1. NATURE OF ORDER. Sony Pictures Entertainment Procurement Services Inc. is hereinafter called “Purchaser” and the party with whom this purchase order is placed is hereinafter called “Seller,” This purchase order is hereinafter call “Order”. This Order may be used to purchase or lease goods such as supplies, machinery or equipment; software, including Web-based applications (such as those products commonly known as SaaS, PaaS and IaaS); services such as maintenance, support, construction work, professional services, or other services, both on and off the premises of the Purchaser; and/or some combination of the foregoing, all of which are hereinafter called “items.” This Order constitutes Purchaser's offer to Seller and shall become a binding contract subject to the terms and conditions set forth in this document upon acceptance by Seller unless Purchaser and Seller have executed a separate contract that applies to this Order in which case the terms and conditions of such separate contract shall be binding to this Order. Said acceptance shall be indicated by either Seller's (i) acknowledgment of this Order, or (ii) delivery of items and/or performance by Seller, either in whole or in part.  The terms and conditions of this Order supersede any so-called "shrink-wrap," invoice, or other form of agreement which may be packaged with the items or incorporated into the media on which the items are shipped or which may be acquired online or any so-called “click-through” terms.
  2. PRICE. Seller represents to Purchaser the prices are as set forth in this Order and such prices are the same as or no higher than such prices charged to other customers of Seller for the same or like items in similar quantities. No extra charge of any kind will be paid by Purchaser unless specifically agreed to by Purchaser in writing in advance. Purchaser will not accept shipment at any increase in price above that indicated on this Order. If no price is indicated on this Order the Seller shall not charge at prices exceeding those last previously quoted or charged to Purchaser for items of like kind or quality.
  3. DELIVERY. If the Seller communicates a delivery or completion date, the Purchaser reserves the right to cancel or reject the order if said date is not met or if, prior to said date, the Seller informs the Purchaser that said date will not be met. In such instance, the Purchaser shall be free of any liability including but not limited to cancellation charges. If a delivery or completion date is not so specified a reasonable time will be allowed. However, time is always of the essence to the Purchaser and reasonable delivery or completion date will always be expected. The delivery dates indicated by Purchaser for the items to be supplied under this Order shall be considered as of equal importance as the price and quality. Failure of Seller to meet agreed-upon delivery shall be considered a breach of contract. If any items delivered do not conform to this Order, Purchaser may reject such items or, if applicable, the entire lot received.
  4. CHANGES. Purchaser reserves the right at any time prior to shipment to make changes as to: (i) specification of any items to be specifically manufactured for Purchaser; (ii) methods of shipment or packing; (iii) place of delivery; (iv) schedule of delivery; and (v) reduction, increase, or cancellation of the quantities ordered. 
  5. INSPECTION AND REJECTION. The Purchaser may inspect the items ordered during their manufacture, construction and/or preparation at reasonable times and shall have the right to inspect such items at the time of their delivery and/or completion. Purchaser expressly reserves the right, without liability, hereunder or otherwise, to reject and refuse acceptance of items which do not conform in all respects to any instructions contained herein, Purchaser’s specifications, drawings, blueprints and data or Seller’s warranties whether such warranties be expressed or implied. With respect to any items which do not so conform, Purchaser may in Purchaser’s sole discretion hold items for Seller’s instruction at Seller’s risk upon notification to Seller, or return such items to Seller at Seller’s expense. Payment for any item shall not be deemed acceptance thereof.
  6. WARRANTY. Seller represents and warrants that the items: (a) shall strictly conform in all respects to the applicable sample, drawing, description, documentation and/or specifications; (b) shall be of first-class quality and free from defects in design, materials and workmanship; (c) shall be performed by qualified and competent personnel in accordance with generally accepted professional and technical standards, in an expeditious and efficient manner consistent with sound professional practices; (d) shall be fit for the purpose(s) intended; (e) shall be free from any security interest, lien and/or other encumbrance; (f) shall be rightfully conveyed by Seller with good and marketable title; (g) shall not infringe the rights of any third party; and (h) shall comply (and that such items, including services, shall comply) with all applicable federal, state and local laws, codes, regulations and rules of the country of origin, the country of destination and/or the country of performance by Seller (provided that in the event of conflicting requirements, the more stringent requirements shall apply). In the event that Seller is acting as a reseller of completed goods, Seller shall “pass-through” any warranties received from the manufacturer or licensor of such goods and, to the extent, granted by such manufacturer or licensor, Purchaser shall be the beneficiary of such manufacturer’s or licensor’s warranties with respect to the goods. Seller shall obtain and pay for all necessary federal, state and local licenses and permits necessary to enable it to perform this Order (and upon Purchaser’s request, Seller shall furnish Purchaser with copies of its receipts for such payments and of such licenses and permits). Seller agrees to provide a certificate of compliance relative to the provisions of this paragraph with each delivery of items (including the provision of services) if Purchaser so requests, and also agrees to permit Purchaser, or its designees, upon reasonable notice, the right to inspect the testing records and procedures of the items and to test items for compliance with the provisions of this paragraph. Inclusion of express warranties and representations by Seller shall not be deemed a waiver of such other warranties as may be implied or expressly set forth in law or fact. This warranty shall survive any inspection, delivery, acceptance or payment by the Purchaser. Seller represents and agrees that it is an independent contractor and under no circumstances may represent itself as an agent for Purchaser nor make any warranties or representation on behalf of Purchaser.
