Terms

1.   Definitions:  The term “Contract” means these Terms and Conditions for Purchase of Products (“Terms and Conditions”), together with all documents specifically referenced and any written purchase order, contract, or agreement which attaches, incorporates, or otherwise references these Terms and Conditions.  The term “George’s” means George’s, Inc., or its subsidiary(ies), affiliate(s), or related entities executing this Contract.  The term “Seller” means any individual, corporation, or other entity, that is to supply Products purchased by George’s pursuant to this Contract.  Individually, George’s, or Seller may be a “Party,” or collectively, “Parties.”  The term “Products” means the goods or materials sold by Seller and purchased by George’s under this Contract. 

2.   Scope and Acceptance:  All Products are supplied pursuant to this Contract. This Contract will become legally enforceable on the earlier of delivery of a signed acknowledgment, commencement of performance, or shipment of all or any portion of the Products covered under this Contract, by Seller or Seller’s agent.  As an offer, any acceptance of this Contract is limited to acceptance of the express terms of the offer contained on the attached order and notification of objection to any different or additional terms in any response to this offer from the Seller is hereby given.  If this Contract is considered an acceptance of Seller’s offer, this acceptance is expressly conditioned on Seller’s assent to any additional or different terms contained in this Contract.  If this Contract is considered a confirmation of an existing contract, the Parties agree that this Contract constitutes the final, complete, and exclusive Terms and Conditions of the Contract between the Parties. 

3.   Blanket Order:  If this Contract is identified as a “Blanket” contract or “Blanket” order or in some other manner references a specific quantity of Products to be purchased, Seller acknowledges that the quantities specified and delivery dates listed in such “Blanket” Contract are contingent upon the issuance of a release by George’s identifying the Products to be purchased and providing delivery directions.  When a Contract is identified as a “Blanket” Contract or deliveries are otherwise specified to be in accordance with George’s written releases, Seller will not fabricate or assemble any Products, procure required materials, or ship any Products except to the extent authorized by such written releases or provisions of a Contract specifying minimum fabrication and delivery quantities.  Forecasts are not releases and may not be relied upon by Seller.  Releases are included in the term “Contract”.  By accepting a “Blanket” Contract, Seller agrees to accept all releases issued by George’s. George’s assumes no liability for and is released from purchasing Products produced, processed, or shipped in excess of a purchase order.

4.   Price/Terms:  Seller warrants that the prices set forth in this Contract are complete and that no additional charge of any type will be added without George’s prior express written consent, including but not limited to, charges for shipping, packaging, labeling, custom duties, taxes, storage, insurance, boxing, and crating.  Unless otherwise specified in the Contract, all prices will be F.O.B. destination (place of delivery). Seller shall bear the risk of loss of or damage to all goods purchased pursuant to the Order until they are received by George’s. Seller further warrants that the prices set forth in this Contract are the lowest prices charged for the Products, or substantially similar products, sold by Seller to its other customers.  If, after execution of this Contract, but prior to payment by George’s for Products, Seller:

(a)    sells, or offers to sell, Products, or substantially similar products, to another customer at a lower price;

(b)    offers a reduction in price to any customer already purchasing Products, or substantially similar products; or

(c)    sells, or offers to sell, Products, or substantially similar Products, on commercial terms that are, in George’s reasonable judgment, more favorable than those set forth in this Contract,

then such lower price or more favorable terms will be applicable to all purchases of Products by George’s.  If, at any time during the term of this Contract, George’s receives a bona fide offer from a third party to supply Products to George’s on similar commercial terms, but at a lower price, George’s may, but is not required to, notify, and provide the necessary particulars of such offer to Seller, and Seller will, within thirty (30) days thereafter, inform George’s whether it will match such price for Products purchased.  If Seller does not agree to match such price, George’s may, in its sole discretion, elect to purchase Products from such third party, and any obligation of George’s to purchase Products from Seller pursuant to the terms of this Contract will be deemed to be waived by Seller to the extent of any such purchases.  Upon request of George’s, Seller will be required to certify that it is in compliance with the requirements of this paragraph.  In addition, George’s will have the right to examine and audit, during normal business hours, any and all records, data, invoices, and documents, in whatever shape or form, including, but not limited to, electronic media, that may contain information relating to Seller’s obligations as set forth in this paragraph and the costs incurred pursuant to this Contract.  Such records will be kept by Seller for a period of at least three (3) years after the expiration or termination of this Contract or for such longer periods as may be required by law, in a form that is clear and accurate and containing content sufficient and adequate to permit an audit by George’s.  Except as otherwise expressly set forth in this Contract, George’s will have no obligation to purchase any specific quantity of Products from Seller and George’s will be entitled, in its sole discretion, to purchase the same or similar Products from other suppliers.   George’s expressly reserves the right to disclose any of the terms of this Contract, including but not limited to pricing, to third parties.

5.   Setoff:  All claims for money due or to become due to George’s shall be subject to a deduction or setoff by George’s by reason of any counterclaim arising out of this or any other transaction with Seller.

