Terms & Conditions of Sale

Specialist Nutrition LLC

These terms (“Terms”) govern the sale of Product (“Product”) and provisions of services (“Services”) by Specialist Nutrition, LLC (“Seller”) as well as by third party vendors of Seller.

Modification of Terms; Express Rejection of Other Terms. Seller and Buyer agree to the terms and conditions hereof upon execution or placement of a Buyer Order, which orders are in all instances subject to Seller’s sole discretion. These Terms may only be altered by a written agreement signed by Seller and subsequent reference to a Buyer Order shall not affect or limit these Terms. Buyer's acceptance of all or any part of the Products or Services ordered from Seller shall constitute acceptance hereof. Notice of continuing objection is hereby given to any supplemental or conflicting terms or conditions of Buyer (“Conflicting Terms”) and commencement of delivery of the Products shall not constitute acceptance of Conflicting Terms.
Buyer’s Representations. Buyer represents, warrants and acknowledges that: (a) it is able to perform its obligations under these Terms; (b) is not currently or imminently insolvent; (c) the Product are not intended for, or will be used for, human consumption or resale; (d) it shall not permit any other party to use the Product for human consumption or resale; and (e) neither Seller, nor its suppliers, shall be liable to Buyer or any third party, in whole or in part, for any claims arising from the foregoing.
Weights; Units of Sale. All weights of the Product will be on a net weight basis in tons (2,000 pounds) specified to two decimal places (2.00). The unit of sale will be full truck load or similar bulk conveyance. The actual sales quantity (and the quantity to be paid for) shall be determined by the weight delivered as specified in Seller’s Shipping Notice/Bill of Lading/Invoice.
Price. Unless otherwise confirmed by Seller, (a) all prices, quotations, shipments and deliveries by Seller are on a delivered basis; (b) all prices are subject to change without notice, unless subject to a separate written agreement. No allowances, adjustments or discounts to the price or weight of the Product will be given for any settling, impurities or shortages of the Product, except as reasonably agreed to in writing by Seller. In the event of a change to any tax (including but not limited to sales or use tax), feed inspection fee, public charge, duty or tariff or fuel surcharge, assessed or imposed on the Product, Seller’s sale or delivery thereof, or other action taken hereunder, or if any changes are made in existing freight rates, then each such tax, fee, charge, duty, tariff or rate change shall be paid by Buyer.
Acknowledgement. Buyer acknowledges that Seller has set its prices, and has agreed to sell the Products to Buyer, in reliance on the allocation of risks and fees, limitations of liability, disclaimer of warranties and exclusive remedies set forth in these Terms, and that such provisions form an essential basis of the bargain between the parties, without which Seller would not have agreed to sell Products to Buyer.
Taxes. Any current or future tax which Seller may be required to pay or collect through assessment or otherwise resulting from the sale, purchase, delivery, transportation, storage, processing, use or consumption of any Products or Services described herein, including without limitation, sales, use, shall be for the account of Buyer and shall be added to the price. Buyer shall promptly pay the amount thereof to Seller upon demand but may, in lieu of such payment, furnish tax exemption certificates acceptable to the appropriate taxing authorities to Seller.
Setoff and/or Deductions. Buyer shall have no right to deduct or offset amounts owed by Seller from amounts owed to Seller, unless agreed to in writing by Seller.
Credit. Credit terms, if any, (including payment terms and credit limits) will be set by Seller and may require security, execution of a security agreement, filing of appropriate security instruments and/or personal guarantee(s). Seller’s extension of credit is subject to change and revocation in Seller’s sole discretion. Seller retains a security interest in the Products sold hereunder to secure any portion of the price not paid by Buyer, and Buyer will, upon Seller’s request, execute any other documents requested by Seller to evidence such interest at sale, delivery or upon default.
Payment. Seller’s payment terms, unless agreed to in writing, shall be thirty (30) days from date of delivery, without offset. No cash discounts will be granted unless agreed in writing by Seller. All payments shall be made in U.S. Dollars as provided on Seller’s invoice on or before the due date. Payment may be made by check, money order, credit card or wire transfer. All payment fees (wire transfer fee, credit card fee, peer to peer fee) shall be borne by Buyer and an additional charge of 3% to 4% (depending on payment type) shall apply to all credit card payments or similar payment mechanisms except for sales shipped to these states: California, Colorado, Connecticut, Florida, Kansas, Maine, Massachusetts, New York, Oklahoma and Texas, plus the territory of Puerto Rico).
