THE SECTION 20 BELOW TITLED “DISPUTES” CONTAINS A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER THAT AFFECT BUYER’S LEGAL RIGHTS. BY PURCHASING PRODUCT FROM POET, BUYER EXPRESSLY CONSENTS TO SUCH PROVISIONS.
1. Governing Terms. These Terms and Conditions of Sale and the Confirmation of Terms document to which they relate (together, these “Terms” or this “Contract”) govern the sale and/or delivery by POET Nutrition, Inc. (including its affiliates) (collectively, “POET”) of the product described in the Confirmation of Terms (“Product”) to the buyer identified on such Confirmation of Terms (“Buyer”), unless otherwise agreed in a written agreement signed by POET. POET offers to sell and/or furnish Product solely pursuant to these Terms and any acceptance is expressly limited to these Terms. If Buyer has ordered Product from POET and such order is deemed to be an offer, then POET’s acceptance of such offer is expressly conditioned on Buyer’s assent to these Terms. Any additional or different terms proposed by Buyer in any offer, acceptance or confirmation are requests for material alterations of these Terms and are rejected by POET. No course of dealing, course or performance or usage of trade will supplement or explain these Terms.
2. Weights; Units of Sale. Unless otherwise specified in the Confirmation of Terms, all weights of the Product will be on a net weight basis in gallons or ounces. The unit of sale, if agreed by POET, may be by rail car, tank car, truck, barge, container, tote, barrel or similar bulk conveyance, in which case such weights will be approximate, must be agreed upon in advance by POET and Buyer, and are not subject to overfill or underfill claims by either party. Unless a demand for arbitration is made pursuant to Paragraph 20, within thirty (30) calendar days of Delivery of the Product, Buyer waives all claims for a deficiency in weight of the Product.
3. Price. The price for the Product is the price specified in the Confirmation of Terms. 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 agreed in writing by POET or as provided in these Terms.
4. Price Changes; Taxes; Fees; Freight Rates; Surcharges. Any change in the price or other terms of this Contract caused by government regulations will entitle POET to cancel this Contract or any unshipped portion thereof. In the event any tax (including tonnage tax or sales/use tax), public charge, duty or tariff is assessed or imposed on the Product, POET’s sale thereof, or other action taken hereunder, or on the export or import of the Product, or if any changes are made in the customs or railway classification for the Product or in the existing freight rates, then each such tax, fee, charge, duty, tariff or change will be paid by Buyer, and Buyer shall promptly reimburse POET if POET incurs the same on Buyer’s behalf. Any fuel surcharge or increase in freight rates taking effect before the full performance of POET’s obligations hereunder will be paid by Buyer, unless otherwise expressly provided in these Terms.
5. Payment. Unless otherwise specified in the Confirmation of Terms or agreed in writing by POET, payment in full for the Product is due upon Buyer’s receipt of an invoice from POET and shall be made at the address indicated on POET’s invoice; provided that if Buyer purchases the Product directly from POET’s website, then payment in full for the Product is due at the time of purchase. No cash discounts will be granted. All amounts past due will incur a finance charge of 1.5% per month, calculated from the date of delinquency, or the maximum rate permitted by applicable law. Buyer will pay POET on demand all costs and expenses incurred by POET in collecting delinquent accounts or in otherwise enforcing these Terms, including reasonable attorneys’ fees and court costs. POET reserves the right to revise any credit terms or credit limits that may have been previously extended to Buyer at any time and for any reason. POET will retain a security interest in the Product sold hereunder to secure any portion of the price not paid by Buyer, and Buyer will, upon POET’s request, execute any other documents requested by POET to evidence such interest. Buyer authorizes POET to file financing statements to evidence the security interest described herein. All payments including claims shall be made in U.S. Dollars; and, all such payments must be made to POET’s bank account in the United States or as otherwise requested by POET; provided that if Buyer purchases Product directly from POET’s website, then Buyer acknowledges and agrees that Buyer must pay for the Product using either (1) a credit card, debit card accessing a bank account or (2) an executed (and unrevoked) ACH Payment Authorization in which Buyer agrees to make payment by ACH debit to Buyer’s bank account. If any payment made by Buyer is not honored or cannot be processed for any reason, Buyer agrees that POET may charge a reasonable returned payment fee. BUYER EXRESSLY ACKNOWLEDGES AND AGREES THAT POET IS NOT RESPONSIBLE FOR PAYMENT DELAYS THAT MAY OCCUR AS A REUSLT OF BANK HOLIDAYS, THE PROCESSING SCHEDULE OF BUYER’S BANK, BANK OR PAYMENT CARD PROCESSING ERRORS, OR OTHER EVENTS BEYOND POET’S CONTROL WHICH MAY AFFECT OR INTERFERE WITH BUYER’S PAYMENT. BUYER FURTHER ACKNOWELDGES AND AGREES THAT POET MAY REPORT INFORMATION ABOUT THIS PURCHASE AND YOUR PERFORMANCE UNDER THIS PURCHASE TO CONSUMER REPORTING AGENCIES, IN ACCORDANCE WITH APPLICABLE LEGAL REQUIREMENTS. LATE PAYMENTS AND MISSED PAYMENTS (AS APPLICABLE) MAY BE REFLECTED ON BUYER’S CREDIT REPORT.
