ENTIRE AGREEMENT: This Order constitutes the entire agreement between the parties regarding the Goods referred to herein, and supersedes all previous oral or written negotiations and understandings regarding the subject matter herein.
ASSIGNMENT/CHANGE OF CONTROL: Seller may not assign its rights or obligations under this Order without LFI’s prior written consent. Should Seller attempt to assign its rights or obligations under this Order as a result of a change in control or by operation of law (“Assignment”) without such consent, the entity that assumes such Assignment shall be bound by the terms and conditions of this Order. Notwithstanding the foregoing, LFI may, at its option, terminate this Order without penalty in the event any Assignment occurs without LFI’s express consent.
INVOICING/SHIPPING INSTRUCTIONS: Seller shall:
(a) Include in each shipment separate packing slips and invoices showing LFI order number, LFI item or mark number, description of the Goods, price and quantity shipped.
(b) Accept payment according to the terms on the face of this Order.
(c) Include any applicable cash discounts on all invoices.
(d) On all prepaid shipments chargeable to LFI, attach transportation receipt to the invoice, as LFI will only pay for actual freight cost incurred.
(e) Notify LFI, if applicable: (i) number of packages, size, weight; (ii) method of protection during shipment; and (iii) suggested method for storage and protection upon arrival at destination.
GOODS: The Goods shall conform in all respects to the description on the face of this Order, and/or LFI’s then current Specifications. The Goods shall be new, of first class commercial type and of the latest approved design, unless otherwise specified on the face of this Order. Workmanship and materials shall be of the best quality and free from defects that might render the Goods unsuitable or inefficient for the purpose for which it is to be used. Seller warrants and guarantees the Goods for the period of time normally specified for the type of Goods involved. During the warranty period, all Goods or parts disclosing defects in design, material and/or workmanship shall be replaced and delivered by Seller, without cost or delay to LFI. This warranty is in addition to and not in lieu of, any other warranties or guarantees made by Seller or created or implied as a matter of law. The above warranties, as well as all other warranties contained herein, including, without limitation, the warranties in paragraphs 6, 8, 10, 18, 22 and 32 shall collectively be defined herein as “Warranties.”
INFRINGEMENT: Seller warrants that Goods sold hereunder and any uses proposed by Seller or reviewed by LFI with Seller do not violate the trademark, patent, copyright or trade secret rights of any person or entity, and Seller will defend LFI and save it harmless for misappropriation of trade secrets, unfair competition and trademark, patent or copyright infringement which may arise out of the use or sale by LFI of the Goods herein ordered.
GOVERNING LAW: This Order between LFI and Seller shall be governed by the laws of the State of Illinois (including, without limitation, its UCC) without regard to its conflict of laws provisions and without regard to the country in which this Order is issued. Disputes arising under this Order shall be determined by the courts of Cook County, Illinois, U.S.A.
FDA GUARANTY: Seller guarantees and warrants that any materials sold by it hereunder shall not at the time of delivery to LFI, or when used as intended by LFI, be adulterated or misbranded within the meaning of the Federal Food Drug and Cosmetic Act as amended (or the Food and Drugs Act (Canada) if the Order is issued in Canada), and any other state or provincial law, and shall comply in all respects with the Food Safety Modernization Act and all applicable regulations of the Federal Food and Drug Administration and other applicable state or local regulatory bodies. This warranty is in addition to not in lieu of any other warranties or guarantees made by Seller or created or implied as a matter of law.
DELIVERY:
(a) The time of delivery shall be as stated herein. Time is of the essence; however, Seller shall not be liable for loss or damage arising from a Force Majeure event. A “Force Majeure” event shall be an Act of God, war, or riots. If the Force Majeure event causes an extension of the delivery time such that the use of the Goods is impractical, LFI may terminate this Order with respect to such Goods without penalty.
(b) Seller may not rely on a course of performance, prior course of dealings or trade usage to imply an agreement to extend the specified time of delivery.
(c) If delivery date(s) cannot be met, Seller must immediately inform LFI in writing of Seller’s soonest possible delivery date(s) subject to LFI’s acceptance. In addition to any other rights and remedies LFI may have under this Order or provided by law, if deliveries are not made at the time agreed upon, LFI may request that Seller ship the Goods by different and/or expedited delivery (cost of alternative means of shipment borne by Seller), or cancel this Order in whole or in part and purchase comparable Goods elsewhere and hold Seller accountable for any loss or additional cost arising from such expedited delivery or cancellation.
(d) Seller may not institute a credit hold on any Order without first giving LFI written notice and not less than three (3) business days to cure.
(e) The Goods may not be manufactured, packaged, stored, sampled or tested at or shipped from any location other than the facility on the face of this Order or the Specifications without LFI’s prior written consent.
AUDIT/INSPECTION:
(a) The Goods and the place of manufacture of the Goods ordered hereunder are subject to audit, review, inspection and/or test by LFI or an agreed-upon third party at any time. Acceptance shall not be conclusive as to latent defects, fraud or any other similar issue not known by LFI;
(b) LFI shall not be under any obligation to inspect the Goods. Any inspection by LFI shall not absolve Seller of any liability.
