- “Terms” means the terms and conditions set forth herein, which shall be binding on Supplier and TKWW.
- “Contract” means any contract, agreement or negotiated legal terms between TKWW and Supplier.
- “Order” means TKWW’s Purchase Order to which these Terms shall apply.
- “Work” means any services, labor, goods, materials and/or equipment or part thereof to be provided under the Order.
- “Data Protection Laws” means any laws and regulations relating to privacy or the use or processing of data relating to natural persons, including (i) EU Directive 2002/58/EC (as amended by 2009/136/EC) and any legislation implementing or made pursuant to such directive, including (in the UK) the Privacy and Electronic Communications (EC Directive Regulations 2003; (ii) from May 25, 2018, EU Regulation 2016/679 (“GDPR”); and (iii) any laws or regulations ratifying, implementing, adopting, supplementing or replacing GDPR, including (in the UK) the Data Protection Act 2018 (the “Data Protection Act”) and any guidance or codes of practice issued by a governmental or regulatory body or authority in relation to compliance with the foregoing.
- “Intellectual Property Rights” means any and all tangible and intangible: (i) copyrights and other rights associated with works of authorship; (ii) trademarks and trade name rights and similar rights; (iii) trade secret rights; (iv) patents, designs, algorithms, utility models and other industrial property rights, including all improvements thereto; all other intellectual property rights of every kind, however designated, throughout the world.
- “TKWW” means The Knot Worldwide Inc. and/or any of its subsidiaries or corporate affiliates that is a party to the Order.
- “Supplier” means the vendor, contractor, consultant, company, firm, supplier, seller, person or entity to which the Order is issued.
2) Controlling Document
- The Terms of this Order are the complete and binding agreement between TKWW and the Supplier, except if the parties have executed a Contract which is effective as of the dates of this Order and either applies to the Work or applies to the relationship between Supplier and TKWW, in which case the provisions of such Contract are hereby incorporated into this Order.
- If a conflict arises between any term or condition in this Order and any term or condition in such Contract, the term or condition of the Contract will govern. If the Contract is silent as to any item listed herein, this Order shall control.
3) Terms of Payment
- Payment shall be made within thirty (30) days after the date TKWW receives a correct and valid invoice, provided that (i) the Work has been delivered or performed in accordance with these Terms and the terms and conditions of any applicable Contract; and (ii) TKWW has accepted the Work. If the work has not been delivered or performed in accordance with these Terms and the terms and conditions of any applicable contract, or TKWW has not accepted the Work, the invoice shall be paid within sixty (60) days following the date when the Work is completed to TKWW’s satisfaction.
- TKWW shall be entitled at all times to offset any amount due from Supplier against any amount payable at any time in connection with the Order.
- In no event may Supplier submit an invoice to TKWW, its affiliates, subsidiaries or parent company or their respective officers, directors, shareholders, members, partners, employees or agents (collectively, the “TKWW Parties”), or otherwise make any claim against the TKWW Parties for payment for Work performed, more than one (1) year after the earlier to occur of (i) the date when the Supplier substantially completes the Work or (ii) the date the Order and/or applicable Contract is terminated. Supplier shall also indemnify, defend and hold harmless the TKWW Parties against any such claims by any third party in connection with this Order.
- Supplier shall submit all invoices to firstname.lastname@example.org unless otherwise instructed in the Order.
- Except as otherwise provided below, the amounts to be paid by TKWW to Supplier do not include any taxes. TKWW is not liable for any taxes that Supplier is legally obligated to pay, including, but not limited to, net income or gross income taxes, franchise taxes and property taxes. TKWW will pay to Supplier any sales, use or value-added taxes it owes due to this Purchase Order and/or which the law requires Supplier to collect from TKWW. If TKWW provides Supplier with a valid exemption certificate, Supplier will not collect the taxes covered by such certificate. Supplier will indemnify, defend and hold TKWW harmless from any claims, costs (including reasonable attorneys’ fees) and liabilities related to or resulting from Supplier’s tax obligations.
- If the law requires TKWW to withhold taxes from payments to Supplier, TKWW may withhold those taxes and pay them to the appropriate taxing authority. TKWW will deliver to Supplier an official receipt for such taxes.
