Terms and Conditions
1. Contract
This document is the contract between Flowers Bakeries, LLC (“Buyer”) and Supplier relating to the purchase and sale of goods or services hereunder. Any additional or different terms in any other document or otherwise are hereby deemed to be material alterations and notice of objection to them and rejection of them is hereby given. This contract shall be governed by and construed in accordance with laws of the State of Georgia. Supplier agrees that suit hereunder may be brought in any court of competent jurisdiction in the State of Georgia.
2. Price and Taxes
Except as otherwise provided in this Agreement, the price includes and all taxes whatsoever, whether sales, use, excise, or other, or fees, duties or other governmental impositions, whether or not same are set forth separately on invoices to Buyer. If Buyer shall subsequently be required to pay any taxes or other fees relating to the services to be performed or to the production, sale or transportation of articles ordered pursuant hereto, Supplier will reimburse Buyer therefor. If any tax is included in said price with respect to which a refund is hereinafter made to Supplier, then Supplier shall immediately pay Buyer the amount of such refund.
3. Packing and Shipping
a. All items or products covered by this Agreement shall by suitably packed, marked and shipped in accordance with the requirements of common carrier and, when transportation costs are payable by Buyer, in a manner to secure the lowest transportation cost. No charge shall be made by Supplier for packing, boxing, drayage or storage unless otherwise stated herein.
b. Unless otherwise provided in this Agreement, prices and delivery are “FOB Destination – Freight Prepaid.” All charges are included in the price and no extra charges of any kind shall be allowed unless specifically provided in this Agreement.
c. All risk of loss or damage in transit or delays enroute, and all liability to Buyer therefor, shall remain in Supplier until Buyers receipt and acceptance of the goods notwithstanding the FOB point stated on the reverse side hereof or any other terms in this Agreement. All goods will be received by Buyer subject to its right of inspection and rejection. Buyer will not accept chemicals and materials subject to OSHA Hazard Communication Act 1910.1200 unless Material Safety Data Sheets are provided with the shipment.
4. General Warranties
a. Supplier warrants that all goods purchased hereunder will be free from defects in design, material, and workmanship, will conform to specifications and accepted samples, will be merchantable and, if ordered, for a stated purpose, will be fit for such purpose. The warranties set forth in this paragraph or otherwise with respect to the goods are conditions to this Agreement and are in addition to all other warranties expressed or implied and shall survive any delivery, inspection, acceptance, or payment by the Buyer. All warranties shall run to the Buyer, its successors, assigns, customers and any third party injured in person or property by reason of any breach thereof.
b. Supplier warrants that any packaging material or edible raw or finished materials, as of the date of shipment or delivery, that the items comprising each shipment or other delivery hereafter made by or through Supplier to, or on the order of, Buyer are not, on such date, (1) adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act and all amendments thereto, including but not limited to the Food Additive Amendment; (2) articles which may not, under the provisions of Sections 404 or 505 of said Act, be introduced into interstate commerce; (3) adulterated or misbranded within meaning of any food laws or ordinances (then in effect) of the state or city to which such article is shipped.
c. All services provided by Supplier hereunder shall by satisfactorily performed to Buyer’s specifications, drawings, samples, and any other description furnished or adopted by Buyer. In the absence of exact specifications, all materials furnished shall be of the highest grade and best quality, and the Work shall be performed in a first-class manner best suited for its use and intended purpose. Contractor will re-execute at its own expense any defective or unsatisfactory Work that appears during progress of the Work and will remedy and replace at Contractor’s cost and expense any defects due to faulty materials or workmanship which appear within a period of one (1) year from the date of acceptance of the completed Work by Owner. The Work will be at Contractor’s risk until it is accepted by Owner.
d. Supplier shall permit auditors of Buyer access to facilities used to manufacture, pack, or hold products or ingredients. The audit / inspection may include review of records, processes, controls and facilities which demonstrate that product meets specifications.
e. Supplier also warrants that no liens, encumbrances, security interests, or other third-party claims shall attach to real or personal property owned or leased by Buyer as a consequence of Supplier’s performance of services hereunder.
