Purchase Order Terms and Conditions

The JD Finish Line Merchandise Standard Purchase Order Terms and Conditions

Rev 01/20

These Merchandise Standard Purchase Order Terms and Conditions (the “PO Terms”), together with the terms incorporated by reference herein and the terms in the following documents, are collectively referred to herein as the “JD Finish Line Terms”: JD Finish Line’s Purchase Order (“Purchase Order”), JD Finish Line’s Vendor Compliance Manual (“Vendor Compliance Manual”) and JD Finish Line’s Vendor Conduct of Conduct (“Vendor Code of Conduct”). The JD Finish Line Terms shall be effective for all goods, tangible personal property and merchandise (collectively “Merchandise”) sold by Vendor to The JD Finish Line, Inc. d/b/a JD Finish Line and JD Sports (“JD Finish Line”) and are a part of each Purchase Order (as defined below) submitted by JD Finish Line to Vendor. These PO Terms, the Vendor Compliance Manual and the Vendor Code of Conduct may be found at: vendor.finishline.com (the “Vendor Website”).

THE JD FINISH LINE TERMS CONSTITUTE THE ENTIRE AGREEMENT OF THE PARTIES AS TO THE SUBJECT MATTER CONTAINED THEREIN, EXCEPT WHERE THE PARTIES HAVE OTHERWISE MODIFIED THE JD FINISH LINE TERMS BY AN EXPRESS WRITTEN AGREEMENT, EXECUTED BY EACH OF THEIR DULY AUTHORIZED REPRESENTATIVES (IN THE CASE OF JD FINISH LINE, ANY PERSON WHO QUALIFIES AS AN EVP OR ABOVE WITHIN THE ORGANIZATION). JD FINISH LINE OBJECTS TO ANY DIFFERENT OR ADDITIONAL TERMS IN VENDOR’S ACCEPTANCE OR ANY OTHER DOCUMENT OR FORM TRANSMITTED ON BEHALF OF VENDOR INCLUDING WITHOUT LIMITATION ANY BILL OF SALE OR SHIPPING DOCUMENTS. JD FINISH LINE’S OBJECTION TO DIFFERENT OR ADDITIONAL TERMS SHALL NOT BE WAIVED BY ACCEPTANCE OF ANY MERCHANDISE OR BY PAYMENT OF ANY INVOICE. SUBJECT TO THE TERMS AND CONDITIONS HEREIN, THE JD FINISH LINE TERMS MAY BE MODIFIED BY AN EXPRESS WRITTEN AGREEMENT BETWEEN JD FINISH LINE AND VENDOR, EXECUTED BY EACH OF THEIR DULY AUTHORIZED REPRESENTATIVES (IN THE CASE OF JD FINISH LINE, ANY PERSON WHO QUALIFIES AS AN EVP OR ABOVE WITHIN THE ORGANIZATION).

1. Purchase Commitment. Except as otherwise provided herein, JD Finish Line is not obligated to make any minimum purchase or future purchase obligations under any Purchase Order. JD Finish Line’s commitment to purchase Merchandise from Vendor arises only at such time as JD Finish Line issues a Purchase Order and only for the quantities of Merchandise specified in such Purchase Order. Any estimate or forecast of JD Finish Line’s future needs for Merchandise which may be provided to Vendor by JD Finish Line are for planning purposes only and shall in no way represent a commitment of JD Finish Line to purchase Merchandise. JD Finish Line shall have no responsibility or liability for any actions taken by Vendor based on such estimates or forecasts.
2. Offer and Acceptance. Except as otherwise provided in the Vendor Compliance Manual, (a) a Purchase Order is valid only if it is generated pursuant to a valid electronic data interchange (“EDI”) transaction as more particularly described in the Vendor Compliance Manual and (b) a Purchase Order is not binding on JD Finish Line until Vendor accepts the Purchase Order pursuant to a valid EDI transaction. JD Finish Line and Vendor desire to be bound by any such transactions between them and such transactions shall be subject to the JD Finish Line Terms. Except as otherwise provided herein, a Purchase Order may not be changed or terminated verbally. Except as otherwise provided herein, no change or termination of an accepted Purchase Order shall be binding on JD Finish Line and Vendor unless signed by authorized representatives of both JD Finish Line and Vendor. JD Finish Line will not assume liability for any Merchandise shipped to it or upon which work is commenced by Vendor before Vendor’s receipt and acceptance of a valid Purchase Order or prior to the period preceding any cancellation of the Purchase Order by JD Finish Line, as permitted herein.
