1. COMPLETE AGREEMENT; ACCEPTANCE – Unless otherwise agreed in writing by an authorized representative of Synergy Flavors, Inc. or any of its United States subsidiary companies, including Synergy Flavors Innova LLC, Synergy Flavors (OH) LLC, and Synergy Flavors (NY) LLC (all of which are collectively referred to herein as “Synergy”), these terms and conditions and all other purchase order documents issued or specifically approved in writing by Synergy (collectively, the “Order”) constitute the complete and exclusive agreement between Synergy and the vendor named in the Order (“Vendor”) relating to the purchase of the goods and/or services identified in the Order (the “Products”). The Order supersedes and replaces all other communications or agreements of any nature between Synergy and Vendor relating to the purchase of the Products. Vendor may accept the Order, which will also constitute acceptance of all the terms and conditions herein, by signing and returning the Order or a copy to Synergy, or by delivering the Products to Synergy, or by otherwise indicating Vendor’s acceptance. The Order expressly limits acceptance to the terms and conditions stated herein, and Synergy objects to and rejects all past or future additional or inconsistent terms or conditions of any kind. Synergy reserves the right to withdraw the Order at any time without obligation until it receives a written acceptance of the Order or delivery of the Products. In the event of any inconsistencies between the terms and conditions herein and those appearing on the face of the corresponding Synergy issued purchase order or other document, the terms on the face of such Synergy document shall control.
2. CHANGES – Synergy reserves the right to change the specifications, requirements and/or delivery schedules in the Order prior to written acceptance of the Order by Synergy or delivery to Synergy by Vendor. Any changes or modifications to the Order must be in writing and signed by an authorized representative of Synergy.
3. SHIPMENT; RISK OF LOSS; TIME OF THE ESSENCE – Vendor will pack goods at Vendor’s expense and arrange for shipment so that damage-free delivery is made to Synergy. Unless otherwise specified in the Order, delivery shall be made F.O.B. Synergy’s facilities at the address shown in the Order. Time is of the essence in the performance of the Order. All Products will be delivered to Synergy on or before the delivery date. If delivery of the Products is not completed by the delivery date, Synergy reserves the right to terminate the Order and to purchase substitute Products elsewhere and charge Vendor with any extra costs and other damages incurred. Vendor assumes all risks of loss or damage to the Products until delivery to and acceptance by Synergy. In the event the Products are rejected by Synergy or Synergy revokes its acceptance, all risks of loss or damage to the Products shall remain with Vendor.
4. PRICE – The price includes all packaging, transportation costs, insurance, customs duties and fees, and all sales, use and other applicable taxes. Vendor agrees that any general price reduction applicable to the Products after the placement of the Order shall be applied to the Order. Vendor shall provide to Synergy prices, terms and warranties for the Products no less favorable than the prices, terms and warranties offered by Vendor to any of its other customers. If at any time after sixty (60) days following the date of the Order, Synergy receives a written offer from a reputable third party supplier to supply, in place of Vendor, all or a portion of the Products remaining to be supplied under the Order which are of like quality and deliverable in similar quantities at a price which is less than the for such remaining Products, Synergy may notify Vendor in writing of such competitive offer and its material terms and conditions, including the quantity that Synergy intends to purchase under the competitive offer. Vendor may by written notice within thirty (30) days of receipt of Synergy’s notice: (a) meet the competitive offer for the quantity that Synergy intends to purchase from the competitive source and amend the Order accordingly; or (b) choose not to meet the competitive offer but instead deduct from the maximum quantity provided in the Order the quantity that Synergy intends to purchase from the competitive supplier and amend the Order accordingly. If Vendor has not exercised either of its options above within such thirty (30) day period, then Synergy may (i) elect the option described in clause (b) of this paragraph above by written notice to Vendor within thirty (30) days after the expiration the period for Vendor’s election, or (ii) cancel the Order upon thirty (30) days prior written notice.
