Standard Terms And Conditions

Any purchase order estimate, or any other form of order for goods or services ("Order") is given by GMR Marketing LLC, ("Agency"), upon the condition that you, the independent contractor, ("you") agree by acceptance, signing or performance, in whole or part, of the Order, that all services and goods, including artwork, music, photographs, film, ideas, concepts and other materials furnished under the Order (collectively, the "Materials") shall be to the satisfaction of Agency and provided in accordance with the Order and subject to these Standard Terms and Conditions.

The following provisions apply to orders that include intellectual property

MATERIALS: You are acting as an independent contractor to Agency, and the Materials you submit are specially commissioned for, but not limited to, inclusion in advertising, trade, or commercial works or materials. Subject solely to the limitations specifically set forth on the Order, if any, all Materials shall be deemed to be "works for hire" for Agency under the U.S. Copyright Act, and the absolute and exclusive property of Client in perpetuity. You further agree to execute and cause others who in any way contribute to the creation of the Materials to execute all further documents which, in the judgment of the Agency are required or useful to establish, protect or enforce the rights herein granted or confirmed including, any documents you are requested to sign in connection with assignment of any rights granted hereunder to Agency’s client or any third party. If, however, your performance is not considered a "work for hire" for any reason, then you hereby sell, transfer and assign to Agency without limitation, except such limitations as may be specifically set forth on the face page of the Order, all copyright and other ownership rights, interests and privileges in the Materials of whatever kind or nature, throughout the world. Without limiting the foregoing, and subject solely to the limitations specifically set forth on the face page of the Order, if any, Agency shall have the exclusive right to use, assign, transfer or license the Materials and all elements thereof, in whole or in part, alone or with other materials, and to create and use, and to assign, license or authorize others to create and use, derivative works based thereon and to alter, modify, adapt, distribute or otherwise use and exploit the Materials, derivatives thereof, or any elements of any of them in any form or medium now known or hereafter created or devised. You will not allow any liens or encumbrances to accrue against the Materials or any of the elements thereof. Agency and its affiliates shall have the right to use the Materials for self-promotional purposes.

Subject solely to the limitations specifically set forth on the face page of the Order, if any, you (a) acknowledge the existence of your statutory moral rights under 17 U.S.C. § 106A(a) of the U.S. Copyright Act and (b) knowingly waive those rights (and any similar rights arising under U.S. law or the laws of any other country that convey similar or other types of moral rights) with regard to any and all uses of the Materials.

LICENSE: To the extent that the Materials are licensed or subject to such limitations as are set forth on the face page of the Order, you hereby grant Agency, its clients and designees the right to alter, modify, edit, adapt, crop, couple, digitize or otherwise use the Materials as they see fit for the purpose for which they were ordered without the need for further consent or approval on your or anybody else’s part.

The following provisions apply to orders that include in whole or part the purchase or manufacture of goods

INSPECTION: If any Materials are found to be defective or otherwise not in conformity with the requirements of the Order, Agency may, in addition to its other rights and remedies, reject such Materials and require their prompt correction or their replacement at your expense, including shipping and packaging charges. Alternatively, Agency may repair or replace such nonconforming goods at your expense.

RISK OF LOSS: Notwithstanding any provision hereof to the contrary, title to and risk of loss of the Materials shall remain with you until the Materials are delivered at the F.O.B. point specified in the Order, or if no such point is specified, then when the Materials are delivered to Agency.

WARRANTIES: You warrant and represent that: (a) you will deliver to Agency title to the Materials free and clear of all security interests, liens, charges, restrictions or encumbrances of any kind, nature or description; (b) the Materials shall be free from defects in material and workmanship; (c) unless otherwise specified in the Order, the Materials shall be new and not used or reconditioned; and (d) the Materials and their packaging shall conform to the description thereof and specifications therefore contained in the Order.

The following provisions apply to all orders.

AGENCY/CLIENT PROPERTY: Any and all property of Agency or its clients, in your possession or control, shall be and remains the property of Agency or such clients and you shall be responsible for any loss or damage occurring to such property while such is in your possession or control. You agree to promptly return all such property to Agency upon the earlier of Agency’s request or the completion of your performance of the Order.

