This Covers the Purchase of Product for Re-Sale by Mexico Foods, LLC (“El Rancho”)
1 – Each and every El Rancho Purchase Order (“PO”) shall constitute an offer only and it is not a confirmation or acceptance of any prior or contemporaneous offer, proposal, or agreement. Acceptance of El Rancho’s PO is expressly limited to the terms set forth therein. El Rancho shall only be bound by the terms of its PO. Acceptance of El Rancho’s PO is expressly limited to its terms (including the terms herein), which may not be contradicted, added to, or varied in any way or by any manner or method. Acceptance of El Rancho’s PO as written and delivered by El Rancho (including the terms herein), and any agreement formed by El Rancho’s PO, may not be conditioned upon or contain any different or additional terms, whether contained in a verbal communication, an invoice, confirmation, e-mail, website, letter, or other writing, posting, conduct, course of dealing, custom, method, trade usage, or otherwise. Notice is hereby given that any terms in addition to or different from the terms of El Rancho’s PO are by this notification expressly objected to and expressly rejected. Shipment or other arrangements for delivery of the product(s) identified in the PO by the Seller shall constitute an acceptance of El Rancho’s PO on its terms, as shall the execution (signing) of the PO by the Seller. The contract formed by El Rancho’s PO, if accepted, is intended as a final, complete, and exclusive statement of its terms and conditions, and cannot be varied or changed, except by a future writing signed by a duly authorized agent by all parties to the contract. No employee or representative of El Rancho, except a Corporate Officer of El Rancho, is authorized to waive, delete, change, alter, excuse or otherwise modify or waive any of these “Purchase Order Terms,” and then only in a signed writing. Any attempt by any other employee or representative to do so shall be null and void.
2 – Time is of the essence in the contract formed by the acceptance of El Rancho’s PO. If delivery of items ordered therein is not completed by the time set forth in El Rancho’s PO, or within thirty (30) days, whichever is less, El Rancho reserves the right (but not the obligation), without liability, in addition to all of its other rights and remedies, to terminate such contract as to items not yet delivered, or in its entirety.
3 – All products shipped for delivery must be of equal or better quality than the quality of the sample(s) previously provided. All product expiration dates, code dates, and production dates must be noted on the invoice and packing slip(s). The invoice and packing slip(s) must identify the expiration date of all products shipped.
4 – Each case shall contain products of the same manufacture and/or expiration date.
5 – For deliveries to the L Bodega warehouse (Flower Mound, TX), shipments or deliveries must adhere to Exhibit A. The driver must unload the truck, separate and palletize product, even if by hand, and attach pallet tags. All products that arrive with more than one code date, expiration date, production date, size, color, flavor, scent, case assortment, inner pack, style, formula or consistency must be listed separately. If any products are delivered with a case pack different from that which is listed on the PO, all differences must be noted at the time the delivery appointment is made. El Rancho reserves right to refuse unloading of trucks until El Rancho receives a complete and itemized packing slip for each delivery consistent with this section. Seller has full responsibility for any delays caused thereby. El Rancho is not responsible for any charges associated with shipments made without a delivery appointment or for deliveries made other than at the scheduled date or pursuant to Exhibit A.
6 – For deliveries to any specific El Rancho store location(s), shipments or deliveries must adhere to pre-determined and mutually agreed upon terms including, but not limited to, orders, units and delivery windows, subject to the relevant El Rancho store location’s receiving hours. Deliveries should not be made to specific El Rancho store locations without prior approval and confirmation details by El Rancho. El Rancho is not responsible for any charges associated with shipments made without a delivery confirmation details or for deliveries made other than at the scheduled date.
7 – If El Rancho does not receive all of the product ordered under the PO within the specified date, El Rancho has the option but not the obligation to cancel all or any part of the PO and/or return to Seller at Seller’ s expense, or make available for pick-up by Seller at Seller’ s expense, all or any part of the product identified in the PO. If any of the conditions of the PO are not complied with, El Rancho has the option, in addition to any other remedies, to cancel all or any other parts thereof and to return or make available for pickup all or any part thereof at Seller’s full expense.
8 – Any and all product sent in excess of those ordered by El Rancho in its PO may be retained or, at El Rancho’s option, returned by El Rancho to Seller at Seller’ s expense, or made available for pick-up by Seller at Seller’ s expense.
9 – El Rancho reserves the right to deduct excess transportation charges incorrectly calculated by the Seller.
10 – Seller shall bear the risk of loss (and time periods for payment terms do not commence) until and unless shipment is received in full and in equal or better condition than the sample at the La Bodega warehouse.
11 – Seller is responsible for the payment of transportation charges regardless of whether or where “FOB” is identified in El Rancho’s PO or in any other document, unless expressly stated otherwise in the PO.
12 – Terms are based upon receipt of product or invoice date whichever is later.
