Effective May 2023
1. Terms and Conditions: This Purchase Order is conditioned upon acceptance of all terms and conditions set forth herein. Any additional, different or inconsistent terms or conditions proposed by Seller are rejected. Any acceptance by Girl Scouts of the USA ("GSUSA") of any goods or services accompanying such proposal shall not indicate GSUSA's consent to such terms and conditions. Seller shall be deemed to have accepted this Purchase Order upon commencement or performance or by promising to perform.
2. Seller's Representations and Warranties: Seller represents and warrants to GSUSA, in addition to all warranties implied by law, that each item of merchandise (which term shall mean all goods and materials supplied by Seller pursuant to this Purchase Order) described on the face hereof, together with all related packaging shall (a) be fit and sufficient for the purpose intended, merchantable, and of highest quality and workmanship; (b) be free from defects in design, workmanship and materials including, without limitation, such defects as could create a hazard to life or property; (c) be suitable for use under, be manufactured, labeled, and packed for shipment in accordance with, and where required, be registered under all applicable federal, state and local laws and all orders, regulations and standards promulgated thereunder including, without limitation, the Fair Labor Standards Act of 1938, as amended and if the merchandise covered by this Purchase Order is food grade material it shall have been manufactured, packaged, stored and shipped using the best sanitary standards available in the food industry; (d) not infringe or encroach upon any third parties' personal, contractual or proprietary rights, including but not limited to patents, trademarks, trade names, copyrights, rights of privacy or trade secrets; (e) conform to all specifications and other descriptions set forth or incorporated herein and all articles accepted by GSUSA as merchandise samples and Seller shall not alter the formulation, manufacturing process or specification of goods without GSUSA's prior written consent; (f) not be subject to any security interests, liens or other encumbrances; and (g) will possess all performance qualities and characteristics claimed in advertisements or printed materials furnished or authorized by Seller. Seller further represents and warrants that it has filed pursuant to this Purchase Order continuing guarantees with the appropriate federal agencies under all applicable federal statutes including but not limited to Fur Products Labeling Act, Textile Fiber Product Identification Act, Fair Packaging and Labeling Act, Environmental Protection Act, and Food, Drug, and Cosmetic Act and to the extent that GSUSA has indicated that such goods are to be utilized abroad, legislation of similar import. Seller's representations and warranties herein shall survive the delivery of merchandise to GSUSA and any resale of merchandise by GSUSA.
3. Defective or Nonconforming Merchandise: Any merchandise which is defective or not in conformity with Seller's representations and warranties set forth in this Purchase Order, any applicable agreement between the parties, or with warranties implied by law, may at GSUSA's option and until the expiration of one year following resale by GSUSA, be returned to Seller for refund of the purchase price, for repair, or for replacement, or may be repaired by GSUSA at Seller's expense. GSUSA may charge Seller for unpacking, examining, repacking and/or re-shipping all merchandise returned to Seller, including the cost of any inbound or outbound freight. GSUSA is under no duty to inspect any merchandise before use or resale thereof. Payment for merchandise and acknowledgement of receipt by GSUSA does not constitute acceptance thereof. Nothing contained in this Purchase Order relieves Seller in any way of its obligation to test, inspect and maintain quality control of the merchandise purchased hereunder.
4. Indemnification: (a) Seller will reimburse, indemnify, defend and hold harmless GSUSA, its affiliated Girl Scout Councils, and New York Girl Scouts, Inc., and their respective directors, officers, agents and employees ("the Indemnitees") from and against any and all loss, liability or damage, including, without limitation, fines, penalties, expenses, counsel fees and costs of settlement, which shall arise out of, relate to or result from any of the following: (i) any sale, use, possession, consumption or receipt of merchandise or services purchased hereunder including specifically any injury to person or property arising or resulting from any actual or alleged defect in the merchandise or any act or omission of Seller or Seller's agents, employees or subcontractors with respect of the merchandise (even if the Seller cannot be identified specifically as the supplier of the particular merchandise containing such defect, the Seller will indemnify the Indemnitees if the Seller can be identified by GSUSA as having been one of several suppliers of similar merchandise); provided, however, Seller shall not be liable to the extent that any such liability is finally judicially determined to have been caused by the negligence or willful misconduct of GSUSA; (ii) any breach by Seller of its representations, warranties or other obligation of Seller under this Purchase Order or any applicable agreement. (b) Seller agrees that any controversy between itself and GSUSA or any other Indemnitee concerning its obligations under this paragraph may be litigated in the same forum and concurrently with any lawsuit against GSUSA or such other Indemnitee to which such controversy may relate, and Seller agrees voluntarily to appear in such forum and submit to the jurisdiction thereof.
