Supplier Terms and Conditions
1. Definitions "Goods"
shall mean, for the purpose of this Purchase Order, any articles, materials, supplies, drawings, data, documents, goods and other property furnished or to be furnished in this Purchase Order. “Developments” will mean all (i) concepts, ideas and inventions developed by or for Seller in the course of performance under this Purchase Order, and (ii) designs, blueprints, schematics, and other written materials and works of authorship authored or created by or for Seller in the course of performance under this Purchase Order. "Purchase Order"
means these terms and conditions, together with the Purchase Order cover and any specifications or other documents incorporated by reference as provided on the Purchase Order cover. "Buyer"
shall mean the buyer named in the Purchase Order. "Services"
shall mean those services to be performed by Seller at the request of Buyer, in each case as specified or described in this Purchase Order. 2. Acceptance
Seller's commencement of Services or work on the Goods or shipment of the Goods shall be deemed an acceptance of this Purchase Order. Seller's acceptance of this Purchase Order includes Seller's acceptance of the express terms and conditions contained herein. 3. Entire Agreement
This Purchase Order constitutes the entire and fully integrated agreement between the parties with respect to the subject matter hereof, and supersedes any and all other agreements between the parties related thereto, as well as all proposals, oral or written, and all negotiations, conversations or discussions between the parties related thereto. Except as provided in Buyer’s orders, no product or service specifications, or terms and conditions that are additional or contrary to the terms of this Purchase Order, whether contained in any order confirmation or other communication from Seller or any third party, will be construed as, or constitute a waiver of these terms and conditions, or acceptance of any such additional terms, conditions or specifications. Buyer hereby rejects and objects to such additional or contrary terms, conditions or specifications. 4. Assignment
No part of this Purchase Order may be assigned or subcontracted without the prior written approval of the Buyer. 5. Changes
Buyer shall have the right at any time to make changes in drawings, designs, specifications, materials, packaging, time and place of delivery and method of transportation. If any such changes cause an increase or decrease in the cost, or the time required for the performance, an equitable adjustment shall be made and this Purchase Order shall be modified in writing accordingly. Seller agrees to accept any such changes subject to this paragraph. 6. Termination for Convenience of Buyer
Buyer reserves the right to terminate this Purchase Order or any part hereof for its sole convenience. In the event of such termination, Seller shall immediately stop all work hereunder and shall immediately cause any of its suppliers or subcontractors to cease such work. Seller shall be paid a reasonable termination charge consisting of a percentage of the order price reflecting the percentage of the work performed prior to the notice of termination, plus actual direct costs resulting from termination. Seller shall not be paid for any work done after receipt of the notice of termination, nor any costs incurred by Seller’s suppliers or subcontractors which Seller could reasonably have avoided. 7. Termination for Cause
Buyer may terminate this Purchase Order or any part hereof upon notice to Seller if Seller breaches any provision of this Purchase Order. In the event of such termination, Buyer shall not be liable to Seller for any amount, and Seller shall be liable to Buyer for any and all damages sustained by reason of the default which gave rise to the termination. 8. Delivery of Goods
Time is of the essence with respect to this Purchase Order. Therefore, Buyer and Seller have agreed to the delivery or shipping date(s) of Goods and performance of Services stipulated in this Purchase Order. Any provisions herein for delivery of Goods by installments shall not be construed as making the obligations of Seller severable. 9. Force Majeure
