Topps Europe Limited Purchase Order Terms & Conditions
1. TERMS: The terms and conditions of this Purchase Order (or “PO”) is by and between Vendor and Topps Europe Limited (“TEL”) otherwise referred to as “Parties” and covers:
1.1. Goods: the purchase of software and tangible goods;
1.2. Services: the purchase/ordering of services;
1.3. Deliverables: all intellectual property (“IP”) or other work product developed by Vendor (or an approved subcontractor) for TEL as part of delivery of Goods or Services are “work made for
hire” for TEL as that term is defined under applicable copyright law.
This PO is effective upon Vendor’s acceptance of this PO, delivery of goods, commencement of service, or the date of Vendor’s receipt of the PO, whichever is earlier. Except as set forth in Section 2
below, Vendor’s acceptance of this PO is expressly limited to these terms and conditions without counterproposal.
2. ORDER OF PRECEDENCE: If there is any conflict between the provisions of this PO and the provisions of a signed agreement, the provisions of the signed agreement shall govern.
4. TIME AND PLACE OF DELIVERY; TEL'S INSPECTION; ACCEPTANCE: Time is of the essence of this Purchase Order. Delivery will be made as specified on the face of this Purchase
Order. TEL reserves the right to reject goods and to cancel all or any portion of this Purchase Order in the event of failure to deliver at the time and place specified. TEL's acceptance of any part of a
shipment not delivered as specified herein shall not obligate TEL to accept the remainder of that shipment or any future shipments. If Vendor is required to provide Material Safety Data Sheets, they
will be delivered to TEL prior to delivery of any goods under this Purchase Order. All goods shall be received subject to TEL's inspection and acceptance, and subject to TEL's right to reject and
return at Vendor's expense goods which fail to conform strictly to the requirements of this Purchase Order. All materials are subject to inspection and testing by TEL. TEL shall have the right to audit
Vendor’s records, systems, and facilities, with reasonable notice, to ensure compliance with the terms of this PO, including but not limited to data security, invoicing accuracy, and IP handling.
5. EXTENSION OF TIME OF DELIVERY: TEL shall not be liable to Vendor for any failure of TEL to take any delivery hereunder when due, if occasioned by any event beyond TEL's reasonable
control, including without limitation fire, flood, earthquake, lightning or other acts of God; acts of, or compliance with the directions of, civil or military authority, including any federal, state or local
agency or authority; wars; riots; insurrections; sabotage; accident; embargo; strike or other labor trouble; interruption of or delay in transportation; shortage or failure of supply of materials; or
equipment breakdown. At TEL's option, the time for delivery hereunder shall be extended to the extent of the delay occasioned by any such circumstance and the deliveries so omitted shall be made
during the period of such extension.
6. RISK OF LOSS: Risk of loss of any goods sold hereunder shall transfer to TEL at the time and place of delivery, provided that risk of loss prior to actual receipt of the goods by TEL shall
nonetheless remain with Vendor.
7. SHIPMENT: Goods must be shipped by the particular route, method and carrier as stated in this Purchase Order. In the event that Vendor fails to ship goods on or before any scheduled shipping
date, TEL shall have the right to specify a more rapid method of shipment than was specified originally and Vendor shall bear, at no additional cost to TEL, any increased costs occasioned thereby.
8. PACKING, MARKING, AND INVOICING: A packing list shall be included with each shipment. Individual invoices shall be issued for each separate shipment. TEL shall not be charged for
packaging, boxing, crating or cartage. All invoices, packing lists, bills of lading, and each separate package within each shipment shall clearly reference piece number, TEL's Purchase Order number
and Vendor's packing slip number. Partial shipments must be identified as such on the shipping memoranda and invoices.
9. PAYMENT/OFFSET/ WAIVER OF LIENS: Payment will be made Net 60 following receipt and acceptance of the goods and receipt, in proper form and substance, of all documentation required
by this Purchase Order including an invoice. Vendor shall furnish to TEL any analysis or breakdown of the price as TEL may reasonably request. TEL may set-off amounts owed to TEL against an
amount TEL owes Vendor or Vendor’s affiliated companies. TEL will provide notice to Vendor within a reasonable time after the setoff. Vendor agrees to indemnify, defend and hold harmless TEL
from and against any and all liens and encumbrances arising out of Vendor's performance of this Purchase Order or rising out of any claim for payment by any laborer, subcontractor or supplier of
Vendor.
