Mount Olive Pickle Company, Inc. Purchase Order Terms and Conditions
- These Purchase Order Terms and Conditions (“Terms”) set forth the entire understanding between the Buyer and Seller with respect to the items or services subject to the Purchase Order (“Order”) presented to you (“Seller”) by Mount Olive Pickle Company, Inc. (“Buyer”), except as otherwise set forth herein. Buyer objects to any additional or different terms contained in any Seller confirmation or other communication from Seller. Any changes whatsoever Seller makes to this Order or on any other document will automatically be deemed null and void and of no effect. These Terms only apply to transactions that do not have a written agreement duly executed by both parties. If there is such an agreement, then those terms shall be the terms that govern the transaction and relationship of the parties. Seller’s full or partial performance under this Order will constitute acceptance of these Terms. By acceptance of this Order, Seller agrees to be bound by, and to comply with all these Terms, which include any supplements to it, and all specifications and other documents referred to in the Order. These Terms apply to everything listed in the Order and constitute Buyer’s offer to Seller, which Buyer may revoke at any time in accordance with these Terms. This Order is not an acceptance by Buyer of any offer to sell, any quotation, or any proposal from Seller. Reference in this Order to any such offer to sell, quotation, or proposal will not constitute a modification of any of these Terms. Terms and conditions different from or in addition to these Terms, whether contained in any acknowledgment of the Order, or with delivery of any goods or services under the Order, or otherwise, will not be binding on Buyer, whether or not they would materially alter this Order, and Buyer hereby rejects them. These Terms may be modified only by a written document signed by duly authorized representatives of Buyer and Seller.
- Prices: The Order must not be filled at a price higher than shown on the face of the Order. If no price is set forth on the front of the Order, the goods or services will be billed at the price last quoted or at the prevailing market price, whichever is lower, and, in any event, goods and services ordered under the Order will not be billed at a higher price than last quoted or charged without Buyer’s specific written authorization. Buyer will be entitled at all times to set off any amount owed at any time by Seller or any of its affiliates to Buyer or any of its affiliates against any amount payable at any time by Buyer in connection with this Order. No extra charges of any kind will be allowed unless specifically agreed to in writing by the Buyer.
- Termination: Buyer may terminate all or any part of the Order for convenience at any time prior to delivery by written notice to Seller. Upon such termination, Buyer’s liability will be limited to reasonable termination charges mutually agreed by Seller and Buyer, provided that Seller must request any proposed charges in writing within fifteen (15) days after termination. This Order shall terminate automatically, without notice, if Seller becomes insolvent or the subject of any proceeding under the laws relating to bankruptcy or the relief of debtors.
- Shipping. All the prices are established as F.O.B. Seller and/or origin dock, freight prepaid, unless otherwise specifically provided on the Order. Title and risk of loss shall not pass to Buyer until delivery of the goods to the location designated on the face of the Order and acceptance by Buyer. If Buyer rightfully rejects the goods, receives a non-conforming tender, or revokes its acceptance, risk of loss and title shall be deemed to have remained with Seller. The responsibility for freight-damaged merchandise will be assumed by Seller. No charges for unauthorized transportation will be allowed. Any unauthorized shipment, which will result in excess transportation charges, must be fully paid by the Seller.
- Warranties: In addition to all implied warranties, Seller warrants that all goods covered hereunder will be merchantable, free from defects in material and workmanship, fit for their intended purpose, and that they will fully conform to all applicable specifications, drawings, samples and descriptions; in the event of any breach hereof, Seller will (at Buyers sole discretion, and at Sellers sole expense and in addition to any other rights and remedies Buyer may have) either credit Buyer, or replace, repair, or correct any such goods. If Seller fails to correct defects in or replace nonconforming goods within ten (10) days from the date the Buyer notifies Seller of the defect or defects, Buyer may, on ten (10) days prior written notice to Seller, either (i) make such corrections or replace such goods and charge Seller for all costs incurred by Buyer, or (ii) revoke its acceptance of the goods in which event Seller shall be obligated to refund the purchase price and make all necessary arrangements, at Seller’s cost, for the return of the goods to Seller. All warranties of Seller herein or that are implied by law shall survive any inspection, delivery, acceptance, or payment by Buyer. Any attempt by Seller to limit, disclaim, or restrict these warranties or any remedies of Buyer, by acknowledgment or otherwise, in accepting or performing this Order, will be null, void, and ineffective without Buyer’s written consent.
