SWEET STREET DESSERTS, INC. TERMS AND CONDITIONS OF PURCHASE
GENERAL. These Terms and Conditions shall apply to and govern any and all transactions pursuant to which Sweet Street Desserts, Inc. purchases or acquires, or agrees to purchase or acquire any goods or products (“Products”). Any offer by Sweet Street Desserts, Inc. to purchase or acquire Products, and/or any acceptance by Sweet Street Desserts, Inc. of an offer to sell or supply Products to Sweet Street Desserts, Inc. is and shall be subject to and conditioned upon the exclusive governance of that transaction by these Terms and Conditions, along with any terms set forth in a Sweet Street Desserts, Inc. Purchase Order or written confirmation of purchase (“Order Confirmation”). These Terms and Conditions are deemed to be attached to and an integral part of any Purchase Order or Order Confirmation. Sweet Street Desserts, Inc. expressly rejects any proposed additions, modifications, amendments, counterproposals, or deletions by the party to whom any Purchase Order or Order Confirmation is addressed (“Seller”). Any terms and conditions set forth in any document or writing from Seller, irrespective of the wording or when received by Sweet Street Desserts, Inc., which conflict with or are inconsistent with, or purport to supplement or eliminate all or any portion of these Terms and Conditions, are expressly rejected and will not become part of any contract with or otherwise bind Sweet Street Desserts, Inc., unless confirmed in a writing issued by a purchasing agent or officer of Sweet Street Desserts, Inc., which specifically prefaces any modifications by stating “Sweet Street Desserts, Inc.’s Terms and Conditions are hereby modified as follows…” and specifically sets forth a description of those modifications. Neither acknowledgement and return of a copy of any sales order or other form issued by Seller, nor the acceptance of any Products or payment of any related invoice, shall constitute acceptance of any conflicting, inconsistent or additional terms set forth in any of them, nor shall they in any way operate to modify or change the full effect of these terms and Conditions.
OFFER AND ACCEPTANCE. The issuance of a Purchase Order by Sweet Street Desserts, Inc. shall constitute an offer to purchase the Products set forth thereon, in the amount, at the price and otherwise pursuant to the terms and conditions set forth thereon, and pursuant to these Terms and Conditions. Seller should transmit its acceptance of any Purchase Order promptly. Sweet Street Desserts, Inc. may modify or rescind a Purchase Order at any time prior to acceptance of its Purchase Order. As described under GENERAL above, any terms or conditions set forth in any acceptance from Seller, which attempt to modify or supplement these Terms and Conditions, are rejected. If Seller ships Products pursuant to a Sweet Street Desserts, Inc. Purchase Order, such shipment shall constitute acceptance of the terms set forth on that Purchase Order, including these Terms and Conditions. Similarly, any terms or conditions set forth in any packing slip or invoice from Seller, which attempt to modify or supplement these Terms and Conditions, are rejected.
PRODUCT SPECIFICATIONS. Prior to the issuance of any Purchase Order, Sweet Street Desserts, Inc. and Seller agreed upon specifications for each Product. If Seller is not certain as to specifications it has agreed upon or which are otherwise expected by Sweet Street Desserts, Inc., Seller should contact the Buyer identified on the Purchase Order to obtain clarification. Seller’s acceptance of a Purchase Order or shipment of Products in response to a Purchase Order constitutes Seller’s promise to ship only Products complying with agreed upon specifications or, if not agreed upon, conforming to the requirements of Sweet Street Desserts, Inc.
PACKAGING SPECIFICATIONS. Prior to the issuance of any Purchase Order, Sweet Street Desserts, Inc. and Seller may have agreed upon specifications for the manner in which each Product is to be packaged for shipment. If Seller is not certain as to specifications it has agreed upon or which are otherwise expected by Sweet Street Desserts, Inc., Seller should contact the Buyer identified on the Purchase Order or Sweet Street Desserts, Inc.’s Purchasing Agent to obtain clarification. Seller’s packaging shall also comply with all regulatory requirements, as well as the requirements of any carrier to which Products are tendered for shipment. Each unit of shipment (eg., each wrapped pallet, each parcel) shall be accompanied by a packing slip accurately describing the contents of that unit, and setting forth the Sweet Street Desserts, Inc. Purchase Order number applicable to that unit. Seller’s acceptance of a Purchase Order or shipment of Products in response to a Purchase Order constitutes Seller’s promise to ship only Products complying with agreed upon specifications or, if not agreed upon, conforming to the aforesaid requirements and otherwise as are reasonably necessary to promote efficient handling and protection of the Products. Sweet Street Desserts, Inc. may reject or, within a reasonable time after acceptance, revoke its acceptance of any Products not conforming to such specifications.
