STANDARD TERMS AND CONDITIONS OF PURCHASE
 

1. Acceptance and Precedence of Terms.
Seller's acknowledgement of this Purchase Order or commencement of performance shall constitute Seller's acceptance of all of, and only, these terms and conditions. Any additional or different terms in Seller's documents are hereby deemed material alterations and notice of objection and rejection of them is hereby given. This Purchase Order shall be controlling over any additional, inconsistent or conflicting terms of any purchase order, confirmation, invoice, acknowledgement, release, or other written correspondence, even if accepted in writing by both parties. Acceptance of the products or services delivered under this Purchase Order shall not constitute acceptance of Seller's terms and conditions.

 

2. Shipment and Delivery.
Time is of the essence. Seller shall immediately notify Clara Foods Co. in the event that Seller's timely performance under this Purchase Order is or is likely to be delayed, in whole or in part, and Seller shall provide Clara Foods Co. with all available information regarding the reasons for such delay. Such notice shall not constitute a waiver by Clara Foods Co. of any of Seller's obligations hereunder. If only a portion of the products specified in this Purchase Order is available for shipment to meet the delivery date specified in this Purchase Order ("Delivery Date"), Seller shall notify Clara Foods Co. and, unless Clara Foods Co. instructs otherwise, (i) ship the available products in time to ensure timely delivery and (ii) ship, at Seller's own costs, the remaining portion of the products as soon as such products become available to Seller. Unless otherwise expressly agreed to in writing, all products delivered to Clara Foods Co. shall be F.O.B. Clara Foods Co.'s ship-to address set forth in this Purchase Order without charge to Clara Foods Co. for crating or storage. All customs, duties, costs, taxes, insurance premiums, and other expenses relating to such transportation and delivery shall be paid solely by Seller. If the specified mode of transportation would not permit Seller to meet the Delivery Date, Seller shall ship such products by air freight or other expedient means acceptable to Clara Foods Co., and Seller shall pay the difference in cost of freight. If Seller fails to deliver the products and/or services ordered by Clara Foods Co. on or before the Delivery Date, Clara Foods Co. may terminate this Purchase Order. If the products and/or services ordered by Clara Foods Co. are in excess of the amounts stated on this Purchase Order or are delivered more than three (3) business days prior to the Delivery Date, Clara Foods Co. may either reject such products and/or services and return the shipment to Seller or accept the products and/or services pursuant to Section 7. Such shipments will be held at Seller's risk and expense including storage charges while awaiting Seller's shipping instructions. Goods for which return shipping instructions are not received within a reasonable time may be destroyed or, in Clara Foods Co.'s sole discretion, sold by Clara Foods Co. and the proceeds, if any, applied toward storage charges. Seller shall not, without Clara Foods Co.'s prior written consent, commence to manufacture or procure any of the products specified in this Purchase Order in advance of Seller's normal lead-time for such products. In the absence of Clara Foods Co.'s prior written consent, Clara Foods Co. shall have no obligations, in the event of termination or a change of this Purchase Order, with respect to any products manufactured or procured in advance of Seller's normal lead time for such products. Notice under this section may be given via facsimile or email (provided in either case that receipt of transmission is confirmed).

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2a. Shipment.
The supplier must provide all information required to comply with any applicable import and export laws and regulations, including but not limited to import classification (such as Harmonized Tariff Schedule), export classification (such as Export Control Classification Number), and country of origin of all items supplied to Clara Foods Co. The relevant information must appear on the commercial invoice and the packing list.

3. Return.
Clara Foods Co. may return to Seller, at Seller's own risk and expense, including, without limitation, transportation and insurance charges: (i) products that do not meet the warranties specified herein; (ii) products which are not accepted pursuant to Section 7; and (iii) products which constitute over-shipments or early shipments by Seller.

4. Packing.
Seller shall preserve, pack, package, and handle the products to protect them from loss or damage and in accordance with good commercial practice and Clara Foods Co.'s specifications. Seller shall be liable for and shall promptly refund to Clara Foods Co. the amount of any loss or damage due to Seller's failure to properly preserve, pack, package or handle such products. Seller shall include with each shipment of products an itemized packing list which sets forth the number of this Purchase Order, product numbers, a description and the quantity of each of the products shipped, weight, and the date of shipment. The Purchase Order number shall be plainly visible on every invoice, package, bill of lading, and shipping order provided by Seller.

