BETTER NUTRITIONALS, LLC
TERMS AND CONDITIONS OF SALE
a. All sales of goods (“Goods”) by Better Nutritionals, LLC and/or any of its affiliates (individually or collectively, as applicable “Seller”) to a buyer of such goods (“Buyer”) are subject to and governed by these terms and conditions of sale (“Terms and Conditions”). Seller hereby rejects any and all other terms (including Buyer’s purchase order terms and conditions) offered by Buyer or upon which Buyer may condition any purchase order or to which Buyer may limit Seller’s acceptance. SELLER’S ACCEPTANCE OF BUYER’S PURCHASE ORDERS AND/OR SELLER’S PERFORMANCE IN CONNECTION WITH SUCH PURCHASE ORDERS ARE EXPRESSLY CONDITIONAL ON BUYER’S ASSENT TO THESE TERMS AND CONDITIONS. SELLER HEREBY REJECTS ANY AND ALL OTHER TERMS REGARDLESS OF WHETHER BUYER’S PURCHASE ORDER OR SUCH OTHER TERMS ARE CONSTRUED AS AN OFFER, COUNTER-OFFER OR OTHERWISE, OR WHETHER SUCH OTHER TERMS ARE CONSTRUED AS ADDITIONS TO OR DIFFER FROM THESE TERMS AND CONDITIONS. UNLESS BUYER NOTIFIES SELLER IN WRITING THAT BUYER DOES NOT ACCEPT THESE TERMS AND CONDITIONS AS SOON AS PRACTICABLE AFTER FIRST RECEIVING THEM, BUYER SHALL BE DEEMED TO HAVE ACCEPTED THESE TERMS AND CONDITIONS AND, NOTWITHSTANDING ANYTHING TO THE CONTRARY, BUYER’S ACCEPTANCE OR USE OF THE GOODS SHALL BE DEEMED BUYER’S ASSENT TO THESE CONDITIONS OF SALE. ISSUANCE OF A NEW PURCHASE ORDER WITH ADDITIONAL OR DIFFERENT TERMS IS NOT CONSIDERED A WRITTEN OBJECTION TO THE SPECIFIC TERMS OF SALE NOTED IN THIS AGREEMENT. These Terms and Conditions are deemed to be a part of, and incorporated into, every sales transaction for Goods between Buyer and Seller. If Seller and Buyer have executed a written contract specifically governing the sale of specific Goods, then, solely with respect to such specific Goods, such contract’s terms and conditions shall apply to the extent that matters are covered by such written contract, and to the extent any matters are not covered by such executed written contract but are covered by these Terms and Conditions, then these Terms and Conditions shall apply and be additions to such written contract to such extent.
b. Orders of Good by Buyer shall not bind Seller until accepted by Seller via written order confirmation (the “Order Confirmation”); provided, however, if Seller does not issue an Order Confirmation, then acceptance by Seller shall be deemed to occur upon commencement of production by Seller of the ordered Goods.
a. The Goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order, subject to availability of finished Goods. Seller shall not be liable for any delays, loss or damage in transit.
b. Unless otherwise agreed in writing by the parties, Seller shall arrange for the Goods to be available for pickup by Buyer at Seller’s facility located at either (1) 3390 Horseless Carriage Drive, Norco, CA 92860 or (2) 17120 S. Figueroa Street, Gardena, CA 90248 (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods within two (2) days of Seller’s written notice that the Goods have been delivered to the Delivery Point.
c. Seller may, in its sole discretion, without liability or penalty, fulfill partial orders of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
d. If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s notice that the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
3. Quantity. Seller reserves the right to: (i) increase quantity ordered to nearest standard shipping unit; (ii) ship ordered Goods within a range of plus or minus twenty percent (20%); or (iii) both. Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods at the price set forth in the Order Confirmation adjusted pro rata.
4. Shipping Terms. Unless otherwise specifically agreed by the parties on the face of the Order Confirmation, all shipments are FOB Delivery Point.
5. Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point; provided, however, notwithstanding the foregoing, Goods for which delivery is suspended pending payment by Buyer and/or Goods for which delivery is wrongfully rejected or not accepted by Buyer shall be held and stored by Seller at the sole risk and expense of Buyer. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the California Uniform Commercial Code.
