PURCHASE ORDER TERMS AND CONDITIONS

These Purchase Order Terms and Conditions (these “Terms and Conditions”) are entered into as of the date set forth in each Purchase Order (“Purchase Order”) between Kelco Industries d/b/a East Coast Food Distributors (“Distributor”), and Vendor listed in the Purchase Order (“Vendor”). These Terms and Conditions govern each Purchase Order between Distributor and Vendor. 

1. 1. Issuance and Acceptance of Purchase Order. Vendor shall promptly provide Distributor with written notice of its receipt of the attached Purchase Order issued by Distributor which shall include a description of the products (“Products”) ordered by Distributor. The Purchase Order is considered “accepted” by Vendor upon such written notice to Distributor. Acceptance of the Purchase Order shall also constitute an acceptance of these Terms and Conditions. Upon acceptance, Vendor shall schedule all deliveries in accordance with the assigned “Required Arrival Date” as set forth in the Purchase Order. 

• Title and Risk of Loss. Title of the Products passes to Distributor upon delivery of the Products to the delivery location set forth in the Purchase Order, and acceptance by Distributor of the Products as set forth below. 

• Delivery Appointments; Failure to Deliver.  

1. 1. 1. Delivery Appointments. Vendor must schedule all delivery appointments by following the instructions set forth in the Purchase Order. Distributor will assign Vendor or Vendor’s designated carrier (“Carrier”) with a delivery date and dock time (the “Assigned Delivery Appointment”) that will include a one (1) hour grace period. Any cancellations by Vendor shall be made at least twenty-four (24) hours prior to the Delivery Appointment, or the Purchase Order shall be subject to the No Show Vendor Fee set forth below. Distributor will stamp Vendor’s Bill of Lading associated with the Purchase Order with an “in time” and “out time” that is updated according to Distributor’s receiving system, and such information shall be logged in Vendor’s file on record with Distributor. 
      2. Late Arrival Fee. Any delivery of Products which arrives at Distributor’s facility set forth in the Purchase Order outside of the Assigned Delivery Appointment will be stamped “Late Arrival” and Vendor shall pay Distributor late fees in the amount of $375.  “Late Arrival” means a delivery received past the Assigned Delivery Appointment time but before 11 am.  Any delivery received after 11 am or the afternoon of the Assigned Delivery Appointment will be considered a “No Show.”  In such case, Vendor shall pay Distributor the No Show Vendor Fee set forth in Subsection 3(c) below. 
      3. No Show Vendor Fee. In the event Vendor or its designated carrier (on its behalf), does not obtain a confirmed delivery appointment from Distributor, or fails to deliver the Products by the Required Arrival Date as set forth in the Purchase Order, Vendor shall pay Distributor a “No Show Vendor Fee” in the amount of $425. 
      4. Termination of Purchase Order. In addition to the penalties set forth in this Section, in the event Vendor fails to deliver the Products as set forth in the Purchase Order, Distributor may immediately terminate the Purchase Order upon written notice to Vendor. 

• Pallet Specifications; Re-Work. 

1. 1. 1. Pallet Specifications. All Products set forth in the Purchase Order shall be arranged in accordance with the pallet specification information provided by Vendor. In the event Vendor or Carrier delivers the Products and the Products require any adjustment, re-work or other modifications due to product shifting, damage, leaks, broken pallets or any other damage attributable to Vendor or Carrier, the Carrier will be provided with an opportunity to rework the load. 
      2. Re-Work Fee. If the Carrier refuses to provide sufficient labor and time for a prompt resolution, Vendor shall pay Distributor a per-pallet fee of $50.00 (the “Re-Work Fee”) that will be payable at the time of delivery. Vendor shall ensure the Carrier pays the Re-Work Fee or Vendor shall pay the Re-Work Fee if an email or fax authorization is sent to Distributor’s contact information set forth in the Purchase Order. Distributor will photograph and log pictures of any load that does not arrive in good condition and requires re-work, or refusal at the time of the delivery. 
   2. Unloading Fee.  All inbound loads are subject to an Unloading Fee in the amount of $85.00 per truckload (“Unloading Fee”). The Unloading Fee applies to all pallet loads not exceeding 28 Floor Positions and not double stacked. Any breakdown loads will be charged to Vendor in accordance with time and equipment needed. 
   3. Inspection and Nonconforming Products. Distributor has the right to inspect the Products on or after the Assigned Delivery Appointment specified in the Purchase Order. Distributor, at its sole option, may inspect all or a sample of the Products, and may reject all or any portion of the Products if it determines the Products are nonconforming or defective notwithstanding any payment or prior inspection upon delivery. Vendor and its suppliers shall maintain a quality control and inspection program.  Vendor shall keep and maintain inspection, quality, test and related records, which shall be available to Distributor or Distributor’s representative upon Distributor’s request.  If Distributor rejects any portion of the Products, Distributor has the right, effective upon written notice to Vendor and without prejudice to any other right or remedy available to Distributor hereunder or at law, to: (a) suspend payment to Vendor; and/or (b) reject the Products and require replacement of the rejected Products; (c) return (if appliable) the Products at Vendor’s risk and expense and claim full refund of the price already paid for the rejected Products; and/or (d) accept the Products at a mutually agreed equitable reduction in price.  Acceptance of and/or payment for the Products by Distributor shall not release Vendor from any of its obligations, representations or warranties hereunder. Distributor shall have the right to conduct further inspections after Vendor has carried out its remedial actions. If any Products are returned in accordance with this Section, Vendor will provide Distributor with a refund or replacement Products within three (3) business days of Distributor’s request.  If Distributor requires replacement of the Products, Vendor shall, at its expense, promptly replace the nonconforming Products and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective Products and the delivery of replacement Products. If Vendor fails to timely deliver replacement Products, Distributor may replace them with products from a third party and charge Vendor the cost thereof and terminate the Purchase Order for cause pursuant to Section 10.

