Golden Hill Ingredients LLC

Standard Terms and Conditions

April 13, 2023

1. CONTRACT. In the absence of a controlling written contract signed by the Buyer and Seller, Seller’s offer to sell the product or, as the case may be, Seller’s acceptance of Buyer’s offer to purchase the product, is strictly subject to the terms and conditions contained herein and in Seller’s sale price confirmation (collectively “Contract”).

2. PURCHASE ORDERS AND QUANTITY. This contract shall be implemented either by Buyer’s issuance of either an individual or blanket purchase order which Seller has accepted (“Purchase Order”) or Seller’s issuance of a supply contract which the parties have either signed or acknowledged acceptance of (“Supply Contract”).  Not-withstanding Seller’s acceptance of any Purchase Order, or Buyer’s acceptance of any Supply Contract, no provision of any Purchase Order or Supply Contract may alter the terms of this Contract, except in writing signed by both parties.  Purchase Orders shall be placed at least 48 hours and Supply Contracts at least four (4) weeks before the requested delivery date, and subject to availability, Seller shall use diligent efforts to timely fill all of Buyer’s Purchase Orders and Seller’s Supply Contracts for product. Buyer shall be obligated to purchase 100% of the aggregate quantity of product set forth in either a Purchase Order or Supply Contract.

3. PAYMENT. Buyer shall pay the price set forth in Seller’s invoice in United States dollars to Buyer at Seller’s address set forth in the Seller’s invoice or, if requested by Seller, by wire transfer or immediately available funds to an account designated by Seller, for the goods purchased within 30 days of delivery of the goods purchased to Buyer’s designated facility, or within such lesser period of days as indicated by Seller to Buyer at the time of Seller’s receipt and acceptance of a Purchase Order or Seller’s delivery of a Supply Contract to Buyer accepted by the parties.

4. DELIVERY

4.1 The delivery terms for product under this contract are F.O.B. Seller’s facility unless otherwise specified in Seller’s sale price confirmation or other acceptance of the Purchase Order or Supply Contract.  Buyer will take delivery of the product during the delivery period reflected on the sale price confirmation or other acceptance of the Purchase Order or Supply Contract unless otherwise indicated in a specific delivery schedule agreed to in writing by Buyer and Seller.  If Buyer is unable to accept timely delivery of product, then Seller, at its discretion, can either impose a charge, each month, on all product which has not been delivered to the Buyer by the 30th day subsequent to the specified delivery period in an amount equal to 1.5% of the gross price of such product per month and/or cancel the order. Buyer shall also pay any increased duties, fees, taxes, or other charges or tariffs resulting from any delivery delay.

4.2 The parties agree that delivered pricing, if made available to Buyer, shall be done so only as a convenience to Buyer and in the event actual freight costs exceed that estimated in delivered pricing, Buyer remains responsible for all actual freight costs incurred in shipping product to Buyer, including fuel surcharges.

5. RETURNS. Seller will accept product returns at its discretion depending on the circumstances.  Any returns accepted by Seller shall be subject to a 20% restocking charge computed on the full invoice amount of the returned good.  To qualify for a potential returns approval, product must be in good and resalable condition and have at least 6 months of shelf life remaining. Buyer is responsible for all freight charges associated with any approved return.

6. TITLE AND RISK OF LOSS. Title and risk of loss to product shall transfer to Buyer upon Seller’s Tender of Delivery. “Tender of Delivery” occurs when possession of product is taken by Buyer or Buyer’s agent.

7. PRICES AND INVOICES. Prices for product are per one (1) pound unit (“Unit”). There shall be no charges for drums, totes and pallets in addition to the price per Unit unless indicated by Seller in writing prior to Tender of Delivery.  Such prices are exclusive of any sales, processing, excise, value-added or other taxes, and when required by law, such taxes shall be added to the purchase price of the product on the related invoice and paid by Buyer.  Seller shall invoice Buyer for all product sold promptly after delivery of product.  Any amounts which are not paid when due shall bear interest from the date payment was due until the date payment is received by Seller, at a rate of interest equal to the lower of (i) 1.5% per month or (ii) the highest rate of interest permitted under applicable law.  Seller reserves the right to withhold future deliveries if any payment is not timely made in full. Claims regarding discounts, or product, including without limitation quality, defects, specifications, packaging or labeling  not made within 30 days from the date of invoice shall be deemed waived and released by Buyer.

