TERMS AND CONDITIONS OF PURCHASE
1. GENERAL – These Terms and Conditions of Purchase (“Terms”) shall apply to and govern the purchase of the goods (“Goods”) and services (“Services”) Sartori purchases from the seller (“Seller”) named in the purchase order (“Purchase Order”). The Purchase Order and these Terms, shall constitute the entire agreement between Sartori and Seller (collectively, “Contract”), and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Seller’s general terms and conditions of sale regardless of whether or when Seller submitted its sales confirmation of such terms. This Contract expressly limits Seller’s acceptance to the terms of this Contract. Fulfillment of the Purchase Order constitutes acceptance of these Terms. Notwithstanding anything to the contrary, if a written contract signed by both parties exists covering the sale of the Goods and Services covered by these Terms, the terms and conditions of such contract shall prevail to the extent they are inconsistent with these Terms.
2. PRICE – The price of the Goods and/or Services is the price stated in the Purchase Order (“Price”). If no price is included in the Purchase Order, the Price shall be the price set out in Seller’s published price list in force as of the date of the Purchase Order. Unless otherwise specified in the Purchase Order, the Price includes all packaging, transportation costs to the Delivery Point, insurance, customs duties, and fees and applicable taxes, including, but not limited to, all sales, use, or excise taxes. No increase in the Price is effective, whether due to increased material, labor, or transportation costs or otherwise, without Sartori’s prior written consent.
3. PAYMENT – Unless otherwise specified herein, payment is due only after final completion, delivery, and acceptance by Sartori. Seller shall issue an invoice to Sartori on or any time after delivery is completed and only in accordance with these Terms. Sartori shall pay all properly invoiced amounts due to Seller within sixty (60) days after Sartori’s receipt of such invoice, except for any amounts Sartori disputes in good faith. Without prejudice to any other right or remedy it may have, Sartori reserves the right to set off at any time any amount Seller owes Sartori against any amount Sartori owes to Seller.
4. DELIVERY; GOODS – Seller shall deliver the Goods in quantities and on the date(s) specified in the Purchase Order or as otherwise agreed in writing by the parties (“Delivery Date”). If Seller fails to deliver the Goods in full on the Delivery Date, Sartori may terminate this Agreement immediately by providing written notice to Seller and Seller shall indemnify Sartori against all losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Goods on the Delivery Date. Seller shall deliver all Goods to the address specified in the Purchase Order (“Delivery Point”) during Sartori’s normal business hours or as otherwise instructed by Sartori. Seller shall pack all goods for shipment according to Sartori’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in an undamaged condition. Seller must provide Sartori prior written notice if it requires Sartori to return any packaging material. Any return of such packaging material shall be made at Seller’ risk of loss and expense.
5. DELIVERY; SERVICES – Seller shall provide the Services to Sartori as described and according to the schedule set forth in the Purchase Order and the terms and conditions set forth in these Terms. Seller acknowledges that time is of the essence with respect to Seller’s obligations and the timely delivery of Services, including all performance dates, timetables, project milestones, and other requirements in this Contract.
6. INSPECTION AND REJECTION OF NONCONFORMING GOODS – Sartori has the right to inspect the Goods on or after the Delivery Date. Sartori, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Sartori reject any portion of the Goods, Sartori has the right, effective upon written notice to Seller to: (i) rescind this Contract in its entirety; (ii) accept the Goods at a reasonably reduced price; or (iii) reject the Goods and require replacement of the rejected Goods. If Sartori requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming or defective Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Sartori may replace then with goods from a third party and charge Seller the cost thereof and terminate this Contract for cause pursuant to Section 14. Any inspection or other action by Sartori shall not reduce or otherwise affect Seller’s obligations under the Contract, and Sartori shall have the right to conduct further inspections after Seller has carried out its remedial actions.
