1. Application. These WinCo Foods General Terms and Conditions (“Terms and Conditions”) apply to every purchase, sale, shipment and delivery of any goods, services, software, and/or work product (collectively, “Product(s)”) to WinCo Foods, LLC (“WinCo”) from any entity providing such Products (“Vendor”) to WinCo and related transactions, unless otherwise agreed in writing by WinCo and Vendor. These Terms and Conditions apply to any form utilized by WinCo to engage in business with the Vendor, including but not limited to new item forms, price change forms, etc. (individually and collectively referred to herein as “WinCo Form(s)”). This Agreement takes precedence over any additional or different Terms and Conditions stated by Vendor in its order acknowledgement or otherwise, to which notice of objection is hereby given, unless such additional or different terms have been expressly agreed to in writing by WinCo. These Terms and Conditions are available on the Vendor Portal located at: https://partners.wincofoods.com (referred to herein as the “Vendor Portal”). Any document posted on the Vendor Portal, including but not limited to policies, notices, and these Terms and Conditions may be amended from time to time by WinCo and such modifications shall go into effect as of the date posted on the Vendor Portal.
  2. Term/Termination. The term will begin on the date specified on the WinCo Form and will continue in full force and effect so long as there is a current WinCo Form in effect unless otherwise terminated in accordance with the terms outlined herein (“Term”). Unless otherwise mutually agreed in writing, WinCo may terminate this Agreement, in whole or in part, for its convenience upon 30 days’ prior written notice to Vendor, in which event Vendor will be entitled to payment for all Products delivered and accepted through the effective date of such termination, payments will be made according to existing payment terms. WinCo will have no other liability arising out of termination of this Agreement.
  3. Products. Vendor will produce and sell to WinCo the Products at the Prices described in a WinCo Form in accordance with any applicable product specifications and the Terms and Conditions.
  4. Prices. Prices are firm for the Term, quoted and payable in U.S. dollars, and inclusive of all fees, taxes and other charges of any kind whatsoever (“Price(s)”) unless changes are expressly agreed upon by the parties as specified herein. Any proposal for revisions to Prices for any subsequent WinCo Form must be submitted in writing by Vendor to WinCo, as applicable, at least 60 days in advance of any proposed Price change date. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, until acceptance of the applicable Price Change form by WinCo Foods. Certain commodities may be exempt from this requirement and WinCo will communicate such exemption to Vendor if it applies.
  5. Purchase Orders. Vendor must have a valid purchase order provided to Vendor by WinCo indicating the products, quantities, anticipated delivery of the Product(s), and a unique number (“Purchase Order”) prior to shipping items to WinCo. All shipments to WinCo must have a unique Purchase Order accompanying each shipment. Vendor will fill orders during the Term in accordance with the Terms and Conditions.
  6. Invoices; Payments. WinCo will pay Vendor for the Products in accordance with pricing terms set out in the WinCo Form and as outlined below.
    1. Vendor will deliver an invoice for each Purchase Order delivered to WinCo that placed such Purchase Order at the address indicated.
    2. WinCo will pay the amounts set forth in any undisputed and properly processed Invoice according to the payment terms established on the WinCo Form. Payment will be made by check or electronic funds transfer, at WinCo’s discretion. WinCo’s preferred method of payment is via electronic funds transfer. WinCo counts terms from date of receipt or invoice date, whichever is later.
    3. Agreed upon discounts related to payment terms & leaker/swell allowances will be calculated as a percentage of gross list price.
    4. Freight allowances will be calculated on the PO total weight ordered (before any shortages from manufacturer at loading).
    5. WinCo will process and remit payment according to WinCo’s calculated invoice total and notify Vendor in writing of any dispute with respect to any payment adjustments. WinCo will not be required to pay any disputed invoice amounts until such dispute is resolved.
    6. All claims for money due or to become due from WinCo will be subject to deduction or set-off by WinCo by reason of any claim WinCo has against Vendor, regardless of whether such claim(s) relate to this Agreement.
    7. Should WinCo overpay an invoice, Vendor will return the overpayment to WinCo within 15 days after receipt thereof.
    8. Credits against future purchases not taken by WinCo within 90 days from issuance will be remitted by check or electronic funds transfer to WinCo.
