THESE STANDARD TERMS AND CONDITIONS ("TERMS") GOVERN THE SALE BY KERRY INC. AND ITS U.S. AFFILIATES (COLLECTIVELY, "SELLER") AND THE INDIVIDUAL, CORPORATION, PARTNERSHIP, LIMITED LIABILITY COMPANY OR OTHER LEGAL ENTITY ("BUYER") WHOSE ORDER FOR ANY PRODUCT OR PRODUCTS (EACH A "PRODUCT" AND COLLECTIVELY THE "PRODUCTS") IS ACCEPTED BY SELLER AND SET FORTH THE RIGHTS AND OBLIGATIONS OF SELLER AND BUYER IN RELATION TO THE SALE OF PRODUCTS BY SELLER TO BUYER.
1. Terms. Any order accepted by Seller is deemed to incorporate these Terms, which shall govern the contract for the sale and purchase of the Products (the "Contract") to the exclusion of any other terms, conditions, representations, warranties, covenants or other agreements. Any use of Buyer's purchase order shall be for Buyer's convenience only, and any additional or inconsistent terms or conditions set forth in any order, offer or proposal from Buyer to purchase Products from Seller shall not be binding upon the Seller and are expressly rejected by Seller. The Contract (including these Terms) sets forth the entire agreement and understanding between Buyer and Seller relating to the purchase and sale of the Products, merges all prior discussions, understandings, agreements and documents between them relating to the purchase and sale of the Products and supersede such discussions, understandings, agreements and documents in their entirety. Neither Buyer nor Seller shall be bound by any amendment, modification, waiver of or addition to these Terms except as agreed by both parties in writing and signed on their behalf.
2. Orders. Orders submitted by Buyer are subject to acceptance by Seller in writing. No order that has been accepted by Seller may be modified, changed or cancelled without Seller's prior written approval, which may be conditioned upon Buyer's indemnifying Seller against all loss (including loss of profit), costs (including the cost of materials), damages, charges and expenses incurred by Seller as a result of such modification, change or cancellation. Buyer shall be responsible for ensuring the accuracy of the terms of any order submitted by Buyer and for giving Seller any necessary information relating to the Products within a sufficient time to enable Seller to perform the Contract in accordance with its terms.
3. Delivery. (a) Unless otherwise agreed in writing by Seller, delivery will be EXW (Incoterms 2010) Seller's shipping point, and Products will be packed to Seller's normal specification in non-returnable packing and shipment will be arranged only at the request and at the expense of Buyer. (b) Seller reserves the right to deliver in more than one lot and to invoice each lot separately. (c) Times given for shipment and/or delivery are approximate only and not essential to the Contract. (d) Where applicable, C.O.D. charges will be added to the price of Products. (e) When delivery is delayed for reasons attributable to Buyer or its agents, storage and other additional costs will be charged to the Purchaser and Products will be at the Purchaser's risk from the date of commencement of such delay, Seller reserves the right to invoice the goods at the original delivery date which shall be the date of commencement of the warranty. (f) Where shipment has been arranged by Seller, Buyer shall immediately notify Seller and the carrier of any loss or damage in transit.
4. Title and Risk of Loss. Title to and all risk of loss of Products shall pass from Seller to Buyer EXW (Incoterms 2010) Seller's shipping point at the time Products are tendered to Buyer's carrier, but Seller shall retain a lien on and purchase money security interest in all Products until all monies due from Buyer for the purchase of Products hereunder have been received by Seller. Buyer hereby authorizes Seller to file a UCC financing statement with the relevant governmental authority, agency, or body to perfect its line on and security interest in Products.
5. Payment Terms. Unless otherwise agreed by Seller in writing, payment of each invoice shall be due within 30 days of the applicable invoice. Buyer shall pay each invoiced amount in full, without any discount, deduction, setoff or abatement of any kind, and payment shall not be withheld on account of any claim of Buyer against Seller. Seller reserves the right to suspend deliveries where payment for any Product has not been made on the due date and remains outstanding. Any discounts specified by Seller shall apply only where payment is received in accordance with the payment terms established by Seller.
