If the party to whom this purchase order is directed (“Vendor”) has entered into a written agreement with Vendee that is signed by Vendor and Vendee, such Agreement’s terms and conditions shall govern this purchase and the parties’ relationship, notwithstanding the issuance of this purchase order. In all other cases, the relationship between the parties shall be governed by the terms set forth in this purchase order, together with the attached Terms and Conditions (collectively, the “Purchase Order”), which collectively constitute the agreement of the parties.
1. If the party to whom this purchase order is directed (“Vendor”) has entered into a written agreement with Vendee that is signed by Vendor and Vendee, such Agreement’s terms and conditions shall govern this purchase and the parties’ relationship, notwithstanding the issuance of this purchase order. In all other cases, the relationship between the parties shall be governed by the terms set forth in the purchase order, together with these Terms and Conditions (collectively, the “Purchase Order”), which collectively constitute the agreement of the parties.
2. The term “Vendee” shall mean MSG Entertainment Holdings, LLC or the applicable subsidiary, division or affiliate thereof set forth on the Purchase Order.
3. Vendor shall perform the services, and/or deliver the products, items or other materials (collectively, with the services, regardless of whether or not same is created alone or in conjunction with any other person or entity, the “Materials”), freight prepaid, at the location specified on the front of this Purchase Order or at or to such other location required by Vendee. Vendee shall have the right to designate the carrier by which the Materials shall be routed provided this does not entail additional cost to Vendor. Vendor shall comply with all instructions including, without limitation, plans, specifications, bulletins, addenda, etc., attached to this Purchase Order or furnished by Vendee. Vendor shall punctually and diligently perform all of its services and deliver the Materials on the date and at the hours set forth on this Purchase Order (or absent such hours being so designated, during normal business hours (on such date)); deliveries made or attempted at other hours are made at Vendor’s risk. Vendee’s count shall be accepted as final and conclusive on all shipments not accompanied by a packing ticket. Unless otherwise specified in this Purchase Order, all Materials to be delivered shall be boxed, crated and stored by Vendor without charge and shall be packed and packaged to ensure safe arrival, secure the lowest transportation costs, and comply with requirements of common carriers (or shall be otherwise delivered in the manner reasonably requested by Vendee). Vendee reserves the right to inspect the Materials upon delivery and reserves the right to reject any goods if Vendee considers those to be of inferior quality.
4. Vendor represents, warrants and agrees that (i) the Materials shall be delivered to Vendee in good condition, meaning free from any defects in workmanship, design or materials and Vendor shall upon Vendee’s request remedy any defects and pay for any damages resulting therefrom that appear within a period of one year from the date of Vendee’s payment, except as may be otherwise provided on the face of this Purchase Order, (ii) the Materials shall be fit for the purposes intended, (iii) the Materials shall comply in every respect with all Federal, State and municipal laws, codes, ordinances and regulations relating thereto, including without limitation, product testing laws and product warning/label laws and Vendor has complied with and shall at all times continue to comply with all applicable laws and regulations, including, without limitation, child labor laws, (iv) all materials and equipment used in the Materials shall be new and of the best quality, except as otherwise expressly provided in this Purchase Order, and (v) the person signing this or otherwise agreeing to this Purchase Order on behalf of Vendor has the full legal right and authority to enter into this Purchase Order and to bind Vendor hereto. Vendor’s warranty hereunder shall be effective for the period of time set forth on the face of this Purchase Order and if no other period is specified, this warranty shall be effective for a period of one year after delivery of the Materials to Vendee. All Materials returned to Vendor for breach of warranty hereunder shall be at Vendor’s expense including, without limitation, expenses and penalties incurred by Vendee in recalling Materials and goods or articles that contain such Materials and that have been delivered to Vendee’s customer. Time is of the essence of this Purchase Order.
5. Vendor shall act in a professional manner and observe all aspects of appropriate professional and ethical workplace behavior, so that its actions or the actions of its employees or agents will not jeopardize Vendee or its public relations within the community. Vendor shall remove from any project and not otherwise permit to perform services hereunder any of Vendor’s employees or agents who Vendee deems to be incompetent, careless or otherwise objectionable for any reason.