5. Liability Insurance: Seller shall obtain and maintain at its own expense, for the period of time covering all purchases made hereunder and extending out to no less than three (3) years after the last purchase made under this Purchase Order, the following insurance coverages with respect to the merchandise purchased hereunder and any indemnifiable matter as set forth herein in the amounts required by GSUSA in its sole discretion, but in no event shall such insurance be in amounts less than the following: Commercial General Liability, including Bodily Injury, Property Damage, Products and Completed Operations and Personal and Advertising Injury from a qualified insurance carrier and approved in writing by GSUSA in the amount of: at least one million U.S. Dollars ($1,000,000.) per occurrence; and at least Two Million U.S. Dollars ($2,000,000.) in the aggregate; Automobile Liability in the amount of at least One Million U.S. Dollars ($1,000,000.); Workers' Compensation/Employer's Liability in the amount of at least One Million Dollars ($1,000,000.). All policies shall include GSUSA and its affiliated councils, New York Girl Scouts, Inc., and their officers, employees, agents and representatives as additional insureds. These policies may not be modified or canceled by the insurer, except after thirty (30) calendar days' prior written notice by the insurer to GSUSA. If such cancellation takes place or the policy's coverage is diminished in any way, GSUSA may cancel this Purchase Order as provided herein. Seller shall provide GSUSA with a certificate of insurance naming GSUSA and its affiliated councils, New York Girl Scouts, Inc. and their officers, employees, agents and representatives as additional insureds.
6. Invoice and Payments; Right to Cancel: (a) Seller shall comply with the following instructions (as may be amended from time to time in the sole discretion of GSUSA): Prepare separate original invoices for each order and send invoices with applicable bill of lading within 48 hours of shipping date to: Girl Scouts of the USA, 420 Fifth Avenue, New York, New York 10018, Attn: Accounts Payable Department or to such other address as may be requested by GSUSA. Seller's records relating to such shipments, invoices and payments may be audited by GSUSA representatives upon reasonable notice at reasonable times. (b) All merchandise covered by this order shall be held by Seller without risk or expense to GSUSA until arrival to the point of delivery in accordance with GSUSA shipping instruction. (c) Time is of the essence for this Purchase Order, and Seller's failure to meet any delivery and/or performance date constitutes a material breach. GSUSA's acceptance of (x) merchandise after the applicable delivery date or (y) services after the applicable performance date, shall not constitute a waiver of, or otherwise limit, any of GSUSA's rights resulting from late delivery or performance nor obligate GSUSA to accept delivery of additional merchandise or services. (d) Without limiting any of its rights or remedies, GSUSA may, without notice, cancel, terminate and/or rescind all or part of this Purchase Order, purchase comparable merchandise and/or services as applicable elsewhere and hold Seller accountable for any additional costs arising from such cancellation or purchase, as well as other damages incurred by GSUSA, if, as applicable (i) performance of services is not made or merchandise is not shipped on date or dates specified herein or (ii) Seller breaches any term or condition of this Purchase Order. GSUSA may also terminate this Purchase Order including, without limitation, canceling shipments of merchandise and further performance of services, in whole or in part at any time, upon notice to Seller stating the extent and date of termination. In such event, GSUSA will pay to Seller (i) the contract price for all merchandise delivered/services performed in accordance herewith prior to the date of termination and (ii) the actual costs of materials that are not salvageable by Seller and properly allocable to and incurred solely in respect of the terminated portion of this Purchase Order.
7. Prices and Taxes: Seller represents and warrants that the prices for the articles are the Seller's lowest prices currently in effect. In the event that a lower price for any article or any better terms are quoted to any of Seller's customers prior to completion of this order, Seller will promptly notify GSUSA buyer and thereupon such lower price or better terms will apply to this order, provided however that the granting of such lower price to GSUSA would not be in violation of law. Unless otherwise provided, no additional charges shall be allowed including, without limitation, for labeling, packing, drayage or storage. GSUSA shall have no obligation for any merchandise or services in excess of the quantity specified in this Purchase Order. Seller acknowledges that any sales forecasts, quantity purchase estimates or similar projections are for informational purposes only and do not represent binding commitments on the part of GSUSA. The prices for all articles will be exempt from all federal, state, and local taxes (certificate will be furnished).
