Terms and Conditions
CKE Restaurants, Inc., by and through its wholly-owned subsidiaries, Carl Karcher Enterprises, Inc. ("CKE") and Hardee's Food Systems, Inc. ("HFS") (hereinafter individually or collectively referred to as "Buyer"), has a system for electronic transfer of Purchase Orders via facsimile. CKE and HFS will assign separate and distinct
Purchase Order numbers to each of their Electronic Purchase Orders. Upon receipt of an Electronic Purchase Order, suppliers will be authorized to ship the product and invoice CKE or HFS using the order's specified Purchase Order number.
Electronically transmitted Purchase Orders will be subject to the attached Terms and Conditions. However, the Terms and Conditions of any contractual agreement between Buyer and the supplier (hereinafter "Company") will remain binding and supersede those stated in the attached referenced Terms and Conditions.
Terms and Conditions
ACCEPTANCE: The goods and or services covered by this Agreement shall be furnished by Company subject to all the terms and conditions set forth in this Agreement, including the following, which Company, in accepting any purchase order hereunder, agrees to be bound by and to comply with in all respects, and no other terms or conditions shall be binding upon the parties unless hereafter accepted by them in writing.
ASSIGNMENT: No assignment or subcontract hereof shall be made by Company without the prior written consent of Buyer, and no delegation of any obligation or of the performance of any obligation by Company shall be made without the prior written consent of Buyer. Any attempted assignment or delegation shall be void and ineffective for all purposes unless made in conformity with this paragraph. Buyer may assign or subcontract its rights, duties and obligations hereunder upon written notice to Company. The terms shall inure to the benefit of, and be binding on, the successors and assigns of the parties.
CAPTIONS: Captions and titles of paragraphs contained herein are for convenience only, and shall not be construed to limit, expand or otherwise change the meaning of any provision hereof.
FORCE MAJEURE: Either party is excused from performance hereunder if such non-performance results from any acts of God, war, riots, acts of governmental authorities, or any other cause outside the reasonable control of the non-performing party. Both parties shall use their best efforts to terminate or cause the expiration of any Force Majeure as soon as practical following its occurrence.
GOVERNING LAW: This contract and all Release/Purchase Orders that may be issued hereunder shall be construed in accordance with, and governed by, the laws of the State of California, including the Uniform Commercial Code, without reference to laws or principles regarding choice of laws.
INDEMNIFICATION: Company shall indemnify, defend and hold harmless Buyer, Buyer and their parents, affiliates, subsidiaries and all of their respective officers, directors, employees, agents, representatives and stockholders, and any designee or customer of Buyer from and against any and all losses, claims, actions, damages, expenses or liabilities, including, without limitation defense costs and attorneys' fees, resulting from, arising out of or connected with any or all claims arising from (i) the use of the products supplied by Company and/or services provided hereunder, including, but not limited to, any claim for death or personal injury or damage or loss of property which shall have been caused or alleged to have been caused, in whole or in part, by any negligence or misconduct on the part of Company, its shareholders directors, officers, employees, contractors or agents, any defect in the materials or workmanship used to manufacture the products, or any claim under a theory of strict liability, or (ii) the breach by Company of any representation, warranty, covenant or obligation of Company hereunder. In the event any third party asserts any claim with respect to any matter as to which any guarantee or indemnity in this Agreement (or given pursuant to this Agreement) relate, the party against whom the claim is asserted (the "Indemnified Party") shall give prompt notice written to the other party(the "Indemnifying Party"), and the Indemnifying Party shall have the right at its election to take over the defense or settlement of the third party claim at its own expense by giving prompt notice to the Indemnified Party. If the Indemnifying Party does not give such notice and does not proceed diligently so to defend the third party claim within 30 days after receipt of the notice of the third party claim, the Indemnifying Party shall be bound by any defense or settlement that the Indemnified Party may make to those claims and shall reimburse the Indemnified Party for its expenses related to the defense or settlement of the third party claim. Nothing in this Agreement shall be construed to hold Company liable for any losses, claims, damages, expenses or liabilities including, without limitation, defense costs and attorneys' fees, to the extent such loss, claim, damage, expense or liability results from or arises out of Buyer's or Distributor's misconduct or negligence.
