Terms and Conditions of Sale
Supplant, Inc. (“Supplant”), offers to sell/provide (each a “Sale”) goods (“Deliverables”) only on the terms and conditions herein, which, together with the Specifications, as defined below, constitute the entire agreement between Supplant and the customer/buyer (“Buyer”) unless Supplant specifically agrees to other terms and conditions in writing.
1. CONTRACT; TERMS EXCLUSIVE. Supplant’s offer to sell Deliverables shall be deemed accepted by Buyer’s purchase of Deliverables, Buyer’s submission of a request for proposal to purchase Deliverables, Buyer’s submission of a purchase offer to purchase Deliverables, or any other act, communication or instrument of Buyer in response to which Supplant sells Deliverables to Buyer (each a “Purchase Order”). If Buyer’s Purchase Order or other correspondence contains terms or conditions contrary to or in addition to these terms and conditions, acceptance of any Purchase Order by Supplant shall not be construed as assent to such contrary terms and conditions or constitute a waiver by Supplant of any of these terms and conditions, and Supplant expressly objects to any and all different or additional terms and conditions of Sale which Buyer may set forth on any Purchase Order, unless Supplant specifically agrees to them in writing. THIS OFFER IS EXPRESSLY LIMITED TO THESE TERMS AND CONDITIONS. IF THIS FORM IS DEEMED AN ACCEPTANCE OF A PRIOR OFFER BY BUYER, SUPPLANT’S ACCEPTANCE IS EXPRESSLY CONDITIONED ON BUYER’S ASSENT TO THESE TERMS AND CONDITIONS.
2. DELIVERABLES BEING PURCHASED. The specific nature of the Deliverables, the quantity ordered, date(s) of delivery, price and other specifications applicable to the Deliverables being purchased shall be as agreed upon by Supplant and Buyer and are collectively referred to herein as “Specifications”. Specifications shall not include any general terms and conditions of purchase, even if referred to as part of Buyer’s Specifications. Supplant shall have no obligation to ensure that any Deliverables purchased from Supplant meet any unique specifications and/or other requirements unless set forth in Buyer’s Purchase Order and expressly accepted by Supplant.
3. PRICE AND PAYMENT. The purchase price for the Deliverables shall be as set forth in the Purchase Order. If no payment terms are stated in the Purchase Order, the purchase price shall be payable within fifteen (15) days of the date of Supplant’s invoice. Deliverables held as a result of Buyer’s inability or refusal to accept delivery are at the risk and expense of Buyer, including, without limitation, all of Supplant’s handling, reshipping, restocking and storage charges. Interest at the rate of one and one-half percent (1 1/2%) per month (not to exceed the maximum interest allowable by law) shall be paid on the unpaid balance of any invoice not paid in full by Buyer by the due date thereof. Such interest shall be in addition to the purchase price. Supplant may, without notice, change or withdraw extensions of credit at any time, in which event Supplant may require cash payments and/or collateral security for account balances. Supplant may also refuse to sell to Buyer until overdue accounts are paid in full. If Buyer fails to make any payment when due, in addition to all other sums payable hereunder, Buyer shall pay Supplant the reasonable costs and expenses incurred by Supplant in connection with any actions taken to enforce collection of such unpaid amounts and to protect Supplant’s rights, whether by legal proceedings or otherwise, including, without limitation, reasonable attorneys’ fees, court costs and other expenses. Supplant’s election to not commence legal proceedings to enforce its rights of collection shall not be deemed a waiver by Supplant of its rights to commence such proceedings in the future.
4. RETAINED SECURITY INTEREST. Buyer hereby grants Supplant a security interest in any Deliverables delivered to secure the payment of same until the entire purchase price has been paid. The rights and remedies of Supplant, as a secured party with respect to Deliverables, shall be governed by the Uniform Commercial Code, or equivalent state statute(s) where the Deliverables are located. Buyer authorizes Supplant to execute and record on behalf of Buyer such financing statements and other instruments as Supplant may deem necessary to perfect or protect its security interest.
