These Thorns Vendor Terms (“Terms”) govern the provision of services (“Services”) and products (including materials, products, deliverables, and all other tangible results of services) (“Products”) provided by the entity identified as ‘Supplier’ (“Supplier”) on the purchase order, proposal or similar documents (the “PO”) to the Thorns entity identified on the PO (“Thorns”).
1. General
1.1. Acceptance of Terms. Commencement of Services or delivery of Products by Supplier shall constitute agreement to the Terms.
1.2. Rejection of Inconsistent Supplier Terms. Thorns rejects any terms contained in any proposal, quotation, acknowledgment, invoice, or other communication of Supplier inconsistent with these Terms.
2. Performance
2.1. On-Time Performance. Supplier shall provide the Services and deliver the Products on-time, in accordance with delivery locations and instructions specified by Thorns. Time is of the essence as to the provision of Services and delivery of Products. If Supplier is unable to provide the Services or deliver the Products on-time, Supplier will promptly notify Thorns and assign additional resources as needed to meet the required date.
2.2. Delivery of Products.
(a) Expedited Delivery. With respect to Products that Supplier is unable to deliver on-time, upon Thorns’s request, Supplier will deliver the affected Products using priority freight delivery (at Supplier’s expense).
(b) Delivery Terms. Products will be delivered DDP (designated location as specified by Thorns), with title and risk of loss transferring from Supplier to Thorns at the designated delivery location. “DDP” means delivered duty paid as defined by the International Chamber of Commerce in its publication “Incoterms 2020; ICC Official Rules for the Interpretation of Trade Terms.”
2.3. Acceptance. If Thorns determines, in its sole discretion, that the Services or Products do not comply with the Terms (including the Specifications), Thorns may reject the non-conforming Services and Products. Upon rejection, Supplier will, at Thorns’s option, promptly: (a) correct any failure as soon as practicable (or such other time period agreed in writing); (b) refund the full amount paid for the rejected items, plus any inspection, test, and transportation charges paid by Thorns; or (c) replace such rejected items. Payment of invoices will not be deemed acceptance of Services or Products.
2.4. Adjustments and Cancellation. Thorns may reschedule, redirect, or cancel all or part of the PO at any time without charge and without incurring any liability to Supplier. Upon cancellation, Supplier will, to the extent and at the times specified by Thorns, stop all work on the Services or Products (or designated portions thereof) that have been cancelled, incur no further costs, and protect all property in which Thorns has or may acquire an interest (and will provide all such property to Thorns upon request). Thorns will not be responsible for any costs in connection with cancelled Services or Products except for payment for the portion of Services provided and Products delivered, and accepted, in accordance with these Terms prior to notice of cancellation.
2.5. Labeling. Thorns may specify any labeling of Products (e.g., 'Thorns Work Product - Thorns Confidential', etc.). Supplier may not print any labels, trade names, trademarks, mascot or logos on Products without Thorns's prior written consent.
3. Personnel & Resources
3.1. Required Resources. Supplier will provide all personnel, equipment, software, materials, and other resources necessary to provide the Services and Products.
3.2. Management of Supplier Personnel. Supplier is solely responsible for managing any Supplier Personnel (e.g., hiring, firing, designating where and when Supplier Personnel perform Services, work assignments, practices, policies and procedures, and ensuring compliance with all applicable laws and regulations). “Personnel” means officers, directors, agents, consultants, contractors, and employees of Supplier or Thorns, as the case may be.
3.3. Support. Supplier shall provide, at no cost to Thorns, all technical, operational, and informational support relating to the Services and Products that Thorns deems necessary to use the Services or Products.
3.4. Subcontractors. Supplier may subcontract the performance of its obligations under the PO to an entity (a “Subcontractor”) provided that, with respect to each Subcontractor, Supplier: (a) first obtains Thorns’s written consent; and (b) has entered into agreements sufficient to ensure such Subcontractor’s compliance with the Terms (including the confidentiality requirements in Section 5 (Confidentiality) and Section 7 (Intellectual Property)). Supplier shall be directly liable for and shall indemnify and hold Thorns harmless from and against any liabilities, losses, damages, costs, and expenses, including reasonable attorneys’ fees, incurred by Thorns related to any breach of these Terms by a Subcontractor.
