General Terms and Conditions
NEW MEND PHYSIO LTD
GENERAL TERMS AND CONDITIONS
FOR THE SALE OF PRODUCTS OR SERVICES
NOTICE: Sale of any Products or Services (as such terms are defined below) is expressly conditioned on Buyer’s assent to these Terms and Conditions (as such term is defined below). Any acceptance of Seller’s offer is expressly limited to acceptance of these Terms and Conditions and Seller expressly objects to any additional or different terms proposed by Buyer whether proposed before or after the date of the Contract (as defined below). No Buyer form or other communications from Buyer shall modify these Terms and Conditions, nor shall any course of performance, course of dealing, or usage of trade operate as a modification or waiver of these Terms and Conditions. Any order to purchase products or receive services from Seller shall constitute Buyer’s assent to these Terms and Conditions. Unless otherwise specified in Seller’s offer, such offer shall expire thirty (30) days from its date and may be modified or withdrawn by Seller before its receipt of Buyer’s conforming acceptance.
1. Definitions.
“Buyer” means the entity to which Seller is providing Products or Services under the Contract (as such term is defined below).
“Contract” means each of the following, as applicable, (i) the contract agreement signed by both parties and (ii) the purchase order(s) signed by Buyer and accepted by Seller in writing, for the sale of Products or Services, together with these Terms and Conditions, Seller’s final quotation, the agreed scope(s) of work, and Seller’s order acknowledgement. In the event of any conflict, the Terms and Conditions shall take precedence over other documents included in the Contract.
“Contract Price” means the agreed price stated in the Contract for the sale of Products and Services, including adjustments (if any) in accordance with the Contract.
“Products” means syrups, mixes, sauces, and flavor bursts, and other goods Seller has agreed to supply to Buyer under the Contract.
“Seller” means New MEND PHYSIO LTD, a Delaware limited liability company.
“Services” means the services Seller has agreed to perform for Buyer under the Contract.
“Terms and Conditions” means these “General Terms and Conditions for the Sale of Products or Services”, together with any modifications or additional provisions specifically stated in Seller’s final quotation or specifically agreed upon by Seller in writing.
2. Delivery and Shipping Terms.
(a) Seller shall deliver Products to Buyer FOB Shipping Point Columbus, OH and/or Delivered at Place. Buyer shall pay all delivery costs and charges or pay Seller’s standard shipping charges plus handling. Partial deliveries are permitted. Seller may deliver Products in advance of the delivery schedule. Delivery times are approximate and are dependent upon prompt receipt by Seller of all information necessary to proceed with the work without interruption. If Products delivered do not correspond in quantity, type or price to those itemized in the shipping invoice or documentation, Buyer shall so notify Seller within 24 hours of receipt. In the event that Buyer does not so notify Seller, the delivery shall be deemed accepted notwithstanding any nonconformity in quantity, type, or price.
(b) Title to Products shall pass to Buyer upon delivery in accordance with Section 2(a).
(c) Risk of loss shall pass to Buyer upon delivery pursuant to Section 2(a).
(d) If any Products to be delivered under the Contract cannot be shipped to or received by Buyer when ready due to any cause attributable to Buyer. If Seller places Products into storage, the following apply:
(i) title and risk of loss immediately pass to Buyer, if they have not already passed, and delivery shall be deemed to have occurred;
(ii) any amounts otherwise payable to Seller upon delivery or shipment shall be due;
(iii) a fee of two percent (2%) of the value of the Products will be charged to Buyer; and
(iv) when conditions permit and upon payment of all amounts due, Seller shall make Products and repaired equipment available to Buyer for delivery.
(e) Any liability of Seller for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual quantity delivered.
3. Cancellation of Purchase Order. Buyer may cancel its order only with the prior written consent of Seller, which Seller may withhold in its sole discretion. All cancelations will be subject to Buyer’s payment to Seller of reasonable and proper cancelation charges. No returns will be permitted.
4. Title and Risk of Loss. Title and risk of loss passes to Buyer pursuant to the terms of Section 2. As collateral security for the full payment of the purchase price of the Products, whether currently outstanding or outstanding in the future, 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 Products, 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 provision constitutes a purchase money security interest under the Delaware Uniform Commercial Code. Seller shall have the right to file any and all documents and take any action it deems necessary to fully establish protection of its security interest in the Products; however, the failure of Seller to file any such document shall not in any way act as a waiver of Seller’s right to such security interest.
5. Assembly/Installation Work. In the event Buyer desires for Seller to perform any assembly/installation work, said work will be performed pursuant to a separate agreement to be entered into in writing by both Buyer and Seller detailing the terms of said work.
6. Contract Price.
(a) Buyer shall purchase the Products and, if applicable, shall pay for the services provided, from Seller at the Contract Price. Prices are subject to change without prior notice and Seller shall thereafter notify Buyer of any price increases. In the event of a price increase, Buyer is not permitted to cancel any undelivered portion of any order.
