THIS PURCHASE ORDER IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH BELOW:
1. ACCEPTANCE: This purchase order constitutes an offer by Freshpet, Inc. or its subsidiary, as applicable (as indicated in any accompanying document(s) issued by Freshpet, Inc. or its subsidiary, as applicable, “Buyer”) for the purchase of the goods specified by Buyer in the accompanying document(s) issued by Buyer (the “Goods”) from the seller indicated in the accompanying document(s) issued by Buyer (“Seller”) in accordance with and subject to these terms and conditions (collectively, with the Accompanying Document(s) as defined below, the “Order”). The accompanying document(s) issued by Buyer (including through any electronic ordering system or otherwise, and containing any references to the particular Buyer, Seller, quantity and designation of Goods, delivery destination and other terms shall be referred to as the “Accompanying Document(s)”). This Order shall become a binding contract (a) if Seller shall sign and return a copy of this Order within 5 days of the date of this Order (as indicated on the Accompanying Document(s)), or within such other period as Buyer may designate in writing manually, or, if no date so appears, within 5 days after Buyer’s mailing hereof, or (b) if Seller delivers the Goods to Buyer. Buyer may withdraw this Order at any time prior to its acceptance by Seller. Acceptance of this Order is limited to acceptance on the terms and conditions of this offer and no other terms and conditions, and for the avoidance of doubt, the terms and conditions set forth herein shall apply to any sale of Goods from Seller to Buyer.
2. PRICES: If no prices are specified on the Accompanying Document(s), the prices charged shall not exceed those last quoted or charged Buyer by Seller. Seller warrants that the purchase price charged to Buyer for the Goods is the lowest price charged by Seller to any customer for goods of like grade and quality purchased in similar or lesser quantity. If Seller charges any other buyer a lower price, Seller must apply that price to all Goods under this Order.
3. PAYMENT TERMS: Seller shall issue an invoice to Buyer on or any time after the completion of delivery of all Goods. Buyer shall pay all properly invoiced amounts due to Seller within 30 days after Buyer’s receipt of such invoice (or such other time period as may be set forth in any Accompanying Document(s)), except for any amounts disputed by Buyer in good faith. The parties shall seek to resolve all payment disputes expeditiously and in good faith. Seller shall continue performing its obligations under this Order notwithstanding any such dispute. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller.
4. PACKING: All Goods shall be suitably packed for shipment in accordance with any instructions provided by Buyer and otherwise in accordance with applicable law and industry standard. No charge shall be made for containers, wrapping, packing, boxing, crating, trucking, delivery, storage or other costs unless specifically authorized in this Order or by Buyer in writing.
5. SHIPPING: Unless otherwise specified on the Accompanying Document(s), all shipments shall be F.O.B. the destination indicated on the Accompanying Document(s). All transportation and related charges, including cartage, shall be prepaid by Seller. Buyer shall have the right to make adjustments in Seller’s invoices for transportation and related charges paid by Buyer or due to any non-compliance with this Order. Seller shall give written notice of shipment to Buyer when the Goods are delivered to a carrier for transportation. Seller shall provide Buyer all shipping documents necessary to release the Goods to Buyer promptly after Seller delivers the Goods to the transportation carrier. The Order number must appear on all shipping documents, invoices, correspondence and any other documents pertaining to the Order.
6. DELIVERY DATE: The dates of delivery and the quantities and qualities herein specified are of the essence, and failure so to deliver shall constitute a substantial impairment of the value and, therefore, a material breach, of this Order. Seller shall be responsible for and shall indemnify, defend and hold Buyer harmless from all losses, penalties or damages (including, without limitation, any losses, penalties or damages paid or payable by Buyer to, or under agreements with, its customers) resulting from such failure. Since Buyer’s purchase orders are frequently made in connection with orders from its customers which provide for fixed delivery schedules, Seller assumes the obligation to deliver in accordance herewith despite the occurrence of any unexpected contingency or government action. Seller shall promptly notify Buyer whenever it shall appear to Seller that it will not be able to deliver the quantities specified on the date or dates specified herein. Providing the foregoing notice is required hereunder but shall not serve to extend the delivery period or to excuse any late delivery. Buyer’s acceptance of short shipments or late deliveries shall not constitute a waiver at any of its rights.
