Terms and Condtions

HILMAR STANDARD TERMS AND CONDITIONS OF PURCHASE

1. Terms of Purchase.

   1. These Hilmar Terms and Conditions of Purchase (these “Terms and Conditions”) are incorporated into and shall govern all purchase orders (each, a “Purchase Order”) by and between Hilmar Cheese Company, Inc. (or any affiliate specified in the Purchase Order) (collectively, “Hilmar”) and the entity identified as the seller, supplier, vendor, service provider, or other designation on the Purchase Order (“Seller”) for products, ingredients, parts, equipment, or other goods purchased (the “Products”) and/or services ordered (the “Services”) by Hilmar in the Purchase Order.
   2. These Terms and Conditions set forth the entire agreement, and supersede all prior agreements (if any), between Hilmar and Seller regarding the Products and/or Services. No amendment or modification of any provision of these Terms and Conditions is valid unless set forth in writing and signed by an authorized signatory of Hilmar. Hilmar is not bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to the provisions set forth in these Terms and Conditions and proposed by Seller in any invoice, shipping document, acceptance, confirmation, correspondence, or otherwise. Seller’s acceptance of a Purchase Order is expressly limited to these Terms and Conditions and the terms of the Purchase Order.
   3. A Purchase Order shall be deemed accepted by Seller upon the earliest of (i) Seller issuing an electronic confirmation or written acceptance of the Purchase Order, (ii) Seller’s commencement of work on the Products and/or Services subject to the applicable Purchase Order, and (iii) shipment of the Products and/or delivery of the Services subject to the applicable Purchase Order.
   4. If there is any conflict between the terms of any Purchase Order and these Terms and Conditions, the provisions of these Terms and Conditions will prevail unless the Purchase Order expressly states that all or certain provisions of the Purchase Order will prevail over these Terms and Conditions.
   5. Notwithstanding the foregoing, if a separate agreement is in effect between Hilmar and Seller and the agreement was signed by a duly authorized officer of Hilmar, then the terms of such agreement shall govern to the extent of any direct conflict with the provisions contained herein.
2. Packaging; Shipping; Title; Risk of Loss. 

   1. Any trailer, container, pallet, or other means used for the transportation or storage of Products shall be suitably constructed for food use, properly cleaned, and shall protect the Products against contamination and deterioration in accordance with the requirements of 21 C.F.R. § 110.80 and any other applicable good manufacturing practices. Each container or pallet must have printed on it a code (known to Hilmar) indicating the lot code, best buy date, and date and location of Product manufacture. Each pallet shipped by Seller shall contain only a single lot code of any Product.
   2. No charges will be allowed for packing, crating, or cartage unless expressly stated on the face of a Purchase Order. Packing sheets and original bills of lading or freight receipts shall show the Purchase Order number and shall be included with each shipment. If a shipment is not accompanied by a bill of lading, packing slip, or similar delivery document, Hilmar’s count and/or weight will be conclusive.
   3. Time is of the essence in performance of Seller’s obligations under any Purchase Order. Products must be delivered and Services must be completed on the date specified in a Purchase Order and Seller shall notify Hilmar within twenty-four (24) hours of receipt of a Purchase Order if Seller will be unable to meet such specified delivery date. If the Products are not adequately delivered and/or Services are not completed on the due date, in addition to its other rights and remedies, Hilmar may (as applicable) (i) terminate the Purchase Order in whole or in part without liability by notice effective when received by Seller as to Products not yet delivered or Services not performed, (ii) demand from Seller and promptly receive a return of any deposit and other monies already paid to Seller with respect to any rejected Products or Services, (iii) refuse to accept any subsequent delivery of the Products or Services Seller attempts to make, (iv) recover from Seller any expenditure reasonably incurred by Hilmar in obtaining the Products or Services in substitution from another provider, and/or (iv) claim damages for any additional costs, losses, or expenses incurred by Hilmar that are in any way attributable to Seller’s failure to adequately deliver the Products and/or Services on the due date. Moreover, if it becomes necessary for Seller to ship by a more expensive mode of transportation than specified in the applicable Purchase Order to meet the delivery date, any resulting increased transportation costs shall be paid by Seller unless the necessity for such rerouting or expedited handling has been solely caused by Hilmar.
   4. All Products shall be shipped DDP (Incoterms 2020) to the Hilmar location specified in the Purchase Order unless the Purchase Order expressly specifies otherwise. Notwithstanding any term (including Incoterms) to the contrary in any Purchase Order, title and risk of loss shall pass to Hilmar only upon delivery of the Products at Hilmar’s designated facility; provided, however, that if the Products are rejected by Hilmar as set forth below, title to and risk of loss of such Products shall remain at all times with Seller unless Hilmar agrees in writing to accept such Products that do not conform to the Purchase Order.
3. Purchase Order Changes; Product Changes; Resources. 

