Petco Standard Terms and Conditions

The following Standard Terms and Conditions ("T&Cs") only apply to transactions that do not have a written master agreement (MA), duly executed by both parties. If there is such an agreement, then those terms shall be the terms that govern the transaction and relationship of the parties.

In the absence of such a MA, duly executed by both parties, then these T&Cs provide you ("Seller") with the guidelines and legal stipulations of your purchase order ("PO") with the Petco Animal Supplies Stores, Inc., along with any affiliates and or subsidiaries ("Purchaser") for the goods and/or services that are described on the face of the PO.

1. ACCEPTANCE AND TERMS AND CONDITIONS: Seller accepts the PO and any amendments by written or electronic acceptance of the PO. Even without such written acknowledgment, Seller's full or partial performance under the PO will constitute acceptance of these T&Cs. By acceptance of the PO, Seller agrees to be bound by, and to comply with all of these T&Cs, the PO. These T&Cs apply to everything listed in the PO and constitute Purchaser's offer to Seller, which Purchaser may revoke at any time prior to Seller’s acceptance. The PO is not an acceptance by Purchaser of any offer to sell, any quotation, or any proposal. Reference in the PO to any such offer to sell, quotation, or proposal will not constitute a modification of any of these T&Cs. T&Cs and conditions different from or in addition to these T&Cs, whether contained in any acknowledgment of the PO, or with delivery of any goods or services under the PO, or otherwise, will not be binding on Purchaser, whether or not they would materially alter the PO, and Purchaser hereby rejects them. These T&Cs may be modified only by a written document signed by duly authorized representatives of Purchaser and Seller.

2. DEFAULT: Time is of the essence with respect to the PO. Purchaser may by written notice of default to Seller (a) terminate all or any part of the PO if Seller fails to perform, or so fails to make progress as to endanger performance of the PO in accordance with its terms, and does not cure such failure within a period of ten (10) days (or such longer period as Purchaser may authorize in writing) after receipt of notice from Purchaser specifying such failure; and (b) procure, on such terms as it will deem appropriate, goods or services similar to those so terminated. Seller will continue performance of the PO to the extent not terminated and will be liable to Purchaser for any excess costs for such similar goods or services. As an alternate remedy, and in lieu of termination for default, Purchaser, at its sole discretion, may elect to extend the delivery schedule and/or waive other deficiencies in Seller's performance, in which case an equitable reduction in the PO price will be negotiated. If Seller for any reason anticipates difficulty in complying with the required delivery date, or in meeting any of the other requirements of the PO, Seller will promptly notify Purchaser in writing. If Seller does not comply with Purchaser's delivery schedule, Purchaser may require delivery by fastest way and charges resulting from the premium transportation must be fully prepaid and absorbed by Seller. The rights and remedies of Purchaser provided in this Section 2 will not be exclusive and are in addition to any other rights and remedies provided by the Uniform Commercial Code, by law, at equity or under the PO.

3. PRICE: The PO must not be filled at a price higher than shown on the face of the PO. If no price is set forth on the front of the PO, the goods or services will be billed at the price last quoted or at the prevailing market price, whichever is lower, and, in any event, goods and services ordered under the PO will not be billed at a higher price than last quoted or charged without Purchaser's specific written authorization. Purchaser will be entitled at all times to set off any amount owed at any time by Seller or any of its affiliates to Purchaser or any of its affiliates against any amount payable at any time by Purchaser in connection with the PO. No extra charges of any kind will be allowed unless specifically agreed to in writing by the Purchaser. All applicable taxes arising out of transactions contemplated by the PO will be borne by Seller except as otherwise specified by the parties in writing. If Seller reduces its prices for such goods and/or services during the term of the PO, Seller shall correspondingly reduce the prices of goods and/or services sold thereafter to Purchaser under the PO.

4. INVOICES, PAYMENT, AND TAXES:
(a) Invoices shall be rendered on completion of services or delivery of goods and shall contain the Purchase PO Number, item number, description of goods or services, quantities, unit prices, date(s) rendered and total purchase price. Each invoice must refer to one, and only one, PO.