Default in Paymentor Condition. If Buyer: (a) fails to make a payment as required; (b) breaches or defaults on any other obligation under these Terms; (b) rejects conforming Products; (c) voluntarily or involuntarily files a petition in bankruptcy or becomes insolvent or makes an assignment for the benefit of creditors; (d) is dissolved, liquidated, merged or transfers a substantial part of its assets; (e) all or a controlling portion of Buyer’s stock or ownership interest is transferred; or (f) Buyer’s financial condition becomes unsatisfactory in Seller’s sole discretion, thenSeller may in its sole discretion and without liability to Buyer, and in addition to any other damages or remedies available: (a) withhold further shipment or Services until payment is made and credit arrangements satisfactory to Seller re-established; or (b) cancel the unshipped balance of any Order or cancel any other agreement between the parties; or (c) require Buyer to provide adequate assurance of performance, including such payment or other security as Seller may specify, (d) declare all sums due to Seller by Buyer to be immediately payable, and (e) make shipments or deliveries only on arrival draft of C.O.D. basis or require cash in advance of shipment. All remedies are subject to law and cumulative. Past due payments shall be charged the maximum interest allowed by law or 1.5% per month compounded monthly (whichever is the lower), calculated from the date of delinquency.
Title & Delivery. Unless stated otherwise in these Terms, all Products will be delivered by bulk truck or tanker, title and risk of loss passing to Buyer at tender of delivery. Seller will use commercially reasonable efforts to perform on or before the scheduled performance date. Product defaults by Seller, whether delivery or non-conformity, shall only constitute default of such instalment and not of these Terms unless material.
Claims. Buyer shall inspect all Product upon delivery. Unless agreed to in writing by Seller, all rejections of Products, compliance with specifications or any other matter (other than shortage) affecting Products shipped to Buyer must be made promptly and in no event later than two (2) days after receipt of the Products by Buyer. Claims for shortage must be made within 24 hours of delivery. In no event shall any Products be returned, reworked or scrapped by Buyer without the express written consent of Seller. Allowance for shortage will be at Seller’s reasonable discretion.
Producing or Shipping Point. Unless otherwise specified by Seller, Seller reserves the right to source and ship all or any part of the Products specified in any Order from any supplier facility.
Delivery Location and Equipment. Unless otherwise agreed in writing, Product will be delivered to the location specified when ordered (“Delivery Point”). Buyer shall be responsible for ensuring that a suitable offloading location and equipment (in the case of liquid feeds, a suitable tank, suitable connections and suitable and functioning pump) (in the case of bulk truck, suitable equipment to locate the Product) is available. Changes in delivery location or failure to supply suitable offloading location, equipment or materials may incur additional charges at Seller’s reasonable discretion. Buyer shall fully offload each delivery within one hour of tendered delivery at the Delivery Point. After this 1-hour window has expired, Buyer shall pay a fee of one hundred dollars ($100) per hour, or part thereof, and as modified from time to time, until the delivery is complete (the extra fee in consideration of schedule impact).
Specifications. Seller represents that the Products shall meet the specifications described on the accompanying Feed Tags. Seller does not represent and shall have no obligation to deliver Products meeting Buyer’s unique specifications and/or other requirements unless agreed to in writing in advance by Seller.
Sampling. Seller shall retain a sample of the Product delivered to Buyer (the “Official Sample”). The Official Sample will be taken at the Product production facility and may be on a production batch or load by load basis at Seller’s absolute discretion. The Official Sample will be retained for 3 months and will constitute the referee sample for testing in the event of a quality, condition, specification or similar rejection. In the event of such a rejection Buyer must immediately: (a) secure a sample of the Product in issue (“Buyer Sample”); and (b) inform Seller of the rejection in accordance with these Terms. The Parties will then, based on the Official Sample and the Buyer Sample attempt to resolve the issue. If the parties cannot resolve the issue, then the Official Sample and the Buyer Sample will be sent for a binding independent analysis, the fee for which shall be borne by the party against whom the decision results.
