Product Terms & Conditions

1. ACCEPTANCE OF TERMS: These terms and conditions of sale (“Terms and Conditions”) govern the purchase of products (“Products”) by Total Sweeteners, Inc., d/b/a Batory Foods (“Batory”) from you (“Vendor”) (each of which may be referred to as a “party” or collectively as the “parties”). Such purchase of Products is expressly conditioned upon Vendor’s acceptance of these Terms and Conditions. Notwithstanding anything herein to the contrary, if a written document (“Other Form”) signed by both parties or submitted by Vendor is in existence covering the purchase of the Products covered hereby, these Terms and Conditions shall prevail to the extent they are inconsistent with the Other Form.
2. ENTIRE AGREEMENT: For the avoidance of doubt, any accompanying documents provided by Batory [e.g., request for quote, purchase order], together with these Terms and Conditions (collectively, the “Agreement”), comprise the entire agreement between the parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations, warranties, and communications, both written and oral. These Terms and Conditions prevail over any of Vendor’s general terms and conditions of sale, regardless of whether or when Vendor has submitted its quotation, sales confirmation or such documents. Batory’s purchase of Products does not constitute acceptance of any of Vendor’s terms and conditions and does not serve to modify or amend these Terms and Conditions.
3. PURCHASE OF PRODUCTS: Apart from any Products purchased in accordance with a particular Agreement, Batory is under no obligation to purchase any additional Products from Vendor.
4. TAXES: As a reseller of all Products purchased from Vendor, Batory shall not be charged sales tax. Any other taxes sought to be charged to Batory must be approved in writing by an authorized representative of Batory.
5. SHIPMENT AND RISK OF LOSS: All shipments shall be F.O.B. Destination, in accordance with Batory’s shipping instructions. The risk of loss of or damage to Products ordered by Batory shall pass to Batory once received and inspected to Batory’s satisfaction. Vendor will be responsible for all costs associated with disposal or freight relating to non-conforming or over-shipped Products rejected by Batory. With respect to any Products to be delivered to Batory by Vendor, delivery dates are firm, and TIME IS OF THE ESSENCE WITH RESPECT TO DELIVERY OF PRODUCTS. Vendor will promptly notify Batory in writing if Vendor anticipates difficulty in complying with the delivery date and will use all commercially reasonable efforts to meet the completion and delivery date. If Vendor fails to meet a required delivery date, Batory may procure replacement products (a “Third Party Replacement Product”). In such event, Vendor shall be responsible for any increase assessed to Batory as a result of Batory’s purchase of a Third Party Replacement Product. Vendor will be responsible for all costs incurred by Batory as a result of early or late deliveries of Products.
6. PAYMENT: The invoice payment period will commence on the later of the date (a) Vendor’s invoice is received at Batory’s accounts payable department, or (b) the Products are received at the applicable Batory shipping destination. Any pricing discrepancy between the invoice amount and the parties’ Agreement will extend the payment period until such time as the discrepancy is resolved to Batory’s satisfaction, without imposition of any late fees or other charges. Vendor invoices are deemed paid on the date Batory initiates the payment.
7. WARRANTIES: Vendor represents and warrants that all Products shall (ia) be in strict accordance with the specifications, samples, or other descriptions approved by Batory and as may be set forth in the Agreement between the parties, (b) be merchantable, (c) be free from all defects, in either the Products or packaging, (d) be fit and suitable for the purpose for which the Product is intended and/or which is stated on any packaging, labeling or advertising, (e) be free of any and all claims of any kind, and (f) comply with all applicable requirements of any federal, state or local laws, regulations, ordinances or administrative orders or rules, including, but not limited to, the Federal Food, Drug, and Cosmetic Act (FD&C Act) and the California Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65).
8. INDEMNIFICATION: Vendor shall indemnity, defend and hold harmless Batory, its employees and agents (“Indemnified Parties”) from and against any claim, liability, loss or costs, including reasonable attorneys’ fees (collectively “Claims”), to or brought or asserted against any Indemnified Parties or any customer of Batory or any other third parties with respect to Products sold or distributed by Vendor, including, but not limited to, any product recalls or actions for negligence, strict liability or breach of warranty.
9. INSURANCE: Vendor shall maintain insurance at its own expense as set forth in Exhibit A hereto.
10. FORCE MAJEURE: Neither party shall be held liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement for failure or delay in fulfilling or performing any obligation under this Agreement, and such party’s performance shall be excused to the extent and for the time period that such performance is prevented or delayed, when such failure or delay is caused directly or indirectly by, or results from, causes beyond the reasonable control of the affected party, including but not limited to fire, explosion, flooding, embargo, war, acts of war (whether war is declared or not), public health crisis (including epidemic or pandemic), insurrection, riot, civil commotion, strike or other labor disturbance, lack of availability of labor or material, loss of communications, loss of facilities, natural catastrophes, acts of God, or acts, omissions or delays in acting by any governmental authority, including changes in laws or regulations (any of the foregoing, a “Force Majeure Event”). Such party shall give notice and full particulars of the Force Majeure Event in writing to the other party within a reasonable time after occurrence of the event or cause relied upon.