8. FOOD WARRANTY

8.1  Seller warranties that on the delivery date the product delivered under the Contract will satisfy any applicable and written specifications accepted by Seller in writing, and will not be (i) adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act (the “Act”), as amended or within the meaning of any applicable state food and drug law, the adulteration and misbranded provisions of which are substantially similar to those in the Act; and (ii) an article which may not, under the provision of the Act, be introduced into interstate commerce. THE FOREGOING WARRANTY IS LIMITED AND IS IN LIEU OF ANY AND ALL OTHER WARRANTIES, AND SELLER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, WHETHER AS TO MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE.

8.2  In the event Buyer rejects product as non-conforming to this warranty above, Buyer shall hold such product until Seller removes the product or provides the Buyer with other reasonable instructions. Seller’s liability under this warranty is limited to either replacing the non-conforming product or refunding to Buyer its purchase price paid for such product, less any non-refundable taxes and not including any shipping or other delivery related costs incurred by Buyer on the rejected product.

9. INDEMNIFICATION. (a) Seller shall indemnify and hold harmless Buyer against any and all third party claims, losses, damages and liabilities whatsoever resulting from such third party claims, and reasonable documented out-of-pocket expenses in connection therewith, including, without limitation, reasonable documented attorneys’ fees and expenses, incurred as a result of any breach of the warranty set forth in Section 8.1, unless any such third party claims, losses, damages or liabilities result from the negligence, recklessness or willful acts of Buyer, its officers, employees, or agents, upon the condition that notice of any action, claim or proceeding within the scope of this indemnity shall be provided by Buyer promptly to Seller after any claim subject to indemnification arises.  Seller reserves the right to choose the counsel that will be selected to defend pursuant to this indemnity, and to control the defense of any such action, claim or proceeding.

(b) Buyer shall indemnify and hold harmless Seller against any and all third party claims, losses, damages and liabilities whatsoever resulting from such third party claims, and reasonable documented out-of-pocket expenses in connection therewith, including, without limitation, reasonable documented attorneys’ fees and expenses, incurred as a result of any breach of the Contract, unless any such third party claims, losses, damages or liabilities result from the negligence, recklessness or willful acts of Seller, its officers, employees, or agents, upon the condition that notice of any action, claim or proceeding within the scope of this indemnity shall be provided by Seller promptly to Buyer after any claim subject to indemnification arises.  Buyer reserves the right to choose the counsel that will be selected to defend pursuant to this indemnity, and to control the defense of any such action, claim or proceeding.

10. LIMITATION ON LIABILITY. NEITHER SELLER NOR ITS AFFILIATES OR AGENTS SHALL IN ANY CASE OR MATTER HAVE ANY LIABILITY TO BUYER OR ANY AFFILIATE OR AGENT OF BUYER FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES FOR ANY REASON OR UNDER ANY THEORY OF LIABILITY WHATSOEVER.

11. INSURANCE. Seller agrees to maintain commercial general liability insurance including product liability and contractual liability, on a claims-made basis with minimum limits of liability of at least  two million dollars ($2,000,000).  Buyer, upon request to Seller, will be added to Sellers’ product liability policy as an “additional insured vendor” per the terms of the broad form vendor’s endorsement currently in use.

