Terms & Conditions

Acceptance; Entire Agreement

The Purchase Order and these Terms and Conditions of Purchase (collectively, the “Purchase Order”) constitute Oregon Ice Cream LLC’s (“Buyer”) offer to purchase the goods or services described on the face of the Purchase Order (hereinafter, the “Products”) from Seller. THIS PURCHASE ORDER IS EXPRESSLY LIMITED TO, AND EXPRESSLY MADE CONDITIONAL ON, SELLER’S ACCEPTANCE OF THE TERMS OF THE PURCHASE ORDER. BUYER EXPRESSLY OBJECTS TO AND EXPRESSLY REJECTS ANY PROVISIONS ADDITIONAL TO OR DIFFERENT THAN THE TERMS HEREOF THAT MAY APPEAR IN SELLER’S QUOTATION, ACKNOWLEDGMENT, CONFIRMATION, INVOICE OR IN ANY OTHER PRIOR OR LATER COMMUNICATION FROM SELLER TO BUYER UNLESS SUCH PROVISION IS EXPRESSLY AGREED IN A WRITING SIGNED BY BUYER. This Purchase Order shall supersede all prior negotiations, discussions, and dealings and shall constitute the entire agreement between Buyer and Seller. No change, modification, rescission, discharge, abandonment, or waiver of these terms and conditions shall be binding upon Buyer unless made in a writing signed by Buyer. No conditions, custom, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain, or supplement these terms and conditions shall be binding unless hereafter made in writing and signed by the bound party.

Changes

The price(s) set forth on the face of the Purchase Order are firm, and are not subject to increase unless amended in a writing signed by the Buyer. Buyer may change the quantities, specifications, delivery dates, materials and other descriptions relating to the Products. If such changes cause an increase or decrease in the cost or time required for Seller’s performance, Seller and Buyer will negotiate an equitable adjustment. Seller shall make no substitutions without Buyer’s consent.

Payment Terms, Taxes and Costs

Unless otherwise specified on the face of the Purchase Order, payment terms shall be net 45 days. Buyer will not be responsible for any other charges, including, without limitation, charges related to: shipping; packaging; handling or storage; sales, use, excise, or value-added taxes; fees, duties or other governmental impositions; insurance; or costs imposed on the importation and/or sale of Products. Seller will reimburse Buyer for any such taxes or fees and any related penalties or costs.

Delivery; Title and Risk of Loss

Buyer’s production schedules are based upon the agreement that the Products will be delivered to Buyer by the date(s) specified on the face of this Purchase Order. If delivery date(s) cannot be met, Seller must immediately inform the Buyer in writing of Seller’s best possible delivery date(s), subject to Buyer’s acceptance. If deliveries are not made at the time agreed upon, Buyer may (a) request that Seller ship the Products by other than designated routing to expedite delivery (cost of alternative means of shipment shall be borne by Seller), or (b) cancel the Purchase Order in whole or in part and purchase comparable Products elsewhere and hold Seller accountable for any loss or additional cost arising from such expedited delivery, cancellation or substitution. No charge will be allowed for warehousing, storage, packing, boxing or cartage, unless agreed upon at the time of purchase, but damage to any material not packed to insure proper protection to same (including in the course of shipping and handling) will be charged to Seller. Each package must contain a packing list showing shipper’s name, contents of package and Order Number and complete tag item number of Buyer (if applicable). Delivery will not be deemed complete, and title and risk of loss will remain with Seller, until Buyer has actually received, inspected, and accepted the Goods. Seller shall obtain freight insurance for the full replacement value of all Goods supplied pursuant to the Purchase Order. All imported Products shall be delivered DDP (as that term is defined pursuant to Incoterms 2010) to the location(s) specified in the Purchase Order. Seller shall be responsible for obtaining all licenses, authorizations, and clearances necessary to deliver the Goods, including, to the extent applicable, import clearances. Seller shall provide all documentation to Buyer that is required by Applicable Laws (as defined below), the Purchase Order, quality agreements, and/or industry standards, including without limitation bills of lading, inspection reports, monitor logs, and material safety data sheets.