  7. SHIPPING, TITLE AND RISK OF LOSS. For items that are goods: Regardless of the FOB point designated, title and risk of loss with respect to any such items shall remain with the Seller until the items have been delivered to and accepted by the Purchaser or to an agent or consignee duly designated by the Purchaser at the location specified on this Order (provided, for clarity that as to leased items, title shall remain with Seller at all times). Items that are to be shipped shall be shipped FOB destination unless otherwise specified by the Purchaser. A packing slip must accompany each such shipment and if a shipment is to a consignee or agent of the Purchaser a copy of the packing slip shall be forwarded concurrently to the Purchaser. The packing slip shall bear the Purchaser’s order number, and each container must be marked to show the Order number. Shipment shall be made in accordance with specific instructions from Purchaser. In the absence of specific shipping instructions, shipping shall be routed via the most economical mode of commercially reasonable transportation available that is able to meet the required timeline. Material will be classified so that the lowest commodity rate may be obtained. Unless otherwise agreed to in writing by Purchaser, prices on the face of each Order include all charges for packing and crating, and Seller is obligated to suitably pack, mark and ship all items to prevent damage and to conform to requirements of common carriers. Notwithstanding any shipping, FOB or other terms or rights of the Purchaser included herein, Purchaser shall have the right to return all freight damaged items to Seller and receive full credit therefor, unless said damage has been caused by the negligence of Purchaser.
  8. INDEMNITY. The Seller shall indemnify, defend and hold the Purchaser, its agents, consignees, employees, and representatives harmless from and against all claims, demands, liabilities, loss, damages, expenses, proceedings, actions or causes of action or government inquiries, including reasonable attorneys’ fees and expenses and costs (collectively, “Claims”) by reason of, arising out of, or in any way connected with this Order, including the breach of any representation, warranty or covenant hereunder and, as applicable, the negligent performance of services hereunder); provided, however, that Seller shall not be obligated to indemnify Purchaser with respect to Claims due to the sole negligence or willful misconduct of Purchaser (other than where the Purchaser’s negligence consists of its failure to discover a condition caused or permitted to exist by the Seller or any subcontractor of Seller). In addition to any indemnification as provided hereunder, if by virtue of a patent, copyright, trademark or other intellectual property right infringement action an injunction shall issue against Purchaser which prohibits or limits the use of any items procured hereunder, Seller shall either, at Purchaser’s option: (i) supply Purchaser noninfringing replacement items of a similar kind and quality; (ii) replace the items with items which are substantially similar in functionality and performance, or (iii) refund Purchaser the amounts paid for the affected items. All of the foregoing shall be in addition to and not in lieu of any claim for damages that Purchaser may have.
  9. TERM AND TERMINATION. The term of this Order shall be as specified or, if not specified, for such period of time as required for Seller to fully perform its obligations hereunder. Purchaser may cancel an Order in whole or in part if: (i) the items furnished do not conform to warranties or specifications; (ii) Seller fails to make deliveries as provided in such Order; (iii) the Seller should fail to use properly skilled personnel, (iv) the Seller should fail to make prompt payment to any subcontractor it may have or for any material, labor, transportation, suppliers, fuel, use of equipment or any other expenses it incurs in the production, construction or performance of the items, (v) Seller breaches any other term or condition herein, it being understood that the failure of Seller to deliver items (including performance of services) in the times specified shall constitute a material breach and default on the part of Seller; (vi) any material representation by Seller proves to have been false when made; or (vii) Seller is insolvent, a petition is filed for reorganization or for its adjudication as a bankrupt, Seller makes an assignment for benefit of creditors, a receiver or trustee is appointed for any of Seller’s assets or any other type of insolvency proceeding or formal or informal proceeding for the dissolution, liquidation, or winding up of affairs of, Seller, is commenced. In the event of any such cancellation, Purchaser shall have the right, in addition to its other rights, to: (a) refuse to accept delivery of items (including performance or services); (b) within thirty (30) days of delivery, return to Seller at Seller’s expense any items already delivered and, at Purchaser’s option, either recover all payments made therefor and expenses incident thereto or, at Seller’s expense, to receive replacement therefor; and (c) recover any advance payments to Seller for undelivered or returned items (including services not fully performed). Purchaser’s right to return items is not affected by any assignment by Seller of moneys due or to become due hereunder. Additionally, Purchaser may terminate this Order in whole or in part at any time without cause by written notice to Seller. Such notice shall state the extent and effective date of such termination and, upon receipt thereof, Seller will comply with the directions pertaining to such cancellation. If Purchaser has made advance payment for any items, Seller shall promptly reimburse Purchaser for items to the extent not delivered or performed subsequent to the effective date of any such termination. Except as otherwise provided herein, the rights and obligations of the parties hereto shall survive any termination or cancellation of this Order.