6.   Changes: Seller must provide George’s with prior written notification of any change to the Product, including, but not limited to, changes in raw material ingredients, allergens, nutrition, labeling, manufacturing processes, analytical processes, quality control/ assurance programs, certifications, or other similarly related records. Such notification must be made thirty (30) days in advance of any change being implemented and must be accompanied by explanatory and factual information supporting the change and directed to George’s Purchasing Analyst, P.O. Drawer G, Springdale, AR 72765-2030. George’s will provide a timely written response to verify the acceptance or rejection of the change. Any attempted change to Product(s) without George’s prior written consent may result in the immediate termination of this Contract, at George’s sole discretion and without George’s incurring additional liability to Seller. Also, George’s shall have the right at any time to make changes in drawings, designs, specifications, materials, packaging, time and place of delivery, and method of transportation. If any such changes causes an increase or decrease in the cost of the time required for performance of this purchase order, an equitable adjustment shall be made and any relevant purchase order shall be modified in writing. Seller agrees to accept any changes to such purchase orders or decline such changes promptly in writing. 

7.   Taxes:  Seller will bear and pay all applicable taxes of the United States or any state or any foreign government, including political subdivisions of any of them, which are based on or measured by net income, gross income, or gross receipts including any withholding taxes levied against Seller for the privilege of doing business in a jurisdiction.  If Seller is required by law to collect sales and use tax (including any gross receipts tax imposed similar to a sales and use tax) from George’s on behalf of any taxing jurisdiction, Seller will provide to George’s invoices which separately state and clearly indicate the amount of tax and George’s will remit any such tax to Seller.  Seller will have the responsibility of complying with all applicable foreign, national, state, or local laws regarding value added tax and sales and use tax or substitutes therefore including registration, collection of taxes, and the filing of returns where applicable.  Notwithstanding whether Seller must collect sales and use tax from George’s, Seller will state on every invoice the taxing jurisdiction (e.g. national, state, and local jurisdiction) in which Products were provided.  If applicable, in lieu of payment for any sales and use tax, Seller will accept a properly executed exemption or direct pay certificate from George’s.  The determination of whether an exemption or direct pay certificate will be submitted to Seller in lieu of payment for any sales and use tax will be made by George’s on a location by location basis.  With the exception of sales and use tax as described above, all other taxes, however denominated or measured, imposed upon the Seller, or the price or compensation under this Contract, or upon the Product, will be the responsibility and liability of Seller. 

8.   Inspection and Quality Assurance:  All Products will, before delivery, be subject to inspection, tests, and audits by George’s or its agent at reasonable times and places.  Seller agrees to provide access for George’s to its facilities at all reasonable times for such inspection, tests, and audits, and, at no additional cost, to provide all assistance and facilities reasonably necessary to perform the same.  Neither the inspection, testing, or auditing of any Products, nor the failure to do so, before delivery to George’s will constitute acceptance of any Products, or relieve Seller from exclusive responsibility for furnishing Products in strict conformance with George’s specifications.  Seller warrants that it has and will maintain an adequate quality control/assurance program with respect to the production and delivery of Products and that it creates and maintains adequate quality control/assurance reports, certificates, affidavits, and other such records relating to the Products.  Seller agrees that, upon request and at no additional charge, it will promptly furnish authenticated copies, as well as applicable certificates of conformance and/or compliance acceptable to George’s, at the time of, or promptly after, delivery.  Seller agrees to notify George’s of any changes to Seller’s raw materials, manufacturing processes, analytical processes, and quality control/assurance program that affect the quality of provided Products, including changes to certificates, affidavits, and other such records relating to the Products. 

9.   Rejection:  Products will be received subject to inspection and approval by George’s after delivery.  Upon inspection, George’s may give Seller notice of rejection or revocation of acceptance, notwithstanding any payment, passage of title, approval, prior test, or inspection.  No inspection, approval, test, delay, or failure to inspect or test, or failure to discover any defect or other nonconformance, will relieve Seller of any obligations under this Contract or impair or waive any right or remedy of George’s with respect to Seller’s performance.  If, in George’s judgment, the Products do not conform to the requirements of this Contract, George’s will have the right to reject the Products and, in addition to any other rights and remedies it may have, George’s may, in its sole discretion:

(a)    return any or all nonconforming Products to Seller for reimbursement, credit, replacement, or repair as George’s may direct;

(b)    correct, rework, and/or repair the Products with all costs associated therewith to be charged to and paid by Seller; or

(c)    hold any or all nonconforming Products, at Seller’s risk and expense, for disposal or correction according to George’s.

Furthermore, George’s may, at its option, reduce the quantity of Products George’s is obligated to purchase by the quantity of Products returned to Seller.  Any Products rejected by George’s and returned to Seller will be returned, at Seller’s risk and expense, with the cost of packaging, handling, inspection, examination, transportation, and any other incidental costs to be charged to and paid by Seller.  Such Products will not thereafter be tendered to George’s for acceptance unless the previous rejection and requirement of correction are disclosed to George’s in writing.  All such nonconforming Products that are so remedied will have the same warranty as stated in Section 10 from the date of re-delivery.  Acceptance, whether or not it has been revoked, will not release Seller’s responsibility for latent defects, non-conformities, warranty, or other claims.  Nothing in these Terms and Conditions will relieve Seller from the obligation of testing, inspection, and quality control.

