TERMS AND CONDITIONS

Terms and Conditions related to Chobani, Inc. – Chobani ™ follow, including:

Terms of Use of This Website
Privacy Policy
Terms and Conditions Applicable to Chobani, Inc. Purchase Orders

Scroll down to find the applicable terms.

Terms of Use of This Website

PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING THIS WEBSITE (AS DEFINED BELOW). USING THIS WEBSITE IN ANY WAY INDICATES THAT YOU ACCEPT THESE TERMS OF USE. IF YOU DO NOT AGREE WITH THESE TERMS OF USE, THEN YOU MAY NOT USE THIS WEBSITE.

Acceptance of these Terms of Use.

Your use in any manner of the website located at http://www.chobani.com or of any other website, web page or other Internet platform offered by or through Chobani, Inc. (“Chobani”), or any of its parents, subsidiaries or affiliates, wherever or however offered, including without limitation, any page, application or platform offered through any social media website, (collectively, this “Website”) constitutes your acknowledgment that you have read, agree with and consent to be bound by all the terms and conditions set forth in these Terms of Use, and all other policies, rules, regulations, terms and conditions that otherwise appear on this Website. These Terms of Use are a legally binding contract between you on the one hand and Chobani on the other hand. These Terms of Use govern all use of this Website.

Chobani reserves the right to update or modify these Terms of Use at any time without prior notice to you. For this reason, Chobani recommends that you review these Terms of Use whenever you use this Website. Your continued use of this Website following any such change constitutes your agreement to follow and be bound by the updated or modified version of these Terms of Use.

Use Restrictions.

The content on this Website, such as text, graphics, images, photographs, illustrations, trademarks, trade names, service marks, logos and all other material (collectively, the “Materials”) are protected under laws of the United States of America and other countries. Unauthorized use of the Materials may violate copyright, trademark and other laws. Except as stated herein, none of the Materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means without the prior written permission of Chobani and/or its licensors. Subject to your full compliance with these Terms of Use, Chobani authorizes you to view the Materials on this Website and download a single copy of them, but only for your own lawful, personal and non-commercial use. You must retain all copyright and other proprietary notices contained in the original Materials on any copy you make of the Materials, but failing to do so shall not prejudice Chobani’s intellectual property rights. You may not sell or modify the Materials or reproduce, display, publicly perform, distribute or otherwise use the Materials in any way for any public or commercial purpose. Your use of the Materials on any other website or on a file-sharing or similar service for any purpose is prohibited.

You may not “mirror” any Materials contained on this Website or accessible through this Website without Chobani’s written permission.

Any rights not expressly granted herein to use the Materials are reserved by Chobani in full.

You may not use this Website (i) for any purpose that violates applicable federal, state or local laws, regulations or rules (collectively, “Applicable Law”) (ii) for any purpose that is prohibited by these Terms of Use, (iii) in any manner that could damage, disable, overburden or impair this Website, (iv) in any manner that may interfere with any other party’s use and enjoyment of this Website or (v) if you are under 13 years of age. You may not attempt to gain unauthorized access to this Website through hacking, password mining or any other means.

Chobani reserves the right, in its sole and absolute discretion, to terminate your access to this Website, or any portion thereof, at any time, for any reason or for no reason at all, without any notice, prior or otherwise.

Submitted Content.

When you upload or otherwise submit any information, materials or other content whatsoever to or through this Website (“Submitted Content”), you represent and warrant that such Submitted Content (i) does not contain any material that is pornographic, lewd, obscene, defamatory, profane, offensive or misleading, (ii) does not violate any intellectual property rights of any third party, including, without limitation, third party copyrights, trademark rights or rights of publicity, (iii) does not otherwise violate Applicable Law and (iv) does not otherwise contain any inaccurate or untruthful information.

By uploading or otherwise submitting Submitted Content to or through this Website, you, personally, and on behalf of any subjects therein, including, without limitation, your child, if applicable, grant to Chobani a non-exclusive, fully paid-up, perpetual, worldwide license (the “License”) to use all of the content of Submitted Content, including likenesses, whether in whole or in part, whether composite or distorted, for purposes of illustration, art, promotion, advertising, trade, sale or any other purpose whatsoever. The License also includes, without limitation, the right to post Submitted Content, or excerpts thereof, on this Website and websites other than this Website, including, without limitation on any social media, blog or similar website.

If you post, upload and/or submit any Submitted Content on this Website, you will not: (i) harass, defame, intimidate or threaten another user of this Website; (ii) interfere with the rights to privacy of any another user of this Website; (iii) distribute chain letters, surveys or contests; (iv) post any material that is defamatory (i.e., disparaging to the reputation of an individual or business); (iv) post any material that is obscene or indecent; (v) post any trademarks, logos or copyrighted material without the authorization of the owner thereof; (vi) post any materials that may damage the operation of a computer (such as a virus, worm or Trojan horse); and/or (vii) advertise or sell any goods or services.

