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Gorton’s and its affiliates expressly disclaim all warranties, either expressed or implied, oral or written, including, but not limited to any implied warranty of merchantability or fitness for a particular purpose. This disclaimer of warranties does NOT affect the terms of our manufacturer’s guarantee. Gorton’s also does not warrant your use of the Site, the operation or function of the Site, or any services offered through or from the Site, will be uninterrupted or error free. Nor does Gorton’s warrant that this Site or its server, or any services offered through or from the Site are free of viruses or other harmful elements.
GORTON’S SHALL NOT BE LIABLE FOR ANY DAMAGES RELATED TO YOUR USE OF OR INABILITY TO USE THIS SITE, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, SPECIAL, COMPENSATORY OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR LOSS OF OR DAMAGE TO PROPERTY, EVEN IF GORTON’S HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOUR USE OF THE SITE, CONTENT OR ANY SERVICES OR SOFTWARE OFFERED THROUGH OR FROM THE SITE RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, GORTON’S IS NOT RESPONSIBLE FOR THOSE COSTS.
If you are dissatisfied with the Site, any of its Contents, or any of these Terms, we would like to hear from you. You may contact us at Gorton’s firstname.lastname@example.org. However, your sole and exclusive legal remedy is to stop using the Site.
You agree to defend, indemnify and hold Gorton’s harmless from and against any claims, damages, costs and expenses, including attorneys’ fees, arising from or related to your use of the Site or any services offered through or from the Site, or your violation of any of these Terms and Conditions.
Unless otherwise specified, Gorton’s displays this Site and the Contents solely to market and promote Gorton’s products and services in the United States. Gorton’s controls and operates this Site from its offices in Gloucester, Massachusetts.
These Terms shall be construed according to Delaware law, without regard to conflicts of laws. Any dispute arising under or relating to these Terms, the Contents, the use of the Site, products or services purchased using this Site, or any services offered through or from the Site, shall be resolved exclusively by the state and federal courts of the State of Delaware. Your use of the Site constitutes your consent to the jurisdiction and venue of said courts with respect to any such dispute.
These Terms are the entire agreement between you and Gorton’s relating to the Site or its Contents. Any other agreements between you and Gorton’s are superseded and have no force or effect.
If Gorton’s believes you have failed to comply with these Terms, or for any other or no reason, Gorton’s may deny you access to the Site immediately without notice. The restrictions, including restrictions with respect to the Content, disclaimers and liability limitations in these Terms shall continue to apply. Upon denial of access, you must promptly destroy all Content downloaded or obtained from this Site, as well as all copies of Content.
Terms & Conditions
- Acceptance. THIS PURCHASE ORDER (“PURCHASE ORDER”) IS EXPRESSLY CONDITIONAL UPON ACCEPTANCE OF ALL TERMS SET FORTH HEREIN, CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE BUYER AND SELLER, AND SUPERCEDES ALL PRIOR NEGOTIATIONS, REPRESENTATIONS OR AGREEMENTS, EITHER ORAL OR WRITTEN, RELATED TO THE SUBJECT MATTER OF THIS PURCHASE ORDER. Seller may ship only against a written PURCHASE ORDER. Shipment in response to a Purchase Order is acceptance of the Purchase Order by SELLER and of these Standard Terms and Conditions. THE LATEST VERSION OF THESE TERMS AND CONDITIONS IS CONTAINED AT http://www.gortons.com/legal-notice SELLER WILL BE PROVIDED WITH WRITTEN NOTICE OF ANY MATERIAL UPDATES TO THESE TERMS AND CONDITIONS. ANY ADDITIONS, EXCEPTIONS OR CHANGES TO THESE TERMS BY SELLER, WHETHER CONTAINED IN ANY PRINTED FORM OF SELLER, ON THE BUYER’S PURCHASE ORDER ITSELF OR ELSEWHERE, ARE REJECTED BY BUYER, UNLESS APPROVED IN WRITING BY AN AUTHORIZED REPRESENTATIVE OF BUYER.
- Price. Seller warrants that the prices herein specified are no higher than the net prices now given by Seller to any other customer of goods or services of like grade and quality in like quantities, and on similar terms. Seller agrees that if at any time prior to performance and delivery net prices are reduced by Seller for any of its customers for goods or services of like grade and quality in like quantities and on similar terms, Seller will extend such price reductions to Buyer. The prices agreed upon shall include all applicable federal, state and local taxes and other duties, levies, surcharges or other charges of similar import. No charge will be allowed for packing, crating, drayage or storage unless stated herein. Buyer assumes no obligations for articles, material and work shipped or performed in excess of quantity specified in this Purchase Order.