3. EDI Transactions. Each of JD Finish Line and Vendor shall be responsible for its own costs related to EDI systems and transmissions, including any equipment, software and services required for efficient, reliable EDI transactions, and shall maintain commercially reasonable security procedures sufficient to ensure that EDI transactions are authorized and protected against improper access.
4. JD Finish Line Terms. Except as otherwise provided herein, the JD Finish Line Terms shall constitute the entire contract between JD Finish Line and Vendor and JD Finish Line’s offer to purchase Merchandise from Vendor is expressly limited to the JD Finish Line Terms. The Vendor Compliance Manual and the Vendor Conduct of Conduct may be modified by JD Finish Line at any time, and any such modifications shall be posted on the Vendor Website or otherwise provided to Vendor, and shall be binding upon Vendor from the earlier of the date of such posting or provision to Vendor. The JD Finish Line Terms may not be modified by course of dealing or course of performance. Any oral communication between JD Finish Line and Vendor or any response by Vendor, whether oral or in writing, to modify or supplement the JD Finish Line Terms shall be ineffective, provided that the JD Finish Line Terms may be modified by an express written agreement between JD Finish Line and Vendor, executed by each of their duly authorized representatives (in the case of JD Finish Line, any person who qualifies as an EVP or above within the organization). Any deviation by Vendor from the JD Finish Line Terms or demand by Vendor for additional or different terms and conditions, or any statement made by Vendor in an invoice or otherwise attempting to make Vendor’s acceptance conditional on JD Finish Line’s assent to additional or different terms and conditions shall be of no effect and are objected to and expressly rejected.
5. Drop Ship Vendors. JD Finish Line, by a duly authorized representative, may enter into written agreements with Vendors to engage such Vendors to ship Merchandise directly to JD Finish Line’s end-consumers (each a “Drop Ship Vendor Agreement”). The terms and conditions of a Drop Ship Vendor Agreement shall supplement the JD Finish Line Terms, and in the event of any conflict between the terms of the JD Finish Line Terms and Drop Ship Vendor Agreement, the terms of the Drop Ship Vendor Agreement shall govern but only with respect to shipments of Merchandise directly to JD Finish Line’s end-consumers by the applicable Vendor.
6. Merchandise Shipment. Vendor acknowledges and agrees that time is of the essence for Vendor’s performance under the JD Finish Line Terms. All Merchandise shall be delivered to the address specified in the Purchase Order. Merchandise shall be shipped and delivered F.O.B. destination. All Merchandise must be delivered to the specified destination in accordance with and relative to the date designated and specified in the Purchase Order (the “Designated Date”). Vendor shall ship only the quantities of Merchandise ordered by JD Finish Line in the Purchase Order. Vendor may not deliver Merchandise in more than two shipments, with the first shipment containing no less than 80% of Merchandise to be delivered under a Purchase Order. Vendor shall comply with JD Finish Line’s requirements concerning shipments of Merchandise, including without limitation with respect to JD Finish Line’s instructions on Merchandise ticketing and labeling, carton packing instructions and routing, as set forth in the Vendor Compliance Manual. Vendor shall not make any substitutions of Merchandise or ship Merchandise early relative to the Designated Date without JD Finish Line’s prior written approval executed by a duly authorized representative of JD Finish Line (in which cases, shall be a duly authorized representative within JD Finish Line’s Merchandising Department). Vendor shall immediately notify JD Finish Line in the event Vendor is unable to deliver any part or all of the Merchandise pursuant to an accepted Purchase Order, and Vendor acknowledges and agrees that any such notice will not limit the remedies available to JD Finish Line or Vendor’s liability for such non-performance.
7. Title and Risk of Loss. For each Purchase Order, delivery to JD Finish Line shall be deemed to have occurred when the Merchandise are received and accepted by JD Finish Line in accordance with the JD Finish Line Terms and title and risk of loss or damage with respect to the Merchandise shall pass to JD Finish Line upon delivery.