10.  Warranty:  Seller warrants that all Products will be:

(a)    in strict conformance with all applicable specifications, drawings, instructions, data, samples, standards, and regulations;

(a)    merchantable, and free from defects in design, material, and workmanship;

(b)    as described and advertised, of good quality, and fit for the intended purposes;

(c)    composed of all new components;

(d)    free from all liens, encumbrances, and any potential, actual, or claimed patent, copyright, or trademark infringement; and

(e)    manufactured in compliance with all applicable federal, state, and local laws, regulations, or orders, and agency or association standards or other standards applicable to the manufacture, labeling, transporting, licensing, approval, or certification of the Products. 

Seller shall, at its own expense, procure and keep in effect all necessary permits or licenses as required by law to fulfill this Contract. These warranties are in addition to all other warranties, express, implied or statutory, which may be applicable.  George’s approval of Seller’s design, material, process, drawing, specifications, or the like will not be construed to relieve Seller of the warranties set forth.  Limitations on George’s remedies (or disclaimers of warranties) in documents of Seller, or otherwise, will not be effective and are hereby objected to and rejected.  All warranties and other provisions of this paragraph will survive inspection or acceptance of, payment for, and use of the Products and completion, termination, or cancellation of this Contract, and will run to George’s, its customers, successors, and assigns, and to users of the Products.  This Contract incorporates by reference, and will be governed by, the Uniform Commercial Code, latest revision, as enacted by the State of Arkansas, including all warranty protections (express or implied) and all buyer remedies.

11. Intellectual Property:  If George’s furnishes the design for the Products or requires Seller to prepare a design for the Products, then George’s will own all intellectual property rights relating to such design.  Seller assigns to George’s all rights and future rights in such designs.  If Seller furnishes a pre-existing design for the Products, then Seller will continue to own all intellectual property rights relating to such design.  In the latter event, Seller hereby grants George’s a permanent, paid-up, nonexclusive, worldwide, royalty-free license, with a right to sublicense to others, to make, have made, use, and have used, such intellectual property.  George’s does not transfer to Seller any patent, trade secret, trademark, service mark, copyright, or other intellectual property right of George’s in information, documents, or property that George’s makes available to Seller under the Contract, other than the right to use such intellectual property rights to produce and supply Products to George’s.  Seller will indemnify, protect, defend or settle (at Seller’s expense), and hold harmless George’s, its parents, affiliates, subsidiaries, and its and their directors, officers, employees, agents, successors and assigns, customers, and the users of Seller’s Products (“Indemnitees”) from all liabilities, expenses, suits, claims, actions, demands, judgments, settlements, costs, losses, damages, and all other obligations and proceedings, including without limitation all judgments rendered against, and all fines and penalties imposed upon, Indemnitees and all attorney fees and any other cost of litigation  (collectively “Liabilities”) incurred as a result of actual or alleged infringement of any present or future patent, copyright, trademark, trade secret, or other actual or alleged intellectual property right of any third party arising from George’s purchase, use, or sale of Products supplied under this Contract:

(a)    alone;

(b)    in combination by reason of their content, design, structure; or

(c)    in combination in accordance with Seller’s recommendations.   

In the event of an allegation of intellectual property infringement or if the use or sale of the Products is enjoined, Seller will, at its own expense and at George’s option, either:

(a)    procure the right to continue using the Products;

(b)    make such alterations modifications or adjustments to the Products so that they become non-infringing without incurring a material diminution in performance or function;

(c)    replace same with a non-infringing equivalent; or

(d)    remove the Products and refund the purchase price and the transportation and installation costs. 

Seller’s obligations will apply even though George’s furnishes all or any portion of the design and specifies all or any portion of the processing used by Seller.  All such obligations of Seller to indemnify, hold harmless, protect, and defend George’s are in addition to Seller’s warranty obligations and all other rights or remedies of George’s and will survive acceptance and use of, and payment for, the Products, and completion, termination, or cancellation of this Contract.  If any settlement requires an affirmative obligation (other than ceasing use of the Product) of, results in any ongoing liability to or prejudice or detrimentally impacts George’s in any way and such obligation, liability, prejudice, or impact is material, then such settlement shall require George’s written consent and George’s may have its own counsel, at Seller’s expense, in attendance at all proceedings and substantive negotiations relating to such Liabilities.

12. Liability and Indemnification:  Seller will indemnify, protect, defend, settle (at Seller’s expense), and hold George’s harmless from and against any and all damages (including, but not limited to, lost profits and all other consequential damages), claims, liabilities, and expenses (including attorneys, experts, and legal fees) arising out of or in any manner connected with nonconformance or defects in goods or services purchased, or from any act or omission on the part of Seller, its agents, employees, subsidiaries, affiliates, or subcontractors. Seller waives the application of the doctrine of comparative negligence and other doctrines that may otherwise allocate the liability covered by Seller’s indemnity provided that nothing contained herein shall obligate Seller to indemnify George’s from any claim which arises from the sole negligence of George’s.  Seller agrees to waive and release any rights of contribution, indemnity, or subrogation it may have against George’s as a result of any indemnity claim asserted under this Section 12.  Seller, for itself, its successors, assigns, and subcontractors hereby expressly agrees to waive any provision of any workers’ compensation act or other similar law whereby Seller could preclude its joinder by George’s as an additional defendant, or avoid liability for damages, contribution or indemnity in any action at law, or otherwise where Seller’s or its subcontractor’s employee or employees, heirs, assigns or anyone otherwise entitled to receive damages by reason of injury or death brings an action at law against George’s.  Seller’s obligation to George’s will not be limited by any limitation on the amount or type of damages, benefits, or compensation payable by or for Seller under any workers’ compensation acts, disability benefit acts, or other employee benefit acts on account of claims against George’s by an employee of Seller or anyone employed directly or indirectly by Seller or anyone for whose acts Seller may be liable.  