10. VENDOR'S WARRANTIES: Vendor expressly warrants that for a period of one year after TEL's acceptance of the goods or services hereunder, or for such longer period as may be expressly
provided in this Purchase Order or under applicable law, all goods and services covered by this Purchase Order will: (a) strictly conform to Vendor's specifications and descriptions, or, to the extent
the goods were purchased to TEL's specifications as set forth or referred to in this Purchase Order, that the goods strictly conform with those specifications; (b) be free from defects in design, material
and workmanship; (c) be of merchantable quality and suitable for the particular purposes intended, whether express or reasonably implied; and (d) bear all warnings, labels, and markings required by
applicable laws and regulations. In addition, Vendor warrants that: (e) none of the goods covered hereby, to the extent they are subject to laws prohibiting adulteration or misbranding, is adulterated
or misbranded within the meaning of such laws as of the date of delivery to TEL; (f) all goods covered hereby may be introduced into interstate commerce without violation of applicable laws and
regulations; (g) all services have been performed in a good and workmanlike manner; and (h) all goods and services furnished or rendered pursuant to this Purchase Order have been produced, sold,
delivered or rendered to TEL in compliance with all applicable laws and regulations.
11. TEL'S REMEDIES: TEL's acceptance of all or any part of the goods or services provided hereunder shall not be deemed a waiver of the failure of such goods or services to conform to all of the
warranties set forth in Section 10. TEL retains the right to cancel any portion of the remaining order, to reject any portion of the goods or services delivered, or to revoke acceptance as to any portion
of the goods or services accepted, and return such goods to Vendor and to recover the purchase price, any excess costs of cover, and damages, including manufacturing costs, costs of removal or
recall, transportation and custodial expenses, injury to person or property incurred by TEL, all in addition to TEL's other remedies under this Purchase Order or applicable law. If Vendor becomes
insolvent or makes an assignment for the benefit of creditors, or files or has filed against it any petition in bankruptcy, TEL shall have the right to cancel this Purchase Order immediately.
12. PATENT, COPYRIGHTS, TRADEMARKS: Vendor warrants that the goods or services provided under or used in connection with this Purchase Order (except those furnished according to TEL's
specific design) and TEL's express or reasonably implied intended use thereof, do not and will not infringe any patent, copyright, trademark, trade secret or other proprietary right of any third party.
If any claim, suit or proceeding is made or instituted against TEL alleging any such infringement, Vendor shall indemnify, defend and hold TEL harmless from and against any damages, liabilities,
judgments, costs and expenses (including without limitation reasonable attorney's fees) it may incur in connection with any such claim, suit or proceeding. In the event that the goods or TEL's use is
held in any suit or proceeding to constitute an infringement, or if Vendor determines that there is a substantial risk of a finding of such infringement, Vendor agrees, as appropriate, and at its expense
to: (a) procure for TEL, at no expense to TEL, the right to continue using the goods, (b) replace the goods with equivalent goods that meet the requirements of this Purchase Order and that do not
infringe any such rights, or (c) modify the goods so that they become non-infringing. Vendor shall ensure that all employees, agents, and subcontractors who contribute to Deliverables have executed
enforceable agreements assigning all IP rights to Vendor for onward assignment to TEL.
13. INTELLECTUAL PROPERTY:
13.1. Ownership of TEL Materials. The Parties acknowledge and agree that in connection with the provision of the Services, TEL may provide to Vendor certain materials, works of authorship,
data, information or other content owned by or licensed to, and otherwise proprietary to TEL, including, but not limited to, computer software scripts or routines, algorithms, forms, and other
proprietary materials (the “TEL Materials”). All right, title and interest in and to the TEL Materials is and shall remain the property of TEL or its licensors and Vendor shall not use TEL
Materials except as necessary to perform the Services in accordance with this PO.
13.2. Ownership of Deliverables. The Deliverables (and all Intellectual Property Rights therein) will belong to TEL under the work-for-hire doctrine and for all other purposes. To the extent for
any reason any Deliverables (or any element thereof) are not eligible for work-for-hire treatment, Vendor hereby irrevocably assigns (and shall ensure that any of its Representatives assigns)
all rights, title, and interest in and to such Deliverables to TEL and waives all related moral rights. Upon request by TEL, Vendor shall execute and deliver any documents that may be necessary
or desirable under any law or regulation to perform, protect, preserve or enable TEL to enforce TEL’s rights with respect to the Deliverables as set forth in this PO. Without limiting TEL’s
rights under this section, as between the Parties, TEL shall have the exclusive, worldwide, right in perpetuity to use, modify, and fully exploit the Deliverables (and, for the avoidance of
doubt, any derivatives thereof), in any format or version, by any means and in any media, whether or not used therein, whether now known or hereafter developed, without need of further
consideration, for promotion, commercial or any other purpose.
