Standard Terms & Conditions for Purchase Order

Between Hy-Vee, Inc. (“Hy-Vee”) and Supplier of Goods

1. Conflicts. To the extent the terms of the Purchase Order Documents (as defined herein) conflict with the terms of any separate written agreement then in effect between the parties governing the sale and supply of goods by Supplier to Hy-Vee, the terms of such separate written agreement shall control.
2. Deliverables. Deliverables to be provided to Hy-Vee by Supplier (the “Deliverables”) shall be delivered in compliance with the standards and requirements set forth in the Purchase Order Documents, or, if no such standards are specified, in compliance with industry standards. The “Purchase Order Documents” shall include the Purchase Order, any specifications for the Deliverables attached to, or referenced in, the Purchase Order, and these terms and conditions attached thereto. Supplier's standard terms and conditions of sale, whether received by Hy-Vee prior or subsequent to the date hereof, are not a part of this Purchase Order, are not accepted by Hy-Vee and shall be deemed void.
3. Purchase Order Sum. All Deliverables shall be itemized separately with individual prices excluding applicable taxes and delivery charges, provided that taxable items shall be identified conspicuously. Applicable taxes and delivery charges shall be separately itemized. The total “Purchase Order Sum” payable to Supplier for the Deliverables furnished by Supplier that is listed on the Purchase Order shall include all applicable sales, consumer, use, local option and similar taxes, and all delivery and transportations charges required to be paid by Supplier or Hy-Vee in connection with the Purchase Order Documents.
4. Delivery. Time of delivery of this Purchase Order is of the essence, and Hy-Vee reserves the right to cancel without cancellation charges, all or any part of this Purchase Order if not filled within the specified time, or if the Supplier otherwise defaults under this Purchase Order or upon Supplier’s bankruptcy or insolvency. In such an event, Hy-Vee shall only be obligated to pay Supplier for materials received by Hy-Vee prior to the time of cancellation which conforms with all Purchase Order Documents. Exercise of such right of cancellation shall not be deemed a waiver of any other right reserved to Hy-Vee herein, or by law, for any default, delay, or failure to deliver as specified. All risk of loss to the Deliverables shall be borne by Supplier until completion of delivery of the same to the delivery destination identified by Hy-Vee, and acceptance thereof by Hy-Vee. To the extent applicable, as required by the OSHA 1926.59 "Hazard Communication Standard", a copy of all material safety data sheets of all products and materials supplied by this Supplier for use of the Deliverables shall be provided to Hy-Vee prior to delivery of the Deliverables to the delivery destination, and in addition, a copy of the same shall be provided with the Deliverables when delivered.
5. Payments. Unless an alternate payment schedule is specifically set forth on the face of, or attached to, the Purchase Order, Supplier will be compensated for Deliverables furnished under this Purchase Order within thirty (30) days following the invoice date of an undisputed invoice following receipt of evidence of proper shipment by Supplier of applicable Deliverables, as applicable. Any invoice submitted to Hy-Vee by Supplier shall include a detailed list of the specific information about Deliverables which are being invoiced, including without limitation, manufacturer, model name/number, and serial number, as well as any applicable Suppliers Work charges, for each such Deliverable invoiced. Payment shall be made to Supplier by ACH transfer or corporate check, at Hy-Vee’s election; provided, however, if Hy-Vee elects to pay by check, Hy-Vee shall have an additional three (3) day period to pay Supplier. Supplier shall provide a W-9 and ACH instructions along with the first invoice sent to Hy-Vee. Any consent by Hy-Vee for a deviation from these payment terms must be evidenced in writing by Hy-Vee.
6. Warranty. The Supplier warrants to Hy-Vee that the Deliverables furnished under this Purchase Order will be of good quality and new unless otherwise required or expressly permitted by the Purchase Order Documents, that the Deliverables will be free from defects not inherent in the quality required or permitted, and that the Deliverables will conform to the requirements of the Purchase Order Documents, unless a longer warranty is specified in the Purchase Order Documents, for a period of one (1) year following (a) if a new Hy-Vee operated retails store location or a remodeled location wherein such retail store (or department such Deliverable(s) is/are used within) is closed to the public during such remodel, the date such retail store operation (or department) first opens to the general public, or (b) if a remodeled Hy-Vee operated retail store location wherein the entirety of such retail store continues to be open to the general public, the date such Deliverable(s) is/are first used by Hy-Vee in a production environment. If required by Hy-Vee, the Supplier shall furnish satisfactory evidence as to the kind and quality of the Deliverables.