6. Amendment and Modification. These Terms and Conditions may only be amended or modified in a writing which specifically states that it amends these Terms and Conditions and is signed by an authorized representative of each party.
7. Inspection and Rejection of Nonconforming Goods.
a. Buyer shall inspect the Goods upon receipt, but in no event later than three (3) days following receipt thereof (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
b. If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility located at 3390 Horseless Carriage Drive, Norco, CA 92860. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.
c. Buyer acknowledges and agrees that the remedies set forth in Section 7(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 7(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
a. Buyer shall purchase the Goods from Seller at price and currency stated in the Order Confirmation (the “Price”) which shall be considered the price and currency agreed between Buyer and Seller for the sale of Goods. In case of multiple or future deliveries, the price and currency of such deliveries are subject to revision by Seller at any time as set forth in subsequent Order Confirmation(s) relating to such deliveries.
b. Unless otherwise expressly agreed in writing by Seller and Buyer, (i) Seller’s price for the Goods does not include any applicable tax, duty, excise, levy or charge (including value-added taxes) in any jurisdiction in relation to the Goods or the delivery thereof, and (ii) Buyer is responsible for payment of all such taxes (excluding income taxes owed by Seller on account of the sale of the Goods), duties, excises, levies or charges (including value-added taxes) which Seller may be required to pay to any authority (National, State or Local) upon the sale, production or transportation of the Goods.
9. Invoices and Payment.
a. Seller shall be entitled to invoice Buyer on or at any time after shipment of the Goods. Buyer shall pay all invoiced amounts in accordance with the payment terms stated in the Order Confirmation. Buyer shall make all payments hereunder by check or electronic transfer and in U.S. dollars.
b. Buyer shall pay interest on all late payments at the highest rate permissible under applicable law, calculated daily and compounded monthly.
c. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off, deductions or counterclaims, whether relating to Seller’s breach, bankruptcy or otherwise. Buyer shall promptly reimburse Seller for all costs and expenses (including, without limitation, reasonable attorney’s fees, expert fees, court costs and other legal fees) incurred by Seller in connection with the collection of any amounts not paid on-time in accordance with such payment terms. In addition to all other remedies available under these Terms and Conditions or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for ten (10) days following written notice thereof.
10. Representations and Warranties. In addition to any warranties available under applicable law, whether express or implied, Seller expressly represents and warrants as follows:
a. Goods are of good and merchantable quality, fit and safe for consumer use, and fit for the particular use to be made of the Goods by Buyer and Buyer’s customers and consumers.
b. Goods and services conform in every manner to Buyer’s specifications, if applicable, and to the samples, specifications and other descriptions provided by Seller to Buyer.
c. Goods are manufactured, packaged, stored and shipped in compliance with Buyer’s quality control and quality assurance standards.
d. Seller has full and complete title to the Goods, and title to the Goods delivered to Buyer are free of all liens, claims, debts and rights of third parties.
e. Goods are free from any defects, whether patent or latent, including but not limited to faults in design, material and manufacturing.
f. Goods are manufactured, packaged, stored and shipped in compliance with all applicable federal, state and local laws, regulations, rules, guidelines, ordinances and standards in all jurisdictions throughout the United States of America where the Goods may be sold, including without limitation the applicable standards of Good Manufacturing Practices promulgated under the Food, Drug and Cosmetic Act, 21 U.S.C. § 301, et. seq. (hereinafter the “FDC Act”).
g. For a period of at least one (1) year after the expiry date of the Goods, Seller shall keep true, accurate and complete records of manufacture, storage, shipment and sale of the Goods in such form as Buyer requires.
Seller’s acceptance of a purchase order shall constitute a continuing guarantee that the Goods (i) are not adulterated, misbranded or mislabeled within the meaning of the FDC Act to the extent applicable to the Goods, (ii) are not an article which, under the FDC Act, may not be introduced into interstate commerce, and (iii) conform to the requirements of sub-Paragraphs (A)-(G) set forth above.
Seller shall not be liable for a breach of the warranty set forth in Section 10 unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within five (5) days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Goods are defective.
