Priority of Terms and Conditions. Buitoni Food Company (“Buyer”) hereby notifies any provider (“Seller”) of goods (“Products”) or services (“Services”) in advance that it objects to any terms and conditions in Seller’s quotation, invoice, confirmation or other document that are additional to or different from these Terms, whether or not the additional or different terms would materially alter these Terms. If a contract between Buyer and Seller is established through performance or other conduct, the terms and conditions of that contract will not be deemed to consist only of terms and conditions as to which the parties’ writings agree, but rather these Terms will be a part of that contract and will prevail over the conflicting and/or different terms and conditions of any other document forming a part of the contract. These Terms and the related or accompanying purchase order (the “Order”) constitute the entire agreement of Buyer and Seller with respect to the subject matter of the Order, and no statement purporting to modify these Terms shall be binding unless reduced to writing and signed by the party to be bound thereby.
Order Changes. Buyer reserves the right at any time to change the type, quantity, and place and/or time of delivery of the Products or Services. If any such change causes an increase or decrease in the cost of or the time required for Seller’s performance, an equitable adjustment may be made in the price and/or delivery schedule. Any claim for adjustment by Seller will be deemed waived unless made in writing within ten (10) days after receipt of the change. Nothing contained herein will relieve Seller from its obligation to proceed without delay to perform the Order, as changed. Buyer may cancel the Order without liability at any time prior to Buyer’s receipt of the ordered Products or Services.
Price; Payment Terms. Prices are FOB Buyer-specified destination and include packing and shipping charges. For international transactions, delivery terms are Delivered Duty Paid (DDP) (Incoterms 2000) Buyer-specified destination. Seller’s prices include all applicable packaging, transportation costs, insurance, taxes, duties and levies, including but not limited to sales, use, value-added, and excise taxes. Unless otherwise specifically agreed in writing, Buyer will not accept any prices or fees that are higher than the prices or fees specified in the Order. If no prices or fees are specified in the Order, Seller must notify Buyer of the price and Buyer’s acceptance must be obtained in writing prior to the delivery of the Product or rendering of the Services. Payment is due in U.S. dollars within forty-five (45) days after Buyer’s receipt of an accurate and itemized invoice referencing a valid Order number, unless otherwise agreed in writing. Buyer may set off any amount owing to Buyer from Seller against any amount payable by Buyer to Seller under the Order or any other transaction with Seller.
Delivery, Title and Risk of Loss; Force Majeure. Time is of the essence with respect to Seller’s obligations and the timely delivery of the Products and/or Services under the Order. Title passes to Buyer upon delivery of the Products at the Buyer-specified destination. Seller, at its expense, will deliver the Products and/or perform the Services at the place(s), in the manner, and at the times specified by Buyer and will bear all risk of loss or damage to the Products until delivery of the Products to the Buyer-specified destination. Seller shall notify Buyer in writing immediately of any circumstance that may cause a change in delivery. Buyer may return or store, at Seller’s risk and expense, any Products delivered prior to the specified date(s). If Seller does not deliver the Products or perform the Services within the time(s) specified, Buyer may, in addition to its other rights and remedies: (i) terminate the affected portion of the Order; (ii) obtain substitute goods or services elsewhere and Seller will pay all costs and expenses associated therewith; and (iii) expedite shipment of the Products and Seller will pay all costs and expenses associated therewith. Neither party shall be liable for a delay in performance of its obligations and responsibilities under the Order to the extent due to causes beyond its reasonable control, and without its fault or negligence, such as war, embargo, national emergency, insurrection or riot, acts of the public enemy, fire, flood or other natural disaster, provided that said party has taken reasonable measures to notify the other promptly in writing of delay (and in any event, within 72 hours of such force majeure event). Failure of subcontractors or inability to obtain materials shall not be considered a force majeure event. If a force majeure event prevents Seller from carrying out its obligations under the Order for a continuous period of more than [fifteen (15)]/[thirty (30)] days, Buyer may terminate the Order immediately by giving written notice to Seller.