    9. Vendor shall include on each invoice (i) Purchase Order number; (ii) carton and number of cartons in the shipment; (iii) Vendor’s invoice number; (iv) warehouse name; (v) Vendor’s assigned Vendor number; (vi) identification of WinCo as the buyer, identification of the seller and notation of when and where the item was sold; (vii) a detailed manufacturer name and address. Vendor also agrees to include on each invoice any additional information required by WinCo for specific products, such as country of origin, Proposition 12 requirements, etc.
    10. Vendor will maintain complete and accurate records of all invoices, charges and taxes under this Agreement, in accordance with generally accepted accounting principles, during the term of this Agreement and for a period of 24 months after the date of termination or expiration. WinCo may inspect and copy Vendor’s records upon reasonable notice.
  7. Deliveries. Products purchased from Vendor will be shipped to an agreed upon location (“Receiving Location”). Vendor bears all risk and shipping, storage and related costs associated with delivering the Products to the Receiving Location (including, without limitation, all arrangements with any carrier and any losses or damages to the Product resulting from any such carrier arrangement or shipment) ready for unloading and cleared of any import obligations or requirements. Title and risk of loss or damage for Products will pass to WinCo, as applicable, at the time Vendor transfers possession of the Products to WinCo at the Receiving Location. Vendor will provide advance notice to WinCo if any shipment will be late. WinCo will have the right to cancel any late shipments of Product without liability to WinCo and if WinCo elects to accept the late shipment, Vendor will be responsible for any charges associated with such delivery. Vendor shall refer to Vendor Portal policies for additional detention and unloading fees and terms.
  8. Acceptance and Inspection of Orders. WinCo will have a reasonable time within which to inspect the Products before accepting them. If the Products do not conform to the Terms and Conditions, any WinCo policy or requirement, the applicable WinCo Form, any applicable product specifications, Applicable Law (as defined below) or are otherwise, in whole or in part, defective, WinCo will have the right, in addition to any and all other rights under the Terms and Conditions or arising at law or in equity, to reject all or any portion of the affected Products (“Rejected Product(s)”) and elect to receive replacement Products, a credit to any pending or future invoices or a refund of any amounts paid for such Product. Rejected Products will be destroyed or returned to Vendor at WinCo’s sole discretion. Any costs incurred by WinCo under this Section shall be borne by Vendor. “Applicable Law” means any federal, state and local laws, ordinances and codes, together withal rules, regulations, policies, and guides promulgated thereunder, applicable to the Products.
  9. Cancellation of Orders. WinCo may cancel any Purchase Order, in whole or in part, upon notice for any reason at any time prior to shipment of the cancelled portion without liability to WinCo, or at any time for any reason described in the Terms and Conditions or if Vendor becomes the subject of any voluntary or involuntary bankruptcy, receivership or other insolvency proceedings or makes an assignment or other arrangement for the benefit of its creditors.
  10. Unsellable Products. Vendor agrees to cover the cost of product loss due to manufacturing defects or other circumstances that deem a product unsellable. All Vendors will be auto enrolled into the reclamation program outlined in the “Reclamation Policy.” Terms of Reclamation Policy are available on the Vendor Portal. Vendor has the right to offer a swell or damage allowance on each Purchase Order in lieu of participation in reclamation. Vendor is solely and completely responsible to request an allowance program and negotiate the rate of allowance required to halt participation in reclamation program.
  11. Fixtures. Any fixtures supplied by the Vendor to WinCo for use in its stores shall become the property of WinCo and WinCo shall have the sole and exclusive right to utilize such fixtures as WinCo sees fit, including discarding or destruction of such fixtures without providing notice to Vendor.