5. PAYMENT TERMS – Synergy will pay the undisputed portions of each properly rendered Vendor invoice within sixty (60) days of its receipt by Synergy. All payments will be in U.S. dollars and made by wire or automated clearing house transfer, or by corporate check. Synergy reserves the right to withhold, deduct and/or set off amounts owed to it by Vendor from any amounts due from Synergy to Vendor under the Order.
6. QUANTITIES; NON-EXCLUSIVITY – Any unauthorized quantity of Products delivered by Vendor may be rejected by Synergy and returned at Vendor s expense. Unless otherwise agreed in writing by Synergy, any quantity of Products to be purchased in recurring monthly periods, installments or otherwise by Synergy over a period more than ninety (90) days shall be an estimate only and there is no minimum purchase commitment made by Synergy. Vendor acknowledges that the quantities of such Products estimated by Synergy are based upon Synergy’s good faith estimate of its needs for the Products as of the date of the Order and may be subsequently reduced by Synergy based upon its then current needs and business conditions. Any such reduction by Synergy shall not diminish or affect Vendor’s obligation to supply the maximum quantity of goods identified in the Order except to the extent of such a reduction by Synergy. Vendor acknowledges that Synergy is free to purchase the same or similar Products from other suppliers and/or to manufacture the Products.
7. INSPECTION – The Products are subject to inspection and approval by Synergy at the place of delivery set forth in the Order. Synergy reserves the right to reject and refuse acceptance of any or all portions of the Products which are not in accordance with: (a) the description of the Products in the Order; (b) the specifications agreed to by Synergy in writing; (c) Vendor’s samples, advertising materials and other representations; or (d) any express or implied warranties. Any or all portions of the Products not accepted will be returned to Vendor at Vendor’s expense and a full refund shall be promptly issued by Vendor to Synergy. Alternatively, at the option of Synergy, Vendor shall at its sole risk and expense promptly correct or replace such Products with conforming Products. If Vendor fails to correct or replace any nonconforming Products promptly after notification by Synergy, Synergy may correct or replace such Products and charge Vendor for the costs incurred by Synergy and/or set-off the cost against any payment due to Vendor. When requested by Synergy, Vendor will promptly re-execute, at its own cost, any defective or unsatisfactory services rendered to Synergy, and Vendor will correct or replace, at Vendor’s sole cost and expense, any defects which appear after the acceptance of any completed services. All work performed by Vendor at Synergy facilities will be at Vendor’s risk until accepted by Synergy. Payment for any Products prior to inspection and approval shall not constitute acceptance thereof and is without prejudice to any claims that Synergy may have.
8. WARRANTIES – Vendor warrants that the Products shall be: (a) in full conformity with the specifications, drawings, data and/or other descriptions (including samples) furnished to or as specified by Synergy, (b) free from any liens, (c) new (unless otherwise agreed), (d) fit for the use intended by Synergy, (e) merchantable, and (f) of good material and workmanship, and (g) free from any defects. All services furnished shall be performed in a skillful and workmanlike manner. Vendor guarantees that all goods and services shall comply fully with all applicable laws. In addition, Vendor warrants that it, and the manufacture, marketing and sale of Products supplied to Synergy shall comply with all applicable requirements of the Federal Food, Drug and Cosmetic Act, as amended (the “Act”), the rules and regulations of the Food and Drug Administration, the Food Safety Modernization Act and regulations issued thereunder, and any similar or equivalent state laws and regulations as well as laws applicable to Products intended for use outside of the United States. Vendor guarantees that no article delivered under the Order shall be adulterated or misbranded within the meaning of the Act, or is an article which may not, under the provisions of sections 404, 505 or 512 of the Act, be introduced into interstate commerce. The foregoing warranties are in addition to any warranties of additional scope provided by Vendor. All warranties shall survive acceptance of the Products or any termination of the Order. All warranties will run to Synergy, its successors, assigns and customers, as well as any third party injured due to breach of any warranty. Vendor shall permit Synergy and/or auditors appointed by Synergy to have access to Vendor’s facilities used to manufacture, pack, hold or ship the Products. Any such inspection may include review of records, processes, controls and facilities which demonstrate that the Products meet or will meet specifications and comply with all other warranties under the Order.
