Terms & Conditions
“Buyer” is “AMG Marketing Services, LLC d/b/a Mosaic PRO”
“Seller” is each party selling goods, products and/or services to Buyer
Buyer and Seller may individually be referred to as a “Party” and collectively as the “Parties.”
1. Terms and Conditions of Sale. The Terms & Conditions contained herein (the “T&Cs”) are exclusive and in lieu of all other terms and conditions, superseding all prior or contemporaneous written or oral communications or agreements between Buyer and Seller, regarding the subject matter hereof, and shall govern all sales of goods and products by Seller to Buyer as described in the applicable purchase order (“PO”). Any change, addition or reduction to the scope of services must be agreed upon in writing. In case of a conflict between these T&Cs and any Seller provided terms and conditions, these T&Cs shall prevail except where the Parties have expressly agreed to the conflicting term in writing.
2. Termination. Buyer may terminate, without penalty, by delivering twenty-four (24) hours’ prior written notice thereof to Seller. Seller may terminate for breach by delivering thirty (30) days’ prior written notice to Buyer. Upon the termination of a PO for any reason, Seller shall (a) cease providing services and deliverables to Buyer, and at Buyer’s option, promptly return, or destroy and certify such destruction of, all Confidential Information to Buyer, and (b) Buyer shall reimburse Seller for any documented costs and expenses incurred on or before the effective date of termination of the applicable PO.
3. Fees and Expenses. Buyer shall pay Seller the fees described in the applicable PO. Unless otherwise expressly set forth in the applicable PO, Seller shall be responsible for all costs and expenses Seller incurs in connection with the performance of the services.
4. Payment. Buyer to Seller. Seller shall deliver all invoices for fees to Buyer at PDMPAccountsPayable@Acosta.com within thirty (30) days of completion of the services. Seller shall include the correct Buyer purchase order number on each invoice. Buyer shall pay all undisputed amounts within thirty (30) days of Buyer’s receipt of each invoice. Seller agrees that Buyer shall not be required to pay any invoices submitted by Seller more than sixty (60) days following the date that the Services were completed by Seller. Seller acknowledges and agrees that any terms or conditions contained within any Seller invoice shall not supersede the terms and conditions herein.
5. Delivery. The production time is only an estimate of when the product will be shipped. Seller assumes no liability for loss, damage or consequential damage due to delays. Seller reserves the right to make delivery in installments (including both advance shipments and back orders) unless Buyer expressly states otherwise in Buyer’s purchase order. All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Delivery of an installment shall not relieve Buyer of its obligation to accept remaining deliveries. Seller shall be excused for any delay in performance or delivery due to acts of God, war, terrorism, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, quarantine restrictions, factory conditions, strikes, labor disputes, delays in transportation, shortage of transport vehicles, labor or materials, or any circumstance or cause beyond the control of Seller in the reasonable conduct of its business. Seller further reserves the right, upon receiving approval from Buyer in each instance, to allocate inventories and current production and to substitute suitable materials when, in its opinion, circumstances warrant such allocation or substitution.
6. Proprietary Information; Ownership. Nothing contained in these T&Cs and any PO shall convey any rights, title, interest or ownership to Seller of any of Buyer’s intellectual property or any intellectual property provided by a third party to Buyer. Further, Seller shall not display or use for advertising purposes any material developed under a PO without the express prior written consent of Buyer. Such consent may be withheld in Buyer’s sole discretion. Except for pre-existing intellectual property owned by Seller, as evidenced by Seller’s written records, Buyer shall own all right, title, and interest in and to all work product that is conceived, written or created by Buyer’s employees, alone or jointly with third parties, in connection with any PO (“Work Product”). Seller agrees to assign to Buyer all inventions, copyrights, patents, trade secrets, and other proprietary rights therein (including renewals thereof) (“Intellectual Property Rights”) developed in the performance of services, except as otherwise set forth in these T&Cs or the applicable PO. Seller agrees to provide all assistance reasonably requested by Buyer in the establishment, preservation and enforcement of Buyer’s rights in the Work Product and Intellectual Property Rights. Seller acknowledges and agrees that Seller shall not use any video, photograph or other material, media or otherwise, created by Seller for Buyer without the prior express written consent of Buyer. Such consent may be withheld in Buyer’s sole discretion.
7. Non Solicitation. For the duration of the applicable PO and for eighteen (18) months thereafter, Seller will not directly or indirectly solicit, for Seller’s competitive business purpose, those clients and customers of Buyer that are not currently or within the year prior to execution of the applicable PO engaged in business with Seller. Seller shall notify Buyer immediately should any Buyer client solicit and/or engage Seller’s services directly.
