Sales Terms USA

Any order for products (the " Product " or " Products ") is subject to the prior written acceptance of Jefo Nutrition Inc. and/or its affiliates (" Seller "), as well as credit approval.

The entire agreement between Seller and buyer (" Buyer ") consists of this document and any other document expressly approved in writing by both parties (collectively, the " Agreement ").

1. ACCEPTANCE AND PRICE:

Unless otherwise specified, and given the volatility of markets and ingredients, quotes are valid for twenty-four (24) hours from the date of issue. Prices are firm for orders accepted by Seller during the period specified in the quotation. Seller may apply the prices in effect at the time of delivery, including any surcharge resulting from a change requested by Buyer.

Prices are exclusive of current or future taxes, duties, tariffs or other government levies, which are entirely the responsibility of the Buyer. The terms of payment are those stated in the sales confirmation or acknowledgement of receipt.

If any governmental action prevents the Seller from adjusting or maintaining the planned prices, the Seller may cancel all or part of the Contract, without liability to the Buyer. Each delivery is a separate transaction, payable at maturity. All payments must be made in full, without set-off, withholding, discount, counter-claim or any other adjustment.

2. DELIVERY:

Delivery of the Product to Buyer, and the transfer of title and risk of loss, shall be made upon agreement of the parties in accordance with the most recent Incoterms® in effect — at Seller's site or at such other agreed upon facility (the " Delivery Point ").  Delivery dates are given as an indication.

Buyer grants Seller a chattel mortgage on all Products delivered until full payment of the purchase price and agrees to sign any documents required for such purpose.

Seller may package the Product other than to Buyer's specifications, provided that the packaging is in accordance with commercial usage. The weight of the Products established by the Seller shall prevail, unless there is a manifest error.

3. CONTAINERS (IF APPLICABLE):

Unless otherwise stipulated and in applicable cases only, containers remain the property of Seller. If applicable, the Buyer shall pay a deposit per container, the amount of which shall be fixed by the Seller from time to time.

The deposit is only refunded if the container is returned, freight prepaid, within ninety (90) days of the invoice, in good condition, fully reusable, properly cleaned and free of any residue of Product or other material.

If a container subject to a deposit is not returned under the above terms and conditions, title and responsibility for such container shall be deemed to pass to the Buyer at the Delivery Point, and the deposit shall be definitively acquired by the Seller.

4. FORCE MAJEURE:

(a) The Seller shall not be liable for any failure to perform its obligations resulting directly or indirectly from circumstances beyond its control.

(b) This includes, but is not limited to: natural disasters, accidents, fires, explosions, floods, sabotage, acts of terrorism, governmental measures or requirements, defence or national security obligations, armed conflicts, declared or undeclared acts of war, international sanctions, threats to strategic sea passages, decisions by insurers or shipowners, and any situation that makes transportation or insurance commercially or physically impossible, acts or omissions of suppliers or third parties, adverse weather conditions, as well as any shortage or impossibility of obtaining energy from its usual sources, according to the Seller's usual practices and from its usual sources, labour, equipment, facilities, raw materials, transport, supplies or other resources required. Labour disputes, strikes, lockouts or injunctions shall be deemed beyond the reasonable control of Seller.

(c) Notwithstanding the generality of the foregoing,  in the event of a force majeure, that is namely attributable to, without limitation, war risks, thus translating into increased insurance premiums, security costs, naval escorts, additional fuel costs or additional fees imposed by any type of maritime or other governmental authorities and/or by insurers shall be borne by the Buyer and added to the contract price, even after the order has been confirmed.

(d) In the event of force majeure affecting all or part of the Products or the obligations of the Seller, the Seller may, at its sole discretion, suspend or cancel the corresponding obligations (and those of the Buyer related to such obligations), without affecting the other provisions of the Contract.

(e) If, for any reason, the Seller is unable to supply the quantity of Product provided for in the Contract, the Seller may freely and without liability allocate its available supply among its customers, itself and its affiliates.

(f) Seller may, without liability, terminate any or all of its obligations under this Agreement if Seller believes in good faith that the manufacture, export, import, sale or use of the Product, or any related component, may infringe a patent or intellectual property right of a third party.

5. PRODUCT SAFETY:

BUYER WARRANTS THAT IT WILL TRANSPORT, STORE, HANDLE, USE, DISPOSE OF AND TREAT THE PRODUCTS SAFELY AND IN STRICT COMPLIANCE WITH ALL APPLICABLE LAWS, REGULATIONS AND STANDARDS, AS WELL AS IN ACCORDANCE WITH LABELS, MATERIAL SAFETY DATA SHEETS AND OTHER SAFETY AND HEALTH INFORMATION AND ANY OTHER INFORMATION PROVIDED BY SELLER.

THE SELLER DOES NOT GUARANTEE THE SAFETY OF THE PRODUCT OR ITS USE, ALONE OR IN COMBINATION WITH OTHER SUBSTANCES OR PROCESSES. BUYER IS SOLELY RESPONSIBLE FOR INFORMING ITS EMPLOYEES, CUSTOMERS, AND CONTRACTORS OF ANY HAZARDS ASSOCIATED WITH THE PRODUCT.

