Purchase Order Terms and Conditions
For Purchase of Goods by Honeyville, Inc.
These Purchase Order Terms and Conditions (the “Terms”) shall govern all purchases by Honeyville, Inc. (“Honeyville”) from the supplier or manufacturer signing below (“Supplier”). “Goods” means the edible or non-edible goods, packaging materials, or other products specified in the applicable purchase order or similar order document between Supplier and Honeyville (each an “Order”). These Terms become binding upon both Honeyville and Supplier when the associated Order is accepted by the receiving party.
If Honeyville and Supplier have entered into a separate written agreement that governs the purchase and sale of Goods between them (a “Supply Agreement”), then the terms of such Supply Agreement shall supersede and replace these Terms. Any written (but not preprinted) terms in the Order will have priority over these Terms if there is a conflict. Preprinted terms in an Order or other document issued by Supplier are expressly agreed to be of no force or effect, and are entirely superseded and replaced by these Terms. These Terms may not otherwise be modified or amended except by a written document signed by authorized representatives of both parties.
- Pricing. The price for the Goods shall be as set forth in the associated Order. Such price is firm unless otherwise specified in the Order. The price for the Goods shall include any applicable taxes or duties, specified in a separate line item on each invoice. Supplier will not charge or collect or any such taxes if the transaction is tax-exempt and Honeyville has provided Supplier with a tax exemption certificate on request.
- Billing and Payment. Unless otherwise specified in the Order, Supplier will invoice Honeyville on a per-shipment basis for the amounts due under the Order, and Honeyville will pay Supplier all undisputed amounts within thirty (30) days after the date of the applicable invoice. All claims for money due from Honeyville shall be subject to deduction by Honeyville for any setoff or counterclaim arising out any orders or agreements between Supplier and Honeyville. If an invoice is reasonably disputed by Honeyville, Supplier will continue to fulfill any other outstanding Orders.
- Shipping and Delivery. Deliveries of Goods will be made per the schedule and terms specified in the applicable Order or otherwise as mutually agreed by the parties; if not otherwise agreed, shipping terms will be DAP (Delivered at Place, Incoterms) Honeyville’s facility. Supplier will reimburse Honeyville for all expenses and damages incurred by Honeyville as a result of Supplier’s improper packing or labeling of Goods and, unless Honeyville was responsible for shipping arrangements, for any costs or damages resulting from the improper transport or delivery of Goods and for making any insurance claims. The Goods shall be delivered no later than the date(s) set forth in the Order. Time is of the essence with respect to timely delivery of Goods. Honeyville reserves the right to refuse to accept partial deliveries. Any increases in freight rates will be at Supplier’s expense. All Goods must be packaged and shipped in the manner specified or agreed to by Honeyville. If Honeyville does not specify the manner in which the Goods must be packaged, Supplier shall reasonably package the Goods so as to avoid any damage, adulteration or deterioration in transit, and in compliance with any applicable laws or regulations. In the event of a Supplier capacity shortage with respect to any Goods, Supplier will promptly inform Honeyville of the reasons for and the anticipated duration of the capacity shortage, and will treat Honeyville’s Orders with the same priority as other major customers’ orders for such Goods.
- Inspection of Goods. Honeyville may inspect Goods at any time after delivery for quality and defects. Regardless of any prior payment, Honeyville may reject any Goods that do not conform to these Terms or the applicable Order. Any rejected Goods shall remain the property of Supplier and shall be Supplier’s responsibility for disposal; however, that if any Goods include identifying information of Honeyville or its customer, then Supplier shall dispose of such rejected Goods as directed by Honeyville. Honeyville may return rejected Goods to Supplier at Supplier’s sole expense, for refund, credit or replacement at Honeyville’s option.
- Order Cancellation or Delay by Honeyville. Honeyville may delay or cancel an Order, with or without cause, at any time prior to Supplier’s shipment of the Goods. If Honeyville cancels an Order without cause, Supplier will inform Honeyville, as soon as is reasonably practicable, of (i) Supplier’s current inventory of finished Goods, work in process and raw components, and Supplier’s cost for such materials, and (ii) the amount of other costs and expenses incurred by Supplier in relation to the cancelled Order, and Supplier will invoice Honeyville for such costs and expenses. Any Goods, materials and ingredients that Honeyville does not wish to have shipped to it will be disposed of as reasonably directed by Honeyville.
