TERMS AND CONDITIONS

Prinova – Terms and Conditions - Purchases

Rev. July 2021

These General Terms and Conditions (“Terms”) apply to transactions that do not have a written agreement executed by both Buyer and Seller.  If there is such an agreement, then those terms and conditions shall be the terms and conditions that govern the transaction and relationship between the parties. In the absence of such a written agreement, these Terms constitute the entire agreement between Buyer and Seller for the purchase of goods and any related services by Buyer from Seller ("Order"). As used in these Terms: (a) "Buyer" shall mean Prinova US LLC and, as applicable, its affiliates; (b) "Seller" shall mean seller and, as applicable, its affiliates; (c) the term "goods" shall mean the products, articles, materials and/or equipment/machinery sold by Seller to Buyer; (d) the word "services" shall mean the labor to be provided by Seller with respect to such goods; and (e) the term "affiliate" shall mean any firm, corporation, limited liability company, partnership, limited partnership, joint venture, or association which controls, is controlled by, or is under common control with Seller or Buyer, respectively, and shall specifically include any division, subsidiary, and any company or firm in which Buyer or Seller own an interest.

1. Acceptance and Modification

Seller accepts the Order and any amendments by signing the Order and returning it to Buyer promptly. Even without such written acknowledgment, Seller's confirmation or acknowledgment of receipt of the Order, full or partial shipment of the goods and/or provision of the services to Buyer will constitute acceptance of these Terms. By acceptance of the Order, Seller agrees to be bound by, and to comply with all these Terms, which include any supplements to it, and all specifications and other documents referred to in the Order. These Terms apply to everything listed in the Order and constitute Buyer's offer to Seller, which Buyer may revoke at any time prior to Seller’s acceptance. This Order is not an acceptance by Buyer of any offer to sell, any quotation, or any proposal. Reference in this Order to any such offer to sell, quotation, or proposal will not constitute a modification of any of these Terms. Terms and conditions different from or in addition to these Terms, whether contained in any acknowledgment of the Order, or with delivery of any goods or services under the Order, or otherwise, will not be binding on Purchaser, whether or not they would materially alter the Order, and Buyer hereby rejects them. These Terms may be modified only by a written document signed by duly authorized representatives of Buyer and Seller.

2. Delivery, Transportation and Risk of Loss

Time is of essence of the Order. All goods are sold to Buyer "F.O.B. Buyer's Facility" unless otherwise specified in the front of the Order. Without limitation of the foregoing, Seller shall notify the Buyer promptly of any delays or threatened delays in the performance of the Order. The Buyer shall have no liability for payment for goods or services delivered to it which are in excess of quantities specified in the Order. If Seller does not, or it appears that Seller will not, meet Buyer's delivery or work schedule, Buyer may, in addition to any other rights or remedies provided by law or the Order: (a) cancel the Order, in whole or in part, without liability to Seller except for payment for goods previously shipped and accepted or services previously performed to the extent reasonable in amount; (b) approve an agreed upon revised delivery or work schedule; or (c) require that Seller ship via expedited routing to meet such delivery schedule or to recover the time lost. If Buyer approves a revised delivery schedule or requires Seller to ship via expedited routing, any additional transportation cost incurred as a result shall be paid by Seller. All risk of loss, damage in transit or delay in delivery of the goods ordered pursuant to the Order shall remain with Seller until delivery to and acceptance by Buyer, except where transportation of the goods is provided by Buyer's own vehicle, and then risk of loss damage in transit and delay in delivery shall shift to Buyer upon completion of loading of Buyer's vehicle by Seller. Seller shall prepare all goods for shipment so as to secure the lowest transportation rates consistent with timely delivery. Buyer will not pay for packing, cartage, drayage, storage or anything else unless stated in the Order or otherwise agreed to in writing by Buyer. Seller shall mark the identification number of the Order and enclose a packing slip showing the order number and quantity in each container or other receptacle. If not accompanied by a packing slip, Buyer's count and weight shall be conclusive.

