PURCHASE ORDER TERMS & CONDITIONS of COCA-COLA BOTTLERS’ SALES & SERVICES COMPANY LLC (including its wholly owned subsidiary, Coca-Cola Business Services North America LLC (collectively, “Company”)
1. Agreement. These terms together with the attached or referencing document are referred to as the Agreement. If the Agreement is not under a master agreement, this Agreement is the entire agreement between the parties. If this Agreement is under a master agreement, this Agreement will be considered a statement of work, project statement, order or whatever other document is required by the master agreement and the terms of the master agreement will prevail in the event of a conflict between the master agreement and this Agreement.
2. Termination
(a) Termination by Company. Company may terminate this Agreement upon written notice to Supplier: (i) for cause, if Supplier breaches any provision of this Agreement and fails to cure such breach within ten (10) days after receiving written notice of the breach; (ii) for cause, at any time upon the insolvency of Supplier or in the event of a proceeding in bankruptcy by or against Supplier, or for the appointment of a receiver or trustee or any assignment for the benefit of creditors of Supplier; or (iii) without cause upon at least thirty (30) days’ written notice to Supplier. Upon the effective date of any termination of this Agreement, Supplier will immediately discontinue performing Services hereunder and will promptly return to Company all Company data, records, or other materials, including all copies, related to this Agreement and deliver to Company all work in progress, including incomplete work. Company will not be liable to Supplier upon any termination of this Agreement, provided that Company will pay for Services performed up to the effective date of termination or conforming Goods ordered prior to the effective date of termination.
3. Ordering
(a) Supplier agrees to provide all services, equipment, and personnel necessary to perform the work as described in this Agreement (collectively, the “Services”) or supply the products as described in this Agreement (the “Goods”). This Agreement does not commit Company to utilize the Services of Supplier for any minimum number of projects, or to purchase any minimum amount of Goods.
(b) Ordering. From time to time during the Term, Company will submit orders to Supplier setting forth the Services or Goods that will be provided to Company under the terms of this Agreement.
4. Pricing. Unless otherwise agreed in writing between the parties, all Pricing shall remain firm and effective throughout the Term. Supplier warrants that Pricing is complete and agrees no additional charges, fees, or surcharges of any kind are allowed, except as expressly agreed in writing by Supplier and Company. Unless otherwise required by Applicable Law, Supplier will pay all taxes, including customs duties, excise charges, fees, or other charges, other than applicable sales tax, which may be required or levied by any local, state, or federal government because of the sale, transportation or delivery of the Goods or Services. Sales or use taxes required to be collected by Supplier will be specifically identified on the same invoice as the taxable Goods or Services. Supplier will not collect sales or use taxes if Company has provided an exemption or resale certificate.
5. Payment. Payment will be made forty-five (45) days after the receipt of invoice, except for amounts disputed in good faith (electronically or otherwise). No payment by Company shall be deemed an acceptance, and Company shall have the right to recover any amounts paid in error.
6. Warranty
(a) Warranty. All warranties are independent, and each will be construed and interpreted without reference to any other warranty. Supplier hereby represents and warrants to Company and its designees: i. that Supplier will comply with applicable laws (including national, state, regional, local, environmental, and international trade laws, and regulations), rules, regulations, statutes, treaties, codes, permits, certificates, orders, and licenses guidelines, ordinances and administrative requirements promulgated by relevant competent authorities and/or other governmental or regulatory authority that may apply to the Goods or Services (“Applicable Laws”);
ii. that, with respect to any Goods, (A) such Goods are supplied hereunder are of merchantable quality, free from defects in design, materials, and workmanship, and for Company’s intended purpose, to the extent made known to Supplier;
iii. that, with respect to Services, (A) Supplier has the experience and ability in the fields and related disciplines necessary to perform all required Services with a high standard of quality; (B) the Services supplied hereunder will be performed in a professional and workmanlike manner and in accordance with the terms of this Agreement, including the Exhibits attached hereto (if any); (C) Supplier will provide all equipment, materials and personnel necessary to perform the Services; (D) that all personnel performing Services shall be and remain employees of the Supplier and that Supplier shall be responsible for the hiring, training, and supervision of all such employees and that Supplier will take all appropriate measures to verify that every employee of Supplier that will perform Services is legally eligible to work in the United States of America, including executing and maintaining a federal Form I-9 for all employees performing Services, such Form I-9 to be made available to Company upon request; and
iv. that the individual executing this Agreement on behalf of Supplier has the full and complete authority to enter into and fully perform this Agreement (collectively, subsections (i) – (iv), the “Warranty”).