INDIVIDUAL ORDER TERMINATION: Buyer may at any time by written notice terminate any individual order in whole or in part if Company (i) fails to comply with any of the applicable terms and conditions of the order; (ii) fails to perform within the time specified (or if no time is specified, within a reasonable time); (iii) delivers any item that is not as specified; or (iv) so fails to make progress as to endanger performance of the order in accordance with its terms. If individual orders are terminated in whole or in part because of Company's failure to deliver acceptable products in accordance with the requirements and terms hereof, a mutually agreed upon arrangement would be made by both parties to ensure continued supply of order at no additional cost to buyer.
INSURANCE: Company shall furnish to the Buyer a current certificate of insurance, which shall include a thirty (30) day written notice of cancellation, evidencing the Company has automobile, comprehensive general liability, products liability and workers' compensation insurance or an equivalent occupational health and benefits plan throughout the period of performance of this contract with minimum limits as specified below. With the exception of workers' compensation, all policies shall include Buyer, its parent, affiliates, subsidiaries and franchisees as additional insureds.
LAWS AND REGULATIONS: The Company shall comply with all applicable laws, ordinances, rules and regulations including federal, state and municipal authorities and departments relating to or affecting Company and/or the manufacture, sale or use of the goods or services to be rendered hereunder, including without limitation Title VII of the Civil Rights Act, as amended from time to time, and shall secure and obtain any and all permits, licenses and consents as may be necessary in connection therewith.
PATENT, TRADEMARK AND COPYRIGHT PROTECTION: Company shall defend and indemnify Buyer, and its parents, affiliates and subsidiaries, and all of their directors, officers and employees and hold them harmless with respect to all patent, trademark and copyright infringement liability or expenses arising out of the use or sale of the goods covered hereunder, or any part(s) thereof, and after notice appear and defend at its own expense any such suits in law or equity, except such trademarks or copyrights as may be furnished to Company by Buyer for use in connection with the packaging of products pursuant to this Agreement. If Buyer is enjoined from use of the goods, Company shall, at Buyer's option, either procure for Buyer the right to continue using the goods, replace said goods with non-infringing goods or parts thereof, modify the goods so as to be non-infringing or, if Buyer elects, repurchase the goods at the contract price or terminate the order without further liability to Company.
SEVERABILITY AND CONSTRUCTION: Any provision used herein which is held invalid or unenforceable by any authority of competent jurisdiction shall be ineffective to the extent of such invalidity or unenforceability without invalidation or rendering unenforceable the remaining provisions hereof. The language used herein shall be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall be applied against either party.
SUBSTITUTIONS: No substitution of, nor alteration in any goods, component parts thereof, tooling, sources of raw materials, processes, or manufacturing sites may be made without the prior written, or FAX, consent from Buyer.
SURVIVAL: All warranties, representations, covenants and obligations of the parties hereunder shall survive the termination or expiration of this Agreement.
USE OF LOGOS AND MARKS: Company shall not use, in any manner whatsoever, any of the logos, trademarks, or service marks owned by Buyer or associated with Buyer restaurant system without the prior written consent of Buyer. Company expressly acknowledges Buyer exclusive right, title, and interest in and to such logos and marks, and agrees not to represent in any manner that Company has any ownership in Buyer logos or marks.
WARRANTY AND REGULATORY COMPLIANCE: Company warrants that all goods to be delivered hereunder will be of merchantable quality, free from any latent or patent defects, will strictly conform to all of Buyer specifications or samples in all respects and will be fit and safe for their intended use. Company also warrants that Company shall be in compliance with all applicable laws, regulations, rules and ordinances, and warrants that the goods shall comply with and shall not be misbranded or adulterated under any and all applicable federal, state and local laws, rules, ordinances and regulations (collectively "Laws"), including specifically those Laws governing health and food safety and the production, packaging, storage, distribution and sale of the goods.