Stone Gate Foods Purchase Order / Supplier Terms and Conditions

1. CONDITIONS OF ACCEPTANCE: Acceptance of this Purchase Order is made expressly conditional on Supplier’s assent to the exact terms contained herein. None of the terms in the Purchase Order may be modified, added to, or superseded, except with the written consent of Stone Gate Foods.

2. INTEGRAL AGREEMENT: This order together with Stone Gate Foods specification and any other agreement signed by STONE GATE FOODS, constitutes the entire agreement between the parties regarding the goods referred to herein, and supersedes all previous negotiations and understandings. Unless a mutually agreed upon contract exists between Stone Gate Foods and Supplier, all transactions contracted with Stone Gate Foods will be governed by the terms and conditions set forth herein.

3. ASSIGNMENT: Seller may not assign its rights or obligations under this order without Stone Gate Foods prior written consent, which consent shall not be unreasonably withheld or delayed.

4. INVOICING/SHIPPING INSTRUCTIONS:
Seller shall: (a) Include in each shipment separate packing slips showing STONE GATE FOODS order number, STONE GATE FOODS item or mark number, description and quantity shipped. (b) Accept payment according to the terms specified on the face of this order. (c) Include the following information on each invoice: STONE GATE FOODS order number, STONE GATE FOODS item number, description, unit price and quantity shipped. (d) Include cash discounts on all invoices. (e) On all prepaid shipments chargeable to STONE GATE FOODS, attach transportation receipt to the invoice, as STONE GATE FOODS will only pay for actual freight cost incurred. (f) Notify STONE GATE FOODS, if applicable: (i) number of packages, size, weight; (ii) method of protection during shipment; and (iii) suggested method for storage and protection upon arrival at destination.

5. WARRANTY: The goods shall conform in all respects to the description on the face hereof, and Stone Gate Foods then current specifications furnished to the Seller. The goods, including, without limitation, tools and equipment shall be new, of first class commercial type and of the latest approved design, unless otherwise specified on the face of this order. Workmanship and materials shall be of the best quality and free from defects that might render the goods unsuitable or inefficient for the purpose for which it is to be used. Seller warrants and guarantees its goods for the period of time normally specified for the type of goods involved, but in no event for less than twelve (12) months from date of final acceptance. During the warranty period, all goods or parts disclosing defects in design, material and/or workmanship shall be replaced and delivered to the job site by Seller, without cost or delay to STONE GATE FOODS. This warranty is in addition to and not in lieu of, any other warranties or guarantees made by Seller or created or implied as a matter of law.

6. INFRINGEMENT: Seller warrants that goods sold hereunder and any uses proposed by Seller or reviewed by STONE GATE FOODS with Seller do not violate the trademark, patent, copyright or trade secret rights of any person or entity, and Seller will defend STONE GATE FOODS and save it harmless in any litigation for misappropriation of trade secrets, unfair competition and trademark, patent or copyright infringement which may arise out of the use or sale by STONE GATE FOODS of the goods herein ordered.

7. GOVERNING LAW AND VENUE: This order between STONE GATE FOODS and Seller shall be governed by the laws of the State of Minnesota (including, without limitation, it’s UCC) without regard to its conflict of laws provisions. Any and all claims shall be venued at the Scott County District Court, First Judicial District of the State of Minnesota and both parties acknowledge the exclusive jurisdiction to this Court.

8. FDA GUARANTY: Seller herby guarantees and warrants that any materials sold by it hereunder shall not at the time of delivery thereof to STONE GATE FOODS, or when used as intended by STONE GATE FOODS, be adulterated or misbranded within the meaning of the Federal Food Drug and Cosmetic Act as amended, and any similar state law, and shall comply in all respects with all applicable regulations of the Federal Food and Drug Administration and similar state regulatory bodies. This warranty is in addition to and not in lieu of any other warranties or guarantees made by Seller or created or implied as a matter of law.

9. MEDIATION: The parties will attempt in good faith to promptly resolve and dispute arising out of this Agreement by negotiations between representatives who have authority to settle the controversy. If unsuccessful, the parties shall engage in non-binding third-party mediation, with fees and expenses of such mediation apportioned equally to each side. The party seeking relief under this Agreement shall compile a list of three (3) mediators and send it to the other party. Within five (5) business days, the other party shall either (i) select one of these three mediators, or (ii) send a new list of three mediators to the first party. If the parties cannot agree on a mediator, the mediation shall be conducted by two (2) mediators with one being chosen by each party. Any dispute not resolved by negotiation or mediation may then be submitted to a court of competent jurisdiction in accordance with the terms of this Agreement.

