- CA Supply Chain Act
- P.O. Terms and Conditions
The Site and the information, features and services available through the Site may be referred to herein collectively as the “Service”. Unless explicitly stated otherwise, any new features or services that augment or enhance the Service in the future shall be considered part of the Service and subject to these TOU. The Service is provided primarily for informational purposes, and is not guaranteed. We shall not be responsible or liable for the accuracy, completeness, usefulness or availability of any information or other content, data, text, URLs, graphics, audio and video clips, advertising or any other materials (collectively, the “Content”) transmitted or made available via the Service. We shall not be responsible or liable for any decisions made in reliance on such information.
The Site may require registration or may otherwise ask you to provide information to participate in certain features or to access certain content. As part of the registration and account creation process, you will select a password and provide us with certain registration information. You are solely responsible for maintaining the confidentiality of your password(s) and for all usage or activity on your account, including the use of your account by any person using your password(s). If you choose to register with the Service or otherwise provide personal or other information to the Service, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form or other areas of the Service, and (b) maintain and promptly update such information to keep it true, accurate, current and complete. If you provide any information to us that is untrue, inaccurate, not current or incomplete, or if we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
Third Party Websites
The Service may provide links to websites or resources outside of the Site. Because we have no control over external sites and resources, you acknowledge and agree that we are not responsible for the availability of such sites or resources, and do not endorse and are not responsible or liable for any Content, advertising, goods, services or other materials on, available through or provided by such sites or resources. Your correspondence or business dealings with, or participation in promotions of, any websites that you find or link to through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such websites. You agree that we shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of links to such websites on the Service.
Social Media Websites
If you choose to use social media connect functions on the Site, you acknowledge and agree to abide by the relevant terms and conditions of each respective social media website that we may utilize. The terms and conditions for the social media websites may be found on each respective social media website. This function is intended to enable you to participate in certain features or to access certain content and enable us to connect with social media websites so that you can send newsfeeds about your activities to each of these websites. Such social media websites may also be able to use information about action you take on our Site. However, note that where you choose to publish information on the interactive parts of our Site outside of these privacy settings, or in any way other than through a social media website, that information will not be protected by us. It is information in the public domain, which may be accessed by any person using the Web in any part of the world and can be found using independent search engines. If you choose to post information to the interactive parts of our Site in this manner, you do so at your own risk. In addition, you acknowledge and agree that we are not responsible for the availability of these websites, or any other social media websites that we may add to the connect function, and do not endorse and is not responsible or liable for any Content, advertising, goods, services or other materials on, available through or provided by such websites or resources.
Product pages, blog articles, or other interactive areas that are or may be offered on the Site ("User Forums") are provided to give users a forum to express their opinions and share their ideas and information. The individual who posts content in the User Forums ("Community Content") is responsible for the reliability, accuracy, and truthfulness of such content, and we have no control over the same. Additionally, we have no control over whether any such posted material is of a nature that users will find offensive, distasteful or otherwise unacceptable and expressly disclaims any responsibility for such material.
We do not and cannot review every message posted by users in the User Forums, and is not responsible for the content of these messages or the views or opinions expressed by the users of the User Forums. Information disclosed in the User Forums is by design revealed to the public. We reserve the right, but are not obligated, to delete, move or edit content, in whole or in part, submitted by you to the Site for any reason in our sole discretion. In addition, we may delete, move, edit or disclose the contents of messages when it is required to do so by law or in a good faith belief that such action is necessary to protect and defend our rights and property or to protect the safety of our users or the public. In no event do we assume any obligation to monitor the User Forums or remove any specific material.
You understand that the uploading to and/or posting of any Community Content in any User Forum shall not be subject to any obligation of confidence on the part of Company, and we shall not be liable for any use or disclosure of any Community Content.
