and its affiliates, including Nutravail Products, LLC, Gimbal Brothers, LLC, Queen City Candy, LLC and
Hillside Candy, LLC (collectively, “SELLER”)
TERMS AND CONDITIONS OF SALE
1. TERMS OF SALE. These Terms and Conditions of Sale (“Terms”) are the only Terms which govern sales of any goods or products (“Product” and, collectively, “Products”) to buyer (“Buyer”) by seller (“Seller”) (Buyer and Seller, individually, a “party” and, collectively, the “parties”). Sales by Seller to Buyer of Products are expressly limited to and conditioned upon acceptance of these Terms, regardless of whether Buyer purchases Products by phone, in person, verbally, by purchase orders, electronic orders, Electronic Data Interchange (“ EDI”), acknowledgements, confirmation, or other writings or forms of communication (collectively, “Purchase Orders”). Unless expressly agreed by Seller in a writing signed by Seller, any additional or conflicting terms and conditions contained on, attached to, or referenced by Buyer’s Purchase Orders, or other prior or later communication between Buyer and Seller, shall have no effect on the Terms of purchase of any Product by Buyer from Seller and are expressly rejected by Seller. Buyer’s commencement of performance (including, without limitation, ordering, purchasing or taking delivery of Products) shall in all cases constitute Buyer’s unqualified and unconditional acceptance of these Terms. Title to Products and risk of loss shall pass as per the shipping terms specified by the parties and, if not specified, then EWX (Incoterms® 2020), Seller’s designated facility (for both shipments of Product within the United States or those which will be exported outside the United States).
2. FURTHER HANDLING AND USE. Seller shall not be liable for, and Buyer shall indemnify, defend and hold harmless Seller, its affiliates and their respective equity owners, shareholders, officers, directors, members, managers, employees, representatives and agents (“Indemnitees”) from and against any and all claims, losses, liabilities, costs and expenses, including attorneys’ fees, (collectively, “Claims”) arising out of or resulting from the handling, Use, combination with other ingredients, incorporation, manufacture, storage, processing, alteration, distribution, transportation, sale or marketing of Products, or any other action or inaction with regard to the Products, in each case after the delivery thereof to Buyer, including, without limitation, product liability claims, intellectual property claims, and other liability for injuries, death, losses or damages; provided however, that Buyer shall not be liable to Seller for damages directly caused by the sole negligence of Seller. Buyer’s obligation shall survive the termination, cancellation or expiration of all Purchase Orders delivered pursuant to these Terms and the cessation of business between Seller and Buyer.
(a) If Buyer has not issued instructions as to the method of shipment by the time Products are ready for shipment, Seller may select any reasonable method of shipment without liability by reason of its selection. The parties will cooperate to the extent reasonable to coordinate periods and times for deliveries hereunder, and Buyer will give reasonable prior notice as to quantities and scheduling desired, provided that all shipping dates are approximate and not guaranteed by Seller. Seller shall not be liable to Buyer for damages or charges resulting from a delay in the delivery of Products, or for partial shipments. Buyer shall unload and return all transportation equipment promptly so that no demurrage or other expense or loss resulting from delay shall be incurred and will comply with all instructions for return of such equipment. Buyer shall be responsible for all unloading costs and shall provide equipment and labor necessary for receipt of Products. The quantity of any shipment of Products as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary. Seller shall not be liable for any non-delivery of Products (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of non-delivery within three (3) days of the date when the Products would, in the ordinary course, have been received. Any liability of Seller for non-delivery of Products shall be limited to replacing the Products within a reasonable time or adjusting the invoice for such Products to reflect the actual quantity delivered.
(b) If and to the extent that Products are to be delivered from any Seller- affiliated facility, public warehouse, or supplier, such entity shall have the right to require the execution of an access agreement prior to granting Buyer, its carriers, contractors or agents, access to such facility. Buyer agrees that it, and its carriers, contractors and agents, will comply with the facility’s safety rules and regulations.
(c) If Seller delivers to Buyer a quantity of Products of up to 15% less than the quantity set forth in the sales confirmation, Buyer shall not be entitled to object to or reject the Products or any portion of them by reason of the shortfall and shall pay for such Products at the price set forth in the sales confirmation adjusted pro rata.
(d) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale and Buyer shall pay for the Products shipped, in accordance with the payment terms specified in the Purchase Order, whether such shipment is in whole or partial fulfillment of a Purchase Order.
