In-N-Out Burgers^® Purchase Order Terms and Conditions

LAST UPDATED: October, 2024

 

1. General: These Purchase Order Terms and Conditions (“Terms” or “Agreement”) apply to the purchase of goods and/or services (“Products”) by In-N-Out Burgers (“Buyer”) from you/your company (“Seller”) as detailed in or required by a Purchase Order (“PO”) issued by us. By accepting the PO (see “Acceptance” herein) (and also by delivering Products), Seller unequivocally accepts these Terms. Seller’s own terms or conditions shall not apply under any condition. These Terms shall incorporate any previous written agreement between Buyer and Seller, however in the event of any conflict between these Terms and such other instrument, these Terms shall control and take precedence.
   
   
2. Acceptance: A PO shall be deemed to have been accepted by Seller if no written rejection has been received by Buyer within forty-eight (48) hours after Seller’s receipt of such PO. With each such acceptance, Seller shall confirm the requested delivery date or specify an alternative shipment date within forty-eight (48) hours. If such alternative shipment date is not acceptable to Buyer, Buyer may cancel the order within seven (7) days after receipt of the alternative shipment date from Seller without liability of any kind to Buyer or Seller.
   
   
3. Products: Products shall meet all specifications as described and agreed upon by the parties.
   
   
4. Payment: Pricing for Products is set forth in the PO, and includes all costs associated with the Products, including shipping, delivery, freight, taxes, duties, and any other costs. Seller shall provide Buyer thirty (30) days’ prior written notice with respect to any price increase for such Products that may be applicable to future Buyer POs. Seller shall make all efforts to ensure that net effective pricing applicable to Buyer for Products shall be no greater than, and on terms that are at least as favorable as, that made available to any other customer for equivalent products. All Products shall be shipped F.O.B. to the place of destination specified by Buyer unless otherwise agreed in writing by the parties (“Destination”) subject to Buyer’s right of rejection or rightful revocation of acceptance (as specified herein). Seller shall pay for all shipping, transportation, and freight services until the products are received and accepted by Buyer as provided herein, unless Buyer agrees otherwise in writing (on a case-by-case basis). Invoices, indicating the applicable PO number and Destination, must be forwarded by Seller to Buyer on the date of each shipment of Products. Each invoice shall be consistent with the PO and contain the following information: Buyer’s name, Buyer’s order number, address of Destination, description of the Products delivered to Buyer, the quantity delivered, unit pricing, the appropriate tax amount if applicable, and the net price due. Unless other payment terms have been mutually agreed upon by the parties, Buyer shall remit payment within thirty (30) days of the date by which it has received, both, accepted Products and an accurate invoice. Any invoice terms that are inconsistent with the Terms shall be void. Notwithstanding any other available remedy, if Buyer has a bona fide dispute over any batch of Products, it may offset future payments by amounts previously paid for such disputed Products and Seller shall continue to deliver Products to Buyer.
   
   
5. Delivery: A shipment of Products shall not be deemed to be accepted by Buyer until such Products have been (a) actually received by Buyer at the Destination, (b) inspected by Buyer to ensure all such Products comply with the Terms and Buyer’s expectations, and (c) formally accepted by Buyer. Time and quantity are of the essence. If Seller cannot arrange for the delivery of any shipment of Products to a carrier for transportation to Buyer by the agreed-upon shipment date(s), Seller shall notify Buyer in writing of such delay immediately. If such delay is attributable to the acts or omissions of Seller or any of its agents, and extends for more than two (2) days, Buyer reserves the rights to: (i) require Seller, at Seller’s sole expense, to deliver such shipment of Products by means of expedited transportation; (ii) take delivery of such Products wherever they may be located, at Seller’s expense; or (iii) cancel that portion of the PO applicable to such shipment of Products without liability or penalty of any kind to Buyer.  Buyer further reserves the right to refuse any Products and to cancel all or any part of any PO if Seller fails to arrange for the delivery of all or any part of the Products in accordance with the terms of such PO. Seller agrees to insure the Products until such time as the risk of loss of and title to the Products pass to Buyer. For the avoidance of doubt, all Products to be delivered hereunder shall be subject to final inspection and acceptance by Buyer, notwithstanding any payments theretofore made to Seller or any inspection by Seller or its agent.
   