 

5. Prices.
The prices for the products and/or services provided hereunder shall be the lowest prices for which Seller is selling such products and/or services, taking into account any differences in quantities, schedule, and other material terms. Clara Foods Co. shall be entitled to receive any price reduction which Seller makes to others for comparable products or services as of the later of (i) the Delivery Date for the products and/or the date upon which Seller is to begin performing the services hereunder, (ii) the date of actual delivery of the products and/or date upon which Seller commences the services, or (iii) the date of invoice for the products and/or services.

6. Payments.
All payments due hereunder to Seller shall be paid to Seller in United States dollars not later than thirty (30) days following the later of (i) the Delivery Date, (ii) the date of Clara Foods Co.'s acceptance of all of the products and/or services hereunder, or (iii) Clara Foods Co.'s receipt of a properly prepared invoice and certifications of conformance of the products to the specifications, if applicable. Partial payments may be made, if specifically authorized by Seller in writing. Clara Foods Co. may at any time set off any amount owed by Clara Foods Co. to Seller against any amount owed to Clara Foods Co. by Seller or any of its affiliates. Seller shall pay, without charge to Clara Foods Co., any federal, state, or local tax or other government charge or assessment relating to the production, sale, or shipment of any of the products hereunder, unless expressly otherwise provided in an exhibit attached hereto.
 

7. Inspection, Acceptance and Rejection of Goods and Services.
Clara Foods Co. may inspect, at any time upon prior notice to Seller, Seller's manufacture of the products, including the manufacturing facilities and equipment. No inspection or test made prior to final acceptance shall relieve Seller from responsibility for defects or other failure to meet the requirements of this Purchase Order. Seller shall carefully inspect all products prior to shipment. Clara Foods Co. may reject any portion or all of any shipment of products that does not conform to the applicable specifications or descriptions within sixty (60) days of receipt and may return such rejected products to Seller for, at Clara Foods Co.'s sole option, replacement, refund, or credit. Clara Foods Co.'s payment to Seller for products prior to Clara Foods Co.'s timely rejection of such products as non-conforming shall not be deemed as acceptance by Clara Foods Co. and shall be subject to adjustment for errors, shortages, defects in the products, or other failure of Seller.
 

8. Change Orders.
Clara Foods Co. may, at any time prior to the Delivery Date, by a written request (including via email or facsimile) suspend its purchase of products or services hereunder or make changes in (i) the quantities of products or the scope of services ordered or the Delivery Date, (ii) applicable drawings, designs, and/or specifications, (iii) the method of shipment or packing, and/or (iv) the place of delivery or service location.

If such a change by Clara Foods Co. causes an increase in the cost of or the timing required for Seller's performance, and Seller immediately notifies Clara Foods Co. in writing, then the price and/or delivery schedule of the products or services corresponding to such changed portion(s) of this Purchase Order shall be equitably adjusted as mutually agreed upon by both parties, and the parties shall modify this Purchase Order accordingly in writing. Seller shall request such an adjustment no later than five (5) days from the date of Seller's receipt of Clara Foods Co.'s notification of change; however, such period may be extended upon Clara Foods Co.'s written approval. Nothing in this Section 8 is intended to excuse Seller from performing pursuant to this Purchase Order as changed or amended.
 