3. Price, Terms of Payment and Setoff

All prices to be paid for the goods ordered or services to be performed shall be as set forth in the Order, unless otherwise expressly agreed to in writing by Buyer. All charges are included in the price and no extra charges of any kind shall be allowed unless specifically agreed to in the Order. Seller shall invoice Buyer for the Order within 30 days of delivery, unless otherwise agreed. Cash discount periods shall be computed from either the date of actual delivery of the goods or the date an acceptable invoice is received, whichever is later. Additionally:

a.    If Seller's current lawful price is lower than stated in the Order, the Order shall be filled by Seller at such lower price.

b.    Any costs or expenses which Seller intends to pass on to Buyer must be reasonable, actual and necessarily incurred by Seller in the performance of the Order, and must be expressly approved by Buyer in advance in writing.

c.    Unless otherwise agreed to in writing by Buyer, all prices include all applicable Federal, state and local taxes, assessments and duties, except for those for which an exemption may be claimed by Buyer.

d.    Buyer shall be entitled at all times to set off any amount owing at any time from Seller, or any affiliate of Seller, to Buyer, or any affiliate of Buyer, against any amounts payable at any time by Buyer in connection with the Order.

4. Future Taxes

All taxes, assessments, duties or any charge or increase not in effect on the date of the Order which may, prior to the completion of deliveries of goods or performance of services, be levied by any governmental agency on products, containers for products or services shall be the liability of Seller without recourse to Buyer.

5. No Substitution of Materials

No change in the goods or services ordered under the Order, or their method of production, including substitutions or changes in materials, equipment, processing or production location shall be made by Seller, or any approved subcontractor, without the prior written consent of Buyer.

6. Inspection, Rejection and Return of Goods

All goods and services to be purchased under the Order are subject to the right of inspection, approval, and acceptance by Buyer, whether or not prior payment has been made by Buyer and without regard to the passage of time. Goods purchased hereunder may be inspected at Buyer's destination or Seller's plant, at Buyer's discretion. Buyer reserves the right, in addition to any other rights which it may have at law, at equity or under the Order, to reject and refuse acceptance of all or a portion of such goods or services which are not in conformity with the Seller's warranties, as determined by Buyer. Seller agrees that time for acceptance or rejection of any shipment of goods or performance of services shall not expire until Buyer's use of the goods in products which it manufactures or processes which embody or employ the goods or use of any item which is an embodiment of the services performed by Seller. Buyer shall have the right to return to Seller all or a portion of such non-conforming goods or any item representing or embodying the services, at Seller's sole risk and expense, for full credit or refund, or require that Seller, at its sole risk and expense, correct or replace such goods or services with conforming goods or services within such time as Buyer may require; provided, however, that such corrected or rejected goods or services shall not be converted or replaced by Seller without written authorization from Buyer. If Seller fails to correct or replace any non-conforming goods or services promptly after notification and authorization from Buyer, Buyer may correct or replace such goods or services and charge Seller for the cost incurred by Buyer thereby, equitably adjust the order price for such goods or services, or set-off the cost hereunder, at the sole discretion of Buyer. Any goods or services corrected, replaced or repaired by Seller shall be subject to the warranties and other terms of the Order. In the event of rejection by Buyer of all or a portion of the goods or services, Buyer may charge to Seller and set-off against any payments due Seller all expenses of unpacking, examining, repacking, storing and shipping any goods rejected. Payment for any goods or services hereunder shall not be deemed acceptance thereof.

a.    Buyer's failure to inspect and accept or reject any goods or services shall not relieve Seller from responsibility for goods which are not in conformance with the Order, nor for hidden or latent defects in any goods whether inspected or not, nor for fraud or such gross mistakes as amount to fraud, nor shall anything herein relieve Seller from the obligation to inspect and test the goods or services covered by the Order in accordance with good commercial practices and Buyer's requirements and specifications, nor impose any liability upon Buyer for such failure or defects.

b.    Seller shall maintain inspection and test records pertaining to such goods and services for a period of two (2) years after delivery of such goods and services or as otherwise specified by Buyer and copies thereof shall be made available to Buyer at any time upon request and without charge. Such records shall include the time when, the manner in which, the persons by whom the goods or services have been inspected and tested, and the results of such inspections or tests.

