Purchase Order Terms
The following Terms and Conditions shall govern all purchases of Product from Seller by Kaeng Raeng Inc. (herein known as Kaeng Raeng)
1. Authorization: The Purchase Order, if properly signed by an authorized representative of Kaeng Raeng, is the only authorization that will be recognized Kaeng Raeng for charges to its account. Any modification, addition, deletion or alteration to the Terms and Conditions will not govern the Purchase Order unless such is expressly accepted in writing by Kaeng Raeng.
2. Acceptance: Kaeng Raeng in its sole discretion may reject or return, at Seller's cost and risk, all or part of the Product not in conformity with the Purchase Order, including but not limited 1) labeling and packaging, 2) failure to ship on date specified, and 3) any breach of any of Sellers warranties. Kaeng Raeng reserves the right to change shipping dates upon prior notice to Seller.
3. Cancellation: In addition to other rights or remedies, Kaeng Raeng may cancel the Purchase Order in whole or in part if the Product is backordered, there is a deviation, substitution or variation from the quantities, prices, terms or conditions specified in the Purchase Order unless authorized on the face of this Purchase Order or if Product received does not conform to warranty, specification, drawing, or sample standard, or if there is a defect of workmanship, quality, packaging, labeling, or inserts. Kaeng Raeng may cancel, terminate, or rescind all or part of the Purchase Order if Seller breaches or fails to perform any of its obligations to Kaeng Raeng in any material respect, if Seller becomes insolvent or proceedings are commenced by or against Seller under any bankruptcy or insolvency law, or Seller ceases operation. Kaeng Raeng may cancel all or part of the Purchase Order before partial shipment without penalty or cancellation charge. Time is of the essence of this agreement, and Seller's failure to meet shipping date shall constitute material breach of the Purchase Order.
4. Packaging: Seller agrees to package and label the Product in accordance with the specifications and labels provided by Kaeng Raeng.
5. Shipping Instructions: The Product shall be delivered to the place designated by Kaeng Raeng. A packing slip must accompany each individual shipment. Seller will place Kaeng Raeng's product codes (identified on the Purchase Order) on Seller's invoices, packing slips, containers, bills of lading, and all correspondence regarding this Purchase Order. Indicate on each carton, container, and packing slip: Purchase Order Number, total number of pouches in the shipment, and product identification (Kaeng Raeng product number and UPC code, if applicable). Product must be shipped in boxes where the weight does not exceed 50 pounds. Pallets must be shrink wrapped to insure safe transportation. Drivers will assist with off loading if necessary. Any trailer, container, pallet or other means used for transportation or storage of edible merchandise shall be suitable constructed for food use, properly cleaned to prevent contamination, and shall protect the Product from deterioration or contamination in conformance with 21 CFR 110.80. Each container or pallet shall have a stamped lot number and date indicating when the Product was produced. Lot numbers and product information must also be indicated on any shipping manifest. Delivery appointments are required. Carrier must notify Kaeng Raeng's warehouse 24 hours in advance and schedule a delivery time. Seller must also notify Kaeng Raeng's warehouse of pending shipments by telephone or facsimile. If Seller fails to ship to specified destinations, Seller agrees to pay any additional freight fees, detention, re-delivery, handling, storage, and administrative fees incurred by Kaeng Raeng and charged back to Seller. Product cannot exceed the pallet width by more than one inch. Product packaged in any type of bag (excluding bulk sacks) must have a protective cardboard base, which begins at first layer of product and extends 36 inches upward.
6. Billing Instructions: Seller shall provide a separate invoice for each bill of lading. All invoices and correspondence must indicate: Purchase Order Number, date shipped, number of cartons, total weight, and Carrier's name.
7. Seller's Covenant re: Confidentiality: Kaeng Raeng and Seller have entered a confidentiality agreement with respect to the Product; both parties will uphold that confidentiality agreement indefinitely. The Purchase Order and any information relating thereto submitted to Seller by Kaeng Raeng or created by Seller for Kaeng Raeng, is confidential, and Seller acknowledges that Kaeng Raeng is the sole and exclusive owner thereof (the “Confidential and Proprietary Information”). Seller agrees to use the Confidential and Proprietary Information solely to manufacture the Product for Kaeng Raeng and to satisfy Seller's obligations arising from the Purchase Order. Seller agrees to return promptly all documents containing Confidential and Proprietary Information upon Kaeng Raeng's request, and to retain a copy of such documents only as necessary to satisfy applicable law or regulation. Seller agrees to 1) maintain in strict confidence the Confidential and Proprietary Information which has been, and may hereafter be, disclosed to Seller, 2) not disclose the Confidential and Proprietary Information to any third party without prior written consent of Kaeng Raeng, and 3) take such steps as may be reasonably necessary to prevent its unauthorized disclosure. Such steps shall include (i) limiting disclosure to those employees, agents, and associates who have a need to know the same for the purpose of filling the Purchase Order, (ii) giving notice to Seller's employees, agents, and associates who will have access to the Confidential and Proprietary Information that it is confidential, and (iii) advising Seller's employees, agents, and associates of the Terms and Conditions herein and of their obligation to comply therewith. Seller's covenant re confidentiality shall survive for a period of five years following receipt of the Purchase Order, unless and until such information enters the public domain by means or reason other than Seller's act or omission.
