TERMS & CONDITIONS OF COMMERCIAL SALES
Introduction. These terms and conditions shall control apply to the sale and delivery of ingredients and other products or goods (collectively, “Ingredients”) and related services by Motif FoodWorks, Inc. (“Motif”) to you (“Buyer,” and each of Buyer and Motif, a “Party” and together the “Parties”). Motif’s acceptance of any order and/or delivery of any Ingredients is expressly subject to Buyer’s assent to each and all of the terms and conditions set forth in these terms and conditions. Buyer’s assent to these terms and conditions shall be conclusively presumed from Buyer’s acceptance of all or any part of the Ingredients ordered without written objection. No addition to or modification of these terms and conditions shall be binding upon Motif unless an authorized officer of Motif agrees to such terms in writing. If Buyer’s purchase order or other correspondence contains terms or conditions contrary to or in addition to these terms and conditions, acceptance of any order by Motif shall not be construed as assent to such contrary or additional terms and conditions, or constitute a waiver by Motif of any of these terms and conditions, and Motif expressly objects to any and all different or additional terms and conditions which Buyer may set forth on any order or purport controls the sale or delivery of Ingredients, unless an authorized officer of Motif agrees to such terms in writing. Unless alternate terms are contained in a contract or other writing signed by an officer of Motif, these terms and conditions shall solely control. Any reference to Buyer’s purchase order by Motif shall not affect or limit the applicability of the terms and conditions contained herein. ORDERS AND TRANSACTIONS RELATING TO INGREDIENTS ARE EXPRESSLY LIMITED TO THESE TERMS AND CONDITIONS. IF THIS FORM IS DEEMED AN ACCEPTANCE OF A PRIOR OFFER BY BUYER, MOTIF’S ACCEPTANCE IS EXPRESSLY CONDITIONED ON BUYER’S ASSENT TO THESE TERMS AND CONDITIONS.
Price and Payment Terms. Unless otherwise set forth in writing, (a) all prices, quotations, shipments and deliveries by Motif are EXW (Incoterms 2020) Motif; (b) all base prices, together with related extras and deductions, are subject to change without notice; (c) all orders are accepted subject to Motif’s price in effect at the time of shipment; and (d) all transportation and other charges are for the account of Buyer, including any increase or decrease in such charges prior to shipment. If no payment terms are stated in a purchase order, the purchase price shall be payable within thirty (30) days of the date of Motif’s invoice. In no event is Buyer authorized to setoff or deduct any amounts from the amounts owed Motif, unless specifically authorized in writing by Motif.
Taxes. Any tax which Motif may be required to pay or collect through assessment or otherwise under any existing or future law upon or with respect to the sale, purchase, delivery, transportation, storage, processing, use or consumption of any Ingredients, including without limitation, taxes upon or measured by receipts from sales or services, shall be for the account of Buyer and may be added to the amount due from Buyer. Buyer shall promptly pay the amount thereof to Motif upon demand but may, in lieu of such payment, furnish tax exemption certificates acceptable to the appropriate taxing authorities to Motif.
Default in Payment. If Buyer fails to make payments on any amounts due, Motif, in addition to any other remedies available to it, may, at its option (a) defer further shipment until such payments are made and satisfactory credit arrangements are re-established; or (b) cancel the unshipped balance of any order. Past due payments shall be charged the maximum interest allowed by law.
Packaging; Delivery. If no packaging, loading or similar requirements are specified by Buyer, Motif shall comply with its then current standard practices for the method of transportation used for the applicable Ingredients. Motif shall not be liable for shipment delays, or any loss or damage while in transit by the common carrier or thereafter, and all claims therefore shall be made immediately by Buyer to the carrier. Motif reserves the right to deliver Ingredients in installments unless expressly agreed otherwise. Motif will invoice installment deliveries at the time of shipment unless otherwise agreed in writing. Delay in any installment delivery shall not relieve Buyer of its obligation to accept all remaining installment deliveries.
