STANDARD TERMS AND CONDITIONS OF PURCHASE (these “Conditions”)
1. Interpretation, Definitions and formation of Contract
1.1 In these Conditions:
“Buyer” means Johnson Breeders, Inc., with its principal business address at 3425 US Hwy 117 South Rose Hill, NC 28458, or its Affiliate Raeford Farms of Louisiana, LLC or Columbia Farms of Georgia, Inc. as the case might be.
“Affiliate” means any company or other entity which controls, is controlled by or is under common control with a party, where “control” means the direct or indirect ownership of more than 50% of the issued shares or other voting rights of such party or the power to direct or cause the direction of the management and policies of such party.
“Contract” means the contract between Buyer and Seller for the purchase and sale of Goods and/or Services and: (i) comprises a Purchase Order, these Conditions, and any other documents (e.g., service level agreements and work orders) signed and delivered to Seller by Buyer in relation to Goods and Services; and (ii) is formed on the earlier of Seller’s acceptance of such Purchase Order in accordance with the terms and conditions set forth herein and Seller doing an act consistent with fulfilling such Purchase Order.
“Deliverables” in the case of Services, means all documents, products and materials developed by Seller or its agents, subcontractors, consultants, and employees in relation to the Purchase Order.
“Goods” and “Services,” respectively, means all goods and all services (as applicable) specified in the Contract.
“Government Official” includes any person employed by, or acting on behalf of, a government or government-controlled entity.
“Purchase Order” means a written offer by Buyer to purchase Goods and/or Services in accordance with these Conditions.
“Seller” means the supplier named in the Purchase Order.
Unless expressly agreed in writing by Buyer’s authorized representative, these Conditions apply to all purchases and sales of Good or Services between the parties to the exclusion of any terms that Seller seeks to impose or incorporate, whether appearing on any order confirmation, invoice, or delivery note relating to Goods and/or Services, or any other terms implied by trade, custom, practice or course of dealing. Buyer objects to any terms additional or different than those terms set forth in the Contract, and all such terms are considered null, void, and of no force of legal effect. All order confirmations or similar documents submitted by Seller in connection with Goods or Services will be deemed an acceptance by Seller to sell Goods or Services pursuant to these Conditions. Seller’s commencement of performance and/or delivery of Goods or Services will be deemed conclusive evidence of Seller’s acceptance of these Conditions. Seller’s failure to accept or reject in writing a Purchase Order within [five (5) days] of receipt after the receipt thereof will be deemed an acceptance thereof pursuant to these Conditions. In the event of a conflict between these Conditions and any Purchase Order, these Conditions will prevail, except as set forth specifically in a Purchase Order executed by Buyer’s authorized representative.
2. Delivery
Goods, Deliverables and/or Services will be delivered and performed as specified in the Contract. Time is of the essence. If Goods, Deliverables and/or Services are not so delivered or performed on or before the due date, or if it becomes clear that Goods, Deliverables and/or Services cannot be delivered on or before that date, Buyer may: (i) terminate the Contract, in whole or in part, without prejudice to any of its other rights under the Contract and without any liability to Seller; and (ii) procure upon such terms as Buyer deem appropriate, goods, deliverables, or services substantially similar to the Goods, Deliverables and/or Services not so delivered or performed, in which case, Seller will continue performance of the Contract to the extent not terminated and will be liable to Buyer for any excess costs for such similar goods, deliverables, or services and any reasonable expenses incurred in connection therewith.
Unless otherwise specified in the Contract, Seller shall pay all shipping, packing, crating and cartage charges associated with the delivery of Goods, Deliverables and/or Services. Buyer shall, on reasonable notice, allow Seller such access to its premises and shall provide such facilities as Seller may reasonably require in order to deliver Goods and/or perform Services. Seller shall ensure that, to the extent Services are to be performed at Buyer’s premises, Seller’s employees and representatives observe all health and safety, confidentiality, security and other requirements which Buyer may reasonably impose. The cost of any necessary safety induction training will be borne by Seller.
