Purchaser Terms and Conditions
Except if otherwise agreed in a written instrument by both Prolamina Corporation or one of its subsidiaries (“Purchaser”) and the seller of goods or services covered hereby (“Seller”), these terms and conditions (collectively, “Terms”) together with any written commercial terms, purchase order, work order, scope of work, statement of work, offer or other similar writing (“Order”) signed by Purchaser to sell, ingredients, packaging, materials, parts, equipment or other goods (collectively, “Goods”) or design, consulting, support, installation, repair, maintenance or other services (collectively, “Services”) or some combination of Goods and Services shall constitute the agreement (“Agreement”) between Purchaser and Seller concerning the sale and purchase of those Goods or Services that are the subject of the Order. Seller’s (a) execution of an Order or any release related to an outstanding Order, (b) failure to object in writing to an Order or any Purchaser release related to an outstanding Order within one business day of receipt by Seller of the Order or the Purchaser release, (c) commencement of work on the Goods or Services under the terms of an Order, or (d) shipment of the Goods or the provision of Services covered by an Order, whichever occurs first, shall be deemed Seller’s acceptance of both the Order and these Terms. PURCHASER’S AGREEMENT IS LIMITED TO THE EXPRESS TERMS OF THE AGREEMENT AND DOES NOT INCLUDE ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY SELLER OR ANY ATTEMPT BY SELLER TO VARY THE TERMS OF THE AGREEMENT.
Time is of the essence for this Agreement. Subject to any agreed upon lead times, if the Goods or Services are not delivered or rendered by the date set forth in the Order, and such failure to deliver is not caused by Purchaser, then Purchaser may, without liability and in addition to its other rights: (a) terminate the Order or reschedule the Order delivery time by notice to Seller; and (b) buy substitute Goods or procure Services elsewhere and Seller shall reimburse Purchaser for losses incurred, which may include the difference between the Order price and the purchase price for substitute Goods or Services, expedited delivery charges, direct, indirect damages, and consequential damages. Seller will use reasonable commercial efforts to fill Orders where less than the agreed-upon lead time is given, provided that Seller shall not have any liability for any failure to fill any such Orders in less than the agreed-upon lead time.
3. SHIPMENT OF GOODS
Seller shall prepare and pack for shipment all Goods in accordance with Purchaser’s specific instructions. In the absence of Purchaser’s specific instructions to the contrary, Seller shall effect each shipment of Goods in accordance with good commercial practices: (a) to ensure safe delivery and freedom from damage, (b) to secure the lowest transportation rates, and (c) to meet carriers’ requirements. Seller shall be responsible for all damage resulting from improper or inadequate packaging. Purchaser will not pay charges for packing, crating or in carriage delivery, unless otherwise stated in this Agreement. If Seller must expedite shipment in order to comply with Purchaser’s required delivery date, Seller shall pay all increased transportation costs, unless Purchaser solely causes the necessity for, and agrees in writing to pay, the increased costs. Unless otherwise agreed in writing by Purchaser, Purchaser shall neither return nor pay for drums, carboys, pallets, containers, reels, or other shipping devices. In the absence of Purchaser’s specific instructions to the contrary, Seller shall ship all Goods DDP the facility of Purchaser in the continental United States or Canada designated by Purchaser (Incoterms 2010).