ACCEPTANCE: The Order may be cancelled by Agency at any time prior to its acceptance of the Materials covered by the Order, upon written notice to you. In such event, unless such termination is based on your breach, Agency shall be liable to pay you, in lieu of the price specified on the face page of the Order, any verified direct costs incurred by you in the performance of your obligations hereunder prior to such cancellation, provided, however, that the total amount of such costs shall not exceed the price specified on the face page of the Order. If delivered prior to your signing of the Order, your performance or delivery of the Materials in whole or part will constitute your unqualified acceptance of all of the terms of the Order. Agency’s payment for the Materials shall not constitute its acceptance thereof and the Materials shall be received subject to inspection, approval and privilege of return at your expense if not in compliance with the specifications of the Order. Defects are not waived by Agency’s failure to notify you of such defects upon receipt of the Materials. The Materials must in Agency’s opinion be satisfactory for the purpose for which they are ordered. Time of completion and time of delivery are of the essence. Invoices for services must be rendered to Agency within thirty (30) days after acceptance of the Materials.

PRICES. Agency shall not be billed at prices higher than those stated on Agency’s Order. Unless otherwise specified, prices on an Order include all charges for packing, storage and transportation. The price stated includes all taxes except state or local sales or use tax or similar taxes, which you are required by law to collect from Agency. Such taxes, if any, shall be separately stated in Seller’s invoice and paid by Agency unless an exemption is available.

PAYMENT TERMS: Agency’s payment terms are net sixty (60) days after receipt of properly issued invoices or delivery or acceptance of the Materials, whichever is later. All invoices must be addressed to Agency’s purchasing department at the address indicated on the Order with an electronic copy sent via email to acctspayable@gmrmarketing.com. Invoices not received within 60 days of completion of your services may be rejected by Agency in its sole discretion. All invoices must reference the Purchase Order number on the Order. Agency may offset against invoiced amounts payable amounts owed by you.

CHANGES. Agency may make changes in specifications, quantities, delivery schedules, or methods of shipment or packaging on any goods at any time. If such changes result in an increase or decrease in cost, an equitable adjustment of price and delivery schedules may be made, or Agency may, at its option, terminate the Order if agreement on an adjustment cannot be reached. Claims for adjustment must be asserted by you within ten (10) days of the change order.

AGENCY: If the Order indicates that Agency is acting as an agent or behalf of a named client, then for all purposes of such Order, Agency shall be acting as an agent on behalf of its named Client. In such case, Agency will only be liable for the cost of the goods and services purchased and other obligations to the extent Agency has been paid by Client for any amount payable to you. With regard to amounts not paid to us by Client, you agree to seek payment solely from Client and not from Agency notwithstanding any terms in your invoices, documents or rate cards to the contrary, and any modifications you make to this Purchase Order. Where Agency acts on its own behalf, all purchases under an Order are on the basis of sequested liability, and Agency will only be liable to you to the extent Agency has been paid by its client for corresponding amounts due to you under the Order, and you agree that for any amounts not so paid, you will seek payment solely from Agency’s client, not Agency.

REPRESENTATIONS AND WARRANTIES: Unless otherwise specified on the face page of the Order, you warrant and represent that (i) the Materials are original and do not violate or infringe the rights of any other, and that you have obtained all written permissions, releases, licenses and other consents necessary to permit Agency and Client to exercise its rights hereunder, including, without limitation, releases from all models and any other living persons, and the representatives of any persons whose names, likenesses, voices or other attributes are contained in, appear in, or contributed to, the Materials, and releases from the owners of any unique or unusual inanimate objects (including, but not limited to, all artwork) used or appearing in any of the Materials and (ii) Agency’s exercise of the rights granted herein and use or reproduction of the Materials will not violate any laws or the proprietary or personal rights of any third parties. You shall supply Agency with a copy of such releases upon request. You further warrant that you and your employees, agents, subcontractors and designees, if any, will perform the services hereunder in a timely, professional manner, in compliance with applicable law and with due care, that you have full authority to enter this agreement and to fully perform the services contemplated by the Order.

INDEMNITY: You agree to defend, indemnify and hold harmless Agency, its clients (and their respective subsidiaries, affiliates, parents, partners, employees, agents and licensees) against any and all loss, claim, expense, judgment or other damage or liability of any kind arising out of, or resulting from (i) your breach or violation of any representation, warrant, or covenant of the Standard Terms and, (ii) the performance of the Order by you (including, but not limited to, your employees, agents, subcontractors and designees) or the use or reproduction, in any manner whatsoever, of the Materials.

CONFIDENTIALITY: Unless authorized otherwise in writing in advance by Agency, you shall not disclose to any third party any information or material related to the functions you per¬formed or information you received or had access to in connection with an Order. You shall not use any such information or the Materials other than as required in your performance of the Order without the prior written approval of an authorized representative of Agency.

