Vendor Terms and Conditions
XFL GENERAL TERMS AND CONDITIONS FOR THE PURCHASE OF GOODS AND SERVICES
a. These terms and conditions of purchase (these “Terms”) are the only terms which govern the purchase of the goods (collectively, the “Goods”) and the services (collectively, the “Services”) by Alpha Entertainment LLC dba XFL (“Alpha”) from the vendor named on the Alpha vendor profile attached to these Terms (the “Vendor”) (each of Alpha and Vendor hereinafter a “Party” and together the “Parties”). Notwithstanding anything in these Terms to the contrary, if a written contract signed by both Parties is in effect covering the sale of the Goods and Services subject to these Terms, the terms and conditions of such contract shall prevail to the extent of any inconsistency with these Terms.
b. Without limiting the foregoing, the purchase order (the “Purchase Order”) in the case of Goods or the scope of work (the “Scope of Work”) in the case of Services as well as these Terms (collectively, this “Agreement”) comprise the entire agreement between the Parties (except for an executed NDA, if applicable, pursuant to Section 19 of this Agreement), and supersede all prior or contemporaneous understandings, agreements, negotiations, representations, warranties, and communications, both written and oral. These Terms prevail over any of Vendor’s own contract terms and conditions of sale regardless of whether or when Vendor has provided any such contract terms and conditions. This Agreement expressly limits Vendor's acceptance to the terms of this Agreement. Vendor’s fulfillment of the Purchase Order or performance of the Scope of Work constitutes acceptance of these Terms.
2. Delivery of Goods and Performance of Services.
a. Vendor shall deliver the Goods in the quantities and on the date(s) specified in the Purchase Order or as otherwise agreed in writing by the Parties (the “Delivery Date”). If Vendor fails to deliver the Goods in full on the Delivery Date, Alpha may terminate this Agreement immediately by providing written notice to Vendor and Vendor shall indemnify Alpha against any Losses (as defined in Section 12 below) directly attributable to Vendor's failure to deliver the Goods on the Delivery Date.
b. Vendor shall deliver all Goods to the address specified in the Purchase Order (the “Delivery Point”) during Alpha’s normal business hours or as otherwise instructed by Alpha. Vendor shall pack all goods for shipment according to Alpha’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Vendor must provide Alpha prior written notice if it requires Alpha to return any packaging material. Any return of such packaging material shall be made at Vendor’s risk of loss and expense.
c. Vendor shall provide the Services to Alpha as described and agreed upon between the Parties in accordance with the terms and conditions set forth in these Terms and the applicable Purchase Order or Scope of Work. Vendor will use commercially reasonable judgment and efforts based on applicable industry practices in the performance of the Services. Services will be rendered at the request of Alpha, in its sole discretion, which may include providing Alpha with certain work product and materials. Vendor will cooperate in any reasonable manner requested by Alpha in connection with performance of the Services, including, without limitation, providing written reports as directed by Alpha. Except as otherwise agreed upon between the Parties, Vendor shall control the manner, method, and means of performance of the Services.
d. Vendor acknowledges that time is of the essence with respect to Vendor's obligations hereunder and the timely delivery of the Goods and Services, including all performance dates, timetables, project milestones, and other requirements in this Agreement.
3. Quantity. If Vendor delivers more or less than the quantity of Goods ordered, Alpha may reject all or any excess Goods. Any rejected Goods shall be returned to Vendor at Vendor's sole risk and expense. If Alpha does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Fees (as defined in Section 7) for the Goods shall be adjusted on a pro-rata basis.
4. Shipping Terms. Delivery shall be made at the Delivery Point and shipping documents much include any invoices, correspondence, and any other relevant documents pertaining to the Purchase Order.
5. Title and Risk of Loss. Title and risk of loss passes to Alpha upon receipt of the Goods at the Delivery Point.
6. Inspection and Rejection of Nonconforming Goods. Alpha has the right to inspect the Goods on or after the Delivery Date. Alpha, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Alpha rejects any portion of the Goods, Alpha has the right, effective upon written notice to Vendor, to: (a) rescind this Agreement in its entirety; (b) accept the Goods at reasonably reduced Fees; or (c) reject the Goods and require replacement of the rejected Goods. If Alpha requires replacement of the Goods, Vendor shall, at its expense, within five (5) business days replace the nonconforming or defective Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Vendor fails to timely deliver replacement Goods, Alpha may replace them with goods from a third party and charge Vendor the cost thereof and terminate this Agreement for cause pursuant to Section 17. Any inspection or other action by Alpha under this Section shall not reduce or otherwise affect Vendor's obligations under the Agreement, and Alpha shall have the right to conduct further inspections after Vendor has carried out its remedial actions.