  10. TAXES, ETC. Except as may be otherwise provided in this Order, the contract price includes all applicable federal, state and local taxes. The Seller shall be required to obtain and pay for any licenses, permits, and inspections by public bodies required in connection with the items. Seller shall assume and pay all taxes (excluding federal, state and local sales, use and excise taxes, which Seller shall collect and pay where applicable), fees, assessments and other charges required by law due to the sale or lease of items, including performance of services, all of which shall be separately itemized, with all nontaxable items, such as labor charges and charges for maintenance or support services, separately itemized and identified as nontaxable charges. In the event Purchaser has agreed in this Order to pay any taxes, Seller shall show federal excise, state and or local taxes, if any, separately on its invoice. Seller shall execute a Form W-9 (or the like form for the applicable country) in the form specified by Purchaser as a condition to being paid and acknowledges that payment hereunder by Purchaser may be subject to tax withholding as required by applicable law. Seller shall notify Purchaser of any special hazards associated with the handling, storage and use of the item. Seller shall advise Purchaser if any ingredient of the item appears on the U.S. Department of Labor’s Carcinogen List or Hazardous Data Sheet. All electrical equipment must have UL and OSHA approval.  Seller agrees to indemnify Purchaser for and hold it harmless from any and all taxes which Purchaser may have to pay and any and all liabilities (including, but not limited to, judgments, penalties, fines, interest, damages, costs and expenses, including reasonable attorney’s fees) which may be obtained against, imposed upon or suffered by Purchaser or which Purchaser may incur by reason of its failure to deduct and withhold from the compensation payable hereunder any amounts required or permitted to be deducted and withheld from the compensation of an individual under the provisions of any statutes heretofore or hereafter enacted or amended requiring the withholding of any amount from the compensation of an individual.  If it should be determined that Purchaser is legally required to make deductions from any amounts owed to Seller under this Order (e.g., withholding taxes, social security contributions, etc.), Purchaser shall have the right to do so.
  11. SPECIFICATIONS, ETC. Any specifications, drawings, notes, instructions, engineering notices, or technical data referred to in this Order shall be deemed to be incorporated by reference the same as if fully set forth herein. The Purchaser shall at all times retain title to all such documents and Seller shall not disclose such to any party other than the Purchaser or a party duly authorized by the Purchaser. Upon the Purchaser’s request or upon completion and delivery of the items, the Seller shall promptly return all such documents to the Purchaser.
  12. REMEDIES. Any right or remedy granted to the Purchaser in any part of this Order shall not be exclusive of, but shall be in addition to, any other rights or remedies granted in another part of this Order and any other rights or remedies that the Purchaser may have at law or in equity in any such instance.
  13.  ASSIGNMENT. Seller may not assign this Order or any right thereunder without the prior written consent of Purchaser. Purchaser shall have the right to assign this Order or any right hereunder.
  14. SEVERABILITY. In the event that any word, phrase, clause, sentence, or other provision hereof shall violate any applicable stature, ordinance or rule of law in any jurisdiction in which it is used, such provision shall be ineffective to the extent of such violation without invalidating any other provision hereof.
  15. COMPLIANCE WITH LAW. Seller warrants that all items and work furnished hereunder shall be produced and furnished in compliance with all applicable federal, state and local laws, orders, and regulations. In addition, Seller shall comply with the U.S. Foreign Corrupt Practices Act, 15 U.S.C. Section 78dd-1 and 78dd-2 and any other applicable anti-corruption laws.
  16. INVOICING. Payment terms are net 60 from receipt of invoice unless otherwise specified by Purchaser.
  17. THIRD PARTY BENEFICIARIES. All SPE Affiliates are intended third-party beneficiaries under this Order, such that all rights of Purchaser, and all obligations and warranties of Seller, contained in this Order shall inure to the benefit of each such SPE Affiliate. For the avoidance of doubt, any payment made to Seller by any such SPE Affiliate is deemed a payment by Purchaser. “SPE Affiliate” means and includes any entity which Sony Pictures Entertainment Inc.: (x) has the power to direct the policies and management of such entity, whether through the ownership of voting securities or otherwise, (y) holds a 50% or greater interest in, and/or (z) consolidates for financial or tax purposes.
  18. DOCUMENTATION. All packing slips, invoices and other documentation associated with the Order must reference the assigned Order number for processing purposes. Invoices received that do not reference an Order number may be returned to the supplier unpaid.