(b) Limitations of Warranties. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT (INCLUDING ITS EXHIBITS), SUPPLIER EXPRESSLY DISCLAIMS ALL WARRANTIES AND GUARANTEES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
(c) Remedies for Warrantable Defects in Performance. If Company gives Supplier written notice of Supplier’s non-compliance with the Warranty, then without limitation of Company’s other remedies with respect thereto or otherwise hereunder, and within ten (10) days of its receipt of such notice, and at Supplier’s sole cost and expense, and at Company’s option, Supplier will: (i) reperform the Services or replace the Goods, as applicable, and pay all expenses associated with such reperformance or replacement, (ii) reimburse Company any incremental costs incurred by Company to have the Services reperformed by a third-party or to replace the Goods with products from a third party, or (iii) provide Company with a pro rata credit of Pricing paid for the Goods or Services that failed to meet the requirements of this Agreement.
7. Indemnification. (a) Supplier hereby agrees to, at its own cost and expense, defend, indemnify and hold harmless Company, and its affiliates, subsidiaries, parent, officers, directors, employees, representatives, agents, successors and assigns (collectively, the “Indemnified Parties”) from and against all claims, losses, liabilities or expenses of any kind (including reasonable attorneys’ fees and disbursements) and damages, whether for the death of or bodily injury to any person whomsoever or for any other injury, loss or damage of any kind (“Losses”) resulting from: (i) any breach or alleged breach of this Agreement by Supplier, its agents, affiliates, employees, officers or directors, (ii) a breach of the Warranty; or (iii) by reason of the negligent act, omission, or willful misconduct of Supplier or its employees, agents, officers, directors, or subcontractors in connection with this Agreement. (b) Intellectual Property. Supplier warrants that the Goods and/or Services supplied hereunder, and subsequent use of such Goods or Services by Company, do not infringe any U.S. or foreign nation patent, copyright, or other intellectual property rights of any third-party. Upon becoming aware of any claim or suit in which any such infringement is alleged, the party that is aware will promptly notify the other party. Supplier will be permitted to control the defense or settlement of any such allegation of infringement and Company will provide Supplier with such reasonable assistance in the response and prosecution of any defense as Supplier may reasonably request, at Supplier’s sole expense. If the Goods or Services are deemed to infringe any U.S. or foreign nation patent, copyright, or other intellectual property rights of a third party, Supplier will, at its own expense, procure for Company the right to continue using such Goods or Services. If Supplier enters into any settlement or compromise of an allegation of infringement that would materially impair the rights or increase the costs of Company to use the Goods or Services as contemplated hereunder, Company will have the right to terminate this Agreement without any liability or obligation to Supplier.
(c) Ownership of Intellectual Property. Company and Supplier will each maintain ownership of their own pre-existing intellectual property. Unless otherwise agreed in a separate written agreement, Company or their assignee will have exclusive title and ownership rights (including all intellectual property rights or moral rights) in all works, ideas, concepts, plans, creations, deliverables, modifications, or enhancements produced or developed at the request of Company during the Term.
8. Modification of Goods or Services. Supplier will not implement any change or modification to the Goods or Services without prior written notice to Company and providing Company reasonable opportunity to reject such changes. If Supplier does so without such notice, Supplier will be liable to Company for any resulting damages, costs, and expenses. Company will have the right, in its sole discretion, to modify or change the Services at any of the Locations receiving Services upon written notice to Supplier.