8. Price. The price in a Purchase Order shall include the agreed upon price for the Merchandise, costs of delivering Merchandise to F.O.B. destination and federal, state and local taxes and duty in effect as of the date of acceptance of the Purchase Order and applicable to the Merchandise and the materials used in the manufacture thereof. Except as otherwise agreed to in writing executed by an authorized representative of JD Finish Line, no extra charges of any kind, including charges for boxing, packing, cartage and other extra charges, are allowed.
9. Payment Terms. No payment will be made by JD Finish Line to Vendor unless Vendor has completed all vendor set-up activities as required by JD Finish Line and as may be described on the Vendor Website. Unless otherwise specified by JD Finish Line in the Purchase Order, payment terms shall be no less than net thirty (30) days and no more than net forty-five (45) days. Payment terms will be calculated from the receipt of Merchandise at destination or receipt of valid invoice, whichever is later. An invoice shall be deemed valid if it is in compliance with the applicable requirements set forth in the Vendor Compliance Manual. Any amounts not invoiced by Vendor within ninety (90) days of JD Finish Line’s receipt of Merchandise at destination shall be waived by Vendor, and shall not be collectible from JD Finish Line.
10. Cancellation. JD Finish Line reserves the right to cancel, at any time and for any reason, all or any part of any unshipped portion of the Purchase Order at its sole discretion. Any Merchandise shipped to JD Finish Line by Vendor’s liability for shipping Merchandise subject to JD Finish Line’s prior cancellation of the applicable Purchase Order, or portion thereof, shall be as provided for in the Vendor Compliance Manual.
11. Delivery Refusal; Returns. JD Finish Line may refuse delivery or return Merchandise, as may be applicable and provided for in the Vendor Compliance Manual, that (a) was not shipped in accordance with and relative to the Designated Date specified in the applicable Purchase Order (except as otherwise provided herein); (b) was shipped after JD Finish Line’s cancellation of all or any part of a Purchase Order; (c) was shipped in quantities less than or more than ordered as set forth in the applicable Purchase Order; (d) was not ordered by JD Finish Line; (e) is not as represented and warranted as provided for in these PO Terms; (f) was not shipped in compliance with the Vendor Compliance Manual; or (g) was recalled by Vendor for any reason.
12. Inspection. All Merchandise shall be delivered to JD Finish Line subject to JD Finish Line’s right of inspection and rejection. Notwithstanding the foregoing, JD Finish Line is under no duty to inspect Merchandise received from Vendor before JD Finish Line pays for the Merchandise or before any of the Merchandise is resold or used. Payment for the Merchandise or reselling or using Merchandise prior to inspection shall be without prejudice to any and all claims that JD Finish Line may have against Vendor, including any claims that the Merchandise is defective as described in the JD Finish Line Terms or is not otherwise as represented and warranted by Vendor pursuant to the JD Finish Line Terms. Acceptance of the Merchandise by JD Finish Line does not relieve Vendor from any of its representations, warranties or obligations under the JD Finish Line Terms.
13. Defective Merchandise. JD Finish Line may return to Vendor any Merchandise it determines, in its sole discretion, is defective in material or workmanship; where applicable, does not conform to Merchandise samples, models or specimens; or differs in any way from the terms, specifications and warranties contained in the JD Finish Line Terms or implied by law. Payment for Merchandise prior to such inspection shall not constitute acceptance of such Merchandise and JD Finish Line reserves the right to hold for Vendor or return to Vendor any Merchandise so determined to be defective. Except as otherwise provided herein, any Merchandise returned as defective may be subject to, as the case may be, the Vendor Compliance Manual and/or a Defective Allowance Agreement. JD Finish Line, by a duly authorized representative, may enter into written agreements with Vendors with respect to certain remedies afforded to JD Finish Line arising from its receipt of defective Merchandise, namely defective allowances (each a “Defective Allowance Agreement”). The terms and conditions of a Defective Allowance Agreement shall supplement the JD Finish Line Terms, and in the event of any conflict between the terms of the JD Finish Line Terms and Defective Allowance Agreement, the terms of the Defective Allowance Agreement shall govern but only with respect to defective allowances arising from defective Merchandise as exercised by JD Finish Line. Under no circumstances is defective Merchandise returned to Vendor to be repaired and returned to JD Finish Line.