10. DELIVERY:
(a) The time of delivery shall be as stated. Seller shall not be liable for loss or damage arising from a Force Majeure event. In the event of such a delay, the delivery time shall be extended to include time by reason of Force Majeure. Otherwise, the delivery time shall not be extended beyond the date specified by STONE GATE FOODS, unless STONE GATE FOODS has agreed to an extension in writing. Seller may not rely on a course of performance, prior course of dealings or trade usage to imply an agreement to extend the time of delivery specified by STONE GATE FOODS, or otherwise amend, alter or negate any terms of this order or rights and remedies otherwise provided STONE GATE FOODS by the UCC or at law and equity. (b) If delivery date(s) cannot be met, Seller must immediately inform STONE GATE FOODS in writing of Seller’s best possible delivery date(s) subject to Stone Gate Foods acceptance. In addition to any other rights and remedies STONE GATE FOODS have under this order or provided by law, if deliveries are not made at the time agreed upon, STONE GATE FOODS may request that Seller ship the goods by other than designated routing to expedite delivery (Cost of alternative means of shipment shall be borne by Seller), cancel this order in whole or in part and purchase comparable goods elsewhere and hold Seller accountable for any loss or additional cost arising from such expedited delivery or cancellation.

11 INSPECTION:
(a) The goods ordered hereunder are subject to inspection and test by STONE GATE FOODS at reasonable times and places, including the period of manufacture and in any event prior to final acceptance. Final acceptance shall be conclusive except as to latent defects, fraud or gross mistakes that amount to fraud; (b) Seller shall promptly pay or reimburse STONE GATE FOODS for all costs incurred by STONE GATE FOODS, including without limitation, costs for packaging, handling, transportation, recall, destruction, production, and other administrative costs including legal fees, which arise or result from the delivery of goods by Seller that is not in accordance with the specifications. (c) Acknowledgement of receipt on packing slips, bills of lading or other documents shall not constitute acceptance. Goods that are delivered in quantity may be inspected by sampling. (d) If any goods are defective or otherwise not in conformity with the requirements of this order, STONE GATE FOODS may reject them or require correction(s). There shall be an adjustment of any payments made for rejected goods, either by Seller’s refund or by a deduction from Stone Gate Foods subsequent remittances. Rejected goods shall be removed and the goods shall be corrected or replaced promptly at Seller’s expense and, if returned, shall be identified by Seller. If rejected goods are not promptly corrected, STONE GATE FOODS may, at its option (i) obtain such goods or similar goods elsewhere and charge Seller with any cost increase caused thereby; (ii) terminate order for default under paragraph 17 hereof, (3) accept the goods at a reduction in price determined in accordance with paragraph 15 hereof, and seek other remedies and damages. This enumeration of remedies does not preclude other STONE GATE FOODS remedies available under the UCC, at law or in equity.

12. WORK ON STONE GATE FOODS PREMISES: If this order covers labor, contractor construction work or work of any nature on Stone Gate Foods premises, Seller agrees it has no authority to hire any persons on Stone Gate Foods behalf and each person employed or used by Seller shall be Seller’s employee, servant or agent and not Stone Gate Foods, as Seller is performing all of said work as an independent contractor. Seller indemnifies and saves STONE GATE FOODS harmless from any and all judgments, costs, expenses, including attorneys’ fees, for damaged property or personal injuries (including death) which may be sustained by Seller, its employees, Stone Gate Foods employees or third parties, arising out of or in any way connected with such work done on Stone Gate Foods premises, except to the extent such damaged property or injury (including death) is caused by the negligence or willful misconduct of STONE GATE FOODS. Prior to commencing any such work, Seller shall provide certificates evidencing adequate insurance indemnifying Seller and STONE GATE FOODS against all such claims and naming STONE GATE FOODS as an additional insured.

13. NONCONFORMING GOODS: Seller will not substitute non-conforming goods or back order such goods without Stone Gate Foods prior approval, and STONE GATE FOODS may reject all or part of any shipment which contains non-conforming goods. Stone Gate Foods rights under this paragraph are in addition to, and not in lieu of, any other remedies available under this order, the UCC, at law or in equity.

14. CHANGES: STONE GATE FOODS may change any of the terms of this order by a written change order. Any changes in Seller’s costs of performance arising out of such a change order shall be reflected in a price adjustment in accordance with paragraph 15. Pending such price adjustment(s), Seller shall proceed with this order as changed.

15. PRICE ADJUSTMENT: No increase in price will be accepted without Stone Gate Foods written acceptance. Any price adjustment price must be initiated by written demand and at least ninety (90) days prior to the price change. If this order is fully performed prior to such demand, any reduction or increase in price will be made on the basis of a change in Seller’s cost. Seller shall furnish STONE GATE FOODS adequate cost information and give STONE GATE FOODS access to verify such cost information. Each price adjustment or change shall be evidenced by an appropriate change order from STONE GATE FOODS.

16. ESCALATOR PRICE INCREASE: No increase in the price stated on the face of this order will be paid by STONE GATE FOODS unless it is specifically provided for on the face of this order, or otherwise authorized in writing by STONE GATE FOODS.