9. Warranty.
Seller warrants to Clara Foods Co. and its customers for the longer of Seller's normal warranty period or for one (1) year following the date of Clara Foods Co.'s acceptance of the products and/or services that (i) when received by Clara Foods Co. from Seller, the products shall be free from defects in design, material, workmanship and manufacture, (ii) the products and/or services will conform to the applicable documentation, specifications, drawings, samples, or to other descriptions set forth in this Purchase Order; (iii) the services will be performed in a professional and workmanlike manner; (iv) the products and/or services will be suitable for the purposes for which the products and/or services are intended including without limitation purposes made known to Seller; (v) Seller has good, unencumbered title to the products and has conveyed such good, unencumbered title to Clara Foods Co.; and (vi) all products are new and unused, unless otherwise specified by Clara Foods Co. The foregoing warranties are in addition to all other warranties, whether express or implied, and will survive delivery, inspection, acceptance, or payment by Clara Foods Co. If any of the products or services delivered by Seller do not meet the warranties specified herein or otherwise applicable, Clara Foods Co. may, at its option, (i) require Seller to correct any defective or non- conforming products by repair or replacement at no charge to Clara Foods Co., or (ii) return such defective or non-conforming products to Seller at Seller's expense and recover from Seller all amounts paid heretofore, (iii) correct the defective or non-conforming products itself and charge Seller the cost of such correction, (iv) obtain a refund from Seller for all amounts paid for any defective or non-conforming services, or (v) utilize the defective product and require an appropriate reduction in price. The foregoing remedies are in addition to all other remedies at law or in equity or under this Purchase Order, for damages or otherwise, and shall not be deemed to be exclusive. All warranties shall run to Clara Foods Co. and to its customers. Clara Foods Co.'s approval of Seller's product or design shall not relieve Seller of the warranties set forth herein, nor shall waiver by Clara Foods Co. of a requirement pertaining to any drawing or specification for one or more of the products constitute a waiver of such requirements for the remaining products to be delivered hereunder unless so stated by Clara Foods Co. in writing. The provisions of this Section shall not limit or affect the rights of Clara Foods Co. under Section 7.
 

10. Termination.
Clara Foods Co. may terminate this Purchase Order, in whole or in part, at any time, by written, telephone, facsimile or email notice to Seller. Upon such termination, Seller will, to the extent and at the times specified by Clara Foods Co., (i) stop all work under this Purchase Order, (ii) place no further orders for materials to complete such work, (iii) if requested by Clara Foods Co., assign to Clara Foods Co. all of Seller's rights, title and interests under terminated subcontracts and orders, (iv) settle all claims hereunder (after obtaining Clara Foods Co.'s prior written approval), (v) protect all property in which Clara Foods Co. has or may acquire an interest, and (vi) transfer title and make delivery to Clara Foods Co. of all articles, materials, work in process, and other things held or acquired by Seller in connection with the terminated portion of this Purchase Order. Seller will promptly comply with Clara Foods Co.'s instructions respecting each of the foregoing without awaiting settlement or payment of any amounts it may claim against Clara Foods Co. Within six (6) months after such termination, Seller may submit to Clara Foods Co. its written claim, with supporting documentation, for any unavoidable material costs resulting from the termination. Failure to submit such claim within such six (6) month period will constitute Seller's waiver of all claims against Clara Foods Co. and a release of all of Clara Foods Co.'s liability arising out of the termination. The parties may, after conferring with each other in good faith, agree upon the amount to be paid by Clara Foods Co. to Seller for such termination. Absent such agreement, Clara Foods Co. will pay Seller (subject to set off against amounts owed by Seller or any of its affiliated companies to Clara Foods Co.) the following amounts: (i) the price set forth in this Purchase Order for all products completed or services rendered in accordance with this Purchase Order to the extent not previously paid for; (ii) the reasonable actual costs incurred and paid by Seller which are properly allocable under recognized commercial accounting practices to the terminated portion of this Purchase Order; and (iii) the reasonable actual costs incurred and paid by Seller in making settlement hereunder and in protecting property in which Clara Foods Co. has or may acquire an interest. Payments made under this section shall not exceed the aggregate price of the products or services specified in the terminated portion of this Purchase Order, less payments otherwise made or to be made by Clara Foods Co. Any amounts payable to Seller by Clara Foods Co. under this section shall exclude amounts relating to products that are lost, damaged, stolen, or destroyed. Upon the occurrence of any one of the following events, Clara Foods Co. shall have the unrestricted right, at its option, to cancel and terminate this Purchase Order without cost or liability to Clara Foods Co.: (a) Seller's insolvency or inability to meet obligations as they become due; (b) filing of voluntary or involuntary petition of bankruptcy by or against Seller; (c) institution of legal proceedings against Seller by creditors or stock holders; or (d) appointment of a receiver for Seller by any court of competent jurisdiction.
 

11. Proprietary Interest and Confidentiality.
Seller agrees that any data, designs, materials, specifications and all other business, product, technical and financial information it obtains from Clara Foods Co., including information relating to any Purchase Order, shall be

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