BUYER AGREES TO INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FROM ANY AND ALL LIABILITY ARISING IN WHOLE OR IN PART FROM BUYER'S FAILURE TO COMPLY WITH THE PROVISIONS OF THIS AGREEMENT.

6. WARRANTY:

SELLER WARRANTS ONLY THAT THE PRODUCT WILL CONFORM TO THE CONTRACTUAL SPECIFICATIONS AT THE TIME OF DELIVERY TO BUYER. ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE DISCLAIMED. BUYER IS REQUIRED TO INSPECT THE PRODUCT UPON DELIVERY AND TO NOTIFY SELLER IN WRITING OF ANY CLAIM OF NONCONFORMITY AFFECTING THE PRODUCT WITHIN TEN (10) CALENDAR DAYS OF SUCH DELIVERY. FAILURE TO GIVE SUCH WRITTEN NOTICE WITHIN THE TIME PERIOD PROVIDED SHALL CONSTITUTE AN IRREVOCABLE ACCEPTANCE BY PURCHASER THAT THE PRODUCT IS IN CONFORMITY AND A WAIVER OF ANY SUBSEQUENT CLAIMS OF NONCONFORMITY.

7. LIABILITY:

Seller's liability under this Agreement is limited to the amount of the purchase price of the Product that is the subject of the claim.

Any technical or other advice provided by Seller, whether requested by Buyer or not, regarding the Product, its processing, manufacture, use or resale, shall be given free of charge. The Seller assumes no liability in this regard, and the Buyer bears the sole risk.

EXCEPT AS OTHERWISE PROVIDED IN PARAGRAPH 7, IN NO EVENT SHALL SELLER BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL THEORY.

In the event that the Buyer's claim is accepted by the Seller and as the Buyer's sole remedy, the Seller undertakes towards the Buyer, within a reasonable time and at its sole discretion, either to (i) provide the Buyer with an identical or equivalent replacement Product free of charge, including shipping costs, or (ii) refund the purchase price of the Product after the Product has been returned. No replacement or return for credit will be accepted without the prior assignment of a return authorization number by the Seller.

8. TIME LIMITS FOR FILING AN APPEAL:

Subject to paragraphs 6 and 7 above, any legal action arising out of or relating to this Agreement or relating to the Product shall be barred within one (1) year from the time that the cause of action arose.

If the Buyer fails to take legal action within this period, the Seller may oppose a complete estoppel to any such claim or action.

9. MANUFACTURING PROCESS AND CONFIDENTIAL INFORMATION:

All manufacturing processes, designs, formulas, data and other technical information of Seller or its affiliates remain their exclusive property and are strictly confidential. The Buyer does not hold any rights to these elements and may not disclose their content to third parties under any circumstances.

Nothing in this Agreement shall be construed as an undertaking by Seller to grant, directly or indirectly, any license, right, title or interest in any patent, patent application, know-how, copyright, trademark, trade secret or other proprietary right of Seller.

10. BUYER'S CREDIT/COLLECTION:

Seller may, without prejudice to any other rights and remedies of Seller, terminate this Agreement or suspend deliveries if Buyer fails to pay for delivery in accordance with the agreed payment terms. If Seller considers, in its sole discretion, that Buyer's creditworthiness is insufficient, Seller may require advance payment or a satisfactory guarantee for any future deliveries as well as for Products already delivered.
 

Buyer shall bear all costs, including attorneys' fees and other expenses incurred by Seller, in enforcing the terms and conditions of this Agreement or in successfully defending any claim brought by Buyer.

11. EXPORT COMPLIANCE:

Buyer warrants that it will not export any Products, other materials or information from Seller or its affiliates, in violation of applicable laws and regulations.

12. ENFORCEABILITY/ASSIGNMENT:

This Agreement shall be binding on the successors and assigns of Buyer and Seller, provided, however,  that Buyer shall not assign this Agreement in whole or in part without Seller's prior written consent.

13. WAIVER/SEVERABILITY:

(a) Seller's failure to enforce any provision of this Agreement shall not constitute a waiver of that or any other provision. Any waiver by Seller is valid only if expressed in a separate, signed writing, and may not arise from any trade practice or usage.

(b) If any provision of this Agreement is held to be invalid, in whole or in part, such invalidity shall not affect the validity of the remaining provisions.

(c) Without prejudice to the foregoing, any provision of any purchase order or other document issued by Buyer that is inconsistent with this Agreement shall be void and unenforceable against Seller, even in the event of performance or payment.

14. GOVERNING LAW - ARBITRATION:

This Agreement shall be governed by and interpreted and construed in accordance with the Laws of the State of New-York applicable therein. The Parties agree, in respect of any controversy or claim arising from or relating to this Agreement or the breach thereof shall be settled by arbitration administered by the American Arbitration Association under its Arbitration Rules and it could be executed in any court having jurisdiction thereof.  The Parties agree to elect the judicial district of Manhattan, New-York City as the proper forum for the hearing of said claims or said legal proceedings.