Terms and Conditions – Doner Partners Network Vendor Onboarding

DONER PARTNERS NETWORK

VENDOR TERMS AND CONDITIONS

Last updated: August 24, 2023

Welcome to the Doner Partners Network Vendor Portal. The goods and services provided by you (“You” or “Supplier”) to Doner Partners Network, LLC (“DPN”) and its affiliated agencies, including, but not limited to, [Doner, Yamamoto, KWT Global] (each, a “Agency”), shall be subject to these terms and conditions (the “Terms”). In addition, Supplier may, from time to time, enter into separate purchase orders, production contracts, license agreements and other written agreements (each, an “Order”) governing the specific terms and conditions governing the goods and services being provided under such agreements. In the event of any conflict between any such Order and these Terms, the terms of such Order shall control, but only with respect to the applicable Order.

Orders may be entered into by DPN or an Agency on its own behalf or on behalf of a client. For the avoidance of doubt, no Order shall be binding on DPN or any Agency unless such Order is in writing and signed by an authorized representative of DPN or the Agency, as applicable. References in these Terms to “Client” shall mean the client set forth in the applicable Order or if no client is specified, shall refer to DPN or the Agency, as applicable.

Ownership. This provision applies only if an Order is for the purchase or creation of intellectual property: Supplier is acting as an independent contractor and all services, artwork, layouts, website designs, scripts, music, photographs, film, ideas, concepts, characters, specifications, graphics, videos, programs, software and other materials or goods furnished under the Order (collectively, the “Materials”) are specially commissioned for, but are not limited to, inclusion in advertising, marketing, website, social media and/or commercial materials for Client. Subject solely to the limitations specifically set forth on the Order (if any), all Materials shall be deemed to be works for hire for Client under the U.S. Copyright Act, and will be and remain the absolute and exclusive property of Client, its successors and assigns, in perpetuity. You further agree to execute and cause others who in any way contribute to the creation of the Materials to execute all further documents that, in the judgment of Client, are required or useful to establish, protect or enforce the rights herein granted or confirmed. To the extent necessary to vest full ownership of the Materials with Client, You hereby irrevocably sell, transfer and assign all rights, title and interest, including the copyright in and to the Materials to Client, and each of their successors and assigns, without limitation. Such rights include, but are not limited to: (a) the right to use, publish, display and reproduce the Materials in advertising, websites, social media or for the purposes of trade or for any other purpose whatsoever; (b) the right to alter, retouch, crop, simulate, alter, modify, edit, adapt or create derivative works of the Materials in any way; (c) the right to secure copyright in the Materials anywhere throughout the world; (d) the right to license, exploit, sell, assign or otherwise dispose of the Materials or any of the said rights included therein for any purpose which Client or its assigns and licensees may see fit, including using, assigning, transferring or licensing the Materials in whole or in part for any purpose whatsoever; and (e) any and all subsidiary rights in the Materials including characters or parts which are contained in the Materials. Without limiting the generality of the foregoing, You hereby waive any and all claims of ‘moral rights’ and other rights of any kind or nature that You have related to the Materials and hereby convey to Client any of Your rights as may exist without reservation or limitation.
License. This provision applies only if the Order is for the license of intellectual property: To the extent that the Materials are licensed and unless limitations are explicitly set forth in the Order, You hereby grant to Client an unlimited, perpetual, worldwide, royalty-free, transferable and fully sublicensable (through multiple tiers of sublicensing) right to copy, transmit, exhibit, alter, modify, edit, adapt, crop, couple, digitize, create derivatives of or otherwise use the Materials for any purpose whatsoever without the need for further payment, consent or approval on Your or anybody else’s part. In the event that any of the licensed Materials remain on display or in circulation following the expiration of their respective usage terms for reasons beyond an Agency’s or Client’s reasonable control, none of DPN, any Agency or Client shall be liable for such prolonged display or use. For the avoidance of doubt, this provision shall only apply if expressly identified on the Order. Otherwise, the provisions of Section 1 above shall apply.