3. Quality and Inspection
3.1 Seller represents and warrants that: (i) upon passage of title to Buyer in accordance with the Contract, Seller provides, and Buyer receives, good and marketable title to Goods and Deliverables so furnished, free and clear of any and all liens, restrictions, reservations, security interests, and encumbrances; (ii) all Goods, Deliverables and/or Services are original, of good and merchantable quality, fit, sufficient for the purposes for which they are intended, free from defects in workmanship and materials, and conform strictly to any specifications, drawings, samples or other descriptions submitted to or specified by Buyer; (iii) all Goods, Deliverables and/or Services comply with all applicable statutory and regulatory requirements relating to their provision, manufacture, labelling, packaging, storage or handling; (iv) all Goods, Deliverables and/or Services have all applicable approval and product registrations necessary for sale and use in the United States and Europe; (v) Seller will carry out Services promptly, with all reasonable skill and due care and in accordance with all applicable laws, regulations and highest industry standards and with such requirements as Buyer may from time to time reasonably impose; and (vi) provision of Goods, Deliverables and/or Services will not infringe the rights of any third party. The representations and warranties set forth herein survive any inspection, delivery, acceptance or payment by Buyer and run to Buyer and its customers and any user of such Goods, Deliverables and/or Services. The representations and warranties set forth herein are in addition to all other warranties, express or implied, including Seller’s implied warranties of merchantability and fitness for a particular purpose, which implied warranties are not and will not be disclaimed by Seller.
3.2 Seller agrees to defend and hold harmless Buyer and its Affiliates, subsidiaries, officers, directors, shareholders, employees, consultants, representatives, agents, customers, successors and assigns (collectively, the “Indemnitees”) in any action or claim, and agrees to indemnify Buyer and its Indemnitees from and against all claims, losses, liabilities, sums of money, damages, expenses, and costs (including, but not limited to, reasonable attorneys’ fees) arising from such action or claim to the extent related to: (i) the infringement of a third party’s rights arising out of, or in connection with, the supply or use of Goods or Deliverables or the performance of Services; (ii) death, personal injury, or damage to property arising out of or in connection with defects in Goods, Deliverables, or Services attributable to the acts or omissions of Seller and/or its employees, agents or subcontractors; (iii) breach of any term or condition, or of any representations or warranties, set forth herein; and/or (iv) the negligence, failure or delay in performance, or intentional misconduct of Seller and/or its employees, agents or subcontractors.
3.3 All Goods or Deliverables supplied hereunder are received subject to Buyer’s inspection and right to reject such Goods or Deliverables, in whole or in part, within two (2) weeks after delivery, notwithstanding prior payment, if they are defective, not in conformity with any requirement in a Purchase Order or other specifications, or otherwise do not comply with the representations and warranties set forth in Section 3.1 above. Where any such defect or non-conformity could not be reasonably discovered during the course of the initial inspection, the time for rejection shall be thirty (30) days from the actual discovery by Buyer of any such latent defect or non-conformity. If Buyer’s inspection of Goods or Deliverables determines that such Goods or Deliverables are defective, not in conformity with any requirement in a Purchase Order or other specifications, or otherwise do not comply with the representations and warranties set forth in Section 3.1 above, Buyer may, at its election, in its sole discretion, and in addition to any other rights which might be available to it: (i) reject and return such Goods and/or Deliverables at Seller’s sole cost and expense (and the risk of loss and damage of Goods and Deliverables remains with Seller upon such rejection); (ii) accept such Goods and/or Deliverables at an appropriate reduction in price; and/or (iii) require Seller to promptly replace such Goods and Deliverables and, if Seller fails to promptly replace such Goods and Deliverables, Buyer may contract with a third party to replace such Goods and Deliverables and charge Seller the additional cost thereof. Seller agrees to promptly refund any prior payment made with respect to such Goods and Deliverables.
