Standard Terms and Conditions


This Agreement is by and between the following parties: Mizkan America, Inc. (“Buyer”) and the undersigned supplier/seller/service provider receiving a Buyer purchase order, submitting the attached quote or proposal to Buyer, or who is otherwise providing goods, articles, equipment, intellectual property and/or services to Buyer (collectively, the “Seller”). Buyer and Seller wish to further their business relationship for the supply and purchase of certain goods, articles, equipment, intellectual property and/or services (the “Business Relationship”). This Agreement sets forth the terms and conditions under which the Business Relationship will take place.

1. Order Price. Pursuant to this Agreement, the Buyer may execute one or more purchase orders with the Seller (the “Order(s)”). Unless otherwise agreed in writing by the Buyer, the Seller’s price fixed in or by any Order is not subject to change. Seller warrants that the price complies with all laws and regulations.

2. Quantities. Quantities shall be as set forth in the Buyer’s purchase order or other written agreement signed by Buyer and Seller. Unless otherwise expressly agreed-upon by the parties in writing, Buyer shall have no minimum purchase obligation from Seller. Forecasted quantities or values provided by Buyer in a Purchase Contract shall not represent a binding obligation on Buyer. Quantities ordered from Seller must not be exceeded upon delivery without written permission from Buyer, except on bulk items where the Specifications set forth standard allowable overages. Quantities delivered must not be less than ordered by Buyer, unless Seller received written permission from Buyer's Purchasing Department.

3. Taxes. Unless otherwise agree by Buyer in writing, all taxes which Seller may be required to pay or collect are Seller's obligation and shall not be deemed to be included in the price, whether or not they are required to be separately stated.

4. Payment Terms. Unless otherwise agreed by Buyer in writing, payment is only due from Buyer upon final completion and delivery of the goods, articles, equipment, intellectual property, and/or services. Invoices shall be payable ________________________ (If no payment terms are inserted, payment terms shall be Net 30 days from receipt of the applicable goods, articles, and/or services). Buyer may withhold payment in whole or in part without Buyer becoming liable to Seller if Buyer has reasonable grounds to believe that Seller may be liable to it, has defaulted, may default, or that a lien may be filed, provided that such withholding shall only be to the extent, and for so long as is necessary, in Buyer's reasonable judgment.

5. Delivery. Time is of the essence on all delivery or deliveries or provision of services hereunder.

6. Amendments. Amendments or changes to this Agreement shall only bind Buyer if in writing and if such amendment both states that it amends this Agreement and is signed by Buyer's authorized agent and Seller.

7. Changes. Buyer may make changes within the general scope provided in this Agreement. If Seller accepts Buyer's terms for the change, or commences performance of the change without objection to such terms, or if Seller does not object to such terms in writing within ten (10) days after notice of such change is sent to it, Seller shall be bound by Buyer's proposed terms.

8. Contracts. No changes, additions, deductions, "hold up of work", instructions, etc. by Seller on an Order shall be deemed binding until authorized in writing by a supplemental sheet to the Order signed by the Buyer's authorized representative.

9. Inspection. Buyer and its designees may at any time inspect or have inspected items or work covered by this Agreement at the place of manufacture or fabrication prior to acceptance. Seller shall provide and bear the cost, including charges of third parties, of any testing or inspection, facilities, equipment and personnel required in connection with any testing or inspection to be carried out by the Buyer or Seller hereunder. Buyer’s authorization to ship after inspection or Buyer's failure to inspect, or on inspection failure to reject, shall not relieve the Seller from responsibilities set forth in the applicable Order.

10. Expediting. Seller shall assist Buyer and his designees in expediting. This obligation includes the furnishing of such information and such access to the plants of Seller and its sub-suppliers as Buyer may require.

11. Transportation. Unless otherwise specified in the Order, the price stated includes packing, insurance, freight, and delivery F.O.B. destination address specified by the Buyer.

12. Shipments. Shipments made without proper release and documentation will be at Seller's risk and expense, and if received may be held at Seller's risk and expense, including all demurrage and storage charges until the proper documents are received. Risk of loss shall remain with Seller until delivery to Buyer and Buyer’s acceptance of such shipment.

