PURCHASE
ORDER TERMS AND CONDITIONS FOR:
ABARTA COCA-COLA BEVERAGES, LLC
or
G4
LOGISTICS, LLC
For each
particular Order (as defined below), the term “Buyer” shall mean ABARTA
Coca-Cola Beverages, LLC or G4 Logistics, LLC, which shall be determined by which
one of those entities is the party to the Order with the Seller named in that
Order. The term “goods” refers to all
materials, supplies, equipment, parts, accessories, ingredients and other items
to be sold or leased to Buyer hereunder, and unless the context otherwise
requires, shall also include installation and other services related to the
goods which Seller may agree to provide. The term “services” refers to all services
of any nature whatsoever ordered or required by Buyer hereunder.
1. Acceptance; Applicable Terms and
Conditions of Purchase
a.
Upon receipt by Buyer of an express acceptance by Seller, or
upon Seller’s commencement of work on the goods subject to this Purchase Order
(“Order”), or upon shipment of such goods, or Seller’s commencement of
installation of services, whichever occurs first, this Order shall become a
contract with the terms and conditions herein set forth.
b.
Acceptance of this Order is expressly limited to the terms
and conditions herein contained on both sides hereof as well as any separate
written agreement signed by Buyer and Seller, whether before or after the date
hereof, that relates to the Order (the “Separate Written Agreement”). To the extent that the terms of the Separate
Written Agreement, if any, between Buyer and Seller conflicts with the terms of
the terms and conditions stated herein, the terms of such Separate Written
Agreement shall control. Buyer shall not
be bound by any provisions in Seller’s order acknowledgement or acceptance
forms or other documents (including counter offers) which propose any terms or
conditions in addition to or differing with the terms and conditions set forth
herein or in any Separate Written Agreement, and any such terms and conditions
of Seller and any other modification to this Order shall have no force or
effect and shall not constitute any part of the terms and conditions of
purchase or lease, except to the extent separately and specifically agreed to
in writing by the Buyer. Buyer’s failure to object to provisions contained in
Seller’s documents shall not be deemed a waiver of the terms and conditions set
forth herein, which, together with any Separate Written Agreement, shall
constitute the entire agreement between the parties.
c.
No amendment, deletion, supplement or change in terms and
conditions contained herein shall be binding on Buyer unless approved in
writing by the Buyer.
2. Price
a.
Prices shall be firm and not subject to adjustment or variation
unless specifically approved in writing by the Buyer.
b.
Seller warrants that the prices herein specified are as low
as any net prices now given by Seller to any other customer for goods or
services of like grade and quality in like quantities, and Seller agrees that
if at any time during the pendency of this Order lower net prices are quoted
under similar conditions, said lower net prices shall be from that time
substituted for the prices herein. Seller agrees that any price reductions made
in the goods or services covered by this Order subsequent to its acceptance but
prior to payment thereof will be applicable to this Order.
c. Except
as otherwise provided herein, the prices herein include all costs and charges
to be incurred by Seller, including, without limitation, installation and other
service charges, all applicable federal, state and local taxes and duties, all
wages and fees for services and materials, all charges for transportation,
packing, packaging and returnable containers, all costs of design, engineering,
and development, and all costs for tooling, gauges, jigs, fixtures, dies,
molds, patterns, and similar property that may be obtained or required by
Seller for use in the manufacture, fabrication or assembly of the goods or performance
of the services called for by this Order.
3. Specifications
a.
Unless otherwise authorized in writing by Buyer, Seller
shall deliver goods or render services, or both, per all specification designs,
drawings and performance criteria, if any, furnished by Buyer or furnished to
Buyer by Seller, without variation.
b.
Where applicable, Seller shall comply with the
specifications of The Coca-Cola Company for the goods and services and shall
comply with the requirements of any agreement entered into between Seller and
The Coca-Cola Company, which authorizes Seller to supply Buyer, including but
not limited to those agreements known as Master Authorization Agreements.
c.