4. Payment
4.1. Pricing.
(a) General. The price charged for Services or Products shall be the lowest of: (i) the price specified on the PO; (ii) the price agreed by Thorns and Supplier in writing; or (iii) the lowest price otherwise proposed by Supplier to Thorns (for example, Supplier’s quoted price on the date Thorns submits the PO).
(b) Blanket Purchase Orders. If Thorns issues Supplier a Blanket PO, Supplier shall provide the Services or Products subject to the pricing agreed in writing between Thorns and Supplier at the time the Blanket PO is issued. Supplier is not authorized under any Blanket PO to modify the scope of Services, provide any additional Products, or to charge any more for Services or Products than as agreed in writing at the time the Blanket PO was issued, and Thorns will not be required to pay any unauthorized amounts. “Blanket PO” means a PO that authorizes Supplier to provide recurring Services or Products resulting in multiple Thorns payments over a period of time as may be specified on the PO.
4.2. Invoices. Supplier shall invoice Thorns for Services that have been provided and Products that have been delivered in accordance with the Terms. Supplier shall ensure that invoices submitted include accurate and complete information (including all supporting documentation Thorns requests to substantiate payments). Supplier will submit invoices as directed by Thorns.
4.3. Payment. Upon receipt of each valid, correct, and undisputed invoice, payment is due and payable for the invoiced amount within the timeframe identified on the PO or net 60 days if not otherwise stated on the PO. The Thorns entity identified on the PO is the sole Thorns entity responsible for payment. No interest or late fees shall be applied unless otherwise agreed upon in writing (excluding in any of Supplier’s standard terms).
4.4. Early Payment. Supplier may elect to be paid early on an invoice-by-invoice basis, or permanently, in exchange for providing a discount to Thorns (which will be applied against the invoice gross value). If Supplier elected to be paid early permanently and has a debit balance (i.e., Supplier owes Thorns), Thorns may (i) take the early payment discount on all amounts payable by Thorns until such balance is resolved and (ii) offset any amounts payable by Thorns against such debit balance.
4.5. Late Invoices. Failure to submit a correct invoice for amounts owed by Thorns within sixty (60) days after the event giving rise to the payment is a waiver by Supplier of Thorns’s liability for the amounts due.
4.6. Costs. Supplier is solely responsible for all costs incurred in connection with providing the Services and Products.
5. Confidentiality
5.1. General. Supplier shall maintain the confidentiality of Thorns Confidential Information and may disclose Thorns Confidential Information only to Supplier Personnel who have a need to know such Thorns Confidential Information in order for Supplier to provide the Services and Products and who are bound by a written agreement with Supplier that is at least as protective of Thorns’s Confidential Information as provided herein. Supplier shall use a reasonable degree of care to protect Thorns Confidential Information and shall not disclose Thorns Confidential Information to any third party without Thorns’s prior written consent in each instance. Supplier may disclose Confidential Information to the extent it is required by law if it makes reasonable efforts to provide prior notice to Thorns and seeks protective treatment of Confidential Information. Supplier shall not use Thorns Confidential Information for any purpose except to provide the Services and Products and otherwise perform Supplier’s obligations hereunder. Supplier shall promptly notify Thorns upon discovery of any unauthorized use or disclosure (or reasonably suspected unauthorized use or disclosure) of Thorns Confidential Information by Supplier or any Subcontractor. Supplier shall return or destroy all Thorns Confidential Information within three (3) days of Thorns’s request. “Thorns Confidential Information” means the existence and subject matter of the PO, all Personal Data collected, accessed, maintained, used, processed or transferred by or to Supplier under the PO, and any other nonpublic information or material disclosed by Thorns to Supplier in connection with the PO, including information Supplier learns from Thorns Personnel, through the inspection of Thorns property, or that would reasonably under the circumstances be understood to be confidential information.
5.2. No Press Release or Publicity. Supplier shall not issue, procure, or permit any third party to issue a press release or other publicity regarding Thorns or its Related Entities, or the PO or its subject matter, without Thorns’s prior written consent. “Related Entities” means any business entity that controls, is controlled by, or is under common control with an entity, where “control” means that the entity possesses, directly or indirectly, the power to direct the management policies of the other entity (whether through ownership of voting securities, an interest in registered capital, by contract, or otherwise).