Notwithstanding any other provision herein, Buyer may delay delivery or acceptance of Goods covered by this Purchase Order occasioned by causes beyond its control. Seller shall hold such Goods at the direction of the Buyer, and shall deliver them when the cause affecting the delay has been removed. Buyer shall be responsible only for Seller’s direct additional costs in holding the Goods or delaying performance of this Purchase Order at Buyer’s request. Upon giving notice to the other party, a party affected by an event of Force Majeure will be released without any liability on its part from the performance of its obligations under this Purchase Order, except for the obligation to pay any amounts due and owing hereunder, but only to the extent and only for the period that its performance of such obligations is prevented by the event of Force Majeure. Such notice will include a description of the nature of the event of Force Majeure, and its cause and possible consequences. The party claiming Force Majeure will promptly notify the other party of the termination of such event. During the period that the performance by one of the parties of its obligations under this Purchase Order has been suspended by reason of an event of Force Majeure, the other party may likewise suspend the performance of all or part of its obligations hereunder to the extent that such suspension is commercially reasonable. Should an event of Force Majeure which affects the performance by one or both of the parties hereto under the whole or substantially the whole of this Agreement extend for more than sixty (60) consecutive days, either party may terminate this Purchase Order without liability to the other party, except for payments due to such date, upon giving written notice to the other party. A Force Majeure delay means any delay caused by, but not limited to, an act of God; government action or failure of the government to act; war or acts of the public enemy; strike or other labor trouble; fire; floods; severe weather, riots or other causes beyond the reasonable control of the party affected, provided that any such delay is not caused, in whole or in part, by the negligent acts or omissions of the party so delayed and further that such party is unable to make up for such delay with reasonable diligence and speed. 10. Warranty
Seller expressly warrants that all Goods or Services furnished under this Purchase Order shall conform to all specifications and appropriate standards, will be new, and will be free from defects in material or workmanship. Seller warrants that all such Goods or Services will conform to any statements made on the containers or labels or advertisements for such Goods, or Services, and that any Goods will be adequately contained, packaged, marked and labeled. Seller warrants that all Goods or Services furnished hereunder will be merchantable, and will be safe and appropriate for the purpose of which Goods or Services of that kind are normally used. If Seller knows or has reason to know the particular purpose for which Buyer intends to use the Goods or Services, Seller warrants that such Goods or Services will be fit for such particular purpose. Seller warrants that Goods or Services furnished will conform in all respects to samples. Inspection, test, acceptance or use of the Goods or Services furnished hereunder shall not affect the Seller’s obligation under this warranty, and such warranties shall survive inspection, test and use. Seller warrants that all Good and Services provided under this Purchase Order comply with all applicable federal, state, and local laws, ordinances, rules and regulations, including, but not limited to U.S. Food an Drug Administration (FDA) and U.S. Department of Agriculture regulations (USDA). Seller warrants that any food goods subject to this Purchase Order shall not be adulterated or misbranded as defined in the Federal Food, Drug and Cosmetic Act, as amended. Seller agrees, through acceptance of this order, to comply with the following as applicable, which are incorporated by reference: (a) Executive Order 11246 and 11375, as amended, including regulations related to elimination of Segregated Facilities (33 FED. REG. 7804), (b) the Rehabilitation Act of 1973, as amended, (c) the Vietnam-Era Veterans' Readjustment Assistance Act of 1974, as amended, (d) public law 95-507 pertaining to small business and small disadvantaged business, (e) executive Order 12138 pertaining to women-owned business, and (f) the Fair Labor Standards Act of 1938, as amended. Seller’s warranty shall run to Buyer, its successors, assigns and customers, and users of products sold by the Buyer. 11. Inspection/Testing
Payment for the Goods delivered hereunder shall not constitute acceptance thereof. Buyer shall have the right to inspect such Goods and to reject any or all of the said Goods which are in Buyer’s judgment defective or non-conforming. Goods rejected and Goods supplied in excess of quantities called for herein may be returned to Seller at Seller’s expense and, in addition to Buyer’s other rights. Buyer may charge Seller all expenses of unpacking, examining, repacking and reshipping such Goods. 12. Product Recall