(b) All Contract Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
(c) The Contract Price excludes shipping and handling charges, which are the obligation of Buyer and will be added to the invoice if prepaid by Seller.
7. Payment Terms.
(a) Terms of payment are net cash thirty (30) days following the date of invoice, or by letter of credit paid upon submittal of shipping documents, all payable in the currency specified in the invoice.
(b) Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees and court costs. In addition to all other remedies available under these Terms and Conditions or at law or in equity (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Products if Buyer fails to pay any amounts when due hereunder and such failure continues for thirty (30) days following written notice thereof.
(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
(d) If Buyer disputes any invoice or portion thereof, it shall notify Seller in writing within thirty (30) days of receipt of said invoice, detail the reason for the dispute, and pay all undisputed amounts. All charges not timely disputed in writing shall be deemed to be undisputed and shall be due and payable as set forth above.
8. Disclaimer of Warranty. Seller warrants that all products manufactured by Seller shall, at the time of sale, comply with applicable Seller specifications. All products not manufactured by Seller are sold only with the warranties provided by the manufacturer of products, if any. SELLER MAKES NO OTHER WARRANTY WITH RESPECT TO THE PRODUCTS, AND DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Seller personnel are not authorized to alter this disclaimer of warranty.
9. Limitation of Liability.
(a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE CONTRACT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCTS SOLD HEREUNDER OR, AS TO SERVICES, FOR THE AMOUNTS PAID TO SELLER FOR SERVICES PERFORMED HEREUNDER.
(c) This limitation of liability is a material basis for the parties’ bargain and reflects the bargained-for allocation of risks between Seller and Buyer, without which Seller would not have agreed to provide the Products or Services to Buyer at the price charged.
10. Indemnification. Subject to Section 9 hereof, each of Buyer and Seller (as an “Indemnifying Party”) shall defend, indemnify, and hold harmless the other party, together with its respective affiliates, officers, directors, members, managers, agents, employees, attorneys and contractors (collectively, the “Indemnified Parties”), and hold harmless the Indemnified Parties from and against any and all third party claims, demands, actions, liabilities, damages, judgments, costs, losses and expenses including reasonable costs and expenses of investigation and settlement and reasonable attorneys’ fees, which the Indemnified Parties may incur, suffer or be required to pay or become subject to, on account of personal injury or damage to the third party’s tangible property, to the extent arising out of or relating to (1) such Indemnified Party’s performance or non-performance of its respective obligations under the Contract; (2) any gross negligence or willful misconduct in connection with such Indemnified Party’s performance of the Contract; and/or (3) such Indemnified Party’s breach of any of its representations, warranties, covenants and agreements set forth in the Contract. In the event the injury or damage is caused by joint or concurrent negligence of Buyer and Seller, the loss or expense shall be borne by each party in proportion to its degree of negligence. For purposes of Seller’s indemnity obligation, no part of the Products is considered third party property.
11. Adequate Assurance. Seller reserves the right by written notice to cancel any order or require full or partial payment or adequate assurance of performance from Buyer without liability to Seller in the event of: (i) Buyer’s insolvency, (ii) Buyer’s filing of a voluntary petition in bankruptcy, (iii) the appointment of a receiver or trustee for Buyer, or (iv) the execution by Buyer of an assignment for the benefit of creditors. Seller reserves its right to suspend its performance until payment or adequate assurance of performance is received and also reserves its right to cancel Buyer’s credit at any time for any reason.
12. Intellectual Property Rights.
(a) Seller owns and will continue to own the exclusive intellectual property rights relating to Seller’s Products or Services (including without limitation, all patents and trademarks owned by Seller), each as now existing or as specified and disclosed to Buyer by Seller. Any intellectual property made or conceived by Seller in the context of providing Services under the Contract, either solely or jointly with Buyer, (i) are especially valuable trade secrets of Seller owned by Seller and (ii) confidentiality obligations of Buyer related to these trade secrets shall continue perpetually for so long as they remain trade secrets under applicable law.
(b) Seller is unable to guarantee that no patent rights, copyrights, trademarks, (user) rights, trade models or any other rights of third-parties are infringed by goods received from suppliers and/or buyers via Seller or third-parties via them, including but not limited to goods and any ingredients, formulas, or specifications relating to any Products.
(c) In the absence of written agreement to the contrary, Seller holds the copyrights and all rights of (industrial) property to the offers it has made and the designs, images, drawings (test) models, software, templates and other goods that it has issued.
13. Compliance with Laws.
(a) Seller shall take reasonable steps to ensure the Products are in conformity with applicable laws and regulations; however, Buyer acknowledges that Products may be used in various jurisdictions for various applications subject to disparate regulations and therefore that Seller cannot warrant compliance with all applicable laws and regulations. Seller disclaims any representation or warranty that the Products conform to federal, state or local laws, regulations, ordinances, codes or standards, except as expressly set forth by Seller in writing. Buyer shall comply with all applicable laws, regulations and ordinances. Seller may terminate the Contract if any governmental authority imposes antidumping or countervailing duties or any other penalties on Products.
