GENERAL TERMS AND CONDITIONS

  1. Service Provider Obligations.  During the Term, Service Provider shall : (a) designate a Service Provider Representative to serve as its primary contact with respect to the Agreement and to act as its authorized representative with respect to day-to-day communications, consultation, decision-making, consents and approvals and other matters pertaining to the Agreement (with such designation to remain in force unless and until a successor Service Provider Representative is appointed as permitted below), together with a sufficient number of employees or agents to perform the Services as determined in its sole discretion (collectively, with the Service Provider Representative, the “Service Provider Parties”);  (b) make no changes in Service Provider Parties  except either (i) with the prior consent of Customer, which consent shall not be unreasonably withheld, conditioned or delayed, (ii) at the request of Customer, in which case Service Provider shall use commercially reasonable efforts to promptly appoint a replacement or (iii) upon the resignation, termination, death or disability of the existing Service Provider Representative;  (c) assign only qualified, legally authorized Service Provider Parties to provide the Services;  (d) comply with all applicable laws and regulations in providing the Services, including, without limitation, obtaining any required licenses, permissions, authorizations, consents or permits;  (e) comply with all Customer rules, regulations and policies of which it has been made aware in its provision of the Services; and  (f) maintain complete and accurate records relating to the provision of the Services under the Agreement.  During the Term and for a period of three (3) years thereafter, upon Customer’s written request, Service Provider shall allow Customer or Customer’s representative to inspect and make copies of such records and interview Service Provider Parties in connection with the provision of the Services; provided, that Customer provides Service Provider with at least five (5) Business Days’ (as defined below) advance written notice of the planned inspection (any such inspection shall take place during regular business hours and no more than once every six (6)-month period).  “Business Day ” means any day other than Saturday, Sunday or other day on which commercial banks in New York, New York, are authorized or required by law to remain closed.
  2. Customer Obligations.  During the Term, Customer shall : (a) designate a Customer Representative to serve as its primary contact with respect to the Agreement and to act as its authorized representative with respect to day-to-day communications, consultation, decision-making, consents and approvals and other matters pertaining to the Agreement, with such designation to remain in force unless and until a successor Customer Representative is appointed, in Customer’s sole discretion; (b) require that the Customer Representative respond promptly to any reasonable requests from Service Provider for instructions, information or approvals required by Service Provider to provide the Services; (c) provide Service Provider with a copy of and/or access to such Customer Data (as defined below) as may be requested by Service Provider in its performance of the Services, and Customer (i) represents and warrants that the Customer Data will be free of material errors, that it owns or possesses sufficient rights to the Customer Data to provide it to Service Provider pursuant to the Agreement and that the Customer Data and the collection, use and disclosure thereof by and to Service Provider will not violate any third party rights, (including intellectual property, privacy and publicity rights), and (ii) covenants and agrees that it will obtain all necessary rights, releases and consents to allow Customer Data to be collected, used and disclosed to Service Provider in the manner contemplated by the Agreement and to grant Service Provider the rights set out in the Agreement with respect thereto; and (d) reasonably cooperate with Service Provider in its performance of the Services and provide access to Customer’s premises, employees and information technology systems as required to enable Service Provider to provide the Services.  “Customer Data” means content, data, information and/or materials of or relating to Customer (including, without limitation, product order history and/or price information) owned by Customer or maintained by third parties with respect to prior services performed by such third parties for, or S upplies provided by third parties to, Customer.
  3. Fees and Expenses.
  1. In exchange for Service Provider’s performance of the Services, Customer shall pay to Service Provider the service fee (the “Service Fee”), if any, and the savings fee (the “Savings Fee”), if any, set forth on an addendum to the Services Order Form.  Except for any amounts disputed by Customer in good faith, Customer shall pay to Service Provider the cost of all Supplies ordered through Service Provider within thirty (30) days of the invoice issue date .  Customer shall make all payments in United States dollars by check or wire transfer of immediately available funds to such bank account designated in writing by Service Provider.
  2. Customer shall reimburse Service Provider for all reasonable expenses incurred in accordance with the performance of the Services, if such expenses have been pre-approved, in writing by the Customer Representative, within ten (10) days of receipt by Customer of an invoice from Service Provider accompanied by receipts and supporting documentation reasonably acceptable to Customer and conforming to the requirements of Customer’s expense reimbursement policy in effect from time to time (if any); provided, that Service Provider may, if desired or required by a third party vendor, provide a reconciliated invoice and/or statement for such vendor to Customer, in which case Customer shall remit payment for such invoice and/or statement directly to the vendor.  All Service Provider expenses not pre-approved by the Customer Representative or not otherwise meeting the requirements of the Agreement  or the Statement of Work to which it applies shall be the sole responsibility of Service Provider.
