1. ACCEPTANCE; CONTRARY TERMS; ENTIRE AGREEMENT.

The purchase order (the “Order”) is an offer to purchase the products and/or services (the “Goods”) described in the Order. Delivery or other indications of acceptance by Seller will result in a firm contract containing only the terms of the Order and these Terms. Any conduct by Seller evidencing the existence of an agreement (including without limitation shipment) shall be deemed an acceptance without exception of these Terms. Any conflict between the terms of the Order and these Terms shall be resolved in favor of these Terms (unless otherwise provided in these Terms).

ANY PROVISION OF ANY FORM OR OTHERWISE PROPOSED BY SELLER, WHETHER IN QUOTATION, ACKNOWLEDGEMENT, INVOICE OR OTHERWISE, INCONSISTENT WITH OR ADDITIONAL TO THESE TERMS WILL NOT CONSTITUTE A PART OF THE CONTRACT OF SALE AND ARE REJECTED.

Buyer’s performance is conditional upon Seller’s assent to these Terms; if any of these Terms are not acceptable to Seller, Buyer must be notified promptly. No claimed modification, termination or waiver will be binding on Buyer unless it is in writing and signed by a duly authorized representative of Buyer. Buyer would not have issued the Order without Seller’s agreement to these Terms.

2. Payment Terms. 

Unless specified in the Order to the contrary, the terms paid by buyer will be net 45 days ACH.

3. Price; Risk of Loss; Packing; Shipping.

Unless otherwise specified in the Order, the prices charged to Buyer are F.O.B. Buyer’s warehouse  (F.O.B. under the UCC) or other delivery point specified in the Order, and include any applicable federal, state and local taxes, customs, charges, duties or fees of every kind and nature. Seller warrants that the prices charged to Buyer in the Order shall be no higher than prices charged to Seller’s other customers for similar Goods of similar quantity. Title and all risk of loss or damage remains with Seller until the Goods are delivered to Buyer. The Goods will be packed and shipped by Seller in accordance with any instructions by Buyer and in accordance with good commercial practices, to ensure that no damage or spoilage results from weather or transportation. No extra charges will be allowed for packing, shipping and other extras unless in the Order. All Goods must bear markings and labels required by Applicable Law (as defined below). All Goods and invoices shall be clearly marked with an appropriate description of the Goods, the Order number and quantity of items. Buyer may delay delivery and/or acceptance for causes arising beyond its control.

4. Amendment, Cancellation and Termination.

(a) Buyer may, at any time before delivery of the Order, make changes in quantities, specifications, delivery schedules, and methods of shipping and packing. If such changes cause an increase or decrease in prices or in time required for performance, Seller will promptly notify Buyer thereof and provide a written proposal to implement such changes. Changes will not be binding on Buyer unless evidenced by a change order issued and signed by an authorized representative of Buyer.

(b) Acceptance of part or all of the Goods after the specified delivery date(s) will not operate as a waiver of any of Buyer’s rights, including its rights to damages for late delivery.

(c) Buyer may terminate the Order in whole or in part, at any time for its sole convenience, by notice to Seller in writing. When Seller receives such notice, it will, to the extent specified therein, stop work and the placement of subcontracts under the Order, terminate work outstanding hereunder, and take any necessary action to protect the property in Seller’s possession in which Buyer has or may acquire an interest. Seller shall be paid a reasonable termination charge reflecting the percentage of the work performed prior to the termination notice, plus actual direct costs resulting from termination. Any termination claim must be submitted to Buyer within 10 days after the effective date of the termination. Buyer reserves the right to accept or reject any such claim in whole or in part.

5. Time is of the essence with respect to Seller’s obligations

Time is of the essence with respect to Seller’s obligations hereunder and Buyer may cancel the Order in whole or in part, without liability to Buyer, (i) if deliveries are not made at the time and in the quantities specified, (ii) in the event of any other breach or failure of any other terms or conditions hereof, (iii) if a petition in bankruptcy is filed by or against Seller, or Seller is declared insolvent or has a receiver or trustee appointed for it or its assets, (iv) if Seller makes an assignment for the benefit of creditors or commences proceedings under any state insolvency or similar law; or (v) if Buyer encounters any labor disputes, governmental orders or actions, unavailability of transportation, fires, floods, breakdowns of essential machinery, accidents, acts of God, or other cause beyond its control which affects its ability to receive and use the Goods ordered. If delivery of Goods or rendering of services is not completed by the specified delivery date, Buyer reserves the right, in addition to its other rights, to return the Goods or terminate all or part of the Order and charge Seller with all costs, expenses and damages associated with such return or termination.