6. Warranties: Buyer's Remedies. Seller hereby warrants solely to and for the benefit of Buyer that, as of the time of delivery, the Products (a) shall conform to the description given by Seller (or, to the extent Seller has established a standard specification for such Product, shall conform to Seller's specification); (b) comply in all material respects with the U.S. Food, Drug and Cosmetic Act, as amended ("FDCA") and equivalent state and local laws; (c) are not adulterated or misbranded within the meaning of the FDCA; (d) are not an article that may not, under the FDCA, be introduced into interstate commerce. The foregoing warranties shall not apply to the extent any Product has been modified by Buyer or any third party without Seller's consent, of misuse of any Product or of defects which arise from negligent storage or handling of any Product by Seller, its carriers, distributors, customers or any other third party. Buyer shall inspect all Products immediately upon delivery and provide prompt written notice to Seller's Customer Care department of any claimed damage or loss in transit where Seller has arranged for shipment or any failure of a Product to conform to Seller's warranties herein. Buyer shall provide Seller with an opportunity to inspect any Products claimed to be damaged or missing or to breach any of Seller's warranties set forth in this Section 8, and Buyer shall not return such Product without Seller's consent. If Buyer fails to notify Seller and provide Seller with an opportunity to inspect the Products in question within six (6) months of delivery (or, if earlier, before any Product is mixed with or incorporated into another product, substance or ingredient or used in any process), Seller shall have no liability for such defect, damage or loss. If Seller determines that a Product breached any of the above warranties, Seller shall have the option, in its absolute discretion, of refunding the purchase price paid by Buyer, or of replacing the Product or such portion thereof as failed to comply with Seller's warranties set forth in this Section 6. Such remedies will be Buyer's sole and exclusive remedies for any breach of Seller's warranties in relation to any Product. THE ABOVE ARE THE ONLY REPRESENTATIONS AND WARRANTIES GIVEN BY SELLER TO BUYER AND ARE IN PLACE OF AND EXCLUDE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, TO THE EXTENT PERMITTED UNDER LAW.
7. DISCLAIMER; LIMIT OF SELLER'S LIABILITY. SELLER'S AGGREGATE LIABILITY TO BUYER ARISING FROM, RELATING TO OR IN CONNECTION WITH SALES OF ANY PRODUCT TO BUYER WILL NOT EXCEED THE PURCHASE PRICE PAID TO SELLER UNDER THE CONTRACT FOR SUCH PRODUCT OR PRODUCTS. UNDER NO CIRCUMSTANCES WILL SELLER BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR REVENUE, LOSS OF USE OF GOODS, PRODUCTION DOWNTIME OR CLAIMS MADE BY CUSTOMERS OF BUYER FOR, AMONG OTHER THINGS, PENALTIES, FINES OR OTHER SIMILAR DAMAGES. Buyer agrees to indemnify Seller and to hold Seller harmless from and against any and all claims asserted or judgments entered against Seller on account of any such incidental, consequential or special damages arising out of the sale by Seller of any Product and agrees to reimburse Seller for any and all expenses, including attorney's fees, incurred in connection therewith,
8. Time Limit on Claims. No claim, action, suit or proceeding of any kind shall be brought against Seller based on or arising out of an alleged breach of these Terms more than one year following delivery of the Products
9. Dairy Products. For reasons beyond Seller's control, dairy products can under certain circumstances naturally develop flavor and/or odor incidents. Buyer agrees that upon receipt of any such Products it shall perform such tests upon the products as may be necessary to ensure that the products will be suitable for the particular applications intended for the products by Buyer.
10. Storage and Handling. Buyer shall fully comply with any instructions issued by Seller in respect of storage or handling of Products. Where Products are supplied with a "best before" or "use by" date, buyer shall not sell, display or store such Products where the "best before" or "use by" date supplied has expired.
