The following terms and conditions are incorporated by reference into Performance Food Group, Inc.'s standard purchase order form. All orders are placed pursuant to these terms and conditions. Acceptance of these terms and conditions will be acknowledged by Seller's signature on this order, or by returning a confirmation to Performance Food Group, Inc. (“PFG”).
1. Representations and Warranties. Sellers of foodservice products (Products) to PFG make the following representations and warranties to PFG: a. all intellectual property or proprietary rights used by Seller in connection with the Products are owned by Seller or Seller has been properly authorized to use such rights in connection with the Product and to sell the Product that incorporates such rights to the PFG for use or further resale; b. all Products are manufactured, packaged, delivered and invoiced in compliance with the applicable laws, regulations, ordinances, administrative orders and rules of applicable jurisdictions, and all required labeling is affixed to Products as required and passed on to PFG or its customers; c. all advertising and promotional materials developed or provided by Seller for any Product complies with all applicable requirements of laws, regulations, ordinances and administrative orders and rules of applicable jurisdictions, including, without limitation, those promulgated by the U.S. Food and Drug Administration, the U.S. Department of Agriculture, the U.S. Federal Trade Commission and the Environmental Protection Agency; d. Seller and all employees and agents involved in the manufacturing, processing or delivery of the Products strictly adhere to all applicable laws, regulations and prohibitions of applicable jurisdictions with respect to the operation of production facilities and other business and labor practices; e. all Products are produced using good manufacturing practices, and, if applicable, are merchantable food products suitable for human consumption; and f. neither Seller nor its principals (owners/senior officials) are debarred or suspended from U.S. Government procurement programs under the rules prescribed at Title 48 of the Code of Federal Regulations, Section 9.4, and Seller shall notify PFG within 15 days of any change in this status, including Seller's receipt of any notice proposing Seller for debarment or suspension from U.S. Government procurement programs.
If applicable: (1) PFG and Seller, as “contractor” and “subcontractor,” shall abide by the requirements of 41 C.F.R. §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a), and any other similar applicable regulations that may be enacted from time to time. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability. (2) This contractor and subcontractor shall abide by the requirements of 29 C.F.R. Part 471, Appendix A to Subpart A.
2. Unacceptable Products; Returns. a. “Unacceptable Product" means the Product: i. is unable to maintain its quality standard for the duration of the Product's shelf life; ii. is adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act (“the Act”); iii. fails to meet the above warranties; iv. is the subject of a recall; and/or v. may not, under the provisions of Sections 404 and 505 of the Act, be introduced in interstate commerce. b. PFG may refuse to accept delivery of Unacceptable Products. Seller shall accept any Unacceptable Products for return, for full credit and with freight paid by Seller. Alternatively, at Seller's discretion and expense, PFG may dispose of such Unacceptable Product in a manner as the circumstances may reasonably dictate and Seller shall reimburse PFG for any amount by which the sale or disposal price realized by PFG shall be less than PFG's cost of the Product plus reasonable expenses for such sale or disposition. Notwithstanding any other provision of this Section, Seller shall not be required to reimburse PFG for Unacceptable Product if the unacceptability resulted solely from negligence or willful misconduct in the handling of the Product by PFG or a PFG customer.
3. Indemnification Seller will indemnify, defend, and hold PFG, its affiliates and subsidiaries and their officers, directors, employees and agents, as well as PFG's customers, harmless from and against any and all allegations asserted or damages, liabilities, losses, costs or expenses (including reasonable attorneys' fees) sought in any claim, action or proceeding connected with any of the following (collectively, "Claims"): a. infringement or misappropriation of any proprietary right in connection with the Products; b. death of or injury to any person, damage to any property, or any other damage or loss resulting or claimed to have resulted, in whole or in part, from any actual or alleged quality or other defect in the Product, or actual or alleged failure of the Product to comply with any express or implied warranties, or any claim of strict liability in tort relating to the Product; c. violation of any federal, state or local laws, regulations, ordinances or administrative orders or rules of any jurisdiction in which Product is produced or delivered and relates to (i) the Product, or any label, packaging or invoice associated with the Product, in its manufacture, possession, storage, use or sale; or (ii) any advertising or promotional materials developed or provided by Seller; (d) defect involving the packaging, labeling, packing, shipping and/or invoicing of Product; or (e) failure to comply with any provisions of this Order; provided, however, that Seller shall not be liable to PFG hereunder to the extent PFG’s damages are determined to result from PFG's gross negligence or willful misconduct in the handling, storage, preparation or distribution of the Products.
4. Miscellaneous. a. Choice of Law. Any dispute or claim hereunder shall be governed and construed in accordance with the laws of the Commonwealth of Virginia without reference to its choice of law provisions. b. Supremacy of Terms. If Seller is party to a formal supply agreement with PFG, such agreement’s terms and conditions are incorporated herein by reference; if any such terms conflict these Terms and Conditions, the terms of the formal supply agreement will prevail over these terms and conditions with regard to the Products purchased hereby. No statement or writing by Seller, including Seller's invoice, shall alter or supersede these Terms and Conditions. The parties hereby incorporate the requirements of 29 C.F.R. § 470, 41 C.F.R. §§ 60-1.4(a)(7), 60-250.05 and 60-741.5, if applicable.