Purchase Order Terms & Conditions

Agreement.

The seller (“Seller”) identified on the accompanying purchase order (“Purchase Order”) agrees that these terms and conditions (“Terms and Conditions”) shall apply to the purchase by NewAge Industries, Inc., a Pennsylvania corporation (“Buyer”) of the products and/or services identified on the Purchase Order (“Goods”) and shall be incorporated by reference into such Purchase Order.
Acceptance.

The Purchase Order constitutes Buyer’s offer to purchase Goods from Seller in accordance with these Terms and Conditions, which shall constitute a binding contract between the parties. Seller’s acceptance of the Purchase Order is limited to these Terms and Conditions. Any terms and conditions proposed by Seller in any document that are different from, conflict with, or add to these Terms and Conditions shall be deemed to materially alter the Purchase Order and are hereby objected to and rejected by Buyer. The Purchase Order, including these Terms and Conditions, shall be deemed accepted by Seller upon the earliest to occur of: (i) written or oral acknowledgment by Seller of the receipt of the Purchase Order with the intent, express or implied, that Seller will provide the Goods; (ii) written or oral acknowledgment by Seller that Seller has commenced performance or that Seller intends to ship or deliver the Goods; or (iii) receipt by Buyer of the Goods.
Taxes.

The prices for the Goods sold under the Purchase Order include all federal, state and local taxes imposed upon or on account of such sale, unless otherwise indicated in the Purchase Order.
Invoices.

Individual invoices must be issued for each shipment under the Purchase Order. Invoices shall be payable within thirty (30) calendar days after receipt, inspection and acceptance of the Goods by Buyer unless a later payment date is provided for in the Purchase Order or in Seller’s invoice, in which case the later date shall control. Discount privileges will apply from the date of receipt, inspection and acceptance of the Goods or the date of receipt of the invoice, whichever date is later.
Changes.

No change shall be undertaken except upon written authorization of Buyer. Buyer may at any time by written notice, make changes within the general scope of the Purchase Order in the specifications, designs, packaging, methods of shipment, quantities, place of delivery, or delivery schedule(s). If any such change causes an increase or decrease in the costs of or the time required for Seller’s performance, an equitable adjustment may be made, agreed upon by Buyer and Seller, in the price or delivery schedule, or both, provided that a written request for such an adjustment shall be made to Buyer within five (5) days from the date of Seller’s receipt of Buyer’s written notice making the change. The Purchase Order may then be modified and Seller’s request for an equitable adjustment accepted only by written Change Order from Buyer. Nothing contained in the Purchase Order shall relieve Seller from proceeding without delay to perform the Purchase Order, as changed.
Force Majeure.

Buyer shall have the right to suspend, cancel or refuse shipments from Seller without penalty or liability to Buyer in such cases where the suspension, delay or refusal to accept Goods purchased under a Purchase Order is due, in whole or in part, directly or indirectly, to a cause beyond Buyer’s reasonable control including, without limitation, labor difficulties, riots, war fire, weather, casualty, accidents, acts of God, acts of terrorism, pandemics or outbreaks of disease (such as COVID-19 and related issues caused by related government actions), civil disorder, war, shortage of labor or materials or governmental acts or restrictions or other similar causes beyond Buyer’s control.
Delivery.

THE TIME OF DELIVERY IS OF THE ESSENCE. IF A TENDER OF CONFORMING GOODS IS NOT MADE BY THE SCHEDULED DELIVERY DATE, SELLER SHALL HAVE NO RIGHT TO MAKE A LATER CONFORMING TENDER. Seller shall promptly notify Buyer in writing of any anticipated delay in the scheduled delivery date, and Buyer reserves the right, in order to maintain the scheduled delivery date, to require Seller to expedite delivery by (a) performing on an accelerated, premium time basis and/or (b) by shipping via a speedier, alternate transport means, which costs attributable to such accelerated performance or expedited delivery shall be paid by Seller. Seller shall be liable for all resulting damages to Buyer and any customers of Buyer occasioned by delay in delivery. Delivery shall not be deemed to be complete until the Goods have been actually received and accepted by Buyer. Returns and requests for credit will not be unreasonably withheld or delayed. Seller shall bear the risk of loss to the Goods until received and accepted by Buyer. Advance and excess shipments may at Buyer’s option be rejected and returned to Seller at Seller’s expense. Seller must provide written notice if it intends to ship more or less Goods than the amount ordered, and Buyer retains the right to accept or reject any such changes with no penalty.
Inspection.