7. Insurance. Supplier shall maintain, and shall require that all its agents and subcontractors maintain, at a minimum, the insurance coverage limits set forth on Exhibit “A” attached hereto and incorporated herein. Limits may be satisfied through a combination of primary and umbrella/excess coverage insurance policies (which must in any event follow the form of the primary insurance policies to which such umbrella/excess coverages apply). All such insurance policies shall be written by insurance companies who maintain a current A.M. Best rating of A- or better. The limits, terms and conditions required below in no way limit the liability of Supplier or limit the recovery from Supplier’s insurance carrier. Hy-Vee and its subsidiaries and landlord for any Property (as defined herein) upon which work is to be performed by Supplier pursuant to the Purchase order Documents (to the extent applicable), and their officers, directors, shareholders, employees and agents (collectively the “Hy-Vee Parties”) shall be named as an additional insured on all such insurance policies (except for worker’s compensation and professional liability insurance policies). In addition, all such insurance policies must be endorsed with an endorsement that such insurance coverage is primary to, and not contributory with the insurance coverage of Hy-Vee, and that Supplier and its insurance carrier waives subrogation rights against Hy-Vee and their insurance carrier(s) for general liability, pollution liability, automobile liability, worker’s compensation, employer’s liability, and umbrella insurance coverages. Supplier must deliver certificates of policies (and copies of any endorsements required hereunder if requested), to Hy-Vee prior to shipment of the Deliverables. Such certificate(s) must contain a provision that Hy-Vee must be given a minimum of thirty (30) days written notice by the insurer prior to cancellation or termination in such policies of insurance.
8. Indemnity. Supplier will forever indemnify, defend and hold the Hy-Vee Parties harmless from and against any and all losses, costs, claims, liability(ies), damages, judgments and expenses of any kind (including reasonable attorneys’ and court costs) whatsoever resulting from (a) the negligence or intentional misconduct of Supplier, its employees, agents and/or subcontractors, (b) any claim by a third party that the Deliverables, or any component thereof (including without limitation, hardware, software, firmware, etc.) infringes upon the intellectual property rights of any third party, and (c) a breach of this Purchase Order by Supplier. Supplier shall furnish all necessary lien waivers, affidavits or other documents required to keep the Hy-Vee’s property free from liens or claims for liens arising out of the furnishing to Hy-Vee of the Deliverables.
9. Disputes. Supplier agrees to meet with Hy-Vee to resolve any disputes or claims upon request. If not able to be resolved at such meeting, the Supplier agrees to mediate, and/or arbitrate and/or litigate the dispute as elected by Hy-Vee.
10. Miscellaneous. This Purchase Order may not be assigned or delegated without the written consent of Hy-Vee. All covenants, agreements, indemnities, guarantees and warranties made by Supplier shall survive the performance or termination of the Purchase Order, and any payment of the Purchase Order Sum in whole or in part. If any term or provision of the Purchase Order shall be held to any extent to be invalid or unenforceable, the remaining terms and provisions shall remain valid and be enforceable to the fullest extent permitted by law. The Purchase Order Documents shall be governed, construed, and enforced in accordance with the internal laws (not the law of conflicts) of the State of Iowa.
11. Confidentiality. Supplier will hold confidential all business or technical information obtained from Hy-Vee or developed and/or generated by Supplier in the performance of Supplier’s obligations pursuant to the Purchase Order Documents. Supplier will not disclose such information without Hy-Vee’s written consent, except to the extent required: (a) for the performance of Supplier’s obligations; (b) by court order or some other governmental directive or requirement, but not without giving notice to Hy-Vee of such required disclosure and cooperating with any efforts by Hy-Vee to secure the confidential treatment of the same before disclosure; and (c) for the defense of Supplier against claims or liabilities arising from the performance of the Supplier’s obligations, but not without giving notice to Hy-Vee of such required disclosure and cooperating with any efforts by Hy-Vee to secure the confidential treatment of the same before disclosure.
12. Special Terms and Conditions – Work Performed by Supplier.

