Supplier Terms and Conditions

1. ENTIRE AGREEMENT; REJECTION OF OTHER TERMS. Harbormaster’s purchase order and these terms and conditions of purchase are, collectively, the “PO”. The PO constitutes the sole and exclusive agreement and understanding between Harbormaster Toy Company, LLC and the supplier identified on the face of the purchase order (“Supplier”) for the goods, materials, products, and/or services ordered hereunder (hereinafter, collectively, the “Product(s)”). Supplier acknowledges that no quote, proposal, invoice, shrink-wrap, click-wrap, other terms or conditions, or agreement provided with any Product shall be binding on Harbormaster – even if use of such Product requires affirmative acceptance. If the PO constitutes an offer by Harbormaster Toy Company to purchase the Products at the price(s) and with the delivery date(s) specified herein, Supplier shall indicate its acceptance of the PO by verbal or written confirmation, by commencing work on the PO in any manner, or by delivery of the Products within the time for such delivery stated in the PO. Regardless of the manner or medium of acceptance time is of the essence. As an offer, the PO expressly limits acceptance to its terms and conditions, and notification of objection to any different or additional terms in any response to this offer from Supplier is hereby given. If the PO is construed as an acceptance of Supplier’s offer, this acceptance is expressly conditioned on Supplier’s assent to any additional or different terms contained in the PO. If the PO is construed as a confirmation of an existing contract, the PO constitutes the final, complete, and exclusive contract between the parties. 

2. CHANGES. Supplier shall not make any change to the Products (including without limitation changes to materials, components, manufacturing processes, tooling, sub-suppliers, or manufacturing location) without Harbormaster's prior written consent. Harbormaster may at any time, via written notice, direct changes to all or any part of the PO, and Supplier agrees to perform such work as changed. If any such change causes a material increase in the cost of or in the time required to perform such work, Supplier shall submit detailed information substantiating such claims, and Harbormaster will consider an equitable adjustment, provided, however, that no PO pricing modifications shall be valid unless expressly accepted in writing by Harbormaster.

3. QUANTITIES, PRICES, TAXES, IMPORT TERMS. The specific quantity of Product ordered must be delivered in full. Any different quantity is subject to Harbormaster's rejection and return at Supplier's expense, and Harbormaster shall have no obligation to pay for any excess quantity. Product prices shall be the prices indicated on Harbormaster’s purchase order, and such prices shall not be increased without Harbormaster's prior written consent. Any change in price or additional charges of any kind without Harbormaster's prior written consent are hereby rejected. 

Unless otherwise expressly stated on the face of the purchase order, pricing shall be on a Delivered Duty Paid (DDP) basis (Incoterms® 2020), and Supplier shall be responsible for all costs and obligations associated with export, transportation, customs clearance, duties, tariffs, taxes, brokerage, and delivery to Harbormaster’s designated location. Supplier shall act as exporter of record and shall comply with all export requirements of the country of origin. If alternative Incoterms are specified, Supplier shall remain responsible for all obligations expressly allocated to Supplier under the PO.

4. INVOICING AND PAYMENT. Invoice payment shall not constitute Product acceptance, and shall be subject to adjustment for errors, shortages, defects in Products, regulatory noncompliance, or other failure of Supplier to meet the requirements of the PO. If Harbormaster disputes all or a portion of an invoice, Harbormaster may withhold such disputed amounts and notify Supplier of the amount and reason for the dispute. All invoices must include the PO number and a detailed description of the Products provided. Harbormaster may set off any amount due from Supplier to Harbormaster against any amount due Supplier hereunder. Unless otherwise expressly set forth on the face of the purchase order, payment shall not be due until completion of inspection and receipt of all required documentation, including compliance certifications and test reports.

5. SHIPMENT. Supplier shall comply with Harbormaster’s written shipping instructions. Supplier shall ensure proper packaging suitable for international transport and compliant with all applicable laws and carrier requirements. Supplier shall mark all containers with necessary handling, shipping, and regulatory information, including country of origin markings. Supplier shall be responsible for damage resulting from improper packaging or transportation.

6. DELIVERY, TITLE, RISK OF LOSS. Time is of the essence for the PO. Supplier shall notify Harbormaster in writing immediately of any actual or potential delay the timely performance of the PO. Unless otherwise expressly set forth on the face of the purchase order, title and the risk of loss remain with Supplier until delivery and unloading are complete at Harbormaster’s designated location. 

