Purchase Order Terms and Conditions

By accepting the accompanying purchase order to which this document is attached (the “PO”), the vendor listed on the PO (“Vendor”) is deemed to accept these Terms and Conditions (these “Terms”). These Terms will apply to the purchase of goods and/or services (collectively the “Goods”) by Hearthside Food Solutions, LLC d/b/a Maker’s Pride as set forth on the PO (“Maker’s Pride” or “Purchaser”). Maker’s Pride will place orders for Goods pursuant to the issuance of a PO. Each PO will, among other items, specify: (a) the Goods that Maker’s Pride requires; (b) the quantities needed; and (c) the date of delivery. To the extent there is a conflict between a PO and these Terms, the provisions of these Terms will govern, unless otherwise explicitly stated to the contrary in the PO. The PO and these Terms prevail over any other Vendor’s general terms and conditions of sale, regardless of whether or when Vendor has submitted its sales confirmation or such terms, and shall not be modified thereby. Fulfillment of the PO constitutes acceptance of these Terms.

1. Definitions

For purposes of these Terms:

  1. “Equipment” means all machinery, equipment, parts, components, materials, and other tangible items identified in a PO.
  2. “Services” means all installation, construction, plumbing, maintenance, repair, commissioning, testing, engineering, consulting, supervision, and other services provided by Vendor under a PO.
  3. “Deliverables” means all drawings, manuals, software, programs, reports, training materials, certifications, asbuilts, test results, and other work product created or provided in connection with the Equipment or Services.

All references in these Terms shall apply equally to Equipment, Services, and Deliverables, unless the context clearly requires otherwise.

2. Purchases

Maker’s Pride hereby orders and purchases from the Vendor, and the Vendor agrees to sell and provide to Maker’s Pride, the Goods specified in a PO. Goods shall be sold to Maker’s Pride in accordance with these Terms

3. Sope of Work

Vendor’s obligations include all labor, materials, equipment, supervision, tools, permits, fees, inspections, testing, travel, coordination, and documentation necessary to fully perform the Goods and/or Services in accordance with the PO, applicable laws, and industry standards, whether or not each item is expressly stated. Any exclusions, assumptions, or limitations must be expressly identified in writing in the PO and approved by Maker’s Pride. No exclusions shall be implied.

4. Shipping and Delivery

  1. Where a delivery date or delivery schedule is specified by Maker’s Pride, timely delivery shall be made in accordance with those requirements, and Vendor shall advise Maker’s Pride immediately of any anticipated delays together with the reasons for such delays. Delivery shall be made to a location specified by Maker’s Pride in the PO (the “Delivery Site”).
  2. Vendor shall notify Maker’s Pride of delivery particulars in advance of delivery, including mode of shipment, name of shipping or courier company, tracking or identification number, and special instructions regarding handling, unpacking, assembly, or installation.
  3. All Goods delivered to the Delivery Site shall be subject to inspection by Maker’s Pride, and Maker’s Pride may reject any Goods that are defective or nonconforming in any material respect or do not fit Maker’s Pride’s intended use. Failure to conduct any inspection, use of Goods (including for testing or commissioning), or payment shall in no way affect Maker’s Pride’s right to reject nonconforming Goods or avail itself of any other remedy.
  4. Vendor shall conduct all necessary quality control testing and shall ensure that the Goods comply with these Terms and applicable documentation.
  5. All risk of loss or damage to the Goods shall remain with Vendor until acceptance by Maker’s Pride. Title to the Goods shall pass upon acceptance, unless otherwise agreed in writing.

5. Documentation & Software

With the delivery of Goods to Maker’s Pride, Vendor shall provide Maker’s Pride, at no charge, legible copies of all documentation relating to the Goods including, but not limited to, all drawings, operator/user manuals, including soft copy manuals as applicable and any other printed or electronic media available for user education, all available electrical/mechanical/pneumatic schematics manuals, OEM parts lists, pricing lists or schedules, soft copy manuals, troubleshooting guides, training, health and safety manuals, as applicable, schematics, drawings, blueprints, and data sheets, reasonably required by Maker’s Pride. The drawings and documentation will be in sufficient detail to enable Maker’s Pride to buy spare parts and to maintain the Goods. Maker’s Pride may reproduce such documentation for use hereunder. Vendor shall provide to Maker’s Pride all programs, software, and designs specific to this PO in the original electronic format, which may be subject to editing by Maker’s Pride.