SHIPPING AND DELIVERY. Unless otherwise set forth in a Purchase Order, Sweet Street Desserts, Inc. will arrange for the transportation of the Products and Seller shall cooperate with such arrangements. Seller shall tender for shipment (or if applicable, deliver) Products within the time parameters set forth on the Purchase Order. Seller shall contact the Buyer listed on the Purchase Order or Sweet Street Desserts, Inc.’s Purchasing Agent at least one full business day in advance of the Products being available for shipment to schedule a specific tender or delivery time, and shall reasonably adhere to that appointment. Unless otherwise set forth on a Purchase Order, Seller is solely responsible for all costs associated with packaging Products, and Sweet Street Desserts, Inc. has no responsibility to reimburse Seller for any of those costs or expenses. All shipments shall be FOB destination, with risk of loss passing only upon delivery to Sweet Street Desserts, Inc. Seller shall be solely responsible to assert claims against a carrier for loss or damage to Products prior to passing of risk of loss, although Sweet Street Desserts shall provide reasonable cooperation in such efforts if requested by Seller.
RECEIPT AND INSPECTION./ACCEPTANCE OF PRODUCTS. Sweet Street Desserts will endeavor to inspect all Products it receives as soon as possible. Seller acknowledges the possibility that Sweet Street Desserts, Inc. may be required, in certain instances, to allow its customer to inspect the Products, and that inspection may be delayed thereby. Sweet Street Desserts, Inc. may reject any Products that it deems to be out of conformity with the applicable Purchase Order, any specifications required by Sweet Street Desserts, Inc. (See PRODUCT SPECIFICATIONS above) and not specifically rejected by Seller, or that are of substandard quality. Sweet Street Desserts, Inc. may, at its option, (i) arrange for the return of any rejected Products to Seller, at Seller’s sole risk, cost and expenses and without the necessity of any Seller return authorization, or notify Seller that it will store those Products, at Seller’s risk, for up to 30 days, so that Seller may make arrangements to retrieve the rejected Products at a time that is mutually convenient. Any such Products remaining at Sweet Street Desserts, Inc. after that period expires shall be deemed abandoned. Seller acknowledges that due to the bulk or composition of the Products, immediate inspection may not be possible. Specific Products delivered to Sweet Street Desserts, Inc. will not be deemed to have been accepted until the earliest of (a) communication by Sweet Street Desserts, Inc. to Seller that those Products have been accepted, (b) use of the Products by Sweet Street Desserts, Inc., or (c) payment of Seller’s invoice related to those Products. Title to Products will pass only upon acceptance. Seller acknowledges the right of Sweet Street Desserts, Inc. to revoke its acceptance of any Products in accordance with Article 2 of the Uniform Commercial Code. In the event that Sweet Street Desserts, Inc. receives a shipment of Products in excess of the quantity or amount ordered, it shall notify Seller if such excess has a value exceeding $250. Overages of a lesser value, as well as overages with respect to which Seller does not provide timely or reasonable instructions, shall be deemed abandoned by Seller. Sweet Street Desserts, Inc. shall comply with Seller’s reasonable instructions with regard to the return of any such overages, at Seller’s sole cost, risk, and expense, including but not limited to any reasonable administrative charge Sweet Street Desserts, Inc, may impose.
