Standard Terms and Conditions
Unless e-Rewards and Vendor are parties to a separate agreement governing the provisions of Goods and/or Services by Vendor, the following Standard Terms and Conditions shall apply to the provision of any and all goods and services by Vendor or its affiliates.
e-REWARDS WILL NOT BE BOUND BY ADDITIONAL OR ALTERNATIVE TERMS OR CONDITIONS ADDED OR DELETED BY VENDOR, PRINTED OR OTHERWISE, ON ANY INVOICE, ORDER BLANKS, INSTRUCTIONS OR SIMILAR DOCUMENT.
• “e-Rewards” means e-Rewards, Inc., who is the purchaser of the goods and/or services identified on the front of this Purchase Order.
• “Vendor” means the vendor identified on the front of this Purchase Order.
2. GOODS AND SERVICES
Vendor shall provide certain goods (“Goods”) and/or perform certain services, to the satisfaction of e-Rewards (the “Services”), as identified in the purchase order (“Purchase Order”). Only those Services performed pursuant to the project order or Purchase Order will be acknowledged or accepted. e-Rewards will incur no obligation to Vendor either created hereunder or otherwise with respect to any services provided by Vendor other than pursuant to a Purchase Order. Vendor agrees to commit sufficient time, staff, facilities and resources to ensure the successful performance of the Services. Nothing in the Purchase Order shall constitute or be construed as constituting or tending to create an agency, partnership, master-servant or employer-employee relationship between e-Rewards and Vendor.
3. ACCEPTANCE; INSPECTION
(a) ACCEPTANCE – In accordance with the Uniform Commercial Code as currently in effect in the State of Texas, acceptance of the Purchase Order constitutes acceptance of the following terms and conditions. The Purchase Order shall be deemed accepted on the earlier of when: (a) Vendor acknowledges receipt and acceptance of the Purchase Order through signature and return of requisite documentation to e-Rewards, or (b) work has been started by Vendor in order to satisfy said Purchase Order, or (c) Vendor places orders with its suppliers and/or subcontractors in order to satisfy the Purchase Order, or (d) no counter offer, amendment, or objection from the Vendor has been received in writing by e-Rewards within five (5) business days of receipt of this Purchase Order.
(b) INSPECTION AND ACCEPTANCE
(i) e-Rewards and its customers may inspect all services, goods or work (“Work”) at reasonable times and places. Vendor shall provide all information, facilities, and assistance necessary for safe and convenient inspection without additional charge. e-Rewards’ final inspection and acceptance shall be at destination.
(ii) No such inspection or acceptance of Work shall relieve Vendor of its obligations to furnish Work in accordance with the requirements of the Purchase Order.
(iii) If Vendor delivers non-conforming Work, e-Rewards may: (A) accept all or part of such Work at an equitable price reduction and return nonconforming Work to Vendor at Vendor’s expense; (B) reject such Work and return goods to Vendor at Vendor’s expense; or (C) make, or have a third party make, all repairs, modifications, or replacements necessary to enable such Work to comply in all respects with Purchase Order requirements and charge the cost incurred to Vendor.
(iv) Vendor shall not re-tender rejected Work without disclosing the corrective action taken.
(a) Vendor hereby warrants that all work furnished hereunder shall conform to specifications, proposals, samples, drawings, and descriptions, shall be in good working order and shall be free from defects in material, workmanship and design. Vendor warrants that the material will be new, merchantable, and free of any liens or encumbrances. If Vendor knows or has any reason to know the particular purpose for which e-Rewards intends to use the material or Services, Vendor warrants that the material and Services will be fit for that particular purpose. Services shall be performed to e-Rewards’ satisfaction in accordance with specifications, proposals and descriptions. Should e-Rewards provide no specifications, proposals or descriptions, Vendor shall use best commercial practices in the performance of this Purchase Order. All warranties shall run to e-Rewards and customers of e-Rewards. If any non-conforming Work is identified within the warranty period, Vendor, at e-Rewards’ option, shall promptly repair, replace, or re-perform the Work. Such warranty work will be further warranted for an additional one-year period. Transportation of replacement Work, return of non-conforming Work, and re-performance of Work shall be at Vendor’s expense. If repair or replacement or re-performance of Work is not timely, e-Rewards may elect to return Work for a full credit or refund, or may re-perform, repair, replace, or re-procure the Work at Vendor’s expense. All warranties shall run to e-Rewards and its customers.