4. COVENANTS, WARRANTIES AND REPRESENTATIONS
Seller covenants, warrants and represents that Goods and Services it provides: (a) shall conform to all samples submitted by Seller and approved by Purchaser; (b) shall conform to all applicable drawings, standards, specifications, performance criteria and any other description provided or agreed to by Purchaser; (c) shall be new, unless otherwise set forth in the Order; (d) shall be free from defects in material and workmanship; (e) shall be merchantable; (f) shall be safe and appropriate for the purpose for which Goods or Services of this kind are normally used and for any particular purposes disclosed to Seller; (g) shall comply with, and together with their packaging, labeling and accompanying materials be properly contained, packaged, marked and labeled in accordance with, applicable laws and any specific instructions of Purchaser; (i) shall not be subject to any liens, encumbrances, security interests; and (j) shall not infringe any intellectual property rights when sold hereunder or when used by Purchaser its customers or agents. Seller further covenants, warrants and represents that: (i) neither Seller nor any of its, officers, employees, or subcontractors is expressly or by implication prohibited from providing the Goods or Services by virtue of the terms and conditions of any agreement, instrument, or other obligation and Seller will not be impaired or prevented from providing the Goods or Services in accordance with the Agreement by virtue of commitments to other customers; (ii) Seller shall provide the Goods or Services in an efficient and good professional manner, in compliance with all laws, rules, and regulations applicable at the time, consistent with Purchaser policies and procedures applicable from time to time (including but not limited to Purchaser’s Plant Safety Policy), and in accordance with the highest performance standards of its industry or as may be agreed by the parties; and (iii) Seller is in, and holds itself out to the public to be in, the business of providing the Goods or Services.
5. PURCHASER’S RIGHTS
Purchaser’s inspection, testing, payment for, or use of the Goods or Services furnished shall not constitute acceptance thereof and shall not affect Seller’s obligations under the warranties set forth herein, which warranties shall survive Purchaser’s inspection, testing, acceptance, andr use. Nothing contained in this Agreement shall relieve Seller in any way from its obligations to test, inspect, and control the quality of the Goods or Services. Purchaser may inspect the Goods or Services and may accept or reject at any time any and all Goods or Services that are less than or in excess of the quantity ordered or that are, in Purchaser’s judgment, defective or do not conform to any warranty or this Agreement. Seller will promptly at Purchaser’s option (a) replace or correct any Goods or Services which are defective or nonconforming, at its sole cost and expense, and only upon written replacement order from Purchaser, or (b) credit Purchaser’s account with an amount equal to the amount paid for such defective or non-conforming Goods or Services, including any duties and other costs incurred by Purchaser, provided Purchaser notifies Seller within a reasonable time of its knowledge of the defect or nonconformity. In addition to Purchaser’s other rights, Purchaser may, at Seller’s risk, return to Seller rejected Goods, and Seller shall reimburse Purchaser for all expenses of unpacking, examining, repackaging, and reshipping the Goods. If Seller fails to timely take any of the corrective action described in this Paragraph, Purchaser may procure substitute Goods or Services, and Seller shall reimburse Purchaser for all costs incurred. Substitutions by Seller will not be accepted without Purchaser’s prior written approval. Purchaser’s count as to the quantity of Goods delivered shall be accepted as final and conclusive on all shipments that are not accompanied by a packing slip indicating the quantity delivered.
Except as otherwise approved in writing by Purchaser, the fees and prices set forth in this Agreement are firm and are the total amount due from Purchaser for the Goods or Services, including duties, taxes, freight, and any other charges. Purchaser is not responsible for any amount above and beyond the amounts described in this Agreement. Seller shall not make shipment without Purchaser’s prior written consent if prices differ between the Order, as may be amended, and any other oral or written arrangement, and in no event is the Order to be filled at higher prices than last previously quoted or charged to Purchaser without Purchaser’s prior written consent. Seller warrants that the fees and prices charged to Purchaser are as low as any net prices now charged by Seller to any customer for goods or services of like quality and in like quantities; and Seller agrees that if at any time during the term of the Order lower net fees or prices are quoted under similar conditions, such lower net fees or prices shall be from that time substituted for the fees and prices herein. Payment shall be due as agreed upon by the parties, following the later of the date of actual receipt by Purchaser of the Goods or Services and receipt of Seller’s invoice therefor. If Purchaser has a claim against Seller resulting from this Agreement or any transaction, Purchaser may deduct or set off disputed amounts from Seller’s claims for amounts due hereunder.