- Delays: Upon Seller’s confirmation of this Order, if Seller encounters any delay in the production, acquisition, or delivery of goods hereunder (whether actual or foreseeable, and regardless of cause), Seller shall immediately notify Buyer and shall communicate all relevant information to Buyer. Seller shall be liable for any damages resulting from failure to make a complete, on-time delivery, except where such delay is due to causes beyond Seller’s reasonable control.
- Inspection & Acceptance: Acceptance or rejection of the goods shall be made as soon as practicable after delivery; provided, however, Buyer’s failure to inspect, accept or reject goods shall not relieve Seller of any obligations or liability for defective goods or warranties set forth herein.
- Defects/Hazards: In any event Seller becomes aware (actual or constructive) of any hazard, danger or defect related to the Products that could pose a danger to persons or property, Seller shall immediately notify Buyer of such. In no event whatsoever shall Buyer be restricted from fixing or recalling product that may (in Buyer’s sole discretion) pose a danger to persons or property. In any such event of a fix or recall due to any defect or nonconformity, Seller shall be responsible for those costs caused by Seller’s actions, inactions, or products.
- Indemnification & Liability: Seller shall indemnify and hold harmless Buyer (including its officers, agents, employees, distributors, and affiliates), from and against any and all claims, losses, damages, liabilities, costs and expenses (including reasonable attorney fees and other expenses) arising out of Sellers breach, negligence, willful misconduct, infringement, or which such parties may sustain or incur in connection with enforcement of these terms and conditions, or any other legal theory which may result in whole or part, from any act or omission on Sellers part. Seller shall carry comprehensive general liability insurance, including, contractual and product liability, with minimum limits reasonably acceptable to Buyer, and shall, at Buyers request, supply certificates of insurance evidencing such coverage. In no event whatsoever shall Buyer be liable for consequential, incidental, indirect, punitive or special damages (including for loss of profits, data, business or goodwill), however caused including without limitation for breach of warranty, breach or repudiation of contract, detrimental reliance, tort, strict liability, failure of essential purpose or otherwise, and even if advised of the likelihood of such damages.
- Limitation of Liability: BUYER’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THE ORDER IS LIMITED TO THE AMOUNT PAID BY BUYER FOR THE GOODS AND/OR SERVICES. TO THE MAXIMUM EXTENT ALLOWABLE UNDER APPLICABLE LAW, BUYER SHALL NOT BE LIABLE UNDER THIS ORDER FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUES EVEN IF BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Buyer’s Intellectual Property; Patents: Seller may not use Buyer’s trade names, trademarks, logos, service marks, or other proprietary marks without the prior written consent of Buyer. Seller agrees to indemnify and hold harmless Buyer against all liability, loss, and expense (including attorneys’ fees) by reason of any claim action, or litigation arising out of any alleged or actual, direct or contributory infringement of patent arising from the purchase, use or sale of goods provided by Seller.
- Remedies: Each of the rights and remedies reserved to Buyer in the Order shall be cumulative and additional to any other remedies provided in law or equity. No delay or failure by Buyer in the exercise of any right or remedy shall affect any such right or remedy and no action taken or omitted by Buyer shall be deemed to be a waiver of any such right or remedy.
- U.S. Government Contracts: When applicable, Seller shall abide by the requirements of 41 CFR 60–1.4(a), 60–300.5(a) and 60–741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability or veteran status.
- Confidentiality: Buyer and Seller agree to keep confidential the terms and conditions of the Order.
- Assignment: Seller may not assign any of its rights or obligations hereunder without Buyer’s prior written consent. This Order will be binding upon and inure to the benefit of the parties and their heirs, administrators, executors, successors and permitted assigns. An assignment will be deemed to include not only a transfer of the Order or such interest or payment to another party but also a change in control of Seller, whether by transfer of stock or assets, merger, consolidation, or otherwise.
- Severability: If any provision of this Order is held to be invalid, illegal or unenforceable, either in whole or in part, that holding will not affect the validity, legality or enforceability of the remaining provisions of this Order.
- Controlling Law: The laws of North Carolina, U.S.A., shall govern and control this Agreement. Further, the parties hereto agree that any action relating to this Agreement shall be instituted and prosecuted in the Superior Court of Wayne County, North Carolina, or, if applicable, the Eastern District of North Carolina federal courts, and Seller consents to the jurisdiction of said courts and waives any right or defense relating to such jurisdiction or venue. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
ND: 4813-4328-7188, v. 1