Terms & Conditions of Purchase

 

As November 18, 2023

 

All purchases “Purchase Order” shall be subject to the Terms and Conditions listed below and shall apply to the purchase of goods and services (“Products”) from the supplier (“Seller”) to the buyer, Cereal Ingredients, Inc. and/or CII Missouri, LLC (collectively “CII”). CII reserves the right to cancel the applicable Purchase Order if the conditions specified are not met.

 

1. 1. 1. ACCEPTANCE OF TERMS. Seller’s performance under a Purchase Order shall constitute Seller’s acceptance of all, and only, these Terms and Conditions. Any acknowledgement by Seller which contains terms in addition to or inconsistent with these terms or specifications, an order in question, or rejection of any terms of an order, shall be deemed a counteroffer to CII and shall not be binding unless accepted in writing by CII. Acceptance of Products delivered under a Purchase Order shall not constitute CII’s acceptance of Seller’s terms and conditions.
      2. PRICING AND TERMS.
         1. Seller will confirm the Purchase Order (“Purchase Order Confirmation”) within 24 hours of receipt from CII. The Purchase Order Confirmation will include the (i) price of the Products, (ii) the quantity of Products, and (iii) any other costs and charges. If Seller fails to provide proper Purchase Order Confirmation, CII shall only be responsible for payment of the amount set forth in the Purchase Order.
         2. No Product price increase shall be effective unless Seller has notified CII in writing thirty (30) days prior to proposed implementation date.
         3. If no price is specified on the Purchase Order, CII will not be obligated to purchase the Products covered by the Purchase Order unless the price for said Products is equal to or less than the price of the same or similar Products most recently purchased by CII.
         4. The prices and terms for the Products purchased hereunder shall be the lowest prices and the best terms for which Seller is selling such Products.
      3. PAYMENTS. Unless otherwise agreed upon in writing by CII and Seller, all payments due hereunder to Seller shall be paid to Seller in currency stated on Purchase Order not later than sixty (60) days following the later of (a) delivery date, (b) the date of CII’s acceptance of the Products, or (c) CII’s receipt of a properly prepared invoice and certifications of conformance of Products to the specifications, if applicable.
      4. WARRANTY. In accepting the Purchase Order, Seller guarantees the Products against defects in workmanship and material for a period of no less than six (6) months after receipt and acceptance. In addition to all warranties prescribed by law, Seller specifically represents, warrants, and guarantees it has good and marketable title to Products prior to delivery to CII and that all Products when received by CII from Seller will (a) strictly conform to the applicable documentation, specifications, samples or other descriptions set forth in the applicable Purchase Order or represented by the Seller to CII; (b) be free from defects in design, material, workmanship, and manufacture; (c) be of good merchantable quality and fit for the known purposes for which it was sold; and (d) be free and clear of all liens, encumbrances, and the rights of third parties. The foregoing warranties are in addition to all other warranties, whether express or implied, and will survive delivery, inspection, acceptance, and payment by CII.
      5. PACKING. Seller shall, at its own expense, preserve, pack, package, and handle the Products to protect it from loss or damage due to weather or shipping and in accordance with good commercial practice and CII’s specifications. The applicable Purchase Order number shall be plainly visible on every invoice, package, bill of lading, and shipping order provided by Seller. No extra charges will be allowed for packing and shipping unless specified on the applicable Purchase Order.
      6. SHIPMENT AND DELIVERY. Time is of the essence for all Purchase Orders. Seller shall immediately notify CII in the event that Seller’s timely performance is or is likely to be delayed, in whole or in part, and Seller shall provide CII with all available information regarding the reasons for such delay. CII reserves the right to cancel any undelivered Products if (a) special order Products have not yet been produced, or (b) in-stock Products have not shipped. Unless otherwise expressly agreed to in writing, all Products will be delivered to CII’s ship-to address set forth in the Purchase Order without charge to CII for crating or storage. Unless otherwise agreed, all costs and expenses relating to transportation and delivery of the Products specified in the Purchase Order shall be paid solely by the Seller. CII may hold Seller accountable for any loss or additional cost arising from the event of Seller’s cancellation or delay in delivery of Products.
      7. ACCEPTANCE AND REJECTION OF GOODS AND SERVICES. The Products are subject to inspection and approval by CII at its designated destination. CII will have no less than thirty (30) calendar days to complete such inspection. CII reserves the right to reject and refuse acceptance of any Products that are not in accordance with the Purchase Order, CII’s instructions or specifications, Seller’s warranties (express or implied), or that is otherwise unsatisfactory to CII in its reasonable discretion. CII may return, at Seller’s expense, such rejected Products to Seller for replacement, refund, or credit, at CII’s sole option. CII’s payment to Seller for Products prior to timely rejection of such Products shall not be deemed as acceptance by CII and shall be subject to adjustment for errors, shortages, defects in the Products, or other failure of Seller.
      8. PRODUCT RECALL. Seller shall immediately notify CII of the initiation of, or any circumstances relating to the necessity to initiate, a Product recall, withdraw, inventory retrieval, or any other action to remove Products from distribution and sale (a “Recall”). Any and all action taken in connection with a Recall shall be in accordance with FDA policies and other laws and regulations. In the event of a Recall of ingredient, Products or packaging, the Seller should assume liability for any damages or losses incurred by CII, consumers, or stakeholders, except in cases of negligence or willful misconduct by any other parties involved in the distribution chain. All relevant parties participating in the Recall protocol, including suppliers, distributors, and retailers, shall indemnify and hold CII harmless against any claims, costs, damages, or liabilities arising from their negligence or non-compliance. All parties involved in the Recall process shall maintain strict confidentiality regarding sensitive information related to the Recall, except as required by law or regulatory authorities.