Warranty

Seller expressly warrants that all Products conform to all specifications and appropriate standards, will be new, and will be free from defects in material or workmanship. Seller warrants that all Products conform to any statements made on the containers or labels or advertisements for such Products, and that all Products will be adequately contained, packaged, marked and labeled. Seller warrants that all Products will be merchantable, and will be safe and appropriate for the purpose for which goods or services of that kind are normally used. If Seller knows or has reason to know the particular purpose for which Buyer intends to use the Products, Seller warrants that such Products will be fit for such particular purpose. Seller warrants that all Products furnished will conform in all respects to samples. If any Products are foods or are an ingredient or for use in the preparation thereof, Seller guarantees that such Products are produced, manufactured, processed, labeled, marked and shipped in accordance with all applicable Federal, state and local laws, fit for human consumption, not adulterated, contaminated by foreign materials, misbranded, mislabeled or falsely invoiced within the meaning of the Federal Food, Drug and Cosmetic Act (“FDA Act”), and are not goods which may not, under provisions of Sections 404 or 505 of the FDA Act, be introduced into interstate commerce. Seller further warrants that such Products are not in violation of the provisions of the Food Additives Amendment of 1958 and have not been treated with any pesticide as defined in the Federal Insecticide, Fungicide and Rodenticide Act (“FIFR Act”) other than those accepted by the Environmental Protection Agency and in accordance with usage limitations established by the Environmental Protection Agency. If any Products are for use as equipment for holding, handling, or processing of food, or are materials for the packaging thereof, or are a component of such packaging materials, Seller guarantees such Products comply fully with all applicable laws. Inspection, test, acceptance or use of the Products shall not affect the Seller’s obligation under this warranty, and such warranties shall survive inspection, test, acceptance and use. Seller’s warranty shall run to Buyer, its successors, assigns and customers, and users of Products sold by Buyer. Seller agrees to promptly replace or correct defects of any Products not conforming to the foregoing warranty, without expense to Buyer, its successors, assigns, customers or users of products sold by Buyer, when notified of such nonconformity by Buyer, provided Buyer elects not to terminate for cause as set forth above. In the event of failure of Seller to correct defects in or replace nonconforming Products promptly, Buyer, after reasonable notice to Seller, may make such corrections or replace such Products and charge Seller for the cost incurred by Buyer in doing so.

Termination/Suspension for Buyer’s Convenience

Buyer reserves the right to cancel or suspend all or any undelivered or unexecuted portion of this order for its sole convenience. Buyer will reimburse Seller for Seller’s substantiated expenses (which shall not include lost profits) resulting directly from such cancellation or suspension, which amount shall in no event exceed the actual direct costs for the percentage of work performed prior to the notice of cancellation or suspension. Seller shall not be paid for any work done after receipt of the notice of cancellation, nor for any costs incurred by Sellers or Seller’s subcontractors that Seller could reasonably have avoided. The foregoing states the Buyer’s entire liability and the Seller’s exclusive remedy for claims or damages under this paragraph.

Termination for Cause

Buyer may also terminate this order or any part hereof for cause in the event of any default by the Seller, or if the Seller fails to comply with any of the terms and conditions of this offer. Late deliveries, deliveries of products that are defective or that do not conform to the Purchase Order, and failure to provide Buyer upon request, of reasonable assurance of future performance shall all be causes allowing Buyer to terminate this order for cause. In the event of termination for cause Buyer shall not be liable to Seller for any amount, and Seller shall be liable to Buyer for any and all damages sustained by reason of the default which gave rise to the termination.

Time of Delivery

Time is of the essence of this Purchase Order, and if delivery of items or rendering of services is not completed by the time promised, Buyer reserves the right without liability in addition to its other rights and remedies to terminate this Purchase Order by notice effective when received by Seller as to items not yet shipped and to purchase substitute items or services elsewhere and charge Seller with any loss incurred.

Inspection/Testing

Payment for the Products delivered hereunder shall not constitute acceptance thereof. Buyer shall have the right to inspect such Products and to reject any or all of said Products that are in Buyer’s judgment defective or nonconforming. Products rejected and Products supplied in excess of quantities called for herein may be returned to Seller at Seller’s expense and, in addition to Buyer’s other rights, Buyer may charge Seller all expenses of unpacking, examining, repacking and reshipping such Products. In the event Buyer receives Products whose defects or nonconformity is not apparent on examination, Buyer reserves the right to require replacement, as well as payment of damages. Nothing contained in this purchase order shall relieve in any way the Seller from the obligation of testing, inspection and quality control.

LIMITATION ON LIABILITY AND TIME FOR SUIT

IN NO EVENT SHALL BUYER BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS AND/OR ATTORNEYS’ FEES. BUYER’S LIABILITY ON ANY CLAIM OF ANY KIND FOR ANY LOSS OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH OR RESULTING FROM THIS AGREEMENT OR FROM THE PERFORMANCE OR BREACH THEREOF SHALL IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE PRODUCTS OR UNIT THEREOF THAT GIVES RISE TO THE CLAIM. BUYER SHALL NOT BE LIABLE FOR PENALTIES OF ANY DESCRIPTION. ANY ACTION RESULTING FROM ANY BREACH ON THE PART OF BUYER AS TO THE PRODUCTS DELIVERED HEREUNDER MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.

Indemnification

Seller shall defend, indemnify and hold harmless Buyer against all damages, claims or liabilities and expenses (including attorney’s fees) arising out of or resulting in any way from any defect or alleged defect in the Products purchased hereunder, any breach of warranty by Seller, or from any act or omission of Seller, its agents, employees or subcontractors. This indemnification shall be in addition to the other warranty and recall obligations of Seller.

