Woodland Foods - Over 1,600 specialty dried food ingredients including organic and gluten-free food

Purchase Order Terms & Conditions

PURCHASE ORDER TERMS AND CONDITIONS

These Purchase Order Terms and Conditions (together with the Purchase Order to which these terms and conditions are attached and any referenced specifications and/or requirements mutually agreed to by the parties for the Products (the “Specifications”)) shall set forth the terms and conditions (collectively, the “Agreement”) pursuant to which the Supplier specified on the Purchase Order (“Supplier”) shall provide the Products specified on the Purchase Order (the “Products”) to Woodland Foods, LLC (dba Woodland Gourmet) (“Buyer”). In consideration of the mutual promises contained herein, the parties agree as follows:

 

1. PURCHASE ORDERS; ACCEPTANCE BY SUPPLIER

These Purchase Order Terms and Conditions shall govern Purchase Orders submitted by Buyer to Supplier. If the terms of any acknowledgment, invoice, confirmation or similar document conflict with or are additional to the terms of this Agreement, the terms of this Agreement alone shall apply and shall govern regardless of execution of such document by one or both parties. Supplier shall accept and acknowledge in writing, within twenty-four (24) hours after receipt thereof, all Purchase Orders submitted by Buyer. Supplier must provide Buyer prompt written notice of any anticipated delay relative to the Product delivery date specified in the Purchase Order; provided, the foregoing does not diminish the fact that time is of the essence with respect to delivery.

 

2. PRODUCT AVAILABILITY

2.1 Allocation. Supplier shall use its best efforts to maintain the ability to supply all Products that Buyer orders from Supplier. Supplier agrees that, if any event or reason will affect the supply of Product, Buyer's order(s), subject to normal lead-time requirements, shall be filled according to an allocation plan no less favorable than that provided to any other Supplier customers. Supplier shall provide Buyer with as much notice as possible if it anticipates or has reason to believe that Supplier's output of the Product will not be sufficient to meet all of Buyer's requirements for any period.

2.2 Disaster Recovery and Redundancy. Supplier shall take reasonable action to ensure Products will be available, in suitable quantities and quality, for purchase by Buyer, including, without limitation, the use of multiple sourcing and implementation of a disaster recovery plan in each case consistent with best industry standards.

2.3 Raw Materials. During the term of this Agreement, Supplier shall be responsible (at its sole expense) for obtaining, and shall store at no cost to Buyer, any and all raw materials or other components and capital equipment required for the manufacture of the Products, in reasonable quantities consistent with Buyer’s forecasts and Purchase Orders. Supplier will ensure that all third parties responsible for the manufacture and/or supply of raw materials or components for Products have entered into an agreement with Supplier obligating such third parties to comply with all applicable Specifications, quality standards, and other technical requirements that may be necessary in order for the such third parties to timely deliver conforming Product, or any portion thereof, to Supplier for the benefit of Buyer.

 

3. NO MINIMUM QUANTITIES

Except as may be delineated on the Purchase Order, Buyer is not obligated to purchase any minimum quantities of any Product from Supplier under this Agreement. Nothing herein is intended to restrict Buyer’s ability to manufacture itself and/or purchase from third parties any goods or services that are identical or similar to the Products or any services provided by Supplier.

 

4. CHANGES AND CANCELLATION

4.1 Changes to Purchase Order. Buyer may, at any time prior to delivery of the Products, request to make changes to the Purchase Order. Supplier shall use good faith and commercially reasonable efforts to fulfill any such changes to the Purchase Order made at any time prior to delivery. In the case of cancellation other than pursuant to Section 4.2, if Supplier has neither begun production of the Product for such cancelled Purchase Order nor purchased ingredients or materials specifically on behalf of Buyer to manufacture such Products, then Buyer shall not be required to pay for any costs incurred by Supplier with respect to the Purchase Order so cancelled or to pay any fees or penalties as a result of such cancellation. If Supplier has begun production or purchased noncancelable and unreturnable ingredients or materials specifically on behalf of Buyer to manufacture such Products, then Supplier shall promptly notify Buyer in writing of such fact and the parties shall agree upon a reasonable fee or other resolution associated with such cancellation, which in no event shall exceed the amount set forth in the Purchase Order.

