Honeyville, Inc. Terms and Conditions
for Quote, Purchase Order, Bill of Lading, Invoice or Customer Agreement
These Honeyville, Inc. (“Honeyville”) Terms and Conditions (the “Terms”) are attached to and form a part of any price quote, purchase order, order confirmation, bill of lading, invoice, manufacturing agreement, or other agreement (in each case, the “Agreement”) between Honeyville and a customer or other party (“Customer”), and to which these Terms are attached or incorporated by reference. “Goods” means the Honeyville products described in the Agreement. Any written (but not preprinted) terms in the Agreement will have priority over these Terms if there is a conflict. Preprinted terms in a purchase order or other document issued by Customer are expressly agreed to be of no force or effect, and are entirely superseded and replaced by these Terms. These Terms may not be modified or amended except by a written document signed by authorized representatives of both parties.
- Acceptance of Terms and Quotes. These Terms become binding upon Honeyville and Customer:
- Where a purchase order is submitted by Customer, upon Honeyville’s acceptance of the purchase order.
- Where a quote is issued by Honeyville, upon either (i) Customer’s delivery to Honeyville of a properly-signed purchase order consistent with the quote’s terms, or (ii) Customer’s and Honeyville’s execution of a Manufacturing Agreement or other written agreement that includes a purchase schedule(s) reflecting the quote’s terms. A quote (including pricing) is not binding upon Honeyville, and Customer has not effectively accepted the quote, until one of these events occurs. Additionally, a Honeyville quote must be accepted by Customer within the time period specified in the quote.
- In the case of any other written Agreement, upon execution of the Agreement by both Customer and Honeyville.
- Pricing. If a Honeyville quote includes commodities prices, such prices are valid only until the end of the day that the quote is issued, unless otherwise specified in the quote or a relevant Honeyville document. Prices quoted by Honeyville do not apply to any Goods or options which are not expressly quoted or that are added later at the Customer’s request. Quoted prices do not include applicable sales, use, or property taxes. Customer is responsible for paying all applicable taxes in addition to the purchase price. Unless otherwise separately contracted between the parties, the prices for Goods are subject to change by Honeyville at any time upon written or electronic notice to Customer, based upon Honeyville’s costs of acquiring the necessary raw components, Honeyville’s then-standard tolling, any newly-implemented governmental price controls, and other relevant factors.
- Shipping and Delivery. Delivery will be made as specified in the applicable purchase order, order confirmation or other Agreement; if not otherwise agreed, shipping terms will be FCA Honeyville’s facility. Customer is responsible for making any insurance claims. Delivery dates are approximate; Honeyville is not responsible for any delivery delays, regardless of the cause. Honeyville reserves the right to make partial deliveries. Any increases in freight rates will be at Customer’s expense. Honeyville’s weights are to govern settlement.
- Confidentiality. Each party agrees to keep confidential all non-public information provided by the other party (“Confidential Information”), including pricing, formulas and specifications for Goods, future product plans, trade secrets, and other information identified as confidential or proprietary. The receiving party shall not use Confidential Information for any purpose other than the authorized purposes of the Agreement. The receiving party may disclose Confidential Information only to its employees and third parties who need to know such information, and who are bound to keep such information confidential. The receiving party may also disclose Confidential Information to the extent required by law.
- Limited Warranty. Honeyville warrants to Customer that for a period of 30 days from the date of shipment of a Good, the Good will comply in all material respects with applicable FDA and other federal standards, and will be fit for human consumption. This warranty does not apply to: (a) any Good that has been subjected to abuse, misuse, neglect, negligence, accident, improper storage or handling; (b) any Good that has been altered other than Honeyville’s authorized Personnel; (c) any defects introduced after Honeyville delivered the Good to the carrier for shipment, including those caused by environmental conditions; or (d) any formulas, materials or components that Customer furnishes. Any claims by Customer must be made to Honeyville in writing before the end of the above 30 day warranty period. Customer’s exclusive remedy and Honeyville’s sole liability for a breach of this warranty will be for Honeyville to replace the defective Good or provide a credit or refund of the amount paid for such Good. NO OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE MADE WITH RESPECT TO THE GOODS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, AND HONEYVILLE EXPRESSLY DISCLAIMS ALL WARRANTIES NOT SPECIFICALLY STATED HEREIN.
- Limitation of Liability. IN NO EVENT WILL HONEYVILLE BE LIABLE FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, LOST PROFITS, OR LOSS OF VALUE ARISING OUT OF THESE TERMS OR THE AGREEMENT, INCLUDING THE USE OR INABILITY TO USE THE GOODS, EVEN IF HONEYVILLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL HONEYVILLE’S AGGREGATE LIABILITY, REGARDLESS OF THE NATURE OF THE CLAIM, EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER TO HONEYVILLE FOR THE GOODS OR SERVICES THAT ARE THE SUBJECT OF THE CLAIM.
- Billing and Payment. Payment is required prior to shipment of Goods unless Honeyville has approved Customer for credit terms, in which case payment for Goods is due net 30 days from date of shipment unless otherwise specified in the Agreement. Customer will be invoiced on a per-shipment basis. Payments to Honeyville by credit card will incur a convenience and handling fee of 2.5%, which will be added at the time of payment. Customer must notify Honeyville in writing of any invoice dispute within 15 days from the date of receipt of the invoice. Customer will be deemed to have accepted all invoices for which Honeyville does not receive timely notification of dispute. Honeyville may charge Customer interest on all late payments at the rate of 1.5% per month (or, if less, the highest rate permissible under applicable law), calculated daily and compounded monthly. Customer shall also reimburse Honeyville for all reasonable collection costs incurred by Honeyville, including attorneys’ fees and court costs.