• Delivery Policies; Liability. 

1. 1. 1. Unloading. Distributor guarantees that all on-time inbound loads will be assigned a door at Distributor’s facility, within the designated delivery appointment time, and all loads will be unloaded within ninety (90) minutes, subject to the Products being in good condition, and of sufficient quality to be sold to retailers/other third parties. 
      2. Carrier/Driver Policies.  Distributor enforces strict policies regarding Carrier drivers shutting down all power units. NO EQUIPMENT MAY BE MOVED DURING THE UNLOADING PROCESS AND ALL EQUIPMENT MUST BE SHUT DOWN. THE DRIVER MUST WAIT UNTIL THEY HAVE THE PHYSICAL PAPERWORK TO PULL AWAY FROM THE DESIGNATED DOCK. 
      3. Indemnification. Vendor shall defend, indemnify and hold harmless Distributor, its affiliates, officers, employees, directors, shareholders and agents (collectively, “Distributor Indemnitees”) to the maximum extent permitted by applicable law against all losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees and costs) incurred by any Distributor  Indemnitee in connection with any and all claims, actions or proceedings (“Claims”) brought or asserted by a third party, arising out of Vendor’s (i) breach of the Purchase Order, including these Terms and Conditions; (ii) violation of applicable law; and/or (iii) the acts or omissions of Vendor and/or Carrier, and any delivery drivers, including any failure to deliver the Products as set forth in the Purchase Order, and failure to comply with the policies and procedures set forth in these Terms and Conditions. 
         
         
   2. Required Insurance. Vendor shall obtain and maintain insurance in the type and amount sufficient to cover Vendor’s obligations and liabilities under the Purchase Order and these Terms and Conditions, including, but not limited to, the following minimum levels of insurance: 
      1. Commercial General Liability, written on an occurrence basis including, but not limited to, premises-operations, broad form property damage, products/completed operations, contractual liability, independent contractors, personal injury, with limits of at least $1,000,000 per occurrence and $2,000,000 general aggregate and products/completed operations aggregate of $2,000,000. 
      2. Workers’ Compensation, with benefits afforded under the laws of the state in which the Purchase Order is to be performed and Employer’s Liability insurance with minimum limits of $1,000,000 for Bodily Injury – each accident, $1,000,000 for Bodily Injury by disease – policy limit and $1,000,000 for Bodily Injury by disease – each employee. 
      3. Business Automobile Liability, including coverage for owned, hired, and non-owned vehicles with a combined single limit including bodily injury and property damage of not less than $1,000,000 for each accident. 
      4. Excess Liability (Umbrella), with a minimum limit of $5,000,000 per occurrence. This policy shall provide excess limits for the General Liability, Employer’s Liability and Automobile Liability policies and be follow form or at least as broad in coverage.

• General Conditions:

1. 1. 1. Vendor’s purchase of insurance shall not in any way limit Vendor’s liability under this Purchase Order. All coverage must be written on an occurrence basis and must be maintained without interruption from the date of the Purchase Order. 
      2. The policies shall be written with insuring company(ies) with AM Best financial strength ratings of “A” or higher and financial size categories of “VII” or greater.
      3. The policies listed in this Section 6 shall list Distributor and its subsidiaries, affiliates, directors, officers, employees, partners and agents as additional insured on a primary and non-contributory basis.
      4. The policies listed this Section 6 shall contain waiver of subrogation in favor of Distributor.
      5. Vendor shall provide Distributor with certificates of insurance evidencing the insurance required within this Section prior to commencing any work. 
         
