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Purchase Order Terms & Conditions

  1. CONDITIONS OF ACCEPTANCE: Acceptance of this Purchase Order (this "Order") by Seller is subject to the terms herein, on the face of this Order and the technical descriptions or specifications which are incorporated herein by reference. This Order shall control and govern all terms of sale. Kunzler & Company, Inc. ("BUYER") hereby notifies Seller that BUYER rejects any attempt by Seller to limit or condition its liability for breach or damages arising out of its performance or nonperformance of this Order. The rights and remedies of Buyer set forth in this Order are cumulative and are in addition to, and not in lieu or exclusive of, all legal and equitable rights and remedies, including without limitation, all rights and remedies to which BUYER is entitled under the Uniform Commercial Code ("UCC"), which are hereby reserved by BUYER. As used herein, "Goods" shall mean any goods and/or services which are the subject of this Order.


  2. ENTIRE AGREEMENT: This Order, together with BUYER's specifications and any other agreement signed by BUYER, constitutes the entire agreement between the parties regarding the Goods and supersedes all previous negotiations and understandings, as well as any terms or conditions contained on Seller's correspondence, invoices, delivery receipts, bills of sale or the like.


  3. ASSIGNMENT: Seller may not assign (directly or indirectly, by operation of law or otherwise) its rights or obligations under this Order without BUYER's prior written consent, which consent may be withheld in BUYER'S sole discretion.


  4. INVOICING/SHIPPING: Seller shall: (a) include in each shipment separate packing slip(s) showing BUYER's order number, BUYER's item, code, or mark number, and a description of the Goods and of the quantity shipped; (b) accept payment according to the terms specified on the face of this Order; (c) invoice each Order separately; (d) Include cash discounts on all invoices; (e) on all prepaid shipments chargeable to BUYER, attach transportation receipt(s) to the invoice, as BUYER will only pay for actual and reasonable freight cost incurred with BUYER's prior approval; and (f) notify BUYER of: (i) the number of packages, size, weight; (ii) the method of protection during shipment; and (iii) the suggested method for storage and protection upon arrival at destination.


  5. GOODS: The Goods shall conform in all respects to the description on the face hereof, and/or BUYER's then-current specifications furnished to Seller. The Goods shall be new, of first class commercial type, and of the latest approved design, unless otherwise specified on the face of this Order. Workmanship and materials shall be of the best quality and free from defects. Seller warrants and guarantees the Goods for the period of twelve (12) months from date of final acceptance, or as otherwise stated on the face of the order. During the warranty period, all Goods or parts disclosing defects in design, material and/or workmanship shall be replaced and delivered to the job site by Seller, without cost or delay to BUYER. These warranties of Seller, as well as all other warranties of Seller contained in this Order, shall be collectively referred to as the "Warranties." The Warranties are in addition to, and not in lieu of, any other warranties or guarantees made by Seller or created or implied as a matter of law.


  6. INFRINGEMENT: Seller warrants that the Goods and any uses proposed by Seller or reviewed by BUYER with Seller do not violate the trademark, patent, copyright or trade secret rights of any person or entity, and Seller will defend BUYER and save it harmless from any loss incurred as a result of any claim for misappropriation of trade secrets, unfair competition and trademark, patent or copyright infringement which may arise out of the use or purchase by BUYER of the Goods.


  7. GOVERNING LAW: This Order shall be governed by the laws of the Commonwealth of Pennsylvania (including, without limitation, its UCC) without regard to its conflict of laws provisions, with jurisdiction and venue in the County where BUYER has its principal place of business, or the U.S. District Court serving such County.


  8. FDA GUARANTY: Seller hereby guarantees and warrants that the Goods (i) shall not at the time of acceptance or when used as intended by BUYER be adulterated or misbranded within the meaning of the Federal Food Drug and Cosmetic Act as amended, and any similar state law, and (ii) shall comply in all respects with all applicable regulations of the Federal Food and Drug Administration and similar state regulatory bodies.


