Domestic Terms and Conditions of Sale
- Applicability. All orders placed by the individual or entity designated below (“Buyer”) for the goods described in each applicable order (the “Goods”) or Services (defined below) of Healthy Food Ingredients, LLC (“HFI”) or one of its affiliates (HFI or such affiliate, “Seller”) shall be subject to these Domestic Terms and Conditions of Sale (“Terms”) and the sales confirmation from Seller accepting the order for the Goods or Services (the “Confirmation” and, collectively with these Terms, the “Contract”). If any provision in the Confirmation is inconsistent with these Terms, the provision in the Confirmation shall govern. No additional or different terms or conditions or any modifications, changes or amendments to the Contract shall be binding upon Seller unless specifically agreed to in writing by an authorized representative of HFI. Any additional or different terms already or hereafter proposed or provided by Buyer are hereby rejected and shall not apply. No order is binding upon Seller until received and accepted by an authorized representative of Seller. Seller accepts an order by issuing a Confirmation. An order may not be cancelled by Buyer after it has been accepted by Seller. Upon such a cancellation, in addition to any remedies that may be available under the Contract or at law, Buyer will pay any out-of-pocket expenses incurred by Seller in connection with the fulfillment of the order or in connection with the cancellation that cannot be reasonably avoided (for example, the cancellation fee charged by a carrier who was previously engaged by Seller to deliver Goods to Buyer).
- Prices. All price and delivery quotations made by Seller are conditioned upon these Terms. Prices are subject to change without notice, provided that Seller shall not change the prices of any Goods or Service subject to an accepted order. Contract pricing will be honored for all subsequent orders placed within the term of the Contract. Orders placed after the term of the Contract will be subject to a 5% surcharge. Price quotations, unless otherwise stated, shall automatically expire 30 calendar days from the date issued and may be terminated at any time upon notice to Buyer.
- Title; Inspection. Unless otherwise set forth on the Confirmation, title to the Goods shall pass to Buyer based upon agreed upon 2020 Incoterms. Upon receipt of Goods, Buyer shall immediately inspect the Goods for any error in quantity, non-conformance with the specifications provided by Seller with the quotation and/or the Confirmation (the “Goods Specifications”), infestation or other error or damage (“Goods Non-Conformance”).
- Services. If the Contract is for Seller to provide toll processing and/or packaging services for raw materials provided by Buyer (the “Services”), Seller will provide such Services in accordance with specifications as set forth in the Contract (the “Services Specifications”). The resulting processed materials (the “Materials”), if returned to Buyer, will be inspected for any error in quantity, non-conformance with the Services Specifications, infestation or other error or damage (“Services Non-Conformance”). BUYER ACKNOWLEDGES THAT THE FACILITIES AND EQUIPMENT USED FOR PROVIDING THE SERVICES ARE USED BY SELLER TO PROCESS AND MANUFACTURE ITS OWN PRODUCTS AND THE PRODUCTS OF OTHER THIRD PARTIES, AND THAT SUCH FACILITIES AND EQUIPMENT WILL BE CLEANED, MAINTAINED AND USED TO PROVIDE THE SERVICES AS THOUGH SELLER WAS PROCESSING AND MANUFACTURING ITS OWN PRODUCTS, WITH NO CUSTOMIZATION MADE OR SPECIAL PREPARATIONS TAKEN FOR THE SERVICES.
- Remedy for Non-Conformance. Claims for any Goods Non-Conformance or Services Non-Conformance must be made in writing to Seller within 7 days of receipt of the Goods or Materials, as the case may be, and failure to give such notice shall constitute unqualified acceptance of the Goods or Services and a waiver of all such claims by Buyer. Seller reserves the right to make delivery of Goods or Materials in installments. Seller will use reasonable efforts to comply with the delivery date for Goods or Materials specified in the Confirmation (if any), but any such date is an estimate only, unless otherwise agreed in writing by the parties. Buyer’s sole remedy for Goods Non-Conformance or Services Non-Conformance will be the replacement of the Goods or re-performance of the Services, as applicable, or a refund of the amount paid by Buyer for the Goods or the Services that were non-conforming.
- Payment Terms. Unless otherwise set forth on the Confirmation, payments shall be due within 30 days from the date of invoice and shall be subject to interest on the unpaid balance at the maximum rate permitted by law. Buyer shall make all payments hereunder in U.S. dollars. Buyer shall reimburse Seller for all collection costs and other expenses (including attorneys’ fees) incurred in the collection of past due amounts. In addition to all other remedies available under the Contract or at law, Seller shall be entitled to suspend the delivery of any Goods, under this or any other Contract between the parties, if Buyer fails to pay any amount when due hereunder.
- Warranty. SELLER WARRANTS THAT (a) THE GOODS WILL CONFORM TO THE GOODS SPECIFICATIONS AND (b) THE SERVICES WILL BE PERFORMED IN ACCORDANCE WITH THE APPLICABLE PORTIONS OF THE SERVICES SPECIFICATIONS; PROVIDED, HOWEVER, THAT BUYER ACKNOWLEDGES THAT BUYER IS THE PROVIDER OF THE MATERIALS AND AS SUCH SELLER’S WARRANTY IN CONNECTION WITH THE SERVICES IS STRICTLY LIMITED TO PERFORMING PROCESSING SERVICES IN ACCORDANCE WITH THE APPLICABLE PORTIONS OF THE SERVICES SPECIFICATIONS AND SELLER MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THE MATERIALS OR THEIR TYPE, QUALITY OR NATURE. EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION, THE GOODS AND SERVICES ARE PROVIDED TO BUYER “AS IS,” AND SELLER MAKES NO WARRANTY WITH RESPECT TO THE GOODS OR SERVICES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- Indemnification. Buyer shall indemnify, defend and hold harmless Seller and its directors, officers, employees and agents against any and all losses, costs, damages, claims, liabilities and expenses (including reasonable attorneys’ fees), arising out of or resulting from Buyer’s: (a) use or sale of the Goods or Materials; (b) breach of the Contract; (c) violation of any applicable law, rule or regulation; or (d) negligence or willful misconduct.
