Bella Pak LLC Terms and Conditions
The following terms and conditions apply to all goods and materials furnished under this Order Acknowledgement except to the extent expressly set forth by MCT Manufacturing LLC d/b/a Bella Pak LLC. ("Seller") on the face of the Order Acknowledgment. Moreover, these terms and conditions shall apply to any and all transactions between the Seller and Buyer unless modified by a written document duly executed by an authorized agent of Seller.
Application of Terms and Conditions. Acceptance of any part of the goods or services under this Order Acknowledgement (the "Products") by the buyer ("Buyer") whether or not in conformity herewith, constitutes an acceptance of this Order Acknowledgement and of all terms and conditions herein. Any additional or different terms or conditions submitted by Buyer are hereby objected to by Seller and shall not be binding upon Seller unless expressly agreed to in writing by Seller. If Buyer objects to any of these terms and conditions, said objection must be brought to the attention of Seller by Buyer in a written statement separate from any sales order or other printed form of Buyer. Said objections shall be deemed proposals for different terms and conditions and may be accepted only in writing by an authorized representative of Seller. The Buyer acknowledges that he is not relying on any warranties or representations not specified herein.
Price; Payment; No Setoff. The price stated on the face of this Order Acknowledgement is net of all taxes and duties. Any changes in freight rates, wharfage, handling, terminal charges, surcharges (e.g., bunker, currency, congestion, etc.) or insurance premiums, as well as any new or additional duties or taxes or imposts of whatsoever kind and by whomsoever imposed, whether with retroactive effect or not, subsequent to the date of this Agreement, shall be for the Buyer's account. Liability for payment for the Products shall arise on confirmation of the order (the "Order") to which this Order Acknowledgement relates and payment is due at the time agreed upon or in the absence thereof, immediately on receipt of the Seller's invoice, whether or not ownership in the Products has passed to Buyer. Sums unpaid after the due date shall bear interest from the due date until the day payment is received at the rate of eighteen (18%) percent per annum (or such lower maximum rate as imposed by law). No counterclaim of the Buyer of any nature may be set off against any payment due to the Seller hereunder.
Updates to Payment Information. In the event Seller needs to change its payee bank account information or payment method, then Seller will send Buyer a notification to an individual at Buyer’s office, known by Seller to be handling the transaction. Upon receipt of such notification and prior to changing bank account information or payment method, Buyer must contact Seller's representative, known by Seller to be handling the transaction, to positively confirm the account change. At all times Buyer is responsible for ensuring that payment is made to Seller’s correct location and Buyer accepts any and all responsibility for misdirected funds, including, but not limited to, payments due and owing under the applicable invoice(s), and any/all legal fees and costs associated with collecting the transfers associated with the misdirected transfer.
Delivery. All shipments of the Products ordered hereunder shall be delivered in accordance with the delivery instructions agreed upon by Buyer and Seller. Seller will use its best efforts to complete delivery on or before any delivery dates requested by the Buyer or estimated by the Seller, but will not be liable for any delay in delivery or non-delivery by third parties. The quantity delivered will be subject to variation from the exact amount ordered, up to five (5%) percent plus or minus. Seller shall notify Buyer that the Products are ready for dispatch or, where applicable, the date on which the Products will be available for delivery, and Buyer shall accept immediate delivery, arrange to collect the Products, or arrange suitable storage, as the case may be, and upon Buyer’s failure to make such arrangements, Seller may, in its absolute discretion, but without obligation so to do: either (a) effect delivery by whatever means it thinks most appropriate, or arrange storage and insurance at the Buyer's risk and expense, including demurrage charges, pending delivery; or (b) at any time resell or otherwise dispose of the Products without prejudice to any other rights the Seller may have against the Buyer for breach of contract or otherwise. Where the Agreement provides for delivery by installments, each installment shall constitute a separate contract and any failure or defect in any one or more installment delivered shall not entitle Buyer to repudiate the agreement nor to cancel any subsequent installments. Postponement of any shipment at the Buyer's request, if granted by the Seller, shall require payment by the Buyer to the Seller of all storage and interest charges and all other costs to the Seller occasioned by the said postponement including without limitation the cost of the Seller having purchased any Products for such postponed shipment.
Excused Performance. The Seller will be excused from its obligations hereunder if performance is prevented or delayed by any acts of God, fire, explosion, flood, earthquakes, weather, riots, civil disturbances, invasions, hostilities, revolutions, insurrections, epidemics, wars, acts of terrorism, actions of governments (including, but not limited to, reductions in trade quotas and/or increases/decreases in tariffs) voluntary or involuntary compliance with any Law or request of any governmental authority, any detention or rejection of the Products by an agency of the United States or of any state, strikes, lockouts, or other labor difficulties, failure of usual sources of Products, mechanical or electronic failure, plant shutdowns, any necessity not to operate or to reduce operations, or any circumstances beyond the reasonable control of the Seller. The Seller shall, if practicable, give to the Buyer reasonable notice of any such cause and shall resume performance of its obligations as soon as the cause ceases to affect the performance of its obligations.
