These Southwind Foods, LLC (dba Great American Seafood Imports Company) ("Southwind") Purchase Order Terms and Conditions apply to all orders of goods, merchandise and incidental services ("Products") by Southwind from Vendor. Southwind reserves the right to cancel a Southwind Purchase Order without penalty by notice to Vendor on or before the given cancellation date and at any time if the completion or delivery date is not met or if prior to such date, Southwind had reason to demand adequate assurance of due performance and such assurance is not forthcoming within ten (10) days after the date of Southwind's demand. If a delivery date or completion date is not specified on the Southwind Purchase Order a reasonable time will be allowed. Southwind may cancel the unreceived portion of a Southwind Purchase Order at any time if delivery of the Products is not timely. If Vendor can fulfill its delivery obligation only by shipping by premium routing, the premium charges will be prepaid by Vendor. If no cancellation date appears on the front of the Southwind Purchase Order, the cancellation date will be a reasonable period of time prior to the shipment of the Products. If Vendor ships the Products before the "ship on" date, after the cancellation date, or after actual cancellation, Southwind may, in the exercise of its sole discretion, refuse the shipment. Any and all loads created at Vendor's dock must be segregated by individual Southwind Purchase Order.
Southwind will have no obligation to accept or pay for any unordered Products or Products shipped that do not conform to, or comply with, the terms and conditions of the Southwind Purchase Order or the terms and conditions of any agreement to which these Southwind Purchase Order Terms and Conditions are attached, including shipping and routing instructions and dates of shipment and delivery. If Southwind takes delivery of such nonconforming order, or any part of such an order, Southwind reserves the right to deduct from its payment all actual or reasonable expenses, including but not limited to transportation, inspection, receipt, ticketing, re-ticketing, recall, care and custody of the Products, and notice to Vendor incurred as a result of such non-conformity or non-compliance. If Southwind takes delivery of any unordered or non-complying Products, Southwind may, without notice to Vendor of such fact, ship the unordered or non- complying Products to Vendor at Vendor's cost and expense. Southwind will have no obligation to accept or to pay for any substituted goods or excess shipment of any Products made without Southwind's prior written approval. Vendor will not backorder any Products subject to the Southwind Purchase Order without Southwind's prior written consent. Vendor must pay all shipping costs associated with a backorder. All backorders should receive the best of pricing and terms at either the time of original order or at the time of actual shipment. All terms and conditions of the Southwind Purchase Order apply to any Products on backorder.
Southwind will have the right to inspect the Products and reject any nonconforming Products within sixty (60) days of delivery. This right of inspection, whether exercised or not, will not affect Southwind's right to revoke acceptance or pursue other remedies if defects or nonconformities are discovered at a later date, notwithstanding that any defect or nonconformity could have been discovered upon inspection. Payment by Southwind will not be construed as an acceptance of Products, or as a waiver or limitation of any of Southwind's rights as set forth herein. In no event will Vendor sell or distribute to third parties any Products that contain logos, trade names, trademarks or labels of Southwind, even if rejected by Southwind as nonconforming.
By acceptance of the Southwind Purchase Order, Vendor makes the following representations, warranties and guarantees:
- The Products shipped, as of the date of shipment, comply with, and are not adulterated or misbranded within the meaning of, the Federal Food, Drug and Cosmetic Act, as amended, ("FDCA"), including, without limitation, the Food Additives Amendment and any other amendment thereto, and comply with, and are not adulterated or misbranded within the meaning of, any state food and drug law, including but not limited to California Proposition 65; are not articles that may not, pursuant to Sections 404 or 505 of the FDCA, the Federal Hazardous Substances Act ("FHSA"), or otherwise, be introduced into interstate commerce; if meat and poultry products comply with the Federal Meat Inspection Act and the Poultry Products Inspection Act; and comply with all other applicable federal, state and local laws, rules and regulations.
- Each shipment or other delivery of Products is not misbranded or mislabeled under the FHSA or any other law or regulation, has been tested and approved by the Underwriters Laboratory, Inc. and the National Sanitation Foundation (if applicable); will, if constituting or containing an economic poison as defined in the Federal Insecticide, Fungicide, and Rodenticide Act, be registered pursuant to said Act and comply with all other provisions of such Act (7 U.S.C.A. 135-135K).
- The Products, including the packaging, advertising, labels and other materials contained on, with, or relating to the Products, do not infringe any patent, copyright, trademark, trade name or other proprietary interest of Southwind or any third party and comply with the Federal Trade Commission Act and all other applicable laws, rules and regulations.
- The price charged, allowances and services furnished, if any, in connection with the sale of Products to Southwind are not discriminatory and were made available on substantially proportionate terms to other customers of Vendor, and that the prices charged for the Products shipped are the lowest commercially reasonable prices available from Vendor.