  9. DELIVERY: (a) The time of delivery shall be as stated on the face of this Order, and time is of the essence; provided, however, Seller shall not be liable for loss or damage arising from a Force Majeure event. A "Force Majeure" event shall be a cause for delay not under the control of Seller. In the event of such a delay, delivery time shall be extended to include time by reason of Force Majeure, unless such extended delivery time renders BUYER'S use of the Goods impractical or frustrates BUYER's business purpose, in which case BUYER may terminate this Order. Otherwise, the delivery time shall not be extended beyond the date specified by BUYER, unless BUYER has agreed to an extension in writing. Seller may not rely on a course of performance, prior course of dealings, or trade usage to imply an agreement to extend the time of delivery or to otherwise amend, alter or negate any terms of this Order or rights and remedies otherwise provided BUYER by the UCC or at law and equity. (b) If delivery date(s) cannot be met, Seller must immediately inform BUYER in writing of Seller's best possible delivery date(s) subject to BUYER's written acceptance of such date. In addition to any other rights and remedies BUYER may have under this Order or provided by law, if deliveries are not made at the time agreed upon, BUYER may, at its option: (i) request that Seller ship the Goods by other than designated routing to expedite delivery (cost of alternative means to shipment shall be borne by Seller); (ii) cancel this Order in whole or part; and/or (iii) purchase comparable Goods elsewhere and hold Seller accountable for any loss or additional cost arising from such expedited delivery or cancellation.


  10. INSPECTION: (a) The Goods are subject to inspection and test by BUYER at reasonable times and places, including the period of manufacture and in any event prior to final acceptance. (b) BUYER shall not be under any obligation to inspect the Goods. The fact of any inspection by BUYER shall not absolve Seller of any liability. (c) Seller shall promptly pay or reimburse BUYER for all costs and damages (including lost profits and other consequential damages) incurred by BUYER (including costs for packaging, handling, transportation, recall, destruction, production, and other administrative costs, including legal fees) which arise or result from the delivery of Goods that are not in accordance with the Warranties or any other term in this Order. (d) BUYER'S acknowledgment of receipt on packing slips, bills of lading, or other documents shall not constitute acceptance. Goods that are delivered in quantity may be inspected by sampling. (e) If any Goods are defective or otherwise not in conformity with requirements of this Order, BUYER may reject them or require correction(s). There shall be an adjustment of any payments made for rejected Goods, either by Seller's refund or by a deduction by BUYER from subsequent remittances. Rejected Goods shall be removed and the Goods shall be corrected or replaced promptly at Seller's expense and, if returned, shall be identified by Seller. If rejected Goods are not promptly replaced or if non-conforming Goods are not promptly corrected, BUYER may, at its option, elect to do some or all of the following: (i) obtain such Goods or similar Goods elsewhere and charge Seller with any cost increase caused thereby; (ii) terminate this Order for default under paragraph l7 hereof; (iii) accept the Goods at a reduction in price determined in accordance with paragraph 15 hereof; and/or (iv) seek other remedies and damages.


  11. WORK ON BUYER'S PREMISES: If this Order covers labor, contract, or construction work (or work of any nature) on BUYER's premises, all such work shall be performed in compliance with BUYER's General Conditions of the Contract for Construction/Installation which is hereby incorporated by referenced into this Order. Seller agrees it has no authority to hire any persons on BUYER's behalf, and each person employed or used by Seller shall be Seller's employee, servant or agent (and not BUYER's), as Seller is performing all of said work as an independent contractor. Seller hereby agrees to indemnify and save BUYER harmless from any and all judgments, costs, and expense, including attorneys' fees, which may be sustained or incurred by BUYER, its officers, employees, and agents, arising out of or in any way connected with such work done on BUYER's premises, except to the extent caused by the negligence or willful misconduct of BUYER. Prior to commencing any such work, Seller shall provide BUYER with certificates evidencing adequate insurance and naming BUYER as an additional insured.


  12. NON-CONFORMING GOODS: Seller will not substitute non-conforming Goods or back order such Goods without BUYER's prior written approval, and BUYER may reject all or part of any shipment which contains non-conforming Goods.


