Purchase Order Terms and Conditions

United States of America

Purchase Order Terms and Conditions

United States of America

By delivering agreed upon goods and/or services (respectively, “Goods” and “Services”) to Treasury Wine Estates Americas Company (“TWE”) from time to time, the supplier (“Supplier”) named on a Purchase Order (“PO”) is deemed to have accepted these Terms and Conditions (“Terms”) and agreed that the PO will be bound by these Terms.  Other than in circumstances where the parties have executed a written contract—in which case the terms of that written contract will prevail—these Terms prevail over any other alternative terms of supply, including any terms included on a Supplier invoice.  TWE reserves the right to amend these Terms from time to time; such amended Terms shall supersede all Terms previously issued by TWE.

In consideration of the mutual covenants and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are expressly acknowledged, TWE and Supplier have agreed to the terms and conditions that follow. 

 

SECTION 1.  WARRANTIES: Supplier represents and warrants that: (a) it is lawfully possessed of the Goods; (b) it has the right to grant the licenses granted or purported to be granted herein, to manufacture and provide the Goods and Services as set out in these Terms and each Purchase Order, and has obtained all necessary licenses and permits to do so; (c) it will not, in the course of providing Goods or Services, cause damage to any tangible or intangible property; (d) it shall comply with all applicable codes, laws, rules, and regulations (e) it shall comply with TWE’s Responsible Procurement Code, available online here, and TWE’s Environmental Policy, available online here; (f) it will exercise the degree of care, diligence, and skill in the manufacture of Goods and/or performance of Services that a reasonably prudent and knowledgeable person would exercise; (g) the Goods will be new and of merchantable quality, and free from defects in materials or workmanship for a period of 15 months from the date of delivery; and (h) as applicable, the Goods and/or Services will be consistent with samples provided to TWE.  Supplier’s obligations under these warranties shall not be affected by inspection, test, acceptance, or use.  In addition, if any Goods are manufactured or provided by others than Supplier, Supplier shall transfer and assign such warranties to TWE.  Supplier agrees to promptly replace or correct defects at its sole expense.  In the event of failure by Supplier to correct defects in or replace nonconforming Goods promptly, TWE, after reasonable notice to Supplier, may make such correction or replacement and charge Supplier for the costs incurred by TWE thereby.

SECTION 2.  DELIVERY:  Supplier must deliver the Goods and/or supply the Services in accordance with the requirements of, and by the times specified in, the PO. Each delivery of Goods or Services must comply with any packaging, labelling, delivery, or other instructions given by TWE. Supplier will ship Goods in a manner consistent with general industry practice so as to minimize any damage to Goods while in transit. TWE is not responsible for any charge for packing, boxing, storage, or cartage.

SECTION 3. TWE SITES: Supplier must ensure that when at designated TWE sites (“TWE Site”) all its representatives act in a safe and lawful manner and comply with TWE rules and reasonable directions for the safety and conduct of Supplier’s representatives, as well as with occupational health and safety practices and policies.

SECTION 4.  INSPECTION:  TWE shall have the right, but not the obligation, to inspect Goods, either upon receipt or reasonable notice, and to reject those that do not conform to TWE’s specifications.  All costs incurred and damages sustained by TWE as a result of rejections made under these provisions, including returns and destruction, shall be at Supplier’s expense.  No inspection shall affect any Supplier warranties and all Goods are subject to TWE’s inspection and right to reject notwithstanding prior payment.

SECTION 5.  PASSAGE OF TITLE:  Title to all Goods shall pass to TWE upon delivery DDP (Incoterms 2020) at the TWE Site.  All risk of loss or damage to the Goods prior to delivery shall fall upon Supplier and if Goods are of an explosive, inflammable, toxic, or otherwise dangerous nature, Supplier shall defend and hold TWE harmless against any claims of personal injury or property damage caused by such materials, or by the transportation thereof.

SECTION 6.  CHANGES:  TWE may by written change order (“Change Order”) revise a PO, including changes in quantities, designs, specifications, or delivery schedules for Goods or Services, but no additional charge will apply absent agreement of the parties.  If any such change affects delivery schedule, Supplier shall notify TWE immediately.  TWE may at any time, by Change Order, terminate a PO as to all or any portion of the Goods then not shipped, subject to any equitable adjustment between the parties as to work or materials then in progress, provided that such adjustment shall not include any amount for anticipatory profits nor any costs with respect to Goods that are Supplier’s standard stock.  No provisions of the PO shall be revised unless incorporated as a written Change Order.