Provisions for Goods. This provision applies only if the Order is for the manufacture of goods:
1. Inspection: If any Materials are found at any time to be defective or otherwise not in conformity with the requirements of the Order, Client may, in addition to their other rights and remedies, reject such Materials and require their prompt correction or their replacement at Supplier’s expense, including shipping and packaging charges. Alternatively, Client may, at its sole discretion, repair or replace such nonconforming goods at Supplier’s expense.
1. Warranties: You warrant and represent that: (a) You will deliver to Agency and Client title to the Materials free and clear of all security interests, liens, charges, restrictions or encumbrances of any kind, nature or description; (b) You have not and will not allow any liens or encumbrances to accrue against the Materials or any of the elements thereof; (c) the Materials shall be free from defects in material and/or workmanship; (d) unless otherwise specified in the Order, the Materials shall be new and not used or reconditioned; and (e) the Materials and their packaging shall conform to the description thereof and/or specifications therefor contained in the Order.
Risk of Loss: Notwithstanding any provision hereof to the contrary, title to and risk of loss of the Materials shall remain with You until the Materials are delivered at the F.O.B. point specified in this Purchase Order, or if no such point is specified, then when the Materials are delivered to Client.
Agency/Client Property: Any and all property of any Agency or Client in Your possession or control shall be and remains property of the Agency or Client, as applicable, and You shall be responsible for any loss or damage occurring to such property while such is in Your possession or control. You agree to promptly return all such property to the applicable Agency (or, at Agency’s request, destroy all such property) upon the earlier of the Agency’s request or the completion of Your performance of the Order.
Acceptance: Each Order may be cancelled by the applicable Agency at any time prior to its acceptance of the Materials covered by the Order, upon written notice to You. In such event, unless such termination is based on Your breach, the Agency shall be liable to pay You, in lieu of the price specified on the Order, any verified direct costs actually incurred by You in the performance of Your obligations hereunder prior to such cancellation, provided, however, that the total amount of such costs shall not exceed the price specified on the Order. Your delivery of the Materials or billing against the Order will constitute Your unqualified acceptance of all of the terms of the Order and these Terms, including Client’s authorship of the Materials/assignment of copyright to Client. The Agency’s payment for the Materials shall not constitute its acceptance thereof and the Materials shall be received subject to inspection, approval and privilege of return at Your expense if not in compliance with the specifications hereof. Defects are not waived by Agency’s failure to notify You of such defects upon receipt of the Materials. The Materials must, in the Agency’s and Client’s opinion, be satisfactory for the purpose for which they are ordered. Time of completion and time of delivery are of the essence.
Representations and Warranties: Unless otherwise specified in an Order, You warrant and represent that the Materials are original and do not violate or infringe the rights of any other person, and that You have obtained all written permissions, releases, licenses and other consents necessary to permit the applicable Agency and/or Client to exercise its rights hereunder, including, without limitation, releases from all models and any other living persons, and the representatives of any deceased persons, whose names, likeness, voices or other attributes are contained in, appear in or contributed to the Materials, and releases from the owners of any unique or unusual inanimate objects (including, but not limited to, all artwork) used or appearing in any of the Materials. Supplier shall supply the Agency with a copy of such releases on or before completion of Supplier’s services. You further warrant that You and Your employees, agents, subcontractors and designees will perform the services hereunder in a timely, professional manner, in compliance with applicable law and with due care, that You have full authority to enter this agreement and to fully perform the Order, and the Client’s and the Agency’s exercise of the rights granted herein and use or reproduction of the Materials will not violate any laws or the proprietary or personal rights of any third parties. You agree to indemnify, defend and hold harmless DPN, each Agency and Client (and their respective subsidiaries, affiliates, parents, partners, employees, agents and licenses) against any and all loss, claim, expense, judgment or other demands or liability of any kind arising out of, or resulting from, the performance of the Order by Supplier (including, but not limited to, Supplier’s employees, agents, subcontractors and designees) or the use or reproduction, in any manner whatsoever, of the Materials.