9. INDEMNIFICATION – Vendor shall defend and fully indemnify Synergy, each of its related and affiliated companies, and each of its and their directors, officers, employees, contractors and agents (Synergy and each such other indemnified entity and person is referred to below as a “Synergy Party”) from any investigation, allegation, claim, suit, liability, loss, damage, cost or expense, including reasonable attorney’s fees (each a “Claim”) arising out of or relating to: (a) any breach by Vendor of any Vendor warranty, covenant, representation or obligation under or in connection with the Order, (b) any actual or alleged negligent or wrongful act or failure to act by Vendor, any of its subsidiary or related companies, or any of its or their employees, agents, representatives, affiliates or contractors (Vendor and all such other entities and persons are collectively referred to below as the “Vendor Parties”) in connection with the Order; (c) any failure on the part of any of the Vendor Parties to comply with applicable laws, regulations or government orders in connection with the Order, and (d) any infringement or alleged infringement by any of the Vendor Parties of any copyright, patent or other intellectual property right of any kind in connection with the Order. Synergy will notify Vendor as soon as practicable following its receipt of notice of any Claim, provided that any failure to give such notice shall not affect Vendor’s obligations hereunder. Vendor shall, at its expense, immediately assume the defense of such Claim and/or otherwise fully resolve such Claim without any liability to any the Synergy Party. Each Synergy Party may participate in such defense, at its option and expense, and each of them shall have the right to reject any settlement that imposes any liability on any of them or that does not release each of them from liability unconditionally. If Vendor fails to assume the defense of any Claim, Synergy may defend the Claim and, in such case, Vendor shall immediately reimburse Synergy for all fines, liabilities, costs, expenses and fees (including reasonable attorneys’ fees) incurred by Synergy or any other the other Synergy Parties. The rights and obligations contained in this paragraph shall survive termination or completion of the Order.
10. INSURANCE – Vendor shall obtain and maintain policies of insurance as follows: (a) Commercial General Liability coverage (“CGL”), including products/completed operations and broad form contractual liability coverage which specifically applies to the obligations of Vendor under the Order, with combined bodily injury and property damage minimum policy limits of $1,000,000 each occurrence, $1,000,000 personal injury liability, $2,000,000 products/ completed operations aggregate, and $2,000,000 general aggregate; Synergy Flavors, Inc. and its affiliated companies shall be named as additional insureds such that coverage shall extend to the Vendor’s full obligation to defend and indemnify Synergy as expressed in the Order, without exclusion or limitation; (b) Automobile Liability coverage in compliance with coverage required by applicable state law and with a minimum $1,000,000 combined single limit and “Any Auto” symbol endorsement; (c) Workers’ Compensation and Employers Liability coverage in compliance with the laws of every state in which work is being performed or a product sold and with Employers Liability policy limit no less than $1,000,000 bodily injury, each accident; (d) Excess or Umbrella Liability with policy limit no less than $5,000,000 coverage for bodily injury and property damage, combined; (e) Errors and Omissions Liability (for consultants and technical advisors), with $5,000,000 minimum policy limit. Vendor shall provide to Synergy prior to any supply of products or performance of any work, and at least annually thereafter during the period in which the Order is effective, a certificate of insurance (“COI”) evidencing such insurance. Such insurance must be provided by insurers rated A, VIII or better per A.M. Best. All policies and COIs shall provide for not less than thirty (30) days’ prior written notice to Synergy of any material change or cancellation of coverage. Vendor will maintain the products/completed operations coverage under its CGL and umbrella policies for not less than two (2) years after the completion or termination of the Order and will pay all premiums on all policies as and when the same become due. Coverage shall include a waiver of subrogation in favor of Synergy and its affiliated companies. All insurance required herein shall be primary and not entitled to contribution from any insurance maintained by Synergy or any affiliated company. Neither failure of Vendor to comply with any of the insurance provisions herein, nor the failure to secure endorsements on the policies, shall relieve Vendor from any of its obligations under the Order, including the indemnification provisions.
