Standard Vendor Terms and Conditions

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THESE TERMS AND CONDITIONS (“TERMS”) APPLY TO ALL ORDERS (EACH AN “ORDER”) TO PURCHASE GOODS AND/OR INCIDENTAL SERVICES (COLLECTIVELY, “PRODUCTS”) ISSUED BY ANY DIVISION, SUBSIDIARY, OR AFFILIATE (EACH AN “AFFILIATE”) OF DULCICH, INC. DBA PACIFIC SEAFOOD GROUP (“PACIFIC”) TO ANY SUPPLIER OF THE PRODUCTS (EACH A “SUPPLIER”), OR BY ANY SUPPLIER TO ANY AFFILIATE OF PACIFIC.  THE TERM “BUYER” REFERS TO THE SPECIFIC PACIFIC AFFILIATE THAT PURCHASES THE PRODUCTS FROM SUPLLIER AS NAMED IN THE PURCHASE ORDER OR OTHER SIMILAR DOCUMENT ISSUED BY THE PACIFIC AFFILIATE IN CONNECTION WITH THE ORDER (A “PURCHASE ORDER”).

PURCHASE OF ANY PRODUCTS BY BUYER FROM SUPPLIER IS EXPRESSLY CONDITIONED ON SUPPLIER’S ASSENT TO THESE TERMS.  BY ACCEPTING ANY ORDER, RECEIVING ANY PAYMENT, OR SHIPPING ALL OR ANY PORTION OF THE PRODUCTS, SUPPLIER AGREES TO BE BOUND BY AND ACCEPT ALL TERMS UNLESS EXPRESSLY MODIFIED BY SEPARATE AGREEMENT SIGNED BY BOTH BUYER AND SUPPLIER.

PACIFIC MAY, FROM TIME TO TIME, AND IN ITS SOLE DISCRETION, REVISE THESE TERMS WITHOUT NOTICE BY POSTING THE REVISED TERMS ON ITS WEBSITE (HTTP://WWW.PACSEAFOOD.COM) (THE “WEBSITE”).  THE TERMS POSTED ON THE WEBSITE AT THE TIME THAT SUPPLIER ACCEPTS ANY ORDER SHALL GOVERN THAT ORDER.

1. Offer and Acceptance.  Each Order constitutes a separate offer to purchase Products on the terms and conditions set forth in the Purchase Order.  Supplier’s written confirmation (including e-mail), receipt of any payment, commencement of any work, or shipment of all or any portion of Products in connection with an Order, whichever occurs first, shall be deemed acceptance of Buyer’s offer.  All Purchase Orders incorporate these Terms whether or not they are separately referenced in the Purchase Order.  Acceptance of the Order shall therefore also constitute acceptance of these Terms.  The accepted Purchase Order shall govern the transaction between Buyer and Seller.  In the event of a conflict between any term or condition of the Purchase Order and these Terms, these Terms shall control unless expressly amended in the Purchase Order by specific reference to these Terms.  If any Order is deemed to be an acceptance of a prior offer by Supplier, then such acceptance shall be limited to these Terms. Any terms included in Supplier’s purchase order, bid, proposal, invoice, statement, published rate schedule, or other memoranda or attachment of any nature whatsoever, whether written or oral, shall not govern the transaction between Buyer and Seller.  Additional or different terms proposed by Supplier, or any other attempt by Supplier to vary these Terms, shall constitute a counteroffer by Supplier, which counteroffer is rejected by Buyer.

2. Delivery.  Delivery of all Products shall be strictly in accordance with the schedule set forth on the Purchase Order.  Supplier shall immediately report any delivery delays to Buyer.  Receipt of such report shall not operate as a waiver of any of Buyer’s rights in connection with the Order, including, without limitation, Buyer’s right to any applicable discounts.  Supplier shall take all reasonable steps to avoid or end delays and shall be solely responsible for any costs related to such efforts.  In no event shall Supplier be entitled to any additional compensation.