13.3. No Third Party Materials. Vendor shall not incorporate any materials or Intellectual Property Rights owned by third parties (“Third Party Works”) into any Deliverables without the prior
written consent of TEL unless expressly set forth in an applicable SOW. Without limiting the foregoing, to the extent that Vendor is permitted to incorporate Third Party Works into any
Deliverables, unless otherwise set forth in the applicable SOW, Vendor may only do so on the condition that Vendor causes, at Vendor’s sole expense, TEL to have a perpetual, irrevocable,
worldwide, royalty-free, fully paid-up license to use, have used, make, have made, import, disclose, copy, modify, display, distribute, or create derivative works of the same, sublicense and to
otherwise exploit such Third Party Works (i) as incorporated into the Deliverables, (ii) as necessary for the use, maintenance and updating of the Deliverables, or (iii) to the extent necessary
or reasonably required for TEL to exploit its rights and enjoy the benefits of the Services contemplated herein.
13.4. No Challenges. Vendor shall not, during the Term or at any time thereafter, challenge the property rights of TEL in and to the Deliverables.
13.5. Obligation to Keep TEL Informed. Vendor will promptly disclose in writing to TEL complete information concerning each and every Deliverable whether Vendor considers them patentable
or not, made, developed, perfected, devised, conceived or first reduced to practice by Vendor, either solely or in collaboration with others, during the Term, and up to and including a period of
one (1) year thereafter, relating to the business, products, practices or techniques of TEL, or to TEL’s actual or demonstrably anticipated research or development, or resulting from any work
performed by Vendor for TEL.
14. LIABILITY:
14.1. No Consequential Damages. Save to the extent any liability cannot be limited or excluded at law, (i) neither party shall be liable for consequential, special, incidental or indirect losses
including, without limitation loss of profits, revenue or goodwill, or loss of business, and (ii) TEL’s maximum aggregate liability in contract, tort (including negligence) or otherwise under
this Agreement shall be limited to the lower of (i) an amount equal to the fees paid hereunder in the 6 months prior to the issues giving rise to the initial claim, and (ii) £50,000.
14.2. Cumulative Remedies. Except where a remedy is expressly identified as an exclusive or sole remedy with respect to a particular situation, the rights of the Parties under this PO are
cumulative, and no exercise or enforcement by any Party of any remedy hereunder will preclude the exercise or enforcement by it of any other right or remedy hereunder, or to which any
Party is entitled by law or in equity.15. INDEMNIFICATION: Vendor will indemnify, defend, and hold harmless TEL and its Affiliates, subsidiaries, shareholders, officers, directors, agents, and Representatives (collectively, the “TEL
Indemnitees”) from and against any demands, suits, liabilities, judgements, obligations, causes of action (including third party claims), penalties, claims, costs, expenses or damages of any kind or
nature, including liquidated damages and reasonable attorney’s fees or disbursements, or losses of any kind or nature, whether brought on an individual, class, collective, representative, governmental
agency or other basis (collectively, “Claims”), arising out of, or relating to, (a) a breach or alleged breach of any representation, warranty or covenant made by Vendor in this Purchase Order; (b) the
actual or alleged violation, infringement or misappropriation of any rights of any party, including Intellectual Property Rights or privacy rights, by the Services or Deliverables, when used in
accordance with this Purchase Order; (c) a determination by a court or agency that Vendor or any Vendor employee or permitted subcontractor is not an independent contractor with respect to TEL;
and (d) the negligence, fraud or willful misconduct of Vendor, its officers, directors, employees, subcontractors or agents.
16. WORK AND SERVICES: Nothing contained in this Purchase Order shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment or fiduciary
relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner. Vendor or its personnel shall not be deemed to be an employee of TEL.
Vendor hereby acknowledges and agrees that neither Vendor nor any of its personnel is entitled to, or eligible for, any of the rights, privileges or benefits that TEL extends to its employees, and
neither Vendor nor any personnel will receive, or be eligible to receive, any such rights, privileges or benefits. Vendor shall pay, when and as due, any taxes incurred based on Vendor’s compensation
for Services, including without limitation any federal or state income taxes, and Vendor shall provide TEL with proof of payment if requested. Vendor shall indemnify and hold harmless TEL for
any claims, losses, or costs incurred by TEL arising out of Vendor’s breach of this subsection, including any claim brought against TEL by any taxing authority.