13 – By accepting El Rancho’s PO and by shipping the products identified in its PO, Seller hereby represents and warrants that the products to be furnished hereunder are and will be: (1) in conformity with all required rules, laws, and regulations, (2) produced, labeled, and identified in compliance with all applicable federal, state, and local laws, rules, and regulations including, without limitation, all applicable rules and requirements of the Consumer Products Safety Commission (CPSC), Environmental Protection Agency (EPA), Food & Drug Administration (FDA), and the departments of Weights & Measures, (3) free from any and all liens, rights, or claims of any other third parties, with clear title passing to El Rancho at the time of delivery, (4) safe, defect free, and fit for their stated and intended purpose, and (5) not infringing on any patent, trademark, copyright, or other proprietary rights of any third party. Failure to adhere to this Section shall be a material breach of this Purchase Order Terms, and Seller shall be responsible for indemnifying El Rancho pursuant to Section 14.
14 – Seller hereby agrees to indemnify and defend (with counsel to be selected by El Rancho in El Rancho’s sole and absolute discretion) and hold El Rancho harmless, at Seller’ s sole cost and expense, from and against any and all claims, liens, causes of action, losses, liabilities, damages, costs, and expenses, including attorney’ s fees, if any claim or action is made or brought or any assertion is made that alleges a breach of, noncompliance with, or variance from any of the terms, representations, or warranties of the PO or the terms contained herein, as well as in the case of any other claim or action against El Rancho asserting that the product (including product packaging and labeling) purchased under the PO is defective, harmful, dangerous, not compliant with law, mislabeled or not appropriately or fully labeled, infringing on the intellectual property rights of another, not compliant with all Weights and Measures, EPA, FDA, CPSC, or any other laws or regulations, or otherwise giving rise to or resulting in a legal or equitable suit, action, or other claim or right against El Rancho, including but not limited to claims for injuries or death to persons or damage to property.
15 – The contract to be formed by the acceptance of El Rancho’s PO shall be governed by the County of Dallas, Texas, regardless of any claims to conflicts of law principles. Any action arising out of or relating to such contract or PO shall be commenced and maintained in the State of Texas, in the venue of the County of Dallas.
16 – Seller represents that all items purchased are sold at a price not less favorable than currently offered to any other purchaser.
17 – All products are subject to inspection and approval by El Rancho.
18 – Seller warrants that all products sold or shipped pursuant to El Rancho’s PO are not subject to any recall (voluntary or involuntary), product liability claim, or other such matter. Failure to comply with this Section subjects Seller to Section 14.
19 – All products with pre-prices, cents off, free sample, or any pricing information must be identified on the PO.
20 – All pallets shipped with product are included in the price of the product and become the property of El Rancho.
21 – El Rancho has the right to advertise any product associated with the PO unless noted therein to the contrary on the PO, and Seller warrants that El Rancho has the right and authorization to advertise any such product.
22 – “Freight Prepaid” as used in El Rancho’s PO means that Seller agrees to pay all costs associated with any shipment and/or delivery and that El Rancho is in no way responsible for any payment or reimbursement of such costs, unless expressly stated otherwise.
23 – The price and quantity set forth in El Rancho’s PO are confidential. No such information may be used by Seller for any reason except that which is absolutely necessary for processing the shipment and payment of the order. Confidentiality also applies to the existence of the PO and its terms. Seller warrants that it will not convey or allow to be conveyed any information regarding the PO, including, but not limited to, items purchased, quantity, price, profit, and terms. None of these matters may be disclosed by Seller either publicly or to any third party, nor to any non-essential person working for Seller.
24 – Wherever the term El Rancho is used herein, it shall, at El Rancho’s option, apply to El Rancho or El Rancho’s assigns, delegates or subsidiaries.
25 – Any and all taxes, duties, tariffs, surcharges, levies, deposits fees and any other such charges are included in the product purchase price unless indicated therein to the contrary on El Rancho’s PO.
26 – If an account is to be factored, El Rancho must be notified by Seller before acceptance of El Rancho’s PO, and El Rancho reserves the right to remit payment either to Seller or to Seller’ s factor, at El Rancho’s election.
27 – Seller agrees, at its sole cost and expense, to obtain and maintain insurance relative to any item(s) sold to El Rancho under the PO, naming El Rancho as an additional insured with respect to the products(s) subject to the PO. El Rancho shall not be required to remit payment until such proof of insurance is supplied. No discount period shall begin to run, no penalty or delinquency period shall begin to run, and the time after which any late fee or other delinquency fee may be imposed shall not begin to run until Seller delivers to El Rancho such proof of adequate insurance. If such proof of adequate insurance is not provided, El Rancho may, at its option, either (a) retain the product and take a 10% discount on the amount of its PO, or (b) advise the Seller that the products are available for pick-up at El Rancho warehouse(s) and or retail store(s), at Seller’s expense, and with a 5% handling charge due from Seller to El Rancho. Seller agrees to obtain and maintain the following:
1- Commercial General Liability insurance including Errors and Omission with coverage limits of at least one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000) in the aggregate. Should the GL policy contain an exclusion for professional liability such coverage shall be provided for separately with limits of not less than one million dollars ($1,000,000) with a retroactive date that predates this PO.
1- Workers Compensation and Employer’s Liability insurance of at least $1,000,000.00 including Waiver of Subrogation in favor of El Rancho for Workers Compensation and Alternate Employer Endorsement for Employer Liability insurance.