7. Warranties

Seller represents and warrants: (a) that it is the sole owner of any goods to be sold under the Order and that it has the unrestricted right to convey marketable title free and clear of all liens and encumbrances; (b) that any goods delivered or services performed will conform to the Order and any description, specification, drawing or sample relating to such goods or services; (c) that any goods shall be merchantable and fit for use with food products for their particular purpose and use intended by Buyer and, if applicable, human consumption, and that any goods or services shall be free of all defects in design, material and workmanship, and shall be in good working condition; and (d) that all goods shall be manufactured in accordance with good manufacturing practices, and that all goods and/or services shall conform to and be furnished in accordance with all applicable Federal, state and local laws, rules and regulations. Seller agrees that these warranties shall run to Buyer, its successors, assigns, and customers, and the users of its products. These warranties shall survive any delivery, inspection, testing, acceptance or payment by Buyer under the Order, and the termination of the Order for any reason. Seller acknowledges that it is an expert in producing and supplying the goods and/or services to be purchased pursuant to the Order, and notwithstanding Buyer's acceptance of specification, samples, test data and the goods and/or services, Seller agrees that Buyer may rely on Seller as an expert.

8. Termination and Remedies

Buyer may terminate all or any part of the Order at any time or times by 30 days prior written notice to Seller or immediately (a) if Seller fails to observe or comply with any covenants, terms, conditions or warranties contained in the Order; (b) if Seller, in Buyer's opinion, fails to make progress so as to endanger performance or shipment in accordance with the Order; or (c) in the event of any proceeding by or against Seller in bankruptcy or insolvency, the appointment of a receiver or trustee, or an assignment for the benefit of creditors is made by Seller. Upon termination, Buyer may produce or purchase or otherwise acquire the goods or services ordered under the Order elsewhere on such terms or in such manner as Buyer may deem appropriate, and Seller shall be liable to Buyer for any excess costs or other expenses incurred by Buyer. In addition, Buyer shall have all other rights and remedies provided by law, at equity and under the Order, and all of Buyer's rights and remedies shall be cumulative and none shall be considered exclusive. Upon termination, Buyer's only responsibility to Seller shall be the purchase price for: (a) goods previously made, delivered to, inspected and accepted by Buyer in accordance with the terms of the Order; and (b) services performed and accepted before the date of receipt by Seller of the termination notice.

9. Infringement of Proprietary Rights

To the extent that the goods supplied under the Order are not manufactured to detailed designs and specifications originated and furnished by Buyer, Seller represents and warrants that the sale or use of such goods will not infringe any United States or foreign patent, copyright, trademark, industrial design right, or other proprietary right. Seller shall indemnify, defend and hold Buyer, its successors, assigns, shareholders, officers, directors, employees, agents, customers and those persons selling or using any of Buyer's products and any affiliated company of Buyer, its shareholders, officers, directors, employees, agents and customers, harmless from and against any damage, liability, claims, loss, costs, expenses and fees {including reasonable attorneys' fees) which may be incurred on account of infringement or alleged infringement of any United States or foreign patent, copyright, trademark, industrial design right or other proprietary right by the goods or use of the goods supplied under the Order. Buyer shall have the right to employ counsel separate from counsel employed by Seller in any proceeding for which Buyer may be indemnified by Seller and to participate in the defense thereof, but the expense of such counsel employed by Buyer shall be borne by Buyer unless Seller has failed to assume the defense of Buyer or employ satisfactory counsel. Seller shall reimburse Buyer on an on-going, periodic basis for all fees, costs" and expenses incurred by Buyer promptly after submission of statements of expenses of Buyer during the pendency of any such proceeding. In addition to all other rights and remedies Buyer has at law, at equity or under the Order, in the event Buyer, its customers or anyone selling or using Buyer's products are enjoined from the use, sale or other disposition of the goods, conditionally or otherwise, Seller shall, at no additional cost to Buyer, repurchase the goods at their purchase price and/or Buyer's products at their purchase price, and repay all costs of all shipments of such goods and products incurred by Buyer.

