General Wireless Operations Inc.'s ("BUYER") Purchase Order Terms and Conditions and the provisions of the Vendor Guide are expressly made a part of Purchase Orders issued by GWO. The Vendor Guide is available at https://www.radioshack.com/contacts/vendorguide which shall be updated, modified, or changed from time to time in the ordinary course of business by BUYER, in its sole discretion, without notice to SELLER. Additionally, Purchase Order Terms and Conditions may be updated, modified, or changed from time to time in the ordinary course of business by BUYER, in its sole discretion, without notice to SELLER. Any such updates, modifications, or changes shall be binding upon SELLER. A written copy of these Terms and Conditions as well as the Vendor Guide will be provided upon written request to "Clayton.Armstrong@radioshack.com". If SELLER has signed a Vendor Agreement, then Purchase Orders issued by GWO shall be subject to the Vendor Agreement which shall control should there be any inconsistency between the Purchase Order and the Vendor Agreement.
ACCEPTANCE - AGREEMENT. (A) Except as provided in 2(B), this Order is BUYER's offer to SELLER and becomes a binding contract when accepted by acknowledgment, commencement of performance or partial or complete shipment. This Order can be accepted only on its exact terms and conditions. Terms or conditions stated by SELLER in accepting this Order which conflict with, are inconsistent with, or are in addition to those set forth herein shall not become a part of the contract. (B) If the front of this Order recites that it is an acceptance of an offer previously made by SELLER to BUYER, then this Order constitutes BUYER's acceptance of that offer; provided, however, that to the extent that the terms and conditions of this Order are in conflict with, inconsistent with or additional to those of SELLER's offer, BUYER's acceptance is expressly conditioned upon SELLER's assent to BUYER's version of the conflicting, inconsistent or additional terms and conditions, which assent shall be by SELLER's acknowledgment or commencement of performance. (C) "Order" means both BUYER's offer (or acceptance under 1(B)) and the resulting contract.
TRADEMARKS AND CONFIDENTIAL INFORMATION. SELLER has no right to, and agrees not to, use the trademark "RadioShack" or any other trademark, trade name or service mark of BUYER or its affiliates ("Marks") in any advertising or publicity, to endorse SELLER's products or services, or for any other purpose or in any other manner except to fulfill this Order. SELLER is authorized to use Marks solely as specified in, and only in connection with, this Order. Goods manufactured shall not be sold or made available to anyone other than BUYER's authorized representatives. SELLER agrees to permit BUYER's authorized representatives to inspect its activities and premises, accounting books, and invoices relevant to its manufacture and supply of goods. All information including, but not limited to, writings, drawings, models and oral disclosures, not in the public domain, received by SELLER from BUYER, or learned of or produced by SELLER in performing work for BUYER, is BUYER's property, shall be held by SELLER in confidence at all times, shall not be used or disclosed to any third party without BUYER's prior written consent, and shall be returned to BUYER upon demand. BUYER and its affiliates shall be entitled to equitable relief to prevent a breach, or secure enforcement, of this paragraph.
STRICT CONFORMITY. SELLER agrees that all goods will satisfy BUYER's aesthetic standards as interpreted by BUYER. BUYER has final authority and absolute discretion to judge quality and SELLER shall correct, refund or replace as directed by BUYER at SELLER's expense any goods BUYER determines to be below its established quality levels. Because BUYER sells high-quality logoed goods to the public, all goods must strictly conform to this Order. Any attempt to cure would not ordinarily be commercially practicable or satisfactory due to the nature and requirements of BUYER's businesses. If any goods delivered do not strictly comply with all provisions of this Order, including all warranties, BUYER may cancel all or any of this Order or reject and return to SELLER at SELLER's expense all or any of the goods for either correction, replacement, refund or credit at SELLER's expense as BUYER may direct or may correct the goods at SELLER's expense. If required by BUYER, SELLER shall correct or replace defective or nonconforming goods with all possible speed. BUYER may (but is not obligated to) retain any satisfactory goods, paying for them at the contract rate. SELLER shall have no right to cure any nonconformity or breach unless BUYER gives express written consent to the cure, and then only when and how specified. SELLER shall pay BUYER's cost of inspecting, handling, removing, revoking, or correcting nonconforming goods. BUYER need not, and shall not be liable for failing to, return any goods bearing a Mark without first having received adequate assurances that all Marks will be removed or obliterated before the goods are sold, distributed or used.