7. CHANGES IN GOODS OR SERVICES
Purchaser may, at any time prior to delivery, change the drawings, designs, specifications, materials, packaging, time and place of delivery, and method of transportation under the Order. Seller agrees to accept any changes, provided that if a change increases or decreases the cost or time required for performance, the parties will make an equitable adjustment and will modify the Order in writing accordingly. Seller shall inform Purchaser in advance of any material change, intentional or otherwise, to the Goods or Services, including changes in composition, quality assurance specifications, manufacturing processes, labeling, ingredient, material functionality, safety of the Goods or Services, manufacturing locations, or subcontracting. If Purchaser will not agree to any change made by Seller, Purchaser may cancel the Order under the terms set forth in the Termination For Cause Paragraph below.
IN ADDITION TO SELLER’S OTHER OBLIGATIONS HEREUNDER, SELLER SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS PURCHASER, ITS AFFILIATES, AND SUBSIDIARIES, AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND CUSTOMERS AGAINST ANY AND ALL ALLEGED DAMAGES, CLAIMS, LIABILITIES, LOSSES, COSTS AND EXPENSES (INCLUDING LITIGATION EXPENSES, ATTORNEYS’ FEES, AND PUNITIVE DAMAGES) ARISING OUT OF OR RESULTING IN ANY WAY FROM ANY KNOWN OR UNKNOWN DEFECT IN THE GOODS OR SERVICES, THE BREACH OF ANY SELLER REPRESENTATION, WARRANTY, OR OBLIGATION, OR FROM ANY ACT OR OMISSION BY SELLER, ITS AGENTS, EMPLOYEES, OR SUBCONTRACTORS. PURCHASER MAY BE REPRESENTED BY AND ACTIVELY PARTICIPATE THROUGH ITS OWN COUNSEL IN ANY SUIT OR PROCEEDING AS TO WHICH INDEMNIFICATION IS DUE FROM SELLER.
Seller shall maintain insurance coverage, sufficient to satisfy its indemnification obligations hereunder, and in amounts reasonably requested by Purchaser, written by a reputable insurance company that is authorized to do business in the jurisdictions where Seller does business. Upon Seller’s acceptance of this Agreement and subsequently on Seller’s insurance renewals, Seller will deliver to Purchaser a certificate of insurance for all coverage required in this Paragraph, naming Purchaser as an additional insured (except for statutory worker compensation) and providing that Purchaser will be given thirty (30) days advance written notice of the insurer’s intention to cancel or materially alter the policies specified herein. The insurance procured by Seller pursuant to this Paragraph shall be primary insurance, and neither excess over nor contributing with any other insurance procured and maintained by Purchaser. The insurance requirements set forth above are minimum coverage requirements and are not to be construed in any way as a limitation on Seller’s liability under this Agreement.
Seller, and its employees, agents and representatives, shall consider all non-public information provided by Purchaser, all specifications or other documents prepared by Seller in connection with this Agreement, the fact that Purchaser has contracted to purchase Goods or Services from Seller, and all other non-public information relating to this Agreement (“Confidential Information”). Without Purchaser’s prior written consent, Seller shall not disclose or use Confidential Information for any purpose other than performing this Agreement.
11. OWNERSHIP OF PROPERTY
Unless otherwise agreed in writing by Purchaser, all designs, concepts, drawings, specifications, devices, formulations, materials, dies, plates, film, molds, and any other property furnished to Seller by Purchaser or specifically paid for by Purchaser, for use in the performance of this Agreement shall be: (a) and remain the property of Purchaser, (b) kept separate from other property, (c) identified as Purchaser’s property, (d) subject to removal at any time without additional cost upon Purchaser’s instructions, (e) used only for filling Orders for Purchaser, (f) held at Seller’s risk, and (g) kept insured by Seller at Seller’s expense while in its custody or control for an amount equal to the full replacement cost thereof, with loss payable to Purchaser.
Seller may not assign or subcontract any part of this Agreement without Purchaser’s prior written consent. Purchaser may assign the Agreement without Seller consent. If Seller subcontracts any part of this Agreement, Seller shall bind each of its subcontractors by this Agreement’s terms and conditions; provided however that nothing contained in any subcontract shall create, nor be represented to create, a contractual relationship between any subcontractor and Purchaser. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns.