Title and Risk of Loss. Title shall pass from Seller to Buyer upon delivery. Delivery and risk of loss, shall be determined by the Incoterms agreed to, in writing, by the parties; provided, however, that if the Products are Non-Conforming Products as defined herein, title to and risk of loss of such Non-Conforming Products shall remain at all times with Seller unless Buyer agrees in writing to accept such Non-Conforming Products. If a shipment is not accompanied by a bill of lading, packing slip or similar delivery document, then Buyer’s count and/or weight will be conclusive. Notwithstanding the foregoing, if Buyer requests postponement of delivery, risk shall pass to the Buyer at the time of such request. Ownership of the Products will pass to the Buyer only when payment in full for all Products to be delivered by the Seller to the Buyer under this Agreement, including any interest or other expenses payable in accordance herewith, has been received by the Seller.
Non-Conforming Products. “Non-Conforming Products” shall mean any Products that are defective, damaged, or fail to conform to (i) the requirements of these Terms and Conditions (ii) the requirements of any applicable Purchase Order, (iii) the specifications supplied by Buyer to Seller, provided, however, that any such deviation from the specifications exceed the tolerances permitted within the Code of Federal Regulations, (iv) Seller’s representations regarding product specifications, quality, and/or quantity, and/or (v) applicable industry or legal fitness and safety standards including, but not limited to, any relevant standards set forth in the US Code of Federal regulations.
Termination; Default. Seller reserves the right to terminate this order or any part hereof at any time (a) for its convenience, in which case Seller will pay Buyer's costs properly allocable to the termination and Buyer shall accept delivery of Product delivered by Seller prior to termination; and (b) for cause in the event of any default by Buyer in which case Buyer shall be liable to Seller for any and all damages sustained by reason of such default. Breach of any warranty contained herein, or failure to comply with any other term or condition hereof including, without limitation, failure to pay for Products within the time specified, shall constitute a default. Time is of the essence in connection with payments hereunder.
NO IMPLIED WARRANTIES. Seller warrants, at the time of delivery, only that: (i) Products, if delivered by Seller in the United States are not adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act of June 25, 1938, as amended, or the Fair Packaging and Labeling Act of 1966, as amended, or within the meaning of any state food and drug law substantially similar to those federal acts (collectively, the “Acts”), and that the Products are not articles which may not, under the provisions of Section 404 or 505 of the Federal Food, Drug and Cosmetic Act of June 25, 1938, be introduced into interstate commerce; and (ii) Seller will deliver good title to the Products and the Products shall be delivered free of liens and encumbrances. Buyer, having the expertise and knowledge in the intended use of the Products and any use of other products made therefrom, assumes all risk and liability for results obtained by the use of the Products, whether used singly or in combination with other ingredients or in any process. Except as set forth in this Section, Seller specifically disclaims all other warranties, whether express or implied, whether arising by operation of law or otherwise, including, without limitation, any warranties of fitness of the product for a particular purpose, quality, description, and/or merchantability. Any determination of the suitability of the product for the use contemplated by Buyer is Buyer’s sole responsibility.
Inspection and Acceptance of Product. Immediately upon receipt of the Products, Buyer shall, at its sole cost and expense, inspect the Products to ensure that it has received all quantities and the quality ordered. No later than three (3) days after Buyer’s receipt of Products and before the use, disposition, processing, or any other change from the original condition of any part of the Products, Buyer shall notify Seller in writing if any Product is found to be deficient, defective or short and shall furnish such written evidence and other documentation as Seller may reasonably request. Buyer’s failure to give timely, written notice to Seller of any deficiency, defect or shortage within such three (3) day period shall constitute an unqualified acceptance of the Product and a waiver by Buyer of all claims with respect thereto. Buyer shall make the Products available for inspection by the Seller and an independent inspector to verify any claim of damage, defect, or shortage, and shall keep the Products in a protective environment to prevent or retard any possible deterioration. Unless authorized to do so by Seller, Buyer shall not use, process, or resell the Products until such inspection is completed. Buyer's failure to comply with the foregoing shall constitute an absolute waiver by the Buyer of any and all claims against the Seller with respect to said Products
LIMITATIONS OF SELLER'S LIABILITY. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL SELLER BE LIABLE FOR ANY LOST OR ANTICIAPTED PROFITS, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST EARNINGS, LOST PROFITS OR UPON SELLER’S NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY, IN TORT OR ANY OTHER CAUSE OF ACTION. Buyer’s exclusive remedy against Seller for any cause of action under these terms and conditions, including for failure to deliver, is, at Seller’s option, either: (i) replacement of the Products; or (ii) refund of the amount paid to seller for the Products. IN NO EVENT SHALL SELLER’S CUMULATIVE LIABILITY EXCEED THE AMOUNT PAID BY BUYER TO SELLER FOR THE PRODUCTS. BUYER AGREES THE BUYER’S REMEDY IN (i) OR (ii) IS FAIR AND ADEQUATE.
