1. Applicability. These TERMS AND CONDITIONS FOR WHOLESALE PURCHASES (“Terms”) comprise the entire agreement for the sale of the goods (“Goods”) by LEPRINO PERFORMANCE BRANDS LLC dba ASCENT PROTEIN (“Ascent”) to the person or legal entity purchasing the Goods (“Buyer”), except that Buyers enrolled in Ascent’s Subscription Program are also subject to the Supplemental Wholesale Terms & Conditions for Subscription Program found here. Ascent's acceptance of any order is expressly subject to Buyer’s acceptance of each and every term and condition set forth in these Terms. Buyer’s assent to these Terms shall be conclusively presumed upon Buyer’s submission of an Order for Goods.
2. Delivery. Delivery shall be made FOB Ascent’s plant(s) (the “Delivery Point”). Ascent may, in its sole discretion, without liability or penalty, make partial delivery of Goods to Buyer. Each delivery will constitute a separate sale, and Buyer shall pay for the Goods shipped, whether such shipment is in whole or partial fulfillment of Buyer’s order.
3. Non-delivery. Ascent shall not be liable for any non-delivery of Goods (even if caused by Ascent’s negligence) unless Buyer gives written notice to Ascent of the non-delivery within three (3) days of the date when the Goods would in the ordinary course of events have been received. Any liability of Ascent for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice for such Goods to reflect the actual quantity delivered.
4. Minimum Advertised Price (MAP). Buyer expressly agrees it has read and will comply with Ascent’s MAP policy, which can be found here.
5. Permitted Sales Channels. Buyer agrees to sell the Goods only through physical retail outlets or internet sites it owns or controls. Buyer expressly agrees it will not sell Goods through as third party e-commerce platform, such as, but not limited to, Amazon and eBay.
6. Taxes. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Where applicable, Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Ascent’s income, revenues, gross receipts, personnel or real or personal property or other assets.
7. Limited Warranty. (a) Ascent agrees that the Goods sold to Buyer under these Terms will at the time of sale meet the Product Specifications (if any) for such Goods. All of Ascent’s Goods sold to Buyer will comply with all applicable current local, state, and federal governmental laws, statutes, and regulations existing at the time of sale to Buyer. Buyer shall be responsible for any failure to meet the Product Specifications that arise because of (i) the failure to properly store such Goods during shipment or at Buyer’s facilities, or (ii) any alteration of the Goods after they have been delivered. (b) EXCEPT AS SET FORTH IN SECTION 7, ASCENT MAKES NO WARRANTY OR REPRESENTATION WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; OR (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. (c) THE REMEDIES SET FORTH IN THIS SECTION 7 SHALL BE THE BUYER’s SOLE AND EXCLUSIVE REMEDIES AND ASCENT’s ENTIRE LIABILITY FOR ANY BREACH OF ASCENT’S OBLIGATIONS SET FORTH IN SECTION 6(a). Buyer’s sole remedy for a breach of this Limited Warranty shall be one of the following, which shall be selected by Ascent in its sole discretion: (a) replacement of the goods; or (b) a credit or refund the purchase price, together with any reasonable shipping and handling expenses incurred by Buyer in connection the purchase. Except as provided under this Section 7, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under these Terms.
8. Limitation of Liability. IN NO EVENT SHALL ASCENT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER INCLUDING BUT NOT LIMITED TO LOST SALES, LOST PROFITS, LOST REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER OR ASCENT, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, STATUTE OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. NOR SHALL ASCENT’s AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO ASCENT FOR THE GOODS SOLD HEREUNDER.
9. Compliance with Law. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under these Terms. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under these Terms or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance.
10. Waiver. No waiver by Ascent of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by Ascent. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from these Terms 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.
11. Confidential Information. All non-public, confidential or proprietary information of Ascent, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Ascent to Buyer, 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 these Terms is confidential, solely for the use of performing these Terms and may not be disclosed or copied unless authorized in advance by Ascent in writing. Upon Ascent’s request, Buyer shall promptly return all documents and other materials received from Ascent. Ascent shall be entitled to injunctive relief for any violation of this Section 11. This Section 11 does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Ascent on a non-confidential basis from a third party.
12. Force Majeure. Ascent shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Ascent including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
13. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of Ascent. Any purported assignment or delegation in violation of this Section 13 is null and void. No assignment or delegation relieves Buyer of any of its obligations under these Terms.
14. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in these Terms 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.
15. No Third-Party Beneficiaries. These Terms are 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.
16. Governing Law and Jurisdiction. All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule (whether of the State of Colorado or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Colorado. Any legal suit, action or proceeding arising out of or relating to these Terms shall be instituted in the federal courts of the United States of America or the courts of the State of Colorado in each case located in the City of Denver and County of Denver, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
17. 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 Invoice 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 these Terms, 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 17.
18. Severability. If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or expiration of the sale to which these Terms apply or invalidate or render unenforceable such term or provision in any other jurisdiction.
19. Survival. Provisions of these Terms which by their nature should apply beyond the completion, termination or expiration of a given sales transaction governed hereby will remain in force after any termination or expiration of the sale to which these Terms apply.