- Definitions. As used in the Agreement (as hereinafter defined), capitalized terms shall have the following meaning: “Affiliate” means any entity that controls, is controlled by, or is under common control with the applicable party through the exercise of voting power or otherwise; “Agreement” means, collectively, these Terms (as amended, revised, and updated from time to time), any Purchase Order, and/or any other purchase agreement, the Specifications, and any and all of Chocolette Distribution LLC ‘s standards and policies referenced in and accompanying documentation that incorporate these Terms including its supplier code of conduct (as published on Chocolette Distribution LLC ‘s website and amended from time to time); “Goods” includes, without limitation, equipment and machinery, fungible goods, ingredients, raw materials, components and software; “Purchase Order” means a written order, a blanket purchase agreement, a blanket purchase order, a release against a blanket purchase agreement, a job or work order, a statement of work, or other mechanism for ordering Goods or Services; “Services” means the services described in any Purchase Order, and the deliverables provided in connection with such Services or otherwise provided by Supplier; “Specifications” means, as applicable (i) the written specifications, requirements, guidelines and/or standards with respect to the Goods or Services that have been provided or approved by Chocolette Distribution LLC ; (ii) a physical sample or prototype of the Goods that has been provided by Chocolette Distribution LLC to Supplier; or (iii) a physical sample or prototype of the Goods that has been provided by Supplier and approved by Chocolette Distribution LLC ; “Supplier” means the entity listed in the Agreement as seller, or otherwise the manufacturer, seller, or other provider of the Goods and Services, and its Affiliates, agents and representatives; “Terms” means these terms and conditions of purchasing.
- Offer and Acceptance. The Agreement represents Chocolette Distribution LLC ‘s offer to purchase the Goods and/or Services set forth on the Purchase Order. Chocolette Distribution LLC ‘s offer to purchase the Goods and Services is expressly limited to, and expressly made conditional on, Supplier’s acceptance of the terms of the Agreement, including, without limitation, these Terms. Chocolette Distribution LLC objects to any different or additional terms. Supplier will be deemed to have accepted the exclusive application of terms of the Agreement and waived any and all other terms (i) even if Supplier’s acceptance purports to make acceptance conditional on acceptance of inconsistent, additional or different terms to the Agreement; (ii) when acknowledged by Supplier in writing; or (iii) if Supplier makes any shipment or performance in response to or in anticipation of a Purchase Order.
- Price. The purchase price will be set forth in the Purchase Order. Unless otherwise provided in the Purchase Order, the price set forth in the Purchase Order includes all applicable taxes, duties, tariffs, surcharges, and other amounts assessable by any government authority with respect to the Goods or Services.
- Quantity. The quantity and description of any Goods or Services will be set forth in the Purchase Order. Chocolette Distribution LLC makes no representations regarding the number of Purchase Orders to be placed, or volume of Goods or Services, beyond what is specified in a Purchase Order. Except for a Purchase Order or as otherwise expressly agreed in writing, nothing in the Agreement will constitute a commitment on the part of Chocolette Distribution LLC to purchase any specific quantity, amount or type of Goods or Services.
- Invoices/Payment Terms. Supplier’s invoices shall be submitted to Chocolette Distribution LLC and shall contain the following information: (1) Purchase Order number, (2) item number, (3) description of articles, (4) sizes, (5) quantities, (6) unit prices, and (7) extended totals. Invoices must coincide with the terms of the Purchase Order. Only one invoice per Purchase Order is acceptable. Failure to comply may cause a delay in payment. Unless otherwise set forth in the Purchase Order, payment terms are net 45 days from Chocolette Distribution LLC’s receipt of a correct and undisputed invoice from Supplier. Chocolette Distribution LLC reserves the right to request additional supporting documents.
- Delivery and Inspection. The Goods delivered and/or Services provided to Chocolette Distribution LLC shall not differ nor vary in any respect from those specified in the Agreement, including, without limitation, the quantity, quality, price, and time and place of delivery of the Goods and/or Services as set forth in the Purchase Order and the Specifications. Substitutes will not be accepted. Time is of the essence. Supplier will promptly notify Chocolette Distribution LLC of any known or anticipated delay or failure to meet any requirements of the Agreement. If Supplier is responsible for transportation, the Goods are to be shipped DDP Chocolette Distribution LLC ‘s facility, unless otherwise agreed, and the risk of loss, damage or destruction is on Supplier until delivery to the Chocolette Distribution LLC’s facility. Supplier shall comply with any additional requirements regarding the packing and shipment as may be set forth in the Agreement. Notwithstanding prior delivery or payment, all Goods and Services are subject to inspection, testing and acceptance by Chocolette Distribution LLC upon delivery and Chocolette Distribution LLC expressly reserves the right to review and evaluate any Good delivered to determine whether it complies with the terms of the Agreement and, particularly, the Specifications. In case of nonconforming deliveries, if Chocolette Distribution LLC rejects any Good delivered or discovers, at any time, a latent defect, it shall notify Supplier, and Supplier shall have the right, within a reasonable period of time not exceeding ten (10) business days of such notice and at its own expense, to put the Chocolette Distribution LLC in the same position in which it would have been if the terms and conditions of the Agreement had been complied with (the “Correction Period“).
