FIFTH GENERATION, INC.
These terms and conditions (including any schedules and exhibits, this “Agreement”) govern the purchase of goods and/or services by Fifth Generation, Inc. (“Tito’s”) from you (“Vendor”). The specific goods and/or services and the price to be paid may optionally be set forth in a purchase order issued by Tito's. This Agreement, together with the Tito’s purchase order, comprises the entire agreement between the parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. No contract, purchase order, or other document provided by Vendor, except for a negotiated, written contract, signed by both parties that is validly existing and not terminated or expired, shall be binding on Tito’s, and any contrary, or different terms and any attempt to modify, supersede, or otherwise alter this Agreement, will not modify this Agreement or be binding on Tito’s unless signed by an authorized executive of Tito’s. Fulfillment by, or other commencement of performance by, Vendor under any purchase order with Tito’s constitutes acceptance of this Agreement. In the event of a conflict between any purchase order and this Agreement, the purchase order shall govern with respect to those conflicting provisions.
1. Pricing. The price of the goods and services to be paid by Tito’s is the price stated in the Tito’s purchase order (which will be issued by Tito’s in Tito’s sole discretion). Except as otherwise provided in the Tito’s purchase order, Vendor’s prices shall include all costs and charges, including any and all anticipated expenses, to be charged by Vendor for all goods and services provided, including all applicable federal, state, and local taxes and duties; all charges for transportation, packing, packaging and returnable containers; and all other costs and charges to Tito’s. No expense is valid unless included on the purchase order and no increase in the price is effective without an adjustment to the purchase order and Tito’s prior written consent.
2. Packaging of Goods; Title and Risk of Loss. Vendor will package all goods in accordance with industry best practices and all applicable state, federal, and local laws and regulations. The purchase order number (if applicable) must appear on all packing slips and invoices, and except in the case of ingredients, on all packages, crates, or other containers, together with the destination party and address specified by Tito’s. Vendor will ship goods DAP unless otherwise specified by Tito’s. Title and risk of loss passes to Tito’s upon delivery of the goods at the delivery point only after Tito’s’ acceptance of the goods, and Vendor shall bear the risk of loss on the goods until such delivery and acceptance, as well as on any goods rejected by Tito’s.
3. Delays; Visitor’s Release. Vendor acknowledges that time is of the essence with respect to Vendor’s obligations and the timely delivery of the goods or services. Vendor shall promptly advise Tito’s of any delay or anticipated delay in delivery or performance, and if the delay is material, Tito’s has the right to cancel the order and receive a full refund of any prepaid amounts. Vendor shall deliver all goods and/or provide all services to the address specified in the Tito’s purchase order during Tito’s normal business hours or as otherwise instructed by Tito’s. Vendor acknowledges that all individuals visiting Tito’s premises for any purpose will be required to execute a Production Facility Visitor’s Release & Waiver upon arrival.
4. Acceptance; Invoices. Vendor will (a) confirm to Tito’s when the goods have been delivered and are ready for inspection, and/or when the services have been completed and are ready for Tito’s acceptance (the “Delivery Date”) and (b) timely submit detailed invoices to Tito’s no sooner than the Delivery Date. Tito’s has the right (for up to thirty (30) days after the Delivery Date) to inspect the goods or services on or after the Delivery Date, to ensure their conformity with the requirements and specifications set forth in this Agreement. Tito’s, at its sole option, may inspect all or a sample of the same, and may reject all or any portion of the goods or services if it determines the goods or services are nonconforming or defective. Invoices will not be paid until after Tito’s has inspected and accepted the goods and/or accepted the Services. Tito’s will pay correct and undisputed invoices within thirty (30) days of receipt of invoice or Tito’s acceptance of the goods or services, whichever is later. Without limiting the generality of the foregoing, all goods provided shall perform in accordance with any specifications set forth herein including in the Tito’s purchase order if applicable. In the event that the goods or services fail to meet the required standards and are rejected, Vendor shall, at its expense, promptly replace the rejected goods or services and pay for all related expenses, including transportation charges for the return of the rejected goods and the delivery of replacement goods. If Vendor fails to timely replace goods or services, then Tito’s shall receive a refund of any amounts already paid for such goods or services and may terminate this Agreement in part or in whole.
