this purchase order is an offer by Quest Nutrition, LLC (the "Buyer") for the purchase of the goods specified on the face of the purchase order (the "Goods") from the party to whom the purchase order is addressed (the "Seller") in accordance with and subject to these terms and conditions (the "Terms"; together with any terms and conditions on the face of the purchase order, the "Order"). The Order, together with any documents incorporated herein or therein by reference, constitutes the sole and entire agreement of the parties with respect to the Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Order. The Order expressly limits Seller‚Äôs acceptance to the terms of the Order. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Seller‚Äôs general terms and conditions of sale or any other document issued by Seller in connection with this Order.
These Terms apply to any repaired or replacement Goods provided by Seller hereunder.
Buyer is not obligated to any minimum purchase or future purchase obligations under this Order.
This Order is not binding on Buyer until Seller accepts the Order in writing. If Seller does not accept the Order in writing within 10 days of Seller‚Äôs receipt of the Order, this Order will lapse. Buyer may withdraw the Order at any time before it is accepted by Seller.
Seller shall deliver the Goods in the quantities and on the date(s) specified in the Order, or as otherwise agreed in writing by the parties (the "Delivery Date"). Timely delivery of the Goods is of the essence. If Seller fails to deliver the Goods in full on the Delivery Date, Buyer may terminate the Order immediately by providing written notice to Seller and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses attributable to Seller‚Äôs failure to deliver the Goods on the Delivery Date. [Buyer has the right to return any Goods delivered prior to the Delivery Date at Seller's expense and Seller shall redeliver such Goods on the Delivery Date.]
Other than as may be set forth in a separate agreement between Buyer and Seller, if Seller delivers a quantity of Goods that varies by more than 10% from the quantity ordered, Buyer may reject all or any Goods, including without limitation all or any excess Goods. Any such rejected Goods shall be returned to Seller at Seller‚Äôs risk and expense. If Buyer does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price for the Goods shall be adjusted on a pro-rata basis.
All Goods shall be delivered to the address specified in the Order (the "Delivery Location") during normal business hours or as otherwise instructed by Buyer.
Delivery shall be made as specified in the Order. If no shipping terms are specified, delivery shall be made DAP Delivery Location, Incoterms¬Æ (2010). Seller shall give written notice of shipment to Buyer when the Goods are delivered to a carrier for transportation. Seller shall provide Buyer all shipping documents, including the commercial invoice, packing list, bill of lading, air waybills and any other documents necessary to release the Goods to Buyer within three business day[s] after Seller delivers the Goods to the transportation carrier. The Order number must appear on all shipping documents, shipping labels, bills of lading, air waybills, invoices, correspondence, and any other documents pertaining to the Order.
Title and Risk of Loss
Title passes to Buyer upon Acceptance of the Goods. Seller bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Location.
All goods shall be packed for shipment according to Buyer‚Äôs instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Seller must provide Buyer prior written notice if it requires Buyer to return any packaging material. Any return of such packaging material shall be at Seller‚Äôs expense.
Quality Assurance and Traceability
Each Seller shall, at its expense, ensure full traceability, and keep appropriate records, of the Goods and all ingredients and components used in the Goods up until title to the Goods passes to Buyer.
Amendment and Modification
No change to an Order is binding upon Buyer unless it is in writing, specifically states that it amends the specific Order and is signed by an authorized representative of Buyer.
Inspection and Rejection of Nonconforming Goods
Buyer has the right to inspect the Goods within 10 days of the Delivery Date (‚ÄúAcceptance‚Äù). Buyer, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Seller, to:
- rescind the Order in its entirety;
- accept the Goods at a reasonably reduced price; or
- rescind the Order in its entirety;
- reject the Goods and require replacement of the rejected Goods. If Buyer requires replacement of the Goods, Seller shall, at its expense, within a commercially reasonable period replace the nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective Goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate this Order for cause pursuant to Section 21. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Seller‚Äôs obligations under the Order, and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions.