6. Compliance with Law and Recall.

(a) Seller and the Goods shall be in compliance with all requirements of any applicable federal, state, provincial or local law, regulation, ordinance, or rule of the place where the Goods are produced and/or packaged and the laws of the place where the Goods or the products into which the Goods are incorporated are sold (collectively, “Applicable Laws”). In particular, without limitation, Applicable Laws include all laws, regulations, orders, ordinances and rules promulgated by the U.S. Department of Labor, the U.S. Food and Drug Administration (the “FDA”), the U.S. Department of Agriculture (the “USDA”), the “Good Manufacturing Practices” under the Federal Food, Drug and Cosmetic Act, the laws under the Sanitary Food Transportation Act and Occupational Health and Safety Act, the Fair Labor Standards Act, U.S. Consumer Product Safety Act, Lacey Act of 2008, the USMCA, the current good manufacturing practice regulations covering manufacturing, packing or holding food of the FDA or comparable regulations of the USDA, California Proposition 65 and other laws, including but not limited to laws, related to health, safety, environment, labor, employment, import, and export. Seller agrees to execute any documents that Buyer requests to certify compliance with Applicable Laws. For purchases within the United States, Seller’s invoices shall contain a certification substantially as follows: “Seller represents that these items were produced in compliance with all applicable requirements of the Fair Labor Standards Act and of regulations and orders of the U.S. Department of Labor issued thereunder.” If applicable, Seller also warrants that it shall at all times comply with applicable provisions relating to obligations of government contractors and subcontractors, which are incorporated in the Order by reference, including without limitation the OFCCP Rules and Regulations, 41 CFR 60-1, et. seq. (including the reporting, record keeping and affirmative action program requirements) incorporating the Equal Opportunity Clause of Executive Order 11246, the maintenance of nonsegregated facilities, the Vietnam Era Veteran’s Readjustment Act of 1974, The Rehabilitation Act of 1973, Executive Order 11701 relating to the employment of veterans and Executive Orders 11625 and 12138 relating to participation by minority and women-owned businesses and the utilization of concerns owned and controlled by socially and economically disadvantaged individuals.

(b) Without in any way limiting Seller’s obligations under the Order or these Terms or Buyer’s rights and remedies under these Terms, Seller will implement, at Seller’s sole cost and expense, any changes to the manufacturing or supply process that may be required by Applicable Laws or by any governmental authority.

(c) Seller will immediately notify Buyer of any defect or problem with the Goods. Seller will maintain a recall procedure in the event that any part or all of the Goods are found to contain a defect or hazard, or not to be in compliance with any Applicable Laws, standard or requirement, so as to require or make advisable that such Goods be reported, repaired or recalled.

