Terms and Conditions of Sale

DEFINITIONS
The Supplier is Nutracode LLC, a Pennsylvania limited liability company, and the Buyer is identified in the parties’ Supply Agreement, Buyer’s Purchase Order or other agreement between the parties. The Goods are the products identified in the Supplier’s Order Acknowledgement.

EFFECT OF TERMS AND CONDITIONS
Buyer’s order is an invitation to Supplier to offer the sale of Goods in accordance with these Terms, and such offer shall be reflected in an Order Acknowledgement. Upon acceptance by Buyer, the agreement between Buyer and Supplier shall be reflected in the Contact Documents, consisting of the Supply Agreement (if any), Order Acknowledgement and these Terms, together with such other documents as are incorporated in or appended to any of the foregoing. No waiver, alteration or modification of, or addition to, any of the provisions hereof or of the Contract Documents (whether incorporated in Buyer’s order or elsewhere) shall be binding upon Supplier unless agreed to in a writing signed by an officer of Supplier. Buyer’s acceptance of these Terms shall be conclusively demonstrated by submission of a purchase order, payment of a deposit, acceptance of delivery or other action indicating Buyer’s intent to be bound. Supplier agrees to sell and deliver the Goods to Buyer on the express conditions that: (a) Buyer accepts these Terms without reservation; (b) the Contract Documents constitute the complete and exclusive agreement between Buyer and Supplier relating to the subject matter hereof; and (c) Supplier is not bound by any provisions, printed or otherwise, varying from or supplementing these Terms that may appear in any purchase order or other document of Buyer. In case of any conflict among the Contract Documents, unless stated to the contrary therein, the Order Acknowledgement shall control, followed by the Supply Agreement (if any), then these Terms, and then the Purchase Order.
Buyer understands and agrees that Supplier may update these Terms from time to time without notice. Buyer agrees to be bound by the version of these Terms available on Supplier’s website https://nutracode.life/terms-conditions/ at the time the Purchase Order is received by Nutracode. It is Buyer’s responsibility and obligation to re-check these Terms whenever submitting an order.

CREDIT/PAYMENT
Payment is due as stated in the Contract Documents. Supplier reserves the right at any time to suspend credit or to change credit terms when, in Supplier’s sole opinion, the financial condition of Buyer so warrants or if Buyer has not abided by the Contract Documents. Failure to pay deposits or other invoices when due shall (at Supplier’s option) accelerate the due date of any and all unpaid invoices; and, Supplier may suspend production and/or withhold deliveries until Buyer’s account has been fully paid. Buyer will pay all bank fees, whether related to wire transfers, currency conversion, returned checks, or otherwise.

INSPECTION
Buyer shall inspect all Goods received from Supplier and notify Supplier of defects within 5 calendar days of its receipt. If Buyer claims any defect, it must provide to Supplier a reasonably detailed written report of each claimed defect, including those that can only be determined by testing. Supplier shall determine if Buyer’s claim of defect is valid. In case of any defect, Buyer’s remedy shall be as stated in the Contract Documents. Any modifications or adulterations to Goods not authorized by Supplier in writing shall void the warranty. Buyer’s sole remedy for any such defects shall be as stated in Section 7 below. Supplier shall have no liability for alleged defects which are not specified in written notice from Buyer to Supplier within 5 days of receipt. Supplier shall not be responsible for Goods which have been subject to neglect or improper storage, transport or use or which have been altered by other than personnel authorized in writing by Supplier.

QUOTATIONS
Prices quoted by Supplier are subject to review and adjustment by Supplier due to lapse of time or Buyer’s order changes. Supplier also reserves the right to correct clerical or typographical errors without penalty or liability.

CANCELLATION
Buyer’s order is not subject to cancellation, change or reduction in amount, or suspension by Buyer of deliveries, unless prior to such action Buyer has obtained Supplier’s written consent, in Supplier’s sole discretion. Supplier may condition its consent on, among other things, Buyer’s reimbursing Supplier for all out-of-pocket expenses, liabilities, commitments and expected profits. Supplier controls terms of the cancellation, if Supplier deems fit and determines what, if any, additional information may be disclosed to Buyer regarding the cancelled order.