7. SELLER’S OBLIGATIONS REGARDING SERVICES – Seller shall: (i) before the date on which the Services are to start, obtain, and at all times during the Term of this Contract, maintain all necessary licenses and consents and comply with all relevant laws applicable to the provision of the Services; (ii) comply with all rules, regulations, and policies of Sartori, including security procedures concerning systems and data and remote access thereto, building security procedures, and general health and safety practices and procedures; (iii) maintain complete and accurate records relating to the provision of the Services under this Contract, including records of the time spent and materials used by Seller in providing the Services in such form as Sartori shall approve; (iv) obtain Sartori’s consent, which shall not be unreasonably withheld, conditioned, or delayed, before entering into agreements with or otherwise engaging any person or entity, including all of Seller’s subcontractors and affiliates, other than Seller’s employees, to provide any Services to Sartori (each such approved subcontractor or other third party, a “Permitted Subcontractor”); (v) require each Permitted Subcontractor to be bound in writing by the confidentiality provisions of this Contract; (vi) ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on Seller’s behalf, are properly licensed, certified, or accredited as required by applicable law and are suitably skilled, experienced, and qualified to perform the Services; (vii) ensure that all of its equipment used in the provision of the Services is in good working order and suitable for the purposes for which it is used, and conforms to all relevant legal standards and standards specified by Sartori; and (viii) keep and maintain any Sartori equipment in its possession in good working order and shall not dispose of or use such equipment other than in accordance with Sartori’s written instructions or authorization. With respect to subpart (iv) above, Sartori’s approval shall not relieve Seller of its obligations under this Contract, and Seller shall remain fully responsible for the performance of each such Permitted Subcontractor and its employees and for their compliance with all of the terms and conditions of this Contract as if they were Seller’s own employees. Nothing contained in this Contract shall create any contractual relationship between Sartori and any Seller subcontractor or supplier.
8. CHANGE ORDERS – Sartori may at any time, by written instructions and/or drawings issued to Seller (each a “Change Order”), order changes to the Services. Seller shall within the number of days specified in such Change Order submit to Sartori a firm cost proposal for the Change Order. If Sartori accepts such cost proposal, Seller shall proceed with the changed services subject to the cost proposal and the terms and conditions of this Contract. Seller acknowledges that a Change Order may or may not entitle Seller to an adjustment in Seller’s compensation or the performance deadlines under this Contract.
9. INSURANCE; WAIVER OF SUBROGATION – During the term of this Contract, Seller shall, at its own expense, maintain and carry insurance in full force and effect, which includes, but is not limited to, (i) commercial general liability insurance written on an occurrence form, including blanket contractual liability coverage, foreign general liability coverage, and products liability including a “terrorism” rider, against claims for bodily injury, death and property damage, affording minimum single limit protection of One Million Dollars ($1,000,000.00) per occurrence, and Two Million Dollars ($2,000,000.00) in the aggregate, with respect to personal injury or death and property damage; (ii) automobile liability insurance against claims for bodily injury, death and property damage, affording minimum single limit protection of One Million Dollars ($1,000,000.00) with respect to personal injury or death and property damage occurring from one occurrence; (iii) worker’s compensation insurance in accordance with statutory requirements and employer’s liability insurance against claims for bodily injury and death, affording minimum single limit protection of One Million Dollars ($1,000,000.00) resulting from one occurrence; (iv) products accidental contamination and malicious tampering insurance (Product Recall), providing coverage for the expenses incurred in removing contaminated product from the market, and for the expenses incurred in transporting, storing, disposing of, and replacing said product, for the resulting loss of revenue that may incur, and finally for the costs incurred in rehabilitating the brand, with a minimum insurance of Five Million Dollars ($5,000,000), which shall remain in effect for one (1) year after termination of this Contract; and (v) excess or umbrella liability insurance with limits of at least Five Million Dollars ($5,000,000) per occurrence for bodily injury or property damage in excess of the limits afforded for general liability and employer’s liability provided above. Seller’s insurance shall name Sartori as an additional insured under subsections (i) and (ii), above. Seller shall provide Sartori a certificate of insurance naming Sartori as a certificate holder under such insurance policy. Seller shall purchase all such insurance from a reputable, duly qualified insurance company(ies), with at least an A.M. Best Rating of A-, FCS VIII. Seller shall require its insurer to waive all rights of subrogation against Sartori’s insurers and Sartori under subsections (i) - (iii), above, and Seller shall deliver evidence thereof to Sartori.