5.3. Exclusions. For the avoidance of doubt, nothing in these Terms shall restrict the right of Supplier Personnel (or Supplier if providing Services or Products to Thorns in his, her, or their individual capacity) to (a) speak freely about their wages or hours, or about employment terms and working conditions, including harassment, discrimination, or any other conduct Supplier or Supplier Personnel has reason to believe is unlawful or (b) disclose information to a federal, state, or local government or agency, where such disclosure is necessary in order to report matters Supplier or Supplier Personnel has reason to believe are a violation of federal, state, or local law. For the avoidance of doubt, Supplier or Supplier Personnel, as applicable is not required to notify Thorns when making permitted disclosures as provided under clauses (a) and (b) above.
6. Software and Cloud Services
6.1. License Grant. Supplier, on behalf of itself and its Related Entities, hereby grants to Thorns and its Related Entities a nonexclusive, irrevocable, transferable (to Thorns Related Entities), perpetual (except where a specific term is identified on the PO), paid-up (subject to payment of fees in accordance with any payment schedule agreed in writing), royalty-free, worldwide license to use, import, reproduce, display, perform, distribute, modify, prepare derivative works of, disclose (as necessary), and otherwise exploit the Software and Documentation, and to have others exercise such rights on Thorns’s behalf. “Software” means all software provided by Supplier in connection with the PO, including all firmware, scripts and Updates. “Documentation” means all user guides, manuals, installation instructions, and other written materials provided by Supplier in connection with the Software or the Cloud Services (defined below). “Updates” means updates, bug fixes, patches, enhancements, upgrades, and new versions of or to the Software or the Cloud Services. Thorns and Supplier may modify Thorns’s license under this Section in accordance with Section 12.11 (Modification).
6.2. Limitations. Thorns shall not decompile, reverse engineer, disassemble, or otherwise attempt to derive Source Code for the Software, except as permitted by law. Thorns shall not remove, obscure, or alter Supplier’s copyright notice, trademarks, or other proprietary rights notices affixed to or contained within the Software or Documentation and shall reproduce all titles, trademarks, and copyright and restricted rights notices in any copies of the Software and Documentation. “Source Code” means human-readable computer code, including related programmer comments and procedural language.
6.3. Cloud Services.
(a) General. All cloud services (including software-as-a-service, platform-as-a-service, and infrastructure- as-a-service), Updates, and Documentation that Supplier provides to Thorns or any entity or individual authorized by Thorns to use such services, Updates, and Documentation (the “Cloud Services”) will be provided in accordance with this Section 6.3. Each Cloud Service is a Service as defined in the Terms.
(b) Thorns Data. All data entered, stored, transmitted, or processed by Thorns using the Cloud Services and all data generated or derived from such data (collectively, the “Thorns Data”) shall be deemed Thorns Confidential Information. The Cloud Services shall not contain, and Supplier shall not insert into the Cloud Services, any software designed to damage, prevent Thorns’s access to, or erase any Thorns Data stored or contained in the Cloud Services or require action or intervention by Supplier to allow Thorns’s use of the Cloud Services as permitted under the Terms. In addition, upon request by Thorns at any time, including upon expiration or termination of the Cloud Services, Supplier will, at no charge to Thorns, provide to Thorns, or enable Thorns itself to extract, all Thorns Data contained in the Cloud Services in the form and format and with the technological means requested by Thorns.
(c) Service Levels. Supplier shall provide the Cloud Services in accordance with the Specifications, including any uptime requirements, incident response times, maximum or average times to repair, reporting, or any other service levels set forth therein, or if not identified in the Specifications, in accordance with industry best practices.
(d) Maintenance and Support. In addition to Supplier’s general support obligations set forth in the Terms, Supplier will provide business continuity and disaster recovery for the Cloud Services in accordance with the Specifications, or if not identified in the Specifications, in accordance with industry best practices.
6.4. Click-Wrap. Any “click-wrap” agreement, terms of use, electronic acceptance, order confirmation, or other terms that a user may be required to acknowledge or accept or that is otherwise displayed or accessible to a user when downloading, receiving, using, or otherwise accessing the Services or Products or any portion thereof, are of no force and effect as between Thorns (and any entity or individual authorized by Thorns to use the Services or Products) and Supplier.