Payment, Taxes and Records. The applicable Agency agrees to pay You for the goods and services furnished under an Order in accordance with the rates and the payment schedule set forth on the Order, provided the Order is returned to the Agency and the Order number is referenced on Your invoice. If no payment schedule is specified, the Agency shall pay all undisputed invoices within sixty (60) days of receipt of the invoice. All expenses You incur must be preapproved in writing by the Agency. Overtime work and the cost thereof, and any other increases in the authorized price specified on the Order, must be submitted in writing along with an estimate/explanation and be approved by an authorized representative of the Agency. No such increases will be binding on the Agency or Client unless approved in writing by the Agency as provided above. Delivery charges must be fully prepaid by Supplier unless other terms are specified in the applicable Order. The Agency shall not be responsible for paying any invoices received after sixty days (60) days nor any expenses not approved in writing, and You shall be required upon request to provide written documentation or substantiation of any such expenses. You also acknowledge that each Agency is acting as an agent on behalf of Client, a disclosed principal. The Agency will only be liable and responsible for paying any invoices under the Order to the extent the Agency has been paid in available funds by Client for any amount payable to You. For amounts not paid to the Agency by Client, You will seek payment solely from Client (and not from the Agency). You agree that prices quoted and shown on the Order include any and all applicable federal, state and local taxes. Liability for any other sales and use or similar taxes and any penalties and interest charges due on these taxes shall be Your sole responsibility. In the event the Agency is required to pay such amounts for whatever reason, You agree to immediately reimburse the Agency therefor. You agree to provide to the Agency and Client (or an outside auditor chosen by the Agency and/or Client) access to all of Your relevant records for purposes of an audit of Your performance and charges hereunder for the term of the Order and for four (4) years after receipt by You of final payment under the Order. If, upon such audit, Client or the Agency shall determine that Your charges exceed the amounts properly chargeable to Client or the Agency as the case may be, You shall, without limiting Client’s or the Agency’s other available rights or remedies, promptly refund to Client or the Agency, as appropriate, the amount of such overcharges, and if such charges exceed five percent (5%) of the amounts properly chargeable, You shall also pay for the cost of the audit.
Limitation of Liability. IN NO EVENT SHALL DPN, ANY AGENCY OR ANY CLIENT OR ANY OF THEIR RESPECTIVE PARENTS, AFFILIATED COMPANIES, DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, LICENSEES OR AGENTS BE LIABLE TO YOU FOR MORE THAN THE TOTAL AMOUNT ACTUALLY DUE AND PAYABLE TO YOU AS SPECIFIED IN THE APPLICABLE ORDER(S). UNDER NO CIRCUMSTANCES SHALL DPN, ANY AGENCY OR ANY CLIENT OR ANY OF THEIR RESPECTIVE PARENTS, AFFILIATED COMPANIES, DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, LICENSEES OR AGENTS BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, WHETHER ARISING UNDER CONTRACT, WARRANTY OR TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY, REGARDLESS OF WHETHER DPN, ANY AGENCY OR ANY CLIENT KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
Insurance. In addition to any insurance requirements specified in any Order, You agree that You will at all times maintain insurance policies (including without limitation Errors and Omissions and Worker’s Compensation) from an insurance carrier acceptable to the applicable Agency, having limits of not less than $1,000,000 per occurrence and $3,000,000 in the aggregate, to cover Your obligations hereunder, and You shall name DPN, the applicable Agency and Client as additional insureds on all such policies, and provide the Agency with certificates of insurance upon the Agency’s request. You will provide the Agency with thirty (30) days written notice of any cancellation, expiration or material change in the terms or conditions of such insurance policies.