Specifications; Feedback. Motif shall have no obligation to ensure that any Ingredients purchased from Motif meet Buyer’s unique specifications and/or other requirements unless such specifications and/or other requirements are expressly accepted by Motif in writing. Motif may freely use any feedback or insights provided to it regarding the Ingredients, including to improve the Ingredients or develop new Ingredients.
Transportation. Motif will use all reasonable efforts to comply with Buyer’s requests as to method of transportation, but Motif reserves the right to use an alternate method of transportation, whether or not at a higher cost to Buyer, if the method specified by Buyer is deemed by Motif to be unavailable or would compromise quality or safety. In any such case, Motif shall promptly notify Buyer of any such change.
Damaged or Defective Ingredients. If any Ingredients arrive at Buyer’s destination in a defective or damaged condition or a shortage occurs, Buyer shall immediately report that to the delivering carrier and to Motif.
Claims. Unless otherwise expressly agreed by Motif, claims respecting the condition of Ingredients, compliance with specifications or any other matter affecting Ingredients shipped to Buyer must be made promptly after Buyer becomes aware and no later than the expiration of the warranty period. In no event shall any Ingredients be returned, reworked, scrapped, or otherwise disposed of by Buyer without the express written authorization of Motif.
Force Majeure. Motif shall not be liable for any delay in or impairment of performance resulting in whole or in part from fire, floods or other catastrophes, acts of God, severe weather conditions; strikes, lockouts or labor disruption; pandemics, wars, riots, embargo delays, raw material market conditions, the inability to procure supplies or raw materials; or shortages of transportation equipment, fuel or labor; or any other circumstance or cause beyond the reasonable control of Motif. Additionally. manufacture, shipment and delivery are subject to any prohibition, restriction, priority allocation regulation or condition imposed by or on behalf of the United States of America or any other governmental body with appropriate jurisdiction which may prevent or interfere with fulfillment of any order.
Limited Warranty. Except as otherwise provided below, Motif warrants that Ingredients that are food products will not be adulterated or misbranded within the meaning of the Food, Drug and Cosmetic Act, as amended, and shall be free from material defects at the time of delivery; however, Motif shall not be responsible for any violation or defect attributable to Buyer’s specifications, Buyer’s handling, storage, or use of the Ingredients other than as specified in Motif’s documentation, or Buyer’s other ingredients, materials or processing in combination with the Ingredients supplied by Motif; Buyer will indemnify Motif from any claim relating to the foregoing exceptions. If a “best by,” “use by,” or similar date is indicated, the foregoing warranty shall expire on that indicated date. If such a date is not indicated, the foregoing warranty shall be limited to a three (3) month period commencing on the date of shipment; in each case provided that the Ingredients have been properly handled, stored, and cared for by Buyer, and provided that the Buyer promptly notifies Motif in writing of any warranty claim hereunder within said warranty period. In the event any Ingredient fails to meet the foregoing warranty within said warranty period, Motif’s sole obligation shall be, in its sole discretion, to either correct the matter, replace the non-conforming Ingredient, or provide a refund for the amount paid for the applicable Ingredient. The foregoing warranties provided by Motif are the only warranties provided by Motif, and may be modified or amended only by a written instrument signed by an authorized officer of Motif. EXCEPT FOR THESE EXPRESS WARRANTIES, MOTIF MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PURPOSE OR DESIGN OR NON-INFRINGEMENT. No employee or representative of Motif has authority to bind Motif to any representation, affirmation or warranty not specifically included herein. Notwithstanding the foregoing, free samples and evaluation materials are not subject to the foregoing warranty.
Limitation of Liability. Notwithstanding anything to the contrary contained herein, Motif’s aggregate liability in connection with these terms and conditions and related orders, including the sale or provision of any Ingredients, regardless of the form of action giving rise to such liability (whether in breach of warranty, contract, negligence, strict liability or any other theory in contract, tort or otherwise), shall not exceed the amount actually paid by Buyer to Motif for the specific Ingredients giving rise to the claim (or the aggregate amounts paid if not specific to any specific Ingredients) during the prior 12 months. IN NO EVENT SHALL MOTIF BE LIABLE FOR ANY EXEMPLARY, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR COST OF COVER, EVEN IF MOTIF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. All remedies of Buyer shall be limited exclusively and in lieu of any and all other remedies to those contained in these terms and conditions.