14. Merchandise Warranties. Vendor warrants, covenants and represents that all Merchandise (including all of its related components and packaging, labeling and printed and digital materials, where applicable): (a) is free from any defects in workmanship, material and design; (b) conforms to the description and specifications contained in the JD Finish Line Terms and/or the samples, models or specimens of Merchandise provided to JD Finish Line; (c) is accurately labeled and clearly identifies the country of origin; (d) is new, merchantable and fit for their intended purpose; (e) is free and clear of all liens, security interests or other encumbrances; (f) is free of any harmful or toxic substances; (g) does not misappropriate or infringe any third party’s personal, contractual, proprietary and/or intellectual property rights; and (h) is not subject to any product liability claims. Vendor further assigns to JD Finish Line all assignable warranty rights with respect to all Merchandise, including without limitation all rights of Vendor under warranties of any manufacturer or producer with respect to any of the Merchandise or any part or component of the Merchandise. The representations and warranties described in this Section shall survive acceptance, fulfillment, cancellation or termination of a Purchase Order and any delivery, inspection, acceptance or payment of or for any Merchandise. The representations and warranties described in this Section are cumulative and in addition to any other express or implied warranty provided by law or equity. Vendor shall notify JD Finish Line immediately of any failure to meet the representations and/or warranties described in this Section. Any applicable statute of limitations runs from the date of JD Finish Line’s discovery of noncompliance with this Section.
15. Representations and Warranties. Vendor further warrants, covenants and represents that (a) Vendor is in compliance with, and shall comply with, (i) all laws, regulations, standards, orders and rulings, as amended, of all United States federal, state and local governments (and all departments, boards, bureaus and commissions thereof) and (ii) all laws, regulations, standards, orders and rulings, as amended, of all countries and their respective federal, state and local governments, if any, in which Merchandise, or any component thereof, is produced, stored, delivered, and/or transported to, from and/or through (collectively, “Applicable Laws”); (b) Vendor’s subcontractors and suppliers are in compliance with, and shall comply with, all Applicable Laws; (c) Vendor has and shall maintain in effect all licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under a Purchase Order; (c) Merchandise was produced, processed, manufactured, packaged, labeled, tagged, packed, advertised, sold, invoiced and transported in compliance with all Applicable Laws (without limiting the foregoing, Vendor further warrants, covenants and represents that it is in compliance with, and shall comply with, California Health and Safety Code Section 25249.5 et seq., commonly referred to as Proposition 65 (“Prop 65”) and shall (i) notify JD Finish Line of any and all products manufactured for, or supplied by, Vendor to JD Finish Line that require a Prop 65 warning and provide electronic copies of the warnings to be employed; or (ii) certify that products manufactured for, or supplied by, Vendor to JD Finish Line do not require a Prop 65 warning. For Prop 65 purposes, Vendor shall analyze products using accredited laboratories and maintain and hold analysis records for three (3) years to be provided to JD Finish Line upon request); (d) Merchandise, including all materials incorporated into the Merchandise, comply with all Applicable Laws, including without limitation laws regarding slavery and human trafficking; (e) Merchandise descriptions, attributes and claims, whether implied or express, are truthful, accurate and otherwise comply with all Applicable Laws; (f) JD Finish Line’s acquisition and/or sale of Merchandise shall not violate any Applicable Law; (g) Vendor has full power and authority to enter into and perform its obligations under the JD Finish Line Terms and such JD Finish Line Terms constitute the legal, valid and binding obligation of Vendor, enforceable against it in accordance with its terms; (h) Vendor has the financial resources and capability necessary to satisfy and any all obligations and liabilities as provided for in the JD Finish Line Terms; (i) the consummation of the Purchase Order shall not result in the breach of or constitute a default under any contract or agreement to which Vendor is currently a party or to which Vendor becomes a party in the future; (j) Vendor is not insolvent, in bankruptcy proceedings, in receivership or engaged in or threatened with any litigation or arbitration or other legal proceedings or investigations of any kind which would have an adverse effect on its ability to perform its obligations under this Agreement; and (k) Vendor maintains, and shall submit to JD Finish Line upon JD Finish Line’s request, a disaster recovery and business continuity plan that is reasonably designed to, among other things, minimize disruption of any of Vendor’s obligations under the JD Finish Line Terms. The representations and warranties described in this Section shall survive acceptance, fulfillment, cancellation or termination of a Purchase Order and any delivery, inspection, acceptance or payment of or for any Merchandise. The representations and warranties described in this Section are cumulative and in addition to any other express or implied warranty provided by law or equity. Vendor shall notify JD Finish Line immediately of any failure to meet the representations and/or warranties described in this Section. Any applicable statute of limitations runs from the date of JD Finish Line’s discovery of noncompliance with this Section.
