Purchase Order Terms
This Covers Purchases made by Heritage Grocers Group, LLC on behalf of itself and its subsidiaries (“HGG”)
1. Each and every HGG Purchase Order (“PO”) shall constitute an offer only and it is not a confirmation or acceptance of any prior or contemporaneous offer, proposal, or agreement. Acceptance of HGG’s PO is expressly limited to the terms set forth therein. HGG shall only be bound by the terms of its PO. Acceptance of HGG’s PO is expressly limited to its terms (including the terms herein), which may not be contradicted, added to, or varied in any way or by any manner or method. Acceptance of HGG’s PO as written and delivered by HGG (including the terms herein), and any agreement formed by HGG’s PO, may not be conditioned upon or contain any different or additional terms, whether contained in a verbal communication, an invoice, confirmation, e-mail, website, letter, or other writing, posting, conduct, course of dealing, custom, method, trade usage, or otherwise. Notice is hereby given that any terms in addition to or different from the terms of HGG’s PO are by this notification expressly objected to and expressly rejected. Shipment or other arrangements for delivery of the product(s) identified in the PO by the Seller shall constitute an acceptance of HGG’s PO on its terms, as shall the execution (signing) of the PO by the Seller. The contract formed by HGG’s PO, if accepted, is intended as a final, complete, and exclusive statement of its terms and conditions, and cannot be varied or changed, except by a future writing signed by a duly authorized agent by all parties to the contract. No employee or representative of HGG, except a Corporate Officer of HGG, is authorized to waive, delete, change, alter, excuse or otherwise modify or waive any of these “Purchase Order Terms,” and then only in a signed writing. Any attempt by any other employee or representative to do so shall be null and void.
2. Time is of the essence in the contract formed by the acceptance of HGG’s PO. If delivery of items ordered therein is not completed by the time set forth in HGG’s PO, or within thirty (30) days, whichever is less, HGG reserves the right (but not the obligation), without liability, in addition to all of its other rights and remedies, to terminate such contract as to items not yet delivered, or in its entirety.
3. All products shipped for delivery must be of equal or better quality than the quality of the sample(s) previously provided. All product expiration dates, code dates, and production dates must be noted on the invoice and packing slip(s). The invoice and packing slip(s) must identify the expiration date of all products shipped.
4. Each case shall contain products of the same manufacture and/or expiration date.
5. For deliveries to HGG’s warehouse or distribution center, shipments or deliveries must adhere to Exhibit A. The driver must unload the truck, separate and palletize product, even if by hand, and attach pallet tags. All products that arrive with more than one code date, expiration date, production date, size, color, flavor, scent, case assortment, inner pack, style, formula or consistency must be listed separately. If any products are delivered with a case pack different from that which is listed on the PO, all differences must be noted at the time the delivery appointment is made. HGG reserves right to refuse unloading of trucks until HGG receives a complete and itemized packing slip for each delivery consistent with this section. Seller has full responsibility for any delays caused thereby. HGG is not responsible for any charges associated with shipments made without a delivery appointment or for deliveries made other than at the scheduled date or pursuant to Exhibit A.
6. For deliveries to any specific HGG store location(s), shipments/deliveries must adhere to pre-determined and mutually agreed upon terms including, but not limited to, orders, units and delivery windows, subject to the relevant HGG store location’s receiving hours. Deliveries should not be made to specific HGG store locations without HGG’s prior approval and confirmation details. HGG is not responsible for any charges associated with shipments made without a delivery confirmation details or for deliveries made other than at the scheduled date.
7. If HGG does not receive all of the product ordered under the PO within the specified date, HGG has the option but not the obligation to cancel all or any part of the PO and/or return to Seller at Seller’ s expense, or make available for pick-up by Seller at Seller’ s expense, all or any part of the product identified in the PO. If any of the conditions of the PO are not complied with, HGG has the option, in addition to any other remedies, to cancel all or any other parts thereof and to return or make available for pickup all or any part thereof at Seller’s full expense.
8. Any and all product sent in excess of those ordered by HGG in its PO may be retained or, at HGG’s option, returned to Seller at Seller’ s expense, or made available for pick-up by Seller at Seller’ s expense.
9. HGG reserves the right to deduct excess transportation charges incorrectly calculated by the Seller.
10. Seller shall bear the risk of loss (and time periods for payment terms do not commence) until and unless shipment is received in full and in equal or better condition than the sample at HGG’s warehouse.
11. Seller is responsible for the payment of transportation charges regardless of whether or where “FOB” is identified in HGG’s PO or in any other document, unless expressly stated otherwise in the PO.