   1. Hilmar may, at any time prior to delivery, change the designs, specifications, payment methods, materials, packaging, time and place of delivery, and method of transportation specified in any Purchase Order. Seller will accept any such changes or immediately decline such changes in writing, provided that if a change increases or decreases the cost of performance, the parties will equitably adjust and modify the price for the Products.
   2. Seller shall inform Hilmar prior to any change to the Products, including without limitation, changes in composition, quality specifications, manufacturing processes, labeling, functionality, safety, manufacturing locations, and any suppliers or subcontractors. Upon notice of any change, Hilmar may cancel any Purchase Order. Any revisions to any Purchase Order must be in writing and approved by Hilmar.
   3. Unless expressly stated on the face of the Purchase Order that Hilmar is responsible for certain items, Seller (not Hilmar), at its sole cost and expense, will obtain all necessary materials, equipment, tooling, ingredients, personnel, and supplies to perform its obligations under the Purchase Order. If Hilmar chooses to provide Seller with any materials, equipment, or tooling in connection with the Purchase Order, (i) they are provided on an “as is, where is, with all faults” basis without any warranty of any kind (express or implied by Law) and Supplier assumes all risk associated therewith and must perform all safety checks on its own, (ii) they will remain the sole property of Hilmar, (iii) Seller will maintain them in good condition (normal wear and tear excepted), (iv) Seller will ensure they remain free of any liens or security interests, and (v) Seller will only use them in connection with the Purchase Order for Hilmar. Using materials, equipment, or tooling provided by Hilmar or using a supplier directed by Hilmar does not relieve Seller of any of its obligations under a Purchase Order or shift any liability from Seller to Hilmar.
4. Termination.

   1. Hilmar may cancel any Purchase Order for any reason or no reason with respect to any Products not yet delivered or Services not yet performed by notifying Seller (unless otherwise specified on the face of the Purchase Order). After Hilmar notifies Seller, Seller will take all reasonable steps to minimize costs due to Hilmar’s cancellation. As Seller’s exclusive remedy for cancellation, Hilmar will pay Seller for Seller’s unavoidable costs incurred before receiving notice of cancellation (less any savings realized from Hilmar’s cancellation or related mitigation efforts) that Seller can document to Hilmar’s reasonable satisfaction.  Under no circumstances is Seller entitled to an amount greater than what Hilmar would have paid absent the termination.
   2. Hilmar may terminate any Purchase Order, in whole or in part, in the event of (i) any default by Seller, (ii) Seller’s failure to comply with these Terms and Conditions, and/or (iii) Seller’s failure to comply with any specific terms and conditions contained in an applicable Purchase Order. Late deliveries, deliveries of non-conforming Products and/or performance of non-conforming Services, and/or failure to provide Hilmar, upon request, reasonable assurances of future performance, all are non-inclusive bases for Hilmar’s right to termination for cause. If Hilmar terminates a Purchase Order for cause, Hilmar shall not be liable to Seller for any amount, and Seller shall be liable to Hilmar for any and all damages sustained by reason of Seller’s default.
   3. Hilmar may terminate any Purchase Order, in whole or in part, as of the date specified in a termination notice if Seller (i) files for bankruptcy, (ii) becomes or is declared insolvent, (iii) is the subject of any proceeding(s) (not dismissed within 30 days) related to its liquidation, insolvency or the appointment of a receiver or similar officer for Seller, (iv) makes an assignment for the benefit of all or substantially all of its creditors, (v) takes any corporate action for its winding-up, dissolution, or administration, (vi) enters into an agreement for the extension or readjustment of substantially all of its obligations, or (vii) makes any material misstatement as to its financial condition.
5. Inspection and Acceptance of Products.