7. Fees. The cost of the Goods and Services is the price or fees stated in the applicable Purchase Order or Scope of Work (the “Fees”). If no Fees are included in the Purchase Order or the Scope of Work, the Fees shall be mutually agreed upon between the Parties prior to payment of any invoice. Unless otherwise specified in the Purchase Order or Scope of Work, the Fees include all packaging, transportation costs, insurance, customs duties and fees, and applicable taxes, including, but not limited to, all sales, use, or excise taxes. No increase in Fees is effective, whether due to increased material, labor, or transportation costs or otherwise, without prior written consent of Alpha.
8. Payment Terms.
a. Vendor shall issue an invoice to Alpha on or any time after the completion of delivery of the Goods or performance of Services and only in accordance with these Terms. In full and complete consideration of Vendor’s completion of delivery of Goods or performance of the Services, and subject to all other terms and conditions set forth in this Agreement, Alpha shall pay Vendor the undisputed Fees set forth in any invoice.
b. In connection with the performance of any Services, Alpha shall reimburse Vendor for any reasonable and necessary out-of-pocket expenses directly incurred by Vendor in the performance of the Services (collectively, the “Expenses”) as specified in any applicable invoice, in each case to the extent that: (i) all such Expenses have been approved in advance in writing by Alpha; (ii) such reimbursement shall be subject to the policies and procedures of Alpha regarding such reimbursement, which are incorporated by reference and may be updated from time to time by Alpha; and (iii) reimbursement shall occur only after receipt by Alpha of adequate supporting documentation therefor (as determined in Alpha’s sole discretion).
c. In accordance with Alpha’s corporate policy, Vendor is required to: (i) complete Alpha's vendor profile form; and (ii) provide a Form W-9 in order to submit invoices to Alpha and receive payment of any Fees or Expenses. Alpha shall not be required to make payment on any invoices for any Fees or Expenses unless and until all such required documentation is furnished by Vendor. Unless otherwise set forth in a Purchase Order or Scope of Work, all such Fees and Expenses shall be reimbursed by Alpha based upon its standard terms of net thirty (30) days from the invoice date, but no more frequently than on a monthly basis.
d. Without prejudice to any other right or remedy it may have, Alpha reserves the right to set off at any time any amount owing to it by Vendor against any amount payable by Alpha to Vendor under this Agreement. In the event of a payment dispute, Alpha shall deliver a written statement to Vendor no later than five (5) business days prior to the date payment is due on the disputed invoice listing all disputed items and providing a reasonably detailed description of each disputed item(s). Amounts not so disputed are deemed accepted and must be paid, notwithstanding disputes on other items, within the period set forth in this Section 8. The Parties shall seek to resolve all such disputes expeditiously and in good faith. Vendor shall continue performing its obligations under this Agreement notwithstanding any such disputes.
9. Vendor's Obligations Regarding Services. Vendor shall:
a. before the date on which the Services are to start, obtain, and at all times during the term of this Agreement, maintain, all necessary licenses and consents and comply with all relevant laws applicable to the provision of the Services;
b. comply with all rules, regulations, and policies of Alpha, including, if applicable, security procedures concerning systems and data and remote access thereto, building security procedures, including the restriction of access by Alpha to certain areas of its premises or systems for security reasons, and general health and safety practices and procedures;
c. maintain complete and accurate records relating to the provision of the Services under this Agreement, including records of the time spent and materials used by Vendor in providing the Services in such form acceptable to Alpha
d. during the term of this Agreement and for a period of two (2) years thereafter, upon Alpha's written request, Vendor shall allow Alpha to inspect and make copies of such records and interview Vendor personnel in connection with the provision of the Services;
e. obtain Alpha's written consent, prior to entering into agreements with or otherwise engaging any person or entity, including all subcontractors and affiliates of Vendor, other than Vendor's employees, to provide any Services to Alpha (each such approved subcontractor or other third party, a “Permitted Subcontractor” and together with Vendor’s employees the “Vendor Personnel”). Alpha's approval shall not relieve Vendor of its obligations under the Agreement, and Vendor shall remain fully responsible for the performance and acts and omissions of each such Permitted Subcontractor and its employees and for their compliance with all of the terms and conditions of this Agreement as if they were Vendor's own employees. Nothing contained in this Agreement shall create any contractual relationship between Alpha and any Vendor subcontractor or supplier;
f. require each Permitted Subcontractor to be bound in writing by the confidentiality provisions of this Agreement, and, upon Alpha's written request, to enter into a non-disclosure or intellectual property assignment or license agreement in a form that is reasonably satisfactory to Alpha; and
g. ensure that all persons, whether employees, agents, Permitted Subcontractors, or anyone acting for or on behalf of the Vendor, are properly licensed, certified or accredited as required by applicable law and are suitably skilled, experienced and qualified to perform the Services.
