These Terms and Conditions of Sale (“Terms of Sale”) govern the sale of all Goods and/or Services supplied by Seller to KeHE Distributors, LLC, its parents, subsidiaries, and affiliates (“KeHE” or “Buyer”), unless KeHE has executed a separate, definitive purchase agreement with Seller for the sale of the Goods.

1. Definitions. “Seller” will mean the party that supplies the Goods or Services to KeHE. “Good(s)” will mean the articles, materials, items, products, or goods contained in any shipment or delivery made by Seller, its subsidiaries, or affiliates to or on the order of KeHE. “Services” will mean work performed by Seller on the order of KeHE.

2. Purchase Order. To order all Goods from Seller, KeHE will place a purchase order (“Purchase Order(s)” or “PO(s)”). Seller’s receipt of A KeHE PO is required for each Product shipment, regardless of shipping method. Prior to Seller’s shipment of the Goods, KeHE may cancel all or any part of any PO without liability. KeHE may use a third-party service provider for Electronic Data Interchange (EDI) PO transmission and confirmation, as well as for processing payments, and Seller shall comply with the terms and conditions governing any such transmission, as specified by KeHE and such provider.

3. Pricing; Payment Terms; Taxes. All pricing for the Goods will be subject to KeHE’s written agreement, and all prices submitted will be inclusive of all costs and supplements, including, but not limited to, postage charges, loading fees, transport fees, unloading and installation fees, insurance costs, administrative costs, personnel accommodation and travel costs and fees associated with travelling time. Additional costs not expressly approved in writing by KeHE, in advance, are not chargeable. Any invoices Seller submits to KeHE will be payable within sixty (60) days of KeHE’s receipt. All invoices will be paid in United States dollars. All amounts due to Seller are subject to offset and deduction of amounts due to KeHE by Seller.

4. Delivery; Acceptance. The Goods will be delivered within the specified lead time, as indicated on the Purchase Order, or as otherwise indicated by KeHE in writing. Title and risk of loss will pass to KeHE upon delivery at the specified delivery point listed on the PO. Seller must comply with all policies and procedures for delivery, including any inbound instructions, which may differ by KeHE distribution center. Products must be properly packed and labeled. KeHE will inspect the Goods within a reasonable time from delivery and may reject Goods that do not conform to these Terms of Sale, the Specifications, the Purchase Order, or are otherwise damaged (“Non-Conforming Goods”). If KeHE notifies Seller of any Nonconforming Goods, Seller shall, at KeHE’s option, (a) replace such Nonconforming Goods with conforming Goods, or (b) credit or refund to KeHE the price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by KeHE in connection therewith. KeHE will not be liable for any fines, fees, expense, or any other damages arising from Non-Conforming Goods.

5. Warranties. Seller represents and warrants the following, which collectively will be referred to as the “Warranties:”
(a) Goods Warranty. Seller warrants the Goods will conform to the latest Specifications, as mutually agreed by KeHE and Seller in connection with the sale of such Goods and that the Goods are: (1) are free from defects in design, material, and workmanship, (2) are fit and safe for the intended purposes and appropriate for the specified application(s) (if any), (3) are consistent with recognized industry quality standards, comply with the Specifications, and (4) are produced and delivered in full compliance with all applicable laws, rules, and regulations (the “Goods Warranty”). The “Specifications” will mean product specifications provided by Supplier and applicable to the Goods, which may be set forth in one or more documents, proposals, technical data sheets, descriptions, quality assurance presentations, drawings, or diagrams. In the event Specifications are not provided, industry standards will apply;
(b) Reseller Warranty. To the extent Seller is not the manufacturer of the Goods, but rather Seller purchases the Goods from third-party suppliers or manufacturers (“Vendors”) and resells the Goods to its customers, Seller represents and warrants that: (1) to the best of its knowledge, the Goods comply with the Goods Warranty above, (2) it requires a Goods Warranty from its Vendors, and Seller agrees to forward on to Buyer such Goods Warranty, as well as any and all other applicable original manufacturer warranties from its Vendors, and (3) to the extent its Vendors are required to protect, indemnify, defend, and hold harmless Seller and its customers (the “Vendor Indemnification”), Buyer will be considered a customer for such purposes and will be a third-party beneficiary of such Vendor Indemnification and/or representations and warranties (the “Reseller Warranty”); and
(c) Services Warranty. Seller warrants: (1) the Services will be performed in a workmanlike manner and will be in compliance with any applicable laws and regulations, in accordance with the standards of Seller’s profession, (2) Seller is properly licensed and equipped to perform the Services, (3) Seller has the necessary equipment, computer capacity, software, programs and trained personnel to properly perform the Services consistent with standard industry practices, and (4) Seller will follow all KeHE policies and procedures while on KeHE property (the “Services Warranty”).