8. Tooling: All tools, dies, molds, and similar items employed in the manufacture of the merchandise shall be furnished at Seller's expense unless otherwise specifically provided for in writing.
9. Trademarks: If this Purchase Order deals with merchandise which bears GSUSA labeling trademarks, service marks, trade names, distinctive words, copyrights, logos, pictures or designs ("Properties"), Seller shall not under any circumstances sell or otherwise transfer such merchandise to third persons until the Properties have been physically removed or completely obliterated from the merchandise. Nothing in this Purchase Order shall give Seller any right to use GSUSA's or its affiliates' names or logos or other intellectual property in marketing materials, advertising or otherwise, without GSUSA's prior written consent in each instance.
10. Ownership of Rights: GSUSA retains all rights in merchandise designs, drawings, mechanical features and other materials which have been supplied by GSUSA to Seller, which have been specially created or developed for GSUSA by Seller, or which are distinctive of GSUSA merchandise ("Special Features), and such Special Features shall be the property of GSUSA and shall be used only in merchandise manufactured for GSUSA. GSUSA may use the Special Features in merchandise manufactured by others and obtain such legal protection as may be available for the Special Features including, without limitation, patents, design patents, copyrights and trademarks. Seller hereby assigns any rights in designs, drawings, and other materials it may develop in connection with supplying merchandise to GSUSA and such materials shall constitute work for hire. Seller shall execute any and all instruments deemed by GSUSA to be necessary or desirable to obtain such protection (in all countries of the world). Furthermore Seller hereby assigns to GSUSA without further action of the parties, all causes of action Seller may have under the antitrust laws of the United States of America or any State thereof arising out of or relating to Seller's purchase of materials, goods or services sold to GSUSA hereunder by means of that purchase transaction.
11. Specifications - Alteration or Modification: GSUSA may notify Seller in writing of any alteration or modification of the specifications of the merchandise which GSUSA wishes to make, and Seller shall be deemed to have accepted GSUSA proposed alteration or modification without additional cost to GSUSA and without enlargement of Seller's time for performance unless Seller, within 20 days following receipt of GSUSA notice, notified GSUSA in writing of the resultant changes in cost and/or time for performance.
12. Risk of Loss for Return of Merchandise: The risk of loss with respect to merchandise returned to Seller pursuant to this Purchase Order or any applicable agreement shall be upon Seller. In the event of a dispute with respect to the return of merchandise GSUSA chargeback forms shall be prima facia evidence that the merchandise was returned by GSUSA, and the burden shall be upon Seller to show clear and convincing evidence that such merchandise was not returned by GSUSA. It shall be conclusively presumed that all such returns relate to the invoices listed on the payment statement, on which such returns appear.
13. Recall: Seller shall establish a recall procedure of all products manufactured under this Purchase Order or any applicable agreement which shall include promptest possible notice to all purchasers of products which should be withheld from resale and, where necessary, instructions for the recall and the return of such products to the Seller. Seller shall reimburse GSUSA and all purchasers of recalled products for all expenses associated with the recall and return, including but not limited to communications expenses and return shipment expenses.
14. Liens: If Seller's employees, subcontractors or others under Seller's control are involved at the facility where the merchandise is to be used or installed or services are to be performed, Seller will keep the merchandise and the premises on which work is to be done free and clear of all liens for material and labor incident to the performance of services hereunder by or on behalf of Seller.
15. Seller's Documentation: Seller shall maintain at each facility producing ingredients and/or packaging material for GSUSA, a copy of the applicable ingredient or packaging specifications and applicable analytical test procedures, microbiological testing methods and any other testing requirements necessary or advisable to assure compliance with applicable law as well as the criteria stated in the specifications.
16. Remedies: The remedies set forth herein are cumulative and in addition to all other remedies provided in law or equity. All claims for monies due or to become due from GSUSA shall be subject to claims, defenses, credits, chargebacks, set-offs, adjustments and deductions by GSUSA by reason of any amounts due or to become due from Seller, whether arising from this Purchase Order or another transaction.
17. Confidentiality: (A) Seller shall consider all information furnished by GSUSA to be confidential and proprietary. Seller shall use reasonable care, but in no event less care than it uses to safeguard its own confidential information, to protect the information of GSUSA and shall not use such information for any purpose other than to discharge its obligations under this Purchase Order. Seller shall not advertise or publish the fact that GSUSA has contracted to purchase materials, goods or services from Seller.