  12. Representations and Warranties. Vendor represents and warrants as follows:
    1. Upon delivery of any Products, WinCo will have good and marketable title thereto, free and clear of any and all liens, encumbrances and other restrictions against transfer;
    2. All Products, when delivered to WinCo, will (i) be free from defects in packaging, labeling, materials, workmanship, design and/or performance, (ii) be merchantable and fit for their intended use (and, in the case of food and dietary supplement Products, be fit for human consumption), (iii) conform to all applicable specifications (including those set forth in the Terms and Conditions), (iv) be unadulterated, and (v) be produced in accordance with, and conform to, all Applicable Laws;
    3. Vendor will pass through to WinCo any warranties received by Vendor from the manufacturer of any component of any Product;
    4. If applicable, all services will (i) be performed in a professional and workmanlike manner, consistent with industry standards, to WinCo’s reasonable satisfaction, (ii) conform to the specifications set forth in the Terms and Conditions, and (iii) be fit and sufficient for the purposes expressed in or reasonably inferred from these Terms and Conditions;
    5. Vendor has the requisite ownership, rights and licenses to fully perform its obligations hereunder, free and clear from any and all liens, adverse claims, encumbrances and interests of any third party;
    6. There are no pending or threatened lawsuits, claims, disputes or actions (i) alleging that any Products infringe, violate or misappropriate any third party rights or (ii) adversely affecting any Products or Vendor’s ability to perform its obligations hereunder; and
    7. The Products will not violate, infringe, or misappropriate any patent, copyright, trademark, trade secret, or other intellectual property or proprietary right of any third party. The above representations and warranties will: (i) survive inspection, acceptance and payment and (ii) run to the benefit of WinCo and its successors in interest, assigns, agents and customers.
    8. Vendor further represents and warrants that it: (i) is duly organized and validly existing under the laws of its jurisdiction of formation and is authorized to do business in any other jurisdiction as required in order to provide any services, if applicable; (ii) has all requisite power, authority, insurance, bonds, permits and licenses to execute and deliver the Products pursuant to any WinCo Form, policy, or any other document, agreement, certificate or instrument necessary to consummate the transactions and perform its obligations hereunder or any WinCo Form; (iii) Vendor’s performance of its obligations hereunder or pursuant to any WinCo Form will not result in a violation or default of any governing document applicable to Vendor, any other agreement of whatever nature to which Vendor is a party or by which it is bound, or any provision of any Applicable Law; (iv) will develop and maintain “Corrective and Preventive Action Plans” (defined below), recall policies and quality procedures and practices reasonably acceptable to WinCo, and will provide WinCo with a copy of such procedures and policies applicable to the Products prior to submission of any WinCo Form along with such other information concerning quality assurance as WinCo may request from time to time. Corrective and Preventive Action Plans refers to action plans and preventative measures to prevent future occurrences when Products are non-conforming. If there is an issue with a Product, Vendor will be asked to provide information regarding the root cause (what happened), corrective actions (what is being done to correct the issue now), and preventative measures (what changes have been made to prevent reoccurrences in the future).
  13. Vendor Obligations. Vendor shall: (a) before the date on which the business relationship with WinCo is to start, obtain, and at all times during the term of this Agreement, maintain, all necessary licenses and consents and comply with all Applicable Laws to the business relationship with WinCo, and comply with all rules, regulations and policies of WinCo; (b) maintain complete and accurate records relating to the provision of the Products under this Agreement and upon WinCo’s written request, Vendor shall allow WinCo to inspect and make copies of such records and interview Vendor personnel in connection with the provision of the Products; (c) ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of the Vendor, are properly licensed, certified or accredited as required by Applicable Law and are suitably skilled, experienced and qualified to perform its duties hereunder; (d) direct and supervise all Vendor personnel interacting with WinCo; (e) immediately provide WinCo with a copy of any notice, complaint, charge, or legal action received by Vendor if such notice, complaint, charge, or legal action concerns WinCo’s workplace or WinCo’s compliance with any Applicable Laws related to its workplace, including any notice, complaint, or charge made by a government agency or Vendor personnel.