4. COMPLIANCE WITH LAW.
(a) “Laws” shall mean all applicable laws, treaties, conventions, directives, statutes, ordinances, rules, regulations, orders, writs, judgments, injunctions or decrees of any governmental authority having jurisdiction over the transactions, either in the United States or in the country where the Buyer is located, or in which subsequent Buyers or consumers are located, including, without limitation, the export and/or import control Laws of other countries. Once Product become property of the Buyer, the Buyer assumes all responsibility for shipments of Products requiring any import or export clearance.
(b) Buyer is solely responsible for complying with all such Laws. Buyer shall hold Seller harmless from and against any and all losses, damages, liabilities, claims, costs and expenses relating to any claim, action, proceeding, or lawsuit, threatened or commenced, arising out of a breach of such Laws.
(c) Buyer shall not and shall not permit any third parties to, directly or indirectly, export, reexport, or release any Products to any jurisdiction or country to which, or any party to whom, the export, reexport, or release of any Products is prohibited by Law. Buyer shall be responsible for any breach of this Section 4(c) including breach by its successors’ and permitted assigns, parent, affiliates, employees, officers, directors, partners, members, shareholders, customers, agents, distributors, resellers, or vendors. Buyer shall comply with all Laws and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, reexporting, or releasing any Product. Buyer shall provide prior written notice of the need to comply with such Laws to any person, firm, or entity which it has reason to believe is obtaining any Products from Buyer with the intent to export or reexport.
5. TITLE AND RISK OF LOSS. Title and risk of loss passes to Buyer once Products leave Seller’s custody or control. As collateral security for the payment of the purchase price of the Products, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the New York Uniform Commercial Code.
6. INSPECTION. Immediately upon Products’ receipt, Buyer shall, at its sole cost and expense, inspect Products to ensure that it has received all quantities and the quality ordered. No later than three (3) days after Buyer’s receipt of Products and before the use, disposition, processing, or any other change from the original condition of any part of the Products (collectively, “Use” or, as a verb, “Used”), Buyer shall notify Seller in writing if any Product is found to be deficient, defective or short and shall furnish such written evidence and other documentation as Seller may reasonably request. Buyer’s failure to give timely, written notice to Seller of any deficiency, defect or shortage within such three (3) day period shall constitute an unqualified acceptance of the Product and a waiver by Buyer of all claims with respect thereto. If Buyer has reason to believe any Product does not comply with the limited warranty set forth herein, Buyer shall not Use the Product without the prior written approval of the Seller.
7. LIMITED WARRANTY. Seller warrants, at the time of delivery, only that: (i) Products, if delivered by Seller in the United States are not adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act of June 25, 1938 (the “1938 Act”), as amended, or the Fair Packaging and Labeling Act of 1966 (together with the 1938 Act, the “Federal Acts”), as amended, or within the meaning of any state food and drug law substantially similar to those Federal Acts (the “State Acts”), and that the Products are not articles which may not, under the provisions of Section 404 or 505 of the 1938 Act or the State Acts, be introduced into interstate commerce; and (ii) Seller will deliver good title to the Products and the Products shall be delivered free of liens and encumbrances. The limited warranty in (i) above shall be void and Seller shall have no liability or responsibility for any claims respecting the quality or condition of the Product (a) if Buyer has not examined, inspected, sampled and tested the Product, or cause the Product to be examined as required herein, or (b) Buyer’s agents or carriers do not store and handle the Product properly in accordance with the Product specifications or Seller’s direction. Buyer, having the expertise and knowledge in the intended Use of Products and any Use or other product made therefrom, assumes all risk and liability for results obtained by the Use of Products, whether Used singly or in combination with other ingredients or in any process. EXCEPT AS SET FORTH IN THIS SECTION, SELLER SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS OF THE PRODUCT FOR A PARTICULAR PURPOSE. ANY DETERMINATION OF THE SUITABILITY OF THE PRODUCT FOR THE USE CONTEMPLATED BY BUYER IS BUYER’S SOLE RESPONSIBILITY.