5. TAXES. Unless otherwise agreed in writing, prices listed do not include any applicable present or future sales, use, privilege, excise, or other taxes, or any export or import taxes, customs duties, brokerage fees, freight, insurance, container packing or the like, all of which shall be for the account of and be paid by Buyer. Applicable taxes, if any, shall be paid by the Buyer directly to the taxing authority.
6. CHANGES. At any time, Supplant may make changes to the design or composition of Deliverables that, in its judgment, do not materially change the form, fit, function or quality of the Deliverables. Changes in design or composition made at the request of Buyer shall be at Buyer’s risk and responsibility, at the expense of Buyer, and shall be paid for upon receipt of Supplant’s invoice. Supplant reserves the right, in its absolute discretion, to add to or remove from the range of products supplied by Supplant, including the Deliverables, and Supplant may do so immediately on written notice to Buyer.
7. DELIVERY. Specified shipment/delivery dates are approximate. Unless otherwise agreed to in writing, Deliverables will be shipped F.O.B. point of shipment unless freight was agreed to and has been expressly identified as being included in the price. Title and risk of loss shall pass to Buyer upon Buyer pick-up or delivery to the common carrier directed by Buyer. In the event goods require extra or special packaging due to the nature of the Deliverables, the manner in which they will be transported or otherwise, Buyer is responsible for the extra charges therefore. Supplant shall not be liable for shipment delays, or any loss or damage to Deliverables while in transit by the common carrier directed by Buyer, and all claims therefore shall be made immediately by Buyer to the carrier. Supplant reserves the right to deliver Deliverables in installments unless expressly agreed otherwise. Supplant will invoice installment deliveries at the time of shipment unless otherwise agreed in writing. Delay in any installment delivery shall not relieve Buyer of its obligation to accept all remaining installment deliveries.
8. RETURNS. Deliverables may be returned by Buyer only when authorized in writing by Supplant. Deliverables must be returned properly packaged and shipped freight prepaid to Supplant.
9. SETOFF; DEDUCTIONS. IN NO EVENT IS BUYER AUTHORIZED TO DEDUCT ANY AMOUNTS FROM THE AMOUNTS OWED SUPPLANT.
10. QUANTITY. Supplant shall have no obligation to provide any Deliverables in excess of the amount set forth in the Specifications unless previously agreed to in writing by Supplant.
11. RECALLS. If Buyer is directed to assist in any suspension of supply or recall of Deliverables for any reason by Supplant or any governmental authority, Buyer must cooperate and comply with all such reasonable directions to ensure the most effective response to the suspension or recall. The cost and expense of such suspension or recall will be borne by (a) Supplant to the extent the costs and expenses are the result of Supplant’s acts or omissions; and (b) Buyer to the extent the costs and expenses are the result of acts or omissions of Buyer, its directors, officers, employees, or contractors.
12. PATENTS AND PROPRIETARY RIGHTS. Supplant shall retain exclusive ownership of all right, title, and interest in and to all of Supplant’s intellectual property, and Supplant’s sale of the Deliverables to Buyer does not grant or confer upon Buyer or any other person any express or implied license in or to any of Supplant’s intellectual property.
13. PERMITS. Buyer represents and warrants to Supplant that is has all necessary permits and licenses necessary to permit the lawful purchase and use of the Deliverables and to make any subsequent resale of the Deliverables.
