Standard Terms for Purchase Order
These Standard Terms are a part of and incorporated into any Purchase Order issued by Bridgewell Agribusiness LLC ("Bridgewell Agribusiness") to any third party supplier ("Supplier"). Any good to be purchased by Bridgewell Agribusiness is referred to as a ("Product").
1. The Products
1.1 Quality of the Products. The parties agree on the great importance of the quality, safety and performance of the Products supplied to Bridgewell Agribusiness. Supplier shall be solely responsible for the quality and safety of each Product sold to Bridgewell Agribusiness and its conformity with government regulations and industry standards in the United States and other countries where the Product will be shipped and sold.
1.2 Product Formulae; Samples. Upon request, Supplier shall provide Bridgewell Agribusiness with formula, yields, ingredients, a Product sample, a package and container sample. Bridgewell Agribusiness may approve or disapprove of each of the foregoing in its sole reasonable discretion, and Supplier shall not supply any Product as to which any of the foregoing has not been approved in writing by Bridgewell Agribusiness.
1.3 Specifications. Bridgewell Agribusiness or its designated representative may at any time notify Supplier of additional instructions or changes to tolerances, standards or the specifications relating to any Product. If Supplier objects within thirty (30) days from receipt of such notice (other than to quality, product integrity or safety issues which requires a response within 48 hours from receipt of notice from Bridgewell Agribusiness), the parties shall use reasonable efforts to resolve the objection, but if the objection is not resolved within forty-five (45) days of Supplier's receipt of Bridgewell Agribusiness's notice, Bridgewell Agribusiness shall have the right, at its option, to immediately terminate its order for the Product in question for cause upon written notice. If changes to the Product or specifications are required by law, the parties shall cooperate in good faith to agree on the timing of such changes.
1.4 No Alterations. Supplier shall produce each Product in strict conformity with (i) the terms and specifications in the Purchase Order; (ii) the labels and/or packaging specified in the Purchase Order; and (iii) all applicable law. Supplier shall not deliver to Bridgewell Agribusiness any products that have any change or alteration from the approved sample, unless Supplier obtains Bridgewell Agribusiness's advance written approval of such change or alteration.
1.5 Inspections; Testing. The parties will conduct inspections and tests to determine conformity with the specifications and any other measure of quality, safety, design or performance, as follows:
(a) Bridgewell Agribusiness may designate one or more inspection services, laboratories or other representatives ("Inspector") to inspect or test any Product, sample, or Supplier's facility.
(b) Supplier at its sole expense shall, on reasonable notice, make the Products, samples and/or its facility available for inspection, analysis and testing by Bridgewell Agribusiness or its Inspector, and shall send Products or samples for inspection to any location directed by Bridgewell Agribusiness.
(c) Bridgewell Agribusiness or its designated Inspector may test all Products (i) on at least a quarterly basis, or (ii) pursuant to any other reasonable schedule directed by Bridgewell Agribusiness or its Inspector, and (iii) on specific manufacturing runs or prior to specific shipments as reasonably directed by Bridgewell Agribusiness. However, if there are quality or safety issues, then Bridgewell Agribusiness shall schedule testing on a weekly or more frequent basis as needed, until the quality or safety issues are resolved.
(d) If applicable, Supplier shall supply Bridgewell Agribusiness, at Supplier's expense, with an annual Good Manufacturing Practices ("GMP") Food Safety Audit conducted by a Bridgewell Agribusiness approved independent third-party auditing company or by Bridgewell Agribusiness's vendor auditing employees.
(e) If requested by Bridgewell Agribusiness, Supplier shall allow the inspection of its or its subcontractor's facilities to determine compliance with food safety or other requirements.
(f) No inspections or testing by Bridgewell Agribusiness or an Inspector will modify or discharge Supplier's representations, warranties or indemnities under Section 8 and Section 9.
