vendor fails to promptly refund prior payments or to promptly replace or correct rejected Products or Services in accordance with CEC’s instructions, CEC will have the right to cancel the Purchase Order for breach, and, in addition to any other remedies available at law, obtain replacement Products or Services (cover) from another vendor at Vendor’s expense.
10. PRODUCT INFORMATION FOR CEC PURCHASE ORDERS.
10.1 Testing. All product testing required by federal, state or local laws and regulations, including but not limited to the CPSA shall be conducted by the Vendor at its sole cost and expense. Vendor must provide CEC with all product test results, which includes but is not limited to any retesting performed on a product. If a product’s manufacturing process changes in anyway (“Changed Product”), the Vendor must re‐test the Product as required by the then current legal and industry standards prior to delivering the Changed Product to CEC and deliver a certificate and test results to CEC which verify the Changed Product meets or exceeds those standards. Vendor must also retest any product where there is a change in Vendor’s supplier for component parts or materials. Vendor must prepare and submit all certificates of compliance and conformity certificates in whatever manner is required by the Consumer Product Safety Commission and provide CEC with a copy of said certificates.
10.2 Undue Influence. Any attempts whether by a Vendor, manufacturer, importer of record, or agent of same to unduly influence any test results are prohibited. If CEC becomes aware of undue influence will be reported to the CPSC and will result in the immediate termination of any contractual relationship with Vendor including, but not limited to, any current purchase order.
10.3 Manufacturer/Component Manufacturer. The Vendor shall disclose to CEC the identity by name, address, telephone number and electronic mail address of each and every manufacturer/component manufacturer for each product provided to CEC by Vendor.
10.4 Product Samples. Vendor must maintain at least five (5) samples of all versions of each Product provided to CEC by Vendor for the duration of the commercial relationship between Vendor and CEC plus two (2) years.
11. WARRANTIES AND REPRESENTATIONS. Vendor warrants that all Products provided pursuant to a CEC Purchase Order shall be merchantable, free from defects in workmanship and materials, conform to all applicable International and United States product safety laws and regulations, all required product testing is performed and documented as required by law and industry standards, including but not limited to the CPSA, and shall strictly conform to the applicable drawings and specifications for the Products. Vendor further warrants that all Services performed under the CEC Purchase Order shall be free from defects in workmanship, shall comply with all warranties and shall be performed in accordance with the highest prevailing performance standards. Vendor also warrants and represents that all Products provided will be new and will not be used or refurbished. At CEC’s option, Vendor shall promptly repair, correct, replace or refund the purchase price and cost of shipment to CEC of all defective or otherwise unacceptable Products and/or Services. CEC shall have no liability for any returned Products and Vendor shall bear all liability, responsibility and expenses for them.
12. VENDOR’S INDEMNIFICATION AND INSURANCE OBLIGATIONS. Vendor shall defend, indemnify and hold harmless CEC, and its subsidiaries, affiliates, officers, directors, shareholders, customers, agents and employees against any and all costs, expenses, losses, damages or liabilities (including attorneys’ fees and costs) arising in connection with any (i) breach of these terms and conditions; (ii) a breach of any of its warranties or representations contained herein; (iii) any claim based on the negligence, omissions or willful misconduct of Vendor or any Vendor’s Assistants; (iv) any actual or alleged personal injury, property damage or contamination of the environment caused by or arising out of the Services or use of the Products or Services, manufacturing defect in the Products, failure of the Products or Services to comply with all federal, state and local laws and regulations, failure to comply with CEC’s specifications; or (v) infringement of any patent, copyright, trade secret, trademark or other intellectual property right arising out of the use or sale by CEC or use by CEC’s customers of any Products or Services furnished hereunder.
CEC shall, as soon as practicable, notify Vendor of any such claim or demand and Vendor shall defend any suits based thereon. If an injunction issues as a result of any such claim, Vendor agrees, at its expense, to either at CEC’s option: procure for CEC the right to continue using Products or Services ordered thereunder; replace such Products with non‐infringing items; modify the Products so they become non‐infringing; re‐perform the Services, or at CEC’s option, refund to CEC the amount paid for the Products or Services. Vendor shall have no liability to the extent that the claim or liability arises by reason of any equipment or materials furnished by CEC to Vendor or to the extent that the claim or liability is a direct result of the Products having been manufactured pursuant to CEC’s design or specifications. Vendor shall not settle any such lawsuit or claim.