Buyer may, by written order, change any one or more of the
following terms of this Order: (i) the specifications, designs, drawings or
performance criteria; (ii) method of shipping or packing; (iii) place of
inspection, acceptance or point of delivery; (iv) delivery schedule; and (v)
quantity. In this event and if appropriate, Buyer may in writing request an
equitable adjustment in the prices or delivery terms of this Order, and Seller
may in writing make claim for the cost of any redundant material or work in
process, but not for any cost of design, engineering or development, special
tooling or general purpose equipment unless such items have been specifically
ordered and separately priced in this Order; provided, however, that Seller
shall, in all events, proceed diligently to supply the goods or services
contracted for under this Order as so changed. Any and all claims and requests
by Seller under this subsection (c) shall be deemed waived unless made in
writing and received by Buyer within ten (10) business days from the receipt by
Seller of the written order change.
4. Assurance of Performance
In the event
Seller fails to perform when due any delivery and/or service required by this
Order, or Buyer in good faith has any other reason to question the Seller’s
intent or ability to perform, Buyer may, at its election, demand adequate
assurance of performance, including that Seller furnish a performance bond or
letter of credit, conditioned to indemnify Buyer for any loss Buyer may sustain
by failure of Seller to perform its obligations. In the event Seller fails to
comply with such demand within ten (10) business days thereafter, Buyer may
treat this failure as a default.
5. Termination
a.
This Order may be terminated by Buyer: (i) promptly upon
written notice to Seller for the convenience of Buyer, or (ii) at any time if
Seller is in default under this Order, fails to use properly skilled personnel,
fails to make prompt payment to any subcontractors it may have, fails to make
prompt payment for any materials, labor or any other expenses it incurs in the
production or construction of the goods or the performance of any services, or
(iii) at any time upon the insolvency of Seller or in the event of the
institution of any proceeding by or against Seller in bankruptcy or insolvency
or under any provisions of the Bankruptcy Act or for the appointment of a receiver
or trustee or any assignment for the benefit of creditors of Seller, or (iv)
upon any sale, transfer or other disposition in the aggregate of more than ten
percent (10%) of the stock or other evidence of ownership of Seller. Buyer may
require a financial statement from Seller at any time during the term of this
Order for the purpose of determining Seller’s financial responsibility. Any
termination pursuant to parts (ii), (iii) or (iv) of this subsection (a) shall
be deemed to be a termination for default.
b.
In the event of termination for the convenience of Buyer,
Seller may in writing make claim for the cost of any work or service, or both,
in process, but not for any cost of design, engineering or development, special
tooling or general purpose equipment unless such items have been specifically
ordered and separately priced in this Order. Other than as specified in the
preceding sentence, Seller shall not be entitled to any claim, remedy or
damages from Buyer. Any and all claims or requests by Seller under this
subsection (b) shall be deemed waived unless made in writing and received by
Buyer within ten (10) business days from the date of termination.
c.
In the event of termination by Buyer pursuant to (ii), (iii)
or (iv) of subsection (a) above, Seller shall be entitled to no claim for
damages or for the cost of any work or service, or both, in process. At Buyer’s
option, Buyer may produce or purchase or otherwise acquire goods or services
elsewhere on such terms or in such manner as Buyer may deem appropriate and
Seller shall be liable to Buyer for any excess cost or other expenses incurred
by Buyer; and/or Seller shall deliver to Buyer any of the goods or services for
which Buyer makes written request at or after termination, and Buyer will pay
Seller the lesser of the herein contained or fair value of any of such goods or
services so requested.
6. Warranties
a.