FORCE MAJEURE: For any Order, an event of "force majeure" shall mean any or all of the following events or occurrences: strikes or other labor difficulties; fires, floods or other acts of God; acts of government or any subdivision or agency thereof; acts of war or terrorism or any other cause which is beyond the reasonable control of the party claiming the occurrence of a force majeure event and which delays, interrupts or prevents such party from performing its obligations under an Order. Notwithstanding any provision hereof to the contrary, the reduction, depletion, shortage, curtailment or cessation of your raw materials or any of your other supplies or materials shall not be regarded as an event of force majeure. The party affected by a force majeure event shall give notice thereof to the other party as soon as reasonably possible but in no event later than five days following the occurrence thereof and shall apprise the other party of the probable extent to which the affected party will be unable to perform or will be delayed in performing its obligations hereunder. The affected party shall exercise due diligence to eliminate or remedy the force majeure cause and shall give the other party prompt notice when that has been accomplished. Except as provided herein, if performance of the Order by either party is delayed, interrupted or prevented by reason of any event of force majeure, both parties shall be excused from performing hereunder while and to the extent that the force majeure condition exists after which the parties’ performance shall be resumed. Notwithstanding the foregoing:

Advertising. You may not publish, display or reference your work on behalf of the Agency, or use the name, trademark, logo, brand names or program names of the Agency or its clients for promotional, advertising or other purposes without the written consent of Agency.

Assignment and Subcontracting. YOU SHALL NOT ASSIGN OR DELEGATE ANY DUTIES OR CLAIMS UNDER AN ORDER OR SUBCONTRACT THE ORDER, OR ANY PORTION THEREOF, WITHOUT THE PRIOR WRITTEN CONSENT OF AGENCY. The term "subcontract" as used in this clause means a contract for the purchase of an item or items or services to your specifications, designs, or drawings. The term does not include the purchase of standard commercial supplies or raw materials.

Right to Audit. Agency may inspect, copy and shall have access to, at all reasonable times during the performance of the Order and for five (5) years thereafter, all of yours and its subcontractors, books, records, receipts, vouchers, correspondence, instructions and the like pertaining to the Order and Materials provided, for the purpose of and as are reasonably necessary to audit and to verify that the charges presented and the Materials supplied by you are in accordance with the Order and for any other reasonable purpose.

Insurance. If included with these Terms and Conditions as Exhibit A, you are required to comply with GMR’s insurance coverage requirements set forth on such Exhibit for all Orders.

Beneficiary. You agree that any client named on the Order is an intended third party beneficiary under such Order and these Standard Terms and is entitled to enforce directly all rights under the Order and these Standard Terms.

Limitation of Liability. AGENCY EXPRESSLY DISCLAIMS, AND THE AGENCY HEREBY WAIVES ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, CONTINGENT PUNITIVE OR SPECIAL DAMAGES WHATSOEVER WITH RESPECT TO THE ORDER OR ANY UNDERTAKINGS ACTS OR OMISSIONS OF AGENCY RELATING THERETO.

ADDITIONAL TERMS: These Terms and Conditions, and any special terms noted on an Order constitute the entire agreement between the parties with respect to the Materials and your performance pursuant to the Order and cannot be modified or amended, except by an agreement in writing, signed by an authorized representative of Agency. In the event of a conflict between any special terms noted in an Order and these Terms and Conditions, the term noted on the Order shall govern. In the event of a conflict between these Standard Terms and any Master Agreement between you and Agency, the terms of the Master Agreement shall govern. Notwithstanding the payment by Agency, any terms included in any invoice, acknowledgement or other similar documents originating with you or your agents that are inconsistent with or additional to these terms shall not be binding and shall not satisfy the requirements of the preceding sentence. No waiver by Agency shall be valid unless in writing and signed by Agency. Any sums payable under an Order may only be assigned by you with the prior written consent of Agency. This Purchase Order shall be construed pursuant to the laws of the State of Wisconsin and, if applicable, pursuant to the laws of the Uniform Commercial Code (U.C.C.) applicable to contracts made and performed entirely therein.

EXHIBIT A

Insurance Coverage. If indicated on the Order that vendor insurance is required for such order, the following provisions shall apply.