All Goods will be prepared, packed, and held in accordance with Good Manufacturing Practice (GMP) guidelines including strict sanitary conditions to minimize the possibility of contamination. Seller’s plant may be inspected by Buyer at any time and from time to time during normal operating hours, upon reasonable advance notice and subject to Seller’s customary health and safety requirements. Seller shall contact Buyer immediately if Buyer’s product is sampled by any regulatory agency, or if any hazardous conditions or products are found by any regulatory agency. Goods that may be subject to recall because of any sampling done at Seller’s locations must not be shipped to Buyer until test results are final. Goods must be shipped in properly sanitized units (as necessary per the product specifications). Under no circumstances will transport vehicles which have hauled potentially unsafe materials (including, but not limited to, garbage, trash, asbestos, toxic, infectious or medical waste, unpasteurized eggs or any non-food grade material) be used to transport Goods. Out-of-specification or non-conforming Goods that create a health or safety risk will be removed from Buyer facilities within one day of notification unless otherwise approved by Buyer. All other types of non-conforming Goods will be removed from Buyer facilities within three days of notification, unless otherwise approved. Such Goods shall be removed at Seller expense. Buyer shall have the sole right, exercisable in its sole discretion, to initiate and direct the content and scope of a recall, market withdrawal, stock recovery, product correction and/or advisory safety communication regarding the Goods or Buyer finished goods incorporating the Goods. Buyer, in its sole discretion, shall determine the manner, text and timing of any publicity to be given such matters. In the event a recall action is initiated or directed by Buyer, Seller agrees to fully cooperate and take all such steps as are reasonably requested to implement the recall action in a timely and complete manner. Any and all action to be taken in connection with a recall action shall be in accordance with FDA and/or USDA policies and other laws. Seller shall bear the costs associated with any recall action which results from such Goods not complying with Buyer specifications and/or Seller warranties under this Agreement, or from Seller negligence, defective design or defective manufacture, including, but not limited to, lost profits and labor, materials and overhead costs associated with any downtime experienced by Buyer. 13. Indemnification
Seller, its heirs, successors, assigns and legal representatives, shall forever, protect, indemnify and save harmless Buyer, its subsidiaries and affiliated companies, and their successors, assigns, officers, directors, shareholders, agents, employees, customers and users of their products against all damages, claims, suits at law or in equity, demands or losses of any kind caused by or in any way arising out of or alleged to have arisen out of the Good or Services or Seller’s performance or lack of performance under this Purchase Order. 14. Price Warranty
Seller warrants that the prices for the Goods or Services sold to Buyer hereunder are not less favorable than those currently extended to any other customer for the same or similar articles in similar quantities. In the event Seller reduces its price for such Goods or Services during the term of this Purchase Order, Seller agrees to reduce the price hereof correspondingly. Seller warrants that prices shown on this Purchase Order shall be complete, and no additional charges of any type shall be added without Buyer’s express written consent. Such additional charges include, but are not limited to, packaging, labeling, custom duties, taxes, storage, insurance, boxing and crating. 15. Intellectual Property
Seller hereby acknowledges that Seller does not have, and will not acquire, any interest in any of Buyer’s products, technology or intellectual property rights as a result of this Purchase Order or the performance of any obligations hereunder. Seller hereby assigns to Buyer all right, title and interest in all Developments. At Buyer’s request at any time during or after the term of this Agreement, Seller will execute any additional documentation reasonably requested by Buyer to give effect to such assignment. If Seller discontinues the manufacture of any Goods, Seller will make available to Buyer at no cost all drawings, specifications, data and know‑how reasonably necessary to enable and facilitate the manufacture of the affected Goods. Buyer will have a perpetual, irrevocable, world-wide, royalty-free license, with the right to grant sublicenses, to (i) use, modify, reproduce, display and distribute such material, and (ii) design, make, have made, use, sell and import products and services of any kind that are based upon or incorporate any such know-how or material. 16. Intellectual Property Indemnification
