PURCHASE ORDER TERMS AND CONDITIONS OF ROSINA FOOD PRODUCTS, INC. AND ROSINA MANAGEMENT CORP. (EACH A “PURCHASER”)

PURCHASE ORDER TERMS AND CONDITIONS

1. ACCEPTANCE: Vendor’s acknowledging receipt of a purchase order (a “Purchase Order”) from Purchaser, or Vendor’s commencement of any work pursuant to a Purchase Order shall in each case constitute acceptance by Vendor of these terms and conditions which shall become part of the Purchase Order. Acceptance of a Purchase Order is expressly limited to these terms and conditions. Purchaser objects to any and all different or additional terms and conditions of sale which Vendor sets forth on its acknowledgement of a Purchase Order or on any other document or communication of Vendor related to a Purchase Order. Rosina Food Products, Inc. is a third party beneficiary of each Purchase Order issued by Rosina Management Corp., and Rosina Food Products, Inc. shall have the same rights to enforce such Purchase Order, including these terms and condition, as Rosina Management Corp. has with respect to such Purchase Order.
2. DELIVERABLES BEING PURCHASED: Deliverables shall be as described on the Purchase Order, including all specifications and/or drawings referred to on the Purchase Order (collectively “Specifications”).
3. PRICE AND PAYMENT: The price and payment terms for the Deliverables shall be as set forth on the Purchase Order. Unless otherwise indicated on the Purchase Order, prices on the Purchase Order include all applicable taxes, federal, state or local, except applicable state or local sales taxes. If no payment terms are stated, payment is due thirty (30) days following completion of all performance obligations of Vendor pursuant to the Purchase Order and Purchaser’s receipt of Vendor’s invoice. Vendor warrants that the price charged to Purchaser is not higher than Vendor’s price charged to other buyers for the same or similar Deliverables. Purchaser may pay the purchase price by check, draft or electronic funds transfer. Payment will be in United States Dollars unless otherwise specified.
4. CHANGES: At any time by written order to Vendor, Purchaser may make changes to the Purchase Order, including (which term shall always mean including but not limited to) the Deliverables, any Specifications, the method of shipment or packing, place of delivery or delivery schedule. If any such change results in an increase or decrease in the cost of, or time required for, the performance of the Purchase Order, an equitable adjustment shall be made to the purchase price of the Deliverables. Any claim by Vendor for an adjustment to the purchase price of the Deliverables must be made in writing to Purchaser within seven (7) days from the date of receipt by Vendor of Purchaser’s written change order.
5. DELIVERY: Deliverables shall be delivered on a timely basis on or before the date stated on the Purchase Order. Purchaser shall have no obligation to accept or pay for any Deliverables not delivered on time. Vendor shall immediately notify Purchaser in writing of any circumstance, event or occurrence that will or will likely result in the inability of Vendor to deliver any Deliverables on time, in which event Purchaser, at its option, may extend the time for delivery of such Deliverables or cancel the Purchase Order and have no further obligations thereunder.
6. REJECTION: Purchaser shall have the right to reject any non conforming or defective Deliverables and to return them to Vendor, at Vendor’s expense. Any payment made in respect of rejected Deliverables shall be promptly refunded. All containers or packages used to deliver Deliverables and all invoices shall be properly identified and refer to Purchaser’s Purchase Order number on the face thereof. All markings shall be legible. A packing list describing the Deliverables shall accompany each shipment. Deliverables shall be suitably prepared for shipment and packed and shipped in accordance with applicable classifications and tariffs.
7. RISK OF LOSS: Deliverables shall be shipped FOB Purchaser’s designated point of delivery on the Purchase Order. Title to and all risk of loss or damage shall remain with Vendor until the Deliverables are received by Purchaser.
8. QUALITY: Deliverables shall strictly conform to Specifications. On delivery, Deliverables shall be subject to Purchaser’s inspection and provisional acceptance. However, no such inspection or provisional acceptance shall constitute a waiver of any right or remedy to which Purchaser is otherwise entitled pursuant to the Purchase Order.
9. QUANTITY; INSTALLMENT; COUNT: Purchaser shall have no obligation to accept or pay for any Deliverables delivered or provided in excess of that specified in the Purchase Order. At Vendor’s expense, Purchaser may return any excess Deliverables to Vendor. If a Purchase Order provides for delivery in multiple installments, Vendor’s failure to deliver any installment on time shall constitute a breach. Purchaser’s count of Deliverables shall be conclusive unless proven to be manifest error.
10. PACKAGING: Deliverables shall be packed in suitable containers for protection in shipment and storage. Prices set forth in the Purchase Order include all charges for Vendor’s packaging. Items of packaging will not be returned to Vendor unless previously agreed in writing.