Vendor shall secure and maintain, at its own expense, throughout the entire term of this Agreement, the following insurance coverage: (i) Worker’s Compensation policy which shall fully comply with any and all statutory requirements of all applicable state and federal laws and regulations, and where permitted by law, shall also include a waiver of subrogation in favor of CEC; (ii) Employers’ Liability insurance policy which limit shall be at least $500,000 per accident for bodily injury and $500,000 per employee/aggregate for disease; and (iii) Commercial General Liability Insurance policy which shall have a minimum combined single limit of liability of $1,000,000 per occurrence for bodily injury and/or death and/or property damage and/or personal injury. This shall include products/completed operations coverage, and shall also include Broad Form Contractual coverage specifically covering this Agreement. CEC shall also be named and included in the foregoing policies as an additional insured.
13.1 Confidentiality. In the course of Vendor’s performance under a CEC Purchase Order, Vendor may have access to, either orally, in writing or by observation, certain valuable information of a confidential nature relating to CEC or its business including, without limitation, information relating to CEC’s products, technology, services, research and development, and engineering processes, computer software, inventions, intellectual property, business plans, finances, customers (and their information) and employees (the “Confidential Information”). Vendor agrees: (i) that CEC retains all right, title and interest in the Confidential Information; (ii) to maintain the Confidential Information in confidence; (iii) not to use the Confidential Information except in accordance with the provisions of the Purchase Order; and (iv) not to disclose any Confidential Information to any third party without CEC’s prior written consent.
Vendor may disclose the Confidential Information to its employees with a need to know such information in order for Vendor to perform its obligations under a CEC Purchase Order, provided such employees have agreed in writing, either as a condition of employment or to receive the Confidential Information, to be bound by terms and conditions substantially similar to and at least as protective as those in this provision with respect to the Confidential Information. Vendor further agrees to treat the Confidential Information in the same manner as Vendor treats its own confidential information of a similar nature, but in no event exercising less than reasonable care. The Confidential Information shall remain the sole property of CEC or its licensors. Vendor will, on CEC’s request or upon completion of the Purchase Order, promptly return or certify the destruction of all Confidential Information provided to Vendor. Unless otherwise specifically agreed to in writing by CEC, all information, heretofore or hereafter disclosed by Vendor to CEC in connection with a CEC Purchase Order shall not be deemed to be Confidential Information.
13.2 Advertising. Vendor may not use CEC’s name in disclosures to the public or advertisements of any kind, nor shall Vendor disclose the existence or content of a CEC Purchase Order, without CEC’s prior written consent.
Vendor acknowledges and understands that CEC from time to time may show the Product(s) in CEC’s advertising. As such Vendor hereby grants CEC a limited, non‐transferable, non‐sublicensable, non‐exclusive, royalty‐free license to either orally or visually in, and in connection with the production, distribution, exhibition, advertising and exploitation of advertisements which use the name, likeness, actual pictures and/or footage of all Product(s) purchased hereunder or a reference to it, by any means whatsoever, whether now known or hereafter devised, in perpetuity throughout the world; provided, however, Vendor is not guaranteed that the Product(s) will be used in CEC’s advertisements. Ownership and goodwill associated the advertisements is vested in CEC, and Vendor shall make no claims or demands based upon the use of the Product(s) for compensation, infringement, or otherwise. Vendor shall not have the right to terminate or rescind this Agreement or any of the rights granted hereunder or in any way enjoin or restrain the production, distribution, advertising or other exploitation of the advertisements.
14. DISCLAIMER OF CONSEQUENTIAL DAMAGES. CEC SHALL NOT BE LIABLE TO VENDOR, A FRANCHISEE OR ANY THIRD PARTY FOR ANY LOST PROFITS, CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, REVENUE OR PROFIT, INTERRUPTION OF BUSINESS OR CLAIMS AGAINST EITHER PARTY OR ITS CUSTOMERS BY ANY THIRD PARTY, WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY, EVEN IF CEC IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15. LIMITATION OF LIABILITY. IN NO EVENT WILL CEC’S TOTAL LIABILITY UNDER THIS AGREEMENT FOR ALL CLAIMS BY VENDOR, FRANCHISEE OR ANY THIRD PARTY OF WHATEVER NATURE EXCEED MONIES RECEIVED BY VENDOR FROM CEC (OR BY CEC FROM FRANCHISEE) PURSUANT TO THIS AGREEMENT DURING THE SIX MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO LIABILITY. THIS LIMITATION IS CUMULATIVE FOR ALL CLAIMS HOWSOEVER ARISING, AND THIS LIMITATION SHALL APPLY EVEN IF THE REMEDIES PROVIDED IN THIS AGREEMENT SHALL FAIL OF THEIR ESSENTIAL PURPOSE.