(b) In addition, Vendor agrees to comply with all relevant consumer privacy language and will not use, disclose, or transfer across borders any information that may identify an individual (“Personal Data”) that is processed for e-Rewards, except to the extent necessary to perform under the Purchase Order. Vendor will comply will all applicable data privacy laws and regulations, will implement and maintain appropriate technical and organizational measures and other protection for the Personal Data (including, without limitation, not loading and Personal Data provided to any Vendor on (a) any laptop computers or (b) any portable storage media that can be removed from e-Rewards’ premises unless such data has been encrypted and such data is loaded onto portable storage media solely for the purpose of moving such data to off-site stores), will immediately report to e-Rewards any breach of protection of Personal Data or any compromises thereof and will cooperate fully with e-Rewards in investigating any such breaches
or compromises, will cooperate fully with e-Rewards’ requests for access to, correction of, and destruction of Personal Data in Vendor’s possession, and will comply with all instructions or other requirements provided or issued by e-Rewards form time-to-time relating to such Personal Data.
5. SHIPPING AND BILLING
Shipments shall be made in accordance with specific shipping instructions, and all supporting documents will bear the Purchase Order number. Shipping and routing instructions may be altered as mutually agreed without a written change. Taxes and freight shall be billed as separate line items on Vendor’s invoices. Regardless of F.O.B. point, Vendor agrees to bear all risk of loss and injury, and for destruction of goods and materials ordered herein which occur prior to acceptance by e-Rewards. No such loss, injury, or destruction shall release Vendor from any obligations hereunder. e-Rewards will not accept any increase in price above that indicated on this Purchase Order. Any general price decrease announced by Vendor in classification of equipment and/or materials similar to the items described on this Purchase Order shall automatically reduce the price thereof by a comparable percentage on all items not yet accepted by e-Rewards.
All invoices, packages, shipping notices, instruction manuals and any other written documentation affecting a Purchase Order shall contain the applicable Purchase Order number. Packing lists shall be affixed to the outside of each box or package shipped pursuant to the Purchase Order, indicating the contents therein.
7. FEE FOR SERVICES
In consideration of Vendor performing the Services, e-Rewards, if satisfied with the Services, shall pay to Vendor the sum as stated in the Purchase Order (“Fee”). The Fee shall cover Vendor’s profit, general overhead and all costs and expenses (other than those expenses described in Section 3 herein) of any nature whatsoever (including, without limitation, taxes, labor and materials), and any increases in said costs and expenses, incurred by Vendor in connection with the performance of the Services, all of which costs and expenses shall be borne solely by Vendor. Vendor shall deliver each project to e-Rewards upon completion thereof unless it is necessary for Vendor, in e-Rewards’ sole discretion, to retain possession for a longer period of time. Without limiting or modifying any other terms or conditions of the Purchase Order, e-Rewards’ obligation to compensate Vendor shall be conditioned on e-Rewards’ prior receipt of properly completed tax reporting documents (including, without limitation, a validly issued taxpayer identification number for Vendor) that are acceptable to e-Rewards in form and substance including, without limitation, a Substitute Form W-9 provided by e-Rewards.
