Standard Vendor Agreement
Version April 2022
This Standard Vendor Agreement (this “
Agreement
”) is between The Kroger Co., an Ohio corporation,
on behalf of itself and its direct and indirect subsidiaries and other affiliates issuing purchase orders
hereunder (“
Company
”) and the vendor designated on the Signature Page (“
Vendor
”) and is effective
upon the date of Vendor’s signature below.
1.
Purchase Orders. This Agreement governs Company’s purchases of Products from the Vendor.
“
Products
” means all goods provided to Company. No purchase orders shall be deemed to waive or
modify the terms and conditions contained herein and any modification of this Agreement requires an
express, written agreement signed by both parties. Notwithstanding any prior, contemporaneous or
subsequent written or oral communications, the issuance of a Company purchase order (“Purchase
Order”) by Company is the sole basis upon which Company commits to purchase products from
Vendor. In no event shall Company be obligated to purchase more product than the volume of
product for which a valid Purchase Order has been issued, subject to the terms and conditions
contained in this Agreement.
2.
Representations, Warranties and Guarantees. The Vendor makes the following representations,
warranties and guarantees regarding the Products sold to Company, as applicable:
a.
The Products shipped, as of the date of shipment, comply with, and are not adulterated or
misbranded within the meaning of, the Federal Food, Drug and Cosmetic Act, as amended,
(“
FDCA
”), including, without limitation, the Food Additives Amendment as further amended and
Food Safety Modernization Act (“
FSMA
”) and also comply with, and are not adulterated or
misbranded within the meaning of, any states’ food and drug law; do not violate Section 301 or
any other provisions of the FDCA;
are not articles that may not be introduced into interstate
commerce pursuant to Sections 404, 505 of 512 of the FDCA, the Federal Hazardous Substances
Act (“
FHSA
”), or otherwise; if meat, poultry and egg products comply with the Federal Meat
Inspection Act, Poultry Products Inspection Act and Egg Product Inspection Act respectively;
conform to all applicable Consumer Product Safety Act (“
CPSA
”) rules, bans, standards or
regulations, and if sold in California, Proposition 65 Standards, and California Air Resources
Board 93120 formaldehyde and 94500 et seq. consumer products; and furthermore comply with
all other applicable federal, state and local laws, rules and regulations.
b.
The Products are not produced by Vendor or other businesses acting under any exemptions
pursuant to FSMA, including, but not limited to, exemptions for qualified farms and facilities;
Vendor will only utilize other vendors and service providers that comply with FSMA and do not
claim exemptions even if they are or might be exempt based on the businesses’ size and/or sales
within a local marketplace.
c.
Vendor expressly agrees to serve as the Foreign Supplier Verification Program (“
FSVP”
)
Importer as that term is defined in 21 CFR § 1.500 (“
FSVP Importer”
), identify itself pursuant
to 21 CFR § 1.509 as the FSVP Importer in each line entry of Products offered for importation,
and perform all other applicable requirements pursuant to 21 CFR Part 1 Subpart L. In all
circumstances where both Vendor and Company fall within the definition of FSVP Importer,
Vendor agrees to serve as the FSVP Importer. This provision shall not apply in circumstances
where (i) Company is the sole person falling within the definition of FSVP Importer
and (ii)
Company has agreed in writing to be designated on the entry documentation as the FSVP
Importer
.
d.
Vendor acknowledges Company shall reject any load of Products (including Products subject to
the Perishable Agricultural Commodities Act) for violations of the Sanitary Food Transportation
Act (Section 416 of the FDCA) (“
SFTA
”) of which Company is aware, including failure to
maintain required records; Vendor assumes responsibility for ensuring loads of Products rejected
by Company are not sold or distributed unless a qualified individual determines the Products are
not unsafe consistent with 21 CFR § 1.908. Vendor must not use any vehicles or transportation
equipment that do not meet sanitary specifications for such food being transported as
communicated in writing to shippers, carriers, loaders or receivers as appropriate pursuant to
SFTA. Vendor’s failure to fulfill the obligations under SFTA under this Section 2(d) will be
considered an act or default of Vendor, and a defense to any cargo claim resulting from the
condition of vehicles or transportation equipment. None of the provisions in this Agreement in
any way limit Vendor’s obligation to mitigate its damages. Vendor acknowledges Company shall
not serve as shipper, carrier or loader as those terms are defined in 21 CFR § 1.904 unless
otherwise agreed to in writing.
e.