Warranties. Seller warrants that all Products delivered to Buyer will (i) comply with any specifications delivered by Buyer to Seller (“Specifications”), (ii) be merchantable, (iii) be free from defects, (iv) be of good material and workmanship and (v) be fit and sufficient for the purposes intended. Seller warrants that all Services rendered to Buyer will be performed in a good and workmanlike manner by qualified personnel and in accordance with any Specifications and all applicable laws and regulations. Professional services will be performed in accordance with all applicable professional standards for the field of expertise. Seller further warrants that on delivery at the Buyer-specified destination, Buyer will receive good title to the Products, free and clear of all claims, liens and encumbrances, and that the Products and Services will be free from any actual or claimed infringement of any patent, copyright, trademark or other proprietary right. The foregoing warranties are cumulative and in addition to any warranties implied by law or otherwise made by Seller and will survive acceptance and payment by Buyer. If the Order relates to the purchase of any food or substance the intended use of which may reasonably be expected to result in its becoming a component or otherwise affecting the characteristics of any food (including any substance intended for use in producing, manufacturing, packing, processing, preparing, treating, packaging, transporting or holding any food), Seller warrants that the Product may lawfully be introduced into interstate commerce and is not adulterated or misbranded within the meaning of the U.S. Federal Food, Drug and Cosmetic Act, as amended, or any other applicable laws, rules or regulations (including Canadian federal, provincial and municipal laws, rules and regulations).
Seller Compliance. Seller will maintain complete records on Products provided under the Order in a form reasonably satisfactory to Buyer. Seller will keep all records pertaining to the Order for a period of five (5) years from the date of provision of relevant Products with regard to which such records relate or for such lesser or greater period of time as may be agreed upon in writing by Buyer. Buyer may, during reasonable business hours when Seller is performing any of its services under the Order, maintain a representative or representatives in all facilities where Buyer ingredients, packaging materials, or goods are stored and processed, and inspect the facilities and procedures to assure that they are consistent with the terms hereof. In addition, upon advance written notice at a mutually agreeable time, Buyer may conduct quality assurance/operational audits of the facilities from time to time. [On at least an annual basis, Seller will obtain and deliver to Buyer, at Seller’s expense, an audit of the facilities, based on one of the GFSI recognized standards and conducted by a qualified independent third party reasonably acceptable to Buyer, for the purpose of demonstrating compliance with the Order and all applicable industry, safety and health standards and regulations. Seller will share with Buyer either the entire audit report or a full list of all noted discrepancies and its correcting actions] [Note to Buitoni: Consider whether to include this bracketed language.] If Buyer determines that Seller has failed to fulfill any of the requirements set forth in the Order, then Buyer will give Seller written notice of such deficiency and Seller will take immediate corrective action.
Inspection and Testing. Buyer will be entitled to inspect and test the Products, or the results of the Services, within a reasonable time after delivery, which Seller acknowledges will be not less than [sixty (60)] days after receipt of the Products or final completion of the Services. Final acceptance of the Products or Services will not be deemed to have occurred until the expiration of the inspection period. Neither Buyer’s failure to conduct inspection or testing, nor the failure to discover nonconforming Products or Services, nor payment by Buyer will prejudice Buyer’s continuing right to reject (or revoke acceptance of) nonconforming Products or Services and to avail itself of any other remedy.
Services Personnel. All personnel performing Services shall be qualified to perform the tasks assigned to them. Seller acknowledges that Seller is an independent contractor and Seller shall have no authority to bind or otherwise obligate Buyer in any manner, nor shall Seller represent that it has the right to do so. Buyer may review and approve any personnel assigned to perform Services. Within two (2) business days after written notice from Buyer, Seller will replace any of its personnel who fail to perform Services as required in accordance with the Order with qualified personnel who are reasonably satisfactory to Buyer.
Assignment; Delegation; Subcontracting. Neither party may assign, delegate, subcontract or transfer any of its rights or obligations under the Order without the other party’s prior written approval, and any purported assignment, delegation, subcontracting or transfer in violation of this Section shall be null and void; provided, however, that Buyer may assign its rights and obligations under the Order without the prior written approval of Seller to one of its affiliates and/or in connection with the sale of all or substantially all of Buyer’s assets. In the event of any approved delegation or subcontracting by Seller, Seller shall continue to be liable with respect to all of the obligations hereunder and hereby guarantees satisfactory performance of the Order. Seller shall enter into a written agreement with any permitted subcontractor, which, at a minimum, meets the insurance requirements of these Terms and includes provisions protecting Buyer’s Confidential Information in a manner consistent with these Terms.