Seller warrants that it will
diligently perform its services to the highest degree of workmanship and that
all goods and services shall be free from defects in workmanship and material
and shall be in conformity with specifications, drawings, samples, advertising
materials, descriptions or performance criteria referred to herein, if any, and
if of Seller’s design, shall be free from design defects. Seller further
warrants that all goods shall be merchantable and that all goods and services
shall be fit for Buyer’s particular purposes, if any, as have been made known
to Seller, and shall be safe and appropriate for the purpose for which goods and
services of that kind are normally used. Seller warrants that the goods,
services and production, packaging and delivery thereof, shall be in compliance
with all applicable federal, state and local laws, rules, regulations,
requirements, ordinances and orders, including without limitation, all
provisions of (i) the Occupational Safety and Health Act of 1970, as amended,
(ii) Executive Order 11246 issued September 24, 1965, as amended, (iii) the
Federal Food, Drug and Cosmetic Act, as amended, (iv) Fair Labor Standards Act,
as amended, and (v) Title 42, U.S.C.A. § 2000, et. seq., as amended, and (vi)
the Immigration Reform and Control Act, as amended; and all rules, regulations
and orders there under (collectively, “Applicable Laws”). Seller shall also comply
with all Applicable Laws in the manufacture and distribution of goods and
services to Buyer and in providing services to Buyer, including but not limited
to those relating to basic human rights. Seller warrants that all foods, food
additives or all substances for use in, with or for foods, including soft
drinks, comprising each shipment or other delivery hereby made by the Seller
to, or on the order of, Buyer are hereby warranted as of the date of such
shipment to be, on such date, not adulterated or misbranded within the meaning
of the Federal Food, Drug and Cosmetic Act, as amended, including the Food
Additives Amendment of 1958 (the “Act”) or within the meaning of any state food
and drug law, the adulteration and misbranding provisions of which are similar
to those of the Act and are not articles which may not under the provisions of
Section 404 or 505 of the Act be introduced into interstate commerce. For goods
and services delivered in the state of California, this Order and the goods and
services delivered hereunder must be in compliance with the Safety Orders of
the State of California Division of Industrial Safety and Proposition 65. On
request, Seller shall furnish Buyer certificates of compliance with all
Applicable Laws which apply to this Order. Seller shall, at time of delivery or
invoicing, certify that goods sold hereunder were manufactured or produced in
full compliance with Section 12 of the Fair Labor Standards Act, as amended, to
the date of certification and all applicable United States Department of Labor
Regulations promulgated there under.
b.
Seller further warrants that it has
full power to enter into, and to perform fully pursuant to the provisions of,
this Order and that no goods or services or the provision, use or sale thereof shall
in any way infringe upon or violate any rights of any party whether they be
patent, trademark, trade secret, copyright, contractual or otherwise. Seller
warrants that it is not owned by or affiliated with an employee of the federal
government who does business with Buyer in his/her capacity as a federal
employee.
c.
All
express warranties shall survive inspection, testing, and acceptance of the
goods by Buyer and expiration or termination of this Order and shall be in
addition to all warranties, express, implied or statutory.
d.
All warranties shall inure to Buyer, its customers and
subsequent owners or consumers of the goods or services covered hereunder or
the end products of which they are a part.
e.
Seller agrees, at its expense and at Buyer’s option to
defend or assist in the defense of any action against Buyer which action, in
whole or in part, whether by way of claim, counterclaim or defense, is based
upon an alleged breach of any of Seller’s warranties.
f.
All warranties shall be construed as conditions as well as
promises.
7. Buyer’s Remedies and Damages
a.
Seller hereby agrees to fully indemnify, release and hold
harmless Buyer and Buyer’s subsidiaries, affiliates, shareholders, directors,
officers, employees and agents from and against any and all liability, losses,
costs, expenses (including court costs and attorneys’ fees, interest and
profits), claims, demands, suits by any person(s), proceedings, investigations,
injuries, damages, damages to property, bodily injuries, sickness, death and
any other losses of any kind whatsoever arising out of, resulting from, caused
by, incident to, or in any way connected with: (i) any breach or alleged breach
of this Order by Seller or its directors, officers, managers, employees,
agents, subcontractors, or suppliers (collectively, the “Seller Parties”),
including without limitation, any breach of Seller’s representations or
warranties under this Order; (ii) any negligent act or omission, or willful act
or omission, by a Seller Party; (iii) any violation of a federal, state, or
local law or regulation by a Seller Party; and/or (iv) any infringement or
alleged infringement of any third party’s intellectual property rights arising
from a Seller Party’s use of intellectual property.
b.
