Terms and Conditions for Sales—Colony Gums, Inc.
TERMS.
The sale of the product or services described in the contract, of which these terms and conditions are a part (or are on the face hereof) ("Product"), by Colony Gums Inc. or its subsidiaries ("Seller"), to the buyer identified in the attached contract or invoice ("Buyer"), is governed by the following terms and conditions ("Agreement"). Seller expressly rejects any additional or different terms or conditions proposed by Buyer. Buyer's acceptance of any goods from Seller shall conclusively be deemed an assent to all of Seller's terms in connection with the sale of the Product, and any order, purchase order, or other document of Buyer shall be disregarded. No oral promises or conditions not expressly set forth in this Agreement shall be binding upon Seller.
PRICE AND DELIVERY.
Unless otherwise agreed to in writing by the parties, Seller's prices at the date of shipment shall prevail over any price specified in Buyer's order and all prices are Ex-Works (Inco terms 2010) Seller's manufacturing or warehouse facility. Buyer shall inspect all shipments of goods at Seller's facility or warehouse and shall immediately notify Seller of any shortages, overages, or other failure to conform to this Agreement that is discoverable. Any nonconformity (including shortages or overages) not reported to Seller as and when required in this paragraph will be deemed waived and accepted by Buyer. Any price increase shall be effective based on sole discretion of the Seller. (30) Days prior written notice, e-mail confirmation or verbal exchange may not be provided to Buyer. Buyer is responsible to contact Seller to received current pricing and availability of goods before placing orders. Unless otherwise agreed to by Seller, title to, and risk of loss of, any shipment hereunder will pass to Buyer at Seller's warehouse facility or manufacturing facility. If Buyer fails to accept shipment of goods at Seller's facility, the goods shall be held at Buyer's sole risk of loss in all respects. Nevertheless, Buyer agrees that Seller may act as Buyer's agent and store, insure, protect and/or resell same for Buyer's account at Buyer's expense.
ORDER & DELIVERY SCHEDULE.
An order for Product constitutes an offer by Buyer to purchase the Product and is subject to acceptance by Seller. Once accepted by Seller, no order or part thereof may be varied or cancelled without Seller's prior written consent. Each order shall set out details of Buyer's order including the Product ordered and the date on which delivery is requested. Buyer shall not request delivery of Product within a period (starting on the date of Buyer's order) shorter than the minimum order lead time specified in the contract, the Order Acknowledgement, or Pricing Letter as applicable (collectively referred to herein as the "Controlling Document"). In no event will Seller be required to deliver Product after Buyer's written request for delivery in less than any minimum order lead time. Seller may modify the minimum order lead time by notice to the Buyer from time to time. Seller and Buyer will communicate on a regular basis regarding the timing and quantity of deliveries. Seller shall supply the Product to Buyer in accordance with orders accepted by Seller from time to time. Unless otherwise specified in Controlling Document, delivery shall be Ex-Works Seller's place of business set forth in Controlling Document.
PAYMENT.
Unless otherwise stated in writing by the Seller, the price for the Product is payable only in U.S. currency, and payment is due to Seller within thirty (30) days of the date of invoice. Buyer agrees to pay a penalty on any past due invoice at the rate of the lesser of 1 ½% per month or the highest rate allowed by law. Buyer grants to Seller a lien and security interest in the Product to secure payment of the purchase price, and agrees to execute any additional documents (including financing statements) deemed necessary or convenient by Seller to perfect Seller's security interest in the goods. Seller reserves the right, among other remedies, either to terminate this contract or to suspend further deliveries under it in the event Buyer fails to pay for any one shipment or invoice where the same becomes due. In the event Seller exercises its right to terminate this contract pursuant to this paragraph, Buyer's obligations under the paragraph shall survive. Except as otherwise provided herein, no order shall be cancelled except with the written consent of Seller. Seller may unilaterally cancel any order if it becomes aware of adverse credit information regarding Buyer.