For the avoidance of doubt, Force Majeure shall not include (a) financial distress or the inability of either party to make a profit or avoid a financial loss, (b) changes in market prices or conditions, or (c) a party’s financial inability to perform its obligations hereunder.

CONFIDENTIALITY: Except as required by law, the Terms and Conditions of this Agreement and any written or verbal information pertaining to the operations and activities of the parties hereunder, including pricing, shall not be disclosed by either party hereto to persons other than its directors, officers, employees, agents, attorneys, accountants, and auditors, as necessary.

11. ASSIGNMENT/BINDING ON SUCCESSORS: Vendor may not assign or subcontract its obligations to Batory to any third party without the prior written consent of Batory. Any attempt to assign or subcontract Vendor’s obligations under any Agreement between Batory and Vendor without Batory’s written consent shall be void. In the event Batory consents in writing to such assignment or subcontract of Vendor’s obligations under the terms of any Agreement, then in such instance, Vendor shall cause the assignee or subcontractor (as the case may be) to consent in writing to be bound by these Terms and Conditions. Subject to the limitations on assignment stated herein, this Agreement shall inure to the benefit of and be binding upon the parties hereto, their successors and assigns.
12. GOVERNING LAW: This Agreement shall be construed in accordance with and governed by the substantive laws of the State of Illinois, without regard to its choice of law principles thereunder.
13. JURY WAIVER: The parties knowingly and irrevocably agree to waive the right to a trial by jury in the litigation of any dispute arising from or relating to the subject matter of this Agreement.
14. NOTICES: All notices, request, consents, claims demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Agreement or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party and (b) if the party giving the Notice has complied with the requirements of this section.
15. AMENDMENT: No amendments to this Agreement shall be effective unless evidenced in writing and signed by Vendor and Batory.
16. SEVERABILITY: The invalidity, in whole or in part, of any of the sections or paragraphs of this Agreement shall not affect the remainder of such section or paragraphs or any other section or paragraphs of this Agreement, which shall continue in full force and effect.

EXHIBIT A

Vendor Insurance Requirements:

Insurance shall be written to include the following types of coverage and for limits not less than the following:

TYPE OF INSURANCE                                                                                 LIMITS

1. COMMERCIAL GENERAL LIABILITY $1,000,000 – Each Occurrence

$2,000,000 – Aggregate

Bodily Injury and Property Damage Combined Single Limit, including:

Premises/operations, independent contractors, broad form property damage liability, blanket contractual, personal injury and products/completed operations.

2. VENDORS POLLUTION LIABILITY $1,000,000 – Each Occurrence

$2,000,000 – Aggregate

Third-Party coverage for Bodily Injury and/or Property Damage; Remediation costs stemming from pollution incidents resulting from covered operations.

3. AUTOMOBILE LIABILITY $1,000,000 – Each Accident

Bodily Injury and Property Damage Combined Single Limit, including any auto, all owned autos, hired and non- owned autos.

4. WORKER’S COMPENSATION Statutory

5. EMPLOYER’S LIABILITY

Each Accident                                                                                               $500,000 – Each Accident

Disease                                                                                                          $500,000 – Each Employee

Disease                                                                                                          $500,000 – Policy Limit

6. UMBRELLA LIABILITY $5,000,000 – min. coverage

7. PROFESSIONAL LIABILITY $1,000,000 – min. coverage

(Any independent individual or firm contracted for hire engineering or software programming services.)

Note:

• Certificate Holder and their subsidiaries, directors, officers, employees and agents are included as Additional Insured as their interest may appear with respect to General Liability, Automobile Liability, and Umbrella Liability.

• A Waiver of Subrogation in favor of the Certificate Holder and their subsidiaries, directors, officers, employees and agents should be included with respect to the General Liability, Automobile Liability, Employers Liability, and Umbrella Liability.

Certificate Holder:

Total Sweeteners, Inc.

dba Batory Foods

10255 W. Higgins Road

Rosemont, IL 60018

4864-3312-5439, v. 1