7. TITLE: RISK OF LOSS: Delivery shall not be deemed to be complete and title shall not pass to Buyer until the Goods have actually been received by Buyer, notwithstanding any agreement by Buyer to pay transportation charges (if any), and the risk of loss or damage until receipt by Buyer shall be upon Seller.
8. WARRANTIES; REMEDIES OF BUYER:
(a) Seller warrants that all Goods furnished hereunder shall be free from defects in workmanship and material, shall comply with requirements of this Order and any drawings or specifications incorporated herein or otherwise provided in writing by Buyer, shall be strictly in accordance with approved samples, if any, shall be merchantable, shall be free and clear of all liens, security interests or other encumbrances, and (unless designed by Buyer) shall be free from defects in design. If the Goods are not ordered to specifications, or samples are not approved, Seller warrants that they will be fit for their intended purpose. Seller also makes all warranties implied under law. The foregoing warranties are cumulative and in addition to any other warranties provided by law or equity or which are made by Seller, and all of Seller’s warranties shall survive any delivery, inspection, acceptance or payments of or for the Goods or all future sales and use of the Goods. All warranties shall run to Buyer, and its successors and assigns, and its customers and users of its products.
(b) If any of the Goods delivered hereunder do not meet any warranty of Seller, Buyer may in addition to charging Seller for the cost of inspection, at its election: (1) require Seller to replace such Goods or to repair them so that they do meet all such warranties; (2) repair such Goods itself, and charge the cost of such repair to Seller; or (3) return such Goods and recover from Seller the contract price thereof. If in Buyer’s opinion an excessive percentage of the Goods delivered pursuant hereto are defective, Buyer shall have the right, in addition to its other rights, to reject the balance of the Goods covered hereby. In addition to (or in substitution of) any of the foregoing remedies, Buyer may sue for damages or exercise its other remedies. All defective or rejected Goods shall be held for instructions from Seller or at Buyer’s option shall be returned to Seller, all at Seller’s risk and expense.
9. COMPLIANCE WITH LAW: Seller represents that the Goods sold hereunder and the actual manufacture, sale and importation of such Goods do not violate and are in full compliance with all applicable laws, regulations, ordinances, rules and industry standards, including without limitation the requirements of the Toxic Substances Control Act (P.L. 94-469) and all rules and regulations pertaining thereto, and further that all chemical substances contained in the Goods, or used in the production thereof, have been reported to the Environmental Protection Agency in accordance with the requirements of the Toxic Substance Control Act. Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Order. Seller shall comply with all export and import laws of all countries involved in the sale of Goods under this Order. Seller assumes all responsibility for shipments of Goods requiring any government import clearance.
10. ANTIDUMPING DUTIES: (a) Seller represents that the Goods are not being sold to Buyer at less than its fair value, as that term is defined in the United States Antidumping Act of 1921, as amended, and Seller further warrants the non-applicability of dumping duties under the Act with respect to the Goods. (b) Seller agrees that if a final determination of sales at less than fair value is made pursuant to the United States Antidumping Act of 1921, as amended, which is applicable to any of the Goods, and if dumping duties are thereafter imposed, as to any importations of such Goods, Seller will reimburse Buyer the amount of any such dumping duties on any Goods exported to the United States prior to such final determination of sales at less than fair value. (c) Buyer shall have the right to terminate this Order forthwith in the event a final determination of sales at less than fair value as defined in the United States Antidumping Act of 1921, as amended, is made with respect to any of the Goods.
11. NON-INFRINGEMENT: Seller warrants and agrees that the sale or use of any of the Goods (except such Goods, if any, as may have been designed by Buyer) and the reproduction, use and disposition of any reports, drawings, blueprints, data and technical information delivered to Buyer pursuant to this Order, will not infringe or violate any patent, copyright, trademark, or other right of any third party.
12. INDEMNIFICATION AND INSURANCE:
(a) INDEMNIFICATION: Seller shall indemnify, defend and hold harmless Buyer and its subsidiaries, affiliates, successors and assigns and their respective representatives and agents and all customers and users of Buyer’s products, from all claims, liabilities, losses, damages, fines, seizures, costs and expenses, including, without limitation, reasonable attorneys’ fees (including costs incurred in the investigation of all claims, preparation for and defense against the same and/or settlement thereof, whether or not civil actions or other legal proceedings to enforce such claims are initiated) arising from or out of (1) the manufacture, shipment, sale or use of any Goods furnished by Seller including, without limitation, by reason of any actual or alleged injury, death or damage to any person or property, (2) any act or omission performed by Seller or any of its personnel, subcontractors or other agents, (3) the negligence or willful misconduct of Seller or its personnel, subcontractor or other agents, (4) any actual or alleged breach by Seller of any representation, warranty or covenant contained of this Order, or (5) shortages or errors in weight or measure of Goods purchased herein.