4.2 Cancellation for Default. Buyer may cancel the Purchase Order at any time in the event of any default or failure to comply with the terms and conditions of this Agreement by Supplier. If the Purchase Order is canceled for any default or otherwise for cause, Buyer shall not be liable to Supplier for any amount.

 

5. SHIPPING AND DELIVERY

5.1 Shipping. Supplier shall ship, or cause to be shipped, all Products in the manner in the Purchase Order for delivery no later than the delivery date specified on the Purchase Order, which may include without limitation procedures requested by Buyer for masking the source of the Products (including without limitation removing Supplier-specific characteristics from packaging). All Products shall be packaged in accordance herewith and with the Specifications. Supplier will ship all Products in containers with sealed locks. Supplier’s failure to use a sealed lock on all containers or the damage or loss of a container seal will result in Buyer rejecting the shipment at Supplier’s sole cost and expense. Supplier shall not use wooden packaging without Buyer’s prior written approval. If Buyer permits Supplier to use wooden packaging material, Supplier must satisfy all requirements of Applicable Law, including but not limited to those import requirements set forth by the Animal and Plant Health Inspection Service (APHIS) for wood packaging materials. If no method is specified in the Purchase Order, shipment is made FOB, delivery point designed on the Purchase Order (Incoterms 2020), at which point all risk of loss of the shipped Products passes to Buyer. All Products delivered hereunder will be accompanied by the following documentation: (a) bill of lading, (b) specification sheet, (c)) a Certificate of Analysis and Certificate of Compliance, as described in Section 8.3; (d) all applicable product certifications (e.g., National Organic Program (NOP), Organic, Treatment, Origin, Non-GMO, Gluten-free, Phytosanitary); (e) best by or manufacture date, and (f) any other documentation that Buyer requires or that Supplier customarily includes in shipments of such Products or that Supplier is required to include by Regulatory Standards (defined below). If any Product is rejected by a government agency or standard set thereof, Supplier will bear all costs and expenses of re-exporting and returning the Product or destroying the Product, in any event, with a full refund of all Buyer’s payments therefor.

5.2 Late Deliveries. TIME OF DELIVERY IS OF THE ESSENCE UNDER THIS AGREEMENT. If Supplier has reason to believe that it will not meet the delivery date set forth on the Purchase Order, Supplier shall immediately notify Buyer, and Supplier shall bear the expense of any difference in freight costs for any premium transportation necessitated (in Buyer’s reasonable discretion) by such late delivery. In addition, for any late deliveries following the second late delivery in a calendar quarter, Supplier shall pay Buyer liquidated damages equal to 1% of the purchase price for items delivered for each day thereafter, up to a maximum of 5% for late or undelivered quantities. At Buyer’s option, Supplier shall apply such amounts as a credit against future orders to Supplier from Buyer, or Supplier shall refund such amounts to Buyer. The parties agree and acknowledge that this amount is a liquidated amount and not a penalty. Without limiting any remedies available to Buyer, if Supplier fails to deliver items within five (5) days after the delivery date set forth on the Purchase Order, Buyer may cancel all or a portion of the affected Purchase Orders for default and will be entitled to recover damages from Supplier, including damages paid by Buyer to Buyer’s customers on account of such breach by Supplier and lost profits.

 

6. ACCEPTANCE AND REJECTION OF PRODUCTS

6.1 General Procedure. Without limiting Buyer’s separate remedies for breach of warranty, Buyer may reject any Product delivered under this Agreement that is damaged, adulterated, misbranded, that demonstrates leakage or packaging or storage condition integrity concerns, or that does not comply with the requirements of the Purchase Order and/or the warranties set forth in Section 9 (a “Defective Product”) by giving written notice of such Defective Product to Supplier within ninety (90) days after receipt thereof. Buyer shall be entitled to reject all or a portion of an entire lot or shipment of a Product if a tested sample of that lot or shipment contains any Defective Products. Acceptance of Products by Buyer shall not limit Buyer’s rights under Section 11. Buyer shall return Defective Products to Supplier at Supplier’s expense. With respect to Defective Products that have been properly rejected pursuant hereto, Buyer shall not be required to pay for such Defective Products. Supplier shall replace such Defective Products as quickly as possible and in any event the replacement stock shall be shipped within seven (7) days. Buyer shall pay Supplier for such replacement Product in accordance with Section 7.2, or in the event that Buyer has already paid for the Defective Products, Supplier shall replace such Defective Products at its own expense. If, after Buyer rejects any Defective Product, Supplier fails to promptly replace such Defective Product, then Buyer shall have the right, upon notice to Supplier, to cancel the Purchase Order relative to the rejected Products without penalty and require refund of any payments made relative to the rejected Products. Acceptance of Products by Buyer shall not be deemed a waiver of Buyer’s right to revoke said acceptance, seek applicable indemnification hereunder or otherwise exercise rights and remedies available to Buyer in the event such Products are later discovered to be Defective Product.