Force Majeure. For the purposes of any Order, an event of “force majeure” shall mean any or all of the following events or occurrences: strikes or other labor difficulties; fires, floods or other acts of God; epidemic, pandemic or other public health emergency; acts of government or subdivision or agency thereof; acts of war or terrorism; or any other similar cause which is beyond the reasonable control of the party claiming the occurrence of force majeure event and which delays, interrupts or prevents such party from performing its obligations under the Order. Notwithstanding any provision hereof to the contrary, the reduction, depletion, shortage, curtailment or cessation of Your raw materials or any of Your other supplies or materials shall not be regarded as an event of force majeure. The party affected by a force majeure event shall give notice to the other party as soon as possible but in no event later than ten (10) days following the occurrence and shall apprise the other party of the extent to which the affected party will be unable to perform or will be delayed. The affected party shall exercise due diligence to eliminate or remedy the force majeure cause and shall give the other party prompt notice when that has been accomplished. Except as provided herein, if performance of the Order by either party is delayed, interrupted or prevented by reason of any event of force majeure, both parties shall be excused from performing hereunder while to the extent that the force majeure condition exists after which the parties’ performance shall be resumed. In the case the Order is for purchase or creation or intellectual property, within five (5) days following a force majeure event which prevents Your full and/or timely delivery of the Materials hereunder, the Agency may, at its opinion and without liability, terminate the Order or any affected portion(s) thereof. In the case the Order is for a purchase or manufacture of goods, within five (5) days following a force majeure event which prevents Your full and/or timely delivery of the Materials hereunder, the Agency may, at its option and without liability (1) require You to apportion among Your customers Materials available for delivery during the force majeure period; (2) cancel any or all delayed or reduced deliveries; or (3) cancel any outstanding deliveries hereunder and terminate the Order. If the Agency accepts reduced deliveries or cancels the same, the Agency may procure substitute Materials from other sources, in which event the Order shall be deemed modified to eliminate Your obligation to sell and the Agency’s obligation to purchase such substituted Materials. After cessation of a force majeure event, You shall, at the Agency’s option but not otherwise, be obligated to deliver Materials not delivered during the force majeure period.
Confidentiality. You acknowledge that during the course of Your dealings, discussions, communications and/or relationship with DPN or any Agency, DPN or such Agency, as applicable, may disclose certain information, and You may otherwise discover certain information, about DPN, any Agency and/or any Clients. All such information about DPN, each Agency and each Client, including, but not limited to, technical and business information relating to an Agency’s ideas or materials, or Clients’ existing or contemplated products, services, research and development, production, costs, profit or margin information, finances, customers (present, past and potential), marketing, and current or future business plans, shall be deemed “Confidential Information.” You agree to hold the Confidential Information in strict confidence, protecting it with at least the same degree of care that You use to protect Your own confidential and proprietary information, but no less than a reasonable degree of care under the circumstances. You will not disclose any Confidential Information (unless otherwise approved in writing by an Agency) to any third parties except to Your employees (“Representatives”) who have a need to know in connection with the purpose specified below, and who agree in writing to abide by non-disclosure and non-use terms at least as comprehensive as those set forth herein; provided that You will be liable for breach by any such Representative. You will not make any copies of the Confidential Information received except as necessary for the persons or entities specified in the preceding sentence. Any copies which are made will be identified as belonging to the Agency and marked “confidential,” “proprietary” or with a similar legend. You may not reverse engineer, decompile or disassemble any software, hardware or other intellectual property disclosed to You. You shall notify DPN or the applicable Agency immediately upon discovery of any unauthorized use or disclosure of Confidential Information, or any other breach of this Agreement, and will cooperate with DPN and the Agency in every reasonable way to help the Agency regain possession of the Confidential Information and prevent its further unauthorized use. You will not utilize, directly or indirectly, any Confidential Information for Your own benefit, for the benefit of any third party, and will use the Confidential Information only for the purpose providing services under the applicable Order.
Publicity. You agree to make no reference in any media to the Materials or services performed by You hereunder, or to DPN, any Agency or any Client, for publicity, advertising or circularizing purposes, and will not use DPN’s, any Agency’s or any Client’s name, logo, trademarks or service marks in any advertising publicity or promotion without prior written permission from the applicable Agency and Client in each instance. You will not use the Materials or any part thereof for entry into awards shows, self-promotion or publicity purposes, including on third-party websites. You acknowledge and agree that You shall be solely responsible for any and all SAG, AFTRA, AFM or other talent payments due as a result of Your unauthorized use of the film/tape or any other materials developed under any Order.