Cancellation. Orders cannot be canceled or modified by Buyer after acceptance except with the express written consent of Motif.
Termination. A Party may only terminate any order or any part thereof as allowed by these terms or upon a material uncured breach by the other Party, including Buyer’s failure to pay amounts due under prior orders. Any claim for adjustment not asserted within ninety (90) days from the date of such termination or last delivery shall be deemed to have been waived by Buyer.
Waiver. Waiver by a Party of any breach of any of the terms and conditions set forth herein shall not be construed as a waiver of any other breach, and the failure to exercise any right arising from any default hereunder shall not be deemed to be a waiver of such right, which may be exercised at any subsequent time.
Customer List and Case Studies. Unless otherwise agreed, Motif may list Buyer as a buyer or user of Motif Ingredients, and the Parties may develop and publish mutually agreed case studies.
Intellectual Property. Buyer acknowledges and agrees that the Ingredients may contain or be developed and manufactured with Motif’s (or its licensors or suppliers) intellectual property, and Motif reserves all rights therein and thereto. Buyer will not use (or authorize others to use) the Ingredients to develop competing ingredients or otherwise reverse engineer the Ingredients to the extent this restriction is permissible under applicable law.
Assignment. Buyer shall not assign any order or any interest therein without the written consent of Motif. Any such actual or attempted assignment without prior written consent shall entitle Motif to terminate and cease delivery Ingredients upon written notice to Buyer. However, either Party may assign in connection with a merger, acquisition, or sale of all or substantially all of its assets without consent of the other Party.
Choice of Law; Arbitration. These terms and conditions and orders shall be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts. Disputes arising under these terms and conditions or any order shall be exclusively conducted under arbitration as described below or brought in the state or federal courts of the Commonwealth of Massachusetts. Formal proceedings will be submitted to the American Arbitration Association (“AAA”) in Boston, Massachusetts for arbitration pursuant to the AAA’s then current rules of commercial arbitration by a single arbitrator in Boston, Massachusetts. Subject to the other provisions of this Section, either Party may initiate arbitration of any dispute by giving written notice to the other Party of the commencement of arbitration proceedings. Within ten calendar days after receipt of notice initiating arbitration, each Party shall select, from a list of arbitrators provided by the AAA, the arbitrator. If Parties are unable to agree on the arbitrator, the arbitrator shall be selected by AAA. The expenses of the arbitration including the arbitrator’s fees and the AAA administrative fees shall be paid by the Parties (or a Party) based on relative fault of the Parties, as determined by the arbitrator. The Parties shall direct the arbitrator to render a written decision within 21 calendar days after the conclusion of all oral testimony and all other post-hearing proceedings deemed appropriate or necessary by the arbitrator. Subject to the other terms hereof, the arbitrator shall have the authority to order payment of damages, reimbursement of costs (including reasonable attorneys’ and other professional fees) and interest thereon to the substantially prevailing Party. The award by the arbitrator shall be final and binding. If the arbitration provision in this Section is found to be unenforceable or not to apply for a given dispute, then the proceeding must be brought exclusively in the state or federal courts of the Commonwealth of Massachusetts. Notwithstanding anything to the contrary, either Party may go directly to court to file for interim, equitable, or other relief in connection with confidentiality or intellectual property matters.
Severability. If any provision of these terms and conditions are held to be illegal, invalid or unenforceable, such provision shall be fully severable and these terms and conditions shall be construed and enforced as if such illegal, invalid or unenforceable provision never comprised a part of it and the remaining provisions hereof shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance from this Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
Complete Agreement. These terms and conditions constitute the entire agreement between Buyer and Motif with respect to the subject matter described, including any order and the Ingredients. No addition to or variations from such terms and conditions, whether contained in Buyer’s purchase order, any shipping release or elsewhere, shall be binding unless expressly agreed to in writing by an officer of each Party.