16. Intellectual Property. (a) Except as otherwise provided herein, Vendor has no interest or rights in trademark, service mark, logo or design mark, trade name, brand name or marketing handle or slogan, designs, copyrights, patents and trade secrets owned or controlled by or licensed to JD Finish Line or any of its affiliates or used by JD Finish Line or any of its affiliates in connection with any goods or services of JD Finish Line or any of its affiliates. JD Finish Line grants Vendor a non-exclusive, revocable, royalty-free right and license to use and publicly display any JD Finish Line-owned, controlled or licensed trademark, service mark, logo or design mark, trade name, brand name or marketing handle or slogan (each a, and collectively the, “JD Finish Line Brand”) solely in connection with any marketing, advertising or publicity effort carried out jointly between JD Finish Line and Vendor or otherwise for any purpose authorized in writing by a duly authorized representative of JD Finish Line prior to such use by Vendor, provided that JD Finish Line reserves the right to approve, in its sole discretion, the use of a JD Finish Line Brand or the manner in which a JD Finish Line Brand is used by Vendor in all such cases. (b) Should JD Finish Line direct Vendor to mark or label any Merchandise with a JD Finish Line Brand (“Private Label Product”), such marking or labeling shall be limited to the indicated quantities of such Merchandise in the applicable Purchase Order and shall be done in accordance with specific instructions issued by JD Finish Line. Other than sale of Merchandise to JD Finish Line pursuant to valid Purchase Orders, Vendor shall not sell or otherwise dispose of, or allow the sale or disposal of, any Private Label Product. (c) Except for Private Label Products, the parties agree that all artwork, graphics, designs, patterns, prints, trade dress, ornamental features and product configurations (collectively, “Designs”) created, adapted, produced or designed specifically for JD Finish Line or jointly developed between the parties to be incorporated into or on Merchandise (“Customized Merchandise”) are Vendor’s exclusive property, provided, however that Vendor grants JD Finish Line a royalty-free right and license to sell such Customized Merchandise exclusively for the agreed upon period of time between the parties’ authorized representatives, provided further that JD Finish Line shall adhere to a minimum purchase commitment with respect to such Customized Merchandise as agreed upon between the parties’ authorized representatives. (d) Vendor acknowledges that JD Finish Line has the right to advertise, offer Merchandise for sale and sell such Merchandise at retail. Except as otherwise provided herein, JD Finish Line has no interest or rights in any trademark, service mark, logo or design mark, trade name, brand name or marketing handle or slogan, designs, copyrights, patents and trade secrets owned or controlled by or licensed to Vendor or any of its affiliates or used by Vendor or any of its affiliates in connection with the Merchandise sold to JD Finish Line pursuant to the Purchase Order. Vendor grants JD Finish Line a non-exclusive, royalty-free right and license to use and publicly display Vendor’s trademark, service mark, logo or design mark, trade name, brand name or marketing handle or slogan, designs, copyrights, including without limitation Merchandise information, specifications, data and images, for the purpose of advertising the retail sale of, and facilitating the retail sale of, the Merchandise.