3. Inspection.  All Products shall be subject to Buyer’s inspection and approval in Buyer’s sole discretion.  Inspection may take place either at Supplier’s location or at the Delivery Point (as defined below).  Buyer’s failure to inspect, or failure to discover non-conformities or other problems, shall not constitute a waiver of any of Buyer’s rights or remedies or relieve Supplier of any of its obligations in connection with the Order.  Buyer’s inspection of Products shall not constitute acceptance of such Products.

4. Packing.  All Products shall be suitably packed, marked, and shipped by Supplier in accordance with industry standards and practices unless otherwise specified in the Purchase Order. No packing or cartage charges shall be allowed, except as set forth in the Purchase Order.

5. Payment.  All prices listed or quoted in any proposal or price sheet are in U.S. dollars and do not include any sales, value added, inventory, use, transportation, or other taxes, fees or charges, which are the sole responsibility of Supplier.  Supplier shall submit invoices to Buyer according to the schedule set forth in the Purchase Order.  If not otherwise specified in the Purchase Order, Supplier shall submit an invoice to Buyer for the Products not later than THIRTY (30) days from the delivery date of such products to the final destination identified in the Purchase Order (the “Delivery Point”).  Supplier waives its right to payment for any amounts not invoiced within ONE HUNDRED TWENTY (120) days following delivery of the Products to the Delivery Point.  All of Supplier’s invoices shall be directed to the address specified on the Purchase Order, reference the Order number, and be accompanied by documentation supporting the amounts invoiced, including, without limitation, bill of lading.  No payment shall constitute final acceptance of Products nor shall it waive any of Buyer’s rights and remedies.  If any services are provided, then Supplier’s invoice must be accompanied by a waiver of lien rights from any subcontractors performing such services.  Such waiver(s) must be in a form reasonably acceptable to Buyer.

6. Insurance.  Supplier shall obtain and maintain throughout the term of the Order, at Supplier’s sole expense and with insurance companies reasonably satisfactory to Buyer and authorized to do business in the jurisdiction in which the Delivery Point is located, insurance coverage of the types and limits described below in U.S. Dollars.  The limits set forth below are minimum limits and shall not be construed to limit Supplier’s liability. Limits may be satisfied through any combination of primary and umbrella policies.

a. Commercial General Liability insurance with a combined single limit of $5,000,000 per occurrence and coverage for all liability associated with the Order, including, without limitation, bodily injury or property damage, personal injury, products, completed operations, sudden and accidental pollution, and Supplier’s indemnity obligations;

b. Supplier’s employees or agents will drive on Pacific’s property and/or premises, or make deliveries to Pacific’s property and/or premises, Business Auto Liability insurance complying with the requirements of all regulatory bodies having jurisdiction, or a combined single limit of $1,000,000 per occurrence for bodily injury or property damage, whichever is greater, including coverage for all vehicles used in the performance of any services related to the Order, whether owned, non-owned, or hired; and

c. If Supplier’s employees will enter onto Pacific’s property and/or premises, Workers Compensation insurance complying with the laws having jurisdiction over each employee, whether or not Supplier is required by such laws to maintain such insurance, and Employer’s Liability (if applicable) with limits of not less than $1,000,000 per occurrence.
In each of the above described policies, Supplier shall waive, and shall require its insurers to waive, any rights of subrogation or recovery they may have against Buyer, Pacific, and/or its Affiliates.  Under the policies described in (a) and (b) above, Buyer, Pacific, and its Affiliates shall be named as additional insureds.  Any cost associated with naming these additional insureds shall be the sole responsibility of Supplier.  Such policies shall be primary insurance with respect to Buyer, Pacific, and its Affiliates, and any other insurance maintained by Buyer, Pacific, and/or its Affiliates shall be excess and not contributory with this insurance.  Non-renewal or cancellation of the policies described above shall be effective only after written notice is received by Buyer from the insurance company THIRTY (30) days in advance of any such non-renewal or cancellation.  Prior to rendering any services related to the Order, Supplier shall deliver to Buyer certificates of insurance evidencing the existence of all insurance required above.  If the insurance policies described in this section are not obtained and maintained as provided, then Buyer, in its sole discretion, shall have the right to immediately terminate the Order or to suspend delivery of the Products until such time as the obligations of this section are satisfied without any liability to Supplier whatsoever.