4. Passing of Property and Risk
The property and risk in Goods and Deliverables shall pass to Buyer when Goods and Deliverables or any part thereof are delivered to and accepted by Buyer.
5. Price and Payment
Unless otherwise expressly agreed in a writing signed by Buyer’s authorized representative, the price for Goods and Services stated in the Contract is fixed and in no event higher than the price last quoted or last charged to Buyer. If the price is not stated in the Contract, the price for Goods and Services will be Seller’s list prices as of the effective date of the Contract. Unless otherwise expressly agreed in writing, if Seller’s list price for any Goods or Services being furnished under the Contract is lower than the price stated in the Contract, Seller agrees to give Buyer the benefit of such lower price. The price shall include all tax costs, duties, customs or levies, expenses and charges (including delivery and insurance) chargeable in respect of Goods and/or Services. Unless otherwise agreed in writing, payment for Goods and/or Services shall occur within forty five (45) calendar days of receipt by Buyer of a correct, undisputed, and properly drawn invoice.
6. Breach of Warranty
Without prejudice to any other remedy, if any Goods, Services or Deliverables do not comply with any representation or warranty given under Section 3.1 above, Buyer may, whether or not it has accepted such Goods, Services or Deliverables, at its election, in its sole discretion, and in addition to any other rights which might be available to it: (i) require Seller, at its sole cost and expense, to repair or replace the Goods or Deliverables or re-perform the Services so that they conform with the Contract; and/or (ii) where Seller is unable to repair or replace the Goods or Deliverables within a time acceptable to Buyer, carry out or have carried out, at Seller’s sole cost and expense, such work as is necessary to conform the Goods, Deliverables and/or Services to the Contract and recover from Seller any costs and expenses incurred by Buyer in obtaining substitute Goods, Deliverables and/or Services from any third party.
7. Cancellation/Termination
7.1 By written notice to Seller, Buyer may, without liability to Seller: (i) at any time before delivery of Goods and/or the commencement of performance of Services hereunder, postpone, in whole or in part, delivery of Goods and/or performance of Services; (ii) at any time before delivery of Goods and/or commencement of the performance of Services hereunder, cancel, in whole or in part, the purchase of Goods and/or Services; or (iii) at any time, suspend or terminate, in whole or in part, the performance of work pursuant to a Purchase Order. Buyer shall reasonably reimburse Seller for all costs and expenses reasonably and directly incurred as a result of such postponement, cancellation, or termination, subject to Seller having taken all reasonable mitigation actions. In no event will Buyer be liable to Seller for any costs for completed Goods, Goods in process, or materials acquired or under contract, if such costs were incurred prior to the date of the Purchase Order.
7.2 Buyer has the right, exercisable in its sole discretion, without prejudice to any other remedy available to it under the Contract or under law, to terminate the Contract with immediate effect in the event of: (i) any proceedings, voluntary or involuntary, in bankruptcy or insolvency by or against Seller; (ii) the inability of Seller to meet its debts as they become due; (iii) the appointment, with or without Seller’s consent, of an assignee for the benefit of creditors or of a receiver; (iv) the merger, consolidation, or sale of substantially all of the assets or ownership interest of Seller which, in the sole opinion of Buyer, could have an adverse effect on the future provision, quality, or performance of Goods and/or Services; (v) Seller’s breach of any term or condition set forth in the Contract; and/or (vi) Buyer’s good faith belief that any of the foregoing events are likely to occur. In the event of termination, Buyer may keep possession of any Goods and/or Deliverables and may enter any premises of Seller to recover any property belonging to Buyer.
7.3 For the avoidance of doubt, in view of the damage that may be caused to Buyer’s business by association with any unethical behavior, Buyer shall be entitled to terminate the Contract with immediate effect by written notice to Seller if Section 13 below is breached or if Buyer discovers that improper payments are being or have been made to any Government Official or political party or candidate by or on behalf of Seller (whether in connection with the Contract or not).
