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SONY PICTURES ENTERTAINMENT INC.
PURCHASE ORDER TERMS AND CONDITIONS
  1. NATURE OF ORDER. Sony Pictures Entertainment 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 supplies, machinery, equipment, software, etc., and may also be used to contract for maintenance, construction work or other services, both on and off the premises of the Purchaser, all of which, regardless of the type, 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, either in whole or in part. These purchase order terms and conditions supersede any so-called "shrink-wrap" 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 articles, material, or work 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 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. Except in the case where Seller is acting as a reseller of completed goods, Seller 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 the manufacture of such items, work and product shall comply) with all applicable federal, state and local laws, codes, regulations and rules of the country of origin and the country of destination (provided that in the event of conflicting requirements, the more stringent requirements shall apply). Seller's warranty shall be effective for a period of time set forth on the face of this Order. If no such schedule is set forth on the face of this Order, this warranty shall be effective for a period of one year from the date of receipt by Purchaser. 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 shipment of goods or 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 goods and services and to test goods 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. Regardless of the FOB point designated, title and risk of loss with respect to the 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. 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. 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 and hold the Purchaser, its agents, consignees, employees, and representatives harmless from and against all expenses, damages, claims, suits or liabilities of every kind whatsoever by reason, of arising out of, or in any way connected with, accidents, occurrences, injuries or losses to or of Purchaser or any person or property which may occur before or after acceptance of the completed items by the Purchaser, upon or about or in any way due to or resulting from in whole or in part, the preparation, manufacture, construction, completion, sale, delivery, use and/or maintenance of the items including such as are caused by any subcontractor of the Seller and excluding only such as are caused by the negligence of the 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. The Seller shall indemnify, defend and hold harmless the Purchaser from any and all claims for infringement of any patent, copyright, trademark or other intellectual property right, by reason of the manufacture, use, license or sale of the items and shall indemnity the Purchaser for any costs, expenses, liability and damages, including attorneys' fees, which the Purchaser may incur by reason of any alleged infringements. In addition to any indemnification as provided hereunder, if by virtue of a patent infringement suit an injunction shall issue against Purchaser which prohibits or limits the use of any items purchased hereunder, Seller at Purchaser's request shall supply Purchaser noninfringing replacement items of a similar kind and quality.
  9. TERMINATION. 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 or construction of the items, (v) Seller breaches any other term or condition herein specified on such Order, it being understood that the failure of Seller to perform services or deliver items 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 and/or 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, except that the rights set forth in this provision (b) shall not be available upon cancellation by Purchaser because of the occurrence, alone, of any of the events set forth in (v) above; and (c) recover any advance payments to Seller for undelivered or returned items and/or 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 the work to be performed 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 work stoppage hereunder and the placement of further orders for subcontracts hereunder. The parties shall thereupon agree by negotiation within one (1) month upon the amount of reimbursement, if any, to be paid Seller for each termination.
  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 of items or performance of work, 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. Seller shall show federal excise, state and or local taxes, if any, separately on its invoice. Seller shall execute a Form W-9 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 and goods 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. 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, including but not limited to the Uniform Commercial Code.
  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 and any assignee of Purchaser shall be deemed an intended third-party beneficiary under this Order, and all rights of Purchaser, and all obligations and warranties of Seller, contained in this Order shall inure to the benefit of such assignee.
  14. SEPARABILITY. 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. ACCEPTANCE OF ORDERS. Acceptance of an Order by an authorized agent of Seller, whether verbally, via Fax, EDI or in writing shall constitute a contract between Purchaser and the Seller and shall be governed by Purchaser's terms and conditions as set forth in this document, to the exclusion of any additional or contrary terms set forth in any document presented by the Seller, unless negotiated and mutually agreed to in writing by both parties prior to the acceptance of the order.
  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 will be returned to the supplier unpaid.