The price of the Goods is the price stated in the Order (the ‚ÄúPrice‚Äù). If no price is included in the Order, the Price shall be the price set out in Seller‚Äôs published price list in force as of the date of the Order, or such price as may have been agreed upon previously between Buyer and Seller. Unless otherwise specified in the Order, the Price includes all packaging, transportation costs to the Delivery Location, insurance, customs duties, and fees and applicable taxes, including, but not limited to, all sales, use, or excise taxes. No increase in the Price is effective, whether due to increased material, labor, or transportation costs or otherwise, without the prior written consent of Buyer.
Most Favored Customer
Seller represents and warrants that the price for the Goods is the lowest price charged by Seller to any of its external buyers for similar volumes of similar Goods. If Seller charges any other buyer a lower price, Seller hereby agrees to apply that price to all Goods under this Order. If Seller fails to meet the lower price, Buyer, at its option, may terminate this Order without liability pursuant to Section 21.
Seller shall issue an invoice to Buyer on or any time after the completion of delivery of the Goods and only in accordance with these Terms. Buyer shall pay all properly invoiced amounts due to Seller within 45 days after Buyer‚Äôs receipt of such invoice, except for any amounts disputed by Buyer in good faith. All payments hereunder shall be in U.S. dollars and made by wire, check or ACH as determined by Buyer in its discretion. In the event of a payment dispute, Buyer shall deliver a written statement to Seller no later than the date payment is due on the disputed invoice, listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not so disputed are deemed accepted and shall be paid, notwithstanding disputes on other items, within the period set forth in this Section 14. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under the Order notwithstanding any such dispute.
Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller.
Seller represents and warrants to Buyer that for a period of [six] months from the Delivery Date, all Goods will:
- be free from any defects in workmanship, material, and design;
- conform to the quantity, quality, specifications, descriptions, drawings, designs, samples, and other requirements in the Order or as specified by Buyer;
- be fit for their intended purpose and operate as intended;
- be merchantable;
- be free and clear of all liens, security interests, or other encumbrances;
- ensure that the storage, manufacture, packaging, labeling, supply and delivery of Goods comply fully with any and all applicable laws, regulations, rules orders (including without limitation those relating to public health and welfare including, but not limited to, applicable requirements of the Federal Food, Drug and Cosmetic Act and Current Good Manufacturing Practices in Manufacturing, Packaging or Holding Human Food, 21 C.F.R. ¬ß 110 et seq.); and
- for any Good consisting of food or a food ingredient, be fit for human consumption. These warranties survive any delivery, inspection, acceptance, or payment of or for the Goods by Buyer. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer‚Äôs discovery of the noncompliance of the Goods with the foregoing warranties. If Buyer gives Seller notice of noncompliance with this Section, Seller shall, at its own cost and expense, promptly replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Buyer.
Seller shall defend, indemnify, and hold harmless Buyer and Buyer‚Äôs subsidiaries, affiliates, successors or assigns, and their respective directors, managers, officers, shareholders, members, partners, agents, attorneys, accountants, and employees and Buyer‚Äôs customers (individually, an "Indemnitee," and collectively, "Indemnitees") against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, "Losses") arising out of or occurring in connection with the Goods purchased from Seller or Seller‚Äôs negligence, willful misconduct, or breach of these Terms. Seller shall not enter into any settlement without Buyer‚Äôs or Indemnitee‚Äôs prior written consent.
Intellectual Property Indemnification
Seller shall, at its expense, defend, indemnify, and hold harmless Buyer and any Indemnitee against any and all Losses arising out of or in connection with any claim that Buyer‚Äôs or Indemnitee‚Äôs use or possession of the Goods infringes or misappropriates the patent, copyright, trademark, trade secret, or other intellectual property or proprietary right of any third party. In no event shall Seller enter into any settlement without Buyer‚Äôs or Indemnitee‚Äôs prior written consent.
