Seller Terms and Conditions of Sale
Except if otherwise agreed in a written instrument executed by both Prolamina Corporation or one of its subsidiaries (“Seller”) and the purchaser of goods or services covered hereby (“Buyer”), these terms and conditions (collectively, “Terms”) together with the terms presented on the face of any purchase order delivered by Buyer to, and accepted by, Seller with Seller modifications as herein provided (such purchase order, with any such modifications, the “Order”), covering the purchase from Seller by Buyer of ingredients, packaging, materials, parts, 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 Buyer and Seller concerning the sale and purchase of those Goods and Services that are the subject of the Order. Buyer’s delivery to Seller of an Order, or, if Seller delivers to Buyer any modification to an Order, Buyer’s failure to object in writing to such modification within one business day of receipt thereof from Seller, shall be deemed Buyer’s acceptance of both these Terms and the Order, as so modified, if applicable. SELLER’S AGREEMENT IS LIMITED TO THE EXPRESS TERMS OF THE AGREEMENT (these Terms and any Order accepted by Seller, as modified) AND DOES NOT INCLUDE ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY BUYER OR ANY ATTEMPT BY BUYER TO VARY THE TERMS OF THE AGREEMENT.
2. SHIPMENT AND PAYMENT TERMS
Unless otherwise agreed by Seller in writing, all Goods shall be shipped Ex Works one of Seller’s manufacturing or warehouse facilities in the continental United States and Canada (Incoterms 2010). All payments for Goods shall be due and payable net thirty (30) days after delivery to the carrier for shipment. All payments for Services shall be due within thirty (30) days after the last day of the calendar month in which Services are provided. Any partial payments for Goods or Services made to Seller are non-refundable. Payment will be by certified check, bank money order company check, or wire transfer, at Seller’s discretion.
3. LIMITED WARRANTY
Seller warrants that Services provided to Buyer shall be provided in a professional and workmanlike manner. Seller warrants that the Goods delivered hereunder will meet Seller’s standard specifications for the Goods or such other specifications as may have been expressly agreed to by Seller and Buyer in writing. SELLER MAKES NO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER EXPRESS OR IMPLIED WARRANTY, EXCEPT AS PROVIDED IN PARAGRAPHS 4 AND 5 BELOW. If Buyer requires or if Buyer approves specifications for Goods that require Seller to incorporate materials (“Components”) provided by third-parties, then, Seller’s sole responsibility with respect to any Component shall be to assign and transfer to Buyer any warranty of the Component supplier or manufacturer received by Seller; and SELLER MAKES NO WARRANTIES AND ASSUMES NO LIABILITY FOR ANY COMPONENT OR FOR THE ADEQUACY OR COMPLETENESS OF ANY COMPONENT WARRANTY ASSIGNED OR TRANSFERRED TO BUYER BY SELLER. Buyer assumes all risk and liability resulting from use of the Goods delivered hereunder, whether used singly or in combination with other products.
Seller warrants that the use or sale of the Goods delivered hereunder and any tangible deliverable provided as a result of any Service will not infringe the claims of any United States patent covering the Goods themselves or such deliverable; but Seller does not warrant against infringement by reason of any Component incorporated in any Goods, the use of any Goods or any such deliverable in combination with other products, or in the operation of any process.
Seller warrants that all Goods and Services delivered hereunder will be produced or provided in compliance with the requirements of the United States Fair Labor Standards Act of 1938, as amended.
6. CLAIMS LIMITATION
No claim of any kind, whether as to Services provided, Goods delivered, or for nondelivery of Goods, and whether or not based on negligence, shall be greater in amount than the purchase price of the Services or Goods in respect of which damages are claimed; and failure to give notice of claim within ninety (90) days from date of delivery or provision, or the date fixed for delivery (in the case of nondelivery), shall constitute a waiver by Buyer of all claims in respect of such Goods or Services. No charge or expense incident to any claims will be allowed unless approved by an authorized representative of Seller. Goods shall not be returned to Seller without Seller’s prior permission, and then only in the manner prescribed by Seller. The remedy hereby provided shall be the exclusive and sole remedy of Buyer. In no event shall either party be liable for special, indirect or consequential damages, whether or not caused by or resulting from the negligence of such party.
7. FORCE MAJEURE
No liability shall result from delay in performance or non-performance, directly or indirectly caused by circumstances beyond the control of the party affected, including, but not limited to, Act of God, fire, explosion, flood, war, act of or authorized by any government, accident, labor trouble or shortage, inability to obtain material, Component, equipment or transportation (each such event, a “Force Majeure”). Quantities of Goods so affected may be eliminated from the Agreement; but, otherwise, the Agreement shall remain unaffected by such Force Majeure. In response to a Force Majeure event or otherwise, Seller shall have no obligation to purchase supplies of the Goods specified herein or to procure Services from a third party to enable Seller to perform this Agreement.
8. BUYER’S OBLIGATION TO PURCHASE GOODS
If this Agreement covers Goods that must necessarily be manufactured especially for Buyer and is suspended or terminated for any reason, Buyer will take delivery of and make payment for such Goods as have been completed and such as are in process on the date notice of suspension or termination is received by Seller; provided, that if Buyer for any reason cannot accept delivery of such Goods, it will make payment therefor as though delivery had been made and Seller will store such Goods for Buyer’s account and at Buyer’s expense for a period of up to 6 months, after which period, Seller may dispose of, re-use, or resell, such Goods in Seller’s discretion, ; and Buyer shall remain liable therefor, except to the extent of net proceeds received by Seller from the re-use or resale thereof.