(c) Acknowledgment of receipt on packing slips, bills of lading or other documents shall not constitute acceptance. Goods that are delivered in quantity may be inspected by sampling.
(d) If any Goods are defective or otherwise not in conformity with the requirements of this Order, LFI may, at its option, reject them or require correction(s) or replacement(s). There shall be an adjustment of any payments made for rejected Goods, either by Seller’s refund or by a deduction from LFI’s subsequent remittances. Rejected Goods shall be removed and the Goods shall be corrected or replaced promptly at Seller’s expense and, if returned, shall be identified by Seller. If rejected Goods are not promptly replaced or if non conforming Goods are not promptly corrected, LFI may, at its option, elect to perform some or all of the following actions: (i) obtain such Goods or similar Goods elsewhere and charge Seller with any cost increase caused thereby; (ii) terminate this Order for default under paragraph 13, (iii) accept the Goods at a reduced price; and/or (iv) seek other remedies and damages. Seller will not substitute non-conforming Goods or back order such Goods without LFI’s prior approval.
CHANGES: LFI may change any of the terms of this Order by a written change order. Any changes in Seller’s costs of performance arising out of such a change order shall be reflected in a written price adjustment, which shall not take affect without LFI’s written consent. Pending such price adjustment(s), Seller shall proceed with this Order as changed by LFI.
TERMINATION FOR DEFAULT: If Seller fails to deliver the Goods within the time specified, or otherwise defaults, LFI may immediately terminate this Order in whole or in part (reserving its rights to damages and otherwise at law and equity). In the event of termination for default:
(a) Seller shall continue performance of any non terminated portion of this Order, and LFI may obtain elsewhere the portions of the Goods affected by the termination; and
(b) LFI may, at its option, require Seller to transfer to LFI all materials, work in process, completed supplies, tooling, plans and Specifications allocated to the terminated portion of this Order. LFI shall, in this event, pay Seller the fair value of such items.
TERMINATION: LFI may terminate this Order in whole or in part at any time whenever the Goods specified herein are no longer required by LFI. If, upon such termination, LFI and Seller cannot negotiate a mutually satisfactory settlement within a reasonable time, LFI will pay Seller, and Seller shall accept without duplication of any items, as full settlement:
(a) Contract price for completed items; or
(b) Seller’s direct cost allocated to terminated portion of this Order; or
(c) Reasonable direct costs of Seller in settling claims arising out of this termination, and in protecting property in which LFI has or may acquire an interest. In no event shall LFI be liable for any consequential, indirect, special or punitive damages.
TAXES: The prices stated in this Order shall include all applicable taxes in effect on the date hereof and levied or assessed with respect to the production, sale or use of the Goods covered by this Order or components thereof.
CONFIDENTIAL INFORMATION: Seller shall not use, release or disclose to third parties any information concerning the Goods, formula(s) and/or process(es) involving the subject matter of this Order without the prior written consent of LFI. Seller shall retain all LFI confidential information in a readily available form. Upon the expiration or termination of this Order, and upon written request from LFI, Seller shall:
(a) promptly deliver to LFI confidential information in any format; or
(b) destroy any and all confidential or proprietary information related to LFI in its possession and provide written verification of such action. Notwithstanding anything herein to the contrary, the parties do not intend this provision to encompass the tax aspects of the underlying transaction such that this Order must be disclosed to the Internal Revenue Service as prescribed by Section 6011 of the Internal Revenue Code and Treasury Regulation § 1.6011.
INTELLECTUAL PROPERTY: Seller understands and agrees that nothing in this Order, nor in the disclosure of LFI confidential information shall convey ownership, title, or any other rights for license thereto to Seller or any person in privity therewith to any proprietary right of LFI, including, without limitation, trade secrets, inventions and patent rights.
EQUAL OPPORTUNITY: The Seller is an EEO/AA employer and shall comply with Executive Order 11246 and all other related applicable regulations Including, without limitation, 41 CFR 60-250, 300.
WORK MADE FOR HIRE: Unless otherwise noted on this Order, all creative materials and production materials (including drawings) ordered or developed hereunder as well as any inventions or improvements (patentable or otherwise) which are created using LFI confidential information, shall be deemed to be “work made for hire” which is owned by LFI and which may be used by LFI in its sole discretion. All such materials (including drawings) shall be marked as follows: “This information is the confidential property of Lawrence Foods and shall not be copied in whole or in part without the prior express written permission of Lawrence Foods.” Failure to so mark materials shall not waive any of LFI’s rights thereto. Seller agrees to cooperate with LFI in perfecting LFI’s patent and copyright rights to such materials and to execute such documents as requested by LFI in furtherance thereof. Upon LFI’s request, all documents, and data shall be transmitted to LFI. If requested by LFI, the documents and data shall be submitted in an electronic format to the extent available.
TITLE: Title to and risk of loss of the Goods shall pass to LFI, f.o.b. LFI’s warehouse or facilities, unless otherwise stated on the face of this Order. Seller represents and warrants that good title to the Goods will pass free and clear of all charges, claims and liens of any nature.