      9. CHANGES. CII reserves the right at any time before delivery to make changes in quantities, specifications, delivery destinations and schedules, and methods of shipping and packing. If such changes cause an increase or decrease in prices or in time required for performance, Seller shall notify CII within 48 hours of receipt of such change by Seller of an equitable adjustment. Seller may not modify these Terms and Conditions or change the materials or methods of manufacture Seller uses to complete the Products specified in the applicable Purchase Order without the prior written consent of CII. Such changes will not be binding on CII unless evidenced by a change order issued and signed by CII.
      10. TERMINATION. CII reserves right to terminate the Purchase Order or these Terms and Conditions in whole or in part, at any time for any reason or no reason by written notice to Seller. Under no circumstances will CII have any liability to Seller related to Products that were not shipped by Seller prior to CII’s termination of the applicable Purchase Order.
      11. CONFIDENTIALITY. Seller agrees that any data, specifications, and all other business, product, technical, financial and customer information, and trade secrets it obtains from CII, including information relating to any Purchase Order, shall be deemed confidential (“Confidential Information”) and is the sole property of CII. No Confidential Information may be used by Seller to compete or assist any person or entity to compete in the business of CII. Seller will hold in confidence and will not use or disclose any Confidential Information without CII’s prior written consent and shall similarly bind its employees, consultants, and subcontractors in writing. Seller agrees not to publish or use CII’s name, trademarks or any of its Confidential Information in any advertising, sales promotions, publication or public relations matters without CII’s prior written consent.
      12. COMPLIANCE WITH LAWS AND REGULATIONS. Seller hereby guarantees the fulfillment of this Purchase Order and that the Products shall be manufactured, stored, shipped, and otherwise handled in strict compliance with all applicable federal, state, local and applicable foreign laws, regulations, ordinances, and industry standards.
      13. GOVERNING LAW. 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 Seller and CII hereto consent exclusively to subject matter and in personam jurisdiction and venue in the District Court of Leavenworth County, Kansas or in the United States District Court for the District of Kansas. If a dispute or claim arises as to interpretation, breach or enforcement of any provision of the applicable Purchase Order or these Terms and Conditions, other than enforcement of any provision which would entitle a party to injunctive relief, specific performance, or equitable relief, the parties agree to resolve the dispute or claim in good faith before resorting to any remedies otherwise available at law.
      14. INSURANCE. Seller shall, at its own expense, secure and maintain insurance in full force with reputable insurers such insurance policies against general liability, product liability, property damage, employee liability, and workers compensation. Seller shall annually provide CII a certificate of insurance to indicate compliance with the following minimum requirements, and naming CII as certificate holder:
          1. General liability insurance of $2,000,000 per occurrence and;
          2. Product liability insurance with broad form endorsement (including products, completed operations, contractor’s liability and protective liability) of $2,000,000, and;
          3. Employers liability insurance of $1,000,000, and;
          4. Any statutorily required workers’ compensation insurance.
      15. INDEPENDENT CONTRACTORS. The relationship between CII and Seller is that of independent contractors. Nothing contained in these Terms and Conditions shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between parties, and Seller shall not have the authority to contract for or bind CII in any manner whatsoever.
      16. INDEMNIFICATION. Seller shall indemnify, release, defend, and hold harmless CII, its employees, shareholders, officers, directors, agents, representatives, successors and assigns from and 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 matters) from any and all claims, demands, losses, judgments, damages, costs, expenses or liabilities to any person whatsoever, or damage to any property arising out of or in any way connected with performance of the Purchase Order. If Seller fails to fulfill any of its obligations under these Terms and Conditions, Seller shall pay CII all costs, expenses, and attorney’s fees incurred by CII to establish and enforce CII’s rights under these Terms and Conditions.  The provisions of this paragraph 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.
      17. LIMITATION OF LIABILITY. Notwithstanding anything contained in these Terms and Conditions to the contrary, CII and its affiliates, shareholders, officers, directors, agents, representatives, successors and assigns shall not be liable for, and specifically disclaim, any liability for any lost profits and/or business interruption (whether direct or indirect) and indirect, incidental, consequential (whether direct or indirect) or other damages or losses of any kind, including without limitation, labor costs, loss of use, equipment, thirty 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.
      18. ETHICS. Seller shall comply with similar ethics, values, and mission as described in CII’s Corporate Responsibility Statement, as shown at www.ciifoods.com/responsibility/.
      19. EQUAL OPPORTUNITY. Where applicable, Seller is an Equal Opportunity Employer and shall comply with all required regulations. Seller shall be compliant with all local, state, federal and regional regulations and requirements regarding food manufacturing and fair labor practices. This includes laws and regulations regarding the environment, employment and labor, and food manufacturing. Seller shall provide its staff proper working conditions in a safe environment, compliant with all relevant regulations and laws for health and safety. Seller shall prohibit bribery, corruption, and fraud while fostering honesty, integrity, loyalty, fairness, concern and respect for others abiding by all necessary laws within and outside their organization. CII reserves the right to audit Seller’s facility to ensure appliable regulations are being followed properly.