14. LIMITED WARRANTY. Supplant warrants that Deliverables (i) that consist of food products will not be adulterated or misbranded within the meaning of the Food, Drug and Cosmetic Act, as amended and (ii) shall be free from faulty workmanship and defective materials; provided Supplant shall not be responsible for any defect in quality attributable to Buyer’s Specifications, such as Buyer’s specifying the ingredients to be used in, or the means or methods used by Supplant in producing any Deliverables. If a “best by” date is indicated on the Deliverables, the foregoing warranty shall expire on the indicated best by date. If a best by date is not indicated, the foregoing warranty shall be limited to a six (6) month period commencing on the date of shipment; in each case provided that the Deliverables has been properly cared for by Buyer, and provided that the Buyer promptly notifies Supplant in writing of any warranty claim hereunder within said warranty period. In the event any Deliverable fails to meet the foregoing warranty within said warranty period, Supplant’s sole obligation shall be, in its sole discretion, to either correct the matter or replace the non-conforming Deliverables. Supplant shall not be liable for any problems with any Deliverables resulting from any alterations to any Deliverables made by the Buyer or any other act or omission of the Buyer or any third party. The foregoing warranties provided by Supplant are the only warranties provided by Supplant with respect to Deliverables, and may be modified or amended only by a written instrument signed by an authorized officer of Supplant. EXCEPT FOR THESE EXPRESS WARRANTIES, SUPPLANT MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PURPOSE OR DESIGN. Any sample or literature provided to Buyer was to illustrate the general type of goods and not an affirmation that the Deliverables will conform. No employee or representative of Supplant has authority to bind Supplant to any representation, affirmation or warranty not specifically included herein.
15. LIMITATION OF LIABILITY. Notwithstanding anything to the contrary contained herein, Supplant’s aggregate liability in connection with the Sale or provision of any Deliverables, regardless of the form of action giving rise to such liability (whether in breach of warranty, contract, negligence, strict liability or any other theory in contract, tort or otherwise), shall not exceed the amount actually paid by Buyer to Supplant for such Deliverables. IN NO EVENT SHALL SUPPLANT BE LIABLE FOR ANY EXEMPLARY, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, EVEN IF SUPPLANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. All remedies of Buyer shall be limited exclusively and in lieu of any and all other remedies to those contained in these terms and conditions.
16. ADVICE. Supplant assumes no obligation or liability for any advice provided by Supplant respecting the use of Deliverables or for any results occurring from Buyer’s application of such advice.
17. CONFIDENTIAL INFORMATION. The terms of any Purchase Orders from Buyer to Supplant shall be kept confidential. Technical information contained in recipes, ingredients, plans, drawings, specifications, photographs and other documents disclosed or furnished by Supplant in respect of any Deliverables constitutes confidential and proprietary property of Supplant. In the absence of express prior written permission of Supplant, Buyer shall hold all such confidential and proprietary information in confidence and Buyer shall not share such confidential information without anyone outside its organization, and Buyer may not sell or dispose of any portion thereof. Buyer shall not issue any publicity or advertising relating to Purchase Orders, Deliverables, or Buyer’s relationship with Supplant without Supplant’s prior written consent. In the event of any breach of confidentiality by Buyer, Supplant shall be entitled to all remedies available at law and in equity, including the recovery of any special, consequential, or indirect damages, lost profits, and/or the imposition of injunctive relief.
18. DEFAULT; INDEMNIFICATION. If Buyer shall fail to pay all or any part of the sums due or to become due to Supplant, fail to comply with these terms and conditions, fail to keep or perform any of Buyer’s obligations, become insolvent or become a party to any federal or state insolvency proceeding or receivership, or become a judgment debtor, at Supplant’s option, any sum due or to become due to Supplant may become immediately due and payable in full. Buyer shall indemnify and hold harmless Supplant from and against each and every Loss incurred or suffered by Supplant which are or are claimed to be in any manner, directly or indirectly, in whole or in part, caused, contributed to or occasioned by reason of Buyer’s, its employees’, agents’ or representatives’ default or breach of any representation, warranty, obligation or covenant of Buyer contained in any Purchase Order, or Buyer’s performance or failure to perform hereunder, or its negligence, whether active or passive, and without limiting Buyer’s liability, the foregoing shall include injury to or death of any person or persons and damage to or loss of property. Concurrently, or in the alternative, Supplant may at its option, in addition and without prejudice to its other lawful rights and remedies (i) defer further shipments of Deliverables until each default has been corrected to Supplant’s satisfaction, or (ii) elect not to make any further shipments of Deliverables, and/or (iii) exercise any other remedies available under applicable law. Waiver of any default shall not be a waiver of any other subsequent default. No course of conduct, nor any delay of Supplant in exercising any rights, nor Supplant’s acceptance of a payment from Buyer with knowledge of an existing default or breach, shall waive any rights of Supplant or be deemed a modification of any Purchase Order.
