Terms and conditions of purchase
These Terms and Conditions of Purchase ("Terms and Conditions") apply to any and all purchasing activities by NATIONAL FOOD GROUP, INC., a Michigan corporation and its related companies, agents and/or representatives (collectively, the "Purchaser") and to any and all services performed and/or Goods sold or provided by Seller to Purchaser.
Any terms or conditions of Seller which are contradictory or supplementary to, or which deviate from these Terms and Conditions, or any objection, agreement or other attempt by Seller purporting to add to or modify these Terms and Conditions, shall not apply or be binding upon Purchaser unless expressly approved in writing by Purchaser. To the extent Seller's Quotations, Invoices or any other documents or materials or any accompanying terms and conditions have additional or conflicting terms, these Terms and Conditions shall control and supersede the Seller's conflicting terms and conditions, and all such Seller's terms and conditions are hereby rejected and are expressly objected to by Purchaser without further notification. Under no circumstances is the performance of services for Purchaser or sale or provision of Goods to Purchaser, or the receipt of payment from Purchaser, shall be construed as acceptance of the Seller's terms or conditions. Any reference to the Purchaser's Terms and Conditions of Purchase shall be construed to be the reference to these Terms and Conditions.
In addition to the terms defined elsewhere in these Terms and Conditions, the following terms shall have the following meanings:
Any Purchase Order received by Seller from Purchaser is an offer to purchase the Goods and/or services identified in the Purchase Order, and is subject to Seller's acceptance. The Purchase Order is not binding on Purchaser until accepted by Seller. Any Purchase Order will become void at 11:59 P.M. Eastern Time, ten (10) days after the date the Purchase Order was issued by Purchaser, unless accepted by the Seller as provided herein. The Seller may accept the Purchase Order by (a) issuing a written, signed acknowledgment of its acceptance of the Purchase Order, (b) by commencing performance under the terms of the Agreement, or (c) by delivery of the Goods or providing any of the services specified in the Purchase Order. All Purchase Orders are subject to and shall be governed exclusively by these Terms and Conditions. SELLER SPECIFICALLY WAIVES ANY REQUIREMENT FOR SIGNED ACCEPTANCE OF THE PURCHASE ORDER, AND SELLER AND PURCHASER EACH WAIVE ANY DEFENSE TO THE VALIDITY AND ENFORCEABILITY OF THE PURCHASE ORDER ARISING FROM THE ELECTRONIC SUBMISSION OF THE PURCHASE ORDER TO SELLER AND SELLER'S ACCEPTANCE OF THE ORDER IN ACCORDANCE WITH THIS SECTION 4.
The prices stated in the Purchase Order are firm and are not subject to adjustment for changes in volume, availability, changes in the Seller's cost of Goods or services, or for any other reason, unless (a) approved in writing by Purchaser, (b) a clause specifically incorporated in the Purchase Order (with Purchaser's written consent) expressly provides that the prices will be adjusted on a particular basis, and then only to the extent specified in that clause, or (c) a document specifically incorporated in the Purchase Order (with Purchaser's written consent) expressly provides that the prices will be adjusted on a particular basis, and then only to the extent specified in that document. The Goods purchased hereunder are for resale or for an exempt purpose and may be exempt from state and local sales or use taxes. Purchaser will provide an appropriate Certificate of Exemption upon Seller's written request. Unless specifically referenced in the Purchase Order, prices do not include sales, use, excise, privilege or other taxes, shipping, packing or transportation costs or any insurance charges. Seller shall be responsible for all costs and expenses incurred in selling and/or providing the Goods and performing the services for Purchaser.
Purchaser may, at any time, make changes to the Order, and Seller shall accommodate such request, provided Purchaser shall pay any additional reasonable costs of Seller by reason of any change. Any claim by Seller for a change pursuant to this Section as a result of the Purchaser's change must be asserted in writing within ten (10) days from date of receipt by Seller of Purchaser's notification of any change. Purchaser will have the right to verify all claims hereunder by auditing relevant records of Seller. If Purchaser does not agree to pay such additional charges, the Purchaser may, as its option, proceed with the Purchase Order in the form previously provided to the Seller or cancel the Purchase Order without further liability to the Seller, and shall notify the Seller accordingly. If Purchaser agrees to additional charges as provided in this Section, Seller agrees to proceed with the Purchase Order as changed under this Section 7.
Seller will pack and mark Goods and make shipments in accordance with Purchaser's instructions and consistent with industry standards as may be applicable to particular Goods, and assure delivery of Goods free of any damage and deterioration. Unless instructed otherwise by the Purchaser, all Goods shall be shipped and delivered in sealed containers, properly labeled and palletized. Where a shipping company is chosen by the Seller, the shipping company shall be responsible for pallet exchange. Purchaser may specify the carrier and/or method of transportation, and Seller will process shipping documents and route shipments of the Goods accordingly. Seller will comply with all of Purchaser's transportation routing instructions, including, but not limited to, mode of transportation, packing, utilization of assigned carrier and identification of the shipping point, and delivery directly to Purchaser's customer. Seller will be responsible for all excess costs incurred because of its failure to comply with Purchaser's transportation instructions or delivery requirements/schedules.