  19. GOVERNING LAW; DISPUTES. This Order and the transaction(s) contemplated thereunder shall be governed exclusively by the laws of the State of California without regard to the choice of law principles thereof. All actions or proceedings arising in connection with, touching upon or relating to this Purchase Order and the transaction(s) contemplated hereunder, the breach thereof and/or the scope of the provisions of this paragraph (a "Proceeding") 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 (recognizing that each side bears its own deposition, witness, expert and attorneys' fees and other expenses to the same extent as if the matter were being heard in 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 products sold 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; WORK PRODUCT. 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. Purchaser shall be the sole and exclusive owner throughout the universe in perpetuity of all of the results and proceeds of Seller's services, work and labor 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, work and labor 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, work and labor 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. If any item or Work Product 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 forms provided by Purchaser. THE MANUFACTURE OF MERCHANDISE 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 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 including the Seller's performance of services on property owned, leased or designated by the Purchaser under this contract, 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 services, 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 goods or services 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. 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; (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.
  26. PROVISIONS SPECIFIC TO SOFTWARE. Seller grants to Purchaser, its affiliates and its and their subcontractors, agents and consultants a worldwide, perpetual, fully paid up, royalty-free, irrevocable, non exclusive, license to use the software (and any updates or upgrades thereto) that constitutes any part of the item, and the documentation that accompanies any such software. Seller warrants that Seller uses best efforts to test and protect the software 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 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 below) about Purchaser's employees, customers, or other individuals in connection with this Order, Seller represents and warrants that: (i) Seller will only use Personal Data for the purposes of fulfilling its obligations under the Order, and Seller will not disclose or otherwise process such Personal Data except upon Purchaser's instructions in writing; (ii) Seller will notify Purchaser in writing and obtain Purchaser's consent before sharing any Personal Data with any government authorities or other third parties; and (iii) Seller agrees to adhere to additional contractual terms and conditions related to Personal Data as Purchaser may instruct in writing that Purchaser deems necessary, in its sole discretion, to address applicable data protection, privacy, or information security laws or requirements. In the event that (i) any Personal Data is disclosed by Seller (including its agents or subcontractors), in violation of this Order or applicable laws pertaining to privacy or data security, or (ii) Seller (including its agents or subcontractors) discovers, is notified of, or suspects that unauthorized access, acquisition, disclosure or use of Personal Data has occurred ("Privacy Incident"), Seller shall notify Purchaser immediately in writing of any such Privacy Incident. Seller shall cooperate fully in the investigation of the Privacy Incident, indemnify Purchaser for any and all damages, losses, fees or costs (whether direct, indirect, special or consequential) incurred as a result of such incident, and remedy any harm or potential harm caused by such incident. To the extent that a Privacy Incident gives rise to a need, in Purchaser's sole judgment, to (A) provide notification to public authorities, individuals, or other persons, or (B) undertake other remedial measures (including, without limitation, notice, credit monitoring services and the establishment of a call center to respond to inquiries (each of the foregoing a "Remedial Action"), at Purchaser's request, Seller shall, at Seller's cost, undertake such Remedial Actions. The timing, content and manner of effectuating any notices shall be determined by Purchaser in its sole discretion. To the extent that Purchaser provides to Seller, or Seller otherwise accesses Personal Data about Purchaser's employees, customers, or other individuals in connection with this Order, Seller shall implement a written information security program ("Information Security Program") that includes administrative, technical, and physical safeguards that ensure the confidentiality, integrity, and availability of Personal Data, protect against any reasonably anticipated threats or hazards to the confidentiality, integrity, and availability of the Personal Data, and protect against unauthorized access, use, disclosure, alteration, or destruction of the Personal Data. The Information Security Program shall also include policies and procedures regarding the disposal of Personal Data, and tangible property containing Personal Data, taking into account available technology so that Personal Data cannot be practicably read or reconstructed. Personal Data means individually identifiable information from or about an individual including, but not limited to (i) first name and last name, address, email address; (ii) any form of device identifier; (iii) credit or debit card information, including card number, expiration date, and data stored on the magnetic strip of a credit or debit card; (iv) financial account information, including the ABA routing number, bank account number, retirement account number; (v) driver's license, passport, taxpayer, social security number, military, or state identification number; (vi) medical, health or disability information, including insurance policy numbers, or (vii) passwords, fingerprints, biometric data. Seller shall supply Personal Data to Purchaser only in accordance with, and to the extent permitted by, applicable laws relating to privacy and data protection in the applicable territories.
  28. 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 the services performed 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).
  29. 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 Seller's services such as, but not limited to, additional managerial and administrative costs and expenses incurred in effecting a "cover" under a Seller default; and (ii) loss or damage to property or personal injuries (including death) directly caused by Seller's or Purchaser's negligence.