- The Products and the manufacture, sale, storage, shipping, transportation and billing for the Products, comply with all provisions of applicable law and with all applicable promulgations of governmental authority, both domestic and foreign.
- Vendor is the lawful owner of the Products, has good right to sell same and convey good and merchantable title, and the Products are and will be conveyed free of any and all claims, liens, security interests or other encumbrances.
- The Products are of merchantable quality and of good material and workmanship, are free from contamination or impurity and defects in design and title, and are fit and sufficient for purposes for which goods of that type are ordinarily used, as well as for any purposes Vendor has specified or advertised.
- The representations, warranties and guarantees contained in this Section 4 run to Southwind, its customers, and its and their successors and assigns. Vendor incorporates by reference and passes on to Southwind and its customers and its and their successors and assigns the benefits of all warranties and guarantees given to Vendor by persons from whom Vendor purchased any of the Products. Southwind's approval of specifications, drawings, samples and/or other descriptions furnished by Vendor does not relieve Vendor of its obligations. The representations, warranties and guarantees set forth in this Section 4 are in addition to all other express, implied or statutory warranties, are continuing in nature, survive Southwind's payment, acceptance, inspection or failure to inspect the Products.<'li>
- It will in every manner of its business related to the Southwind Purchase Order obey and conform to all applicable laws, rules and regulations, both domestic and foreign.
Southwind's offer to purchase is expressly subject to Vendor's acceptance of these Southwind Purchase Order Terms and Conditions and any agreement to which these Southwind Purchase Order Terms and Conditions is attached. Vendor's execution of Southwind's Standard Vendor or other Purchase Agreement (or Vendor's shipment of Products in response to a Southwind Purchase Order) constitutes Vendor's acceptance of these Southwind Purchase Order Terms and Conditions and any Agreement to which the Southwind Purchase Order Terms and Conditions is attached, and precludes Vendor's objection to any such terms and conditions and/or Vendor's inclusion of any different or additional items, terms or conditions in any resulting order except as set forth in written amendment referencing these Southwind Purchase Order Terms and signed by both Southwind and Vendor. By accepting a Southwind Purchase Order or by shipping Products in response to a Southwind Purchase Order, Vendor agrees that Southwind is not bound by any other term or condition of Vendor in any written acknowledgment, invoice or otherwise, that is inconsistent with or in addition to the terms and conditions hereof. All sections of the Uniform Commercial Code that expressly or implicitly protect Southwind and are not inconsistent with any term hereunder are hereby incorporated by reference, whether it be construed as an offer or acceptance.
All amounts payable to Vendor will be subject to all claims and defenses of Southwind, whether arising from the Southwind Purchase Order or any other transaction. Southwind has the right to set off and deduct against any such amounts all present and future indebtedness of Vendor to Southwind (which includes all of its affiliates). Vendor will be deemed to have accepted each debit amount or vendor chargeback within ninety (90) days following receipt of notice of same, unless Vendor notifies Southwind's Accounts Payable Department (marked "Correspondence") in writing during such period as to why the deduction should not be made and provides sufficient documentation of the reason(s) given.
Unless otherwise agreed in writing, the contract price includes all federal, state and local taxes, tariffs, import duties, commissions and other charges, except taxes Vendor is required by law to collect from Southwind. Such taxes, if any, will be separately stated in Vendor's invoice and will be paid by Southwind unless an exemption is available. Vendor will obtain and pay for any licenses, permits, or inspections by public bodies required in connection with the manufacture, completion, or delivery of the Products.
TIME IS OF THE ESSENCE. However, Southwind excuses Vendor from nonperformance or delays in delivery caused by acts of God, unforeseeable occurrences or other force majeure events, but Vendor agrees it is not excused by unexpected difficulty or commercial impracticality of any degree. Southwind may cancel the unreceived portion of a Southwind Purchase Order at any time if delivery of the goods is not timely. If Vendor can fulfill its delivery obligation only by shipping by premium routing, the premium charges shall be prepaid by the Vendor or, if not prepaid, then Southwind reserves the right to issue chargebacks relating to the additional freight costs and administrative costs. Southwind reserves the right to reject any shipment of any order of goods from Vendor and shall have no obligation to pay for the rejected shipment in the event that Southwind's business or operations are discontinued in whole or part by reason of fire, flood, earthquake, war, civil disorder or any other act or event beyond Southwind's reasonable control.