If Submitted Content includes any video and/or photographic images or pictures of your child, you further agree that, without limitation, the License includes a grant of an unrestricted right and permission to use, re-use and publish the video and/or photographic images or pictures of your child, in which your child may be included intact or in part, composite or distorted in character or form (the “Images”), without restriction as to changes or transformations in conjunction with your child’s own or a fictitious name, or reproduction thereof in color or otherwise, made through any and all media now or hereafter known for purposes of illustration, art, promotion, advertising, trade, sale or any other purpose whatsoever. Your permission given herein is hereby acknowledged to constitute written consent under Applicable Law including, without limitation, New York Civil Rights Law Section 50. You also permit the use of any printed material in connection therewith. You hereby relinquish any right that you, and/or your child, may have to examine or approve the use of the Images regardless of the form and type, the material that may be used in conjunction therewith or the use to which they may be applied. Further, you represent and warrant to Chobani that: (i) all persons who appear in any Images have given you their express consent (or if a minor who is not your child, you must have the permission of their parent or legal guardian) to submit the Images for unlimited, royalty-free use, exhibition and other exploitation in any manner and in any and all media, whether now existing or hereafter discovered, throughout the world, in perpetuity (and you agree to provide evidence of such permission in writing if requested by Chobani in its sole and absolute discretion); (ii) there are no claims for payment of any kind, including, without limitation, for royalties or residuals; and (iii) no persons who appear in any Images has any approval or consultation rights or any rights of participation arising out of any use, exhibition or other exploitation of any Images.

The grant of the License and all rights and permissions associated thereto is binding on you, and your child (if applicable), and your, and your child’s (if applicable), heirs, legal representatives and assigns.

You hereby represent and warrant that you have all rights necessary to grant the License and all rights and permissions associated thereto to Chobani. IF YOU DO NOT WISH TO OR CANNOT LEGALLY GRANT SUCH RIGHTS AND PERMISSIONS TO Chobani YOU MAY NOT SUBMIT ANY MATERIALS TO Chobani.

Disclaimer of Warranties.

THIS WEBSITE, INCLUDING ALL CONTENT, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THIS WEBSITE, IS PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, Chobani MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER REGARDING THE CONTENT ON THIS WEBSITE OR THE MATERIALS, INFORMATION AND FUNCTIONS MADE ACCESSIBLE THROUGH THIS WEBSITE, FOR ANY HYPERTEXT LINKS TO THIRD PARTY SITES OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION THROUGH THIS WEBSITE OR ANY LINKED SITE. Chobani FURTHER DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE INFORMATION CONTAINED ON THIS WEBSITE IS COMPLETE, ACCURATE OR UP TO DATE. Chobani DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THIS WEBSITE OR ANY MATERIALS OR CONTENT CONTAINED HEREIN WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED OR THAT THIS WEBSITE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF ANY VIRUSES OR OTHER HARMFUL COMPONENTS.

Limitation of Liability.

IN NO EVENT SHALL Chobani, OR ANY OF ITS SUBSIDIARIES, PARENTS AND AFFILIATED COMPANIES, OR ANY OF THEIR OFFICERS, DIRECTORS, MANAGERS, MEMBERS, SHAREHOLDERS, EMPLOYEES AND AGENTS, OR ANY OF THEIR HEIRS, SUCCESSORS, REPRESENTATIVES AND ASSIGNS (EACH AN “Chobani PARTY” AND COLLECTIVELY, THE “Chobani PARTIES”) BE LIABLE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE – WHETHER ACTIVE, PASSIVE OR IMPUTED – LIBEL, DEFAMATION, INVASION OF PRIVACY, VIOLATION OF APPLICABLE LAW, INCLUDING, WITHOUT LIMITATION, NEW YORK CIVIL RIGHTS LAW SECTION 51, OR BREACH OF PUBLICITY OR OTHER RIGHTS), STRICT LIABILITY OR OTHER THEORY, TO YOU OR ANY OTHER PERSON FOR ANY DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES) ARISING OUT OF OR IN CONNECTION WITH ANY USE OF, INABILITY TO USE, OR RESULTS OF USE OF, THIS WEBSITE OR ANY CONTENT ON THIS WEBSITE, EVEN IF AN Chobani PARTY OR REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOU ARE DISSATISFIED WITH THIS WEBSITE, THE CONTENT HEREON OR THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THIS WEBSITE.

IF ANY PORTION OF THIS LIMITATION IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN Chobani’S TOTAL LIABILITY WILL BE THE LESSER OF (I) THE COSTS ASSOCIATED WITH ENTERING A CONTEST ASSOCIATED WITH THIS WEBSITE IF RELATED THERETO OR (II) ONE HUNDRED DOLLARS (US$100).

THIS LIMITATION OF LIABILITY SHALL BE BINDING UPON YOU AND YOUR CHILD (IF APPLICABLE), AND YOUR AND YOUR CHILD’S (IF APPLICABLE) HEIRS, LEGAL REPRESENTATIVES AND ASSIGNS.

Indemnification.

