General Terms and Conditions

These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of goods by Nonni’s Foods LLC, a Delaware limited liability company located at 433 W Van Buren St, Ste 200, Chicago, IL 60607 (“Nonni’s”) and the party listed on the PO (defined herein) (“Customer”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Products covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.

The accompanying Pricing List (the “Pricing List”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.

1. RECITALS AND PURPOSE. Customer desires to purchase from Nonni’s a supply of either made to stock (“MTS”) and made to order (“MTO”) products listed in the Pricing List (the “Products”) and Nonni’s desires to sell the Products to Customer.
2. PURCHASE ORDERS. Customer will issue a purchase order (“PO”) stating the type and quantity of Product to be ordered and the destination for delivery of the Product and Nonni’s may accept or reject each PO in its sole discretion. These Terms prevail over any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its PO or such terms. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms.
3. ORDER LEAD TIME.
   
   1. MTS—Nonni’s may reject a PO without liability or penalty, and without constituting a waiver of any of Nonni’s rights or remedies under this Agreement or any PO, if such PO does not specify a pick-up or delivery date for such Products set forth in the PO that is at least ten (10) days from Nonni’s confirmation of acceptance of such PO in accordance with the terms of this Agreement.
   2. MTO—Nonni’s may reject a PO without liability or penalty, and without constituting a waiver of any of Nonni’s rights or remedies under this Agreement or any PO, if (i) such PO does not specify a pick-up or delivery date for such Products set forth in the PO that conforms with the specified days of lead time required for the MTO Product from the date of Nonni’s confirmation of acceptance of such PO in accordance with the terms of this Agreement, or (ii) Nonni’s determines, in its sole and reasonable discretion, that its ability to procure custom ingredients may warrant additional lead time.
4. CASE FORMAT.
   
   1. MTS—All MTS Products shall be labeled in accordance with the North American Industry Guidance for Standard Case Code Labeling.
   2. MTO—All MTO Products shall be labeled in accordance with the North American Industry Guidance for Standard Case Code Labeling. Notwithstanding the foregoing, Customer may request an alternative case code labeling standard from Nonni’s. Nonni’s shall not be subject to any alternative case code labeling standard unless such standards (i) comply with applicable law, (ii) comply with and are subject to Nonni’s manufacturing capabilities from time to time, (iii) are in accordance with standards which are mutually agreeable to Nonni’s and Customer (including pricing), and (iv) are in writing signed by Nonni’s.
5. PURCHASE ORDER CHANGE REQUESTS.
   
   1. MTS—Subject to Nonni’s confirmation and acceptance, Customer shall have the right by written change order to amend the terms of a PO with respect to only Product quantity and timing of shipment; provided, however, Nonni’s shall not be liable for or in respect of any loss or damage arising from any failure to service an on-time, complete PO in the event such change order is delivered to Nonni’s within ten (10) days of the pick-up or shipment date of Products set forth in the initial PO.
   2. MTO—Unless otherwise agreed in writing by Nonni’s, once a PO containing MTO Products has been accepted by Nonni’s, Customer may not change any terms of such PO with respect to any Product quantity or timing of the shipment.
6. PAYMENT TERMS. All payments due to Nonni’s from Customer shall be due Net 30 days from the date of invoice. Customer shall not be entitled to any early payment discount. Prices are based on date of order. If requested delivery date exceeds 30 days from date of the order, the order will repriced. Updated pricing will reflect a 30 day lead time from requested delivery date.
7. ORDER MINIMUMS. Order minimums are set forth in the Pricing List and vary by each individual Product. Nonni’s reserves the right to reject any PO that does not meet the order minimum requirements for any given Product or group of Products.
8. SHIPMENT TERMS. Unless otherwise agreed to by Nonni’s and Customer in writing, Nonni’s shall deliver the Products to the delivery location set forth in the applicable PO. Nonni’s reserves the right to (i) produce and ship Products from any of its (or its suppliers’) plants or facilities, (ii) use its preferred method of transportation and carriers for the delivery of Product, and (iii) keep any and all information regarding such transportation or carriers confidential. Nonni’s shall provide a seal for any and all scheduled delivery stops but shall permit the use of any carrier seals if such seal number is properly noted on the applicable bill of lading. Any time quoted for delivery is an estimate only; provided, however, that Nonni’s shall use commercially reasonable efforts to deliver all Products on or before such requested delivery date. Upon a Force Majeure Event or in the event Customer is unable to meet a scheduled appointment or pickup date, Nonni’s shall not be liable or responsible for any damages or delay in the shipment or delivery of any Products. Subject to Customer’s rights under this Section, no delay in the shipment or delivery of any Products relieves Customer of its obligations under this Agreement, including accepting delivery of any remaining installment or other orders of Products.
9. CUSTOMER SHIPPING REQUIREMENTS. Unless otherwise agreed to by Nonni’s and Customer in writing, Nonni’s shall deliver Products to Customer in accordance with Nonni’s usual shipping standards (as determined by Nonni’s in its sole discretion), including, without limitation, pallet type, pallet skids, case stickers, or pallet placecards. Nonni’s shall deliver all Products to Customer in accordance with Nonni’s standard shipping pallet labels, a bill of lading and a packing list for each delivery.
10. TITLE; RISK OF LOSS. Risk of loss to Products shipped under any PO passes to Customer upon delivery by Nonni’s or its carriers to Customer’s facility as set forth in the applicable PO.
11. PRODUCT ACCEPTANCE. Customer takes acceptance of the Product upon delivery and shall examine all goods upon receipt at the delivery location stated on the PO. Customer shall note any visible damage on the bill of lading at the time of delivery.
12. AUDIT REQUIREMENTS. Any facility or facilities used to produce the Products shall be certified under, and in compliance with, the Global Food Safety Initiative (“GFSI”). Nonni’s audit reports may be made available to Customer upon reasonable written request. All requests for audits of any Nonni’s Foods LLC facilities must be in writing and approved in advance, with not less than four (4) weeks prior written notice by an authorized party of Nonni’s and shall be limited to facilities and areas pertaining only to Customer’s product. Nonni’s reserves the right to refuse audit requests, in its sole discretion, at any time. All audits shall be at Customer’s sole expense and only done upon signature of a confidentiality agreement provided by Nonni’s.
13. FINISHED PRODUCT TESTING.
    