  19. GOVERNING LAW; DISPUTES. This Order and the transaction(s) contemplated hereunder shall be governed exclusively by the laws of the State of California without regard to the choice of law principles thereof. If Seller is subject to The New York Arbitration Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, 10 June 1958 (the “New York Convention”), then: All actions or proceedings arising in connection with, touching upon or relating to this Order and the transaction(s) contemplated hereunder, the breach thereof and/or the scope of the provisions of this paragraph shall be submitted to final and binding arbitration, to be held in Los Angeles County, California, before a single arbitrator who shall be a retired judge, in accordance with California Code of Civil Procedure §§ 1280 et seq. The arbitrator shall be selected by mutual agreement of the parties or, if the parties cannot agree, then by striking from a list of arbitrators supplied by JAMS. The arbitration shall be a confidential proceeding, closed to the general public. The arbitrator shall issue a written opinion stating the essential findings and conclusions upon which the arbitrator’s award is based. The parties will share equally in payment of the arbitrator’s fees and arbitration expenses and any other costs unique to the arbitration hearing, unless the arbitrator decides otherwise.  If Seller is not subject to The New York Convention, then any suit or proceeding arising out of or based upon this Order shall be resolved in the state and federal courts located in Los Angeles, California. Each party agrees that such courts shall have sole and exclusive jurisdiction over any such suit or other proceeding, and each party hereto hereby waives any claim that is it not subject personally to the jurisdiction of said courts or that any such suit or proceeding is brought in an inconvenient forum or improper venue.  Any process served in connection with any such suit or proceeding may be served upon the party by registered or certified mail (or local equivalent) delivered to the party at the address specified in the Order.  Any such service shall have the same effect as personal service.  The foregoing shall not preclude any party hereto from seeking enforcement outside California of any order or judgment rendered by any California court. Seller irrevocably waives any right or remedy to seek and/or obtain injunctive or other equitable relief or any order with respect to, and/or to enjoin or restrain or otherwise impair in any manner, the production, distribution, exhibition or other exploitation of any motion picture, production or project related to Purchaser, its parents, subsidiaries and affiliates, or the use, publication or dissemination of any advertising in connection with such motion picture, production or project. 
  20. PRODUCT SAFETY NOTIFICATIONS. Seller will immediately notify Purchaser of items sold or leased in any Order which fails to comply with an applicable safety rule or standard of the Consumer Product Safety Commission or the Environmental Protection Agency or which contains a defect which could create or presents a substantial risk to the health of, or injury to, the public or to the environment by itself or when used by Purchaser within the scope of its intended purpose.
  21. PUBLICITY. Seller shall not, without prior written consent of Purchaser, make any news release, public announcement, denial or confirmation of this Order or its subject matter, nor in any manner advertise or publish the fact that Purchaser has placed this Order.
  22. CONFIDENTIALITY. Seller shall maintain in strict confidence, and not disclose to any other person or entity, all nonpublic, confidential, proprietary and/or trade secret information acquired or learned from Purchaser (“Confidential Information”). If any item contains a trademark, character, design, name, symbol and/or other proprietary material owned, copyrighted or licensed by Purchaser, its parent or any of its subsidiary or affiliated companies (“Licensed Material”), Seller shall execute without delay one or more instruments containing a license for the use of such intellectual property in the form(s) provided by Purchaser. THE MANUFACTURE OF GOODS CONTAINING LICENSED MATERIAL OR THE PERFORMANCE OF SERVICES INCORPORATING LICENSED MATERIAL WITHOUT AN EFFECTIVE LICENSE IS A VIOLATION OF U.S. AND INTERNATIONAL LAW. Under this Order, Seller shall acquire no right to use, and shall not use, the names “Sony Pictures Entertainment,” “Columbia Pictures,” “TriStar Pictures” or “Screen Gems” (either alone or in conjunction with or as part of any other word or name), or any fanciful characters, designs, trademarks, trade names or copyrighted works of Purchaser or its subsidiary or affiliated companies: (a) in any of its advertising, publicity or promotions, (b) to express or imply any endorsement by Purchaser of Sellers products/items or services, or (c) for any other purpose or in any other manner, except only as necessary for Seller to properly perform pursuant to this Order.
