Central Garden & Pet - Purchasing Terms & Conditions
Throughout this Agreement/Document, the term "Company" shall refer to that certain respective subsidiary of Central Garden & Pet Company with whom you do business, including the legal entity or entities represented by that subsidiary. Throughout this Agreement/Document, the term “Seller” shall refer to you, including the legal entity or entities you represent.
Acceptance is limited to the terms stated herein and no revision or addition to this order shall be effective (whether or not in Seller's acknowledgment or other form) unless agreed to in writing by Company’s authorized representative. Written acknowledgement or commencement of performances pursuant to this Purchase Order constitutes acceptance of all the terms and conditions herein and none other by the Seller, whether or not the Seller has acknowledged this order or has stated additional or different terms in connection with any acknowledgment, order form, invoice, or other notification to Company. Specifications, drawings, notes, instructions, engineering notices, or technical data referred to herein shall be deemed to be incorporated by reference. In case of any discrepancies or questions, Seller shall refer to Company for decision or instructions or for interpretation. In the event of any inconsistency between these printed terms and conditions and the terms of Company’s Purchase Order, Seller’s acknowledgment or any other document, these printed terms and conditions shall prevail.
Deliveries. (a) Goods, parts, materials, and services hereunder are to be delivered and sold at Company’s place of business as indicated on the face side hereof. (b) Company’s production schedules are based upon Seller's assurance of delivery to Company by the date specified on the face side hereof. Time is of the essence in this agreement. If delivery dates cannot be met, Seller shall inform Company in writing by return mail of Seller's best possible delivery time for Company’s approval. If the alternate delivery dates do not meet with Company’s approval, Company shall have the right to cancel the Purchase Order without further liability, purchase elsewhere, and/or hold the Seller accountable for all damages, both direct and indirect, resulting from the Seller's unacceptable delivery dates. If late deliveries are made, Company may cancel this Purchase Order, purchase elsewhere, and/or hold Seller accountable for all damages, both direct and indirect, resulting from Seller's failure to deliver on schedule.
Price and Payment. Seller's prices shall not be higher than last quoted or charged to Company or stated on the reverse side hereof unless otherwise agreed to in writing by an authorized agent of Company. No charges by Seller will be allowed for transportation, boxing, crating, or other packaging unless agreed to herein. The price quoted herein includes an allowance for all taxes levied by any government or authority which the Seller is required to pay or collect with respect to production, sale, or shipment of the ordered materials. In case of new taxes or the reduction of tax rates, Company should be informed of such changes, and the contract price shall be adjusted accordingly. Company shall not be obliged to pay for goods, parts, or material upon their delivery, but shall have the right to make payment for goods, parts, and materials delivered in the normal course of its business; any payment made for goods, parts, and materials delivered shall be without prejudice in the event of any defect in the goods and services performed or breach of contract, whether known before or after payment. Company shall also have the option to withhold payment for goods, parts, and materials, and services found upon inspection for use to be defective or for Seller's breach of contract.
In the state of Nebraska, WARNING TO SELLER: You will have no recourse to the grain dealer's security posted with the Nebraska Public Service Commission (NPSC) unless you are a Nebraska producer and you: (1) demand payment from the grain dealer within fifteen (15) days after the date of the last shipment of any contract; (2) negotiate any negotiable instrument issued as payment for your grain by the grain dealer within fifteen (15) days after its issuance; and, (3) notify the NPSC, PO Box 94927, Lincoln, NE 68509-4927, within fifteen (15) days after an apparent loss. The grain dealer's security shall provide security for direct delivery grain until a post-direct delivery storage position is created for a period not to exceed fifteen (15) days after date of the last shipment of grain. Direct delivery of grain may affect the eligibility of the grain for participation in federal price support programs. Nebraska Law defines a producer as the owner, tenant, or operator of land in this state who has an interest in and receives all or part of the proceeds from the sale of grain produced on that land.
Quantities. Shipment must equal exact amounts ordered unless otherwise agreed to in writing by an authorized agent of Company.