12. TERMINATION AND CERTAIN REMEDIES. If either party breaches any of the material provisions of the Contract, the other party shall have the right to terminate the Contract upon 30 days’ prior written notice (10 days in the case of a payment default) whereupon the Contract shall terminate unless the breach complained of is corrected or cured within such notice period.  If either party shall (a) become bankrupt or adjudicated insolvent, (b) file for a petition therefor or have an involuntary petition therefor filed against it which is not dismissed within 60 days after filing, (c) make an assignment for the benefit of creditors, or (d) have a receiver appointed for its assets, which appointment shall not be vacated within 60 days after the filing, then the other party shall be entitled to terminate the Contract immediately upon written notice to such party.

13. FORCE MAJURE. A party shall not be liable for the inability of that party to commence or complete its obligations (excluding the obligation of payment) hereunder by the dates herein required resulting from delays caused by strikes, insurrection, acts of God, war, emergencies, pandemics, shortages or unavailability of materials, weather, change in law or othercauses which are beyond the control of the party invoking this provision (“Force Majeure”), which shall have been communicated in a timely manner to the other party.  The occurrence of Force Majeure shall extend the period for the performance of the obligation (excluding the obligation of payment), for the period equal to the period of any such delays; provided that such party shall continue to perform to the extent feasible in view of such Force Majeure; and provided further, that if such Force Majeure shall continue for a period of six months, either party shall have the right to terminate this Contract upon written notice to the other.  In the event of the occurrence of a Force Majeure event, Seller shall have the right, but not the obligation, to allocate product among its customers.

14. SUPPLIERS. Seller shall have the right to fulfill its supply obligations under the Contract through any one or more of its approved suppliers. 

15. GOVERNING LAW AND JURISTICTION. The Contract has been entered into and shall be construed and enforced in accordance with the laws of the State of Illinois without reference to the choice of law principles thereof.  Venue and jurisdiction for any proceedings arising out of the Contract shall lay exclusively in the state and federal courts of Cook County, Illinois located in downtown Chicago, Illinois.

16. ASSIGNMENT. Except to the extent provided herein, none of the parties shall have the right to assign the Contract, or any rights or obligations hereunder, without the prior written consent of the other party; provided, however, that upon the sale of all or substantially all of the assets, business and goodwill of the Seller or Buyer, to another company, or upon the merger or consolidation of the Seller or Buyer with another company, the Contract shall be binding upon both Seller or Buyer and the company purchasing such assets, business and goodwill, or surviving such merger or consolidation, as the case may be, in the same manner and to the same extent as though such other company were the Seller or Buyer.   Subject to the foregoing, the Contract shall inure to the benefit of, and be binding upon, the parties hereto and their legal representatives, successors, and permitted assigns.

17. FINAL AGREEMENT. The Contract represents the final agreement of the parties with respect to its subject matter and all prior oral and written undertakings or agreements are superseded and merged therein.  Unless specifically agreed upon in writing by Seller, no different or additional terms and conditions, including those contained in any acceptance by Buyer, shall in any way become binding on Seller or become part of the Contract and are hereby specifically rejected.

18. WAIVER. Any term, condition or covenant of the Contract which may legally be waived, may be waived, or the time of performance thereof extended, at any time by the party hereto entitled to the benefit thereof, and any term, condition or covenant may be amended by the parties hereto at any time.  Any such waiver, extension or amendment shall be evidenced by an instrument in writing executed by an officer authorized to execute waivers, extensions or amendments. 

19. ATTORNEYS’ FEES.  If either party takes any action against the other to interpret or enforce the Contract as a result of a breach by the other party of the Contract, including without limitation the filing of any legal action and the matters that precede or follow such filing, the prevailing party shall be entitled to recover from the non-prevailing party reasonable attorneys’ fees, costs and expenses incurred by the prevailing party in connection with such action.

20. RELATIONSHIP OF PARTIES. The Contract shall not constitute or be construed as creating a partnership or joint venture between the parties.

21. DEFINITIONS.  “Buyer” refers to the party who is purchasing product hereunder.  “Seller” refers to Golden Hill Ingredients LLC.

Golden Hill Ingredients is a trademark of Golden Hill Ingredients LLC