(B) Further to Section 17 of the P.O., Seller acknowledges that Seller will have access to and come into possession of confidential and proprietary information of GSUSA (and that of GSUSA’s affiliates and councils, and their respective officers, directors, volunteers, and employees), including but not limited to know-how, strategies, plans, customer information, creative concepts, marketing, products, technical, business and economic data and records, membership lists, membership information, or supporter data (collectively “Confidential Information”). Any Confidential Information that Seller has access to or comes into possession of shall remain the sole and exclusive property of GSUSA. Seller shall not use the Confidential Information for any purpose other than the discharge of its obligations under this Agreement. Seller may only disclose Confidential Information to its officers, directors, employees, agents and representatives (collectively “Seller Representatives”) who “need to know” the Confidential Information to assist the Seller in providing Services to GSUSA, who are informed by the Seller of the confidential nature of the Confidential Information, and who are subject to confidentiality duties or obligations to the Seller that are no less restrictive than the terms and conditions of this Agreement. Seller shall be responsible for a breach by any of its Seller Representatives. Seller shall not divulge any Confidential Information to any third party. Seller will use at least industry standard technology, practices, and procedures to protect the Confidential Information. Upon the expiration or earlier termination of this Agreement, or at such earlier time as GSUSA may request, Seller shall promptly either return or destroy all of the Confidential Information in Seller’s possession or control (whether on its own information systems or its vendor’s cloud systems or other outsourced information systems (collectively “Outsourced IT Systems”)), and all copies thereof, and Seller shall certify in writing as to its compliance with the foregoing and Seller shall not thereafter make use of or refer to any Confidential Information.
(C) If Seller should receive any legal request or process in any form seeking disclosure of, or if Seller should be advised by counsel of any obligation to disclose, Confidential Information, Seller shall provide GSUSA with prompt prior notice of such request or advice so that GSUSA may seek a protective order or pursue other appropriate remedies to protect the confidentiality of the Confidential Information. If such protective order or other remedy is not obtained, Seller agrees to furnish only that portion of the Confidential Information which is legally required to be furnished and, in connection with GSUSA, to use all reasonable efforts to assure that the information is maintained in confidence by the party to whom it is furnished.
(D) As part of GSUSA’s Confidential Information, GSUSA may provide to Seller (orally, in writing, or in any other form or media) personally identifiable information or data relating to employees, members, volunteers, or customers of GSUSA or its councils under this Agreement, including without limitation, names, addresses, and email addresses or any other data protected by any applicable data privacy laws and regulations (collectively, “Personal Data”). Seller shall use Personal Data solely for the purpose of providing Services pursuant to this Agreement. Upon the expiration or earlier termination of this Agreement, or an applicable SOW, or upon GSUSA’s request, Seller shall immediately return or destroy all copies of Personal Data, including any derivatives thereof, that is in Seller’s possession or certify that it has destroyed such information. In addition, Seller shall take the following measures to secure such Personal Data:
(i) Seller shall have in place an information security program that has administrative, technical, and physical safeguards sufficient to protect against the destruction, loss, disclosure, or alteration of Personal Data disclosed to or received by it pursuant to this Agreement.
(ii) In accordance with such information security program, Seller shall implement and maintain appropriate security measures to protect against unauthorized access to or use of Personal Data, which such measures shall include, as applicable: (a) access controls on information systems, including controls to authenticate and permit access only to authorized individuals; (b) encryption of electronic information, including while in transit or in storage on networks or systems to which unauthorized individuals may have access; (c) employee background checks for employees with responsibilities for or access to Personal Data; (d) measures to protect against destruction, loss, or damage of Personal Data due to potential environmental hazards, such as fire and water damage or technological failures; (e) staff training to implement the information security measures; and (f) any other measures required by applicable data privacy laws.
(iii) Seller shall maintain procedures to detect and respond to loss, misuse, or unauthorized access or acquisition of Personal Data while such data is in Seller’s custody or control or Outsourced IT Systems (a “Data Breach”). Seller shall immediately notify GSUSA of a Data Breach or a suspected Data Breach or if it becomes aware of any unauthorized use or disclosure of Personal Data by itself or others and shall fully cooperate with GSUSA in remedying and addressing such Data Breach, including without limitation undertaking actions as directed by GSUSA related to any notifications to affected persons or entities. Notwithstanding any provisions of this Agreement to the contrary, Seller shall be responsible for all costs and expenses related to any such notifications that are required by law as a result of any Data Breach and other associated costs that GSUSA may incur in connection with any Data Breach (e.g., costs of credit monitoring services offered to individuals whose information was affected, legal fees, call center services, forensics services, and similar remediation costs). Seller shall promptly make available to GSUSA appropriate details of the Data Breach and shall use commercially reasonable efforts to investigate and prevent the recurrence of such loss, unauthorized access, or misuse of the Personal Data.