12. Terms are based upon receipt of product or invoice date whichever is later.
13. By accepting HGG’s PO and by shipping the products identified in its PO, Seller hereby represents and warrants that the products to be furnished hereunder are and will be: (1) in conformity with all required rules, laws, and regulations, (2) produced, labeled, and identified in compliance with all applicable federal, state, and local laws, rules, and regulations including, without limitation, all applicable rules and requirements of the Consumer Products Safety Commission (CPSC), Environmental Protection Agency (EPA), Food & Drug Administration (FDA), State of California Department of Health, county health departments with jurisdiction over HGG, the Bureau of Weights and Measures, and any other federal, state, county, city or other government entity or regulatory agency with jurisdiction over the parties and/or the subject matter of these Purchase Order Terms, (3) free and clear from any and all liens, rights, or claims of any third parties, with clear title passing to HGG at the time of delivery, (4) safe, defect free, and fit for their stated and intended purpose, and (5) not infringing on any patent, trademark, copyright, or other proprietary rights of any third party. Failure to adhere to this Section shall be a material breach of this PO Terms, and Seller shall be responsible for indemnifying HGG pursuant to Section 14, below.
14. Seller hereby agrees to indemnify and defend (with counsel to be selected by HGG in HGG’s sole and absolute discretion) and hold HGG, its affiliates, subsidiaries and related companies harmless, at Seller’ s sole cost and expense, from and against any and all claims, liens, causes of action, losses, liabilities, damages, costs, and expenses, including attorney’ s fees, if any claim or action is made or brought or any assertion is made that alleges a breach of, noncompliance with, or variance from any of the terms, representations, or warranties of the PO or the terms contained herein, as well as in the case of any other claim or action against HGG asserting that the product (including product packaging and labeling) purchased under the PO is defective, harmful, dangerous, not compliant with any law (further outlined in Section 13, herein), mislabeled or not appropriately or fully labeled, infringing on the intellectual property rights of another, or otherwise giving rise to or resulting in a legal or equitable suit, action, or other claim or right against HGG, including but not limited to claims for injuries or death to persons or damage to real or personal property.
15. The contract to be formed by the acceptance of HGG’s PO shall be governed by the State of California, regardless of any claims to conflicts of law principles. Any action arising out of or relating to such contract or PO shall be commenced and maintained in the State of California, in the venue in San Bernardino County.
16. Seller represents that all items purchased are sold at a price not less favorable than currently offered to any other purchaser.
17. All products are subject to inspection and approval by HGG.
18. Seller warrants that all products sold or shipped pursuant to HGG’s PO are not subject to any liens, recall (voluntary or involuntary), product liability claim, or other such matter. Failure to comply with this Section is a material breach and, further, subjects Seller to indemnity obligations further described in Section 14.
19. All products with pre-prices, cents off, free sample, or any pricing information must be identified on PO.
20. All pallets shipped with product are included in the price of the product and become the property of HGG.
21. HGG has the right to advertise any product associated with the PO unless noted therein to the contrary on the PO, and Seller warrants that HGG has the right and authorization to advertise any such product.
22. “Freight Prepaid” as used in HGG’s PO means that Seller agrees to pay all costs associated with any shipment and/or delivery and that HGG is in no way responsible for any payment or reimbursement of such costs, unless expressly stated otherwise.
23. The price and quantity set forth in HGG’s PO are confidential. No such information may be used by Seller for any reason except that which is absolutely necessary for processing the shipment and payment of the order. Confidentiality also applies to the existence of the PO and its terms. Seller warrants that it will not convey or allow to be conveyed any information regarding the PO, including, but not limited to, items purchased, quantity, price, profit, and terms. None of these matters may be disclosed by Seller either publicly or to any third party, nor to any non-essential person working for Seller.
24. Wherever the term HGG is used herein, it shall, at HGG option, apply to HGG or HGG’s assigns, delegates, affiliates or subsidiaries.
25. Any and all taxes, duties, tariffs, surcharges, levies, deposits (including redemption value, where applicable), fees and any other such charges are included in the product purchase price unless indicated therein to the contrary on HGG’s PO.
26. If an account is to be factored, HGG must be notified by Seller before acceptance of HGG’s PO, and HGG reserves the right to remit payment either to Seller or to Seller’ s factor, at HGG’s election.