- Warranties. Supplier represents and warrants to Honeyville that:
- All Goods (i) will strictly comply with applicable FDA and other federal and state standards and requirements, including with respect to any adulteration or misbranding; (ii) in the case of edible Goods, will be fit for human consumption; (iii) will be free from any defects in workmanship and materials; and (iv) will be merchantable and fit for their intended purposes.
- Supplier has title to the Goods, and ownership of all Goods will be transferred to Honeyville free and clear of any liens, encumbrances or third party claims, subject to Honeyville’s acceptance of and payment for such Goods.
- The Goods will be produced in compliance with all applicable labor and employment laws and regulations, including with respect to child labor, forced labor and non-discrimination.
- Recall. If a recall involving any Goods is initiated or directed by Honeyville, its customer, or Supplier, Supplier agrees to fully cooperate and take all such steps as are reasonably requested to fully implement the recall in a timely manner. All actions taken in connection with a recall shall be in accordance with federal and state laws and regulations. Supplier shall be responsible for the costs associated with any recall that results from Goods not meeting any specifications or warranties set forth in the Order or these Terms.
- Indemnification. Supplier agrees to indemnify, defend and hold harmless Purchaser, its customers, and their respective officers, directors, employees, representatives, and employees (the “Indemnified Parties”) from and against all claims, demands, expenses, damages (direct and consequential), losses, debts, liabilities, penalties, fines, costs and fees (including reasonable attorneys’ fees) (collectively, “Losses”) suffered or incurred by any person or entity arising out of or related to (a) the fault, misconduct or negligence of Supplier, its employees, representatives, agents or other persons under its control; (b) the breach by Supplier of any of its warranties or obligations hereunder; or (c) any defect in a Good supplied by Supplier. Honeyville shall promptly notify Supplier of any such claim and, where the parties agree Supplier is fully liable for the Loss, Supplier shall have control, at its cost, of any negotiation, arbitration or litigation concerning such Loss, except that Supplier shall not enter into any settlement agreements without Honeyville’s prior written consent. Honeyville shall provide, at Supplier’s cost, all available information and other reasonable support to Supplier in respect of its investigation or defense of any such claim or suit.
- Limitation of Liability. IN NO EVENT WILL HONEYVILLE BE LIABLE FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, LOST PROFITS, OR LOSS OF VALUE ARISING OUT OF THESE TERMS OR THE ORDER, INCLUDING THE USE OR INABILITY TO USE THE GOODS, EVEN IF HONEYVILLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL HONEYVILLE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND THE RELATED ORDER(S) EXCEED THE TOTAL AMOUNT ACTUALLY PAID OR PAYABLE BY HONEYVILLE TO SUPPLIER FOR THE APPLICABLE GOODS.
- Termination. A party may terminate these Terms and any Orders upon written notice: (a) in the event of a material breach by the other party of any representation, warranty or obligation, subject to ten (10) days’ prior written notice and opportunity to cure the breach, if such breach is curable; or (b) immediately upon written notice if the other party (i) files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; or (ii) makes or seeks to make a general assignment for the benefit of its creditors. Nothing contained herein shall be construed to limit Honeyville’s remedies, and Honeyville may pursue any other remedy available to it under the Uniform Commercial Code or other applicable law. Sections 6, 7, 8, 9, 11, 12, 14, 15, 16 and 17 shall survive termination or fulfillment of these Terms and/or any Order.
- Confidentiality. Each party agrees to keep confidential all non-public information provided by the other party (“Confidential Information”), including pricing, formulas and specifications for Goods, trade secrets, and other information identified as confidential or proprietary. The receiving party shall not use Confidential Information for any purpose other than the authorized purposes of these Terms. The receiving party may disclose Confidential Information only to its employees and third parties who need to know such information, and who are bound to keep such information confidential. The receiving party may also disclose Confidential Information to the extent required by law. Upon request or termination of the parties’ relationship, the receiving party shall return all Confidential Information, except for reasonably required archival copies.