2. PURCHASE ORDERS; DOCUMENTS; SALES.
All sales of the Products shall be between Supplier as seller and Bridgewell Agribusiness as buyer. Bridgewell Agribusiness will place purchase orders by facsimile or by other written means ("Purchase Order"). Supplier shall, as soon as reasonably possible, confirm to Bridgewell Agribusiness receipt of the Purchase Order and inform Bridgewell Agribusiness within two (2) business days from receipt of each Purchase Order whether it can fulfill the Purchase Order according to its terms. No contract for sale shall be formed until Bridgewell Agribusiness issues a Purchase Order. Issuance of a Purchase Order constitutes an acceptance by Bridgewell Agribusiness of Supplier's offer to sell and creates a binding contract for sale. Each Purchase Order shall be deemed a separate contract subject to the terms of that Purchase Order and these Standard Terms.
3. PAYMENT. Supplier acknowledges and agrees that:
3.1 Terms. Payment shall be on net 45 days, or as otherwise agreed in writing between the parties. Supplier shall not charge administration fees, or late fees without Bridgewell Agribusiness's written consent.
3.2 Calculation of Due Date. The due date of each payment shall be calculated from the date of delivery unless otherwise agreed in writing between the parties. The date of delivery shall be the date Products are actually received at the "Ship To" address on the face of the Purchase Order and a Bridgewell Agribusiness employee or representative has signed the bill of lading or other shipping document acknowledging receipt.
3.3 Receipt of Product Required for Payment. Bridgewell Agribusiness shall not in any case be obligated to pay any invoice until after the Product is actually delivered and accepted in the manner described in Section 4.5. If any Product is lost, damaged, or fails to arrive at the "Ship To" address, Bridgewell Agribusiness shall not be obligated to pay any invoice except for any conforming Product recovered from Supplier or the carrier.
3.4 Payment of Taxes. Bridgewell Agribusiness's purchase is for resale unless Bridgewell Agribusiness otherwise states in writing. Supplier's pricing should be exclusive of all sales, use and like taxes. \If claiming the resale sales tax exemption, Bridgewell Agribusiness will provide Supplier with valid tax exemption (resale) certificates for those states where deliveries are to be made. Supplier's invoicing Bridgewell Agribusiness for any tax or fee shall constitute a warranty that Supplier is duly registered with the agency which levies the tax or fee. If Supplier does not remit the tax or fee to the appropriate agency, and/or if the same tax or fee is subsequently assessed by the agency against Bridgewell Agribusiness, Supplier shall promptly reimburse Bridgewell Agribusiness for all amounts of tax or fee Bridgewell Agribusiness has remitted to Supplier to date. Supplier shall defend, indemnify and hold harmless Bridgewell Agribusiness against all losses, penalties, interest and expenses (including attorneys' fees) related in any way to Supplier's failure to comply with this Section 3.4.
4. PACKAGING SPECIFICATIONS; SHIPMENT; DELIVERY.
4.1 Specifications. Supplier shall comply with the requirements of the carrier and Bridgewell Agribusiness's packaging specifications, inspect all Products prior to shipment to ensure quality, safety and conformity, and ensure that the Products are properly packed and loaded to prevent transit damage and tampering.
4.2 Ship Date; Request to Change. The "Ship Date" or "Exp Ship Date" is the date so designated in the Purchase Order or such other date established in writing between the parties. Supplier may request a change in the "Ship Date" or "Exp Ship Date", but it will be changed only if Bridgewell Agribusiness agrees in writing. Bridgewell Agribusiness itself may change the "Ship Date" or "Exp Ship Date" by giving notice of the change to Supplier at least two (2) business days prior to shipment.
4.3 Bridgewell Agribusiness's Right to Cancel. Bridgewell Agribusiness may at any time cancel any shipment not actually shipped by the "Ship Date" or "Exp Ship Date" shown on the Purchase Order without cost or further obligation to Bridgewell Agribusiness. Supplier shall notify Bridgewell Agribusiness immediately if any part of any order cannot be delivered to the shipping point or delivery point by the applicable date on the face of any Purchase Order.
