Terms and Conditions

GENERAL TERMS AND CONDITIONS FOR THE PURCHASE OF GOODS AND SERVICES

These terms and conditions of purchase, together with the document to which these terms are attached or into which these terms are incorporated (collectively, “Order”), set forth the terms and conditions under which the buying party specified in the Order (“Buyer”) offers to purchase the products described in the Order (“Goods”) or the services (including, without limitation all related deliverables) described in the Order or ancillary to such Goods (“Services”) from the selling party specified in the Order (“Seller”). For Purposes of this Order, “Parties” refers collectively to the Buyer and the Seller.

SELLER'S ACCEPTANCE OF TERMS

Seller’s express agreement to the Order, its initial performance of the Order or any commencement of work on any Goods or Services whichever occurs first, constitutes acceptance of the Order. Seller’s acceptance is limited to acceptance of the express terms of this Order and does not include any additional or different terms proposed by Seller. Any additional or different terms proposed by Seller in any document or communication are hereby deemed to be material alterations. Such additional or different terms are hereby objected to and rejected by Buyer.

1. DELIVERY OF GOODS

Seller will prepare, label and pack for shipment all Goods in accordance with the highest commercial standards and practices and carriers’ requirements and to ensure safe delivery and secure the lowest transportation rates available. Seller will mark each container of Goods with the order number specified in the Order and include a packing sheet listing this number in each unit of shipment, and, if applicable, any necessary components and instructions. Buyer will not be responsible for any charges relating to packing, crating, shipping or delivery, unless explicitly stated In the Order. Seller will maintain manufacturing and shipment records for at least two years from the date of shipment.

Time is of the essence for this Order. Seller will deliver to Buyer Goods and Services (“G&S”) that meet all specifications, standards, drawings, samples and requirements of Buyer, including, without limitation, those described in the Order and those pertaining to quantity, scope and dates for delivery and performance (all such specifications and requirements, “Specifications”). Buyer may, at any time prior to delivery, change Specifications by providing Seller with written notice. If a change increases or decreases the cost or time required for performance, the Parties will equitably adjust this Order in writing accordingly.

If any molds, dies, tools, special fixtures, jigs, patterns, models or the like or any photographic negatives or printing artwork or plates or the like should be furnished by Seller on behalf of Buyer in connection with the Purchase Order, then Seller shall have no rights, property of interest in same except to the extent necessary to perform the work pursuant hereto. Seller shall account to Buyer for any and all such items and shall follower Buyer’s instructions regarding their dispositions.

2. RISK OF LOSS

Title will pass to Buyer upon delivery of G&S to the delivery point designated by Buyer. Seller will remain fully responsible for, and bear all risks associated with any loss or damage for all G&S until delivered to such designated delivery point and formally accepted by Buyer (as provided by Section 4). This responsibility and risk remain with Seller regardless of transfer of title.

3. BUYER'S INSPECTION AND ACCEPTANCE

Buyer may reject or revoke acceptance of any G&S that do not meet all Specifications, including, but not limited to, any minimum shelf life requirements, and in any event, G&S must have, at least, half of their shelf life remaining. (“Non-conforming G&S”), in which case Buyer will have the rights set forth in Section 6(b). Buyer’s inspection, use of, or payment for, any G&S does not constitute Buyer’s acceptance of any G&S and will not affect Seller’s obligations and warranties or Buyer’s rights under this Order. Buyer’s count as to the quantity of Goods delivered will be accepted as final and conclusive on all shipments unless accompanied by a packing slip that clearly indicates the quantity delivered.

4. INVOICE

Seller will promptly invoice Buyer for G&S. Buyer is only obligated to pay Seller for any G&S if (a) Buyer has accepted such G&S; and (b) Buyer has received from Seller an undisputed invoice (including the order number) for such G&S in a form acceptable to Buyer within 120 days of Buyer’s acceptance of such G&S. Failure to meet these conditions will relieve Buyer of any obligation to pay for G&S.

5. PRICE WARRANTY

The price on this Order is firm and is the total amount due from Buyer for G&S (including, without limitation, any duties, tariffs, taxes 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.