Restrictions on Use:
In consideration for your use of the User Forums and functionality, you agree to comply with the "Community Guidelines" set forth below. Without limiting our other rights and remedies, individuals who violate the following Community Guidelines may, at our sole discretion, be permanently banned from using the Site:
a. harass, stalk or otherwise abuse another user;
b. transmit, post, send, upload, distribute, submit or otherwise make available any content that is false, harmful, threatening, abusive, tortious, defamatory, libelous, disparaging (including disparaging of Quest Nutrition), vulgar, obscene, pornographic or that promotes violence, racial hatred, terrorism or illegal acts, or is otherwise objectionable (as determined by us in our sole discretion);
c. transmit, post, send, upload, distribute, submit or otherwise make available any content that is unlawful or infringes, violates or misappropriates any patent, trademark, trade identity right, trade secret, publicity right, privacy right, copyright or any other intellectual property or any other rights of any third party;
d. transmit, post, send, upload, distribute, submit or otherwise make available any viruses, Trojan horses or other harmful, disruptive or destructive files or material that interferes with any third party's use and enjoyment of the Site;
e. impersonate any person or entity, or otherwise disguise the origin of any content transmitted through the Site or to Quest Nutrition, including forging any TCP/IP packet header or any part of the header information in any transmission to the Site for any reason;
f. transmit, post, send, upload, distribute, submit or otherwise make available through the Site any personal advertising, junk mail, spam, chain letters, pyramid schemes or offer for sale of any products or services, except in areas, if any, specifically designated for such purposes;
g. violate any applicable local, state, federal or international law, rule or regulation;
h. transmit, post, send, upload, distribute, submit or otherwise make available through the Site any content containing any solicitation of funds, promotion, advertising, or solicitation for goods or services. You also hereby acknowledge that you are prohibited from soliciting other guests to join or become members of any commercial online service or other organization;
i. collect or harvest the information of any user or otherwise access the Site using automated means (including but not limited to harvesting bots, robots, spiders or scrapers);
j. “frame”, “mirror” or “deep link” any part of the Site or other Offerings without our prior written authorization; or
k. link to any page within the Site or other Offerings from any web site or web page that makes any claims as to the curative or health enhancing powers of any substance, whether or not such substance is produced, marketed, sold or distributed by us.
We do not endorse the Community Content in the User Forums and specifically disclaim any responsibility or liability to any person or entity (including, without limitation, persons who may use or rely on such material) for any loss, damage (whether actual, consequential, punitive or otherwise), injury, claim, liability or other cause of any kind or character based upon or resulting from any Community Content provided through a User Forum. By posting or uploading Community Content to any User Forum or submitting any other Community Content to us, you automatically grant (or warrant that the owner of such rights has expressly granted) us a perpetual, worldwide, royalty-free, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, sub-license, create derivative works from and distribute such materials or incorporate such Community Content into any form, medium, or technology now known hereafter devised throughout the universe in perpetuity. In addition, you warrant that the content as uploaded or posted by you does not violate any person's so-called publicity rights or "moral rights" or other similar or analogous rights under any applicable laws in any country or region of the world.
You agree to indemnify us for any and all third party claims, damages, losses, and causes of action arising from or as a result of your posting or uploading any Community Content to any User Forum or submitting any Community Content to us, or your failure to comply with the Community Guidelines.
We are pleased to hear from users and welcome your comments regarding Quest Nutrition’s services and products. Nevertheless, our company policy does not allow it to accept or consider creative ideas, suggestions, or materials other than those it has specifically requested (see below). While we value your feedback on our services and products, we request that you do not submit any creative ideas, suggestions, or materials. We hope you will understand that it is the intent of this policy to avoid the possibility of future misunderstandings when projects developed by us or our affiliates' professional staff might seem to others to be similar to their own creative work. Accordingly, we ask that you do not send us any original creative materials. If you send or post certain specific submissions at our request (e.g., via message boards or in connection with contests) or if you send us creative suggestions, ideas, notes, photographs, drawings, concepts, or any other information (each, a "Submission" and collectively, the "Submissions") despite our request that you not send us any unsolicited Submissions or other creative materials, the Submission will be treated as non-confidential and non-proprietary in each instance. For purposes of this Paragraph, all Community Content shall be deemed included in the definition of Submissions. None of the Submissions shall be subject to any obligation of confidence on the part of us, and we shall not be liable for any use or disclosure of any Submissions. Any Submission may be used by us without restriction for any purpose whatsoever, including, without limitation, reproduction, disclosure, transmission, publication, broadcast or posting, and you hereby irrevocably waive, release and give up any claim that any use of such Submission violates any of your rights, including, without limitation, copyrights, trademarks, moral rights, privacy rights, proprietary or other property rights, publicity rights, or right to credit for the material or ideas.