   1. All Products are subject to Hilmar’s inspection and approval, notwithstanding any payment. Hilmar may reject any Products that do not conform to these Terms and Conditions or the applicable Purchase Order. As set forth above, all Products rejected shall remain the property of Seller and shall be Seller’s responsibility. Hilmar has the option to return rejected Products to Seller at Seller’s sole expense. Seller shall not replace any Products rejected, except upon written instructions from Hilmar.
6. Payment, etc.

   1. The price of the Products and/or Services shall be as stated in the Purchase Order and, unless otherwise agreed in writing by Hilmar, shall include all other charges including but not limited to customs, duties, all sales, use, excise and property taxes, shipping, packaging, boxing, crating, labeling, storage, insurance and any other similar charges. If Hilmar submits a Purchase Order without a price specified, Hilmar must be notified of the price and confirm it in writing before a Purchase Order is binding upon Hilmar. No additional costs, fees, surcharges, or expenses of any kind may be added to the Purchase Order without the advance written consent of Hilmar.  Seller warrants that the prices for the Products and/or Services sold to Hilmar under any Purchase Order are as favorable as those currently offered to Seller’s customers for the same or similar Products and/or Services in similar quantities and type in compliance with all applicable laws, statutes, ordinances, orders, codes, regulations, rules, regulations, directives, and orders of any federal, state, local, municipal, or foreign governmental entity or agency (“Laws”).
   2. Seller shall present Hilmar with an invoice (containing the Purchase Order number and the type and quantity of Products shipped) for the amounts due and owing pursuant to the Purchase Order and Hilmar will pay all undisputed amounts on each proper invoice within the time period set forth in the applicable Purchase Order. Hilmar has no obligation to pay any amounts that Seller fails to invoice to Hilmar within 365 days after the amounts were incurred. An invoice must be issued for each shipment. Any applicable sales tax, duty, excise tax, use tax or other similar tax or charge for which Hilmar has not furnished an exemption certificate must be itemized separately on Seller’s invoices.
   3. Hilmar may deduct or set-off amounts owed by Seller or any of Seller’s affiliates to Hilmar against amounts payable under any Purchase Order.
7. Representations and Warranties of Seller. 