Seller shall not be liable for a breach of the warranty set forth in Section 10 if: (i) Buyer makes any further use of such Goods after giving such notice; or (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage or use of the Goods.
Except as otherwise agreed upon by Seller and Buyer in a signed writing, Seller reserves the right to make changes to the specifications for the Goods and/or to the processes and/or locations for manufacturing the Goods without notification to or consent from Buyer. SELLER HEREBY DISCLAIMS AND REJECTS ANY AND ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO THE GOODS, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF FITNESS FOR ANY PURPOSE, OF MERCHANTIBILITY OR OF NON-INFRINGEMENT.
11. Breach of Warranty. In the event Goods fail to meet the warranties above or otherwise fails to conform to the Terms and Conditions or any supplemental agreement, Seller may at its option either: (i) replace such Goods or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller.
THE REMEDIES SET FORTH IN SECTION 11 SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE WARRANTIES SET FORTH IN SECTION 10.
12. Limitation of Liability. IN NO EVENT WILL SELLER’S AGGREGATE LIABILITY TO BUYER FOR ALL DAMAGES ARISING FROM ANY AND ALL CLAIMS RELATED TO ANY BREACH OF THIS AGREEMENT, NON-DELIVERY OF ANY GOODS, OR PROVISION OF ANY GOODS, REGARDLESS OF WHETHER THE FORM OF ACTION IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTE, OR OTHERWISE, EXCEED THE TOTAL PRICE PAID BY BUYER TO SELLER FOR THE SPECFIC GOODS IN RESPECT OF WHICH DAMAGES ARE CLAIMED. NO CLAIM SHALL BE ALLOWED FOR GOODS THAT IN ANY MANNER HAS BEEN PROCESSED OR COMINGLED WITH ANY THIRD-PARTY PRODUCT. NO CHARGE OR EXPENSE INCIDENT TO ANY CLAIMS WILL BE ALLOWED UNLESS APPROVED BY AN AUTHORIZED REPRESENTATIVE OF SELLER IN ADVANCE. IN ADDITION, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BUYER WAIVES ANY CLAIM TO INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR MULTIPLIED DAMAGES, OR LOST PROFITS, LOST REVENUES OR LOSS OF BUSINESS REPUTATION (IN EACH CASE REGARDLESS OF WHETHER CATEGORIZED AS DIRECT OR CONSEQUENTIAL DAMAGES), ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, NON-DELIVERY OF ANY GOODS OR PROVISION OF ANY GOODS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, BUYER WAIVES AND AGREES NOT TO ASSERT NON-CONTRACTUAL CLAIMS ARISING UNDER STATE LAW RELATING TO ANY BREACH OF THIS AGREEMENT, NON-DELIVERY OF ANY GOODS, OR PROVISION OF ANY GOODS, AND THESE TERMS AND CONDITIONS SHALL BE DEEMED TO INCLUDE SUCH LANGUAGE AS MAY BE REQUIRED TO AFFECT SUCH WAIVER.
13. Information; Buyer’s Finished Products. Seller may provide Buyer with information regarding the use of the Goods in Buyer’s product. With regard to such occurrences, Buyer acknowledges that Seller is in no way responsible for Buyer’s use of the Goods or Buyer’s marketing or sale of its finished products. Buyer acknowledges that Seller cannot anticipate all conditions under which the Goods may be used, and therefore Buyer agrees to conduct its own tests to determine the safety and suitability of the Goods for Buyer’s purposes. Without limiting the foregoing, Seller may furnish copies of and/or direct Buyer to data relating to the Goods (or materials therein) to assist Buyer in determining and/or making claims in relation to Buyer’s finished products. While Seller may provide such data from time to time, Buyer understands and agrees that (i) Seller makes no warranties, express or implied (whether in these Terms and Conditions or any other document or writing provided to Buyer in connection with the transactions contemplated hereby) with respect to such data, (ii) Buyer assumes all risks associated with any use of such data, (iii) Buyer is solely responsible for the evaluation of such data and the determination of the legality of any claims (including general marketing, health, therapeutic, efficacy and any other claims) in relation to Buyer’s finished products, (iv) Buyer hereby releases and forever discharges Seller from any and all liability whatsoever relating to the provision or use of such data, (v) Buyer shall treat all such data a confidential information of Seller and shall not disclose such data to any third party without the prior written consent of Seller, and (vi) Buyer agrees to indemnify and save Seller harmless of and from any and all losses, costs (including, without limitation, reasonable attorneys’ fees and court costs) and claims arising out of, or in connection with, the marketing and sale of Buyer’s finished products.