8. PROPERTY RIGHTS OF THE PARTIES
(a) Vendor shall perform the Services for the exclusive benefit of e-Rewards. All works created by Vendor pursuant to the Purchase Order shall be deemed to be works for hire and shall be the exclusive property of e-Rewards. e-Rewards, its successors, privies and assigns shall be entitled to, and shall own as their exclusive property all of the results and proceeds of the Services (which results and proceeds are hereafter collectively referred to as the “Work Product”) in whatever stage of completion, all of which shall be considered a work-for-hire, including, without limitation, all written work, research, plot outlines, computer programs, plans, drawings, paintings, sculptures, specifications, ideas, scripts, sketches, designs, concepts, software, systems, reports, documentation, data, forms, questionnaires, all forms of data files (including, but not limited to, spreadsheets, databases, text files and word processing files) and other tangible or intangible work product produced. e-Rewards shall own all rights in the Work Product in perpetuity throughout the universe including, without limitation, the rights to produce, manufacture, record, reproduce, distribute, transfer or prepare derivative works from the Work Product by any art, medium or method and all copyrights, trademarks and/or patents in the Work Product. e-Rewards shall be deemed the sole author of the Work Product and is entitled to the copyright therein (and all renewals and extensions thereof), and the full ownership to the original and all copies of the Work Product. e-Rewards shall have the right to dispose of the Work Product and/or make any or all uses thereof as it, at any time and in the exercise of its sole discretion, may desire.
(b) Except as otherwise provided in this Section 6(b), Vendor shall deliver all originals and copies (including, but not limited to, magnetic media) of the Work Product (whether completed or in process) and all research, plans, designs, specifications and any other information that pertains to the Work Product to e-Rewards upon completion of the Services hereunder or upon earlier termination of the Purchase Order. Upon delivery to e-Rewards, all of the foregoing shall be free and clear of any and all claims, liens, mortgages and other encumbrances of any kind or nature whatsoever. Vendor shall not retain, use or disclose any of the Work Product without e-Rewards’ prior written consent; provided, however, that Vendor may retain one (1) copy of the Work Product which may be used by Vendor solely for internal purposes or for purposes of providing additional services to e-Rewards, subject to the provisions of Section 14 hereof. Upon the request of e-Rewards, Vendor shall immediately return to e-Rewards such copy of the Work Product. The termination, completion or breach of the Purchase Order on whatever grounds and by whomsoever affected shall not affect e-Rewards’ exclusive ownership of the Work Product.
(c) Vendor hereby assigns to e-Rewards all now known or hereafter existing rights of every kind throughout the universe, in perpetuity and in all languages, pertaining to the Work Product, including, without limitation, all exclusive exploitation rights, of every kind and nature, including, but not limited to, all patents, trademarks, copyrights and neighboring rights, to the full extent such assignment is allowed by law, and any renewals and extensions therefor throughout the universe, in perpetuity, or for the duration of the rights in each country, and in all languages. In order to more fully vest in e-Rewards the ownership and title thereto, Vendor hereby assigns to e-Rewards all of Vendor’s right, title and interest, including all patent rights and copyrights, in and to all works and intellectual property rights arising out of the Vendor’s Services.
(d) Vendor acknowledges that new rights to the Work Product may come into being or be recognized in the future, under the law or in equity (“New Exploitation Rights”), and Vendor intends to and does hereby grant and convey to e-Rewards any and all such New Exploitation Rights to the Work Product. Vendor is also aware and acknowledges that new or changed technology, uses, media, format, modes of transmission and methods of distribution, dissemination, exhibition or performance (“New Exploitation Methods”) are being and will inevitably continue to be developed in the future, that would offer new opportunities for exploiting the Work Product. Vendor intends to and does hereby grant and convey to e-Rewards any and all rights to such New Exploitation Methods with respect to the Work Product.
(e) Vendor agrees to execute, at any time upon e-Rewards’ request, such further documents and do such other acts as may be required to evidence or confirm e-Rewards’ exclusive ownership of, and exploitation rights to, the Work Product and to effectuate Vendor’s purpose to convey such rights to e-Rewards including, but not limited to, the New Exploitation Rights and any and all of the New Exploitation Methods. Further, Vendor shall assist and cooperate with e-Rewards and its representatives in any controversy or legal proceedings relating to such works.