7. Indemnification.  Supplier shall, at its sole expense, defend, indemnify, and hold harmless: 1) Buyer, Pacific, and its Affiliates; 2) any and all other parties which Buyer, Pacific, and/or its Affiliates are required to defend, indemnify, or hold harmless; and 3) each of their respective directors, officers, employees, and agents, from and against all loss, direct or consequential damage, cost, expense, claim, or other liability of any kind whatsoever (including attorney fees), actual or alleged, caused by, arising out of, resulting from, or occurring in whole or in part in connection with: (a) Supplier’s failure to comply with Supplier’s obligations under the Purchase Order and Terms; (b) acts or omissions of employees, subcontractors, or agents of Supplier in the performance of the Order or at the premises owned or controlled by Buyer; (c) defects in the Products; (d) breach of any warranty, express or implied in connection with Products; (e) failure to provide adequate warnings, labeling, or instructions related to the Products; (f) the existence of contaminants or other foreign materials in Products at levels exceeding permissible limits under Applicable Law (as defined below) or Buyer policies; or (g) Supplier’s failure to comply with any Applicable Law or regulation.

8. English Language.  All correspondence, invoices, statements, notices, and other documents associated with Products and/or the Order shall be in American English. Les parties aux présentes confirment leur volonté que cette convention, de même que tous les documents, y compris tout avis, qui s’y rattachent, soient rédigés en langue anglaise.  In the event of a dispute regarding the Order, the English language shall govern the interpretation and meaning of these Terms.

9. English Measurements.  Buyer may, in its sole discretion, determine whether measurements associated with the Order are in the English system, the metric system, or some combination of the two.  Seller shall not convert any measurements that Buyer states in the English system into the metric system in any documents provided to Buyer.

10. Imported Products.  Supplier shall comply with all import and sanctions laws, regulations, orders, and authorizations applicable to the import and delivery of Products from outside the United States (“Imported Products”) to the Delivery Point.  Supplier shall further comply with each of the following requirements:

a. Country of Origin.  All Imported Products must be clearly marked with the country of origin. Country of origin markings must be conspicuous, legible, and permanent, and must include the English name of the country from which the Imported Products originate.  Abbreviations that unmistakably indicate the name of the country of origin (e.g. “Gt. Britain” or “UK” for “Great Britain”) are acceptable for purposes of this requirement.  Variant spellings which clearly indicate the English name of the country of origin (e.g. “Brasil” for “Brazil”) are also acceptable.

b.  Import Records.  Supplier shall not list Buyer, Pacific, or its Affiliates as either “Importer of Record” or “Consignee” on any import disclosures, customs declarations, or other similar documents without Pacific’s prior written consent, which must be signed by an authorized representative of Pacific.  Absent such prior written consent, Supplier or its designee shall serve as the U.S. importer for all Imported Products and shall be responsible for all import authorizations required to fulfill Supplier’s obligations in connection with the Order.  More specifically, Supplier or its designee shall be responsible for all aspects of importation and delivery of Imported Products to the Delivery Point in the United States, including, without limitation: (i) customs and regulatory clearances; (ii) payment of tariffs, duties, customs, fees, expenses, and other charges; and (iii) keeping records, documents, correspondence, and tracking information required under Applicable Law.

c. Shipping Information.  Supplier shall provide to Buyer in connection with each shipment of Imported Products: (i) a packing list detailing the contents of the entire shipment; (ii) a copy of Supplier’s commercial invoice; and (iii) a copy of the bill of lading.

d. Ocean Containers. If Imported Products will be shipped via ocean transport vessel destined to arrive within the limits of a port in the United States, then Supplier shall: (j) ensure that all Importer Security Filing (ISF) data elements are prominently included on the associated commercial invoice; and (ii) provide the commercial invoice, packing list, bill of lading, and anticipated vessel loading date to Buyer no later than 72 hours before loading Imported Products aboard the vessel.

e. Trade Agreements.  Supplier shall provide to Buyer any additional documentation necessary to support applicable duty free, special tariff, or free trade agreements that may apply to the Order before shipping Imported Products to the United States.  Such additional documentation may include, without limitation: (i) North American Free Trade Act (NAFTA) certificates of origin; (ii) Generalized System of Preferences (GSP declarations; (iii) Chilean Free Trade Act (CFTA) declarations; and (iv) Australian Free Trade Act (AFTA) declarations.  The facts included in such documentation shall be verified by Supplier and signed by an official with direct knowledge of the information.