11. POLICIES – While on Synergy’s premises Vendor shall comply with all of Synergy’s security and safety policies and procedures. Vendor shall not bring onto or generate on Synergy’s properties any hazardous materials without Synergy’s prior written consent.
12. CONFIDENTIAL AND PROPRIETARY INFORMATION – All specifications, formulas, drawings, data and similar information (collectively, “Information”) furnished by Synergy to Vendor shall remain the property of Synergy and shall be used by Vendor only to the extent required for its performance of the Order. All Information shall be deemed to be confidential information of Synergy. Upon completion of the Order, Vendor shall promptly return the Information (including any copies) to Synergy. Vendor shall not make any further use of the Information and it will not disclose any of the Information to any third party. Vendor will not, without first obtaining the written consent of Synergy, advertise or publish the fact that Vendor has supplied any Products to Synergy.
13. FORCE MAJEURE – Fires, severe weather, accidents, labor disturbances, terrorist acts, war conditions, governmental acts, laws or regulations, or other causes beyond the reasonable control of the parties which render Vendor unable to deliver, or Synergy unable to receive, use or sell, the Products will permit Synergy at its option to extend the time for performance or cancel the Order by written notice to Vendor without liability for such cancellation. Vendor shall immediately give notice to Synergy whenever any such actual or potential event delays or threatens to delay Vendor’s timely performance of the Order.
14. TERMINATION; CANCELLATION – Synergy may terminate the Order, in whole or in part, at any time due to Vendor’s breach of any of the terms of the Order or for any other reason, by written notice, or verbal notice confirmed in writing, to Vendor. If Vendor is not in breach or default under the Order, Vendor’s sole remedy for termination for convenience by Synergy will be limited to recovery of the actual direct costs incurred by Vendor to fulfill the Order prior to its receipt of notice of termination. If at any time Synergy shall reasonably determine that Vendor is, or is about to become, insolvent or bankrupt, Synergy may cancel the Order. In addition, without limiting any right of cancellation for Vendor’s breach or default, Synergy may cancel the Order or any portion thereof if, for any reason, delivery or performance is not made or cannot be made when specified, time being of the essence. Synergy’s right of cancellation includes the right to cancel any future installments in the event of failure or delay in delivery or performance. Synergy shall not be liable under any circumstances for any special, consequential, incidental or indirect damages arising from any termination of the Order by Synergy or for any other reason.
15. GENERAL CONDITIONS – (a) Vendor may not assign or delegate rights or duties under the Order without Synergy’s written consent, and any such proposed assignment or delegation shall be void and of no effect; (b) Vendor shall comply with all applicable federal, state, local and foreign laws, regulations and rules; (c) No delay or failure on the part of Synergy in exercising any right or remedy under the Order, and no partial or single exercise thereof, shall constitute a waiver of such right or remedy or of any other right or remedy; (d) If any term in the Order or the application thereof shall be deemed illegal, such illegality shall not affect any other term or condition in the Order, and such other terms and conditions shall continue in full force and effect; (e) All rights and remedies of Synergy under the Order shall be cumulative and not exclusive and shall be in addition to all other rights in law or equity; (f) Any written notice required under the Order may be given by certified or registered mail, return receipt requested, or by nationally recognized overnight delivery service, or by telefax or like forms of notice.
16. GOVERNING LAW AND VENUE – The Order shall be governed by and construed in accordance with the law of the State of Illinois. U.S.A. without application of conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Order. Vendor irrevocably consents to the exclusive jurisdiction and venue of the courts of the State of Illinois or the United States District Court for the Northern District of Illinois in all matters arising out of or relating to the Order. Vendor irrevocably consents to service of process by United States certified or registered mail, return receipt requested, at Vendor’s address set forth in the Order.
Updated: December 1, 2021