  13. CHANGES; PRICE INCREASE: (a) BUYER may change any of the terms of this Order by a written change order. Any changes in Seller's costs of performance arising out of such a change order shall result in a price adjustment. Pending such price adjustment, Seller shall proceed with performance and the parties shall negotiate in good faith [(for a period of not less than 14 business days)] regarding the consequences of the change order and its effect on the price. (b) No increase in price will be accepted without BUYER's written acceptance, and any request for a price adjustment must (i) be in writing, (ii) be accompanied by information (reasonably satisfactory to BUYER) regarding the increase in Seller's cost, and (iii) reference the particular change order from BUYER.


  14. NO OTHER CHARGES: In no event will BUYER be responsible for any interest, collection costs, or other similar costs or expenses of Seller.


  15. TERMINATION FOR DEFAULT: If Seller fails to deliver the Goods within the time specified, or otherwise defaults in performance, BUYER may terminate this Order in whole or in part (reserving its rights to damages and otherwise at law and equity). In the event of termination for default: (a) Seller shall continue performance of any non-terminated portion of this Order, and BUYER may obtain elsewhere the portions of the Goods affected by the termination; and (b) BUYER may, at its option, require Seller to transfer to BUYER all materials, work in process, completed supplies, tooling, plans and specifications allocated to the terminated portion of this Order.


  16. TERMINATION WITHOUT CAUSE: BUYER may terminate this Order in whole or in part at any time whenever the Goods specified herein are no longer required by BUYER. If, upon such termination, BUYER and Seller cannot negotiate a mutually satisfactory settlement within a reasonable time, BUYER, at BUYER's option, will pay Seller, and Seller agrees to accept, [one of the following] as full settlement: (a) the purchase price for completed items; (b) Seller's direct cost allocated to the terminated portion of this Order; or (c) reasonable direct costs of Seller in settling claims arising out of this termination, and in protecting property in which BUYER has or may acquire an interest. IN NO EVENT SHALL BUYER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES, whether under this paragraph or otherwise.


  17. TAXES: The prices stated in this Order shall include all applicable taxes in effect on the date hereof and levied or assessed with respect to the production, sale or use of the Goods. Seller is solely responsible for the collection and payment of such taxes.


  18. NON-DISCLOSURE: Seller agrees not to use, release or disclose to third parties any information concerning the Goods and/or process(es) involving the subject matter of this Order without the prior written consent of BUYER, which may withheld in BUYER's sole discretion. Seller agrees to execute and deliver BUYER's standard Confidentiality Agreement prior to commencing performance or accepting payment under this Order.


  19. WORK-FOR-HIRE: To the extent the Goods may be considered "work made for hire" under applicable law, Seller expressly agrees that the Goods shall be deemed to be work for hire and that all rights in and to same shall be owned by BUYER, and Seller hereby waives any right or interest that Seller may otherwise have in respect thereof.


  20. HEADINGS: The titles of the paragraphs of this Order are for convenience only and shall not affect their interpretation.


  21. TITLE: Title to the Goods shall pass to BUYER, f.o.b. destination, unless otherwise stated on the face of this Order. Seller represents and warrants that good title to the Goods will pass free and clear of all charges, claims, and liens of any nature.


  22. INDEMNIFICATION: Seller shall indemnify and hold harmless BUYER and its agents, employees, officers, directors, subsidiaries, affiliates, parent corporation, successors and assigns from and against all third party claims, demands, losses, attorneys' fees arising out of or resulting from Seller's performance of the work, any breach of the Warranties, or Seller's negligence or willful misconduct.


  23. COMPLIANCE WITH LAW: Seller's performance under this Order shall be in compliance with all applicable federal, state and local laws, ordinances, regulations, rules and statutes.


  24. SURVIVAL: All representatives and Warranties of Seller, all rights and remedies of BUYER and any other provisions hereof which by their express terms or by implication are to survive, shall survive the termination of this Order.


  25. AFFIRMATIVE ACTION: The parties hereby incorporate the requirements of 41 C.F.R. 60-1.4(a)(7), 60-250.5, and 60-741.5, if applicable.