These CONTINUUM STANDARD SUPPLIER TERMS AND CONDITIONS (the “Standard Terms”) shall govern all purchases of goods and services described in each Purchase Order (“PO”) issued to the party identified in the PO (“Supplier”) by Continuum Marketing Services LLC dba Kodi Marketing (“Company”).

1. Purchase Orders.

Supplier shall not produce any materials until after it has received a Purchase Order in writing and signed by an authorized representative of Company.  Supplier is solely responsible for ensuring that the nature and quality of its performance and the Product complies with the terms of any Purchase Order.

2. Pricing / Payments.

a. On any projects for which Supplier provides a price quote, Supplier shall guarantee its pricing for no less than sixty (60) days.

b. Payment terms shall be 2% 30 days, net 60 (i.e. all invoices shall be paid within 60 days from the invoice upload date provided that Company may reduce the amount invoiced by 2% for all or any portion paid within 30 days from the invoice upload date).

c. All Supplier invoices must be uploaded to the Company supplier portal within 5 days of delivery of goods.  Invoices are recognized on the date that Supplier uploads the invoice to the Company supplier portal.  Supplier invoices should only incorporate one PO, and the PO number should be clearly noted on the invoice.  Any invoices with an incorrect or missing PO number will not be accepted.

3. Ownership.  

All specifications, documents, artwork, drawings, sketches, dummies, film positives, negatives, separations, deliverables, goods, intellectual property, Confidential Information (as defined herein), or other information or materials or portions thereof (“Proprietary Materials”) delivered to Supplier by Company or Company’s client or created by Supplier pursuant to these Standard Terms or any PO shall be and remain Company’s property and shall be deemed a “work made for hire” (as defined in the Copyright Act of 1976).  If, for any reason, such Proprietary Materials shall not legally be deemed a “work made for hire,” then Supplier hereby irrevocably assigns and agrees to assign all of Supplier’s right, title, and interest thereto to Company.

4. Confidential Information.

All information to which Supplier is given access or which is made available to Supplier, which is marked confidential or could reasonably be considered confidential under the circumstances of its disclosure, as a result of its relationship with Company is referred to herein as "Confidential Information" for a period of 5 (five) years after each disclosure of confidential information. Confidential Information is delivered solely for the purpose of Supplier's performance of these Standard Terms and any PO and Supplier shall not use or disclose to others nor use for any purpose other than to perform these Standard Terms or any PO without Company's express prior written consent. Confidential Information shall not include information that: (a) was in Supplier's possession, free of any obligation of confidence, prior to receipt from Company, as proven by the Supplier's written records; (b) is in the public domain through no breach of duty; or (c) is independently developed by Supplier without use of or reference to any Confidential Information. Upon completion of the activities constituting completion of a Purchase Order, upon termination of these Standard Terms, or upon Company’s written demand, Supplier shall return to Company all originals, copies, reproductions, and summaries of the Confidential Information, or shall certify destruction of same (unless otherwise required by law to be retained by Supplier).

5. Warranties; Limitation of Liability.  

Supplier expressly warrants all (i) goods delivered under each PO shall be free from defects in material and workmanship and of the quality, size, and dimensions ordered and (ii) work performed under each PO will be in conformity with all plans, specifications, and other data incorporated as part of the PO.  Neither party shall be liable to the other party for any special, consequential, exemplary or indirect damages, including without limitation, loss of profits, loss of business or business opportunities, whether arising in contract, tort or otherwise, even if such loss was reasonably foreseeable or if such party was advised of the possibility of the same provided that this limitation shall not apply to (i) claims that are the subject of Supplier’s indemnification obligations hereunder; or (ii) damages relating to personal injury or personal or property damage, or damages caused by any breach of the confidentiality, non-solicitation, and/or non-circumvention provisions in these Standard Terms, a breach of any privacy obligations or failure to comply with applicable law or the policies or regulatory requirements contained in these Standard Terms.

6. Specification Changes.

Company may request changes in the specifications and/or scheduling relating to Purchase Orders.  If such changes do not result in a change in pricing or other terms, Supplier will implement the specification and/or schedule changes as soon as practicable.  If such changes result in a change in pricing or other terms, Supplier will promptly notify Company of such change, and Supplier will obtain prior written approval from Company before implementing such changes.