13. TERMINATION FOR PURCHASER’S CONVENIENCE
Purchaser may terminate this Agreement or any part hereof, at any time upon fifteen (15) days’ notice, solely for its convenience. Upon its receipt of Purchaser’s notice of termination, Seller shall immediately stop and cause all of its employees, suppliers and subcontractors to stop all work hereunder. Upon termination for convenience, Purchaser will pay Seller a reasonable termination charge equal to the price of the Goods or Services delivered prior to Seller’s receipt of Purchaser’s notice, or the percentage of the Agreement price reflecting the percentage of the Goods or Services provided prior to Seller’s receipt of Purchaser’s notice, plus Seller’s reasonable and direct costs resulting from the termination. Purchaser shall not pay Seller for any work performed after Seller’s receipt of notice of termination or for any costs that Seller could reasonably have avoided.
14. TERMINATION FOR CAUSE
In addition to Purchaser’s other rights and without liability to Purchaser, Purchaser may terminate this Agreement or any part hereof, for cause, in the event of any default by Seller of the terms or conditions of this Agreement, including no delivery, late delivery, delivery of nonconforming or defective Goods or Services, or Seller’s failure to provide Purchaser, upon request, with reasonable assurances of future performance, Seller becoming insolvent or filing a voluntary petition in bankruptcy, or the filing of an involuntary petition in bankruptcy against Seller, or upon Seller’s execution of an assignment for the benefit of creditors. Upon receipt of Purchaser’s notice, Seller shall immediately stop and cause all of its suppliers and subcontractors to stop all work hereunder.
15. GOVERNING LAW
This Agreement shall be governed and interpreted by the laws of the Commonwealth of Massachusetts, without regard to its conflicts of laws rules. Each of Purchaser and Seller irrevocably submits to the jurisdiction of the state and federal courts located in the Commonwealth of Massachusetts. The United Nations Convention on the International Sale of Goods will not apply to this Agreement.
Neither Purchaser’s failure to insist on performance of any of the terms herein, nor its failure to exercise any right or privilege, shall be deemed a waiver of any terms, conditions, privileges or breaches by Seller under this Agreement; nor shall any waiver by Purchaser of any Seller breach of this Agreement be deemed a waiver of any other or subsequent Seller breach, whether of the same or similar type.
17. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties regarding this Agreement and may not be modified except by a writing provided by Purchaser which Seller shall have accepted either by signing the writing or performing according to its direction. In the case of an express conflict between these Terms and the terms of an Order provided or agreed to in writing by the Purchaser, the terms of such Order will prevail.
18. FORCE MAJEURE
In the event of any act of God, war, labor dispute, boycott, act of terrorism, riot, governmental act, strikes, fire, flood, accident or other casualty, or any other cause or condition beyond Purchaser’s reasonable control which interferes with Purchaser’s use of the Goods or Services, Purchaser may, at its option, either cancel entirely or reschedule delivery of such portion of the Goods or Services not yet received at Purchaser’s plant or office and covered by this Agreement as Purchaser is rendered unable to use because of such causes.
19. CONSUMER PROTECTION
Seller must fully disclose to Purchaser the presence of any allergen ingredients recognized by applicable jurisdictions. Whenever Seller becomes aware that any of the Goods covered by the Order are or may become harmful to persons or property, or that the Goods have become infested, adulterated, or contaminated, or that the design or construction of the Goods is defective in any manner which is or may be in violation of laws or regulations or may become harmful to persons or property whether such Goods are used in the same mode as when delivered or whether the Goods are used in the manufacture of, or become part of, goods sold by Purchaser to third parties, Seller shall immediately give notice to Purchaser thereof, including all relevant information with respect thereto. Seller shall maintain appropriate quality control procedures and recording methods for the Goods to enable tracking and recall of the Goods where necessary.