17. TERMINATION:
17.1 TEL may at any time, without cause, terminate this Purchase Order in whole or in part upon seven (7) days’ written notice to Vendor. In such event, Vendor shall be entitled to cost of the
work, goods delivered, or services properly performed prior to termination. Payment of such fee shall be Vendor's sole remedy. Upon TEL's request, Vendor shall preserve, protect and deliver
to TEL, at TEL's expense, materials on hand, work in progress, and completed work, both in its own and in its suppliers' plants.
17.2 TEL may terminate this Purchase Order immediately by written notice to Vendor if: (a) Vendor becomes insolvent or is unable to pay its debts as they fall due; (b) Vendor makes a general
assignment for the benefit of its creditors; (c) a receiver, administrator, liquidator, or similar officer is appointed over Vendor or any of its assets; (d) any resolution is passed or petition filed
(and not dismissed within 30 days) for the winding up or dissolution of Vendor (other than for the purpose of a solvent amalgamation or restructuring); or (e) Vendor enters into or proposes
any composition or arrangement with its creditors (including a moratorium or Company Voluntary Arrangement). Termination under this clause shall be without liability to TEL, and shall not
affect TEL’s right to claim damages or other remedies available under this Purchase Order or at law or equity.
18. CONFIDENTIALITY: Vendor and its directors, officers, employees and agents shall not disclose to any third party any information pertaining to the goods provided or services performed
hereunder, or pertaining to TEL's business or operations which Vendor obtains or has access to in connection herewith, without the prior written consent of TEL.
19. SURVIVAL: All of the provisions of this Purchase Order that by their terms would reasonably be expected to survive the expiration or early termination of the PO shall survive the expiration of
earlier termination of this PO, including, without limitation, the following terms: Term & Termination, Confidentiality, Intellectual Property, Indemnification, Liability, and Miscellaneous.
20. MISCELLANEOUS:
20.1. Data. If Vendor processes any personal data on behalf of TEL, it shall do so in full compliance with applicable data protection laws, including the UK GDPR. Vendor shall implement and
maintain appropriate technical and organizational security measures and immediately notify TEL in the event of a data breach.
20.2. Insurance. Vendor will, in accordance with what would ordinarily and reasonably be expected by an experienced person undertaking the type of work contemplated by this PO, at its own
expense, ensure that it maintains insurance in respect of its potential liability for loss or damage under this PO.
20.3. Publicity. Vendor shall make no statement (whether oral or in writing) in any press release, external advertising, marketing materials or other public communication regarding TEL or its
business (including, without limitation, the existence or terms of this PO) without TEL’s prior written consent in all instances.
20.4. Export. Vendor shall comply with all United States, foreign and local laws and regulations including, without limitation, export control laws and regulations.
20.5. Anti-Corruption. Vendor will comply with all applicable anti-corruption laws, including the UK Bribery Act 2010 and the US Foreign Corrupt Practices Act 1977, and will not pay or give,
offer or promise to pay or give, or authorize the promise, payment or giving directly or indirectly of any monies or anything of value to any person or firm, including those employed by or
acting for or on behalf of any governmental customer, any government official or employee, any political party, any employee of any political party, any member of a ruling or royal family,
or any candidate for political office for the purpose of inducing or rewarding any favorable action in any matter related to the subject of this PO. Vendor further agrees to keep accurate books
and records in relation to this PO and that any payments that Vendor makes to third parties in connection with this PO will be supported by written, complete and accurate invoices that will
be maintained by Vendor for the duration of this PO and made available to TEL for inspection upon TEL’s request.
20.6. Non-Disparagement. During the term and any renewals of this PO thereafter, Vendor shall not act, directly or indirectly, in any way likely to damage or disparage the goodwill or reputation
of TEL or its products or services or the products and services offered by the sportsbook, gambling, or similar categories generally nor will Vendor damage or disparage the goodwill or
reputation of TEL.
20.7. Independent Contractors. The relationship of the Parties is that of independent contractors. Nothing contained in this PO shall be construed as creating any agency, partnership, joint venture,
or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner. Vendor
or its personnel shall not be deemed to be an employee of TEL. Vendor hereby acknowledges and agrees that neither Vendor nor any of its personnel is entitled to, or eligible for, any of the
rights, privileges or benefits that TEL extends to its employees, and neither Vendor nor any personnel will receive, or be eligible to receive, any such rights, privileges or benefits.
