By acceptance of this Purchase Order, the parties hereby agree to the following terms and conditions:
1. The parties agree that the terms and conditions in this document supersede all prior oral or written negotiations and agreements between Buyer and Seller and any inconsistent course of dealing or trade practice that may have previously existed. These terms and conditions set forth the complete statement of the contract between Buyer and Seller and, except as otherwise set forth herein, they may be modified or amended only by the subsequent written agreement of both parties. Buyer’s offer to buy the goods identified in this document has been expressly conditioned on Seller’s assent to the terms and conditions set forth herein. Buyer expressly objects to and rejects any different or additional terms included in Seller’s request for proposal or quotation, purchase order, acknowledgement form, invoice, billing statement, or other documents. In the event that Seller provides any on site services, the parties further agree that said services will be performed in accordance to the terms of the Wayne Farms Master Contractor/Service Agreement, attached hereto or provided on site to
be signed by a representative of the Seller if applicable.
2. Buyer will not be responsible for goods delivered or services rendered without a valid Purchase Order. No substitution of goods and/or services from those specified will be accepted without the prior written consent of Buyer in the form of a revised Purchase Order. Buyer shall have no obligation to pay until 30 days after Seller properly invoices Buyer for any goods purchased hereunder, unless otherwise provided herein.
3. The Seller must notify Buyer if unable to ship goods and/or render services specified on or before the date specified on the Purchase Order. The date of delivery and/or performance stated on the Purchase Order is a material part of the Sellers acceptance of this Purchase Order; Buyers acceptance of goods after said date is solely optional with Buyer and, if accepted, is subject to a reasonable price reduction, exercised unilaterally by Buyer, unless otherwise agreed in writing by Buyer. Where the Purchase Order specifies, or Buyer otherwise permits partial shipments, and where billing for a partial shipment under the Purchase Order is rendered, it is understood that Sellers invoice dating will be extended to the final receipt of all goods by Buyer. The failure by Seller to deliver (furnish, deliver, and install, if applicable) the goods by the delivery date on the purchase order will cause serious and substantial damage to the Buyer. Since it will be difficult, if not impossible, to prove the amount of damages, Seller shall pay to Buyer as liquidated damages, and not a penalty, one percent (1%) of the total value of this purchase order or $1,000.00 per day whichever is greater, for every day beyond this date that the goods does not deliver. Goods must not be shipped C.O.D. Buyer shall have no risk of loss with respect to goods ordered until actually delivered and receipted for by Buyer, and Seller shall adequately insure all goods from all insurable perils during transit. All shipments are to be F.O.B. destination, Freight Prepaid, unless otherwise indicated on the Purchase Order.
4. The price or prices specified on the Purchase Order are firm and are not subject to increase of any kind without the prior written consent of Buyer. Cash discounts specified on the Purchase Order, or otherwise granted by Seller in general practice, shall be taken by Buyer, unless otherwise specifically stated on the Purchase Order. No charge shall be made to Buyer for packing, boxing, handling, shipping, or cartage, unless specified on the Purchase Order or otherwise specifically authorized in advance by Buyer. Charges, if any, for returnable containers, reels, or drums must be separately itemized on
5. By acceptance of this Purchase Order, Seller warrants to and for the benefit of Buyer (a) that all goods or software delivered will be of good quality and free from all defects of every kind and nature, (b) that all services rendered will be promptly and diligently performed in a good and workmanlike manner, (c) that all goods delivered shall be proper and suitable for the intended purpose of Buyer, whether specifically stated on the Purchase Order, apparent by reasonable circumstances, or otherwise known to Seller, (d) that all goods or software delivered are validly owned by Seller and are delivered to Buyer free from all liens, encumbrances, and claims of others of every kind and nature, (e) that all goods delivered shall be in strict conformance with samples, descriptions, brochures, specifications, and oral assurances provided by Seller to Buyer in submitting this Purchase Order, (f) that all goods or software delivered are absolutely free from infringement of any patent, copyright, trademark, trade name, a brand or slogan, and are not being sold in unfair competition, restraint of trade, or in violation of any other commercial law, rule, or regulation (g) that all goods delivered are in full compliance with the Occupational Safety and Health Act of 1970 (OSHA) and the California General Industry Safety Orders, and all standards and regulation issued under such laws, (h) that all goods delivered have been produced and delivered and/or services rendered have been performed, and all aspects of Sellers business are in compliance with all relevant equal employment laws, rules, and regulations, including, but without limitation, the Equal Employment Opportunity clause, Chapter 60, Title 41, Code of Federal Regulations, applicable to Government Sellers, and subcontractors, and (i) Seller warrants that the prices of the items set forth herein do not exceed those charged by the Seller to any other customers purchasing the same items in like or smaller quantities.
