TERMS AND CONDITIONS OF SALE

REAL FLAVORS, LLC

TERMS AND CONDITIONS OF SALE

  1. General: These Terms and Conditions of Sale govern the offering, sale and delivery of all goods and/or services (jointly and separately referred to as the "Goods") from or on behalf of Real Flavors ("Seller") to customer ("Buyer") and apply to all similar dealings between Seller and Buyer.
  2. Warranties: Seller warrants only that the Goods conform to the description stated on the face thereof. SELLER HEREBY DISCLAIMS, AND BUYER HEREBY WAIVES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED OR ARISING UNDER LAW OR EQUITY OR CUSTOM OF TRADE, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Buyer has independently determined the suitability of the Goods for Buyer's use and will utilize and solely rely on its own expertise, know-how and judgment in relation to the Goods and the Buyer's use thereof.
  3. Sole Remedy: Seller's sole liability and Buyer's exclusive remedy in connection with the transaction(s) will be replacement of any non­ conforming goods or, at Seller's option, refund of all or a portion of the purchase price. IN NO EVENT WILL SELLER BE LIABLE FOR, AND BUYER HEREBY WAIVES ANY RIGHT TO, ANY LOST PROFITS, LOSS OF USE, OR FOR ANY INDIRECT SPECIAL INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF USEABILITY, WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Buyer shall confirm the accuracy of all shipments, as to the identity, quantity and quality of the Goods upon receipt. Buyer waives all claims of non-conformity with respect to the Goods or their shipment or delivery unless made in writing by Buyer to Seller, specifically stating the details of such non-conformity, within ten (10) days of Buyer's receipt of the Goods. Seller's liability shall in no event be greater in amount than the purchase price of the Goods in respect to which damages are claimed. Any action by Buyer for breach of contract must be commenced with one (1) year after the cause of action has accrued.
  4. Taxes: Buyer shall pay all taxes, excises, fees or charges with respect to the sale or transportation of the Goods.
  5. Measurements: Buyer accepts Seller's point-of-shipment weights and measurements, unless proven incorrect.
  6. Delivery and Shipment: Unless otherwise stated by Seller, all deliveries of Goods shall be F.O.B. Seller's plant or warehouse. Buyer will, in the event of loss or damage in transit, file its own claim with carrier. All shipment or delivery dates are approximate. The date of the bill of lading shall constitute conclusive evidence of the date of shipment. In case of failure of performance by Buyer hereunder, Seller may defer or suspend further shipments or deliveries or, at its option, cancel this contract as to any Goods which have not been shipped or delivered, and any losses, liabilities, costs or expenses resulting from such deferral or cancellation shall be for Buyer's account.
  7. Buyer's Solvency; Purchase Money Security Interest: Buyer represents and warrants to Seller that it is not insolvent, as that term is defined in the Uniform Commercial Code (U.C.C.). Buyer hereby grants to Seller a purchase money security interest in the Goods.
  8. Late Charge: If any invoice amount is not paid in full when due, Seller reserves the right to request advance payment for future shipments. If any of the purchase price is not paid in full when due, Buyer shall pay a late charge on the amount unpaid for each day from the due date until paid in full at a rate of twelve percent (12%) per annum or the highest rate allowed under the law, whichever is lower. Late charges shall be payable on demand. The parties hereby agree that in the event that Buyer fails to cure any non payment within thirty (30) days of Buyer's receipt of notice from Seller describing such breach, Buyer agrees to pay Seller's reasonable costs and expenses of collection, including attorneys' fees.
  9. Labeling: Buyer acknowledges that it has received and is familiar with Seller's labeling and literature concerning the Goods, and Buyer agrees to forward such information to its employees, independent contractors, and others who handle and use the Goods for Buyer.
  10. Compliance with Laws and Standards: Buyer acknowledges that its handling and use of the Goods may be subject to requirements or limitations under certain laws and/or standards. Buyer shall be exclusively responsible for: (a) ensuring compliance with all laws and standards associate with its intended use of the Goods; and (b) obtaining all necessary approvals, permits or clearances for such use. Buyer will comply with all laws, rules and regulations pertaining to handling of the Goods, and Buyer assumes all risks and liability arising out if its use, storage, handling and resale of the Goods.
  11. Indemnification: Buyer shall indemnify, defend, and hold Seller, its officers, directors and employees harmless from and against any and all liabilities , damages, fines, penalties, costs, claims, interest and expenses (including costs of defense, settlement, and reasonable attorney's fees) that arise from claims, allegations, actions, causes of action, adjudications, or suits by any third parties (including Buyer's employees and customers) arising out of Buyer's use, storage, handling or resale of the Goods OR to the extent attributable to: (a) fraudulent, negligent or willful misconduct of Buyer or its employees, agents or subcontractors, or (b) violations of any federal, state, provincial or local law, statute, regulation, rule, ordinance, order, or government directive by Buyer, including, without limitation, those related to the environment or public health.
  12. No Assignment: Buyer shall not assign its rights or delegate its duties under this contract without Seller's prior written consent.
  13. Governing Law; Arbitration: This contract shall be governed by and construed in accordance with the law of the State of Michigan, without regards to its choice-of-law provisions. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to any purchases made hereunder. Seller and Buyer agree that any controversy or claim arising out of or relating to this contract, or the breach hereof, shall be settled by arbitration in Bay City, Michigan, in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The award of the arbitrator(s) shall be final and binding upon the parties hereto and judgment on the award may be entered in any court of competent jurisdiction.
  14. Entire Agreement; Amendment And Non-Waiver:  Acceptance of Buyer's purchase order is expressly conditioned upon Buyer's acceptance of the terms and conditions herein and the exclusion of any conflicting terms that may be contained in Buyer's purchase order. Any objection to any terms herein must be in writing and shall not be deemed timely unless received by Seller within seven (7) days of the date of this contract. This contract is intended by the parties as the final, complete, and exclusive expression of their agreement relating to the subject matter hereof, and supersedes any prior agreement or understanding between them. No parol evidence, course of dealing, conduct, performance or usage of the trade shall be relevant to supplement or explain it.  No waiver, amendment, modification of any of the provisions hereof shall be effective, unless made in writing and signed by both parties. Failure by either party to exercise or enforce any right conferred by this contract shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof or any other right on any later occasion.