  14. Confidentiality. Each party hereto that receives any Confidential Information (as defined below) of the other party will maintain in strict confidence and not use or disclose to any third party such Confidential Information except as specifically provided herein or otherwise authorized by the disclosing party in writing. For purposes of this Agreement, “Confidential Information” means any confidential or proprietary information of the disclosing party, whether of a technical, business or other nature (including, but not necessarily limited to:  this Agreement, trade secrets, know-how, technology and information relating to the customers, business plans, promotional and marketing activities, finances, sales information, cost of goods, and other business affairs of such party).  However, Confidential Information does not include any information that (a) is lawfully known to the receiving party prior to disclosure by the disclosing party without any obligation of confidentiality as evidenced by presently existing documents, (b) is rightfully received by the receiving party from a third party having the right to disclose the information without breaching an obligation to the disclosing party; (c) becomes known to the public generally through no wrongful act by the receiving party; or (d) required by law to be disclosed, provided that written notice of such intent to disclose is delivered to the owner of the Confidential Information prior to any disclosure, except in the case of WinCo providing Vendor Confidential Information required by a regulatory agency, in which case no prior notification is required. Vendor acknowledges that WinCo’s Confidential Information is valuable and proprietary property of WinCo. All Confidential Information will be used by Vendor for the sole and exclusive purpose of furthering the business relationship between Vendor and WinCo. If any unauthorized disclosure of Confidential Information occurs or is suspected by Vendor, Vendor will immediately notify WinCo of the full particulars of such actual or suspected disclosure. Upon WinCo’s request, Vendor will promptly destroy or return to WinCo all Confidential Information in the possession of Vendor together with all copies thereof and documents based thereon. Except as required by law, neither party will disclose the Terms and Conditions to any third party other than WinCo or a third-party authorized by WinCo. No commercial or technical information disclosed or supplied by Vendor to WinCo is deemed secret or confidential unless otherwise agreed in writing by the parties.
  15. Vendor Indemnification. Vendor will, at all times, indemnify, defend and hold harmless to the fullest extent permitted by law WinCo (including its officers, directors, employees, and affiliates) from and against all losses, costs, claims, demands, expenses or liabilities of every kind and character (including, without limitation, attorneys’ fees) incurred in connection with any action, suit, proceeding, claim, demand, investigation or inquiry (formal or informal), or any settlement thereof, whether or not a formal proceeding or action has been instituted which arises out of or is based upon any of the following: (i) any act, omission, negligence or fault of Vendor or its employees or agents; (ii) any breach by Vendor of its representations, warranties or covenants hereunder; (iii) any claim that any Product or its use by WinCo, infringes, violates or misappropriates any copyright, trademark, patent, trade secret or other intellectual property right of any third party; (iv) any Product recall or withdrawal or safety notice initiated as a result of a request or order by a government agency, court, local health authority or consumer protection agency; (v) violation of any Applicable Law by Vendor; (vi) any and all costs associated with any Corrective and Preventive Action Plan or Product recall in accordance with the Terms and Conditions; (vii) the personal injury to or death of any Person, however occurring, that is caused by any Product or any defect in any Product; (viii) the personal injury to or death of any Person, however occurring, that is caused wholly or in part by Vendor or its employees or agents; or (ix) Vendor’s agreement with any third-party designated by Vendor (“Designee”), Vendor’s sale of Products to any Designee or any other aspect of Vendor’s relationship with any Designee. WinCo will notify Vendor within a reasonable time after it becomes aware of any indemnification claim hereunder. Provided that Vendor promptly and reasonably investigates and defends any such indemnification claim, Vendor, with counsel subject to the reasonable approval of WinCo, will have control over the defense and settlement thereof; however, any proposed settlement is subject to WinCo’s reasonable approval. WinCo will furnish, at Vendor’s request and expense, such information and assistance as may be reasonably necessary for such defense.
  16. Limitation of Liability. Except for any breach of Section 12 (Confidentiality) hereof and each party’s indemnification obligations hereunder, neither party will be liable to the other for consequential, incidental, indirect, punitive or special damages, including commercial loss and lost profits, however caused and regardless of legal theory or foreseeability, directly or indirectly arising under this Terms and Conditions, even if such party has been apprised of the possibility of such damages.