   1. Seller represents and warrants that all Products and their packaging will: (i) strictly comply with Hilmar’s specifications (or Seller specifications that Hilmar has approved if no Hilmar specifications are to be provided); (ii) be of new material, good quality and workmanship, and free from defects; (iii) not impart any unintended flavor, odor, or color to any Hilmar finished goods (whether from the Products delivered or their packaging); (iv) be fit for the use intended by Hilmar (including fit for human consumption where such is intended); (v) conform to all samples approved by Hilmar; (vi) be provided to Hilmar with good title, free and clear of any liens and encumbrances; (vii) be produced at a facility approved in advance by Hilmar; (viii) not cause exposure to any chemical determined under the California Safe Drinking Water and Toxic Enforcement Act of 1986 and its regulations and amendments (commonly known as Prop 65) to cause cancer or reproductive toxicity; (ix) not include banned substances or controlled substances over mandated concentration thresholds, including, without limitation, PFAS, BPAs, BHAs, BHTs, and PFOAs; (x) not infringe, nor will Hilmar’s use of them infringe, the intellectual property rights of any third party; and (xi) strictly comply with any other warranty, representation and/or covenant that Seller has expressly extended to Hilmar regarding the Products or Services. Seller will comply with applicable Hilmar Supplier Quality Expectations Manuals, security guidelines, and other guidelines that Hilmar broadly requires its suppliers to meet, which are incorporated herein by reference (including ingredient-specific and external manufacturing requirements). Seller acknowledges receiving the manuals and specifications, which are made a part of the Purchase Order. Such manuals and specifications may be changed by Hilmar upon notice to Seller, and Seller must comply with any changed manuals and specifications within 30 days of receiving notice. Seller will inform Hilmar immediately (and provide any relevant information and documentation) if Seller learns of any potential quality, safety or labeling problem with Products or any potential violation of Seller’s obligations in the Purchase Order. All warranties contained herein survive and are not affected by any testing or acceptance by Hilmar.
   2. Seller further represents and warrants that all Products that are foods (or packaging or other substances provided for use in or for foods) (i) will not, as of the date of delivery to Hilmar, (a) be adulterated or misbranded within the meaning of the U.S. Federal Food, Drug and Cosmetic Act of 1938, as amended (the “FFDCA”) and the U.S. Federal Fair Packaging and Labeling Act of 1966, as amended (together with the FFDCA, the “Acts”), or any other applicable federal or state food or drug Laws under which the adulteration and misbranding provisions are substantially the same as those found in the Acts; or (b) be or contain an article that may not be introduced into interstate commerce under the FFDCA; and (ii) will be manufactured in accordance with current good manufacturing practices, be fit for human consumption, and otherwise comply with all other applicable Laws. Upon the request of Hilmar, Seller will sign customary food guarantees provided by Hilmar.
   3. Seller represents, warrants, and covenants that Services provided under the Purchase Order (i) will be performed diligently and in a professional and workmanlike manner in accordance with the provisions of the Purchase Order, applicable Laws, high industry standards, and applicable specifications, and (ii) will not infringe, nor will Hilmar’s use of them infringe, the intellectual property rights of any third party. Seller will not create or permit any liens or third-party security interests affecting the Services or any deliverables provided in connection with the Services, or any materials or equipment Hilmar provides for the Services. Additionally, Seller must comply with all of Hilmar’s policies relating to the premises where Services are to be performed and must take all reasonable steps to ensure that Services are provided in a manner that does not restrict or prevent Hilmar from carrying on its business and that minimizes disruptions.
   4. Seller hereby assigns to Hilmar any warranties related to Products and/or Services, or if Seller cannot assign them, Seller agrees to make claims under them on Hilmar’s behalf at the request of Hilmar. Seller will ensure that its employees, contractors, subcontractors, and agents comply with the Purchase Order and, when at a Hilmar premises, the safety and security requirements of Hilmar.
8. Developments.

   1. If Seller creates, produces, or develops tangible or intangible work product or deliverables for Hilmar under the Purchase Order, makes modifications to the specifications or any process related to Products and/or Services specifically for Hilmar, or makes modifications to confidential information or intellectual property of Hilmar (“Work”), Hilmar owns such Work as a “work made for hire” from the moment of creation and such Work will be the sole and exclusive property of Hilmar without any need for accounting to Seller. To the extent that the Work is not considered works-made-for-hire, without reservation or limitation, Seller (on behalf of itself and its employees, service providers, contractors, and agents to) hereby assigns, transfers and conveys the Works to Hilmar, exclusively, irrevocably, and perpetually, together with all right, title and interest and any goodwill associated therewith throughout the world. Seller grants to Hilmar a non-exclusive, worldwide, irrevocable, royalty-free license, with the ability to license and sublicense and without a need for accounting, to make or use any and all of Seller’s intellectual property rights in connection with the use and utilization of the Works and improvements or derivatives related to the Works.
9. Indemnification.

