VIVIFY SPECIALTY INGREDIENTS

TERMS AND CONDITIONS OF PURCHASE FOR INVOICES

These Terms and Conditions of Purchase (this “Agreement”) are made as of the date of the invoice to which they are attached (the “Invoice”) and are by and between the Buyer and Seller on the Invoice (each, a “Party” and together, the “Parties”). Seller is in the business of selling the products identified on the invoice (the “Products”), and Buyer desires to purchase the shipments of the Products specified on the Invoice.

1. This Agreement contains the only terms and conditions which govern the Seller’s sale to Buyer of the Products. The Invoice and this Agreement comprise the entire agreement between the Parties and supersede all prior and contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement prevails over any of Buyer’s terms and conditions of purchase regardless whether or when Buyer has submitted a purchase order (if any) or such terms and conditions of purchase. Fulfillment of the Invoice does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend this Agreement.
2. Shipment and Delivery. The Products will be shipped within a reasonable time after Buyer’s receipt of the invoice. Unless otherwise agreed in writing by the Parties, Seller shall ship the Products in accordance with the shipping terms stated in the invoice and to the delivery location also stated in the invoice (“Delivery Point”). Notwithstanding any shipping terms stated in the Invoice or otherwise agreed in writing by the Parties to the contrary, Seller shall not be liable for any delay, loss, or damage while the Products are in transit. Seller may, in its sole discretion, without liability or penalty, make partial shipments of the Products to Buyer. If for any reason Buyer fails to accept delivery of any of the Products on the date fixed pursuant to Seller’s notice that the Products have been delivered at the Delivery Point, or if Seller is unable to deliver the Products at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses, or authorizations: (a) risk of loss to the Products shall pass to Buyer (unless it has already previously passed to Buyer based on the applicable shipping terms); (b) the Products shall be deemed to have been delivered; and (c) Seller, at its option, may store the Products until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance). Any liability of Seller for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or adjusting the Invoice respecting such Products to reflect the actual quantity delivered. Where freight International Commercial Term terms specify buyer is responsible for booking carrier, seller will not be responsible for booking or arranging shipment.  This includes freight and small parcel shipping.
3. Security Interest. As collateral security for the payment of the purchase price of the Products, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Products, wherever located and whether now existing or hereafter arising or acquired from time to time.
4. Prices. Buyer shall purchase the Products from Seller at the prices set forth in the Invoice (the “Prices”). All Prices are exclusive of all applicable taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for paying all such taxes, duties, and charges to Seller.
5. Late Payments.  Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. Seller shall be entitled to suspend the delivery of any Products if Buyer fails to pay any amounts when due hereunder, and such failure continues for five days following written notice thereof.
6. Limited Warranty. Seller warrants to Buyer that the Products will meet the specifications listed in Seller’s certificate of analysis for the Products made available to Buyer. EXCEPT FOR THE WARRANTY SET FORTH IN THE IMMEDIATELY PRECEDING SENTENCE, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW. Seller shall not be liable for a breach of the warranty set forth in this Section unless Seller reasonably verifies Buyer’s claim for a breach of such warranty. The Seller shall not be liable for a breach of the warranty set forth in this Section if: (i) Buyer makes any further use of any applicable Products after giving notice of a warranty breach to Seller; (ii) a warranty breach arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use, or maintenance of any applicable Products; or (iii) Buyer alters or repairs any applicable Products without the prior written consent of Seller. Subject to the above, with respect to any Products proven to have breached the warranty set forth in this Section, Seller shall, in its sole discretion, either: (y) repair or replace such Products or (z) credit or refund the price of such Products at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Products to Seller. THE REMEDIES SET FORTH IN THIS SECTION SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY, AND SELLER’S ENTIRE LIABILITY, FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS SECTION.
7. Buyer shall indemnify, defend, and hold harmless Seller, its affiliates, and its and their respective directors, officers, members, managers, shareholders, employees, agents, successors, and assigns (collectively, “Seller Indemnitees”) from and against any claim, suit, demand, or action and the resulting damages, losses, liabilities, judgments, settlements, fines, penalties, costs, and expenses (including reasonable attorneys’ fees and litigation costs) (each, a “Claim”) that any of the Seller Indemnitees incurs to the extent that such Claim is based on: (i) the negligence of Buyer or any of its employees or agents; (ii) Buyer’s noncompliance with applicable laws; (iii) a breach of any of Buyer’s representations, warranties, or covenants set forth in this Agreement; or (iv) use of the Products with, or the incorporation of the Products into, any of Buyer’s products or services, but to the extent such Claim does not directly arise from the characteristics of the Products prior to such use or incorporation.
8. Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, BUSINESS, OR PROFIT, OR FOR ANY DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER UNDER THE INVOICE.
9. Compliance with Law. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Products under this Agreement or any resale of the Products by Buyer. Notwithstanding any shipping terms stated in the Invoice or otherwise agreed in writing by the Parties, Buyer assumes all responsibility for shipments of Products requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on the Products.
10. Confidential Information. All non-public, confidential, or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, 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 “confidential” in connection with this Agreement is confidential, solely for the use of Buyer performing pursuant this Agreement and shall not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, and at Seller’s election, Buyer shall promptly return to Seller, or destroy, all documents and other materials received from Seller in Buyer’s or any of its employees’ or agents’ possession. Seller shall be entitled to injunctive relief for any violation of this Section 10. This Section 10 does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure without any breach of confidentiality; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
11. Force Majeure. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any provision of this Agreement when, and to the extent, such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, floods, fires, earthquakes, explosions, governmental actions, wars, invasions or hostilities (whether war is declared or not), terrorist threats or acts, riots or other civil unrest, national emergencies, revolutions, insurrections, pandemics, epidemics, lockouts, strikes or other labor disputes (whether or not relating to either Party’s workforce), restraints or delays affecting carriers, inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdowns, or power outages.
12. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section 12 is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
13. Governing Law and Jurisdiction. All matters arising out of or relating to this Agreement are governed by, and construed in accordance with, the internal laws of the State of Illinois, without giving effect to any choice or conflict of law provision or rule (whether of the State of Illinois or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Illinois. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Illinois, in each case located in the City of Chicago and Cook County, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
14. Notices. All notices hereunder shall be in writing and addressed to the receiving Party at the address set forth in the Invoice 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), or certified or registered mail (in each case, return receipt requested and postage prepaid). Except as otherwise provided in this Agreement, 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.