  23. INSURANCE. In order to meet its obligations regarding items, including the Seller’s performance of services on property owned, leased or designated by the Purchaser under this Order: Seller shall maintain all necessary and appropriate insurance coverages at Seller’s cost and expense as follows: commercial general liability including but not limited to contractual liability, independent contractors and products/completed operations for limits no less than US$3,000,000 per occurrence and US$3,000,000 in the aggregate; business automobile liability for limits no less than US$1,000,000 combined single limit;  statutory workers’ compensation or country equivalent and employer’s liability for US$1,000,000 or country’s compulsory limits. An Umbrella or Following Form Excess Liability Policy is acceptable to achieve the total required liability limits in this section.  If applicable, Errors and Omissions Liability Insurance to include but not be limited to Intellectual Property Infringements; Technology Errors & Omissions; Cyber Insurance for Networks Security and Data Privacy Liability in the limits of $5,000,000 per occurrence and in the aggregate; and Contractor’s Pollution Liability in limits of $10,000,000 per occurrence and in the aggregate. All of Seller’s liability policies will be endorsed to include Purchaser, its Parent(s), Subsidiaries, Licensees, Successors, Related and Affiliated Companies, and their Officers, Directors, Employees, Agents, Representatives & Assigns as additional insureds, (known as ‘Affiliated Companies’); shall contain a Severability of Interest clause and will state that the Seller’s liability policies are primary and any insurance maintained by the Purchaser is non-contributory. The workers’ compensation policy will contain a waiver of subrogation endorsement in favor of the Affiliated Companies. All of the Contractor’s insurance shall be written by licensed insurance companies in the states and/or countries where the Seller is performing, and the insurance companies will have an A.M. Best Guide rating of A:VII or better.  Should any of the above policies be cancelled before their expiration date(s) thereof, notice will be delivered in accordance with the policy(ies) provisions. Any and all deductibles and/or self-insured retentions under the Seller’s insurance program are the responsibility of the Seller. Before providing any items hereunder, Seller will provide Purchaser a certificate of insurance with the specified endorsements above that will be signed by an authorized representative(s) of the insurance company(ies) evidencing such coverages required in this Section 23.  Failure of Seller to provide such certificate shall constitute a material breach of this Order.
  24. GRATUITIES. If Seller learns that an employee of Purchaser has solicited or accepted anything of value from any Seller employee, or discovers that one of Seller’s employees has offered or given anything of value to any Purchaser employee, for the purpose of improperly obtaining or rewarding favorable treatment in connection with contract, Seller shall promptly report such information to Purchaser.
  25. PROVISIONS SPECIFIC TO SERVICES. In addition, not in lieu of, the other provisions of this Order, this Section 25 applies to items, or any portion thereof, which are services. Purchaser may periodically request reasonable written reports concerning Seller's progress, project status, billing data, and other matters pertaining to the services to be provided, and Seller shall promptly provide such reports to Purchaser at no additional charge. Seller represents that all individuals performing the services (the “Personnel”) are qualified to perform the services and have been assigned by Seller to work with Purchaser pursuant to this Order. Purchaser has the right to request removal of any Personnel, which request shall be promptly honored by Seller in accordance with Seller’s personnel practices, provided that such request by Purchaser shall be in writing and shall not violate any applicable employment laws. Seller shall, subject to and in accordance with applicable Federal, state and local law, conduct reference and background checks on all Personnel prior to performing services. Seller shall not permit any Personnel to perform services unless such Personnel have consented to and satisfied the required reference and background checks. Seller shall be responsible for all costs associated with the foregoing reference and background checks. The reference and background checks shall include the following: (i) verification of references and employment history; (ii) verification of driver’s license (or other government issued identification if an individual has not been issued a driver’s license), address and address history;(iii) verification of social security number and that each individual is a U.S. citizen or properly documented person legally able to perform the services in the applicable country; (iv) verification of criminal history and that each individual has satisfactorily passed a criminal background check; (v) verification that each individual is not on the Specially Designated Nationals (“SDN”) list maintained by the Office of Foreign Assets Control of the U.S. Treasury Department; and (vi) verification of any other information reasonably requested by Purchaser. Seller may use its employees or subcontractor to perform the services, provided that if Seller uses subcontractors (a) Seller shall remain solely responsible for the proper performance of the services and this Order and (b) Seller shall be solely responsible for engaging and paying such subcontractors. Seller hereby agrees to pay its subcontractors, laborers and suppliers in full on a timely basis. If retention of Seller by Purchaser is related to a contract issued or to be issued by the United States Government that requires incorporation of portions of the Federal Acquisition Regulations (“FAR”), DOD FAR Supplements (“DFARS”), or other federal agency clauses, Seller shall likewise be subject to those clauses and they shall be incorporated by reference into this Order. Except as expressly provided in the Order, Purchaser does not commit to any volume, minimum fee or any other commitment. Nothing herein requires Purchaser to utilize Seller for any services, nor does it preclude Purchaser from obtaining competitive services from any other person or entity. When Seller's Personnel are working on the premises of Purchaser, said Seller's Personnel shall observe the working hours, working rules, safety and security procedures established by Purchaser. Purchaser shall be the sole and exclusive owner throughout the universe in perpetuity of all of the results and proceeds of Seller’s services hereunder, including without limitation all materials, artwork, ideas and intellectual property which Seller may develop, create, write, furnish, contribute or otherwise produce, free and clear of any and all claims, liens or encumbrances. All results and proceeds of Seller’s services hereunder shall be deemed to be works-made-for-hire for Purchaser within the meaning of the copyright laws of United States and Purchaser shall be deemed to be the sole author thereof in all territories and for all purposes. Seller hereby transfers and assigns any “moral rights” or rental rights which Seller may have in any inventions under any copyright or similar law, either U.S. or foreign, to Purchaser. In addition, Seller hereby waives and agrees not to assert on Seller’s behalf any such “moral rights”. If, for any reason, under the laws of any territory or jurisdiction, the results and proceeds of Seller’s services hereunder are not deemed to be works-made-for-hire and Purchaser is not deemed to be the sole author thereof in all territories and jurisdictions and for all territories and jurisdictions and for all purposes, then Seller shall assign and hereby assigns irrevocably forever to Purchaser, its successors and assigns, throughout the universe, Seller’s entire right, title and interest in all such inventions, confidential information, copyright works, and other intellectual property rights.