(b) unless otherwise set forth in the PO, payment shall be made on the terms of net 90 days from the latter of the date of invoice or receipt of invoice. Petco shall make scheduled payments twice a month following net terms. Cash discount periods shall be computed from either the date of actual receipt of goods or the date an acceptable invoice is received, whichever is later. All claims for money due or to become due from Purchaser shall be subject to deduction by Purchaser for any setoff or counterclaim arising out of this or any other of Purchaser's POs with Seller.

(c) Seller recognizes that Purchaser will be treated as a tax exempt entity, and Purchaser will provide Seller with its exemption certificate on request. All invoices of Seller to Purchaser shall exclude taxes that are excludable under Purchaser’s tax exempt status.

(d) If Seller owes Petco a credit or other amount under this Agreement (e.g., for delay or failure to achieve a milestone), Seller will pay that amount by check or wire transfer within 60 days following notice from Petco of such amounts due.

(e) Charges, if any, that Seller fails to invoice to Petco within 120 days, from either the date the goods are received by or date the services are performed, will not be payable by Petco. In the case of third party charges for which Petco is responsible for paying or reimbursing Seller, the 120-day period will not begin to run until Seller has been invoiced for such charges by the applicable third party.

6. INSPECTION: All goods and services will be subject to inspection and test by Purchaser at all times and places, including the period of manufacture and in any event prior to final acceptance. Final acceptance or rejection of the goods or services will be made as promptly as practical after delivery except as otherwise provided in the PO, but failure to inspect and accept or reject goods or services or failure to detect defects by inspection, will neither relieve Seller from responsibility for such goods or services as are not in accordance with the PO nor impose liabilities on Purchaser for them. Purchaser's payment for the goods shall not constitute its acceptance of the goods. Goods rejected and goods supplied in excess of quantities ordered may be returned to the Seller at Seller’s expense. Payment, if any, made for any goods rejected hereunder shall be promptly refunded by Seller. Seller will provide and maintain an inspection and process control system acceptable to Purchaser covering the goods and services ordered. Records of all inspection work by Seller will be kept complete and available to Purchaser during the performance of the PO and for five (5) years after Seller's completion of the PO. If any of the goods or services are found at any time to be defective in material or workmanship, or otherwise not in conformity with the requirements of the PO, including any applicable drawings and specifications, then Purchaser, in addition to such other rights and remedies it may have by contract or by law or equity, at its sole discretion may reject and return such goods at Seller's expense, require Seller to inspect the goods and remove nonconforming goods and/or require Seller to replace nonconforming goods or services with conforming goods or services. If Seller fails to make the necessary inspection, removal, and replacement in a time and manner satisfactory to Purchaser, Purchaser may at its option inspect and sort the goods; Seller will pay any related costs.

7. WARRANTIES: Seller represents and warrants that (a) all goods and services are free of any claim of any nature by any third person and that Seller will convey clear title to Purchaser, (b) all services are performed in a manner acceptable in the industry and in accordance with generally accepted standards and are performed in strict accordance with the specifications or other requirements (including performance specifications) approved or adopted by Purchaser, (c) all goods sold will be of merchantable quality, free from all defects in design, workmanship and materials, and fit for the particular purposes for which they are purchased and that the goods and services are provided in strict accordance with the specifications, samples, drawings, designs or other requirements (including performance specifications) approved or adopted by Purchaser, (d) the prices for the goods or services sold to Purchaser under the PO are not less favorable than those currently extended to any other customer for the same or similar goods and/or services in equal or lesser quantities, and (e) Seller shall not act in any fashion or take any action that will render Purchaser liable for a violation of any applicable anti-bribery legislation (including without limitation, the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act 2010), which prohibits the offering, giving, or promising to offer or give or receiving, directly or indirectly, money or anything of value to any third party to assist it, them or Purchaser in retaining or obtaining business or in procuring the goods or services. Purchaser's inspection, test, acceptance, or use of the goods shall not affect Seller's obligations under these warranties. Seller shall replace or correct, at Purchaser's option and at Seller's cost, defects of any goods not conforming to these warranties. Any attempt by Seller to limit, disclaim, or restrict these warranties or any remedies of Purchaser, by acknowledgment or otherwise, in accepting or performing the PO, will be null, void, and ineffective without Purchaser's written consent.