INDEMNIFICATION & DAMAGES: Seller shall indemnify and hold harmless LFI and its agents, employees, shareholders, directors, affiliates, successors and assigns from and against all claims (including third party claims), demands, losses, attorneys’ fees (“Claims”), arising out of or resulting from Seller’s performance of the work, use of LFI owned property or equipment, breach of the Warranties, work done on LFI’s premises or Seller’s negligence or willful misconduct. This obligation shall not extend to Claims to the extent caused by LFI’s negligence or willful misconduct. Seller shall be responsible for all damages or expenses incurred by LFI that result from Seller’s breach of any term or Warranty in this document or any Order including Seller’s failure to produce the Goods according to LFI’s Orders. Such damages shall include, without limitation, any expenses or increased costs of alternative products, business interruption losses (i.e., lost profits based upon inability to fulfill customer demand), and all other direct and consequential damages. Seller shall also be responsible for LFI’s costs of any Goods which cannot be utilized and other expenses directly resulting from capacity conflicts or limitations not identified to LFI in time to prevent such losses.
CLAIMS: All Claims of Seller will be promptly made to LFI in writing within one (1) year of LFI’s acceptance of the Goods, and no claims will be made for less than One Hundred Dollars ($100.00).
COMPLIANCE WITH LAW: Seller’s performance under this Order shall be in compliance with all applicable federal, provincial, state and local laws, rules, statutes, ordinances and regulations including, without limitation, 29 CFR part 470 (“Laws”).
ENVIRONMENTAL: Sellers shall operate in an environmentally responsible manner and comply with all applicable regulations.
RECALL: LFI shall have the sole right, exercisable in its discretion, to initiate and direct the content and scope of a recall, market withdrawal, stock recovery, product correction and/or advisory safety communication (any one or more referred to as a “Recall Action”) regarding the Goods. At LFI’s option, LFI may direct Seller to, and upon such direction Seller shall, conduct such Recall Action. LFI shall determine, in its discretion, the manner, text and timing of any publicity to be given such matters. In the event a Recall Action is initiated or directed by LFI, Seller agrees to fully cooperate and take all such steps as are reasonably requested to implement the Recall Action in a timely and complete manner. Any and all action taken in connection with a Recall Action shall be in accordance with FDA policies and other Laws. Seller shall bear the costs associated with:
(a) any Recall Action which results from Seller’s negligence or willful misconduct; or (b) Goods that do not comply with Seller’s Warranties.
SURVIVAL: All representations and Warranties of the Seller, all rights and remedies of LFI and any other provisions hereof which by their express terms or by implication are to survive, shall survive the termination or other expiration of this Order.
WAIVER: LFI’s failure to enforce any provision of this Order or to require performance by Seller shall not be construed as a waiver of such provision nor affect the validity of the Order or any part thereof, or LFI’s right to enforce any provision thereafter. LFI’s rights under this Order are in addition to, and not in lieu of, any other remedies available under the UCC, at law or in equity.
PUBLICITY: Seller agrees not to publish or use any advertising, sales promotion or publicity matter in which LFI’s name is mentioned.
SEVERABILITY: Each provision of this Order is severable and if any provision shall be finally determined to be invalid, illegal or unenforceable (“Invalid”) in any jurisdiction, the remaining provisions shall not be affected thereby, nor shall said provision be Invalid in any other jurisdiction.
FOOD DEFENSE: Seller certifies that it conducts all operations, and all Goods provided, are produced under an appropriate Food Defense Plan that complies with the requirements of CTPAT, MTSA, or the USDA FSIS model.
LANGUAGE: The parties hereby confirm their express agreement that this Order and all documents directly or indirectly related thereto shall be drawn up in English. LES PARTIES RECONNAISSENT LEUR VOLANTE EXPRESSE QUE LA PRESENTE CONVENTION AINSI QUE TOUS LES DOCUMENTS QUI S’Y RATTACHENT DIRECTEMENT OU INDIRECTEMENT SOIENT REDIGES EN LANGUE ANGLAISE.
CURRENCY: Unless otherwise stated on the front of this Order, all payments and other financial requirements required under this Order shall be in the currency of United States Dollars.
SUPPLIER CODE OF CONDUCT: Seller shall follow all aspects of Lawrence Foods Supplier Code of Conduct, which can be found at https://www.lawrencefoods.com/about/principles. Failure to follow the Supplier Code of Conduct in all respects shall permit LFI to immediately terminate this Order.
DISPUTE RESOLUTION: The parties will attempt in good faith to promptly resolve any dispute arising out of this Order by negotiations between representatives who have authority to settle the controversy; provided, however, that foregoing shall not in any way limit a party’s ability to seek relief in court in accordance with Section 7.
NOTICE: All notices, requests and other communications to any party hereunder shall be in writing (including facsimile, e-mail or similar writing) and shall be given to the addresses listed on the face of this Order. Each such notice, request or other communication shall be effective if given by any other means, when delivered at the address specified in this Section 34.
CONFLICTS: In the event of a conflict between, or limitation arising under, any of the terms of this Order and the terms of any of Seller documents or proposals, including any Seller attachment, schedule or document incorporated by reference to this Order, the terms of this Order shall prevail.
Rev. 01/2012