4) Representations and Warranties
Supplier represents and warrants that:
- it has the full power to enter into this Order and to perform its obligations under this Order and any incorporated Contract;
- The Work will (i) be performed, provided, manufactured, shipped, stored and otherwise handled in a workmanlike manner consistent with the standards of Supplier’s industry and in strict compliance with all applicable laws, codes, ordinances, regulations, executive orders and other legal and/or regulatory obligations, including all applicable Data Protection Laws; (ii) conform to requirements, specifications, quality or any other descriptions outlined in this Order and any Contract incorporated herein; (iii) be without defects and fit for the intended purpose for which the Order is placed; and (iv) not infringe any Intellectual Property Rights or any other legal right belonging to any third party;
- Supplier has good, absolute and marketable title to the Work, free and clear of any and all liens, security interest, restrictions or other encumbrances, and it has the right and unrestricted ability to assign, license and transfer (as applicable) all rights, title and interest in the Work performed or delivered by Supplier and/or its subcontractors to TKWW; and
- Software provided by Supplier does not contain any malware or harmful code, including but not limited to viruses, worms, time bombs, time locks, drop-dead devices, access codes, security keys, back doors or trap door devices.
All other applicable warranties, express or implied, including any warranty of merchantability and fitness for a particular purpose, remain in effect.
5) Intellectual Property Rights
Unless otherwise specified in this Order or an incorporated Contract or by operation of law, TKWW shall be the sole and exclusive owner of the Work and all deliverables included therein, and Supplier hereby irrevocably assigns and transfer to TKWW all of its worldwide right and title to, and its interest in, the Work, including all of the associated Intellectual Property Rights.
All non-public information disclosed by TKWW in connection with this Order or any Contract applicable to the Work that should, in light of its content and the circumstances of its disclosure, reasonably be considered confidential or proprietary (“Confidential Information”), 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,” shall be treated by Supplier as confidential and be afforded the same level of protection as Supplier gives to its own similar information, which in any event shall be no less than reasonable care. Such Confidential Information shall be used by Supplier solely as necessary to perform its obligations under this Order and/or any Contract applicable to the Work and not be disclosed or copied by Supplier unless authorized in writing by TKWW. Confidential Information does not include any information that (a) is or becomes generally available to the public other than as a result of Supplier’s breach of this Order or any applicable Contract; (b) is obtained by Supplier on a non-confidential basis from a third party that was not legally or contractually restricted from disclosing the information; or (c) as Supplier establishes by documentary evidence, was in Supplier’s possession prior to TKWW’s disclosure hereunder. Upon TKWW’s request, Supplier shall promptly return or destroy all documents and other materials received from TKWW. TKWW shall be entitled to injunctive relief for any violation of this Section 6.
7) No Publicity
Supplier shall not issue ore release any announcement, statement, press release or other publicity or marketing materials relating to this Order or to any Contract incorporated into this Order or otherwise use TKWW’s name, logo or other marks in any public manner without the prior written authorization by TKWW on each occasion.
Supplier will defend, indemnify and hold harmless TKWW, the TKWW Parties and any additional insured under any applicable Contract, along with their respective officers, directors, employees, agents, affiliates, partners and clients, against all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and costs of enforcing any right to indemnification under this Order or any applicable Contract and the cost of pursuing any insurance providers, in connection with any third-party claim arising from or relating to: (a) allegations of the infringement of any third-party Intellectual Property Rights or other proprietary rights which arise from or relate to the Work; (b) allegations or claims of a breach by Supplier of any term or provision of this Order or any Contract incorporated herein; (c) any act or omission in violation of or any failure to comply with applicable laws, rules or regulations by Supplier or Supplier’s agents, employees or subcontractors; (d) any breach of confidentiality, Data Protection Laws or privacy obligations by Supplier; (e) negligent or willful acts or omissions of Supplier or Supplier’s agents, employees or subcontractors which result in bodily injury or death to any person or loss, disappearance or damage to tangible or intangible property; or (f) any claims by Supplier’s employees, affiliated companies or contractors.