4.4 Products Lost, Damaged, or Fail to Arrive. If Supplier arranges carriage of the Products, Supplier shall comply and instruct its carrier to comply as follows: If any or all of the Products are lost, damaged or fail to arrive at the "Ship To" address, the carrier shall immediately notify Supplier and shall hold such Products until it receives further instructions from Supplier. Supplier shall (a) immediately notify Bridgewell Agribusiness if any or all of the Products are damaged, lost, destroyed, rejected or detained, and (b) comply with Bridgewell Agribusiness's written instructions regarding the disposal of all such Products.
4.5 Delivery; Title and Risk of Loss. Except as otherwise stated in a Purchase Order, sales are on a delivered basis and Supplier's delivery of the Product will occur and title and risk of loss will pass only when and to the extent the conforming Product has been received at the "Ship To" address designated in the Purchase Order and a Bridgewell Agribusiness employee or authorized representative has signed the bill of lading or other shipping document acknowledging that receipt at one of Bridgewell Agribusiness's designated facilities. However, if the Purchase Order designates an FOB sale with delivery to an ocean port or carrier for ocean shipment, the terms of sale and delivery will be FOB Vessel Incoterms.
4.6 Shipping Documents. Supplier shall (a) send to Bridgewell Agribusiness a separate invoice, bill of lading and packing list for each Purchase Order and all required Customs documentation, and (b) mark all invoices, bills of lading and packing lists to show legibly the Purchase Order number to which that shipment relates.
5. REJECTION (REVOCATION OF ACCEPTANCE) OF NON-CONFORMING GOODS.
5.1 Conditions for Rejection. Bridgewell Agribusiness at its option may, at any time, reject (or revoke acceptance of) and either return to Supplier or hold at Supplier's risk and expense, any Products that are non-conforming in any way, or are shipped contrary to Bridgewell Agribusiness's instructions, the specifications, or the applicable Purchase Order. Bridgewell Agribusiness may also reject or revoke acceptance of any Products that Bridgewell Agribusiness reasonably believes: (i) contain any actual or alleged defect or inadequate warnings, labeling, instructions, or safety guards, (ii) violate or allegedly violate any law, regulation, or court or administrative order, (iii) fail or allegedly fail to comply with any Customs requirement, or (iv) infringe or allegedly infringe any third party's patent, trademark, copyright or other intellectual property rights. Payment of any invoice does not limit Bridgewell Agribusiness's right to reject or revoke acceptance.
5.2 Related Expenses. Supplier hereby assumes, and shall bear and pay, all expenses and risks of unpacking, examining, repacking, storing, holding and/or reshipping, returning and any Customs actions regarding any Products rejected (or whose acceptance is revoked) pursuant to Section 5.1.
5.3 Customer Returns. Bridgewell Agribusiness's right to reject (or revoke acceptance) and to return or hold Products at Supplier's expense and risk shall, without limiting such right, extend to Products returned by Bridgewell Agribusiness's customers for any reason stated in Section 5.1.
5.4 Refund; Offset. At Bridgewell Agribusiness's option, with respect to any shipment or Products that Bridgewell Agribusiness rejects or revokes acceptance of hereunder, Supplier shall grant to Bridgewell Agribusiness, at Bridgewell Agribusiness's option, a full refund or a full credit to Bridgewell Agribusiness, or Bridgewell Agribusiness may offset the amount in question against amounts it owes to Supplier or may owe in the future. Bridgewell Agribusiness may also offset costs regulatory fines or penalties (including associated attorneys' fees), any rebates/incentive allowances and any other amounts owed or to be owed by Supplier against amounts Bridgewell Agribusiness owes to Supplier. Bridgewell Agribusiness may, at the end of a season, at the close of the business relationship, or otherwise, hold back a reasonable reserve for future claims against amounts owed. In the event there remains an outstanding balance owed Bridgewell Agribusiness after such offset, Supplier shall immediately pay to Bridgewell Agribusiness said balance.