TO THE MAXIMUM EXTENT POSSIBLE UNDER APPLICABLE LAW, YOU AGREE TO INDEMNIFY AND HOLD HARMLESS EACH OF THE Chobani PARTIES FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, THREATS, SUITS OR PROCEEDINGS AND PAY ALL RESULTING LOSSES, LIABILITIES, DAMAGES, COSTS OR EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND EXPENSES) ARISING OUT OF, RESULTING FROM, OR RELATED TO YOUR BREACH OF THESE TERMS OF USE AND/OR YOUR MISUSE OF THIS WEBSITE.

Security.

Chobani reserves the right to fully cooperate with any law enforcement authorities or court order requesting or directing Chobani to disclose the identity of anyone posting any e-mail or other messages, or publishing or otherwise making available any other user-generated content that is believed or alleged (reasonably or not) to violate these Terms of Use or any Applicable Law.

Submission of Ideas or Suggestions.

Chobani is always improving its products, services and this Website. If you have ideas or suggestions regarding improvements or additions to Chobani’s products, services or this Website, Chobani would like to hear them; however, any submission will be subject to these Terms of Use. Under no circumstances will any disclosure of any idea or suggestion or related material to an Chobani Party be subject to any obligation of confidentiality or expectation of compensation. By submitting an idea or suggestion or any related material to Chobani or any Chobani Party, you are waiving any and all rights including, without limitation, intellectual property rights, that you may have in the idea or suggestion or any related material and are representing and warranting to such Chobani Party that the idea or suggestion or any related material are wholly original with you, that no one else has any rights in the idea or suggestion or any related material and that all Chobani Parties are free to implement the idea or suggestion and to use the related material if so desired, as provided or as modified by any Chobani party, without obtaining permission or license from any third party.

Governing Law; Legal Jurisdiction.

If you make any claim against Chobani or any other Chobani Party, you agree in advance that in the event you assert any such claim, it will be governed by the following rules:

All aspects of the claim, whether procedural or substantive, shall be governed by the laws of the State of New York, except conflicts of laws that would cause another jurisdiction’s laws to apply and unless the dispute is governed by federal law other than federal law governing conflicts of law, in which case federal law shall govern.
Prior to commencing any legal action against any Chobani Party, you must provide each such Chobani Party with at least thirty (30) days prior written notice of any claim, including a reasonably detailed description of your claim and such Chobani Party’s responsibility, together with your request for what you would like such Chobani Party to do about your claim.
The statute of limitations applicable to any claim other than a claim for personal injuries shall be one (1) year, measured from the date you first visited this Website.
You agree that any claim brought by you, or on your behalf, shall be exclusively venued in either the United States District Court for the Northern District of New York or the Supreme Court of the State of New York in Chenango County (the “Agreed Forums”). You agree that in the event that you bring any claim in any other court or forum, or in the event that a claim is commenced on your behalf in any other forum, such claim shall be transferred to one of the Agreed Forums.
You waive any claim that the Agreed Forums are inconvenient for resolution of disputes and claims you may have and agree to forego any claim to transfer the venue for dispute resolution.
You agree to bring any claim individually and not through any class action.
To the extent that it may be relevant, you agree that your use of this Website and any transaction arising in connection with such use shall be deemed to have occurred in the State of New York.

If any provision of these Terms of Use is found to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be reformed only to the extent necessary to make it enforceable and the other terms of these Terms of Use shall remain in full force and effect. You cannot transfer your rights or obligations under these Terms of Use to anyone without Chobani’s written permission and any attempted assignment without Chobani’s written permission shall be null and void and of no effect whatsoever. Chobani’s failure to enforce any provision of these Terms of Use does not waive Chobani’s right to enforce the same provision in the future. Any headings contained in these Terms of Use are for informational purposes only, but are not themselves enforceable provisions of these Terms of Use.

PRIVACY POLICY

Chobani, Inc., its direct and indirect subsidiaries, parents and affiliates (collectively, “Chobani”, “us” or “we”) are concerned about online privacy issues and want you to be familiar with how we collect, use and disclose any personal information that individually identifies you (e.g. your name, address, phone number, e-mail address). As used in this privacy policy (the “Privacy Policy”), personal information means any information about an identifiable individual. This Privacy Policy explains our online information practices and the choices you, as a visitor to any web page, web site application or platform offered through any social media website operated or provided by Chobani related to its United States operations (collectively, “Chobani Websites” and each is an “Chobani Website”) can make about the collection and use of your personal information. We will only collect, use and disclose your personal information in accordance with this Privacy Policy.

WHAT PERSONAL INFORMATION DO WE COLLECT?

We may collect personal information from you when you voluntarily provide it to us through a number of features available on or through an Chobani Website. For example, we may ask you to provide personal information if you:

ask to receive online information from us, such as e-mail newsletters or e-mail updates;
participate in a review, survey, a consumer research panel, or similar type of activity; and/or
otherwise participate in features of an Chobani Website that ask for personal information.