7. Intellectual Property
7.1. Definitions.
(a) “Intellectual Property Rights” or “IPR” means any and all current and future rights in copyrights, trade secrets, trademarks, mask works, patents, design rights, trade dress, right of privacy or publicity, moral rights, and any other intellectual property rights that may exist anywhere in the world, including, in each case, whether unregistered, registered, or comprising an application for registration, and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of the foregoing.
(b) “Project IPR” means all Intellectual Property Rights created, discovered, or developed in the performance of the Services or development of Products for Thorns under the PO, or otherwise created, discovered, or developed using Thorns Confidential Information.
(c) “Supplier Background IPR” means all rights, title, and interest in and to IPR that Supplier acquired, created, discovered, or developed at any time separately and independently of work performed for Thorns (including under the PO).
7.2. Ownership of Project IPR. Thorns shall own all right, title, and interest in and to any Project IPR, subject to any Supplier Background IPR embodied therein. Supplier hereby grants and assigns to Thorns, without reservation, all ownership rights, title, and interest it may have in and to any Project IPR.
7.3. License. Supplier, on behalf of itself and its Related Entities, hereby grants to Thorns a non-exclusive, irrevocable, perpetual, paid-up, royalty-free, worldwide license to use, sell, offer to sell, import, reproduce, display, perform, distribute, modify, prepare derivative works of, disclose (as necessary) and otherwise exploit the Products (including Software in the Products) and Services for any purpose, to practice any method or process in connection with the foregoing, and to have others exercise such rights on Thorns’s behalf.
7.4. Restrictions. Supplier may only use Intellectual Property Rights owned by Thorns and Thorns Confidential Information to the extent required for the performance of Supplier’s obligations under the PO and in compliance with the Specifications.
7.5. Assistance. Supplier shall (a) cooperate with Thorns to ensure the timely and effective patent prosecution of Project IPR, (b) agrees to execute any documents, obtain all necessary rights from its Related Entities and Supplier Personnel, and (c) provide any assistance, reasonably requested by Thorns to enable Thorns to secure, perfect, register, or enforce any Intellectual Property Rights in such Project IPR. Thorns and Supplier acknowledge and agree that they have a common legal interest in protection of the Project IPR and that neither party waives any privilege (or other applicable protection from disclosure) by sharing information pursuant to this provision.
7.6. Creative Works.
(a) Limitations. With respect to video content, audio content, graphic designs, artwork, and other similar creative content Products (excluding software and other underlying technology) (“Creative Works”) for which Supplier has retained ownership of the underlying copyright rights, Thorns and Supplier may agree to limit Thorns’s license under Section 7.3 (License), with respect to such copyright rights, regarding the duration of use, territory of use, type of use, or permitted media, solely by specifying limitations to the license in accordance with Section 12.11 (Modification).
(b) Releases and Clearances. Supplier shall obtain all third-party releases and licenses necessary for Thorns to exploit the Creative Works consistent with the rights granted by Supplier under the Terms and shall pay all expenses, royalties, and fees in connection therewith (including as relates to any union or collective bargaining obligations).
(c) Moral Rights. Supplier acknowledges the existence of statutory moral rights under certain U.S. and foreign laws (e.g., 17 U.S.C. § 106(a) of the U.S. Copyright Act 1990 and droits moraux under laws of certain other nations). To the extent permitted by law, Supplier hereby waives, and to the extent required shall obtain third party waiver of, all such rights with regards to any and all use of Creative Works in connection with services or products of Thorns and its Related Entities.
8. Warranties
8.1. General Warranties. Supplier represents and warrants that: (a) Supplier has the right to grant the rights and licenses contained herein and Supplier’s performance hereunder will not cause Supplier to breach any other agreements; (b) all specifications and other documentation provided by Supplier are complete and accurate; (c) the Services and Supplier’s performance under the PO will conform to all Specifications, comply with all applicable laws and regulations, and will be conducted in a professional and workmanlike manner with a degree of skill, care and timeliness consistent with best industry practices; and (iv) with respect to Project IPR, Supplier has entered into a binding contract with all employees, individuals, and Subcontractors involved in the development to enable the Project IPR to be vested in and assigned to Thorns. “Specifications” means the most current version of all specifications and requirements (including schedules) applicable to any Service or Product that Thorns may provide from time to time, and any other descriptions provided by Supplier and approved in writing by Thorns.