We shall have and are irrevocably granted the right, but not the obligation, to reproduce, modify, adapt, publish, broadcast, license, perform, post, sell, translate, incorporate, create derivative works from, distribute and otherwise use the Submission in any and all media, now known or hereafter devised, throughout the universe, in perpetuity, without according you any compensation or credit. By submitting a Submission to this Site or us, you represent that such Submission is original with you and does not violate or infringe upon the rights of any third parties, including, without limitation, any intellectual property rights and rights of publicity and/or privacy. All Submissions to the Site and/or us shall be our sole property and will not be acknowledged or returned. You agree and understand that we are not obligated to use any Submission you make to the Site or us and you have no right to compel such use. You hereby acknowledge and agree that your relationship with us is not a confidential, fiduciary, or other special relationship, and that your decision to submit any material to us does not place us in a position that is any different from the position held by members of the general public with regard to your Submission. You understand and acknowledge that we have wide access to ideas, stories, designs, and other literary materials, and that new ideas are constantly being submitted to it or being developed by our own employees. Many ideas or stories may be competitive with, similar or identical to your Submission in theme, idea, plot, format or other respects. You acknowledge and agree that you will not be entitled to any compensation as a result of our use of any such similar or identical material. Finally, you acknowledge that, with respect to any claim you may have relating to or arising out of our actual or alleged exploitation or use of any material you submit to the Site and/or us, the damage, if any, thereby caused will not be irreparable or otherwise sufficient to entitle you to injunctive or other equitable relief or to in any way enjoin the production, distribution, exhibition or other exploitation of any production based on or allegedly based on the material, and your rights and remedies in any such event shall be strictly limited to the right to recover damages, if any, in an action at law.
This Site may contain sweepstakes, contests or other promotions that require you to send material or information about yourself. Please note that sweepstakes, contests or promotions offered via the Site may be, and often are, governed by a separate set of rules that, in addition to describing such sweepstakes, contest or promotion, may have eligibility requirements, such as certain age or geographic area restrictions, terms and conditions governing the use of material you submit, and disclosures about how your personal information may be used. It is your responsibility to read such rules to determine whether or not you want to and are eligible to participate, register and/or enter. By entering any such sweepstakes, contest or other promotion, you agree to comply with abide by such rules and the decisions of the sponsor(s) identified therein, which shall be final and binding in all respects.
Modifications To Service
We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
We reserve the right, in our sole discretion, immediately and without notice to suspend or terminate these TOU, your account (if you have registered) and/or your ability to access the Site, for any reason including any breach by you of these TOU or conduct by you that we determine to be inappropriate. Without limiting the foregoing, if you post any images or Content to the Site that infringes the copyright of any third party, such conduct shall be grounds for immediate termination of your account.
Our Proprietary Rights
You acknowledge and agree that the Site and the Service and any necessary software used in connection with the Service (the “Software”) contain proprietary and/or confidential information, Content and other materials that are protected by applicable intellectual property and other laws (including, without limitation, copyrights, trademarks, service marks and patents). You acknowledge that you do not acquire any ownership rights in any intellectual property through your use of the Site. Except as expressly authorized by us, you agree not to modify, rent, lease, loan, sell, distribute, create derivative works based on, or otherwise use the Software, the Service or any Content contained thereon, in whole or in part. In addition, you may not copy, reproduce, republish, upload, post, transmit or distribute materials from the Site in any way or manner without our prior written permission.
QUEST NUTRITION, the accompanying logos, trade dresses and all other intellectual property on this Site is owned by Quest Nutrition, LLC.
Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
a. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE AND ALL INFORMATION, CONTENT, SERVICES OR PRODUCTS OBTAINED THROUGH THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICE OR THE INFORMATION, CONTENT, SERVICES OR PRODUCTS INCLUDED OR OFFERED ON OR THROUGH THE SERVICE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
b. WE MAKE NO WARRANTY THAT
(i) THE SERVICE OR ANY INFORMATION, CONTENT, SERVICES OR PRODUCTS OBTAINED THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS,
(ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE,
(iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR ANY INFORMATION, CONTENT, SERVICES OR PRODUCTS PROVIDED THEREIN WILL BE ACCURATE OR RELIABLE,
(iv) THE QUALITY OF ANY SERVICES OR ANY INFORMATION, CONTENT, SERVICES OR PRODUCTS OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND
(v) ANY ERRORS IN THE SERVICE WILL BE CORRECTED.
c. ANY MATERIAL OBTAINED FROM THROUGH THE USE OF THE SERVICE IS OBTAINED AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM OBTAINING ANY SUCH MATERIAL.
d. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR FROM OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM:
(i) THE USE OR THE INABILITY TO USE THE SERVICE OR ANY PRODUCT OBTAINED THROUGH THE SERVICE;
(ii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA;
(iii) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR
(iv) ANY OTHER MATTER RELATING TO THE SERVICE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
No Personal Advice or Endorsements
The Site and its Content (including any postings, comments, e-mails or information provided by users) are for informational and entertainment purposes only, and is not intended to replace or substitute for any professional financial, medical, legal or other advice. In addition to the disclaimers and limitations of liability set forth above, we and our affiliates make no representations or warranties and expressly disclaim any and all liability in connection with any health claims or information offered or provided by users of the Site. Any such health claims or information offered or provided by users are not tested, substantiated or endorsed by us and individual results may vary and may not be typical for individual consumers.
