These Purchase Order Terms and Conditions (these "Terms") are incorporated into each purchase order ("Purchase Order") issued by Coca-Cola Beverages Northeast, Inc. ("Coke Northeast"). All documents attached to the Purchase Order are also incorporated into the Purchase Order. Coke Northeast agrees to purchase, and the seller specified in the Purchase Order ("Seller") agrees to sell, solely on the terms and conditions of the Purchase Order, the goods and/or services described in the Purchase Orders. Seller will deliver to Coke Northeast a prompt written acknowledgment of the Purchase Order. Seller will be deemed to have accepted the Purchase Order unless it delivers to Coke Northeast a written rejection of the Purchase Order within two (2) days after it receives the Purchase Order. The Purchase Order will be automatically deemed to incorporate these terms and conditions of purchase ("Terms"), regardless of whether the Purchase Order references these Terms. To the extent the terms and conditions expressly stated in the Purchase Order conflict with these Terms, the terms and conditions expressly stated in the Purchase Order will control. No term or condition of any order confirmation or any other document issued by Seller will become part of the contract between the parties or bind Coke Northeast. Coke Northeast's purchase of the goods and/or services is expressly conditioned on Seller's acceptance of the terms and conditions of the applicable Purchase Order, including these Terms. Coke Northeast objects to and rejects all different and additional terms and conditions in Seller's order confirmation and other documents.
Terms and Conditions Applicable to Coke Northeast's Purchase of Goods
- Delivery: Labeling.The goods, articles, materials, supplies and equipment specified or described in the Purchase Order (the "Goods") will be delivered to the address specified in the Purchase Order or to such other place which Coke Northeast will designate in writing to Seller prior to shipment, all at Seller's expense unless the Purchase Order expressly states otherwise. Seller will mark Coke Northeast's order number, Seller's name and the point of shipment on all invoices and bills of lading for the Goods and on each package and box containing Goods. Seller will comply with all other reasonable labeling requirements for the Goods that Coke Northeast may specify. Time is of the essence with respect the delivery of the Goods. If the Goods are not delivered within the time specified in the Purchase Order, Coke Northeast will have the right to either (a) Cancel the Purchase Order or any unfulfilled part thereof, and charge Seller with all expenses, losses and damages Coke Northeast incurs (including, without limitation, the costs to procure substitute goods or services), or (b) Accept the delayed delivery and charge Seller with all of Coke Northeast's expenses, losses or damages resulting from such delay.
Seller shall notify Coke Northeast in writing upon acceptance of this Purchase Order if goods furnished are subject to laws or regulations relating to hazardous or toxic substances, or when disposed of, to regulations governing hazardous wastes, or any other applicable environmental, health, or safety laws or regulations. Instruction for handling, warnings, and material safety data sheets shall be provided with each shipment. Seller shall submit to Coke Northeast with each shipment, a copy of all relevant MSDS sheets.
- Import; Export; Customs.- For each shipment where products are sourced from outside the customs territory of the United States, Coke Northeast shall have the option of being the Importer of Record. In such case, Seller shall furnish promptly all information and documents required for customs drawback purposes, properly completed in accordance with government regulations applicable thereto. Seller shall furthermore, at its expense, provide all information necessary (including written documentation and electronic transaction records) relating to the products, tooling and equipment necessary for Coke Northeast to fulfill any customs-related or other governmental agency-related obligations, origin marking or labeling requirements and certification or local content reporting requirements, to enable Coke Northeast to claim preferential duty treatment at the time of entry for products, tooling and equipment eligible under applicable trade preference regimes, and to make all arrangements that are necessary for the products to be covered by any applicable duty deferral or free trade zone program(s) of the country of import. Seller shall, at its expense, provide Coke Northeast with all documentation to enable the products to be exported, and obtain all export licenses or authorizations necessary for the export of the products, tooling and equipment, in which event Seller shall provide all information as may be necessary to enable Coke Northeast to obtain such licenses or authorization(s). Credits or benefits resulting or arising from any order, including trade credits, export credits or the refund of duties, taxes or fees, shall belong to Coke Northeast.