8. INDEMNIFICATION: Seller shall indemnify and hold harmless Purchaser, its corporate parents, subsidiaries, affiliates and all their employees, officers, directors, agents and representatives and, on Purchaser’s request, shall defend each of them from and against any or all third party claims, demands, litigation, or proceedings of whatever kind, whether based upon negligence, breach of express or implied warranty, strict liability, infringement of intellectual property rights, or any other theory, and from and against all damages of every kind whatsoever, arising out of, by reason of, or in any way connected with the goods and/or services, the design, manner of preparation, manufacture, construction, completion, or delivery or non-delivery of any goods and/or services by Seller, any breach by Seller of any of its obligations hereunder, or any other act, omission or negligence of Seller or any of Seller's employees, workers, servants, agents, subcontractors, or suppliers. Seller shall, on request, pay or reimburse Purchaser or any other party entitled to indemnification hereunder for all costs and expenses, including attorneys' fees, as incurred by Purchaser or such other party in connection with any such claim, demand, litigation, proceeding, loss, or damage. In addition, for infringement claims, Seller will, at its own expense and at Purchaser’s option, either procure for Purchaser the right to continue using the allegedly infringing item, replace it with a non-infringing equivalent, or remove it and refund the purchase price and the transportation and installation costs thereof.

9. LIMITATION OF LIABILITY: PURCHASER'S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THE PO IS LIMITED TO THE AMOUNT PAID BY PURCHASER FOR THE GOODS AND/OR SERVICES. TO THE MAXIMUM EXTENT ALLOWABLE UNDER APPLICABLE LAW, PURCHASER SHALL NOT BE LIABLE UNDER THE PO FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUES EVEN IF PURCHASER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10. PURCHASER'S PROPERTY: Tangible or intangible property of any nature furnished to Seller by Purchaser or specifically paid for in whole or in part by Purchaser, and any replacements or attachments, are the property of Purchaser and, unless otherwise agreed in writing by Purchaser, will be used by Seller solely to render services or provide goods to Purchaser. Seller will not substitute any property or take any action inconsistent with Purchaser's ownership of such property. While in Seller's custody or control such property will be held at Seller's risk, will be kept insured by Seller at its expense for its replacement cost with loss payable to Purchaser, and will be subject to removal at Purchaser's written request, in which event Seller will prepare such property for shipment and redelivery to Purchaser in the same condition as originally received by Seller, reasonable wear and tear excepted, all at Seller's expense.

11. CHANGES/TERMINATION: Purchaser may, by submitting a written change order or notice of cancellation to Seller, change or cancel all or a part of the PO for convenience prior to the date the goods are shipped or the performance of the services is commenced by Seller.

12. COMPLIANCE WITH LAWS: Seller represents and warrants that it is in compliance with and all goods and/or services supplied hereunder have been produced or provided in compliance with the applicable provisions of all federal, state, or local laws or ordinances and all related lawful orders, rules and regulations. Seller shall comply with any provisions, representations, or agreements, or contractual clauses required to be included or incorporated by reference or operation of law in any PO. Seller shall be required to obtain and pay for any license, permit, inspection or listing by any public body or certification organization required in connection with the manufacture, performance, completion or delivery of any good and/or service.

13. CONFIDENTIAL OR PROPRIETARY INFORMATION: Each party undertakes to keep confidential all information (written or oral) concerning the business and affairs of the other party that the receiving party has obtained or received in contemplation of or in performance of the PO and not to disclose such information in whole or in part to any other person without the disclosing party’s written consent other than those of the receiving party’s employees, agents, and sub-contractors involved in the performance of the receiving party’s obligations under the PO on a confidential and need-to-know basis; provided, however, that the receiving party’s obligation of confidentiality shall not apply to information when it is (i) known to the receiving party before receipt from the disclosing party; (ii) generally available to the public without the fault or negligence of the receiving party; (iii) received by the receiving party from a source other than the disclosing party without breach of an obligation of confidentiality owed to the disclosing party; (iv) independently developed by the receiving party without any use of the disclosing party’s confidential information; or (v) required to be disclosed by the receiving party pursuant to law, regulation or court order, in which case the receiving party shall provide the disclosing party with prompt written notice of its requirement to disclose such information and shall take reasonable actions and provide reasonable assistance to the disclosing party to secure confidential treatment of the confidential information. All confidential information shall remain the property of the disclosing party, and all copies and excerpts thereof shall be promptly returned or destroyed at the receiving party’s election upon request by the disclosing party, except that the receiving party’s legal counsel may retain a copy, for use only as a record of the disclosure. Nothing herein shall be construed as granting to the receiving party any proprietary rights, express or implied, including but not limited to copyright, patent, trade secret, or trademark rights in the disclosing party’s confidential information, other than the right to use it for the mutual purpose of the PO. The parties acknowledge that a breach of this confidentiality section would cause irreparable harm for which injunctive relief is appropriate, without requirement of further proof, in addition to any monetary damages as may be awarded by a court of competent jurisdiction.