- Nonconforming Goods or Services. Chocolette Distribution LLC is not obligated to pay for or accept Goods or Services that do not comply with the Agreement. In case of non-conforming and/or late deliveries, and, if applicable, if and to the extent a cure cannot be effected or is not effected within a Correction Period, Chocolette Distribution LLC may, at its sole discretion, and without waiving any other remedy: (i) extend the Correction Period, if any; (ii) accept the non-conforming or untimely Good delivered and continue under the Agreement, subject to a reasonable reduction in compensation payable; (iii) reject the non-conforming or untimely Good delivered and, if and to the extent paid, receive a refund of any amounts paid to Supplier for the Good delivered and/or return any shipments to Supplier at Supplier’s expense and risk; (iv) terminate the Agreement and/or the applicable Purchase Order without any obligation to pay any amount associated with the rejected or untimely Goods delivered; (v) be held harmless by Supplier, irrespective of any fault, for any damages suffered or incurred by Chocolette Distribution LLC, out of pocket cost or expense, including, without limitation, any cost of cover or cost of procurement of substitute goods, including reasonable attorney’s fees; and/or (vi) demand specific performance.
- Termination. In addition, and without prejudice, to any other remedies stated herein, Chocolette Distribution LLC reserves the right to terminate the Agreement or any Purchase Order as follows: (i) if a Purchase Order concerns Goods specifically manufactured, fabricated, or otherwise specifically produced pursuant to Specifications, then Chocolette Distribution LLC may terminate a Purchase Order, in whole or in part, at any time prior to delivery of the Goods by providing written notice to the Supplier, upon receipt of which, unless otherwise stated, the Supplier shall cease all work in connection with the Purchase Order concerned and Chocolette Distribution LLC shall pay, and Supplier shall accept as full compensation, Supplier’s actual direct out of pocket cost and expense up to such date, which shall in no event exceed the overall purchase price stipulated in the Purchase Order, and Supplier shall, upon Chocolette Distribution LLC ‘s request, deliver the finished and/or unfinished part of the Goods to Chocolette Distribution LLC; or (ii) in any other case, by providing Supplier fifteen (15) days’ prior written notice. In addition, Chocolette Distribution LLC may terminate the Agreement or any Purchase Order at any time if any of the following occurs: (i) Supplier fails to comply with any requirements or obligations under the Agreement; (ii) Supplier makes any assignment for the benefit of Supplier’s creditors; or (iii) a receiver is appointed for Supplier.
- Recalls. Chocolette Distribution LLC may initiate a recall, withdraw the Goods or any product manufactured with the Goods (a “Product“), or suspend the sale or distribution of the Product (a “Recall“) if (i) the Product creates a risk of personal injury or public safety, (ii) Chocolette Distribution LLC reasonably anticipates that the Product will adversely affect Chocolette Distribution LLC, and/or the goodwill associated with Chocolette Distribution LLC, or (iii) Chocolette Distribution LLC is ordered or requested by a governmental authority to do so. Supplier undertakes to fully cooperate, at its sole cost and expense, with Chocolette Distribution LLC in case of a Recall and will not contact any third parties or make any public statement regarding any investigation, notification or Recall without the prior written consent of Chocolette Distribution LLC
- Supplier’s Representations and Warranties. Supplier represents, warrants, and covenants to Chocolette Distribution LLC that all Goods and Services: (i) are free from defects; (ii) are merchantable and fit for their intended purpose; (iii) conform to the requirements of the Agreement, and, particularly, the Specifications; (iv) are free and clear of all liens, claims or encumbrances; (v) comply with all applicable laws, ordinances, regulations, rules or governmental orders; and (vi) do not infringe or violate the intellectual property rights of any third parties. Supplier further warrants that all Services hereunder shall be performed by personnel with the experience, training, skill and other qualifications needed to perform the Services, and will be provided in a timely, professional and workmanlike manner, in accordance with the highest industry standards. Supplier further represents and warrants that (i) Supplier has all necessary licenses, permits, rights, powers, and authority to enter into the Agreement and perform its obligations pursuant to the Agreement; and (ii) the execution and performance of the Agreement will not result in the breach by Supplier of any agreement, covenant, court order, judgment or decree to which Supplier is a party or by which it is bound. Unless otherwise provided in a Purchase Order, all warranties contained in the Agreement are in addition to all other warranties, express, implied or statutory, applicable to Supplier or the Goods or Services.
- U.S. Government Sales. The United States Government may be a customer for the Products and/or Services. To the extent applicable, the Supplier and Chocolette Distribution LLC shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a), as may be amended. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability.