  26. PROVISIONS SPECIFIC TO software, INCLUDING WEB-BASED APPLICATIONS. In addition, not in lieu of, the other provisions of this Order, this Section 26 applies to items, or any portion thereof, which are software and/or Web-based applications. Seller grants to Purchaser, its affiliates (including, but not limited to, the SPE Affiliates) and its and their subcontractors, agents and consultants a worldwide, perpetual (unless a license term is specified in the Order), fully paid up, royalty-free, irrevocable, non exclusive, license to access and use the software and/or Web-based applications (and any updates or upgrades thereto) that constitutes the item or any part of the item, and any accompanying documentation. Seller warrants that Seller uses best efforts to test and protect the software and/or Web-based applications against viruses and other harmful elements designed to disrupt the orderly operation of, or impair the integrity of data files resident on, any data processing system and that the software and/or Web-based applications shall not contain any such virus or other element. 
  27. PROVISIONS SPECIFIC TO PERSONAL DATA. To the extent that Purchaser provides to Seller, or Seller otherwise accesses Personal Data (as defined in Appendix I) about Purchaser’s employees, customers, or other individuals in connection with this Order, Appendix I to this Order shall apply. 
  28. PROVISIONS SPECIFIC TO MEDICAL ITEMS. In addition, not in lieu of, the other provisions of this Order, this Section 28 applies to items, or any portion thereof, which are medical items. Seller represents and warrants that the medical items: (a) comply to the requirements of all applicable industry, accreditation and regulatory standards, federal, state and local laws, regulations and ordinances, including the Food and Drug Administration, Environmental Protection Agency, and Center for Disease Control and Prevention (provided that in the event of conflicting requirements, the more stringent requirements will apply); (b) are not adulterated or misbranded within the meaning of the United Sates Federal Food, Drug and Cosmetics Act of 1938, as amended from time to time, and all associated regulations (“FFDCA”) or within the meaning of any other applicable law or requirement; (c) may be introduced into interstate commerce; (d) will be manufactured, handled, stored, and transported in accordance with all applicable laws and requirements; (e) will meet all specifications for effectiveness, safety and reliability as required by any applicable law and other requirements; (f) will be fit for the indications described in the items’ product labeling  and package inserts; (g) are and will be labeled  in compliance with all applicable laws and requirements; (h) are of the kind and quality specified; and (i) are and will be of safe and merchantable quality. Seller agrees to promptly notify Purchaser after becoming aware of any patient safety issue involving a medical item.  If any medical item or any of its components is subject to recall as that term is defined under 21 C.F.R. Part 7, or a voluntary recall by Seller, or is subject to an FDA-initiated court action for removing or correcting volatile, distributed products or components (any of the foregoing being referred to as a “Recall”), Seller shall notify Purchaser within twenty-four (24) hours after becoming aware of any Recall or after Seller provides notice of the Recall to the FDA.   Seller agrees that it shall comply with any process mandated by the FDA, if applicable, to address such Recall with Purchaser.  Purchaser shall have the right to return to Seller any medical items where such medical items or any components therein are subject to a Recall, regardless of whether actual return of the medical iterms or components to Seller is required, recommended, or suggested by the Recall, in which case Seller shall pay all freight costs incurred for the return of each affected medical item and shall reimburse Purchaser for Purchaser’s original costs, including freight, in acquiring each affected medical item.
  29. BOOKS AND RECORDS; AUDITS.  (i) Seller shall maintain complete and accurate accounting records, and shall retain such records for a period of three (3) years following the date of the invoice to which they relate. (ii) Purchaser (and its duly authorized representatives) shall be entitled to (a) audit such books and records as they relate to Seller’s performance hereunder, upon reasonable notice to Seller and during normal business hours, and (ii) make copies and summaries of such books and records for its use.  If Purchaser discovers an overpayment in the amounts paid by Purchaser to Seller for any period under audit (an “Audit Overpayment”), Seller shall promptly pay such Audit Overpayment to Purchaser. In the event that any such Audit Overpayment shall be in excess of five percent (5%) of the aggregate payments made by Purchaser in respect of the applicable period under audit, Seller shall also reimburse Purchaser for all reasonable costs and expenses incurred by Purchaser in connection with such audit and the collection of the Audit Overpayment.  If any such Audit Overpayment shall be in excess of ten percent (10%) of the aggregate payments made by Purchaser in respect of the applicable period under audit, Purchaser shall have the right to re-audit, at Seller’s expense, Seller’s books and records for any and all past years (since the commencement of this Order).