Buyer shall have the right to inspect Goods delivered prior to acceptance, notwithstanding the fact that full or partial payment for the Goods has been made prior to delivery, that the Goods have been inspected at Seller’s place of business, or that the condition of the Goods has been otherwise certified to Buyer. Such inspection may include any measurement, testing, or examination which leaves possible the return of the Goods to Seller in substantially the same condition in which they were delivered to Buyer. Buyer may reject or revoke its acceptance of any Goods which do not strictly conform with Seller’s obligations under the Purchase Order and, in such event, Buyer shall be entitled to exercise all or any of the remedies set forth in paragraph 12. Buyer’s inspection, discovery of any breach of warranty, failure to make an inspection, or failure to discover any breach of warranty shall not constitute a waiver of any of Buyer’s rights or remedies.
Warranties.

Seller warrants that all Goods purchased and delivered: (a) shall strictly conform in all respects with Buyer’s descriptions and specifications; (b) shall strictly conform in all respects to any samples, drawings, specifications or other written documents presented to Buyer in connection with the sale of such Goods to Buyer; (c) shall be merchantable, of new and best material, and fit for the purpose for which such Goods are intended; and (d) shall be free from all defects, including latent defects in workmanship, material, and design. In addition to the foregoing express warranties, the Goods purchased shall be subject to all warranties arising by operation of law. These warranties shall survive inspection, delivery, acceptance, and payment; shall run to Buyer, its officers, agents, employees, successors, assigns, customers, and users of the Goods; and shall not be deemed to be exclusive. Seller shall keep all non-public information of Buyer as well as the terms, conditions and transactions associated with this Purchase Order confidential at all times.
Compliance With Laws.

Seller warrants that the Goods have been and will be manufactured and sold in strict compliance with all applicable federal, state, and local laws, rules, regulations, and orders.
Cancellation.

Buyer may, by written notice to Seller, cancel the Purchase Order, or any portion of it, upon the occurrence of any of the following events (“Events of Default”): (a) Seller fails to perform any of its obligations under the Purchase Order or breaches a representation or warranty under these Terms and Conditions; or (b) Buyer in its reasonable opinion believes that Seller’s ability to perform the Purchase Order is in danger or impaired. In the event of cancellation of the Purchase Order by Buyer under this paragraph 11, Buyer shall have the rights and remedies set forth in paragraph 12 below, and Buyer’s sole liability to Seller shall be payment for conforming Goods completed and delivered to Buyer in accordance with the Purchase Order. Buyer may demand of Seller adequate assurance of due performance, and Buyer shall be sole judge of the adequacy of assurance given by Seller.
Rights and Remedies.

If an Event of Default occurs, Buyer shall, in addition to the right of cancellation, be entitled to all remedies for a breach of contract set forth in the UCC and all other remedies available at law or in equity. Additionally, Buyer may, at its option, elect any one or more of the following remedies, in any combination: (a) refuse to accept delivery of the Goods; (b) refuse to accept a substantial tender of substitute, conforming Goods; (c) return nonconforming Goods to Seller at Seller’s expense for a full credit and, at Buyer’s option, obtain replacement Goods on an expedited basis;(d) return late delivered Goods to Seller at Seller’s expense for a full credit; (e) recover any advance payments from Seller for undelivered Goods; (f) rework the Goods to make the Goods conform to the warranties and charge Seller for all expenses related to the rework; (g) use the Goods for a purpose other than the purpose originally intended and charge Seller for the amount by which the purchase price exceeds the price of Goods normally required for such alternative purposes; (h) have Seller repair or replace defective Goods at Seller’s expense and on an expedited basis; or (i) if defective Goods are repaired or replaced by Buyer or Seller, charge Seller for all costs and expenses of repairing or restoring non defective work or Goods disturbed as a consequence of repairing or replacing defective Goods. Buyer may exercise all remedies, successively or concurrently. NONE OF THE REMEDIES AVAILABLE TO BUYER HEREUNDER MAY BE LIMITED.
Attorney’s Fees.

In the event of a dispute between the parties with regard to the Purchase Order or these Terms and Conditions which results in litigation, the prevailing party shall have its attorneys’ fees, professionals’ fees, and costs paid by the losing party, and such sum may be added to any judgment entered in the litigation. A party’s right to the foregoing shall not merge with but shall survive the entry of judgment, and shall extend to appeals and collection.
Indemnification.