SELLER warrants ( in addition to any warranties implied by law or fact, based upon course of dealing or use of trade, or provided by any state or federal regulation or law) that (i) all goods will be new (unless specified herein), merchantable, of good material and workmanship and free from defect and will fully conform to all specifications, drawings, descriptions or samples furnished or specified by BUYER or samples approved by BUYER and, if to SELLER's design or if SELLER knows or has reason to know the particular purpose for which BUYER intends to use the goods, will be suitable in every respect for the purpose intended; (ii) all weights, measures, sizes, legends, words and descriptions appearing on or attached to the goods or their containers are true and correct; (iii) all goods delivered, all markings and labeling on or attached to them or their containers and all SELLER's performance complies with all applicable federal, state and local laws, ordinances, rules, codes and regulations including, without limitation, any of the foregoing as applicable to BUYER, its affiliates or SELLER; (iv) no food, drug, device, cosmetic, or other product contained in any shipment to BUYER at any time will, at time of shipment or delivery, be adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act, or be an article which may not, under that Act, be introduced into interstate commerce; and (v) neither the goods nor their use or resale will infringe any patents, designs, trademarks or copyrights now or later existing, violate the rights of any person or entity, or constitute unfair competition. Unless specifically waived by BUYER in a writing signed by an authorized representative, BUYER's approval of samples shall not waive any express or implied warranty of SELLER or Order requirement. All warranties shall (a) survive delivery and any inspection, acceptance or payment by BUYER, (b) extend to any person who may reasonably be expected to use, consume or be affected by the goods and who is injured by the warranty breach, and (c) be construed as consistent and cumulative with each other and with all warranties implied by law. SELLER waives any defense based on absence of privity with any injured person.
Payment to SELLER, resale, repackaging, preparation for resale or failure to inspect goods or discover nonconformities or breaches prior to resale (it being understood that BUYER shall have no duty to inspect) shall not be an acceptance of goods so as to bar BUYER's right to reject them and shall not preclude BUYER's right to subsequently give notice of warranty breach. Any rejection, revocation of acceptance, or notice of warranty breach will be considered made within a reasonable time if made within six months after BUYER receives notification of nonconformity or breach from its customers. Failure of BUYER to state a particular defect upon rejection shall not preclude BUYER from relying on unstated defects to justify rejection or establish breach.
Acceptance or return of goods which are nonconforming or in breach of any warranty shall not relieve SELLER of liability for all damage, loss and expense incurred by BUYER (including consequential damage and loss, indemnification for claims against BUYER and costs and price differentials in obtaining substitute goods) by reason of any nonconformity or breach of warranty nor shall their acceptance waive BUYER's right to cancel any of the rest of this Order or to reject and to return any other goods for any nonconformity or breach or constitute grounds for belief that any other or future deliveries would be acceptable despite nonconformity or breach of warranty.
DELIVERY/RISK OF LOSS. SELLER shall deliver goods at BUYER's designated destination(s) at the times and amounts specified in this Order in strict compliance with all shipping and invoice instructions, without deviation or substitution. SELLER shall not ship for delivery before the start ship or after the cancel dates specified on the front without BUYER's prior written approval. BUYER may at any time change delivery schedules or temporarily suspend scheduled shipments. If, in BUYER's opinion, it appears that SELLER may not meet BUYER's delivery schedules, BUYER may designate expedited routing and SELLER shall ship via the expedited routing at its risk and expense. If BUYER, in its reasonable judgment, determines that SELLER may be unable to meet a delivery schedule in whole or in part, BUYER may terminate this Order in whole or in part, without obligation to SELLER, or may obtain substitute goods from other sources at SELLER's expense. BUYER may, in whole or in part, reject and return shipments made early or in excess quantities, at SELLER's risk and expense, or accept the shipments but defer payment until after the specified delivery date. In the case of excess quantities, BUYER may return the excess at SELLER's expense or retain the excess and pay for it at a mutually acceptable price. Notwithstanding any delivery terms, risk of loss or damage to goods from any casualty shall pass to BUYER only upon its receipt and acceptance.
BUYER may at any time change any provision of this Order other than price by a written change order and SELLER shall proceed promptly in performing this Order as changed. BUYER's employees have no authority to direct any change except by a written change order signed by BUYER's authorized representative. If a change modifies the cost of or time required for performance, an equitable adjustment shall be made in the price or delivery schedule or both and this Order shall be modified in writing accordingly, provided that SELLER shall have no right to adjustment unless it gives notice of claim for adjustment in writing to BUYER's authorized representative within five days after receipt of notice of change.
MATERIAL FURNISHED. Unless otherwise agreed in writing, SELLER will supply all materials, equipment, tools and facilities required. Any materials furnished or paid for by BUYER, such as garments, samples, art work, embroidery tapes, dies, film, and the like, any replacement of, and any materials affixed or attached to them, are BUYER's property and may be used only in performing work for BUYER. While in SELLER's custody or control, SELLER shall keep all BUYER's materials separate from SELLER's property and insured at SELLER's expense against loss or damage for their replacement cost. Upon BUYER's written request, SELLER shall prepare them for shipment and return them to BUYER at SELLER's expense. Before returning any materials upon completion or termination of this Order, SELLER shall obtain shipping instructions or other authorized disposal instructions from BUYER.
PRICING AND DISCOUNTS. If SELLER's price is reduced (by price reduction, close-out, rebate, allowance, advertising or promotional assistance, or additional discount offered to anyone) at time of any shipment, the price shall be reduced accordingly and SELLER shall invoice BUYER the reduced price. Unless otherwise indicated on this Order, all prices are firm prices and include any applicable federal, state and local taxes and all charges for packaging, labeling, customs duty, storage, insurance and shipping preparation. Billing terms begin on the date of SELLER's invoice or shipment to correct destination by SELLER of the items billed, whichever is later. If an invoice is sent to the wrong address, billing terms shall be measured from receipt of invoice at the correct address. The date of mailing of BUYER's check is the date payment is made for payment discount purposes.