6. Installation and Services

If applicable, Vendor shall: If applicable, Vendor shall perform all installation, implementation, configuration, maintenance, repair, consulting, or other services provided under this Agreement or any Purchase Order (“Services”) in a diligent, professional, and workmanlike manner. Vendor shall not, in any material respect, damage Maker’s Pride property or disrupt Maker’s Pride operations except as expressly authorized, and shall promptly repair or remedy any such damage at Vendor’s sole cost.

The following requirements apply to all Services, including installation of Products:

  1. Install the Goods or provide Services at the Delivery Site(s) on the date or dates specified in the PO or otherwise agreed upon by the Parties (“Implementation Schedule”). Vendor shall supply all labor, materials, tools, permits, fees, inspection and testing costs, and supervision for the complete and satisfactory installation of the Goods or provided services at the Delivery Site using only qualified, trained, and appropriately serviced personnel.
  2. When installing Goods or providing services, Vendor shall not, in any material respect, (i) damage any of Maker’s Pride’ property; or (ii) disrupt or interfere with Maker’s Pride’ systems or procedures, except as specified in the Implementation Schedule. In the event of any such damage, disruption, or interference, Maker’s Pride and its agents, contractors, and employees may take all such steps as are considered appropriate by Maker’s Pride to repair or restore such damage, disruption or interference, and Vendor will indemnify, defend and hold harmless Maker’s Pride against all losses that result from any such damage, disruption or interference including all remediation, rework, replacement and associated downtime.
  3. During installation of Goods or providing services, Vendor shall keep the Delivery Site in as clean and safe a condition as practical and, upon completion of the installation, the Vendor shall remove all tools, surplus materials, and debris and shall leave the Delivery Site in a clean and safe condition satisfactory to Maker’s Pride and compliant with all food safety and contamination-control requirements.

  4. Vendors conducting services, equipment installation, or construction services are subject to all governing regulations and Maker’s Pride contractor policies, including food safety, workplace safety, and personal conduct policies and procedures and comply with all site-specific access, sanitation, security, and hazard-control requirements. Maker’s Pride may immediately suspend work, without cost or schedule impact, if Vendor’s activities create a health, safety, food safety, regulatory, or operational risk.

  5. Supplier and all subcontractors must obtain and maintain all required permits, licenses, and certifications for the performance of services under this Agreement. Copies shall be provided to Maker’s Pride upon request.
  6. Supplier shall immediately notify Maker’s Pride of any accident, injury, property damage, regulatory violation, or hazardous condition occurring in connection with the Services.
  7. Supplier shall implement measures to prevent pollution, manage waste, and mitigate environmental impacts during performance of Services.

7. Insurance

As applicable, any installation, supervision, construction, delivery, and/or commissioning services performed by Vendor shall be carried out by properly qualified and licensed personnel in accordance with all applicable laws and regulations. Vendor shall, at its own expense, maintain during the Term and for any applicable statute of limitations thereafter the following insurance coverages with insurers rated A- or better by A.M. Best: (i) Commercial General Liability insurance on an occurrence basis, including products/completed operations, contractual liability, and personal and advertising injury, with limits of not less than $5,000,000 per occurrence, which may be satisfied through a combination of primary and umbrella/excess coverage; (ii) Errors and Omissions / Professional Liability insurance covering all professional services, including delivery and/or installation where Vendor is responsible, with limits of not less than $2,000,000 per occurrence and $1,000,000 in the aggregate annually; (iii) Automobile Liability insurance covering all owned, hired, and non-owned vehicles used in connection with the Goods and/or Services, with limits of not less than $2,000,000 per occurrence for bodily injury and property damage; (iv) Workers’ Compensation insurance as required by applicable law; (v) Employers’ Liability insurance with limits of not less than $1,000,000 each accident; and (vi) Excess/Umbrella Liability insurance on an occurrence basis with limits of not less than $3,000,000 per occurrence, applying to Employers’ Liability, Commercial General Liability, and Automobile Liability coverages. All such insurance shall fully protect Vendor and Maker’s Pride from any and all claims or liabilities of any kind or nature, including property damage, personal injury, death, and economic loss, arising out of or relating to the Goods, their delivery or installation, or any Services performed by Vendor or its employees, agents, or contractors. All required policies shall (a) include a waiver of subrogation in favor of Maker’s Pride; (b) name Maker’s Pride as an additional insured (except Workers’ Compensation and Professional Liability where commercially unavailable); (c) be primary and non-contributory with respect to any insurance carried by Maker’s Pride; and (d) include cross-liability and severability of interests provisions. Upon Maker’s Pride’s request, Vendor shall promptly furnish certificates of insurance and, if requested, copies of relevant endorsements evidencing compliance with this Section.