1- Commercial Auto Liability insurance with limits of not less than one million dollars ($1,000,000) covering at a minimum owned, hired and non-owned automobiles.
1- Umbrella coverage of at least three million dollars ($3,000,000.00) such coverage shall include the above required policies in the schedule of underlying policies with the exception of any standalone professional liability policy.
1- Commercial Crime coverage in the amount of not less than one million dollars ($1,000,000) including but not limited to employee dishonesty and theft.
1- Employment Practices Liability coverage in the amount of not less than one million dollars ($1,000,000) with a retroactive date that predates this PO.
1- Certificates of Insurance: Seller shall provide El Rancho with certificates of insurance evidencing the above coverages. As it relates to (A)-(C), above, policies shall be endorsed to provide El Rancho not less than thirty (30) days prior written notice of any cancellation. The policies required in (A)-(C), above, shall be endorsed to name El Rancho, its parent, and any subsidiaries, related and affiliated companies of each, and the officers, directors, shareholders, employees, agents and assigns of each as additional insured such coverage grant shall be written on a primary and non-contributory basis. If the insurance policies described in the certificates are canceled or reduced for any reason, Seller agrees to procure new policies and provide El Rancho with new certificates within ten (10) days or El Rancho shall have the right to immediately terminate this PO. All insurance shall be with companies and on forms acceptable to El Rancho. Additionally, all insurance shall be written by companies with an AM BEST’s Guide rating of A- or better. El Rancho’s failure to request, review or object to the terms of such certificates or insurance shall not be deemed a waiver of Seller’s obligations or the rights of El Rancho. The minimum limits of the insurance required in this Section 27 shall in no way limit or diminish Seller’s liability under other provisions of this PO. Waiver of Subrogation: Any and all insurance requirements as required in (A)-(C), above, shall include a clause or endorsement containing a waiver of subrogation in favor of El Rancho. Any insurance maintained by El Rancho is for the exclusive benefit of El Rancho and no other entity.
28 – It is El Rancho’s policy not to purchase products manufactured using exploitive or unfair labor practices, such as forced labor, abusive labor practices, or child labor. Neither will El Rancho buy product made as a result of any practices that are illegal in the place at which the products being offered are manufactured or distributed. By signing or shipping under El Rancho’s PO, Seller attests to the fact that after a diligent inquiry, Seller has ascertained that no product that is the subject matter of this Purchase Order has been manufactured or distributed using any such forced, involuntary, exploitive, or unfair labor practices.
29 – Neither party shall have any right to assign this PO or any benefits arising from this PO without prior written consent of the other and, unless otherwise agreed upon in writing, the rights of any assignee shall be subject to all set-offs, counterclaims, and other comparable rights arising hereunder. Supplier shall not, except in the case of raw materials, or standard commercial goods, or except as otherwise agreed in writing by El Rancho, delegate or subcontract the work on any item of material or service to be delivered or performed under this PO.
30 – All terms set forth herein are incorporated by referenced into each and every PO issued by El Rancho.
EXHIBIT A
Online Delivery Appointment Process
Instructions:
To get started, please click on this link https://opendock.com/
and register for free, then select the Department of your shipment from the drop-down menu, then select the Load Type with number of pallets. Click the date of your shipment appointment on the calendar and select the arrival time on the right. Enter the credentials that were provided by La Bodega. Be sure to enter the PO Number before finalizing your appointment.
After you have scheduled your first delivery appointment through La Bodega online scheduler, you will only be required to login and provide the PO Number going forward. You will receive an email confirmation of your scheduled appointment.
Instructions:
Step 1: Go to https://opendock.com/
Step 2: Select the “Carrier Login” option and fill out your information OR “Register” if you have already registered.
Step 3: Click on “Find Warehouse” enter La Bodega, Farmers Branch.
Step 4: Select the Department of your shipment from the drop menu.
Step 5: Select the Load Type with number of pallets.
Step 6: Select the date of the shipment on the calendar. Step 7: Select the arrival time on the right.
Step 8: Enter La Bodega PO Number and click on the Finalize Appointment Button
Violations;
All “No Show”, “Late Arrival” and “Unscheduled” POs will be subject to a fee which will be administered onsite at La Bodega. For reference, “No Shows” will be identified as any PO that has a scheduled appointment confirmed that does not arrive for that appointment. “Late Arrival” will be identified as any PO that has a scheduled appointment confirmed but arrives 2 hours later than its original appointment. “Unscheduled” is defined as any PO that arrives at La Bodega without an appointment scheduled.
Compliance Fee:
1) “No Show” PO/Driver will be assessed for $200
2) “Late Arrival” PO/Driver will be assessed for $200
3) “Unscheduled” PO/Driver will be assessed for $250
These fees will be collected at the time the Driver checks-in with the receiving office and prior to being backed into the dock for unloading. There will be no exceptions to this rule; trucks that are identified as being in violation of our policy will be required to pay the fee onsite prior to unloading.
Method of Payment;
The receiving office will issue the invoice at the receiving time and the driver should pay with cashier’s check or credit card only. No cash or personal check will be allowed.