6. Seller agrees that it will indemnify and hold Buyer, its parent, subsidiary, and affiliated companies, and the officers, directors, employees, and agents of each, harmless from and against any and all loss, cost, liability, and expense (including reasonable attorneys' fees, which shall specifically include costs and reasonable attorneys' fees associated with appellate proceedings) directly or indirectly resulting from or arising out of any breach or claimed breach of the warranties in this paragraph.
7. Seller, its heirs, successors, assigns, and subcontractors shall indemnify and hold harmless Buyer from and against any and all claims, actions, causes of action and liability or on account of injury to or the death of any person or persons and damage to property (including property of Seller) in any manner caused by, contributed to, or arising out of the purchase or use of the goods contemplated herein, including, but without limiting the generality of the foregoing, claims, actions, causes of action, and liability to which the negligence of Seller (including latent defects, and failure to warn against said defects) is
or is alleged to have been the sole or contributing cause of the injury, death, or injury to property.
8. FDA, USDA, State and Local Requirements - All goods or material that will be used in a food production environment must comply with all Food and Drug Administration, United States Department of Agriculture, State, Local or Municipal laws, requirements and regulations. Seller warrants that it will have complied with all applicable governmental laws, regulations and orders, including the Fair Labor Standards Act of 1938, as amended, in connection with all Products delivered under this Agreement. All such warranties shall survive termination of this Agreement.
9. Seller represents and warrants to Buyer, its customers and assigns, and agrees, that as of the date of the Agreement that Seller is and shall continue to be in compliance with all equal employment and affirmative action provisions of Executive Order 11246, the Vietnam Era Veterans' Readjustment Assistance Act ("VEVRAA"), Section 503 of the Rehabilitation Act of 1973, as amended, Executive Order 12138, Section 8 of the Small Business Act, as amended (15 USC § 637), and all implementing regulations under those Orders, VEVRAA and those sections. If Buyer will use the goods or services in connection with a contract with the United States or other government, then all terms and conditions that the government contract or any law or regulation requires to be included in any contract formed pursuant to the order ("Government Terms") are incorporated in the order by reference. If any provision of the order is inconsistent with any Government Terms, then the Government Terms shall control. Upon Buyer’s request, Seller shall execute a Certificate of Compliance evidencing compliance with this paragraph.
10. All goods delivered shall be subject to the inspection and trial use by Buyer, and may be returned to Seller for a full refund, after such trial use, if such goods do not perform to Buyer’s complete satisfaction.
11. Warranty: All goods, software or material sold hereunder shall have the longer of a one (1) year warranty, or the standard warranty provided by the Seller, or provided by the manufacturer of the goods in question. In the case of the latter, Seller agrees to assign all manufacturer warranties to Buyer for any products purchased hereunder. The warranty period contemplated in this paragraph shall commence upon the date the product was received by the Buyer, unless otherwise specified herein. Buyer’s acceptance and or inspection of the goods shall not relieve Seller of its warranty obligations under this paragraph or paragraph 4.
12. Confidentiality: In the event that Seller obtains, in the course of Seller’s performance hereunder, knowledge of any trade secrets or other information of a confidential nature of Buyer, Seller agrees that Seller (and Seller’s agents and employees) shall not disclose such trade secrets or confidential information to others, and shall not use such trade secrets for its own accounts or for the purposes of any third party.
13. Assignment: Seller shall not assign this order or any rights thereunder or any monies due or to become due thereunder without the prior written consent of Buyer, and no purported assignment by Seller shall be binding on Buyer without its written consent thereto.
14. Waiver: The failure of Buyer in any one or more instances to insist upon the performance of any of the terms and conditions herein, or to exercise any right or privilege in this Purchase Order, shall not be construed as thereafter waiving any such terms, conditions, rights or privileges, and the same shall continue and remain in full force and effect as if no waiver had occurred.
15. Venue: The laws of the State of Georgia, U.S.A., shall govern this Purchase Order and the relationship it creates. Seller agrees that any disputes arising out of the terms or under this Purchase Order or sales resulting therefrom shall be litigated in the state or federal courts located in Hall County, Georgia. Seller specifically submits to the jurisdiction of said court for the purpose of such litigation and waives any challenges based upon venue or lack of jurisdiction.
16. Severability: Should it be determined by any court of competent jurisdiction that any provision of Terms and Conditions is invalid, void, or unenforceable for any reason, such provision will be severed from these Terms and Conditions and the remaining provisions shall continue in full force and effect without being impaired or invalidated, all to the end that the manifest intention of the parties shall be effectuated.
17. If any terms of this Purchase Order contradict language in any existing contract related to the subject matter herein, the terms of the contract shall prevail.
18. Jointly drafted: Neither party shall be deemed to be the drafter of this agreement, and it shall be interpreted as though jointly drafted and negotiated at arms length and in good faith.
PO Terms for Goods 1.27.17