In the event any claim should be made
against Buyer at any time during the term hereof, that by virtue of its use or
resale of the goods or services or otherwise, Buyer is infringing or
contributing to the infringement of any actual or alleged industrial property
rights, Buyer may at its option, thereupon or at any time during the
continuance of such claim refuse to accept deliveries hereunder and terminate
this Order and shall, in such case, be entitled to the indemnity set forth in
subsection (a) above, or Buyer may require Seller, at Seller’s expense, to (i)
either procure within 30 days for Seller the right to continue using said
goods, or (ii) modify same so the goods and services become non-infringing, or
(iii) replace the goods with non-infringing goods.
c.
Seller shall not assert against Buyer or its customers any
industrial property rights relating to the use or sale of goods or services.
d.
This indemnification provision shall survive termination of
this Order.
8. Packaging and Shipping; Risk of Loss
a.
All packing and packaging shall be in accordance with
specific instructions from Buyer on the face hereof or in separate
notification. In the absence of specific instructions, all packing and
packaging shall comply with good commercial practice, applicable carrier’s
tariffs and all applicable state, federal and local law and shall consist of
suitable containers for optimum protection of the goods and for in-plant
handling and storage.
b.
Delivery shall be made by the carrier and route specified by
Buyer. In the absence of instructions, shipments shall be routed via the most
economical mode of commercially reasonable transportation available consistent
with the time requirements established for this Order.
c.
The number of the Order must be shown on all packing slips
and invoices, and except in the case of ingredients, on all packages, crates or
other containers, together with the destination party and address specified by
Buyer.
d.
If invoices are subject to discount for prepayment, Seller
shall state such terms clearly on such invoices. Buyer’s opportunity for
prepayment shall not be prejudiced by delays beyond Buyer’s control.
e.
Delivery shall not be deemed complete until the goods have
actually been received and accepted by Buyer, or by the person to whom the
goods were delivered, and the risk of loss on the goods shall be borne by
Seller until such delivery and acceptance, Seller shall also bear the risk of
loss on the goods rejected by Buyer, from the time of shipment thereof to
Seller until the redelivery thereof to Buyer.
9. Delivery or Performance Schedule;
Quantities
a.
Time is of the essence.
b.
Buyer may cancel this Order for any
nonconformity in any lot or installment delivered or services performed
hereunder, including without limitation failure of Seller to deliver the goods
or perform services when due, delivery of defective or otherwise nonconforming
goods, delivery of an insufficient quantity of goods, or deficient, defective
or incomplete performance of services.
c.
Seller shall promptly advise Buyer of any delay or
anticipated delay in delivery or performance and shall pay Buyer for any losses
sustained or costs incurred by Buyer as a result of a late delivery.
d.
Seller shall not, without Buyer’s prior written consent,
manufacture or procure materials in advance of Seller’s normal flow time or
deliver goods or perform services in advance of schedule. In the event of
termination or change in the terms of this Order, no claim by Seller will be
allowed for any such manufacture or procurement of performance of services in
advance of such normal flow time without the prior written consent of Buyer.
e.
Unless specified otherwise on the face hereof, this Order
shall not be deemed separable as to the goods and services ordered herein.
f.
Goods which are to be shipped shall be shipped F.O.B. destination
unless otherwise specified by Buyer. Any shipments which are sent C.O.D.
without Buyer’s consent will not be accepted and will be made at Seller’s risk.
10. Inspection and Testing
All goods and services are subject
to inspection and rejection by Buyer at any time, including during their
manufacture, construction or preparation, notwithstanding any prior payment or
inspection. Goods or services may at any time be rejected for defects or
defaults revealed by inspection, analysis or by manufacturing operations or use
after delivery even though such goods or services may have previously been
inspected and accepted. Without limiting any of the rights it may have, Buyer
at its option may require Seller, at Seller’s expense (i) promptly to repair or
replace any or all rejected goods, or to cure or re-perform any or all rejected
services, or (ii) to refund the price of any or all rejected goods or services.
All such rejected goods will be held for Seller’s prompt instruction and at
Seller’s risk. Nothing contained herein shall relieve in any way Seller from
the obligation of testing, inspection and quality control.
11. Force Majeure
a.
Whenever any causes of the type specified in subsection (b)
below delay or prevent full and timely performance of this Order or threaten
to, Seller shall promptly give notice to Buyer.
b.