(f) Vendor agrees that it will not seek to (i) challenge, through the courts, administrative governmental bodies, private organizations or in any other manner, the rights of e-Rewards to exploit the Work Product by any means whatsoever or (ii) thwart, hinder or subvert the intent of the preceding grants and conveyances to e-Rewards, or the collection by e-Rewards of any proceeds relating to the rights conveyed under the Purchase Order.
(g) e-Rewards shall not be obligated to use and/or publish all or any part of the Work Product or to cause the Work Product to be used and/or published by a third party.
(h) The rights to any works created by Vendor for which no equipment, supplies, facilities or proprietary or trade secret information of e-Rewards is used and which is created entirely on Vendor’s own time and which does not result from any work performed by Vendor for e-Rewards shall be and remain the exclusive property of Vendor.
(i) The provisions of this paragraph shall survive the expiration or sooner termination of the Purchase Order.
9. INSURANCE; INDEMNIFICATION
(a) Vendor shall maintain (at its sole cost and expense), and Vendor shall cause anyone else performing services pursuant to or in relation to the Purchase Order, under a contract, either oral or written (“Service Provider”), to maintain (at its sole cost and expense), throughout the term of the Purchase Order (or such longer period of time as set forth below):
(i) Commercial general liability insurance (including, without limitation, contractual and product liability) and automobile liability insurance (for owned, leased, non-owned and hired vehicles) with minimum limits of Five Million Dollars ($5,000,000) and Five Million Dollars ($5,000,000), respectively, combined single limit per occurrence, protecting Vendor, Service Provider (if any), e-Rewards and its related, affiliated and subsidiary companies (collectively, “e-Rewards Entities”) and the officers, directors, agents, employees and assigns of each, from claims for personal injury, bodily injury (including, without limitation, death) and property damage that may arise from or in connection with the performance of any services pursuant to or in relation to the Purchase Order, or from or out of any act or omission of Vendor, Service Provider (if any), or Vendor’s or Service Provider’s officers, directors, agents or employees;
(ii) Workers’ compensation insurance as required by applicable law, and employer’s liability insurance with minimum limits of One Million Dollars ($1,000,000) per occurrence; and
(iii) Professional liability insurance (including, without limitation, contractual coverage and an endorsement allowing cross liability), with a minimum limit of Two Million Dollars ($2,000,000) protecting Vendor, Service Provider (if any) and the e-Rewards Entities, from errors and omissions of Vendor and Service Provider (if any) in connection with the performance of any services pursuant to or in relation to the Purchase Order during the term of the Purchase Order and for a period of at least three (3) years following the expiration or sooner termination of the Purchase Order (including, without limitation, an endorsement covering the indemnification provisions of Section 7(c) below).
(b) All such insurance required in this paragraph shall (i) be with companies and on forms acceptable to e-Rewards, (ii) provide that the coverage thereunder may not be reduced or canceled unless thirty (30) days unrestricted prior written notice thereof is furnished to e-Rewards, (iii) be primary and not contributory, (iv) except for professional liability insurance, be on an occurrence basis, and (v) be written by companies with a BEST guide rating of B+ VII or better. Certificates of insurance (or copies of policies, if required by e-Rewards) shall be furnished to e-Rewards, at least thirty (30) days prior to commencement of the Services hereunder, naming e-Rewards, its related, affiliated and subsidiary companies and the officers, directors, agents, employees and assigns of each, as additional insureds, and shall contain a waiver of subrogation with respect to the additional insureds. In the event of any cancellation or reduction of coverage, Vendor and Service Provider (if any) shall obtain substitute coverage as required hereunder, without any lapse of coverage to e-Rewards whatsoever.