  1. Intellectual Property.  All intellectual property rights, including copyrights, patents, patent disclosures and inventions and technology (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Customer under the Agreement or prepared by or on behalf of Service Provider in the course of performing the Services (collectively, the “Deliverables”), except for any Confidential Information of Customer or customer materials, shall be owned by Service Provider.  Service Provider hereby grants Customer a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services.
  2. Confidentiality.  All non-public, confidential or proprietary information of Customer, including, without limitation, Customer Data (“Confidential Information”), disclosed by Customer to Service Provider, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the Agreement is confidential, solely for Service Provider’s use in performing the Agreement and may not be disclosed or copied unless authorized by Customer in writing.  Confidential Information does not include any information that (i) is or becomes generally available to the public other than as a result of Service Provider’s breach of the Agreement, (ii) is obtained by Service Provider on a non-confidential basis from a third party that was not legally or contractually restricted from disclosing such information or (iii) Service Provider establishes by documentary evidence, was in Service Provider’s possession prior to Customer’s disclosure hereunder.  Upon Customer’s request, Service Provider shall promptly return all documents and other materials received from Customer.  Customer shall be entitled to injunctive relief for any violation of this Section.  
  3. Services; Exclusivity.
  1. During the Term (as defined below), Service Provider shall provide to Customer those services set forth on the Services Order Form to which these General Terms and Conditions are attached (the “Services Order Form”), together with any additional services set forth in one or more statements of work (each, a “Statement of Work”) issued by Customer and accepted by Service Provider (collectively, the “Services”).  Statements of Work shall be deemed accepted only if signed by the Service Provider Representative and the Customer Representative.  Service Provider shall provide the Services (i) in accordance with the terms and subject to the conditions set forth in the Agreement, (ii) using personnel of required skill, experience and qualifications, (iii) in a timely, workmanlike and professional manner, (iv) in accordance with the highest professional standards in Service Provider’s field and (v) to the reasonable satisfaction of Customer.
  2. During the Term and for a period of six (6) months thereafter, Customer shall not, directly or indirectly, without the prior written consent of Service Provider, (i) seek, solicit, engage, accept or receive, or attempt to seek, solicit, engage, accept or receive, the Services or services that are the same or substantially similar to the Services from Service Provider’s vendors, suppliers, providers and other business relations (collectively, “Service Provider Vendors”) or their affiliates, or (ii) seek, solicit, accept or receive, or attempt to seek, solicit, accept or receive, Supplies that are the same or substantially similar to the Supplies arising through the performance of the Services from Service Provider Vendors or their affiliates.
  1. Term and Termination; Survival.
  1. If the Services Order Form reflects that Service Provider will provide to Customer the Services for an initial trial period, then the initial term of the Agreement shall commence on the first day of such trial period and end on the last date of such trial period (the “Trial Term”), whereupon the Agreement will automatically expire and terminate unless (i) the Services Order Form reflects that Service Provider shall continue to provide the Services for an Initial Term thereafter (in which event the Agreement shall continue for the duration of such specified Initial Term and any Renewal Term) or (ii) Customer notifies Service Provider in writing that it desires Service Provider to continue to provide the Services for an Initial Term thereafter (in which event Customer and Service Provider shall agree in writing to the duration of such Initial Term, and the Agreement shall continue for the duration of such agreed upon Initial Term and any Renewal Term).
  2. If the Services Order Form does not reflect that Service Provider will provide to Customer the Services for an initial trial period, then the Initial Term of the Agreement shall commence on the first day of the period so specified on the Services Order Form and end on the last date of such Initial Term so specified on the Services Order Form, unless earlier terminated pursuant to Section 7.3 or 4; provided, that Customer shall have the right to renew the Agreement for one (1) additional one (1)-year term following the end of the Initial Term (the “Renewal Term”) by providing Service Provider with written notice of its election to renew the term of the Agreement at least thirty (30) days prior to the end of the Initial Term (the Renewal Term, together with the Trial Term (if any) and the Initial Term, the “Term ”).
  3. Either party, in its sole discretion, may terminate the Agreement at any time without cause, and without liability (except, with respect to Customer, for required payment for Services rendered, and reimbursement for authorized expenses incurred, by Service Provider prior to the termination date), by providing at least thirty (30) days’ prior written notice to the other party .