14. Intellectual Property. All intellectual property rights arising out of or in connection with the Goods are the exclusive property of Seller. The sale of Goods shall not, by implication or otherwise, convey any license or other rights under any intellectual property right relating to the Goods, and Buyer explicitly assumes all risks of any intellectual property infringement by reason of the use of the Goods, whether singularly or in combination with other materials or in any processing operation.
15. Compliance with Law. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
16. Termination. In addition to any remedies that may be provided under these Terms and Conditions, Seller shall be entitled to (i) suspend by written notice to Buyer any further performance of a sale or delivery set forth in an Order Confirmation, (ii) demand return and take repossession of any delivered Goods which have not been timely paid for (and demand payment/reimbursement of all costs relating to the recovery of the Goods), and/or (iii) terminate any purchase order and its associated Order Confirmation, without prejudice to its right to claim alternative or additional damages, if Buyer (a) fails to pay any amount when due under this Agreement, (b) has not otherwise performed or complied with any of these Terms and Conditions, in whole or in part, or if Seller reasonably believes that Buyer is or will be unable to meet its obligations under the Order Confirmation and Buyer fails to offer adequate security for the performance of its obligations under such Order Confirmation, or (c) any assets of Buyer are attached or if Buyer becomes insolvent or unable to pay its debts, or goes into liquidation (other than for the purpose of a reorganization), or any bankruptcy proceeding shall be instituted by or against Buyer, or if a trustee or receiver or administrator is appointed for all or a substantial part of the assets of Buyer or Buyer makes any assignment for the benefit of its creditors. If one of the events referred to in this section occurs, all claims Seller may have against Buyer on whatever basis will immediately become due, including the direct costs and expenses incurred by Seller.
17. Waiver. No waiver by Seller of any of the provisions of these Terms and Conditions are effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms and Conditions operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
18. Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, formulas, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with these Terms and Conditions is confidential, solely for the use of performing under these Terms and Conditions and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this section. This section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
19. Force Majeure. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of these Terms and Conditions when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, health pandemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), machinery breakages, or restraints or delays affecting carriers, or inability or delay in obtaining supplies of adequate or suitable materials, shortages of raw materials or utilities, materials or telecommunication breakdown, or power outage, or delay in delivery or defects in goods supplied by Seller’s suppliers or subcontractors. If for any reason including but not limited to force majeure event described above, Seller is unable to supply the total demand for Goods, Seller may distribute its available supply among any or all purchasers, as well as departments and divisions of Seller, on such basis as it may deem fair and practical, without liability for any failure of performance which may result therefrom.
20. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under these Terms and Conditions without the prior written consent of Seller. Any purported assignment or delegation in violation of this section is null and void. No assignment or delegation relieves Buyer of any of its obligations under these Terms and Conditions.
21. Relationship of the Parties. The relationship between the parties 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 the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
22. No Third-Party Beneficiaries. these Terms and Conditions are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms and Conditions.
23. Governing Law. All matters arising out of or relating to these Terms and Conditions are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule.
24. Jurisdiction. Any legal suit, action or proceeding arising out of or relating to these Terms and Conditions shall be instituted in the federal or state courts sitting in Riverside County, California, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
25. Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Order Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms and Conditions, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
26. Severability. If any term or provision of these Terms and Conditions is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction.
27. Survival. Provisions of these Terms and Conditions which by their nature should apply beyond their terms will remain in force after any termination or expiration of this agreement including, but not limited to, Sections 11, 12, 13, 14, 15, 18, 19, 20, 21, 22, 23 and 24.
28. Modification. No change, modification, or amendment of these Terms and Conditions shall be effective unless made via separate written agreement signed by authorized representatives of both Buyer and Supplier. Each such change, modification, or amendment shall apply only to the specific purchase order to which the change, modification or amendment relates and shall not apply to any future purchase order.
REVISED: March 1, 2022