Purchase Order Terms and Conditions

United States of America - ONSA

Purchase Order Terms and Conditions

United States of America - ONSA

By providing agreed upon services (“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 or letter offer/proposal.  TWE reserves the right to amend these Terms from time to time; such amended Terms shall supersede all Terms previously issued by TWE.


SECTION 1.  WARRANTIES: Supplier represents and warrants that: (a) it has the right to grant any licenses granted or purported to be granted herein, to provide Services as set out in these Terms and each Purchase Order, and has obtained all necessary licenses and permits to do so; (b) it will not, in the course of providing Services, cause damage to any tangible or intangible property or violate any third party’s intellectual property rights; (c) it shall comply with all applicable codes, laws, rules, and regulations (d) it shall comply with TWE’s Responsible Procurement Code, available online here, and TWE’s Environmental Policy, available online here; (e) it will exercise the degree of care, diligence, and skill in the performance of Services that a reasonably prudent and knowledgeable person would exercise; (f) as applicable, Services will be consistent with samples provided to TWE; (g) no monies paid by TWE to Supplier under these Terms and/or a PO are intended to be or will be passed on by Supplier to any alcoholic beverage retail licensee as an inducement to any such retailer to purchase any alcoholic beverage produced, sold, or offered for sale by TWE; and (h) there is no agreement or understanding between TWE and Supplier that, as consideration for TWE’s purchase of Services, Supplier will require any alcoholic beverage retail licensee to purchase any alcoholic beverage produced, sold, or offered for sale by TWE.

SECTION 2.  INSPECTION:  TWE shall have the right, but not the obligation, to inspect any materials prepared/produced by Supplier in relation to the Services 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 shall be at Supplier’s expense.  No inspection shall affect any Supplier warranties.

SECTION 3.  CHANGES:  TWE may by written change order (“Change Order”) revise a PO, including changes in quantities, designs, specifications, or delivery schedules, but no additional charge will apply absent agreement of the parties.  TWE may at any time, by Change Order, terminate a PO as to all or any portion of Services then not provided, 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 materials that are Supplier’s standard stock.  No provisions of the PO shall be revised unless incorporated as a written Change Order.

SECTION 4.  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 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.  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.

Supplier shall, on a quarterly basis—and upon TWE’s request (on reasonable notice)—provide TWE with written reports detailing the use of funds provided to Supplier by TWE pursuant to a PO, including where such funds have been utilized, for whom, and for what purpose.

SECTION 5. 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.

 SECTION 6.  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 7.  INTELLECTUAL PROPERTY: The rights in any intellectual property (“IP”) provided to Supplier by TWE or created by Supplier in the course of performing its obligations shall remain the sole property of TWE or become the property of TWE at the time of creation, respectively, provided that if Supplier is creating materials for multiple parties, TWE shall retain IP rights only in those portions containing TWE’s pre-existing IP.  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 IP arising from the Services.

SECTION 8.  FORCE MAJEURE: Force Majeure Event” shall mean 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 its obligations or a delay in performing such obligations.  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.  If a delay or interruption of performance resulting from 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 9.  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. 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 10.  INSURANCE: During any period in which Supplier provides 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 Services.

SECTION 11. 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 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 12. SUBCONTRACTORS: Neither party shall subcontract to any third party without the other party’s prior written consent in each instance.  A subcontracting party shall ensure that its subcontractors act consistently with these Terms.  Notwithstanding any subcontract, a party is not relieved of its performance or obligations under these Terms.

SECTION 13. 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 slavery-like exploitation as prohibited under all applicable anti-slavery and human trafficking laws in performing its obligations under these Terms.

SECTION 14.  PUBLIC STATEMENTS: Other than for purposes of supply the Services, Supplier shall not use the name of TWE or its Affiliates or any trademark, logo, or tradename of TWE or TWE’s Affiliates—nor shall it make any public statement regarding these Terms—without the prior written consent of TWE.

SECTION 15.  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 16. 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 - ONSA