6. Vendee shall have the right to make changes from time to time in any of the designs, specifications, packing, destinations, delivery schedules (postponements only) or quantity of any Materials set forth in this Purchase Order. If such changes cause an increase or decrease in the cost of performance hereunder or in the time required for its performance, an equitable adjustment shall be negotiated as soon as reasonably practicable, and this Purchase Order shall be modified in writing accordingly. No variation in or amendment of any of the terms, conditions, deliveries, prices, quality, quantity or specifications of this Purchase Order shall be effective without the prior written consent of Vendee. Materials received that do not conform to the specifications of this Purchase Order are subject to return to Vendor at Vendor’s risk and expense. Nothing contained herein and no inspection or acceptance of the Materials shall exclude or limit any warranties herein or implied by law.
7. If the Materials, or any parts or portions thereof, are guaranteed by others with Vendee’s prior consent, Vendor shall obtain and deliver to Vendee a written confirmation extending to Vendee the benefits of such guarantee by others. Unless otherwise expressly provided herein, risk of loss and title to the Materials shall vest in Vendee only upon their delivery to and acceptance by Vendee.
8. Vendor, by delivery pursuant to this Purchase Order, hereby covenants, stipulates and agrees that there shall be no lien or right to file a lien, in any jurisdiction, against the premises, facilities, properties, subsidiaries, and companies under Vendee’s control or against Vendee’s interest therein, including, without limitation, any interest in the Materials covered by this Purchase Order, or for work or labor done or Materials furnished in connection with this Purchase Order. No such lien or claims shall be filed, or in any way attempted to be enforced by, or on behalf of, Vendor, or by or on behalf of any subcontractor, supplier of materials or other person concerned in the performance of this Purchase Order. There shall be no claim for any Materials furnished, including, without limitation, any work or labor done or materials furnished, against Vendee or its assignees, other than the claim of Vendor under this Purchase Order. If a lien shall be filed against any of Vendee’s property, premises or Materials, including, without limitation, for any work or labor done, or materials furnished, under this Purchase Order, then, without limiting any other rights of Vendee, Vendor shall forthwith procure the discharge of said lien by bonding or otherwise and at its expense shall defend and save harmless Vendee against all liability, cost or expense (including, without limitation, reasonable counsel fees and related costs) resulting from or connected with said lien or the claim on which it is based.
9. Supplier shall indemnify, defend and hold harmless the following based on where the goods or services are being performed:
- 2 Penn Plaza: Madison Square Garden Entertainment Corp., MSG Entertainment Holdings LLC, Vornado Two Penn Property LLC, Vornado Two Penn Plaza LLC, Two Penn Plaza REIT, Inc., Vornado Office Management LLC, Vornado Realty Trust, Vornado Realty L.P., their owners, parents, subsidiaries, affiliates, and agents, and their respective officers, directors, partners, stockholders, members, employees, licensees, agents, independent contractors, and successors and assigns
- Radio City Music Hall: Madison Square Garden Entertainment Corp., MSG Entertainment Holdings LLC, MSG National Properties LLC, Radio City Productions LLC, Radio City Trademarks, LLC, RCPI Trust, Tishman Speyer Properties, LP, Rockefeller Center Properties, Inc, their owners, parents, subsidiaries, affiliates, and agents, and their respective officers, directors, partners, members, employees, licensees, agents, independent contractors, and successors and assigns
- All other locations: – Madison Square Garden Entertainment Corp., MSG Entertainment Holdings LLC, MSG National Properties LLC, their owners, parents, subsidiaries, affiliates, and agents, and their respective officers, directors, partners, stockholders, members, employees, licensees, agents, independent contractors, and successors and assigns
The above shall be collectively, the “Indemnitees”, and shall be indemnified and held harmless from and against any and all liability, damage, loss, cost or expense (including attorneys` fees) arising out of or in connection with (i) the Materials provided by Supplier hereunder and/or the use thereof, including, without limitation, any defect or malfunction in the Materials, (ii) any act or omission of Supplier and/or any of its employees, agents or subcontractors in providing the Materials to Vendee or otherwise, (iii) the breach by Supplier of any representation, obligation or term set forth herein, or (iv) any infringement by Supplier or the Materials of any patent, copyright, trademark, proprietary or other rights of any of the Indemnitees or any third parties.
10. In connection with Supplier`s performance hereunder Supplier shall procure insurance from carriers rated A-, VII or better according to the current A.M. Best’s Insurance Guide and must be approved to do business in the state where work is to be performed. Minimum required limits are as follows:
- Commercial General Liability insurance with a limit of $1,000,000 per occurrence and $2,000,000 in the annual aggregate including but not limited to coverage for premises, operations, vendors liability, personal injury, products/completed operations, and blanket contractual liability.