6. RECALLS; TAINTED PRODUCT CLAIMS.
6.1 Recalls; Safety Notices. If a Product is the subject of a recall (or safety notice) or other action required to bring the Product into compliance with the specifications, the Purchase Order or these Standard Terms whether initiated by Bridgewell Agribusiness, Supplier, or a government or consumer protection agency, Supplier shall be responsible for all costs and expenses associated with the recall, notice or action and shall promptly reimburse Bridgewell Agribusiness for all actual costs and expenses incurred by Bridgewell Agribusiness in recalling, publishing notices about, shipping and/or destroying the Product (and where applicable, any products with which the Product has been packaged, consolidated or commingled), including refunds to customers and Bridgewell Agribusiness's net landed cost of unsold Product.
6.2 Defects; Tampering. In the event of a claim or potential claim of any defect regarding a Product or of any tampering with a Product, Supplier agrees to promptly notify Bridgewell Agribusiness, contact the FDA and/or other appropriate government agency, and immediately conduct at its expense a full and complete analysis of said Product. In the event that Bridgewell Agribusiness becomes aware of a claim or a potential claim of any defect regarding a Product or of any tampering with a Product, Bridgewell Agribusiness shall promptly notify Supplier of the same.
6.3 Cooperation. The parties shall assist each other in all reasonable ways to resolve any claims involving Products subject to a recall or safety notice.
7. LABELS AND PACKAGING.
7.1 Review and Approval. All labels and packaging, including artwork and non-technical aspects of such labels and packaging, are subject to review and approval by Bridgewell Agribusiness prior to final printing. Any changes to the labels and packaging must also be approved in writing by Bridgewell Agribusiness.
7.2 Labels; Costs; Ownership. Unless otherwise agreed to in writing, Supplier shall pay for all development, design, plates and artwork for the labels and packaging, but such design, plates and artwork shall be owned by Bridgewell Agribusiness. The parties shall cooperate in good faith to agree on any needed changes and the timing of such changes to any of the Products, labels and/or packaging that are determined necessary by either party in order to comply with applicable law.
8. REPRESENTATIONS AND WARRANTIES.
Supplier represents, warrants and agrees to each of the following at all times during the Term of the Supplier Agreement:
8.1 Products; Specifications; Labels and Packaging.
(a) Supplier is an expert in the production of each of the Products it will produce or distribute. Before first producing or distributing a Product, Supplier shall provide Bridgewell Agribusiness with a written statement of the industry standards applicable to the Product.
(b) Each Product:
(i) is and will be free from defects in design, material and workmanship,
(ii) conforms and will conform strictly to all applicable federal, state, provincial, territorial and local laws, treaties, regulations, governmental requirements and industry standards applicable to the Product and its production, shipment and sale in the United States, its territories, and any other country where the parties agree to sell the Products ("legal requirements"), and
(iii) is and will be manufactured, processed, labeled, packaged, accurately marked, tagged, tested, certified (including Kosher certificates, if applicable), weighed, inspected, shipped and sold in compliance with all legal requirements, including by way of example all legal requirements relating to labor, health, safety, environment, labeling, country of origin designation and Customs requirements; all FDA, toxic substances, OSHA, CPSC and EPA regulations; Federal Meat Inspection Act or Poultry Products Inspection Act, or any other food safety statute and the requirements of California Proposition 65.
(c) Supplier agrees to execute and furnish to Bridgewell Agribusiness, on reasonable request, all certifications, guaranties and other documents regarding and verifying compliance with the legal requirements referenced in Sections 8.1 (b) (ii) and (iii), including any Safety Data Sheet ("SDS") as required by OSHA regulations.