The sole and exclusive jurisdiction and venue for resolving any controversy or claim arising out of or relating to the TOU or the Service, including, without limitation, any dispute with respect to this arbitration provision, any claim in tort, or any claim for violation of any federal, state or local statute, or ordinance or regulation (collectively, “Disputes”), shall be through confidential binding arbitration in Los Angeles County, California. The arbitration shall be conducted by JAMS/Endispute (“JAMS”), whose rules applicable to such disputes shall be in force, and judgment or the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. There shall be one arbitrator to be mutually selected by the parties, and if the parties cannot so select, the arbitrator shall be appointed by JAMS. The fees of the arbitrator, administrative fees, and the other fees and costs of the arbitration, including, but not limited to, the cost of any record or transcripts of the arbitration, shall be advanced by the parties to the arbitration in equal portions, and, in addition thereto, each such party shall advance the fees of its own attorneys, the expenses of its witnesses and all other expenses connected with presenting its case. THE PARTIES HERETO WAIVE THE RIGHT TO A TRIAL BY JURY IN CONNECTION WITH ANY ARBITRABLE CONTROVERSY OR CLAIM.
Waiver of Class Arbitration
To the fullest extent permissible under applicable law, all Disputes shall be resolved by confidential binding arbitration on an individual basis. You expressly agree that no other Disputes shall be consolidated or joined with your Dispute, whether through class arbitration proceedings or otherwise (“Class Arbitration”). You further acknowledge and agree that any arbitrator assigned to a Dispute lacks the authority to conduct Class Arbitration and that such arbitrator shall only hear individual Disputes. By using the Site and the Service, you acknowledge that you are voluntarily and knowingly waiving any right to participate as a representative or member of any class of claimants pertaining to any Dispute subject to arbitration under this TOU, such that you shall not be entitled to arbitrate any Dispute as a representative, a class action or in a private attorney general capacity.
These TOU constitute the entire agreement between you and us and govern your use of the Service, superseding any prior agreements between you and us. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content or third-party software. These TOU and the relationship between you and us shall be governed by the laws of the State of California without regard to its conflict of law provisions. Unless otherwise provided herein, you and we agree to submit to the personal and exclusive jurisdiction and venue of the courts located within the State of California. Any failure on our part to exercise or enforce any right or provision of these TOU shall not constitute a waiver of such right or provision. If any provision of these TOU is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these TOU remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these TOU must be filed within one (1) year after such claim or cause of action arose or be forever barred.
If you have any questions or comments about these terms, please contact us at the address listed above. Please report any violations of these TOU to Business&Legalaffairs@questnutrition.com.
ABOUT OUR ADS
We Use Certain Tracking Technologies
We collect personal information about users over time and across different websites when you use this website or service. We also have third parties that collect personal information this way. To do this, we use several common tracking tools. These may include browser cookies. We may also use web beacons, flash cookies, and similar technologies.
Our vendors may also use these tools. In this policy “we” and “us” refers to Question Nutrition (“Quest”), our business partners, and/or our vendors.
We Use Tracking Technologies for a Variety of Reasons
We use tracking tools:
- To recognize new or past customers.
- To store your password if you are registered on our site.
- To improve our website and to better understand your visits on our platforms.
- To integrate with third-party social media websites.
- To serve you with interest-based or targeted advertising (see below for more on interest-based advertising).
- To observe your behaviors and browsing activities over time across multiple websites or other platforms.
- To better understand the interests of our customers and our website visitors.
We Engage in Interest-Based Advertising
We display interest-based advertising using information gathered about you over time across multiple websites or other platforms.
Interest-based advertising or “online behavioral advertising” includes ads served to you after you leave our website, encouraging you to return. They also include ads we think are relevant based on your browsing habits or online activities. These ads might be served on websites. They might also be served in emails. We might serve these ads, or third parties may serve ads. They might be about our products or other companies’ products.
How Do We Gather Relevant Information About You for Interest-Based Advertising?
To decide what is relevant to you, we use information you make available to us when you interact with us, our affiliates, and other third parties. We gather this information using the tracking tools described above. For example, we might look at your browsing behaviors. We, or our partners, might also look at your location. We might look at these activities on our platforms or the platforms of others.
We work with third parties who help gather this information. These third parties might link your name or email address to other information they collect. That might include past purchases made offline or online. Or, it might include online usage information.