   
6. No Exclusivity: Seller acknowledges and understands that no exclusivity is offered or implied under this Agreement.
   
   
7. Warranty: Seller warrants to Buyer that all Products purchased by Buyer pursuant to this Agreement shall: (i) be merchantable and free from all defects; (ii) conform to the specifications thereof and to any industry standards applicable to such Products; (iii) be fit for the purpose and use intended by Buyer; (iv) conform to, and be manufactured, processed, packaged, labeled, tested, certified, accurately marked, weighed, inspected, shipped, and sold in accordance with, all federal, state and local laws, rules and regulations applicable to such Products, including, but not limited to, all health, safety, food, environmental and labor laws and regulations applicable to such Products; and (v) the goods are in compliance with the California Safe Drinking Water and Toxics Enforcement Act of 1986 (also known as Proposition 65) (Calif. Health & Safety Code §§ 25249.5-25249.13) and its implementing regulations (27 Calif. Code Reg. §§ 25000-27001), including without limitation the following: the goods must not contain any chemicals known to the State of California to cause cancer or reproductive toxicity unless the goods provide an accompanying warning that complies with California law.  Seller must give prompt and accurate written notice to Buyer of any facts it learns that indicate its goods are not in compliance with such laws, regulations and/or standards stated herein, or whether a Proposition 65 warning is required.  Any services performed by Seller shall be performed in a good, workmanlike and professional manner and in the manner otherwise prescribed by Buyer.   At Seller’s own cost and expense, Seller shall comply with all laws, ordinances, rules and regulations of the federal, state and local authorities and departments relating to or affecting the services or goods hereunder, and shall secure and obtain any and all permits, licenses and consents as may be necessary in connection therewith.
   
   
8. Remedies: In the event any Products do not conform to the warranties set forth in this Agreement, Buyer shall have the option, exercisable in its sole discretion, and without limiting Buyer’s remedies under this Agreement or otherwise, to: (i) require Seller to repair or correct such non-conforming Products at Seller’s sole cost and expense;  (ii) require Seller to accept the return of and replace such non-conforming goods at Seller’s sole cost and expense; (iii) require Seller to accept the return of such non-conforming goods and immediately issue a cash refund of the price paid by Buyer for such goods; or (iv) require Seller to accept the return of such non-conforming goods and offset the price paid by Buyer for such goods from a third party against amounts owed by Buyer to Seller.
   
   
9. Recalls; Hazardous Goods: In the event that any Products contain a health or safety hazard or are found by any agency having authority to make such determination to contain a hazard, as that term is understood under the Federal Food and Drug Administration, the United States Consumer Product Safety Commission Act or any comparable federal, state or local law, rule or regulation, Seller shall cooperate with Buyer in order to make all required reports to governmental authorities.  Buyer shall have control over all actions which it deems necessary or desirable to comply with such acts, laws or regulations.  If it becomes necessary or, in Buyer’s opinion, desirable that any Products should be recalled in order to comply with such acts, laws or regulations, Seller shall cooperate with Buyer to effectuate such recall as expeditiously as practicable.  Seller shall reimburse Buyer for any costs or expenses actually incurred by Buyer in connection with such recall.
   
   
10. Indemnification: Seller agrees to defend, indemnify and hold harmless Buyer, its parents, subsidiaries, affiliates and customers, and its and their respective customers, officers, directors, agents, servants, representatives and employees (collectively, the "Buyer Indemnities") from and against all losses, liabilities, damages, claims, fines, penalties, demands, judgements, interest, Actions (as hereinafter defined), and taxes of whatsoever cause or nature, and all costs and expenses connected therewith, including without limitation reasonable attorneys' fees, the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Damages”) on account of or related to any failures or breaches related to the Products or related to Seller’s (or its approved subcontractors’ or the Products’) compliance with laws, performance obligations, property damage, personal injury, or intellectual property infringement.  Such indemnification shall be in addition to any other rights or remedies afforded to Buyer by the Agreement or under any applicable law or regulation.  Seller’s obligations hereunder shall survive acceptance of any Products and payment therefor by Buyer.
    
    
11. Indemnification Procedures:  If any Buyer Indemnitee receives notice of the assertion or commencement of any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law or in equity (collectively, “Actions”) against any Buyer Indemnitee with respect to which Seller is obligated to provide indemnification under this Agreement, the Buyer Indemnitees shall give Seller written notice thereof.  Buyer Indemnitees will have the right to participate in any such Action and will have the right, in their sole discretion, to select separate counsel to control the defense of the Action on behalf of the Buyer Indemnitees at Seller’s expense.  In the event Seller fails to indemnify, then the Buyer Indemnitees may, at Seller’s expense (including via offsetting), contest or settle such matter without Seller’s consent.  Seller will not settle any Action without the consent of the Buyer Indemnitees, which consent will not be unreasonably withheld.
    
    
12. No Child/Prison Labor/Slavery/Human Trafficking:  Seller hereby represents and warrants that the Products are not produced, manufactured, assembled, or packaged by the use of human trafficking, forced labor, prison labor, forced or illegal child labor or other human rights violations or in any location that is presumed or has been deemed to be engaged in such labor.  Seller further certifies that the Products were not trans-shipped for the purpose of mislabeling, evading quota or country of origin restrictions, or for the purpose of avoiding compliance with laws governing forced labor, prison labor, child labor, human trafficking, or other human rights protections.
    