Seller hereby agrees to comply with the security recommendations of the U.S. Bureau of Customs and Border Protection's Customs-Trade Partnership Against Terrorism (C-TPAT) program. Seller is responsible for any incorrect information provided by Seller or any noncompliance with the U.S. Customs Regulations by Seller that results in penalties and/or additional duties for Coke Northeast. Seller shall share with Coke Northeast any audit or inspection information related to C-TPAT inspection and/or validation at Seller's location.
Seller agrees to hold harmless and indemnify Coke Northeast, its directors, officers and employees against all losses, claims, penalties judgments, liabilities and expenses which any of them may pay or incur arising out of this order, including but not limited to all representations made by the Seller with respect to documentation or other Customs or Governmental requirements with regard to entry requirements, classification, valuation, preferential treatment, duty drawback or trade terms.
- Quantity.Delivery of the Goods will be in the exact quantities stated in the Purchase Order unless otherwise specified in the Purchase Order. Coke Northeast assumes no liability for over-shipments and will not be required to pay Seller for the excess quantities.
- Warranties.Seller represents and warrants to Coke Northeast that: (a) Seller will deliver to Coke Northeast good, exclusive and marketable title to the Goods free and clear of all liens, security interests, claims and encumbrances; (b) for a period of 18 months after delivery, all Goods will be: (i) merchantable as defined in Article 2 of the Uniform Commercial Code as adopted in the State of New Hampshire and; (ii) safe and appropriate for the purpose for which Goods of that kind are normally used; (c) the Goods will be free from defects in materials and workmanship and will comply fully with all final written descriptions, specifications, drawings and presentations Seller provides to Coke Northeast, including those specified in the Purchase Order; (d) no federal, state or local statute, law, rule, regulation or order will be violated in the manufacturing, packaging, selling or delivering of the Goods, including those relating to basic human rights; and (e) if Seller has been informed that Coke Northeast intends to use the Goods supplied under the Purchase Order for a particular purpose, then Seller warrants that the Goods are fit for the particular purpose of Coke Northeast. Seller will promptly repair or replace, at Coke Northeast's election, all Goods that do not comply fully with the warranties in the Purchase Order and/or these Terms. If Seller fails to repair or replace any non-conforming Goods promptly, Coke Northeast may elect to remedy any defects, and Seller will promptly reimburse Coke Northeast for all costs Coke Northeast incurs in doing so.
- Risk of Loss; Inspection; Title.Notwithstanding any agreement by Coke Northeast to pay shipping charges in the Purchase Order or otherwise, all risk of loss and damage to the Goods will remain with Seller until receipt and acceptance of the Goods by Coke Northeast. Coke Northeast will have the right to inspect the Goods before accepting them. Coke Northeast will have a reasonable period of time after it discovers a defect or nonconformity to reject the Goods or to revoke its acceptance of the Goods. Coke Northeast's failure to inspect the Goods before payment does not impair Coke Northeast's right to inspect the Goods after receipt. If Coke Northeast rejects the Goods or revokes its acceptance of the Goods and Seller does not deliver conforming Goods on or before the delivery date specified in the Purchase Order, Coke Northeast will have the right, at Coke Northeast's election, to terminate all or a portion of the Purchase Order and to obtain a prompt refund from Seller of all payments Coke Northeast has made with respect to undelivered and non-conforming Goods under the Purchase Order. Seller will pay all costs Coke Northeast incurs in rejecting Goods or revoking its acceptance of Goods. If Coke Northeast rejects the Goods, all risk of loss and damage will shift to Seller, and Coke Northeast may ship the Goods to Seller at Seller's expense or require Seller to pick up the Goods promptly.
Terms and Conditions Applicable to Coke Northeast's Purchase of Services
- Warranty.Seller represents and warrants to Coke Northeast that: (a) Seller will perform all labor, work and services pursuant to the Purchase Order (the "Services") in a professional and workman like manner, in accordance with the standards or care, thoroughness and competence normally practiced by recognized firms in the industry performing Services of a similar nature, and in full compliance with all applicable plans, specifications, drawings, models and patterns Seller provides to Coke Northeast, including those specified in the Purchase Order; (b) Seller will employ and engage only competent and experienced Personnel (as defined in Section 7) to perform the Services; (c) Seller will perform and complete the Services within the schedule established in the Purchase Order; (d) No federal, state or local statute, law, rule, regulation or order will be violated in the performance of the Services; and (e) If on-site of Coke Northeast, Seller will adhere to all of Coke Northeast's rules and policies for vendors and contractors. If Coke Northeast is not satisfied with any product for any reason during the sixty (60) days following Coke Northeast's receipt thereof, Coke Northeast may return the product to Seller for a full refund of the purchase price without any restocking or other fee.