11. Liens.  Supplier shall pay when due all of its obligations to third parties incurred in connection with the Products and shall keep Buyer’s property free and clear of all liens and other encumbrances arising out of the Order.  If Supplier breaches this section, then, in addition to any other rights which Buyer may have against Supplier, Buyer may withhold payment from Supplier until sufficient funds have been withheld to satisfy such obligations and/or to cause the release of such liens or other encumbrances.

12. Materials.  Any materials furnished by Buyer in connection with the Order shall be deemed to be held by Supplier in trust for application to the Order.  Title of such materials shall at all times remain with Buyer.  Buyer supplied materials while in Supplier’s custody or control shall be: (a) held at Supplier’s risk; (b) adequately marked as Buyer’s property and segregated from property of Supplier; (c) kept insured by Supplier at Supplier’s expense in an amount equal to the replacement cost with loss payable to Buyer; and (d) subject to removal at Buyer’s written request, in which event Supplier shall redeliver to Buyer in the same condition as originally received by Supplier, subject to reasonable wear and tear.  Any materials not used in connection with the Order shall be returned in good condition, less normal wear and tear, as directed by Buyer at Buyer’s expense.

13. Product Testing.  Supplier shall conduct microbiological and/or chemical testing to confirm that all Products meet or exceed regulatory standards.  Fish and fishery Products must meet or exceed standards set forth in “FDA and EPA Safety Levels in Regulations and Guidance,” available at: http://www.fda.gov/downloads/Food/GuidanceRegulation/UCM252448.pdf.  Buyer, in its discretion, may conduct verification testing to confirm that Products meet or exceed regulatory standards.  Buyer’s failure to conduct verification testing, or failure to discover non-conformities or other problems, shall neither constitute a waiver of any of Buyer’s rights or remedies nor relieve Supplier of any of its obligations.  Buyer’s performance of verification testing on Products shall not constitute acceptance of such Products.

14. Rejection.  Buyer, at its option and in its sole discretion, may reject or revoke acceptance and either ‎return to Supplier or hold at Supplier’s risk and expense any Products that: (a) do not conform to Supplier’s affirmations of fact and promises; (b) do not conform to industry standards and practices for similar Products; (c) do not conform to all Buyer specifications; (d) do not conform to Pacific specifications or standards; (e) contain defective or inadequate labeling; (f) violate any Applicable Law (as defined below) or other law, regulation, or court or administrative order; (g) fail to comply with any applicable Customs requirements; or (h) do not comply with country of origin labeling laws or administrative requirements in any way.  Buyer’s failure to reject or revoke acceptance of any Products shall not relieve Supplier of responsibility for any warranty ‎with respect to such Products, either express or implied.  Payment of any invoice shall not waive Buyer’s right to reject or revoke acceptance ‎of any Products. Supplier shall bear all expenses and risks of unpacking, examining, repacking, storing, holding and/or reshipping, returning, and any Customs ‎actions regarding any Products rejected (or the acceptance of which is revoked) by Buyer. Buyer’s right to reject or revoke acceptance and to return or ‎hold Products shall extend to Products returned by customers of Buyer for any of the reasons stated in this section.

15. Representations and Warranties.  Supplier represents, guarantees, and warrants each of the following to Buyer and acknowledges that each is a material inducement to Buyer to complete the Order:

a. Supplier is, and shall remain, in compliance with all applicable laws, rules, ordinances, codes, and orders and decrees of any governmental authority affecting the Order or Products (collectively, “Applicable Law”), including, without limitation: (i) the Hazard Analysis Critical Control Point (“HACCP”) regulations for Fish & Fishery Products, 21 C.F.R. Part 123; (ii) the U.S. Food and Drug Administration (“FDA”) Fish and Fishery Products Hazard Guidance – 4th Edition; (iii) the U.S. Federal Food, Drug and Cosmetic Act, as amended, and the regulations adopted thereunder; (iv) the Fair Packaging and Labeling Act, as amended, and any regulations adopted thereunder; (v) the Federal Consumer Product Safety Improvement Act and any additional requirements imposed thereunder; (vi) the Bioterrorism Act of 2002, as amended, and any regulations adopted thereunder; (vii) California Proposition 65 and any regulations adopted thereunder (including 27 Cal. Code Regs. §§ 25000-2700 inclusive); and (viii) California Health and Safety Code §§ 25249.6 et seq., and shall comply and cause all of its employees, agents, subcontractors, and other representatives to comply with both Applicable Law and applicable policies identified in these Terms; ;

b. The Products: (i) conform to Supplier’s affirmations of fact and promises, to industry standards and practices for similar Products, to Pacific policies and standards, and to all Buyer specifications; (ii) are fit for ordinary and known particular purposes; (iii) are procured, produced, and sold in compliance with Applicable Law; and (iv) meet or exceed all consumer health and safety, environmental protection, product and package labeling, traceability, and other requirements under Applicable Law.

c. The Products and any and all goods and materials used by Supplier in Products sold to Buyer, including, without limitation, raw materials and intermediate/semi-processed products (collectively, “Ingredients”), were at all times stored and transported under conditions necessary to protect Product integrity.  Without limiting the generality of the foregoing, refrigerated Products and Ingredients were at all times stored at temperatures less than 36° Fahrenheit (2.2° Celsius), and frozen Products and Ingredients were at all times stored at temperatures less than -4° Fahrenheit (-20° Celsius);

d. Supplier has, and will continue to have, sufficiently tested, suitable, and reliable Product safety and quality assurance programs, including a process to effectively and efficiently address recalls, as well as a food defense system that effectively and materially addresses intentional acts of contamination and/or terrorism;

e. Supplier has, and will continue to have, proper policies and procedures to ensure that history, application, location, and other relevant information reasonably required of Buyer and/or Pacific in connection with the Products, including, without limitation, their ingredients, components, inputs, and other elements, can be clearly and properly traced or otherwise followed from their respective points of origin through all stages of production, processing, and distribution to their post-delivery locations.  Supplier maintains complete and accurate records and legally prescribed documents in support of the foregoing and shall promptly provide the same to Buyer and/or Pacific upon request or in accordance with any timelines communicated by Buyer to Supplier;

f. Supplier complies with all human rights laws, including, without limitation, prohibitions on child labor, slavery, and human trafficking, in the countries in which it does business, and the producers or providers of any Ingredients comply with all human rights laws in the countries in which they do business;

g. Supplier complies with all environmental laws and regulations in the countries in which it does business, and the producers and providers of any Ingredients comply with all environmental laws in the countries in which they do business;

h. Supplier employs sustainable technologies and initiatives in connection with its business, operations, and processes, and the methods used to grow, harvest, or otherwise secure any and all Ingredients do not permanently damage or deplete natural resources;

i. Supplier does not engage in any illegal, unreported, or unregulated (“IUU”) fishing or harvesting, and the producers or providers of any Ingredients do not engage in IUU fishing or harvesting;

j. Supplier does not unlawfully discriminate, harass or permit harassment against any person because of their race, color, religion, sex, age, sexual orientation, ancestry, creed, marital status, national origin, disability, veteran’s status, or union activity; and

k. Supplier has and shall transfer good title to the Products to Buyer free and clear of any liens, adverse claims, or other encumbrances.

The above representations and warranties made by Supplier are in addition to, and shall not be construed as restricting or limiting any warranties of Supplier, express or implied, which are otherwise provided by law.

