Please Read our Ace Natural Supplier Agreement
For and in consideration of the purchase and/or marketing of merchandise by Ace Natural, Inc. and any future subsidiary or affiliate that purchases products from the undersigned supplier (such purchaser or purchasers, as applicable, “Buyer”), the following Ace Natural, Inc. Terms and Conditions (the “Supplier Terms and Conditions”) are incorporated by reference into Buyer’s standard purchase order form:
• The undersigned represents and warrants to Buyer that no food or food products comprising or contained in any shipment or other delivery of products sold or supplied by the undersigned to Buyer has been, is or will be at the date of shipment and delivery: (a) adulterated, unsafe or misbranded, within the meaning of the Federal Food, Drug and Cosmetic Act, as amended (the “Act”); (b) an article which, under the provisions of sections 404, 505, or 512 of the Act, may not be introduced to interstate commerce; (c) in violation of the provisions of the Food Additives Amendment of 1958; (d) adulterated, unsafe or misbranded within the meaning of any other applicable federal, state or local law or regulation; or (e) in violation of any other applicable law, rule or regulation. The undersigned further represents to Buyer that all advertising and promotional materials developed or provided by it for any product sold or supplied by the undersigned to Buyer complies with all applicable requirements of laws, regulations, ordinances and administrative orders and rules of applicable jurisdictions, including, without limitation, those promulgated by the U.S. Food and Drug Administration, the U.S. Department of Agriculture, the U.S. Federal Trade Commission and the Environmental Protection Agency and that it and its employees and agents involved in the manufacturing, processing or delivery of the products strictly adhere to all applicable laws, regulations and prohibitions of applicable jurisdictions with respect to the operation of production facilities and other business and labor practices. The undersigned also represents and warrants to Buyer that the goods to be supplied under this agreement are merchantable, of the highest quality, and free from defects, whether patent or latent, and that the undersigned has good title to such goods, free and clear of all liens and encumbrances.
• For purposes of this agreement, an “Unacceptable Product” means a product sold or supplied by the undersigned to Buyer that (i) is unable to maintain its quality standard for the duration of the product’s shelf life; (ii) is adulterated or misbranded within the meaning of the Act; (iii) fails to meet the above warranties; (iv) is the subject of a recall; and/or (v) may not, under provisions of Sections 404 and 505 of the Act, be introduced in interstate commerce. Buyer may refuse to accept delivery of Unacceptable Products. The undersigned shall accept any Unacceptable Products for return, for full credit and with freight paid by the undersigned. Alternatively, at the undersigned’s discretion and expense, Buyer may dispose of such Unacceptable Product in a manner as the circumstances may reasonably dictate and the undersigned shall reimburse Buyer for any amount by which the sale or disposal price realized by Buyer shall be less than Buyer’s cost of the product plus reasonable expenses for such sale or disposition. Notwithstanding any other provision of this paragraph 2, the undersigned shall not be required to reimburse Buyer for Unacceptable Product if the unacceptability resulted solely from the gross negligence or willful misconduct in the handling of the product by Buyer or Buyer’s customer.
• The undersigned shall indemnify, defend, save and hold Buyer, its principals, agents, servants, employees, officers, directors, subsidiaries and affiliates, as well as Buyer’s customers (collectively, “Buyer Indemnified Parties”), harmless from and against any and all allegations, claims, demands, actions, penalties, fines, losses, expenses (including reasonable attorneys’ fees) or liabilities (collectively, “Claims”) of any kind, including, Claims for death, for personal injuries or property damage, which may arise from or in any way be connected with (i) any merchandise heretofore or hereafter purchased by Buyer from the undersigned or provided to Buyer by the undersigned; (ii) violation of any federal, state or local laws, regulations, ordinances or administrative orders or rules of any jurisdiction in which products sold or supplied to Buyer by the undersigned is produced or delivered and which relates to (A) such product, or any label, packaging or invoice associated with the product, in its manufacture, possession, storage, use or sale; or (B) any advertising or promotional materials developed or provided by the undersigned; (iii) any defect involving the packaging, labeling, packing, shipping and/or invoicing of such product; or (iv) the failure to comply with any provisions of this agreement or any purchase order between Buyer and the undersigned; provided, however, that the undersigned shall not be liable to Buyer hereunder to the extent Buyer’s damages are determined to result from Buyer’s gross negligence or willful misconduct in the handling, storage, preparation or distribution of the products. For the avoidance of doubt the undersigned agrees that its obligations under this paragraph 3 include the obligation to defend Buyer Indemnified Parties, at the undersigned’s sole expense, and be responsible for all costs including reasonable attorneys’ fees, in connection with any Claims or legal proceedings arising from the indemnification obligations of this paragraph 3.
• This agreement, and the rights and obligations hereunder, shall be binding upon the heirs, successors and assigns of the undersigned.
• The individual signing this agreement warrants and represents to Buyer that he or she has full authority from the undersigned to do so on the undersigned’s behalf.
• Miscellaneous. Any dispute or claim hereunder shall be governed and construed in accordance with the laws of the State of New York without reference to New York’s conflicts of law provisions. By execution and delivery of this agreement each of the parties to this agreement accepts the exclusive jurisdiction of the courts of New York and irrevocably agrees to be bound by any judgment rendered thereby in connection with this agreement. If the undersigned is party to a formal supply agreement with Buyer, such agreement’s terms and conditions are incorporated herein by reference; if any such terms conflict with the Supplier Terms and Conditions, the terms of the formal supply agreement will prevail over the Supplier Terms and Conditions with regard to the products purchased hereby. However, if the undersigned is already a party to an indemnity agreement with Buyer or any prior dated version of the Supplier Terms and Conditions, then these Supplier Terms and Conditions will supersede any and all terms of such prior existing indemnity agreement between the undersigned and Buyer or any prior dated versions of the Supplier Terms and Conditions. No statement or writing by the undersigned, including the undersigned’s invoice, shall alter or supersede the Supplier Terms and Conditions.