17. TERMINATION FOR DEFAULT: If Seller fails to deliver the goods or services within the time specified, or otherwise defaults in performance, STONE GATE FOODS may terminate this order in whole or in part. In the event of termination for default: (a) Seller shall continue performance of any non-terminated portion of the order, and STONE GATE FOODS may obtain elsewhere the portions of the goods affected by the termination; and (b) STONE GATE FOODS may, at its option, require Seller to transfer to STONE GATE FOODS all materials, work in process, completed supplies, tooling, plans and specifications allocated to the terminated portion of the order. STONE GATE FOODS shall, in this event, pay Seller the fair value of such items. Stone Gate Foods rights under this paragraph are in addition to, and not in lieu of, any other remedies available under this order, the UCC, at law or in equity.

18. TERMINATION: STONE GATE FOODS may terminate this order in whole or in part at any time whenever the goods specified herein are no longer required by STONE GATE FOODS. If, upon such termination, STONE GATE FOODS and Seller cannot negotiate a mutually satisfactory settlement within a reasonable time, STONE GATE FOODS will pay Seller, and Seller agrees to accept without duplication of any items, the following as full settlement: (a) Contract price for completed items; (b) Seller’s direct cost allocated to terminated portion of the order; or (c) Reasonable direct costs of Seller in settling claims arising out of this termination, and in protecting property in which STONE GATE FOODS has or may acquire an interest. In no event shall STONE GATE FOODS be liable for any consequential, indirect, special or punitive damages.

19. TAXES: The prices stated in this order shall include all applicable taxes in effect on the date hereof and levied or assessed with respect to the production, sale or use of the goods covered by this order or components thereof.

20. NONDISCLOSURE: Seller agrees not to use, release or disclose to third parties any information concerning the goods and/or process(es) involving the subject matter of this order without prior written consent of STONE GATE FOODS.

21. HEADINGS: The titles of the paragraphs of this order are for convenience only and shall not affect their interpretation.

22. CREATIVE MATERIALS: Unless otherwise noted on this order, all creative materials and production materials ordered shall be deemed to be work for hire which is owned by STONE GATE FOODS and which may be used by STONE GATE FOODS in its sole discretion.

23. TITLE: Title to the goods shall pass to STONE GATE FOODS, f.o.b. destination, unless otherwise stated on the face of this order.

24. INDEMNIFICATION: Seller shall indemnify and hold harmless STONE GATE FOODS and its agents, employees, Officers, directors, subsidiaries, affiliates, parent corporation, successors and assigns from and against all third party claims, demands, losses, attorneys’ fees (“Claims”), arising out of or resulting from Seller’s performance of the work or Seller’s negligence or willful misconduct. This obligation shall not extend to claims to the extent caused by Stone Gate Foods negligence or willful misconduct.

25. CLAIMS: All claims will be promptly made to STONE GATE FOODS in writing within one (1) year.

26. COMPLIANCE WITH LAW: Seller’s performance under this order shall be in compliance with all applicable federal, state and local laws, ordinances, regulations, rules and statutes (“Laws”), including those Laws that relate to safety, transportation and environmental matters.

27. CHILD LABOR: Seller warrants that all workers engaged in the manufacture of distribution of the goods will be treated in full compliance with the applicable laws and regulations of the country of manufacture, including but not limited to provisions regarding compensation, safety, nondiscrimination and other conditions of employment. Additionally, Seller warrants that no person shall be employed at an age younger than fifteen (15) or younger than the age for completing compulsory education in the country of manufacture where such age is higher than fifteen (15). Seller further warrants that no imprisoned laborer shall be engaged in the manufacture or distribution of the goods.

28. RECALL: STONE GATE FOODS shall have the sole right, exercisable in its discretion, to initiate and direct the content and scope of a recall, market withdrawal, stock recovery, product correction and/or advisory safety communication (any one or more referred to as a “Recall Action”) regarding the goods or services at Stone Gate Foods option, STONE GATE FOODS can direct Seller to, and upon such direction Seller shall, conduct such Recall Action. STONE GATE FOODS shall determine, in its discretion, the manner, text and timing of any publicity to be given such matters. In the event a Recall Action is initiated or directed by STONE GATE FOODS, Seller agrees to fully cooperate and take all such steps as are reasonably requested to implement the Recall Action in a timely and complete manner. Any and all action to be taken in connection with a Recall Action shall be in accordance with all applicable Laws. Seller shall bear the costs associated with any Recall Action that results from such goods or services not complying with Seller’s under this order. In all other cases, STONE GATE FOODS shall bear the costs associated with any Recall Action.

29. SURVIVAL: All representations and of the Seller including, without limitation, paragraphs 20, 22, 23 and 24, all rights and remedies of STONE GATE FOODS and any other provisions hereof which by their express terms or by implication are to survive, shall survive the termination of this Order.

Posted date: July 25, 2016

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