7. REPRESENTATION & Warranty

In addition to all warranties prescribed by Applicable Laws, Seller specifically represents, warrants and guarantees that (a) the Goods are new and of first quality, merchantable, free from impurities, defects in material, design or workmanship and are and will be suitable and safe for the ordinary purpose and the particular purpose for which the Goods are purchased by Buyer; (b) the Goods only include materials and packaging that are in compliance with all reasonable safety standards and Applicable Laws, will not pose a health or safety hazard when used for their intended purpose, are not contaminated with a foreign substance or contain any rancid ingredients; (c) the Goods conform to any specifications, drawings, and other descriptions and are of good title and free from liens and encumbrances; (d) if include services, the Goods are performed by competent and qualified personnel in a proper and workmanlike manner; (e) if include food or food ingredients, the Goods do not contain any unauthorized food contact substance under Applicable Laws, do not contain allergens (eggs, fish, crustacean shell fish, tree nut, wheat, peanuts and soybeans) unless specifically noted, and are not processed in a facility that uses an allergen in production processes unless it has been disclosed on the label in accordance with Applicable Laws; (f) the Goods do not include any illegal, misleading or untrue label claim, are not prepared, packaged, or held under unsanitary conditions within the meaning of Applicable Laws; (g) the Goods and all articles comprising each shipment or other delivery will not be adulterated or misbranded within the meaning of Applicable Laws nor will any such Goods and articles be an article which may not, under the provision of Applicable Laws, be introduced into interstate commerce; (h) the Goods will comply with all Applicable Laws; (i) it has or will obtain, and will keep in full force and effect, all licenses, certifications, registrations, permits, and approvals as are necessary in connection with its performance of the Order; and (j) the Goods have been manufactured in conformance with all Applicable Laws and these Terms. All warranties, express and implied, will run to Buyer, its successors, assigns, and customers, and to users of the Goods or users of the products into which the Goods are incorporated. Seller also warrants that it shall obtain and assign or otherwise provide to Buyer the benefits of warranties and guarantees provided by manufacturers or suppliers of material or equipment incorporated in to the Goods and shall perform its responsibilities so that such warranties or guarantees remain in full effect. If the Goods fail to conform to the foregoing warranties, Seller will, at Buyer’s option, replace the non-conforming Goods with conforming Goods without charge to Buyer (with freight charges to be paid by Seller) or give Buyer a credit equal to the price paid by Buyer for such nonconforming Goods plus any freight costs paid by Buyer to acquire such non-conforming Goods. In addition, Seller will bear the costs of disposal of any non-conforming Goods and will be responsible for any property damage caused by the non-conforming Goods, including without limitation damage to any products into which the Goods are incorporated and manufacturing equipment used to process the Goods. The foregoing warranties and remedies shall be in addition to any warranties or remedies provided by Applicable Laws, including the Uniform Commercial Code, and shall survive inspection, test, acceptance and payment.

8. Inspection; Rejection.

All of the Goods are subject to Buyer’s inspection. Buyer shall have a reasonable time to inspect the Goods after arrival at the agreed destination. Upon notice, Buyer may make inspection visit(s) at the site where the Goods are being designed or manufactured, or services being performed. If Buyer determines that part of the Goods are not in accordance with Buyer’s specifications, Buyer has the right to reject any such Goods and is permitted to cancel any unshipped portion of the Order. Goods rejected or those which are supplied in excess of quantities called for herein may be returned to Seller at Seller’s expense. Payment for the Goods prior to inspection shall not constitute acceptance thereof, and shall be made without prejudice to any and all claims that Buyer may have against Seller. In the event the Goods must be installed, tested, inspected or assembled prior to their use, they shall not be deemed finally accepted until such installation, testing, inspection or assembly, as the case may be, indicates that the Goods are in accordance with specifications and are operating properly. Exercise or non-exercise of these rights will have no effect on Buyer’s other rights and remedies hereunder.

9. Indemnification.

Seller will defend, indemnify, and hold Buyer, its affiliates, and their respective officers, directors, employees, customers, consumers, successors and assigns, harmless against any Losses (as defined below), to the extent arising from any actual or alleged (a) defect in the Goods or product liability claims related in any way to the Goods; (b) failure to comply with specifications in the Order or with the express and implied warranties of Seller; (c) violation by the Goods, or in their manufacture, sale, packaging, shipment and delivery, of any Applicable Laws, (d) infringement by Seller or the Goods of any patent, trademark, trade secret, copyright or other intellectual property right, (e) any product recalls which directly or indirectly relate in any way to the Goods, or (f) any breach of any of the terms set forth herein or of the Order. The term “Losses” means losses suffered by Buyer and all claims for losses including but not limited to those relating to bodily injury, personal injury, illness, death, property damage or loss (including real and personal property whether owned or leased, and including loss of use), damages, claims, actions, proceeding, liabilities, demands, liens, encumbrances, causes of action, obligations, costs and expenses including those relating to inspections, testing and product analysis, labor, publishing notices, storing, packaging, handling, transporting, re-labeling and/or destroying the Goods or products that incorporate the Goods, refunds, Buyer’s cost of unsold products, judgments, fines, fees, interest, awards or settlement amounts, reasonable attorneys’ fees, loss of profits, diminution in value, product recall costs, court costs and other costs of defense, and all claims that might be brought by (or losses suffered by) spouses, heirs, survivors or legal representatives, successors and assigns. If any claim, demand, action or proceeding is commenced against Buyer by reason of any of the above matters, Buyer will give Seller notice thereof in writing. Buyer shall have the right to set off any amounts owing to Seller under any other orders or agreements in effect.