- Compliance with Laws. Seller in performance of this Purchase Order agrees to comply with all applicable laws, regulations, rules and orders of federal, state and municipal government bodies and agencies relating to the production, sale, delivery or export of articles, material, and work covered by this Purchase Order (the “Services” or “Materials,” whichever is applicable), the dissemination of information in connection therewith and those relating to wages, hours and working conditions. Seller further agrees that all Services (whenever applicable) and Materials covered by this Purchase Order have been advertised, priced, produced, labeled and transported in accordance with FTC and FDA regulations and have been produced in strict and full compliance with the requirements of the Occupational Health and Safety Act of 1970 as amended and the Fair Labor Standards Act of 1938, as amended.
- Warranties. Seller expressly warrants that all Services and Materials will, at the time of shipment or delivery by Seller, conform to, and will be performed and delivered in accordance with the specifications, drawings, samples or other descriptions as agreed to by the parties or adopted by Buyer and accepted by Seller in writing (the “Specifications”), and will be fit and sufficient for the purpose intended, merchantable, of highest quality, free from defect and are owned solely by Seller and will be delivered by the date specified in this Purchase Order, as confirmed by Seller. All warranties express or implied, shall survive inspection, acceptance and payment by Buyer and shall inure to the benefit of the Buyer and its customers.
- Indemnity. Seller agrees to protect, indemnify, defend and hold harmless Buyer, its directors, officers, agents, employees, affiliates, successors, assignees, customers and users of its products, against all liability, loss, damage, including but not limited to incidental and consequential, injuries or expenses whatsoever (including, without limitation, attorneys’ fees) which may result from any claim, demand or suit based on (a) performance of such Services or a condition in any such Materials as would constitute a failure of such to be as so warranted, or (b) any infringement of any intellectual property (except patents owned or controlled by Buyer) relating in any way to any Services or Materials or design, composition or processing of Seller’s origin or practice supplied by Seller under this Purchase Order, or (c) to all persons or property arising our of the performance of this Purchase Order or otherwise caused by or resulting from, arising out of or occurring in connection with negligence of Seller, its agents or employees or defective product supplied by Seller or its third party suppliers. In addition, Seller shall carry worker’s compensation and liability insurance coverage with respect to any indemnifiable matter hereunder in amounts required by Buyer in Buyer’s sole discretion. Seller also agrees to supply the appropriate certificates of insurance, naming Buyer as additional insured upon request. Notwithstanding the foregoing, Buyer shall have the right to appear at its own cost in any forum by counsel of its choosing.
- Defective Materials. Payment for Services and Materials and acknowledgement of receipt thereof shall not constitute an acceptance thereof. Rather, all Services shall be performed and Materials shall be received subject to inspection and rejection, at any time, by Buyer in its sole discretion. Defective Services or Materials or Services or Materials not in accordance with the Specifications, as determined in Buyer’s sole discretion, will be returned at Seller’s risk and expense and Buyer shall have no obligation to pay for such Services or Materials. No inspection, testing, approval or acceptance shall relieve Seller from responsibility for all defects or other failure to meet the requirements of this Purchase Order or from any warranties. For defective Services or Materials or Materials not in accordance with the specifications, as determined by Buyer’s sole discretion, Buyer shall, in addition to any other rights, have the right to: (a) reject such Order and return Materials to Seller at Seller’s risk and expense (including all freight charges) for rework or replacement; (b) return all or any portion of Materials delivered hereunder for full credit of the purchase price; (c) keep rejected Materials and repair such Materials at Seller’s expense; or (d) consider this Purchase Order breached as to the rejected Materials and cancelled as to any unfilled portion of this Order and hold Seller liable for damages. Seller may not alter the formulation, manufacturing process or specification of any Materials without Buyer’s prior written consent. If at any time a governmental agency of any country, state, province or municipality requires Buyer to conduct a product safety recall or Buyer voluntarily undertakes such an action, related to the Materials, Buyer will notify Seller within thirty (30) days of the initiation of any such action and Seller shall, at Buyer’s option, either repair or replace the related Materials, and Seller shall be responsible for all damages, direct or indirect, incidental and consequential, associated with all recalls, repairs and replacements of the Materials.
- Modifying Specifications. Buyer reserves the right at any time to make changes in specifications as to any Materials. Any difference in contract price resulting from such changes shall be equitably determined and approved by Buyer, and the Purchase Order shall be modified in writing accordingly. Pending price adjustment, Seller shall proceed with Performance of this Order as changed. Any claim by Seller for adjustment shall be deemed waived unless made in writing and received within ten (10) business days from Seller’s receipt of notice of the change.
- Ownership of Designs. Buyer shall retain all rights in designs, drawings, formulas, processes and other materials furnished by or on behalf of Buyer to Seller in connection with this Purchase Order (“Buyer Designs”). Seller agrees to keep all such Buyer Designs, as well as the terms of this Purchase Order, confidential. Seller hereby assigns any rights in designs, drawings, formulas, processes and other materials it may develop or accrue on behalf of Buyer or pursuant to Buyer’s direction or request in connection with supplying the Materials or Services to Buyer pursuant hereto. No such designs, drawings or other materials, whether or not furnished by or on behalf of the Buyer, shall, without Buyer’s written permission, be incorporated in, or used in connection with, goods furnished by Seller to others.