7. Cancellation.  

Company may, at its sole option, immediately terminate all or part of the Purchase Order at any time and for no reason at all, by giving written notice to Supplier.  Except with respect to cancellation pursuant to Section 17, upon cancellation of a Purchase Order, Company shall pay Supplier, to the extent not previously paid, for finished and conforming Product existing as of the date of cancellation at the per-piece order price therefor, the actual cost for any materials used in connection with work in process that demonstrably cannot be reused in another project, and the actual cost of any special order raw materials not yet used that were purchased specifically to perform such Purchase Order and that demonstrably cannot be repurposed to some other project.  For the avoidance of doubt, Company shall not be obligated to pay for any Product, work-in-process or raw materials that are in Supplier’s standard stock or which are readily marketable.

8. Inspection and Defective Goods.  

Product purchased under any Purchase Order is subject to reasonable inspection by Company and/or Company’s Customer (as defined below).  Final inspection, testing, approval and acceptance by Company and/or Company’s Customer shall be at Company’s destination and may occur after payment of the invoice.  Title shall not pass, with respect to the Product, until the Product is delivered and accepted by Company. In the event the Product is rejected by Company and/or Company’s Customer, Company shall provide written notice of such rejection within seven (7) days of receipt of same. In the event a defect in the Product is discovered after acceptance of the same, Company may avail itself of the relief set forth in Section 9.

9. Remedy.

If Supplier delivers a defective product, it has the right to cure such defect by replacing said defective product with conforming product within the time constraints determined by the Purchase Order, or, in the alternative, by Company and/or its applicable Customer.  If Supplier fails to timely cure the defective product to the satisfaction of Company and/or its applicable Customer (as indicated in writing by same), Company may:

a. cancel any Purchase Order (in whole or in part);

b. refuse to accept any further deliveries of the Product;

c. reject the Product, in whole or in part, and return the Product to Supplier at the risk and cost of Supplier, on the basis that a full refund for the Product shall be paid by Supplier to Company;

d. permit Supplier to replace the Product so that it conforms to the Purchase Order and to delay payment until the requirements of the Purchase Order have been fulfilled to Company’s reasonable satisfaction; or

e. if none of the foregoing remedies can be performed in a reasonable time by Supplier, or none is reasonably acceptable to the applicable Customer, carry out, or have carried out at Supplier’s sole expense, such work as is necessary for the Product to conform to the Purchase Order and to delay payment until the requirements of the Purchase Order have been fulfilled.

10. Marks / No Publicity.  

Supplier shall not use the names, brands, trademarks or logos (“Marks”) of Company or Customer, directly or indirectly, in any manner without the prior written consent of Company or Customer.  Notwithstanding the foregoing, each party grants to the other party a limited license to use its Marks solely in connection with such party’s performance of its services and/or obligations under these Standard Terms. Except upon mutual written agreement, or as may be required by law, Supplier shall in no way or in any form disclose the existence or terms of these Standard Terms, the discussions that gave rise to these Standard Terms, or the fact that there have been, or will be, discussions between the parties concerning same.  Supplier shall not disclose publicly the existence any Customer contract, or use the name or Mark of Company and/or any Customer in any advertising, promotional or marketing materials, media interviews or other marketing or promotional materials or activities.

11. Indemnification / Hold Harmless.  

Supplier agrees to indemnify, defend and hold harmless Company and Company’s clients from any and all third-party claims that may result directly or indirectly from Supplier’s production or supply of goods and services pursuant to a PO or Supplier’s negligence or breach of these Standard Terms, including, but not limited to, a claim that a Product infringes a patent, copyright, trademark or trade secret of a third party. The obligations of Supplier under this provision shall not be limited by the limits of any applicable insurance required of Supplier.

12. Insurance.

Supplier shall, at its own cost, maintain the following insurance with carriers rated “A VII” by A.M. Best and licensed to do business in the state(s) in which Products are produced and Services are performed during the term of these Standard Terms:  

a. Worker's Compensation and Occupational Disease Insurance with statutory limits and Employer’s Liability coverage with a minimum limit of $500,000 per occurrence;

b. Automobile Liability Insurance with a minimum limit of $1,000,000 per occurrence covering all owned, non-owned and hired vehicles;

c. General Liability Insurance including Product Liability Insurance with a minimum limit of $3,000,000 per occurrence; and

d. Errors and Omissions, I Professional Liability Insurance with a minimum limit of $1,000,000 per occurrence.

e. Umbrella Liability Insurance in an amount of not less than $3,000,000 per occurrence; and

f. If Professional Services are rendered in the performance of these Standard Terms, Professional Liability insurance with a limit not less than $3,000,000 per claim.

The General Liability and Automobile Liability policies will name Company as an additional insured as its interest may appear.  Supplier's insurance shall be primary and non-contributory. Supplier shall be responsible for deductibles, self-insured retentions and premium payments contained in any of the foregoing policies. Upon request, Supplier to provide certificates of insurance evidencing such insurance signed by an authorized representative of the insurance company.

