Purchase Order Terms and Conditions

These Purchase Order Terms and Conditions (“Terms”) are the only terms governing the purchase of goods and/or services by J.S. McCarthy Co., Inc. or its subsidiaries, affiliates and related companies (together, the “Buyer” or “JSM”) from the seller (the “Seller”) named on the Purchase Order issued by JSM (“PO”). “Goods” refers to those goods and/or services described in the PO, and any services so described are also referred to as “Services.”

1. Acceptance. The PO and these Terms constitute the entire agreement (“Agreement”) between the parties and supersede all prior or contemporaneous understandings or agreements, written or oral, other than any master or supply agreement signed by both parties. This Agreement prevails over any of Seller’s terms and conditions, which are expressly rejected. By signing or accepting the PO or beginning performance under it, Seller accepts these Terms. The Agreement continues in full force and effect until completion of performance under the PO, unless earlier terminated as permitted herein.
2. Delivery. Time is of the essence. Seller shall deliver the Goods at the price, in the quantities, to the location and on the date(s) specified in the PO or as otherwise agreed in writing by the parties (the “Delivery Date”). If Seller fails to deliver the Goods in full on the Delivery Date, Buyer may terminate this Agreement immediately by providing written notice to Seller.
3. Shipping Terms. Unless otherwise stated in the PO, shipping shall be FOB Delivery Point. All shipping documents, invoices and related documentation pertaining to this PO will contain the PO number.
4. Warranty. Seller warrants to Buyer that the Goods will: (i) be free from any defects in workmanship, material and design; (ii) conform to applicable specifications; (iii) be merchantable; (iv) be free and clear of all liens, security interests or other encumbrances; and (v) not infringe or misappropriate any third party’s intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment. Seller warrants to Buyer that the Services will be performed in a good and workmanlike manner in accordance with the highest industry standards for similar services. The warranties set forth in this Section are cumulative and in addition to any other warranty provided by law or equity.
5. Inspection. Buyer has the right to inspect the Goods on or after the Delivery Date. Buyer, at its sole option, may reject all or any portion of Goods it determines to be nonconforming or defective.
6. Remedies. If Buyer gives Seller notice of noncompliance, Seller shall, at Buyer’s option and at Seller’s own cost and expense including expenses and damages, promptly (a) replace or repair the defective or nonconforming Goods and/or repair or re-perform the nonconforming Services; (b) accept the Goods at a reasonably reduced price; or (c) rescind this Agreement in its entirety. If Buyer requires replacement or reperformance and Seller fails to timely do so, Buyer may source replacement Goods from a third party and charge Seller the cost thereof, plus damages and expenses.
7. Price. Unless otherwise stated in the PO, the price for the Goods and/or Services includes all packaging and transportation costs. The price is firm and no escalation is effective without Buyer’s prior written consent.
8. Payment Terms. Buyer will submit payment for properly invoiced and undisputed amounts within the time set forth in the PO or, if none is stated, within thirty (30) days after Buyer’s receipt of a properly submitted invoice. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller.
9. Compliance. When performing a PO that requires presence at Buyer’s owned or leased locations, Seller and its employees, agents and subcontractors shall comply with all rules, regulations and policies of Buyer including without limitation those related to data security, physical security, food safety, hygiene, and health, safety and environmental matters.
10. Code of Conduct. Seller agrees to comply with Buyer’s Code of Conduct, as amended from time to time and available at www.jsmccarthy.com, or, alternatively, to maintain and comply with its own written code of conduct that is substantially equivalent to Buyer’s Code of Conduct.
11. Indemnification. Seller shall defend, indemnify and hold harmless Buyer and its successors, assigns, agents, trustees, directors, officers, shareholders and employees against any and all losses, costs, damages, liabilities, judgments, settlements, penalties, fines and expenses of any kind, including attorney fees and the costs of enforcing any right to indemnification under this Agreement, arising out of or in connection with (a) the Goods purchased from Seller, (b) Seller’s negligence, willful misconduct or breach of the Agreement, (c) bodily injury, death or damage to real or tangible personal property caused by the Goods or by Seller or its personnel, or (d) any claim that Buyer’s or indemnitee’s use or possession of the Goods infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. Seller shall not settle any claim in a manner that admits fault on the part of Buyer or imposes any obligation on Buyer without Buyer’s prior written consent.
12. Insurance. Seller shall maintain, at its own expense, insurance with financially sound insurers, including commercial general liability insurance (including product liability) with limits of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate, automobile liability insurance with limits of not less than $1,000,000, and workers’ compensation insurance as required by law. Upon Buyer’s request, Seller shall provide certificates of insurance naming Buyer as an additional insured.
13. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY STATED IN ANY AGREEMENT BETWEEN THE PARTIES, BUYER SHALL NOT BE LIABLE TO SELLER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL BUYER’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE PRICE OF THE GOODS UNDER THE APPLICABLE PO.
14. Confidentiality. All non-public, confidential or proprietary information of Buyer, which includes information that is marked confidential or which, by its nature should reasonably be deemed confidential, such as customer lists, customer information, or pricing, whether accessed or disclosed orally or in written, electronic or tangible form, is confidential, will be reasonably safeguarded, and will be disclosed only to those who have a need to know such information for the purpose of performing this Agreement and who have agreed to reasonably safeguard it. At Buyer’s request, Seller shall return or destroy all confidential information received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section.
15. Security Incidents. Seller shall notify Buyer promptly, and in any event within seventy-two (72) hours, after Seller becomes aware of any actual or reasonably suspected loss, theft, or unauthorized access to or disclosure of Buyer’s data or confidential information in Seller’s possession or control, and shall cooperate with Buyer in investigating and responding to the incident.
16. Termination. Buyer may terminate this Agreement, in whole or in part, at any time, with or without cause, upon written notice to Seller. Upon termination, Seller’s sole remedy is payment for the Goods accepted by Buyer prior to the termination.
17. Force Majeure. Neither party shall be liable for any failure or delay in performance caused by events beyond its reasonable control, including acts of God, fire, flood, war, terrorism or governmental action, provided that the affected party promptly notifies the other party and uses diligent efforts to resume performance. Seller’s economic hardship, changes in market conditions, and labor disputes involving Seller’s personnel or suppliers shall not constitute force majeure events. If Seller’s performance is delayed for more than ten (10) days, Buyer may terminate the affected PO without liability.
18. Assignment. Seller shall not assign or subcontract any of its rights or obligations under this Agreement without the prior written consent of Buyer. No assignment shall relieve Seller of its obligations hereunder. Seller shall remain responsible for the acts and omissions of any permitted subcontractor as if they were Seller’s own.
19. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
20. Governing Law. This Agreement is governed by the laws of the State of Maine without regard to its conflicts of law principles.
21. Miscellaneous. All notices required hereunder shall be in writing, addressed to the parties at the addresses set forth in the PO by certified mail with return receipt requested. Notice is effective only upon receipt. In performing its obligations under this Agreement, Seller shall (a) comply with all applicable laws; and (b) maintain in effect all required licenses, authorizations and permits. No change to the Agreement is effective unless in a writing signed by both parties. No waiver by either party of any provision of this Agreement shall be construed as a waiver of any future obligations or rights of either party. If any term or provision of this Agreement is invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect any other part of this Agreement, the remainder of which shall remain in full force and effect. Any provision of this Agreement which by its nature should survive completion of performance or termination, including those relating to warranty, remedies, indemnification, limitation of liability, confidentiality, security incidents, and insurance, shall survive.

Effective: 10-1-2026