10. Confidentiality/Name Use.

Seller agrees not to utilize or disclose to anyone any confidential information, drawings or data, whether or not designated as such, which is supplied, furnished, obtained or disclosed directly or indirectly to Seller by Buyer, except as reasonably required for the purpose of fulfilling the Order. Seller shall immediately return any such confidential materials to Buyer at Buyer’s request. Seller shall not use the name of Buyer nor the fact of any purchase by Buyer in any advertising or other publications of Seller without the prior written consent of Buyer.

11. Reservation of Rights.

Buyer explicitly reserves its rights to all remedies available to it under applicable law, including, without limitation, any rights it may have to incidental and consequential damages.

12. Insurance.

Seller shall obtain and maintain in force during the term of the Order and for a period of two years thereafter the following insurance coverage: (a) commercial general liability insurance policy in an amount of at least $1,000,000 per occurrence and $2,000,000 aggregate coverage, (b) a commercial umbrella policy, with limits of liability of not less than $5,000,000 annual aggregate coverage and (c) any other insurance required under law, with each policy under (a)-(c) with insurance companies that are licensed and admitted to do business in the United States having an A.M. Best rating of B+ VII or better. Insurance coverage must be written on an occurrence basis. All Seller’s insurance will name Buyer, its subsidiaries and affiliated entities as additional insureds under the insurance policies. Such insurance shall apply as primary and noncontributory insurance with respect to any other insurance or self-insurance program afforded to Buyer. Upon request, Seller shall provide Buyer with a certificate of insurance that such insurance is in effect. Insurance maintained by Buyer and its subsidiaries and affiliated entities is for their exclusive benefit and will not inure to the benefit of Seller. Seller agrees to waive all rights of subrogation against Buyer. Seller shall also obtain and maintain in force workers’ compensation insurance affording statutory coverage and containing not less than statutory limits for the state(s) in which Seller is conducting business related to the Order, and employer’s liability insurance in the amount of at least $1,000,000 each accident for bodily injury, $1,000,000 each employee for bodily injury by disease, and $1,000,000 policy limit for bodily injury by disease. Seller waives all rights against Buyer and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by the workers’ compensation and employer’s liability insurance. Upon request, Seller shall obtain a waiver of subrogation endorsement to the benefit of Buyer to affect the waiver. To the extent automobiles are used in connection with the Goods, Seller shall obtain and maintain in force automobile liability insurance, which shall include coverage for owned, hired and non-owned autos in an amount not less than $1,000,000 each occurrence for a combined single limit covering bodily injury and property damage. Seller shall give Buyer not less than 30 calendar days’ written notice prior to any cancellation, nonrenewal or restrictive modification of any insurance coverage.

13. OBLIGATION TO SUPPLY, FORCE MAJEURE, and Notice of supply interruption.

(a) Seller shall make, sell and deliver to Buyer such quantities of the Goods described in the Order. The obligation of Seller to supply the quantities of the Goods described in the Order is unconditional and absolute (subject only to any express terms of these Terms limiting such obligation). Seller shall be solely responsible for all costs and expenses incurred in connection with the manufacture of the Goods, including costs and expenses of personnel, quality control testing, supply facilities, equipment, and materials, and ensuring that it has sufficient quantities of each of the Goods in the Order.

(b) Seller shall provide Buyer prompt written notice of any development, event, or occurrence that it has any reason to believe could potentially result in an interruption of supply or in Seller’s failure to supply the full quantity of the Goods ordered by Buyer by the applicable delivery date in the Order, including any change in the financial condition of Seller or its authorized subcontractors. In the event that Seller does not have sufficient capacity or materials to timely supply the Goods to its various customers, it shall ensure that it first supplies the Goods to Buyer prior to supplying any of the Goods to Seller’s other customers.