Warranties. Seller warrants that all materials or services delivered hereunder are free from defects in materials and workmanship and conform strictly to the specifications, drawings or samples specified or furnished to Seller. To the extent that such materials or services are not furnished pursuant to design furnished by Company, they will be free from defects in design suitable for their intended purposes and free from any industrial property rights. If the goods, parts or materials ordered are to be manufactured or supplied in accordance with drawings and specifications which are furnished by Company and which are not based on drawings or specifications of Seller, or upon Seller's design, Seller agrees to grant and hereby does grant to Company, a nonexclusive fully paid-up and irrevocable license to make, have made, use and sell any improvement in the goods, parts and the materials, which is made or introduced by Seller in its work hereunder. These warranties shall survive any inspection, delivery, acceptance, payment or use by Company or its customers of the materials or services and shall run to Company, its successors, assigns, customers and users of its products. Seller shall defend, indemnify, and hold harmless Company, its successors, assigns, customers, and users of its products against any and all loss, injury and damage suffered by any of them and against any and all suits, proceedings of law or in equity and any and all liability for losses, injuries and damages, including all reasonable attorney's fees, arising out of or in connection with any claim by any person, firm or organization, including Company, its successors, assigns, customers, and users of its products, that the material or services furnished by Seller are or were defective, infringing or injurious in any manner. Seller shall be liable for all indirect, incidental, special, and consequential damages.
Minimum Conduct Standards. Seller warrants that it will comply with all applicable laws, rules, regulations, and/or requirements in the manufacture and distribution of the materials or services delivered hereunder. Without limiting the foregoing, Seller will not use child labor as defined by local law; will not use forced or compulsory labor; will not physically abuse labor; will respect employees' rights to choose third party representation and to bargain collectively to the extent provided by local law; will comply with local working conditions and regulations; and will comply with all applicable environmental laws. Seller understands that it must be able to demonstrate its compliance with these requirements at the request of and to the satisfaction of Company. Seller's failure to satisfy Company of such compliance will subject Seller to immediate termination, without penalty to Company, of any Purchase Order of Company hereunder.
Food and Drug Guarantee. Seller guarantees that no material constituting, or being part of, any shipment or other delivery now or hereafter made to Company will at the time of such shipment or delivery, be adulterated or misbranded within the meaning of the Federal Food, Drug, and Cosmetic Act, as amended or within the meaning of any applicable state or municipal law in which the definition of adulteration and misbranding are substantially the same as those contained in the Federal Food, Drug, and Cosmetic Act, as amended, as said Act and such laws are constituted and effective at the time of such shipment or delivery, or be a material which may not, under the provisions of Section 404 or 505 of said Act, be introduced into interstate commerce.
Inspection and Rejection. Final inspection shall be on Company’s premises unless otherwise agreed in writing. Materials rejected as not conforming to the Purchase Order shall be returned at Seller's expense, including transportation and handling costs.
Company’s Property. All material, including tools or machines, furnished or specifically paid for by Company, shall be the property of Company, shall be subject to removal at all times without additional cost upon demand by Company, shall be used only in filling orders from Company, shall be kept separate from other materials or tools, shall be clearly identified as the property of Company, shall be insured by the Seller with loss payable to Company and shall be kept confidential and returned to Company at the termination of this Purchase Order, or upon such other date as is agreed to by Company. Seller assumes liability for all loss or damage, excepting normal wear and tear, to such materials and agrees to supply detailed statements on the material as requested by Company.
Patents. Seller agrees to defend, at its own expense, and hold harmless Company, its distributors, and its dealers in and users of the product or materials furnished by Seller under this Purchase Order with respect to any and all claims that such products or materials infringe on U.S. Patents or foreign patents and with respect to any and all suits, controversies, demands and liabilities arising out of any such claim. With respect to the purchase or lease of equipment, the Seller agrees to defend any suit for patent infringement which may be brought against Company based upon Company’s use of the equipment purchased or leased, to hold Company harmless and to indemnify Company in full against all liabilities, damages, and expenses arising out of such suits. Company shall notify Seller promptly of the institution of any such suit and Seller may conduct it upon the foregoing understanding. Company reserves the right to compromise or settle its own liability at any time upon releasing Seller from its obligations under this paragraph. If Company is enjoined from using such equipment, Seller agrees, at Company’s election, but without expense to Company, to remove said equipment and immediately terminate the lease or purchase it from Company at the original purchase price. Seller's obligation to defend Company and to hold Company harmless shall survive any resale of equipment or termination of lease of equipment under this paragraph.
Damages. Company’s liability for breach of this Purchase Order shall not exceed the difference between the resale price of any materials or work in process, sold in good faith and in a commercially reasonable manner, and the purchase price of such materials or work in process, less expenses and costs avoided by Seller as a result of Company’s breach. Company shall not be liable for any indirect, incidental, special or consequential damages. Seller's remedies contained herein are not optional, but shall be Seller's exclusive remedies.