You Can Control Certain Tracking Tools
Your browser may give you the ability to control cookies. How you do so depends on the type of cookie. Certain browsers can be set to reject browser cookies. To control flash cookies, which we may use on certain websites from time to time, you can go here. Why? Because flash cookies cannot be controlled through your browser settings.
Our Do Not Track Policy: Some browsers have “do not track” features that allow you to tell a website not to track you. These features are not all uniform. We do not currently respond to those signals. If you block cookies, certain features on our sites may not work. If you block or reject cookies, not all of the tracking described here will stop.
Certain options you select are browser and device specific.
You Can Opt-Out of Online Behavioral Advertising
The Self-Regulatory Program for Online Behavioral Advertising program provides consumers with the ability to opt-out of having their online behavior recorded and used for advertising purposes. To opt out of having your online behavior collected for advertising purposes, click here.
Certain choices you make are both browser and device-specific.
Quest believes that our supply chain should reflect Quest’s values and respect for human rights. Quest believes that its supply chain should be free from any form of forced labor, including slavery and human trafficking. More information regarding Quest’s efforts to mitigate the risks of slavery and human trafficking throughout our supply chain is available below.
Quest’s intends to verify its product supply chain by requesting that its suppliers complete a questionnaire to help assess risks of human trafficking and slavery in Quest’s supply chain. Responses will be reviewed by Quest, and upon Quest’s request, relevant documents, procedures and records of the supplier may be reviewed as part of Quest’s internal audit. In addition, Quest intends to obtain from suppliers a written certification that the supplier does not permit human trafficking and slavery in supplier’s supply chain.
In addition, suppliers must certify in writing to Quest that the supplier does not permit human trafficking and slavery in supplier or in supplier’s supply chain.
Quest intends to audit new and current suppliers from time to time to determine if they are furthering the purposes of the California Transparency in Supply Chains Act (the “Act”). The audit process will include a review of supplier responses to a request for information based on a questionnaire. If Quest identifies any concerns, then Quest may conduct an investigation. If an issue cannot be resolved after investigation or conference with the supplier, then Quest may conduct an on-site audit or terminate its relationship with the Supplier.
Quest is in the process of obtaining from its suppliers a certification attesting that the supplier does not use any form of forced, indentured, bonded or slave labor and that it does not permit human trafficking in its supply chains. Quest’s Purchasing & Supply Chain Department manages this certification process and will request that its new suppliers complete the certification as part of the onboarding process.
Quest’s Purchasing and Supply Chain Department is responsible for administering the programs in furtherance of the Act and the related issues involving human trafficking and slavery. Any employee or supplier who is determined to be acting contrary to Quest’s values or the Act may be terminated by Quest in its sole discretion. Quest intends to adopt other internal procedures for determining whether employees or suppliers are complying with company values or the Act.
Quest has educated its employees and management who have direct responsibility for supply chain management and others in the organization about the Act. Further educational efforts and training may include face-to-face meetings and web-based seminars, and will focus on how employees can assist Quest in mitigating risks within its supply chain in furtherance of the Act.
(a) This purchase order is an offer by Quest Nutrition, LLC (the "Buyer") for the purchase of the goods specified on the face of the purchase order (the "Goods") from the party to whom the purchase order is addressed (the "Seller") in accordance with and subject to these terms and conditions (the "Terms"; together with any terms and conditions on the face of the purchase order, the "Order"). The Order, together with any documents incorporated herein or therein by reference, constitutes the sole and entire agreement of the parties with respect to the Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Order. The Order expressly limits Seller‚Äôs acceptance to the terms of the Order. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Seller‚Äôs general terms and conditions of sale or any other document issued by Seller in connection with this Order.
(b) These Terms apply to any repaired or replacement Goods provided by Seller hereunder.
(c) Buyer is not obligated to any minimum purchase or future purchase obligations under this Order.
This Order is not binding on Buyer until Seller accepts the Order in writing. If Seller does not accept the Order in writing within 10 days of Seller‚Äôs receipt of the Order, this Order will lapse. Buyer may withdraw the Order at any time before it is accepted by Seller.
Seller shall deliver the Goods in the quantities and on the date(s) specified in the Order, or as otherwise agreed in writing by the parties (the "Delivery Date"). Timely delivery of the Goods is of the essence. If Seller fails to deliver the Goods in full on the Delivery Date, Buyer may terminate the Order immediately by providing written notice to Seller and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses attributable to Seller‚Äôs failure to deliver the Goods on the Delivery Date. [Buyer has the right to return any Goods delivered prior to the Delivery Date at Seller's expense and Seller shall redeliver such Goods on the Delivery Date.]