17. Indemnification. (a) Vendor agrees to defend (with counsel acceptable to JD Finish Line), indemnify and hold harmless JD Finish Line and its affiliates and the owners, directors, officers, employees, agents, consultants, contractors and representatives of any of them (collectively, together with JD Finish Line, the “JD Finish Line Indemnitees”) from and against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, expenses and fees (including reasonable attorneys’ fees) (any or all of the foregoing hereinafter referred to as “Claims”), which any JD Finish Line Indemnitee may suffer, sustain or become subject to, arising out of, resulting from or in connection with: (i) Vendor’s performance or non-performance of its obligations under the JD Finish Line Terms; (ii) Vendor’s breach of any of its representations and warranties set forth in the JD Finish Line Terms; (iii) any act or omission, or any negligence or willful misconduct, by Vendor or any of its employees, agents, affiliates, subcontractors or suppliers, including without limitation any violation of Applicable Law; and (iv) the Merchandise sold by Vendor to JD Finish Line, including without limitation any claims concerning defect in material, workmanship or design in such Merchandise, including, without limiting the foregoing, failure to comply with Prop 65. (b) Further, Vendor agrees to defend (with counsel acceptable to JD Finish Line), indemnify and hold harmless the JD Finish Line Indemnitees from and against any and all Claims arising out of, resulting from or in connection with any claims of infringement or misappropriation of a third party’s proprietary and intellectual property rights in connection with the Merchandise sold by Vendor to JD Finish Line, including without limitation any claims of patent, copyright, trademarks, trade names and trade dress infringement. Vendor acknowledges and agrees that it is responsible and solely liable for Merchandise sold to JD Finish Line regardless of who actually designs or manufactures the Merchandise in whole or in part. Vendor shall not settle or compromise any Claim for which indemnification is provided without the prior written consent of JD Finish Line, by a duly authorized representative, if such settlement or compromise obligates JD Finish Line to make any payment, part with any property, assume any obligation, grant any rights, be subject to any injunction or otherwise contains restrictions or other material limitations on JD Finish Line. Vendor shall further be liable for any and all costs, expenses and fees (including reasonable attorneys’ fees) incurred by JD Finish Line in enforcing this Section against Vendor. This Section shall survive acceptance, fulfillment, cancellation or termination of a Purchase Order and any delivery, inspection, acceptance or payment of or for any Merchandise.
18. Insurance. Vendor agrees to obtain, carry and maintain, at its sole cost and expense, with financially sound and reputable insurers, Commercial General Liability insurance on a per occurrence/claim form, with minimum limits of no less than One Million Dollars (US $1,000,000) per occurrence/claim. Such policy shall provide coverage that is sufficiently broad to include, but not be limited to, coverage for bodily injury (including death), property damage, contractual liability, products liability, personal injury liability, intellectual property infringement and advertising injury liability. Such insurance shall protect JD Finish Line from any and all Claims. Upon JD Finish Line’s request, Vendor shall provide JD Finish Line with a certificate of insurance from Vendor’s insurer evidencing the insurance coverage specified in this Section and evidence indicating that JD Finish Line shall receive thirty (30) days unrestricted prior written notice of any cancellation, non-renewal or material change in Insurance coverage. The applicable certificate of insurance shall name The JD Finish Line USA, Inc. and The JD Finish Line Distribution, Inc., and any other affiliate of JD Finish Line at JD Finish Line’s direction, as an additional “insured”. All insurance shall be primary and any insurance maintained by JD Finish Line or any of its affiliates shall be in excess of such Insurance and shall not be contributory. These insurance requirements in no way limit Vendor’s liability or indemnity obligations, except to the extent that Vendor’s insurance company actually pays JD Finish Line or any of its affiliates amounts that Vendor otherwise would pay. Vendor shall maintain complete and accurate records in connection its obligations under this Section.
19. Limitation of Liability. JD Finish Line shall not be liable for indirect, punitive, exemplary, incidental, consequential or special damages, including lost profits, lost income, lost revenues, business interruption or lost business arising out of the JD Finish Line Terms or any transaction or relationship with Vendor, even if JD Finish Line has been advised of the possibility of the damages and regardless of any prior course of dealing between the parties.
20. Available Remedies. All of JD Finish Line’s rights and remedies under the JD Finish Line Terms are cumulative. The exercise by JD Finish Line of any such rights and remedies shall be without prejudice to any other right or remedy available to JD Finish Line at law or in equity or otherwise. Without limiting the foregoing, charges for Vendor’s non-compliance with the requirements set forth in the Vendor Compliance Manual are set forth in the Vendor Compliance Manual. Except as otherwise provided herein, no claim, action or demand arising out of the transactions under any Purchase Order may be brought by Vendor more than one (1) year after the claim, action or demand has accrued. In the event Vendor disputes a chargeback by JD Finish Line made pursuant to the Vendor Compliance Manual, Vendor must give notice to JD Finish Line of such dispute no later than six (6) months after JD Finish Line’s imposition of such chargeback.