13. Warranty and Indemnity. In addition to any implied warranties or those provided herein and in the Order, Seller warrants that all items and services will conform to Seller’s and Buyer's specifications and drawings (the “Specifications”), will be fit for the use specified, and that all materials and workmanship shall be of merchantable quality and in accordance with the best industry standards. Seller warrants and agrees that any goods or equipment sold hereunder will be assembled and placed into operation at Buyer’s location. Seller shall have an obligation to ensure the goods or equipment are installed properly and in good working order after installation. Without limitation of its other rights and remedies, Buyer may, in cases where this warranty is breached, or where defects or deficiencies appear within twenty four (24) months after the date of delivery of goods or provision of services, either reject the items and/or services, in whole or in part, in which case the risk of loss, cost of return and storage, and other damages, will be the responsibility of the Seller. Alternatively, the Buyer may repair all or part of the defective or deficient items and/or services and charge to the Seller the cost of repair plus an amount equal to the diminished value of the items or services as repaired. Warranties under this Agreement are also for the benefit of any party to which Buyer supplies the items and/or services or to which the Buyer is correspondingly or similarly liable with respect thereto. Buyer expressly rejects any attempt by Seller to limit contractual or implied warranties. Any “Limited Warranties” or “Limitation of Liability” asserted by Seller is rejected by Buyer.

Seller shall indemnify, defend and hold harmless Buyer, its affiliates, officers, directors, employees, agents, representatives and customers from and against any and all actions, suits, claims, demands, and proceedings, and any judgments, damages, losses, debts, liabilities, penalties, fines, costs and expenses (including court costs and reasonable attorneys' fees) suffered or incurred by any such person arising from or in connection with: (a) Seller’s breach of any representation or warranty hereunder, (b) Seller’s negligent acts or omissions, or (c) Seller’s willful misconduct or violation of law.

14. Confidential Information. Buyer may provide certain information to Seller pursuant to the performance of this Agreement, including without limitation designs, Specifications, intellectual property, business plans, proprietary data, and other trade secrets (the “Confidential Information”). Seller agrees that Confidential Information shall be retained in strict confidence in a manner adequate to protect the trade secret rights and proprietary information therein, and will not be disclosed to others or used for purposes other than those strictly required by the Business Relationship. Confidential Information shall not include information which Seller can prove is available to the public at no fault of Seller, was in writing and already in its possession at the time such designs and data were furnished by Buyer, or was rightfully received from a third party without an obligation of secrecy.

15. Ownership. Seller hereby acknowledges and agrees that it shall not acquire by implication or otherwise any right or licence on or title to any Confidential Information communicated by or acquired from Buyer. All right, title and interest in and to all Confidential Information and information derived from the Confidential Information, including but not limited to all registerable and patent rights which may subsist therein, shall be held and owned solely by the Buyer, and where applicable, all goods, articles, equipment, intellectual property and/or services provided under the Business Relationship shall be considered “works made for hire.” Seller shall take all actions deemed necessary by the Buyer to protect the Buyer's rights therein. In the event that the goods, articles, equipment, intellectual property and/or services shall be deemed not to constitute works made for hire, or in the event that Seller should otherwise, by operation of law, be deemed to retain any rights not provided by this Agreement (whether moral rights or otherwise), Seller agrees to assign to Buyer, without further consideration, Seller’s entire right, title and interest in the goods, articles, equipment, intellectual property and/or services.

16. Property Furnished by Buyer. All Confidential Information, including without limitation drawings, specifications, materials and/or equipment furnished by the Buyer shall remain its property, shall be used only for purposes strictly required by the Business Relationship, and shall be returned at Seller's expense immediately upon Buyer’s request. All such items shall be held at Seller's risk.

17. Patents and Similar Rights. Seller shall indemnify and hold harmless Buyer for all costs, loss, and expense arising from any infringement or claim of infringement of any patent or proprietary right arising from Seller’s performance under this Agreement, including any litigation costs and reasonable attorneys’ fees, and charges or replacements to avoid infringements. At Buyer's request, Seller shall defend any suit or action arising out of any such infringement or claim, but Buyer shall be entitled to be fully advised and to participate in any such suit or action. No such suit or action shall be settled or discontinued, nor shall judgment be permitted to be entered, without Buyer's consent, if Buyer's interest would be adversely affected. If Buyer, from time to time, so elects, those to which Buyer furnished the items covered by this Agreement or to which it is correspondingly liable shall have the same rights as Buyer under this Section 17. Seller's indemnity does not extend to items manufactured to Buyer's own specific design unless originally submitted or suggested by Seller.