7. INSPECTION, QUALITY CONTROL, LATENT DEFECTS. Harbormaster may inspect the Products within ninety (90) days after receipt and may reject them for any nonconformity, regardless of whether any payment has been made, whether the nonconformity substantially impairs the value of the Products, or whether the nonconformity may be cured by Supplier. In addition, Harbormaster shall have the right to reject Products at any time upon discovery of latent defects, noncompliance with applicable laws, or failure to meet warranties, regardless of when such defects are discovered. 

Supplier shall provide, at its expense, reasonable access for Harbormaster or its representatives to conduct factory audits, pre-production inspections, in-process inspections, and/or pre-shipment inspections relating to Supplier’s manufacturing processes, quality control systems, and/or compliance with applicable laws, labor practices, and environmental practices. Supplier shall not ship Products without Harbormaster’s prior written approval of inspection results where such inspection is required by Harbormaster. If Products are nonconforming, Harbormaster may return them at Supplier’s expense for repair, replacement, or refund at Harbormaster’s election. All associated costs shall be borne by Supplier.

8. WARRANTIES; REGULATORY COMPLIANCE. (A) Supplier warrants as follows: (i) the Products are free from any latent or patent defects in materials, workmanship, and design, and conform to the specifications; (ii) the Products are new, unused, merchantable, safe for consumer use, and fit and sufficient for the use intended by Harbormaster; (iii) the Products comply with all applicable laws and regulations, including, without limitation, the U.S. Consumer Product Safety Improvement Act (“CPSIA”), U.S. Consumer Product Safety Commission (“CPSC”) regulations, the U.S. Federal Communications Commission (“FCC”), the U.S. Federal Trade Commission (“FTC”) labeling requirements, California Proposition 65, and all applicable import/export laws; (iv) the Products have been tested by qualified independent laboratories as required by law or requested by Harbormaster; (v) Supplier shall provide all required certifications, including the U.S. Children’s Product Certificate (“CPC”), and complete test reports prior to shipment; (vi) the Products are properly labeled, including country of origin and required warnings; (vii) the Products do not infringe upon any third party's intellectual property or other rights, and Supplier has all necessary rights to manufacture and sell the Products.

(B) The foregoing warranties shall: (i) constitute conditions precedent under which Products must be supplied; (ii) are in addition to all other warranties, whether express or implied; (iii) survive any delivery, inspection, acceptance, or payment; and (iv) run to Harbormaster and to Harbormaster’s customers. Harbormaster’s approval of material or designs furnished by Supplier shall not relieve Supplier of its obligations hereunder.

(C) If any Product fails to meet any of the warranties herein, Harbormaster may, at its option: (i) require Supplier to correct, at no cost to Harbormaster, any nonconforming Products via repair or replacement; or (ii) return the nonconforming Products to Supplier at Supplier’s expense and receive a full refund of the price paid; or (iii) correct the nonconforming Products itself and charge Supplier with the cost of such correction; or (iv) accept the nonconforming Products at a reduced price.

9. CONFIDENTIALITY. Unless otherwise expressly agreed in writing: (i) all specifications, information, data, drawings, software, and other items supplied to Harbormaster by Supplier shall be disclosed to Harbormaster on a non-confidential basis and may be used by Harbormaster without restriction in accordance with Section 10 hereof; and (ii) all specifications, information, data, drawings, software, and other items which are supplied to Supplier by Harbormaster, or obtained by Supplier and paid for by Harbormaster in the performance of the PO, shall be maintained as confidential by Supplier, be used only for the purposes of providing the Products under the PO, and not be disclosed to any third party without Harbormaster’s prior written consent. All such items supplied by Harbormaster shall be promptly returned to Harbormaster on request or upon cancellation or completion of the PO. Except as otherwise required by law, Supplier will not disclose the existence of the PO, nor any of its details or the existence of the relationship created by the PO, to any third party without Harbormaster’s prior written consent.