8.2. Product Warranties. Supplier represents and warrants that: (a) prior to delivery, Supplier has full and warrantable title to the Products, which will be delivered free and clear of liens and encumbrances; (b) the Products will not be misbranded or falsely labeled, advertised, or invoiced; (c) the Products do not infringe any Intellectual Property Rights of a third party, and no fees or royalties shall be due from Thorns with respect to use of such Products; (d) the Products are new and comprised of new materials when delivered; (e) the Products are safe for any use that is consistent with the Specifications or that is reasonably foreseeable; (f) during the Warranty Period, the Products will conform to the Specifications and be merchantable and free from defects; (g) Supplier has, with respect to all third- party technology used in the Products, obtained all necessary rights from the third party to permit Thorns to use such technology in accordance with the Terms, without payment of any royalties or other payments to such third party or any other restrictions; (h) the Software does not contain any viruses, malware, or other harmful code; and (i) the Software does not contain any Open Source Software unless Thorns has given its prior written authorization otherwise. “Warranty Period” means the period that is three years from the date of delivery of the Products. “Open Source Software” means any software or derivative thereof that is subject to: (i) a requirement that it is to be distributed or made available in source code; (ii) a requirement that any patents related to the software are either licensed to or may not be asserted against recipients of the software; (iii) a requirement to include licensor attribution(s); or (iv) any license meeting the Open Source Definition (as promulgated by the Open Source Initiative), the Free Software Definition (as promulgated by the Free Software Foundation), or any substantially similar license, including the GNU General Public License (GPL), Lesser/Library GPL (LGPL), the Mozilla Public License (MPL), the Apache License, the BSD license, or the MIT license.
8.3. Remedies. For Services and Products that fail to comply with the warranties set forth in Section 8.1 (General Warranties) or Section 8.2 (Product Warranties) above, Supplier shall promptly, at Thorns’s option, and in addition to any other remedy available at law or equity: (a) correct or replace the Services or Products as soon as practicable (or such other time period agreed in writing); (b) re-perform the Services; or (c) accept the return of and refund any amounts paid for the defective or non-conforming Services and Products (plus any inspection, test, and transportation charges).
9. Indemnity
9.1. Indemnity. Supplier shall indemnify and hold Thorns, Thorns Related Entities, and Thorns Personnel harmless, and at Thorns’s request, defend Thorns, Thorns Related Entities, and Thorns Personnel, from and against all costs, damages, and fees (including attorney and other professional fees) attributable to claims or allegations that: (a) the Services, Products, or other performance of obligations under the PO, or any portion thereof, on their own or in combination with other services and products, or the use of the foregoing by Thorns, infringe any third-party’s Intellectual Property Rights; (b) the Services, Products, or other performance of obligations under the PO caused personal injury or property damage; (c) arise or are alleged to have arisen as a result of negligent or intentional acts or omissions of Supplier or Supplier Personnel, or a breach by Supplier of any of these Terms; (d) relate to the transfer of Supplier Personnel to Thorns or any other future service provider pursuant to any provision implementing the Acquired Rights Amendment Directive (2001/23/EC) or similar legislation; or (e) relate to Supplier Personnel and results from an act or omission by Supplier, including that Supplier Personnel has not received the payment of any wages, statutory benefits, worker’s compensation insurance (or the local equivalent), or other compensation, including statutory penalties or interest, or that Supplier Personnel are in any way employees of Thorns (“Covered Claims”).
9.2. Assistance and Settlements. Supplier shall provide all reasonable assistance, at Supplier’s expense, to Thorns or its counsel in relation to the defense, remedy, or mitigation of any Covered Claim. Supplier shall not, without Thorns’s prior written consent, make any admissions of liability, enter into any settlement that imposes any obligation on Thorns, or publicize any settlement details relating to Thorns.