- Indemnification. Supplier shall indemnify, defend, and hold harmless Chocolette Distribution LLC and its Affiliates and their directors, officers, managers, employees, representatives, agents, successors and assigns (“Chocolette Distribution LLC Indemnified Parties“) from and against any and all demands, allegations, claims, liability, third party actions, investigations, suits, loss or expense, including, without limitation, reasonable attorneys’ fees and cost of litigation (“Claims“), arising out of or related to (i) the actual or alleged infringement, violation, or misappropriation of a third party’s intellectual property rights by Supplier or the Goods or Services (excluding claims of infringement arising from Chocolette Distribution LLC intellectual property); (ii) Supplier’s breach of the Agreement including, in particular, Supplier’s covenants, representations, and warranties; (iii) any claims of personal injury, death, or property damage caused by the Goods or arising out of the Supplier’s performance (or non-performance) of the Services; (iv) Supplier’s negligence or willful misconduct; or (v) any disputes between Supplier and any supplier, vendor, or service provider of Supplier. In addition, Supplier shall indemnify, defend, and hold harmless the Chocolette Distribution LLC Indemnified Parties from and against any and all Claims arising out of or related to Recalls of the Goods resulting from Supplier’s breach of the Agreement, Supplier’s violation of laws, or Supplier’s negligence or willful misconduct. The obligation to pay attorneys’ fees in this indemnity provision includes all attorneys’ fees incurred in defending any claim or establishing the right to indemnity under the Agreement. All indemnification obligations survive the termination of the Agreement.
- Rights and Remedies. In addition to such other rights or remedies that Chocolette Distribution LLC may have hereunder or by applicable law, if Supplier breaches any term of the Agreement, Chocolette Distribution LLC will have the right to: (i) terminate the Agreement and/or any Purchase Order; (ii) demand the immediate return of all confidential information; (iii) recover its damages incurred by reason of such breach, including, without limitation, incidental and consequential damages, and its attorneys’ fees and costs of litigation; (iv) obtain injunctive relief to prevent such breach or to otherwise enforce the terms of the Agreement; and (v) pursue any other remedy available at law or in equity. All rights and remedies of either party hereto are cumulative of each other, and the exercise of one or more rights or remedies will not prejudice or impair the concurrent or subsequent exercise of other rights or remedies.
- Miscellaneous. Chocolette Distribution LLC objects to any inconsistent, additional or different terms in any prior or subsequent invoice, acknowledgment, confirmation or other document. Trade custom, trade usage and past performance are superseded by the Agreement and may not be used to interpret the Agreement. Chocolette Distribution LLC ‘s waiver of any term, condition or provision of the Agreement shall not be construed to be a waiver of any other term, condition or provision nor shall such waiver be deemed a waiver of a subsequent breach of the same term, condition or provision, nor shall it be deemed a waiver of any provision in any subsequent Purchase Order or other agreement between the parties. In case of discrepancies between these Terms (as amended, revised, and updated from time to time) and a Purchase Order, the Purchase Order shall prevail. Any provision of the Agreement which imposes upon a party an obligation after termination or expiration of the Agreement will survive the termination or expiration of the Agreement or the completion or fulfillment of any Purchase Order, and shall be binding upon such party, its successors and assigns.
- Confidential Information. All descriptions, formulae, plans, Specifications, and all other information given to Supplier by Chocolette Distribution LLC in connection with performance of the Agreement involve valuable property rights of Chocolette Distribution LLC and shall, any existing non-disclosure covenants and/agreements which may be in place between Chocolette Distribution LLC and Supplier notwithstanding, which shall remain unaffected by these Terms, be held confidential by Supplier, shall remain the sole property of Chocolette Distribution LLC , and shall not be used by Supplier for any purpose other than that for which it has been supplied or prepared. Supplier shall not use for publicity or other purposes any photographs, drawings or other materials submitted in connection with the performance of the Agreement without obtaining the prior written consent of Chocolette Distribution LLC and at Chocolette Distribution LLC ‘s request, Supplier shall return all materials provided by Chocolette Distribution LLC.
- Governing Law and Dispute Resolution. If any of the provisions of the Agreement are held by any court to be invalid or unenforceable, the provision will be given effect to the greatest extent legally permissible, and such invalidity or unenforceability will not affect the enforceability of the remainder of the Agreement. Chocolette Distribution LLC shall have the right to amend, revise and update these Terms at any time. Except as amended in accordance with the immediately preceding sentence, the Agreement, including, in particular, the Purchase Order and the Specifications, constitutes the entire and complete agreement between the parties and may not be altered or modified except with Chocolette Distribution LLC ‘s prior written consent. The Agreement is governed by and interpreted under the laws of the State of New York without reference to conflicts of law principles and the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) are expressly excluded. The parties agree to the exclusive jurisdiction and venue of the courts located in Stratham, New Hampshire. In the event of any dispute regarding the interpretation or enforcement of the Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees and cost of litigation.
Rider for PO:
THIS PURCHASE ORDER IS EXPRESSLY AND EXCLUSIVELY GOVERNED BY THE ATTACHED TERMS AND CONDITIONS OF PURCHASING.