Ajinomoto Health & Nutrition North America, Inc.

Ajinomoto Health & Nutrition North America, Inc. Standard Order Terms & Conditions

AJINOMOTO HEALTH & NUTRITION NORTH AMERICA, INC.

STANDARD ORDER TERMS & CONDITIONS

 

These terms and conditions apply to all services performed and deliverables provided by Ajinomoto Health & Nutrition North America, Inc. (“Company”) to a customer (“Customer”) under the order confirmation to which these terms and conditions are attached (the “Order”). This Order is issued to Customer which agrees to be legally bound as follows:

  1. Agreement to Perform Services and Provide Customer’s Order is an offer to Company and is binding subject to the terms and conditions herein upon written acceptance by Company. Company may partially or fully accept or refuse any Order. Customer shall place each Order at least one (1) business day before the requested delivery date of the Deliverables (“Deliverables”). If the Order involves multiple deliveries at different times (“Volume Contract”), such Order shall indicate the specific volume of Deliverables to be delivered and location for each delivery. Failure of Customer to provide such indication does not relieve Customer of its obligation to purchase 100% of the volume set forth in the Volume Contract. Company may perform the Services (“Services”) and/or provide the Deliverables in the Order in accordance with these terms and conditions and any other attachment(s) in the Order (collectively, “Documentation”).  In no event shall Customer assign, subcontract or delegate any rights or responsibilities hereunder or of any Order to any third party without Company’s prior written consent.
  1. Materials Furnished by Company. Company shall at all times be the sole and exclusive owner and retain title to all materials and/or information furnished by Company to Customer (the “Materials”). Customer shall not use Materials, including but not limited to, designs, tools, patterns, drawings, information and equipment for purposes other than explicitly agreed upon in writing by Company. Upon completion or termination of the Order, if applicable, all items furnished by Company shall be returned to or disposed of per Company’s written
  1. Compliance with Laws. Each party shall comply with all applicable orders, regulations, requirements and laws of any and all supra-national, national, federal, state, provincial and local authorities and
  1. Any special packaging, loading, or bracing requirements shall be specified by Customer in the Order. Company will use commercially reasonable efforts to comply with such specifications, and Company’s costs for compliance with Customer’s requirements will be paid by Customer as an additional charge.
  1. Unless otherwise specified by Company, Company may produce and ship

all or any part of the Deliverables from any of its locations. All Deliverables provided hereunder shall be shipped to the destination(s) specified in the Order, terms are freight prepay and add. Title and risk of loss to the Deliverables shall pass from Company to Customer at the designated receiving point. Company will package and ship Deliverables in accordance with industry practices for similar goods, unless otherwise specified by Customer. Unless otherwise explicitly provided on the face of the Order, Customer shall pay for all freight and all handling, and such fees shall be charged as a separate line item by Company.  Prices do not include any duties or taxes. Company may modify its pricing (including related extras and deductions) at any time upon 30 days’ prior notice to Customer. Company will sell at the old prices on any orders received and confirmed before the new pricing effective date. Company shall use commercially reasonable efforts to fill the Order within the delivery period requested by Customer, subject to Deliverables’ availability, delivery location, and other relevant factors. The inability of Company to fulfill Customer’s request does not entitle Customer to claim damages or release Customer from its obligations under the Order, including its obligation to place orders and take subsequent deliveries in the case of Volume Contracts. If Customer has scheduled an Order pickup, and Company has confirmed such pickup date via Order, Customer will be invoiced on the scheduled day of pickup, regardless of whether the Deliverables are picked up, and all rights and obligations with respect to such Deliverables shall be transferred to Customer at such time.

 

  1. Invoices & Payment. Company shall invoice Customer upon shipment for any

amounts due under the Order. Customer shall pay for the Services and Deliverables as specified in the Order. Subject to credit approval by Company, which approval is subject to separate application and may be granted or withheld in Customer’s sole discretion, unless otherwise specified in the Order, Customer shall pay Company within 30 days of the date of invoice, in US dollars, by electronic payment or wire transfer of immediately available funds to Company’s designated bank account or by check sent to Company’s address set forth in the invoice. If Customer’s credit is not approved, payment shall be made by check or credit card prior to delivery. Customer is not entitled to setoff amounts due or claimed due from Company against any amounts Customer owes to Company. Any amounts which are not paid when due shall bear interest from the date payment was due until the date payment is received by Company, 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 (“Late Payment Interest”).