WARRANTIES. Seller warrants that all Products supplied to Sweet Street Desserts, Inc. shall conform to (a) all specifications upon which they have agreed, (b) relevant samples supplied by Seller to Sweet Street Desserts, Inc., and (c) all specifications identified by Sweet Street Desserts, Inc. and not rejected by Seller. Seller warrants that all Products supplied to Sweet Street Desserts, Inc. and intended for human consumption will be labeled with or accompanied by an accurate and complete list of ingredients. Seller warrants that all Products supplied to Sweet Street Desserts, Inc. and intended for human consumption or for packaging food will unadulterated and will be free from any hazardous or poisonous substances, as well as any spoilage or other defects, patent or latent. Seller warrants that its fulfillment of the Purchase Order, performance of its obligations under these terms and conditions, and all Products it supplies to Sweet Street Desserts, Inc. will be in full compliance with all relevant laws, including those related to ingredients, preparation, sourcing, labeling and packaging, as well as the maintenance of information related thereto. Seller affirmatively adopts and ratifies with respect to all Products supplied to Sweet Street Desserts, Inc, all warranties implied under applicable law, including but not limited to implied warranties of merchantability and fitness for an intended purpose under Article 2 of the Uniform Commercial Code. Seller warrants that it owns or has made lawful arrangements to use all intellectual property rights inherent in or used to produce or supply the Products, and that the Products and their use by Sweet Street Desserts, Inc. will not violate any third party proprietary rights, or any obligation of Seller with regard to any person’s intellectual property, trade secrets or confidential information. Seller warrants that none its representatives have offered or provided any gift, gratuity or other compensation to any representative of Sweet Street Desserts, Inc. for the purpose of securing any purchase order or any favorable treatment from Sweet Street Desserts, Inc.
REMEDIES. In the event Seller’s breaches any of its obligations to Sweet Street Desserts, Inc., including but not limited to breach of any express or implied warranties, Sweet Street Desserts, Inc. may pursue any remedies available at law or in equity, all of which shall be cumulative. Seller acknowledges its potential liability to Sweet Street Desserts, Inc., including but not limited to potential liability for direct, indirect and consequential damages.
SWEET STREET INTELLECTUAL PROPERTY. In certain instances, Sweet Street Desserts, Inc. may have shared certain of its own proprietary information with Seller in the development of specifications, processes, etc. related to the Products. Seller acknowledges and confirms that its use of any such proprietary information does not give rise to any transfer by Sweet Street Desserts, Inc. of any ownership interest in or irrevocable license to utilize that proprietary information and that Seller shall never utilize any such information except for the benefit of Sweet Street Desserts, Inc. Seller shall maintain such proprietary information in confidence and shall, immediately upon the request of Sweet Street Desserts, Inc., cease its use of any Sweet Street Desserts, Inc. proprietary information. In the event that Seller has executed and delivered any separate agreement to Sweet Street Desserts, Inc., which relates to the topics covered by this Section, the terms of which contradict any aspect of this Section, such separate agreement(s) shall control.
INDEMNIFICATION. Seller shall defend, indemnify and hold harmless Sweet Street Desserts, Inc. as well as any affiliate of Sweet Street Desserts, Inc. that utilizes any Product, as well as all of their respective employees, officers and directors (each, an “Indemnitee”) from and against any and all claims, demands, liabilities, losses, damages, fines, payments, penalties, costs, expenses, and reasonable legal fees in connection with any death, bodily injury or property damage (including to your representatives) arising from (a) any Product Seller supplies, including but not limited to any Product that is contaminated or adulterated; (b) any act or negligent omission by Seller or any of its representatives; (c) any violation of any law, regulation or ordinance to which Seller and/or its applicable representatives is subject, including but not limited to any such law, regulation or ordinance governing the manufacture of any Products; or (d) any claim that any product produced by Sweet Street Desserts, Inc. infringes upon any third party’s proprietary rights as a result of its incorporation of any Product supplied by Seller, in each case, except to the extent arising from the gross negligence or willful misconduct of any Indemnitee.
INSURANCE. Seller shall maintain the following minimum insurance coverages: (a) commercial general liability and product liability insurance, including but not limited to coverage for death, bodily injury, property damage and contractual liability for Seller’s obligations under these Terms and Conditions in an amount of not less than $1,000,000 per occurrence/$2,000,000 aggregate; (b) umbrella liability insurance of $3,000,000; (c) product recall liability coverage of at least $1,000,000; (d) if a Seller representative operates a vehicle to deliver any Products or perform any services for or on behalf of Sweet Street Desserts, Inc., (i) automobile liability insurance (including owned, hired and non-owned vehicles) in an amount of $1,000,000 combined single limit per occurrence, and (ii) cargo liability insurance in an amount of at least $200,000; and (e) workers compensation insurance in accordance with applicable state law and employers liability coverage of $1,000,000 each accident/$1,000,000 each employee/$1,000,000 policy limit. Each Seller insurer shall (i) have an A.M. Best rating of A- higher, (ii) an A.M. Best financial size category of Class VIII or higher, and (iii) shall be authorized to conduct business in jurisdiction in which Seller conducts business and to which it delivers Products. Sweet Street Desserts, Inc. and its affiliates, employees, officers and directors will be included as additional insureds on all liability policies on a primary/non-contributory basis. Each insurer’s subrogation rights against these additional insureds shall be waived. Seller will provide, promptly upon request, standard ACORD certificates evidencing such current, active coverage, Supplier’s insurance shall not be cancelled, materially changed or non-renewed without at least 30 days advance written notice to Sweet Street Desserts, Inc. Seller’s compliance with these coverage requirements (limits) may not be construed as a limitation on Seller’s liabilities. Neither the approval by Sweet Street Desserts, Inc. or its failure to disapprove any insurance certificate provided by Seller will release Seller from its responsibilities under these Terms and Conditions.