13. Assignment / Subcontracting.

Supplier shall not assign these Standard Terms or any PO or any benefits arising from any PO without prior written consent of Company and, unless otherwise agreed upon in writing, the rights of any assignee shall be subject to all set-offs, counterclaims, and other comparable rights.  Except as otherwise agreed in writing by Company, Supplier shall not delegate or subcontract its obligations under these Standard Terms or any PO. The parties agree that Company may assign all or any portion of, or any rights and obligations under, these Standard Terms to any entity carrying on that part of the business to which the assigned portion of these Standard Terms relates without consent.

14. Non-Solicitation.  

During the Term of these Standard Terms and for a period of 24 months after the Term, Supplier agrees not to directly or indirectly solicit for employment any employees of Company with whom Supplier has had contact as a result of its relationship with Company.

15. Non-Circumvent.  

During the Term of these Standard Terms and for a period of 24 months after the Term, Supplier agrees not to directly or indirectly solicit, accept work from, or otherwise circumvent Company’s relationship with any prospective, current, or former customer of Company or its affiliates that is disclosed by Company to Supplier (“Customer”). For purposes of the foregoing, a customer shall be considered a “former customer” for a period of twenty-four (24) months from the last date Company or its affiliates performs work for such customer.  If Supplier has a current direct relationship with Company’s end client that predates the Term of these Standard Terms or any prior similar agreement with Company, Supplier shall, within one (1) business day upon being advised in writing by Company of the identity of any Customer, notify Company in writing before accepting the applicable PO and the PO and this circumvention restriction shall be considered null and void as it relates to such prior direct relationship. If Supplier breaches this Section, Supplier shall be liable to Company for liquidated damages equal to two (2) times Company’s annual revenue with Customer (whereby annual revenue is determined based on the average annual revenue from the previous two (2) years, to the extent available (if unavailable, annual revenue shall be determined by the twelve (12) month rolling average). The parties agree that Company’s actual money damages upon Supplier’s breach will be difficult to compute, and further agree that the liquidated damages formula provided herein reasonably represents Company’s actual money damages. Supplier shall pay the liquidated damages required hereunder within ten (10) days of the date Company makes written demand for such payment. Nothing herein shall preclude Company from enforcing any other legal or equitable remedies it may have upon Supplier’s breach, including injunctive relief. Such other remedies may be enforced in addition to Company's right to liquidated damages under this Section.

16. Compliance with Laws / Code.  

Supplier shall comply with all applicable laws, rules, and regulations, including, without limitation: (a) the United States Foreign Corrupt Practices Act and all other applicable laws relating to bribery or corruption, and (b) the Consumer Product Safety Improvement Act of 2008, California Proposition 65, and all other applicable laws relating to product safety or hazardous materials.

17. Business Practices.  

Supplier is solely responsible for the nature and quality of its performance (and its representatives’ performance) under these Standard Terms and for the finished materials supplied by Supplier hereunder.  Supplier represents and warrants that Supplier and its representatives shall conduct their business interactions and activities with integrity and in accordance with their obligations under any agreements with Company and/or its Customers including, but not limited to, protecting and responsibly using both the physical and intellectual assets of Supplier’s clients, Company and Company’s clients and complying with the intellectual property ownership of Supplier’s clients, Company and Company’s clients including but not limited to copyrights, patents, trademarks and trade secrets.

18. Governing Law / Forum.  

These Standard Terms shall be governed by the laws of the State of Delaware, without giving effect to conflict-of-law rules.  The parties agree that the exclusive venue over any action brought under, in connection with, or arising out of these Standard Terms, shall reside exclusively in the state courts sitting in Delaware, and the parties hereby consent to personal jurisdiction by such courts.

19. Relationship / Term.  

Company is not required to award any POs or to provide any minimum volume to Supplier.  Supplier or Company may terminate these Standard Terms by giving 90 days’ notice to the other party, provided that these Standard Terms shall continue in force during the performance of any PO that has not been completed prior to termination (“Term”).

20. No Other Agreement.  

The terms and conditions contained herein take precedence over any other terms and conditions contained in any Supplier document and no contrary, additional or different provisions shall be binding upon Company unless specifically accepted by Company in writing.

21. Survival.  

The following provisions herein shall survive the termination or expiration of these Standard Terms and any PO:  Ownership, Confidential Information, Relationship, Warranty, Indemnification / Hold Harmless, Non-Solicitation, Non-Circumvent, Governing Law / Forum, No Other Agreement and Survival.