10. Change Orders. Alpha may at any time, by written instructions issued to Vendor (each a “Change Order”), order changes to the Services. Vendor shall within three (3) business days of receipt of a Change Order submit to Alpha a firm cost proposal for the Change Order. If Alpha accepts such cost proposal, Vendor shall proceed with the changed services subject to the cost proposal and the terms and conditions of this Agreement. Vendor acknowledges that a Change Order may or may not entitle Vendor to an adjustment in the Vendor's compensation or the performance deadlines under this Agreement.
a. Vendor warrants to Alpha that for a period of twelve (12) months from the Delivery Date, all Goods will: (i) be free from any defects in workmanship, material, and design; (ii) conform to applicable specifications specified by Alpha; (iii) be fit for their intended purpose and operate as intended; (iv) be merchantable; (v) be free and clear of all liens, security interests, or other encumbrances; and (vi) not infringe or misappropriate any third party's patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance, or payment of or for the Goods by Alpha.
b. Vendor warrants to Alpha that: (i) it shall perform the Services using Vendor Personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services; (ii) it will not violate any applicable laws, regulations, guidelines, and/or any third party rights and shall devote adequate resources to meet its obligations under this Agreement; (iii) Vendor has all necessary rights and licenses to provide the Services contemplated hereunder; (iv) Vendor, all Vendor Personnel, and the Services rendered hereunder shall comply with all Alpha corporate policies and best practices, including without limitation those related to cyber security; and (v) the results and proceeds of the Services shall not contain any viruses, worms, Trojan Horses, spyware, disabling device, or other malware.
c. The warranties set forth in this Section 11 are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Alpha's discovery of the noncompliance of the Goods or Services with the foregoing warranties. If Alpha gives Vendor notice of noncompliance pursuant to this Section, Vendor shall, at its own cost and expense, within five (5) business days (i) replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming Goods to Vendor and the delivery of repaired or replacement Goods to Alpha, and, if applicable, (ii) repair or re-perform the applicable Services.
12. General Indemnification. Vendor shall defend, indemnify, and hold harmless Alpha and its owners, subsidiaries, affiliates, successors and assigns and their respective directors, officers, shareholders, and employees (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost, or expense, including reasonable attorneys’ and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with: (a) Vendor’s breach or alleged breach of any of Vendors’ representations, warranties, covenants, or obligations set forth in this Agreement;; (b) violation of any applicable laws; (c) any breach by any Vendor Personnel of any of their obligations under this Agreement and/or under separate and independent agreements required to be executed by any Vendor Personnel; and (d) Vendor’s or any Vendor Personnel’s willful misconduct or negligent acts or omissions, including, without limitation, those resulting in personal injury, death, or property damage occurring in or about Alpha’s premises.
13. Intellectual Property Indemnification. Without limitation to Section 12 of this Agreement, Vendor shall, at its expense, defend, indemnify, and hold harmless Alpha and any Indemnitee against any and all Losses arising out of or in connection with any claim that Alpha's or Indemnitee's use or possession of the Goods or use of the Services infringes or misappropriates the patent, copyright, trade secret, or other intellectual property right of any third party. In no event shall Vendor enter into any settlement relating to Alpha or any Indemnitee without Alpha's or Indemnitee's prior written consent. Notwithstanding the foregoing, should an element of the Services become, or be likely to become, in Vendor’s opinion, the subject of infringement or misappropriation of a third party intellectual property right, Vendor shall at Alpha’s election either: (a) procure for Alpha the right to continue using the same; (b) replace or modify it to make it non-infringing, provided that the replacement or modification performs the same functions and matches or exceeds the original performance and functionality; or (c) refund to Alpha the Fees and Expenses paid for such infringing Goods and any other Services rendered useless as a result.