Each shipment or other delivery of Products is not misbranded or mislabeled under the FHSA or
any other law or regulation, has been tested and approved by either the Underwriters Laboratory,
Inc. or the ETL, and the National Sanitation Foundation (if applicable); and will include a
Certificate of Compliance for children’s products or a General Compliancy Certificate for other
CPSA regulated products as required under the Consumer Product Safety Improvement Act of
2008 (“
CPSIA
”) to the extent applicable. The Products will comply in all material respects with
all applicable Federal and State product safety laws and regulations and all applicable and
mandatory product safety rules, bans and standards that are enforced by the U.S. Consumer
Product Safety Commission, including any failure of a Certificate of Compliance supplied by the
Vendor or maintained on Vendor’s internet accessible electronic platform to comply with
applicable requirements of the CPSIA §14(a); Products will, if constituting or containing an
economic poison as defined in the Federal Insecticide, Fungicide, and Rodenticide Act, be
registered pursuant to said Act and comply with all other provisions of such Act (7 U.S.C.A. 135-
135K); and meet all applicable Occupational Safety and Health Administration Standards.
Vendor warrants that all electric appliances, component parts and wiring purchased shall be listed
by either the Underwriters Laboratories, Inc. or the ETL in compliance with applicable electrical
codes; that all products purchased containing fabric which are subject to the provisions of the
Federal Flammable Fabrics Act shall conform to the provisions of such act; that all products
purchased which are subject to the provisions of the applicable state bedding and furniture laws
shall conform to the provisions of such laws; and that all textile fiber products furnished shall be
properly branded and invoiced in accordance with the Textile Fiber Products Identification Act
and all other Federal Statutes applicable to such products. Vendor will provide Company copies
of all Safety Data Sheets (“
SDS
”) for any applicable Products.
f.
For directly imported Products, Vendor is in compliance with Company’s trucking security
program which includes, at a minimum, the following criteria for compliance: 1) select trucking
and dray carriers that are dependable and willing to participate in security measures, 2) have
trained personnel inspect all containers and seals prior to departure, 3) designate a direct route to
the port of departure or CFS station, 4) estimate travel time for the trip, 5) monitor actual time to
destination, 6) provide a gate in receipt for the trip; and 7) state that the manufacturer and/or
Vendor factory understands and is cooperating in Company’s trucking security program. The
factory must have a program in place and be able to prove compliance on-site, when asked.
g.
Vendor is in full compliance with all applicable laws, regulations, codes and sanctions relating to
anti-bribery and anti-corruption, including but not limited to the US Foreign Corrupt Practices
Act, the US Travel Act, the UK Bribery Act 2010, and any and all similar provisions in the
jurisdiction(s) in which it operates, that it has not and will not engage in any activity, practice or
conduct which would consititute an offense under those requirements, and that it has in place its
own policies and procedures adequate to ensure compliance with these anti-bribery and anti-
corruption provisions by its officers, employees, agents and any other third party or person
associated with Vendor in the performance of services or shipment of Products to Company.
h.
The Products, including the packaging, advertising, labels and other materials contained on, with,
or relating to the Products, do not infringe any patent, copyright, trademark, trade name or other
proprietary interest of Company or any third party and comply with the Federal Trade
Commission Act and all other applicable laws, rules and regulations.
i.
The price charged, allowances and services furnished, if any, in connection with the sale of
Products to Company are not discriminatory and were made available on proportionately equal
terms to other customers of Vendor.
j.
The Products and the manufacture, sale, storage, shipping, transportation and billing for the
Products, comply with all provisions of applicable law and with all applicable promulgations of
governmental authority, both domestic and foreign.
k.
Vendor is the lawful owner of the Products, has good right to sell same and convey good and
merchantable title, and the Products are and will be conveyed free of any and all claims, liens,
security interests or other encumbrances. Vendor represents that unless it has disclosed to
Company otherwise, it is not a broker or reseller of the Products.
l.
The Products are of merchantable quality and of good material and workmanship, are free from
contamination or impurity and defects in design and title, and are fit and sufficient for purposes
for which goods of that type are ordinarily used, as well as for any purposes Vendor has specified
or advertised.
m.
The Products conform in every respect to applicable specifications, instructions, drawings, data,
samples and descriptions to the extent required.
n.
The representations, warranties and guarantees contained in this Section run to Company, its
customers, and its and their successors and assigns. Vendor incorporates by reference and passes
on to Company and its customers and its and their successors and assigns the benefits of all
warranties and guarantees given to Vendor by persons from whom Vendor purchased any of the
Products. Company’s approval of specifications, drawings, samples and/or other descriptions
furnished by Vendor does not relieve Vendor of its obligations. The representations, warranties
and guarantees set forth in this Section 2 are in addition to all other express, implied or statutory
warranties, are continuing in nature, survive Company’s payment, acceptance, inspection or
failure to inspect the Products.