8. Acceptance

All Goods shall conform to the provisions of this PO and documentation attached to the purchased Goods. The Goods shall be free from faults and defects in materials, workmanship, and design. In the event the Goods fail to conform to all the provisions set out in the PO, Maker’s Pride shall, at Maker’s Pride’ sole discretion; a) Elect to repair, correct, or replace the defective or nonconforming Goods, components, or sub-components by the Vendor within an agreed upon timeframe. b) If this is not possible, Maker’s Pride may use a third party to repair, correct or replace the goods or services, with costs be reimbursed to Maker’s Pride by Vendor. c) If neither of the above solutions are an option, the PO may be terminated by Maker’s Pride in whole or in part. In such event, all payments will be refunded by Vendor, including credit for installation, removal, and transportation costs.

9. Payment Terms

  1. Payments for the Goods and any related services shall be as set out in the applicable PO or these Terms.
  2. All invoices for work conducted on Time & Material or Cost-Plus basis must be accompanied with copies of back-up time sheets and travel expenses as incurred. Otherwise, Maker’s Pride will decline payment.
  3. For any cost extras over the PO amount, Vendor is to ensure that appropriate Maker’s Pride signatory approvals are indicated on an approved change order or PO, where applicable, before submitting extras for payment.
  4. For any services performed in Canada by non-residents, a 15% withholding tax applies to the labor portion of the invoiced services, or the entire invoice, if back-up (labor & expenses) is not provided.
  5. Unless otherwise agreed to by the Parties in the applicable PO, Vendor agrees the terms of payment will be as follows:
    • 40% down payment
    • 40% upon receipt of Goods
    • 10% upon installation of equipment and successful dry run
    • 10% upon correction of deficiencies (including any performance guarantee) and Plant Manager signoff

Vendor shall not be entitled to payment for any extra work, change, deviation, or additional cost unless Maker’s Pride issues a prior written, executed change order. Verbal approvals, emails, field directives, or course of dealing shall not authorize additional compensation or schedule relief.

10. Price

The price on this Order is firm and is the total amount due from Maker’s Pride for Goods (including, without limitation, any duties, taxes, tariffs and other charges). If Buyer has a claim against Seller relating to this Order, Buyer may deduct or set off disputed amounts from any amounts Buyer owes Seller.

11. Vendor Representations and Warranties

Vendor represents and warrants to Maker’s Pride as follows:

  1. all Goods shall be new and unused, unless agreed to in writing by the Parties;
  2. all Goods and Services shall have received all required approvals of, and shall comply with, all applicable standards and requirements referred to in the specifications or applicable laws, including, but not limited to, the applicable approvals, standards, or requirements referred to in the documentation shipped with or provided for use with the Goods and those required by applicable governmental authorities, including rules, regulations, orders, conventions, ordinances, and standards that relate to the manufacture, label, transport, import, export, licensing, approval, or certification of the Goods;
  3. all materials used by Vendor in the Goods will satisfy current United States and Canadian governmental and safety constraints on restricted, toxic, and hazardous materials as well as environmental, electrical, and electromagnetic considerations that apply to the country of manufacture, sale, or destination. Vendor shall ensure that all Goods conform to all state, Federal, provincial, local, and national laws, regulations, and recognized standards to which it will be delivered and/or installed. Costs of any modifications required to the Goods or installation to meet state, provincial, local, or national standards, codes, and regulations shall be borne by the Vendor if not already included in the PO. Specifically, but not limiting the generality of the foregoing, all Goods must comply with all aspects of OSHA and CSA Machine Safeguarding Act Z432-16 and be designed and constructed to meet accepted GMP standards for good manufacturing establishments.
  4. all electrical Goods shall, if the Delivery Site is located in Canada, be authorized or approved in accordance with the Ontario Electrical Safety Code, current as of the date of these Terms, by a Certification Organization, accredited with the Standards Council of Canada Act (Canada), and shall bear the Certification Organization’s mark which identifies Goods certified for use in Canada; and if the Delivery Site is located in the United States, be authorized or approved in accordance with the National Electric Code, current as of the date of these Terms, by a Certification Organization, accredited with the NFPA, and shall bear the Certification Organization’s mark which identifies Goods certified for use in the United States. Certification shall be to the standard that is appropriate for the intended use of the Goods at Maker’s Pride’ facilities. Any Services involving electrical work shall comply with the same standards and shall be performed only by licensed and certified personnel;
  5. upon completion of the installation (if applicable) of the Goods at the Delivery Site, there shall be no construction or other liens outstanding in regard to such Goods or installation.
  6. Unless Vendor provides a greater warranty to Maker’s Pride, Vendor represents and warrants to Maker’s Pride that for a period of twelve (12) months following the acceptance of the Goods by Maker’s Pride (the “Warranty Period”), the Goods shall:
    1. be delivered to Maker’s Pride in a ready-to-use and good sanitary condition with no sharp edges debris, metal shavings, chipped paint, or other defect;
    2. conform to the applicable specifications, samples, and descriptions approved by Maker’s Pride in all material respects and be in good operating condition and free of defects in design, workmanship, and material;
    3. be fit for their particular purpose and operate as intended;
    4. operate in accordance with the published performance specifications for such Goods as contained in Vendor’s product manuals delivered with such Goods;
    5. operate in accordance with the specifications (if used in accordance with Vendor’s documentation which accompanies the Goods); and
    6. not infringe or misappropriate any third party’s patent or other intellectual property rights.
  7. For services rendered under this Agreement,
    1. Vendor shall provide competent supervision and ensure that only qualified, trained, and certified personnel perform work under this Agreement. Maker’s Pride reserves the right to require removal of any personnel deemed unqualified or unsafe.
    2. Vendor warrants that all services will be performed in a professional and workmanlike manner, in accordance with industry standards and Maker’s Pride’s specifications.
    3. Vendor shall not cause contamination, damage, production disruption, equipment downtime, safety incidents, non-conformance with food safety standards, or any other operational impact.
    4. All Services shall be free from defects for a period of not less than twelve (12) months after completion and acceptance (the “Service Warranty Period”). Any reperformance shall restart the Service Warranty Period.
  8. In the event that the Goods fail to perform in accordance with this limited product warranty, without limiting any other right under these Terms or under applicable law, Vendor shall promptly repair or replace, at Vendor’s option, the Goods or any part thereof. Any repair, replacement, or reperformance restarts the applicable Warranty Period in full. Warranty coverage extends to any costs incurred by Maker’s Pride, including downtime, contamination events, product loss, clean-up, disposal, re-testing, and validation.
  9. Goods shall meet or exceed all throughput, yield, efficiency, and performance criteria specified in the PO and documentation. Failure to meet performance guarantees constitutes a material breach and grounds for rejection, repair, replacement, or termination at Maker’s Pride’s option.

These warranties survive any delivery, inspection, acceptance, or payment of or for the Goods by Maker’s Pride.

12. Customs; Import/Export

Vendor shall prepare, maintain and, to the extent that applicable law, regulation, or customs authority requires it to do so, submit to the applicable customs authorities all information and documentation that is necessary to comply with the applicable customs and export and import requirements of each country from which the Goods will be exported and each country into which they will be imported, and Vendor shall comply with all other applicable customs requirements. Whenever Maker’s Pride requests it to do so, Vendor shall promptly furnish to Maker’s Pride copies of such information and documentation.