(d) Supplier shall verify and assure Bridgewell Agribusiness that the Products are in compliance with all legal requirements, immediately inform Bridgewell Agribusiness in case of any nonconformity with or change to any such legal requirements, and promptly notify Bridgewell Agribusiness of any facts it learns indicating that the Products are not in compliance with any legal requirements or any other provisions of these Standard Terms. Bridgewell Agribusiness reserves the right to cancel any Purchase Order, without penalty, if it reasonably believes that the Products to be delivered do not comply with the requirements of this Section 8.
(e) All claims about the Product on the labels and packaging are substantiated, and none of the Products, labels or packaging is adulterated or misbranded within the meaning of the Federal Food and Drug Act ("Act"), or is an article which, under the provisions of Section 404 of the Act, may not be introduced into interstate commerce.
(f) Each Product does and will substantially conform in all material respects to the Specifications, including but not limited to the Product ingredients, quality, appearance, labels and packaging, instructions and/or directions for the consumer and the sample that has been approved in writing by Bridgewell Agribusiness.
(g) The Product specifications do not and will not infringe or in any way violate the rights of any third parties, including without limitation patents, trade secrets, trademarks, or copyrights.
8.2 Supplier's Plant/Facility. Supplier shall:
(a) Provide for and maintain its plant, equipment (manufacturing, computer, etc.), materials, supplies, and personnel in a manner and at a level sufficient to perform in all material respects its obligations hereunder; and
(b) Maintain and operate its plant at all times in good and sanitary operating order, condition, and repair consistent with industry standards and in compliance in all material respects with applicable laws, rules, and regulations pertaining to the operation of its plant and the production and storage of the Products.
8.3 Child/Forced Prison Labor Laws and Supplier Code of Conduct.
Supplier and its Subcontractors/suppliers (a) will comply with all applicable labor and environmental laws and regulations where the Products are produced, (b) do not use any form of compulsory prison or slave labor or illegal child labor, (c) do not physically abuse their workers, (d) will comply with any Bridgewell Agribusiness or Bridgewell Agribusiness's customer's code of conduct; and (e) will conform with Bridgewell Agribusiness's quality control requirements. In the event of any noncompliance, Bridgewell Agribusiness, in its sole discretion, reserves the right to terminate its relationship with Supplier or to cause Supplier to terminate its relationship with any of its subcontractors/suppliers, cancel any Purchase Order, return or revoke acceptance of affected Product and/or require corrective action be taken. Supplier shall be liable for all related damages incurred by Bridgewell Agribusiness, including lost profits.
9.1 Indemnification by Supplier. Supplier shall defend, hold harmless and indemnify Bridgewell Agribusiness, its affiliates, parents and subsidiaries, and their employees, officers, representatives, or agents (collectively "Indemnitees"), from and against any and all claims, actions, liabilities, losses, fines, costs and expenses (including reasonable attorneys' and experts' fees) arising out of or relating to:
(a) Any actual or alleged infringement or misappropriation of any patent, trademark, trade dress, copyright or other right of any third party relating to any Product;
(b) Any actual or alleged injury to any person, damage to any property, or any other damage or loss, by whomsoever suffered, resulting or claimed to result in whole or in part from any actual or alleged defect in any Product, whether latent or patent, including any design or manufacturing defect, failure to provide adequate warnings, labeling, instructions or guards, or any failure of the Product to comply with any of the Specifications or with any express or implied warranties of Supplier;
(c) Any actual or alleged violation of any law, statute or ordinance or any judicial or governmental administrative order, rule or regulation relating to any Product, or to its manufacture, shipment, import, labeling, weights and measurements, possession, use or sale, or Supplier's failure to comply with any industry standards;
(d) Any breach or alleged breach of any of Supplier's obligations, agreements, representations or warranties; or Any act, activity or omission of Supplier or any of its affiliates, employees, subcontractors, representatives, agents or contractors, including activities on Bridgewell Agribusiness's premises and the use of any vehicle, equipment, fixture or material of Supplier in connection with any sale to or service for Bridgewell Agribusiness or its Indemnitees.