9.3. Duty to Correct. If a third party claims that the Services or Products infringe any Intellectual Property Rights, Supplier shall, in addition to its other obligations under this Section 9, promptly notify Thorns in writing of such claims and, at its own expense, exercise one or more of the following remedies in coordination with Thorns and at a time and in a manner that will avoid any risk of interruption of Thorns’s business: (a) obtain from such third-party rights to enable Supplier to perform its obligations under the PO; (b) modify the Services or Products so they are non-infringing and in compliance with the PO; (c) replace the Products with non-infringing versions that comply with the requirements of the PO; or (d) at Thorns’s request, accept the cancellation of infringing Services and Products and refund any amounts paid.
10. Termination
10.1. Termination for Cause. Either party may terminate the PO following written notice if the other party: (a) materially breaches any of its obligations hereunder and such breach is not cured (if capable of cure) within thirty (30) days after the date notice was provided; or (b) becomes insolvent, makes an assignment for the benefit of creditors, or files for or is the subject of a petition in bankruptcy. If Supplier believes that it is about to become or becomes insolvent, is or is about to become subject to a petition in bankruptcy, or misses any debt payments, it shall provide immediate notice (i) by email and overnight courier to its Thorns contact, and (ii) by overnight courtier to Thorns LLC, Attn. Office of the General Counsel, 450 Newport Center Drive, Suite 650, Newport Beach, CA 92660, United States.
10.2. Survival. The provisions herein, which by their nature should remain in effect beyond termination of the PO, will survive until fulfilled, including Section 4 (to the extent payments are outstanding) and Sections 5-12.
10.3. Transition Services. At Thorns’s request, upon expiration or termination (for any reason) of Supplier’s provision of any Services or Products (including upon any expiration or termination of any PO), Supplier will continue to provide, at a fee (prorated as applicable) not to exceed the agreed upon fees in effect immediately prior to such expiration or termination, the same Services or Products, including all corresponding licenses and support, at no less than the levels and volumes provided immediately prior to expiration or termination, for a period of up to one (1) year following the date of such expiration or termination.
11. Additional Requirements
11.1. Compliance with Laws. Supplier shall comply with all applicable laws and regulations in performing its obligations under the PO, including all applicable employment, labor, and human rights, data privacy, health and safety, tax, customs, import, export control, and environmental laws and regulations.
11.2. Ethics and Business Conduct. Supplier shall comply with all applicable laws and regulations enacted to combat briberyand corruption, including the United States Foreign Corrupt Practices Act, and any corresponding laws in the country where business or Services are taking place pursuant to the PO. Supplier shall not, directly or indirectly through a third party, offer, pay, or promise to pay anything of value to any person, including any employee or official of a government, government-controlled enterprise or company, or political party, for the purpose of improperly influencing a decision, obtaining any improper benefit, or obtaining, retaining, or directing business.
11.3. Data Security. Supplier shall comply with the latest version of the Thorns Information Security and Data Privacy Requirements (the “ISDP”). If Supplier obtains information relating to identified or identifiable individuals (“Personal Data”), Supplier and any Supplier Personnel providing Services or Products, will collect, access, maintain, use, process, and transfer Personal Data solely for the purpose of meeting Supplier’s obligations under the PO and in compliance with the ISDP.
11.4. Thorns Equipment. If Thorns provides Supplier with any Thorns equipment, Supplier shall hold the equipment as a bailee only and will not permit any lien or other encumbrance to be placed against it while in Supplier’s care, custody, or control. Thorns retains ownership of such equipment. Under no circumstances will Supplier move the equipment from the location designated by Thorns without Thorns’s prior written consent, or deny Thorns Personnel access to the equipment. Immediately upon Thorns’s request, Supplier will deliver the equipment to Thorns ‘Ex Works’ (Supplier’s facility). Supplier agrees to return the Thorns equipment to Thorns in the same condition as it was provided to Supplier, except for normal wear and tear. Supplier will be responsible for physical loss of, or damage to, the equipment while in the care, custody, or control of Supplier. Supplier agrees to use the equipment solely for Thorns’s benefit in connection with the performance of Supplier’s obligations to Thorns. Supplier will not use or permit others to use the equipment for any other purpose. The equipment is provided to Supplier “as is” and Thorns disclaims all warranties, express or implied, including the implied warranties of merchantability and fitness for a particular purpose.