- Limitation of Liability. IN NO EVENT WILL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, ARISING OUT OF OR RELATING TO THE CONTRACT. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY FOR DAMAGES UNDER OR IN CONNECTION WITH THE CONTRACT EXCEED THE FEES PAID TO SELLER BY BUYER UNDER THE CONTRACT.
- Confidentiality. Buyer shall keep in confidence all information of a confidential nature (including any commercial know-how, specifications, pricing or processes) that is disclosed or made available to Buyer by Seller hereunder (“Confidential Information”). Buyer shall restrict disclosure of Confidential Information to those of its employees and agents who need to know it for the purpose of performing Buyer’s obligations under the Contract. Buyer shall be liable for a breach of the obligations under this Section by its employees and agents. Buyer shall only use Confidential Information to the extent necessary for the purposes of the Contract.
- Force Majeure. Upon the occurrence of any event beyond Seller’s reasonable control, including, without limitation, any act of God, war, riot, terrorism or insurrection, law, decree or governmental regulation, strike or lockout, transportation stoppage or slowdown, crop failure, quarantine restrictions, pandemic (including continued impact of COVID-19), acts or omissions of Buyer or flood or fire, that prevents Seller from timely performing under the Contract, Seller may, at its option, (a) cancel the Contract without liability; or (b) suspend performance under the Contract without liability until Seller’s performance is no longer prevented by such cause, in either case, by providing written notice to Buyer.
- Term; Termination. These Terms are effective upon the earlier of (a) Buyer’s failure to object to them within 10 business days after it receives them, (b) Seller’s commencement of the performance of an order; or (c) the date that Buyer executes these Terms by affixing its signature hereto (the “Effective Date”). They may be updated in whole, or in part, by Seller upon notice to Buyer; provided, however, that such updated Terms will apply prospectively only, to all orders submitted by Buyer after it has received such notice. Upon a material breach of the Contract, in addition to any remedies that may be available under the Contract or at law, Seller reserves the right to suspend fulfillment of or terminate the Contract and any other outstanding contracts between the parties, with immediate effect, upon written notice to Buyer. Seller may terminate the Contract or any order hereunder for convenience by thirty (30) days’ prior written notice to Buyer. The provisions of Sections 3-10 and 13-16 shall survive the termination of this Agreement, to the extent applicable.
- Security Interest. As collateral security for the payment of the purchase price of the Goods, 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 Goods and Materials, 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 section constitutes a purchase money security interest under the applicable Uniform Commercial Code.
- Recall. In the event that Seller or any governmental authority determines that the Goods must be recalled or otherwise withdrawn from commerce, (a) Buyer shall reasonably cooperate with Seller in connection with such recall or withdrawal; and (b) Buyer shall promptly notify its insurer of such recall or withdrawal.
- Applicable Laws. In performing obligations and exercising rights under the Contract, Buyer and Seller shall, at all times, act ethically and in compliance with all applicable laws of the United States and any jurisdiction in which Buyer and Seller are established or conduct operations relating to the Contract, including (without limitation) any applicable laws in force from time to time regarding bribery, fraudulent acts, corrupt practices and/or money laundering and any applicable laws in force from time to time regarding import/export regulations, tax and/or customs and duties. Buyer and Seller each represents and warrants solvency, as defined under the applicable Uniform Commercial Code, and each further represents and warrants that it is able to perform its obligations under the Contract.
- Miscellaneous. If a court of competent jurisdiction holds any provision of the Contract to be invalid or unenforceable, the remaining provisions of the Contract shall remain in full force and effect. Buyer may not assign the Contract without the Seller’s prior written consent. Buyer acknowledges that HFI is signing these Terms on behalf of itself and its successors, assigns and affiliates. It is hereby agreed and understood between the parties that there is no joint and several liability between HFI and any of its affiliates and only the specific HFI entity fulfilling the applicable order shall be the party responsible for such order. The rights and obligations of the parties hereunder will inure to the benefit of, and be binding upon, their respective successors and permitted assigns. The parties are independent contractors, and nothing in the Contract shall be deemed to create an agency, employment, partnership, fiduciary or joint venture relationship between the parties. The Contract shall be governed by the laws of the State of North Dakota, without giving effect to choice of law rules. Each party expressly consents to the exclusive jurisdiction of the state and federal courts located in North Dakota to govern any disputes arising out of the Contract. Each Contract is the entire agreement of the parties with respect to the subject matter thereof and shall supersede all prior or contemporaneous understandings or agreements between the parties, written or oral, regarding the subject matter thereof. No waiver or amendment of any provision of the Contract is effective unless it is in writing and signed by the party against whom such waiver or amendment is sought to be enforced. No waiver by a party of a breach of the Contract by the other party shall constitute a waiver of any other or subsequent breach by the other party. The Contract may be executed in two or more counterparts, each of which will be deemed an original, but which together will constitute one and the same instrument.
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