    1. MTS—At no time shall Customer be permitted to test any finished Product at any facility owned by Nonni’s or its affiliates prior to such Product’s pick-up or delivery.
    2. MTO–Customer shall be permitted to test any finished Product at any facility owned by Nonni’s or its affiliates prior to such Product’s pick-up or delivery upon the prior written approval of Nonni’s. Any and all Customer testing of finished Product permitted by Nonni’s shall be subject to the execution by Customer of Nonni’s standard non-disclosure agreement and shall be performed at Customer’s sole cost and expense. Furthermore, all such testing shall (i) comply with all applicable rules, laws and regulations, (ii) take place during normal business hours, (iii) be performed in the presence of a representative of Nonni’s, and (iv) be performed in such a manner (A) as to not unreasonably interfere with the day-to-day operations of Nonni’s, and (B) consistent with standard industry procedures and protocols.
14. FORMULA OWNERSHIP.
    
    1. Customer acknowledges and agrees that any and all of the rights, title and interest in and to Nonni’s or its licensors’ intellectual property (including, without limitation, formulas, recipes, processes, know-how, methodologies, techniques and trade secrets used in the production of any and all Products pursuant to this Agreement) (collectively, “Nonni’s Intellectual Property”) is and shall remain the sole and exclusive property of Nonni’s or its licensors, and Customer shall not acquire any ownership interest in any of Nonni’s Intellectual Property under this Agreement or any PO.
    2. Customer agrees not to take or permit any action contradicting Nonni’s rights to Nonni’s Intellectual Property. Nonni’s reserves the right to sell any and all products containing any Nonni’s Intellectual Property to any other customer. Nothing in this Agreement shall limit Nonni’s rights under applicable statutory or common law, including tort and trade secret law, to the extent such law provides broader rights.
15. PRODUCT RETURNS.C It is Nonni’s policy that is does not accept physical return of Products to any of its facilities.
16. FORMULA DISCLOSURE.C Nonni’s shall have no obligation pursuant to this Agreement or any PO to disclose any Product formulas or specifications to Customer; provided, however, Nonni’s shall disclose to Customer, upon Customer’s reasonable request, Product range formula specifications within commonly acceptable ranges as determined by Nonni’s in its sole discretion.
17. WARRANTIES. Nonni’s warrants that all Products purchased hereunder shall be fit for human consumption. Unless otherwise agreed in writing by the parties, Nonni’s makes no other warranty, express or implied. No director, officer, agent, or employee of Nonni’s shall be charged personally or held contractually liable by or to the Customer under any term or provision of this Agreement or because of the execution, approval, or attempted execution of this Agreement.
18. PRODUCT RECALL COST AND CONTROL. If Nonni’s, any governmental authority, or any of Nonni’s customers or suppliers determines that any Products are defective to the extent a recall action is necessary (as then determined by Nonni’s in its sole discretion), then Nonni’s shall have the right to lead and implement such recall campaign process in its reasonable discretion and shall bear all appropriate costs and risks related thereto, including, without limitation, determining the level of Product to be recalled, ensuring the proper disposition of the Product in question, providing on-site appointments with Nonni’s personnel, and controlling any and all public disclosures and announcements of or about such recall campaign.
19. LIMITATION OF LIABILITY. IN NO EVENT SHALL NONNI’S BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT NONNI’S HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. FURTHER IN NO EVENT SHALL NONNI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO NONNI’S FOR THE PRODUCTS SOLD UNDER THE PO IN WHICH THE LIABILITY AROSE.
20. OFFSET. Customer shall have no right to offset any amounts owed to Nonni’s hereunder against any amounts owed or claimed to be owed to Customer, whether pursuant to these Terms or otherwise, and Customer shall make all the payments provided for in these Terms in a timely manner.