Seller assumes the entire responsibility and liability for and agrees to indemnify, defend and hold harmless Buyer, its officers, agents, employees, successors, assigns, customers, and users of the Goods from and against any and all losses, expenses (including without limitation, attorneys’ and other professionals’ fees), costs, damages (including special, consequential and incidental damages), demands, liabilities, suits, and claims in connection with or arising out of any actual or alleged personal injury (including death), or damage or destruction to property (including loss of use), or any other damage by reason of: (a) any act, error, or omission, whether negligent or not, of Seller or its agents, employees, suppliers, subcontractors, or consultants; (b) any defect, whether latent or patent, in any product of Seller sold to Buyer Order; (c) any failure of the Goods to comply with any warranty of Seller or applicable law; (d) any breach of the Purchase Order or these Terms and Conditions by Seller; and (e) any infringement of a third party’s patent, trademark, copyrights, or other intellectual property right.
Patents, Trademarks and Copyrights.

Seller represents and warrants that all Goods do not and will not infringe on any United States or foreign patent, trademark, copyright, or other intellectual property rights of a third party. If the Goods or any part of the Goods become the subject of a United States patent, trademark, copyright, or other intellectual property right infringement suit or proceeding, Seller promptly and at its own expense shall either: (a) procure for Buyer the right to continue use of the Goods; (b) replace the Goods with noninfringing Goods satisfactory to Buyer; or (c) modify such Goods in a way satisfactory to Buyer and its counsel so they become noninfringing.
Assignment.

Seller shall not assign, delegate or subcontract any of its rights or obligations under the Purchase Order without the prior written approval of Buyer. Any such assignment, delegation or subcontracting without Buyer’s prior written consent shall be void. Buyer may assign the Purchase Order at any time and without prior written consent of Seller.
Modification.

No modification of the Purchase Order shall be effective unless accepted in a written Change Order signed by an authorized representative of Buyer.
Severability.

If one or more of the provisions of these Terms and Conditions is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, such provision shall be modified or amended to the extent necessary to remove the invalidity, illegality, or unenforceability. If the amendment or modification of such provision is impossible, these Terms and Conditions shall be construed as if they never contained the invalid, illegal, or unenforceable provision, and such provision shall not affect any other provision of these Terms and Conditions.
Governing Law.

The Purchase Order and these Terms and Conditions shall be construed and enforced in accordance with the substantive and procedural laws of the Commonwealth of Pennsylvania, without regard to principles of conflicts of law, and without regard to rules of construction relating to which party drafted the Purchase Order or these Terms and Conditions.
Exclusive Jurisdiction.

Seller consents to the exclusive jurisdiction and venue of the courts of the Commonwealth of Pennsylvania, Bucks County, and the United States District Court for the Eastern District of Pennsylvania with respect to the enforcement of the Purchase Order and these Terms and Conditions, and Seller waives any objections to such jurisdiction and venue, including objection as to an inconvenient forum.
Waiver.

No claim or right arising out of a breach of the Purchase Order or these Terms and Conditions by Seller may be discharged in whole or in part by a waiver of the claim or right, unless the waiver is in writing signed by an authorized representative of Buyer. Buyer’s waiver or acceptance of any breach by Seller of any provisions of the Purchase Order or these Terms and Conditions shall not constitute a waiver of or an excuse for nonperformance as to any other provision nor as to any prior or subsequent breach of the same provision.
Entire Agreement.

The Purchase Order and these Terms and Conditions shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. The Purchase Order and these Terms and Conditions (including any Exhibits, which are incorporated herein by reference) constitute the complete and exclusive statement of the terms of the contract between the parties and the final expression of the terms of such contract, and shall supersede all prior and contemporaneous agreements, inducements or conditions, express or implied, oral or written. No course of prior dealings between the parties and no usage of trade shall be relevant to supplement or explain any term in the Purchase Order. Buyer’s acceptance or acquiescence in a course of performance rendered by Seller pursuant to the Purchase Order shall not be relevant to determine the meaning of this contract even though Buyer has knowledge of the nature of the performance and opportunity for objection.
Commercial Transaction.

Seller acknowledges, agrees, represents and warrants that the transactions contemplated by the Purchase Order and these Terms and Conditions are commercial transactions and not for personal, family, or household use.