NUTRICEPTS, LLC
Standard Terms of Sale
1. Applicable Terms. These terms govern the purchase and sale of products (the “Products”), referred to in Nutricepts, LLC’s (“Seller”) proposal and then current price sheet ("Seller’s Documentation"). Whether these terms are included in an offer or an acceptance by Seller, such offer or acceptance is expressly conditioned on Buyer’s assent to these terms. Seller rejects all additional or different terms in any of Buyer’s forms or documents.
2. Payment. Buyer shall pay Seller the full purchase price as set forth in Seller’s Documentation. Unless Seller’s Documentation specifically provides otherwise, freight, detention and demurrage, storage, insurance and all taxes, levies, duties, tariffs, permits or license fees or other governmental charges relating to the Products or any incremental increases thereto shall be paid by Buyer. If Seller is required to pay any such charges, Buyer shall immediately reimburse Seller. If Buyer claims a tax or other exemption or direct payment permit, it shall provide Seller with a valid exemption certificate or permit and indemnify, defend and hold Seller harmless from any taxes, costs and penalties arising out of same. All payments are due in accordance with the terms on the invoice. Buyer shall be charged the lower of 1 ½% interest per month or the maximum legal rate on all amounts not received by the due date and shall pay all of Seller’s reasonable costs (including attorneys’ fees) of collecting amounts due but unpaid. All orders are subject to credit approval by Seller.
3. Delivery. Delivery of the Products shall be in material compliance with the schedule in Seller’s Documentation. Unless Seller’s Documentation provides otherwise, delivery terms are ExWorks Seller’s factory (Incoterms 2020). Title to all Products shall pass upon receipt of payment for the Products under the respective invoice. Unless otherwise agreed to in writing by Seller, shipping dates are approximate only and Seller shall not be liable for any loss or expense (consequential or otherwise) incurred by Buyer or Buyer’s customer if Seller fails to meet the specified delivery schedule. If a delivery appointment is required, Buyer must provide written notice to Seller in Buyer’s order documentation.
4. Intellectual Property. Buyer acknowledges and agrees that: (a) Supplier (or its licensors) will retain all Intellectual Property Rights (as defined herein) used to create, embodied in, used in and otherwise relating to the Products, including the Supplier Confidential Information; (b) any and all Supplier's Intellectual Property Rights are the sole and exclusive property of Supplier or its licensors; (c) Buyer shall not acquire any ownership interest in any of Supplier’s Intellectual Property Rights under this Agreement; (d) any goodwill derived from the use by Buyer of Supplier’s Intellectual Property Rights inures to the benefit of Supplier or its licensors, as the case may be; (e) if Buyer acquires any Intellectual Property Rights in or relating to the Products purchased under this Agreement (including any rights in any trademarks, derivative works or patent improvements relating thereto), by operation of law, or otherwise, such rights are deemed and are hereby irrevocably assigned to Supplier or its licensors, as the case may be, without further action by either party; and (f) Buyer shall use Supplier’s Intellectual Property Rights only in accordance with the Agreement and any instructions of Supplier. As used herein, “Intellectual Property Rights” means intellectual property rights comprising or relating to: (a) patents and patent applications; (b) trademarks; (c) works of authorship, expressions, designs, and design registrations, whether or not copyrightable, including copyrights and copyrightable works, data, data files, and databases and other specifications and documentation; (d) trade secrets; and (e) all industrial and other intellectual property rights, and all rights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to the laws of any jurisdiction throughout any part of the world.
5. Force Majeure Event. Neither Buyer nor Seller shall have any liability for any breach or delay (except for breach of payment obligations) caused by a Force Majeure Event. During any period of shortage due to any cause, the Supplier may without liability to Buyer, prorate and allocate its available supply of Products, among its customers in such a manner as may be deemed fair and reasonable by the Supplier. “Force Majeure Event” shall mean events or circumstances that are beyond the affected party’s control and could not reasonably have been easily avoided or overcome by the affected party and are not substantially attributable to the other party. Force Majeure Event may include, but is not limited to, the following circumstances or events: war, act of foreign enemies, terrorism, riot, strike, or lockout by persons other than by Seller or its sub-suppliers, pandemic, natural catastrophes or (with respect to on-site work), unusual weather conditions.