   1. To the extent permitted by applicable Law, Seller shall indemnify, defend, and hold harmless Hilmar, its affiliates, and their respective employees, officers, directors, and agents from and against all claims, suits, liabilities, judgments, losses, damages, costs, and expenses (including reasonable attorneys’ fees and costs, whether incurred for Hilmar’s primary defense or for Hilmar’s enforcement of its indemnification rights hereunder and regardless of whether involving a third party, collectively, “Losses”) actually or allegedly arising out of, or in any way related to: (i) Seller’s breach of these Terms and Conditions and/or a Purchase Order; (ii) any performance of the Purchase Order; (iii) any negligence or willful misconduct of Seller or any of its agents, contractors, servants or employees; (iv) the shipment of the Products; and/or (v) any violation of Law by Seller. This indemnity will be in addition to any other rights and remedies to which Hilmar may be entitled to by Law or equity, but does not apply to the extent of Hilmar’s active negligence or willful misconduct. Hilmar has the right, but not the obligation, to assume and control the defense and/or settlement of such claim at Seller’s cost, and Seller shall cooperate in the defense of any such claim and provide such assistance and information as is reasonably necessary for defense of such claim. The obligations of indemnification set forth in this Agreement shall survive its termination or expiration.
10. Insurance. 

    1. During the term of any Purchase Order and for one year thereafter, Seller shall carry and maintain in full force and effect, and cause its agents to obtain and maintain, insurance coverages with insurance companies rated not less than A-, VIII (8) by A.M. Best or otherwise reasonably satisfactory to Hilmar of the following types and amounts:

    1. Workers’ Compensation Insurance for statutory limits and in accordance with the Laws of any applicable state.
    2. Commercial Auto Liability Insurance covering each vehicle whether owned, non-owned, hired, operated, or used by Seller and/or any agents while in, on or adjacent to Hilmar’s facility, with a combined single limit of not less than $1,000,000 for bodily injury and property damage as to any one accident, including an MCS-90 endorsement (if applicable).
    3. Commercial General Liability Insurance including coverages for contractual liability, third-party personal injury liability, and sudden and accidental pollution, with limits of not less than $1,000,000 combined single limits each occurrence.
    4. Excess Liability Insurance in excess of the insurance coverages required at (ii) and (iii) above, with a combined limit of not less than $2,000,000 per occurrence.
    5. If Seller is an architect, designer, engineer, software developer, auditor, consultant,  or other professional for which professional liability insurance is generally available, Professional Liability Insurance covering liability for damages caused by an error, omission, or negligence in the provision of the Products and/or the performance of Services, with limits of liability not less than $2,000,000 per claim.
    2. Seller shall cause “Hilmar Cheese Company, Inc. and its affiliates” to be named as an additional insureds (per CG 2010, 11 85 or its equivalent) on all policies of insurance secured by Seller (other than workers’ compensation insurance). Any additional insured endorsement that limits coverage to “ongoing operations” or otherwise does not grant additional insured status to Hilmar (and its affiliates) for products and completed operations IS NOT ACCEPTABLE.  Seller shall furnish Hilmar with certificates of insurance evidencing this coverage.  All policies shall be endorsed to provide that no material change or cancellation of the coverage shall occur until Hilmar has received thirty (30) days’ written notice.  Seller hereby waives (on behalf of itself and its insurers), and shall cause its insurers and those of the agents to also waive, any right of subrogation that they may have against Hilmar.  All insurance coverage required hereunder shall be primary to, and not in excess of or contributory with, any insurance that may be maintained by Hilmar.
11. Limitation of Liability.

    1. Hilmar IS NOT liable TO SELLER OR ANYONE CLAIMING BY OR THROUGH SELLER for any consequential, indirect, incidental, special, or punitive damages (including, without limitation, lost profits, LOSS OF USE, LOSS OF TIME, SHUTDOWN OR SLOWDOWN COSTS, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, DAMAGE TO GOODWILL OR REPUTATION, OR OTHER ECONOMIC LOSS), REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. In no event will Hilmar’s liability to Seller ARISING FROM OR RELATING TO A PURCHASE ORDER exceed the Purchase Order price for the Products OR SERVICES at issue. If Seller does not commence any action against Hilmar within one year from the date that A cause of action arises, THEN Seller waives its right to file an action or suit based thereon.
12. Recordkeeping.