6. Title; Shipment. Unless stated otherwise in these Terms, all Products will be delivered pursuant to the Incoterm specified in the applicable Confirmation of Terms (“Delivery”), at which point title and risk of loss will pass to Buyer, unless provided otherwise herein. Failure on the part of POET to ship or deliver, or non-conformity of the Products in, any installments will not be a breach of the entire agreement. POET’s weights will govern settlement. No allowance for shortage will be made by POET, unless Buyer furnishes acknowledgement from the carrier that such loss did not occur in transit. In the event of loss or damage in transit, Buyer will file its own claim with the carrier.
7. Demurrage; Detention. POET reserves the right to charge Buyer for detention or demurrage charges incurred in connection with the shipment or delivery of the Products to the extent such charges are incurred due to Buyer’s failure to unload a railcar or other delivery conveyance within a reasonable amount of time.
8. Delivery; Acceptance. Buyer shall be solely responsible for ensuring the cleanliness and proper functioning of any transport vessel it or its agents use to accept Delivery of the Product, including but not limited to the tank and any loading equipment. In the event a transport vessel provided by Buyer is not reasonably acceptable to POET, Buyer will be notified and granted 24 hours to remedy the deficient transport vessel to the reasonable satisfaction of POET or to accept liability for the quality and grade of the shipment. Buyer will have five (5) days after Delivery to determine whether the Product conforms to the requirements of these Terms. Buyer waives all claims against POET unless such claims are delivered in writing to POET within such 5-day period.
9. Force Majeure. Except as otherwise provided in this section, POET will not be liable for any failure or delay in its shipment or Delivery of the Product or other performance hereunder in the event such performance is hindered or prevented, directly or indirectly, due to acts of God, fire, flood, wind, tornado, hurricane, tsunami, earthquake, epidemic, pandemic (including COVID-19), explosion, war, hostilities, acts of terrorism, riot, embargo, blockade, civil commotion, sabotage, law, acts and orders of government (including mandatory shutdown), prohibition to export, labor difficulties, strike or lockout, shortages of, or inability to obtain under commercially reasonable terms, fuel, transportation or other types of energy, plant shutdown, equipment failure, diminished production of the Product by POET’s regular suppliers, or any other cause beyond the reasonable control of POET (each, a “Force Majeure Event”). In any Force Majeure Event or other situation in which POET is unable to supply the quantity of Product ordered, POET may allocate any inventory of Product among all of its customers (including its affiliates) in any manner deemed reasonable to POET; and under no circumstances shall POET be obligated to procure back-up supply of Product, purchase or repair new or different equipment, or produce the Product in any different or specific location or plant.
10. Seller Warranties and Disclaimers; Limitation of Liability. POET warrants that at the time of Delivery the Products will conform to the specifications set forth on Exhibit A hereto, or such other specifications that are approved by, or submitted by POET for approval to, the FDA (the “Specifications”). This limited warranty is exclusive and in lieu of all other warranties. POET does not extend this limited warranty, and Buyer may not transfer it, to Buyer’s customers or any other third party. POET 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, TITLE, OR THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. POET 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”.