6. Warranty. Subject to the following sentence, Seller warrants to Buyer that the Products shall materially conform to the description in Seller’s Documentation. The Seller warrants the Products for the storage period detailed in the relevant specifications (the “Warranty Period”). If Buyer gives Seller prompt written notice of breach of this warranty within the Warranty Period, Seller shall, at its sole option and as Buyer’s sole and exclusive remedy, replace the Products or provide a credit of the fees paid for the Products that failed to meet the warranties against future purchases. Seller’s warranty is conditioned on Buyer’s storing and using the Products in accordance with Seller’s instructions and not being in default of any payment obligation to Seller. The warranty does not apply to any Products that have been subject to abuse, misuse, neglect, improper storage, improper handling or use contrary to the specifications or any instructions of Seller. THE WARRANTIES SET FORTH IN THIS SECTION 6 ARE THE SELLER’S SOLE AND EXCLUSIVE WARRANTIES AND ARE SUBJECT TO THE LIMITATION OF LIABILITY PROVISION BELOW. SELLER MAKES NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PURPOSE.
7. Termination. Either party may terminate this agreement, upon issuance of a written notice of breach and a thirty (30) day cure period, for a material breach (including but not limited to, filing of bankruptcy, or failure to fulfill the material obligations of this agreement).
8. Dispute Resolution. Seller and Buyer shall negotiate in good faith to resolve any dispute relating hereto. If, despite good faith efforts, the parties are unable to resolve a dispute or claim arising out of or relating to this Agreement or its breach, termination, enforcement, interpretation or validity, the parties will first seek to agree on a forum for mediation to be held in a mutually agreeable site. If the parties are unable to resolve the dispute through mediation, then any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Stamford, Connecticut before three arbitrators who are lawyers experienced in the discipline that is the subject of the dispute and shall be jointly selected by Seller and Buyer. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. The Arbitrators shall issue a reasoned decision of a majority of the arbitrators, which shall be the decision of the panel. Judgment may be entered upon the arbitrators’ decision in any court of competent jurisdiction. The substantially prevailing party as determined by the arbitrators shall be reimbursed by the other party for all costs, expenses and charges, including without limitation reasonable attorneys’ fees, incurred by the prevailing party in connection with the arbitration.
9. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY, SELLER SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES, AND SELLER’S TOTAL LIABILITY ARISING AT ANY TIME FROM THE SALE OR USE OF THE PRODUCTS, INCLUDING WITHOUT LIMITATION ANY LIABILITY FOR ALL WARRANTY CLAIMS OR FOR ANY BREACH OR FAILURE TO PERFORM ANY OBLIGATION UNDER THE CONTRACT, SHALL NOT EXCEED THE PURCHASE PRICE PAID FOR THE PRODUCTS. THESE LIMITATIONS APPLY WHETHER THE LIABILITY IS BASED ON CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY.
10. Miscellaneous. These terms, together with any Contract Documents issued or signed by the Seller, comprise the complete and exclusive statement of the agreement between the parties (the “Agreement”) and supersede any terms contained in Buyer’s documents, unless separately signed by Seller. Neither party may assign this Agreement, in whole or in part, nor any rights or obligations hereunder without the prior written consent of the other party; provided, however, the Seller may assign its rights and obligations under these terms to its affiliates or in connection with the sale or transfer of the Seller’s business and Seller may grant a security interest in the Agreement and/or assign proceeds of the agreement without Buyer’s consent. No part of the Agreement may be changed or cancelled except by a written document signed by Seller and Buyer. No order for Products may be cancelled, delayed or changed by Buyer without the prior written consent of Seller. No course of dealing or performance, usage of trade or failure to enforce any term shall be used to modify the Agreement. If any of these terms is unenforceable, such term shall be limited only to the extent necessary to make it enforceable, and all other terms shall remain in full force and effect. The Agreement shall be governed by the laws of the State of Connecticut without regard to its conflict of laws provisions. Both Buyer and Seller reject the applicability of the United Nations Convention on Contracts for the international sales of Products to the relationship between the parties and to all transactions arising from said relationship.
Version 24.01