14. Limitation of Liability. For the avoidance of doubt, nothing in this Agreement shall exclude or limit: (a) any indemnification obligations hereunder, (b) any breaches of confidentiality obligations; (c) any liability associated with a failure to comply with security procedures concerning systems and data; and (d) gross negligence and willful misconduct.
15. Insurance. During the Term, or longer as required below, Vendor must obtain, and continuously maintain, at its sole cost and expense, the following insurance policies:
a. Workers’ Compensation in compliance with state statutory laws, covering employees, volunteers, temporary workers and leased workers including Employers’ Liability with minimum limits of:
i. $1,000,000 Each Accident;
ii. $1,000,000 Disease - Each Employee;
iii. $1,000,000 Disease - Policy Limit.
b. An Insurance Services Office occurrence-based Commercial General Liability Insurance Policy, providing coverage for bodily injury and property damage and personal and advertising injury including premises, operations, independent contractors, products-completed operations, contractual liability, and personal injury and advertising injury coverage with minimum limits of:
i. $1,000,000 Each Occurrence;
ii. $2,000,000 General Aggregate;
iii. $2,000,000 Products/Completed Operations Aggregate.
c. Automobile Liability Insurance, covering owned, non-owned, leased or hired automobiles, with a minimum combined single limit of $1,000,000 Each Accident.
d. Professional Liability Insurance, insuring against any injuries, claims, damages, or lawsuits arising out of the professional services to be provided under this Agreement with minimum limits of $10,000,000 Each Claim and Annual Aggregate. Coverage shall also include cyber risk, computer security, and privacy liability. If written on a claims-made basis, the retroactive date shall be no later than the first date of professional services to be provided under this Agreement and Vendor shall maintain such insurance for a period of three (3) years after expiration or earlier termination of the Agreement and shall continue to provide evidence of such insurance on an annual basis during the three year period.
e. Umbrella Liability Insurance, in excess of a, b & c above, with minimum limits of:
i. $5,000,000 Each Occurrence;
ii. $5,000,000 Annual Aggregate.
f. Umbrella policies must follow form of the underlying policies.
g. All insurance policies must be issued by an insurance carrier with an A.M. Best rating of A-VIII or better. The Commercial General Liability, Commercial Automobile Liability and Umbrella Liability policies shall name the Indemnified Parties as additional insureds. The Commercial General Liability, Commercial Automobile Liability and Umbrella Liability policies shall include a standard separation of insureds or severability of interest provision. The Commercial General Liability policy shall include no third-party-over action exclusions or similar endorsements or limitations. Further, coverage for the Indemnified Parties shall apply on a primary and non-contributory basis irrespective of any other insurance, whether collectible or not. No policy shall contain a self-insured retention. No policy shall contain a deductible in excess of $25,000 and any/all deductibles shall be the sole responsibility of the Vendor and shall not apply to the Indemnified Parties. All policies shall be endorsed to provide a waiver of subrogation in favor of the Indemnified Parties. Vendor shall provide Alpha Entertainment, LLC with prior written notice of at least thirty (30) days if any of the required policies are cancelled or not renewed. Vendor shall furnish Alpha Entertainment, LLC with certificates of insurance evidencing compliance with all insurance provisions noted above prior to the commencement of the professional services to be provided under this Agreement and annually at least ten (10) days prior to the expiration of each required insurance policy. The insurance requirements set forth will in no way modify, reduce or limit the indemnification herein made by Vendor. Receipt by Alpha Entertainment, LLC of a certificate of insurance, endorsement or policy of insurance which is more restrictive than the contracted for insurance shall not be construed as a waiver or modification of the insurance requirements above or an implied agreement to modify same, nor is any verbal agreement to modify same permissible or binding.
16. Compliance with Law. Vendor shall comply with all applicable laws, regulations, and ordinances. Vendor shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Vendor shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Vendor. Vendor assumes all responsibility for shipments of Goods requiring any government import clearance. Without limitation to Section 17 of this Agreement, Alpha may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
17. Termination. In addition to any remedies that may be provided under these Terms, Alpha may terminate this Agreement with immediate effect upon written notice to Vendor, either before or after the acceptance of the Goods or the Vendor's performance of the Services, if Vendor has not performed or complied with any of these Terms, in whole or in part. Either Party may immediately terminate this Agreement if the other becomes insolvent, is unable to pay its debts as they mature, is the subject of a petition in bankruptcy or of any other proceeding under bankruptcy, insolvency or similar laws that is not dismissed within a reasonable period (not to exceed sixty (60) days), makes an assignment for the benefit of creditors, or is named in, or its property is subjected to, a suit for the appointment of a receiver or if the nonterminating Party is dissolved or liquidated. Upon expiration or termination of this Agreement, Vendor's sole and exclusive remedy is payment for the Goods received and accepted and Services performed and accepted by Alpha prior to the termination.