  30. LIMITATION OF LIABILITY. Under no circumstances shall either party be liable to the other for any special, indirect or consequential loss or damage whether or not such loss or damage is caused by the fault or negligence of such party, its employees, agents or contractors and whether or not the parties have been apprised of the possibility of such losses or damages.  This exclusion of liability for special, indirect or consequential loss or damage is intended to apply to damage or loss of a “commercial” nature such as, but not limited to, loss of profits or revenue, cost of capital, loss of use of equipment or facilities, or claims of customers due to loss of service.  This exclusion is not intended to apply to: (i) loss or damage incidental to a default, termination, suspension or defect in the items such as, but not limited to, additional managerial and administrative costs and expenses incurred in effecting a “cover” under a Seller default; (ii) loss or damage to property or personal injuries (including death) directly caused by Seller’s or Purchaser’s negligence, (iii) Seller’s indemnification obligations hereunder, (iv) breaches of Section 22 Confidentiality hereunder, or (v) breaches of Section 27 Provisions Specific to Personal Data hereunder, including Appendix I hereto.
  31. SAFETY AND ENVIRONMENTAL COMPLIANCE. Purchaser has established and implemented a global environmental management system (“GEMS”) that complies with the requirements of EN ISO 14001:2015 for the activities detailed in the scope of registration.  Seller is aware of and must comply with Purchaser’s environmental policy and ISO 14001 program in Seller’s performance under this Order.  Seller’s environmental policy and GEMS program details can be found at (http://supplier.spe.sony.com). Seller is responsible for complying with all applicable safety and environmental acts and local laws, rules, codes, standards, and regulations applicable to its performance under this Order (“Safety & Environmental Rules”). Seller is solely responsible to examine, understand, and comply with the Safety & Environmental Rules and to ensure its personnel are aware of, and comply with, the Safety & Environmental Rules.
  32. SUPPLIER CODE OF CONDUCT. Seller acknowledges Purchaser’s Supplier Code of Conduct (“Supplier Code”), which can be found at http://supplier.spe.sony.com, under which Purchaser expects Seller to comply with all applicable laws and regulations of the countries and regions in which Purchaser operates and to conduct business activities in an honest, ethical and responsible manner. If Seller has a concern that a Sony Pictures policy, business practice or other activity is or may be in violation of laws, regulations or internal rules, Seller may raise the issue with Purchaser, by reporting the concern to the primary contact/relationship manager, or contacting the Sony Ethics & Compliance Hotline (http://www.sony.alertline.com). Users of the Hotline may choose to remain anonymous. Nothing in the Supplier Code is meant to supersede any more specific provision in this Order, and to the extent any inconsistency exists between the Supplier Code and any other provision of this Order, the provision of this Order will control.
  33. ARTIFICIAL INTELLIGENCE TERMS. Seller’s items do not and will not contain, use, or incorporate, in whole or in part, any GAI System (or depend in any way upon any GAI System), including without limitation, any collection or processing of any Confidential Information or Personal Data without Purchaser’s prior review and written approval (in Purchaser’s sole discretion). Seller may not use any data or information submitted by Purchaser or content that is output from the items to directly, indirectly, or for reference purposes to train, retrain, improve, or otherwise enhance the capabilities of any AI System, except as approved in writing by Purchaser prior to such use or solely for the benefit of Purchaser. “AI System” means artificial intelligence technology, large language model, or other machine learning feature, software, tool, or service provided or used by Seller (or its licensors, agents and/or subcontractors) as part of the items to its customers (including Purchaser) that gives advice and/or infers, based on data or information submitted by Purchaser or any other data used to train the AI System, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments by using data analysis, statistics, and/or self-learning logic, whether internal, commercial, non-commercial and/or free artificial intelligence tools, models and/or systems.  “GAI System” means artificial intelligence technology, large language model, or other machine learning feature, software, tool, or service provided or used by Seller (or its licensors, agents and/or subcontractors) as part of the items to its customers (including Purchaser) that generate text, images, audio/visual content, or other media, based data or information submitted by Purchaser or any other data used to train the GAI System, by using data analysis, statistics, self-learning logic, and/or generative models, whether internal, commercial, non-commercial and/or free artificial intelligence tools, models and/or systems.