13. LIMITATION OF LIABILITY:  NOTWITHSTANDING ANYTHING ELSE IN this contract OR OTHERWISE, George’s WILL NOT BE LIABLE TO seller WITH RESPECT TO THE SUBJECT MATTER OF this contract UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS OF THE AMOUNT GEORGE’S PAID TO seller IN THE SIX (6) MONTHS PRECEDING THE EVENT OR CIRCUMSTANCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL GEORGE’S BE LIABLE TO seller FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS ARISING OUT OF, OR IN CONNECTION WITH, this contract, WHETHER OR NOT GEORGE’S WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED. ANY ACTION RESULTING FROM ANY BREACH ON THE PART OF GEORGE’S AS TO THE GOODS OR SERVICES DELIVERED MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED. 

14. Insurance:  Seller shall maintain such public liability insurance, including product liability, contractual liability, completed operations, contractor’s liability and protective liability, automotive liability insurance (including non-owned automotive liability), workers’ compensation, and employer’s liability insurance as will adequately protect George’s against all damages, liabilities, claims, losses, and expenses, including but not limited to lost profits and consequential damages. Seller agrees to submit certificates of insurance evidencing its insurance coverage when requested by George’s. All insurance coverage provided to George’s by Seller pursuant to these Terms and Conditions shall be primary insurance with respect to Seller’s obligations, and shall not be or be considered to be contributing insurance with any of George’s policies of insurance. Such policies must be with insurance companies that maintain an A.M. Best’s rating of at leave A-. No recovery by George’s under any policy of insurance procured by Seller shall limit, waive or bar any other right, remedy, claim, cause of action or recovery that George’s may have against Seller under these Terms and Conditions or applicable law.

Insurance Requirements: Seller shall, prior to entering into a contractual relationship with George’s, obtain and thereafter maintain during the entire term of the relationship the following insurance coverages and amounts:

(a)    general liability insurance policy, including product liability coverage and contractual liability coverage insuring against the liability assumed under this Agreement, in minimum amounts of $1,000,000.00 per occurrence for damage, injury and/or death to persons and $2,000,000.00 general aggregate, and $1,000,000.00 per occurrence for damage and/or injury to property and $2,000,000.00 general aggregate;

(b)    auto liability policy with a combined single limit of at least $1,000,000.00;

(c)    workers’ compensation insurance in the minimum statutory amount in the state where Seller conducts its business or its employees will be conducting work;

(d)    workers’ compensation – employers liability in the minimum amounts of $100,000 for bodily injury per accident, $100,000 for bodily injury by disease per employee, and $500,000 for bodily injury by disease in aggregate; and

(e)    umbrella policy with limits of at least $5,000,000.00 in the aggregate.

If a company does not carry workers compensation insurance they are required to provide a Certificate of Non-Coverage in Arkansas or the equivalent in other states for each individual that will be on the properties with them or for them.

15. Subcontracts: George’s is a federal contractor and is therefore subject to regulations governing commitments to Equal Employment Opportunity (EEO) and affirmative action. George’s is also required to inform you of this regulatory commitment and ensure that you agree to such commitments within your own EEO policy, as applicable. Specifically, the subcontractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, sexual orientation or gender identity, disability or protected veteran status. The subcontractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, national origin, sexual orientation or gender identity, disability or protected veteran status. Such employment actions shall include, but are not limited to: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeships.

The Seller and any subcontractor seller utilizes shall abide by the requirements of 41 CFR 60-1.4(a), 60-300.5(a) and 60-741.5(a), and the posting requirements of 29 CFR Part 471, appendix A to subpart A, if applicable. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, national origin, sexual orientation, gender identity, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability.

Every vendor and supplier must also develop and maintain an Affirmative Action Program if a single purchase order or subcontract amounts to $50,000 or more and the company employs 50 or more employees, companywide.

George’s is an EOE M/F/Disabled/Vet employer as well.  Seller and any subcontractor seller utilizes shall abide by the requirements related to this program as well.

Helpful Links and Documents

The Office of Federal Contract Compliance Programs (OFCCP) enforces, for the benefit of job seekers and wage earners, the contractual promise of affirmative action and equal employment opportunity required of those who do business with the federal government. More information regarding OFCCP can be acquired here: http://www.dol.gov/ofccp/index.htm 

16. Termination:  George’s may terminate this Contract or any releases issued pursuant to this Contract, in whole or in part, at any time for convenience by giving written notice to Seller.  After receiving written notice of termination, Seller will immediately cease production and delivery of all Products indicated in the notice of termination.  Unless such termination is due to default of Seller or failure of Seller to assure adequate performance, George’s will pay Seller for Products of conforming quality that are delivered as of the date of termination.  Upon such payment, all finished goods for which George’s has paid will become the property of George’s and will be released by Seller to George’s for pick-up and removal, upon demand.  The provisions of this clause are without prejudice to any other rights or remedies of George’s, including those resulting from default by Seller.  