         
2. Warranties. In addition to any other express or implied warranties, Vendor warrants to Distributor that all Products will: (a) be free from any defects in workmanship, material and design; (b) conform to applicable specifications, drawings, designs, samples, descriptions and other requirements specified by Distributor; (c) be fit for human consumption; (d) be merchantable; (e) be free and clear of all liens, security interests or other encumbrances; (f) be manufactured and delivered in compliance with all appliable laws (including food safety, labor and environmental compliance laws); and (g) not infringe or misappropriate any third party’s patent or other intellectual property rights. In addition, Vendor warrants that no banned substances and no controlled substances over specific concentration thresholds but not limited to PFAS, BPAs, BHTs, and PFOAs are used or will be used in the manufacture, processing or packaging of the Products supplied to Distributor under the Purchase Order. These warranties survive any delivery, inspection, acceptance or payment of or for the Products by Distributor. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Distributor’s discovery of the noncompliance of the Products with the foregoing warranties. If Distributor gives Vendor notice of noncompliance with this Section, Vendor shall, at its own cost and expense, promptly replace or repair the defective or nonconforming Products and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming Products to Vendor and the delivery of repaired or replacement Products to Distributor. Vendor agrees to immediately notify Distributor if at any time Vendor is notified by any state, federal or other governmental entity that the Products sold to Distributor are the subject of any regulatory inquiry or action. In such event, Distributor any immediately cancel the Purchase Order. 

1. Termination. Distributor may terminate the Purchase Order, in whole or in part, at any time with or without cause for undelivered Products. In addition to any remedies that may be provided under these Terms and Conditions, Distributor may terminate the  Purchase Order with immediate effect upon written notice to Vendor, either before or after the acceptance of the Products:  (a) if Vendor has not performed or complied with any of these Terms and Conditions, in whole or in part; (b) if Vendor becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it, proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.  In the event of cancellation under (a) or (b) above, Distributor may procure, upon such terms and in such manner as Distributor may deem appropriate, such products comparable to the Products covered by the Purchase Order so terminated, and Vendor shall be liable to Distributor for all excess costs of such comparable Products.  Upon termination for cause, Distributor may require Vendor to transfer title and deliver to Distributor, in the manner and to the extent directed by Distributor, any partially completed Products and raw material, packaging, labels, parts, tools, dies, jigs, fixtures, plans, drawings, services, information and contract rights as Vendor has produced or acquired for the performance of the Purchase Order, including the assignment to Distributor of Vendor’s subcontracts, against Distributor’s payments of the portion of the price properly allocable to such Products. The rights and remedies of Distributor in this clause are in addition to any other rights and remedies provided by law or under the Purchase Order. If Distributor terminates the Purchase Order for any reason, Vendor’s sole and exclusive remedy is payment for the Products received and accepted by Distributor prior to the termination.

General. Vendor will not assign, transfer or subcontract any of its obligations under the Purchase Order without obtaining Distributor’s prior written approval.  Notwithstanding any approval by Distributor, Vendor will remain solely responsible for all of its obligations and will be liable for any subcontractor’s failure to perform or abide by the provisions of the Purchase Order. The Purchase Order and these Terms and Conditions are governed by and interpreted in accordance with the laws of the state of New Jersey, without regard to its rules on conflicts of laws. The Purchase Order, including these Terms and Conditions represents the entire agreement and understanding of Vendor and Distributor with respect to sale and purchase of the Products, and supersedes all previous agreements and understandings related thereto. The Purchase Order and these Terms and Conditions may only be amended or modified in writing signed by authorized representatives of the parties. If any provision of these Terms and Conditions is held to be unenforceable, these Terms and Conditions will continue in full force and effect without said provision and will be interpreted to reflect the original intent of the parties. Waiver by either party of a breach of any provision of these Terms and Conditions or the failure by either party to exercise any right hereunder will not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right. In the event of a conflict between the terms set forth in a Purchase Order and these Terms and Conditions, these Terms and Conditions will control.  Each of the parties hereto will be excused from its performance of its obligations hereunder if the performance is prevented by force majeure, and that excuse will continue so long as the condition constituting that force majeure continues for less than thirty (30) days. For the purposes of these Terms and Conditions, “force majeure” is defined to include causes beyond the control of either party, including without limitation acts of God, acts, regulations or laws of any government, war, civil commotion, destruction of production facilities or materials by fire, flood, earthquake or storm, labor disturbances, or pandemics.