10. WARRANTY – Seller represents and warrants to Sartori that all Goods and Services: (i) meet all applicable international, federal, state and/or local laws or regulatory requirements, including without limitation the North American Free Trade Agreement (“NAFTA”), Federal Food, Drug, and Cosmetic Act (“FFDCA”), the Consumer Product Safety Act, the Hazardous Substances Labeling Act, the USDA National Organic Program (if the Goods are labeled organic) as any of the foregoing may be amended from time to time, to the extent applicable to the manufacture or supply of Seller’s Goods; (ii) with respect to the food product and ingredients portion of the Goods, are safe for human consumption; (iii) are in compliance with all applicable laws, rules and regulations; (iv) are not adulterated or misbranded within the meaning of the FFDCA; (v) may be, under the provisions of the FFDCA, introduced into interstate commerce; (vi) are not in violation of being adulterated, mislabeled, or misbranded under all applicable laws; (vii) are free from any defects in workmanship, material, and design; (viii) conform to applicable specifications, drawings, designs, samples, and other requirements specified by Sartori; (ix) are fit for their intended purposes and operate as intended; (x) have not been subject to a recall order or request by any governmental body with respect to any Goods previously manufactured by Seller; (xi) are not reasonably likely to be subject to a recall and no such duty to warn consumers of a defect exists; (xii) have no latent or overt processing or other defect; (xiii) are not liable for returns; (xiv) are merchantable; (xv) are free and clear of all liens, security interests, or other encumbrances; and (xvi) do not infringe or misappropriate any third party’s patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance, or payment of or for the Goods or Services by Sartori. Seller warrants to Sartori that it shall perform the Services using personnel of required skill, experience, and qualifications in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Contract. The warranties set forth in this Section 10 are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Sartori’s discovery of the non-compliance of the Goods or Services with the foregoing warranties. If Sartori gives Seller notice of noncompliance pursuant to this Section 10, Seller shall, at its own cost and expenses, promptly, (1) replace or repair the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Sartori, and, if applicable, (2) repair or re-perform the applicable Services.
11. LIMITATION OF LIABILITY – Nothing in this Contract shall exclude or limit (i) Seller’s liability under Sections 10, 12, or 15, or (ii) Seller’s liability for fraud, personal injury, or death caused by its negligence or willful misconduct.
12. INDEMNIFICATION – Seller shall defend and indemnify Sartori and its officers, directors, employees, agents, representatives, successors and assigns (collectively, “Indemnitees”) from and against any claim, loss, injury, death, liability, damage, deficiency, suit, action, demand, judgment, penalty, interest, award, fine, cost or expense (including, but not limited to, legal fees and other professional fees and costs, and the cost of enforcing any right to indemnification under this Contract and the cost of pursuing any insurance providers (collectively, “Losses”)) arising out of or occurring in connection with: (i) the Goods and Services purchased from Seller or Seller’s negligence; (ii) any breach or nonfulfillment of the Terms; (iii) any injury, including death, or damage to any person or property or any other Losses resulting from or arising out of the performance of this Contract; and (iv) any other act or omission by Seller in connection with this Contract. Seller shall not enter into any settlement without Sartori’s prior written consent. This indemnity includes all Losses arising out of or in connection with any claim that Sartori or the Indemnitees’ use or possession of the Goods or use of the Services infringes or misappropriates the patent, copyright, trade secret, or other intellectual property right of any third party.
13. LEGAL COMPLIANCE – Seller shall comply with all applicable laws, regulations, and ordinances. Seller shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Contract.
14. TERMINATION – In addition to any remedies that may be provided under these Terms, Sartori may terminate this Contract with immediate effect upon written notice to Seller, either before or after acceptance of the Goods or Seller’s delivery of the Services, if Seller has not performed or complied with any of these Terms, in whole or in part. If Seller becomes insolvent, files a petition or bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors, then Sartori may terminate this Agreement upon written notice to Seller. If Sartori terminates this Contract for any reason, Seller’s sole and exclusive remedy is payment for the Goods received and accepted and Services accepted by Sartori before the termination. Sartori’s liability to Seller, with respect to termination of this Contract, shall in no event exceed the Purchase Order price as determined at the time of the termination or breach.