10. INTELLECTUAL PROPERTY; TOOLING; NON-CIRCUMVENTION. As between the parties to the PO, and except as otherwise expressly provided herein, Harbormaster shall have the sole and exclusive ownership of any and all right, title, and interest in and to all Work Product and Harbormaster IP. As used in this Agreement: “Work Product” means any and all deliverables prepared or delivered by or on behalf of Supplier under the PO; and “Harbormaster IP” means any and all inventions, improvements, developments, ideas, know-how, trade secrets, data, specifications, methods, processes, techniques, designs, works of authorship, and other intellectual property of any kind, whether or not patentable or protectable by copyright, which are developed, conceived, or first reduced to practice in the course of Supplier’s fulfillment of the PO. Supplier hereby assigns to Harbormaster all right, title and interest in and to Work Product and Harbormaster IP. Upon Harbormaster’s request, Supplier shall execute and deliver (and shall cause its personnel to execute and deliver) to Harbormaster any and all such assignments and other documents, and take such other actions, as Harbormaster reasonably requests to confirm Harbormaster’s exclusive ownership of the Work Product and Harbormaster IP, to seek and obtain patent or other intellectual property protection for the Work Product and Harbormaster IP, and/or to enforce, maintain and defend Harbormaster’s rights in the Work Product and Harbormaster IP. If, notwithstanding the provisions of this Section 10, it is determined by a court of competent jurisdiction that Supplier retains ownership rights in any materials delivered with or as part of the Products, then Supplier hereby grants to Harbormaster an irrevocable, worldwide, non-exclusive, royalty-free, fully paid up, transferrable, sublicensable right and license to make, have made, modify, use, distribute, publicly perform or display, sell, offer to sell, and import such materials. Supplier hereby warrants that it owns or has acquired rights in all such intellectual property necessary to grant the rights and licenses set forth in this Section.

Supplier shall not manufacture, sell, or distribute Products or similar products using Harbormaster’s designs, specifications, tooling, or intellectual property for any third party. Supplier shall not produce excess quantities (“overruns”) or sell defective or rejected Products. All tooling, molds, dies, and materials paid for by Harbormaster shall be the exclusive property of Harbormaster, shall be clearly marked as such, shall not be used for any other customer, and shall be returned or destroyed upon Harbormaster’s request.

11. INJUNCTIVE RELIEF. Supplier acknowledges that any breach by Supplier or its personnel of Sections 9 or 10 would result in irreparable harm to Harbormaster for which money damages would be an inadequate remedy, and therefore agrees that Harbormaster shall be entitled to seek injunctive relief to prevent any such breach without the necessity of posting a bond, in addition to any other remedies available at law or in equity.

12. INDEMNIFICATION. Supplier shall defend, indemnify and hold Harbormaster and its members, officers, directors, employees, agents, successors, and assigns, harmless from and against any and all claims, suits, actions, liabilities, losses, costs, attorneys’ fees, expenses, judgments and/or damages, whether ordinary, special, or consequential, arising directly or indirectly from or in connection with (i) the acts, negligence, omissions or willful misconduct of Supplier; (ii) transportation or handling the Products prior to the completion of unloading at Harbormaster’s facilities; (iii) a breach of any of Supplier’s warranties or any other terms or conditions of the PO; (iv) any actual or alleged product defects, product recalls, regulatory noncompliance, failure to meet safety standards, violation of consumer protection laws, or violation of any other applicable laws or regulations; (v) any failure to comply with the confidentiality, intellectual property, or noninfringement obligations set forth herein; or (vi) any loss or damage to persons (including death) or property, to the extent caused by any act or omission of Supplier or, where applicable, by its employees, agents, representatives, or subcontractors. Without limiting Harbormaster’s rights and remedies hereunder, if Harbormaster believes that the Products are likely to be determined to be an infringement or misappropriation of a patent, copyright, trademark, trade secret, or other proprietary right, Harbormaster may require Supplier to replace such Products with products of equivalent functionality, or to modify such Products to make them non-infringing but possessing of equivalent functionality.

13. INSURANCE. Supplier shall maintain, at its own expense, insurance coverage(s) in amounts and types reasonably sufficient to protect against liability under all activities that are the subject of the PO, including, without limitation: commercial general liability insurance, including product liability, with limits of not less than $1,000,000 per occurrence and $2,000,000 aggregate and with coverage applicable to claims in the United States. Supplier shall name “Harbormaster Toy Company, LLC, its members, officers, directors, and employees” as an additional insured on such commercial general liability policy and shall furnish to Harbormaster a Certificate of Insurance evidencing the foregoing.