  • (a) Agency shall not insure nor be responsible for any loss or damage to property of any kind owned or leased by you (including any subcontractor), its employees, servants or agents.
  • (b) You and your subcontractors, if any, at their sole costs, shall maintain insurance coverage throughout the entire term of this Order as described below with insurance companies acceptable to Agency. The limits set forth are minimum limits and shall not be construed to limit your liability. All costs and deductible amounts shall be for the sole account of you or your subcontractors. All policies required by Agency pursuant to this Order (or otherwise) shall name Agency as an additional insured and waive subrogation rights in favor of you, except policies providing statutory Worker's Compensation and Professional Liability (if required) coverage. All policies shall also be designated as primary coverage to any similar coverage carried by Agency.
  • (c) You shall not commence work or provide Materials under the Order until all insurance as required hereunder has been obtained and certificates of insurance have been submitted to and accepted by Agency. You shall provide a current certificate of insurance evidencing the following coverages and naming Agency as additional insured within thirty (30) days after coverage is renewed, extended or replaced until such time as this Order is terminated or expires.
  • (d) The required coverage shall be:
    • (i) Worker's Compensation and Employers' Liability Insurance providing benefits as required by applicable law; with a minimum limit of $500,00 each accident or limits set by applicable law, whichever is greater;
    • (ii) Commercial General Liability Insurance (Occurrence Coverage) including products, completed operations, contractual liability coverage of indemnitees contained in this Order (if applicable) and your contingent liability for subcontractors with a combined single limit of liability of $1,000,000 per occurrence for bodily injury or death and property damage;
    • (iii) Business Automobile Liability Insurance (Occurrence Coverage) for owned, non-owned, and hired automotive equipment with a minimum combined single limit of liability of $1,000,000 for each occurrence for bodily injury and property damage.
    • (iv) Umbrella/Excess Liability Insurance (Occurrence Coverage) will be required in excess of items (i) through (iii) above, depending upon the type of work performed or Service provided.
    • (v) If the scope of work under the Order includes design or engineering or other professional Services, Agency will have the option of requiring an Errors or Omissions Liability policy with appropriate coverage.
    • (vi) If designated on the face of the Order, Seller must provide a minimum limit of $2,000,000 per occurrence for Commercial General Liability (CGL) and Business Automobile Liability (BAL), or they may provide $1,000,000 per occurrence coverage for CGL and BAL, with umbrella/excess coverage of $1,000,000 per occurrence.

GMR PO Exhibit B-Transportation Providers 8.21.14

This Exhibit B shall apply and shall supersede Exhibit A ONLY if you are providing transportation services.

EXHIBIT B

Insurance Coverage. If indicated on the Order that vendor insurance is required for such order, the following provisions shall apply.

  • (a) Agency shall not insure nor be responsible for any loss or damage to property of any kind owned or leased by you (including any subcontractor), its employees, servants or agents.
  • (b) You and your subcontractors, if any, at their sole costs, shall maintain insurance coverage throughout the entire term of this Order as described below with insurance companies acceptable to Agency. The limits set forth are minimum limits and shall not be construed to limit your liability. All costs and deductible amounts shall be for the sole account of you or your subcontractors. All policies required by Agency pursuant to this Order (or otherwise) shall name Agency as an additional insured and waive subrogation rights in favor of you, except policies providing statutory Worker's Compensation and Professional Liability (if required) coverage. All policies shall also be designated as primary coverage to any similar coverage carried by Agency.
  • (c) You shall not commence work or provide Materials under the Order until all insurance as required hereunder has been obtained and certificates of insurance have been submitted to and accepted by Agency. You shall provide a current certificate of insurance evidencing the following coverages and naming Agency as additional insured within thirty (30) days after coverage is renewed, extended or replaced until such time as this Order is terminated or expires.
  • (d) The required coverage shall be:
    • (i) Worker's Compensation and Employers' Liability Insurance providing benefits as required by applicable law; with a minimum limit of $500,000 each accident or limits set by applicable law, whichever is greater;
    • (ii) Commercial General Liability Insurance (Occurrence Coverage) including products, completed operations, contractual liability coverage of indemnitees contained in this Order (if applicable) and your contingent liability for subcontractors with a combined single limit of liability of $2,000,000 per occurrence for bodily injury or death and property damage;
    • (iii) Business Automobile Liability Insurance (Occurrence Coverage) for owned, non-owned, and hired automotive equipment with a minimum combined single limit of liability of $5,000,000 for each occurrence for bodily injury and property damage.
    • (iv) Umbrella/Excess Liability Insurance (Occurrence Coverage) will be required in excess of items (i) through (iii) above, depending upon the type of work performed or Service provided.
    • (v) If the scope of work under the Order includes design or engineering or other professional Services, Agency will have the option of requiring an Errors or Omissions Liability policy with appropriate coverage.
    • (vi) If designated on the face of the Order, Seller must provide a minimum limit of $2,000,000 per occurrence for Commercial General Liability (CGL) and Business Automobile Liability (BAL), or they may provide $1,000,000 per occurrence coverage for CGL and BAL, with umbrella/excess coverage of $1,000,000 per occurrence.