10. Compliance with Laws

Seller shall comply and warrants its compliance with all applicable Federal, state and local laws, rules and regulations relating to the goods and/or services to be furnished hereunder, including, but not limited to, the Federal Food, Drug, and Cosmetic Act, the Federal Nutrition and Labeling Education Act of 1990, the Federal Insecticide, Fungicide and Rodenticide Act, the Federal Fair Packaging and Labeling Act, the Federal Hazardous Substances Act, the Federal Toxic Substances Control Act, the Fair Labor Standards Act of 1938, the Occupational Safety and Health Act of 1970, and California's Transparency in Supply Chain Act, all as amended from time to time, and shall furnish certificates of compliance whenever requested by Buyer. Buyer serves from time to time as a contractor or subcontractor for the United States Government. Accordingly, Seller shall, unless the Order is otherwise exempt, comply with all applicable Federal laws, rules and regulations applicable to subcontractors of government contractors, including Section 202 of Executive Order 11246, as amended by Executive Order 11375, the Vietnam Era Veterans Readjustment Assistance Act of 1974, the Rehabilitation Act of 1973, as amended, and those governing contracts with business concerns operating in areas of surplus labor (48 CFR Part 20), with women-owned business concerns (Executive Order 12138) and with small and disadvantaged business concerns (15 U.S.C. 637), all as amended from time to time, and shall furnish certificates of compliance whenever requested by Buyer. Contract clauses required by the Government in such circumstances, and all rules and regulations (including, but not limited to, 41 CFR 60-1.4 (a)(1)-(7), 41 CFR 60-250.4 (a) - (m), and 41 CFR 60-741.1 (a)-(f)) promulgated under the specific acts cited, are incorporated into the Order by reference.

11. Recall of Goods

If Seller becomes aware that the goods or any ingredient in the goods is or may become harmful to persons or property, or that the design or construction of the goods or services is defective in any manner which is or may become harmful to persons or property, or if Seller otherwise breaches any of its warranties to Buyer hereunder, Seller shall immediately give notice thereof, including all relevant information with respect thereto, to Buyer, and Seller shall indemnify, defend and hold Buyer, its successors, assigns, shareholders, officers, directors, employees, agents, customers and those selling or using its products, and any affiliated company of Buyer, and its officers, directors, shareholders, employees, customers, agents and the users of its products, harmless from and against any and all damages, liabilities, claims, losses, costs, expenses and fees (including reasonable attorneys' fees) paid or incurred by them arising out of, or relating or incidental to such goods or services provided by Seller, including, without limitation, any costs associated with recalling products developed, manufactured, or created by Buyer with the aid of such goods or services. Buyer may, at its option, be represented by and actively participate through its own counsel in any suit or action against the foregoing persons and entities. Should Buyer, either voluntarily or involuntarily, initiate a recall of such products, or if a governmental agency shall take action with respect to them, Seller shall assist and cooperate with Buyer in all respects with said recall, including, but not limited to, developing a recall strategy for the products and working with Buyer and any applicable governmental agency in monitoring Buyer's recall operation and in preparing and furnishing such reports, records or other such information as is necessary in connection therewith, and Seller agrees to pay all costs associated with such recall.