6. REPRESENTATIONS AND WARRANTIES

  1. Seller represents and warrants to Buyer that: (i) all G&S will: (A) conform to Specifications; (B) be of the highest quality and free from defects in material and workmanship; (C) be merchantable, safe and appropriate for the purposes for which G&S of a similar kind are normally used; (D) be fit for the particular purpose for which Buyer intends to use such G&S; (E) be new, unless otherwise specified in the Order; (F) are not manufactured with any raw materials involved with human trafficking or slavery; (G) contain no colorings, preservatives, or other food additives prohibited by state, Federal or Canadian Law; (H) contain no undisclosed colorings, preservatives, or additives; (I) contain no intentionally added per- and polyfluoralkyl substances (PFAS), heavy metals, or phthalates ; and (J) with respect to Services, be diligently performed by Seller or any of its employees, agents, independent contractors (including subcontractors) or suppliers (collectively, “Seller Personnel”) who are experienced and sufficiently skilled to perform Seller’s responsibilities under this Order in accordance with the highest standards of workmanship; (ii) Seller possesses the authority to execute, deliver and perform this Order; (iii) Seller’s execution, delivery and performance of this Order, G&S and Buyer and its affiliates’ use of G&S will not: (A) violate any Applicable Laws or Buyer Policies (as defined in Section 7); (B) violate any of Seller’s agreements with, or rights of, third parties; (C) infringe or misappropriate any third-party intellectual property rights; or (D) cause any injury or damage to any person or property (regardless of whether Seller uses any equipment or materials provided or owned by Buyer); and (iv) Seller has, and will convey to Buyer good, marketable title to all G&S, free and clear of any liens or encumbrances.
  2. Without affecting any of Buyer’s other rights or remedies, in the event of a breach of this Section or any other representations or warranties, at Buyer’s election, Seller will promptly and at no additional cost to Buyer: (i). replace, re-perform or modify any Non-conforming G&S. in accordance with Buyer’s complete satisfaction within seven days of Buyer’s request or (ii) refund to Buyer, or credit Buyer’s account, the entire amount Buyer paid for any affected G&S. Seller will reimburse Buyer for any costs reasonably incurred by Buyer due to Seller’s failure to meet Specifications, including, without limitation, if Buyer purchases substitute goods or services in the event of Seller’s failure to make timely delivery of G&S that meet Specifications.
  3. Seller will ensure that Buyer benefits from any warranties and indemnities obtained by Seller from third-party contractors or suppliers in connection with the G&S pass through to Buyer (such that Buyer is a beneficiary of) to the extent permitted by such contractors or suppliers. Seller will pass through such rights to Buyer so that Buyer can directly enforce them.

7. COMPLIANCE

Seller and the G&S will comply with all federal, state and local laws and other official decrees of any governmental body, including, without limitation, the U.S. Foreign Corrupt Practices Act (collectively, “Applicable Laws”) as well as buyer policies, as amended from time to time including, without limitation, Maker’s Pride Supplier Code of Conduct available at: https://www.makerspride.com/supplier-code-of-conduct/. Furthermore, Seller will obtain all required licenses, permits, or certifications applicable to G&S. If required, Seller shall certify in such form as Buyer may require that the G&S were produced in compliance with all applicable requirements of the Fair Labor Standards Act.

8. RECALL

If Seller becomes aware of any issue (a) relating to the safety of G&S, (b) adversely affecting the quality of G&S or products utilizing or incorporating G&S (“Affected Products”) or (c) is notified of such a condition by competent authorities of any government having jurisdiction over G&S or Affected Products, Seller must promptly inform Buyer in writing and communicate all relevant and known facts and materials. Buyer has the sole discretion to initiate and direct the content, scope and timing of a recall market withdrawal, stock recovery, product correction or advisory safety communication (each, a “Recall Action”) regarding Affected Products. Upon Buyer’s request, Seller will conduct, or assist Buyer in conducting, a Recall Action. Seller will cooperate fully and take all reasonab e steps requested to implement, or assist Buyer in its implementation of, a Recall Action in a timely and complete manner.

9. AUDIT

Buyer, or an authorized representative, shall have the right to audit Seller’s records, facilities, and systems related to the performance of this Order at any reasonable time and upon reasonable notice, including the review of documentation such as financial records, production records, quality control reports, and compliance documentation. Supplier agrees to cooperate with such audits by providing access to all relevant records, personnel, and facilities, including those subcontractors or third-parties involved in the performance of this order. If audit reveals material non-compliance or breach of this Order, Seller shall bear the cost of the audit; otherwise, Buyer shall cover the cost. Seller must promptly remedy any deficiencies or breaches identified in the audit at no additional cost to Buyer. Buyer may withhold payment or terminate Order if Seller fails to address issues satisfactory.