- Labor.Seller will act as an independent contractor and agrees to provide such personnel as are necessary to perform the Services as the Purchase Order requires (the "Personnel"). The Personnel may be employees of Seller or independent contractors engaged by Seller to perform the Services; providedthat Seller will remain at all times responsible for the verification, screening, training, assignment, conduct and performance of all Personnel. Seller will cooperate with Coke Northeast in assigning Personnel to perform the Services who are acceptable to Coke Northeast and in removing and replacing Personnel when warranted.
- Deliverables.All documentation and other deliverables, and all copyright, trade secret and other intellectual property rights therein, including all renewals, extensions and continuations, Seller prepares or delivers pursuant to the Purchase Order, or which Coke Northeast requires Seller to supply pursuant to the Purchase Order (collectively, "Deliverables"), will be the property of Coke Northeast and Seller will have no rights in them. All Deliverables will be deemed to be "works made for hire" for Coke Northeast. Seller hereby assigns to Coke Northeast all rights, title and interests in all Deliverables including, without limitation, the copyrights therein. Seller will execute and deliver to Coke Northeast all such further assignments and assurances confirming Seller's ownership of all Deliverables as Coke Northeast may request from time to time.
Terms and Conditions Applicable to All Purchases
- Payment.The prices stated in the Purchase Order include all charges for packing, loading, boxing, draying, storing, shipping and insuring the Goods and/or Services. Seller represents that the prices to be paid or otherwise charged to Coke Northeast are not any higher than the lowest price for such goods or services offered by Seller to any other of its customers. Coke Northeast shall not be billed for, nor shall Coke Northeast have any obligation to pay, any charge or amount not specifically authorized with this Purchase Order. Seller shall be responsible for and pay all federal, state, and local sales, use, income, excise, property, employment, and other taxes similar to, or differing from, any of the foregoing, incurred or levied on or in connection with the manufacture of goods, provision of services, or relating to Seller's own property. Coke Northeast shall be responsible only for taxes arising from its ownership of the goods. Unless the Purchase Order expressly states otherwise, Coke Northeast will pay Seller for the Goods and Services within thirty (30) days after the delivery of all of Goods or the performance of all of the Services. Coke Northeast may withhold payment, and may set off against any amount it owes Seller under the Purchase Order or any other purchase order, all amounts Seller owes Coke Northeast under the Purchase Order and all amounts necessary to secure Coke Northeast from potential losses based on a reasonable belief that (a) the Goods or Services will not fulfill the requirements and obligations of Seller under the Purchase Order, (b) liens, security interests, claims or encumbrances will be filed by third parties against the Goods or Services or against Coke Northeast based on the Goods or Services, or (c) seller is in breach of any provision of the Purchase Order.
- Applicable Laws; Guiding Principles.Seller will comply fully at all times relevant to the Purchase Order with all applicable federal, state and local laws, rules, regulations, requirements, ordinances and orders, including all provisions of (a) Executive Order 11246 issued by the President of the United States of September 24, 1965; (b) The Vietnam Era Veterans Readjustment Assistance Act of 1974; (c) Section 503 of the Rehabilitation Act of 1973 relating to individuals with disabilities; (d) The United States Occupational Safety and Health Act of 1970; (e) The Fair Labor Standards Act; (f) The Immigration Reform and Control Act; (g) The Equal Employment Opportunity Act of 1972; (h) 15 U.S.C. section 637(d)(3) relating to small and disadvantaged business concerns; (i) All applicable rules, regulations and orders issued under any of the foregoing;(j) All amendments of the foregoing that may be made from time to time; and (k) Section 49 of the Code of Federal Regulations if applicable.