In addition, if you otherwise request any information, service or other offering from us, you may be required to provide your contact or other information in order for us to process your request.

Your participation in any of these activities is voluntary and we will only use the personal information that you provide for the purposes for which it was collected. For example, we may use the personal information you provide to: respond to your questions or comments; fulfill your requests; provide service(s) and/or products to you; identify your needs and/or preferences; administer and manage our business operations; or otherwise provide or improve our products and/or services.

You will always have the opportunity to “unsubscribe” from receiving e-mail or other communications at any time.

If you contact one of our consumer service representatives through an Chobani Website, we may ask you for personal information such as your name, address, phone number, or e-mail address so that we can respond to your questions or comments.

HOW DO WE GATHER DATA BY AUTOMATIC MEANS?

Sometimes we use cookie technology, web beacons and other similar devices on Chobani Websites to enhance functionality and navigation for our visitors and portions of Chobani Websites may use statistical tools that may be operated by third party providers (collectively, “Analytical Tools”) such as Google Inc. Information tracked through these mechanisms includes, but is not limited to: (i) your IP address; (ii) the type of web browser and operating system being used; (iii) the pages of Chobani Websites that you visit; and (iv) other websites you may have visited before visiting an Chobani Website. If you wish to disable cookies, refer to your browser help menu to learn how to disable cookies. Please note that if you disable cookies, you may be unable to access some customized features on Chobani Websites. Cookies do not collect or contain your personal information.

Internet tags, graphic tags and similar web beacon type functions allow us to count the number of users who have visited a particular web page or to access certain cookies. We may use web beacons on Chobani Websites to count users and to recognize users by accessing our cookies. Being able to access our cookies allows us to personalize and improve your experience with Chobani Websites. We may also include web beacons in HTML-formatted e-mail messages that we send to determine which e-mail messages were opened. Like cookies, web beacons do not collect or contain your personal information.

In the case of Analytical Tools, the information generated by the cookies and/or web beacons about your use of Chobani Websites (including your IP address) may be transmitted to and stored on servers located outside of the United States of America, by the applicable third party provider of an Analytical Tool. This information will be used for the purpose of evaluating your use of Chobani Websites, compiling reports on Chobani Websites’ activity and providing other services relating to Chobani Websites activity and Internet usage. The third party providers of Analytical Tools may also transfer this information to other third parties where they are required to do so by law, or where such third parties process the information on their behalf.

By using an Chobani Website, you consent to the processing of data about you by third party providers of Analytical Tools used in connection with such Chobani Website in the manner and for the purposes set out above.

HOW DO WE SHARE PERSONAL INFORMATION?

Except as described below, we do not sell, transfer or otherwise disclose to third parties the personal information that we collect on Chobani Websites. At times, we provide your personal information to third parties who provide services on our behalf. These entities may use the information solely in conjunction with the specific services they provide for us (e.g., responding to your questions or comments or investigation of a complaint).

We reserve the right to transfer any personal information we have about you in the event that we sell or transfer all or a portion of our business or assets to a third party. Further, we reserve the right to disclose any personal information as needed if such information is requested by law enforcement agencies or if we are requested to do so by law, regulation, court order, or by a government entity. We may also disclose your personal information to third parties if we have reason to believe that disclosing such information is necessary to: (i) conduct investigations of possible breaches of law; (ii) cooperate in any legal investigation; (iii) identify, contact, or bring legal action against someone who may be violating any terms of use of any Chobani Website; or (iv) to protect our rights, privacy, safety or property. Lastly, we may disclose your personal information for any other purpose to which you specifically consent.

LINKS TO OTHER WEBSITES

Chobani Websites may contain links to other websites operated by third parties. Any such websites are wholly independent from our websites, and we have no control over those websites, their operators, their security, their privacy policies or their practices. Before providing any of your personal information on any such other website, you should review the policies on privacy and security for such website.

INTERACTIVE FEATURES/SOCIAL MEDIA

If you use social and/or other interactive features that may be available on an Chobani Website (e.g. Facebook or Twitter feeds, comment sections, chat rooms, etc.), you should know that when you voluntarily disclose your personal information using social media features or in interactive areas that may be available on Chobani Websites where personal information can be posted, the information can be collected and used by other Internet users. This may result in unsolicited messages from other posters or parties. We undertake no obligations as to the security of information you voluntarily post using social media features or in interactive areas that may be available on Chobani Websites.

CHILDREN’S PRIVACY

We are committed to protecting the privacy of children and we do not knowingly solicit personal information from children under the age of 13. If a child has already provided us with personal information, his or her parent or guardian may contact us to have this information deleted.

UNITED STATES ONLY

Chobani Websites are intended for the use by residents of the United States of America only. All matters relating to Chobani Websites are governed by the laws of the State of New York and the federal laws of the United States of America applicable therein. If you are located outside of the United States of America, and you contact us, please be advised that any personal information you provide to us may be transferred to other jurisdictions where our servers are located and that by submitting information, you explicitly authorize its transfer.