10. INDEMNIFICATION

Seller will defend, indemnify and hold harmless Buyer, its affiliates, and their respective officers, directors, employees, agents and vendors from and against all claims (each a “Claim”) and all losses, damages, liabilities and expenses (including, without limitation , attorneys· fees) related to, in connection with or arising out of: (a) any defect in any G&S; (b) the breach of any term of this Order; (c) any act or omission by Seller or any Seller Personnel (including any subcontractors or agents employed or retained by Seller), whether such act or omission occurs on Buyer’s premises or elsewhere; or (d) any alleged infringement or misappropriation of third party intellectual property rights in connection with the use of any G&S. At Seller’s expense. Seller will, upon notice from Buyer, assume the defense of a Claim. Buyer has the right to be represented by, and actively participate through, its own counsel with respect to any Claim. Seller will not settle any Claim without Buyer’s prior written consent.. If any judgment or lien is placed upon or obtained against Buyer’s property as a result of any Claim, Seller will dissolve and discharge, if possible, the lien by giving bond or otherwise.

11. INSURANCE

Seller, and any subcontractor of Seller, will maintain insurance coverage sufficient to satisfy its obligations under this Order. Without limiting the generality of the foregoing, Seller will secure and keep in force, at its sole cost and expense the following types of insurance: (a) workers’ compensation statutory insurance as required by the state or states in which Seller or its subcontractors perform this Order; (b) employers’ liability coverage with limits of at least $1,000,000 each accident; (c) commercial general liability (“CGL”) insurance on an occurrence basis (including coverage for premises, operations, broad form property damage, products/completed operations, independent contractors, contractual liability covering this Order as an ‘insured contract,” independent contractors’ liability, personal/advertising injury and work performed for Seller by others) with limits of at least $3,000,000 per occurrence for bodily injury and property damage; (d) business automobile liability insurance on an occurrence basis with limits of at least $2,000,000 combined single limit for bodily injury and property damage for all owned, non-owned, leased, hired or borrowed vehicles; (e) excess liability insurance on an occurrence basis with respect to each of the employers’ liability, CGL and business automobile liability policies described above in an umbrella form, with limits of at least $3,000,000 per occurrence; and (f) recall insurance coverage with limits of at least $25,000,000 per recall event.

Buyer will be named as additional insured with respect to all liability coverages, except statutory workers’ compensation. The workers’· compensation policy listed above will contain waiver of subrogation in favor of Buyer where allowed by law.

The insurance policies required by this Section must be written by an insurance company that is authorized to do business in the states where Seller performs any aspect of this Order and that has an AM Best rating of A- or better. Upon request, Seller will deliver to Buyer a certificate of insurance for all coverage required in this Section. Seller will provide Buyer prompt advance written notice if its insurer intends to cancel or materially alter such policies. These insurance requirements are minimum coverage requirements and are not a limitation on Seller’s liability. The insurance procured by Seller under this Section will be primary insurance and noncontributing with respect to any other insurance maintained by Buyer.

12. LICENSE

G&S may include intellectual property rights owned or licensed by Seller or a third party (“Seller’s Materials”). Seller hereby grants Buyer an irrevocable, perpetual, non-exclusive, worldwide, fully paid-up, royalty-free license to use, reproduce, modify, and distribute Seller’s Materials, including applicable software, to enable fully Buyer’s use of G&S as contemplated by this Order.

13. CONFIDENTIALITY; PUBLICITY

“Confidential Information” means (i) all non-public information of Buyer or its affiliates provided to Seller or its representatives, in any form in connection with this Order; (ii) all Specifications or other documents prepared by Seller in connection with this Order; and (iii) the fact that Buyer has contracted to purchase G&S from Seller and the terms and subject matter of this Order. Without Buyer’s prior written consent, Seller will not and will ensure Seller Personnel do not: (i) use Confidential Information for any purpose other than performing this Order; (ii) disclose or publicize Confidential Information; or (iii) use, refer to or distribute the name or trademarks of Buyer or its affiliates. These obligations will remain in effect regardless of any other written agreements specifically relating to confidentiality or non-disclosure executed by the Parties.

14. SELLER PERSONNEL; INDEPENDENT CONTRACTOR

Seller and Seller Personnel are serving as independent contractors and not as Buyer’s employees, regardless of where they perform Services or any other work. Buyer will not be responsible for directing or controlling the daily activities and performance of Seller Personnel. Seller will (a) be fully responsible for Seller Personnel, including. without limitation, all compensation and taxes related thereto and any Seller Personnel acts or omissions and (b) carry on its work at its own risk until work Is fully completed and accepted (under Section 4). Seller will, and ensure Seller Personnel, take all safety precautions and furnish and install all safeguards necessary for the prevention of accidents related to this Order.