Neither party shall be liable to the other for any delay or
failure to perform fully where such delay or failure is caused by acts of
public enemy, acts of a sovereign nation or any state or political subdivision
or fires, floods or explosions, where such cause is beyond the reasonable
control of the affected party and renders performance commercially
impracticable as defined under the Uniform Commercial Code. In the event of
such a failure or delay in performance by Seller, Buyer may at its option (i)
reject any partial or future performance by Seller upon giving reasonable
notice in writing to Seller, and this Order shall thereupon be terminated and
neither party shall be liable to the other hereunder, or (ii) where limited
production by Seller is possible, Buyer may require Seller to apportion its
materials and resources so as to produce for Buyer that quantity of goods
ordered by Buyer which bears the same relationship to Seller’s total production
for all customers as the scheduled production of goods for Buyer bears to the
Seller’s total scheduled production.
12. Industrial Property
a.
In the event Seller, or any subcontractor or other third
party working for Seller, creates or develops any designs or goods or services
especially for Buyer, the proprietary rights to such designs, goods or services
shall vest in Buyer, and Seller hereby assigns and conveys and shall assign and
convey or cause to be assigned or conveyed all such proprietary rights,
including but not limited to all copyright, trademark and patent rights
therein.
b.
Except as provided in the preceding subsection, in the event
Seller, or any subcontractor or other third party working for Seller, designs
or incorporates any new features of design or improvements in any designs or
goods made, or services furnished, pursuant to this Order as a result of
Seller’s or such third party’s compliance with the drawings, specifications or
directions of Buyer, Seller grants to Buyer the right to reproduce such designs
or goods or to perform such services together with, if applicable, a
royalty-free, nonexclusive, irrevocable license covering such new feature of
design or improvement.
c.
Seller shall assert no claim of any proprietary interest in
or to any drawings, specifications or other material furnished by Buyer to
Seller in connection herewith, and Seller shall not use such drawings,
specifications or other material (other than in connection with this Order)
without the prior written consent of Buyer.
d.
Seller shall execute, and shall cause subcontractors and
other third parties working for it to execute, any and all instruments deemed
by Buyer to be necessary or appropriate under subsections (a) and (b) hereof.
e.
Any information which Seller may disclose to Buyer with
respect to the design, manufacture, sale or use of the goods or services shall
be deemed to have been disclosed as part of the consideration for this Order,
and Seller shall not assert any claim (other than a claim for patent
infringement) against Buyer by reason of Buyer’s use thereof. Buyer does not
grant indemnity to Seller for infringement of any patent, trademark, and
copyright or data rights.
f.
In no event shall Seller sell or distribute in any manner
whatsoever to persons other than Buyer or parties authorized in writing by
Buyer, goods, supplies, materials or objects of any kind which are imprinted
with or contain Buyer’s logo, trade names, trademarks or labels, even though
rejected by Buyer as nonconforming.
13. Disclosure of Information;
Confidentiality of Order
a.
Seller shall not use or disclose any
data, designs, or other information belonging to, supplied by or on behalf of
Buyer. Upon completion by Seller of its obligations under this Order or upon
Buyer’s request, such data, designs and other information or any copies thereof
shall be returned to Buyer. Where in accordance with Buyer’s written
authorization, Buyer’s data, designs or other information is furnished to
Seller’s suppliers for procurement of supplies by Seller for use in the
performance of this Order; Seller shall insert the substance of this provision
in its own purchase order.
b.
This Order is confidential, and Seller shall not, without
prior written consent of Buyer, disclose any information relative to or derived
under this Order, except as may be required to ensure performance. Unless
otherwise authorized by Buyer, Seller shall not advertise or publish the fact
that Seller has contracted to furnish Buyer the goods or services.