6.2 Appeal. If Supplier disagrees with Buyer’s determination that certain units of Product are Defective Product, the Parties will first use good faith efforts to settle such dispute within five (5) business days of Supplier’s notice of disagreement. If the Parties are unable to resolve such dispute within this period, such Product shall be submitted to a mutually acceptable third party testing service. Such third party testing service shall determine whether such Product meets the Specifications, and the parties agree that such testing service’s determination shall be final and binding on the parties. The party against whom the third party laboratory rules shall bear all costs of the third party testing.

 

7. PRICES; PAYMENT

7.1 Prices; Taxes. Prices for Products are those set out on the Purchase Order. Prices shown are in U.S. dollars unless otherwise expressly set forth on the Purchase Order. Unless otherwise expressly set forth on the Purchase Order, all prices include, and Supplier is solely responsible for, all costs and expenses relating to packing, crating, boxing, transporting, loading and unloading, customs, taxes, tariffs and duties, insurance and any other similar financial contributions or obligations relating to the production, manufacture, sale and delivery of Products.

7.2 Payment Terms. Supplier shall invoice Buyer with each shipment unless otherwise agreed by the parties in writing. All invoices must bear the following certification in order to be processed for payment: “We hereby certify that these goods were produced in compliance with the Fair Labor Standards Act of 1938, as amended, and regulations and orders issued by the United States Department of Labor thereunder.” Buyer shall pay Supplier the full invoiced amount payable (other than fees disputed in good faith in writing by Buyer) within sixty (60) days after receipt of the later of invoice and shipment (such later date, the “Accrual Date”). Supplier shall not submit any invoice to Buyer until shipment to Buyer of the Products covered by such invoice, unless otherwise agreed by the parties in writing. Buyer shall receive Supplier’s standard or negotiated discount whether or not the discount is shown on the applicable invoice. Additionally, Buyer shall receive a discount of two percent (2%) if it initiates payment within fifteen (15) days of the Accrual Date. In addition to any right of setoff or recoupment provided by law, all amounts due to Supplier are considered net of indebtedness of Supplier to Buyer, and Buyer may set off against or recoup any amounts due to Supplier. For these purposes, any moneys, including damages, losses, amounts recoverable under warranty terms, costs and expenses are deemed a debt due.

 

8. PRODUCT SPECIFICATIONS; QUALITY CONTROL; CERTIFICATES; COMPLANCE WITH LAW

8.1 Specifications. Supplier shall supply Products that conform in all material respects to their applicable Specifications. If Buyer finds it necessary or desirable to change Specifications for any Product, Buyer may deliver a request for such change to Supplier (“Product Change Order”). Within ten (10) days of Buyer’s delivery of a Product Change Order, Supplier shall provide Buyer with a written quotation containing the proposed increase or decrease in the unit price of the Products as a result of implementing such Product Change Order, if any. The parties shall make a good faith effort to agree upon any such increase or decrease as soon as reasonably practicable. Once the parties have agreed upon any resulting unit price change, Supplier shall incorporate the proposed change into the Products on a schedule to be agreed to by the parties. Supplier shall not proceed to implement any Product Change Order without Buyer’s written authorization.