9.2 Effect of Bridgewell Agribusiness Acts. The representations, warranties, indemnities and obligations of Supplier under the Purchase Order and these Standard Terms shall not be affected, expanded, limited or discharged in any way by Bridgewell Agribusiness's extension of express or implied warranties to its customers, by the Specifications, by any approvals by Bridgewell Agribusiness of Product samples, labels, packaging or interim work, by Bridgewell Agribusiness's acceptance of any Products, or by any other act or omission of Bridgewell Agribusiness.
10.1 Required Coverage. During the Term of the Supplier Agreement, Supplier shall obtain and maintain, at its expense, a policy or policies of:
(a) Commercial General Liability (including product and completed operations, personal and advertising injury, contractual liability coverage) with a minimum of $1,000,000 General Aggregate limit; $1,000,000 Products and Completed Operations Aggregate limit; and $1,000,000 each occurrence, written on an occurrence form. Insurance shall be written on a world-wide basis.
(b) For Suppliers whose employees enter Bridgewell Agribusiness's premises, Workers' Compensation Insurance with statutory limits and Employers' Liability (Stop-Gap Liability in monopolistic State Workers Compensation Fund states) insurance with minimum limits of $1,000,000 per accident combined single limit for bodily injury and property damage; Automobile Liability Insurance with $1,000,000 per accident combined single limit for bodily injury and property damage limits for each accident, including owned, non-owned and hired vehicles. Such insurance shall contain a waiver of subrogation endorsement in favor of Bridgewell Agribusiness.
Policy limits may not be reduced, terms changed, or the policy canceled with less than thirty (30) days' prior written notice to Bridgewell Agribusiness. Coverage and limits referred to above shall not in any way limit the liability of Supplier.
10.2 Certificates of Insurance. Supplier will provide Certificates of Insurance at all times naming Bridgewell Agribusiness, its member and parent company and/or any subsidiary, partnership or joint venturer thereof as "Additional Insureds" with respect to General Liability and Automobile Liability policies, and attach the Broad Form Vendor Endorsement (ISO CG2015 1185), executed in favor of Bridgewell Agribusiness and Additional Insureds, to the Certificates of Insurance, and protecting all parties from the liability set forth in Section 10.1. Supplier's insurers must be Best's rated B+, VII or better. Supplier's insurance shall be primary with respect to any other insurance available to Bridgewell Agribusiness and shall contain a waiver of subrogation by Supplier's insurance carrier against Bridgewell Agribusiness and its insurance carrier with respect to all obligations assumed by Supplier.
10.3 Subcontractors. It shall be the responsibility of Supplier to ensure that any of its agents, representatives, subcontractors, and independent contractors comply with the above insurance requirements.
11.1 Non-Disclosure. Each party agrees to (i) hold the other party's Confidential Information in the strictest confidence, (ii) not disclose such Confidential Information to any third party other than as may be specifically authorized by the parties in writing, and (iii) use the other party's Confidential Information solely for the purpose of fulfilling their respective obligations under the Purchase Order. Each party shall, however, be permitted to disclose relevant aspects of such Confidential Information to its officers, employees, attorneys, auditors of a public accounting firm, or a federal or state government agency, on a need-to-know basis in order to perform its obligations under the Purchase Order, provided that the disclosing party has undertaken to protect the Confidential Information to the same extent as required under the Purchase Order. Each party shall give the other party notice immediately upon learning of any unauthorized use or disclosure of any Confidential Information.
11.2 Exceptions. Confidential Information shall not include information that the party receiving the other party's Confidential Information can conclusively establish (i) entered the public domain without the receiving party's breach of any obligation owed to the disclosing party; (ii) was lawfully disclosed to the receiving party from a source other than the disclosing party; or (iii) is or was rightfully in the receiving party's possession prior to disclosure by the disclosing party.