 

  1. Intellectual Property. All intellectual property and information resulting from the Services or otherwise specifically relating to any Deliverable is owned by Company.
  1. Orders cannot be canceled or modified by Customer after acceptance by Company without the express written consent of Company. Company may terminate any Order or any part thereof, without cause and without liability for damages or penalty of any kind.
  1. During the term and for five years thereafter, each party agrees to maintain the confidentiality of any confidential information obtained from the other party and not to use such information other than as expressly authorized. This obligation shall not apply to information which the receiving party can clearly demonstrate is: (i) through no act or failure to act by the receiving party, generally known or available; (ii) known by the receiving party before receipt from the disclosing party; or (iii) furnished to the receiving party by a third party without restriction or violation. All Documentation and Deliverables are the confidential and proprietary information of Company.
  1. Representations and Services shall be performed, and Deliverables shall conform to the agreed upon specifications in the Order. At the time of shipment, all Deliverables shall be free from material defects in design, workmanship, material and manufacture. THE FOREGOING WARRANTY IS LIMITED AND IS IN LIEU OF ANY OTHER WARRANTY, AND COMPANY MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE DELIVERABLES, WHETHER AS TO MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE.
  1. Non-Conforming Deliverables. In the event Customer rejects the Deliverables as non-conforming to the specification (“Non-conforming Deliverables”), Customer shall hold such Deliverables until Company provides instructions. Company reserves the right to either replace such Deliverables or refund to Customer its purchase price paid for such Deliverables. If Company authorizes a return of Deliverables, Company shall inspect the Deliverables upon receipt and issue any refund or credit as appropriate, taking into account Deliverables’ quality, condition and dating. If a return is due to Customer’s fault (e.g. over-ordering), Company shall deduct all reasonable costs of re-working the Deliverables from any refund or credit. No refunds will be issued for custom Deliverables other than due to a warranty claim. The foregoing is Customer’s sole remedy for a breach of warranty claim. Customer is prohibited from selling rejected Deliverables in a secondary market without Company’s prior written consent. Notwithstanding the foregoing, Customer will be deemed to have accepted the Non-conforming Deliverables unless Customer gives written notice to Company within 5 business days of receiving such Deliverables. Customer will take delivery of the Deliverables during the delivery period reflected on the Order. If any Deliverables arrives at Customer’s destination damaged or a shortage occurs, Customer shall immediately report the damage or shortage to the delivering carrier and to Company. Any loss or shortage caused by damage in transit will be accountable to Customer. If Customer is unable or refuses to accept delivery of Deliverables, then Company, at its discretion and in addition to any other rights or remedies available to Company, may (i) impose Late Payment Interest on all Deliverables which have not been timely accepted for delivery by Customer within 5 days after the specified delivery period, and/or (ii) cancel the Order. Customer shall also pay any increased duties, fees, taxes or other charges or tariffs resulting from any delivery delay.
  1. Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW ON ANY CLAIM OTHER THAN FOR NON-CONFORMING DELIVERABLES, CUSTOMER MUST INTIATE ACTION WITHIN 12 MONTHS OF THE DATE OF THE DELIVERY OF THE DELIVERABLES TO CUSTOMER REGARDLESS OF THEIR NATURE, OTHERWISE THEY SHALL BE DEEMED WAIVED AND RELEASED BY CUSTOMER. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THESE TERMS AND CONDITIONS EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
  1. Customer shall indemnify, defend and hold harmless, Company, its affiliates and their respective directors, officers, employees and agents (“Company Indemnitees”) from and against any and all losses, expenses (including reasonable attorney fees and expenses incurred in connection with disputes related to these terms and conditions), costs, liabilities or damages (“Losses”) to which Company Indemnitee is obligated to pay related to Customer’s performance under the Order to the extent such Losses arises out of or relate to (a) acts, errors, and omissions of Customer or its affiliates, employees, officers or agents, (b) breach by Customer of any representation or provision of these terms and conditions, or (c) violation of law or regulation by Customer or its affiliates, employees, officers or agents.