8.2 Quality Control. Supplier shall maintain and follow, and shall ensure that any third parties responsible for the manufacture and/or supply of raw materials or components for Products maintain and follow, a quality control and testing program consistent with GMP and prevailing industry standards (the “Quality Control Procedures”) and all Products supplied hereunder shall be manufactured in accordance therewith. “GMP” means the then-current good manufacturing practice and standards, as set forth in the United States Federal Food, Drug and Cosmetic Act, as amended, and any regulations promulgated thereunder, as amended, including without limitation 21 CFR §§117 and 210-211 (the “FD&C Act”), the Federal Hazardous Substances Act, heavy metals in packaging state statutes (CONEG statutes), California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65), FDA preventative controls compliance, and third party GFSI compliance and Food Defense program confirmations. Supplier shall not change the materials, equipment, process or procedures used to manufacture or test Product in a manner that (i) would be inconsistent with the Specifications or GMP, (ii) would affect the form, fit, function, performance, or stability of a Product, or (iii) would require regulatory approval.

8.3 Compliance with Laws; Certificates. All Product supplied to Buyer hereunder shall be manufactured and supplied in compliance with all applicable present and future orders, regulations, requirements and laws of any and all federal, state, provincial and local authorities and agencies, including without limitation the FD&C Act, and all laws and regulations of such territories applicable to the transportation, storage, use, handling and disposal (together, “Applicable Law”). Supplier also represents and warrants to Buyer that Supplier shall obtain and maintain all site licenses and government permits, including without limitation health, safety and environmental permits, necessary for the supply of Products hereunder. Upon Buyer’s request, Supplier shall promptly provide a copy of such licenses and permits. The Quality Control Procedures and all Applicable Law shall be referred to collectively, as the “Regulatory Standards”. Each batch of any Product delivered to Buyer shall be accompanied by (i) a written certificate of analysis confirming that each unit of such Product in such batch has been tested in accordance with the mutual agreed acceptance tests and conforms to the Specifications (“Certificate of Analysis”) and/or (ii) a written certificate of compliance confirming that the Product was manufactured and supplied in accordance with Regulatory Standards (“Certificate of Compliance”). Buyer may then retest the batch of Product to confirm that it meets the Specifications.

8.4 Sampling. Upon Buyer request, Supplier will (at its expense) send samples of the Products at the designated points in the manufacturing process and/or upon completion of the Product to a third-party verifier designated by Buyer to test and certify the Product and/or its components and materials in accordance with the requirements hereof.

8.5 Records. Supplier shall keep complete and accurate accounts, notes, data and records pertaining to the manufacture, processing, testing, labeling, storage, and distribution of Products sold to Buyer, including without limitation master production and control records, in accordance with the Regulatory Standards. Supplier shall retain, or cause to be retained, such records for a period of ten (10) years following the date of manufacture, or longer if required by law, and upon request, shall make available to Buyer copies of such records. After such time period, Supplier shall notify Buyer prior to the destruction of any records retained under this Section and, at Buyer’s request, shall provide such records to Buyer. Upon written request, Buyer may review such records, and shall have the right to audit, survey, or verify the adherence of Supplier to the Quality Control Procedures, Regulatory Standards and this Agreement as set forth in Section 10.3. Upon written request to Supplier, Buyer shall have the right to have its representatives or representatives of regulatory authorities visit the manufacturing facilities of Supplier during normal business hours to review Supplier’s manufacturing operations and records, to assess its compliance with the Quality Control Procedures, Regulatory Standards and this Agreement, and to discuss any related issues with Supplier’s manufacturing and management personnel. If appropriate or if required by Applicable Law, the parties will also enter into a separate quality agreement containing quality assurance provisions for the manufacture of Product (“Quality Agreement”).

 

9. REPRESENTATIONS AND WARRANTIES

9.1 Warranty of Title and other Supplier Warranties. Supplier represents, warrants and covenants that (a) Buyer will acquire good and clear title to the Products purchased hereunder, free and clear of all liens, claims, and encumbrances, (b) all materials and services provided by or on behalf of Supplier hereunder including, without limitation, the Products, are either owned or properly licensed by Supplier or are in the public domain and the use thereof by Buyer, its representatives, distributors, strategic partners, end users, and other direct and indirect customers will not infringe or misappropriate any Intellectual Property rights or other proprietary rights of any third party, (c) Supplier has not been debarred by the FDA, (d) Supplier is a corporation or other entity duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it is incorporated or established, has full corporate power and authority and the legal right to own and operate its property and assets and to carry on its business as it is now being conducted and as contemplated in this Agreement, has the full power to enter into this Agreement, to carry out its obligations under this Agreement and to grant the rights and licenses granted to Buyer in this Agreement, (e) Supplier's performance hereunder will not violate or conflict with any Regulatory Standards or any third party agreements, and (f) neither Supplier nor any of its subcontractors will utilize child, slave, prisoner or any other form of forced or involuntary labor or engage in abuse employment or corrupt business practices in connection with the provision of Products or any services under this Agreement.