Vendor will protect, defend, indemnify and hold harmless Southwind, its subsidiaries and affiliates, and its and their directors, officers, employees, agents, contractors, successors and assigns from and against any and all claims and actions (including those in strict liability), demands, liabilities, losses, costs and expenses (including attorney's fees,) including, without limitation, liabilities arising from any actual or alleged injury to or death of any person, damage to any property, and any other damage or loss, by whomsoever suffered, including Vendor's or Southwind's agents or employees, resulting or claimed to result, directly or indirectly, from 1) the Products, including Southwind's purchase, use, shipment, storage, delivery, sale, offering for sale, or other normal handling of the Products, or 2) Vendor's actual or alleged breach of any of the representations, warranties, guarantees or other terms and conditions contained herein, except if such liability is caused by the sole negligence or willful misconduct of Southwind or its employees. In addition to the foregoing, if any of the Products purchased or any part thereof is alleged or held to constitute infringement, Vendor, at its own expense, will either (i) procure for Southwind, its successors, assigns, and customers the right to continue using such Products, (ii) replace the Products with non-infringing items or (iii) only if options (i) and (ii) are impracticable, refund the purchase price for the Products and pay all related expenses.
Vendor warrants to Southwind that it complies (or prior to the Effective Date will be in full compliance) with all federal, state and local Country of Origin labeling and related requirements, including those required by the U.S. Customs Service, those contained in the Agricultural Marketing Act, as amended by the 2002 Farm Bill, and the implementing regulations (collectively, "Country of Origin Requirements"), and will provide to Southwind all reasonable assistance requested by Southwind and information necessary to enable Southwind to comply with the Country of Origin Requirements as they apply to Vendor's Products. In particular, Vendor will:
- label or include with all Products subject to the Country of Origin Requirements ("covered commodities") that are shipped to Southwind all Country of Origin information that Southwind is required to display or maintain with respect to the covered commodities;
- comply with all record keeping and product segregation standards required by the Country of Origin Requirements and by Southwind; and
- provide to Southwind at least once each year the results of an audit of the program used by Vendor to comply with the Country of Origin Requirements performed by the USDA or other third party reasonably acceptable to Southwind.
Breach of this warranty with respect to the Country of Origin Requirements will trigger the indemnification obligations of the Southwind Purchase Order Terms and Conditions and in any agreement to which they are attached.
Unless otherwise indicated on the Southwind Purchase Order, title and risk of loss with respect to the Products will remain with Vendor until the Products have been delivered to and accepted by Southwind, or an agent or consignee duly designated by Southwind, at the location specified on the front hereof. A packing slip must accompany each shipment. If a shipment is to a consignee or agent of Southwind, a copy of the packing slip must be forwarded concurrently to Southwind. If no packing slip is sent, the count or weight reported by Southwind or its agent or consignee will be final and binding upon Vendor with respect to such shipment.
Any rights or remedies granted to Southwind in any part of the Southwind Purchase Order will not be exclusive of, but will be in addition to, any other rights or remedies that Southwind may have at law or in equity. Vendor may not assign its rights and obligations hereunder without the prior written consent of Southwind, which will be in Southwind's sole discretion. The rights and obligations of the Southwind Purchase Order will inure to the benefit of, and be binding upon the parties hereto and their respective heirs, administrators, executors, personal representatives, successors and permitted assigns. No action, failure of action or delay by either party will constitute a waiver of any of its rights or remedies under the Southwind Purchase Order. Vendor and Southwind are not, and will not be, joint venturers, partners, agents, servants, or employees or fiduciaries of the other, and do not have the power to bind or obligate the other. The waiver of a breach of any provision does not constitute a waiver of a subsequent breach of the same or different provision. The rights and liabilities of the parties under a Southwind Purchase Order are governed in all respects by California law, without reference to or application of its conflicts of law provisions. If Vendor has previously made Southwind an offer with respect to the Products, the Southwind Purchase Order will not operate as an acceptance of Vendor's offer, but rather will be deemed to be a counter-offer. If any of the terms of the Southwind Purchase Order or agreement in which they are incorporated are subsequently or are now illegal, they will be severed without affecting the remaining terms. The section headings are for reference only and will not be considered controlling as to the content and/or interpretation of any section.
Each party hereby waives any and all rights it may have to receive exemplary or punitive damages with respect to any claim it may have against the other party, it being agreed that no party will be entitled to receive money damages in excess of its actual compensatory damages, notwithstanding any contrary provision contained in the Southwind Purchase Order or otherwise.
The parties hereto (a) agree that any legal action or proceeding with respect to this Agreement or any other agreement, document or other instrument executed in connection herewith or therewith, shall be brought in the courts of the State of California located in the county of Los Angeles or in the federal courts of the United States for the Central District of California, (b) expressly agree they are subject to personal jurisdiction in the state of California and hereby irrevocably waive any objections which they either may now or hereafter have to such personal jurisdiction or the venue of any suit, action or proceeding arising out of or relating to this Agreement, or any other agreement, document or other instrument executed in connection herewith or therewith, brought in the courts of the State of California or in the federal courts of the United States for the Central District of California, and (c) further irrevocably waive any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.