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.
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.
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.
Rev. 8/01/2020