12. Indemnification

Seller shall indemnify, defend and hold Buyer, its successors, assigns, shareholders, officers, directors, employees, agents, customers and those persons selling or using any of Buyer's products, and any affiliated company of Buyer, its shareholders, officers, directors, employees, agents and customers, harmless from and against any and all damage, liability, claims, loss, costs, expenses and fees (including reasonable attorneys' fees) arising out of or relating or incidental to any breach by Seller of the terms, covenants, warranties and conditions of the Order, or any act or failure to act by Seller or its agents, representatives or employees in the performance of the Order, including, but not limited to:

a.    Death or injury to persons or damage to property, by whomsoever suffered, claimed to have resulted from any alleged defect in the goods or services, or the performance by Seller of work or services pursuant to the Order, or the work or performance of services by Seller's agents, representatives or employees, on the premises of Buyer or one of its customers or suppliers, or from the failure of the goods to comply with any applicable sample or specification or with the express or implied warranties given by Seller, its agents representative or employees.

b.    Claims arising out of the alleged violation by Seller in the manufacture, processing, storage, or sale of the goods, or in the performance by Seller of any work or services pursuant to the Order, of any Federal, state or local law, statute, ordinance, or administrative order, rule, regulation or standard.

If either (a) or (b) apply, Buyer shall have the right to employ counsel separate from counsel employed by Seller in any such proceeding for which Buyer may be indemnified by Seller and to participate in the defense thereof, but the expense of such counsel employed by Buyer shall be borne by Buyer unless Seller has failed to assume the defense of Buyer or employ satisfactory counsel. Seller shall reimburse Buyer on an on-going, periodic basis for all fees, costs and expenses incurred by Buyer promptly after submission of statements of expenses of Buyer during the pendency of any such proceeding, including, but not limited to, internal and external legal fees and costs, and pre-judgment and post judgment interest at the greater of such other rate of interest as provided herein or prime or equivalent rate of interest of Chase Bank plus 3% based on a 360-day year.

13. Insurance

Seller shall maintain the following minimum insurance coverage: (a) Commercial General and Products liability coverage, including broad form vendors, completed operations, contractors liability and personal injury liability coverage in the amount of $1,000,000 per occurrence and $2,000,000 in the aggregate; (b) statutory limits of Workers' Compensation insurance (including occupational disease) and Employer's Liability coverage with limits of not less than $1,000,000; and (c) Automobile Liability insurance for all owned, hired and non-owned automobiles with a $1,000,000 combined single limit. Seller shall also provide excess/umbrella insurance coverage, written on an occurrence basis, which provides $5,000,000.00 ($10,000,000 for raw materials and ingredient suppliers) coverage. Said insurance policies must be primary and non-contributory. Upon Buyer’s request, Seller provide Buyer with a Certificate of Insurance setting forth the amount of coverage, policy number, and date of expiration and naming Buyer as an Additional Insured and waiver of subrogation. Seller shall provide Buyer at least thirty (30) days' written notice prior to any expiration, termination, non-renewal or material change in coverage unless under any applicable laws of any state a shorter time period for notice is required, in which case such time period shall apply.

14. Confidential Information

Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Product under this Agreement or any resale of the Product by Buyer. Buyer assumes all responsibility for shipments of the Product requiring any government import clearance. Buyer acknowledges that it is solely responsible for complying with all U.S. Export Administration laws, rules, and regulations. Buyer certifies that it is not on the U.S. Commerce Department’s Denied Party or Entity List or the Unverified Parties List and agrees that it will not sell or distribute any Product sold hereunder to any party on such lists.  Seller may terminate Seller’s obligations under this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on the Product.  Buyer warrants that in performing its obligations under this Agreement, it will not take any action rendering Seller liable for violation of the United States Foreign Corrupt Practices Act, which prohibits offering, giving, or promising to offer or give, directly or indirectly, money or anything of value to any official of a government, political party, or instrumentality of these organizations, to assist it or Seller in obtaining or retaining business.