HOW DO WE PROTECT PERSONAL INFORMATION

The security of your personal information is important to us. We maintain commercially reasonable administrative, technical and physical safeguards (varying depending on the sensitivity of such information) designed to protect against unauthorized use, disclosure or access of the personal information we collect on through Chobani Websites. Unfortunately, no data transmission over the Internet can be guaranteed to be fully secure. As a result, while we are committed to protecting your personal information, we cannot ensure or warrant in any way the security of any information you provide to us.

CHANGES TO THIS PRIVACY POLICY

We reserve the right to change or replace this Privacy Policy at our sole discretion at any time. Please check back from time to time to ensure that you are aware of any updates or changes in this Privacy Policy. Your continued access or use of any Chobani Websites after any such changes constitutes your acceptance of the Privacy Policy as revised.

HOW TO CONTACT US

We welcome your feedback. If you have questions, comments or concerns about our Privacy Policy, or would like to do any of the following:

see personal information that you have already sent us so that you can correct or update or delete your personal information from our files;
if your child under 13 has sent us personal information, delete that personal information from our files;
ask that we not send you mailings or otherwise contact you; or
report any violation of this Privacy Policy.

Please contact us either by e-mail (contact@chiobani.com) or by mail at:

Chobani, Inc.

Attention: Chief Financial Officer

147 State Highway 320

Norwich, New York 13815

PURCHASE ORDER TERMS AND CONDITIONS

TERMS AND CONDITIONS OF PURCHASE

THE FOLLOWING TERMS AND CONDITIONS ARE HEREBY INCORPORATED BY REFERENCE IN EACH ORDER ISSUED BY BUYER. Seller shall be deemed to accept these Terms and Conditions (1) by acknowledging the Order, (2) by accepting payment from Buyer or (3) by shipping to, or performing services for, Buyer. THESE TERMS AND CONDITIONS SHALL TAKE PRECEDENCE OVER ANY OTHER TERMS OR CONDITIONS, AND NO CONTRARY, ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS SHALL BE BINDING ON BUYER UNLESS EXPLICITLY ACCEPTED IN WRITING BY AN AUTHORIZED REPRESENTATIVE OF BUYER, LISTED AS SUCH AT CHOBANI.COM. IF THESE TERMS AND CONDITIONS ARE SENT IN RESPONSE TO AN ORDER OR OFFER FROM SELLER, THE ACCEPTANCE OF SUCH ORDER OR OFFER BY BUYER IS EXPRESSLY MADE CONDITIONAL ON THE ASSENT OF SELLER TO THE CONTRARY, ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS STATED HEREIN. NO ACTION OR INACTION BY BUYER, SUCH AS RECEIPT OR USE OF GOODS OR SERVICES PURCHASED, SHALL CONSTITUTE AN ASSENT TO TERMS OTHER THAN THE TERMS HEREIN.

1. definitions:

For purposes of these Terms and Conditions, (i) “Buyer” means Chobani, Inc., a New York corporation, together with any parent, subsidiary or affiliate of Chobani, Inc., (ii) the “Order” means the applicable sales order, sales offer, purchase order, purchase offer or similar document to which these Terms and Conditions are attached, are incorporated by reference, and/or are deemed applicable, (iii) “Seller” means the other party to the Order and any entity controlled by, controlling, under common control with or affiliated with such person or entity and (iv) the “Product” or the “Products” mean any products, equipment, goods and/or services identified in the Order, including among others any containers or packaging materials in which such products are stored and/or shipped.

2. purchase:

Buyer is purchasing the Products covered by the Order at the quantities stated therein.
Seller shall not change the Order nor ship or deliver non-conforming Products without first obtaining the written consent of Buyer.
All performance of services under the Order shall be deemed a work for hire, and Buyer shall have all right, title, and interest in Products (including among others concepts, designs, digital art work and creative work) developed, created or delivered under the Order.

3. PRICE and payment terms:

Buyer shall pay to Seller the price for the Products (the “Purchase Price”) that shall not be higher than that appearing on the face of this Order. If no price appears on the face of this Order, the price shall be the price from the most recent order between Buyer and Seller, if any, and shall not be higher than that last quoted by Seller. The Purchase Price is not subject to increase. If any taxes or excises have been paid by Buyer and any part thereof is hereafter refunded to Seller, Seller shall immediately pay Buyer the amount of such refund. Any reduction in price of any Product covered by this Order made subsequent to the issuance of this Order by Buyer shall be applicable hereto.
Seller warrants that the Purchase Price and all terms of purchase and any allowances available shall be in full compliance with all federal, state or local statutes, regulations, rules, orders, rulings or decrees (“Applicable Law”), including, but not limited to, the Robinson-Patman Act.
No extra charges of any kind, including among others charges for boxing, testing, installation, packing or cartage, will be allowed unless specifically agreed to in writing by the Buyer.
Invoices will be issued as provided in the Order, or if not so specified, upon completion of delivery of Products covered by the Order to Buyer. All invoices will be payable 30 days after receipt by Buyer.