11. BOOKS AND RECORDS: In the event the purchase price of the Deliverables is to be computed on a “cost plus” basis, Vendor shall maintain accurate and complete books and records with respect to the cost of the manufacturer and/or rendering of such Deliverables and shall retain complete and accurate copies of all invoices, receipts, vouchers, etc. relating thereto. Upon request, Vendor shall supply Purchaser or Purchaser’s representatives with access to all such books and records. Purchaser shall be entitled to make copies of any or all such books or records.
12. FORCE MAJEURE: Purchaser shall not be liable for any failure or delay in accepting delivery of any Deliverables or performing its obligations with respect to any Deliverables if such failure or delay is caused by a strike, lockout, labor dispute, accident, war, act of terrorism, act of God, fire, flood or other casualty or cause beyond Purchaser’s reasonable control.
13. INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS: Vendor represents and warrants that neither Vendor’s manufacture, sale or delivery of any Deliverables nor Purchaser’s intended use of such Deliverables infringe upon or violate any United States or foreign patent right, copyright, trademark or other proprietary right of any third person or entity. In the event of any such allegation of infringement, Purchaser may cancel the Purchase Order for such Deliverables without obligation or liability to Vendor. Vendor, at its expense, shall also use its best efforts to enable Purchaser to continue to use such Deliverables (a) by altering the Deliverables to make them non infringing, provided such altered non infringing Deliverables will fulfill the same function and perform the same as prior to such alteration or (b) by obtaining for Purchaser non infringing Deliverables which will fulfill the same function and perform the same as the infringing Deliverables or (c) by obtaining a settlement or license agreement satisfactory to Purchaser permitting Purchaser’s use of any infringing Deliverables.
14. WARRANTIES: In addition to any other warranty or representation set forth on a Purchase Order, Vendor warrants that (a) Deliverables will conform to Specifications and any samples agreed upon by Purchaser and Vendor, (b) Deliverables shall be merchantable and fit and safe for the purpose for which they are intended, (c) all components of Deliverables, and the Deliverables themselves, shall comply with all applicable federal, state and local codes, ordinances, rules and regulations, (d) Vendor’s manufacture, sale and delivery of the Deliverables comply with all applicable federal, state, and local codes, ordinances, rules, and regulations (including, without limitation, the Occupational Health and Safety Act of 1970, all applicable environmental laws, and all rules and regulations related to each) and (e) if Deliverables consist of services to be rendered by Vendor, Vendor shall render such Deliverables with no less than the degree of care, skill, and diligence that other service providers engaged in Vendor’s industry ordinarily exercise under like or similar circumstances. Vendor shall not be relieved from any liability to Purchaser arising out of a breach of the foregoing warranties by reason of Purchaser’s inspection or provisional acceptance of any Deliverables or the execution or delivery of any certificate of acceptance by Purchaser with respect to any Deliverables. Vendor further warrants that all Deliverables will perform their required functions in a manner satisfactory to Purchaser. Vendor, at Vendors cost, shall promptly remove and replace any and all Deliverables or parts thereof, materials or workmanship which are defective or non-conforming to Specifications. If Deliverables consist of or include any food products, ingredients or organic items, Vendor expressly represents and warrants to Purchaser that no such item shall be, when so shipped or delivered: (i) adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act as amended from time to time (the “Act”), to the extent the Act is then effective and applicable; or (ii) in violation of §344 of said Act.
15. INSURANCE: Vendor shall maintain in full force and effect for no fewer than three (3) years following the acceptance of a Purchase Order: (i) one or more liability insurance policies providing coverage against bodily injury or property damage arising out of the manufacture, use or delivery of any Deliverables hereunder, or any negligent or willful act of Vendor relating to any Deliverable, such policy or policies to provide, in the aggregate, no less than $1,000,000 of combined single limit coverage, and (ii) one or more insurance policies providing coverage against any loss or damage to the Deliverables prior to the delivery of the Deliverables to Purchaser and at all times while such Deliverables are in the care, use or possession of Vendor. Upon request, Vendor shall promptly deliver to Purchaser one or more certificates of such insurance issued by the carrier(s) of such policies which shall provide in part that no such policy shall be terminated upon less than thirty (30) days prior written notice to Purchaser and that Purchaser is a named insured on each such policy, as its interest may appear.
16. INDEMNIFICATION: Vendor shall indemnify and hold Purchaser harmless from and against each and every loss, liability, cost, damage or expense (including reasonable attorney’s fees) of whatever kind or nature (each a “Loss”), which arise directly or indirectly out of or in connection with (i) any allegation, claim or charge that any Deliverables furnished by Vendor, or the use of same constitutes an infringement or violation of any patent or patent right, copyright, trademark or other proprietary right or interest of any third person or entity, (ii) Vendor’s beach of any representation, warranty, obligation or covenant made by or to be performed by Vendor as part of a Purchase Order, and/or (ii) any act or omission of Vendor, or any of its employees, agents, representatives or subcontractors. Upon Purchaser’s request, Vendor shall assume and pay for the defense of Purchaser against any such allegation, claim or charge; provided, Purchaser shall have the right to be represented in such matters by additional counsel of Purchaser’s choice, acting at Purchaser’s expense. Purchaser shall be entitled to exercise all rights and remedies at law and at equity to which it may be entitled, including but not limited to the right to seek and obtain both actual, special and consequential damages, and the equitable relief of injunction.
