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NGC, Inc. d/b/a The Town Dock (“Buyer”) Purchase Order Terms and Conditions
This order becomes a contract (1) when signed acknowledgment is received by Buyer from Seller, or (2) when shipment according to schedule of all or any portion of the goods covered by this order shall be made. It is a condition of this order that any provisions printed or otherwise contained in any acknowledgment hereof, inconsistent with or in addition to the terms and conditions herein stated, and any alteration in this order, shall have no force or effect, and that Seller by such acknowledgment thereby agrees that any such provisions therein or any such alterations in this order shall not constitute any part of the contract so created. The contract created by this order contains the entire agreement of the parties with respect to the subject matter hereof, and may not be modified orally, but only by a written instrument executed by both parties. Failure of Buyer to enforce any of its rights hereunder shall not constitute a waiver of such rights or of any other rights hereunder.
Risk of Loss The price specified in this order shall include all costs of packing goods and all costs of delivery of goods to the delivery point specified in the applicable order, including: (a) all duties and taxes (including excise and withholding taxes) and (b) other incidental charges, Seller shall ship only the quantities of goods ordered by Buyer in this order. Seller shall not make any substitutions without Buyer’s prior written approval. Seller shall bill Buyer for the goods at the price specified in this order. Prices recorded in this order are not subject to increase. If Seller’s quoted prices for the goods covered by this order are reduced (whether in the form of a price reduction, close-out, rebate, allowances, or additional discounts offered to anyone) at time of any shipment, Seller agrees that the price to Buyer for such goods will be reduced accordingly, and that Buyer will be billed at such reduced prices. If price is not recorded on the face of this order, price shall be that of last previous order given by Buyer to Seller, subject to the provisions of this paragraph. If price includes taxes or excises, and if such taxes or excises or any part thereof are hereafter refunded to Seller, Seller shall immediately pay Buyer the amount of such refund. Seller certifies that the prices herein are not higher than prices being charged to other organizations purchasing similar goods in similar quantities. Seller shall be responsible for providing adequate packaging, tagging, labeling, packing, shipping and billing. Seller shall comply with all packaging, tagging, labeling, packing, shipping and billing requirements reasonably requested by Buyer or established by applicable laws, regulations, carrier tariffs and classifications. Seller shall deliver goods to the designated carrier on or before the “ship date(s)” specified in this order. Seller shall ship all goods in full packs and full shipments in accordance with Buyer’s requirements. All risk of loss or damage to goods shall remain with Seller until delivery of such goods in accordance with the delivery or purchase terms specified by Buyer in this order. Buyer’s schedules are based upon the agreement that the goods will be delivered to Buyer by the dates specified on the face of the order. Time is therefore of the essence and if goods are not delivered within the time specified hereon, Buyer may reject such goods and cancel this order. The acceptance of later or defective deliveries shall not be deemed a waiver by Buyer of its right to cancel this order, or to refuse to accept further deliveries.
Goods delivered (whether paid for or not) are subject to inspection, testing, and approval by Buyer before acceptance. All goods not fully up to standard and not in compliance with the specifications hereof, or shipped contrary to instructions, or in excess of the quantities herein provided, or substituted for goods described, or not shipped in containers conforming to Buyer’s specifications (or, in the absence of such specifications, in recognized standard containers), or allegedly violating any statute, ordinance, or administrative order, rule, or regulation, may be rejected by Buyer, who shall have all remedies available to it at law and equity, including, without limitation, the right to obtain conforming goods from another party and to be reimbursed for any increased costs by Seller and/or to charge to Seller all expense of inspecting unpacking, examining, repacking, storing, and reshipping any goods rejected as aforesaid. The remedies hereinabove afforded to Buyer shall not be exclusive, but Buyer may hold Seller liable for any and all damages arising from any breach or default hereinabove set forth.
Without in any way disclaiming implied remedies or limiting remedies for breach thereof, Seller represents and warrants that all goods shall: (a) conform to the specifications and/or previously provided samples for such goods; (b) be merchantable; (c) be free from defects in workmanship, materials and packaging; (d) be fit and sufficient for the purpose for which they intended and/or which is stated on any packaging, labeling or advertising; (e) not be adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act (the “Act”), (f) not be an article which cannot be introduced into interstate commerce under the provisions of the Act and (g) be produced, packaged, tagged, labeled, packed, stored, shipped and invoiced in compliance with the applicable requirements of federal, state, local and (if applicable) international laws, regulations, ordinances and administrative orders. Without limiting the generality of the foregoing: Seller represents, warrants and covenants that it shall manufacture, label, store and ship the goods in compliance with and the goods themselves shall be in compliance with: (x) all applicable local, state and federal laws, regulations, rules and guidelines (including, but not limited to, good manufacturing practices prevailing in the industry and Federal Food and Drug Administration, Department of Agriculture (“USDA”) and Food Safety and Quality Service Guidelines and Regulations) now in effect or which may hereinafter come into effect and (y) the regulations of organic certification, including but not limited to, appropriate processes, ingredient tracking and documentation required in maintaining good USDA Organic standing and all applicable packaging, food and drug and health and sanitary laws and regulations and prevailing industry standards for safety and cleanliness in compliance with applicable federal and state laws, rules, regulations, ordinances and requirements of any governmental body. Seller shall indemnify and hold Buyer, its shareholders, subsidiaries, affiliates, directors, officers, employees and agents, and its and their respective successors and assigns, harmless from all claims, suits, demands, proceedings, judgments, verdicts, actions and causes of action, in law or in equity, and all losses, damages, liabilities, costs and expenses (including, without limitation, interest, penalties, reasonable legal fees, expert or other consulting feels and disbursements) (together “Losses”) incurred by Buyer to the extent such Losses are due to: (i) any negligence or fault of Seller (including without limitation its agents, employees and/or suppliers); or (ii) the breach by Seller of any of its representations, warranties, covenants or agreements set forth in this order. Seller agrees to maintain in effect insurance coverage with an insurance company which has established a “Best” rating of “A” or better, covering commercial general liability, written on “occurrence form” of coverage, including product liability and excess liability, all with minimum combined coverage limits of $2,000,000. Seller’s Insurance described herein shall be primary and not contributory with Buyer’s insurance. Seller shall furnish a certificate evidencing the obligation of its insurance carriers not to cancel or materially amend such policies without thirty (30) days prior written notice to Buyer. In addition, Buyer shall be named as an additional insured – vendor using Form CG 20 15 with respect to commercial general liability policy including products liability and excess/umbrella liability coverage. All policies shall provide waivers of subrogation in favor of Buyer.
Buyer reserves the right at any time and from time to time without cause, to cancel and/or reschedule all or any part of the undelivered portion of this order by notice to Seller. In the event of such cancellation and/or rescheduling, Buyer shall have no liability to Seller. All claims for moneys due or to become due from Buyer shall be subject to deduction by Buyer, for any setoff or counterclaim arising out of this or any other of Buyer’s orders with Seller. This order shall be construed and enforced in accordance with the internal laws of the State of Rhode Island, without regard to its conflict of law principles. The rights and obligations of the parties hereto shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods. The federal and/or state courts of Rhode Island shall have exclusive personal and subject matter jurisdiction over, and the parties each hereby submit to the venue of such courts with respect to, any dispute arising pursuant to this order, and all objections to such jurisdiction and venue are hereby waived. Seller consents to service of process permitted under Rhode Island law or by certified mail, return receipt requested. If service cannot be performed upon Seller at its then address Seller hereby appoints the Secretary of State of the State of Rhode Island as its agent for service of process.