Limitation of Liability. Buyer’s liability arising out of or in connection with the Order will not exceed the price or fees allocable to the Product (or unit thereof) or Service giving rise to the claim.
Seller’s Required Insurance Coverage. Seller shall, at its own expense, maintain and carry the following insurance in full force and effect:
Workers Compensation & Employers’ Liability Insurance with limits of at least:
$1,000,000 Per Accident
$1,000,000 Each Employee
$1,000,000 Policy Limit
General/Product/Professional Liability Insurance with limits of at least:
A certificate of insurance shall be provided to Buyer before product is released on an ACORD certificate naming the applicable Buyer and its affiliates as additional insureds on general liability and umbrella insurance, as their interests may appear. Carriers must have an AM Best’s rating of at least A-VII
Indemnity. Seller will indemnify, defend and hold harmless Buyer and its affiliates and its and their respective directors (or similar governing body), officers, employees, agents, successors and permitted assigns from and against any and all damages, losses, liabilities, claims, suits, actions, demands, proceedings (whether legal or administrative), judgments, obligations, costs and expenses (including but not limited to reasonable attorneys’ fees and the costs of enforcing this indemnity), whether or not involving third party claims, arising out of or resulting from (i) the Products or Services Seller provided Buyer under the Order, (ii) Seller’s violations or alleged violations of any applicable laws, statutes, regulations and codes, including, without limitation, those relating to anti-bribery and anti-corruption, equal opportunity employment, child and forced labor and fair trade, (iii) Seller’s breach of the Order, or (iv) the negligent or wrongful acts or omissions of Seller, its employees or agents. The foregoing indemnity will remain operative and in full force and effect regardless of any termination or expiration of the Order, and will be in addition to any liability that Seller otherwise may have to Buyer. Seller shall not enter into any settlement without Buyer’s prior written consent.
Product Recalls. In the event either party becomes aware of any situation which could result in the seizure, destruction, recall or withdrawal of any Products or of the need for any seizure, destruction, recall or withdrawal of any Products, such party shall immediately notify the other party of such situation by telephone and by facsimile or email. With respect to product withdrawals or recalls, Buyer will have the right, in its sole discretion, to determine the necessity of any withdrawal or recall of the Products and the classification level thereof and to control the administration of any such withdrawal or recall. Seller will cooperate with Buyer in effecting any such withdrawal or recall. Seller will maintain all of its production and shipment records to facilitate any withdrawal or recall. Unless the nonconformity or defect in any Products subject to seizure, recall, withdrawal or destruction is not attributable to any act or omission on the part of Seller, Seller shall reimburse Buyer upon demand for all out-of-pocket and documented costs and expenses actually incurred by Buyer in connection with its seizure, destruction, recall or withdrawal of such nonconforming Products and for all amounts paid by Buyer for any Products so seized, destroyed, recalled or withdrawn, and will use commercially reasonable efforts to mitigate any costs incurred by Buyer as a result thereof.
Confidentiality. Seller acknowledges that Seller may have access to Confidential Information of Buyer, its affiliates or its customers. The term “Confidential Information” means all non-public, confidential or proprietary information, including but not limited to, data, formulae, processes, documentation, records, specifications, procedures, test results, evaluations, experience, know-how, and materials, and all financial, employment, technical, engineering, production, marketing, sales, legal and other information in any form and whether or not marked or otherwise identified as being “confidential” or “proprietary” relating, directly or indirectly, to the business, employees, assets, products, technology or research and development activities of Buyer, its affiliates or customers, as well as all written materials, data, records, documents and other information prepared by or on behalf of Seller on the basis of, or including, such information. Seller hereby recognizes the competitive value and confidential nature of the Confidential Information. Seller will use the Confidential Information solely for the purpose for which it was disclosed to Seller, and Seller will take all necessary precautions to keep the Confidential Information strictly confidential. Seller may disclose Confidential Information to its employees who have a bona fide reason to know such information in connection with the Order. Seller will inform such persons of the confidential nature of the Confidential Information, will direct them to treat such information as strictly confidential that shall not be disclosed, and will be liable for any improper use or disclosure of Confidential Information by them. Seller also may disclose Confidential Information to the extent required by applicable law or legal process, upon reasonable prior written notice to Buyer. Upon Buyer’s request at any time, all tangible Confidential Information (including all copies of all documents included in the Confidential Information) will be returned to Buyer within two (2) business days, and any intangible Confidential Information will continue to be subject to the terms of these Terms. Seller’s obligations under this Section shall survive the expiration or termination of any contract or business relationship between Seller and Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section.