9.2 Product Warranty. Supplier further represents, warrants and covenants that all Products manufactured hereunder and packing therefor will (i) conform to the applicable Specifications and the characteristics set forth therein; (ii) be manufactured and released in compliance with the Regulatory Standards; (iii) be of good material, quality, design and workmanship and not be adulterated or misbranded within the meaning of the FD&C Act; (iv) be free and clear of any and all encumbrances, liens, or other third party claims; (v) conform to the applicable regulatory or industry certification requirements relating to the production of kosher, gluten free, non-GMO, and organic or organic compliant products; (vi) not infringe or misappropriate the intellectual property rights of any third party; (vii) be safe and fit for the purpose for which they are intended; and (viii) be merchantable and pass without objection in the trade; (ix) run without variation and be of even kind, quality and quantity within each unit and among all units; and (x) be properly labeled to disclose all materials therein and will include all necessary instructions or recommendations relating to the handling, assembly, use and storage thereof.

 

10. NOTIFICATIONS; REGULATORY INSPECTIONS; AUDIT

10.1 Notifications; Recalls. Supplier shall notify Buyer immediately upon becoming aware of: (a) any defect or condition that renders or may render any Product ineffective or dangerous; (b) any Product that is not in compliance with the Specification or any Regulatory Standards; (c) infringement by any third party of any intellectual property rights related to any Product; or (d) any written or oral inquiries, notifications or inspection activity by any regulatory authority or other governmental agency or authority of competent jurisdiction in regard to Products to be supplied to Buyer hereunder (including inspection with respect to International Standards Organization standards). In addition, if Supplier becomes aware of any information which reasonably supports a conclusion that a hazard may exist in any Product, and the defect could cause illness, death or bodily injury to any person or property damage (“Hazard(s)”), Supplier shall immediately notify Buyer of the Hazard.

10.2 Recalls. Additionally, and without limiting the obligations in Section 10.1, In the event Supplier becomes aware of any situation which could result in the seizure, destruction, recall or withdrawal of any Products, or of the need for any seizure, destruction, recall or withdrawal of any Products (each event, a “Recall”), Supplier shall immediately notify Buyer. With respect to a Recall or potential Recall of the Products, Buyer will have the right, in its sole discretion, to determine the necessity of any Recall of its products that use or incorporate the Products and to control the administration of any such Recall. Supplier will cooperate with Buyer in effecting any such Recall. Supplier will maintain all of its production and shipment records to facilitate any Recall. Unless the nonconformity or defect in any Products subject to Recall is not attributable to any act or omission on the part of Supplier, Supplier shall indemnify Buyer from and against any and all claims associated with the Recall and reimburse Buyer, upon demand, for all costs and expenses incurred by Buyer in connection with its Recall of nonconforming or defective Products and for all amounts paid by Buyer for any Products subject to the Recall, and will use commercially reasonable efforts to mitigate any costs incurred by Buyer as a result thereof.

10.3 Regulatory Inspection. Supplier will permit a representative of Buyer to be present during any inspection by any regulatory authority or other governmental agency or authority of competent jurisdiction in regard to Products to be supplied to Buyer hereunder (including inspection with respect to International Standards Organization standards). Supplier will provide a reasonable description of any such governmental inquiries, notifications or inspections promptly, but in no event later than two (2) business days, after such notification, inquiry or inspection. Supplier will furnish to Buyer (i) within two (2) business days after receipt, any report or correspondence issued by any regulatory authority in connection with such notification, inquiry or inspection to the extent relevant to any Product, and (ii) copies of proposed responses or explanations. Prior to responding, Supplier will discuss the proposed response with Buyer and will implement in good faith any comments provided by Buyer relating to a Product.