7.4 If Buyer terminates the Contract pursuant to Section 7.2(v) above, Section 7.2(vi) above, or Section 7.3 above, Seller agrees to promptly return to Buyer all payments already made for any Goods and/or Services. If on termination Buyer elects to keep or take any Goods or Deliverables, it shall pay an appropriate pro rata amount reflecting the value of such Goods and/or Deliverables, taking into account the breach; but otherwise no compensation shall be payable to Seller on termination.
8. Confidentiality
Seller will not, except with Buyer’s prior written consent or to the extent required by law, a court, government department or agency, or any regulatory or fiscal body or authority, disclose to any third party or use for any purpose other than the performance of the Contract any information acquired in anticipation of, or in the course of, the Contract concerning Buyer’s personnel, research activities, products, specifications, requirements, forecasts, intellectual property, trade secrets, know-how, technical information or any other information about its business, finances or operations. Seller will hold all such information in confidence and exercise the same degree of care to prevent disclosure to third parties as Seller exercises to preserve and safeguard its own confidential information, but in any event, exercising no less than a reasonable degree of care.
9. Assignment and Sub Contracting
Seller shall not sub-contract or assign any of its obligations or rights under the Contract without Buyer’s prior written consent.
10. Free Issue Materials
If Buyer issues materials free of charge to Seller for the purposes of the Contract, such materials shall be and remain the property of Buyer and Seller shall hold them on a fiduciary basis as Buyer’s bailee. Seller warrants it will keep such materials free and clear of any and all liens, restrictions, reservations, security interests, and encumbrances. Seller shall maintain the materials in good order and condition subject to fair wear and tear. Seller shall use such materials solely in connection with the Contract and any surplus materials shall be disposed of or returned, as Buyer directs, whether on termination or otherwise at Buyer’s request. Material lost, damaged, allowed to deteriorate, or used for a purpose outside of the terms of the Contract, shall be replaced at Seller’s sole cost and expense.
11. Inventions
11.1 Buyer is and will be the sole and exclusive owner of all right, title, and interest in and to any invention, improvement, or discovery (whether such invention, improvement, or discovery is patentable or not), work of authorship, copyright, design, design right, mask works, trade secret, know-how, and all intellectual property rights associated with the foregoing, whether registered or unregistered (and including all applications (or rights to apply) for, and renewals or extensions of, such right and any similar or equivalent right or form of protection which subsists in any part of the world), conceived, developed, produced, or reduced to practice by Seller in carrying out its duties under the Contract and which relates to Buyer’s business or is based on information or materials provided by Buyer (“IPR”). If any IPR falls within the definition of “work made for hire,” as such term is defined in 17 U.S.C. § 101, such IPR is considered “work made for hire” and the copyright of such IPR will be owned solely and exclusively by Buyer. If any IPR does not fall within such definition of “work made for hire,” then Seller hereby assigns, automatically assigns, and upon the creation thereof will assign to Buyer, Seller’s entire right, title and interest in and to such IPR.
11.2 No royalty or other payment will be due from Buyer in respect of IPR. Seller will at Buyer’s request and expense, do (or procure to be done) all such further acts, and execute all such other documents as Buyer may from time to time require in order to secure and more fully vest in Buyer all right, title and interest in and to IPR, including, without limitation, executing (and procuring from any relevant employees or contractors of Seller) all instruments necessary for the filing and prosecution of patent applications in any country or any division, continuation or partial continuation thereof or for any re-issue of any patent issued on any such application.
11.3 Seller shall obtain waivers of any moral rights in IPR owned by Buyer pursuant to Section 11.1 above to which any individual is now or may be at any future time entitled under the laws in the various countries where moral rights exist.