- Infringement; Indemnification.Seller represents and warrants that its sale and Coke Northeast's use or purchase of the Goods and Services, in the form in which furnished to Coke Northeast, will not infringe or misappropriate any patents, copyrights, trademarks, trade names, trade secrets or other intellectual property rights. Seller will defend, indemnify and hold harmless Coke Northeast and its subsidiaries and affiliates, and all of their respective directors, officers, employees, agents and guests, from and against all claims, actions, demands, penalties, losses, damages, liabilities, judgments, obligations, and attorneys' fees and expenses arising out of or relating to: (a) any claim that the Goods or Services or the use of the Goods or Services by Coke Northeast or any of its subsidiaries, affiliates or its customers infringes or misappropriates any patent, copyright, trademark, trade name, service mark, trade secret or other property right; (b) Seller's breach of warranty or of the Purchase Order; and (c) the actual or alleged negligence or willful misconduct of Seller or any of its contractors or agents, or any of their respective directors, officers, employees, or agents. In the case of a claim that Goods or Services are infringing or misappropriating, Seller will have the obligation, at its sole expense, to obtain promptly for Coke Northeast the right to continue using the Goods without interference or to modify or replace the Goods or Services promptly in a manner acceptable to Coke Northeast in its sole discretion.
- Confidentiality.Seller will keep confidential, not disclose to any person or entity and not use for any purpose other than fulfilling its obligations under the Purchase Order, all drawings, plans, specification, blueprints, equipment designs or other information Coke Northeast provides or discloses to Seller, all information regarding the Purchase Order and/or Coke Northeast's purchases, and all other information that Coke Northeast designates as being confidential (collectively, "Confidential Information"). Additionally, Seller will use reasonable efforts, no less stringent than those it uses to protect its own confidential and proprietary information, to maintain the confidentiality of the Confidential Information and to prevent its unauthorized, negligent or inadvertent use, disclosure or publication. When Seller delivers all of the Goods, or completes all of the Services, under the Purchase Order, Seller will return to Coke Northeast all Confidential Information in the possession, custody or control of Seller, its contractors or its agents. Seller will insure that all of its employees, contractors and agents agree to be bound by, and comply with, the provisions of this Section 12. Seller will not use Coke Northeast's name or the fact that Seller is selling Goods to Coke Northeast in any press releases, media statements or public communications or otherwise publicize the Purchase Order without Coke Northeast's prior written consent. Seller will not use Coke Northeast's name, logos, trademarks, service marks, trade names or trade secrets in any way without Coke Northeast's prior written consent, and Coke Northeast will not be deemed to have granted Seller a license of, or granted Seller any rights in, any of the foregoing by issuing any Purchase Order.
- Insurance Requirements.If the Purchase Order requires Seller to provide any Services or requires Seller to maintain insurance, Seller will purchase and maintain, at Seller's expense, insurance in at least the following amounts: (a) Worker's Compensation Insurance as required by applicable law including Employer's Liability coverage "B" (or stop gap coverage) in the amount of $1,000,000 (b) Commercial General Liability ("CGL") Insurance in at least the amount of $3,000,000 combined single limits per occurrence and $5,000,000 in the aggregate; (c) Vehicular Liability Insurance in the amount of $1,000,000; and (d) Professional Liability Insurance (errors and omissions) with limits of $2,000,000 each occurrence, including network and privacy liability if Supplier will be performing IT Professional Services pursuant to this Agreement. Any shortfall in the above coverages can be made up for by an umbrella policy so long as proof is provided in writing that the umbrella covers that policy. The nature of the Purchase Order may necessitate higher amounts as Coke Northeast may determine from time to time at its discretion. If the Purchase Order is for Services, Seller will require all Subcontractors to comply with all of the insurance requirements of these Terms. The insurance policy will name Coke Northeast and Coke Northeast and their respective subsidiaries and affiliates as certificate holders and additional insureds and will clarify that said insurance is primary and non-contributory to any insurance of the Coke Northeast. Within five days after it receives the Purchase Order, and before it begins any work on any of Coke Northeast's sites, Seller will deliver to Coke Northeast current and valid certificates of insurance evidencing the required insurance policies and limits and listing Coke Northeast and Coke Northeast and its subsidiaries as an additional insured on the insurance policy. If any such insurance policy is cancelled, modified or not renewed before the expiration date listed in the policy, notice will be delivered within thirty (30) days of the change.
- Coke Northeast's Property.Except as otherwise expressly provided in the Purchase Order, all supplies, materials, models, patterns, cuts and other equipment that Coke Northeast furnishes to Seller, or for which Coke Northeast pays, will at all times remain the property of Coke Northeast. Seller will bear all risk of loss and damage with respect to all of those items, normal wear and tear excepted, while such they are in Seller's possession or control.