3. Code of Conduct. Vendor warrants that the Products and services are produced in compliance with
the following, as applicable (i) all requirements of the Fair Labor Standards Act, as amended,
including Sections 18 and 28 thereof, and of regulations and orders of the United States Department
of Labor issued under Section 6 thereof; (ii) the Occupational Safety and Health Act; (iii) all federal
civil rights, equal opportunity, discrimination, harassment, retaliation, and other workplace laws,
including but not limited to Title VII of the Civil Rights Act of 1964, as amended, the Age
Discrimination in Employment Act, as amended, the Americans with Disabilities Act, as amended,
and the Family and Medical Leave Act, as amended; (iv) the Immigration Reform and Control Act
and other applicable immigration laws; (v) related state and local laws; and (vi) the workers’
compensation laws. Vendor represents and warrants that Vendor, its company personnel and its
contractors are not engaged in and will not engage in any labor practice in violation of the laws or
regulations of the country of manufacture or assembly of the Products including unsanitary and/or
unsafe labor conditions. If Company determines that Vendor, its personnel or its contractors have
failed to comply with the foregoing, Company will be entitled to immediately terminate this
Agreement without liability. The Company Code of Conduct is an integral part of this Agreement,
the terms of which must be followed by Vendor, its Vendor personnel and its contractors. The
Company Code of Conduct can be found at http://www.thekrogerco.com/docs/statements-
policies/code-of-conduct.
4. Country of Origin Requirements. Vendor warrants to Company that it complies (or prior to the
Effective Date will be in full compliance) with all federal, state and local Country of Origin labeling
and related requirements, as applicable, including those required by the Tariff Act (19 USC Ch. 4) as
amended by the Customs Modernization Act, those contained in the Agricultural Marketing Act, as
amended by the 2002 Farm Bill, and the implementing regulations (collectively, “
Country of Origin
Requirements
”), and will provide to Company all reasonable assistance requested by Company and
information necessary to enable Company to comply with the Country of Origin Requirements as
they apply to Vendor’s Products. In particular, Vendor will: (a) label or include with all Products
subject to the Country of Origin Requirements (“
Covered Commodities
”) that are shipped to
Company all Country of Origin information that Company is required to display or maintain with
respect to the Covered Commodities; and (b) comply with all record keeping and product segregation
standards required by the Country of Origin Requirements and by Company.
5. Indemnification. (a) Vendor will defend, indemnify and hold Company, its affiliates and its and their
officers, directors and employees, harmless from and against all suits, proceedings at law or in
equity, claims, liabilities, costs, payments and expenses (including attorneys' fees) asserted against
Company or incurred by Company, arising out of or in connection with 1) the Products, including
Company’s purchase, use, shipment, storage, delivery, sale, offering for sale, or other handling of the
Products, 2) Vendor’s actual or alleged breach of any of the representations, warranties, guarantees or
other terms and conditions contained herein, or 3) any claim for damages to property or injuries to
persons or fines or penalties incurred as a result of or caused by the acts or omissions of Vendor’s
employees or agents.
(b) In addition to the foregoing, if any of the Products purchased or any part thereof is alleged or held
to constitute infringement, Vendor, at its own expense, will either (i) procure for Company, its
successors, assigns, and customers the right to continue using such Products, (ii) replace the Products
with non-infringing items or (iii) only if options (i) and (ii) are impracticable, refund the purchase
price for the Products and pay all related expenses.
(c) Company shall indemnify, defend and hold Vendor harmless from liability resulting from
Company’s breach of this Agreement, or any acts or omissions of Company or its employees, but
only to the extent such liability is not caused by any acts or omissions of Vendor.
(d) Vendor will hold harmless Company from and against any claims made by any of Vendor’s
employees, contractors or representatives working in the course and scope of their employment by
Vendor or provision of services to Vendor while at any Company location and expressly waives any
insulation from liability or immunity from suit with respect to injuries to Vendor’s employees that
may be extended to Vendor under any applicable workers’ compensation statute or similar law,
unless such claim was the sole and proximate result of the gross negligence and/or willful misconduct
of Company. Company will be held harmless from any workers’ compensation liens incurred by
such claims. Vendor acknowledges that this provision is a reasonable request from Company in order
to give Vendor employees, contractors and representatives access to Company locations.