4. DELIVERY and risk of loss:

All costs for shipping and handling shall be billed to and paid by Seller, and shipping terms are F.O.B. Buyer’s location, unless specifically approved by Buyer in writing. The method of shipment shall be in accordance with the Order or, if the Order is silent on the method of shipment, as selected by Buyer. Title and risk of loss shall pass to Buyer only upon receipt by Buyer. Each package of the Products (i) shall contain an itemized packing slip and (ii) shall be properly prepaid for shipment so as to meet the carrier’s requirements if delivered by a carrier rather than by Seller. Seller shall fully insure all shipments delivered by carrier up to the total price of the Products.

5. INSPECTION and rejection rights:

Each and every Product delivered (whether not paid for, partially paid for or fully paid for) is subject to inspection, testing and approval by Buyer at any place that Buyer may reasonably designate before Buyer’s acceptance. Upon receipt of the Products, Buyer shall have the opportunity to conduct adequate tests to determine whether or not the Products conform to this Order. Use of the Products for the purpose of testing shall not constitute an acceptance of the Products. Buyer shall have the right to inspect or to be present at any test performed on the Products prior to shipment but no such inspection or observation of any test shall be regarded as an acceptance of the Products or vary Buyer’s right to conduct tests upon and after receipt of the Products.
If this Order covers the design and/or construction of Products by Seller, the review or approval of Seller’s drawings or other material by Buyer shall not relieve Seller of responsibility for errors in design, construction, or performance nor constitute a waiver of Seller’s responsibility for complying with the specifications, warranties and other conditions of the Order.
Payment for any Product shall not be deemed an acceptance thereof.
In addition to any other rights it may have, Buyer expressly reserves the right, without liability hereunder, to refuse acceptance of and/or reject Products that (i) do not conform in all respects to (A) any instructions contained in or the terms and conditions of the Order, (B) any applicable specifications, drawings, blueprints and data or (C) the warranties contained herein and, if broader, Seller’s warranties whether such warranties be expressed or implied notwithstanding Buyer’s knowledge of a non-conformity, its substantiality or the cause of its discovery, (ii) are shipped contrary to instructions of Buyer, (iii) are in excess of the quantities provided in the Order, (iv) are not shipped in containers stated in the Order or, if not therein stated, such standard containers used in the industry or (v) that violate Applicable Law. Buyer shall have no obligation to preserve rejected Products for Seller for more than two days (or reasonable shorter period in the case of perishable Products) after notification to Seller of such rejection (which notification may be by email, telephone, fax, or other means).
With respect of any rejected Products, Buyer may, in Buyer’s sole discretion:

hold such Products for Seller’s instructions at Seller’s risk upon notification to Seller (which notification may be by email, telephone, fax, or other means); provided, however, Buyer shall have no obligation to preserve rejected Products for Seller for more than two days (or reasonable shorter period in the case of perishable Products) after such notification to Seller,
return such Products to Seller at Seller’s expense, or
require replacement of such Products without additional cost to Buyer.

Rejected Products shall not to be replaced without written authorization from Buyer.
Seller shall pay the cost of inspection and testing Products rejected for cause and all return transportation, storage and other charges thereon.
Exercise by Buyer of its rights under this section shall in no way prevent the exercise of other rights provided by law. Acceptance of Products by Buyer does not waive or limit any right or remedy of buyer related to Products that do not conform to the warranties provided herein.

6. WARRANTIES, no limitation of liability:

By accepting this offer, Seller warrants that, notwithstanding Buyer’s inspection and acceptance of the Products, the Products delivered under the Order will:

conform to the Order and will be in full and strict compliance with the description, with the applicable specifications, drawings, and data and with Seller’s approved samples,
be free from defects including among others in design, material and workmanship (including damage due to unsatisfactory packaging by Seller),
be fit for their intended purpose and use by Buyer and be merchantable, in addition to any other implied warranties available under the New York Uniform Commercial Code (the “UCC Warranties”),
if intended for consumption, be fit for human consumption, be of good quality, including, but not limited to, of good taste, texture, smell and coloring, and must be in compliance with Kosher requirements,
comply, both when the Products are in their final form and at all stages of the Products’ production, with all Applicable Law including, but not limited to, the Federal Food, Drug and Cosmetics Act, and all federal, state, and local requirements such as those of the U.S. Department of Agriculture, U.S. Food and Drug Administration, and New York State Department of Agriculture and Markets,
conform to recognized commercial standards of quality and function,
be free from any actual or claimed patent, copyright, trademark or proprietary right infringement, and
be ones to which Seller has unencumbered title, and
be ones which were produced in compliance all applicable federal, state and local laws and regulations, including, without limitation, the Fair Labor Standards Act (including, without limitation, Section 6.7 and 12 thereof and the regulations and orders of the Administrator of the Wage and Hour Division issued under Section 14 thereof), the Occupational Safety and Health Act of 1970, the Toxic Substance Control Act (including, but not limited to, the requirement that every chemical substance delivered appear on the list of chemical substances as complied by the Administrator, Environmental Protection Agency of have been submitted by Seller for inclusion on such list); Executive Order 11246 including promptly supplying buyer with all certifications required thereunder upon request; the applicable requirements of the Vietnam Era Veterans Readjustment Assistance Act of 1974; Section 503 of the Rehabilitation Act of 1973; and all standards and regulations issued under any of the foregoing.