13. Indemnification

Vendor shall, at its sole cost and expense, defend, indemnify, and hold harmless Maker’s Pride, its subsidiaries, affiliates, successors or assigns, and their respective directors, officers, shareholders, agents, representatives, and employees (collectively, “Indemnitees”) from and against any and all losses, injuries, deaths, damages, liabilities, claims, deficiencies, actions, suits, judgments, interest, awards, penalties, fines, costs, and expenses of every kind and nature whatsoever, including without limitation reasonable attorneys’ fees and professional fees, the cost of enforcing any right to indemnification hereunder, and the cost of pursuing insurance coverage (collectively, “Losses”), arising out of, resulting from, or relating to:

  1. the Goods purchased from Vendor, including their design, manufacture, construction, distribution, sale, delivery, installation, possession, use, performance, operation, or disposal;
  2. any defect or alleged defect in the design, manufacture, materials, or workmanship of the Goods;
  3. Vendor’s failure to provide complete, accurate, and adequate warnings, instructions, training, or labeling for the Goods;
  4. Vendor’s actual or alleged negligence, strict liability, willful misconduct, or breach of the Terms;
  5. any claim that the Goods or Indemnitees’ use, sale, offer for sale, importation, possession, or other exploitation thereof infringes, misappropriates, or otherwise violates the intellectual property rights, including patents, copyrights, trademarks, trade secrets, or other proprietary rights, of any third party, in any jurisdiction worldwide;
  6. any services performed by or on behalf of Vendor in connection with the Goods, including installation, construction, repair, maintenance, or other related services, including the performance, non-performance, or improper performance thereof;
  7. any acts or omissions of Vendor or its subcontractors in connection with the Goods or Services, including without limitation property damage, personal injury, death, contamination, business interruption, or downtime;
  8. Vendor’s breach of any representation, warranty, covenant, or obligation relating to the Goods or Services; and
  9. any claim that the Services or any deliverables provided by Vendor infringe, misappropriate, or otherwise violate the intellectual property rights of any third party.

Vendor shall not enter into any settlement or compromise of any claim that imposes any obligation on, or does not provide an unconditional release of, the Indemnitees without Maker’s Pride’s prior written consent. Maker’s Pride shall have the right, at its option and expense, to participate in or assume control of the defense of any claim, and Vendor shall fully cooperate and continue to bear all costs and expenses regardless of Maker’s Pride’s participation.
Vendor’s indemnification obligations under this Section are independent of and in addition to any warranty obligations of Vendor; are not excess to or limited by any insurance available to any Indemnitee; shall not be limited by, reduced by, or qualified by any limitation of liability, damages exclusion, insurance coverage, or amounts recoverable under insurance; apply to all consequential, incidental, special, exemplary, and punitive damages; and shall survive expiration or termination of the Terms.
Vendor’s indemnification obligations apply regardless of whether the Losses are caused in part by the negligence of any Indemnitee, provided that such Losses are not caused solely by the gross negligence or willful misconduct of an Indemnitee.

14. Confidential Information

All non-public, confidential or proprietary information of Maker’s Pride, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Maker’s Pride to Vendor, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with the PO or the Goods is confidential, solely for the purpose of performing this Agreement, and may not be disclosed or copied unless authorized in advance by Maker’s Pride in writing, including uploading into or otherwise processing Confidential Information with any third-party, non-private, non-secured generative artificial intelligence tool (e.g. ChatGPT). Upon Maker’s Pride’ request, Vendor shall promptly return all documents and other materials received from Maker’s Pride. Maker’s Pride shall be entitled to injunctive relief for any violation of this Section. Vendor shall ensure that all subcontractors, agents, consultants, personnel, and any other third parties engaged to perform any part of this Agreement are bound by confidentiality obligations no less restrictive than those set forth in this Section and shall remain liable for any breach by such parties.

