TERMS AND CONDITIONS

Prinova – Terms and Conditions - Sales

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 and the underlying or referenced Purchase Order between Buyer and Seller constitute the entire agreement between Buyer and Seller for the purchase of goods and any related services by Buyer from Seller (“Agreement”). As used in these Terms: (a) "Seller" shall mean Prinova US LLC and, as applicable, its affiliate(s); (b) "Buyer" shall mean the party identified as the party ordering goods or products from Seller and/or, as applicable, its affiliate(s); (c) the term "Product" shall mean the goods, products, articles, materials and/or equipment sold by Seller to Buyer; (d) the word "services" shall mean the labor, if any, 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 OF PRODUCT

The Product shall be deemed accepted if not refused or returned by Buyer within seven (7) days of Buyer’s receipt. Buyer shall conduct any required inspection at its expense and shall return any nonconforming Product to Seller within said seven-day period at Buyer’s expense and risk. If the Product is to be delivered in installments, Seller may elect to treat each such installment as a separate contract without limitation to Seller’s rights hereunder.

2. SPECIAL ORDERS

If the Purchase Order requires bulk, special or custom handling, or is a blanket purchase order, then (a) Buyer is responsible for full payment for the entire Purchase Order in accordance with the terms of this Agreement; (b) such order may not be cancelled or reduced in quantity; and (c) the Product delivered under such Purchase Order may not be returned to Seller except as otherwise stated in this Agreement.

3. TERMS OF PAYMENT

Payment of the Purchase Price is due and payable in immediately available funds as set forth on the invoice. Any amounts unpaid and past due will be subject to a service charge on the unpaid balance at an interest rate equal to the lesser of 18% per annum or the maximum allowable interest rate under applicable law. Buyer shall be responsible and liable for all expenses incurred by Seller in the collection, including reasonable attorney’s fees. All payments to Seller hereunder shall be without deduction or setoff.

4. NO WARRANTIES

SELLER MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE WHATSOEVER WITH RESPECT TO THE PRODUCT OR ANY PORTION OR INGREDIENT THEREOF, INCLUDING ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR ANY PURPOSE OR USE, TITLE, NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY OR OTHERWISE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, SELLER UNDERTAKES NO INVESTIGATION REGARDING THE QUALITY OR FITNESS OF THE PRODUCT OR ANY PORTION OR INGREDIENT THEREOF RECEIVED FROM ITS THIRD- PARTY SUPPLIERS AND MAKES NO WARRANTY OR GUARANTEE RELATED THERETO. BUYER AGREES TO LOOK SOLELY TO SELLER’S THIRD-PARTY SUPPLIERS FOR ALL CLAIMS RELATED TO QUALITY OR FITNESS OF THE PRODUCT OR ANY PORTION OR INGREDIENT THEREOF SO SUPPLIED TO SELLER.  UNLESS OTHERWISE AGREED BY SELLER, BUYER IS RESPONSIBLE FOR ALL LABELING COMPLIANCE FOR THE PRODUCT.

5. TITLE; RISK OF LOSS

Title to the Product passes from Seller to Buyer on payment in full of the Purchase Price. Risk of loss passes from Seller to Buyer on shipment from Seller’s facility. Regardless of the manner of shipment, loss or damage that occurs during shipping is Buyer’s responsibility.

6. ASSIGNMENT

Buyer shall not assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of Seller.

7. SHIPPING CHARGES; TAXES

Separate charges for shipping and handling will be shown on the invoice. Buyer shall be responsible for and shall pay to Seller, or if requested by Seller, pay directly to the taxing authority, all applicable taxes, fees, levies, imports, duties, withholdings or other charges (including any interest and penalties thereon), if any, imposed by any taxing authority by reason of the sale and delivery of the Product. At Seller’s option, prices may be adjusted to reflect any increase in the costs to Seller resulting from state, federal or local legislation (including the imposition of (or the increase in) any duty, tariff or tax).