18. Waiver. No waiver by Alpha of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Alpha. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
19. Confidential Information. If the Parties have entered into a separate mutual non-disclosure agreement (“NDA”), then as between the NDA and this Section 19, the provisions that afford the disclosing Party the greatest protection shall apply. Vendor and any Vendor Personnel shall not, at any time while working with Alpha, or after termination of its relationship with Alpha, disclose to any third party, or use for the benefit or profit of Vendor or any third party, any sensitive or otherwise confidential business information, idea, proposal, secret, or any proprietary information obtained during its relationship with Alpha and/or regarding Alpha, its owners employees, agents, officers, directors, subsidiaries, affiliates, divisions, representatives, agents, or assigns (“Confidential Information”). Included as Confidential Information, by way of illustration only and not limitation, are such items as reports, business plans, sales information, cost or pricing information, lists of suppliers or customers, product ideas, proposed logos, team names, and/or information regarding any contractual relationships maintained by Alpha and/or the terms thereof. Any use or disclosure of Alpha’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause Alpha irreparable damage for which remedies other than injunctive relief may be inadequate, and both Parties agree that Alpha may request injunctive or other equitable relief seeking to restrain such use or disclosure.
20. Force Majeure Event. Neither Party shall be liable to the other for any delay or failure in performing its obligations under this Agreement to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that Party, without such Party's fault or negligence, and which by its nature could not have been foreseen by such Party or, if it could have been foreseen, was unavoidable (a “Force Majeure Event”). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, hostilities, terrorist acts, riots, strike, embargoes, or industrial disturbances. Vendor's economic hardship or changes in market conditions are not considered Force Majeure Events. Vendor shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized, and resume performance under this Agreement. If a Force Majeure Event prevents Vendor from carrying out its obligations under this Agreement for a continuous period of more than five (5) business days, Alpha may terminate this Agreement immediately by providing written notice to Vendor.
21. Assignment. Vendor shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of Alpha in each instance. Any purported assignment or delegation in violation of this Section 21 shall be null and void. No assignment or delegation shall relieve the Vendor of any of its obligations hereunder. Alpha may at any time assign or transfer any or all of its rights or obligations under this Agreement without Vendor's prior written consent to any affiliate or to any person acquiring all or substantially all of Alpha's assets.
22. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
23. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
24. Governing Law and Submission to Jurisdiction. This Agreement and all claims or disputes arising out of or relating in any way to this Agreement will be governed by, and construed in accordance with, the laws of the State of Connecticut without giving effect to its conflicts of law provisions. In the event there is any claim, dispute, or other matter in question arising out of or relating in any way to this Agreement or the performance thereunder (including, without limitation, any claims in law or equity whether based on torts, contracts or otherwise), it shall be submitted solely to the U.S. District Court for the District of Connecticut or the Connecticut Superior Court for the Judicial District of Stamford/Norwalk at Stamford, Connecticut, as appropriate. This provision to submit all claims, disputes or matters in question to the federal or state courts in the State of Connecticut will be specifically enforceable; and each Party, hereby waiving personal service or process, consents to jurisdiction in Connecticut for purposes of the other Party seeking or securing any legal or equitable relief. The provisions contained in this Section 24 will survive the termination or expiration of this Agreement.
25. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed (a), in the case of Vendor, to the address set forth on an invoice, on Alpha's vendor profile form, or to such other address that may be designated by Vendor in writing; and (b), in the case of Alpha, to:
Alpha Entertainment LLC
1266 East Main Street
Stamford, CT 06902
Attention: Legal Department
With a copy to:firstname.lastname@example.org
All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving Party (or when delivery is refused), and (b) if the Party giving the Notice has complied with the requirements of this Section.
26. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
27. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Insurance, Compliance with Laws, Confidential Information, Governing Law and Jurisdiction, and Survival.
28. Amendment and Modification. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each Party.