18. Advance Payments. If payments are made by Buyer prior to delivery, Buyer may require that the goods in process be marked or otherwise identified and Seller shall execute such documents, including security agreements, as are in Buyer's opinion necessary to protect Buyer's interest therein.

19. Insurance. If advance payments are made, Seller shall procure, pay for and maintain insurance coverage for full replacement value with insurance providers satisfactory to Buyer. Seller agrees to maintain commercial general liability insurance in the minimum amount of $2,000,000 and umbrella liability in the minimum amount of $5,000,000. Seller agrees to add Buyer as an additional insured to its general liability, automobile liability, and excess or umbrella policies. If applicable, the terms and provisions of any excess or umbrella policies shall “follow form” to the terms of the underlying general liability policy. Seller agrees to provide to Buyer all applicable additional insured endorsements which may affect Buyer’s status as additional insured. Seller’s insurance described herein shall be written on a primary and non-contributory basis with Buyer’s insurance. Supplier further agrees, before providing any service or supplying any goods, articles, or equipment to Buyer, to provide Buyer with a copy of each Certificate of Insurance identifying Buyer as certificate holder and as additional insured, and to provide a copy of each Certificate of Insurance annually thereafter until Seller is no longer providing services, goods, equipment and/or articles directly or indirectly to Buyer. Seller shall provide thirty (30) day written notice to Buyer prior to the cancellation or expiration of such insurance policies or any material change adverse to the interest of the additional insureds.

20. Assignment. Seller may not assign its rights hereunder without Buyer's prior written consent, except those rights to proceeds which by law may be assigned notwithstanding a contractual prohibition against such assignment. Any actual or attempted assignment, attachment garnishment, or claim by a third party with respect to Seller's rights (including rights to amounts due or to become due) under this Agreement shall entitle Buyer to withhold all payment until full performance by Seller and thereafter until Buyer has determined to its complete satisfaction to whom such funds are payable and that Buyer is fully protected from any possibility of conflicting claims by Seller, its assignee or any third party and from any cost, damage, expense, or loss (including those hereinafter defined) and shall further entitle Buyer to recover out of the funds payable hereunder or otherwise from Seller any cost, expense, or loss which Buyer incurs as a result thereof (including court costs and reasonable attorneys’ fees) including those attributable to suits by Buyer for declaratory relief. Buyer may assert any counterclaim or set off which Buyer has against Seller against any assignee, whether or not such counterclaim or set off arose under or with respect to this order.

21. Disputes. Interpretation and enforcement of this Agreement will be in accordance with the laws of the State of Illinois, United States of America, without giving effect to choice of law principles thereof. Seller will and hereby does consent to the laws of, service of process from, and the jurisdiction of the courts of the State of Illinois. Seller hereby waives any claim of forum non conveniens or the right to bring an action or suit in any other place and hereby consents to venue in the state and federal courts of Illinois.

22. Compliance with Laws. Seller warrants that it will comply with all applicable codes and laws, including but not limited to, the Federal Food, Drug and Cosmetic Act (as amended); the Fair Labor Standards Act of 1938 (as amended); laws and rules enacted, suggested or promulgated by the Occupational Health and Safety Administration; all laws concerning slavery and human trafficking in the country or countries in which Seller is doing business; the Walsh Healey Act; and all applicable unfair competition and deceptive trade practice or business protection laws. Where applicable, Seller warrants that it is an EEO/AA employer and shall comply with Executive Order 11246, as amended, and all other related applicable regulations including, without limitation, 41 CFR 60-1, 60-250, 60-300, 60-741, and 29 CFR part 470.

23. Bankruptcy. Buyer may consider Seller in breach if it becomes insolvent or bankrupt or permits any act of bankruptcy or insolvency or fails to obtain dismissal of an involuntary petition in bankruptcy within thirty (30) days of the filing.