Other than as may be set forth in a separate agreement between Buyer and Seller, if Seller delivers a quantity of Goods that varies by more than 10% from the quantity ordered, Buyer may reject all or any Goods, including without limitation all or any excess Goods. Any such rejected Goods shall be returned to Seller at Seller‚Äôs risk and expense. If Buyer does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price for the Goods shall be adjusted on a pro-rata basis.
All Goods shall be delivered to the address specified in the Order (the "Delivery Location") during normal business hours or as otherwise instructed by Buyer.
Delivery shall be made as specified in the Order. If no shipping terms are specified, delivery shall be made DAP Delivery Location, Incoterms¬Æ (2010). Seller shall give written notice of shipment to Buyer when the Goods are delivered to a carrier for transportation. Seller shall provide Buyer all shipping documents, including the commercial invoice, packing list, bill of lading, air waybills and any other documents necessary to release the Goods to Buyer within three business day[s] after Seller delivers the Goods to the transportation carrier. The Order number must appear on all shipping documents, shipping labels, bills of lading, air waybills, invoices, correspondence, and any other documents pertaining to the Order.
Title and Risk of Loss
Title passes to Buyer upon Acceptance of the Goods. Seller bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Location.
All goods shall be packed for shipment according to Buyer‚Äôs instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Seller must provide Buyer prior written notice if it requires Buyer to return any packaging material. Any return of such packaging material shall be at Seller‚Äôs expense.
Quality Assurance and Traceability
Each Seller shall, at its expense, ensure full traceability, and keep appropriate records, of the Goods and all ingredients and components used in the Goods up until title to the Goods passes to Buyer.
Amendment and Modification
No change to an Order is binding upon Buyer unless it is in writing, specifically states that it amends the specific Order and is signed by an authorized representative of Buyer.
Inspection and Rejection of Nonconforming Goods
Buyer has the right to inspect the Goods within 10 days of the Delivery Date (‚ÄúAcceptance‚Äù). Buyer, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Seller, to: (a) rescind the Order in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Buyer requires replacement of the Goods, Seller shall, at its expense, within a commercially reasonable period replace the nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective Goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate this Order for cause pursuant to Section 21. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Seller‚Äôs obligations under the Order, and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions.
The price of the Goods is the price stated in the Order (the ‚ÄúPrice‚Äù). If no price is included in the Order, the Price shall be the price set out in Seller‚Äôs published price list in force as of the date of the Order, or such price as may have been agreed upon previously between Buyer and Seller. Unless otherwise specified in the Order, the Price includes all packaging, transportation costs to the Delivery Location, insurance, customs duties, and fees and applicable taxes, including, but not limited to, all sales, use, or excise taxes. No increase in the Price is effective, whether due to increased material, labor, or transportation costs or otherwise, without the prior written consent of Buyer.
Most Favored Customer
Seller represents and warrants that the price for the Goods is the lowest price charged by Seller to any of its external buyers for similar volumes of similar Goods. If Seller charges any other buyer a lower price, Seller hereby agrees to apply that price to all Goods under this Order. If Seller fails to meet the lower price, Buyer, at its option, may terminate this Order without liability pursuant to Section 21.
Seller shall issue an invoice to Buyer on or any time after the completion of delivery of the Goods and only in accordance with these Terms. Buyer shall pay all properly invoiced amounts due to Seller within 45 days after Buyer‚Äôs receipt of such invoice, except for any amounts disputed by Buyer in good faith. All payments hereunder shall be in U.S. dollars and made by wire, check or ACH as determined by Buyer in its discretion. In the event of a payment dispute, Buyer shall deliver a written statement to Seller no later than the date payment is due on the disputed invoice, listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not so disputed are deemed accepted and shall be paid, notwithstanding disputes on other items, within the period set forth in this Section 14. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under the Order notwithstanding any such dispute.
Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller.
Seller represents and warrants to Buyer that for a period of [six] months from the Delivery Date, all Goods will: (a) be free from any defects in workmanship, material, and design; (b) conform to the quantity, quality, specifications, descriptions, drawings, designs, samples, and other requirements in the Order or as specified by Buyer; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; (e) be free and clear of all liens, security interests, or other encumbrances; (f) not infringe or misappropriate any third party‚Äôs patent or other intellectual property rights; (g) ensure that the storage, manufacture, packaging, labeling, supply and delivery of Goods comply fully with any and all applicable laws, regulations, rules orders (including without limitation those relating to public health and welfare including, but not limited to, applicable requirements of the Federal Food, Drug and Cosmetic Act and Current Good Manufacturing Practices in Manufacturing, Packaging or Holding Human Food, 21 C.F.R. ¬ß 110 et seq.); and (h) for any Good consisting of food or a food ingredient, be fit for human consumption. These warranties survive any delivery, inspection, acceptance, or payment of or for the Goods by Buyer. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer‚Äôs discovery of the noncompliance of the Goods with the foregoing warranties. If Buyer gives Seller notice of noncompliance with this Section, Seller shall, at its own cost and expense, promptly replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Buyer.
