Acceptance of product by purchaser

Acceptance of shipment of the goods (“Products”) specified on the purchase order attached hereto (“Purchase Order”) from Idaho Milk Products, Inc., an Idaho corporation (“IMP”), by the purchaser (“Purchaser”) shall be conclusively deemed an unconditional acceptance of the terms and conditions set forth herein. Any different, conflicting, or additional terms contained in an acknowledgment, invoice, quotation, specification or other document of Purchaser are hereby expressly rejected unless expressly approved in writing by IMP and Purchaser prior to the shipment of Products. These terms and conditions together with the Purchase Order and the written confirmation thereof (“Order Confirmation”), constitute the entire and final agreement between IMP and Purchaser for the sale of Product to the exclusion of any prior or contemporaneous statements or writings.

 

Purchase Orders

Each Purchase Order shall be in the form of a written or electronic communication confirmed by both parties and shall contain at least the following information: 1) the respective quantity and unit price of Products; 2) payment terms; 3) the delivery date or shipping schedule; and 4) packaging and labeling requirements. Purchase orders must be received by IMP at least five (5) weeks prior to requested ship date.

 

Pick-up by purchaser

Purchaser shall make every effort to ensure prompt and timely pick-up of Product for shipment at IMP’s manufacturing plant, during IMP’s normal business hours of the particular pick-up date as Purchaser notified IMP. If, at Purchaser’s request or for any other reason for which Purchaser is responsible, pick-up is delayed, IMP will have the right to immediately invoice Purchaser for Product to be picked up and costs and expenses incurred, including but not limited to proper temperature-controlled warehousing up to the time of Purchaser’s pick-up of Product and shipping department rescheduling charges. Should Purchaser release the hold or remove the cause for delay and IMP agrees to reinstate the particular purchase order, the new schedule of pick-up will be set by IMP.

 

Pricing

In addition to the respective quantity and unit price of Product, IMP may invoice Purchaser for applicable charges resulting from specific requests made by Purchaser.

 

Payment Terms

Terms of payment shall be set forth on the invoice. If Purchaser fails to comply with IMP’s terms of payment, IMP may decline to make further deliveries of Product.

 

Transportation

All deliveries are made Ex Works (EXW) from IMP’s facilities located in Jerome, Idaho, unless expressly stated otherwise on the Order Confirmation.

 

Shipping Documents

Each shipment will be accompanied by standard shipping documents, to include: Bill of Lading, Manifest and Certificate of Analysis for each lot of product shipped. It shall be the responsibility of Purchaser to confirm the contents of the Certificate of Analysis.

 

Inspection

On receipt of delivery of Product, Purchaser shall inspect Product for observable damage and/or nonconformity within three (3) business days. Notice of any claims of damage or non-conformity to the specification shall be given to IMP in writing within seven (7) business days of Purchaser taking possession of Product. Such notice shall include the reasons for rejection. Purchaser agrees to follow IMP’s instructions for the return or other disposition of rejected Product.

 

Quality and Testing

Idaho Milk Products must be notified before any additional food safety testing (i.e. pathogens, toxins, antibiotics, pesticides, etc.) or testing that might have regulatory implications is performed. Product must be held until additional testing is complete and results confirmed as acceptable. Additional testing beyond what is reported on the Certificate of Analysis must be complete before product is further processed.

 

Confidentiality

Prices and specifications for Product shall be maintained as confidential and shall not be disclosed to any third party without the express written consent of IMP.