TERM, TERMINATION & DEFAULT.
Seller may terminate this Agreement, or any order under this Agreement, without cause upon 30 days written notice to Buyer. In the event that either party fails to perform any of its obligations under this Agreement and such failure continues for a period of thirty (30) days after written notice of such failure, then at the option of the notifying party, it may (i) terminate this Agreement without liability to the other party, except for any liability then existing; or (ii) suspend its purchase or sale of Product under the Agreement, effective in either case upon giving written notice to that effect. Seller's termination or suspension under this Section shall not relieve the Buyer of its obligation to pay for any minimum quantity of material under this Agreement. Should either party file a petition in bankruptcy, including reorganization or arrangement, unless the same is dismissed within sixty (60) days, or a trustee or receiver is appointed to take possession of substantially all of that party's assets, unless the trustee is removed, within sixty (60) days, the other party may at its option and by written notice, terminate this Agreement without liability to the other party, except for any liability then existing. If Buyer becomes insolvent, defaults under any agreement with, or terms of, Seller, Seller at its option may: (i) defer delivery of all goods until any default is cured; or (ii) may treat any insolvency or default as a repudiation by Buyer of the entire order, recall the goods (if shipped) and hold Buyer liable for any damages, including, but not limited to, special, consequential and incidental damages.
WARRANTIES BY SELLER.
Seller hereby warrants to Buyer with respect to the Product that it has good and marketable title to the Product shipped to Buyer hereunder and that the Product delivered will conform to Seller's published specifications for the Product. THE SELLER MAKES NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AND WHETHER IN CONTRACT, TORT OR OTHERWISE. SALE OF THE PRODUCT IS MADE ON THE UNDERSTANDING THAT THERE ARE NO EXPRESS OR IMPLIED WARRANTIES THAT THE PRODUCT DELIVERED HEREUNDER WILL BE MERCHANTABLE OR FIT FOR ANY PARTICULAR PURPOSE.
WARRANTY BY BUYER.
If Product is a chemical intermediate, Buyer hereby warrants to Seller that Buyer shall use Product as a chemical intermediate and that the Product will be further processed before resale by Buyer.
LIMITATION ON CLAIMS.
All claims that any shipment hereunder does not conform to the above warranties will be waived by Buyer with respect to such shipment unless written notice is given to Seller by Buyer accompanied by a sample of the alleged non-conforming Product within thirty (30) days after Buyer's receipt of the shipment.
LIMITED REMEDY.
The exclusive remedy of Buyer arising out of breach of the above warranties will be replacement or credit, at Seller's option.
LIMITATION OF LIABILITY.
SELLER WILL NOT IN ANY EVENT BE LIABLE TO BUYER, TO BUYER'S AFFILIATES, OR TO BUYER'S FRANCHISEES, CO-PACKERS, BOTTLERS OR DISTRIBUTORS (IF ANY) FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, MANUFACTURING COSTS, DAMAGE TO GOODWILL, OR LOSS OF BUSINESS), OR PRODUCT RECALL COSTS WHETHER BASED ON THE USE OF PRODUCT OR ANY GOODS INCORPORATING PRODUCT (WHETHER OR NOT THE PRODUCT INVOLVED CONFORMS TO SELLER'S SPECIFICATIONS AND WARRANTIES SET FORTH HEREIN), OR ON SELLER'S LATE DELIVERY OR NON-DELIVERY OF PRODUCT. THE SELLER'S TOTAL LIABILITY FOR DAMAGES RELATING TO ANY CLAIM ARISING HEREUNDER AND ANY OTHER DAMAGES IN AGGREGATE SHALL BE LIMITED TOTHE COST OF THE PRODUCT(S) THAT IS AT ISSUE OR OTHERWISE CAUSED THE DAMAGES.
INDEMNITY AND NOTICE OF CLAIM.