- Comprehensive automobile liability insurance for owned, hired, and non-owned vehicles for a combined single limit of at least $1,000,000 per occurrence.
- Umbrella liability coverage following the form of the underlying policies of (i) and (ii) in the amount of $5,000,000 per occurrence.
- Worker’s compensation insurance where applicable by law and Employer’s Liability limits of $1,000,000
Such insurance shall be subject to no deductible and to no contractual limitations other than those found in a standard Commercial General Liability coverage form. Indemnitees shall be included as Additional Insureds on the CGL, Auto and Umbrella. Coverage shall apply on a primary and non-contributory basis irrespective of any other insurance. Accordingly, such policy(ies) shall be endorsed to reflect that the insurer has waived all rights of subrogation that it otherwise might have. No such policy shall be canceled or materially changed without Vendee`s prior written consent. Each of the insurance policies must have an unrestricted 30-day notice of cancellation in favor of Vendee. Supplier shall furnish certificates evidencing all insurance to be procured and maintained as stated herein prior to providing any good or services upon request and to the satisfaction of Vendee. Supplier shall list the Indemnitees as additional insured in such certificates.
11. Any invoice, package, bill of lading and shipping order to be sent by Vendor to Vendee in connection with this Purchase Order must reference the Purchase Order number. Terms shall be as set forth herein. No payment made by Vendee shall be construed to be an acceptance of defective work or improper Materials or construed as an admission by Vendee that Vendor has performed, in whole or in part. Invoices for partial payment shall not be accepted until the full order has been delivered.
12. In addition to, and without limiting Vendee’s termination rights hereunder or any other rights Vendee might have, Vendee has the right to (i) terminate this Purchase Order, in whole or in part, at any time effective upon Vendor’s receipt of written notice thereof, and/or (ii) in the event of Vendor’s default or potential inability to perform this Purchase Order, to demand that Vendor deliver to Vendee the raw materials and work in process acquired by Vendor in order to perform under this Purchase Order, and to complete the work and deduct the cost of such completion from the price, or, in the alternative, solely to pay to Vendor the cost of such raw materials and work in process. In the event of termination other than in connection with a breach, Vendor may claim only reasonable, properly supported out-of-pocket costs actually incurred prior to receipt of written notice of termination, plus a reasonable amount for the work already satisfactorily performed; provided, however, that in no event shall the total payments made to Vendor by Vendee pursuant to the foregoing, together with any payments previously remitted by Vendee to Vendor hereunder, exceed the amount stated as payable in the Purchase Order prior to termination. For specially prepared Materials unique to Vendee’s order, any partially completed work or raw materials whose full costs are included in the termination charges shall be identified in writing and held by Vendor for disposition in accordance with Vendee’s written instruction. Notwithstanding the foregoing, Vendee reserves the right to cancel all or any part of the undelivered portion of this Purchase Order, without liability, in addition to Vendee’s other rights and remedies, if Vendor breaches any of the terms and conditions herein.
13. All Materials provided by Vendor to Vendee and all results thereof and any show or event of Vendee in which such Materials are to be utilized and all elements thereof shall belong exclusively to Vendee and shall, to the greatest extent possible, be considered “works-made-for-hire” within the meaning of the United States Copyright Act. To the extent that any of the Materials are not considered works-made-for-hire of Vendee, Vendor hereby assigns to Vendee all right, title and interest in and to the Materials and the rights thereto, including, without limitation, all copyrights (and all extensions and renewals thereof), without any further compensation to Vendor other than the compensation set forth in this Purchase Order. Vendor shall execute all additional documents proposed by Vendee to effectuate and confirm Vendee’s sole and exclusive ownership of the Materials, including, without limitation, all copyrights, at any time, and Vendor hereby irrevocably appoints Vendee as its attorney-in-fact to execute all documents solely necessary to effectuate the provisions of this paragraph. Vendee and/or its licensees, successors and assigns shall be considered, forever and for all purposes throughout the universe, the author of the Materials and the sole copyright owner thereof, and the owner of any rights therein, whether or not copyrightable, all proceeds derived therefrom. For the purposes of this paragraph only, the defined term “Materials” shall not include any products, items, property (including intellectual property) or other material that Vendee has provided to Vendor.