Seller agrees to maintain during the term of the Order a Commercial General Liability insurance policy (which may include commercial umbrella policy), including but not limited to bodily injury, property damage, contractual liability, advertising, personal injury, products liability and completed operations coverage, in minimum amounts of $5,000,000 per occurrence, $5,000,000 in the aggregate; Product Recall, including Third Party Liability, insurance in the amount of at least $10,000,000 per occurrence and $10,000,000 in the aggregate per policy year and that covers both voluntary and government recalls, including without limitation, no exclusions of microbes, pathogens or any contaminants, except genetically modified products, hormone-treated products, irradiated products, transmissible spongiform encephalopathies and carcinogens; and Workers‚Äô Compensation insurance in the amount of at least $1,000,000 each accident, $1,000,000 each employee and $1,000,000 in the aggregate per policy limit year. Each of the Commercial General Liability, Product Recall and the Workers‚Äô Compensation insurance (collectively, the ‚ÄúSeller Required Insurance Policies‚Äù) will provide worldwide coverage. Seller shall name, or have named, Buyer as an additionally insured party under the Commercial General Liability policy, including primary and non-contributory coverage obligations. The insurance coverages provided shall not be endorsed in such a way to prohibit coverage for liabilities that would arise during the term of this Order, or that restrict work described in the scope of this Order. The insurance shall be placed with an insurer having a Best‚Äôs rating (or the equivalent of Best‚Äôs) of not lower than A- VIII. Seller shall provide a certificate of insurance evidencing such coverage. If any of the Seller Required Insurance Policies is or are canceled prior to expiration, Seller agrees to use commercially reasonable efforts to promptly replace the insurance without lapse of coverage. Seller will make available, upon request, copies of the Seller Required Insurance Policies, including all attached endorsements with the exception of premium amounts, for review by Buyer. Seller also agrees to provide annual update certificates for each of the Seller Required Insurance Policies as appropriate. Buyer has no duty to confirm the existence of such insurance or to monitor such certificates. The Commercial General Liability and Workers‚Äô Compensation insurance policies will include a waiver of subrogation in favor of Buyer.
If there is a recall of any of the Goods covered by this Order or any product incorporating the Goods due to fault or failure of the Goods ("Recalled Goods"), Seller shall provide reasonable assistance to Buyer in developing a recall strategy and shall cooperate with Buyer and any applicable governmental agency, entity or authority ("Governmental Body") in monitoring the recall operation and in preparing such reports as may be required. Seller shall not voluntarily initiate the recall of any Buyer product incorporating the Recalled Goods without the prior written consent of Buyer, which shall not be unreasonably withheld. Seller shall immediately notify and provide copies to Buyer of any communications, whether relating to recalls or otherwise, with any Governmental Body relating to the Goods. Seller, at its own cost, shall rework or destroy all Recalled Goods that are defective on delivery to Buyer in compliance with all applicable laws, rules or regulations, and Buyer‚Äôs reasonable instructions.
Compliance with Law
Seller is in compliance with and shall comply with all applicable laws, regulations, and ordinances. Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under the Order. Seller shall comply with all export and import laws of all countries involved in the sale of Goods under this Order. Seller assumes all responsibility for shipments of Goods requiring any government import clearance. Buyer may terminate this Order if any government authority imposes antidumping duties, countervailing duties, or any retaliatory duties on the Goods. Without limitation of the foregoing, Seller represents and warrants that it has provided no item of value to any of Buyer‚Äôs employees or agents for the purpose of procuring the Order.
Buyer may terminate this Order, in whole or in part, at any time with or without cause for undelivered Goods on 30 days‚Äô prior written notice to Seller. In addition to any remedies that may be provided under these Terms, Buyer may terminate this Order with immediate effect upon written notice to the Seller, either before or after the acceptance of the Goods, if Seller has not performed or complied with any of these Terms, in whole or in part. If the Seller 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, then the Buyer may terminate this Order upon written notice to Seller. If Buyer terminates the Order for any reason, Seller‚Äôs sole and exclusive remedy is payment for the Goods received and accepted by Buyer prior to the termination.