 

11. INDEMNIFICATION; LIMITATION OF LIABILITY

11.1 Indemnity. Supplier shall defend, indemnify and hold harmless Buyer and their its officers, directors, employees, direct and indirect customers, distributors, dealers, agents, successors and assigns (the “Indemnified Parties”) from and against any and all claims, suits, demands and actions (collectively, “Claims”) as well any and all damages, losses, liabilities, costs and fees (including reasonable attorneys’ fees and costs of notification, recall and shipment, including without limitation with respect to finished Buyer products) in each case suffered or incurred by any of them in connection with, or resulting from (a) product liability in any way relating to a Product or claims based on the quality or condition of a Product, (b) any alleged or actual defects in a Product, whether latent or patent, including without limitation from the failure of the goods to comply with Specifications and/or any Hazard, (c) any personal injury, illness, or death (including, but not limited to, actions in tort—including, but not limited to, negligence—contract, and strict liability) arising from any Product, (d) any breach by Supplier of any representation, warranty or covenant contained herein, (e) any act, omission, negligence, and/or willful misconduct of Supplier or its agents and/or (f) the actual or alleged infringement, misappropriation or other violation of any Intellectual Property rights or other proprietary rights of any person, firm or entity by any Product, or the use or sale thereof.

11.3 Limitation on Buyer’s Liability; Statute of Limitations. BUYER SHALL NOT BE LIABLE FOR ANTICIPATED PROFITS, SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR PENALTIES OF ANY KIND. BUYER’S LIABILITY FOR ANY CLAIM ARISING OUT OF, IN CONNECTION WITH, OR RESULTING FROM THIS AGREEMENT OR FROM PERFORMANCE OR BREACH HEREOF SHALL IN NOT EXCEED THE PRICE OF THE PRODUCTS, OR UNIT THEREOF, GIVING RISE TO THE CLAIM. SUPPLIER MUST COMMENCE ANY ACTION AGAINST BUYER ARISING FROM THIS AGREEMENT WITHIN ONE (1) YEAR FROM DATE THE CLAIM ACCRUES.

 

12. INTELLECTUAL PROPERTY

12.1 Existing Intellectual Property. Subject to Section 12.2 and 12.3, each party shall retain all rights in all intellectual property rights owned or controlled by such party prior to the Purchase Order date or developed or acquired by such party during the term of this Agreement. Any materials (including, without limitation, patterns, dies, molds and jigs) furnished to Supplier by Buyer, or specifically paid for by Buyer, shall be the property of Buyer and subject to removal by Buyer upon completion of the order, and shall be used solely for filling Buyer’s orders and held by Supplier at its sole risk.

12.2 License. The purchase of the Products shall confer on Buyer and their its subcontractors, distributors and agents, an irrevocable, world-wide, royalty-free, non-exclusive, license under Supplier’s intellectual property rights in such Products (including without limitation patent applications, patents, copyrights, trade secrets, trademarks or other intellectual property rights it owns, licenses or controls), to use, test, market, sell, lease, distribute and/or otherwise dispose of such Products and to incorporate such Products into Buyer’s own products, as well as to convey to their respective customers a right to do the same with respect to any such Buyer products that are sold to such customers.

12.3 Inventions. Buyer shall own all right, title, and interest in and to any and all ideas, inventions, processes, methods, or improvements (whether patentable or unpatentable) that are developed (i) solely or jointly by Supplier at Buyer’s request or (ii) specifically for use by Buyer and not for general use by Supplier with its other customers relating to the Products, in each case along with all intellectual property rights with respect thereto (collectively, the “Inventions”). Supplier hereby assigns all right, title and interest in and to all Inventions to Buyer. Buyer may provide third parties with samples of the Products, including any Specifications or other materials provided by Supplier from time to time hereunder, and Supplier shall not own, or have any intellectual property rights in, any products developed or invented by Buyer or such alternative supplier utilizing the Products or any other materials supplied by Buyer.

12.4 Further Assurances. Supplier agrees to communicate all Inventions promptly to Buyer and agrees to take all further acts reasonably required to evidence the assignment and transfer contemplated above to Buyer, at Buyer’s expense. Supplier shall enter into an agreement with each employee or agent of Supplier performing work in connection with the manufacture and supply of Product hereunder, pursuant to which such person assigns all rights in the Inventions to Supplier such that Supplier may assign and transfer such rights to Buyer in accordance with this Section. Supplier hereby appoints Buyer as its attorney-in-fact to sign such documents as Buyer deems necessary for Buyer to obtain ownership and to apply for, secure, and maintain patent or other proprietary protection of Inventions if Buyer is unable, after reasonable inquiry, to obtain Supplier’s (or its employee’s or agent’s) signature on such a document. All Inventions and any information with respect thereto shall be Buyer’s Confidential Information subject to the confidentiality provisions of Section 13. This power of attorney shall be deemed coupled with an interest and shall be irrevocable.