8. LIMITATION OF LIABILITY AND LIMITED REMEDIES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT WILL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOST OR PROSPECTIVE PROFITS, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST EARNINGS, LOST PROFITS OR BUSINESS INTERRUPTION, WHETHER OR NOT BASED UPON SELLER’S NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY, IN TORT OR ANY OTHER CAUSE OF ACTION INCLUDING, INTER ALIA, THOSE INCIDENTAL AND CONSEQUENTIAL DAMAGES REFERENCED IN THE UNIFORM COMMERCIAL CODE. Buyer’s exclusive remedy against Seller for any cause of action under the Terms, including for failure to deliver, is, at Seller’s option, either: (i) replacement of the Products; or (ii) refund of the amount paid to Seller for the Products. IN NO EVENT SHALL SELLER’S CUMULATIVE LIABILITY EXCEED THE AMOUNT PAID BY BUYER TO SELLER FOR THE PRODUCTS. BUYER AGREES T H A T BUYER’S REMEDY IN (i) OR (ii) IS FAIR AND ADEQUATE.
9. PAYMENT TERMS/CREDIT.
(a) Buyer shall pay all invoices, without deduction, in U.S. currency, net 30 days from the date of invoice, unless Seller and Buyer have otherwise mutually agreed in writing to alternative payment terms. Buyer shall pay interest at a rate of two percent (2%) per month, compounded monthly, or the maximum rate allowed by Law, whichever is less, on the outstanding amount of any unpaid invoice beginning on the day after the payment due date. Buyer shall reimburse Seller for all costs incurred in connection with collecting late payments, including, without limitation, attorneys’ fees.
(b) Seller makes no assurance or guarantee regarding any amount of credit or the continuation of such credit to Buyer. If Seller, in its sole discretion, provides Buyer with a line of credit to facilitate purchases of Products from Seller, such credit line may be amended, decreased or terminated at any time in Seller’s sole discretion.
(c) If Seller determines, in its sole discretion, that the creditworthiness or future performance of Buyer is impaired or unsatisfactory, Seller may, in addition to its other rights and remedies: (i) suspend deliveries of Products; (ii) require prepayment by wire transfer of immediately available funds at least three (3) days prior to a scheduled shipment of Products; and/or (iii) require Performance Assurance (as hereinafter defined) prior to a scheduled shipment. Buyer hereby waives written notice of any such action. “Performance Assurance” means collateral in the form of either cash, letter(s) of credit, guaranty, or other security acceptable to Seller in its sole discretion.
(d) Seller reserves the right, at any time, to Set- off against any amount that Seller and/or its affiliates owe to Buyer and/or its affiliate under any agreement(s) or transaction(s) between such parties. “Set-off” means set-off, offset, combination of accounts, netting of dollar amounts of monetary obligations, right of retention or withholding or similar action exercised by Seller.
(e) Buyer shall not withhold payment of any amounts due and payable by reason of any Set-off or claim against Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
10. RETURNS. A Product may be returned only with Seller’s prior written authorization, which can be conditioned or denied at any time in Seller’s sole discretion, and for credit only, subject to being returned freight prepaid to a warehouse designated by Seller and subject to a restocking charge of twenty-five (25) percent of the invoiced price for the Product.
11. DEFAULT. Upon the occurrence of any of the following: (i) the failure by Buyer to provide payment when due, and such failure remains uncured for a period of at least ten (10) days; (ii) the failure of Buyer to perform any other required obligation where such failure is not excused or cured within ten (10) days after written notice thereof; or (iii) the occurrence of a Bankruptcy Event (as hereinafter defined), then any and all obligations of Buyer, including payments or deliveries due, will, at the option of Seller, become immediately due and payable or deliverable, as applicable, and Seller, in its sole discretion and without prior notice to Buyer, may do any one or more of the following: (a) suspend its performance; (b) cancel any Purchase Orders or other sales agreed to by Buyer and Seller; and/or (c) Set-off against any amount that Seller and its affiliates owe to Buyer and its affiliates under any agreement or transactions(s) between such parties. If Seller suspends performance and withholds Product delivery as permitted above, Seller may sell the Products to a third party and deduct the proceeds of such sale from the claim against Buyer. All reasonable costs resulting from Buyer’s default as identified above, including, without limitation, all costs associated with the transportation (including demurrage and other vessel or shipping-related charges), storage, and sale of the Product shall be paid by Buyer. In addition, Seller shall be entitled to recover from Buyer all court costs, attorneys’ fees and expenses incurred by Seller in connection with Buyer’s default, and interest on past due amounts at the rate specified in Section 8 of these Terms. The foregoing rights, which shall include, but not be limited to, specific performance, shall be cumulative and alternative and in addition to any other rights or remedies to which Seller may be entitled including at law or in equity. “Bankruptcy Event” means the occurrence of any of the following events with respect to Buyer or any Performance Assurance provider for Buyer: (i) filing of a petition or otherwise commencing, authorizing or acquiescing in the commencement of a proceeding or cause of action under bankruptcy, insolvency, reorganization or similar Law; (ii) making of an assignment or any general arrangement for the benefit of creditors; (iii) having a bankruptcy petition filed against it and such petition is not withdrawn or dismissed within thirty (30) days after such filing; (iv) otherwise becoming bankrupt or insolvent (however evidenced); (v) having a liquidator, administrator, custodian, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets; or (vi) being generally unable to pay its debts as they fall due.