16. FORCE MAJEURE. No party shall be responsible for its failure to perform due to causes beyond its reasonable control such as acts of God, fire, pandemics, earthquakes, theft, war, riot, embargoes or acts of civil or military authorities. If delivery is to be delayed by such contingencies, notice shall be provided.
17. ASSIGNMENT. Vendor shall not delegate any duties nor assign any rights under the Purchase Order without the prior written consent of CEC, and any attempted delegation or assignment lacking such consent shall be void.
18. SETOFF. All claims for monies due or to become due from CEC hereunder shall be subject to deduction by CEC for any set off or counterclaim arising out of this or any other of CEC’s transactions with Vendor.
19. COMPLIANCE WITH LAWS. Vendor will comply with all federal, state and local laws and regulations applicable to the performance of its obligations hereunder including, to the extent applicable and without limitation, the Fair Labor Standard Act of 1938, as amended, the United States Foreign Corrupt Practices Act, U.S. Import and Export Regulations, the Occupational Safety and Health Act as amended, the Equal Employment Opportunity clauses prescribed by Executive Orders 11246, 11375, 11625, 11701 and 11758 regarding nondiscrimination because of race, creed, color, sex, age, national origin, physical or mental handicap, or veteran status, the Consumer Product Safety Act, as amended, and the Federal Hazardous Substances Act, as amended. Vendor warrants and represents that the materials to be furnished and the services to be rendered under a CEC Purchase Order shall be manufactured, sold, used and rendered in compliance with applicable United States and international prohibitions on child labor.
20. REMEDIES. In the event of any default by Vendor, including Vendor’s failure to fulfill or perform as required by the Terms of the Purchase Order or any of the Terms and Conditions as set forth herein, and the breach of any warranty set forth herein, or in any superseding written contract, or if CEC shall have a reasonable doubt as to Seller’s ability to perform its obligations, the CEC may: (i) terminate the CEC Purchase Order, in whole or in part, or defer the acceptance of further shipments tendered pursuant to this Purchase Order until the default of the Vendor objected to by CEC has been remedied to the satisfaction of the CEC, (ii) purchase the items in the open market and charge to Vendor any and all amounts paid in excess of the price provided herein as damages, and (iii) recover its costs and expenses, including reasonable attorney’s fees, from Vendor. Nothing in the Terms and Conditions of a CEC Purchase Order shall be so construed as to prevent CEC from bringing any other appropriate action to enforce all of its rights under a CEC Purchase Order or any other such contract, it being expressly understood that all rights and remedies reserved under the Terms and Conditions contained herein shall be cumulative and in addition to any further rights and remedies provided in law or equity.
21. TERMINATION. CEC may terminate this Agreement upon written notice to Vendor if Vendor: (i) is believed to have or has exerted undue influence over a product test result; (ii) fails to perform or otherwise breaches this Agreement; or (iii) files a petition in bankruptcy, becomes insolvent, or dissolves. In the event of such termination, CEC shall pay Vendor for the portion of those conforming Products delivered to CEC through the date of termination, less appropriate offsets.
CEC may terminate this Agreement, or any related CEC Purchase Order(s), for any other reason upon thirty (30) daysʹ written notice to Vendor. Vendor shall cease to perform Services and/or provide Products under this Agreement or any related CEC Purchase Order(s), on the date of termination specified in such notice. In the event of such termination, CEC shall be liable to Vendor only for those Services satisfactorily performed and those conforming Products delivered to CEC through the date of termination, less appropriate offsets.
Vendor may terminate this Agreement, or any related CEC Purchase Order(s), upon written notice to CEC if CEC fails to pay Vendor within sixty (60) days after Vendor notifies CEC in writing that payment is past due.
Upon the expiration or termination of this Agreement, or any related CEC Purchase Order(s), for any reason: (a) each party will be released from all obligations to the other arising after the date of expiration or termination, except for those which survive pursuant to Section 21.4 or by their terms survive such termination or expiration; and (b) Vendor will promptly notify CEC of all CEC Confidential Information or any Work Product in Vendorʹs possession and, at the expense of Vendor and in accordance with CECʹs instructions, will promptly deliver to CEC all such CEC Confidential Information and/or Work Product.