  17. Government Inspections. Following any inspection, observation or evaluation with findings of any of Vendor’s facilities where the Products are manufactured, produced or packaged, or any portion thereof, by any local, state or national government authorities, Vendor will, within 24 hours after Vendor receives a report or other results of such inspection, observation or evaluation, provide WinCo a complete copy of such report or other findings of such governmental authorities in connection with such inspection, observation or evaluation. Vendor will, within 30 days or the time period specified by the governmental authority, whichever is shorter, take such action as is required to comply with any suggested or required improvements or modifications to Vendor’s facilities proposed by such governmental authority, including, without limitation, state and local tax offices, health departments, labor departments, the Occupational Safety and Health Administration, FDA, USDA and the Internal Revenue Service.
  18. Product Recall. If any Products are subject to a recall by any governmental agency or Vendor, Vendor shall first notify WinCo by utilizing the 24/7 on-line recall notification process (which is accessible on our Vendor Portal by simply clicking on a tab and filling in information). Vendor shall also notify their WinCo buyer by email including documentation and follow-up by phone. WinCo’s “Recall Policy” requires all product to be disposed at store level, with a mandatory disposal for all Class 1 recalls at store and warehouse. WinCo’s current recall fee structure will be posted to the Vendor Portal. Proper instructions regarding warehouse pick up is required at time of notification. Vendor shall provide a formal notification that includes all the appropriate information for WinCo to create the warehouse and retail recall/withdrawal notice. This information shall include the following:
    1. Vendor initiating the withdrawal
    2. Product Name
    3. Product UPC
    4. How the recalled Product will be identified (lot number, pack date, etc.) and whether we are going to recall specific Product ID’s or all. This will depend on the complexity and number of recalled lot numbers. Product and lot code location photos for impacted item.
    5. What warehouse(s) or DSD stores are involved
    6. Is the recall being made with FDA, USDA, or other governing agency knowledge?
    7. Is the recall being made using the Reportable Food Registry?
    8. What the recall classification is (Class 1, 2, 3) or Product withdrawal (4)
    9. WinCo stores will follow proper handling of any Product recalled or withdrawn identified as hazardous material by WinCo. WinCo stores will place Product into the hazardous waste station for proper disposal.
    10. How the stores and warehouses will process the recalled Product. Please note that holding any recalled Product at the store level is not an option and holding level 1 recalled Product at the warehouse is not an option.
    11. Phone number or email for the consumers to contact the Vendor initiating the recall.
    12. Reason for the recall.
    13. Certificate of destruction requests must be included with the initial notification for warehouse recalls. This is not required for store recalls.
  19. Insurance. Vendor shall provide, at Vendor’s sole expense and in Vendor’s name, commercial general liability, product liability and completed operations, automobile, employer’s liability, worker’s compensation, and/or other insurance as WinCo may require for claims involving personal injury, bodily injury, property damage, advertising injury, product recall, or other losses arising out of or in connection with the Products and/or obligations hereunder.  WinCo shall be named as an additional insured on such insurance policies (except employer’s liability and worker’s compensation).  In the event Vendor receives notice of cancellation or nonrenewal of any such insurance policies, Vendor shall immediately notify WinCo.  Vendor shall provide to WinCo a certificate of insurance showing proof of insurance and naming WinCo as an additional insured.  WinCo shall not be obligated to pay any Vendor invoices until such time as Vendor shall submit to proof of required insurance. Vendor will maintain and provide, at a minimum, the following insurance coverages: (a) commercial general liability coverage in the amount of $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate (naming WinCo as an additional insured); (b) automobile coverage in the amount of $1,000,000.00 per occurrence (naming WinCo as an additional insured only if Vendor will come on to WinCo’s property); (c) employer’s liability in the amount of $1,000,000.00 per occurrence and workers’ compensation as required by state statute (only if Vendor will come onto WinCo’s property)(will not name WinCo as an additional insured on these policies); and (d) product liability coverage and completed operations in the amount of $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate (naming WinCo as an additional insured). In the event Vendor receives notice of cancellation or nonrenewal of any such insurance policies, Vendor shall immediately notify WinCo.  Upon request, Contractor shall provide to WinCo a certificate of insurance showing proof of insurance and naming WinCo as an additional insured.  Vendor shall also comply with any additional insurance requirements that may be outlined in other WinCo policies, requirements, or manuals.