12. EXCUSED PERFORMANCE. Force Majeure: The parties will be excused from their respective performances hereunder (except Buyer’s payment obligation) if performance is prevented or delayed by any acts of God, fire, explosion, flood, earthquakes, weather, riots, civil disturbances, invasions, hostilities, revolutions, insurrections, epidemics, quarantine restrictions, wars, act of terrorism, actions of governments, voluntary or involuntary compliance with any Law or request of any governmental authority, any detention or rejection of the Products by an agency of the United States or of any state, strikes, lockouts or other labor difficulties, failure of usual sources of Products, mechanical or electronic failure, plant shutdowns, any necessity not to operate or to reduce operations, or any circumstances beyond the reasonable control of the party seeking excuse from performance, including, in the case of Seller, inability to obtain delivery of the Product in accordance with the contract with supplier. Promptly after a party determines a force majeure condition exists, that party will use reasonable means to remove the cause(s) of the force majeure in question. Neither party will be obligated to settle any demands of, or disputes with, laborers; nor will Buyer be excused from paying monies due or complying with Seller’s credit terms. Seller may apportion any reduced quantity of Products among its customers and affiliates in its sole discretion. Under no circumstance will Seller be obligated to obtain Products for delivery hereunder other than from its usual, customary and/or most recent source of supply, as determined by Seller in its sole and absolute discretion.
13. CONFIDENTIALITY. The parties shall treat as confidential all information supplied by the other which is not in the public domain, including, without limitation: (i) methods and processes of operation;(ii) identities of employees, customers, suppliers and their personnel and/or their production means and methods, including information developed from site visits as well as Seller’s inventory volumes, inventory levels, number of SKUs, containers, cross dock orders, and other information concerning its warehousing and operations; (iii) cost and expense information; (iv) production information; (v) trade secrets; (vi) confidential processes and technology; (vii) pricing information; (viii) computer programs and equipment; (ix) know-how; (x) research; (xi) inventions; (xii) financial statements or other financial information; (xiii) marketing plans and strategies; (ix) recipes and samples; and (x) other information of Seller’s (collectively, the “Confidential Information”). The parties shall: (i) limit use of the Confidential Information only to the performance of the Terms; and (ii) limit the disclosure of the Confidential Information to those employees whose knowledge of such Confidential Information is necessary in the ordinary course of business, unless prior written consent has been granted by the other party to permit other use or disclosure. Each party shall, upon written request after expiration, termination or cancellation of the Terms, promptly return all documents previously supplied, destroy any and all copies that were reproduced, and send written confirmation to the other party certifying such destruction. Seller’s remedies for any violation of this section shall include, but are not limited to, injunctive relief.
14. TRADEMARKS. Except as may be contained in a separate trademark license, the sale of Product (even if accompanied by documents using a trademark or trade name) does not convey license, express or implied, to use any o f S e l l e r ’ s trademarks or trade name, and Buyer shall not use a trademark or trade name of Seller or its affiliates including in connection with the Products.
15. SUCCESSORS, ASSIGNS AND BENEFICIARIES. Buyer may not assign any interest in, nor delegate any obligation under these Terms, by operation of Law or otherwise, without Seller’s prior written consent. Any infringement or attempted assignment in contravention of the foregoing shall be null and void, and shall permit Seller, in addition to any other rights that it may have, to terminate all Purchase Orders. These Terms are solely for the benefit of Seller, its affiliates, the Indemnitees, and Buyer and shall not be deemed to confer upon or give any other party any right, claim, cause of action or interest herein.
16. GOVERNING LAW/VENUE. The validity, performance, construction, and effect of these Terms, and all matters arising out of or relating thereto, shall be interpreted in accordance with the Laws of the State of Texas, without regard to its conflicts of law rules or principles. The United Nations Convention on Contracts for the International Sale of Goods or any subsequently- enacted treaty or convention shall not apply or govern the Terms or performance thereof or any aspect of any dispute arising therefrom. Any action or proceeding between Buyer and Seller relating to the Terms shall be commenced and maintained exclusively in the state or federal courts in Dallas, Texas, and Buyer submits itself unconditionally and irrevocably to the personal jurisdiction of such courts. BUYER AND SELLER EACH WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION, CLAIM OR PROCEEDING RELATING TO OR ARISING OUT OF THESE TERMS.