(b) INSURANCE: Seller shall, at its own cost and expense, maintain: (1) Comprehensive or Commercial General Liability insurance covering all injury or damage alleged in connection with the work, with a limit of liability of not less than $2 million per occurrence. Coverage shall include, but not be limited to, personal injury, products liability, completed operations, contractual liability, and broad form property damage coverage, (2) Automobile Liability insurance covering all owned, hired or non-owned vehicles used by Seller in connection with this Order and any loading or unloading of such vehicles with a limit of liability of not less than $1 million per accident, and (3) Workers Compensation and Employers Liability insurance as required by statute covering all damages arising from accidents and occupational diseases. All such policies shall name Buyer, its subsidiaries, affiliates, successors, and assigns, and any other parties at interest, as additional insureds. The insurance protecting Buyer shall be primary and non-contributory with any insurance carried by Buyer or any other additional insured, and shall be placed with financially secure insurance companies authorized to do business in the State of New Jersey, and otherwise satisfactory to Buyer. Insurance companies with a Best’s rating lower than B++ shall be deemed unsatisfactory to Buyer. Certificates evidencing such insurance shall be delivered to Buyer promptly following the date of this Order (and prior to the delivery of Goods hereunder), and shall provide for at least 30 days written notice to Buyer prior to any cancellation, the certificates shall have the following wording typed on them: Buyer and its respective subsidiaries and affiliates and successors and assigns are named as additional insureds as their interests may appear. This insurance protecting the insured and the additional insureds is primary and non-contributory with any other insurance carried by the insured or any of the additional insureds. Seller shall deliver renewal certificates at least 10 days prior to expiration. No requisition shall be honored for payment unless current and valid Certificate of Insurance is on file with the purchasing office.
13. BUYER’S PROPERTY: All specifications, drawings, blueprints, samples, models, labels, logo styles, artwork, mechanicals, film, printing plates; and other information or papers (together with all copies of reprints thereof) and all tools, dies, patterns. molds, gauges, jigs, fixtures, materials and the like, if any, paid for or furnished by Buyer shall be treated by Seller as confidential, shall not be disclosed, shall remain and shall be properly identified as Buyer’s exclusive property, shall be used exclusively in the production of the Goods ordered hereunder, and shall be returned to or disposed of as directed by Buyer.
14. TAXES: Except as otherwise provided in this Order or prohibited by statute, Seller shall pay any Federal, state or local sales, use or other excise tax which may be imposed upon the Goods ordered hereunder or by reason of their sale or delivery. Any sale or use taxes required by statute to be paid by Buyer shall be separately listed on Seller’s invoice.
15. CANCELLATION: Without limiting any other rights of Buyer hereunder, Buyer may cancel this Order in whole or in part at any time by written notice if any one or more of the following events shall occur: (a) any default in performance on the part of Seller, including, without limitation, a breach of any express or implied warranty with respect to any Goods; (b) in Buyer’s opinion there has been a failure on the part of Seller to make progress in the work so as to endanger performance; (c) Seller shall cease to conduct its operations in the normal course of business; or (d) Seller shall become insolvent or make or attempt to make an assignment for the benefit of creditors, or proceedings shall be commenced by or against Seller under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debit, dissolution or liquidation law, or a trustee, receiver, liquidator or conservator for Seller shall be applied for or appointed. If Buyer terminates the Order for any reason, Seller’s sole and exclusive remedy is payment for the Goods received and accepted by Buyer prior to the termination.
16. ASSIGNMENT: Seller shall not assign any of its rights or obligations under this Order without Buyer’s prior written consent. Any attempted assignment in violation of the foregoing shall be void.
17. REMEDIES: Buyer’s remedies set forth in this Order shall be cumulative, and shall be in addition to, and not in substitution or derogation of any further remedies provided under applicable law.