16. Recalls.  If any Products, because of a condition which exists at the time of delivery to Buyer (or which results from such condition), are the subject of a recall or safety notice initiated by Supplier, Buyer, or any government or consumer protection agency, Supplier shall be responsible for all reasonable costs and expenses associated with the recall or notice and shall reimburse Buyer, Pacific, and its Affiliates for all reasonable costs and expenses incurred by Buyer, Pacific, and/or its Affiliates in recalling, publishing notices about, shipping and/or destroying such Products (including, without limitation, any products with which such Products were packaged, consolidated, or commingled) at Buyer’s net landed cost therefor, including refunds to customers.  Upon learning or receiving notice of a credible claim or potential claim of a defect in, or tampering with, any Products, Supplier shall promptly notify Pacific and, if appropriate, contact the FDA and/or other appropriate government agency, and shall immediately conduct at its expense sufficient analyses of such Products to reliably determine the accuracy of such claim and the cause of any such defect or tampering.  Buyer and Supplier shall assist each other in all reasonable ways to resolve any claims involving Products subject to a recall or safety notice.

17. Risk of Loss.  Cost allocation and risk of loss to Products shall pass from Supplier to Buyer at the Delivery Point.  If not otherwise specified in the Purchase Order, then delivery of the Products from Supplier to Buyer shall be F.O.B. destination, freight prepaid and allowed.

18. Supplier Audits.  Buyer shall have the right to inspect and audit at all reasonable times Supplier’s accounts and records pertaining to the Products and Supplier’s performance under and compliance with the Order.  Such right shall continue for a period of TWENTY FOUR (24) months following the delivery and acceptance of the Products by Buyer.  Suppler is obligated to retain such accounts and records for at least TWENTY FOUR (24) months following delivery and acceptance of the Products by Buyer.  Buyer shall similarly have the right to conduct on-site Supplier inspections and audits as Buyer deems necessary or appropriate.  Supplier shall cooperate as necessary to accommodate such inspections.

19. Taxes and Other Fees.  Supplier shall pay or cause to be paid all taxes, fees, levies, penalties, licenses, charges, or interest imposed by any government authority (“Taxes”) on or with respect to the Products prior to or at the Delivery Point.  If either party is required to remit or pay Taxes that are the other party’s responsibility under these Terms, then the party responsible for such Taxes shall promptly reimburse the other party for such Taxes.  Any party entitled to an exemption from any such Taxes shall furnish the other party with any documentation necessary to evidence such exemption.

20. Termination for Convenience.  Buyer reserves the right to cancel any Order, in whole or in part, for its own convenience without cause at any time by giving Supplier written notice of such cancellation.  Upon receipt of any such notice, Supplier shall: (a) immediately stop performance to the extent set forth in the notice, (b) cancel any orders or subcontracts pertaining to the Order to the extent set forth in the notice, (c) preserve and protect any goods or materials purchased for or committed to the Order pending Buyer’s instructions, (d) comply with Buyer’s directions to terminate the delivery of Products, and (e) promptly use commercially reasonable efforts to minimize the amount of any third party termination charges associated with any such cancellation.  Buyer shall pay for Supplier’s performance under the Order satisfactorily completed as of the date of receipt of Buyer’s notice of cancellation, as substantiated by documentation satisfactory to and verified by Buyer, together with any third party termination charges (the “Cancellation Payment”).  Under no circumstances shall Supplier be entitled to any prospective profits or damages because of such Buyer cancellation.  The Cancellation Payment shall not exceed the price that would otherwise be payable to Supplier under the Order.  Buyer shall not have any liability whatsoever related to cancellation of the Order beyond the Cancellation Payment.

21. Termination for Cause.

a. Default.  Supplier shall be in default if Supplier: (i) breaches any provision of the Order and fails to cure such condition within THREE (3) days following Supplier’s receipt of notice from Buyer advising of the breach, or, if such condition is not reasonably capable of being cured within such time, fails to commence a cure during such THREE (3) day period and promptly and in a continuous fashion diligently pursue the cure; (ii) makes an assignment for the benefit of creditors or consents to or acquiesces to the appointment of a receiver, liquidator, fiscal agent, or trustee; or (iii) becomes insolvent or enters into a voluntary or involuntary bankruptcy or receivership (singularly and collectively, a “Default”).

b. Remedies.  If Supplier is in Default, Buyer may, in its sole discretion, avail itself to any or all of the following remedies: (i) elect not to pay Supplier any amounts due for the purpose of setoff against and to the extent of Buyer’s damages caused by Supplier’s Default; (ii) terminate or suspend Supplier’s performance under the Order, in whole or in part, effective immediately upon Supplier’s receipt of Buyer’s notice of termination/suspension; or (iii) pursue and enforce any and all other rights or remedies available to Buyer at law or equity.

c. Wrongful Cancellation.  Should a court or arbitrator determine that Buyer’s alleged termination for cause was wrongful or otherwise improper, then Buyer’s termination shall be deemed a termination for convenience.