- Inspection of Facilities and Audit. Honeyville may inspect Supplier’s manufacturing facilities and audit the relevant records of Supplier at any time during the term of the parties’ business relationship and for a period of one (1) year thereafter, upon reasonable prior notice, to confirm Supplier’s compliance with these Terms and with applicable laws, regulations and quality and safety standards and requirements.
- Force Majeure. Neither party to these Terms shall be liable for any failure to perform its obligations under these Terms if such failure results from any act of God, riot, war, civil unrest, strikes, flood, earthquake, epidemic, or other cause beyond such party’s reasonable control, but excluding failures caused by a party’s financial condition or by any negligent or purposeful act of the party, its employees or agents. The party suffering the delay shall promptly notify the other of the delay and use commercially reasonable efforts to perform its delayed obligation(s) as soon as is reasonably feasible. If a force majeure event causes or may be reasonably expected to cause a delay in the delivery for any Goods, Honeyville may terminate the affected Order(s) without penalty.
- Ownership. Honeyville (or, if applicable, its customer) will retain sole ownership of any text, designs, formulas or specifications provided by it.
- Entire Agreement; Amendment; Waiver. These Terms and the applicable Order(s), which are hereby incorporated herein by reference, constitute the entire agreement between the parties with respect to their subject matter. All prior or contemporaneous agreements, representations, negotiations and understandings of the parties hereto, oral or written, express or implied, are hereby superseded and merged herein. Order provisions which conflict with these Terms are not valid and are hereby not accepted by Honeyville. No modifications of these Terms shall be binding unless agreed to in writing and signed by both Supplier and Honeyville, except as may otherwise be provided in these Terms. The waiver by either party of any default or breach of these Terms, or any obligation hereunder, shall be ineffective unless in writing. No failure to exercise any right or power under these Terms or to insist on strict compliance by the other party shall constitute a waiver of the right subsequently to exercise such right or power or to insist on strict compliance.
- Governing Law. Utah law shall govern these Terms, excluding conflicts of laws provisions. The parties consent to the exclusive jurisdiction of Utah (state or federal) courts over any legal action related to these Terms. In the event of a dispute relating to these Terms, the prevailing party shall be entitled to an award of its reasonable costs and attorneys’ fees from the other party.
- Severability. If any provision of these Terms is held invalid or unenforceable by a court of competent jurisdiction, such provision shall be reduced or otherwise modified by such court to the minimum extent necessary to make it valid and enforceable. If it cannot be so modified, it shall be severed and the remaining Terms shall continue in full force and effect.
- Assignment; Binding Effect. Supplier may not assign these Terms or any of its rights, or delegate any of its obligations, without the prior written consent of Honeyville. Any purported assignment or delegation in violation of this section is null and void. These Terms are binding on and inures to the benefit of the parties and their respective permitted successors and permitted assigns.
- Insurance. Supplier shall maintain, and cause its subcontractors to maintain at their expense, the following insurance coverage with generally acceptable insurers: (i) a comprehensive general liability insurance policy, including product liability coverage and contractual liability coverage insuring against the liabilities assumed under these Terms, in minimum amounts of $1,000,000.00 per occurrence and $2,000,000.00 general aggregate; and (ii) statutory workers’ compensation coverage. Such insurance shall include contractual liability coverage, be occurrence-based, name Honeyville as additional insured, and include a provision that waives the insurer’s subrogation rights against Honeyville, and provide that a 30-day prior written notice of cancellation, nonrenewal or material policy change will be given to Honeyville. Upon request, Supplier shall provide a certificate of insurance to Honeyville evidencing this coverage.
- Notices. All legal notices between the parties shall be in writing and shall be sent by certified or registered mail, with provisions for a receipt, or commercial overnight delivery service. Non-legal written notices in the ordinary course of business (e.g., regarding Order confirmations or shipping availability dates) may also be sent by email or other electronic message, or by first class mail, to the appropriate personnel of the other party.
Rev. 2021-04-13 TWJ