- Governing Terms. These Terms and Conditions of Purchase, as may be changed, amended or modified from time to time, as provided herein (these “Terms”), shall govern and control the purchase of all goods (the “Products”) by ACT Lighting, Inc. d/b/a ACT Entertainment and its subsidiaries and affiliates (collectively, “ACT”) from each supplier (“Seller”). Unless otherwise agreed by ACT and Seller in writing, all purchase orders of ACT shall be subject to these Terms. Any language in Seller’s applicable business documentation purporting to amend, modify or replace these Terms with any different or additional terms is hereby expressly rejected and superseded by these Terms, unless the parties otherwise expressly agree in writing.
- ACT shall submit all purchase orders to Seller in writing and each such purchase order must be accepted by Seller in writing in order to be valid and binding. Seller shall confirm its acceptance within five (5) business days after receipt of ACT’s purchase order. If Seller does not provide written confirmation of its acceptance within such five (5) business day period, then ACT may revoke such purchase order. All accepted purchase orders shall be subject to these Terms, unless the parties agree otherwise in each applicable purchase order.
- Specifications; Changes. Seller shall provide the Products in accordance with the specifications and requirements expressly set forth in ACT’s purchase order, as accepted by Seller (the “Specifications”). Any changes, modifications or amendments to the Specifications or any purchase order must expressly detailed in writing by Seller and expressly agreed to in writing by ACT.
- Upon Seller’s acceptance of a purchase order, Seller shall provide ACT with a delivery date, which shall be firm deadline. In the event of a delivery delay due to reasons outside the control of Seller, Seller shall provide ACT with immediate notice and the new delivery date. Unless otherwise specified in a purchase order or other applicable agreement between the parties, all Products shall be delivered by Seller (a) to ACT at a U.S. or Canadian address (as specified on a purchase order), F.O.B. Seller’s facility, or (b) to ACT at an international address (as specified on a purchase order), ex works Supplier’s facility (subject to IncoTerms 2023, unless otherwise agreed in writing). Title to and risk of loss of the Products shall pass to ACT upon Supplier’s tender of the Products to ACT’s designated carrier.
- All prices shall include the packaging and labelling of the Products. Each order shall be packed by Seller with all applicable shipping documents, which shall state the order number, order date, item description, item quantity and such other information as ACT may request and/or as the parties may agree.
- ACT agrees to inspect all deliveries within ten (10) business days after receipt at ACT’s destination. Any under shipments, mis-shipments or obvious defects in any Products will be promptly reported to Seller in writing, and shall be promptly rectified by Seller, at Seller’s expense. In the event that Seller is unable to deliver replacement Products or repair an obvious defect within ten (10) business days of receipt of written notice therefrom from ACT, ACT shall have the right to (i) cancel the order and receive a refund of all amounts paid to Seller, (ii) deduct the value of the missing or defective Products from its payment of the applicable invoice, or (iii) procure the applicable Products from a third-party supplier, at Seller’s expense.
- Price and Payment. All prices shall be quoted and paid in U.S. Dollars unless otherwise specified on the applicable purchase order. Except as specifically stated in Seller’s price quote, any manufacturer’s tax, retailer’s occupation tax, use tax, sales tax, excise tax, value-added tax, duty, customs agent or broker fees, inspection or testing fee, freight costs, insurance, counselor fees, or any other tax, fee or charge of any nature whatsoever imposed on, in connection with or measured by any transaction between ACT and the Seller shall be invoiced as a separate line item. Unless otherwise agreed in writing in a purchase order, payment of all invoices shall be due net thirty (30) days from the date of the invoice.
- Confidentiality; Intellectual Property. Any sketches, models, samples, designs, prototypes, templates, plans, documentation, processes, techniques, methods and other proprietary information (collectively, “Proprietary Information”) of ACT disclosed to Seller shall remain the sole and exclusive property of ACT, and Seller agrees that it shall treat all such Proprietary Information as ACT’s confidential information. Seller shall not use or disclose any such Proprietary Information for any purpose, other than its provision of Products to ACT in accordance with these Terms, without the prior express written consent of ACT, in each instance. All right, title and interest in and to any Proprietary Information of ACT and all intellectual property rights therein shall remain owned by and inure solely to the benefit of ACT or its applicable licensors. For the avoidance of doubt, nothing herein shall be construed as granting Seller any right or license to use ACT’s name, trademark(s), logo(s) or any other intellectual property in any way, including without limitation, on Seller’s website or other materials to describe the relationship between ACT and Seller, without ACT’s prior written approval in each instance.
- Data Protection. In the event that ACT provides any personal information (including, without limitation, business contact information) to Seller, all such information shall be processed by Seller in accordance with all applicable laws, rules and regulations, including all laws concerning or related to data privacy and protection.
- Warranty.
- Seller hereby represents and warrants to ACT that: (i) the Products, as delivered to ACT, shall conform to the Specifications and all other terms set forth in each applicable purchase order, and shall be free from defects in material and workmanship; (ii) the Products, as delivered to ACT, shall be in compliance with all applicable laws, rules, regulations, orders and industry standards (including, without limitation, those related to product safety, occupational safety, child labor standards and recall); (iii) Seller shall inspect all Products before delivery for quality control and to ensure that all Products comply with these Terms and the standards agreed upon by the parties; and (iv) neither the Products nor the use thereof will infringe, violate or misappropriate the intellectual property or other proprietary rights of any third party.