(c) Vendor shall defend (if required by e-Rewards and with counsel approved by e-Rewards), indemnify and hold harmless the e-Rewards its affiliates and their respective officers, directors, agents, employees, and assigns, from and against any and all damages, claims, demands, suits, judgments, losses or expenses (including, without limitation, attorneys’ fees and fees of other professionals) of any nature whatsoever (whether based on tort, breach of contract, product liability, patent, trademark, copyright or other proprietary rights infringement, or otherwise) arising directly or indirectly from or out of: (i) any act or omission of Vendor, its officers, directors, agents or employees; (ii) any failure of Vendor to perform the Services hereunder in accordance with generally accepted industry and professional standards; (iii) any breach of Vendor’s representations as set forth herein; or (iv) any other failure of Vendor to comply with the obligations on Vendor’s part to be performed hereunder. The provisions of this paragraph shall survive the expiration or sooner termination of the Purchase Order.
10. VENDOR’S RESPONSIBILITIES; ADDITIONAL REPRESENTATIONS
(a) Vendor shall be solely responsible for all salaries, employee benefits, social security taxes, federal and state unemployment insurance, and any and all similar expenses or taxes relating to Vendor or its employees or agents. Neither Vendor nor its employees or agents shall be entitled to participate in, or to receive any benefits from, e-Rewards’ employee benefit or welfare plans, specifically including, but not limited to, coverage under e-Rewards’ health care program or workers’ compensation program (health insurance and workers compensation insurance shall be maintained by Vendor). e-Rewards shall have no obligation whatsoever to compensate Vendor or any of its employees or agents on account of any injuries that Vendor or any of its employees or agents may sustain as a result of or in the course of the performance of the Services, and Vendor hereby waives, on its own behalf and on behalf of any persons claiming by, through or under Vendor, any and all rights of recovery that Vendor may now or hereafter have against e-Rewards on account of any such injuries. Vendor shall also be solely responsible at its sole cost and expense for any and all taxes or assessments imposed or charged with respect to the Fee or the performance by Vendor of the Services.
(b) Vendor hereby warrants and represents to e-Rewards that: (i) it will employ its best efforts in the performance of the Purchase Order, and the employment of such efforts shall include, but not be limited to, the highest professional and technical standards and practices currently existing in the industry with respect to the Services; (ii) it has the staff, skill and authority to perform the Services; (iii) it shall comply with all applicable federal, state and local laws, rules, regulations, codes, statutes, ordinances and orders of any governmental or regulatory authority; (iv) it is adequately financed to meet any financial obligation it may be required to incur hereunder; (v) it has obtained all licenses and permits required to observe and perform the terms, covenants, conditions and other provisions on its part to be observed or performed under the Purchase Order; (vi) any material or Work Product provided by Vendor under the Purchase Order, and the use of any such material or Work Product by e-Rewards, shall not infringe upon any patent, trademark, copyright or trade secret, or otherwise violate the privacy or other rights, of any person, firm or corporation; (vii) it has obtained all necessary consents, permissions or releases, and will timely make all payments to third parties, that may be required to provide the Services; (viii) there is no actual or potential conflict of interest between the Services to be performed by Vendor under the Purchase Order and Vendor’s family, business, financial or other interests, and Vendor shall immediately notify e-Rewards of any actual or potential conflict of interest of which Vendor becomes aware during the term of the Purchase Order; (ix) it will not engage any employee of any of the e-Rewards Entities to perform any part of the Services; (x) Vendor shall be solely responsible for all professional quality and technical accuracy and completeness of the Work Product; (xi) the execution, delivery or performance by Vendor of the Purchase Order will not contravene (A) any law or legal requirement applicable to or binding on Vendor, or result in a breach of, or constitute a default under, or contravene any provisions of, any agreement or instrument to which it is a party or by which it is bound, which contravention, breach or default, as the case may be, will materially adversely affect the ability of Vendor to perform its obligations under the Purchase Order, or (B) any provision of the articles of incorporation or by-laws of Vendor; (xii) there are no pending or, to the best knowledge of Vendor, threatened investigations, suits or proceedings against it or affecting it or its properties, that, if determined adversely, would materially adversely affect the ability of Vendor to perform its obligations under the Purchase Order; (xiii) Vendor has not made any contract or other agreement for the payment of any commission, fee or other expense with any investment banker, broker, finder or agent in connection with the Purchase Order and Vendor will defend, indemnify and hold e-Rewards harmless from and against any and all claims through Vendor for finders’ fees or brokerage or other commissions which may at any time be asserted against e-Rewards; and (xiv) Vendor will abide by the guidelines set forth by the Council of American Survey Research Organization, commonly known as CASRO.