14. Assignment and Delegation
Neither this
Order, or any part thereof, may be assigned, subcontracted or otherwise
transferred by Seller, voluntarily or by operation of law, even with a majority
of the stock or assets of Seller, without the prior written consent of Buyer,
and any such assignment or transfer without such consent shall be null and void
and of no force or effect whatsoever. The terms and conditions of this Order
shall bind any permitted successors and assigns of Seller. Any consent by Buyer
to assignment shall not be deemed to waive Buyer’s right to recoupment and/or
set off of claims arising out of this or any other transactions with Seller,
its divisions, affiliates or subsidiaries, or to settle or adjust matters with
Seller without notice to permitted successors and assigns. Seller has no
authority to bind Buyer to any obligation to third parties. Seller shall
indemnify and hold Buyer harmless against any claims arising out of acts of
subcontractors or its employees performing services on Buyer’s premises.
15. Responsibility for Property;
Indemnification
a.
Any materials, items or equipment (including, but not
limited to, for purposes of this Section, all tools, dies, mechanicals,
negatives, plates, drawings, sketches, and artwork) furnished, funded or paid
for by Buyer, provided or made available to Seller in connection with this
Order, shall be deemed as held by Seller upon consignment. All such materials,
items and equipment not used in the manufacture of the goods shall, as
directed, be returned to Buyer at Buyer’s expense, and, if not accounted for or
so returned, shall be paid for by Seller. In no event shall Seller transfer or
move such materials, items or equipment to the premises of any third party
without the written permission of Buyer. Seller shall not use such materials,
items or equipment for any purposes or for any party not authorized in writing
by Buyer. Seller shall be fully responsible and indemnify Buyer for any loss or
destruction of or damage to such materials, items or equipment until the same
are returned to the possession of Buyer, whether or not such loss, destruction
or damage is attributable to acts or omissions of Seller or its
representatives, officers, agents or employees (normal wear and tear for
authorized purposes and parties excepted).
b.
Seller shall obtain and maintain property insurance upon all
such materials, items or equipment to the full replacement value thereof. This
insurance shall be specifically so endorsed, and Buyer shall be named as an
additional insured.
16. Insurance
a.
Seller shall maintain at all times during this Order, the
following minimum insurance coverages (or self-insurance in equivalent
amounts):
Commercial General Liability
$1,000,000 per Occurrence Bodily Injury & Property Damage
$1,000,000 Personal & Advertising Injury
$1,000,000 Products/Completed Operations
$2,000,000 General Aggregate
Commercial Auto Liability $1,000,000
Combined Single Limit- Any Auto
Workers Compensation Statutory
Employers Liability $1,000,000 Each
Accident $1,000,000 Disease – Each Employee
$1,000,000 Disease –
Policy Limit
b.
Seller shall furnish Buyer with a certificate evidencing the
aforementioned insurance coverage. Such certificate shall provide for thirty
(30) days written notice to Buyer in the event of cancellation, material
modification of coverage, or non-renewal. Buyer, its subsidiary companies,
officers and employees shall be named as additional insured on all policies
except for workers compensation. Any subcontractors used by Seller are required
to maintain the coverage terms stated above.
c.
Compliance by Seller with the insurance provisions of this
Order shall not relieve Seller of any liabilities with respect to the
agreements contained herein and the goods and/or services provided hereunder.
17. Payment
a.
Invoices will normally be paid according to discount terms,
or if no discount is offered, within forty-five (45) to sixty (60) days after
receipt and acceptance of the goods or completion and acceptance of services or
according to other agreed upon payment terms.
b.
Seller warrants that the payment terms
offered Buyer are consistent with the payment terms given by Seller to any
other customer for goods or services of like grade and quality in like
quantities, and Seller agrees that if at any time during the pendency of this
Order more favorable payment terms are quoted to any other customer under
similar conditions, said more favorable payment terms shall be made available
to Buyer. Seller agrees that any more favorable payment terms for the goods or
services covered by this Order subsequent to its acceptance but prior to
payment thereof will be applicable to this Order.
18. Paid Stock
a.
Any goods for which Buyer has paid
Seller but which have not been delivered to Buyer or shipped pursuant to
Buyer’s instruction shall constitute “paid stock” of Buyer. Paid stock shall
not be commingled or stored with Seller’s own inventory of goods for customers
other than Buyer and shall be physically separated from Seller’s inventory in
an area designated by prominent signs and markings which shall identify the
paid stock stored within the warehouse area as the sole property of Buyer.
b.