17. Cancellation:  George’s will have the right to cancel this Contract, in whole or in part, if the Products are, in George’s judgment, non-conforming, defective, not delivered as scheduled, or if Seller fails to comply with or fulfill at any time any of the Terms and Conditions of this Contract, or with George’s shipping and billing instructions, or if, in George’s opinion, the credit or ability of Seller to perform this Contract becomes impaired, whereupon George’s will have the continuing right to obtain Products from another source, without prejudice to any other rights or remedies of George’s and in addition thereto. 

18. Transition of Supply:  In connection with termination of this Contract or George’s decision to change to an alternate source of supply, Seller will cooperate in the transition of supply, including the following (collectively, “Transition Support”):

(a)    Seller will continue production and delivery of all Products as ordered by George’s, at the prices and other terms stated in this Contract, without premium or other condition, during the entire period reasonably needed by George’s to complete the transition to the alternate supplier(s), such that Seller’s action or inaction causes no interruption in George’s ability to obtain Products as needed;

(b)    at no cost to George’s, Seller will promptly provide all requested information and documentation regarding and access to Seller’s manufacturing process, including on-site inspections, bill-of-material data, tooling and process detail and samples of Products and components; and

(c)    subject to Seller’s reasonable capacity constraints, Seller will provide special overtime production, storage and/or management of extra inventory of Products, extraordinary packaging and transportation and other special services as expressly requested by George’s in writing. 

If the transition occurs for reasons other than Seller’s breach, George’s will, at the end of the transition period, pay the reasonable, actual cost of Transition Support as requested and incurred, provided that Seller has advised George’s of its estimate of such amounts and obtained George’s prior written consent prior to incurring such amounts.  Any Transition Support costs incurred by Seller without George’s prior written consent shall be borne by Seller.

19. Payments:  Unless otherwise expressly set forth in an addendum to this Contract, executed by both Parties, the terms of payment are net 30 days after George’s receipt of either Seller’s, valid invoice, or the Products, whichever is later.  Seller will promptly submit correct and complete invoices or other agreed billing communications with appropriate supporting documentation and other information reasonably required by George’s after delivery of the Products, and George’s may withhold payment until a correct and complete invoice or other required information is received and verified.  All cash discounts offered and earned will be taken. All cash discounts will be computed from the date of receipt by George’s of a valid invoice or receipt of the Products, whichever occurs later.  Cash discounts will be based on the full amount of the invoice, less freight charges and taxes if itemized separately on the invoice.  Delay in receiving valid invoices or Products will be considered good cause for withholding payment without losing cash discount privileges.  Payment by George’s of an invoice from Seller does not constitute acceptance of the Products covered by the invoice.  If the production or delivery of Products covered by this Contract may give rise to mechanics’ or other similar liens, payment will not be due and the cash discount period will not commence until Seller has delivered to George’s a complete release of all liens arising out of the production or delivery of such Products or receipt in full covering all labor and materials for which a lien could be filed or a bond satisfactory to George’s indemnifying it against any lien.  If payments are required to be made under this Contract by George’s in a currency other than USD, Seller will provide Electronic Funds Transfer (EFT) instructions to George’s and George’s will make such payments to Seller electronically, to the extent permitted by law.  George’s will have the right, at any time, to set off and apply against any monetary obligations that George’s owes to Seller or any of its parents, subsidiaries or affiliates, any obligations that Seller, or any of its parents, subsidiaries or affiliates, may owe to George’s. 

20. Confidentiality:  At all times prior to, during, and after the Contract, Seller will:

(a)    treat the terms, conditions, and existence of the Contract as Confidential Information;

(b)    maintain the confidentiality of any information disclosed by George’s or any of its parents, subsidiaries, affiliates, customers, and contractors, whether or not identified as “confidential” upon disclosure (“Confidential Information”);

(c)    not disclose or permit the disclosure of any Confidential Information to any person other than its employees for whom such knowledge is essential for performance of the Contract; and

(d)    not use Confidential Information except as necessary for performance of the Contract. 

Seller will immediately notify George’s of any disclosure of any Confidential Information that is not permitted by this Contract or other misuse of any Confidential Information in breach of this Contract.  Without limiting the direct liability of Seller’s employees and others who may have received Confidential Information directly or indirectly from Seller, Seller will be responsible for the disclosure or other misuse of Confidential Information by Seller’s employees and others (such as agents, broker, representatives, etc.), and Seller will immediately take such steps as may be necessary to terminate any continuing disclosure or misuse by any of Seller’s employees and others of which Seller becomes aware.  George’s makes no representation or warranty of any kind, express or implied, with respect to any Confidential Information.  George’s may, at its sole discretion, elect at any time, by written notice to Seller, to terminate Seller’s further use of Confidential Information for any purpose.  Upon receipt of such notice, Seller will, and will cause Seller’s employees to, promptly cease all further use of Confidential Information, return to George’s all physical materials containing Confidential Information, whether the materials were originally provided by George’s or copied or otherwise prepared by Seller or any Seller employee, agent, or representative, and erase or otherwise destroy any Confidential Information kept by Seller or any Seller employee, agent, or representative in electronic or other non-physical form.  Such termination by George’s will not affect Seller’s continuing obligations in this Section 19.  Seller agrees that no information disclosed by it to George’s will be confidential unless due notice is given in advance to and accepted by George’s in writing.