8. Seller's Covenant re: Exclusivity: Seller agrees that it will not use the Confidential and Proprietary Information, in whole or in part, to make the Product or any functionally similar product for any third party or Seller's own account without Kaeng Raeng's prior written authorization.
9. Specifications: Seller agrees to manufacture the Product in accordance with any and all specifications or special requirements submitted by Kaeng Raeng.
10. Statutory Requirements: Seller acknowledges the requirements of the Food, Drug and Cosmetics Act at Title 21 of the United States Code (the "Federal Act"), the regulations promulgated there under (the "Federal Regulations") by the Food and Drug Administration ("FDA"), and other federal and state law that applies to the Product (collectively the "Law"), and agrees to comply therewith.
11. Seller Warranty: Seller warrants that the Product delivered to Kaeng Raeng pursuant to the Purchase Order shall (1) comply with all of Kaeng Raeng's specifications relating to formulation and quantity; (ii) as of the date of shipment or delivery to Kaeng Raeng not be adulterated or misbranded within the meaning of the Law; (iii) not be an article that may not be introduced into interstate commerce; (iv) be free from adulteration, impurities, defects, or any other material unsafe for human consumption. Any Product supplied by Seller to Kaeng Raeng in breach of the foregoing warranty, or which is not in compliance with the Law, or which, as a consequence of action by any federal or state authority subsequent to the date of its shipment to Kaeng Raeng is rendered non-compliant with the Law, is hereinafter referred to as "Defective Product." In addition to any other remedies, Seller agrees, at its sole cost, to recall and replace all Defective Product and replace the same with an equal amount of Product that is not Defective Product.
12. Seller's Indemnity: Seller agrees to defend, indemnify, and hold Kaeng Raeng harmless from all claims, losses, damages, injuries, liabilities or expenses, including but not limited to reasonable attorneys fees and costs of investigation and suit to defend such claims arising out of a breach by Seller of any provision of this Agreement or arising out of any allegation, claim or assertion by any third party that as the result of any act or omission of Seller the Product supplied to Kaeng Raeng is adulterated, misbranded, unsafe, or otherwise constitutes Defective Product. The foregoing indemnity includes without limitation losses, damages, liabilities, and expenses arising out of an FDA recall of Defective Product, and the consequential damages proximately caused thereby, such as loss of business, profits, reputation, and refunds which Kaeng Raeng becomes obligated to make to its customers as a consequence thereof. Kaeng Raeng agrees to give Seller prompt notice of any and all claims made against it in connection with allegedly Defective Product, and to cooperate with Seller in defending against such claims. The foregoing warranty and indemnification shall be binding upon Seller and its successors and shall inure to the benefit of Kaeng Raeng and its successors in connection with Product delivered pursuant to the Purchase Order.
13. Seller's Insurance: Seller agrees to carry, and maintain in full force and effect for five years from the date of delivery of the Product to Kaeng Raeng, product and contractual liability insurance for Kaeng Raeng's benefit, at Seller's expense, with liability policy limits satisfactory to Kaeng Raeng, at Kaeng Raeng's request to name Kaeng Raeng as an additional insured on all such policies, and to deliver evidence of such insurance and of Seller's compliance with the provision of this Section 15 promptly upon Kaeng Raeng's request.
14. Governing Law: This agreement, including its interpretation, performance, and enforcement, shall be governed by and construed in accordance with the laws of the State of California. The Uniform Commercial code, as adopted in the State of California, applies except as expressly provided otherwise herein.
15. Attorney Fees and Costs: The prevailing party in any litigation arising out of this agreement shall be entitled to recover from the other its reasonable attorney fees and costs as determined by a court having jurisdiction thereof.
16. Non-delegation: Seller may not in any manner, by way of assignment or otherwise, delegate any obligations under the Purchase Order without the prior written consent of Kaeng Raeng.
17. Successors: This agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors.
18. Non-waiver: No delay or omission or failure to exercise any right or remedy provided for herein shall be deemed to be a waiver thereof or acquiescence to the event giving rise to such right or remedy, but every such right and remedy may be exercised from time to time and so often as may be deemed expedient by the party exercising such right or remedy.
19. Validity: If any provision of the Terms and Conditions is or becomes unenforceable or invalid under the laws or regulations of the federal or any state government, or subdivision thereof, such term shall be deemed stricken here from, but such invalidity or unenforceability shall not invalidate any of the other terms or conditions hereof. To the extent possible, a likely valid provision which meets the objective of the invalid provision shall be substituted for any invalid provision hereof.
20. Relationship: Seller shall at all times act as an independent contractor in the manufacture of the Product. Seller is not a partner, joint venturer, agent or legal representative of Kaeng Raeng for any purpose. Seller has no right or power to act for or bind Kaeng Raeng in any respect, to pledge Kaeng Raeng's credit, to accept any service of process upon Kaeng Raeng, or to receive any notices to Weider Global of any nature whatsoever.
21. Definitions: "Purchase Order" shall mean this two sided order form, and any specifications, drawings, samples, or other document or material expressly made a part of this Purchase Order. "Product" shall mean any materials, machinery, equipment, article, item or work provided for in the Purchase Order. "Seller" shall mean the person or business entity named on the face of the Purchase Order to supply, manufacture, or provide the Product to Kaeng Raeng. "Terms and Conditions" shall mean the provisions set forth on this Purchase Order document and any specification, drawing, or other document expressly made a part of this Purchase Order.