These terms and conditions shall govern all purchase orders (hereafter individually referred to as, “PO”) issued by Falls & Co. (hereafter, “Falls”) and the vendor named on such PO (hereafter, “Vendor”) related to Vendor’s provision of goods and/or services to Falls directly and/or to a Falls client, as agreed between the parties. Vendor’s performance of any portion of the PO or any other conduct by Vendor in furtherance of the PO shall constitute an acceptance of the PO and these terms and conditions. These terms and conditions may be modified only if the parties agree to such modifications in writing. Terms and conditions found in proposals, quotes, order forms or other sales documents cannot alter or replace these terms and conditions unless such documents specifically express such intent and are signed by an authorized representative of both parties. Vendor may object to these terms and conditions in writing at any time within 10 days of receiving the PO.
Vendor will provide the goods and/or services specified and mutually agreed upon in the PO in consideration for payment of a specified amount by Falls. If the nature of the purchase is such that an exact final cost cannot be known, the PO may be issued for $1 with additional agreed pricing terms specified in the PO or other mutually agreed upon purchase documents. Falls will reimburse Vendor for actual expenses it incurs and properly documents, provided Vendor has obtained written approval from Falls for any such expense prior to incurring it.
Where applicable, Falls will report all fees and reimbursed expenses paid to Vendor on Internal Revenue Form 1099 in accordance with IRS guidelines.
Falls will issue payment to Vendor for all undisputed amounts, less any sum owed by Vendor to Falls, within forty-five (45) days from receipt of Vendor’s invoice. If Falls, in good faith, disputes any portion of the invoiced charges, Falls may withhold the payment of such amounts until the parties have resolved the dispute. Vendor must include the PO number on all packing slips, invoices, and correspondence related to the PO. Failure to include the PO number on invoices will prevent timely processing and payments. Falls will not be responsible for any damages, late fees, interest or other charges that result from such delay in payment.
Vendor shall bear the risk of loss, destruction or damage until the items specified in the PO are received by Falls. Incorrect or damaged shipments with be promptly returned to Vendor at Vendor’s expense.
All work prepared by Vendor and accepted and paid for by Falls shall become the property of Falls. Vendor acknowledges and agrees that, if applicable, such work shall be treated as “works made for hire” as defined in the Copyright Act of 1976, as amended, 17 U.S.C. § 101, et. seq. Accordingly, any and all copyrights to the work shall be owned by Falls. However, Vendor may retain the right to use such work for the limited purposes of internal training and for use in its self-promotion activities provided that 1) such use does not violate Vendor’s confidentiality or any other obligations under these terms and conditions and 2) Vendor receives written approval from Falls prior to such use which shall not be unreasonably withheld.
The term of the PO and these terms and conditions will begin on the date services are first performed for Falls or on the date the goods are ordered and will continue in full force and effect until terminated, without cause, by either party by written notice to the other party at least two (2) weeks in advance. Unless otherwise agreed, the rights, duties and responsibilities of the parties will continue in full force until the conclusion of the notice period. In addition, Falls may terminate the PO at any time, upon written notice, if Vendor fails to perform or otherwise breaches these terms and conditions.
Upon termination and after satisfaction of all undisputed payment obligations by Falls, Vendor will transfer, assign and make available to Falls, all property and materials in Vendor’s possession or control belonging to and paid for by Falls.
Vendor represents and warrants that all goods and/or services provided under the PO 1) shall be free in all material respects from defects in materials, design, and workmanship; 2) shall be provided in a good and workmanlike manner; 3) shall conform to industry standards; and 4) shall be performed in accordance with the PO. Vendor agrees to use best efforts to complete delivery of all goods and/or services by the specified completion date unless Falls agrees, in writing, to an extension.
Vendor shall be responsible for the non-infringement, accuracy, completeness and propriety of all claims, representations, and content it provides to Falls. Vendor represents and warrants that all information in whatever form that it provides to Falls shall be accurate, complete for its intended purpose, and does not infringe upon the intellectual property or other rights of any third party.
These warranties shall survive the completion or termination of the PO.