Non-Solicit. For a period of one year from the date Seller no longer has a business relationship with Buyer, Seller shall not directly or indirectly (i) either alone or in association with others, solicit or induce any customer of Buyer to terminate or modify its business relationship with Buyer, or (ii) either alone or in association with others, hire any Buyer employee or solicit or induce any Buyer employee to terminate employment with Buyer.
Termination. In addition to any remedies that may be provided under these Terms, Buyer may terminate the Order with immediate effect upon written notice to the Seller, either before or after the acceptance of the Products or the Services, if Seller has not performed or complied with any of these Terms, in whole or in part. If the Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then Buyer may terminate the Order upon written notice to Seller. If Buyer terminates the Order for any reason, Seller’s sole and exclusive remedy is payment for the Products received and accepted and Services accepted by Buyer prior to the termination.
Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (other than routine communications having no legal effect) (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
Severability. If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
No Waiver. The failure of either party to insist upon performance of any of these Terms or to take advantage of any of its rights hereunder will not be construed as a waiver of such provisions or the relinquishment of such rights. No single or partial exercise by either party of any right or remedy will preclude other or further exercise thereof or the exercise of any other right or remedy.
Dispute Resolution. Upon mutual agreement, the parties may attempt in good faith to settle any dispute or claim arising out of or relating to the Order, via non-binding mediation in accordance with the applicable rules of the American Arbitration Association (“AAA”). The mediation will be held in Chicago, Illinois and each party will bear its own costs incurred in such mediation, and the parties will equally defray the mediator’s fees. Any negotiations pursuant to this Section will be confidential, will take place for no more than three consecutive days, and will be treated as compromise and settlement negotiations for purposes of the applicable rules of evidence. Neither party will be bound by the provisions of this Section if the parties’ dispute pertains to a breach of the confidentiality obligations set forth herein.
Upon mutual agreement, the parties may submit any dispute or claim arising out of or relating to the Order, which is not settled through mediation (if elected), to binding arbitration administered by the AAA in accordance with its Commercial Arbitration Rules and its Optional Procedures for Large, Complex Commercial Disputes. The arbitration will be heard and determined by one arbitrator selected and mutually agreed upon by the parties, and such arbitrator will be an attorney having experience and familiarity with the type of business dispute to be resolved. In the event that the parties cannot agree upon an arbitrator, the arbitrator will be selected by the AAA. The arbitration proceeding will occur in Chicago Illinois, each party will bear its own costs relating to such arbitration, and the parties will equally share the arbitrator’s fees. The arbitration and all related proceedings and discovery will take place pursuant to a protective order entered by the arbitrator that adequately protects the confidential nature of the parties’ proprietary and confidential information. In no event will any arbitration award provide a remedy beyond those permitted under the Order, and any award providing a remedy beyond those permitted under the Order will not be confirmed, no presumption of validity will attach, and such award will be vacated. Buyer may, without waiving any remedy under the Order, seek from any court of competent jurisdiction within Illinois any interim or provisional relief that Buyer deems necessary to protect its Confidential Information and property rights, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal’s determination of the merits of the claim(s) presented).]
Governing Law; Forum Selection. These Terms and the Order, all rights and obligations between the parties to these Terms and the Order, and all claims arising out of or relating to the subject matter of these Terms and the Order (including tort claims), will be governed by the laws of the State of Illinois, U.S.A., without regard to conflict of laws principles. Any litigation or other legal proceeding based upon or related to these Terms and the Order, its subject matter, or the rights or obligations of the parties to these Terms and the Order, must be brought and shall remain exclusively in an appropriate court of competent jurisdiction (state or federal) located in the State of Illinois. The rights and obligations of the parties to these Terms and the Order will not be governed by the provisions of the 1980 UN Convention on Contracts for the International Sale of Goods; rather these rights and obligations will be governed by the laws of State of Illinois.