    1. Seller shall prepare, maintain, and retain all records required to be maintained by applicable Laws. All such records shall be retained by Seller for a period of at least 3 years or longer if required by Law, or if requested by Hilmar in writing. Upon reasonable advance notice, Hilmar and its agents and representatives have the right, but not the obligation, to examine the books and records of Seller for the purpose of verifying Seller’s compliance with its obligations under these Terms and Conditions and any Purchase Order. Any such examination shall be during business hours in Seller’s principal offices, the facility where the Products and/or Services were produced, or such other location or method as Hilmar may reasonably request. Seller shall cooperate with Hilmar’s examination, which cooperation shall include making Seller’s officers available for discussion of Seller’s books, records and compliance with these Terms and Conditions and any Purchase Order. The examination shall be at Hilmar’s expense, provided that, in the event Seller has failed to perform its obligations under these Terms and Conditions, any applicable Purchase Order, or Laws, the expense of examination plus other damages incurred by Hilmar shall be paid by Seller. Hilmar also has the right, but not the obligation, to inspect any facility where the subject Products are produced or stored or Services rendered for the purpose of verifying compliance of such facilities with applicable Law, compliance with these Terms and Conditions and any Purchase Order, and compliance with Hilmar’s food safety, quality and other manufacturing and storage standards, practices and procedures. Seller will provide copies of such books and records as Hilmar may reasonably request, provided that Hilmar agrees to maintain any information contained in such books and records which is confidential and proprietary information of Seller in the same manner that Hilmar maintains its own confidential and proprietary information. Hilmar will not use any such confidential and proprietary information of Seller except as contemplated by these Terms and Conditions.
13. Recalls.

    1. Hilmar has sole discretion regarding all decisions relating to whether to institute an inventory retrieval, recall, or any other action to stop the distribution and/or sale of any products sold by Hilmar (a “Recall”). Seller shall cooperate with Hilmar in executing any Recall, including (i) providing all records that Hilmar may request and (ii) cooperating with any requests to communicate with local, state, federal or international government agencies concerning a potential or actual Recall. If a Recall is necessary (in Hilmar’s sole but reasonable discretion) due to Seller’s breach of these Terms and Conditions or a Purchase Order, then Seller shall be liable to Hilmar for all Losses associated with such Recall. If Seller voluntarily institutes a Recall on any Product or it is deemed necessary by a governmental entity to Recall any of the Products for any reason bearing on their quality, functionality and/or safety, Seller shall comply diligently with its Recall procedures and shall promptly notify Hilmar of such Recall. Seller shall be liable for all Losses associated with such Recall. Upon the request of Hilmar, Seller shall provide Hilmar with a copy of its Recall procedures. Except to the extent required by applicable Law, Seller will not contact any third parties or make any public statement regarding any investigation, notification, or Recall involving Hilmar or any Products or Services without the prior written consent of an authorized representative of Hilmar.
14. Confidentiality;Publicity.

    1. Seller, its employees, agents, and representatives, shall consider as Hilmar’s “Confidential Information,” all non-public information provided by Hilmar, all specifications or other documents prepared by Seller in connection herewith, the fact that Hilmar has contracted to purchase Products from Seller, and all other non-public information relating to any Purchase Order. Without Hilmar’s prior written consent, Seller shall not (i) disclose or use Confidential Information for any purpose other than performing any Purchase Order, (ii) announce, publicize, or discuss with third parties the subject matter of any Purchase Order, (iii) include Hilmar’s name or trademarks in any marketing materials, or (iv) disclose that Hilmar is Seller’s customer.
15. Miscellaneous. 