To the fullest extent permitted by law, SELLER agrees to defend and indemnify and hold harmless BUYER from and against all claims, actions, losses, damages or liabilities or expenses (including any loss, damage, or injury to person or property and including reimbursement for any attorney fees or other expenses incurred in connection with investigation or defense), arising from or involving (i) the sale, use or condition of any of the goods delivered, (ii) any defects, latent or patent, in the quality of the goods including actual or alleged improper construction or design or failure to comply with specifications or SELLER's warranties, the dangerous condition of the goods, or inadequate instructions or warnings, (iii) illegality with respect to any goods or any marking, branding, labeling, packing or containers, or (iv) unfair competition or infringement of any design, patent, trade name, trademark or copyright with respect to any goods. This indemnity applies whether or not BUYER has committed any acts or omissions (whether actively or passively negligent or non-negligent). BUYER may employ attorneys of its selection to appear and defend the claim or action for BUYER, at SELLER's expense. BUYER, at its option, shall have the sole authority for direction of the defense and be the sole judge of the acceptability of any compromise or settlement of any claims or actions against BUYER.
SELLER shall maintain for so long as is necessary to cover any claims which may be made in connection with SELLER's goods, products liability insurance coverage with limits of at least $1,000,000 combined single limit per occurrence (including contractual coverage) which shall name BUYER (as defined in Paragraph 16) as additional insured’s, be primary, and provide for at least 30 days prior written notice of cancellation to BUYER. If specified on this face of this Order, SELLER shall furnish to BUYER appropriate certificates of insurance evidencing coverage. SELLER shall maintain proper worker's compensation and employer's liability insurance for all employees performing this Order.
WAIVER, DEFAULT, AND REMEDIES. Any failure by BUYER at any time to enforce, or to require SELLER to perform, any provision of this Order shall not waive the provision, affect the validity of any of this Order, nor BUYER's right to subsequently enforce each provision. If SELLER does not comply with any provision, BUYER may treat the noncompliance as a breach of contract and may terminate this Order in full or in part. Each of BUYER's rights and remedies is cumulative and in addition to any other right or remedy BUYER has under this Order, at law or in equity, or by reason of any custom or usage. Exercise of any right or remedy shall not waive or relinquish any other right or remedy.
ASSIGNMENT AND SET-OFF. SELLER shall not assign this Order nor any monies due or to become due under it to a factor or otherwise without BUYER's prior written consent. Any actual or attempted assignment without consent shall be void as to BUYER. If payment is too made to a factor with BUYER's consent, SELLER shall include the factor's name and address on its invoice. Any assignment and any claim by SELLER shall be subject to deduction, set- off, recoupment or other lawful means of enforcing any present or future claims which BUYER or its affiliates may have against SELLER.
BUYER may terminate all or any of this Order for its convenience without cause at any time by delivering a written notice of termination to SELLER specifying the extent and effective date of termination. SELLER shall immediately stop further performance on the date and to the extent specified in such notice, and BUYER shall have no further liability to SELLER, including but not limited to any liability for costs incurred by SELLER in contemplation of fulfilling BUYERS order. SELLER shall immediately refund BUYER for all goods and materials already paid for but not yet delivered to BUYER. BUYER may terminate all or any of this Order for cause in the event of any default or breach of contract by SELLER. In this event, BUYER shall not be liable to SELLER for any amount on the part terminated and SELLER shall be liable to BUYER for all damages sustained. Non-compliance with BUYER's delivery schedules, deliveries of defective or non-conforming products, and failure to provide BUYER with reasonable assurances of future performance upon request are grounds for termination for cause. SELLER agrees that BUYER may terminate this Order at any time with no further liability to SELLER if any necessary or required license is curtailed, suspended or revoked or if BUYER determines in its sole judgment that any past, present or future activity or relationship of SELLER or any of SELLER's officers, directors, employees, agents or representatives could or does jeopardize any such license or the business activities of BUYER or any of its affiliates or subsidiaries. Termination shall not affect any right based on SELLER's prior breach or performance.
This Order is between merchants and shall be governed by the laws of Texas. No consent, waiver, course of performance, alteration or modification of any of its provisions nor any course or prior dealings or usage of trade shall bind BUYER unless in writing signed by an authorized representative of BUYER. Time is of the essence. Any action based on BUYER's breach must be commenced within one year after accrual of the cause of action. SELLER and BUYER agree that any legal action under this Order shall only be brought and tried in Tarrant Count, Fort Worth, Texas and SELLER hereby waives all objections to such venue. Paragraphs 3, 5, 7, 10, 12 and 13 shall survive the cancellation, termination or completion of this Order. With respect to the insurance, indemnification and warranty provisions of this Order, "BUYER" means General Wireless Operations Inc. including its parents, affiliates and subsidiaries and their respective officers, directors, members, employees, agents, successors and assigns.