 

13. CONFIDENTIALITY

Supplier acknowledges that it may be given access to information that (i) relates to the past, present, and future research, development, business opportunities, products, services, and technical knowledge of Buyer, and/or (ii) has been identified as confidential ("Confidential Information"). Buyer’s Confidential Information includes, without limitation, the terms and existence of this Agreement and the fact that Supplier is a supplier to Buyer, all information relating to Buyer’s trade secrets, business practices, finances, research and development, product road maps, inventions, discoveries, improvements, methods and processes, know-how, algorithms, materials and compositions and the performance, character and quality thereof, manufacturing techniques, specifications, applications, formulae, equipment, studies, concepts, designs, ideas, prototypes, models, products, potential products, samples, writings, notes, and patent applications in connection therewith. The Confidential Information may be used by Supplier only in connection with the performance of its obligations under this Agreement. Supplier agrees to protect the confidentiality of the Confidential Information in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event in less than a commercially reasonable manner. Access to the Confidential Information shall be restricted to those of Supplier 's personnel with a need to know and engaged in a use permitted hereby. The Confidential Information may not be copied or reproduced without Buyer’s prior written consent. All Confidential Information made available hereunder, including copies thereof, shall be returned or, pursuant to the request of Buyer, destroyed upon the first to occur of (i) the completion of provision of Products under the Purchase Order or (ii) request by the Buyer.

 

14. MISCELLANEOUS

14.1 Insurance. Supplier must maintain a Commercial General Liability Insurance Policy, an Errors and Omissions Liability Policy, a Workers’ Compensation Policy, auto, property damage and an intellectual property infringement insurance, with coverage adequate to cover all possible claims hereunder. Supplier agrees to name Buyer an additional insured on those policies. Supplier must furnish a certificate evidencing the insurance upon request. Supplier’s must give Buyer at least thirty (30) days’ prior written notice of any cancellation or material reduction in such coverage.

14.2 No Assignment. Supplier shall not transfer or assign any of its rights or delegate any of its obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without Buyer’s prior written consent. Any purported transfer, assignment, or delegation by Supplier without such prior written consent shall be null and void ab initio and of no force or effect. Buyer may assign this Agreement without Supplier’s consent. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the parties and their successors, transferees, and assignees.

14.3 No Publicity. Except as required by law, Supplier shall not make any reference in any manner (including without limitation in any press release, customer list, website, presentation or other media or method) to Buyer (including without limitation the use of Buyer’s name, logo, and identifying description), this Agreement, or the relationship without the prior written consent of Buyer.

14.4 Amendments and Waivers. Any term or provision of this Agreement may be amended, and the observance of any term, waived only by a writing signed by duly authorized representatives of both parties hereto. No waiver of any default hereunder or any terms or conditions of this Agreement will be deemed to be a waiver of any other or subsequent default of any other term or condition, but will apply solely to the instance to which such waiver is directed.

14.5 Law; Venue. This Agreement is governed by the laws of the State of Illinois, excluding its conflicts of law rules. The parties consent to the sole and exclusive venue and jurisdiction of the federal and state courts situated in Lake County, Illinois. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. If a party substantially prevails in any legal dispute with the other party, the non-prevailing party shall pay all reasonable costs and expenses incurred by the prevailing party in connection with such dispute, including but not limited to collection costs, attorneys’ fees and costs of legal action.

14.6 Notices. Any notice required or permitted to be given under this Agreement shall be delivered (i) by personal delivery, (ii) by registered or certified mail, postage prepaid, return receipt requested, or (iii) by overnight express delivery service (e.g., FedEx, UPS). Notice shall be deemed effective upon delivery. Notices shall be delivered to Supplier at the address set forth on the Purchase Order and to Buyer at 3751 Sunset Avenue, Waukegan, IL 60087 (or to such other address as a party may designate in a notice given pursuant to the terms of this provision).