8. Warranty. Each Party represents and warrants to the other Party that (a) it has the full power and authority to enter into these T&Cs and the corresponding PO and (b) the execution, delivery and performance of these T&Cs shall not result in the breach of, or constitute a default under, or violate any provision of, any agreement or other instrument to which such Party is a party. In addition, Seller represents and warrants that (a) it is authorized to perform the services and its obligations and the services shall be performed in a professional, timely, diligent, and workmanlike manner in accordance with recognized industry standards and in accordance with all applicable laws, rules or regulations, (b) Seller and each of its agents, employees, subcontractors or representatives satisfy all of the training, certification and/or licensing requirements for the jurisdiction in which the services are being provided, (c) Seller’s performance of the services shall not infringe upon the intellectual property rights of any third party, and (d) Seller will be fully responsible and liable for all acts, omissions, and services performed by any of Seller’s representatives, including any subcontractor.
9. Remedies. IF SELLER BREACHES THE WARRANTY PROVIDED TO THE BUYER, AND THE CONDITIONS FOR THE APPLICABILITY OF THE WARRANTY ARE MET, SELLER SHALL, AT ITS OPTION, EITHER REPLACE OR REPAIR THE NONCONFORMING GOODS OR REFUND ALL AMOUNTS PAID BY THE BUYER TO SELLER FOR SUCH GOODS. The sole purpose of this remedy is to provide the Buyer with the repair or replacement of goods or, at Seller’s option, to refund the price paid by the Buyer hereunder. This remedy shall not be deemed to have failed of its essential purpose so long as Seller is willing to take one of those actions.
10. Indemnification; Limitation of Liability. To the maximum extent allowed by law, Seller must defend and indemnify Buyer, Buyer’s client, and their respective affiliates, directors, officers, representatives, employees and agents (each, an “Indemnitee”), against all costs, expenses, liabilities, losses, demands (whether rightful or baseless), damages, injuries (including death, actions, cause of action, suits, proceedings, judgments and expenses, including reasonable attorneys’ fees and court costs, and claims (collectively, “Claims”) arising out of or related to (a) any breach by Seller of any provision hereof or the inaccuracy of any warranty or representation made by Seller in these T&Cs and the applicable PO; (b) any Claims from Seller’s affiliates, agents, employees, directors, officers, subcontractors or representatives arising out of or related to the services, including, without limitation, Seller’s failure to pay; (c) any act or omission to act by Seller or Seller’s affiliates, agents, employees, directors, officers, subcontractors or representatives related to the performance of these T&Cs and any applicable PO(s); (d) the use of Content or the Materials, or (e) the Services. Seller shall and hereby agrees to indemnify, defend, reimburse, and hold harmless Buyer, Buyer’s Client and their respective affiliates, agents, employees, directors, officers and representatives (each, an “Indemnitee”), from and against any and all claims, demands (whether rightful or baseless), liabilities, losses, damages, injuries (including death), actions, causes of action, suits, proceedings, judgments and expenses, including reasonable attorneys’ fees and court costs (collectively, “Claims”), arising out of or related to: (a) any breach by Seller of any provision hereof or the inaccuracy of any warranty or representation made by Seller in these T&Cs and the applicable PO(s); (b) any Claims from Seller’s affiliates, agents, employees, directors, officers, subcontractors or representatives arising out of or related to the Services, including, without limitation, Seller’s failure to pay; (c) any act or omission to act by Seller or Seller’s affiliates, agents, employees, directors, officers, subcontractors or representatives related to the performance of these T&Cs and the applicable PO; (d) the use of Content or the Materials, or (e) the Services. Within five (5) business days after receipt of such notice of any Claim, Seller shall undertake the defense of each such Claim with counsel reasonably satisfactory to and approved by Buyer. If Seller fails to undertake and sustain the defense of any Claim in the manner required by these T&Cs, Buyer may engage separate counsel, pay, settle, or otherwise finally resolve such Claim for the account and at the risk and expense of Seller. Seller may not settle any Claim without the prior written consent of Buyer. If Seller undertakes the defense of a Claim in the manner required by this Section 10. Buyer may, at its own expense, engage separate counsel and participate in the defense of any Claim brought against it. IN NO EVENT SHALL BUYER BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES FOR ANY CLAIM (INCLUDING BUYER’S NEGLIGENCE) ARISING OUT OF THESE T&CS OR ANY PO, REGARDLESS OF THE CAUSE OF ACTION AND EVEN IF BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Confidentiality. During the term of a PO, the Parties may become privy to non-public confidential or proprietary information of the other Party with respect to such other Party’s business, products, research and development, services, contracts, and its clients, customers, independent contractors, employees, Sellers and other business relations, including information concerning such other Party’s intellectual property rights, business and management methods and techniques, market information and analysis, financial reports and statements, instruction manuals, know-how, strategic plans, technology and trade secrets, and with respect to Buyer, its clients’ products, services, marketing campaigns and events (collectively, “Confidential Information”). All Work Product is deemed to be Confidential Information of Buyer. During the term of a PO and thereafter, neither Party shall, and each Party shall cause its affiliates, agents, employees, subcontractors and representatives not to, disclose, divulge, use or make available any of the Confidential Information of the other Party to any entity or person (a) without the other Party’s prior written consent, or (b) in connection with any activity or business other than that of the other Party; provided, however, that this provision shall not apply to information that (i) is part of the public domain; (ii) was demonstrably in the possession of the receiving Party prior to its disclosure; (iii) is hereafter acquired by the receiving Party through a third party under no obligation of confidence, (iv) is independently developed by the receiving Party without the benefit or use of the other Party’s information as evidenced by such receiving Party’s written records, or (v) which is required to be disclosed by law or court order. Seller and Seller’s affiliates, agents, employees, subcontractors and representatives shall not, without the prior written consent of Buyer in each instance, make any public announcement (including any online announcement or social media post) which identifies, relates to, or otherwise gives publicity to Buyer, Buyer’s clients or the agreement between the Parties.