5. Licenses/Permits; Insurance. Vendor shall obtain, and at all times during the term of this Agreement, maintain, all necessary licenses, permits, and consents to perform its obligations and comply with all relevant laws applicable to the provision of the goods and services. Vendor shall maintain adequate and appropriate insurance to protect Tito’s against foreseeable risks related to the goods and services, including at least (a) $1,000,000 in commercial general liability insurance, (b) statutorily required workers compensation and at least $1,000,000 in employer’s liability insurance, (c) if vehicles or mobile equipment are used in the performance of the obligations under this Agreement, then Vendor shall maintain liability insurance for all owned, non-owned or hired vehicles so used in an amount not less than $1,000,000 per occurrence combined single limit; and (d) Professional Liability (Errors and Omissions) in a minimum of $1,000,000 in the aggregate.
6. Compliance with Laws and Tito’s Requirements. To maintain general health and safety, Vendor shall at all times comply with federal, state, county, local, and industry safety requirements. In addition, Vendor shall perform its activities under this Agreement in accordance with all applicable federal, state and local laws, regulations and ordinances (“Laws”). Vendor shall additionally comply with all of Tito’s rules, regulations and policies, including security procedures concerning systems and data and remote access thereto, building security procedures and site-specific safety protocols as directed by Tito’s, including the restriction of access by Tito’s to certain areas of its premises or systems for security reasons, and general health and safety practices and procedures. Vendor shall ensure that all persons, whether employees, agents, or anyone acting for or on behalf of Vendor, are properly licensed, certified or accredited as required by applicable law and are suitably skilled, experienced and qualified to perform the services. Vendor shall ensure that all of its equipment used in the provision of the services is in good working order and suitable for the purposes for which it is used and conforms to all relevant legal standards and standards specified by Tito’s. The failure of Vendor or its personnel to at all times comply herewith shall constitute Vendor’s material breach of this Agreement.
7. Representations and Warranties. Vendor represents and warrants that all goods and services (to the extent applicable) shall: (i) be free from defects in workmanship, material, and design; (ii) conform to applicable specifications, drawings, samples, advertising materials, descriptions, or performance criteria including those set forth herein and in any Tito’s purchase order; (iii) be merchantable (as and if applicable) and fit for their intended purpose and Tito’s purposes, if any, as have been made known to Vendor, and operate as intended and in a first class manner at least consistent with the performance of similar goods in the industry; (iv) be safe and appropriate for the purpose for which goods and services of that kind are normally used; (v) be in compliance with all Laws; (vi) (in respect of goods): be new and undamaged; and (in respect of services): be provided in a good and workmanlike manner, by persons skilled in the provision of such services; and (vii) not invade the rights of privacy or publicity of any third party or infringe on or misappropriate any third party’s intellectual property rights. Vendor further represents and warrants that (a) it has the right to enter into this Agreement, to grant the rights granted herein, and to perform fully all of its obligations hereunder; (b) there are no prior or existing relationships or understandings (contractual or otherwise) to which Vendor is bound which would prevent it from entering into and fulfilling all of the obligations under this Agreement; and (c) Vendor has the required skill, experience, and qualifications to perform the services (if applicable), and will devote sufficient resources to ensure that the services are performed in a timely and reliable manner.
8. Indemnification. Vendor shall indemnify and hold harmless Tito’s and Tito’s affiliates, successors or assigns and their respective directors, officers, shareholders and employees against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs arising out of or occurring in connection with: (i) any defects or failures of the goods and services (provided that Tito’s has used them for their intended purposes and as permitted hereunder); and/or (ii) the breach of any of Vendor’s obligations, representations, or warranties under this Agreement.