Assignment. No right or obligation under the Purchase Order, including the right to receive monies due or to become due hereunder, shall be assigned by the Seller without prior written consent of Company, and any such attempted assignment shall be void.
Set-Off. All claims for monies due or to become due from Company under this Purchase Order, including claims of any permitted assignees, shall be subject to the deduction by Company of any set-off or counter claim arising out of this or any other of Company’s Purchase Orders with Seller, whether such set-off or counter claim arose before or after such permitted assignment.
Insolvency. Company may cancel this Purchase Order without any further liability to Company, its successors or assigns, if the Seller commits an act of bankruptcy, becomes insolvent, is adjudicated as bankrupt or has a voluntary or involuntary petition of bankruptcy filed against it.
Contract. This Purchase Order and the acceptance thereof shall be a contract made in the State of Arizona and governed by the laws thereof.
Traffic Routing. Any losses resulting from deviation from Company’s routing instructions will be charged to Seller's account and may be set off against monies due to Seller under this Purchase Order.
Waiver. No delay or failure by Company in exercising any rights under this Purchase Order and no partial or single exercise thereof shall constitute a waiver of such rights or any other rights hereunder.
Changes, Termination and Cancellation. Company may, from time to time, without notice to any sureties or assignees, change packing, testing, destination, specifications designs, and delivery schedules (postponements only). Seller shall immediately notify Company of any increases or decreases in costs caused by such changes and an equitable adjustment in prices or other terms hereof shall be agreed upon in a written amendment to this Purchase Order. Company shall have the right of cancellation without having further liability to the Seller if materials or services furnished hereunder do not strictly conform to specifications of Company. Company may also terminate this Purchase Order in whole or in part at any time for any reason whatsoever by written or telegraphic notice to Seller. Upon receipt thereof, Seller will, as and to the extent directed by Company, terminate work under this Purchase Order and any subcontracts outstanding hereunder and take any necessary action as to property in Seller's possession in which Company has or may acquire an interest. Company shall have the right to demand that Seller deliver to Company any of the goods, parts, materials, or work in process for which Company shall make written request at or within a reasonable time after termination or cancellation of this Purchase Order and Company will pay Seller the fair value of any property so requested and delivered. Unless and to the extent otherwise specifically provided for elsewhere herein, the only liability of Company for termination or cancellation of this Purchase Order in whole or in part is reimbursement to the Seller for all direct costs incurred by the Seller as to the balance of this Purchase Order, less the greater of either any amounts received by the Seller on resale of such work in process or the reasonable value of such work in process. Such payment by Company will be in full satisfaction of all claims which Seller may have against Company under this Purchase Order and/or for the cancellation or termination hereof.
Proof of Shipment. Seller shall forward to Company, with the invoice, the express receipt or bill of lading signed by the carrier, evidencing the fact that shipment has been made.
FDA & EPA Inspection. Seller acknowledges that the material purchased hereunder may be incorporated into products which will be purchased by an agency or branch of the federal government. In the event the federal government requests an inspection by the Environmental Protection Agency (EPA) or Food and Drug Administration (FDA) of the manufacturing facilities and records relative to the materials purchased hereunder, Seller hereby agrees that said inspection will be permitted.
EEO. Central Garden & Pet Company is a federal government contractor and, as such, is subject to the requirements of Executive Order 11246, as amended; Section 503 of the Rehabilitation Act of 1973, as amended; the Vietnam Era Veterans Readjustment Assistance Act of 1974; and, the Jobs for Veterans Act of 2003 (JVA). Pursuant to these requirements, our suppliers, contractors and subcontractors are obligated to take affirmative action and to provide equal employment opportunity to applicants and employees, without regard to race, sex, color, religion, sexual orientation, gender identity, national origin, protected veteran or disability status. Those obligations include compliance with one or more of the following:
Equal Opportunity Clause. Suppliers, contractors and subcontractors with contracts exceeding $10,000 (Executive Order 11246/Section 503), or $100,000 (VEVRAA/JVA) in any 12-month period are required to include the Equal Opportunity Clause in each of its nonexempt contracts.
VETS-4212 Report. Suppliers, contractors and subcontractors with contracts of $100,000 or more with any department or agency of the United States for the procurement of personal property or non-personal services are required to complete and file on an annual basis a VETS-4212 report with the U.S. Department of Labor, Office of Veterans’ Employment and Training.
EEO-1 Report. Suppliers, contractors or subcontractors with 50 or more employees, and contracts, subcontracts or purchase orders amounting to $50,000 or more, must file an EEO-1 Report (Standard Form 100) on an annual basis with EEOC’s EEO-1 Joint Reporting Committee.