17. INDEPENDENT CONTRACTORS. Seller and Buyer are independent contractors and are not partners, master/servant, principal/agent or parties to any similar legal relationship with respect to the transactions contemplated hereunder or otherwise. No fiduciary, trust or advisor relationship, nor any other relationship imposing vicarious liability, shall exist between the parties and neither party shall have the authority to bind the other party in any manner whatsoever.
18. COMPLIANCE WITH EXPORT REGULATIONS. In the event Seller sells Product to Buyer under this Agreement as a domestic transaction, and Buyer later exports Product, Buyer shall assume all responsibilities as the “U.S. Principal Party in Interest.” Buyer agrees that all applicable import and export control laws, regulations, orders and requirements, including without limitation those of the United States and the jurisdictions in which Buyer is established or from which Products may be supplied, will apply to their receipt and use. In no event shall Buyer use, transfer, release, divert, transship, import, or export/re-export Products in violation of such applicable laws, regulations, orders or requirements. Buyer represents and warrants that it is not referenced on the “specially-designated nationals” list maintained by the United States Office of Foreign Assets Control (“OFAC”) of the United States Treasury and is not otherwise restricted from participating in an export of goods from the United States. If Buyer violates any United States export laws or regulations, including but not limited to the Export Administration Regulations and/or the United States economic sanctions administered by OFAC, Seller may, immediately and without notice, terminate any purchase order submitted by Buyer, and/or any business arrangement or relationship with Buyer. If the Product is to be exported outside of the United States, Buyer will be responsible for obtaining and maintaining, if applicable, all international regulatory approvals and ensuring that the Product specifications and all analysis and other testing conducted complies with all applicable international laws and regulations.
19. COMPLIANCE WITH FCPA. Customer represents and warrants that, in all actions it or its directors, officers, employees or agents take, on behalf of itself and its directors, officers, employees and agents, neither it nor any of its directors, officers, employees or agents will violate any requirements or restrictions of the United States Foreign Corrupt Practices Act, 15 U.S.C. 78dd-1 et. seq. or any other applicable anti-corruption laws in each of the jurisdictions in which Customer operates. Specifically, Customer represents and warrants that it will prevent its directors, officers, and employees from offering anything of value to any government official or any official of any state-owned enterprise, whether foreign or domestic, with the corrupt purpose of influencing that official for Customer’s business advantage. Company reserves the right to unilaterally report to any government’s law enforcement authorities any information that it deems, in its sole discretion, necessary or appropriate to disclose whether that information comes from the financial records maintained under this section or another source.
20. MISCELLANEOUS. These Terms supersede any prior terms and conditions. The captions and section headings set forth in these Terms are for convenience only and shall not be used in defining or construing any of the terms and conditions herein. Waiver or failure to enforce by either party any breach of the terms and conditions contained herein will not be construed as a waiver of any other term or condition or continuing breach. The invalidity or unenforceability or any provisions hereunder shall not affect the validity or enforceability of its other provisions. No course of dealing, course of performance, or usage of trade shall be considered in the interpretation or enforcement of these Terms. All technical advice, information, services, specifications, and recommendations by Seller and its affiliates are intended for use by persons having skill and know-how, and are accepted by Buyer at its own risk, and neither Seller nor its affiliates assumes responsibility for results obtained or damages incurred from their use. No employee, agent, nor representative of Seller has any authority to bind Seller to any term, affirmation, representation, or warranty concerning a Product not set forth herein, and unless a term, affirmation, representation or warranty is specifically included in these Terms, it shall not be enforceable. No statements or agreements, oral or written, not contained herein will vary or modify the terms hereof. Neither party shall claim any amendment, modification or release of any provisions hereof unless the same is in writing and such writing: (i) specifically refers to these Terms; (ii) specifically identifies the term amended; and (iii) is signed by a duly authorized officer of Seller and Buyer. All notices, consents, communications or transmittals under these Terms shall be in writing and shall be deemed received on the day of delivery if delivered by internationally or nationally-recognized overnight courier or delivery service, (with confirmation of receipt), or within five (5) business days if mailed by United States certified mail, return receipt, postage prepaid, addressed to the party to whom such notice is given at the address of such party.