8. TERMINATION

In addition to all other rights and remedies available at law, in equity or under this Agreement, Seller may terminate Seller’s obligations under this Agreement upon written notice to Buyer if (a) (i) Buyer is unwilling or unable to accept delivery of the Product on the delivery date and (ii) the parties are unable to agree on another delivery date, (b) Buyer fails to timely pay the Purchase Price or any other amount due from Buyer under this Agreement, (c) Buyer fails to give Seller appropriate shipping, delivery or other instructions when reasonably required, and in any event within two (2) business days of Seller requesting same, (d) there occurs a breach, or an anticipatory breach, by Buyer in performance of any of its other obligations under this Agreement (and with respect to any such breach that is capable of being cured, Buyer fails to cure such breach to Seller’s satisfaction within seven (7) days of Seller advising Buyer in writing of same), (e) Buyer ceases its operations, (f) Buyer is adjudged insolvent or bankrupt;  any voluntary or involuntary proceeding is instituted by or against Buyer seeking relief, reorganization or arrangement under any law relating to insolvency; Buyer makes any assignment for the benefit of creditors; or any receive or trustee is appointed for any substantial part of Buyer’s property or assets, or (g) in Seller’s reasonable opinion, Buyer’s ability to perform Buyer’s obligations under this Agreement, or Buyer’s creditworthiness, is or is likely to be materially impaired or threatened.

9. LIMITATION OF LIABILITY

IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD-PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES; LOST PROFITS OR REVENUES; OR DIMINUTION IN VALUE, IN EACH CASE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER, INCLUDING, WITHOUT LIMITATION, THE SALE, PERFORMANCE, NON-PERFORMANCE, DELIVERY OR NON-DELIVERY OF THE PRODUCT OR ANY PORTION OR INGREDIENT THEREOF OR FOR ANY CHARGES OR EXPENSES OF ANY NATURE INCURRED WITHOUT SELLER’S WRITTEN CONSENT (EXCEPT DIRECT DAMAGES AS PROVIDED HEREIN), WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. BUYER SHALL INDEMNIFY AND HOLD SELLER HARMLESS FROM ANY AND ALL SUCH CLAIMS, DEMANDS, LIABILITIES, AND EXPENSES BY BUYER OR THIRD PARTIES, INCLUDING REASONABLE FEES OF ATTORNEYS, COURT COSTS AND OTHER LEGAL EXPENSES, WHICH IT OR THEY MAY SUFFER OR INCUR IN CONNECTION WITH ANY DAMAGE, LOSS, EXPENSE OR ACTUAL OR THREATENED CLAIM, DEMAND, ACTION OR OTHER PROCEEDING.

BUYER’S EXCLUSIVE REMEDY, AND SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, IS LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE PURCHASE PRICE ACTUALLY PAID BY BUYER TO SELLER FOR THE PORTION OF THE PRODUCT WHICH CAUSED DAMAGES.

10. DELIVERY DATES

All delivery dates are approximate, time of delivery shall not be of the essence, and Seller shall not be responsible for damage of any kind resulting from any delays, loss or damage in transit.