9. Confidentiality. Vendor may receive or have access to information that is not broadly known to the public and/or that Tito’s treats as confidential and proprietary, including the existence and terms of this Agreement, trade secrets, technology, and information pertaining to business operations and strategies, customers, pricing, marketing, sourcing or personnel, in each case whether oral or written and in any form or medium (collectively, the “Confidential Information”). The following information is expressly not considered Confidential Information: (a) information which becomes widely publicly known through no fault of Vendor; (b) information which was already known by Vendor at the time it was disclosed to Vendor by Tito’s; and (c) information developed by Vendor without any use of or reference to Tito’s Confidential Information. Vendor agrees to treat all Confidential Information as strictly confidential, not to disclose Confidential Information or permit it to be disclosed, in whole or in part, to any third party without the prior written consent of Tito’s, and not to use any Confidential Information for any purpose except as required in the performance of services or delivery of goods to Tito’s pursuant to this Agreement.
Vendor further represents and warrants that it has in place adequate data privacy and protection, back-up, redundancy, and business continuity policies, which comply with the Data Security Laws, in order to reasonably ensure the security of Tito’s Confidential Information. Furthermore, to the extent that Vendor obtains, receives, processes, transmits, and/or stores any Personal Data of Tito’s suppliers, customers or potential customers, Vendor represents and warrants that it shall do so in full compliance with the Data Security Laws. For purposes hereof, “Personal Data” means any information relating to an identified or identifiable natural person. “Data Security Laws” means all applicable laws applicable to privacy or data protection, including state laws requiring notice of breaches involving Personal Data, each as amended from time to time.
10. Compliance with Laws as relates to Alcohol Retailers. The parties shall neither make available nor offer any bonus, premium, compensation or other thing of value to any “trade buyer” (defined as a retailer of alcoholic beverages [“retail licensee”] or employee of a retail licensee), for the purpose, either directly or indirectly, of inducing a trade buyer to purchase Tito’s products, or to promote sales of Tito’s products. The parties agree that Tito’s is not paying any moneys to Vendor for the benefit of any retail licensee as an inducement to such retail licensee to purchase Tito’s products, or a certain quantity of Tito’s products, and that this Agreement is entered into solely for the provision of goods and/or services by Vendor to Tito’s and for no other purposes.
11. Miscellaneous Provisions. Tito’s shall not, by any act, delay, omission or otherwise, be deemed to have waived any of the rights or remedies under this Agreement, unless done so in writing. Tito’s waiver of any right or remedy on any one occasion shall not be construed as a waiver of any right or remedy Tito’s would otherwise have on a future occasion. The rights and remedies reserved herein by Tito’s shall be cumulative and in addition to any other rights and remedies provided by law. If any term or provision of this Agreement is deemed to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction and the Agreement shall be construed as if the invalid provision (or portion thereof) has been stricken from this Agreement. The parties acknowledge that they are sophisticated business persons and they have had the opportunity to negotiate this Agreement and have it reviewed by counsel as they saw fit, and therefore no rule of contract construction shall be applied that would construe ambiguities against a particular party as the “drafting party”. The words “includes” or “including” are not intended as terms of limitation but rather shall be read as if they were followed by the words “without limitation”. Each party shall be considered an independent contractor pursuant to this Agreement; nothing herein shall be construed to create a joint venture, partnership, or an employee/employer relationship; and neither party has the right to bind or obligate the other party to any contract, understanding or other relationship. Vendor is not permitted to assign or delegate this Agreement or any of its rights, responsibilities, obligations or performance hereunder, in whole or in part, without Tito’s prior written approval.
12. Applicable Law and Venue. This Agreement shall be considered to have been entered into in the state of Texas and governed and interpreted in accordance with the laws of the state of Texas, without giving effect to any conflict-of-law principle of any jurisdiction. Any dispute regarding this Agreement and any action or proceeding arising out of this Agreement shall be litigated in courts located in Travis County, Texas. Each Party consents and submits to the personal jurisdiction of any local, state, or federal court located in Travis County, Texas having subject matter jurisdiction, and waives any objection to such venue and jurisdiction, including that it is inconvenient.
The parties, acting through their duly authorized representatives and intending to be bound, have accepted the terms of this Agreement as of the date of the corresponding purchase order.