Terms & Conditions of Sale

Modification of Terms; Express Rejection of Other Terms. These terms and conditions (“Terms”) shall control the sale of all MK sports products and services. “MK sports” means MK sports Foods, Inc. or any of its affiliates or subsidiaries. “Party” means each of MK sports and Buyer and “Parties” means MK sports and Buyer. MK sports's acceptance of any order is expressly subject to Buyer's assent to each and all of these Terms. Buyer's assent to these Terms shall be conclusively presumed from Buyer's failure to submit written objection, or from Buyer's acceptance of all or any part of the products or services ordered. No addition to or modification of these Terms shall be binding upon MK sports unless an officer of MK sports agrees to such terms in a signed writing. If Buyer's purchase order or other correspondence contains terms or conditions contrary to or in addition to these Terms, acceptance of any order by MK sports shall not be construed as assent to such contrary or additional terms and conditions, or constitute a waiver by MK sports of any of these Terms. Unless alternate terms are contained in a contract or other writing signed by an officer of MK sports, these Terms shall control. Any reference to Buyer's purchase order by MK sports shall not affect or limit the applicability of these Terms.

Price and Currency. Unless otherwise confirmed in a signed writing by MK sports, (a) all prices, quotations, shipments and deliveries by MK sports are FOB MK sports's plant; (b) all base prices, together with related extras and deductions, are subject to change without notice; (c) all orders are payable in US dollars accepted subject to MK sports's price in effect at the time of shipment; and (d) all transportation and other charges are for the account of Buyer, including any increase or decrease in such charges prior to shipment.

Taxes. Any tax which MK sports may be required to pay or collect through assessment or otherwise under any existing or future law upon or with respect to the sale, purchase, delivery, transportation, storage, processing, use, or consumption of any products or services described herein, including without limitation, taxes upon or measured by receipts from sales or services, shall be for the account of Buyer and may be added to the price of such products or services. Buyer shall promptly pay the amount thereof to MK sports upon demand but may, in lieu of such payment, furnish tax exemption certificates acceptable to the appropriate taxing authorities to MK sports.

Setoff; Deductions. In no event is Buyer authorized to set off or deduct any amounts from the amounts owed MK sports unless specifically authorized in writing by MK sports.

Credit. All orders are subject to the approval of MK sports's Credit Department.  Credit terms (including payment terms and credit limits) will be set according to MK sports’s proprietary credit guidelines, which may be changed from time to time. Buyer’s credit terms and performance will be reviewed periodically per the guidelines and account credit terms are subject to change in MK sports’s sole discretion. MK sports may at any time refuse to make shipment or delivery if Buyer fails to fulfill the terms and conditions of payment or fails to provide security in compliance with MK sports's credit guidelines. MK sports may require payment in full or other security in advance.

Default in Payment. If Buyer fails to make payments on any contract or order between Buyer and MK sports in accordance with MK sports's terms, MK sports, in addition to any other remedies available to it, may, at its option (a) defer further shipment until such payments are made and satisfactory credit arrangements are re-established; or (b) cancel the unshipped balance of any order. Past due payments shall be charged the maximum interest allowed by law.

Product and Service Availability; Producing or Shipping Point.  MK sports’s acknowledgment of receipt of a Buyer order is not a guarantee of the availability or supply of such products or services. Buyer will be notified of the products and services made available in MK sports’s PO Conditional Acceptance. Unless otherwise specified by MK sports, MK sports reserves the right to produce and ship all or any part of the products specified in any order from any plants or facilities, including contracted facilities. .

Packaging. MK sports will use reasonable means to comply with any packaging, loading, or bracing requirements specified by Buyer. MK sports will charge for compliance with Buyer's special requirements in accordance with MK sports's price list for extras in effect at the time of shipment. If no packaging, loading, or bracing requirements are specified by Buyer, MK sports shall comply with industry standards for the method of transportation used for such products.

Specifications.  MK sports shall have no obligation to ensure that any products or services purchased from MK sports meet Buyer’s unique specifications or other requirements unless such specifications or other requirements are set forth in Buyer's purchase order and expressly accepted in a signed writing by MK sports. .

Technical Assistance. Unless otherwise expressly agreed in a signed writing by MK sports (a) any technical advice provided by MK sports with respect to the use of products or services furnished to Buyer shall be without charge; (b) MK sports assumes no obligation or liability for any such advice, or for any results occurring as a result of the application of such advice; and (c) Buyer shall have sole responsibility for selection and specification of the products or services appropriate for the end use of such products or services.