11. FORCE MAJEURE

a) Seller shall not be liable tosing, transfer or use of such information, please discontinue use of the Website. 1. Buyer for any delay, breach or incomplete performance or non-performance of Seller’s obligations under this Agreement that is wholly or  partially due to any cause (“Force Majeure”) beyond Seller’s control, which shall include (without limitation) any Acts of God; war; civil disturbance; fire; storm; flood; pandemic, failure by any party or third-party to perform (including, without limitation, any seller or supplier of Seller); acts of any international organization, state, government, federal, local or like body or authority (“public authority”); non-availability of or delay in obtaining or variation of export or import permits or authorizations; imposition by any public authority of quota or other restrictions on any products or the price at which they may be sold (including without limitation the imposition of (or any increase in) any duty, tariff or tax on the product sold or on any material ingredient of the product sold); non-availability, delay or diversion in availability of  shipping or other transport; lock outs, strikes or trade disputes, whether or not official; break down or interruption of any plant, machinery, communications or data processing services or equipment; shortage or non-availability of labor, components, raw materials or supplies of any commodity; or any combination of the foregoing; or any Force Majeure affecting any seller or supplier of Seller.  (b) On the happening of Force Majeure, (i) Seller may by written notice to Buyer elect to suspend delivery of all or any of the Product without incurring liability to Buyer, and Buyer shall continue to perform all of Buyer’s obligations in respect of the Product delivered or  in  the course of delivery to Buyer or in relation to which Seller does not elect to suspend delivery; (ii) if Force Majeure continues for ninety (90) days or Seller acting reasonably sooner concludes such is irrecoverable, Seller may by written notice to Buyer terminate this Agreement in respect of all or any of the Product without incurring liability to Buyer, but without affecting Buyer’s obligations in relation to the Product delivered or in the course of delivery to Buyer; and (iii) if Force Majeure  ceases to apply and  Seller  has  not  exercised its right of termination under the foregoing clause (ii), Seller shall recommence deliveries of the Product  within  a  reasonable  time (with time for shipment and/or delivery of the Product extended accordingly) and Buyer shall duly perform Buyer’s obligations as buyer of the Product. (3) Seller shall use reasonable efforts to advise Buyer in writing of Force Majeure or its cessation, but failure to do so shall not restrict Seller’s rights under this Section 11. If Force Majeure interferes with Seller’s delivery of the Product or would cause the cost of the Product to exceed the Purchase Price (or materially decrease Seller’s margin), Seller shall be under no obligation to deliver the Product unless Buyer agrees to pay such additional costs.

12. BUYER COMPLIANCE

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.

13. MISCELLANEOUS

(a) Enforcement. Buyer shall be responsible and liable for all costs incurred by Seller in enforcing Seller’s rights and Buyer’s obligations under this Agreement, including reasonable attorney's fees.

 

(b)  Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties, and their respective successors and permitted assigns. Buyer represents and warrants to Seller that Buyer has full legal capacity and power to enter into and perform this Agreement, that the person agreeing or accepting this Agreement on behalf of Buyer is duly authorized to do so, and that this Agreement constitutes a valid and binding obligation on Buyer.

 

(c)   Governing Law. This Agreement shall be governed by and construed under the laws of Illinois, without regard to conflicts of laws rules. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed.  Any cause of action that may arise in any way under or due to this Agreement shall be brought and have venue exclusively in the County of Cook, Illinois, and the parties waive any right to a jury trial.

 

(d)   Notices. All notices required to be given shall be in writing and delivered to the address set forth on the Purchase Order (i) by hand or (ii) by certified first class mail, postage prepaid, return receipt requested, and shall be deemed given upon the date hand delivered or three days after mailing.

 

Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect any other provisions, which shall remain in full force and effect. If any provision of this Agreement is for any reason held to be invalid or unenforceable, it shall be construed valid and enforceable by limiting it as to time, subject or scope as (b)   required under applicable law.

 

(c)   No Waiver. All rights and remedies of Seller shall be deemed cumulative and not exclusive, and no omission or delay on the part of Seller in exercising any right or remedy shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude any other or further exercise thereof or exercise of any other right or remedy. No term or condition of this Agreement shall be deemed waived by Seller, nor shall there be any estoppel against Seller, except by written consent of Seller.

 

(d)    Limitations. Any suit or other action based on breach of this Agreement or any other claim arising from the Product (other than an action by Seller for amounts due Seller) must be commenced within one year from the date of tender for delivery by Seller.

 

(e)   Acceptance. This Agreement shall not be effective against Seller unless accepted in writing by Seller. Any taking of delivery of any Product or documents of title representing Product, giving shipping or delivery instructions, tender of any or all of the Purchase Price, or other part or full performance by or on behalf of Buyer of this Agreement shall be conclusive as to Buyer’s acceptance of this Agreement.

 

(f)  Amendments. No amendment to this Agreement shall be valid or effective unless in writing and signed by Seller.