Last Updated: 2021-03-01

  1. APPLICATION OF TERMS. The following terms and conditions shall govern the purchase by ProEx Food, LLC (“Company”) from its manufacturer/supplier (“Supplier”) as set forth on the written purchase order or other document for the purchase of products (“Products”). Supplier agrees to be bound by and accept these terms and conditions, and acknowledges that these terms and conditions be incorporated into any terms and conditions of any purchase order or similar document provided by Supplier and are a condition to Company’s obligations. Any attempt to modify, supplement or amend these terms and conditions will be void unless agreed to in writing by Company. Notwithstanding the foregoing, in the event Supplier has a written Purchase Agreement executed with Company, the terms of such Purchase Agreement shall supplement and modify (as applicable) these terms and conditions.

 

  1. ORDERS/QUOTES; PAYMENT TERMS. All written purchase orders sent to Supplier shall be binding upon execution by Supplier. Orders may be cancelled at any time by Company prior to shipment. Any quotation provided by Supplier will be valid for the duration stated in the quotation, or if no duration is stated, such quotation will be valid for 60 days unless sooner revoked. Company shall pay invoices on a NET 60 days basis from the date of the invoices unless Company has agreed to other terms in writing.

 

  1. SHIPPING; PRICE; TAXES/DUTIES. All Products purchased by Company will be shipped from Supplier’s facility as listed on the purchase order with terms requested by Company. Prices for Products shall be as quoted by Supplier, and shall not be subject to change by Supplier without notice to Company prior to Company’s issuance of any purchase order for such Products. Prices include all taxes and fees for export if needed, but do not include shipping and handling charges, sales, use, excise, customs charges or duties for import unless noted.

 

  1. RISK OF LOSS; DELIVERY; ACCEPTANCE. Risk of loss shall pass to Company upon delivery to Company from Supplier’s facility. “Delivery” shall mean the point at which the Product is actually delivered to Company’s facility. Supplier may deliver the Products ordered in installments, only with prior consent of Company. Company shall be deemed to accept Products in their current condition unless Company notifies Supplier in writing thereafter.

 

  1. MANUFACTUIRER’S WARRANTY. Supplier shall permit Manufacturer’s Warranty for all Products to be transferred by Company to any customer or end user of the Products. Notwithstanding anything to the contrary herein, Supplier must provide not less than a 1-year full repair and replacement warranty for all Products.
  2. DISCLAIMER OF WARRANTIES. SUPPLIER MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE PRODUCTS, EXCEPT FOR THE MANUFACTURER’S WARRANTY, AND ANY OTHER WRITTEN WARRANTY PROVIDED BY SUPPLIER.

 

  1. 7. PRODUCT AVAILABILITY. Supplier shall immediately notify Company to the extent Product availability may be limited or not available for immediate delivery.

 

  1. FORCE MAJEURE. NEITHER PARTY SHALL BE LIABLE IF IT IS UNABLE TO PERFORM ANY OF ITS OBLIGATIONS CONTAINED IN THESE TERMS AND CONDITIONS DUE TO, DIRECTLY OR INDIRECTLY, SABOTAGE; FAILURE OR DELAYS IN TRANSPORTATION, UTILITY SERVICE OR COMMUNICATION SYSTEMS; ANY LABOR OR INDUSTRIAL DISPUTE; SHORTAGES OF LABOR, FUEL OR SUPPLIES; WAR; EXPLOSION; ACT OF GOD OR TERRORISM; OR ANY OTHER EVENT BEYOND THE CONTROL OF EITHER PARTY.

 

  1. GOVERNING LAW; VENURE. The purchase of Products shall be governed by the internal laws of the State of Wisconsin. Any claims between Company and Supplier shall be brought within State and Federal courts located within the State of Wisconsin.

 

  1. ENFORCEMENT; BREACH; REMEDIES; INDEMNITY. If Supplier breaches any provision of these terms and conditions, Company shall be entitled, in addition to all other available remedies, to recover all consequential, incidental and collection costs, including but not limited to reasonable attorneys’ fees. Any failure by Company to strictly enforce these terms and conditions shall not be deemed a waiver by Company of any right hereunder. Company’s rights and remedies are cumulative and in addition to all other rights and remedies available in law or equity. Supplier agrees to indemnify and hold harmless Company for any and all loss, liability, claims or damages related to Supplier’s manufacture of the Products.

 

  1. ASSIGNMENT; SECURITY INTEREST. Supplier may not assign its rights or obligations hereunder without the express written consent of Company. Company may assign or transfer the Products to any customer or end user of the Products, and Supplier shall reasonably assist Company with the same as allowed by law. Company reserves a purchase money security interest in all Products until all payments and charges are paid in full. Supplier shall reasonably assist Company in perfecting such security interest and shall permit Company to complete any UCC filings regarding the same.