21. Waiver. The observance of any term of the JD Finish Line Terms may be waived (either generally or in a particular instance and either retroactively or prospectively) by JD Finish Line, but such waiver shall be effective only if it is in writing signed by an authorized representative of JD Finish Line. The waiver by JD Finish Line of a breach of any provision of the JD Finish Line Terms by Vendor shall not operate or be construed as a waiver of any subsequent breach by Vendor of the same or any other term of the JD Finish Line Terms. The right of JD Finish Line to require strict performance by Vendor shall not be affected by any prior waiver or course of dealing.
22. Confidentiality. JD Finish Line may disclose to Vendor, or Vendor may otherwise receive access to, Confidential Information. Vendor shall use Confidential Information solely to perform its obligations under the JD Finish Line Terms and shall not disclose or permit access to Confidential Information other than to Vendor’s employees, agents, affiliates, subcontractors or suppliers who need to know such Confidential Information and who are bound by confidentiality obligations no less protective of the Confidential Information than the terms contained in this Section. Vendor shall safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most sensitive information, but in any case, no less than a reasonable degree of care. Vendor shall promptly notify JD Finish Line of any unauthorized use or disclosure of Confidential Information and use its best efforts to prevent further unauthorized use or disclosure. Vendor will be responsible for any breach of this Section caused by its employees, agents, affiliates, subcontractors or suppliers. “Confidential Information” shall mean any and all non-public confidential and proprietary information of JD Finish Line and any of its affiliates that has or could have commercial value or other economic or non-economic utility in the business of JD Finish Line or any of its affiliates or that the unauthorized disclosure of which could be detrimental to the interests of JD Finish Line or any of its affiliates, regardless of whether or not JD Finish Line identifies such information as Confidential Information. Without limiting the foregoing, Confidential Information includes information relating to JD Finish Line’s sales, pricing, costs and other financial information, inventory, business and marketing plans and programs, technology and technical information, business processes, research and development activities and Merchandise purchases. Confidential Information does not include any information that is or becomes generally available to the public other than as a result of the act or omission of Vendor or any of its employees, agents, affiliates, subcontractors or suppliers; is obtained by Vendor or any of its employees, agents, affiliates, subcontractors or suppliers on a non-confidential basis from a third party that was not legally or contractually restricted from disclosing such information; was in possession of Vendor or any of its employees, agents, affiliates, subcontractors or suppliers, as established by documentary evidence, before JD Finish Line’s disclosure; or was or is independently developed by Vendor or its or any of its employees, agents, affiliates, subcontractors or suppliers, as established by documentary evidence, without using any Confidential Information. If Vendor or any of its employees, agents, affiliates, subcontractors or suppliers is required by Applicable Law or a valid legal order to disclose any Confidential Information, Vendor shall, before such disclosure, notify JD Finish Line of such requirements so that JD Finish Line may seek a protective order or other remedy, and Vendor shall reasonably assist JD Finish Line therewith. If Vendor or any of its employees, agents, affiliates, subcontractors or suppliers remains legally compelled to make such disclosure, it shall: (a) only disclose that portion of the Confidential Information that, in the written opinion of its outside legal counsel, it is required to disclose; and (b) use reasonable efforts to ensure that such Confidential Information is afforded confidential treatment. At JD Finish Line’s request, Vendor shall, at JD Finish Line’s option, return to JD Finish Line or destroy all Confidential Information in its and its employees’, agents’, affiliates’, subcontractors’ or suppliers’ possession and certify in writing to JD Finish Line the destruction of such Confidential Information. JD Finish Line has no obligation to disclose any Confidential Information to Vendor. JD Finish Line provides all Confidential Information without any representation or warranty, expressed or implied, as to the accuracy or completeness thereof, and JD Finish Line shall have no liability to Vendor or any other person relating to Vendor's use of any of the Confidential Information or any errors therein or omissions therefrom. JD Finish Line retains its entire right, title, and interest in and to all Confidential Information, and no disclosure of Confidential Information hereunder will be construed as a license, assignment, or other transfer of any such right, title, and interest to Vendor or any other person. Vendor acknowledges and agrees that any breach of this Section will cause injury to JD Finish Line for which money damages would be an inadequate remedy and that, in addition to remedies at law, JD Finish Line is entitled to equitable relief as a remedy for any such breach. This Section shall survive acceptance, fulfillment, cancellation or termination of a Purchase Order and any delivery, inspection, acceptance or payment of or for any Merchandise.