6. Insurance Requirements. Vendor will maintain at all times while providing Products to Company, at
Vendor’s own cost and expense, insurance coverage of the types and in such amounts as described in
Exhibit A with a company that has an A.M. Best Co. rating of “A-” or better. The insurance coverage
required under this Agreement must be Occurrence coverage and maintained by each Vendor for a
minimum period of five (5) years following any purchase by Company or as long as the Products are
still held by Company for resale or use, whichever is longer. Alternatively, claims made coverage is
acceptable with automatic five (5) year tail coverage. Vendor will deliver to Company, prior to
shipping Products, a Certificate of Insurance including “The Kroger Co. and its subsidiaries,
affiliates, directors, officers, agents and employees under the Vendors Additional Insured coverage.”
7. Mandatory Arbitration.
a. Any disagreement, dispute, controversy or claim with respect to the validity of this Agreement or
arising out of or in relation to this Agreement or a Company Purchase Order or any agreement in
which either is incorporated, or breach hereof, shall be governed by the substantive laws of the
State of Ohio, without regard to conflicts-of-law rules, and shall be finally settled by arbitration in
Cincinnati, Hamilton County, Ohio, USA or other location agreed upon by Company, in
accordance with articles of the American Arbitration Association (“
AAA
”) for Commercial
Arbitration, or such other commercial arbitration process as may be mutually agreed upon by the
parties. The dispute will be determined by one arbitrator, except that if the dispute involves an
amount in excess of $1,000,000 (exclusive of interest and costs), three arbitrators will be
appointed. Each party shall bear its own attorney’s fees, costs and expenses, and an equal share of
the arbitrators’ and administrative fees of arbitration.
b. Neither party will commence an arbitration proceeding pursuant to this provision unless that party
first gives a written notice (a “
Dispute Notice
”) to the other party setting forth the nature of the
dispute. The parties agree to try in good faith to settle the dispute 1) first through discussions
between the parties’ management and then 2) non-binding mediation conducted by a mediator
mutually agreeable to the parties before resorting to arbitration. If the parties cannot agree on a
mediator within forty-five (45) days of the Dispute Notice, mediation shall be conducted pursuant
to the AAA commercial mediation procedures. Failure to submit the Dispute Notice shall be
grounds to dismiss any arbitration filed by either party. The parties agree to mediate within sixty
(60) days of the Dispute Notice, unless extended by mutual agreement of the parties. The
mediation shall be conducted in Cincinnati, Hamilton County, Ohio, USA or other location
agreed upon by Company. The parties agree to exchange any relevant, non-privileged documents
that support their claims or defenses not later than two (2) weeks before the scheduled mediation.
The mediator’s fees will paid be equally by the parties and each party shall bear its own
attorney’s fees and expenses.
c. If the Dispute has not been resolved as provided above, or otherwise resolved, within ninety (90)
days after receipt of the Dispute Notice, or any mutually agreed upon extension, then the Dispute
will be determined by binding arbitration. All arbitrations will be conducted in accordance with
such rules as may be agreed upon by the parties or failing agreement within thirty (30) days after
arbitration is demanded, in accordance with the Commercial Arbitration Rules of the AAA.
d. Discovery will be limited to avoid unnecessary expense and undue burden, but the arbitrators
have discretion to determine the extent of discovery that may be allowed consistent with the value
of the case, Rule 26 of the Federal Rules of Civil Procedure and AAA Procedures for cost-
effective arbitration of Large, Complex Commercial Disputes.
e. Except as otherwise provided in this section, the arbitrator(s) shall have the authority to grant
appropriate relief available under the Ohio rules of civil procedure and under Ohio law including,
but not limited to, sanctions. However, except in a case of gross negligence and/or willful
misconduct, neither party shall be entitled to recover any indirect, incidental, special,
consequential, exemplary, punitive or reliance damages (including, without limitation, lost or
anticipated revenues, lost business opportunities or lost sales or profits, whether or not either
party has been advised of the likelihood of such damages) or for any attorney’s fees. Any award
of damages in excess of $3,000,000 shall be subject to AAA Appellate Arbitration Rules. Each
party shall bear its own attorney’s fees, costs and expenses, and an equal share of the arbitrators’
and administrative fees of arbitration.
f.