15. Compliance

Vendor shall at all times comply with all Applicable Laws with respect to the sale, manufacture, distribution and provision of the Products and/or Services, as applicable. For purposes of this Agreement, “Applicable Laws” means the federal, provincial, state, territorial and municipal laws and all applicable regulations, by-laws, ordinances, codes, standards, rules, orders and practices, including any policies and guidelines issued by Maker’s Pride, as amended from time to time, which are in any way applicable to the Products and/or Services including, without limitation, Maker’s Pride’s health, safety and environmental rules and Vendor Code of Conduct available at https://www.Maker’s Pridefoods.com/Vendor-code-of-conduct/. In addition, Vendor shall obtain workers’ compensation and workplace safety clearances and certificates for all of its employees and agents engaged in the provision of Products and/or Services at no cost to Maker’s Pride and shall furnish copies of such certificates to Maker’s Pride upon request for review. If required, Vendor shall certify in such form as Maker’s Pride may require that the Products were produced in compliance with all applicable requirements of the Fair Labor Standards Act.

When performing work on Maker’s Pride sites, including but not limited to installation, testing, or other services, Vendor shall comply with all applicable safety regulations, procedures, and Good Manufacturing Practices as communicated by Maker’s Pride.  All personnel engaged in performing services under this Agreement will be of proper legal working age and have the right to work in the country where the services will be provided, and that every individual assigned satisfies age verification requirements and is over the age of eighteen (18) years old. 

16. Termination

  1. Maker’s Pride, at its sole discretion, may choose to cancel this PO in its entirety within thirty (30) days of issuance, in which case the vendor may invoice Maker’s Pride for reasonable, direct, verifiable costs for engineering services, labor, or materials that have been incurred up to the date of the cancelation, provided detailed back-up is submitted and mutually agreed upon.
  2. If the Vendor becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then Maker’s Pride may terminate this agreement and any related PO upon written notice to Vendor.

17. Governing Law and Jurisdiction

If the Maker’s Pride Delivery Site is located in Canada, the laws of the Province of Ontario and the applicable laws of Canada shall govern these Terms and any related PO and each Party hereby attorns to the exclusive jurisdiction of the courts of the Province of Ontario. If the Maker’s Pride Delivery Site is located in the United States, the laws of the of the State of Illinois and the applicable laws of the United States shall govern these Terms and any related PO and each Party hereby attorns to the exclusive jurisdiction of the courts of the State of Illinois. The Vendor irrevocably consents that the court shall have personal jurisdiction over Vendor and waives any objection that the court is an inconvenient forum

18. Force Majeure

In the event either party, through no fault of its own, is unable to perform hereunder due to an event that is beyond the non-performing party’s reasonable control, such non-performance shall be excused, provided that if any such event continues for more than fifteen (15) days, Buyer may, at its sole option, cancel this order and all its obligations hereunder. Each party shall promptly notify the other of any inability to perform and the cause thereof.

19. Independent Contractor and Employees

This Agreement is made between separate legal entities and neither is the agent nor the employee of the other for any purpose whatsoever. The Parties do not intend to create a partnership or joint venture between themselves. Neither Party shall have the right to bind the other to any agreement outside this Agreement or to incur any obligation or liability on behalf of the other Party outside this Agreement. Seller shall not subcontract any portion of the work without Buyer’s prior written consent. Seller shall remain fully responsible for the acts and omissions of all subcontractors and their personnel.

20. Survival; Severability

The termination of this Order will not affect the provisions of this Order that by their terms state or evidence the intent of the parties that the provision survive the termination of this Order; and the provisions of this Order that must survive to give effect to the provisions of this Order. If one or more of the terms of the Order are deemed void or unenforceable by law, then all other provisions will continue in full force and effect.

21. Entire Agreement

This Order, along with any documents attached to or incorporated into this Order, constitutes the entire agreement between the parties and replaces any contemporaneous oral or written communications between the parties related to the subject matter of this Order. Subject to Section 2, no term or condition of this Order may be changed or modified (including by the parties’ course of dealing, performance or trade practices) except in a writing that refers specifically to this Order and is signed by the parties. Any waiver is effective only in that Instance and does not operate as a waiver on any future occasion.