27. Seller agrees, at its sole cost and expense, to obtain and maintain insurance relative to any item(s) sold to HGG under the PO, naming HGG as an additional insured with respect to the products(s) subject to the PO. HGG shall not be required to remit payment until such proof of insurance is supplied. No discount period shall begin to run, no penalty or delinquency period shall begin to run, and the time after which any late fee or other delinquency fee may be imposed shall not begin to run until Seller delivers to HGG such proof of adequate insurance. If such proof of adequate insurance is not provided, HGG may, at its option, either (a) retain the product and take a 10% discount on the amount of its PO, or (b) advise the Seller that the products are available for pick-up at HGG warehouse(s) and or retail store(s), at Seller’s expense, and with a 5% handling charge due from Seller to HGG. Seller agrees to obtain and maintain the following:
A. Commercial General Liability insurance including Errors and Omission with coverage limits of at least one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000) in the aggregate. Should the GL policy contain an exclusion for professional liability such coverage shall be provided for separately with limits of not less than one million dollars ($1,000,000) with a retroactive date that predates this PO.
B. Workers Compensation and Employer’s Liability insurance of at least $1,000,000.00 including Waiver of Subrogation in favor of HGG for Workers Compensation and Alternate Employer Endorsement for Employer Liability insurance.
C. Commercial Auto Liability insurance with limits of not less than one million dollars ($1,000,000) covering at a minimum owned, hired and non-owned automobiles.
D. Umbrella coverage of at least three million dollars ($3,000,000.00) such coverage shall include the above required policies in the schedule of underlying policies with the exception of any standalone professional liability policy.
E. Commercial Crime coverage in the amount of not less than one million dollars ($1,000,000) including but not limited to employee dishonesty and theft.
F. Employment Practices Liability coverage in the amount of not less than one million dollars ($1,000,000) with a retroactive date that predates this PO.
G. Certificates of Insurance: Seller shall provide HGG with certificates of insurance evidencing the above coverages. As it relates to (A)-(C), above, policies shall be endorsed to provide HGG not less than thirty (30) days prior written notice of any cancellation. The policies required in (A)-(C), above, shall be endorsed to name Heritage Grocers Group, LLC, its parent, and any subsidiary, related and affiliated companies of each, and the officers, directors, shareholders, employees, agents and assigns of each as additional insured such coverage grant shall be written on a primary and non-contributory basis. If the insurance policies described in the certificates are canceled or reduced for any reason, Seller agrees to procure new policies and provide HGG with new certificates within ten (10) days or HGG shall have the right to immediately terminate this PO without penalty, liability or expense. All insurance shall be with companies and on forms acceptable to HGG. Additionally, all insurance shall be written by companies with an AM BEST’s Guide rating of A- or better. HGG’s failure to request, review or object to the terms of such certificates or insurance shall not be deemed a waiver of Seller’s obligations or the rights of HGG. The minimum limits of the insurance required in this Section 27 shall in no way limit or diminish Seller’s liability under other provisions of this PO. Waiver of Subrogation: Any and all insurance requirements as required in (A)-(C), above, shall include a clause or endorsement containing a waiver of subrogation in favor of HGG. Any insurance maintained by HGG is for the exclusive benefit of HGG and no other entity.
28. It is HGG policy not to purchase products manufactured using exploitive or unfair labor practices, such as forced labor, abusive labor practices, or child labor. Neither will HGG buy product made as a result of any practices that are illegal in the place at which the products being offered are manufactured or distributed. By signing or shipping under HGG’s PO, Seller attests to the fact that after a diligent inquiry, Seller has ascertained that no product that is the subject matter of this PO has been manufactured or distributed using any such forced, involuntary, exploitive, or unfair labor practices.
29. Seller shall not assign this PO or any benefits arising from this PO without HGG’s prior written consent and, unless otherwise agreed upon in writing, the rights of any assignee shall be subject to all set-offs, counterclaims, and other comparable rights arising hereunder. Supplier shall not, except in the case of raw materials, or standard commercial goods, or except as otherwise agreed in writing by HGG, delegate or subcontract the work on any item of material or service to be delivered or performed under this PO.
30. All terms set forth herein are incorporated by referenced into each and every PO issued by HGG. 31. All references to “HGG” and “Hispanic Food Holdings, LLC” shall mean to include Heritage Grocers Group, LLC, and each of its affiliates and subsidiaries. As used herein, the term “subsidiary” shall mean any corporation or other business entity controlled directly or indirectly by HGG or its affiliate(s) or other business entity in question, and the term “affiliate” shall mean and include any corporation or other business entity directly or indirectly controlling, controlled by or under common control with HGG or other business entity in question.