17. DEFAULT: Purchaser may terminate a Purchase Order or any part thereof in response to any default or breach by Vendor, including any failure by Vendor to comply with any aspect of the Purchase Order.
18. PURCHASER’S LIMITED LIABILITY: In no event shall Purchaser be liable to Vendor for any extraordinary, exemplary, special, indirect, consequential, or incidental damages of any kind, including lost profits, even if Purchaser has been advised of the possibility of such damages.
19. RIGHT OF TERMINATION: Purchaser may at any time, upon notice to Vendor, terminate or reduce a Purchase Order as regards to all or any part or part of the work not then completed. Upon such notice being given, Vendor shall cease work (including the manufacturing and/or procuring of materials for the fulfillment of the Purchase Order) in accordance with and to the extent specified in such notice. In such event, all work completed by Vendor hereunder before the giving of such notice, shall be paid for on a percentage of completion basis, subject to acceptance by Purchaser, and Purchaser shall have no further liability in respect of such Purchase Order.
20. FINANCIAL RESPONSIBILITY: Vendor warrants that it has, and will at all times maintain, and upon request by Purchaser, show that it has, sufficient working capital and financial ability to perform and complete the Purchase Order. Vendor expressly warrants that it is not insolvent within the meaning of the Federal Bankruptcy Laws and the laws of the states in which it conducts its business. In addition to any and all other rights and remedies which Purchaser may have pursuant to a Purchase Order or at common law, Purchaser reserves the right to terminate the Purchase Order without liability in respect of any undelivered Deliverables if Vendor shall (i) become insolvent or bankrupt, (ii) make any general assignment for the benefit of its creditors, (iii) have a trustee or receiver appointed of any substantial part of Vendor’s assets or (iv) be adjudicated a bankrupt.
21. INVOICES: All invoices rendered by Vendor shall be in accordance with the instructions pertaining to the same set forth on the Purchase Order, and shall be accompanied by an original bill of lading or express receipt. Purchaser shall pay Vendor its invoice in accordance with the terms set forth on the Purchase Order; provided, Purchaser reserves the right to withhold all or any portion of any invoice sum in the event Vendor fails to comply with each and every term and condition of the Purchase Order. Calculations of cash discounts or net payment periods will be made from the date an acceptable invoice is received by Purchaser.
22. CONFIDENTIALITY; PUBLICITY: The content of a Purchase Order shall be kept confidential. Vendor shall take all reasonable measures to insure that the contents of a Purchase Order, including all Specifications, and shall only be disclosed to Vendor’s employees, consultants and advisors on a strict need-to-know basis, and shall not be used by Vendor in any manner other than for the benefit of Purchaser.
23. CONTROLLING LAW; JURISDICTION: Each Purchase Order shall be governed by and construed in accordance with the laws of the State of New York. All disputes between Purchaser and Vendor relating to the subject matter of a Purchase Order shall be resolved exclusively in the Federal and state courts of New York located in Erie County, New York. Vendor consents to the personal jurisdiction of such courts.
24. ASSIGNMENT: Vendor may not assign or transfer any right or interest in or to a Purchase Order to any other person or entity, directly or indirectly or by operation of law, without the prior written consent of Purchaser.
25. NOTICES: Any and all notices required to be given pursuant to a Purchase Order shall be in writing and hand delivered (including by commercial courier), with an appropriate receipt thereof obtained, or sent by United States certified mail, return receipt requested, to the addresses of the respective parties set forth on the Purchase Order, or to such other address as either party may designate to the other by written notice for such purpose from time to time.
26. NON-WAIVER: Purchaser’s exercise or failure to exercise or enforce any right or remedy to which it is entitled, or its acceptance of or payment for any Deliverables, shall not be deemed as or construed to be a waiver of any right or remedy it may have for Vendor’s then existing or subsequent default or breach of any representation, warranty, obligation, or covenant applicable to a Purchase Order.
27. ENTIRE AGREEMENT: Each Purchase Order constitutes the sole and entire agreement between Purchaser and Vendor with respect to the subject matter thereof, and any prior or contemporaneous understandings or agreements, oral or written, are merged herein. No subsequent changes or modifications of a Purchase Order are binding upon Purchaser unless accepted by it in writing. Vendor expressly waives all provisions contained in correspondence, forms, or other writings relating to the sale of the Deliverables covered by a Purchase Order which negate, limit, extend, or conflict with the provisions thereof. In the event any term or provision hereof shall be deemed unenforceable, the remaining terms and conditions shall remain in effect to the fullest extent possible.