11.4 Seller represents and warrants to Buyer that the personnel of Seller who are in any way involved in performance of the Contract (including any entity or individual to which Seller subcontracts) are, or will be, prior to commencing performance thereof, subject to written agreements with Seller, with terms and conditions substantially similar to those terms and conditions set forth in this Section 11. Seller agrees it is liable to Buyer for any act or omission of such personnel that would be a violation of a term or condition set forth herein if such personnel were a party hereto.
12. Data Protection
Seller shall ensure that it, its employees, agents, and sub-contractors shall observe the requirements of all applicable laws and regulations governing the privacy and security of personal data. If Seller is required under the Contract to collect, process, use, disclose or retain on Buyer’s behalf any personal data relating to its customers or any other party, Seller will only do so in accordance with Buyer’s instructions, use such personal data only for performance under the Contract, and shall take all appropriate technical and organizational measures to prevent unauthorized or unlawful disclosure or accidental loss or destruction of, or damage to, such personal data. Seller agrees to provide to Buyer, and as otherwise required by law, reasonably prompt written notice of all incidents that involve, or which Seller reasonably believes involve, the unauthorized access, use, or disclosure of such personal data.
13. Anti-Corruption Provisions
13.1 Seller represents, warrants, and covenants to Buyer that: (i) it has the full power, right and authority to enter and perform the Contract and that it will comply with all relevant laws, regulations, codes of practice, operating procedures and guidelines and will obtain and maintain all covenants, licences, approvals and permissions necessary to fulfill its obligations under the Contract; (ii) it does and will comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption, including, but not limited to, the U.S. Foreign Corrupt Practices Act of 1977 (the “FCPA”) and the U.K. Bribery Act 2010 (the “Bribery Act”) and does not and will not engage in any activity, practice or conduct which would constitute an offense under Sections 1, 2 or 6 of the Bribery Act if such activity, practice or conduct had been carried out in the United Kingdom, or under the FCPA, or which would result in Seller’s violation of any provision thereof; and (iii) it will not (directly or indirectly) offer, pay, give or authorize the offer, payment, or giving of any money or anything of value to a Government Official or political party or candidate for the purpose of corrupting the individual’s duties and attempting to influence that individual to provide business or retain business of Buyer or Seller, or do any other thing in order to exert improper influence on such individual.
14. General
The failure of a party to enforce any provision of the Contract shall not constitute a waiver nor affect its right to enforce such and every other provision. No variation or alteration of any kind to the Contract can be made except in writing duly signed on behalf of each party. Any notice to be given under the Contract must be in writing and may be delivered to the receiving party in writing by courier, pre-paid first class post, return receipt requested, or such method as the parties may otherwise agree at its principal office address or such other contact address as may be notified by the receiving party. Seller shall not without Buyer’s written consent advertise, publicly announce or provide to any other party information relating to the existence of the Contract or use Buyer’s name in any format for any promotion, publicity, marketing or advertising purpose. If any court or competent authority finds that any provision of the Contract (or any part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected. The Contract entered into hereunder is governed by and construed in accordance with North Carolina law without regard to its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. Any disputes, actions, claims, or causes of action arising out of or in connection with the Contract entered into hereunder shall be subject to the exclusive jurisdiction of, and venue in, the federal and state courts located in Wake County, North Carolina, and each party irrevocably consents thereto. Seller acknowledges that Buyer would be damaged irreparably and would have no adequate remedy at law if any provision of the Contract is not performed in accordance with its specific terms or otherwise is breached. Accordingly, Seller agrees that Buyer will be entitled to an injunction to prevent any breach of any provision of the Contract and to enforce specifically any provision of the Contract, in addition to any other remedy to which Buyer may be entitled, and without having to prove the inadequacy of any other remedy Buyer may have at law or in equity and without being required to post bond or other security. These Conditions incorporate by reference all terms of the Uniform Commercial Code, Chapter 25 of the North Carolina General Statutes, providing protections for Buyer, including, without limitation, all express and implied warranty protection and all Buyer’s remedies thereunder.
Dated: February 17th, 2020