Limitation of Liability
Each party‚Äôs maximum liability to the other party shall not exceed the amounts paid by Buyer to Seller over the last twelve months. Notwithstanding the preceding sentence, nothing in the Order shall exclude or limit
- Seller‚Äôs liability under Sections 16, 17, 18 and 24 hereof, or
- Seller‚Äôs liability for fraud, personal injury, or death caused by its negligence or willful misconduct.
No waiver by any party of any of the provisions of the Order shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Order, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Order shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
All non-public, confidential, or proprietary information of the Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, supplier lists, manufacturer lists, pricing, discounts, or rebates, disclosed by Buyer to Seller, 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 ‚Äúconfidential,‚Äù in connection with the Order is confidential, solely for the use of performing the Order, and may not be used for any other purpose, or disclosed or copied unless authorized by Buyer in writing. Upon Buyer‚Äôs request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief without bond for any violation of this Section 24. This Section 24 shall not apply to information that is:
- in the public domain;
- known to the Seller at the time of disclosure;
- rightfully obtained by the Seller on a non-confidential basis from a third party; or
- independently developed by Seller without the use of any of Buyer‚Äôs confidential information.
Neither party shall be liable to the other for any delay or failure in performing its obligations under the Order to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party‚Äôs fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable ("Force Majeure Event"). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions or shutdowns, floods, fire, earthquakes, explosion, epidemic, war, invasion, hostilities, terrorist acts, riots, or embargoes. Seller‚Äôs economic hardship or changes in market conditions are not considered Force Majeure Events. Seller shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under the Order. If a Force Majeure Event prevents Seller from carrying out its obligations under the Order for a continuous period of more than five (5) business days, Buyer may terminate this Order immediately by giving written notice to Seller.
Seller shall not assign, transfer, delegate, or subcontract any of its rights or obligations under the Order without the prior written consent of Buyer, which may be withheld in Buyer‚Äôs sole discretion. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder.
Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in the Order 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. No relationship of exclusivity shall be construed from this Order.
No Third-Party Beneficiaries
This Order is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
This Order and all related documents including any exhibits attached hereto, and all matters arising out of or relating to this Order, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of California without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of California.
Submission to Jurisdiction
Each party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other party in any way arising from or relating to this Order, including all exhibits, schedules, attachments, and appendices attached to this Order, and all contemplated transactions, including, but not limited to, contract, equity, tort, fraud, and statutory claims, in any forum other than the U.S. District Court for the Central District of California or, if such court does not have subject matter jurisdiction, the courts of the State of California sitting in Los Angeles County, and any appellate court from any thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in U.S. District Court for the Central District of California or, if such court does not have subject matter jurisdiction, the courts of the State of California sitting in Los Angeles County. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
The rights and remedies under this Order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
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 this Order 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), certified or registered mail (in each case, return receipt requested, postage prepaid), or email (provided that an additional method is also used). Except as otherwise provided in this Order, a Notice is effective only
- upon receipt by the receiving party, and
- if the party giving the Notice has complied with the requirements of this Section.
If any term or provision of this Order is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction
Provisions of this Order which by their nature should survive beyond the expiration or earlier termination of this Order will remain in force after such expiration or earlier including, but not limited to, the following provisions: Setoff, Warranties, General Indemnification, Intellectual Property Indemnification, Insurance, Compliance with Law, Confidential Information, Governing Law, Submission to Jurisdiction/Arbitration and Survival. With respect to confidential information that constitutes a trade secret under applicable law, the rights and obligations set forth in Section 24 hereof shall survive the expiration or earlier termination of this Order until, if ever, such confidential information loses its trade secret protection other than due to an act or omission of Seller.