9. Force Majeure. Neither Company nor Supplier shall be liable for any delay or failure to perform any term herein to the extent timely performance becomes impossible as a direct result of a FM Event, provided the party experiencing the FM Event shall (a) provide the affected party with prompt written notice with the full details of the cause relied upon and the likely duration of delay or non-performance and (b) use all reasonable efforts to limit the effect of such delay or non-performance on the affected party and take all reasonable steps to recommence performance of its obligations as soon as possible. “FM Event” means the unforeseeable occurrence of (i) war or terrorist activity, rebellion, revolution, or nuclear accident; or (ii) damage or destruction to property caused by act of God, in each case other than where caused, allowed, or abetted by the party seeking to claim a FM Event. If a FM Event lasts longer than twenty (20) days, then upon written notice, Company may terminate this Agreement.
10. Insurance. Supplier will furnish evidence of its insurance coverage in a form reasonably acceptable to Company upon request. Such insurance should be with reputable insurance carriers giving full and comprehensive coverage both in amount and risks in respect of Supplier’s liabilities under this Agreement and will not be cancelled or amended without 30 calendar days’ prior written notice to Company.
11. Confidentiality. During the Term, each party will use reasonable care to protect the confidentiality of the other party with at least the same measures it would use to protect its own similar information, and agrees that it will not (a) use Confidential Information for any purpose other than performance hereunder, (b) disclose Confidential Information to any person (except employees or agents on a need-to-know basis where such persons are advised of these obligations of confidentiality) unless such disclosure is authorized by the disclosing party, or (c) disclose Confidential Information as required by a court or judicial order without first informing the disclosing party (if legally permissible) and cooperating with it if it will contest such disclosure. “Confidential Information” means all data and information submitted to or processed, developed, amended, modified, or enhanced by a party in connection with performance under this Agreement and any other information that should reasonably have been understood (due to legends or other markings, the circumstances of disclosure or the nature of the information itself) to be proprietary and confidential information of Company.
12. Personal Data. If Supplier performs any operation or set of operations on any personal information (as defined by applicable laws) which Supplier accesses or acquires from Company, which Company provides to Supplier, or which Supplier collects or acquires on behalf of Company, Supplier must promptly alert Company and must agree in writing to Company’s standard data processing terms, a copy of which will be provided to Supplier before Supplier performs such operations on personal information.
13. Notices. All notices, responses, offers and other communications hereunder or in connection with the transactions contemplated hereby (“Notices”) will be in writing and will be between Supplier and Company. Any Notices will be deemed given when actually received. Notices may be sent by recognized courier service, mail, or electronic mail, and will be sent to the addresses below in the signature blocks.
14. General
(a) Governing Law; Remedies. This Agreement, and all matters arising directly or indirectly from this Agreement, including tort claims, will be governed by, and construed in accordance with the law of the State of Georgia without giving effect to the conflicts of laws provisions or principles thereof. The United Nations Convention on Contracts for the International Sales of Goods will not apply to this Agreement. Except as otherwise provided herein, no remedy conferred by any specific provisions of this Agreement to Company is intended to be exclusive of any other remedy available to Company, and each and every such remedy is cumulative and in addition to any other remedy given to Company hereunder or existing at law, in equity, by statute or otherwise. The election of any one or more remedies by Company will not constitute a waiver of the right to pursue other available remedies.
(b) Non-Waiver; Amendment. No waiver by either party under this Agreement is effective unless in writing, identified as a waiver to this Agreement and signed by an authorized representative of each party. Waiver by either party of any breach of any of the terms of this Agreement, or any failure to enforce the same, will not in any way affect, limit or waive the right of a party to thereafter enforce or compel strict compliance to that or any other term, provision, or condition hereof. Except as otherwise specifically provided herein, this Agreement may not be modified or amended, except in writing signed by Company and Supplier.
(c) Independent Contractor. Supplier is an independent contractor solely responsible for its own employees, not in partnership or in a joint venture with Company or an agent or employee of either and will not hold itself out as or give any person reason to believe that it is an agent or employee or otherwise under the control of Company. Supplier shall not enter into any contract or commitment for Company.
(d) Subcontractors. To the extent that Supplier uses a subcontractor for the performance of Services or provision of Goods under this Agreement, Supplier will be responsible to Company for the subcontractor’s actions to the same extent as if Supplier itself performed pursuant to the terms herein. Supplier shall be solely responsible for its own employees and subcontractors and for making all payments to and for its employees and subcontractors, including those required by law. Company will not be liable for any debts or liabilities of Supplier or Supplier’s subcontractors.