15. Changes

Buyer reserves the right to make changes within the general scope of the Order, except as to price or quantity, by any reasonable means, and if requested by Seller, such changes shall be confirmed in writing by Buyer. If any such change causes an increase or decrease in the cost of, or time required for, Seller's performance, the price therefor and/or time required for performance shall be equitably adjusted. Any claim for adjustment hereunder must be asserted in writing within thirty (30) days from the date the change is ordered. Failure on the part of either party to assert its claim within the time provided shall operate as a waiver thereof.

 

 

16. Force Majeure

a. Buyer reserves the right to defer any shipment under the Order, cancel or modify the Order or change any performance dates if Buyer's production is delayed on account of strikes in Buyer's plant or the plants of any of Buyer's suppliers, fire, an act of God, governmental order or regulation or other conditions beyond Buyer's control.

 

b.       Seller shall not be liable for delays or defaults in delivery due to fire, an act of God, governmental order or regulation or other unforeseeable causes beyond its control and without its fault or negligence, provided that Seller notifies Buyer within ten (10) days after Seller first knows of same, time of such notification being of the essence. Without limiting the generality of the foregoing, the parties acknowledge and agree that a change in market conditions due to a Force Majeure Event or otherwise that results in higher-than-anticipated costs of performance under this Order shall not excuse Seller's performance hereunder unless the Seller is substantially unable to perform its obligations as a result of such changed market conditions.

17. Governing Law and Consent to Jurisdiction

The Order shall be governed by and construed in accordance with the internal laws and decisions, but not the laws of conflict, of the State of Illinois, and Seller consents, exclusively, to the adjudication of any dispute arising out of the Order by any federal or state court of competent jurisdiction sitting in the State of Illinois.

18. Miscellaneous

The Order and any payment or performance due under it may not be assigned, transferred, sublet, subcontracted or delegated, in whole or in part, by Seller without the prior written consent of Buyer, its successors and assigns. No act of failure to act of Buyer shall constitute a waiver of any provision contained in the Order, and to be valid a waiver of any requirement or obligation under the Order must be in writing and signed by Buyer. The section headings contained herein are not part of the Order, but are included solely for the convenience of the parties. The provisions of the Order are severable, and if any provision is held to be unenforceable, the remaining provisions shall continue in full force and effect.

19. Independent Contractors

Nothing contained in the Order shall be construed as creating a partnership or joint venture between Buyer and Seller, and Seller shall at all times during the term of the Order be deemed to be an independent contractor, solely responsible for the manner by and the form in which it fulfills the Order. To the extent Seller's obligations under the Order require the performance of services by Seller on the premises of Buyer or any of Buyer's customers, Seller agrees that such services are to be rendered by Seller as an independent contractor and Seller shall comply with all of Buyer's or said customers' safety rules and regulations and shall provide all safeguards and take all necessary precautions to prevent the occurrence of any injury to any person or property during the performance of such services. For purposes of clarification, Seller is providing goods and services in the capacity of a general contractor and is not an employee or agent of the Buyer; and Buyer is neither a general contractor nor the construction manager on this project.

20. Notices

Any notices, consents or approvals called for hereunder may be given by telephone, but shall be confirmed in writing to be delivered or sent by telecopier, facsimile, overnight delivery service or by certified mail, return receipt requested, enclosed in a sealed envelope with first class postage thereon, addressed in the case of Buyer to its office located at the address set forth on the Order, and in the case of Seller at such address as Seller shall provide Buyer, or if no address is provided, at Seller's principal offices. The address of either party may be changed by written notice to the other. Any notice will be deemed to have been received by a party the same date as sent if sent by telecopier or telex (with confirmation sheet), the next day if sent by overnight delivery service and three (3) days from the date sent if given by certified mail, return receipt requested.

 

21. Amendment

Except in accordance with the provisions of section 18 hereof, the Order may be amended only by a writing signed by representatives of both Seller and Buyer, each duly authorized to execute such amendment.