(c) All personal property used in the performance of the Services by Vendor shall remain Vendor’s property, and shall be used at Vendor’s sole risk. e-Rewards shall not be responsible for any loss (including, without limitation, theft) of, or damage to, any of Vendor’s personal property.
11. DEFAULT; TERMINATION FOR CONVENIENCE
(a) e-Rewards, by written notice, may terminate the Purchase Order for default, in whole or in part, if Vendor fails to comply with any of its obligations hereunder and fails to cure any breach thereof within ten (10) days after notice thereof from e-Rewards. Default involving performance delays shall not be subject to the cure provision.
(b) Vendor shall be compensated only for Work actually delivered and accepted. Vendor shall continue all Work not terminated.
(c) In the event of a termination for default, Vendor shall be liable to e-Rewards for cover costs, in addition to e-Rewards’ other rights and remedies at law or in equity.
(d) If, after termination under paragraph (a), it is determined that Vendor was not in default, such termination shall be deemed a Termination for Convenience.
(e) e-Rewards may terminate part or all of a Purchase Order for its convenience by giving written notice to Vendor. Upon termination, in accordance with e-Rewards’ written direction, Vendor will immediately: (i) cease work; (ii) prepare and submit to e-Rewards an itemization of all completed and partially completed Work; (iii) deliver to e-Rewards deliverables satisfactorily completed up to the date of termination at the agreed-upon prices herein; and (iv) deliver upon request any Work in process. e-Rewards will compensate Vendor for the actual, allowable, and reasonable expenses and profit incurred by Vendor for Work in process up to and including the date of termination, provided Vendor uses reasonable efforts to mitigate e-Rewards’ liability under this clause.
The Purchase Order is for the personal services of Vendor and may not be assigned by Vendor without e-Rewards’ written consent, which e-Rewards may withhold in its sole discretion. Any sale, assignment or transfer of any or all of the stock of Vendor shall be deemed to be an assignment within the meaning of this paragraph. In no event may Vendor engage the services of any person or party who is not a bona fide full time employee of Vendor (including, but not limited to, agents, independent contractors, subcontractors, etc.) without the prior written approval of e-Rewards in each instance, which approval may be granted or withheld in e-Rewards’ sole and absolute discretion. In the event any such non-employee person or party is so engaged, Vendor shall require that such person or party agree in writing to the terms and provisions of the Purchase Order (to the extent applicable to any such engagement), and in all events Vendor shall be solely and strictly liable for any breach of such terms or provisions or any act or omission on the part of any such person or party.
Vendor, by virtue of the Purchase Order, shall acquire no right to use, and shall not use, the name “e-Rewards” (either alone or in conjunction with or as a part of any other word, mark or name) or any marks, fanciful characters or designs of any of the e-Rewards Entities in any advertising, publicity or promotion; to express or imply any endorsement by e-Rewards of Vendor’s services; or in any other manner whatsoever (whether or not similar to the uses herein above specifically prohibited). The provisions of this paragraph shall survive the expiration or sooner termination of the Purchase Order.