Buyer understands, acknowledges and agrees that (a) the Product is intended for use as a topical sterilizing agent only and is NOT INTENDED TO BE DIGESTED BY HUMANS, AND POET EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH USE, (b) Buyer shall not, and shall not permit any other party to, digest or allow the Product to be digested by humans or used in any manner for which it was not intended to be used and (c) neither POET nor its suppliers shall be liable to Buyer or any third party, in whole or in part, for any claims arising from any such use. There are no oral agreements or warranties collateral to or affecting this Contract. POET does not extend this limited warranty, and Buyer may not transfer it, to Buyer’s customers or any other third party. Buyer assumes all risk and liability for use and/or resale of the Products, whether used or resold singly or in combination with any other materials or products.
To the maximum extent permitted by applicable law, THE SOLE AND EXCLUSIVE LIABILITY OF POET, AND THE SOLE AND EXCLUSIVE REMEDY OF BUYER, for POET’s breach of its limited warranty or any other obligation under these Terms is limited exclusively, at the option of POET, to: (a) replacement of the nonconforming Products or (b) refund of or credit for the price paid for the nonconforming Product as reasonably determined by POET. WITHOUT LIMITING THE FOREGOING, POET WILL IN NO EVENT BE LIABLE TO BUYER OR ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, USE, REVENUE, BUSINESS OPPORTUNITY OR GOODWILL, WHETHER IN AN ACTION BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY, ARISING FROM OR RELATED TO THE TRANSACTIONS CONTEMPLATED HEREUNDER, EVEN IF POET KNEW OR SHOULD HAVE KNOWN OF THE LIKELIHOOD OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, POET’S AGGREGATE LIABILITY FOR DAMAGES FROM ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION (IN CONTRACT OR IN TORT OR OTHERWISE), SHALL BE LIMITED TO BUYER’S DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE NET AMOUNT POET WAS PAID FOR THE PRODUCT(S) THAT CAUSED THE DAMAGES OR ARE THE SUBJECT MATTER OF THE CAUSE OF ACTION.
11. Buyer’s Representations. Buyer represents that it is not insolvent, as the term is defined under any applicable state or federal law, and that Buyer is able to perform its obligations under these Terms. Buyer further represents and warrants that it will not use, give, sell, transfer or distribute any Product that is visibly defective. In entering into this Contract, POET has relied on such representations.
12. Indemnification. Buyer shall defend, indemnify and hold harmless POET and its affiliates and their respective equity holders, officers, directors, consultants, employees, agents and assigns from and against any and all losses, damages, claims, liabilities, judgments, fees, fines, penalties, costs and expenses, including attorneys’ fees and court costs, arising from, in connection with or related to: (a) Buyer’s violation of any of its obligations under these Terms; (b) the subsequent use and/or resale of the Product by Buyer or any direct or indirect transferee of Buyer; (c) any negligent act or omission by Buyer; (d) Buyer’s willful misconduct; and (e) Buyer’s violation of any applicable law, rule or regulation.
13. Default. In the event: (a) Buyer fails to make full payment for any Products when due or breaches any other obligation of Buyer under these Terms, (b) Buyer fails to accept conforming Products, (c) a voluntary or involuntary petition in bankruptcy is filed against Buyer or Buyer becomes insolvent or makes an assignment for the benefit of creditors, (d) Buyer is dissolved, liquidated, merged or transfers a substantial part of its assets, (e) all or a controlling portion of Buyer’s stock or other ownership interest is transferred, or (f) Buyer’s financial condition becomes unsatisfactory to POET, then POET, in addition to all other rights or remedies hereunder or at law or in equity, may: (i) terminate all pending orders of the Products without liability to Buyer, (ii) require Buyer to provide adequate assurance of performance, including such payment or other security as POET may specify, (iii) declare all sums due POET by Buyer to be immediately payable, and (iv) make shipments or deliveries only on arrival draft of C.O.D. basis or require cash in advance of shipment. All remedies are cumulative.
14. Acknowledgment. Buyer acknowledges that POET has set its prices, and has agreed to sell the Products to Buyer, in reliance on the 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 POET would not have agreed to sell Products to Buyer.
15. Use of Name; Marketing Matters. Buyer agrees that POET may reference Buyer as a customer of its products, include Buyer’s name in current customer lists, on POET’s website and in other promotional materials and display Buyer’s name and logo on POET’s website. Buyer agrees that it shall not represent as a POET hand sanitizer product any product, whether purchased hereunder from POET or otherwise obtained from POET or any third party, unless such product was originally sourced from POET and sold by POET as a POET hand sanitizer product. Buyer acknowledges and agrees that POET’s name and trademarks, including those set forth on POET’s website, and all related names, logos, product and service names, designs and slogans (collectively, “Marks”) are trademarks of POET or its licensors. Buyer may not use such Marks without the prior written consent of POET.