SUPPLIER’S LIMITED WARRANTY
Supplier warrants that the Goods will be manufactured in accordance with the agreed upon Formula with no material deviation and in a workmanlike manner. Supplier warrants, at the time of shipment, the Goods produced by it will be free from material defects in material and workmanship. Buyer’s sole remedy for any such defects shall be as stated in the Contract Documents. Buyer’s must notify Supplier of alleged defects within 5 calendar days of the Goods receipt. After that 5-day period, except for defects that have been notified by Buyer and accepted by Supplier or which resulted solely from Supplier’s gross negligence or willful misconduct, Buyer assumes all responsibility for the Goods.
Any reworking of goods or other modification thereof not authorized by Supplier shall void the warranty. Buyer’s sole remedy for any defects in Goods shall be refund, reworking or replacement (at Supplier’s option) of such Goods as are determined by Supplier to be defective. Notwithstanding anything in the Contract Documents to the contrary, Supplier shall have no liability for alleged defects with the Goods which are not specified in written notice from Buyer to Supplier within the applicable warranty period and only then if Buyer has paid for the Goods and otherwise fulfilled its obligations to Supplier. Supplier shall not be responsible for refund, reworking or replacement of Goods which have been subject to neglect, accident, or improper storage, transport or use, or which have been altered by other than personnel authorized in writing by Supplier. Also, Supplier shall not be responsible for damages, injuries or death caused as a result of Goods that have been modified by personnel not authorized in writing by Supplier.

LIMITATION OF LIABILITY AND REMEDY
THE EXPRESS WARRANTIES OF SUPPLIER CONTAINED IN THE CONTRACT DOCUMENTS ARE IN LIEU OF ANY OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE DISCLAIMED. THE WARRANTY REMEDY PROVIDED HEREIN SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF THE BUYER HEREUNDER, AND IN NO EVENT SHALL SUPPLIER BE LIABLE FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT SUCH DAMAGES ARE EITHER CAUSED BY OR RESULT FROM THE NEGLIGENCE OF THE SUPPLIER OR ITS SUBMANUFACTURER. IN ANY EVENT, SUPPLIER’S LIABILITY SHALL BE LIMITED TO THE PURCHASE PRICE OF THE GOODS WITH RESPECT TO WHICH LIABILITY IS CLAIMED, WHETHER OR NOT THE CLAIM IS BASED ON NEGLIGENCE, STRICT LIABILITY OR OTHERWISE.
Neither Supplier’s representatives nor agents are authorized to offer any warranty (oral or written) concerning the Goods, and Buyer should not rely on any such statements. Any action based on Supplier’s alleged breach of warranty or the contract between the parties, or any tort claim related to the Goods or Supplier’s performance, shall be barred unless commenced by Buyer within one (1) year from the date such cause of action accrued.

DAMAGE AND INJURY
Buyer will notify Supplier within ONE (1) DAY of learning of any incident involving Goods which results in property damage, injury or death. Buyer agrees to release, defend, indemnify and save Supplier harmless from any claims, liability or expenses (including attorneys’ fees) for property damage, injuries or death where safe and prudent procedures in connection with the sale, storage, transport or use of said Goods have not been followed by Buyer, failure of Buyer to give proper warnings or instructions or Buyer had otherwise been negligent or in breach of contract. Further, Buyer shall pay all costs, damages, any fees or penalties assessed in connection with the recall or withdrawal of Goods, however Supplier shall reimburse Buyer to the extent such recall or withdrawal of Goods was caused by Supplier’s gross negligence, fraud, or intentional misconduct.

TAXES
The prices quoted do not include any federal, state or local taxes. Buyer is responsible for paying any such taxes and shall reimburse Supplier for all taxes, VAT, excises, duties, license fees or other charges which Supplier may be required to pay pursuant to the production, use, sale or transportation of the Goods.