SECTION 7.  PAYMENT: TWE will pay Supplier according to prices set forth in the PO.  Payments of undisputed amounts set forth in an invoice shall be remitted to Supplier within 65 days of the end of the month in which the invoice is received. Supplier will pay and be solely responsible for all costs incurred by Supplier in supplying the Goods or providing the Services (including all labor and delivery costs), as well as any and all sales and/or use taxes on materials, supplies, and equipment.  Subject to the foregoing, TWE shall pay all applicable taxes, duties, and governmental charges based upon amounts payable under the PO or with respect to the receipt of the Goods, excluding any income or corporate excise taxes assessed against Supplier.  Supplier must become an approved vendor under criteria adopted by TWE (“Approved Vendor”), which approval TWE will work with Supplier to obtain. Supplier shall not submit any invoice to TWE, and TWE shall not be obligated to Supplier, until Supplier becomes an Approved Vendor.

SECTION 8. MONEY PAYABLE TO TWE:  TWE may set-off any money the parties agree is payable by Supplier to TWE against any amount payable by TWE to Supplier under any PO. 

SECTION 9.  LIEN WAIVERSSupplier hereby agrees to promptly pay any lien and Supplier shall indemnify, protect, and hold harmless TWE, its successors, and assigns from all costs, expenses, including reasonable attorneys’ fees, damages or claims (“Losses”) related to any of Supplier’s subcontracts or disputes between Supplier and it subcontractors or other entities or from failure of Supplier to promptly pay its subcontractor and other entities possessing any right to any lien.

SECTION 10. TERMINATION BY TWE: If Supplier is in default or has breached any terms or conditions of the PO, including these Terms, TWE may terminate the PO in whole or in part without any obligation or liability and, in addition to any other remedy provided by law, may procure alternative Goods or Services at Supplier’s cost.

SECTION 11.  TERMINATION BY EITHER PARTY: Without prejudice to other remedies at law or in equity, either party may immediately terminate any and all outstanding POs, including these Terms, upon notice to the other party if that other party (a) becomes insolvent, unable to pay debts when due, or the subject of bankruptcy proceedings, or makes a general assignment for the benefit of creditors, or has a receiver appointed for substantially all of its property; (b) discontinues or ceases to do business so as not to be able to properly give effect to these Terms and/or the PO; or (c) breaches a material obligation under these Terms.

SECTION 12.  INTELLECTUAL PROPERTY: Any intellectual property rights or other information or data provided to Supplier by TWE (or paid for by TWE) remains the property of TWE at all times and must be used by Supplier only for the purposes of providing the Goods or Services. All intellectual property rights arising as a result of the provision of any services to TWE (including intellectual property rights in reports, documents, and all other deliverables Supplier produces for TWE) vest in TWE on creation and Supplier now assigns to TWE all such intellectual property rights (including those subsisting in the future). Supplier warrants that the supply of Goods and/or Services will not infringe any third-party intellectual property rights. Supplier will indemnify TWE from and against any Losses incurred by TWE as a result of or in connection with any infringement or unauthorized use of third-party intellectual property arising from the use of the Goods or acceptance of the Services. Supplier will execute all documents and do all acts or things reasonably required by TWE for the purpose of giving effect to this Section.

SECTION 13.  CONFIDENTIALITY:  Supplier agrees that any information disclosed by TWE to Supplier related to a PO (including a contemplated PO), whether written or oral and whether or not such information is marked as “proprietary” or “confidential”, shall be confidential information of TWE and shall not be disclosed to any third party without TWE’s prior written consent.

SECTION 14.  FORCE MAJEUREFor purposes of this Section, “Force Majeure Event” shall mean, in relation to a party, any event or circumstance that is beyond the reasonable control of the party (the “Affected Party”) and that results in or causes the failure of the Affected Party to perform any or all of its obligations under these Terms or a delay in performing such obligations, provided that lack of funds, failure of a party’s third-party suppliers, breakdown of a party’s plant, equipment, or machinery, or any event or circumstance caused by a party’s failure to adopt prudent business practices will not be an event or circumstance beyond the reasonable control of the Affected Party. The operation of the preceding sentence shall not, however, relieve the Affected Party from its obligation to meet the time schedules required herein unless the Affected Party shall have taken reasonable precautions to anticipate and avoid the occurrence of the Force Majeure Event and upon its occurrence shall have used all commercially reasonable efforts to ameliorate or eliminate its effect. In order for the Affected Party’s obligations under these Terms to be either excused or delayed in accordance with this Section, the Affected Party must give written notice to the other party once the Affected Party is aware of, or reasonably should be aware of, the occurrence of the Force Majeure Event. In no event shall any postponement of either party’s obligations hereunder as a result of a Force Majeure Event exceed the period of time that the Force Majeure Event had an effect on such party. If a delay or interruption of performance by either party resulting from its experiencing a Force Majeure Event exceeds 30 days, then the other party may terminate these Terms via written notice, even though such event does not constitute a breach of these Terms.