11.3 Legal Process. In the event a party is served with any order, subpoena or other legal process requiring or purporting to require the disclosure of any Confidential Information, then that party shall promptly notify the other party and shall cooperate fully with the other party and its legal counsel in challenging, opposing, seeking to limit or appealing any such legal process in an effort to prevent such disclosure.
12. TERM; TERMINATION; SUSPENSION; CONSEQUENCES OF TERMINATION; DAMAGES.
12.1 Termination Due to Breaching Party's Failure to Cure. A non-breaching party may immediately terminate any Purchase Order for cause upon written notice if the breaching party fails to cure its breach of any duty, obligation or legal, regulatory and/or governmental requirement or industry standard within thirty (30) days of receiving written notice of that breach.
12.2 Termination Due to Insolvency. Either party may immediately terminate any Purchase Order for cause by giving written notice upon a party's discovery of the other party's insolvency or an assignment by that party for the benefit of its creditors, or the filing of a petition in bankruptcy with respect to that party.
12.3 Termination Due to Recall. Bridgewell Agribusiness may immediately terminate any Purchase Order for cause upon written notice in the event of a recall of any Product.
12.4 Change in Control. Bridgewell Agribusiness may immediately terminate any Purchase Order for cause upon written notice due to Supplier's change of control, pursuant to Section 14.7.
12.5 Bridgewell Agribusiness's Right to Suspend Production/Shipment. In lieu of or in addition to any right of termination in this Section 12, Bridgewell Agribusiness may suspend any production and/or shipment of any Product if it has a reasonable belief that there has been a breach of any duty or obligation under a Purchase Order or in any circumstance that would permit a termination under Sections 12.1 through 12.4.
12.6 Termination by Bridgewell Agribusiness For Cause. If Bridgewell Agribusiness terminates any Purchase Order for cause:
(a) Purchase Orders. Upon the effective date of termination, Bridgewell Agribusiness, at its sole option, may terminate some or all outstanding Purchase Orders for the Products affected by the termination. For those Purchase Orders that Bridgewell Agribusiness chooses to have fulfilled, Supplier shall promptly fulfill such Purchase Orders and make prompt shipment of all Products covered by such Purchase Orders, unless the parties otherwise agree in writing;
(b) Purchase of Materials, Ingredients, Labels and Packaging. Bridgewell Agribusiness has the right, but not the obligation, to purchase some or all amounts of materials, ingredients, labels and packaging materials purchased by Supplier for production of the Products affected by the termination at Supplier's direct cost of acquisition, provided that such amounts shall be determined in Bridgewell Agribusiness's sole discretion; and
(c) Sell Through of Inventory. Bridgewell Agribusiness may sell through any inventory of the Products affected by the termination, including Products produced by Supplier pursuant to Section 12.6(a).
12.7 Limitations of Liability. Under no circumstances, whether as a result of breach of contract, warranty, tort (including without limitation negligence) or any other claim or cause of action, will either party be liable to the other for any incidental, special, exemplary, punitive or consequential damages suffered or incurred as a result of or related in any way to the development, manufacture, distribution, sale or use of the Products, even if the other party has been advised of the possibility of such damages in advance, provided, however, that this limitation of liability shall not apply to any incidental, special, exemplary, punitive or consequential damages that are (a) subject to the indemnification and confidentiality obligations under Sections 9 and 11, or (b) the result of Supplier's failure to comply with Section 8.3.
13. ARBITRATION, JURISDICTION and APPLICABLE LAW.
13.1 Arbitration. All claims and disputes that (1) are between Supplier and Bridgewell Agribusiness or either's subsidiaries, parents, affiliates, officers, directors and/or employees, and (2) arise out of or relate to the Purchase Order or their subject matter, interpretation, performance or enforcement, or any other agreement, transaction or occurrence between Supplier and Bridgewell Agribusiness (including without limitation any tort or statutory claim) ("Dispute"), shall be resolved by arbitration in accordance with the then effective arbitration rules of (and by filing a claim with) Arbitration Service of Portland, Inc., and judgment upon the award rendered pursuant to such arbitration may be entered in any court having jurisdiction thereof.