DELIVERY; RISK OF LOSS
Supplier will not be liable for any damages for failure to deliver Goods within a stipulated or requested time, but will use commercially reasonable efforts to make delivery within such time. Unless otherwise indicated hereon, shipment may be made by the method or carrier deemed most desirable by Supplier. Risk of loss to the Goods shall pass to Buyer when such Goods has been delivered to the carrier for shipment. Title shall pass to Buyer upon payment in full. Supplier reserves the right to make delivery in installments, and variations in order delivery size (up to 15% up or down) shall be accepted (and paid for) by Buyer. All such installments may be separately invoiced and paid for when due, without regard to subsequent deliveries. Delay in delivery of an installment shall not relieve Buyer of the obligation to accept remaining deliveries. Any claims by Buyer for erroneous charges, deficiencies or imperfections must be made within thirty (30) days of the date of invoice; otherwise, such claims are deemed waived. No Goods may be returned to Supplier without prior written authorization.

FREIGHT AND HANDLING
The listed prices are FOB/FCA (at Supplier’s option) Supplier’s Facility [INCOTERMS 2020]. Costs for packing, as determined by Supplier according to destination and carrier requirements, are additional and shall be paid by Buyer. Unless otherwise agreed in writing, Supplier shall prepare all shipments in accordance with its standard pack-out specifications for commercial shipments. Notwithstanding any agreement to pay freight, delivery of Goods to a carrier shall constitute delivery to Buyer and be determinative of the date and time of shipment and all risk of loss or damage in transit shall be borne by Buyer. If the Buyer fails to accept the Goods from the carrier, the Supplier shall nonetheless be entitled to payment from Buyer. Supplier may arrange for storage, with the risk and the cost, including insurance costs, to be borne by Buyer (which will pay such amounts upon demand). Buyer agrees to pay a storage fee of $50.00 per pallet per day beyond the applicable payment date for Goods not picked-up by Buyer by that date. After 30 days, the rate increases to $75.00 per pallet per day. After 60 days, the rate increases to $100 per pallet per day.

ETHICS
Buyer will uphold the highest ethical standards and is aware of, and agrees to fully comply with and to cause its agents and employees to comply with, the US Foreign Corrupt Practices Act and other laws dealing with bribery of government officials. Further, Buyer agrees to provide Supplier with End-User Certificates in form required by Supplier or applicable law for all products and services provided by or on behalf of Supplier.

CHANGES IN GOODS
Supplier reserves the right in its sole discretion to modify the specifications or formula of the Goods based on results of R&D, which may occur after the Purchase Order has been issued and accepted, provided that Supplier notifies the Buyer of any material modifications, and provided the efficacy of the Goods is not adversely affected thereby.

LABELING
With respect to Goods packaging and labeling, Buyer will be responsible for: (i) securing the approval, if necessary, of any governmental agency as may be appropriate for such packaging and labeling; (ii) the ingredients legend, nutrition facts panel, printed product weight, allergen statements, the validity of any health or nutritional claims, validity of certifications and any like information contained on the packaging.

CONFIDENTIAL INFORMATION
Buyer agrees to keep, and to cause its agents and employees (together, “Representatives”) to keep, confidential, and not to disclose, or make any use of, any Confidential Information provided or made available by Supplier or its Representatives. Buyer may reveal Confidential Information of Supplier only to its Representatives who need to know the Confidential Information to perform obligations under the Contract Documents. The Buyer shall obtain such Representative’s written agreement to be bound hereby before revealing the Confidential Information, and Buyer shall be liable for any breach by its Representatives or any other third party to which it discloses the Confidential Information.
For the purpose hereof, “Confidential Information” shall include any formula and all business and technical information of Supplier, its affiliates, licensors, clients, customers or consultants, as applicable, whether in written, oral or electronic form, and regardless of whether such information is specified as confidential, including but not limited to any Product Specifications Sheet; Manufacturing Standards; instructions and procedures; business plans; data analyses and summaries; methods of preparation; formulations; designs; product and marketing plans; financial information; trade secrets; inventions; technical know-how and data; testing methods; customer lists; sales volumes; promotional materials; prices; product ideas; and research and development activities.
Confidential Information shall not include that information which: (i) was in the public domain at the time of receipt, or which thereafter comes into the public domain without breach of an obligation assumed hereunder (as established by documentary evidence); (ii) was known, and can be shown to have been known, by Buyer prior to the time of receipt from Supplier (as established by documentary evidence), and was not previously acquired directly or indirectly from Supplier on a confidential basis or from a third party known to be under an obligation of confidentiality; or (iii) is approved for disclosure by Supplier in writing.
All Confidential Information shall be returned to Supplier or destroyed within thirty (30) days of the disclosing party’s written demand or upon termination of this Agreement. The obligations of the parties set forth in this Section shall survive the expiration or termination hereof.