5. Breach
Any materials, equipment, articles, goods or services of any kind purchased hereunder not in accordance with any of the warranties set forth herein may, at Buyer’s election, be treated as a partial or total breach of contract, and Buyer may avail itself of any and all remedies available to it including but not limited to: (1) cancellation of the Agreement, in whole or in part; (2) rejection and return to Supplier, at Supplier’s expense, all or any portion of the goods previously shipped, whether defective or not and whether previously accepted or not; (3) replacement from other sources of goods or services covered by this Agreement; and (4) retention of goods and repair thereof at Supplier’s expense. In any such even, Supplier shall be liable to Buyer for the full amount of such damages as flow from its breach of contract and Supplier shall not be entitled, in diminution of same, to show that such procedures as Buyer chose to follow upon such breach resulted in greater damages than might have ensued had Buyer selected other available alternatives.
6. Cancellation
a. If at any time Buyer shall reasonably determine that Supplier is, or about to become, insolvent or bankrupt, then Buyer may forthwith cancel this Agreement.
b. Without limiting any right of cancellation for the Supplier’s breach or default, the Buyer reserves the right to cancel this Agreement or any portion thereof if, for any reason delivery or performance is not made or cannot be made when specified, time being of the essence thereof, and to charge the Supplier for any loss resulting therefrom. The Buyer’s right of cancellation includes without limitation, the right to cancel future installments, if any, in the event of failure or delay in delivery or performance, if deemed by the Buyer to reasonably impair the value of the whole contract.
7. Force Majeure
In the event either party, through no fault of its own, is unable to perform hereunder due to an event which is beyond the non-performing party’s reasonable control, such non performance shall be excused provided that if any such event continues for more than fifteen (15) days, the Buyer may, at its option, cancel this agreement and all its obligations hereunder. Each party shall promptly notify the other of any inability to perform and the cause thereof.
8. Termination
Buyer may terminate this Agreement in whole or in part, at any time due to Supplier’s breach or by the giving of 10 days written notice, or verbal notice confirmed in writing, to Supplier. In the event Supplier is not in breach or default hereunder, Supplier’s sole remedy shall be limited to recovery of its reasonable direct cost consisting of a percentage of the order price reflecting the percentage of work authorized and properly performed prior to notice of termination, and actual direct costs resulting from termination.
9. Specification Changes
Buyer may, at any time upon notice to Supplier, make changes in the specifications, drawings, samples and/or other terms or conditions of this Agreement. If any such changes are made which causes a material increase or decrease in the amount or character of the work to be done by Supplier, the goods to be delivered hereunder, or the time required therefor, and Supplier notifies Buyer thereof within five (5) days from the date of receipt of notice from Buyer to make such change, the parties may agree to an equitable adjustment of the purchase price and/or the time for Supplier’s performance. No claim for an adjustment in price will be valid unless such changes are specifically requested by Buyer and the amount of the adjustment in price is specifically agreed in writing by Buyer.
10. Indemnification
Supplier agrees to indemnify and hold harmless the Buyer, its successors, assigns, employees, agents, and customers from any and all claims, demands or other liabilities for injuries, losses, or damages to persons or property in any way arising out of or resulting from a defect in the goods or services purchased hereunder or from any act, faulty or omission of Supplier, its agents, employees or subcontractors in the performance of this Agreement, including but not limited to: (1) actual alleged adulteration or misbranding of product(s); (2) use or incorporation of any product(s) manufactured by Buyer; (3) actual or alleged infringement of any United States or foreign patents, or any trademark or copyright; (4) performance of work and labor covered by this Agreement; (5) use of Buyer’s machinery and/or equipment by Supplier in the performance of the work called for by this Agreement; or (6) breach any warranty or any other obligation hereunder.
11. Insurance
Supplier agrees to maintain the following insurance coverage levels throughout the Term of the Agreement and for a period sufficient to meet its indemnity obligations hereunder: (1) Commercial General Liability Insurance, including products and completed operations coverage, duty defend and contractual liability coverage, with minimum coverage amounts of Two Million Dollars ($2,000,000) per occurrence and Ten Million Dollars ($10,000,000) aggregate coverage; (2) Automobile Liability Insurance, including coverage for owned, non-owned and hired vehicles, with minimum coverage amounts of Two Million Dollars ($2,000,000) per occurrence and Five Million Dollars ($5,000,000) aggregate coverage; and (3) Employment related or workers’ compensation insurance at the statutory limits as required by law. The minimum coverage amounts described herein may be satisfied through a combination of primary and umbrella insurance policies. All such policies shall be provided by reputable and financially sound insurance companies with a rating of A XV. Within ten (10) days of the date of this Agreement, Supplier shall provide Flowers with certificates of insurance establishing such coverage and cause Purchaser to be named as an additional insured under the Commercial General Liability Insurance policy.