(c) If Seller is unable to comply with its unconditional obligation to supply the quantities of the Goods as may be ordered by the Order, (i) Buyer, in its sole discretion, will have the right to engage a substitute seller (including Buyer or one of its affiliates) to supply the Goods, (ii) Seller shall reasonably cooperate with and support Buyer with respect to the pre-qualification of any substitute seller, and (iii) Seller will have the obligation to reimburse Buyer for all costs and expenses incurred in connection with, or related to, Buyer’s transition to a substitute seller (including Buyer or one of its affiliates) of the Goods.

(d) Whenever Seller has knowledge that any present or potential labor dispute is delaying or threatens to delay the timely performance of the Order, Seller shall immediately give notice thereof, including all information relevant thereto to Buyer. If Seller encounters any governmental orders or actions, fires, floods, accidents, acts of God, or other cause beyond its reasonable control, Seller shall give prompt notice thereof to Buyer. If Seller experiences any of the foregoing force majeure events and such event is anticipated to last more than five business days, Buyer shall have the right to terminate any orders hereunder without any liability to Buyer.

14. Assignment.

Seller shall not assign or subcontract any of its rights, duties or obligations under the Order without Buyer’s prior written consent. Such consent shall not relieve Seller from its obligations, from any liability for breach, or from any duty to perform.

15. Governing LAW, WAIVER, and Alternative Dispute Resolution.

(a) The validity, construction, and enforcement of the Order and these Terms will be governed by and interpreted under the local, domestic law of the State of Wisconsin, including, without limitation, its provisions of the Uniform Commercial Code, without giving effect to any conflict of law principles (whether of the State of Wisconsin or any other Jurisdiction). The waiver of any provision of the Order or these Terms will not be effective unless contained in a written agreement signed by the waiving party and no waiver will be construed by a party’s failure to enforce any of its rights or remedies under the Order. No remedy provided herein shall be exclusive of any other remedy hereunder or provided by Applicable Laws. If Seller is a supplier located outside the United States, then the United Nations Convention on Contracts for the International Sale of Goods shall not apply.

(b) If Seller is located in the United States, all claims or disputes regardless of nature shall be exclusively brought in the state or federal court situated in  Milwaukee  County, Wisconsin, and the parties hereby unconditionally submit to the personal jurisdiction of such courts.

(c) If Seller is located outside of in the United States, Buyer and Seller agree to submit all controversies, disputes regardless of nature, or claims arising out of or in connection with or relating to the Order or these Terms, or its formation, interpretation, breach, termination, or validity, including the determination of the scope or applicability of the Order or these Terms to arbitrate, to be determined by binding arbitration administered by the International Centre for Dispute Resolution (“ICDR”) in accordance with its Rules of Arbitration. Such arbitration proceedings shall be conducted in the English language and shall be conducted in or near Milwaukee , Wisconsin, U.S.A. unless otherwise agreed to by Buyer and Seller in writing. The arbitration shall be heard and determined by 1 arbitrator. If the parties cannot agree on an arbitrator within 30 days of the service of the notice of arbitration on the respondent, either party may request that the appointment be made by the ICDR. Unless otherwise agreed by the parties, any arbitrator appointed by the ICDR must have knowledge and experience relating to international food production and sales. No arbitrator chosen pursuant to this Section shall be related to or affiliated with Buyer, Seller, either party’s affiliates, counsel, or any officer, director, or employee of the foregoing. The arbitrator shall be fluent in the English language. All matters within the scope of the Federal Arbitration Act of the United States (9 U.S.C. §§ et seq.) shall be governed by it. The arbitrator shall have the right to award or include in their award any relief which they deem proper in the circumstances, including without limitation, money damages (with interest on unpaid amounts from date due), specific performance, injunctive relief, and legal fees and costs; provided, that the arbitrator shall not have the power to enjoin a termination of the Order or these Terms, or to award exemplary, punitive, or special damages. The costs and expenses of arbitration shall be borne 50% by each party. The award and decision of the arbitrator shall be in writing in the English language and shall be conclusive and binding upon the parties, and judgment upon the award may be entered in any court of having jurisdiction thereof. Notwithstanding anything to the contrary contained in this Section, Buyer and Seller each have the right in a proper case to obtain temporary restraining orders, temporary or preliminary injunctive relief, or any other emergency, extraordinary or interim relief available under Applicable Laws from any court of competent jurisdiction; provided, however, that the parties agree to contemporaneously submit their dispute for arbitration on the merits as provided herein.