Any contrary terms and conditions or other attempts by Seller to disclaim the UCC Warranties or any other warranties stated herein shall be null and void and of no force and effect whatsoever.
Seller agrees that the warranties contained herein shall:

be in addition to, but not limited by, manufacturers warranties and any warranties either implied by law or expressly made by Seller other than hereunder,
survive acceptance and payment by Buyer, and
continue for the longest of (A) the period provided by law, (B) one year from the date of acceptance by the Buyer or (C) the guarantee period set forth in the Order or the applicable plans and specification.

In addition to any other rights and remedies to which Buyer may be entitled, upon receiving written notice from the Buyer that any Products do not conform to the warranties contained herein:

at Buyer’s request Seller shall replace the Products at no cost to Buyer, and should Seller request the return of the non-conforming or detective Products, all costs of handling and freight charges incurred for such return shall be paid by Seller, and
if the non-conformity or defect is discovered after installation, Seller shall pay the cost of removal and replacement with proper Products plus the cost of making good all work damaged or destroyed by or as a result of the non-conforming or defective Products or the removal or replacement of same.

Any purported limitation of liability set forth in any document heretofore or hereafter delivered by Seller, or otherwise, shall be of no force or effect.

7. TIME OF essence:

Buyer’s schedules are based upon the agreement that the Products will be delivered to Buyer by the dates specified on the Order. Time is therefore of the essence. If delivery is not completed within the time specified herein, or within a reasonable time if no time has been specified, Buyer may without liability, in addition to its other remedies, cancel the Order by notice effective when received by Seller as to Products not yet completely shipped, purchase substitute items elsewhere and charge Seller with any loss incurred and reject the portion of Products received. Unless otherwise agreed in writing by Buyer, Seller shall not make material commitments or production arrangements in excess of the amount or in advance of the time necessary to meet the delivery schedule. Products shipped to Buyer in advance of the schedule may, at the Buyer’s sole discretion, be rejected or returned to Seller at Seller’s expense. Any provision herein for delivery of items by installment shall not be construed as rendering the obligations of the Seller severable. The acceptance of late or defective deliveries of the Products shall not be deemed a waiver by Buyer of its right to cancel this order or its right to refuse to accept further deliveries of the Products.

8. INDEMNIFICATION:

Seller shall protect, defend, indemnify and hold harmless Buyer from and against any and all suits, claims, actions, debts, damages, costs charges and expenses (including without limitation all court costs and attorneys fees arising out of the enforcement of this indemnification obligation), and against all liabilities, losses and damages of any nature whatsoever that Buyer shall or may at any time sustain or be put to by reason of, related to, or arising, directly or indirectly, from or in connection with Seller’s performance or failure to perform hereunder, the Seller’s breach of its warranties or obligations hereunder, Seller’s violation of Applicable Law, or the act or failure to act of Seller or its employees, agents or independent contractors. If required by Buyer, Seller shall execute and comply with the further requirements contained in the “Indemnification and Insurance Agreement” separately provided and incorporated herein by reference.
Seller shall defend, indemnify and hold Buyer, its users and customers harmless from any and all claims, damages, expenses, including courts costs and attorney fees and against all liabilities which arise, directly or indirectly, out of any claim that any Products or part thereof furnished pursuant to the Order constitutes an infringement of any patent, copyright, trade secret, or other proprietary right.

9. WORK ON BUYER’S OR ITS CUSTOMER’S PREMISES; INSURANCE:

If Seller’s work under the Order involves operations by Seller on the premises of Buyer, Seller shall purchase and maintain insurance to defend and indemnify Buyer and its owners, officers, directors, employees and agents against liability for claims which may arise out of or result from Seller's operations on the premises, including, but not limited to, comprehensive general liability insurance, automobile insurance, workers’ compensation insurance and umbrella/excess insurance. Coverage in amounts satisfactory to Buyer shall be maintained without interruption throughout Seller's performance of work on the Property. Buyer shall be given thirty (30) days prior written notice of the cancellation, reduction, or non-renewal of any policy of insurance required to be maintained by Seller. Seller shall cause its insurers to deliver to Buyer evidence of the insurance coverage required hereby prior to commencement of work or upon demand by Buyer at any time. Such evidence shall confirm that Buyer and its members, officers, directors, employees, and agents are named as additional insureds on Seller’s liability insurance policies.

Buyer’s contractor Safety Pledge is incorporated herein by reference. Seller will abide by the Safety Pledge, and willful material violations will subject Seller to OSHA referral and or contract termination.