INDEMNITY
Supplier or its affiliates may from time to time come to Buyer’s premises for purposes such as training, recovering Goods, etc. Except for losses caused directly by the gross negligence or willful misconduct of Supplier while on the premises, Supplier shall not have any liability to Buyer or any third parties arising out of their presence or activities on the said premises; and, Buyer agrees to release, defend, indemnify and hold harmless Supplier for all such losses or claims. Further, Buyer shall release, indemnify, defend and hold Supplier harmless from and against all claims, suits, judgments, costs, losses, expenses (including attorneys’ fees) and liabilities arising from or related to infringement (actual or claimed) of patents, copyrights or trademarks arising for compliance with Buyer’s design, specifications or instructions and the fulfillments of Buyer’s order, as well as from any breach by Buyer of these Terms or other Contract Documents.

TERMINATION
If a party hereto has failed to perform or comply with any material term or condition hereof and (if curable) has failed to cure such nonperformance or noncompliance within 90 days after receipt of written notice of such failure from the non-breaching party, all or any parts of the Contract Documents may thereafter be terminated by the non-breaching party by giving written notice to the breaching party, such termination being immediately effective upon the of such notice. Buyer’s payment obligations (and Supplier’s termination and other remedies for late payment), however, shall be subject to a cure period of 15 days. Buyer’s late payments shall bear interest at the lesser of (i) 0.5% per week or portion thereof, or (ii) the maximum permitted by law.

Further, if any payment by Buyer is not made within 15 days of its due date, or in case of any other uncured default by Buyer, Supplier may suspend and/or terminate all or any parts of the Contract Documents or other agreements between Supplier and Buyer or its affiliates by written notice, such suspension and/or termination being immediately effective upon the date stated in such notice.
In the event of the filing of a petition in bankruptcy, insolvency or reorganization against or by either party, or either party becoming subject to a composition for creditors, whether by law or agreement, or either party going into receivership or otherwise becoming insolvent (the “Insolvent Party”), all or any parts of the Contract Documents may be terminated by the other party by giving written notice to the Insolvent Party, such termination shall be immediately effective upon the giving of such notice.
The termination rights granted under this Section are cumulative with, and in addition to, any other rights or remedies to which each party may be entitled arising from any violation, default or breach of this Agreement. Any failure by a non-breaching party to notify a breaching party of a violation, default or breach of this Agreement, or to terminate this Agreement on account thereof, shall not constitute a waiver of such violation, default or breach or a consent, acquiescence or waiver of any later violation, default or breach, whether of the same or a different character.

BINDING EFFECT; ASSIGNMENT
These Terms shall inure to the benefit of and be binding upon the parties hereto, their respective successors and assigns; however, Buyer shall not assign its rights or duties hereunder (by operation of law or otherwise) without the prior, written consent of Supplier. Nothing contained in the Contract Documents shall be deemed or construed to constitute or create between the parties a partnership, joint venture or agency. Neither party shall have any authority to create or assume in the other party’s name or on its behalf any obligation, expressed or implied, or to act or purport to act as the other party’s agent or legally empowered representative for any purpose whatsoever.