    
13. Buyer Intellectual Property: In no event shall Seller incorporate any of Buyer’s trademarks, service marks, logos or other intellectual property (“Buyer IP”) into the name under which it does business, nor shall Seller hold itself out to be an employee or agent of or affiliated with Buyer.  Seller shall have no right, title, license or other interest of any kind in or to any Buyer IP and shall not make any Products bearing or using Buyer IP without the prior express written consent of Buyer and as specifically directed by Buyer.  In the event of a rejection of Products by Buyer or in the event of an overrun (including Products in possession of Seller’s subcontractors), you shall, at Buyer’s sole discretion, either remove any Buyer IP from such Products, destroy such Products with a Buyer representative present, or dispose of them in another manner authorized in writing; all without cost or charge to Buyer.  Seller agrees that if it breaches any of its obligations under this Agreement, Buyer would incur irreparable harm and damage which could not be fully compensated with monetary damages, and thus Buyer shall be entitled to specific performance of Seller’s obligations and injunctive relief against any further violations, all without the posting of any bond.
    
    
14. IP Assignment/License: Seller hereby assigns to Buyer exclusively and throughout the world all right, title and interest (whether now existing or not) in any intellectual property created specifically on account of Buyer or in the creation of Products for Buyer, as well as any portions and works in progress with respect thereto (“Assigned IP”). To the extent that this assignment is deemed ineffective, and with respect to any other intellectual property necessary for Products, Seller hereby grants a non-exclusive, royalty-free, fully paid, sublicensable license to use or practice all such intellectual property for the purposes of having Products made on Buyer’s behalf.
    
    
15. Insurance: Seller shall maintain in full force and effect at all times, at Seller’s sole expense, comprehensive general and commercial liability insurance, including broad form contractual and products liability coverage waiving subrogation with combined single limits of no less than two million dollars ($2,000,000) per occurrence or in such other amounts and together with such other insurance coverage reasonably requested by Buyer at any time.  Seller shall cause Buyer to be added as an additional named insured on any such insurance policies.  Such insurance policies shall require that Buyer be afforded at least thirty (30) days prior written notice in the event of a material change, expiration, cancellation or termination of such policy or any of the coverages set forth therein.  Seller shall, upon request, provide Buyer with certificates evidencing such insurance. Seller’s insurance shall be primary to any insurance carried by Buyer, which shall not contribute to and is in excess of Seller’s coverage.
    
    
16. Confidentiality: Any and all information provided by either party to the other shall be subject to the confidentiality agreement governing the relationship. To the extent that no confidentiality agreement exists, Seller shall keep Buyer’s information that is not generally available to the public (including, without limitation, information such as purchasing volume, marketing or financial information, etc.) (the "Confidential Information"), confidential with at least those measures that it takes to protect its own most highly confidential information (but not less than reasonable care) and Seller shall not use, communicate, disclose or divulge Confidential Information, except as necessary in the performance of its obligations under the Agreement.
    
    
17. Choice of Law; Venue; Attorneys’ Fees. The Agreement shall be governed by and construed in accordance with the laws of the State of California exclusive of its conflict of laws principles.  If a dispute arises in connection with or relating to the Agreement, it shall be subject to the exclusive jurisdiction and venue of the state and federal courts located in Orange County, California, and each of Buyer and Seller consent to the personal and exclusive jurisdiction and venue of these courts.  If any action at law or in equity is brought by either party to enforce or interpret the terms of the Agreement, the prevailing party shall be entitled to recover from the unsuccessful party attorneys’ fees, costs and expenses (including, without limitation, expert witness fees) in addition to any other relief to which it may be entitled.
    
    
18. Severability.  If any provision is prohibited by or under the laws of any jurisdiction in which the Agreement may be used or to which it may be applicable, said provision shall be, as to said jurisdiction, ineffective to the extent of such prohibition, without invalidating thereby any of the remaining provisions of the Agreement.  The headings set forth in the Agreement are for the convenience of the parties only and shall not be considered in determining any meaning.
    
    
19. Assignment.  The rights and obligation under the Agreement, including the PO, may not be assigned by either party without the other party's prior written consent.
    
    
20. Notices.  Any notice under the Agreement shall be in writing and delivered in person or by facsimile to the parties (and confirmed by registered airmail, postage prepaid, with return receipt requested) at an address specified by each party.  All notices shall be deemed to have been given on the date such notice is received if delivered in person or upon receipt of written confirmation of the transmission.  Either party may change its address or facsimile number at any time by a notice given to the other party.
    
    
21. Non-Waiver and Amendment.  Failure by either party to enforce or take advantage of any provision of the Agreement shall not constitute a waiver of the right subsequently to enforce or take advantage of such provision.  Except as otherwise expressly provided herein, the Agreement or any of the terms and provisions thereof may not be changed or amended or waived, in any way whatsoever, except by written agreement executed by an authorized officer of each party.
    
    
22. Relationships.  It is understood that neither party is constituted an agent, employee or servant of the other for any purpose whatsoever.  Seller and Buyer each shall conduct its business in its own name and each shall be solely responsible for its acts, conduct and expenses and the acts, conduct and expenses of its employees, agents, subcontractors and suppliers.
    
    
23. Survivability.  All provisions that by their nature should survive a termination of the Agreement or relationship shall survive.