18. MODIFICATIONS: This Order contains all of the terms of this transaction, and no modification of or addition to any of them shall be binding upon Buyer unless made in writing and signed by a duly authorized representative of Buyer. The furnishing by Seller of any Goods specified in this Order shall, if such Goods are accepted by Buyer, constitute an unqualified acceptance by Seller of all terms hereof unless otherwise modified in writing and signed by a duly authorized representative of Buyer. No provision in addition to or at variance with any provision hereof contained in any order, acknowledgment form, notice, receipt, invoice or shipping order or other document from Seller (notwithstanding that the same is receipted for or executed on behalf of Buyer) shall be binding on Buyer in the absence of any express written acceptance thereof other than on such document signed by a duly authorized representative of Buyer. All terms, conditions and provisions of this Order (including, but not limited to, warranties of Seller) shall survive delivery, acceptance and any payment hereunder, and no waiver by Buyer of any default hereunder shall be valid or binding unless in writing signed by a duly authorized representative of Buyer or shall constitute a waiver of any other default.
19. EQUAL EMPLOYMENT: The nondiscrimination clauses contained in Section 202, Executive Order 11246, as amended by Executive Order 11375, relating to equal employment opportunity for all persons without regard to race, color, religion, sex, or national origin and the implementing rules and regulations prescribed by the Secretary of Labor (41 CFR Chapter 60) are incorporated herein.
20. CERTIFICATION OF NONSEGREGATED FACILITIES: Seller certifies that it does not maintain or provide for its employees any segregated facilities at any of its establishments, and does not permit its employees to perform their services at any location, under its control, where segregated facilities are maintained. Seller certifies further that it will not maintain or provide for its employees any segregated facilities at any of its establishments, and that it will not permit any employees to perform their services at any location, under its control, where segregated facilities are maintained. Seller agrees that a breach of this certification is a violation of the equal employment opportunity clause herein. As used in this Order, the term “segregated facilities” means any waiting rooms, work areas, rest rooms and wash rooms, restaurants and other eating areas, time clocks, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees which are segregated by explicit directive or are in fact segregated on the basis of race, color, religion, or national origin because of habit, local custom, or otherwise. Seller further agrees that it will obtain a certification of nonsegregated facility from any subcontractors (and maintain such certification in its files); and that it will forward the following notice to all proposed subcontractors:
NOTICE OF PROSPECTIVE SUBCONTRACTORS OF REQUIREMENT FOR CERTIFICATIONS OF NONSEGREGATED FACILITIES: A certification of Nonsegregated Facilities as required by the May 9, 1967, order (32 F.R. 743, May I9, 1967) on Elimination of Segregated Facilities, by the Secretary of Labor, must be submitted prior to the award of a subcontractor exceeding $10,000 which is not exempt from the provisions of the Equal Opportunity clause. The certification may be submitted either for each subcontractor or for all subcontracts during a period (i.e., quarterly, semiannually, or annually). NOTE: The penalty for making false statements in offers is prescribed in 18 U.S.C. 1001.
21. OSHA Notice: The contractor or subcontractor is hereby notified that all work, and materials pertaining to this work, must be in accordance with the current Section 1910 of O.S.H.A. or any other such standards which may apply.
22. CONFIDENTIAL INFORMATION: All non-public, confidential or proprietary information of Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the Order is confidential, solely for the use of performing the Order and may not be disclosed or copied unless authorized by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to Seller at the time of disclosure; or (c) rightfully obtained by Seller on a non-confidential basis from a third party.
23. RELATIONSHIP OF THE PARTIES: The relationship between the parties is that of independent contractors. Nothing contained in the Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Order.
24. GOVERNING LAW: All matters arising out of or relating to this Order shall be governed by and construed in accordance with the internal laws of the State of New Jersey without giving effect to any choice or conflict of law provision or rule (whether of the State of New Jersey or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New Jersey.
25. SUBMISSION TO JURISDICTION: Any legal suit, action or proceeding arising out of or relating to this Order shall be instituted in the federal courts of the United States of America or the courts of the State of New Jersey in each case located in the State of New Jersey, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
26. NOTICES: All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on any Accompanying Document(s) 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). Except as otherwise provided in this Order, a 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.
27. SEVERABILITY: If any term or provision of this Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
28. SURVIVAL: Provisions of this Order which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order including, but not limited to, Sections 8 – 28 of this Order.
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