    1. All rights and remedies reserved by Hilmar in these Terms and Conditions will be cumulative and in addition to, and not in lieu of, any other remedies available at Law, in equity, or otherwise. Any rights of Hilmar not expressly granted herein are reserved by Hilmar.
    2. In the event of any adversarial proceeding(s) between the parties arising out of any Purchase Order, the prevailing party will be entitled to recover from the other party, in addition to any other relief awarded, all reasonable expenses the prevailing party incurs in such proceeding(s), including reasonable attorneys’ fees and expenses and court costs. For purposes of this section, “prevailing party” means: (i) in the case of the party initiating the enforcement of its rights or remedies, that such party recovered substantially all of its claims, and (ii) in the case of the party defending against such enforcement, that it successfully defended substantially all of the claims brought against such part. If no party is a “prevailing party” within the meaning of this section, then no party will be entitled to recover its costs and expenses from any other party.
    3. If any provision of these Terms and Conditions conflicts with the Law under which these Terms and Conditions are to be construed or is held invalid or unenforceable by a court of competent jurisdiction, that provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable Law.
    4. The completion or cancellation of a Purchase Order will not affect any rights and obligations hereunder that by their nature should continue to survive.
    5. All notices must be in writing and will be deemed given only when (i) hand delivered, (ii) one business day following the day sent by documented overnight delivery service to the party whom the notice is directed at its address indicated in the applicable Purchase Order or otherwise provided in writing, or (iii) sent by electronic mail to the party whom notice is directed at the electronic mail address specified in the applicable Purchase Order or otherwise provided in writing, provided, that if notice is provided to Hilmar under subsection (iii) herein, written confirmation of such notice shall also be provided to Hilmar as described in subsection (i) or (ii).
    6. These Terms and Conditions and the applicable Purchase Order collectively constitute the entire agreement of the parties.
    7. The Purchase Order does not create a partnership, joint venture, employment relationship, or other similar relationship between the parties and any of their respective employees. Each party is an independent contractor to the other party, has no authority to bind the other party, and is solely responsible for its respective employees, directors, officers, contractors, subcontractors, and agents.
    8. Seller may not assign, delegate, subcontract, or otherwise transfer the Purchase Order (or any portion of the Purchase Order) or any of its rights or obligations under the Purchase Order, without Hilmar’s prior written consent. Any attempted assignment, delegation, or transfer by Seller without Hilmar’s prior written consent will be void ab initio. If authorized by Hilmar in writing, Seller will ensure that all material terms of the Purchase Order pertaining to the subcontracting of the manufacture and/or supply of any Products or performance of Services are incorporated into any subcontract. Any permitted subcontracting will not relieve Seller of any of its duties, obligations, responsibilities and/or liabilities under the Purchase Order. Hilmar may freely assign all or any portion of the Purchase Order without Seller’s consent and will not be liable for any obligations under the Purchase Order that arise after the assignment. Any successors or permitted assigns will be bound by these Terms and Conditions and the terms of the Purchase Order.  For the purposes hereof, any change of control of Seller (i.e., when there is a change in the ownership of securities representing 50% or more of the combined voting power of Seller’s then-outstanding securities) constitutes a prohibited assignment hereunder.
    9. No failure by Hilmar to exercise any right hereunder will operate as a waiver thereof, nor will any waiver by Hilmar operate as a continuing waiver. No waiver is binding unless executed in writing by Hilmar.
    10. These Terms and Conditions and every Purchase Order and all matters arising from or relating to the same will be governed by and construed in accordance with the applicable Laws of the State of California, without giving effect to the conflict of Law principles thereof. Hilmar and Seller agree that the United Nations Convention on Contracts for the International Sale of Goods are specifically excluded from application to any Purchase Order. If Hilmar and Seller cannot resolve a dispute regarding a Purchase Order through good faith negotiation, each party irrevocably agrees that any legal action, suit, or proceeding brought by it in any way arising out of these Terms and Conditions or any Purchase Order must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the state courts of Stanislaus County, California or the federal courts located in the Eastern District of California, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the state and federal courts located in California, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. The parties irrevocably and unconditionally waive any objection to the laying of venue of any such action, suit, or proceeding brought in any such court and any claim that any such action, suit, or proceeding brought in any such court has been brought in an inconvenient forum.