24. Termination. Buyer may terminate, in whole or in part, Seller's further performance and Buyer's obligations under this Agreement and the Order at any time by written notice to Seller. If such termination is for Seller's breach, then to the extent of such termination, Seller's right to recover any profit or additional cost hereunder shall end and Buyer shall have against Seller all remedies provided by law and equity. In the event of termination, Seller shall, upon Buyer's written request, immediately transfer and deliver to Buyer, free of any liens and encumbrances, any goods, equipment, and/or articles, or portion thereof, completed or in process as identified by any relevant Order. Seller consents to such actions, including, specific performance as may be necessary to give effect to this provision under such conditions as a court may determine to be just. In the event of termination for other than breach, Seller shall be entitled to only that proportional amount of the price that the conforming items reasonably delivered prior to termination bear to the materials or work covered by this Agreement or relevant Order, determined as of the date of termination. To the extent any Order specifically states that it includes items which are to be specifically fabricated to Buyer's Specifications and Buyer terminates for any reason other than Seller’s breach, Seller shall only be entitled to an equitable amount to cover its direct costs reasonably expended or committed to third parties prior to termination and Seller's reasonable costs for prompt and orderly termination (less salvage value and amounts recovered by Seller). If Buyer incorrectly and in good faith terminates this Agreement for Seller’s breach, this shall be deemed to be a termination by Buyer for reasons other than breach, and payment shall be made as in such case. In no event shall Buyer's liability or Seller's recovery under or with respect to this Agreement or associated Orders exceed the overall price determined at the time of the termination or breach. This Section 24 shall not be construed as limiting any other rights or remedies available to Buyer. The representations, warranties and guarantees, and indemnification obligations of Seller contained in this Agreement shall survive the termination of this Agreement.

25. Remedies. Seller acknowledges that any breach of this Agreement will result in irreparable harm to Buyer for which damages would be an inadequate remedy and therefore, in the event of such breach, in addition to its rights and remedies otherwise available at law, Buyer shall be entitled to equitable relief, including injunction and specific performance.

26. Acceptance. By shipping the goods ordered on an Order, or by performing the services specified by an Order, or by unconditionally acknowledging receipt of an Order, Seller accepts and agrees to the terms and conditions of this Agreement. As discussed further in Section 27, any proposal for different or additional terms or any attempt by Seller to vary in any degree any of the terms of this Agreement in Seller’s acceptance of an Order or other material is hereby objected to and rejected by Buyer, but such proposal shall not operate as a rejection of an Order unless such variances are in the terms of the description, quantity, price or delivery schedule of the goods, and an Order shall be deemed accepted by the Seller without said additional or different terms.

27. Entire Agreement; Conflicts. Except insofar as may be expressly modified by a written amendment to this Agreement pursuant to Section 6 herein, the terms and conditions of this Agreement shall apply and are made binding on the Seller by its acceptance of this Agreement, regardless of any inconsistent provision which is included in the Seller's catalogs, circulars, quotations or price lists, or any other document prepared by the Seller. Buyer and Seller agree that this Agreement shall supersede and control over any “conditions of sale” or other terms and conditions of Seller on any order form, proposal, quote, invoice, or previous or subsequent document of Seller to the extent such conflicts with the terms and conditions herein, unless such document is signed by both parties and expressly and unambiguously indicates that it is an amendment of this Agreement. Any conflicting terms and conditions of sale proposed by Seller with respect to any shipment(s) or sale(s) hereunder are rejected by Buyer. No rule of strict construction shall apply to this Agreement.

28. Nonwaiver. Nothing herein shall be construed as limiting Buyer's rights otherwise provided by law or equity. Buyer's failure to enforce, or waiver of, any right or terms hereof, shall not be considered a continuing waiver of any of Buyer's rights or such terms.

29. Severability. Since this is a general form, any legally invalid provision shall be considered severable.

30. Security Interest. The Seller shall not have or acquire through this Agreement, its performance, by operation of law, or otherwise any security interest in anything arising out of the Business Relationship. Seller shall have no rights as a secured creditor under the Uniform Commercial Code and Seller shall not have the right to file any Uniform Commercial Code financing statements.