  1. Insurance. Customer shall maintain commercial general liability insurance, including coverage for bodily injury, property damage, and product liability claims, with a combined single limit of not less than one million dollars per occurrence and two million in the aggregate. Policy shall be endorsed to include Company and its affiliated parent as additional insureds and shall be primary and non-contributory with respect to all other available sources. Policy shall contain a waiver of subrogation in favor of Company. Coverage shall be satisfactory to Company and will insure Customer and Company from and against any and all claims for loss and/or damages because of bodily injury, death or property damage arising from or relating to the Services and Deliverables. An excess policy or umbrella policy may be used to meet minimum liability requirements provided that the coverage is written on a “following form” basis. Customer shall maintain worker’s compensation insurance with statutory limits, and employer’s liability limits equal to not less than one million dollars each accident, one million dollars by disease of each employee with policy limits of at least one million dollars. Policy shall contain a waiver of subrogation in favor of Company. Customer shall maintain automobile liability with a combined single limit of one million dollars for bodily injury and property damage. Policy shall be endorsed to include Company and its affiliated parent and subsidiary companies as additional insured. Policy shall contain a waiver of subrogation in favor of Company. Customer’s coverage shall be primary and non-contributory with respect to all other available sources. An excess policy or umbrella policy may be used to meet minimum liability requirements provided that the coverage is written on a “following form” basis. Customer shall maintain a minimum umbrella or excess policy with a limit of five million dollars. Customer shall maintain a recall policy with a limit of two million dollars. Company may require additional coverages and higher limits than the coverages and limits listed above, upon written notice to the Customer. Customer shall provide at least 30 days’ prior written notice to Company of material change, expiration, cancellation, or termination of policy. Upon request, Customer’s policies or Customer shall supply Company with certificates evidencing such insurance (ACCORD form or equivalent approved by the company). All insurance will be provided by insurance carriers with minimum AM Best financial rating A-VII.
  1. Each party shall promptly notify the other party regarding any circumstances reasonably likely to result in a recall. If a recall results from the acts or omissions of one party, such party shall bear the direct expenses of both parties incurred in the recall. If a recall is partially caused by the actions or omissions of both parties, each party shall be responsible for its proportionate share of the recall expenses based on its proportionate share of causation. The parties shall discuss in good faith and agree on the scope and costs of recall, if practicable, prior to enforcement of the recall and each shall reasonably mitigate the losses cause by any recall.
  1. Force Majeure. Company is not responsible for any delays in performance caused by circumstances outside its control, such as fires, explosions, acts of God, strikes or other differences with workers, shortage of utility, facility, components or labor, delay in transportation, breakdown or accident, pandemic, epidemic, war and acts of war. Any delayed deliveries will be made after the problem causing the delay has ceased.
  1. Completion of the Services and delivery of the Deliverables will not relieve the parties of any obligation accruing prior to such completion. The provisions of Sections 2, 3, 7, 9, 10, 12, 13, 14, 15, and 18 will survive such completion.
  1. Order of Precedence. In the event of any conflict between these terms and conditions and any mutually executed agreement relating to the relevant transaction between the parties, the terms of such mutually agreed upon agreement, or Company approved purchase order shall prevail.
  1. Disputes shall be resolved by arbitration in accordance with the rules of the American Arbitration Association. Any arbitration decision will be binding on both parties and may be enforced in any court with competent jurisdiction. The parties knowingly and voluntarily waive their rights to have any dispute tried and adjudicated by a judge or a jury. The party prevailing at arbitration will be entitled to a sum fixed by the arbitrator for its related costs and expenses, including reasonable attorney fees. These terms and conditions are governed by the law of the state where Company’s business unit is located, to which Customer hereby consents. The prevailing party in any action shall be entitled to recover from the other party, in addition to any other relief to which it may be entitled, reasonable attorneys’ fees and costs incurred in prosecuting or defending such action. If any term or provision, or any portion thereof, is held to be invalid, illegal or unenforceable, the remaining portions shall not be affected. No waiver of any provision herein constitutes a waiver of any other provision. The Order, these terms and conditions and the Documentation constitute the entire understanding between the parties, unless otherwise agreed in writing signed by both parties.