Seller shall defend, indemnify, and hold harmless Buyer and Buyer‚Äôs subsidiaries, affiliates, successors or assigns, and their respective directors, managers, officers, shareholders, members, partners, agents, attorneys, accountants, and employees and Buyer‚Äôs customers (individually, an "Indemnitee," and collectively, "Indemnitees") against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, "Losses") arising out of or occurring in connection with the Goods purchased from Seller or Seller‚Äôs negligence, willful misconduct, or breach of these Terms. Seller shall not enter into any settlement without Buyer‚Äôs or Indemnitee‚Äôs prior written consent.
Intellectual Property Indemnification
Seller shall, at its expense, defend, indemnify, and hold harmless Buyer and any Indemnitee against any and all Losses arising out of or in connection with any claim that Buyer‚Äôs or Indemnitee‚Äôs use or possession of the Goods infringes or misappropriates the patent, copyright, trademark, trade secret, or other intellectual property or proprietary right of any third party. In no event shall Seller enter into any settlement without Buyer‚Äôs or Indemnitee‚Äôs prior written consent.
Seller agrees to maintain during the term of the Order a Commercial General Liability insurance policy (which may include commercial umbrella policy), including but not limited to bodily injury, property damage, contractual liability, advertising, personal injury, products liability and completed operations coverage, in minimum amounts of $5,000,000 per occurrence, $5,000,000 in the aggregate; Product Recall, including Third Party Liability, insurance in the amount of at least $10,000,000 per occurrence and $10,000,000 in the aggregate per policy year and that covers both voluntary and government recalls, including without limitation, no exclusions of microbes, pathogens or any contaminants, except genetically modified products, hormone-treated products, irradiated products, transmissible spongiform encephalopathies and carcinogens; and Workers‚Äô Compensation insurance in the amount of at least $1,000,000 each accident, $1,000,000 each employee and $1,000,000 in the aggregate per policy limit year. Each of the Commercial General Liability, Product Recall and the Workers‚Äô Compensation insurance (collectively, the ‚ÄúSeller Required Insurance Policies‚Äù) will provide worldwide coverage. Seller shall name, or have named, Buyer as an additionally insured party under the Commercial General Liability policy, including primary and non-contributory coverage obligations. The insurance coverages provided shall not be endorsed in such a way to prohibit coverage for liabilities that would arise during the term of this Order, or that restrict work described in the scope of this Order. The insurance shall be placed with an insurer having a Best‚Äôs rating (or the equivalent of Best‚Äôs) of not lower than A- VIII. Seller shall provide a certificate of insurance evidencing such coverage. If any of the Seller Required Insurance Policies is or are canceled prior to expiration, Seller agrees to use commercially reasonable efforts to promptly replace the insurance without lapse of coverage. Seller will make available, upon request, copies of the Seller Required Insurance Policies, including all attached endorsements with the exception of premium amounts, for review by Buyer. Seller also agrees to provide annual update certificates for each of the Seller Required Insurance Policies as appropriate. Buyer has no duty to confirm the existence of such insurance or to monitor such certificates. The Commercial General Liability and Workers‚Äô Compensation insurance policies will include a waiver of subrogation in favor of Buyer.
If there is a recall of any of the Goods covered by this Order or any product incorporating the Goods due to fault or failure of the Goods ("Recalled Goods"), Seller shall provide reasonable assistance to Buyer in developing a recall strategy and shall cooperate with Buyer and any applicable governmental agency, entity or authority ("Governmental Body") in monitoring the recall operation and in preparing such reports as may be required. Seller shall not voluntarily initiate the recall of any Buyer product incorporating the Recalled Goods without the prior written consent of Buyer, which shall not be unreasonably withheld. Seller shall immediately notify and provide copies to Buyer of any communications, whether relating to recalls or otherwise, with any Governmental Body relating to the Goods. Seller, at its own cost, shall rework or destroy all Recalled Goods that are defective on delivery to Buyer in compliance with all applicable laws, rules or regulations, and Buyer‚Äôs reasonable instructions.