21. ASSIGNMENT. Customer may not assign any of its rights or delegate any of its obligations under this Agreement or any PO without the prior written consent of Nonni’s, which shall not be unreasonably withheld or delayed. Nonni’s may assign any of its rights or delegate any of its obligations to any (i) person or entity that directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, such person or entity, (ii) successors in interest, or (iii) person or entity acquiring all or substantially all of Nonni’s assets.
22. AMENDMENT AND MODIFICATION. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.
23. COMPLIANCE WITH THE LAW. Each party shall comply with all applicable laws, regulations and ordinances. Each party shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
24. CONFIDENTIALITY. All non-public, confidential or proprietary information of either party, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by one party to the other, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by the disclosing party in writing. Upon Nonni’s request, Customer shall promptly return all documents and other materials received from Nonni’s. Nonni’s shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.
25. TERM. This Agreement shall govern all POs issued by Customer under the applicable Pricing List and shall expire upon delivery and acceptance of the last shipment issued under the PO.
26. WAIVER. No waiver by either party of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by the other party. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
27. FORCE MAJEURE. Neither party shall be deemed to have defaulted or failed to perform under this Agreement if that party’s ability to perform or default shall have been caused by an event or events beyond the control and without the fault of that party, including, but not limited to, fire, flood, explosion, act of God or a public enemy, strike, labor dispute, civil riot, the inability to procure necessary raw materials, supplies, or equipment for the production, storage and/or delivery of the Products, or the ability of Nonni’s to produce the Products is impacted by any of the foregoing (“Force Majeure Event”). Upon the occurrence of the Force Majeure Event, the party claiming the Force Majeure Event shall notify the other party in writing within ten (10) days of such event and, to the extent possible, inform the other party of the expected duration of the Force Majeure Event and the quantity of Products to be affected by the suspension or curtailment under this Agreement. Notwithstanding this provision, nothing contained in this Agreement shall relieve Customer of the obligation to pay in full the purchase price or any amounts due for the Products delivered and received hereunder.
28. GOVERNING LAW; VENUE. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule. Any legal actions, suits or proceedings arising out of this Agreement shall be brought exclusively in the courts of Cook County, Illinois or the United States District Court for the Northern District of Illinois and the parties hereby accept and submit to the personal jurisdiction of these courts.
29. NO THIRD-PARTY BENEFICIARIES. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
30. RELATIONSHIP OF PARTIES. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
31. NO PUBLICITY. Customer shall not use Nonni’s confidential information, or any other information identifying Nonni’s, including, but not limited to Nonni’s name, trademark(s) or logo(s), in any public manner without the prior written consent of Nonni’s.
32. NOTICES. Any notice required or permitted by this Agreement shall be in writing and shall be deemed to have been sufficiently given for all purposes if sent by certified or registered mail, postage and fees prepaid, addressed to the party to whom such notice is intended to be given at the address set forth above, or at such other address as has been previously furnished in writing to the other party. Such notice shall be deemed to have been given when deposited in the U.S. Mail.
33. SEVERABILITY. If any provision of this Agreement is declared to be invalid, void or unenforceable by a court of competent jurisdiction, such provision shall be deemed to be severable, and all other provisions of this Agreement shall remain fully enforceable, and this Agreement shall be interpreted in all respects as if such provision were omitted.
34. SURVIVAL. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidentiality, Governing Law; Venue, Warranties, Limitation of Liability and Survival.