• Supplier’s Work. In the event as an ancillary part of Supplier’s delivery of the Deliverables purchased pursuant to the Purchase Order Documents, Supplier provides services of any kind to Hy-Vee, whether fabrication, labor, installation, consulting or any other type or kind of services (hereinafter “Supplier’s Work”), the description and specification for such Supplier’s Work shall be set forth in the Purchase Order Documents. Supplier’s Work must be completed in a good and workmanlike manner using personnel of required skill, experience and qualifications as are generally recognized industry standards for the same for similar services in the same geographic area, and must be performed in compliance with all local, state and federal laws, regulations and ordinances. Supplier shall perform the Supplier’s Work as an independent contractor and not an employee of Hy-Vee. Supplier shall be solely responsible for the conduct of its own employees and for all of its employees’ compensation, benefits, contributions and payroll taxes. Supplier shall perform the Supplier’s Work in coordination with Hy-Vee’s employees, staff, contractors, consultants, vendors and other staff so as not to impede Hy-Vee’s progress in furtherance of Hy-Vee’s activities related to Hy-Vee’s business location(s).
• WAIVER, ADDITIONAL INDEMNITIES. SUPPLIER TAKES THE REAL PROPERTY(IES) UPON WHICH SUPPLIER’S WORK IS TO BE PERFORMED (the “Property”) WITH RESPECT TO ITS COVENANTS AND OBLIGATIONS SET FORTH IN THE PURCHASE ORDER DOCUMENTS IN “AS-IS, WHERE-IS” CONDITION, WITH ANY AND ALL PATENT AND LATENT DEFECTS. Hy-Vee Parties will not be liable for any loss, injury, death, or damage to persons or property that at any time may be suffered or sustained by Supplier, or its employees, agents or contractors who may at any time in, on, or about any Property, unless any such loss, injury, death or damage is caused by the gross negligence or willful misconduct of Hy-Vee Parties. Supplier will indemnify, defend and forever hold the Hy-Vee Parties harmless from and against any and all losses, costs, claims, liability(ies), damages, judgments and expenses of any kind (including reasonable attorneys’ and court costs) whatsoever resulting from (a) any such loss, injury, death, or damage upon any Property arising out of Supplier’s, and/or its agents’ and/or its subcontractors’ use of or activities upon any such Property, unless the same is caused by the gross negligence or intentional misconduct of Hy-Vee Parties, (b) the negligence or intentional misconduct of Supplier and/or its agents and/or its subcontractors, and (c) a breach of the Purchase Order Documents by Supplier. Supplier shall bond over or remove any liens arising out of the Supplier’s Work except to the extent caused by Hy-Vee’s payment defaults. Supplier shall furnish all necessary lien waivers, affidavits or other documents required to keep the Hy-Vee’s Property free from liens or claims for liens arising out of the Supplier’s Work.
• Additional Warranty. If required by Hy-Vee, the Supplier shall furnish satisfactory evidence as to the kind and quality of the materials used in Supplier’s Work. Supplier will promptly perform all punch list and/or warranty work as requested by Hy-Vee. Supplier agrees to correct, at its cost, any of Supplier's Work which is defective and/or which is rejected by Hy-Vee, Hy-Vee’s landlord at any applicable Property, Hy-Vee’s general contractor, architect, engineer and/or inspector, as applicable. Unless a longer warranty is specified in the Purchase Order Documents, Supplier's correction obligation shall commence on the date Supplier’s Work is performed and/or deliverables are delivered to the Property (as defined herein), as applicable, and shall continue for one (1) year following (a) if a new Hy-Vee operated retails store location or a remodeled location wherein such retail store (or department such Supplier’s Work is used within) is closed to the public during such remodel, the date such retail store operation (or department) first opens to the general public, or (b) if a remodeled Hy-Vee operated retail store location wherein the entirety of such retail store continues to be open to the general public, the date such Supplier’s Work is first used by Hy-Vee in a production environment.

EXHIBIT “A”
INSURANCE REQUIREMENTS

General Liability:

---

Professional Liability (If any of the Supplier’s Work to be performed by Supplier or its subcontractors includes the rendering of professional services, including but not limited to, architectural, engineering, design or consulting services):

---

Pollution Liability (If any of the Supplier’s Work to be performed by Supplier or its subcontractors involves the handling, transportation, disposal, analysis, or any other interaction with hazardous materials or substances, contaminants, waste, toxic materials or any pollutants, as defined by any local, state or federal ordinance, rule, regulation or statute):

---

Automobile Liability (Any Auto Including Hired & Non-Owned):

---

Worker’s Compensation:

---

Employer’s Liability:

---

Umbrella:

---

* If not attached hereto, a sample insurance certificate is available upon request