13.2 Exceptions to Arbitration. Notwithstanding the above, Bridgewell Agribusiness or Supplier may bring court proceedings or claims against each other (i) solely as part of separate litigation commenced by an unrelated third party, or (ii) if not first sought from the arbitrator, solely to obtain in the state or federal courts in Washington County, Oregon, temporary or preliminary injunctive relief or other interim remedies pending conclusion of the arbitration.
13.3 Venue and Jurisdiction/Attorney's Fees. For purposes of any arbitration or court proceeding referred to in Sections 13.1 or 13.2, the parties hereby irrevocably agree and consent that the state and federal courts of Multnomah County, Oregon, U.S.A. shall all have exclusive personal jurisdiction over the parties and proper venue for any such proceeding and any objection to the jurisdiction or venue of any such court is hereby waived. The prevailing party in any arbitration or court action or proceeding shall be awarded its reasonable attorneys' fees (including without limitation expert witness fees).
13.4 Choice of Law. The Purchase Order and these Standard Terms shall be governed by and construed according to the laws of the state of Oregon, excluding its conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Purchase Order.
14 FINAL PROVISIONS.
14.1 Other Remedies. The exercise of any right or remedy provided herein shall be without prejudice to any other right or remedy available to either party.
14.2 Waiver. A waiver of any term, condition or provision of the Purchase Order and these Standard Terms shall not be considered a waiver of any other term, condition or provision hereof, nor of any subsequent breach of the same term, condition or provision.
14.3 Severability. If any of the provisions of the Purchase Order and these Standard Terms shall be declared illegal or unenforceable, the validity of the remaining provisions shall not be affected thereby, and the parties agree to do all things and cooperate in all ways open to them to obtain substantially the same results, or as much thereof as may be possible, including the amendment or alteration of the Purchase Order and these Standard Terms.
14.4 Survival. Notwithstanding the termination of the Supplier Agreement or the termination or expiration of any Product Term, the following Sections shall continue in effect without time limit: Section 5 (Rejection (Revocation of Acceptance) of Non-Conforming Goods), Section 6 (Recalls), Section 8 (Representations and Warranties), Section 9 (Indemnification), Section 11 (Confidentiality), Sections 12.6 through 12.7 (Termination), Section 13 (Arbitration) and Section 14 (Final Provisions).
14.5 No Publicity. Supplier shall not, without the prior written consent of Bridgewell Agribusiness, refer to Bridgewell Agribusiness in any manner in press releases, advertising or other public or promotional statements or otherwise disclose the fact that Supplier is manufacturing the Products for Bridgewell Agribusiness.
14.6 Notices. Unless specified otherwise, all notices, requests or communications required or permitted to be given under the Purchase Order and these Standard Terms must be in writing and delivered by messenger, FedEx or other express courier service to the party to which it is addressed at the addresses given on Purchase Order, to the attention of:
Supplier: Account Representative
Bridgewell Agribusiness: Quality Assurance
Any such notice, request or other communication will be deemed to have been received on the day of delivery, but if that day is a Saturday, Sunday or legal holiday at the location of the recipient, then on the following day that is not a Saturday, Sunday or legal holiday at the location of the recipient.
14.7 Change of Control; Assignment.
(a) In the event of a change in control of Supplier, Bridgewell Agribusiness shall have the option but not the obligation to terminate the Supplier Agreement for cause or cancel any Purchase Order that has not been fully performed.
(b) Any assignment of the Purchase Order without Bridgewell Agribusiness's prior written consent is void and if approved, the Purchase Order and these Standard Terms will be binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns.
14.8 Headings. All headings in these Standard Terms are for convenience only, and shall not affect their meaning or interpretation.