16. Confidential Information. These Terms and any information or materials transmitted by POET to Buyer in conjunction with POET’s sale of the Products may contain information confidential and proprietary to POET or its affiliates. Buyer may not use such information except in conjunction with the performance of the transactions contemplated by these Terms and may not disclose such information to any third parties without the prior written consent of POET. 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 POET, 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.
17. Legal Compliance; Changes. Buyer will comply will all applicable laws, ordinances, regulations and administrative rules governing the purchase and/or use of the Products, including without limitation all environmental laws and regulations and all laws and regulations governing the export or import of the Products. Buyer will give all notices required by such laws, ordinances, regulations and administrative rules which apply to the Products. Any change in the price of the Products caused by changes in governmental regulations will entitle POET to cancel any unshipped or undelivered portion of the Products to be shipped or delivered by POET hereunder.
18. Notices. POET and Buyer may transmit and receive documents and notices by email in lieu of written documents and notices, unless objected to by Buyer. The failure of Buyer to object to such notification method within five (5) days of Buyer’s receipt of these Terms will constitute Buyer’s agreement to future electronic notifications between the parties.
19. Governing Law. These Terms, the transactions hereunder and any claim arising under or relating to the subject matter hereof shall in all respects be governed by, subject to, and construed and enforced in accordance with the laws of the State of South Dakota, U.S.A. without regard to principles of conflicts of law. The parties expressly agree that the terms of The United Nations Convention on Contracts for the International Sale of Goods or any successor thereto do not apply to these Terms.
20. Disputes. All disputes arising out of the performance or non-performance of the parties’ obligations hereunder will be settled by final and binding arbitration conducted by a single arbitrator acceptable to POET and Buyer. Arbitration shall take place in Sioux Falls, SD, USA pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any judgment based upon an arbitration award under this paragraph may be entered in the highest court of the forum, state or federal, having jurisdiction. Notwithstanding the foregoing, POET, at its option, may pursue collection of delinquent payments in any court having jurisdiction, including but not limited to, the federal or state courts located in Minnehaha County, SD, USA, 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 one (1) year after the date Buyer received the Product at issue. Buyer agrees that any arbitration or proceeding shall be limited to the dispute between POET and BUYER individually, and (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. BUYER AGREES THAT BUYER MAY BRING CLAIMS AGAINST POET ONLY IN BUYER’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING
21. Waiver. POET will not be deemed to have waived any of its rights or remedies under these Terms or any applicable law unless the waiver is in a writing signed by POET and no waiver of a right or remedy will operate as a waiver of such right or remedy or any other right or remedy on any future occasion.
22. Assignment. These Terms will bind and inure to the benefit of POET and Buyer and their respective successors and assigns. Buyer may not assign or delegate any rights or obligations under these Terms without the written consent of POET, and any purported assignment without POET’s written consent will be null and void. In the event Buyer is a corporation or other legal entity, a prohibited assignment by Buyer will be deemed to have occurred upon the transfer of a majority of shares or other ownership interests in Buyer, whether such transfer takes place in one transfer or successive transfers over time. POET may assign or delegate any and all rights and obligations under these Terms to a third party without Buyer’s consent.
23. Entire Agreement; Amendment. These Terms and all other documents referenced herein, constitute the entire agreement between POET and Buyer with regard to the Products and expressly supersede and replace any prior or contemporaneous agreements, written or oral, relating thereto. This Contract and these Terms may not be superseded, cancelled or amended except in a writing signed by POET. 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.
24. Electronic Signature. With respect to purchases of Product may online, Buyer acknowledges and agrees that when Buyer or its representative clicks the “I Agree” button at checkout to these Terms and Conditions when purchasing the Products, that Buyer is are providing an authorized electronic signature to this Contract and these Terms. By electronically signing, Buyer or its representative is agreeing to all the terms and conditions in this Contract and these Terms, and certifying that all information Buyer has provided is complete and accurate. Buyer agrees that its or its representative’s electronic signature will have the same force and effect, and will bind Buyer to this Contract and these Terms to the same extent as a physical signature would. Buyer also agree that this Contract and these Terms and all related documents are electronic records and that, as such, they may be transferred, authenticated, stored and transmitted by electronic means.