16. Materials Furnished.

If Buyer furnishes any material for fabrication hereunder, Seller: (a) agrees not to substitute any other material in such fabrication without Buyer’s written consent, (b) agrees that title to such material shall not be affected by incorporation in or attachment to any other property, and (c) agrees to state and warrant in writing on its shipper and invoice for final parts that all material furnished by Buyer under the Order (except that which became normal industrial waste or was replaced at Seller’s expense) has been returned in the form of Goods and unused material. Seller will use any designs, tools, patterns, drawings, information and equipment furnished by Buyer only in the performance of the Order, unless Buyer’s prior written consent is obtained, and title remains with Buyer at all times. Seller agrees that no inaccuracy in tools or fixtures which Buyer furnishes shall excuse performance not in strict accordance with the specifications. The Order price includes the cost of tooling (including gauges, jigs, fixtures, dies, molds, tools, patterns and the like) that may be created or acquired by Seller for use in the manufacture, fabrication or assembly of the Goods called for herein and, unless otherwise specified in the Order, title to such tooling shall pass to Buyer upon its creation or acquisition and will remain in Buyer. Seller shall use such tooling solely and exclusively for Buyer. Seller shall deliver such tooling to Buyer on demand. All final plans, diagrams and blueprints of the tooling shall be Buyer’s property and shall be delivered to Buyer. Seller shall safely store the tooling and materials and obtain and maintain adequate insurance against damage or destruction and repair and maintain such materials and tolling in good working order. Upon written demand by Buyer, Seller shall surrender immediately the materials and tooling to Seller, at the destination designated by Buyer, in the same condition as when it was delivered by Buyer to Seller, ordinary wear and tear excepted. Any reasonable expenses which Buyer incurs to restore the materials or tooling to the condition in which it was delivered to Seller, ordinary wear and tear excepted, shall be fully reimbursable by Seller.

17. Intellectual Property License.

If any experimental, developmental or research work is called for or required hereunder, Seller agrees to and hereby does grant to Buyer an irrevocable, nonexclusive, fully transferable royalty free license to make, have made, use and sell any invention, improvement or discovery (whether or not patentable) that Seller conceives or first actually reduces to practice in performing the Order. Seller agrees to and hereby does grant to Buyer (a) an irrevocable, non-exclusive, fully transferable, royalty-free license to reproduce, translate, publish, use and dispose of, and to authorize others to do, any copyrighted or copyrightable material ordered as Goods or incorporated in or supplied as a supplement with any Goods; and (b) the right to reproduce, use and disclose for any purpose all or any part of the reports, drawings, blueprints, data and technical information delivered or specified to be delivered by Seller to Buyer under the Order.

18. Independent Contractor.

Seller shall at all times be an independent contractor and no express or implied representations to the contrary shall be made. Seller shall at all times retain exclusive liability for wages and all employment-related obligations due its employees and shall indemnify Buyer for any liability arising therefrom. Seller agrees to have its employees comply with Buyer’s policies and procedures when Seller’s employees are on Buyer’s premises. Seller will be liable for death or injuries to Seller’s employees or death, injuries or damages caused by Seller’s employees when Seller’s employees are on Buyer’s premises.

If applicable and as permitted by Buyer, before Seller or Seller’s employee(s) use any of Buyer’s equipment, Seller must have and show proof of Seller’s employees’ authorized level of training for use of the type of Buyer’s equipment. At Buyer’s discretion, Seller’s employee(s) must pass a machine specific training on Buyer’s equipment Seller’s employees(s) plan to use.

19. Survival of Obligations.

Termination, expiration, or cancellation of the Order or these Terms for whatsoever reason, shall not relieve the parties of any obligation accruing prior to such termination, expiration, or cancellation and is without prejudice to the rights and remedies of the parties then accrued.