DELAY. Seller acknowledges that time is of the essence in fulfilling each Purchase Order. Seller will notify Sweet Street Desserts, Inc. promptly after becoming aware of any fact or circumstance that may delay Seller’s ability to timely fulfill a Purchase Order.
PAYMENT CONDITIONS AND TERMS. Sweet Street Desserts, Inc. shall remit payment on account of the Products delivered by Seller in accordance with each Purchase Order and these Terms and Conditions within 30 days of its acceptance of the Products described on each Purchase Order. Seller shall be solely responsible for the proper remittance of any taxes applicable to its sale of any Products to Sweet Street Desserts, Inc., and Seller shall indemnify and hold harmless Sweet Street Desserts, Inc. from and against any liability arising from its failure to timely remit such payments. This Section shall be subject to any contrary terms and conditions regarding payment or tax responsibilities set forth on a Purchase Order, with respect only to the transaction reflected by that Purchase Order.
PUBLICITY. Seller shall not issue any public announcements about the existence of any Purchase Order or its relationship with Sweet Street Desserts, Inc., including but not limited to any news or press releases, advertisements, postings on any website, or social media releases, unless any such announcement is provided to and approved by Sweet Street Desserts, Inc., in writing, in advance, which approval Sweet Street Desserts, Inc. may withhold in its sole discretion. Seller may not at any time utilize or adopt the name “Sweet Street Desserts”, or any trademark, service mark, trade name, logo or other identifier owned by or licensed to Sweet Street Desserts, Inc., unless any such announcement is provided to and approved by Sweet Street Desserts, Inc., in writing, in advance, which approval Sweet Street Desserts, Inc. may withhold in its sole discretion.
VENDOR MANAGEMENT. Seller agrees to cooperate with Sweet Street Desserts, Inc.’s vendor management program. This program may, among other things, require Seller to complete one or more written inquiries regarding Seller’s food safety standards, allow a third party inspection company to perform a sanitation audit of Seller’s production and storage facilities from time to time, and participate in periodic mock recalls.
MISCELLANEOUS: These Terms and Conditions are binding upon and shall inure to the benefit of Sweet Street Desserts, Inc. and Seller, and their respective successors and assigns. Neither party may assign or delegate the benefits or the burdens of these Terms and Conditions and/or any confirmed order for Products without the written consent of the other party.
Except with respect to Product specifications, which may be agreed upon separately (see PRODUCT SPECIFICATIONS above) each Purchase Order and/or Order Confirmation, along with these Terms and Conditions, constitutes the complete and exclusive understanding of the parties with respect to its subject matter, supersedes all proposals, memoranda, agreements or other understandings, and may not be modified or waived except in a writing signed by the party sought to be bound.
A party’s failure to strictly enforce any provision of a Purchase Order, Order Confirmation or these Terms and Conditions, or any agreed upon Product specification, will not be construed as a waiver of that provision or as excusing the other party from future performance.
Each party’s obligations under these Terms and Conditions shall survive consummation of any specific Purchase Order or transaction.
Each Purchase Order, Order Confirmation as well as these Terms and Conditions shall be construed and interpreted in accordance with the laws of the Commonwealth of Pennsylvania, without regard to its principles of conflicts of law. If any provision violates any applicable law, that provision will be ineffective to the extent of such violation, without invalidating any other provision.
The parties each submit to the exclusive jurisdiction of the Court of Common Pleas of Berks County Pennsylvania, and the Eastern Pennsylvania Federal Judicial District for the resolution of any disputes arising in connection with any Purchase Order, these Terms and Conditions or any transaction between Seller and Sweet Street Desserts, Inc., and select such venues as the exclusive locations for such dispute resolution, and waive any right to assert that any such forum is unfair or inconvenient.