14. LIMITATION OF LIABILITY. IN NO EVENT SHALL HARBORMASTER BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR INDIRECT DAMAGES OR LOSSES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF REVENUE, LOST BUSINESS OPPORTUNITY, OR COMMERCIAL LOSS), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, REGARDLESS OF ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY AVAILABLE UNDER THE PO. ANY ACTION RESULTING FROM ANY BREACH ON THE PART OF HARBORMASTER RELATING TO THE PO MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED, OR IT SHALL BE DEEMED IRREVOCABLY WAIVED.

15. DISPUTES, GOVERNING LAW, VENUE. Any controversy or claim that may arise out of or in connection with the PO shall first be submitted in writing to senior management representatives of the parties for resolution. If the parties’ senior management representatives are unable after good faith efforts to resolve the dispute within ten (10) business days after submission, then Harbormaster shall have the sole and exclusive right, in its discretion, to elect that such dispute be resolved either: (i) in the state or federal courts located in Suffolk County, Massachusetts, USA; or (ii) by final and binding arbitration. Harbormaster may make such election at any time, including after commencement of proceedings in any forum, and such election shall be final and binding on Supplier. If Harbormaster elects arbitration: (i) the arbitration shall be administered by (A) the International Chamber of Commerce (ICC) in accordance with its Rules of Arbitration then in effect, if Supplier is not U.S.-based or (B) by the American Arbitration Association (AAA), in accordance with its rules then in effect, if Supplier is U.S.-based; (ii) the seat of arbitration shall be Boston, Hong Kong, Singapore, London, or such other location as Harbormaster may designate in its election notice; (iii) the arbitration shall be conducted in English; (iv) the tribunal shall consist of one (1) arbitrator; (v) if an international arbitration, the ICC Emergency Arbitrator provisions shall apply; (v) the arbitral award shall be final and binding and may be enforced in any court of competent jurisdiction. Notwithstanding Harbormaster’s election of arbitration, Harbormaster shall have the right, at any time, to seek interim, provisional, or injunctive relief (including without limitation temporary restraining orders, preliminary injunctions, attachment, or other equitable remedies) in any court of competent jurisdiction, including in Suffolk County, Massachusetts, and Supplier hereby irrevocably consents to such jurisdiction for such purposes. Supplier irrevocably agrees to submit to the forum selected by Harbormaster and waives any objection based on venue, forum non conveniens, lack of personal jurisdiction, or similar doctrine, and agrees not to commence or maintain any action relating to the PO in any forum other than as permitted under this Section. Pending resolution of any dispute, Supplier shall continue performance under the PO as directed by Harbormaster. The PO, all matters relating to the PO, and the parties’ relationship shall be governed by the laws of the Commonwealth of Massachusetts, USA, without regard to conflict of law principles. The parties hereby expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.

16. AUDIT RIGHTS. For a period of one year after fulfillment of the PO, Harbormaster shall have the right, upon five (5) days’ prior written notice, to audit the records related to the fulfillment of the PO, sufficient to enable Harbormaster to verify that Harbormaster has received the Products for which Harbormaster has been billed. Any such audit may be conducted in person or remotely, at Harbormaster’s election. Harbormaster shall bear the expense of any audit or examination unless such audit results in decrease of fees due Supplier by five percent (5.0%) of the total amount subject to the audit or $10,000, whichever is greater, in which case Supplier shall pay the full cost of the audit. If any audit discloses a discrepancy in payment in favor of Harbormaster, Supplier shall promptly refund any overpayment to Harbormaster. 

17. INDEPENDENT CONTRACTOR. Supplier is acting in the capacity of independent contractor, selecting, engaging, and discharging its employees and otherwise directing and controlling the fulfillment of the PO. Neither Supplier nor anyone employed by it shall represent, act as, purport to act as, or be deemed to be the agent, representative, or employee of Harbormaster. Neither Harbormaster nor Supplier have authority to make any statement, representation, or commitment of any kind on behalf of the other party, or to take any action binding upon the other party, without the other party’s prior written authorization. Supplier shall be exclusively responsible for the payment of any and all contributions, taxes, and all similar obligations imposed by any governmental authority with respect to wages, salaries, or other compensation paid by Supplier. No Supplier personnel are entitled to holidays, vacations, disability benefits, insurance, pensions, or retirement plans, or any other benefits offered or provided by Harbormaster.