(b) The products offered by Seller may be subject to various laws including U.S. and foreign export controls. Seller is committed to complying with all relevant export laws. If these items are of United States origin and are being exported from the United States, the following statement applies, “These commodities, technology or software were exported from the United States in accordance with the Export Administration Regulations. Diversion contrary to U.S. law is prohibited.” Buyer is responsible for applying for export licenses, if required, based on end user or country of ultimate destination. Seller’s obligations are conditioned upon Buyer’s compliance with all U.S. and other applicable trade control laws and regulations. Buyer shall not trans-ship, re-export, divert or direct Products other than in and to the ultimate country of destination declared by Buyer and specified as the country of ultimate destination on Seller’s invoice. Buyer agrees to indemnify and hold Seller harmless from any and all costs, liabilities, penalties, sanctions and fines related to non-compliance with applicable export laws and regulations.
(c) Buyer represents and warrants that it is not subject to any trade sanctions imposed by the U.S., EU and/or UN and that it is in compliance and shall comply with all applicable laws and regulations relating to trade restrictions and/or export controls (including trade sanctions imposed by the US, EU and/or UN) with respect to Products sold hereunder, and shall provide evidence of compliance with the foregoing as Seller may reasonably request from time to time.
(d) Buyer represents and warrants that it is in compliance and shall comply with all applicable anti-bribery and anti-corruption laws, including the U.S. Foreign Corrupt Practices Act, and has not, directly or indirectly, offered, paid, promised, or authorized the giving of money or anything of value to any government official for the purpose of influencing any act or decision of such government official. Buyer is not on, nor is Buyer associated with any organization that is on, any list of entities maintained by the United States government that identifies parties to which the sale of goods or services is restricted or prohibited.
14. Termination. In addition to any remedies that may be provided under these Terms and Conditions, Seller may terminate the Contract with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under the Contract and such failure continues for five (5) days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms and Conditions, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
15. Amendment and Modification. These Terms and Conditions may only be amended or modified in a writing which specifically states that it amends these Terms and Conditions and is signed by an authorized representative of each party.
16. Waiver. No waiver by Seller of any of the provisions of the Contract is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from the Contract operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
17. Confidential Information. Buyer acknowledges and agrees that all non-public, confidential or proprietary information of Seller, including but not limited to formulas, recipes, volume, procedures, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, observed by Buyer or disclosed or made available by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with the Contract is confidential, solely for the use of performing the Contract and may not be disclosed or copied unless authorized in advance by Seller in writing (collectively, the “Confidential Information”). Buyer acknowledges that sharing the Confidential Information will not create for or in Buyer any rights or interests in the Confidential Information, all of which are specifically reserved by Seller. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
18. Force Majeure. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached the Contract, for any failure or delay in fulfilling or performing any term of the Contract when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller or any of its suppliers or any of its fulfillment centers including, without limitation, acts of God, flood, fire, earthquake, hurricane, cyber attack, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic or pandemic (and any related government action impacting Seller’s or its vendor’s workforce), lockouts, strikes or other labor disputes (whether or not relating to Seller’s or its vendor’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, including without limitation, due to third party supply shortages or delays, materials or telecommunication breakdown, or power outage.
19. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under the Contract without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under the Contract. Seller shall be entitled to assign the Contract to any successor-in-interest to all or substantially all of its assets or equity, or to any entity that acquires any portion of the assets or equity of Seller, without prior written permission from Buyer.
20. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Contract shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
21. Governing Law. All matters arising out of or relating to the Contract are governed by and construed in accordance with the internal laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed by the parties with respect to the Contract and the transactions contemplated thereby.
22. Submission to Jurisdiction. For any proper purpose arising out of or relating to the Contract, each of the parties hereto accepts for itself and in connection with its properties, generally and unconditionally, the exclusive jurisdiction of the Federal and State courts sitting in Wilmington, Delaware and waives any defense of forum nonconveniens, and irrevocably agrees to be bound by any judgment rendered thereby in connection with the Contract.
23. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Contract or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in the Contract, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
24. Severability. If any term or provision of the Contract is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Contract or invalidate or render unenforceable such term or provision in any other jurisdiction.
25. Survival. Provisions of these Terms and Conditions which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms and Conditions including, but not limited to, the following provisions: Compliance with Laws, Confidential Information, Intellectual Property Rights, Governing Law, Indemnification, Submission to Jurisdiction, and Survival.
26. Complete Agreement. These Terms and Conditions, together with the other terms and agreements contained within the Contract, constitute the entire agreement between Buyer and Seller relating to the subject matter hereof, and supersede all prior and contemporaneous discussions, understandings, and agreements, whether written or oral, related to the subject matter hereof.