15. ASSIGNMENT; SUBCONTRACTING

Seller will not assign or delegate (including, without limitation, subcontract) any rights or duties under this Order, without Buyer’s prior written consent. Seller’s engagement or contract with any subcontractor will not create any contractual relationship between any subcontractor and Buyer. Any attempted assignment or delegation in violation of this Section will be void and enforceable. Buyer shall have the right, at any time and without the consent of Seller, to assign, transfer, or delegate any of its rights, interests, or obligations under this Agreement, in whole or in part, to any third party, including but not limited to any affiliate, subsidiary, or any entity that acquires all or substantially all of the assets or equity of Buyer. Any such assignment shall not relieve Buyer of its obligations under this Agreement unless expressly agreed in writing by Seller.

16. 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. . For clarity, economic hardship, increases in the cost of performance, changes in market conditions, changes in tariffs, import charges, or similar circumstances shall not constitute force majeure events. However, if any such event continues for more that fifteen (15) days, Buyer may, at its sole discretion, cancel this order and all its obligations hereunder. Each party shall Promptly notify the other of any inability to perform and the cause thereof.

17. NOTIFICATION; LIABILITY FOR BREACH

In the event Supplier becomes aware of any violation of Law relating to data protection by Supplier, Supplier personnel or any person purporting to be Supplier or Supplier personnel, or any actual or suspected security breach that compromises, or could compromise, Supplier’s communications with Buyer, including confidential information or instructions (e.g., physical trespass on a secure facility, computing systems intrusion/hacking, loss/theft of a PC (laptop or desktop), or loss/theft of printed materials) (collectively, a “Breach”), Supplier will immediately notify Buyer personnel of such Breach, and will immediately investigate and remedy the Breach, in cooperation with or as directed by such Buyer personnel. Supplier agrees that it will not inform any third party of such Breach without Buyer’s prior written consent; provided that if disclosure is compelled, Supplier will obtain Buyer’s approval regarding the content of such disclosure to minimize the adverse impact to Buyer and its customers. Supplier will maintain records of known and suspected security breaches in accordance with commercially-accepted industry practices, and if not prohibited by Law, will make such records available upon Buyer’s request. Any losses, liabilities or other obligations relating to inaccurate, fraudulent or unauthorized information delivered to Buyer by Supplier or any person purporting to be Supplier or Supplier personnel, as a result of a Breach shall be solely borne by Supplier and Buyer shall have the right to rely on information received by, and from, Supplier whether the result of a Breach or otherwise.

18. MINORITY AND WOMEN'S BUSINESS ENTERPRISES

Seller will use good faith efforts to employ and develop minority-owned business enterprises (“MBE”) and women-owned business enterprises (‘WBE”) in connection with G&S and will provide Buyer with quarterly reports of all expenditures made by Seller with MBE and WBE suppliers in connection with G&S.

19. TERMINATION

In addition to Buyer’s other rights and without liability, Buyer may terminate this Order, or any part of this Order, by providing Seller with written notice of termination under the following circumstances: (a) in the event Seller fails to cure a breach of this Order within 15 days after Buyer or its affiliate provides written notice of such breach; (b) if Seller becomes insolvent, is adjudicated bankrupt, files a voluntary petition in bankruptcy, makes an assignment for the benefit of creditors or seeks protection from creditors under any Applicable Laws; or (c) at any time for any or no reason upon 30 days’ prior written notice. Upon the termination of this Order, Seller will immediately stop and cause all Seller Personnel to stop all performance under this Order. If applicable, and upon Buyer’s request, Seller will ship to Buyer, at Seller’s expense, all Goods or materials held for use under the Order.

20. SURVIVAL; SEVERABILITY

The termination of this Order will not affect the following provisions (which will survive such termination): (a) Sections 7-20; (b) 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 (c) 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. GOVERNING LAW; DISPUTE RESOLUTION

This Order will be deemed a contract for the sale of goods under the Uniform Commercial Code and be governed and interpreted by the laws of the state where Buyer’s corporate headquarters is located, without regard to its conflict of laws provisions. State and federal venue and jurisdiction for any action relating to this Order will rest exclusively in the county where Buyer’s corporate headquarters is located. Prior to attempting to resolve any dispute by litigation: (a) the Parties will attempt to resolve all disputes promptly by negotiation between executives with authority to settle the dispute; and (b if the dispute is not so resolved, the Parties will attempt to settle the dispute by mediation in the county where Buyer’s corporate headquarters is located. Seller must commence any action against Buyer arising from this Order within one year from the date the claim accrues. Any claim not yet brought within this period will be permanently barred .

22. 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.