- In the event that ACT discovers any defect in a Product after the period set forth in Section 6, above, Seller shall correct such defect(s) in accordance with the procedure set forth in Section 6 and shall be liable for all resulting damages to ACT.
- Seller agrees to indemnify, defend and hold ACT and its parent, affiliates and subsidiaries, and each of their respective officers, directors, employees, agents, customers, successors and assigns (each an “Indemnitee”) harmless from and against any and all claims, suits, actions, proceedings, losses, liabilities, damages, penalties, fines, judgments, costs and expenses (including reasonable attorneys’ fees and expenses, including any incurred in enforcement of this indemnity), resulting from (i) Seller’s breach of these Terms; (ii) any sale, promotion, distribution or use of the Products by or on behalf of ACT, including, without limitation, claims for product liability or strict liability; (iii) any claim that the manufacture or use of the Products infringes, misappropriates, or violates any intellectual property or other proprietary rights of any third party; or (iv) Seller’s (or any of Seller’s agents’, employees’ or subcontractors’) negligence or intentionally wrongful acts or omissions. The Indemnitee shall provide prompt notice to Seller of any claim subject to indemnification under this Section 11, provided that the Indemnitee’s failure to do so shall not relieve Seller of any of its obligations hereunder, unless Seller was materially prejudiced by such delay. The Indemnitee shall have the right to participate in the defense or settlement of any such claim with counsel of its own choosing, at its own expense. Seller shall not agree to any settlement or compromise of any such claim without the Indemnitee’s prior written approval.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SELLER HEREBY ACKNOWLEDGES AND AGREES THAT ACT SHALL NOT BE LIABLE TO SELLER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWSOEVER ARISING, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITY, LOSS OF GOODWILL, AND LOSS OF OR INABILITY TO USE ANY DATA. ACT’S MAXIMUM AGGREGATE LIABILITY TO SELLER FOR ANY CLAIM OR ACTION ARISING UNDER THESE TERMS SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY ACT TO SELLER UNDER THE APPLICABLE PURCHASE ORDER GIVING RISE TO THE CLAIM.
- Governing Law; Arbitration. Any controversy or claim arising out of or relating to these Terms or their interpretation shall be determined by binding arbitration conducted by a single arbitrator in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The place of arbitration shall be St. Louis, Missouri. These Terms shall be exclusively construed, applied and performed, according to the laws in effect in the State of Missouri, U.S.A. (including, if and when applicable, the Uniform Commercial Code as adopted in the state of Seller’s principal office, and not the United Nations Convention on Contracts for the International Sale of Goods), without regard to the conflicts of laws provisions thereof. The language of arbitration shall be English. Judgment on any award rendered by the arbitrator may be entered by any court of competent jurisdiction. Notwithstanding the foregoing, either party may seek injunctive or equitable relief in any state or federal court located in St. Louis, Missouri, and Seller hereby irrevocably and unconditionally submits to the exclusive jurisdiction of such courts for such purposes, and waives any claim that such forum is inconvenient.
- English Language. The English version of these Terms shall be the only version, and shall govern and control any translation of the Terms into any other language.
- Import Licenses; Compliance with Law. Seller shall obtain, at its sole cost and expense, any import or export licenses and governmental approvals that may be necessary to permit ACT’s purchase of Products hereunder, comply with all Product and distribution registration requirements in all territories where Seller sells such Products and comply with any and all applicable laws, rules, regulations, and orders of the Seller’s own jurisdiction or any jurisdiction of distribution or sale and of the U.S. Without limiting the foregoing, Seller shall comply with all U.S. export (including the Treasury Department’s Office of Foreign Assets Control regulations, which prohibit U.S. persons transshipping products to embargoed countries), anti-boycott and foreign corrupt practice laws including, without limitation, the Foreign Corrupt Practices Act, Executive Order No. 13224, the USA Patriot Act and any regulations promulgated pursuant to the foregoing acts. At ACT’s request, Seller shall complete any forms or take other action that ACT deems necessary for the parties to comply with applicable export laws in connection with these Terms. Seller shall (i) prepare and file at its sole cost and expense all reports required by any governmental body in its territory, and (ii) pay all taxes and other similar charges imposed upon the Products.
- Entire Agreement. These Terms, together with any formal supply agreement and purchase order(s), constitute the entire agreement between the parties as to the purchase of Products between the parties and supersede all prior agreements, conditions or communications, written or oral, concerning such subject matter. In case of a conflict in terms among the documents pertaining to ACT’s purchase of Products, the parties shall look first to the terms of their supply agreement/ distribution agreement, in one exists, then to these Terms, and then to the terms of the purchase order.
- ACT reserves the right to change, amend or modify these Terms at any time and from time to time in its sole and absolute discretion, without notification to Seller. ACT’s posting of any amended or modified version of these Terms on this website, and Seller’s sale of Products thereafter, constitute Seller’s consent to be bound by such changes, amendments or modifications. Invalidity or unenforceability of any provision hereof shall not affect the validity or enforceability of any other provision. Failure of ACT to insist, in any one or more instances, upon performance of any specific term hereof shall not be construed as a waiver or relinquishment of any right granted hereunder or the future performance of such term. ACT’s rights under these Terms shall be in addition to any other rights ACT may have at law or in equity, and shall not prejudice any such other right.
- For any questions regarding these Terms, please contact ACT at customerservice@actentertainment.com.
Last Modified: February 24, 2023