Seller shall bear all risk of loss, injury or destruction to
the paid stock while it is warehoused with Seller and shall obtain and maintain
insurance insuring the paid stock against loss, damage or destruction due to
accident, theft, fire, flood, abuse or vandalism or other hazards commonly
covered by extended coverage insurance.
c.
Seller shall not sell, lease, assign, transfer, pledge,
hypothecate or otherwise encumber, except as specifically permitted in writing
by Buyer, any paid stock warehoused with Seller or any interest therein. In
addition, Seller shall execute such financing statements, security documents
and other instruments as Buyer shall deem appropriate to protect Buyer’s
ownership of the paid stock against claims of creditors of Seller and other
third persons. Seller shall and does hereby indemnify and hold harmless Buyer
from and against the payment of any sum of money and against any expenses
whatsoever, including attorneys’ fees and court costs, which Buyer may be
called upon to pay or incur resulting from any loss or damage to the goods
while warehoused with Seller or resulting from a creditor’s or other third
party’s claim of interest, lien or right in or to any paid stock warehoused
with Seller.
19. Taxes and Other Exactions
a.
Buyer shall be responsible for all
transfer, sales, use, value-added taxes, duties, levies, tariffs or similar
charges of any kind imposed by any federal, state, local, or other governmental
authority for goods or services provided under this Order (“Taxes”).
b.
Seller shall be responsible for 1)
remittance of the Taxes for which Buyer shall be responsible where required by
operation of law [i.e., where Buyer is not allowed by the taxing jurisdiction
to self-assess and directly remit such taxes], and the filing of any related
tax returns; and 2) all other taxes, assessments, charges, duties, fees, levies
or other governmental charges, including federal, state, city, county, parish,
foreign or other income, franchise, capital stock, real property, personal
property, escheatment or unclaimed property, intangible, withholding, FICA (or
similar), unemployment compensation, disability, environmental (including taxes
under section 59A of the Internal Revenue Code of 1986, as amended, fuel,
excise, gross receipts, alternative or add-on-minimum, estimated and all other
taxes of any kind for which Seller may have any liability imposed by any
governmental authority (including interest, penalties or additions associated
therewith) whether disputed or not, and including any transferee or secondary
liability in respect of any tax (whether imposed by law, contractual agreement
or otherwise) and any liability in respect of any tax as a result of being a
member of any affiliated, consolidated, combined, unitary or similar group.
c.
Each of the parties will use its reasonable, good faith
efforts legally to minimize any taxes associated with the transactions
contemplated in this Order. The party requesting that such efforts be made by
the other party shall be responsible for all reasonable costs associated with
such request.
20. Examination of Seller’s Records and
Place of Business
Upon request by Buyer, any duly
authorized representative of Buyer shall, until three (3) years after final
payment under this Order, have access to and right to examine directly
pertinent books, papers, documents, accounts and records of Seller involving transactions
related to this Order and to examine Seller’s place of business as necessary to
determine whether the terms of this Order are being carried out.
21. Waiver
Buyer shall
not, by any act, delay, omission or otherwise, be deemed to have waived any of
the rights or remedies under this Order, and no waiver whatever shall be valid
as against Buyer unless in writing, signed by an authorized representative of
Buyer, and then only to the extent set forth therein. Buyer’s waiver of any
right or remedy under the terms of this Order on any one occasion shall not be
construed as a waiver of any right or remedy which Buyer would otherwise have
on a future occasion.
22. Set Off
Seller agrees that Buyer shall have
the right to set off against amounts which may become payable by Buyer to
Seller under this contract or otherwise, any present or future indebtedness of
Seller to Buyer, money, prepaid inventory or otherwise, whether arising under
this Order or otherwise.
23. Miscellaneous
a.
Except as otherwise expressly provided herein, any notice or
communication required or permitted hereunder shall be sufficiently given if
sent in writing by registered or certified mail, postage prepaid, to Seller and
Buyer at their respective addresses as the same appear on the reverse side
hereof. Any such notice, if so mailed, shall be deemed to have been received
the third business day following such mailing. Either party hereto may change
its address for notice purposes by written notice to the other party as
specified herein.
b.