Recalls

If any Products are the subject of a recall by Seller or a government agency because of a condition that existed at the time of delivery to Buyer, Seller shall be responsible for all losses associated with such event and shall reimburse Buyer for all such losses, including but not limited to recalling, publishing notices about, shipping and/or destroying such Products (and, where applicable, any products with which such Products have been made), including refunds to customers. Upon learning or receiving notice of a credible claim or potential claim of a defect in, or tampering with, any Products, Seller shall promptly notify Buyer and the appropriate government agency and shall conduct sufficient analyses of such Products to reliably determine the accuracy of such claim and the cause of any such defect or tampering. The parties shall cooperate and assist each other in all reasonable ways to resolve claims involving Products subject to recall.

Insurance

Seller agrees to carry insurance covering product liability and general liability in amounts of not less than $5,000,000.00 per occurrence. All such policies shall provide for at least thirty (30) days’ prior written notice, to Buyer, of cancellation, non-renewal or material change in the terms and conditions of coverage and name Buyer as an additional named insured. At Buyer’s request, Seller will provide Buyer with a certificate or certificates of insurance evidencing such coverage. In the event Seller ceases to carry adequate insurance that names Buyer as an additional insured, Buyer may immediately cancel this order by giving Seller written notice of Buyer’s election to cancel.

Proprietary Information-Confidentiality-Advertising

Seller shall consider this order and all information furnished by Buyer to be confidential and shall not disclose or use such information for any purpose other than performing this contract, unless Seller obtains written permission from Buyer to do so. Unless otherwise agreed in writing, no commercial, financial or technical information disclosed in any manner or at any time by Seller to Buyer shall be deemed secret or confidential and Seller shall have no rights against Buyer with respect thereto except such rights as may exist under patent laws.

Intellectual Property

Seller warrants that the Products and the sale and use of them will not infringe any United States or foreign patents, trademarks, trade dress, copyrights, trade secrets or any other form of intellectual property. Seller agrees upon receipt of notification to promptly assume full responsibility for defense of any suit or proceeding which may be brought against Buyer or its agents, customers, or other vendors for alleged patent infringement, as well as for any alleged unfair competition resulting from similarity in design, trademark or appearance of Products furnished hereunder, and Seller further agrees to indemnify Buyer, its agents and customers against any and all expenses, losses, royalties, profits and damages including court costs and attorney’s fees resulting from any such suit or proceeding, including any settlement. Seller acknowledges that Buyer’s patents, trademarks, trade dress, copyrights, trade secrets or any other form of intellectual property that Buyer provides to Seller are Buyer’s exclusive property and Seller disclaims all rights in same. Where payment is made for experimental, developmental, or research work, as such, to be performed in accordance with special requirements of Buyer, Seller agrees to disclose and on request to assign to Buyer each invention, property right, confidential process or know-how, and trade secret resulting therefrom or other form of intellectual property and Seller shall disclaim all rights in same. All drawings, art work, special products, materials, information or data furnished by Buyer and all intellectual property resulting from this order (as referenced in the foregoing sentence) are Buyer’s exclusive property, shall be used by Seller only for Buyer’s work, shall be deemed Buyer’s proprietary information shall be kept confidential and shall be returned promptly at Buyer’s request.

Assignments and Subcontracting

No part of this order may be assigned or subcontracted without the prior written approval of Buyer.

Setoff

All claims for money due or to become due from Buyer shall be subject to deduction or setoff by the Buyer of any counterclaim arising out of this or any other transaction with Seller.

Shipment

If in order to comply with Buyer’s required delivery date it becomes necessary for Seller to ship by a more expensive way than specified in this purchase order, any increased transportation costs resulting therefrom shall be paid for by Seller unless the necessity for such rerouting or expedited handling has been caused by Buyer.

Waiver

Buyer’s failure to insist on performance of any of the terms or conditions herein or to exercise any right or privilege or Buyer’s waiver of any breach hereunder shall not thereafter waive any other terms, conditions, or privileges, whether of the same or similar type.

Force Majeure

In the event of war, flood, strike, labor trouble, accident, riot, act of any governmental authority, pandemic, acts of God or contingencies beyond the reasonable control of the Buyer, Buyer shall not be liable to Seller for its cancellation of this agreement or delay of the acceptance of materials or services tendered for delivery under this agreement.

Governing Law; Venue

The interpretation of this agreement and of the rights and obligations of the parties under this agreement, and all questions concerning the validity of this agreement, shall be governed by the laws of the State of Washington. Any suit, action or proceeding brought by either party to enforce any term or provision of this agreement, or to determine the validity of this agreement, or concerning this agreement or the subject hereof in any manner, shall be commenced and maintained solely in state or federal courts having jurisdiction at the Buyer’s address set forth on the face hereof. The Convention for the International Sales of Goods shall not apply to this agreement.

Invalidity

The invalidity in whole or in part of any condition of this Purchase Order shall not affect the validity of any other condition. The remedies provided in this Purchase Order are in addition to any other remedies in law or equity.

Compliance With Laws

Seller acknowledges that the Products may be resold, either directly or indirectly; guarantees and warrants compliance with all federal (including but not limited to the FDA Act, the FIFR Act, the Food Safety Modernization Act and all of their amendments), state and local laws and regulations applicable to this sale; and agrees to defend, indemnify, and hold Buyer harmless against any liability resulting from any non-compliance.