14. WORK ON PURCHASER'S PREMISES: If Seller's work under the PO requires Seller to be on the premises of Purchaser or at Purchaser’s direction, Seller will take all necessary precautions to prevent any injury to persons or damage to property, including following any rules, procedures or other requirements of Purchaser.

15. INSURANCE: Seller will maintain Comprehensive General Liability (including Contractual Liability coverage insuring the liabilities assumed in these T&Cs), Automobile Liability and Employers' Liability insurance with limits as are customary for a company of a similar size and operations to Seller, as well as appropriate Workers' Compensation insurance as will protect Seller from all claims under any applicable workers' compensation. At Purchaser's request, Seller will furnish to Purchaser a Certificate of Insurance completed by its insurance carrier(s) certifying that the required insurance coverage is in effect, with waiver of subrogation, naming Purchaser as an additional insured, and containing a covenant that such coverage will not be canceled or materially changed until ten (10) days after prior written notice has been delivered to the Purchaser.

16. MISCELLANEOUS:
(a) CHANGE IN CONTROL/NON-ASSIGNMENT: In the event of a change in control of Seller, Purchaser shall have the option but not the obligation to cancel the PO that in whole or in part has not been fully performed. Neither party may assign, transfer, delegate or subcontract any of its rights or obligations under the PO without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, however, that either party may assign its rights or delegate its obligations, in whole or in part, without such consent, to (i) any of its subsidiaries or affiliates, or (ii) an entity that acquires all or substantially all of the business or assets of such party to which the PO pertains, whether by merger, reorganization, acquisition, sale or otherwise. For the avoidance of doubt, a permitted assignment of the PO does not release Seller from its responsibilities for performance of its duties under the PO unless Buyer so agrees in writing. Any purported assignment or delegation in violation of this Section shall be null and void. The PO will be binding upon, inure to the benefit of and be enforceable by permitted successors and assigns.

(b) TRANSPORTATION: Unless otherwise specified in the PO, delivery shall be made FOB the delivery location specified on the PO. Title and risk of loss shall not pass to Purchaser until delivery of the goods to the location designated on the face of the PO and acceptance by Purchaser. If Purchaser rightfully rejects the goods, receives a non-conforming tender, or revokes its acceptance, risk of loss and title shall be deemed to have remained with Seller. The responsibility for freight damaged merchandise will be assumed by Seller. No charges for unauthorized transportation will be allowed. Any unauthorized shipment, which will result in excess transportation charges, must be fully prepaid by the Seller. Seller will release rail or truck shipments at the lowest released valuation permitted in the governing tariff or classification.

(c) SELLER'S INVENTORY: Purchaser will have no obligation to request quotations or place POs with Seller, both of which will be in Purchaser's sole discretion. Purchaser acting in its sole discretion will determine the actual quantity of goods or services to be purchased. The quantity of goods or services, if any, specified in forecasts supplied by Purchaser from time to time, or otherwise, is an estimate only. Seller bears sole responsibility for managing Seller's raw material, work in process, and inventory, and Purchaser will have no liability with respect thereto (whether upon termination of the PO or otherwise).

(d) FORCE MAJEURE: Purchaser may delay delivery and/or acceptance occasioned by causes beyond its control.

(e) REMEDIES: Each of the rights and remedies reserved to Purchaser in the PO shall be cumulative and additional to any other remedies provided in law or equity. No delay or failure by Purchaser in the exercise of any right or remedy shall affect any such right or remedy and no action taken or omitted by Purchaser shall be deemed to be a waiver of any such right or remedy.