21. Liens:  Seller warrants that no lien, encumbrance, or security interest will be filed by Seller or anyone claiming under or through Seller against George’s, George’s property, or the Products furnished under this Contract.  Should a lien, encumbrance, or security interest arise related to any Product delivered by Seller to George’s or George’s property, Seller must immediately have any such lien, encumbrance, or security interest removed by payment, bond, or other applicable measures.  

22. Independent Contractor/Safety:  Seller is and will remain an independent contractor of George’s.  No employee, agent, or representative of Seller or its subcontractors will be deemed to be an employee of George’s.  Seller will provide all safeguards, and take all precautions; necessary in connection with the production and delivery of the Products to prevent the occurrence of any accident, injury, death, loss, or damage to any person or property, and will be solely responsible.  Seller warrants that all Products delivered will be produced and delivered in a safe, proper, and workmanlike manner and in compliance with all applicable codes, regulations, laws, standards, specifications, and George’s requirements concerning safety, performance, and otherwise, including, without limitation, any work or related services performed on premises controlled by George’s. 

23. Assignment, Subcontractors, and Third Parties:  Neither this Contract, nor Seller’s rights and obligations, are assignable by Seller without the prior written consent of George’s.  No such consent or assignment will release Seller or change Seller’s liability to perform all of its obligations under this Contract.  Any attempted assignment without the prior written consent of George’s will be null and void. Additionally, Seller may not subcontract any of its rights or obligations under this Contract without George’s prior written consent.  If George’s consents to the use of a subcontractor, Seller will:

(a)    guarantee and will remain liable for the performance of all subcontracted obligations;

(b)    indemnify George’s for all damages and costs of any kind, subject to the limitations in Section 12, incurred by George’s or any third party and caused by the acts or omissions of Seller’s subcontractors’; and

(c)    make all payments to its subcontractors.

If Seller fails to timely pay a subcontractor for work performed, George’s will have the right, but not the obligation, to pay the subcontractor and offset any amount due to Seller by any amount paid to the subcontractor. Seller will defend, indemnify, and hold George’s harmless for all damages and costs of any kind, without limitation, incurred by George’s and caused by Seller’s failure to pay a subcontractor.  To the extent allowed by applicable law, no person who is not a party to this Contract shall be entitled to enforce or take the benefit of any of its terms.

24. No Violation of Law:  Seller and the Products will comply with all applicable laws, rules, regulations, orders, conventions, ordinances, or standards of the country(ies) of destination or that relate to the manufacture, labeling, transportation, importation, exportation, licensing, approval, or certification of the Products, including, but not limited to those relating to environmental matters, data protection and privacy, wages, hours, and conditions of employment, subcontractor selection, discrimination, occupational health/safety, and motor vehicle safety.   Upon request, Seller will furnish George’s with certificates of compliance.  Unless this Contract is otherwise exempted by law, Seller will comply with the US Foreign Corrupt Practices Act, Executive Order 11246, as amended by Executive Order 11375 (Equal Employment Opportunity) the Rehabilitation Action of 1973, the Vietnam Era Veteran’s Readjustment Assistance Act of 1974 and the Americans with Disabilities Act Amendments Act of 2008, as they have been or may be amended from time to time, and regulations implementing such statutes; and any similar state and local laws and ordinances and the regulations implementing such statutes.  If requested by George’s, Seller will furnish to George’s an executed Certificate of Non-segregated Facilities.  Seller warrants that the Products delivered were produced at facilities complying with all applicable provisions of the Occupational Safety and Health Act and applicable regulations under that Act and agrees to, upon request, provide George’s with all explanatory and factual information needed to verify such compliance and to enable George’s compliance, and with any other applicable laws and regulations.  Seller further warrants that it will comply, where applicable, and without limitation, with all orders, standards, and regulations of the National Highway & Transportation Safety Administration, Federal Aviation Administration, Environmental Protection Administration, Food and Drug Administration, Equal Opportunity Commission, Consumer Product Commission, Occupational Safety & Health Act Administration, and United States Department of Agriculture. Seller’s failure to comply with this provision shall constitution a material breach, and George’s may immediately terminate this Contract without any liability.

25. Limitation on Use of Payment:  Seller shall not offer or use, directly or indirectly, any money, property or anything of value received by Seller under or pursuant to this Contract to influence improperly or unlawfully any decision, judgment, action, or inaction of: any official, employee, or representative of any government or agency or instrumentality, or of any government owned or partially government owned entity, or any other person or entity, in connection with or relating to the subject matter of this Contract or any supplement or amendment hereto.  No payment shall be made nor shall any transaction be entered into in connection with this Contract that is illegal, improper, or is intended to unduly or improperly influence any third party, including without limitation, by means of extortion, kickback, or bribery.  If Seller breaches the terms of this provision, George’s may immediately terminate this Contract without any liability.