  4. Either party may immediately terminate the Agreement, effective upon written notice to the other party (the “Defaulting Party ”), if the Defaulting Party: (a) materially breaches the Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within ten (10) Business Days after receipt of written notice of such breach;  (b) becomes insolvent or admits its inability to pay its debts generally as they become due;  (c) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within ten (10) Business Days or is not dismissed or vacated within sixty (60) days after filing; (d) is dissolved or liquidated or takes any corporate action for such purpose; or (e) makes a general assignment for the benefit of creditors or has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
  5. Upon the expiration or termination of the Agreement  for any reason, Service Provider shall promptly: (a) deliver to Customer all documents, work product and other materials, whether or not complete, prepared by or on behalf of Service Provider in the course of performing the Services for which Customer has paid; (b) return to Customer all Customer-owned property, equipment or materials in its possession or control; (c) remove any Service Provider-owned property, equipment or materials located at Customer’s locations; (d) deliver to Customer, all documents and tangible materials (and any copies) containing, reflecting, incorporating or based on Customer’s Confidential Information; (e) provide reasonable cooperation and assistance to Customer upon Customer’s written request in transitioning the Services to an alternate service provider; (f) on a pro rata basis, repay all fees and expenses paid in advance for any Services which have not been provided; (g) permanently erase all of Customer’s Confidential Information from its computer systems; and (h) certify in writing to Customer that it has complied with the requirements of this Section 7.5 .  The rights and obligations of the parties set forth in this Section 7 and Section 5, Section 6, Section 8, Section 9, Section 10, Section 12, Section 14.1, Section 14.6, Section 14.7 and Section 14.8, and any right or obligation of the parties in the Agreement which, by its nature, should survive the termination or expiration of the Agreement, shall survive any such termination or expiration of the Agreement .
  1. Public Announcements.  Service Provider shall not use Customer’s trademarks, service marks, trade names, logos, symbols or brand names for any purpose other than in connection with the marketing, advertising and promotion of Service Provider’s business (including in Service Provider’s promotional and marketing materials) without the prior written consent of Customer.
  2. Independent Contractor.   Service Provider will provide the Services to Customer hereunder in the capacity of an independent contractor and not as an employee or agent of Customer.  Service Provider shall control the conditions, time, details and means by which Service Provider performs the Services.  Customer shall have the right to inspect the work of Service Provider as it progresses solely for the purpose of determining whether the work is completed according to the Agreement  or, if applicable, a Statement of Work.  Service Provider has no authority to commit, act for or on behalf of Customer or to bind Customer to any obligation or liability.  Service Provider shall not be eligible for and shall not receive any employee benefits from Customer and shall be solely responsible for the payment of all taxes, Federal Insurance Contributions Act (FICA) taxes, federal and state unemployment insurance contributions, state disability premiums and all similar taxes and fees relating to any fees or compensation earned by Service Provider hereunder.
  3. Indemnification.
  1. Service Provider shall indemnify, defend and hold harmless Customer and its officers, directors, employees, agents, successors and permitted assigns (collectively, the “Customer Indemnified Parties”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under the Agreement and the cost of pursuing any insurance providers (collectively, “Losses”), incurred by a Customer Indemnified Party relating to, arising out of or resulting from (i) Service Provider’s breach of any of its representations, warranties, covenants or obligations set forth in the Agreement, or (ii) any gross negligence, fraud or willful misconduct by Service Provider in the performance of the Services
  2. Customer shall indemnify, defend and hold harmless Service Provider and its officers, directors, employees, agents, successors and permitted assigns (collectively, the “Service Provider Indemnified Parties”) from and against any and all Losses incurred by a Service Provider Indemnified Party relating to, arising out of or resulting from (i) Customer’s breach of any of its representations, warranties, covenants or obligations set forth in the Agreement or (ii) any claim of a third party that Customer’s delivery of any Customer Data to Service Provider, or Service Provider’s use thereof, infringes the Intellectual Property Rights of such third party.
  1. Remedies .  If Service Provider violates any provision of the Agreement, Customer shall, in addition to any damages to which it is entitled, be entitled to seek immediate injunctive relief against Service Provider prohibiting further actions inconsistent with Service Provider’s obligations under the Agreement .  To the extent a party is required to seek enforcement of the Agreement or otherwise defend against an unsuccessful claim of breach, the non-prevailing party shall be liable for all attorney’s fees and costs incurred by the prevailing party to enforce the provisions of the Agreement .  Except for a breach of Section 6, all rights and remedies provided in the Agreement are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties or otherwise.  Despite the previous sentence, the parties intend that Service Provider’s right to damages equal to its earned but unpaid Service Fee (if any) and Savings Fee (if any) is Service Provider’s exclusive remedy for Customer’s payment breach.
  2. Limitation of Liability.  IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.  EXCEPT FOR LOSSES ARISING OUT OF OR RELATING TO SERVICE PROVIDER’S FAILIRE TO COMPLY WITH THE OBLIGATIONS SET FORTH IN SECTIONS 6 AND 10, IN NO EVENT SHALL SERVICE PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SERVICE PROVIDER PURSUANT TO THE AGREEMENT.