6. Certifications. Seller hereby certifies: (i) each Good will be manufactured following current good manufacturing practices and in accordance with standards at least as high as current industry standards; (ii) each facility at which the Goods is manufactured (“Facility”) meets all applicable legal and regulatory requirements, including, but not limited to, obtaining and maintaining the proper facility operational permits, licenses, and registrations, CGMP and Preventive Controls, food safety plans (HACCP, HARPC, as applicable), food safety defense plans, and site security, pest control measures, allergen management protocols, crisis management protocols, sanitation management protocols, and recall and traceability plans; (iii) each Facility will maintain a training program that clearly identifies and documents the plans and programs specified herein; and (iv) a third-party audit of each Facility will be conducted annually by an accredited audit company approved by KeHE (the “Certification”).

7. Indemnification. Seller agrees to defend, indemnify and hold harmless KeHE its parent(s), subsidiaries, and affiliates, and the employees, officers, directors, members, managers, agents, representatives and customers of each of them (the KeHE “Indemnitees”), from all actions, demands, threats, notices of violation, suits, claims and proceedings (collectively “Claims”) and any judgments, liabilities, settlement awards, fees, damages, fines, costs, and expenses (including reasonable attorney’s fees) brought or commenced by: (a) any federal, state, or local governmental authorities or any third party against any KeHE Indemnitee, alleging any Goods sold by Seller, to or on the order of Buyer, did not meet the Warranties or arising from any alleged inaccuracy in the Certification; (b) any person or entity against any KeHE Indemnitee for the recovery of damages for the injury, illness, and/or death of any person or damage to property as a result of the delivery, sale, resale, labeling, use, or consumption of any Goods or the negligent acts or omissions of Seller or its employees, agents, or contractors, provided, however, that Seller’s indemnification obligations hereunder will not apply to the extent that any Claims are caused by the negligence or intentional misconduct of Buyer or its employees, agents, or contractors; or (c) any person or entity against any Indemnitee, alleging that any Goods, Services, or advertisements, labels, certifications, configuration, point of purchase displays, or other items supplied by Seller to Buyer implicate or infringe upon a copyright, slogan, trademark, trade dress, patent, right of privacy, right of publicity, name, likeness, or any other intellectual property right, including, but not limited to, rights arising under common law and statutory unfair competition laws. Seller’s indemnity obligations herein will survive the termination of the distribution relationship between the parties.

8. Insurance. Seller agrees to maintain in effect insurance coverage with reputable insurance companies (having at least an “A” or better Financial Strength Rating according to the latest A.M. Best Report) licensed to do business in the jurisdictions in which the Products are to be distributed under forms of policies reasonably acceptable to KeHE covering workers’ compensation and employers’ liability, automotive liability, commercial general liability, including product liability and excess liability, all with such limits as are sufficient in KeHE’s reasonable judgment to protect Seller and KeHE from the liabilities insured against by such coverage, provided that Seller’s commercial general liability insurance will be in the amount of at least $2,000,000 per occurrence and in the aggregate for all items. KeHE reserves the right to request additional insurance, depending on the Goods or Services provided by Seller.

9. Confidentiality; IP; Publicity. Seller agrees to not use (except as permitted by and in furtherance of its obligations under these Terms of Sale) or disclose to others any of KeHE’s Confidential Information, either during the performance of this Agreement, or any time thereafter. “Confidential Information” will mean all information and data relating to KeHE’s business, whether of a technical, operational, or economic nature, which is designated or treated as confidential by KeHE, whether disclosed orally, in tangible form, or observed by Seller at KeHE’s facility, including, but not limited to, all price and technical information, information relating to its goods, services, customers, supplies, formulation, composition, analysis, design, installation, materials, instructions, erection, operation, repair, maintenance, use, process or otherwise. Confidential Information, in any form, whether or not so marked, will be subject to this Agreement if reasonably known to be treated as confidential. Confidential Information and KeHE’s intellectual property will remain the exclusive property of KeHE, and KeHE will retain all rights, title, and interest in same. Seller may not issue or release any announcement, statement, press release, or other publicity or marketing materials relating to KeHE or otherwise use KeHE’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of a KeHE vice president.

10. Governing Law. This agreement will be governed by the laws of the State of Delaware. The parties consent to exclusive jurisdiction and venue in the federal or state courts sitting in DuPage County, Illinois, that have subject matter jurisdiction over any dispute arising under this Agreement, except for any dispute seeking injunctive or equitable relief or claims regarding infringement of intellectual property rights or breach of obligations related to Confidential Information (which may be brought in any court having proper jurisdiction).

11. Entire Agreement. Seller acknowledges and agrees that it shall deliver the Goods and Services in accordance with these Terms of Sale. Seller’s acceptance of a PO from KeHE will constitute its acceptance of these Terms of Sale in its entirety, to the exclusion of any contrary or additional terms and conditions set forth in any statement, order acknowledgement, proposal, quote, website, or other document or record of Seller, and which will be considered solely for the convenience of the Seller and that, in no event, will alter, modify, supersede or supplement these Terms of Sale. These Terms of Sale supersede any preprinted terms on any of Seller’s documents, including, but not limited to, any order acknowledgement, proposal, quote, or other document or record of Seller, or any website of Seller’s containing the same, all of which are expressly rejected by KeHE. These Terms of Sale may not be amended or modified without the prior written consent of KeHE.