Supplier will secure and maintain insurance policies of the types and at the levels considered standard in its industry, which, at the least, shall provide sufficient coverage to comply with its obligations and duty to indemnify as required under this Order and/or any incorporated Contract. Within five (5) days after receiving a request from TKWW, Supplier agrees to provide Supplier with a certificate of insurance evidencing Supplier’s insurance coverages.
10) Limitation of Liability
To the extent permitted by applicable law, in no event will any of the TKWW Parties be liable to Supplier for any lost revenues or profits, for any incidental, consequential or other indirect damages or for any special or punitive damages. In no event shall any of the TKWW Parties’ liability to Supplier exceed the total amount of fees actually paid by TKWW to Supplier under this Order.
All Supplier actions related directly or indirectly to the performance of this Order or any incorporated Contract will comply with all applicable anti-corruption laws. Accordingly, Supplier will not offer, promise or provide any payments, loans, gifts of money or anything of value to secure an improper advantage or for a corrupt purpose as described in applicable law. By executing this Order, Vendor agrees to comply at all times with TKWW’s then-current Supplier Code of Conduct, a current version of which is available at [LINK] and is hereby incorporated by reference.
12) Assignment and Subcontracting
Supplier shall not assign or subcontract any part of this Order or the Work without TKWW’s prior written consent. No assignment or subcontract shall relieve Supplier of any of its obligations under this Order and/or any incorporated Contract. Vendor shall ensure that these Terms and any incorporated Contract will be included in all subcontracts entered into by Supplier in connection with the Work.
13) Governing Law and Jurisdiction
To the extent permissible under applicable law the Order, these Terms and any incorporated Contract shall be governed, construed and interpreted in accordance with the laws of the State of New York, without regard to any conflicts-of-law rules or principles. Any and all disputes arising out of, relating to, or resulting from the interpretation of the terms of this Order an/or any incorporated Contract or any breach thereof, whether relating to contract, equity, tort, fraud, statutory claims, shall be brought in the United States District Court for the Southern District of New York or, if such court does not have subject matter jurisdiction over the dispute or issue, the courts of the state of New York located in New York County, New York. Each party hereby irrevocably and unconditionally submits to the exclusive jurisdiction of such courts.
All notices, requests, consents, claims, demands, waivers and other communications under this Order shall be in writing and addressed to the parties as indicated on the signature page to this Order, (or as otherwise specified by a party in a notice given in accordance with this Section 14) with, in the case of legal notices to TKWW, an electronic copy to Legal@theknotww.com. Notices sent in accordance with this Section 14 shall be deemed effectively given (a) when received, if delivered by hand (with written confirmation of receipt); (b) when received, if sent by an internationally recognized overnight courier (receipt requested); (c) on the date sent by email of a pdf document (in each case, with confirmation of transmission), if sent during the normal business hours of the recipient, and on the next business day, if sent after the recipient’s normal business hours; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.
15) Miscellaneous (including No Modification and Severability)
- No amendment to, or modification, rescission, termination or discharge of this Order or any incorporated Contract is effective unless it is in writing, identified as such an amendment, modification, termination or discharge and signed by an authorized representative of TKWW.
- If any provision of this Order or these Terms is determined to be invalid or unenforceable as against any person or under certain circumstances, the remainder of this Order and these Terms, and the applicability of such provision to other persons or circumstances, shall not be affected by such determination.
- A waiver of any term, condition or default of this Order or any incorporated Contract shall not be construed as a waiver of any other term, condition or default.
- The parties to this Order understand and acknowledge that each is an independent contractor of the other, that Supplier is not an employee or agent of TKWW, and that no joint venture or partnership is created by this Order or any incorporated Contract. Supplier has no authority to commit, act for or on behalf of TKWW or to bind TKWW to any obligation or liability.
- Both parties agree that any term of this Order with by its nature should be deemed to survive the expiration or termination of this Order will so survive.
- This Order benefits solely the parties and their respective successors and permitted assigns, and nothing in this Order or any incorporated Contract, express or implied, confers on any third party any legal or equitable right, benefit, or remedy of any nature whatsoever.