14. Vendor shall not negatively affect the union jurisdiction of any union members employed or engaged by Vendee or any of its affiliates, including but not limited to any such jurisdiction in the operation of any venue or location owned or operated by Vendee or an affiliate.
15. This Purchase Order shall be construed according to the laws of the State of New York without regard to its conflict of law principles. Any litigation, action or proceeding arising out of or relating to this Purchase Order shall be instituted in any State or Federal court located within the City of New York, Borough of Manhattan, and the parties hereby submit to the sole and exclusive jurisdiction of any such court in any such litigation, action or proceeding.
16. Vendee reserves the right to release all information relating to the subject matter of this Agreement and to determine the form, content and timing of the release of such information. Vendor acknowledges that for purposes of performing its services and/or delivering the Materials pursuant to this Purchase Order, it has access to confidential commercial information about Vendee and its owned, controlled, affiliated, associated, parent and subsidiary companies and/or partnerships. Release of such information could cause irreparable harm to Vendee. Accordingly, Vendor shall retain all information belonging to Vendee in the strictest confidence and shall neither use it nor disclose it to anyone (including, but not limited to a governmental authority in application for a permit, approval, or clearance, or to market its services) without the prior written consent of Vendee, unless such disclosure is made by Vendor pursuant to the requirement or request of a governmental agency or court of competent jurisdiction to the extent such disclosure is required by a valid law, regulation or court order, and sufficient notice is given by Vendor to Vendee of any such requirement or request to permit Vendee to seek an appropriate protective order or exemption from such requirement or request.
17. Vendor shall not discriminate against any employee or applicant for employment because of race, creed, color, national origin, sex, age, disability, marital status or other criteria prohibited by the laws of the United States and the State and City or County where the work is being performed. Vendor shall take all necessary steps to assure that none of its employees or any other person providing services pursuant to this Purchase Order engages in harassment or intimidation, including sexual, racial or ethnic harassment or intimidation, of anyone on the premises. If such conduct occurs, Vendor shall take all necessary steps to stop it and prevent its future occurrence, including, but not limited to, the immediate dismissal or transfer of personnel.
18. The parties hereto acknowledge and agree that Vendor is providing its services under this Purchase Order as an independent contractor and that Vendor is not an employee of Vendee. Nothing herein shall be construed as creating any other relationship between the parties. Vendor shall be fully and solely responsible for all compensation due any of the individuals retained by it to perform services required pursuant to this Purchase Order, regardless of whether such individuals are employees of Vendor or independent contractors. Vendee shall have no responsibility to pay compensation or benefits, including without limitation any benefits which are payable pursuant to applicable law, to or on behalf of any individuals retained by Vendor. Except for provisions herein expressly authorizing a party to act for another, nothing in this Purchase Order shall constitute a party as a legal representative or agent of the other party, nor shall a party have the right or authority to assume, create or incur any liability or any obligation of any kind, express or implied, against or in the name or on behalf of the other party unless otherwise expressly permitted by such other party. Except as otherwise expressly provided in this this Purchase Order, no party undertakes to perform any obligation of the other party, whether regulatory or contractual, or to assume any responsibility for the management of the other party’s business.
19. This Purchase Order is intended as the final, complete and exclusive statement of the terms of the agreement of the parties hereto with respect to the subject matter hereof. If there is any conflict between the terms and conditions contained herein and any terms or conditions contained in any sales order, confirmation, acknowledgement, invoice or other form or document furnished by Vendor with respect to such subject matter, the terms and conditions of this Purchase Order shall control, and any such form or document furnished by Vendor shall be null and void. A waiver by either party hereto of any provision of this Purchase Order must be in writing and signed (including by electronic signature) by both parties and shall not be deemed to be a waiver of such provision, or any other provision, as to any future instance or occurrence. Acceptance of this Purchase Order is limited to and conditioned upon Vendor’s assent to the terms and conditions contained herein. This Purchase Order may not be modified, rescinded or canceled, in whole or in part, except in a written statement signed by Vendee. Neither this Purchase Order nor the obligation of Vendor to perform hereunder shall be assigned or delegated by Vendor without Vendee’s prior written consent. All representations and warranties and confidentiality indemnification obligations herein made shall survive Vendee’s acceptance of and payment for the Materials and any termination of this Purchase Order.