Vendor may, during the course of its engagement hereunder, have access to, and acquire knowledge of or from, materials, data, strategies, systems or other information relating to the Services or any of the e-Rewards Entities that may not be accessible or known to the general public (“Confidential Information”). Vendor shall keep the Confidential Information confidential and shall not use, publish or divulge the Confidential Information to any other person, firm or corporation, or in any advertising or promotion regarding Vendor or its services, or in any other manner or connection whatsoever without first having obtained the prior written permission of e-Rewards, which permission e-Rewards may withhold in its sole discretion. In addition, (a) Vendor will disseminate any such knowledge strictly on a “need to know” basis within its organization or among its employees, agents or contractors, (b) Vendor will specifically apprise in writing any recipient of such knowledge or matter of the requirements of this paragraph, (c) Vendor shall be responsible for any disclosure of such matter by any of its employees, agents or contractors and (d) in the event of any breach of this paragraph, e-Rewards will be entitled, in addition to any other remedies that it may have at law or in equity, to injunctive relief or an order of specific performance. Upon e-Rewards’ request, Vendor shall immediately return to e-Rewards or destroy, all documents, magnetic copies or other physical evidence of all Confidential Information in Vendor’s possession or in the possession of any of Vendor’s directors, officers, employees, agents or representatives (including, without limitation, all copies, transcriptions, notes, extracts, analyses, compilations, studies or other documents, records or data prepared by Vendor) that contain or otherwise reflect or are generated from the Confidential Information without retaining any copy thereof, all of the foregoing being Confidential Information and the sole property of e-Rewards, and an officer of Vendor shall certify to e-Rewards that all of the foregoing has been returned or destroyed as provided in this paragraph. In view of the Confidential Information that Vendor is being provided, Vendor agrees that e-Rewards would be irreparably harmed by any violation or threatened violation of this paragraph and that, therefore, e-Rewards shall be entitled to an injunction prohibiting Vendor from any violation or threatened violation of this paragraph. The provisions of this paragraph shall survive the expiration or sooner termination of the Purchase Order.
15. DETERMINATION OF DISPUTES
The Purchase Order has been entered into in the State of Texas and shall be construed and interpreted in accordance with the laws of the State of Texas without regard to conflicts of laws principles. Any legal proceeding of any nature brought by either party against the other to enforce any right or obligation under the Purchase Order, or arising out of any matter pertaining to the Purchase Order or the Services to be performed hereunder, shall be submitted for trial, without jury, exclusively before the county court in and for Dallas County, Texas; or, if the county court does not have jurisdiction, then before the United States District Court for the Northern District of Texas (Dallas Division); or if neither of such courts shall have jurisdiction, then before any other court sitting in Dallas County, Texas, having subject matter jurisdiction. The parties consent and submit to the jurisdiction of any such court and agree to accept service of process outside the State of Texas in any matter to be submitted to any such court pursuant hereto, and expressly waive all rights to trial by jury regarding any such matter.
Vendor will remain knowledgeable with, and will remain in full compliance with all applicable export and import laws, regulations, orders, and policies (including, but not limited to, securing all necessary clearance requirements, proper filings with appropriate government bodies and/or disclosures relating to the release or transfer to non-U.S. nationals of technology and software in the U.S., or outside the U.S., release or transfer of technology and software having U.S. content or derived from U.S.-origin software or technology); it is knowledgeable with applicable supply chain security recommendations issued by applicable governments and industry standards organizations and will make best efforts to comply with such recommendations; and it will not export, directly or indirectly, any technology, software or commodities of U.S. origin having U.S. content provided by e-Rewards or their direct product to any of the countries or to nationals of those countries, wherever located, listed in U.S. Export Administration Regulations, as modified from time to time, unless authorized by appropriate government license or regulations. Vendor agrees to comply with all laws and regulations governing the importation of goods into the United States Customs Territory. Vendor agrees to hold harmless and indemnify e-Rewards, its directors, officers and employees against all losses, claims, penalties, judgments, liabilities and expenses which any of them may pay or incur arising out of this order, including but not limited to all representations made by the Vendor with response to documentation or other Customs or Governmental requirements with retard to entry requirements, classification, valuation, preferential treatment, duty drawback or trade terms (INCOTERMS, latest revision).
17. EXPORT RESTRICTIONS
Vendor agrees that it will not export or re-export, directly or indirectly, any of e-Rewards’ Confidential Information or items to any country for which the United States of America, at the time of export or re-export, requires an export license or other governmental approval, without first obtaining such license or approval.