19. RIGHT OF TERMINATION. Supplant, at any time upon notice to Buyer, may terminate or reduce its obligations to deliver Deliverables. In such event, Buyer shall pay for all product shipped even if less than Purchase Order quantity Buyer shall have no claim for damages, compensation, loss of profit, allowance or otherwise by reason of, or directly or indirectly arising out of any action taken or notice given by Supplant under or pursuant to the provisions hereof. Purchase Orders may be cancelled by Buyer only with the written consent of Supplant and upon Buyer’s payment for any and all expenses and other losses and damages incurred by Supplant a result of such cancellation, including Supplant’s out of pocket costs, overhead, and anticipated profit.
20. FINANCIAL RESPONSIBILITY. Buyer warrants that it has and will at all times maintain and, upon request by Supplant, show that it has sufficient working capital and financial ability to perform and complete its obligations herein. Buyer warrants to Supplant that it is not insolvent within the meaning of the Federal Bankruptcy Laws and the laws of the states in which it conducts its business. In addition to any and all other rights and remedies which Supplant may have pursuant to the law of contracts or at common law, Supplant reserves the right to terminate its obligations, without liability, in respect of any undelivered Deliverables if (i) Buyer shall become insolvent or bankrupt, (ii) Buyer shall make any general assignment for the benefit of its creditors, (iii) any trustee or receiver is appointed of any substantial part of Buyer’s assets or (iv) Buyer shall be adjudicated a bankrupt.
21. FORCE MAJEURE. Supplant shall not be liable for any failure or delay in delivery or otherwise performing its obligations hereunder with respect to any goods or services being purchased if such failure or delay is caused by a strike, lockout, labor dispute, accident, war, act of terrorism, act of God, fire, flood, pandemic, or other casualty or cause beyond Supplant’s reasonable control.
22. ENTIRE AGREEMENT. These terms and conditions, together with the applicable Specifications, constitutes the sole and entire agreement between Supplant and Buyer with respect to the and the subject matter hereof, and all prior or contemporaneous understandings or agreements, oral or written, are merged herein. No subsequent changes or modifications of these terms and conditions are binding upon Supplant unless accepted by it in writing. Buyer expressly waives all provisions contained in correspondence, forms, or other writings relating to the Sale of the Deliverables which negate, limit, extend, or conflict with the provisions hereof. In the event any term or provision hereof shall be deemed unenforceable, the remaining terms and conditions shall remain in effect to the fullest extent possible.
23. CONTROLLING LAW; JURISDICTION. These terms and conditions and the transaction to which these terms and conditions relate, shall be governed by and construed in accordance with the laws of the State of Delaware without effect given to its choice of law provisions. All disputes between Supplant and Buyer relating hereto shall be resolved exclusively in the state or federal courts located in Delaware and Buyer consents to the personal jurisdiction of such courts.
24. ASSIGNMENT. Buyer may not assign or transfer any right or interest in or to these terms and conditions and/or the transaction to which these terms and conditions relate, to any third party whatsoever without the prior written consent of Supplant.
25. NOTICES. Any and all notices required to be given hereunder shall be in writing and hand delivered (including by commercial courier), with an appropriate receipt thereof obtained, or sent by United States certified mail, return receipt requested, to the addresses of the respective parties set forth on the face hereof, or to such other address as either party may designate to the other by written notice for such purpose from time to time.
26. NON-WAIVER. Supplant’s exercise or failure to exercise or enforce any right or remedy granted or provided by these terms and conditions or its acceptance of or payment for any Deliverables shall not be deemed as or construed to be a waiver of any right or remedy it may have for Buyer’s then existing or subsequent default or breach of any representation, warranty, obligation, or covenant applicable to a Purchase Order.