 

No rights of resale

Purchaser shall have no rights to resell Product to third parties, unless previously agreed to in writing. Failure of Performance Failure of IMP to deliver, or Purchaser to take delivery of, Product in accordance with Purchase Order shall not be deemed a default, and shall not subject IMP or Purchaser to any liability to the other party, if such failure is caused by an act of God; is attributable to the other party; is caused by any other circumstance beyond the reasonable control of IMP or Purchaser; is caused by the interruption of or delay in transportation; or is caused by production failure, inadequacy or failure of material, or equipment breakdown or failure; delay experienced by IMP due to plant maintenance or modification; act(s) of terrorism; labor trouble (whether or not rising to the level of a strike); vendor supply delays; raw materials or packaging shortages; or compliance with any governmental action, laws, regulations, requests or restrictions of any jurisdiction or agency thereof (each, an “Event of Force Majeure”), whether such circumstances now exist or hereafter arise. The party whose performance is prevented by such Event of Force Majeure shall use reasonably diligent efforts to remedy such failure. If any party claims an Event of Force Majeure, it shall promptly notify the other party in writing at the commencement and at the termination of such event.

 

Severability

All of the terms and conditions hereof shall be deemed severable. The unenforceability, illegality or invalidity of any provision hereof shall not affect the enforceability, legality or validity of any other provision hereof, all of which shall remain valid, binding and enforceable in accordance with their terms.

 

Product Warranties

IMP warrants to Purchaser: (a) Product sold hereunder shall meet IMP’s product specification; (b) Product on the date of shipment shall not be adulterated or misbranded within the meaning of both the Federal Food, Drug and Cosmetic Act (21 U.S.C. 301 et seq.) and the Food and Drugs Act (Canada) and shall not be a food product ingredient which may not be introduced into interstate commerce under Section 404 of Food, Drug and Cosmetic Act; (c) Product is of good and merchantable quality and is fit and safe for consumer use and ingestion as an ingredient, for the shelf life of Product as designated on the label; and (d) Product has been manufactured, packaged, stored and shipped in accordance with the applicable standards of Good Manufacturing Practices promulgated under both the Federal Food, Drug and Cosmetic Act and the Food and Drugs Act (Canada), and with the requirements of all applicable federal, state and local laws, rules and regulations. EXCEPT FOR THOSE LIMITED WARRANTIES AND REPRESENTATIONS EXPRESSLY SET FORTH IN THIS SECTION 8, IMP MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING, NOT BY WAY OF LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. In the event IMP breaches any warranty or representation contained in this Section 8, IMP shall, at Purchaser’s option: (a) replace the defective Product and ship replacement Product to Purchaser’s facility at IMP’s expense; or (b) credit the amount paid by Purchaser for the defective Product to Purchaser’s account. The exercise of one of these two remedies shall be Purchaser’s sole remedy for IMP’s breach of warranty. IN NO EVENT SHALL IMP BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM A BREACH OF WARRANTY INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, RENTAL, PURCHASE OF REPLACEMENT PRODUCT, OR OTHER COMMERCIAL LOSS.

 

Title

Title to and risk of loss of Product shall pass to Purchaser at the time Product is loaded into the carrier designated by Purchaser at IMP’s manufacturing plant, located at 2249 South Tiger Drive, Jerome, Idaho, sealed and the seal numbers placed on the shipping documents.

 

Notices

Any notice or other communication shall be sufficiently given if made in writing and delivered electronically, personally or sent by prepaid mail to the under mentioned address: IMP: Idaho Milk Products 2249 South Tiger Drive Jerome, Idaho 83338 E-mail: sales@idahomilk.us Any such notice or communication shall be deemed to be received (a) in the case of personal delivery, upon delivery; (b) in the case of mail, postage prepaid, on the second business day after posting; or (c) in the case of email, with confirmation of receipt via return email.

 

Choice of Law

This Agreement shall be interpreted, construed and enforced in accordance with the laws of the state of Idaho, without application of its choice of laws rules. If either party brings any action or proceeding to interpret or enforce any provision hereof, the prevailing party shall be entitled to reasonable fees and costs, including attorney’s fees.

 

Jurisdiction and venue

The parties hereby agree that all actions shall be filed in the District Court of the Fifth Judicial District of the State of Idaho, in and for the County of Jerome only, and the parties irrevocably consent to the jurisdiction of such court and agree that venue shall be proper exclusively in such court.