12. Force Majeure. Notwithstanding anything to the contrary previously agreed upon between the parties, in the event that either party reasonably believes it is impossible or inadvisable to perform the services set forth herein due to reasons beyond Buyer or Seller’s control, including but not limited to epidemic, pandemic, virus or other health outbreak/hazard, which includes Coronavirus (COVID-19), or if due to quarantine restriction (self or governmental imposed) or other public health restriction or advisory, or delay or failure of, technical facilities; failure or substantial and extraordinary delay of necessary transportation services; war conditions; emergencies; and inclement weather or act of God (“Force Majeure Event”), either party shall have the right to terminate the applicable PO(s) or suspend Seller’s performance of Seller’s services until such time that the parties reasonably agree that Seller can resume. Any termination or suspension hereunder shall be made via written notice to the other party (“Force Majeure Notice”). In the event of such suspension, Seller will promptly (but in any event within ten (10) days of the delivery of the Force Majeure Notice) reimburse Buyer for any sums paid to Seller in excess of the cost of any services performed and any previously approved non-cancellable expenses, including any deposits. Seller shall take all commercially reasonable actions to minimize the consequences of Force Majeure, including but not limited to costs of any third parties engaged in connection with the services provided hereunder.
13. Attorneys’ Fees. In the event of a dispute arising under or related to these T&Cs, whether or not a lawsuit or other proceeding is filed, the prevailing party shall be entitled to recover its attorneys’ fees and costs, including attorneys’ fees and costs incurred in litigating entitlement to and the amount of attorneys’ fees and costs.
14. Governing Law. The execution, validity, interpretation, construction and performance hereof is governed by, and must be construed in accordance with, the internal laws of the state of Florida, without regard to its conflicts of law provisions, including without limitation the Uniform Commercial Code. Buyer and Seller irrevocably consent to the venue of the courts having situs within Duval County, Florida and consent and submit to the jurisdiction of any court located within such county. The U.N. Convention on Contracts for the International Sales of Goods does not apply. THE PARTIES HEREBY INTENTIONALLY, KNOWINGLY AND VOLUNTARILY WAIVE ALL OF THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY IN ANY PROCEEDING BROUGHT TO ENFORCE OR DEFEND ANY PROVISION CONTAINED IN THESE T&CS. THIS WAIVER EXTENDS TO ALL CLAIMS OR CAUSES OF ACTION WHICH ARISE OUT OF THE SAME COMMON OPERATIVE NUCLEUS OF FACTS AS ANY CLAIM OR CAUSE OF ACTION WITHIN THE SCOPE OF THESE T&CS AND ANY APPLICABLE POS.
15. Assignment, Successors and Assigns. Buyer may assign or subcontract its rights and obligations hereunder. Seller may not assign any interest herein or delegate any obligation hereunder. These T&Cs shall be binding upon the parties’ successors and permitted assigns.
16. Entire Agreement. These T&Cs comprise the complete and final agreement between the Parties and supersede all prior negotiations, proposals, representations, commitments, understandings or agreements between Seller and Buyer, either written or oral, on its subject. No other agreement, quotation or acknowledgment in any way purporting to modify any of the terms hereof is binding upon Buyer unless made in writing and signed by Buyer’s authorized agent. These T&Cs may not be altered or modified except by written agreement of Seller and Buyer. Any other representations or warranties, statements, models, samples, affirmations, descriptions or advice made by any person, including employees or other agents of Buyer, that are inconsistent herewith must be disregarded by Seller and are not binding upon Buyer. The waiver by Buyer of any breach by Seller of any provision hereof shall not be construed to be either a waiver of the provision itself as to subsequent application or any other provision hereof.
17. Severability. If any provision of these T&Cs is held by a court of competent jurisdiction to be contrary to law or public policy, the remaining provisions of these T&Cs shall remain in full force and effect.
18. No Presumption Against Drafter. The Parties agree that, despite any legal presumption or common law doctrine to the contrary, these T&Cs shall not be construed against the drafter as both Parties have had the opportunity to review and accept the provisions contained in these T&Cs.