20.8. Compliance with Law. In performing the Services, Vendor shall at all times, comply with any and all laws and ordinances and any and all rules, regulations, and orders of public authorities
applicable thereto. Vendor shall file all reports required to be filed in the name of Vendor and pay all taxes, fees and charges required by laws, rules, regulations, and orders, and shall, without
reimbursement by TEL, indemnify TEL against any and all liabilities and penalties by reason of any failure on the part of Vendor to comply with any such laws, orders, rules, and regulations.
20.9. Entire PO. This PO constitutes the entire PO between the Parties with respect to the matters contemplated by this PO and supersedes any and all prior and/or contemporaneous written and/or
oral POs relating to such matters.
20.10. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses
designated by the Parties. All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email (with confirmation of transmission) or
certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this PO, a Notice is effective only: (i) upon receipt by the receiving
Party; and (ii) if the Party giving the Notice has complied with the requirements of this section; and (iii) in the case of a notice to TEL, a copy is sent at the same time by email to
20.11. Amendment; No Waiver. This PO may not be modified except by written document, signed by both Parties. No waiver by any Party of any provision hereby will be effective unless set forth
in writing and signed by the Party so waiving. Except as otherwise set forth herein, no failure to exercise or delay in exercise any rights, remedy or power, or privileges arising from this PO
will operate or be construed as a waiver thereof, nor will any single or partial exercise of any right or remedy hereunder preclude any other or further excise of any other right or remedy.
20.12. Severability. If any provision of this PO is invalid or unenforceable by a court of law, (i) such provision shall be deemed to be amended so that the intent of the Parties is fulfilled to the
greatest extent possible; and (ii) it would not affect the validity or enforceability of any other provision of this PO, which shall remain in full force and effect.
20.13. Governing Law. This PO shall be governed by and interpreted in accordance with the laws of England and Wales. It is agreed that any controversy, claim or dispute between the Parties,
directly or indirectly, concerning this PO shall only be resolved in the courts in London, and the Parties hereby submit to the exclusive jurisdiction of said courts.
20.14. Dispute Resolution. If a dispute arises under this PO, the Parties shall first submit the dispute to their respective executive sponsors, then, if needed, submit the dispute to non-binding
mediation before a London Court of International Arbitration (“LCIA”) mediator. If such efforts do not resolve such dispute, then the matter shall be submitted to binding arbitration and
resolved by a 3-arbitrator panel in accordance with the LCIA Rules then in effect, which are deemed to be incorporated by reference into this clause. The Parties shall jointly select the
arbitrators for the main arbitration as well as for any emergency relief or expedited process. If the Parties are unable to agree on arbitrators, they shall be appointed in accordance with the
rules of LCIA. The Party initiating arbitration shall be responsible for paying the filing fees and arbitrator fees at the outset, with such fees ultimately allocated based on the arbitrator’s final
decision regarding the prevailing Party. All such arbitration shall be in English, confidential and take place at the office of the LCIA located in London, England or as otherwise mutually
agreed upon by the Parties. The arbitration panel shall not issue a reasoned award. The foregoing relief shall be in addition to, not in lieu of, emergency injunctive relief, which shall be sought
by the parties according to the then-applicable LCIA Rules in respect of Emergency Arbitrators (currently Article 9B).
20.15. Equitable Relief. Vendor acknowledges and agrees that a breach or threatened breach by Vendor of any of its obligations under this PO may cause TEL irreparable harm for which monetary
damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, TEL may be entitled to equitable relief, including a restraining order, an injunction,
specific performance, and any other relief that may be available from any court. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity
or otherwise.
20.16. Assignment; subcontracting. Nothing in this PO shall be construed to permit the assignment by Vendor of any of its rights or obligations hereunder, and such assignment is expressly
prohibited without the prior written consent of the TEL. No assignment, transfer, or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. Vendor may
not subcontract performance under this PO without TEL’s prior written approval. Vendor remains fully liable for the acts and omissions of its subcontractors.
20.17. Construction. The Parties agree to the following rules of interpretation: (i) words suggesting the singular include the plural, and vice versa where context requires; (ii) headings used in this
PO are for ease of reference only and will not affect the interpretation of this PO; (iii) references to any Exhibit, attachment, PO or other document are to that document, as amended,
supplemented, varied or replaced from time to time; (iv) use of the words “includes”, “for example” or “e.g.” (and their derivatives) means includes or including, without limitation, and,
unless the context dictates otherwise, the word “or” is not exclusive; (v) the words “hereof”, “herein” and “hereunder” and words of similar import when used in this PO shall refer to this PO
as a whole and not to any particular provision of this PO; and (vi) in all instances where the prior approval or consent of TEL is required, unless stated otherwise, such approve or consent may
be granted or withheld in TEL’s sole discretion.