12. Work and Labor
a. Supplier shall observe all laws, ordinances, rules and regulations of any government unit or agency affecting items furnished and/or the performance of work and labor covered by this Agreement. Before commencing any work hereunder, all contractors, subcontractors, and vendors should review “Hazard Communication Compliance Manual” at the work site (location) and must provide the appropriate documents (Material Safety Data Sheets, etc.) for all hazardous materials as defined by current OSHA Hazard Communication Act 1910.1200 to be used, consumed or installed as part of this contract.
b. Supplier shall keep the premises of Buyer free from accumulation of materiel or rubbish, and at the completion of work shall promptly remove same from Buyer’s premises, together with Supplier’s machinery, tools and equipment.
c. Supplier, its subcontractors, materialmen, and all parties acting under it, agree that no Mechanics’ claims or liens shall be filed or maintained by it, them, or any of them, for any services performed or materials provided in accordance with this Agreement, and Supplier, for itself, its successors and others acting through or under it, waives and relinquishes the right to have, file, or maintain any Mechanics’ claims or liens against the services, materials, or premises of Buyer. Supplier will, nevertheless, furnish to Buyer the standard forms of waiver of liens signed by Supplier and all subcontractors and materialmen who have furnished labor and materials hereunder.
d. In the event Buyer’s machinery and/or equipment are used by Supplier in the performance of the work called for by this Agreement, such machinery and/or equipment shall be considered as being under the sole custody and control of the Supplier during the period of such use by the Supplier and should any person or persons in the employ of Buyer be used to operate said machinery and/or equipment during the period of such use, such person or persons shall be deemed during such period of operation to be an employee or employees of Supplier.
13. Confidentiality
In the event Buyer discloses to Supplier any confidential information, including that which may be disclosed verbally, in writing or through observation of Buyer’s facilities, Supplier shall not use such information for its own benefit or disclose Buyer’s confidential information to any third parties except to the extent provided by law.
14. Ownership
If any molds, dies, tools, special fixtures, jigs, patterns, models or the like, or any photographic negatives or printing artwork or plates, copyrightable material, patents, trademarks, or the like should be furnished by or on behalf of Buyer, or by Supplier to Buyer, in connection with this Agreement, then Supplier (1) shall have no rights, property or interest in same except to the extent necessary to perform under this Agreement; (2) shall be responsible for maintaining same in proper working order subject only to normal wear and tear where applicable; and (3) upon completion of work pursuant hereto shall promptly account to Buyer for any and all such items and make such disposition thereof, including any assignment, as Buyer shall direct.
15. Laws and Regulations
a. Supplier shall comply with all federal, state and local laws, executive orders and regulations. If required, Supplier shall so certify when and in such form as Buyer may require, including, among other things, a certification that the items were produced in compliance with all applicable requirements of the Fair Labor Standards Act and the California Transparency in Supply Chains Act, as applicable.
b. Section 202 of Executive Order 11246 and the rules and regulations promulgated pursuant to Section 201 thereof are incorporated herein by reference and made applicable hereto in the even this Agreement is placed by Buyer in conjunction with a government contract or sub-contract as therein defined. c. The affirmative action clause of respectively, The Rehabilitation Act of 1973 (Sec. 503, Public Law 93-112) and the Vietnam Era Veteran’s Readjustment Assistance Act of 1974 (Sec. 402, Public Law 93-508) and the regulations pursuant to each, respectively Title 41, Chapter 60, Part 741 (41 F.R.16147) and Title 41, Chapter 60, Part 250 (41 F.R. 26386),are hereby incorporated by reference.
16. Supplier Code of Conduct
Buyer expects and Supplier acknowledges and agrees that it shall at all times during the term hereof, adhere to the principles and standards set forth in the Flowers Foods Supplier Code of Conduct. (en Español)