Compliance with Laws and Regulations. The parties represent and warrant that they have complied, and will continue during the performance of this order to comply, with the applicable provisions of federal, state, and local laws and regulations from which liability may accrue, including, but not limited to, Federal Food, Drug and Cosmetic Act of June 25, 1938, as amended (the “FFDCA”), including the Food Additives Amendment of 1958 and the Food Allergen Labeling and Consumer Protection Act of 2004; the Federal Insecticide, Fungicide, and Rodenticide Act; the Fair Packaging and Labeling Act; the Poison Prevention Packaging Act of 1970; the HACCP food safety systems requirements of the USDA/FSIS; the provisions of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002; the registration requirements of the Food Safety Modernization Act (FSMA); the country-of-origin labeling provisions of the Farm Security and Rural Investment Act of 2002 as amended, for any violations thereof.
Indemnification. Buyer assumes full responsibility for and agrees to indemnify, defend, and hold harmless Seller, its affiliates, shareholders, officers, directors, members, managers, employees, representatives and agents from and against all claims, losses, damages, costs, and expenses, including, without limitation, reasonable attorneys’ fees, caused by, arising out of, or in any way resulting from Buyer's activities in connection with this order, including, but not limited to (a) any act or omission of Buyer, its agents, employees, or subcontractors and (b) any breach of any representation, warranty or covenant of Buyer contained in this order or incorporated here by law.
No Waiver. Seller's failure at any time to insist upon strict performance of any provision of this Agreement or to take advantage of any right hereunder, shall not be construed as a waiver of such performance or right.
Applicable Law; Consent to Jurisdiction and Venue. The contract of sale arising out of the acceptance of this Agreement shall be governed by, and construed and interpreted in accordance with, the internal law, including, but not limited to, the Uniform Commercial Code of the State of New Jersey. Buyer hereby consents to exclusive jurisdiction in the state and federal courts in the State of New Jersey and to venue where Seller's offices are located with respect to all disputes concerning the subject matter of this Order Acknowledgement. Notwithstanding the foregoing, this Purchase Order and all arrangements between Seller and Buyer shall also be governed by the Incoterms rules, as amended.
Waiver of Jury Trial. SELLER AND BUYER IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, COUNTERCLAIM OR CROSS-COMPLAINT IN ANY ACTION OR OTHER PROCEEDING BROUGHT BY THE OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF, OR IN ANY WAY CONNECTED WITH OR RELATED TO ANY ORDER OR ANY PORTION OF ANY AGREEMENT WHICH IS RELATED TO ANY ORDER, WHETHER BASED UPON CONTRACTUAL, STATUTORY, TORTIOUS OR OTHER THEORIES OF LIABILITY.
Attorneys’ Fees and Costs. In the event that any action is initiated by Seller under this Agreement to enforce or interpret any of the terms hereof, Seller shall be entitled to be paid all court costs and expenses, including reasonable attorneys’ fees, incurred by Seller with respect to such action, unless as a part of such action, the court of competent jurisdiction determines that each of the material assertions made by Seller as a basis for such action were not made in good faith or were frivolous. In the event of an action instituted by or in the name of the Buyer under this Agreement or to enforce or interpret any of the terms of this Agreement, Seller shall be entitled to be paid all court costs and expenses, including attorneys’ fees, incurred by Seller in defense of such action (including with respect to Seller’s counterclaims and cross-claims made in such action), unless as a part of such action the court determines that each of Seller’s material defenses to such action were made in bad faith or were frivolous.
Insurance. Buyer agrees to keep in full force for a period of at least two (2) years from the date of this order, General Liability Insurance, Insurance, including Products Liability, Completed Operations Liability, and Contractual Liability covering Buyer's indemnification obligations under this order, with limits of at least $500,000 each person and $1,000,000 each occurrence for bodily injury, and $500,000 each occurrence for property damage, and Workmen's Compensation and Employer's Liability Insurance with limits as required by applicable state laws.
No Third Party Beneficiaries. Nothing in this order is to be construed as creating a contract for the benefit of third parties.
Construction. Any term or provision of these conditions which is found to be contrary to the governing or otherwise applicable law shall not invalidate any other terms or provision hereof and any term or provision required to be included in a contract of sale of this type by the governing or otherwise applicable law shall be deemed to be incorporated herein.
NOTICE: If no WRITTEN objection to these terms and conditions is received before Seller takes any action to perform under this Order Acknowledgement, then the terms and conditions shall be deemed accepted.
Counterparts: Facsimile. This Agreement and any amendments hereto may be executed in any number of counterparts, all of which together shall constitute a single, original instrument. Facsimile signatures shall be deemed to be originals.