- Cancellation. Customer may cancel a purchase order for Goods without cause at any time, subject to the following terms: Customer must give Honeyville written notice of the cancellation of an order. Honeyville will inform Customer, as soon as is reasonably practicable, of (i) Honeyville’s current inventory of finished Goods, work in process and raw components, and Honeyville’s cost for such materials, (ii) the amount of any non-cancellable orders or fees, and (iii) the amount of other costs and expenses incurred by Honeyville, in relation to the cancelled purchase order, and Honeyville will invoice Customer for such costs and expenses. Customer must pay such invoices in full, immediately upon receipt. Remaining Goods, materials and ingredients will be disposed of in accordance with Honeyville’s policies.
- Termination. A party may terminate these Terms and the associated Agreement upon written notice: (a) in the event of a material breach by the other party of any representation, warranty or obligation, subject to 30 days’ prior written notice of such default and opportunity to cure the breach; provided that the cure period for a payment breach shall be 10 days; or (b) immediately upon written notice if the other party (i) files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; or (ii) makes or seeks to make a general assignment for the benefit of its creditors. Upon termination, Customer shall immediately pay all amounts owed to Honeyville, including any future monetary obligations of Customer under the Agreement, which Honeyville may accelerate and declare to be immediately due and payable. Nothing contained herein shall be construed to limit Honeyville’s remedies, and Honeyville may pursue any other remedy available to it under the Uniform Commercial Code or other applicable law. Sections 4, 5, 6, 7, 11, 12, 13, 14, 16, 17 and 18 shall survive termination of these Terms and/or the Agreement.
- Force Majeure. Neither party to these Terms shall be liable for any failure to perform its obligations under these Terms, other than payment obligations, if such failure results from any act of God, riot, war, civil unrest, strikes, flood, earthquake, or other cause beyond such party’s reasonable control (including any mechanical, electronic or communications failure, but excluding failure caused by a party’s financial condition, negligence or purposeful act). The party suffering the delay shall use commercially reasonable efforts to perform its delayed obligation(s) as soon as is reasonably feasible.
- Ownership. Unless otherwise expressly agreed by Honeyville in writing, Honeyville will retain sole ownership of all formulas, recipes, and modifications developed or provided by Honeyville. Customer will retain sole ownership of any original formulas or recipes provided by it.
- Entire Agreement; Amendment; Waiver. These Terms, the applicable Agreement(s), and any attachments hereto, which are hereby incorporated herein by reference, constitute the entire agreement between the parties with respect to their subject matter. All prior or contemporaneous agreements, representations, negotiations and understandings of the parties hereto, oral or written, express or implied, are hereby superseded and merged herein. Honeyville and Customer agree that no representations have been made or relied upon, except as specifically set forth in these Terms. Purchase order provisions which conflict with these Terms are not valid and are hereby not accepted by Honeyville. No modifications of these Terms shall be binding unless agreed to in writing and signed by both Customer and Honeyville, except as may otherwise be provided in the Agreement. The waiver by either party of any default or breach of these Terms, or any obligation hereunder, shall be ineffective unless in writing. No failure to exercise any right or power under these Terms or to insist on strict compliance by the other party shall constitute a waiver of the right subsequently to exercise such right or power or to insist on strict compliance.
- Governing Law. Utah law shall govern these Terms, excluding conflicts of laws provisions. The parties consent to the exclusive jurisdiction of Utah (state or federal) courts over any legal action related to these Terms. In the event of a dispute relating to these Terms, the prevailing party shall be entitled to an award of its reasonable costs and attorneys’ fees from the other party.
- Severability. If any provision of these Terms is held invalid or unenforceable by a court or arbitrator of competent jurisdiction, such provision shall be reduced or otherwise modified by such court or arbitrator to the minimum extent necessary to make it valid and enforceable. If it cannot be so modified, it shall be severed and the remaining terms of this Agreement shall be remain in full force and effect.
- Assignment. Customer may not assign these Terms or any of its rights, or delegate any of its obligations hereunder without the prior written consent of Honeyville. Any purported assignment or delegation in violation of this section is null and void.
- Binding Effect. These Terms are binding on and inures to the benefit of the Parties and their respective permitted successors and permitted assigns.
- Notices. All legal notices between the parties shall be in writing and shall be sent by certified or registered mail, with provisions for a receipt, or commercial overnight delivery service. Non-legal written notices in the ordinary course of business (e.g., regarding purchase order confirmations or shipping availability dates) may also be sent by email or other electronic message, or by first class mail, to the appropriate personnel of the other party.
- Non-Solicitation. During the term of the parties’ business relationship and for a period of 12 months thereafter, Customer will not, without Honeyville’s prior written consent, recruit, solicit or encourage any employee of Honeyville, or any former employee of Honeyville whose employment with Honeyville ended less than six (6) months from the date such recruitment, solicitation or encouragement is made, to become an employee of or perform other work for Customer or any affiliated company. This section shall not apply to any general job posting or advertisement not specifically directed to any Honeyville employee. Customer acknowledges and agrees that the restrictions of this section are reasonable and necessary under the circumstances to protect legitimate business interests of Honeyville, including its Confidential Information and trade secrets.
Rev. 2020-11-30 TWJ