Loaned Staff. Any staff that you supply to provide services (“Loaned Staff”) shall at all times remain your employees and shall not be deemed to be employees of DPN, any Agency or any Client for any purposes. You shall be accountable for the services provided by the Loaned Staff, and you shall bear sole responsibility for payment of compensation to Loaned Staff, including any required overtime pay, in accordance with applicable law. You shall pay and report, for all Loaned Staff, federal and state income tax withholding, social security taxes and unemployment insurance applicable to such personnel as your employees, and you shall bear sole responsibility for any health or disability insurance, workers’ compensation insurance, paid time off, retirement benefits or other welfare, pension or other benefits, if any, to which such Loaned Staff may be entitled. You shall indemnify and hold harmless DPN, each Agency and Client (and their respective subsidiaries, affiliates, parents, partners, employees, agents and licenses) against any and all loss, claim, expense, judgment or other demands or liability of any kind arising out of, or resulting from, any claim by any Loaned Staff or any government agency or other third party based on any allegation that any Loaned Staff is an employee of DPN, any Agency or any Client. The Agency reserves the right to require that you remove one or more Loaned Staff from the project in its sole discretion.
FCPA Undertaking. Supplier agrees, for itself and its employees, that they will: (i) at all times comply with the U.S. Foreign Corrupt Practices Act; (ii) not pay, and will not permit or suffer any agent, intermediary or employee to pay, directly or indirectly, any money or thing of value, to any official of the government of any nation or political subdivision thereof, or any of their agencies, instrumentalities, corporations or ventures, or to any political party, official thereof, or any candidate, for the purposes of influencing the acts, omissions or decisions, in an official capacity, of such official, party or candidate in violation of his/her or its lawful duty or inducing him/her or it to exercise his/her or its influence to affect or influence any act or decision of such government or instrumentality or to obtain or retain business for the other party in violation of the U.S. Foreign Corrupt Practices Act or other applicable anti-bribery laws; and (iii) immediately notify the Agency should they become aware of information that suggests a possible violation of the US Foreign Corrupt Practices Act has occurred.
Affirmative Action/Non-Discrimination. As may be applicable, Supplier will abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that Supplier take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.
Modifications and Severability. DPN reserves the right to make changes to these Terms at any time without notice to you and such changes shall be binding and enforceable with respect to all Orders entered into on or after the date of such changes. If any of terms, conditions or provisions of these Terms shall be deemed invalid, void, or for any reason unenforceable, that term, condition or provision shall be deemed severable and shall not affect the validity and enforceability of any remaining condition. DPN and each Agency may assign these Terms, in whole or in part, at any time without notice to You. You may not assign these Terms, or assign, transfer or sublicense your rights or obligations, if any, under each Order.
Additional Terms. The terms and conditions set forth herein, together with any terms set forth in each Order, constitute the entire agreement between the parties with respect to the Materials pursuant to such Order and said terms and conditions cannot be modified or amended, except by an agreement in writing, signed by the applicable Agency. Invoices or other similar documents originating with You or Your agents shall not satisfy the requirements of the preceding sentences. Any modifications, deletions or additions to any Order, whether added by appending additional documents, or by striking out, altering, or adding any word, sentence or paragraph on or to the Order, will be constructed only as proposals for additional terms to the Order, so long as these additional items do not materially alter or contradict any of the original terms of the Order, and will become effective only upon express written acceptance by the Agency. Appended terms that materially alter or contradict any of the original terms of an Order are void and will be of no effect. No waiver by DPN or any Agency shall be valid unless in writing and signed by DPN or the Agency, as applicable. The Order or any sums payable thereunder may not be assigned by You without prior written consent of the applicable Agency. These Terms shall be construed pursuant to the laws of the State of Michigan and, if applicable, pursuant to the laws of the Uniform Commercial Code applicable to contracts made and performed entirely therein. Supplier hereby consents to and submits to the exclusive jurisdiction of the state and federal courts located in the State of Michigan, Wayne County, with respect to all disputes, claims or other matters arising out of and/or relating to these Terms or any Order. Supplier further waives any defenses based upon lack of personal jurisdiction or venue, or inconvenient forum.