  20. Safety; Employment Matters. The safety and health of Vendor’s employees and agents brought on WinCo premises will be the sole responsibility of Vendor. While on any WinCo premises Vendor and its employees and agents will comply with these Terms and Conditions, all WinCo policies, and all federal, state and local environmental, health and safety requirements, including those relating to the use and handling of hazardous materials. Vendor will immediately report any accidents, injuries and property damage arising from or during the performance of this Terms and Conditions. Vendor will provide WinCo with copies of any safety, health and accident reports that Vendor files with any third party with respect to the performance of its obligations hereunder. Vendor and its employees will comply with all of WinCo’s policies relating to ethical and professional conduct. Vendor shall comply with all regulations and all federal, state, and local laws related to employment of its employee.
  21. Independent Contractor. Vendor acknowledges and agrees that it is an independent contractor of WinCo and not an agent or employee of WinCo and is not authorized to act as agent or employee of WinCo. Nothing in this Agreement shall be interpreted or construed as creating or establishing an employment relationship between WinCo and Vendor. These Terms and Conditions do not create a partnership, joint venture or similar relationship between the parties, and neither party will have the power to obligate the other in any manner whatsoever.
  22. Intellectual Property. For the purposes of these Terms and Conditions, “WinCo’s Intellectual Property” means all patent rights, copyright rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory , or other jurisdiction. WinCo’s Intellectual Property is, and will remain, the sole and exclusive property of WinCo and its Affiliates. Vendor recognizes the value of the goodwill associated with the WinCo’s Intellectual Property and acknowledges that all rights therein belong exclusively to WinCo and its Affiliates, and Vendor has not acquired, and will not acquire, any right, title or interest in any of WinCo’s Intellectual Property. Neither the Vendor, nor any of its employees or agents shall refer to WinCo or utilize any of WinCo’s Intellectual Property in any manner in publicity releases or advertising, including customer lists, or for other promotional purposes, without securing the prior written consent of WinCo.
  23. Compliance with Applicable Laws. Vendor will, at its expense, obtain all permits and licenses, pay all fees and comply with all federal, state and local laws, ordinances, rules, regulations and orders applicable to Vendor’s performance hereunder.
  24. Time is of the Essence. Vendor agrees that time is of the essence with respect to the performance of its obligations hereunder.
  25. Non-exclusivity. WinCo’s engagement of Vendor under these Terms and Conditions is non-exclusive and will not limit WinCo’s right to engage third parties (including, without limitation, other Vendors and/or independent contractors) to supply goods or render services of any nature to WinCo.
  26. Force Majeure. For the purposes of these Terms and Conditions, the term “Force Majeure Event” shall mean delay in performance directly due to any strike, lockout, civil commotion, labor troubles, riot, insurrection, war, invasion, rebellion, military or usurped power, pandemic, sabotage, act of God, governmental laws or regulations taking effect or implemented after the issuance of a Purchase Order or WinCo Form, or other reason of a like nature not the fault of the party delayed in performing work or doing acts required under the terms of a Purchase Order or WinCo Form. Neither party will be held responsible for failure to perform its obligations under the Terms and Conditions or any WinCo Form due to a Force Majeure Event to the extent and for the length of time that performance is rendered impossible or commercially impractical; provided, however, upon the occurrence of a Force Majeure Event, the party that is unable to perform its obligations hereunder will promptly notify the other party in writing of the existence, nature, and expected duration of the Force Majeure Event and use all reasonable efforts to overcome the effects of the Force Majeure Event and resume performance as soon as reasonably practicable. If any Force Majeure Event affects Vendor’s ability to produce and deliver the Products, Vendor will, at its expense, obtain the Products from a third-party Vendor selected by WinCo to fulfill WinCo Forms during such Force Majeure Event.