23. Relationship of the Parties. The relationship between JD Finish Line and Vendor is that of independent contractors. Nothing contained in the JD Finish Line Terms shall be construed as creating an agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither JD Finish Line nor Vendor shall have the authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from any Purchase Order.
24. Assignment. Vendor shall not assign, transfer, delegate or subcontract any of its rights or obligations under the JD Finish Line Terms without the prior written consent of a duly authorized representative of JD Finish Line. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve Vendor of any of its obligations hereunder.
25. Recordkeeping; Audit. Vendor shall maintain complete and accurate records in connection with transactions under a Purchase Order, and shall retain all such records for at least three (3) years after the fulfillment of the Purchase Order is terminated or for any period as required by Applicable Law, whichever is greater (the “Retention Period”). Company may at any time until the Retention Period is expired audit, or cause to be audited, all records of Vendor in connection with Vendor’s representations, warranties and other obligations set forth in the JD Finish Line Terms. Notwithstanding the foregoing, if any records are or may be required to resolve any claim or dispute actually known by Vendor to have arisen in relation to the JD Finish Line Terms, the Retention Period shall continue until final disposition of such claim.
26. Third Party Beneficiaries. All representations, warranties and covenants of Vendor under the JD Finish Line Terms, and all express and implied warranties with respect to the Merchandise, are for the benefit of and extend to JD Finish Line and its affiliates. JD Finish Line’s affiliates shall be entitled to exercise any rights of JD Finish Line granted under the JD Finish Line Terms.
27. Survival. Without limiting any of the foregoing Sections, the JD Finish Line Terms shall survive acceptance, fulfillment, cancellation or termination of a Purchase Order and any delivery, inspection, acceptance or payment of or for any Merchandise.
28. General Provisions. The JD Finish Line Terms shall be interpreted, construed, and governed by and under the laws of the State of Indiana, without regard to its conflicts of law provisions (the “Governing Law”). The JD Finish Line Terms shall not be subject to or governed by the U.N. Convention on Contracts for the International Sale of Goods. All disputes arising from or otherwise related to the JD Finish Line Terms shall be resolved exclusively in a federal or state court located in the Indianapolis, Indiana, and JD Finish Line and Vendor each irrevocably consent to the non-exclusive jurisdiction and venue of such courts. Any award or judgment of any of said courts may be entered and enforced in any other domestic or foreign court of competent jurisdiction. In any dispute arising under the JD Finish Line Terms, the prevailing party shall be entitled to reasonable attorneys’ fees. If any provision of the JD Finish Line Terms is deemed invalid, illegal or unenforceable under the Governing Law by a court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision of the JD Finish Line Terms or invalidate or render unenforceable such provision in any other jurisdiction. In such instance, the parties shall replace such invalid, illegal or unenforceable provision with a provision as close as possible to the original meaning and intent of such unenforceable provision while still being valid, legal and enforceable. Provisions of the JD Finish Line Terms which, by their nature, should apply beyond their terms will remain in full force and effect after any acceptance, fulfillment, cancellation or termination of a Purchase Order and any delivery, inspection, acceptance or payment of or for any Merchandise. Except as otherwise provided herein, and except for routine, operational communications, notices issued pursuant to the JD Finish Line Terms shall be sent via overnight mail by a nationally recognized overnight carrier or U.S. Certified Mail to their then-current principal place of business and any notice so sent shall be deemed delivered (a) one (1) business day after delivery to the overnight courier, for overnight mail, and (b) five (5) business days after mailing, for U.S. Certified Mail.