22. Title.  Unless otherwise specified in the Purchase Order, ownership and title to the Products shall pass from Supplier to Buyer at the Delivery Point.

23. Traceability.  Supplier shall comply with all Pacific date coding protocols in effect as of the date of the Order.  No other date coding may be used without prior written agreement signed by an authorized representative of Pacific.  All Master Case and Bag labels and Templates must be reviewed and approved by Pacific’s Quality Assurance department.

24. Assignment.  Supplier may not assign any of its rights or obligations under the Order and/or Terms without Buyer’s prior written consent.  Any attempted assignment of such rights or obligations without Buyer’s prior written consent shall be void.  Buyer, however, may assign, delegate, or transfer its rights and obligations under the Order and/or Terms, in whole or in part, to any Affiliate.

25. Binding Effect.  These Terms shall apply to and bind the successors and permitted assigns of the parties.

26. Captions.  All captions, titles, headings, and divisions are for purposes of reference and convenience only, and may not be construed to limit or affect the interpretation of the Terms.

27. Change of Terms.  Pacific may change these Terms at any time by publishing the updated Terms to its Website.  Supplier’s written acceptance (including e-mail), receipt of any payment, commencement of any work, or shipment of all or any portion of Products in connection with an Order, whichever occurs first, shall constitute acceptance of the amended Terms.

28. Confidentiality.  Supplier shall: (a) maintain as confidential and proprietary all information provided by Buyer pursuant to or otherwise in connection with the Order (“Buyer’s Information”); (b) not divulge or disclose any of Buyer’s Information to third parties without prior written consent of Buyer; (c) not use any of Buyer’s Information to the detriment of Buyer or to the benefit of third parties; and (d) return all of Buyer’s Information to or as directed by Buyer upon termination or expiration of the Order or as otherwise requested by Buyer.

29. Costs/Attorney Fees.  Supplier agrees to compensate Buyer for all reasonable costs and expenses of any kind, including, without limitation, attorney, paralegal, and other professional fees, actually incurred and reasonably necessary in connection with any efforts by Buyer to enforce a right or obligation relating to an Order which take place outside of suit, action, arbitration, or other legal proceeding.  In the event that a suit, action, arbitration, or other legal proceeding of any nature whatsoever is brought relating to an Order and/or these Terms, or any of the rights or obligations under an Order and/or these Terms, the prevailing party shall be entitled to recover from the losing party its reasonable attorney, paralegal, and other professional fees, as well as any and all other fees, costs, and expenses of any kind actually incurred and reasonably necessary in connection herewith, as determined by the judge or arbitrator at trial or other proceeding, and including such fees, costs, and expenses incurred in any appellate or review proceeding, or in collecting any judgment or award, or enforcing any decree rendered with respect thereto, in addition to all other amounts provided for by law.

30. Drug-Free Workplace.  Supplier understands that Buyer maintains a drug and alcohol free workplace.  Supplier covenants that Supplier has, and with respect to Supplier’s agents, representatives, employees, and subcontractors, will implement and enforce Supplier’s own policies and procedures to ensure maintenance of drug and alcohol free workplaces at least in compliance with Applicable Law.

31. Force Majeure.  Buyer shall not be responsible for, and no liability shall result to Buyer in connection with, any delays in delivery or in performance which result from any circumstances beyond Buyer’s immediate control, including, without limitation, carrier delays, foreign or domestic embargoes, seizures, acts of God, insurrections, wars, adoption or enactment of any new laws, ordinances, or regulations, fires, floods, explosions, strikes, extraordinary currency devaluations, taxes or custom duties, or any other similar events or contingencies.

32. Further Assurances.  Supplier shall, upon request, execute and deliver such additional documents as may be necessary or convenient for the purpose of evidencing or perfecting any rights or interests arising under the Order or these Terms.