26. E-Commerce: If at any time George’s begins to utilize an e-commerce system, Seller will be required to provide George’s, at no cost, linking and interfacing with George’s e-commerce system.  If Seller utilizes an e-commerce system, Seller will be required to provide George’s, at no cost, George’s linking and interfacing with the Seller’s system. 

27. Environment, Health, Safety, and Security:  If Seller, either as principal or by agent or employee, enters upon the property of George’s; Seller agrees to comply with George’s rules and regulations, including its environmental, health, safety, and security rules and regulations.

28. Hazardous and Dangerous Goods and Materials:  Seller warrants:

(a)    that any chemical substance or mixture delivered to George’s pursuant to this Contract is on the Toxic Substance Control Act inventory or that the pre-manufacture notice requirements have been satisfied and such chemical substance or mixture is lawfully available for sale and use;

(b)    that chemical substances or mixtures delivered will be properly packaged with all appropriate warning labels, instructions for use, and notices, and that, if such chemical substances or mixtures are supplied in bulk, Seller will provide George’s with an adequate supply of such warning labels, instructions, and notices for use in George’s facilities;

(c)    that Seller will supply with, or before, delivery, and at any other time upon George’s request, all information known to Seller with respect to potential hazards, including possible toxic or harmful effects, related to the handling, use, storage, disposal, or transportation of any chemical substances or mixtures delivered, and any precautions that should be taken to eliminate or reduce to a minimum such hazards; and

(d)    that Seller will ascertain and furnish all information about Products required by George’s to comply with all safety-related laws and regulations (including, without limitation, those relating to applicable right-to-know laws and occupational safety and health acts), and with laws and regulations regarding composition, ingredients, or otherwise, including promptly furnishing to George’s upon written request a list of all ingredients and the amounts and information concerning any changes in such ingredients thereafter. 

Seller agrees that it will, upon George’s request, accept the return of unused toxic or hazardous chemical substances or mixtures delivered to George’s pursuant to this Contract.  Unless approved in writing by George’s location manager prior to shipment, Seller will not deliver any Products containing asbestos in a content exceeding the local regulatory level or 1% by weight of the Product, whichever is less. In the event that any Party learns of any issue relating to a potential safety hazard or unsafe condition in any of the Product supplied, or is advised of such by competent authorities of any government having jurisdiction over such Product, or that any Product is found by any Party or any governmental agency or court having jurisdiction to contain a defect, serious quality, or performance deficiency, or not to be in compliance with any standard or requirement so as to require or make advisable that such Product be reworked or recalled, it will promptly advise the other Party by the most expeditious means of communication and Seller shall undertake all related corrective actions. The Parties shall cooperate in communication with the public and governmental agencies and in correcting any such condition that is found to exist except in circumstances in which a failure to do so would prevent the timely notification, which may be required to be given under an applicable law or regulation. Additionally, in the event of hazardous conditions or a Product recall, Seller shall indemnify George’s as outlined in Section 12 of this Contract. 

29. Notifications:  Seller agrees to immediately notify George’s of any actual or possible safety problems with the Products delivered.  Seller also agrees to give George’s reasonable advance notice of potential material shortages, insolvency, or other matters that might delay or interfere with its performance of this Contract. 

30. George’s Property and Parts:  All property of any kind supplied to Seller, or paid for, by George’s will be and remains George’s property, and Seller will maintain such property in good condition and repair, except to the extent that such property is integrated into Products delivered.  Materials or parts provided by, or on behalf of, George’s that have been, or are to be, processed by Seller are consigned to Seller solely for purposes of such processing and remain George’s property.  All George’s property, while in Seller’s custody or control, will be held at Seller’s risk, free of all liens, encumbrances, or security interests of Seller or third parties, and will be kept insured by Seller at Seller’s expense in an amount equal to replacement cost with loss payable to George’s.  All property of George’s is subject to removal by George’s at any time, and to return upon George’s request.  Seller will assume all risk of death or injury to persons or damage to property arising from use of George’s property.  George’s does not guarantee the accuracy of any George’s property or the availability or suitability of any property furnished by it.  Seller assumes sole responsibility for inspecting, testing, and approving all of George’s property supplied by George’s prior to any use by Seller. 

31. Force Majeure:  Neither Party will be in default for any delay or failure to perform its obligations under this Contract if caused by an extraordinary event beyond its reasonable control without its fault or negligence such as failure of government to act where such action is required, strike or other labor dispute, fire, act of God, or unusually severe weather; provided that any delay or failure to perform caused by default of a supplier of Seller at any lower tier must be beyond the reasonable control of both Seller and such supplier without the fault or negligence of either and items to be furnished must not be obtainable from other sources in sufficient time to permit Seller to meet the delivery schedule, and provided further that Seller furnishes prompt written notice of any delays or non-performances (including its anticipated duration) after becoming aware that it has occurred or will occur.  If Seller is unable to perform for any reason, George’s may purchase the Products from other sources and reduce its purchases from Seller accordingly without liability to Seller.  Within three business days after written request by the other Party, the non-performing Party will provide adequate assurances that the non-performance will not exceed 30 days.  If the non-performing Party does not provide those assurances, or if the non-performance exceeds 30 days, the other Party may terminate the Contract by notice given to the non-performing Party before performance resumes.