10. independent contractor:

The relationship created by these terms and conditions is that of an independent contractor. Nothing contained in these terms and conditions shall be construed to constitute either party as an employee of the other, nor shall either party have any authority to bind the other in any respect, it being intended that each party shall remain an independent contractor responsible for its own actions.

11. CHANGES:

Buyer shall have the right to make changes in the Order at any time by a notice in writing to the Seller. If such changes cause an increase in the amount due under the Order or in the time required for its performance, a separate Order or change shall be issued in a writing signed by both Buyer and Seller. Any claim for adjustment shall be deemed waived unless asserted by the Seller in writing within ten (10) days from receipt by Seller of the change. Nothing contained in his clause shall relieve the Seller from proceeding without delay in the performance of the Order as changed.

12. ASSIGNMENT, SUBCONTRACTING and beneficiaries:

No right or interest in the Order shall be assigned by Seller without the written permission of the Buyer and no delegation of any obligation owed by Seller shall be made without written permission of Buyer. Any attempted assignment or delegation shall be wholly void and totally ineffective for any purpose. Buyer expressly reserves the right to approve Seller’s subcontractors, but any such approval shall not relieve Seller from any obligation hereunder. The Order including these Terms and Conditions are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Order including these Terms and Conditions.

13. TERMINATION:

If Seller ceases to conduct its operations in the normal course of business (including inability to meet its obligations as they mature) or any proceeding under the bankruptcy or insolvency laws is brought by or against Seller or a receiver for the Seller is appointed or applied for, or an assignment for the benefit of creditors is made by Seller, or if an action under any law for the relief of debts is taken with respect to Seller, in addition to any other legal or equitable right Buyer may terminate the Order without liability except for deliveries previously made or for Products covered by the Order then completed and subsequently delivered in accordance with the terms of the Order.

14. CANCELLATION:

Buyer reserves the right to cancel the Order in whole or in part:

without cost to Buyer, in the event the Products do not conform to warranties made by Seller in the WARRANTIES section (except that Buyer may direct Seller to provide conforming Products in accordance with such section)
without cost to Buyer, in the event the Products are not approved by Buyer’s architect, engineer or other applicable third party (except that Buyer may direct Seller to provide conforming Products in accordance with the “WARRANTIES” section), and
without cause, at any time, in which case Buyer’s sole liability shall be for the payment of a reasonable amount for services performed, goods accepted or goods in the process of manufacturing prior to cancellation. Any Products paid for shall become Buyer’s property. If any Product ordered is a standard product not made to order, however, the Order or the applicable portion thereof is subject to cancellation by notice from Buyer prior to shipment, in which event Buyer shall have no liability to Seller whatsoever.

15. MODIFICATION and WAIVER:

The Order together with these terms and conditions is intended by the parties as the final expression of their agreement and is also intended as a complete and exclusive statement of the terms of such agreement. No course of dealings between the parties nor any trade usage shall be relevant to supplement or explain any terms used herein, no alteration or modification of the provisions hereof nor any waiver or renunciation of any right or claim accruing to Buyer shall be binding unless it is in writing and signed by an authorized representative of the Buyer (see Buyer’s website for authorized representatives). No failure or delay in exercising any right or remedy hereunder shall constitute a waiver thereof. No waiver of any performance required under the Order shall be deemed a waiver of future compliance with all of the terms hereunder.
The default terms of the New York Uniform Commercial Code and of all other laws of the State of New York (the “Default Terms”) that would otherwise apply to the Order shall apply to the Order but only to the extent that the Default Terms do not conflict with or limit Buyer’s rights and remedies under these Terms and Conditions.

16. COSTS OF ENFORCEMENT:

In the event that Buyer retains legal counsel and/or commences legal proceedings in the course of enforcing or in order to enforce its rights hereunder, Seller shall, upon demand, reimburse Buyer for all charges and expense, including court costs and attorneys fees, which Buyer pays or incurs thereby.

17. GENERAL:

If the Order is given pursuant to an existing contract to which Buyer has expressly agreed in writing, it is also subject to the terms of such contract. In the event of any conflict with the provisions hereof, the terms of this Order shall control unless this Order or the contract specifies otherwise.
Buyer shall be entitled at all times to set off any amount owing at any time from Seller to Buyer against any amount payable at any time by Buyer in connection with the Order.
Seller shall not reserve a security interest in any Products shipped to Buyer.
The obligations, indemnities and covenants contained in these Terms and Conditions shall survive the delivery and acceptance of the Products.
Any provision of these Terms and Conditions that is invalid or unenforceable shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions hereof.
The Order including these Terms and Conditions shall be shall be interpreted, construed, governed by and enforced in accordance with the laws of the State of New York without reference to any conflict of laws principles that would cause another jurisdiction’s laws to apply. Any suit, action or proceeding arising out of, or with respect to, the Order including these Terms and Conditions shall be brought in the courts of Chenango County, New York or in the United States District Court for the Northern District of New York, and Buyer and Seller accept the exclusive jurisdiction of those courts for the purpose of any suit, action or proceeding.