Technical Assistance. Unless otherwise agreed in writing by Seller, (a) any advice Services provided by Seller furnished to Buyer shall be without charge; (b) Seller assumes no obligation or liability for such advice or the results of such advice; and (c) Buyer shall bear sole responsibility for selection and specification of the Products purchased from Seller.
Force Majeure. Seller shall not be liable for failure to fulfil any obligation due to causes beyond Seller’s control including, but not limited to, acts of God, natural or artificial disaster, riot, war, strike, acts or omissions of other parties, acts or omissions of civil or military authority, Government priorities, changes in law or regulation, embargo delays, material shortages, weather conditions, labor disputes, fire, floods, epidemics, quarantine restrictions, acts of terrorism, delays in or shortage in transportation, fuel or equipment, or inability to obtain labor, materials, Products or supplies or any circumstance or cause beyond the reasonable control of Seller, which shall all be considered events of force majeure excusing Seller from performance and barring remedies for non-performance. 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, State or local, with appropriate jurisdiction which may prevent or interfere with fulfilment of any Order, which shall be considered force majeure. In the event of a force majeure condition, and at Seller’s option, (a) Seller’s time for performance shall be extended for a period equal to the time lost as a consequence of the force majeure condition; or (b) Seller may, at its option, cancel the remaining performance by giving notice of such cancellation to the Buyer; in both circumstances, without any liability or penalty.
Limited Warranty. Seller warrants that at the time of Delivery the Products will conform to the product specifications described on the Feed Tags associated with such Products. This limited warranty is exclusive and in lieu of all other warranties. Seller does not extend this limited warranty, and Buyer may not transfer it, to Buyer’s customers or any other third party. SELLER MAKES NO OTHER WARRANTY, AND HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, OR THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. SELLER DOES NOT WARRANT, AND HEREBY EXPRESSLY DISCLAIMS ANY WARRANTY, THAT THE PRODUCTS ARE FREE OF OR DO NOT CONTAIN GENETICALLY MODIFIED ORGANISMS OR THAT THEY OTHERWISE QUALIFY AS OR MAY BE CONSIDERED TO BE “NON-GMO” OR “GMO-FREE” OR “ORGANIC.”
Limitation of Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOLE AND EXCLUSIVE LIABILITY OF SELLER, AND THE SOLE AND EXCLUSIVE REMEDY OF BUYER, FOR SELLER’S BREACH OF ITS LIMITED WARRANTY OR ANY OTHER OBLIGATION UNDER THESE TERMS IS LIMITED EXCLUSIVELY, AT THE OPTION OF SELLER, TO: (A) REPLACEMENT OF THE NONCONFORMING PRODUCTS OR (B) ADJUSTMENT OF THE PRICE OF THE NONCONFORMING PRODUCTS TO THE FAIR MARKET VALUE THEREOF (TAKING INTO ACCOUNT SUCH NONCONFORMANCE) AT THE TIME OF BREACH, AS REASONABLY DETERMINED BY SELLER. THE FOREGOING REMEDY SHALL BE BUYER'S SOLE REMEDY. SELLER SHALL NOT BE LIABLE TO THE BUYER OR ANY THIRD PARTY, TO THE EXTENT PERMITTED BY LAW, FOR ANY LOSS OF BUSINESS, LOST PROFITS, BUSINESS INTERRUPTION, DAMAGE TO GOODWILL OR REPUTATION, DEGRADATION IN VALUE OF BRANDS OR OTHER INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES EVEN IF A PARTY HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
Indemnification and Attorney Fees. Buyer shall defend, indemnify and hold harmless Seller and its affiliates, shareholders, members, officers, directors, consultants, employees, agents and assigns from and against any losses, damages, claims, liabilities and expenses, including attorneys’ fees, arising from, in connection with or related to: (a) Buyer’s breach of these Terms; (b) the subsequent use and/or resale of the Product by Buyer or any direct or indirect transferee of Buyer; (c) Buyer’s violation of any applicable law, rule or regulation; and (d) Buyer’s breach of any representation or warranty. Buyer expressly agrees that Seller shall be entitled to its reasonable costs and attorney fees incurred enforcing the terms hereof in the event Buyer breaches any obligations hereunder.