(iv) Seller shall comply with all applicable foreign and federal, state, or local laws, regulations and orders relating to privacy and data protection, as well as any applicable data breach notifications laws, applicable state health information privacy laws, and similar laws regulating or protecting the privacy and/or security of information about an individual (collectively, the “Privacy Laws”).
(E) Seller shall not use GSUSA's or its affiliates’ names or logos in marketing materials, advertising or otherwise, without GSUSA's prior written consent in each instance.
(F) In the event of breach of any of the provisions of this Section by Seller, GSUSA shall be entitled to equitable relief, including in the form of injunctions and orders for specific performance, in addition to all other remedies available at law or equity
18. Process for the Exchange of Personal Data: At a minimum, Seller will proceed as follows when receiving and returning files that contain Personal Data:
A. GSUSA will email XLS or another designated file, encrypted / Password protected to vendor.
B. GSUSA will provide the file password in a separate communication from XLS to vendor.
C. Seller will return proofs to GSUSA using email, WeTransfer (Free or Paid subscription), or a secure FTP site with the files encrypted / password protected. Note: The method of file transfer varies based on file size.
D. Seller will provide proof file password in a separate communication from proofs to GSUSA.
E. Seller will store source files containing Personal data on a secure and encrypted drive and properly dispose of the unneeded files containing Personal Data after the mailings are completed as set forth in Section 1 of this Addendum.
19. Independent Contractor: If this Purchase Order relates to the performance of services by Seller, its employees, or persons under contract to Seller, Seller agrees that it will ensure that all such work is performed as an independent contractor and that the persons doing such work shall not be considered GSUSA's employees. If any services are to be performed on GSUSA's property, Seller shall comply with all of GSUSA's safety and facility rules. Seller shall maintain all necessary insurance coverage to perform such services, including general liability and worker's compensation insurance.
20. Miscellaneous: (a) This Purchase Order constitutes the entire understanding between the parties with respect to the subject matter hereof and supersedes all other understandings with respect thereto. (b) All rights granted to GSUSA hereunder shall be in addition to and not in lieu of GSUSA rights arising by operation of law. (c) No modification of the terms of this Purchase Order shall be valid unless in writing and signed by the party to be bound. (d) No course of dealing between the parties shall be effective to amend or waive any provision of this Purchase Order. (e) No waiver hereunder shall constitute a waiver of any other or further breach. (f)Should any of the provisions of this Purchase Order be declared by any court of competent jurisdiction to be invalid, such decision shall not affect the validity of any remaining provisions. (g) All the terms and conditions hereof shall apply to additional quantities of merchandise ordered by GSUSA, except to the extent covered by a new Purchase Order or underlying agreement. (h) Seller agrees to follow the shipping and invoicing instructions issued by GSUSA Traffic and Accounting Departments unless otherwise specified on the face hereof. (i) Neither party shall assign this Purchase Order without the prior written consent of the other party.
21. Governing Law: This Purchase Order and any disputes arising hereunder or relating hereto, whether for breach of contract, tortious conduct or otherwise, shall be construed in accordance with the laws of the State of New York without regard to its conflicts of laws principles (other than Section 5-1401 of the General Obligations Law). Any action, suit or proceeding brought against either party relating to this Purchase Order must be brought and enforced in the courts of the State of New York or the United States for the Southern District of New York, and each party irrevocably submits to the jurisdiction of such courts in respect of any such action, suit or proceeding and waives any claim of forum non conveniens with respect to such action.
22. Non-Discrimination: During the performance of this Purchase Order, Seller will not discriminate against any employee or applicant for employment because of race, religion, color, age, sex, national origin or other protected category and will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, religion, color, age, sex, national origin or other protected category. Such action shall include, but not be limited to: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Seller will comply with all statutes, regulations and relevant orders of the federal government related to nondiscrimination because of race, religion, color, age, sex, national origin or other protected category. In the event of Seller's noncompliance with this non-discrimination clause, this Purchase Order may be cancelled, terminated, or suspended in whole or in part.