33. Governing Law and Venue.   Pacific operates the Website from its offices in Clackamas, Oregon in the United States of America.  These Terms shall be construed and enforced according to the laws of the STATE OF OREGON notwithstanding any conflict-of-law principle that might implicate the laws of any other jurisdiction governing the same.  The United Nations Convention for the International Sale of Goods shall not apply to these Terms or any Order.  Venue for legal proceedings of any nature whatsoever relating to or otherwise involving an Order and/or these Terms shall be CLACKAMAS COUNTY, OREGON.  Supplier consents and submits to the jurisdiction of any state or federal court located in the STATE OF OREGON.

34. Merger. These Terms constitute the entire agreement between Buyer and Supplier pertaining to the Order, Purchase Order, and Products and supersede any prior or contemporaneous agreements, understandings, negotiations and discussions, whether written or oral, except as specifically set forth herein.

35. Modification. No change, modification, or amendment of these Terms shall be effective unless made via separate written agreement signed by authorized representatives of both Buyer and Supplier.  Each such change, modification, or amendment shall apply only to the specific Order to which the change, modification, or amendment relates and shall not apply to any future Order.

36. Notices.  Any notice to Buyer under the Order shall be in writing and delivered to the Buyer’s Contact listed in the Purchase Order, with a copy to Pacific Seafood Group, Attn: Legal Department, 16797 SE 130th Ave., Clackamas, OR 97015.  All notices to Buyer shall be delivered via overnight courier requiring a signature for delivery, or received by Registered or Certified Mail, postage prepaid, return receipt requested.

37. Relationship.  Supplier is an independent contractor and no past relationships or course of dealings between Supplier and Buyer shall affect Supplier’s status as an independent contractor.  Any and all persons engaged by Supplier in connection with the Order shall be deemed to be Supplier’s agents or employees and not Buyer’s agents or employees.  Neither Buyer nor Supplier shall have the right or authority to assume or create any obligation of any kind, express or implied, on behalf of the other.

38. Set Off.  Buyer, Pacific, and/or its Affiliates shall have the right at all times to set off any amount owing to or from Supplier under the Order, or pursuant to any other agreement with Supplier.

39. Severability.  If any provision becomes or is found to be illegal, unenforceable, void, or voidable, then such clause or provision shall be modified to the extent necessary to make it legal and enforceable.  If modification of such provision is not possible, then it shall be severed from the remainder of the Order and/or Terms so that the remainder may remain in full force and effect.

40. Social Responsibility.  Supplier shall employ the highest ethical, human rights, social responsibility, and sustainability principles in connection with its business, operations, and processes, and in its selection and use of subcontractors, growers, and suppliers. Supplier acknowledges that it is committed to implementation of stringent environmental standards and to utilization of sustainable technologies and initiatives, with the goals of reducing environmental impacts and protecting natural resources from permanent damage or depletion.   Supplier shall provide Pacific, upon request, with documentation to support this commitment.

41. Survival. Any provisions of these Terms which by their nature are intended to survive termination, expiration, cancellation, or completion of an Order (including, without limitation, Confidentiality, Indemnification, Representations and Warranties, Supplier Audits, Further Assurances, and Survival) shall survive and continue as valid and enforceable obligations notwithstanding termination, expiration, cancellation, or completion of the Order.

42. Time.  Time is of the essence with respect to any and all provisions which specify a deadline for performance.

43. Use of Funds. Supplier shall not use any funds received under the Order for any purpose prohibited by Applicable Law, including, without limitation, the Foreign Corrupt Practices Act.  Supplier agrees not to pay any commission, fee, or rebate to any employee of Buyer, nor favor any employee of Buyer with gifts or entertainment of significant cost or value.

44. Waiver.  No waiver of any breach shall be deemed to be a waiver of any other or any subsequent breach, whether or not similar, nor shall such wavier constitute a continuing waiver unless expressly provided.  The failure of either party to exercise or enforce any provision shall not constitute a waiver of the provision and shall not preclude or prejudice such party from later enforcing or exercising the same, or any other, provision.
REVISED 02/13/2017