32. Shipment:  Unless otherwise expressly set forth in an addendum to this Contract, executed by both Parties:

(a)    all shipping, drayage, demurrage, storage, insurance, packing, and related charges will be paid by Seller;

(b)    all Products will be packed, marked, and shipped in accordance with the requirements of the common carriers in a manner to secure the lowest transportation costs consistent with the requirements hereof;

(c)    packing slips identifying the purchase order number, release number, and item number must accompany each shipment;

(d)    Seller will mark each package with the Contract number, and where multiple packages comprise a single shipment each package will be shown on packing slips, bills of lading, and invoices;

(e)    in the event that George’s is obligated to pay for shipping, Seller will be responsible for all extra charges incurred because of Seller’s failure to follow George’s shipping instructions, including those related to delivery schedules, whether or not Seller’s liability for general damages is excused under other provisions of the Contract;

(f)     Seller will mark the Products, packaging and packing as instructed by George’s and in accordance with the standards of the Uniform Commercial Code;

(g)    Seller will pay all express and other charges necessary to expedite delivery to enable Seller to meet the delivery schedule;

(h)    Seller will ship all late shipments by express or other priority methods of delivery at its expense; and

(i)     Seller will issue to George’s advance shipping notices as requested by George’s. 

33. Delivery:  Time, quantity, and quality are of the essence.  Delivery must be on the date indicated, if any, and otherwise as requested by George’s.  If the Contract is identified as a “Blanket” Contract or if no delivery schedule is provided, deliveries are to be made only in quantities and at times specified in releases or other instructions from George’s.  George’s will have no liability for payment of Products delivered to George’s which are in excess of quantities specified in the Contract or in releases and George’s may return over-shipments to Seller at Seller’s expense for all packing, handling, sorting, and transportation charges.  George’s may, from time to time, change delivery schedules or direct temporary suspension of scheduled shipments.  George’s will be responsible for additional costs of expedited or other special transportation that George’s may require as a result of changes to its firm releases or delivery schedules to the extent that:

(a)    such changes were not caused by Seller; and

(b)    George’s can recover such costs from its own customers.   

34. George’s Name/Logo:  Seller may not use George’s name and/or logo in any manner other than as may be identified in this Contract without first obtaining written permission from George’s.

35. Choice of Law and Venue: These Terms and Conditions shall be interpreted pursuant to the laws of the State of Arkansas without giving effect to its choice of law provisions.  The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed and does not apply to this Contract.   Litigation brought to contest disputes arising under this purchase order shall be brought only in the state or federal courts of the State of Arkansas located in Washington County, Arkansas. The Seller acknowledges and agrees that any such court will have the jurisdiction to interpret and enforce the provisions hereof and/or an arbitrator’s judgment, and the Seller waives any and all objections that it might otherwise have as to personal jurisdiction or venue in any of the above tribunals. 

36. WAIVER OF JURY TRIAL: SELLER AND GEORGE’S IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, COUNTERCLAIM OR CROSS COMPLAINT IN ANY ACTION OR OTHER PROCEEDING BROUGHT BY THE OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF, OR IN ANY WAY CONNECTED WITH OR RELATED TO THIS CONTRACT, WHETHER BASED UPON CONTRACTUAL, STATUTORY, TORTIOUS, OR ANY OTHER THEORY OF LIABILITY.

37. Antitrust Assignment: Seller hereby assigns, sells, and transfers to George’s all rights, title, and interest in and to all causes of action it may have under the antitrust laws of the United States or this State for price fixing, which causes of action have accrued prior to the date of this assignment and which relate to Products pursuant to this Contract.

38. Waiver: George’s failure to assert any right is not a waiver of such right or any other right, or George’s waiver of any breach shall not waive any other terms, conditions, or rights, whether of the same or similar type.

39. Severability: If any Court of competent jurisdiction determines that any provision contained in this Contract, or any part, is unenforceable and cannot for any reason be reduced and enforced as described above, such determination shall not affect, impair or invalidate any other provisions of this Contract.    

40. Remedies: Any remedies provided to George’s are cumulative and in addition to any other remedies provided in law or equity or by statute. 

41. Legal Representation: The Parties acknowledge that The Law Group of Northwest Arkansas LLP prepared this Contract and that the firm does not represent all Parties.  The Parties also acknowledge that The Law Group of Northwest Arkansas LLP has advised them that a conflict of interest may exist among the individual competing interests.  The Parties further state that they have been advised by The Law Group of Northwest Arkansas LLP to seek the advice of independent counsel and the Parties have had an adequate opportunity to seek the advice of independent counsel and to request any information necessary to evaluate this Contract.  

42. Entire Agreement: The attached order and any documents included by reference constitute the entire agreement between George’s and Seller unless specifically modified by a writing signed by all Parties.