 

 

Appendix I

  1. This Appendix shall apply to the extent Seller collects, records, stores, accesses or otherwise processes (collectively, "Process," "Processed," or "Processing") information that can be used to directly or indirectly identify an individual in connection with providing the Purchaser and/or Purchaser's affiliates (including, but not limited to, the SPE Affiliates) with items under this Order, such as first name and last name, address, email address, device identifier, and other personal information relevant to the items (collectively, "Personal Data").  Seller shall only Process Personal Data for fulfilling its obligations under this Order and in accordance with the additional instructions of Purchaser as detailed in this Appendix and applicable data privacy law ("Privacy Laws"). Without limiting the generality of the forgoing, Seller is prohibited from selling, renting, releasing, disclosing, disseminating, making available, transferring or otherwise communicating orally, or in writing, or by electronic or other means  the Personal Data in order to derive a commercial or other benefit to Vendor or to any third party (whether affiliated or not) directly or indirectly other than to receive monetary compensation from Purchaser in payment of the services, or as expressly permitted by this Agreement. Seller and Purchaser agree that (i) any transfer of “Personal Information” (as defined under the California Consumer Privacy Act (“CCPA”)) which occurs in connection with this Order does not constitute a “Sale” (as defined under the CCPA) of Personal Information under the CCPA; and (ii) Seller is deemed a “Service Provider” as defined by the CCPA. Seller hereby certifies that it understands the foregoing restrictions on the use of the Personal Data and shall comply with them, and cause all Seller personnel to certify that they understand and will comply with them.  Where applicable law requires Seller to Process Personal Data under terms other than those of this Order, Seller shall promptly notify Purchaser of such legal requirement before Processing, unless applicable law prohibits such disclosure. Seller shall also notify Purchaser if Seller determines any of Purchaser's instructions infringe Privacy Laws.
  2. The parties agree that the collection and control of Personal Data remain at all times with Purchaser as Data Controller (as defined under Privacy Laws). Seller will act at all times a Data Processor (as defined under Privacy Laws).
  3. The duration of processing Personal Data shall be for the term of this Order. 
  4. Seller shall promptly notify Purchaser of any request, complaint, claim, or other communication received by Seller regarding its Processing of Personal Data. Seller shall cooperate with and provide any necessary assistance to Purchaser in responding to any such inquiries, insofar as possible and taking into account the nature of Seller's Processing and the Personal Data available to Seller. Seller shall also provide reasonable cooperation and assistance to Purchaser with its obligations under applicable Privacy Laws, including, where appropriate, data security, notification of security breach to authorities and data subjects, insofar as possible in connection with this Order, taking into account the nature of Seller's processing and the Personal Data available to Seller. Seller shall provide such assistance only insofar that Purchaser's obligations cannot be met by Purchaser through other means.
  5. Seller shall implement and maintain reasonable security measures to safeguard Personal Data from loss, misuse, unauthorized access, disclosure, alteration or destruction, including, without limitation, an information security program that includes appropriate technical and procedural safeguards to protect Personal Data, taking into account the nature of Seller's Processing and the Personal Data available to Seller. Upon request, Seller shall make available to Purchaser information reasonably necessary to demonstrate compliance with this obligation.
  6. The parties agree that Seller may subcontract its obligations to subcontractors (which shall include Seller affiliates or subsidiaries) as necessary to meet its obligations under the Order. Seller shall remain responsible for subcontractors' performance under the Order, and shall enter into an agreement with subcontractors that impose materially the same obligations as set forth in this Appendix. Seller also agrees that any subcontractors that have access to Personal Data are bound to Process Personal Data in accordance with Seller's instructions and are subject to obligations to maintain confidentiality. 
  7. To the extent that Personal Data includes information about individuals who are located in the European Economic Area ("EEA") and/or Switzerland, and Seller stores or otherwise obtains access to such Personal Data outside of the EEA and/or Switzerland, Seller shall implement appropriate measures to address the cross-border transfer of Personal Data, including but not limited to Standard Contractual Clauses or the EU-U.S. and/or Swiss-U.S. Privacy Shield Framework.
  8. Notwithstanding any provisions in the Order to the contrary, Seller shall immediately, but by no later than 48 hours, notify Purchaser at IR@spe.sony.com in the event Seller reasonably suspects, discovers or is notified of a breach of security leading to unauthorized disclosure of or access to Personal Data as a result of its Processing of Personal Data ("Security Breach"). Seller shall reasonably cooperate in the investigation of the Security Breach and shall be responsible for any fees or costs associated with remediating the Security Breach and/or making any legally mandated notices to regulatory authorities, individuals or others. For avoidance of doubt, any such fees or costs shall constitute direct damages and will not be subject to Section 30 of the Order.
  9. The parties agree that upon thirty (30) days written notice to Seller, and no more than once per calendar year (or if necessary for Purchaser to comply with Privacy Laws), Purchaser may request reasonable access to Seller's facilities, systems, and supporting documentation used in relation to the Processing of Personal Data under this Order, to the extent necessary to assess Seller's compliance with its obligations under this Appendix. Such assessments shall be subject to Seller's security and confidentiality policies, and shall be conducted in a manner that minimizes any disruption of Seller's performance in relation to the items and other normal operations.
  10. Notwithstanding any other provision of this Order to the contrary, upon termination of the Order or otherwise, Seller shall, at the choice of Purchaser, either return or securely delete Personal Data from its systems unless required by law.
  11. When and as reasonably required by Purchaser from time to time, Seller shall and shall require its subcontractors, to execute supplemental data privacy, data protection, and/or data security terms with Purchaser, as required in Purchaser's sole, reasonable judgment for the Processing of Personal Data.