11. Taxes. All U.S. federal, state, foreign and local taxes and similar governmental charges (other than general property taxes and income taxes measured by the net income of Seller) including any interest or penalties thereon, now or hereafter imposed directly or indirectly on Seller or required to be collected directly or indirectly by Seller for the manufacture, production, sale, delivery, consumption or use of Products (including, but not by way of limitation, sales, use, purchase, value added, gross income, excise, privilege and license taxes or fees, surcharges, and import and export duties) shall be charged to and remitted by Buyer to Seller.
12. Delays; Events Beyond Seller's Control. Seller shall not in any event be liable for any nonperformance or delay directly or indirectly caused by any factor outside Seller's control including, but not limited to, war, civic disturbances or riot, industrial dispute or action, action of central or local government, unavailability of materials, governmental restriction on export or import, failure of or shortages of transport, equipment, fuel or power, failure of supplier, carrier or subcontractor to deliver on time, storm or other bad weather, fire, flood, natural disaster, pandemic, epidemic or other health emergency or other act of God. Seller shall give prompt notice of such factor beyond its control to Buyer. If such factor beyond Seller's control continues to exist beyond 30 days after the date fixed for Seller's performance hereunder, or if the effects of such factor are not capable of being overcome within 30 days, Seller may cancel this Agreement without liability upon notice to Buyer unless other arrangements agreeable to both parties have been negotiated.
13. Increased Prices. Seller reserves the right to increase the price of Products that are the subject of a confirmed order in proportion to any increase of costs to Seller between the date of acceptance of the order by Seller and the date of delivery (including, but not by way of limitation, those relating to exchange rates, labor, materials, transport and taxes) or where the increase is due to any act or default of Buyer, including the cancellation by Buyer of part of any order.
14. Buyer’s Compliance with Laws. Buyer agrees that it is solely responsible for compliance with all applicable federal, state or provincial and local law, ordinances, regulations, rules and standards relating to the sale or use of Products after delivery by Seller.
15. No Substitution. If any brand of goods has been specified on the face of Buyer's order, Seller shall not be obligated to substitute any other brand of goods in fulfillment of this Agreement.
16. Seller’s Right to Terminate. If Buyer commits any breach of any of the conditions of this Agreement, or if Buyer becomes insolvent or generally fails to pay, or admits in writing its inability to pay, debts as they become due or if Buyer applies for, consents to, or acquiesces in the appointment of, a trustee, receiver or other custodian of Buyer or any of it property, or makes a general assignment for the benefit of creditors, or in the absence of such application, consent or acquiescence, a trustee, receiver or other custodian is appointed for Buyer, or for a substantial part of its property, or if any bankruptcy, reorganization, debt arrangement, or other case or proceeding is commenced in respect of Buyer, and if such case or proceeding is not commenced by Buyer, it is consented to or acquiesced in by Buyer, or if Buyer takes any corporate action to authorize, or in furtherance of, any of the foregoing, then Seller may, without prejudice to any other rights which may have accrued or which may accrue to it, terminate this Agreement by notice in writing or may defer shipment until the situation is remedied,
17. Assignment. Buyer shall not assign this Contract or any benefit thereunder without Seller's prior written consent, Seller may assign, or in any other way transfer, this Contract or any right or obligation hereunder, whether by operation of law or otherwise, to an entity with which Seller will merge or consolidate, an entity that shall purchase all or substantially all of Seller's business or assets related to this Contract; or any affiliate of Seller.
18. No Continuing Waiver. Any waiver of any provision of this Contract shall not constitute a waiver of any continuing or succeeding breach of such provision, a waiver or modification of the provision itself or of any other rights arising under this Contract.
19. Severability. If any provision of these Terms is determined to be unlawful, invalid or unenforceable, the validity of any other terms or provisions hereof shall not be affected and shall continue to be valid and enforceable to the extent permitted by applicable law.
20. Governing Law. These Terms and the Contract of which they form a part shall be governed by and construed in accordance with the laws of the State of Wisconsin, without regard to its conflict of laws principles. Seller and Buyer agree to submit to the exclusive jurisdiction of the courts of the State of Wisconsin or any federal court with its situs in the State of Wisconsin in the event of any dispute relating to the subject matter hereof.