Affirmative Action Plan. Suppliers, service contractors and subcontractors with 50 or more employees and at least one covered contract for $50,000 or more (Executive Order 11246 / Section 503), or 50 or more employees and a covered contract for $100,000 or more (VEVRAA/JVA), are required to prepare a written Affirmative Action Plan for each of its covered establishments.
ATTACHMENTS. If applicable, Seller shall submit drawings and specifications to Company for approval in accordance with a schedule approved by Company and in such reasonable quantities as Company may require. Such approval by Company shall not relieve nor lessen any of Seller's obligations under this Purchase Order, and any specifications and drawings which are attached or are approved by Company pursuant to this Section are hereby incorporated into and made a part of this Purchase Order.
COMPANY CONFIDENTIAL INFORMATION. Seller shall treat as Company’s confidential property and not use or disclose to others during or subsequent to the term of this Purchase Order, except as is necessary in the performance hereof, any information regarding Company’s plans, programs, plants, processes, products, costs, equipment, operations or customers which may come within the knowledge of or which may be developed by Seller or its employees in performance hereunder. The foregoing provision shall not prevent Seller from using or disclosing to others information which Seller can show: has become part of the public domain other than by breach of this Section; or has been furnished to Seller by third parties as a matter of right and without restriction on disclosure or use; or which was in Seller's possession (other than as a result of Company’s previous disclosure to Seller) at the time Seller entered into this Purchase Order. Seller shall restrict the knowledge of all such information to as few as possible of its employees and, upon request of Company, cause such persons involved in the performance hereunder as Company designates to sign confidentiality agreements in a form acceptable to Company. Seller agrees that all drawings, specifications, data, memoranda, calculations, notes and other material furnished by Company, or any copies thereof, are the property of Company and shall be delivered to Company at the completion or termination of the Purchase Order or at any time upon request of Company. Seller further agrees that Seller will not publish, publicize or advertise the existence of this Purchase Order or the subject matter hereof or in any way associate Company herewith.
ELECTRONIC COMMERCE AGREEMENT. This Electronic Commerce Agreement (“Agreement”) is incorporated into the Company Purchase Order Terms and Conditions in order to facilitate their transacting business via electronic exchanges.
Parties Intend to be Bound by Electronic Exchanges Both parties to this Agreement hereby evidence their intention to be bound by the electronic exchanges as described herein and specifically agree as follows:
The parties agree that no separate “writing” shall be required in order to make their EDI transactions legally binding, notwithstanding any contrary requirement in any law.
The parties agree that no “signature” shall be required in order to have legally enforceable EDI transactions between them.
The parties hereby agree that neither will raise any defense of lack of writing or lack of signature or any other similar defense based upon a “Statute of Frauds” or similar rule in any dispute which may arise between them for any transaction entered into through electronic data interchange.
Offer and Acceptance
Electronic transmission of an order by Company to Seller shall be effective as an offer when it is received on the Seller’s terminal. Said offer shall be accepted by Seller in any one of the following ways:
Via electronic transmission of an acknowledgment, acceptance or receipt of the offer; or
The shipment of the goods called for in the offer.
Terms of the Transaction(s)
The terms of any electronic transaction shall be those terms and conditions which may be contained in the electronic data transmissions, via e-mail, web-based purchasing or other electronic transfer of information.
Miscellaneous
Nothing in this Agreement shall be deemed to create any responsibility of either party to buy or sell any specific goods. This Agreement is solely intended to facilitate the handling of electronic transactions between the parties. Neither party shall be entitled to, or required to do any certain amount of business with the other, nor shall either party be required to do business with the other for any certain period of time.
This Agreement may be terminated by either party by giving sixty (60) days written notice to the other. Such termination of this agreement shall not affect any transactions entered into before the effective date of the termination, even if the performance of such transactions is to take place after the effective date of termination.
The parties agree that the documents to be exchanged electronically, the format to be used, and the products covered are those identified and mutually agreed upon by both parties. While it is the intent of both parties to use electronic transmission to the extent practical, this Agreement does not preclude the exchange of documents by other methods when required by special circumstance.
The parties agree to adopt and maintain reasonable security procedures to ensure that: (1) documents transmitted electronically are authorized; (2) business records and data are protected from improper use; and (3) access codes and electronic identification codes are adequately secured.
This Agreement shall be governed by the laws of the State of Arizona.