  27. Entire Agreement; Amendments. These Terms and Conditions and any WinCo Forms agreed upon by the Parties represents the entire Agreement of the Parties and supersedes any and all prior agreements or understandings between the Parties. These Terms and Conditions shall not be varied or modified by any oral representations by or on behalf of either Party herein. Except as expressly authorized by these Terms and Conditions may be amended or modified only by a written instrument executed by duly authorized representatives of both Parties. Completion of a WinCo Form or Purchase Order constitutes acceptance of these Terms and Conditions. Any proposal made by Vendor for additional or different Terms and Conditions or any attempt by Seller to vary these Terms and Conditions is hereby rejected.
  28. Additional Policies/Notices. It is the responsibility of the Vendor to ensure that its representatives and employees understand and comply with these Terms and Conditions, Notices and all Policies, including, but not limited to, the Warehouse Policies and Procedures, available on the Vendor Portal.
  29. Vendor Conduct. Vendors are expected to self-monitor their conduct and are expected to conduct themselves in a professional and ethical manner at all times when on WinCo property. In addition to any other rights WinCo may have under these Terms and Conditions, WinCo may request the immediate removal of any Vendor employee or representative who behaves in a manner that is unlawful or inconsistent with these Terms and Conditions or with any other WinCo policy. All Vendors are required to educate and train their employees and agents to ensure that they understand and comply with the terms of these Terms and Conditions and any other WinCo policy.
  30. Cumulative Remedies. Each right and remedy hereunder is cumulative with each and every other right and remedy herein or in any other agreement between the parties or under Applicable Law.
  31. Notice. All notices required under these Terms and Conditions will be given in writing and sent to the parties at the addresses stated in any applicable WinCo Form. Notice will be deemed given: (i) upon receipt if delivered by hand; (ii) one (1) business day after delivery to an overnight courier service with next-day service requested; or (iii) on the third (3rd) business day after mailing, if mailed using certified mail, sent to the following address:

WinCo Foods, LLC
Attn:  Procurement Department
650 N. Armstrong Place
Boise, ID 83704

With copy to:

 

WinCo Foods, LLC
Attn:  Legal Department
650 N. Armstrong Place
Boise, ID 83704

  1. Severability; Waiver. If one or more of the provisions contained in these Terms and Conditions shall be held unenforceable in any respect, its unenforceability shall not affect any other provision of these Terms and Conditions and these Terms and Conditions shall be construed as if the unenforceable provision had never been included. The waiver by either party of any covenant or condition of these Terms and Conditions shall not thereafter preclude such party from demanding performance in accordance with the terms hereof.
  2. Binding Effect; Assignment. The rights and obligations of each party will be binding upon and inure to the benefit of its successors and assigns; provided, however, that Vendor may not assign or subcontract this Terms and Conditions, in whole or in part, without the prior written consent of WinCo. Any attempted assignment or subcontracting by Vendor without WinCo’s prior written consent will be null and void.
  3. Negotiation of Terms. Each party agrees that it has had the opportunity to fully negotiate these Terms and Conditions. In the event an ambiguity or question of intent or interpretation arises, the Terms and Conditions will be construed as if jointly drafted by the parties and no presumption, inference or burden of proof will arise favoring or disfavoring a party by virtue of its authorship of any or all of this Terms and Conditions’ provisions.
  4. Dispute Resolution. The laws of Idaho (without giving effect to any conflict of laws) will govern the parties’ relationship and the interpretation and enforcement of the Terms and Conditions and any WinCo Form. WinCo and Vendor acknowledge and agree that the activities contemplated hereby occur in Ada County, Idaho. If the parties are unable to resolve any claim, controversy or dispute by negotiation between their senior executives, then such claim, controversy or dispute will be brought in the state and federal courts located in Ada County, Idaho, and each of the Parties submits to the exclusive jurisdiction of such courts. WinCo and Vendor each agrees that such courts are a reasonable venue and waives and agrees not to assert by way of motion, defense or otherwise, any claims that it is not subject to the jurisdiction of such courts, that such suit is brought in an inconvenient forum or that the venue of the suit is improper. ANY LEGAL ACTION IN CONNECTION WITH THESE TERMS AND CONDITIONS WILL BE TRIED TO THE COURT SITTING WITHOUT A JURY, AND ALL PARTIES WAIVE ANY RIGHT TO HAVE ANY ACTION TRIED BY JURY.