Notwithstanding the foregoing, any disagreement, dispute, controversy, claim, or cause of action
arising in whole or in part under the antitrust laws of the United States or any State or Territory
thereof shall not be arbitrable and is hereby expressly excluded from the scope of this arbitration
provision.
g. Notwithstanding any contrary provisions in this Section, the parties recognize that certain
business relationships could give rise to the need for one or more of the parties to seek
emergency, provisional or summary equitable relief to repossess and sell or otherwise dispose of
goods, equipment and/or fixtures, to prevent the sale or transfer of goods, equipment and/or
fixtures, to protect real or personal property from injury, or to obtain possession of real estate and
terminate leasehold interests, and for temporary injunctive relief. Immediately following the
issuance of any such relief, the parties agree to the stay of any judicial proceedings pending
mediation or arbitration of all underlying claims between the parties. Each party shall bear its
own attorney’s fees, costs and expenses.
8. Confidentiality. Both Company and Vendor acknowledge that each party may from time to time
possess Confidential Information of the other party. As used herein, "
Confidential Information
"
means all information (whether oral, observed, or written) that is marked or treated as confidential,
restricted, or proprietary by the other party, including but not limited to customer information, pricing
information, product information, employee information, information regarding business planning
and operations, and administrative, financial and marketing activities. Each party will protect
Confidential Information of the other party with the same degree of care that it uses in protecting its
own confidential information, but not less than reasonable care. Neither party will disclose any
Confidential Information to any person except those employees, agents, and representatives who have
a need to know and except as otherwise agreed to in writing by the disclosing party. Confidential
Information will remain the property of the disclosing party and will only be used for the benefit of
the disclosing party. Confidential Information does not include information that the receiving party
can prove is: (i) received from a third party having a bona fide right to such information and not
under an obligation of confidentiality; (ii) developed independently without reliance on any
Confidential Information; (iii) publicly known or readily ascertainable through no wrongful act of the
receiving party, or (iv) required to be disclosed by a court of law, provided the receiving party notifies
the disclosing party prior to such disclosure. Both parties will return all Confidential Information
contained in a tangible form upon termination of its relationship, or at an earlier time at the other
party’s request.
9. Conflict. In the event of any conflict between the terms of this Agreement and any previously
executed Standard Vendor Agreement between Vendor and Company, the terms of this Standard
Vendor Agreement shall prevail.
PLEASE FORWARD THIS TO YOUR INSURANCE AGENT OR BROKER
Vendor Insurance Requirements
The Kroger Co. and/or its affiliates and subsidiaries (“Kroger”) may require higher insurance coverage
limits and/or different coverages for certain product and service providers.
Coverage provided by Insurance Carriers rated A- or higher by A.M. Best
The following wording must be included in the
Description of Operations box on all Certificates:
> “The Kroger Co. and its subsidiaries, affiliates, directors,
officers, agents and employees are Additional Insureds
with respect to General Liability and Auto Liability”
> “All insurance policies (excluding Workers’
Compensation) are Primary and Non-Contributory to any
other insurance owned, secured or in place by The Kroger
Co.”
> A Waiver of Subrogation in favor of The Kroger Co., its
affiliates and subsidiaries applies to all coverages
(excluding Professional Liability) evidenced on the
Certificate of Insurance
Certificate Holder Name and Address:
The Kroger Co. and its affiliates and subsidiaries
c/o The Kroger Co.
1014 Vine Street
Cincinnati, OH 45202
General Liability
Each Occurrence
$3,000,000
Damage to Rented Premises
$300,000
Products / Completed Operations Aggregate
$3,000,000
Additional Insured Vendors Coverage
CG 20 15 07 04 or its equivalent
Personal & Advertising Injury
$1,000,000
General Aggregate
$3,000,000
Auto Liability
(for any supplier whose employees or agents will be driving onto any premise owned or leased by
Kroger or making delivery on behalf of Kroger)
Any Auto
Yes
Combined Single Limit –
Bodily Injury and Property Damage
$1,000,000
Workers Compensation
Statutory Limits
Yes
Employers Liability
Each Accident
$500,000
Disease Policy Limit
$500,000
Disease Each Employee
$500,000
Note: a) Required coverage limits can be achieved through a combination of Primary & Excess Liability coverage.
Excess coverage must “drop down” for exhausted underlying aggregate limits of liability coverage. b) In certain
instances, “Claims Made” policies may be acceptable with automatic tail coverage of 5 years.
Self-funding or self-insurance of liability, other than workers’ compensation and/or automobile liability is allowed,
so long as Supplier or Supplier’s Parent maintains a net worth of at least $100,000,000.
Please upload your certificate of insurance onto your vendor record within Kroger’s Supplier Hub. If you have
questions about Supplier Hub, please contact Supplier Integrity Team at 1-844-277-6165, option 2.
-------------------------------------------------------------------------------------------------------------------------------
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Last Revision: January 2020
