AMERICAN LICORICE COMPANY (PURCHASER)
PURCHASE ORDER TERMS AND CONDITIONS
October 25, 2011
These Terms and Conditions and any additional terms and documents referred to herein constitute the entire agreement between Purchaser and the supplier (Supplier) that supplies or provides the goods or services ordered by Purchaser (Services or Goods, whichever is applicable).
1. ACCEPTANCE. Supplier’s commencement of Services or delivery of Goods or any other event that constitutes acceptance under applicable law, shall be deemed unconditional acceptance of this Purchase Order and as Supplier’s waiver of any additional terms of any confirmation, invoice or other writing issued by Supplier.
2. DELIVERY AND RISK OF LOSS. The obligation of Supplier to meet the terms of delivery, specifications and quantities is of the essence of this Purchase Order. Supplier assumes full responsibility for packing and transportation and, unless otherwise specified, shall bear liability for loss, destruction or damage until Goods are delivered to Purchaser even if Purchaser has agreed to reimburse transportation costs.
3. INSPECTION. Payment for Goods and Services delivered shall not constitute acceptance. Purchaser shall have the right to inspect such Goods and Services and to reject any or all Goods and Services which are, in Purchaser’s sole reasonable discretion, defective or nonconforming to the agreed quantity, quality or specifications. Rejected Goods may be returned to Supplier at Supplier’s expense. Failure to give notice of defects to Supplier shall not constitute a waiver of breach of warranty or any other condition.
4. OWNERSHIP OF WORK. As a result of Supplier’s access to Purchaser’s confidential information in the performance of Services or in the manufacture or creation of Goods, Supplier may produce materials, including but not limited to know-how, designs, mask works, trademarks, processes, trade secrets, ideas, artwork or other copyrightable or patentable works (Work Product). Supplier agrees that all right, title and interest in and to Work Product shall be owned exclusively by Purchaser, except for Supplier’s intellectual property developed prior to entering into this Purchase Order. To the extent ownership of any Work Product does not by operation of law vest in Purchaser, Supplier assigns, sells, transfers, grants and conveys all right, title and interest in such Work Product to Purchaser, including without limitation, the exploitation of intellectual property rights to make any reproduction, distribution, public communication and transformation of such Work Product by any and all means worldwide. Supplier shall not enforce any of its intellectual property rights (including patent, trademark or copyright rights) against Purchaser for any product that includes or incorporates any Goods or Services.
5. WARRANTY. Supplier warrants that: (a) the prices for Goods and Services sold to Purchaser under this Purchase Order are not less favorable than those currently extended to any other customer for the same or like Goods and Services in equal or lesser quantities; (b) all Goods and Services shall be of merchantable quality, free from all latent or patent defects, shall conform to Purchaser’s specifications or samples, and shall be safe for their intended use and shall be free and clear of all claims, encumbrances and third party rights; (c) if any Goods are foods, or ingredients for use in food products, Supplier guarantees that such articles or materials are produced, manufactured, processed, labeled, marked and shipped in accordance with all applicable federal, state and local laws and are not adulterated, contaminated by foreign materials, misbranded, mislabeled or falsely invoiced within the meaning of the Federal Food, Drug and Commerce Act and are not goods which may not, under the provisions of Sections 404 or 505 of the Act, be introduced into interstate commerce and are not in violation of the Food Additives Amendments of 1958; (d) Goods have been produced and Services have been performed in compliance with and Supplier agrees to be bound by all applicable federal, state and local laws, orders, rules and regulations; (e) Goods and Services do not infringe any patent, trademark or copyright or any other third party right; and (f) Supplier owns or has a right to sell Goods and provide Services and Supplier warrants that it will produce Goods and perform Services in a good and workmanlike manner.
6. TERM AND TERMINATION. If Supplier becomes insolvent or the subject of bankruptcy or assigns its assets for the benefit of creditors, or if Supplier fails to cure any breach under this Purchase Order within ten (10) business days after written notice, Purchaser may suspend or terminate performance of any obligation under this Purchase Order and purchase substitute Goods or Services elsewhere and charge Supplier with any losses or costs incurred by Purchaser and exercise any and all other legal rights or remedies available to Purchaser. Purchaser reserves the right, without liability to Supplier, to terminate all or part of this Purchase Order at any time without cause by written notice to Supplier, provided that Purchaser shall compensate Supplier for all pre-approved costs and expenses incurred up to the date of termination.
7. REMEDIES, LIMITATION OF LIABILITY AND INDEMNITY. In no event shall Purchaser be liable for any loss of profits or business, any consequential, special, indirect or punitive damages, even if Purchaser has been advised of the possibility of such damages. If Supplier breaches this Purchase Order, Purchaser shall have all remedies available at law and equity. Supplier agrees to indemnify and hold Purchaser, its parent, subsidiaries, officers, directors, employees and agents harmless from and against all claims, liabilities, expenses, losses or damages (including reasonable attorneys’ fees) to which Purchaser may become subject insofar as such claims, liabilities, expenses, losses or damages arise out of or are based upon (a) or Services ordered or Goods purchased from Supplier, but for Goods purchased, Supplier provides no warranty or indemnity against the adulteration or misbranding which occurs after delivery to Purchaser and is not caused by any act or failure to act by Supplier or by a defect in Supplier’s process, packaging or ingredients used in the Goods, (b) a breach by Supplier of any of the warranties contained herein; or (c) the negligent acts or omissions of Supplier’s officers, directors, employees or agents. Supplier shall defend such suits at its sole cost and Purchaser shall have the right at its own expense to have such litigation monitored by its own counsel.
8. FORCE MAJEURE. Neither party shall be liable for delays or failures in performance of any obligations under this Purchase Order due to a cause beyond its reasonable control.
9. INSURANCE. Supplier warrants that it carries sufficient limits of worker’s compensation, product liability and general commercial liability coverages and agrees that Purchaser shall be named as an additional insured under applicable coverages. Supplier agrees to provide a certificate of insurance or appropriate endorsement evidencing such coverages upon acceptance of this Purchase Order as defined above.
10. CONFIDENTIALITY. Without Purchaser’s prior written consent, Supplier agrees that any information obtained or learned by Supplier in connection with this Purchase Order shall be kept confidential and used only for the purposes of this Purchase Order and shall not be disclosed to any third party except to those employees or agents of Supplier who have a specific need to know or when required by law.
11. MISCELLANEOUS. In addition to Purchaser’s rights and remedies provided herein, Purchaser reserves the right to seek any other rights and remedies provided by applicable law or in equity. If any provision is declared invalid, illegal or unenforceable, the validity of the remaining provisions shall not be affected. The parties agree that this Purchase Order shall not be presumptively interpreted for or against any party by reason of that party having drafted or negotiated, or failed to draft or negotiate, all or any portion of any provision of this Purchase Order. This Purchase Order shall be governed by and construed in accordance with the laws of the state of Oregon without regard to its conflicts of laws principles. Supplier represents and warrants that it does not and will not knowingly use any slave labor or engage in any human trafficking as defined in ILO Convention No. 29 and in the Palermo Protocol. Any rights or obligations arising hereunder may not be assigned or delegated by Supplier without Purchaser’s prior written consent. No waiver or amendment of any provision of these Terms and Conditions shall be effective unless in writing and signed by both parties. The relationship between Supplier and Purchaser is and shall be that of independent contractor, and Supplier shall not be deemed to be an agent or employee of Purchaser. Any provision in this Purchase Order which, by its nature, would reasonably be expected to be performed after its termination, shall survive and be enforceable after such termination.