Seller shall indemnify and save harmless Buyer, its successors, assigns, and their officers, directors, shareholders, employees, customers or users of its products, from and against all loss, liability, and damage, including costs and expenses, resulting from any claim that the manufacture, use, sale or resale of any Goods supplied under this Purchase Order infringe any intellectual property or intellectual property rights, and Seller shall when notified defend any action or claim of such infringement at its own expense. Indemnification for infringement shall not apply to Goods manufactured in accordance with Buyer’s detailed design or any infringement based solely upon the use of Goods supplied hereunder in combination with other goods not furnished by Seller to the extent the infringement is not caused by the Goods supplied by Seller. In the event the sale and/or use of such Goods is enjoined, Seller shall at its own expense, at Buyer’s option either procure for Buyer the right to continue using such Goods, replace same with equivalent non-infringing Goods, or modify such Goods so they become non-infringing, or remove same and refund the purchase price, including transportation, installation, removal and other charges incidental thereto, as mutually agreed upon between Buyer and Seller. 17. Insurance
In the event that Seller’s obligations hereunder require or contemplate performance of Services by Seller’s employees, or persons under contract to Seller, to be done on Buyer’s property, or property of Buyer’s customers, the Seller agrees to comply with Buyer’s insurance conditions as revised from time to time and submit evidence of such insurance. This insurance, at the present time, shall include but not be limited to: Comprehensive General Liability including contractual and products liability. There shall be minimum limits of $100,000/$300,000 for bodily injury and $50,000 property damage. The certificates must specifically mention that contractual and products liability is provided and must contain a clause covering Sellers assumption of liability. Seller agrees to supply (if needed) automobile liability insurance including owned, non-owned and hired vehicles and Worker’s Compensation, if needed, with Statutory limits including $100,000 Coverage B. 18. Gratuities
Seller hereby represents that it has not received or given any gifts or gratuities in connection with the order received from Buyer. If, at any time, Buyer determines that Seller is in violation due to the foregoing representation, Buyer may terminate this Purchase Order upon written notice to Seller and Buyer shall have no further obligation to Seller. 19. Confidential Information
Seller agrees that all information furnished to Seller by Buyer or acquired by Seller in connection with this Purchase Order is proprietary to Buyer, and delivered or acquired for the sole purpose of Seller’s performance of this Purchase Order, and such information shall be held in the strictest confidence and shall not be used or disclosed by Seller, without Buyer’s prior written consent, except for the fulfillment of this Purchase Order. All such information shall be promptly returned to Buyer upon written request. 20. Waiver
Buyer's failure to exercise or enforce any of its rights under this Purchase Order or any other right or privilege under law, or Buyer's waiver of any breach by Seller, shall not constitute a waiver or modification of any terms, conditions, privileges, or rights whether of the same or similar type, unless Buyer gives such waiver in writing. 22. Setoff
All claims for money due, or to become due, to Seller shall be subject to setoff by Buyer by reason of any counterclaim arising out of this or any other transaction with Seller. 23. Title and Risk of Loss
Seller warrants that title to the Goods shall be free from any liens and encumbrances. Title to the Goods shall transfer to Buyer in accordance with the terms stipulated in this Purchase Order. Seller acknowledges and grants to Buyer the right to take possession of the Goods at any time, including Buyer's right to enter Seller's facilities for such purpose. Notwithstanding the above and unless anything to the contrary is provided for herein, the Goods shall remain the Seller's risk until received by Buyer as specified in this Purchase Order. Title to all drawings, specifications, calculations, technical data and other documents that Seller submits in accordance with the Purchase Order shall vest with Buyer. Buyer shall have the right to use such documents for any purpose pertaining to the installation, operation and maintenance of the Goods. 23. Applicable Law, Venue
THIS PURCHASE ORDER SHALL BE GOVERNED BY, AND CONSTRUED, INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF MINNESOTA, INCLUDING, WITHOUT LIMITATION, THE MINNESOTA UNIFORM COMMERCIAL CODE AS AMENDED FROM TIME TO TIME, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES. ANY DISPUTE BETWEEN BUYER AND SELLER CONCERNING THIS PURCHASE ORDER SHALL BE SUBMITTED TO A STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF MINNESOTA AND SELLER IRREVOCABLY CONSENTS TO THE JURISDICTION OF SUCH COURT AND WAIVES ANY ARGUMENT THAT VENUE IN SUCH FORUM IS INCONVENIENT.