Vendor shall indemnify, hold harmless and defend Falls from any liability, claim, action or cause of action incurred which arises from work performed by Vendor or Vendor’s associates, affiliates or other third parties. Falls shall indemnify, hold harmless and defend Vendor from any liability, claim, action or cause of action incurred by Vendor so long as such liability arises from Falls’ negligence.
These indemnification rights shall survive the completion or termination of the PO.
Throughout the course of working together, Vendor and Falls may have access to Confidential Information relative to each party’s operations. “Confidential Information” may include, without limitation, information concerning the ideas, goods, services, and processes of the other party, pricing, proposals, technical data or know-how, research, products, services, developments, inventions, processes, techniques, designs, forecasts, distributions, engineering, marketing, financial, merchandising, strategies, customer lists, customer data, personnel data, manuals, and/or sales information. All such Confidential Information will be kept in the strictest confidence by the receiving party, unless and until authorized for release by the disclosing party. Upon the termination of the relationship and after all undisputed invoices have been paid in full, the parties agree to return all files and data supplied by the other party that contain Confidential Information.
These mutual obligations of confidentiality shall survive the completion or termination of the PO.
Independent Contractors - The parties to the PO are and shall remain independent of each other. No employment, partnership, agency, or joint venture relationship shall be created by virtue of the PO. Vendor is solely responsible to provide and liable to pay for any and all insurance premiums, workers’ compensation premiums, and other employee benefits that may exist for its employees or associates. Neither party shall have the right to obligate or bind the other party except in accordance with the PO.
Taxes – Falls shall only be liable for taxes that Vendor is legally required to collect from Falls. Each party agrees that it shall be solely responsible for taxes directly related to the operations of its business including, but not limited to, employment taxes, commercial activity tax, and other income-based taxes.
Limitation of Liability – In no event will Falls be liable for special, indirect, incidental, or consequential damages to the full extent such damages may be disclaimed by law, even if Falls has been advised of the possibility of such damages.
Insurance – Vendor has, for itself and any permitted subcontractor it engages, procured and will maintain with an insurance carrier acceptable to Falls, at Vendor’s expense, general liability, automobile liability, and, if applicable, worker’s compensation insurance in commercially reasonable amounts to satisfy any claims which may arise under the PO. Upon request, Vendor shall provide Falls with a certificate demonstrating that these coverages are in place.
Severability – If any provision of these terms and conditions is determined to be unenforceable, the parties intend that these terms be enforced as if the unenforceable provisions were not present and that any partially valid and enforceable provisions be enforced to the extent possible.
Waiver – A party does not waive any right under these terms and conditions by failing to insist on compliance with any of the terms or by failing to exercise any right hereunder.
Successors – Vendor’s rights and obligations under these terms and conditions may not be assigned without the prior written consent of Falls. Falls may void any assignments made without its consent. Falls may assign or transfer any of its rights or obligations under these terms and conditions with advance written notice to Vendor.
Notifications – Any notifications required under these terms and conditions shall be deemed given when sent by 1) prepaid certified or registered mail to either party’s published address; or 2) via an email so long as receipt of the communication is confirmed by the recipient.
Applicable Law – These terms and conditions shall be subject to and construed in accordance with the internal laws of the State of Ohio without regard to its conflicts of law principles. In the event that a dispute shall arise between the parties, the parties agree to first attempt to resolve such dispute by way of negotiation. If such negotiation fails to resolve the dispute, the parties hereby consent to the jurisdiction of the state and federal courts located in Cuyahoga County, Ohio as the appropriate forum for the resolution of such dispute.
No Construction Against Drafter
Each party acknowledges that the PO and these terms and conditions are the product of mutual negotiation. Each party has had the opportunity to review the PO and these terms and conditions with counsel of its own choosing. Accordingly, no rule that contract provisions are to be interpreted against the drafter shall apply in the construction or interpretation of the PO or these terms and conditions.
Entire Agreement – The parties acknowledge that these terms and conditions constitute the entire understanding between the parties and supersedes all prior written or oral negotiations, commitments, or writings related to the goods or services that are described in the relevant PO. Any future modifications to these terms and conditions shall be in a writing signed by both parties.