15. CONFIDENTIAL INFORMATION – All non-public, confidential, or proprietary information of Sartori (including without limitation any information relating to its products, recipes, formulae, specifications, technology, designs, processes, machinery, equipment, plans, policies, procedures, employees, legal and regulatory affairs, assets, discoveries, know-how, trademarks, patents, copyrights, trade secrets, prices, marketing, expenses, business plans, financial statements and data, customer and supplier lists, and relationships with third parties, other information, materials, documents, and data related to any of the foregoing, in each case whether or not patentable or susceptible to any other form of legal protection) disclosed to Seller, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential”, is confidential, solely for the use of performing this Contract, and may not be disclosed or copied unless authorized by Sartori. Sartori shall be entitled to seek injunctive relief for any violation of this Section. Seller’s obligations pursuant to this Section shall not apply to information that Seller demonstrates is: (i) is publicly available or becomes publicly available through no action or fault of Seller (ii) was already known to Seller prior to being disclosed or provided by Sartori, provided that the source of such information was not obligated by an existing duty of confidentiality with respect to such information; or (iii) was or is legally obtained by Seller from a source that is not obligated by an existing duty of confidentiality with respect to such information. Seller’s obligations set forth in this Section shall survive the expiration or earlier termination of the Contract.
16. FORCE MAJEURE - Sartori shall not be liable to Seller or third parties, nor be deemed to have defaulted under or breached the Contract, for delay in, or failure of, performance caused by acts or circumstances beyond its direct control, including but not limited to acts of God, fire, flood, pandemics and epidemics; explosion, war, invasion, hostilities; governmental order, law, or action; terrorist threats or acts, riot or other civil unrest; embargoes or blockades in effect on or after the date of this Contract; national or regional emergency; accident, labor disputes, strikes, non-performance by a third party; shortage or inability to obtain materials, equipment, power or transportation. If delay is caused by any such circumstances, Sartori shall have the option to terminate this Contract and/or extend any date upon which performance hereunder is due, without liability to Seller.
17. NOTICES – All notices shall be in writing and shall be deemed sufficiently given and received in all respects when hand delivered, when sent by facsimile or email, when sent by a reputable overnight courier service, or three (3) days after being deposited in the United States mail, return receipt requested, addressed to Sartori or Seller, as the case may be, at the address set forth in the Contract (or to such other address as may be designated in a writing by notice duly given or, in the case of Sartori, to 107 N. Pleasant View Road, Plymouth, Wisconsin 53703).
18. ASSIGNMENT – Seller may not assign any of its rights, duties, or obligations under the Contract without Sartori’s prior written consent. Any attempted assignment without such consent, even if by operation of law, shall be void. No assignment or delegation shall relive Seller of any of its obligations hereunder. Sartori may at any time assign or transfer any or all of its rights or obligations under this Contract without Seller’s prior written consent to any affiliate or to any person acquiring all or substantially all of Sartori’s assets.
19. RELATIONSHIP OF THE PARTIES; NO THIRD-PARTY BENEFICIARIES –
Nothing contained in this Contract shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. This Contract is for the sole benefit of the parties hereto and their respective successors and permitted assigns. Nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
20. GOVERNING LAW; VENUE – All transactions between Sartori and Seller shall be governed by and construed in accordance with the laws of the State of Wisconsin, without regard to any conflicts of law principles. Any action or proceeding involving any dispute relating to or arising from the Contract shall be commenced exclusively in the federal or state courts located within Wisconsin, and Seller consents to the exclusive jurisdiction of such courts and waives any objection to such jurisdiction. Without limiting any of Sartori’s rights hereunder, any action or proceeding against Sartori relating to or arising from the Contract must be commenced within one (1) year after the cause of action has accrued.
21. WAIVER; SEVERABILITY – The failure of Sartori, at any time, to assert any right or require performance of any obligation contained in this Contract will not affect Sartori’s right to assert such right or to require such performance at any time thereafter; nor shall the waiver be construed in any way as a waiver of any future breach of the provision so waived or waiver of the provision itself. The Contract confers no rights on third parties. In the event that any provision of this Contract is found invalid or unenforceable, whether in whole or in part, for any reason, such provision shall be changed and interpreted so as to best accomplish the objectives of such provisions within the limits of applicable law.
22. AMENDMENT – The Contract may only be amended by a written agreement executed by Sartori and Seller.
23. AFFIRMATIVE ACTION – Seller will comply with all provisions of Executive Order 11246, as amended, the provisions found in C.F.R. § 60-740 (Disabled Persons) and § 60-250 (Veterans), and all the Secretary of Labor’s relevant rules, regulations, and orders.