- Cancellation by Force Majeure.Coke Northeast may cancel the Purchase Order as to any undelivered Goods or unperformed Services if Coke Northeast's receipt or use of such Goods or Services is unreasonably delayed or the value of those Goods or Services is substantially impaired (a) by the cancellation or alteration of any applicable government contract, subcontract or specification, (b) by a change in any applicable state, federal or local law, regulation or order, (c) by any act of God, war, strike, riot, insurrection, rebellion, act of terrorism, flood, hurricane, tornado, earthquake, lightning, and other natural calamity, (d) by the destruction of or damage to Coke Northeast's premises, (e) by explosions or fires, or (f) by any other cause beyond Coke Northeast's reasonable control. If Coke Northeast cancels the Purchase Order under this Section 15, Seller will stop all orders for materials, all deliveries of Goods, and all Services, and Coke Northeast will pay Seller for the Goods delivered, and Services performed, in accordance with the Purchase Order at the rates specified in the Purchase Order.
- Termination.Coke Northeast may at any time by giving Seller written notice, terminate the Purchase Order or suspend, delay or interrupt all or any part of Seller's performance under the Purchase Order. (a)Termination for Breach. If Coke Northeast terminates the Purchase Order based on Seller's breach, Coke Northeast will not be required to accept or pay for any additional Goods or Services under the Purchase Order. (b) Termination without Breach. If Coke Northeast terminates the Purchase Order for its convenience, Coke Northeast will pay Seller the direct costs Seller previously incurred in good faith in performing its obligations under the Purchase Order up to and not exceeding the remaining purchase price due under the Purchase Order.
- Remedies Upon Breach.Notwithstanding the provisions of Section 17, if Seller breaches the Purchase Order, Coke Northeast will be entitled, in addition to any other remedy at law or equity, to recover its reasonable attorney's fees and expenses and other costs resulting from that breach from Seller. If Coke Northeast commits a material breach of the Purchase Order and does not cure that breach within 30 days after receiving Seller's written notice of the particular breach, Seller's exclusive remedy will be to terminate the Purchase Order by giving Coke Northeast written notice and to recover from Coke Northeast the direct costs Seller previously incurred in good faith in performing its obligations under the Purchase Order up to and not exceeding the remaining purchase price due under the Purchase Order.
- No Assignment.Seller will not assign any of its rights or subcontract or delegate any of its obligations under the Purchase Order, in whole or in part, without the prior written consent of Coke Northeast, and any such assignment, subcontracting or delegation without Coke Northeast's prior written consent will be void. No such assignment, subcontracting, delegation, or written consent from Coke Northeast will relieve Seller of any of its current or future obligations under the Purchase Order.
- Waiver.Any failure at any time of either party to enforce any provision of the Purchase Order will not constitute a waiver of such provision or prejudice the right of such party to enforce such provision at any subsequent time.
- Choice of Law and Venue.The Purchase Order has been negotiated, executed and delivered in, and will be deemed to have been made in, the State of New Hampshire and the validity of the Purchase Order, its construction, interpretation and enforcement, and the rights of the parties under it, will be determined under, governed by and construed in accordance with the internal laws (and not the law of conflicts) of the State of New Hampshire. Coke Northeast and Seller agree that all actions or proceedings arising in connection with this Agreement will be commenced and heard only in the New Hampshire state courts. The parties consent and submit to the jurisdiction and venue of those courts.
- Survival; No Third Party Beneficiary; Severability.The provisions of Sections 4, 6, 11, 12, 13, and 20of the Purchase Order will survive the termination of the Purchase Order for any reason. There are no third party beneficiaries of the Purchase Order. If any provision of the Purchase Order or the application of the Purchase Order to any person or circumstance is held invalid or unenforceable, the remainder of the Purchase Order will not be affected, and every remaining provision of the Purchase Order will be valid and binding to the fullest extent permitted by law.
- General.The terms "including" and "include" will not be deemed to be limiting. The Purchase Order, including these Terms and all attachments, constitutes the entire agreement of the parties relating to the subject matter and supersedes all prior and contemporaneous understandings, agreements, courses of dealing and performance, and usages of the trade. Neither the Purchase Order nor these Terms may be modified except by a written agreement Coke Northeast and Seller sign.