  3. Insurance.  During the Term, Service Provider shall, at its own expense, maintain and carry insurance in full force and effect with financially sound and reputable insurers of recognized standing which are authorized to do business in the state(s) in which the Services are rendered and are rated A-VII or better by A.M. Best., that includes, but is not limited to, commercial general liability insurance and other insurance appropriate for a company performing services the same as or substantially similar to the Services, with coverages not less than those reasonable for companies providing services the same as or substantially similar to the Services.  Upon Customer’s request, Service Provider shall provide Customer with a certificate of insurance from Service Provider’s insurer evidencing the insurance coverages specified in the Agreement.  The certificate of insurance shall name Customer as an additional insured.  Service Provider shall provide Customer with thirty (30) days’ advance written notice in the event of a cancellation or material change in Service Provider’s insurance policy.  Except where prohibited by law, Service Provider shall require its insurer to waive all rights of subrogation against Customer’s insurers and Customer or the Customer Indemnified Parties.
  4. Miscellaneous.
  1. Entire Agreement.  The Agreement including and together with any related exhibits, schedules, addenda, attachments and appendices, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.  The parties acknowledge and agree that if there is any conflict between these General Terms and Conditions and the terms and conditions of the Services Order Form, any Statement of Work or any related exhibits, schedules, addenda, attachments and appendices, the terms and conditions of these General Terms and Conditions shall supersede and control.
  2. Notices.  All notices, requests, consents, claims, demands, waivers and other communications under the Agreement must be in writing and addressed to the other party at its address, email address or facsimile number set forth in the Services Order Form.  Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier, certified or registered mail (in each case, return receipt requested, postage prepaid) or by email or facsimile (provided confirmation of transmission is mechanically or electronically generated and received by the sending party).  Except as otherwise provided in the Agreement, a notice is effective only (a) on receipt by the receiving party, and (b) if the party giving the notices has complied with the requirements of this Section 14.2.
  3. Severability.  If any term or provision of the Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.  Upon a determination that any term or provision is invalid, illegal or unenforceable, the parties shall negotiate in good faith to modify the Agreement to effect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
  4. Amendments and Waivers.  No amendment to, or modification of or rescission, termination or discharge of the Agreement is effective unless it is in writing and signed by an authorized representative of each party .  No waiver by any party of any of the provisions of the Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving.  Except as otherwise set forth in the Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from the Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
  5. Assignment.  Service Provider shall not assign, transfer, delegate or subcontract any of its rights or obligations under the Agreement without the prior written consent of Customer, which consent shall not be unreasonably, withheld, conditioned or delayed.  Any purported assignment or delegation in violation of this Section 14.5 shall be null and void.  No assignment or delegation shall relieve Service Provider of any of its obligations hereunder.  Customer may at any time assign or transfer any or all of its rights or obligations under the Agreement to any affiliate or to any entity acquiring all or substantially all of Customer’s assets or business without Service Provider’s prior written consent.
  6. Successors and Assigns; No Third Party Beneficiaries.  The Agreement is binding on and inures to the benefit of the parties and their respective successors and permitted assigns.  The Agreement benefits solely the parties and their respective successors and permitted assigns and nothing in the Agreement, express or implied, confers on any third party any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Agreement.
  7. Governing Law; Jurisdiction; Waiver of Jury Trial.  The Agreement and all Statements of Work, including all exhibits, schedules, addenda, attachments and appendices attached hereto and thereto, and all matters arising out of or relating to the foregoing, are governed by and are to be construed in accordance with the laws of the State of New York, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of New York.  Each party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other party in any way arising from or relating to the Agreement or any Statement of Work, including all exhibits, schedules, addenda, attachments and appendices attached hereto and thereto, and all contemplated transactions, in any forum other than the state and federal courts of the State of New York.  Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in the state and federal courts of the State of New York.  Each party agrees that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.  Each party acknowledges that any controversy that may arise under the Agreement, including exhibits, schedules, addenda, attachments and appendices attached to the Agreement, is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to the Agreement, including any exhibits, schedules, addenda, attachments or appendices attached to the Agreement, or the transactions contemplated hereby.
  8. Counterparts; Electronic Signature.  The Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.  Notwithstanding anything to the contrary in Section 14.2, a signed copy of the Agreement delivered by facsimile, email .pdf or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of the Agreement.
  1. Force Majeure.  Any delay or failure of either party to perform its obligations under the Agreement will be excused to the extent that the delay or failure was caused directly by an event beyond such party’s control, without such party’s fault or negligence and that by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, embargoes, explosions, riots, wars or acts of terrorism) (each, a “Force Majeure Event”).  Service Provider’s financial inability to perform, changes in cost or availability of materials, components or services, market conditions or supplier actions or contract disputes will not excuse performance by Service Provider under this Section 15.  Service Provider shall give Customer prompt written notice of any event or circumstance that is reasonably likely to result in a Force Majeure Event, and the anticipated duration of such Force Majeure Event.  Service Provider shall use all diligent efforts to end the Force Majeure Event, ensure that the effects of any Force Majeure Event are minimized and resume full performance under the Agreement.

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