SEVERABILITY
If any provision of the Contract Documents or the application thereof to any party or circumstance be held invalid or unenforceable, the remainder of the Contract Documents and the application of such provisions to other parties or circumstances will not be affected thereby and to this end the provisions of the Contract Documents are declared to be severable. No waiver of any of the provisions of the Contract Documents shall be deemed to be or shall constitute a waiver of any other provisions hereof (whether or not similar), nor shall such waiver constitute a continuing waiver. No failure of a party hereto to insist upon strict compliance by another party hereto with any obligation, covenant, agreement or condition contained in the Contract Documents shall operate as a waiver of any subsequent or other failure. The Contract Documents may not be modified by any custom or course of dealing between the parties.

HEADINGS
The headings contained in the Contract Documents are for the convenience of reference only and shall not constitute a part hereof or define, limit or otherwise affect the meaning of any of the terms or provisions hereof. The Contract Documents therein constitute the entire agreement between the parties and merge all prior discussions and negotiations between them, and neither of the parties shall be bound by any conditions, understandings or representations with respect to the subject matter hereof other than as expressly stated in the contract documents.

PROPERTY RIGHTS
Buyer shall acquire no right, title or interest in any tangible or intangible property, patent, copyright, trademark or other intellectual property of Supplier, including those related to the Goods. Buyer may not use the name or any mark of Supplier without its prior, written consent, which may be withheld or withdrawn at Supplier’s sole discretion. Supplier shall exclusively own all right, title and interest in and to any formulas, trademarks and other Intellectual Property developed by or on behalf of Supplier prior to the Effective Date or that are created or obtained by the Supplier without reference to, which do not contain, and which are not derivative works of any Company Intellectual Property or Company Confidential Information (“Supplier Property”).
Goods may be packaged under trademarks owned by Buyer or licensed to Buyer as Buyer may from time to time designate. Supplier is hereby granted a non-exclusive, royalty-free license to use these trademarks and the Buyer’s intellectual property for the purpose of producing the Goods. Buyer represents, warrants and covenants (a) the validity and Buyer’s sole ownership of the trademarks and other intellectual property made available to Supplier (“Buyer Intellectual Property”), whether or not registered; (b) that no other party has any rights or interest of any kind in or to any Buyer Intellectual Property; and (c) it will preserve and protect all Buyer Intellectual Property related to the Goods.

FORCE MAJEURE
Except for Buyer’s payment of money, if either party shall be delayed, hindered, interrupted in or prevented from the performance of any of its obligations hereunder by reason of force majeure (“Force Majeure”), including, without limitation, earthquake, flood or other acts of God, fire, explosion, war (declared or undeclared), warlike conditions, embargo, pandemic, public disaster, terrorism, riots, strike or labor differences, unavailability of materials or transportation facilities, wrecks, order of, or failure to issue or continue in effect any necessary permit by, any governmental authority, or any other action beyond such party’s reasonable control, such party shall not be liable to the other party therefor and the time for performance of such obligation shall be extended for a period of time equal to the duration of the contingency which occasioned such delay, hindrance, interruption or prevention.

EXPORT COMPLIANCE
The parties intend that the Goods will be sold and consumed in the U.S. Buyer will not export or re-export, directly or indirectly, any Goods, related materials or technical data (as defined by the U.S. Export Administration regulations, or their successors) to a destination to which such export or re-export is restricted or prohibited by U.S. or non-U.S. law without obtaining prior authorization from the U.S. Department of Commerce and/or other competent government agencies to the extent required by law; or export or re- export, directly or indirectly, any Goods, materials, component or product of such technical data, including software, to a destination to which such export or re-export is restricted or prohibited by U.S. or non-U.S. law without obtaining prior authorization from the U.S. Department of Commerce and/or other competent government agencies to the extent required by law.

GOVERNING LAW
This transaction and the Contract Documents shall be governed by the laws of the Commonwealth of Pennsylvania without giving effect to choice of law provisions and excluding the U.N. Convention on Contracts for the International Sales of Goods. The parties consent to the exclusive jurisdiction of the courts of Pennsylvania or US federal courts therein in any litigation that arises from, or is related to, these Terms or other Contract Documents. Buyer agrees to pay all of Supplier’s collection and other costs and expenses, including reasonable attorneys’ fees.

Nutracode^Ⓡ 2023