18. RELEASE AGAINST LIENS/CLAIMS. Supplier shall promptly pay all claims of persons or firms furnishing labor, equipment, or materials used in the fulfillment of the PO. Harbormaster may require Supplier to submit satisfactory evidence of payment of all such claims. If there is any evidence of any such unpaid claim, Harbormaster may withhold payment until Supplier has furnished such evidence of payment and release, and Supplier shall indemnify and defend Harbormaster against any liability or loss arising from any such claim. Supplier agrees that no mechanic's lien shall be filed by it or by any subcontractor against any Harbormaster property or improvements and, in any event, shall provide for the release thereof. Supplier shall do all things necessary to permit Harbormaster to file and index, as and to the extent provided and permitted by law, an appropriate waiver of liens before Supplier commences any work under the PO. Where applicable law prohibits or fails to recognize waivers of liens, Supplier shall provide and execute a partial release of liens, and an affidavit of payment for debts and claims, and all other properly executed waivers or releases as typically provided in the state where the Products are delivered.

19. TERMINATION. Harbormaster may at any time terminate the PO in whole or in part without cause immediately upon written notice to Supplier. Immediately upon notice of any such termination Supplier shall stop all work on the PO and cause its suppliers and subcontractors to stop work. Harbormaster may also terminate the PO immediately upon written notice if Supplier: (i) fails to deliver the Products within the time specified herein; or (ii) fails to replace or correct defective Product in accordance with the provisions of the PO; or (iii) fails to perform any other provision of the PO; or (iv) becomes insolvent, files or has filed against it a petition in bankruptcy, or makes an assignment for the benefit of creditors. Charges for any such termination of the PO shall be limited to Products delivered and accepted prior to the termination date. In no event will Harbormaster reimburse Supplier for goods, inventory, or services in excess of those required to meet Harbormaster’s delivery schedule and quantities. In no event shall such reimbursement include anticipated profits or other economic loss for undelivered Products. 

20. FORCE MAJEURE. Harbormaster shall have the right to suspend any shipment from Supplier without penalty or liability to Harbormaster in the event of war, riot, acts of God, court order, strike, work stoppage, act of governmental authority, epidemic, or other causes beyond Harbormaster's control. Harbormaster shall not be liable to Supplier for its failure to accept delivery of Product purchased hereunder if such failure arises from a force majeure event.

21. PRODUCT SAFETY; RECALL; TRACEABILITY. Supplier shall maintain systems for product traceability, including lot and batch tracking. Supplier shall immediately notify Harbormaster of any safety issue or regulatory noncompliance. Supplier shall cooperate fully with any investigation or recall and shall bear all costs associated with recalls, replacements, refunds, and corrective actions resulting from Supplier’s acts or omissions.

22. SOCIAL COMPLIANCE; TRADE COMPLIANCE. Supplier shall comply with all applicable labor, environmental, and trade laws, including prohibitions on forced labor and child labor, including the Uyghur Forced Labor Prevention Act. Supplier shall not source materials from prohibited regions or entities and shall provide certifications upon request.

23. SURVIVAL. Section 1; Sections 2, 3, 5, 6, and 7 (as to any outstanding orders); Section 4 (as to any outstanding payments); Sections 8 through 25; and all defined terms herein shall survive any expiration or early termination of the PO.

24. ASSIGNABILITY AND SUBCONTRACTING. The PO shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, neither the PO nor any interest therein shall be assigned, delegated, or otherwise transferred by Supplier except upon the prior written consent of Harbormaster, and any assignment or transfer without such consent shall be void. Supplier shall not appoint any subcontractor to carry out its obligations under the PO without the prior written consent of Harbormaster. In any event, even with Harbormaster consent, Supplier shall remain liable for the subcontractor’s performance of all obligations under the PO. 

25. NOTICES, WAVIER, HEADINGS, SEVERABILITY, NONEXCLUSIVITY. All notices, requests, demands, and other communications relating to the PO shall be directed to either party at the address indicated on the PO, or at such other address that either party may designate by ten (10) days advance written notice to the other party. All notices shall be in writing and shall be sent by email. Harbormaster’s failure to enforce any rights under the PO shall not be construed as a waiver of such rights, nor shall Harbormaster’s waiver in one or more instances be construed as constituting a continuing waiver or as a waiver in other instances. If any one or more of the provisions of the PO is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions contained in this Agreement shall not in any way be affected or impaired by that finding or determination. The headings of the provisions of these terms and conditions are inserted for convenience only and shall not constitute a part hereof. Nothing herein shall limit Harbormaster's right to purchase goods and services from other suppliers, including goods that are similar to or the same as Supplier’s.