Compliance with Law
Seller is in compliance with and shall comply with all applicable laws, regulations, and ordinances. Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under the Order. Seller shall comply with all export and import laws of all countries involved in the sale of Goods under this Order. Seller assumes all responsibility for shipments of Goods requiring any government import clearance. Buyer may terminate this Order if any government authority imposes antidumping duties, countervailing duties, or any retaliatory duties on the Goods. Without limitation of the foregoing, Seller represents and warrants that it has provided no item of value to any of Buyer‚Äôs employees or agents for the purpose of procuring the Order.
Buyer may terminate this Order, in whole or in part, at any time with or without cause for undelivered Goods on 30 days‚Äô prior written notice to Seller. In addition to any remedies that may be provided under these Terms, Buyer may terminate this Order with immediate effect upon written notice to the Seller, either before or after the acceptance of the Goods, if Seller has not performed or complied with any of these Terms, in whole or in part. If the Seller 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, then the Buyer may terminate this Order upon written notice to Seller. If Buyer terminates the Order for any reason, Seller‚Äôs sole and exclusive remedy is payment for the Goods received and accepted by Buyer prior to the termination.
Limitation of Liability
Each party‚Äôs maximum liability to the other party shall not exceed the amounts paid by Buyer to Seller over the last twelve months. Notwithstanding the preceding sentence, nothing in the Order shall exclude or limit (a) Seller‚Äôs liability under Sections 16, 17, 18 and 24 hereof, or (b) Seller‚Äôs liability for fraud, personal injury, or death caused by its negligence or willful misconduct.
No waiver by any party of any of the provisions of the Order shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Order, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Order shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
All non-public, confidential, or proprietary information of the Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, supplier lists, manufacturer lists, pricing, discounts, or rebates, disclosed by Buyer to Seller, 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 ‚Äúconfidential,‚Äù in connection with the Order is confidential, solely for the use of performing the Order, and may not be used for any other purpose, or disclosed or copied unless authorized by Buyer in writing. Upon Buyer‚Äôs request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief without bond for any violation of this Section 24. This Section 24 shall not apply to information that is: (a) in the public domain; (b) known to the Seller at the time of disclosure; (c) rightfully obtained by the Seller on a non-confidential basis from a third party; or (d) independently developed by Seller without the use of any of Buyer‚Äôs confidential information.
Neither party shall be liable to the other for any delay or failure in performing its obligations under the Order to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party‚Äôs fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable ("Force Majeure Event"). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions or shutdowns, floods, fire, earthquakes, explosion, epidemic, war, invasion, hostilities, terrorist acts, riots, or embargoes. Seller‚Äôs economic hardship or changes in market conditions are not considered Force Majeure Events. Seller shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under the Order. If a Force Majeure Event prevents Seller from carrying out its obligations under the Order for a continuous period of more than five (5) business days, Buyer may terminate this Order immediately by giving written notice to Seller.
Seller shall not assign, transfer, delegate, or subcontract any of its rights or obligations under the Order without the prior written consent of Buyer, which may be withheld in Buyer‚Äôs sole discretion. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder.
Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in the Order 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. No relationship of exclusivity shall be construed from this Order.
No Third-Party Beneficiaries
This Order is 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.
This Order and all related documents including any exhibits attached hereto, and all matters arising out of or relating to this Order, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of California without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of California.
Submission to Jurisdiction
Each party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other party in any way arising from or relating to this Order, including all exhibits, schedules, attachments, and appendices attached to this Order, and all contemplated transactions, including, but not limited to, contract, equity, tort, fraud, and statutory claims, in any forum other than the U.S. District Court for the Central District of California or, if such court does not have subject matter jurisdiction, the courts of the State of California sitting in Los Angeles County, and any appellate court from any thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in U.S. District Court for the Central District of California or, if such court does not have subject matter jurisdiction, the courts of the State of California sitting in Los Angeles County. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
The rights and remedies under this Order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
All notices, requests, 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 this Order 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), certified or registered mail (in each case, return receipt requested, postage prepaid), or email (provided that an additional method is also used). Except as otherwise provided in this Order, a Notice is effective only (a) upon receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
If any term or provision of this Order is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction
Provisions of this Order which by their nature should survive beyond the expiration or earlier termination of this Order will remain in force after such expiration or earlier including, but not limited to, the following provisions: Setoff, Warranties, General Indemnification, Intellectual Property Indemnification, Insurance, Compliance with Law, Confidential Information, Governing Law, Submission to Jurisdiction/Arbitration and Survival. With respect to confidential information that constitutes a trade secret under applicable law, the rights and obligations set forth in Section 24 hereof shall survive the expiration or earlier termination of this Order until, if ever, such confidential information loses its trade secret protection other than due to an act or omission of Seller.