OFFER AND GOVERNING TERMS. This document is an offer or counteroffer by Cereal Ingredients, Inc. (“CII”) to sell the goods and services (“Products”) described to the buyer to which it is addressed (“Buyer”). This is not an acceptance of any offer made by the Buyer. These Terms and Conditions will accompany any agreement between CII and Buyer on the subject of the sale of the Products described; CII objects to any differing terms. If Buyer cancels any accepted offer, Buyer will be responsible to pay the full price agreed to.
QUOTATION AND PRICE. Written quotations automatically expire fifteen (15) calendar days from the date issued unless sooner terminated by notice. Unless CII specifically agrees to hold prices open for a length of time on CII’s price quotation, all prices are subject to change without notice to Buyer and any unshipped balances on Buyer’s Purchase Orders will be invoiced to and paid by Buyer at CII’s prices in effect at the time of delivery. Any addition to an outstanding Buyer’s Purchase Order will be accepted at prices in effect when the addition is accepted in CII’s sole discretion. Prices on Buyer’s Purchase Orders in effect for over thirty (30) calendar days are subject to being changed by CII. Unless otherwise agreed, CII’s price includes delivery in accordance with this agreement. Unless otherwise specified, all prices quoted are in U.S. dollars.
TERMS OF PAYMENT. CII makes no warranty with respect to price, and CII is free to sell or provide goods and services to other buyers. Unless otherwise expressly agreed to in writing by CII with respect to a specific Buyer’s Purchase Order, all payment due under the invoice and these Terms and Conditions will be paid within thirty (30) calendar days of delivery of the Products. The payment is not deemed to be in full until CII is in receipt of the cleared funds. The time of payment in full shall be of the essence.
TAXES AND DUTIES. Prices quoted do not include taxes or duties of any kind or nature. Unless Buyer furnishes proof of applicable exemption, any manufacturer’s tax, occupation tax, use tax, sales tax, excise tax, value added tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority on or measured by the sale shall be paid by Buyer in addition to the quoted price. If CII is required to pay any such taxes or other charges, Buyer shall reimburse CII on demand.
SECURITIES. All responsibility for and risk relating to the Products passes to the Buyer when the Products leave CII’s shipping dock (“Place of Shipment”). Buyer grants CII a security interest (which shall include a purchase money security interest where it satisfies the criteria therefor) in all CII products in which the Buyer now or hereafter has rights or an interest and all proceeds thereof (including insurance proceeds and including proceeds of proceeds, collectively “Collateral”), until CII has been paid in full (including payment of purchase price together with any applicable taxes, interest, and other costs and charges) as security for such payment. Buyer shall, at its own expense, execute any documents and do such other things as CII deems appropriate to establish, complete, and perfect such security interest.
RISK AND DELIVERY. Any time or date for delivery of Products shall be taken as an estimate made by CII in good faith but shall not be binding upon CII either as a term of contract or otherwise. Time for delivery shall not be of the essence unless previously agreed upon in writing by CII and Buyer. In no circumstances shall CII be liable for any loss or damage sustained by Buyer in consequence of failure to deliver within such time or by such date or in consequence of any other delay in delivery however caused. Risk of loss of or damage to, and responsibility for, Products shall pass to Buyer upon immediate departure from Place of Shipment.
CANCELLATION. Prior to delivery of Products, Buyer’s Purchase Order may only be cancelled with the written consent of CII and upon terms indemnifying CII from all resulting losses and damages. CII shall have the right to modify, cancel and/or refuse to complete Buyer’s Purchase Order for any or no reason, including without limitation if any term or condition contained in these Terms and Conditions is not complied with by Buyer, or if Buyer becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it, proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. In the event of cancellation by CII, or in the event that CII consents to a request by Buyer to stop work or to cancel the whole or part of any Buyer’s Purchase Order, Buyer shall reimburse CII for as follows: (a) any and all work that can be completed within thirty (30) days from the date of notification to stop work on account of cancellation shall be completed, shipped, and paid in full; (b) for work in progress and any materials and supplies procured or for which definite commitments have been made by CII for actual costs incurred, plus twenty (20%); and (c) CII reserves the right to alter the Products without notice to Buyer if the change does not affect the design, form, fit, or function requirements for such Products. Buyer may not under any circumstances cancel any Purchase Order after Products leave the Place of Shipment. Orders for “Special” Products may not be cancelled after acceptance by CII, except by CII. Items of “Special” Products are those that differ from standard CII specifications, have a limited market, or incorporate specification that have been determined for a specific application. Determination of whether Products of or part thereof is “Special” shall be made by CII in its sole discretion.
INSPECTION AND ACCEPTANCE OF PRODUCTS. Buyer shall inspect the Products immediately after receipt and promptly, but in no event later than ten (10) calendar days after receipt, notify CII in writing of any non-conformity or defect. Buyer further agrees that failure to give such prompt notice or the commercial use of the Products shall constitute acceptance. Acceptance shall be final, and Buyer waives the right to revoke any acceptance for any reason, whether or not known to Buyer at the time of such acceptance. The provisions of CII’s warranty shall apply and govern the rights, obligations, and liabilities of CII and Buyer with respect to such nonconformity or defect, provided that under no circumstances shall rejection give rise to any liability of CII for incidental or consequential damages of any kind.
WARRANTY. CII warrants that Products supplied to Buyer will comply with Buyer’s Purchase Order specifications at the time received at the intended shipping destination. CII makes no other warranties, conditions, or representations. All other representations, warranties, and conditions (express or implied, arising by statute or otherwise in law or from a course of dealing) are hereby excluded.