9. SELLER’S RIGHT TO ALLOCATE SUPPLY OF GOODS
If for any reason including but not limited to Force Majeure, Seller is unable to supply the total demand for Goods specified herein, Seller may distribute its available supply among any or all purchasers, as well as departments and divisions of Seller, on such basis as it may deem fair and practical, without liability for any failure of performance which may result therefrom.
10. RESPONSE TO GOVERNMENT ACTIONS
If any government action should place or continue limitations on the price provided for in this Agreement such that it would be illegal or against public or government policy for Seller to charge, assess, or receive the full amount of, or to increase, such prices as determined by this Agreement, then Seller shall have the option (a) to continue to perform under this Agreement subject to such adjustments in prices that Seller may deem necessary to comply with such government action, (b) to revise this Agreement, subject to Buyer’s approval, in order to most nearly accomplish the original intent of this Agreement, or (c) to terminate performance of the affected portions of the Agreement without liability for any damages.
11. TECHNICAL SUPPORT
At Buyer’s request, Seller may furnish such technical assistance and information as Seller has available with respect to the use or receipt of the Goods and Services covered by this Agreement. Unless otherwise agreed in writing, all such technical assistance and information will be provided gratis, and Buyer assumes sole responsibility for results obtained in reliance thereon.
12. SELLER LABELING AND LITERATURE
Buyer acknowledges that it has received and is familiar with Seller’s labeling and literature concerning the Goods and Services sold hereunder and will forward such information to its employees who handle, process, re-use, or sell such Goods or Services and any Buyer customers that acquire (through Buyer) such Goods or Services or products produced and sold by Buyer that incorporate such Goods or Services, if any.
The price agreed upon for the Goods or Services is exclusive of taxes, duties and other charges that may be levied or due thereon, all of which shall be the responsibility of, and be borne by the Buyer, unless otherwise agreed to in writing by the parties. Buyer agrees to pay sales or use taxes or any other taxes, charges, duties or fees required to be paid by the Buyer or collected by Seller by reason of this sale, or to provide Seller with a valid tax exemption certificate. Any customs duty and taxes applicable will be for Buyer’s account. Buyer agrees to indemnify and hold Seller harmless from any liability and expense by reason of Buyer’s failure to pay any required taxes, duties, charges or fees.
14. EXPORT/IMPORT RESTRICTIONS
Any import/export license must be arranged for by the Buyer, provided, however, Buyer acknowledges and understands that the sale, resale, export, or reexport of Goods, whether new or used, purchased hereunder from Seller shall be subject to the Export Administration Regulations of the United States of America. Buyer agrees to ensure it is in compliance with such Export Administration Regulations.
Buyer shall indemnify, save harmless and defend Seller from any and all liability, loss and expense arising from or growing out of the removal, handling, use, disposition, possession, transportation or conveyance by Buyer or by any others of Goods or Services, except to the extent caused by the negligence of Seller.
16. BUYER’s RESPONSIBILITY
Buyer agrees that it is responsible for (a) determining and following the necessary health and safety precautions in all activities involving the Goods produced in accordance with their specifications and pursuant to the Seller’s manufacturing processes; and (b) ensuring that the Goods produced in accordance with their specifications and pursuant to the Seller’s manufacturing processes are suitable and safe for use as intended by Buyer, including in food, drug, medical device, or other applications.
17. SELLER’S RIGHT TO WITHHOLD
In the event Buyer fails to fulfill Seller’s terms of payment, or in case Seller shall have any doubt at any time as to Buyer’s financial responsibility, Seller may decline to make further deliveries of Goods or, as applicable, further provision of Services, except upon receipt of advance payment, cash, or satisfactory security, in Seller’s discretion.
This Agreement is not assignable or transferable by Buyer, in whole or in part, except with the prior written consent of Seller.
Buyer, and its employees, agents and representatives, shall consider as Seller’s “Confidential Information,’ all non-public information provided by Seller, all specifications or other documents provided by Seller in connection with this Agreement, and all other non-public information relating to this Agreement. Without Seller’s prior written consent, Buyer shall not disclose or use Confidential Information for any purpose other than performing this Agreement.
20. OWNERSHIP OF PROPERTY
Unless otherwise agreed in writing by Seller, all designs, concepts, drawings, specifications, devices, formulations, materials, dies, plates, film, molds, and any other property relied on by Seller in the performance of this Agreement shall be and remain the property of Seller.
21. TERMINATION FOR CAUSE
In addition to Seller’s other rights and without liability to Buyer, Seller may terminate this Agreement or any part hereof, for cause, in the event of any default by Buyer of the terms or conditions of this Agreement, including Buyer’s failure to make any payment to Seller, when due. Instances of termination for cause shall also include, but not be limited to, Buyer becoming insolvent or filing a voluntary petition in bankruptcy or suffering an involuntary petition in bankruptcy to be filed against it, or upon Buyer’s execution of an assignment for the benefit of creditors.
22. 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 Buyer and Seller irrevocably submits to the jurisdiction of the state and federal courts located in the Commonwealth of Massachusetts. The United Nations Convention on International Sale of Goods does not apply to this Agreement.
These Terms, along with any Order (as modified as provided herein), contain all of the terms and conditions with respect to the sale and purchase of the Goods and Services sold hereunder. These Terms supersede any of previous date and no modification thereof shall be binding on either party unless in writing and signed by both parties. Unless Buyer shall notify Seller in writing to the contrary as soon as practicable after receipt of this document by Buyer, the Buyer’s submission of an Order, Buyer’s acceptance of the Goods or Services provided by Seller, or Buyer’s payment therefor shall be equivalent to Buyer’s assent to this Agreement. Waiver by either party of any default by the other hereunder shall not be deemed a waiver by such party of any default by the other which may thereafter occur. In the case of an express conflict between these Terms and the terms of an Order agreed and acknowledged in writing by the Seller, the terms of such Order will prevail.