With respect to all services performed and/or Goods sold and/or provided by Seller to Purchaser, the Seller acts and shall be at all times an independent contractor of Purchaser, and nothing contained in these Terms and Conditions or otherwise shall be construed to create any joint venture, partnership, agency, employment, or other association between the parties other than that of independent contractor.
Except where Purchaser requests in writing that the Seller engage specific third parties in connection with the Seller's performance hereunder, the Seller shall use reasonable care in its selection of third parties, or in selecting the means or methods of performing services and/or providing Goods to Purchaser. Any advice by the Purchaser that a particular third party has been or should be selected to render services shall not be construed to mean that the Purchaser warrants or represents that such a third party will render such services nor does Purchaser assume any responsibility or liability for any acts and/or omissions of such third parties and/or its agents. Seller agrees to assert and bring any and all claims in connection with the acts or omissions of a third party solely against such third party and/or its agents; except where a conflict of interest or business conflict exists, upon Seller's request, the Purchaser shall reasonably cooperate with Seller in connection with any such claim, and Seller shall pay or reimburse Purchaser for its actual charges or costs incurred in connection with such cooperation.
PURCHASER SHALL NOT HAVE ANY LIABILITY TO THE SELLER OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, STATUTORY, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO LOSS OF PROFIT, LOSS OF INCOME OR REVENUE, LOSS OF GOODWILL, EVEN IF IT HAS BEEN PUT ON NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING OR EXPANDING THE PROVISIONS OF ANY OF THE SECTIONS OF THESE TERMS AND CONDITIONS, IN NO EVENT SHALL PURCHASER'S LIABILITY FOR MONETARY DAMAGES EXCEED THE COST OF THE GOODS OR SERVICES WITH RESPECT TO WHICH SUCH LIABILITY AROSE.
Seller acknowledges and agrees that the provisions of these Terms and Conditions that limit liability, or exclude consequential damages or other damages or remedies are essential terms of and are fundamental to the parties' understanding regarding allocation of risk. Accordingly, such provisions shall be severable and independent of any other provisions of these Terms and Conditions and shall be enforced to the fullest extent permitted by law. Without limiting the generality of the foregoing, THE SELLER AGREES THAT ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES OR REMEDIES SHALL REMAIN FULLY VALID, EFFECTIVE AND ENFORCEABLE IN ACCORDANCE WITH THEIR RESPECTIVE TERMS, EVEN UNDER CIRCUMSTANCES THAT CAUSE ANY EXCLUSIVE REMEDY TO FAIL OF ITS ESSENTIAL PURPOSE. The limitations contained in this Section apply regardless of the form of action, including actions in contract, tort (including negligence), and strict liability.
Seller shall be responsible for handling and shall in good faith using its best efforts handle any voluntary or government-mandated recall applicable to any Goods sold and/or provided by Seller to Purchaser hereunder (a "Recall") and shall be responsible and liable for any and all costs and damages resulting from the Recall, whether imposed or required to be handled or paid by, as an example and without limitation, Seller, Purchaser, and/or any customer of the Purchaser. The party with knowledge of the Recall will (a) timely notify the other party after it learns that a Recall implicates the Goods, (b) provide the other party with reasonably available data relating to the Recall, (c) provide the other party a reasonable opportunity to participate in inquiries and discussions among Seller, Purchaser, Purchaser's customer and/or governmental agencies regarding the need for and scope of the Recall, and (d) consult with the other party about the most cost-effective method of remedying the alleged defect or non-compliance. Notwithstanding the foregoing, Purchaser's failure to comply with any of the foregoing items (a) – (d) shall not be considered a breach of this Agreement and shall not affect Seller's responsibility or liability for costs and damages resulting from any Recall.
Seller shall indemnify, defend and hold the Purchaser and its affiliated business entities and their respective employees, officers, directors, agents and representatives harmless from any and all claims, actions, liabilities, losses, expenses, penalties, fines, damages and costs including, without limitation, reasonable attorneys' fees, which the Purchaser may at any time incur, suffer or be required to pay that arise from or are in connection with any of the following: (a) any non-performance or breach by Seller of any provisions of any Purchase Order, Terms and Conditions or the Agreement, including without limitation, any breach of Seller's Warranties, (b) any negligence, acts or omissions of Seller and/or those under its direction or control, (c) any acts or omissions of third parties engaged by Seller, (d) any unauthorized use or disclosure of Confidential Information by any person or entity to whom the Seller discloses Confidential Information, (e) any Recall of any of the Goods sold and/or provided by Seller hereunder and (f) any Goods and/or services sold, provided and/or performed by Seller hereunder.