- Delivery and Risk of Loss. Time is of the essence for this Purchase Order. The time for performance and delivery shall not be extended beyond the date agreed upon by Buyer unless Buyer agrees to such modifications in writing. In addition to any other rights and remedies Buyer may have under this Purchase Order or provided by law, if deliveries are not made at the time agreed upon, Buyer may cancel this Purchase Order in whole or in part, expect prompt refund from Seller, and purchase comparable goods elsewhere, and hold Seller accountable for any additional costs arising from such cancellation and purchase and other damages incurred by Buyer as a result of Seller’s default. Title to and risk of loss of any Materials supplied by Seller under this Purchase Order shall remain with Seller until delivery of said Materials has been affected at the point of delivery specified in this Purchase Order. Seller shall be solely responsible for the cost of freight and insurance for all Materials and shall also bear the risk of loss on defective or non-conforming Merchandise rejected by Buyer and reshipped back to the Seller.
- Liens. Seller shall be responsible for ensuring that no liens of any kind are fixed upon the personal or real property of Buyer by Seller, its employees, subcontractors or subcontractor’s employees as a result of work conducted under this Purchase Order. Seller shall indemnify, defend, protect and hold Buyer harmless from all such claims and liens and Buyer shall be entitled to withhold sufficient funds due Seller to discharge itself of all such obligations.
- Invoices; Shipments. Invoices and bills of lading, showing this Purchase Order number, full routing, car numbers, lot numbers, size of each lot, ingredient code number and ingredient name (as applicable) and other items as agreed to by Buyer and Seller should be dated and mailed at the time of shipment. A separate invoice must be made for each destination showing point of shipment and how shipped, transportation charges prepaid.
- Termination. Buyer may terminate work under this Purchase Order, including without limitation canceling shipments of Materials, in whole or in part, at any time and for any reason upon notice to Seller which shall state the extent and effective date thereof. Upon receipt thereof, Seller will, as and to the extent so directed, stop work and/or shipment under this Purchase Order or any subcontracts hereunder and the placement of further subcontracts hereunder, and take all necessary action to protect property in Seller’s possession in which Buyer has or may acquire an interest. If the parties cannot, by negotiation, agree within a reasonable amount of time upon the amount of fair pro rata compensation to Seller upon such termination, Seller’s sole remedy is for Buyer to pay Seller the following amounts without duplication: (1) The contract price for all Materials delivered in accordance herewith prior to the effective date of termination and not previously paid for; and (2) The actual costs indicated and as documented by Seller, which are properly allocable or apportionable under generally accepted accounting principles, are reasonable, and incurred solely in respect of the terminated portion of this Purchase Order and which are not salvageable by the Seller. Payment made under this paragraph shall in no event exceed the aggregate purchase price for the Materials less payments otherwise made or to be made. The provisions of this paragraph shall not limit or affect the right of the Buyer to terminate this Purchase Order for the default of Seller in which case no further payments shall be due to Seller following such termination.
- Remedies. The remedies herein reserved shall be cumulative and additional to all other remedies provided in law or equity. Buyer hereby notifies Seller that Buyer objects to and specifically rejects any attempt by Seller to limit or condition its liability for breach of damages arising out of its performance or non-performance of this Purchase Order. Neither failure nor delay on the part of Buyer to assert any right or remedy hereunder shall operate as a waiver of such right or remedy. A waiver of any breach hereunder or of any term or condition of this Purchase Order shall not be deemed to be a continuing waiver or a waiver of any other breach or any other term or condition.
- Governing Law. This Purchase Order and the contract resulting herefrom shall be construed in accordance with the laws of Massachusetts without regard for its principles of conflicts of law and shall not be assignable by the Seller. Any action or proceeding against either party relating to this Purchase Order shall be brought and enforced in either the state courts of Essex County in the Commonwealth of Massachusetts or in the U.S. District Court for Massachusetts, and each party irrevocably submits to the jurisdiction of such courts in respect of any such action or proceeding and waives any claim of forum non conveniens.
- Force Majeure. Neither party shall be deemed in default in performance of any obligation hereunder to the extent and for the period of time that the performance of such obligation is delayed or prevented by acts of God, war, riots, flood or natural disaster, labor strike or any other cause beyond the reasonable control of such party; provided, however, if performance is delayed or prevented for more than twenty (20) days, the unaffected party may immediately terminate this Purchase Order upon written notice to the other party; and provided, further, that if the unaffected party is Buyer, then Buyer shall pay Seller for any conforming Materials accepted by Buyer prior to the date of termination.
- Setoff. Buyer shall have the right to at any time set-off any amount owing by Seller to Buyer or any of its subsidiaries or affiliated companies against any amount due and owing to Seller on this Purchase Order.
- Miscellaneous. No waiver or amendment of any provision of this Purchase Order by Seller shall be effective unless in writing and signed by an authorized representative of Buyer.