REMEDIES FOR BREACH OF WARRANTY. In any action by Buyer for breach of the warranty by CII, CII’s liability shall be limited exclusively to the remedies of repair, replacement, or reperformance (at CII’s sole discretion) of any defective product covered by the warranty.
LIMITATION OF ACTION. Any action by Buyer for breach of these Terms and Conditions or otherwise related to Buyer’s Purchase Order must be commenced by Buyer within one (1) year after cause of action has occurred.
SPECIFICATION CHANGES. In the event that CII incurs additional expense because of changes in specifications or recipes previously approved by Buyer, or in the event that CII is required to modify the ordered Products, perform any additional work or supply any additional Products, the additional expense shall be added to the purchase price. CII shall have the right, in its sole discretion, to accept or reject any changes in specifications requested by Buyer. In no event shall any changes in specifications be made or accepted thirty (30) days prior to launch date or thereafter.
CONFIDENTIALITY. Any proprietary information concerning CII or its supplier’s products or manufacturing processes which is disclosed to Buyer incident to the performance of this order shall remain CII or its supplier’s property and is disclosed in confidence. This restriction shall include, but not be limited to, any recipe or production techniques, or samples submitted by CII. No use or disclosure by the Buyer of any proprietary information including such recipe or production techniques, or samples, shall be made without the express written consent of CII.
PATENT INDEMNITY. Buyer shall indemnify, defend, and hold CII, its affiliates, and their respective directors, officers, employees, representatives, agents, customers, users, successors, and assigns harmless against all damages, costs, expenses, including all attorney’s fees, paid or incurred in connection with any claim whatsoever arising out of or related to Buyer’s specifications for the Products, including without limitation any claim of infringement of a patent, copyright, trademark, trade secret or other proprietary right.
INTELLECTUAL PROPERTY OWNERSHIP. All intellectual property rights, including copyrights, patents, patent disclosures, inventions (patentable or not), trade dress, trade names, logos, corporate names, domain names, trademarks, service marks, trade secrets, know-how, and other confidential information, together with all derivative works and all goodwill associated therewith, and all other rights in and to all the Products, documents, work product, and other materials (whether or not copyrightable) that are delivered to Buyer under Buyer’s Purchase Order prepared by or on behalf of CII in the course of performing under such Buyer’s Purchase Order, are solely owned by CII. Except as otherwise expressly and specifically provided, no license, transfer, or assignment of proprietary rights from CII to Buyer will occur as a result of Buyer’s Purchase Order. Buyer warrants that any trademarks Buyer requests CII to affix to any Product is owned and authorized for use by Buyer.
DEFAULT AND SELLER’S REMEDIES. In the event of any default by Buyer, all unpaid sums and installments owed to CII shall, at CII’s sole option, become immediately due and payable without notice of any kind to Buyer. In addition to its right of acceleration, CII may pursue any and all remedies allowed by law or in equity. In addition to the foregoing, and not in limitation thereof, CII shall have the right to set off any credits or amounts owed to Buyer against any amounts owed by Buyer to CII.
INDEMNIFICATION BY BUYER. Buyer hereby agrees to indemnify, release, defend, and hold harmless CII, its directors, officers, employees, agents, representatives, successors, and assigns against any and all suits, actions or proceedings at law or in equity (including the costs, expenses, and reasonable attorney’s fees incurred in connection with defense in any such matter) from any and all claims, demands, losses, judgements, damages, costs, expenses, or liabilities, to any person whatsoever (including Buyer’s and CII’s employees or any third party), or damage to any property (including Buyer’s property) arising out of or in any way connected with performance or the furnishing of the Products, regardless of whether any act, omission, negligence (including any act, omission or negligence relating to the manufacture, design, or installation of warnings made or lack thereof with respect to any Product) of CII, its directors, officers, employees, agents, representatives, successors, or assigns caused or contributed thereto. If Buyer fails to fulfill any of its obligations under this section or these Terms and Conditions, Buyer shall pay CII all costs, expenses, and attorney’s fees incurred by CII to establish and enforce CII’s rights under this section of these Terms and Conditions. The provisions of this Section are in addition to any other rights or obligations set forth in these Terms and Conditions and shall survive the expiration, termination, or fulfillment of these Terms and Conditions.
BUYER’S PROPERTY. CII has no duty to insure any property of Buyer placed in CII’s custody, and CII assumes no liability in the event of damage or loss to that property.
LIMITATION OF LIABILITY. Notwithstanding anything contained in this agreement to the contrary, CII and its affiliates shall not be liable for, and specifically disclaim, any liability for any (a) lost profits and/or business interruption (whether direct or indirect); and (b) indirect, incidental, consequential (whether direct or indirect) or other damages or losses of any kind, including without limitation, labor costs, loss of use, equipment, third party repairs, investigation costs, personal injury, emotional or mental distress, penalties, loss of service or personnel, or failure of products to comply with applicable laws; whether or not arising from breach of contract, warranty, negligence, product liability, or otherwise.
GOVERNING LAW AND JURISDICTION. These Terms and Conditions shall be governed by and construed in accordance with the laws and decisions of the jurisdiction of the State of Kansas. Both Buyer and CII hereto consent exclusively to subject matter and in personam jurisdiction and venue in the United State District Court of Kansas. If such court lacks subject matter jurisdiction, then each party hereto consents exclusively to in personam jurisdiction and venue in a court of competent jurisdiction in Leavenworth County, Kansas. Buyer waives any objection or defense that is not personally subject to the jurisdiction of the foregoing courts; that the venue of the action is improper; or that the action, suit, or proceeding is brought in an inconvenient forum.