11.5. Insurance and Loss Prevention. Supplier shall maintain health, auto, workers' compensation, unemployment compensation, disability, general liability, errors and omissions, and other insurance, as required by law or common practice in Supplier’s industry, whichever affords greater coverage, together with adequate coverage (on a replacement cost basis) for any Thorns property under the care, custody, or control of Supplier. Upon request, Supplier shall provide Thorns certificates of insurance or evidence of coverage.
11.6. Taxes.
(a) General. Thorns is not liable for taxes that Supplier is legally obligated to pay (e.g., any applicable income taxes, withholding taxes, tax deductions, or the equivalent). Thorns may withhold any taxes it is required by law to withhold and pay such taxes to the appropriate taxing authority. In the event a reduced withholding tax rate may apply, Supplier shall provide to Thorns all documentation necessary to demonstrate that Supplier is qualified for the reduced rate. If the necessary documentation is not provided in a timely fashion before payment, Thorns shall withhold at the full rate. Upon reasonable request by Supplier, Thorns shall provide Supplier with documentation evidencing the payment of withholding tax. Thorns will pay any sales tax, use tax, value added tax, services and products tax, consumption tax, or equivalent which Supplier is required by law to collect from Thorns. If Thorns provides Supplier a valid exemption certificate, Supplier will not collect the taxes covered by such certificate. Supplier will provide valid tax invoices to Thorns to support any charges, consistent with the requirements of the relevant jurisdiction.
(b) Development Items. Services and Products that are provided during development and qualification have no intrinsic value in their tangible form. As such, no sales tax, use tax, value added tax, services and products tax, consumption tax, or equivalent have been assessed or are anticipated to be required as a result of the development or qualification of such Services and Products.
11.7. Information. Supplier shall provide to Thorns reports and data (in the form and format, and containing the content and details, as requested by Thorns) to enable Thorns to (a) monitor the Services and Products and (b) confirm compliance with all applicable laws and regulations.
11.8. Audits and Inspections. Supplier shall maintain all records, contracts, and accounts related to the Services and Products during the term of the PO and for three years thereafter. During the term of the PO and for three years thereafter, Thorns or an independent certified public accountant reasonably acceptable to Supplier may, at any time, audit Supplier’s records (including electronic records) and inspect Supplier’s facilities to verify that Supplier has complied with its obligations under the PO. Supplier shall promptly provide to Thorns or the auditor any information and documentation Thorns or the auditor may reasonably request in connection with such audit or inspection in the format requested. Supplier shall make Supplier Personnel who are knowledgeable of the relevant records and business practices available for such audit.
11.9. Assignment. Supplier shall not assign or transfer the PO, or any rights or obligations or other interest under the PO, in-whole or in-part, whether directly, indirectly, voluntarily, or involuntarily (“Assignment”) without Thorns’s prior written consent in each instance. Supplier shall promptly notify its Thorns contact by email and overnight courier of any Assignment. Any Assignment in violation of this Section shall be voided upon Thorns’s request.
12. Miscellaneous
12.1. Force Majeure. No party shall be liable for delay or failure to fulfill its obligations under the PO to the extent directly caused by an act of God that was unforeseeable, beyond its reasonable control, and not caused by its fault or negligence (a “Force Majeure Event”), so long as the non-performing party (a) provides notice to the other party promptly (but no later than five (5) days after becoming aware of the Force Majeure Event); (b) uses all reasonable efforts to avoid, remove, or mitigate the cause(s) of nonperformance including taking all steps necessary to minimize the impact of the Force Majeure Event; (c) with respect to Supplier, complies with any additional obligations agreed from time to time relating to business continuity commitments and Supplier’s obligations to Thorns in connection with a supply constraint; (d) suspends performance only for the period of time necessary as a result of such Force Majeure Event; (e) resumes performance as quickly as possible and (vi) continues performance of all obligations that are not excused by the Force Majeure Event. The notice referred to above must describe, in detail, the impact on performance and the plan to avoid, remove, or mitigate such causes of non-performance. The doctrines of impossibility and impracticability shall not apply to the PO. For the avoidance of doubt, Force Majeure Events will not include financial distress nor the inability of a party to make a profit or avoid a financial loss, changes in market prices or conditions, or a party's financial inability to perform its obligations.
