TERMS & CONDITIONS

The terms and conditions of a Kimac Industries quotation or order confirmation is expressly limited to Customer’s acceptance of Kimac Industries’ terms and conditions as found herein (“Terms”). The parties agree that these Terms shall control and supersede any inconsistent terms contained in any purchase order, acknowledgment or any other germane document provided by the Customer. As a purchase order from the Customer constitutes the Customer’s acceptance of Kimac Industries’ offer to manufacture products at the quotation price, the Customer shall be deemed to have accepted Kimac Industries’ offer. In the absence of a separate, signed agreement between the parties, these Terms shall be the exclusive and binding between the parties for the purchase goods and services, upon the earlier of (i) acceptance or acknowledgment through a purchase order whether orally, in writing or otherwise, or (ii) commencement of performance of Kimac Industries’ obligations under the purchase order.

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1. Any quotation offer for products or services shall be valid for thirty (30) days after which the quotation offer shall automatically expire.

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2. Once a purchase order has been confirmed by Kimac Industries, the quotation price shall remain the same for re‐quoted product unless and until Kimac Industries provides Customer notice of a price change. Kimac Industries may modify its price quotation annually or at any time due to changes in raw materials pricing, tariffs, labor costs, production costs or any other reason in its discretion. Kimac Industries shall be entitled to deliver and invoice due to manufacturing variability plus or minus (+/-) 10% of the quantity identified in the applicable purchase order. 

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3. Customer represents, covenants, and warrants that: (1) it is wholly responsible for the product specification of any product to be manufactured by Kimac Industries, and in the event Kimac Industries provides research and development services or makes any suggestions or comments or approves Customer’s documents and data, such action is only an expression of opinion by Kimac Industries, and no act, action or omission shall serve to relieve Customer of any responsibility for its product specification under any purchase order; (2) unless agreed upon otherwise in writing, Customer shall be responsible for ensuring that all labeling, content, artwork, and instructions for use comply with all applicable laws where Customer intends to market, sell, or otherwise distributes the product; (3) it owns or controls all intellectual property rights, including patents, trademarks, and copyrights regarding its product and hereby grants to Kimac Industries a non‐exclusive license to utilize such for the manufacture and supply of the products; and (4) fulfillment of the terms of any purchase order will not infringe the intellectual property rights of any third party.

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4. Payment shall be due fifteen (15) days from the date of invoice unless otherwise negotiated or determined between the parties, which invoice will be dated the day product is released to Customer as evidenced by valid lab results of product testing, and Customer accepts ownership of the product upon completion and release by Kimac Industries’ Quality department. Late payment or non‐payment shall be considered a material breach of this Agreement and Kimac Industries shall have the right to take any of the following actions: (1) charge interest at the annual rate of one and one‐half percent (1.5%) per month, calculated daily and assessed monthly; (2) suspend all further deliveries of products to Customer under this or any purchase order or any other contract; and/or (3) terminate this purchase order agreement and charge the Customer for all losses (including loss of profits), costs (including the cost of labor, materials and disposal), damages, charges, and any other expenses incurred by Kimac Industries.

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5. Kimac Industries shall deliver each order of the products FOB shipping point, on the agreed‐upon date to Customer’s designated carrier. Customer shall be responsible for all freight and insurance charges, third‐party handling, and applicable taxes, customs, duties or other charges related to transporting the product.
Risk of loss transfers to the Customer upon delivery of the product to the Customer’s carrier, however, Kimac Industries retains a security interest in the product until it receives full payment. Kimac Industries shall notify Customer after completion of production and verification that the products meet product standards. Finished product shall be picked up within five (5) business days of its release and Customer will be invoiced when the product is ready to ship whether Customer promptly picks up the product or not. Upon shipping, title and risk of loss passes to Customer. Kimac Industries reserves the right, but is not obligated to, arrange for shipping at Customer’s expense. In the event Kimac Industries does not arrange for shipping, Kimac Industries may charge Customer a prorated storage fee of thirty dollars ($30) per month per pallet until the product is shipped.

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6. Upon receipt of any product, Customer or its agent shall complete an inspection of the product. Product shall only be determined non‐compliant if it fails to meet the specifications and such failure is not the result of a decision, action or inaction by Customer. If Customer does not send Kimac Industries a notice of non‐conformance with thirty (30) days period, the product will be deemed fully compliant and deemed to have been accepted, as is, by the Customer.

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7. In the event Customer cancels its order prior to the commencement of production, Customer agrees to pay for administrative hours expended and materials sourced in anticipation of production, or thirty percent (30%) of the total purchase order amount, whichever is greater. Similarly, in the event Customer modifies the purchase order, the Customer will be assessed a change fee in the amount of the administrative hours including R&D expended and materials sourced in anticipation of production, or ten percent (10%) of the total purchase order amount, whichever is greater.

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8. Customer acknowledges that any quotation accepted by Customer will require a minimum of six‐weeks lead time and any purchase order submitted to Kimac Industries requesting product in less than six‐weeks may carry at the discretion and right of Kimac Industries, a negotiated rush fee.

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9. All purchase orders require Customer to enter into a Supply Agreement with Kimac Industries, and all orders are subject to the terms and conditions of the Supply Agreement.

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10. Customer acknowledges that it may be required to pre‐pay all or a portion of any purchase order as stated on the pro‐forma invoice provided Customer.

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11. Customer and Kimac Industries agree that as part of its contractual relationship the parties will have access to confidential information. The parties agree that the product formula, recipes, ingredients, (and details as to their sourcing), manufacturing information, customer lists, pricing, information, and the specifications, are confidential information. The Parties agree that the receiving party of the confidential information shall not disclose or appropriate to the use of any third‐party at any time without the prior written consent of the disclosing party. The receiving party agrees to take every reasonable precaution to prevent the unauthorized disclosure or use of confidential information. If Customer and Kimac Industries execute a separate confidentiality agreement, the terms of the separate confidentiality agreement shall control.

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12. The validity of these Terms, and the interpretation and performance of any term and condition between the parties shall be governed by the laws of the State of Utah and any action hereunder shall be in the federal or state courts of Utah, and each party irrevocably consents and submits to this exclusive jurisdiction.