(e) No Benefits. Supplier acknowledges and agrees that neither it nor any of its employees, subcontractors or agents shall be entitled to any benefits provided to the employees of Company, including any workers’ compensation benefits, or any medical, unemployment, vacation, incentive, or pension benefits. Supplier further acknowledges and agrees that it is solely responsible for providing workers’ compensation insurance coverage and all other legally required benefits to any persons performing under this Agreement.
(f) Assignment; Successors and Assigns. Except with prior, express written consent of Company, Supplier shall not (i) assign or transfer this Agreement or any interest herein in whole or in part (even with the transfer or series of transfers of a majority of the stock or assets of Supplier), (ii) undertake any transaction or series of transactions which would result in an effective transfer of this Agreement or any interest therein, or (iii) sublicense or assign any rights or obligations hereunder in whole or in part to any third party or parties without the prior, express, written consent of Company, such consent to not be unreasonably withheld. Because this clause is considered a material part of the bargain between the parties, any attempted assignment, transfer, undertaking, or sublicense, without such prior consent is null and void and, at the option of Company, will have the effect of terminating this Agreement. Company will have the right to assign or otherwise transfer this Agreement, in whole or in part, to an affiliate of Company with advanced written notice to Supplier. This Agreement will be binding upon and inure to the benefit of Company and Supplier and their respective successors, permitted assignees and legal representatives.
(g) Severability. If any term herein is held by a court of law of competent jurisdiction to be invalid, illegal, or unenforceable in any respect, it will be ineffective only to the extent of such invalidity, illegality, or unenforceability without invalidating the remainder of such terms or this Agreement, which will be construed as if such invalid, illegal or unenforceable term had never been contained herein.
(h) Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, and all of which taken together will constitute one and the same instrument. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
(i) Captions; Electronic. The captions, headings and arrangements used herein are for convenience only and do not in any way affect, limit or amplify the terms herein. An electronic signature of any party on the signature page to this Agreement will be considered to have the same binding legal effect as an original signature.
(j) Publicity. Without the prior written approval of Company, Supplier will not (i) use in advertising, publicity or otherwise the name, trademarks, trade names, service marks, logos, symbols, images trade dress or any other similar identifiers of Company, or The Coca-Cola Company (“TCCC”) or any of their affiliates, or refer to the existence of this Agreement in press releases, advertising or other materials distributed to prospective customers or (ii) publish or use any advertising, sales promotion or publicity matter relating to the Services wherein the name or trademarks of TCCC, Company or their affiliates, are mentioned, or their identity implied.
(k) Survival. The Warranty, Indemnification, Intellectual Property, and Confidentiality Sections of this Agreement and any additional provisions which by law or by their nature, sense, and context and/or express terms should survive, will so survive.
(l) Terms Generally; Interpretation. The recitals above are incorporated herein by reference. Except to the extent that the context otherwise requires, in this Agreement: (i) when a reference is made to a Section or Exhibit, such reference is to a Section of or an Exhibit to this Agreement; (ii) all references to “days” are to calendar days; (iii) the words “include”, “includes” or “including” (or similar terms) are deemed to be followed by the words “without limitation”; (iv) the words “herein” or “hereunder” are deemed to mean this Agreement and (v) “will” and “will not” are expressions of command, not merely expressions of future intent or expectation.
(m) Entire Agreement. This Agreement and the Exhibits referenced herein and attached hereto (which are incorporated herein by reference) sets forth the entire understanding of Company and Supplier with respect to the subject matter hereof. This Agreement supersedes all prior oral or written negotiations, understandings, agreements between Supplier and Company, or any other party or entity that will be receiving Goods or Services during the Term. Printed terms and/or conditions included on forms used by Supplier or Company in connection with purchases and sales hereunder (including purchase orders and order acknowledgment forms) do not constitute a part of this Agreement and will not apply to transactions under this Agreement. If there is conflict between this Agreement and its Exhibits, this Agreement will control with respect to its subject matter except to the extent it expressly states that Exhibits control.
Last Revised: August 12, 2021