Cancellation. Orders cannot be canceled or modified by Buyer after acceptance except with Seller’s consent.
Termination. Seller may terminate any order, or any part thereof as allowed by these terms unless expressly accepted. Upon such termination, Buyer agrees to waive all claims for damages, including without limitation, any loss of anticipated profits, and to accept, at Seller’s discretion, as its sole remedy for termination of accepted orders, the reasonable additional costs of obtaining substitute Products of the same quantity and quality, provided such costs do not exceed the Seller order price. Any claim for adjustment not asserted within ninety (90) days from the date of such termination shall be deemed to have been waived by Buyer.
Confidential Information. This Agreement, the terms and conditions set forth, and any information or materials transmitted by Seller to Buyer in conjunction with Seller’s sale of the Products contain confidential and proprietary information of Seller, including price and specifications. Buyer agrees not to use or disclose such confidential information except as contemplated by these Terms. The confidentiality obligations set forth in this section are in addition to, and not in derogation of, Buyer’s obligations of confidentiality under any other agreement with Seller, including any non-disclosure agreements and/or material transfer agreements. In the event of a conflict between the terms of such other agreements and these Terms, the terms of such other agreements will govern and control. Buyer will immediately notify Seller of any disclosure which may constitute a violation of this section.
Research Prohibited. Except to the extent required by applicable law or as otherwise provided in these Terms, Buyer, shall not directly or indirectly, through any agent or third party, conduct or allow any research, trials or experiments, including without limitation feeding trials, food use and/or further processing (collectively “Research”) on the Products without Seller’s express written consent. Buyer will notify Seller immediately of any request to conduct Research and allow Seller to permit or refuse to permit such Research.
Waiver. Waiver by Seller 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 of Seller to exercise any right arising from any default of Buyer hereunder shall not be deemed to be a waiver of such right, which may be exercised at any subsequent time.
Use of Name; Marketing Matters. Buyer agrees that Seller may reference Buyer, use Buyer’s name and logo on Seller’s website and in promotional material. Buyer agrees that it shall not use Seller’s name without Seller’s advance written consent.
Choice of Law and Venue. All Orders shall be governed by and interpreted in accordance with the laws of the New York. Litigation of disputes arising under These Terms shall be brought only in the state or federal courts of the State of New York.
Waiver of Jury Trial. THE PARTIES IRREVOCABLY WAIVE THEIR RIGHT TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, COUNTERCLAIM OR CROSS-COMPLAINT IN ANY ACTION OR OTHER PROCEEDING WITH RESPECT TO ANY MATTER ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, ANY PURCHASE FROM SELLER, WHETHER BASED UPON CONTRACTUAL, STATUTORY, TORTIOUS OR OTHER THEORIES OF LIABILITY.
Disputes. Except as provided in these Terms, all disputes arising out of the performance or non-performance of the parties’ obligations hereunder will be settled by arbitration in New York State. Notwithstanding the foregoing, Seller, at its option, may pursue collection of delinquent payments , breach of confidentiality or prohibited research in any court having jurisdiction, including but not limited to, the federal or state courts located in New York and Buyer hereby agrees to the jurisdiction of, and venue within, such courts. Unless otherwise expressly provided in these Terms, any and all claims of Buyer under these Terms are waived unless arbitration is demanded per this section within six months after the date Buyer received the Product at issue.
Assignment. These Terms are binding on Seller and Buyer and their respective successors, heirs and assigns. Buyer may not assign or delegate any rights or obligations under these Terms without the written consent of Seller. Seller may assign or delegate any and all rights and obligations under these Terms to a third party without Buyer’s consent.
Complete Agreement. These Terms and all other documents referenced herein, constitute the entire agreement between Seller and Buyer with regard to the Products and expressly supersede and replace any prior or contemporaneous agreements, written or oral, relating thereto. These Terms may not be superseded, cancelled or amended except in a writing signed by Seller. No other act, document, course of dealing, usage or custom will be deemed to supersede, cancel, modify or amend these Terms. If any provision of these Terms is determined to be invalid, illegal or unenforceable, such provision will be enforced to the extent possible consistent with the stated intention of the parties and the remaining provisions will remain in full force and effect.