All rights and obligations under this Order, including
matters of construction, validity and performance, shall be governed by the
laws of the Commonwealth of Pennsylvania.
c.
The various provisions of this Order are severable and any
determination of invalidity or unenforceability of any one provision hereof
shall have no bearing on the continuing force and effect of the remaining valid
provisions hereof.
d.
Captions given to various sections herein are for
convenience only and are not intended to modify or affect the meaning of any of
the substantive provisions hereof.
e.
Seller shall be deemed in respect of all activities of
Seller contemplated hereunder to be an independent Seller and neither Seller
nor any of its agents or employees shall have the right or authority to bind
Buyer in any way.
f.
Nondiscrimination in Employment— Unless this contract is
exempted, there is incorporated herein by reference the provisions of Section
202, the equal opportunity clause of Executive Order 11246, as amended, Section
60.7415, the affirmative action clause of the regulations under the
Rehabilitation Act of 1973, and Section 60.250.5, the affirmative action clause
of the regulations under 38 U.S.C. 4212, the Vietnam Era Veterans’ Readjustment
Assistance Act of 1974.
g.
This order contains the entire agreement between Buyer and
Seller regarding the subject matter hereof and there has been no other
representations or inducements, oral or otherwise, made by any party in
connection herewith.
h.
If applicable, Seller agrees to comply in full with 29
C.F.R. Part 471, Appendix A to Subpart A.
24. Vendor Classification
Small Business Concern is defined as
independently-owned and operated, not dominant in the field of operation in
which is bidding and having no more than five hundred employees as defined by
the Small Business Administration.
A Minority-Owned business is
generally defined to include businesses at least 51% owned and operated by a
member or members of a racial minority group such as Asian Pacific American,
Black American, Hispanic American, American Indians. The determination of
minority status depends solely on ownership and management and is not related
to employment of minority persons.
Women-Owned business is generally
defined to include businesses at least 51% owned, controlled and operated by a
woman or women. All Others-Vendors are those businesses which do not fall
within any of the other specified categories.
25. Supplier Guiding Principals
Seller is required to meet the
following standards, at a minimum, with respect to its operations as a whole.
These minimum requirements are a part of all agreements between Buyer and its
direct and authorized supplier. Buyer expects Seller to develop and implement
appropriate internal business processes to ensure compliance with these Seller
Guiding Principles (SGP). Buyer routinely utilizes independent third parties to
assess Seller’s compliance with the SGP; the assessments generally include
confidential interviews with employees and on-site contract workers. If Seller
fails to uphold any aspect of the SGP requirements, Seller is expected to
implement corrective actions. Upon acceptance of, or complete or partial
performance under, this Order, Seller warrants that it has read, understands
and is in, and will remain in, compliance with all the requirements of these
SGP. Buyer reserves the right to terminate this agreement with Seller if Seller
cannot demonstrate that it is upholding the SGP requirements without any
liability of Buyer to Seller. The minimum requirements are as follows:
·
Laws and Regulations – Seller will comply with all
applicable local and national laws, rules, regulations and requirements in the
manufacturing and distribution of our products and supplies and in the
provision of services.
·
Child Labor – Seller will comply with all applicable local
and national child labor laws.
·
Forced Labor – Seller will not use forced, bonded, prison,
military or compulsory labor.
·
Abuse of Labor – Seller will comply with all applicable
local and national laws on abuse of employees and will not physically abuse
employees.
·
Freedom of Association and Collective Bargaining – Seller
will comply with all applicable local and national laws on freedom of
association and collective bargaining.
·
Discrimination – Seller will comply with all applicable
local and national discrimination laws.
·
Wages and Benefits – Seller will comply with all applicable
local and national wages and benefits laws.
·
Work Hours and Overtime – Seller will comply with all
applicable local and national work hours and overtime laws.
·
Health and Safety – Seller will comply with all applicable
local and national health and safety laws.
·
Environment – Seller will comply with all applicable local
and national environmental laws.
·
Demonstration of Compliance – Seller must be able to demonstrate
compliance with the Seller Guiding Principles at the request and satisfaction
of Buyer.