18. COMPLIANCE WITH LAWS
Vendor shall comply with all applicable federal, state, county and local laws, ordinances, regulations, orders and codes (including procurement of required permits or certificates) in the performance hereunder, including, but not limited to, all applicable employment, tax, export control, health and safety, and environmental laws by the laws of the country where the e-Rewards is located. In addition, Vendor warrants that all goods and services supplied pursuant to this order will have been performed, produced and supplied in compliance with all applicable rules and regulations of the Federal Communication Commission (FCC) and the Occupational Safety and Health Administration (OSHA). Vendor agrees to indemnify e-Rewards and e-Rewards’ customers for any loss or damage sustained because of Vendor’s noncompliance.
19. ADDITIONAL PROVISIONS
(a) The acceptance of final payment under the Purchase Order, or the acceptance of final payment upon early termination hereof, shall constitute a full and complete release of e-Rewards by Vendor from any and all claims, demands and causes of action whatsoever that Vendor may have against e-Rewards.
(b) Unless e-Rewards and Vendor are parties to a separate agreement governing the provisions of Goods and/or Services by Vendor signed by e-Rewards, the terms and provisions of the Purchase Order constitute the entire agreement between the parties hereto with respect to the subject matter of the Purchase Order and supersede all previous communications, representations or agreements, either oral or written, between the parties relating to such subject matter. Neither party has relied on any representation, expressed or implied, other than as expressly set forth in the Purchase Order. All prior understandings, terms and conditions are deemed to merge in the Purchase Order, and no change, alteration or modification of the Purchase Order shall be effective unless made in writing and signed by both parties hereto.
(c) The failure of Vendor or e-Rewards to insist in any one or more instances upon the strict performance of any of the covenants, agreements, terms, provisions or conditions of the Purchase Order or to exercise any election herein contained shall not be construed as a waiver or relinquishment for the future of such covenant, agreement, term, provision, condition, election or option, but the same shall continue and remain in full force and effect. No waiver by Vendor or e-Rewards of any covenant, agreement, term, provision or condition of the Purchase Order shall be deemed to have been made unless expressed in writing and signed by an appropriate official on behalf of e-Rewards or Vendor.
(d) If any article, section, subsection, term or provision of the Purchase Order or the application thereof to any party or circumstance shall, to any extent, be invalid or unenforceable, the remainder of the article, section, subsection, term or provision of the Purchase Order or the application of same to parties or circumstances other than those to which it is held invalid or unenforceable shall not be affected thereby and each remaining article, section, subsection, term or provision of the Purchase Order shall be valid and enforceable to the fullest extent permitted by law.
(e) The covenants, terms, conditions, provisions and undertakings in the Purchase Order, or in any renewals thereof, shall extend to and be binding upon the heirs, personal representatives, executors, administrators and permitted successors and assigns of the respective parties hereto.
(f) All notices, demands, consents, approvals, statements, requests and invoices to be given under the Purchase Order shall be in writing, signed by the party or officer, agent or attorney of the party giving the notice, and shall be deemed to have been effective (i) upon delivery if served personally, (ii) upon the next delivery day if sent via receipted overnight courier service, or (iii) or upon the third day from and including the day of posting if deposited in the United States mail, postage prepaid, registered or certified mail, return receipt requested, addressed in each instance as For e-Rewards: e-Rewards, Inc., 5800 Tennyson Parkway, Suite 600, Plano, Texas 75024, Attention: Chief Financial Officer; With a copy to: e-Rewards, Inc., 5800 Tennyson Parkway, Suite 600, Plano, Texas 75024, Attention: Legal Department; and for Vendor: the address set forth on the Purchase Order.
(g) The provisions of the Purchase Order are for the exclusive benefit of the parties hereto and not for the benefit of any third person, nor shall the Purchase Order be deemed to have conferred any rights, express or implied, upon any third person.