(f) PUBLICITY: Seller will not use Purchaser's name or logo in publicity, advertising, or similar activity, except with Purchaser's prior written consent. Seller will not disclose the existence of the PO or any of its respective terms to any third party without Purchaser's prior written consent.

(g) DOCUMENTATION: It is agreed that all technical documentation and other literature necessary for the proper use of the goods or services will be provided to Purchaser with the goods or services, unless otherwise directed by Purchaser, and its cost is included in the price.

(h) GOVERNING LAW: The PO, these T&Cs, and all related transactions, will be interpreted under and governed by the laws of the State of California in the United States of America without regard to its conflict of law principles.

(i) DISPUTE RESOLUTION: Any dispute arising out of or relating to the T&Cs that is not resolved through negotiation will be settled exclusively by final and binding arbitration conducted in accordance with the then-current Commercial Arbitration Rules and Supplementary Procedures for Large, Complex Disputes of the American Arbitration Association (AAA). The arbitration will be conducted by a single arbitrator selected by agreement of the parties or, failing such agreement, appointed in accordance with the AAA’s rules. The arbitration will be conducted in the English language in San Diego, California. Each party will bear its own expenses in the arbitration and will share equally the costs of the arbitration; provided, however, that the arbitrator may, in their discretion, award reasonable costs and fees to the prevailing party. The arbitrator will have full power and authority to determine issues and to fashion appropriate remedies for breaches provided that the arbitrator will not have any right or authority: (i) in excess of the authority of a court; (ii) to award damages in excess of the types and limitation of damages found in the TCs; or (iii) to modify the terms of these T&Cs. Each party will have the right to apply at any time to a judicial authority for appropriate injunctive relief, and by doing so will not be deemed to have breached its agreement to arbitrate or to have impaired the powers reserved to the arbitrator. Subject to this section, for any litigation arising out of or relating to the T&Cs, the parties irrevocably and unconditionally submit to the exclusive jurisdiction of and venue in the United States District Court for the Southern District of California or, if that court does not have jurisdiction, in the Superior Court of the State of California, County of San Diego.

(j) SURVIVAL: Seller’s obligations under Sections 6, 7, 8, 9, 10, 12, 13, and 18 (e), (h), (i), (j), (k), (n), and (o) will survive any termination of the PO.

(k) WAIVER; MODIFICATION: No claim or right arising out of a breach of the PO can be discharged in whole or in part by a waiver or renunciation of the claim or right unless supported by consideration and in a writing signed by the aggrieved party. The failure of Purchaser to enforce at any time or for any period of time any of the provisions hereof will not be construed to be a waiver of such provisions or of the right of Purchaser thereafter to enforce each and every such provision. The PO can be modified or rescinded only by a writing signed by authorized representatives from both parties.

(l) NOTICES: All notices, consents, waivers, and other communications required or permitted to be given pursuant to the PO, shall be in writing and shall be deemed to have been delivered either (i) on the delivery date, if personally delivered, or if delivered by confirmed facsimile or e-mail, (ii) one (1) business day after delivery to any national overnight courier directing delivery on the next business day, receipt requested, or (iii) three (3) business days after deposit in the United States mail, registered or certified mail, return receipt requested, with adequate postage affixed thereto. All notices to Purchaser shall be sent to the PETCO Animal Supplies Stores, Inc., 10850 Via Frontera, San Diego, CA 92127, to the attention of the Legal Department, and to Seller at its address as set forth in the PO, or at such other address as either party may designate in writing to the other party.

(m) SEVERABILITY: If any provision of the PO shall be held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable, this provision shall not affect any other provision or provisions contained in the PO.

(n) PARAGRAPH TITLES: The paragraph titles are solely for convenience of reference and shall not affect the meaning or construction of any provision of the PO.

(o) ENTIRE AGREEMENT: Provided that there is no MA, duly executed by both parties, applying to the transaction, the PO, with such documents as are expressly incorporated by reference, is intended by the parties as a final expression of their agreement with respect to such terms as are included in it, and is intended also as a complete and exclusive statement of the terms of their agreement. No course of prior dealings between the parties and no usage of the trade will be relevant to determine the meaning of this agreement even though the accepting or acquiescing party has knowledge of the nature of the performance and opportunity for objection.