Buyer shall indemnify, defend and hold harmless Seller, its affiliates and their respective officers, directors, employees, agents and representatives from and against liability, damage, loss, cost or expense (including reasonable attorney's fees and costs) of any kind or nature whatsoever arising out of any third party claims or suits resulting from (a) product liability claims relating to the manufacture, promotion or sale of Buyer's goods incorporating Products; and (b) claims of contributory infringement or inducement of infringement against Seller based on infringement by Buyer of any third party intellectual property right(s) covering Buyer's goods incorporating Product, including all materials or intermediates produced or used in the in manufacture (excluding Product) or method(s) for its manufacture or use. Promptly after receiving notice of any claim or lawsuit to which this paragraph applies, the Seller will notify Buyer in writing, and Buyer will immediately assume responsibility at its sole expense for the handling and defense of such claim or suit on behalf of Seller. The parties will fully cooperate with each other in such defense.
TAXES.
Buyer will pay all sales, revenue, excise or other federal, state, local or foreign taxes (including value added and consumption taxes), shipping charges and shipping insurance costs, and all import or export duties payable with respect to any shipment hereunder, excluding Ad Valorem taxes of Seller and taxes based on Seller's net income.
GOVERNING LAW.
These Seller's Terms shall be governed by, and interpreted in accordance with the laws of the State of North Carolina, U.S., except any such law mandating the application of the law(s) of a different jurisdiction.
LAW VIOLATION.
If any provision hereof is, or becomes, a violation of any law, rule, order or regulation issued there under, Seller shall have the right, upon notice to Buyer, to cancel such provision without effect upon the other provisions, to cancel further deliveries in their entirety, or to terminate this contract.
TRADEMARK USAGE.
Buyer agrees that, if Seller grants Buyer any right to use any Seller trademark, its use of the Seller trademarks and the advertising and packaging of Buyer's goods will be in accordance with Seller's policies and procedures with respect to the use of any of Seller's trademarks as provided to Buyer from time to time. Buyer represents and warrants that it will not grant rights of any kind to the Seller trademarks to any third party.
NO RIGHT OF SET-OFF.
Buyer waives any right it now has or later acquires to set off any amount due from Seller or its affiliates against amounts owed by Buyer hereunder.
ALLOCATION.
If Seller determines that its ability to supply the total demand for the Products, or obtain any or a sufficient quantity of any material used directly or indirectly in the manufacture of the Products, is hindered, limited or made impracticable, Seller may allocate its available supply of the Products or such material (without obligation to acquire other supplies or any such products or material) among itself and its customers on such basis as Seller determines to be equitable and without liability for any failure of performance which may result there from.
ASSIGNMENT.
Buyer shall not (by operation of law or otherwise) assign its rights or delegate its performance hereunder without the prior written consent of Seller, and any attempted assignment or delegation without such consent shall be void. Seller shall have the right, at its sole discretion, to assign (by operation of law or otherwise) its rights or delegate its performance hereunder at any time.
FORCE MAJEURE.
Seller shall be free from any liability for delay or failure in delivery arising from strikes, lockouts, labor troubles of any kind, accidents, perils of the sea, floods, fire, earthquake, civil commotion, war or consequences of war, government acts, restrictions or requisitions, failure of manufacturers or suppliers to deliver, bankruptcy or insolvency of manufacturers or suppliers, breakdown at Seller's facility, suspension of shipping facilities, inability to obtain key raw materials, a default of any carrier or any other contingency of whatsoever nature beyond Seller's control including disturbances existing at the time this contract was made. In such a situation, if shipment or delivery is not made during the period contracted for, Buyer shall accept delivery under this contract when shipment is made; provided, however, Buyer, shall not be obligated to accept delivery if shipment is not made within a reasonable time after the cessation of the aforementioned impediments or causes.
BINDING EFFECT.
If any clause of these Seller's Terms is determined by any tribunal to be unenforceable, the clause shall be deleted, and the balance hereof shall be binding upon the parties.