12.2. Bankruptcy. In the event of any proceeding by or against either party under any law relating to bankruptcy, insolvency, or reorganization or relief of the debtors, all rights, licenses, and covenants granted hereunder will continue without termination, rejection, or avoidance by virtue of such proceeding. If a proceeding is instituted by or against either party under any law relating to bankruptcy, insolvency, or reorganization or relief of the debtors, the other party may retain and exercise all of its rights and elections under the U.S. Bankruptcy Code (including, to the extent applicable, the provisions of Section 365(n) of 11 U.S.C. § 101 (et seq.).
12.3. Governing Law. The PO and the rights and obligations of the parties shall be governed by and construed and enforced under the laws of the State of Delaware, without regard to its choice of law principles.
12.4. Dispute Resolution.
(a) Arbitration. Any dispute, claim, or cause of action arising out of or related to the PO shall be finally resolved by mandatory, confidential, final and binding arbitration before theJudicial Arbitration and Mediation Services (“JAMS”). The place of arbitration shall be Portland, Oregon, and the arbitration shall be conducted in English, without regard to conflict of laws principles. Any arbitral award shall be final and binding upon both parties. The parties shall keep the arbitration and documents related to it confidential, and judgment on the award may be entered in any court having jurisdiction.
(b) Provisional Relief. Nothing in this Section 12.4 (Dispute Resolution) shall prevent either party from seeking provisional measures from any court of competent jurisdiction, and any such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate; however, Supplier on behalf of itself and its Related Entities, covenants not to seek or enforce injunctive relief against (i) any service or product of Thorns or its Related Entities that incorporates or uses such Services or Products or (ii) any third party anywhere in the world to the extent that doing so would disrupt the development, production, marketing, promotion, or distribution of any service or product of Thorns or its Related Entities. The parties hereby waive any requirements for security for obtaining any provisional relief.
12.5. AI Models. Supplier may not use Thorns IPR or Thorns Confidential Information in connection with any AI Model, including, to directly or indirectly customize, train, or improve any AI Model, or for inferencing, without Thorns’s prior written consent provided pursuant to a separate signed agreement addressing the terms under which customization, training, or other improvements will occur and allocating the parties’ rights to and liabilities arising therefrom. “AI Model” means any artificial intelligence model (including a deep learning or machine learning model) used in connection with or incorporated into the Products or Services. Supplier will comply with all Thorns requirements related to the use of AI Models and the responsible use of artificial intelligence.
12.6. Construction. The section headings in the Terms are for convenience only and are not to be considered in construing or interpreting the Terms. The words “will” and “shall” are used in a mandatory, not a permissive, sense, and the word “including” is intended to be exemplary, not exhaustive, and will be deemed followed by “without limitation.” Unless explicitly stated otherwise, the phrase “in writing” may include email communication between authorized representatives of Thorns and Supplier.
12.7. No Waiver. No delay or failure to act in the event of a breach of the Terms shall be a waiver of that or any subsequent breach of any provision of the Terms. In addition, no waiver will be implied from conduct or failure to enforce or exercise rights under the Terms, nor will any waiver be effective unless in a writing signed by a duly authorized representative of a party claimed to have waived.
12.8. Remedies. No remedy hereunder is intended to be exclusive of any other remedies available at law or equity.
12.9. Severability. If a court of competent jurisdiction finds any provision of the Terms unlawful or unenforceable, that provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of the Terms will continue in full force and effect.
12.10. Complete Understanding. These Terms constitute the full and complete understanding and agreement of the parties relating to the subject matter hereof.
12.11. Modification. A modification of the Terms shall only be effective if (i) agreed in a writing signed by authorized representatives of Thorns and Supplier, (ii) specified by Thorns on the PO, or (iii) solely with respect to Software, Documentation and Creative Works, agreed by an Thorns employee at Director-level or above in an email exchanged with Supplier.
12.12. Conflict. In the event of any conflict in the documents referred to herein, the order of precedence will be: (a) the payment, quantity and delivery terms identified on the PO; (b) any other terms specified by Thorns on the PO; (c) any written agreement signed by authorized representatives of Thorns and Supplier (or their Related Entities) that covers the same subject matter as the PO; and (d) the provisions of these Terms (including as modified in accordance with Section 12.11 (Modification)).
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