The Agreement or any Purchase Order may not be assigned or delegated, in whole or in part, without Purchaser's prior written consent, including, but not limited to, the subcontracting of work to be performed by the Seller, which consent may be withheld by Purchaser in its sole and absolute discretion, and any attempted assignment or delegation in violation of this Section 20 will be void and of no legal effect. In the event Purchaser consents to any assignment or delegation by the Seller, Seller shall be and remain responsible for timely performance of any and all obligations under the Purchase Order and the Agreement.
In providing and/or selling Goods or performing services hereunder, Seller and its allowed subcontractors will comply with any and all applicable federal, state, and local laws, regulations, executive orders and other rules of law as in effect at any time during the term and/or Seller's performance of the Agreement.
Purchaser's remedies stated herein are cumulative and are not exclusive of any other remedies available at law or equity.
These Terms and Conditions may only be modified, altered or amended in writing signed by both Purchaser and Seller, and any attempt by Seller to unilaterally modify, alter or amend same shall be null and void.
Where appropriate, words that reflect the masculine, feminine, or neuter gender shall be construed to also reflect the other genders; and words that reflect either the singular or plural shall also be construed to reflect the other.
The Section headings contained in these Terms and Conditions are for reference purposes only and shall not in any way affect the meaning or interpretation of these Terms and Conditions.
Any Agreement entered into by Purchaser and Seller may be executed in multiple counterparts, each of which shall constitute an original agreement, but all of which shall constitute only one agreement. The signatures need not all be on a single copy of any Agreement between the parties, and may be facsimiles rather than originals, and shall be fully as effective as though all signatures were originals on the same copy.
Any provision of the Agreement which is determined to be invalid or unenforceable shall not affect the remainder of the Agreement, which shall remain in full force and effect.
No waiver by Purchaser of any provision of the Agreement shall be effective unless it is written and signed by Purchaser. The Purchaser's decision to waive any provision herein or to waive any breach by Seller of any provision herein, either by conduct of otherwise, shall not constitute or be deemed to be a further or continuing waiver of such provision or a waiver of any preceding or succeeding breach of the same provision or to otherwise waive or invalidate any other provision herein.
The parties do not intend to confer any benefits under this Agreement on any person, firm or corporation other than the Purchaser and Seller.
Except as otherwise provided in these Terms and Conditions, all claims against Purchaser must be made in writing and received by Purchaser, within sixty (60) days of the event giving rise to claim; the failure to give Purchaser such timely notice shall be a complete defense to any suit or action commenced by Seller with respect to such claim. All suits against Purchaser must be filed and properly served on the Purchaser within one (1) year of (a) the delivery of the Goods (or the applicable portion of the Goods) or (b) the completion of the services, and thereafter shall be forever barred.
The Agreement, these Terms and Conditions and the relationship between the parties shall be governed by the law of the State of Michigan, USA without giving effect to any choice or conflict of law provision or rule (whether of the State of Michigan or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Michigan. The parties agree that State of Michigan shall be the exclusive jurisdiction for all disputes. The Oakland County Circuit Court or the Federal District Court for the Eastern District of Michigan is a convenient venue for both parties.
Any notice to Seller or Purchaser shall be in writing, and shall be deemed sufficient if personally delivered, sent to the party's last known mailing address, and/or to such other address as to which proper notice has been given, by commercially reputable courier service provided receipt is confirmed, or via facsimile or e-mail provided in either case that proper notice of the facsimile number(s) and e-mail address(es) has been given pursuant to this Section, and receipt is confirmed. Notice shall be deemed to have been given when personally delivered, one (1) business days after being delivered by commercially reputable courier service, one (1) business day after acknowledgment of receipt via facsimile transmission, or one (1) business day after having been sent by e-mail.
Seller acknowledges that a breach of its obligations under Section 9 or 20 of these Terms and Conditions would cause irreparable damage to Purchaser, including without limitation potential damage to Purchaser's relationships with its customers, lenders, and prospective future customers, the exact amount of which would be difficult to ascertain, and that the remedies at law and monetary damages for any such breach would be inadequate. Accordingly, in the event of any action taken or threatened by Seller hereunder that, if taken, would constitute a breach of its obligations under Section 9 or 20 of these Terms and Conditions, Purchaser and it successors and assigns are entitled to injunctive or other equitable relief and/or a decree for specific performance, without the posting of any bond or other security, in addition to any other remedies it may have for damages or otherwise. Seller may not take any action or position inconsistent with this acknowledgement, and Purchaser will be entitled to recover its attorney fees and costs in connection with the enforcement of this Section 34.
A party who substantially prevails in any litigation or arbitration under the Agreement shall be entitled to recover its costs, including but not limited to reasonable attorney fees, expert witness fees and other fees and costs.
The provisions of these Terms and Conditions intended by their terms to survive termination, cancellation or expiration of the Agreement and any Purchase Order will survive any termination, cancellation or expiration of the Agreement or Purchase Order in whole or in part for any reason, including without limitation Sections 2 – 6, 8 – 17, and 19 – 36.