22. PRODUCT RECALLS.
Vendor must notify CEC immediately of any incident, claim, complaint or issue made known to Vendor concerning product safety of any Product the Vendor supplies to CEC. In the event a product supplied by Vendor is the subject of a recall, Vendor shall pay or re‐pay any recall‐related expenses CEC expends or is obligated to expend for any recall caused by Vendor or its Product(s), including without limitation, Vendor’s failure to comply with these Terms and Conditions, and/or failure to comply with the CPSA requirement, such as product testing or labeling requirements.
23. GENERAL PROVISIONS.
23.1 INSOLVENCY. In the event of any proceedings, voluntary or involuntary, in bankruptcy or insolvency, by or against Vendor, including any proceedings under the applicable federal and state bankruptcy law currently in effect, or in the event of the appointment with or without the Vendor’s consent, of an assignee for the benefit of creditors or of a receiver, CEC may, at CEC’s option, cancel any unfilled part of this order without any liability whatsoever.
- CEC Purchase Orders. In the event of any disputes raised by Vendor associated with or arising under any CEC Purchase Order, the Vendor shall first attempt to resolve such disputes through discussions between the executives of the companies. If such discussions are not productive after fifteen (15) days, the Vendor may seek mediation or arbitration through American Arbitration Association in Dallas County, Texas. This dispute resolution process shall be the exclusive process sought by the Vendor for disputes raised by the Vendor, and shall be pursued by Vendor in lieu of and instead of legal recourse sought through the courts.
- Franchisee Purchase Orders. In the event of any disputes raised by Franchisee associated with or arising under any Franchisee Purchase Order, such dispute, and resolution of the same, shall be governed by, and subject to, the applicable development or franchise agreement between CEC and Franchisee.
23.3 Applicable Law. CEC Purchase Orders are to be construed, interpreted, enforced and performed according to the laws of the State of Texas, without regard to that body of law governing conflict of laws. The United Nations Convention on the International Sale of Products shall not apply to the Purchase Order. The parties hereby agree to the exclusive personal jurisdiction of the state and federal courts located in Dallas County, Texas, and Vendor waives any right to seek a change of venue to any other court. Franchisee Purchase Order are to be construed, interpreted, enforced and performed as set forth in the applicable development or franchise agreement between CEC and Franchisee.
23.4 Waiver; Severability; and Survival. The waiver by a party of a breach of any provision contained herein shall not be effective unless in writing signed on behalf of the party against whom the waiver is asserted. Any waiver shall in no way be construed as a waiver of any succeeding breach of such provision or the waiver of the provision itself. If any provision of these Terms and Conditions or a Purchase Order are held to be invalid, illegal, or unenforceable, then to the extent permitted by law, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby. The provisions of Sections 1 (“Acceptance of Terms and Conditions”), 4 (“Taxes”), 10 (“Warranties and Representations”), 11 (“Indemnity and Insurance”), 12 (“Confidentiality; Use of Name”) 13 (“Disclaimer of Consequential Damages”), 14 (“Limitation of Liability”), 17 (“Setoff”), 18 (“Compliance with Laws”), 21 (“Product Recalls”), and 22 (“General Provisions”) shall survive expiration and any termination of the Purchase Order.
23.5 Language. All correspondence pertaining to a Purchase Order or any of its terms and conditions shall be in the English Language.
23.6 Independent Contractor. Vendor and Franchisees are independent contractors for all purposes, without express or implied authority to bind CEC by contract or otherwise. Neither Vendor, Franchisee nor their respective employees, agents or subcontractors (ʺAssistantsʺ) are agents or employees of CEC, and therefore are not entitled to any employee benefits of CEC, including but not limited to, any type of insurance. Vendor and Franchisee, respectively, shall be responsible for all costs and expenses incident to performing its obligations under this Agreement and shall provide their own supplies and equipment.
23.7 Entire Agreement. These Terms and Conditions, together with the CEC Purchase Order (including all attachments), constitutes the entire agreement between the CEC and Vendor relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. No modification, alteration or amendment shall be effective unless in writing and duly signed by both parties. For the avoidance of doubt, these Terms and Conditions as they are applicable to Franchisee, together with the Franchisee Purchase Order (including all attachments) are in addition to the applicable development or franchise agreement between CEC and Franchisee.
23.8 Non-exclusive Agreement Between Vendor and CEC. This is not an exclusive agreement. CEC is free to engage others to perform Services or provide Products the same as or similar to Vendorʹs. Vendor is free to, and is encouraged to, advertise, offer and provide Vendorʹs Services and/or Products to others; provided however, that Vendor does not breach this Agreement in doing so.