SECTION 15.  INDEMNITY:Supplier shall indemnify, defend, and hold harmless TWE, its Affiliates, and each of their officers, directors, employees, and agents from any and all Losses incurred or required to be paid by the foregoing, arising from or occurring as a result of: (a) Supplier’s breach of any warranty or material obligation under these Terms or a PO; (b) Supplier’s or its personnel’s acts or omissions; (c) any violation of applicable law by Supplier or its personnel; or (d) personal injury (including death) or property damage (tangible or intangible) caused by Supplier or its personnel. TWE shall promptly notify Supplier in writing of first learning of the claim giving rise to the indemnity (provided that TWE’s failure to promptly notify Supplier shall only excuse Supplier’s indemnity obligation to the extent that Supplier was materially prejudiced thereby). Except as otherwise provided herein, Supplier shall control the defense and/or settlement of the claim, provided that Supplier shall not, without TWE’s prior written approval, agree to any settlement of the claim that imposes a financial obligation, restriction on the use of the Goods or use of materials related to the Services, or admission of liability on TWE. TWE shall provide Supplier with all reasonably requested information and assistance to defend and/or settle the claim. 

SECTION 16.  INSURANCE: During any period in which Supplier provides Goods and/or Services to TWE, Supplier must take out and maintain appropriate levels of workers compensation, general liability, product liability, public liability, and professional indemnity insurance (where relevant) with a reputable insurer to adequately cover its exposure in supplying the Goods or Services.

SECTION 17. GOVERNING LAW/DISPUTE RESOLUTION: The PO shall be governed by and construed in accordance with the laws of the State of California, exclusive of conflict or choice of law rules.  Except for claims for breach of confidentiality, claims arising out of the indemnity obligations contained herein, and claims for injunctive relief, any dispute related to the PO will be submitted for arbitration and resolved by a single arbitrator in San Francisco, CA.  The arbitration shall be confidential and administered by JAMS pursuant to its Comprehensive Arbitration Rules.  The award or decision rendered by the arbitrator shall be final and binding and judgment may be entered upon such award by any court.  Each party will bear its own expenses.

SECTION 18. SUBCONTRACTORS: Supplier shall not subcontract to any third party without TWE’s prior written consent in each instance, which may be withheld in its sole discretion.  Supplier shall ensure that its subcontractors act consistently with these Terms.  Notwithstanding any subcontract, Supplier is not relieved of its performance or obligations under these Terms. Supplier shall be solely responsible for each subcontractor’s full and timely performance, and the acts and omissions of each subcontractor within the scope of their agency with Supplier shall be deemed and treated as the acts and omissions of Supplier. Supplier is solely responsible for compensating any subcontractor.

SECTION 19. MODERN SLAVERY: Supplier will not undertake any activity, practice, or conduct that would constitute an offense in relation to slavery, forced labor, involuntary servitude, debt bondage, human trafficking, or other slavey-like exploitation as prohibited under all applicable anti-slavery and human trafficking laws (“Modern Slavery”) in performing its obligations under these Terms.  Supplier will, within a reasonable period upon request by TWE and at its own expense, provide TWE with a written report addressing Supplier's Modern Slavery compliance measures for the purpose of TWE fulfilling its corporate requirements.  Supplier must promptly notify TWE if it discovers a violation of this Section and, following such notification, Supplier and TWE will promptly and in good faith discuss and agree on a plan for rectifying the violation. Failing rectification to TWE’s satisfaction within 30 days of notification, or such other period as may be agreed between the parties, TWE may terminate the PO.  To the extent of any inconsistency between complying with TWE’s Responsible Procurement Code as required herein and complying with this Section, Supplier must comply with the provision that requires the higher standard of Supplier.

SECTION 20.  PUBLIC STATEMENTS: Supplier shall make no press release or other public statement regarding the PO or these Terms without the prior written consent of TWE.  Supplier shall not use the name of TWE or its Affiliates or any trademark, logo, or tradename of TWE or TWE’s Affiliates, without the prior written consent of TWE.

SECTION 21.  ASSIGNMENT: Supplier shall not assign the PO without TWE’s prior written consent. TWE may assign the PO at any time without consent, but with written notice to Supplier. Subject to the foregoing, the PO and these Terms shall be binding upon and inure to the benefit of the parties hereto and their successors and permitted assigns.

SECTION 20. INTERPRETATION.  No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of, or seeks to rely on, these Terms.  If any provision of these Terms shall be held to be invalid, illegal, or unenforceable under any law, the validity, legality, and enforceability of the remaining provisions shall not be affected or impaired thereby.  The waiver or failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right herein.  Any obligations that by their nature would continue beyond termination of the PO shall survive the PO. Supplier will function solely as an independent contractor under these Terms and nothing in these Terms shall be deemed or construed to create the relationship of employment, partnership, or joint venture.

United States of America

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