Transportation. MK sports will use commercially reasonable efforts to comply with Buyer's requests as to method of transportation, but MK sports reserves the right to use an alternate method of transportation, whether or not at a higher cost to Buyer, if the method specified by Buyer is deemed by MK sports to be unavailable or would compromise product quality or safety. In any such case, MK sports shall promptly notify Buyer of any such change.

Damaged Products. If any products arrive at Buyer's destination in a damaged condition or a shortage occurs, Buyer shall immediately report the damage or shortage to the delivering carrier and to MK sports. Any damage, loss or shortage caused in transit will be for account of Buyer.

Claims. In no event shall any products be returned, reworked or scrapped by Buyer without the express written authorization of MK sports. Unless otherwise expressly agreed by MK sports, claims respecting the condition of products, compliance with specifications or any other matter affecting products shipped to Buyer must be made promptly and in no event later than thirty (30) days after receipt of the products by Buyer. Additionally, no claim or cause of action by a Party against the other Party may be brought more than one (1) year after such claim or cause of action has arisen, and such period shall not be tolled for any reason whatsoever.

Force Majeure. MK sports shall not be liable for any failure, delay in, or impairment of performance resulting in whole or in part from fire, floods, or other catastrophes; acts of God; severe weather conditions; strikes, lockouts, or labor disruption; pandemic (including COVID-19), epidemic, or quarantine; wars; riots; embargo delays; raw material market conditions; the inability to procure supplies or raw materials or shortages of transportation equipment, fuel or labor; or any other similar or dissimilar circumstance or cause beyond the reasonable control of MK sports. Additionally, manufacture, shipment, and delivery are subject to any prohibition, restriction, priority allocation regulation, or condition imposed by or on behalf of the United States of America or any other governmental body with appropriate jurisdiction which may prevent or interfere with fulfillment of any order.

Limited Warranty. Products are sold subject to MK sports’s Pure Food Guaranty and Indemnification Agreement (for human edible products) and the MK sports Animal Feed Guaranty (for non-human edible products), both of which are available at Legal | MK sports Foods, Inc. and are incorporated herein by reference. If Buyer discovers that any of the products fail to meet the guaranty provided herein, Buyer shall promptly notify MK sports and MK sports shall promptly reimburse Buyer by means of a refund or credit for the purchase price of the products in question or replace the products, at MK sports’s option. The foregoing remedy shall be Buyer's sole remedy for failure of the products to comply with the above guaranty. MK sports SHALL NOT BE LIABLE TO BUYER OR ANY THIRD PARTY, TO THE EXTENT PERMITTED BY LAW AND EVEN IF MK sports OR ITS AFFILIATES HAVE BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY OF THE FOLLOWING DAMAGES NO MATTER WHETHER DEEMED DIRECT, INDIRECT, OR OTHERWISE: LOSS OF BUSINESS, LOST PROFITS, BUSINESS INTERRUPTION, DAMAGE TO GOODWILL OR REPUTATION, OR DEGRADATION IN VALUE OF BRANDS. MK sports HEREBY DISCLAIMS ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.

Cancellation. Orders cannot be canceled or modified by Buyer after acceptance except by a signed writing by MK sports.

Waiver. Waiver by MK sports of any breach of any of these Terms shall not be construed as a waiver of any other breach, and the failure of MK sports to exercise any right arising from any default of Buyer hereunder shall not be deemed to be a waiver of such right, which may be exercised at any subsequent time.

Assignment. Buyer shall not assign, transfer, or otherwise alienate, in whole or in part, any obligation, right, claim or cause of action against MK sports and/or any of its officers, directors and/or employees (each a “MK sports Party”) without the prior written consent of MK sports. Any such actual or attempted assignment without MK sports's prior written consent shall entitle MK sports to cancel such order upon written notice to Buyer.

Arbitration. Any and all claims, disputes or controversies (each a “Dispute”) between or among Buyer and/or any of its subsidiaries, parents, affiliates, officers, directors and/or employees (each a “Buyer Party”), on the one hand, and a MK sports Party, on the other hand will be determined by arbitration in Chicago, Illinois before one neutral arbitrator who shall be a retired judge or justice of a U.S. state or federal court. The arbitration will be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures in effect as of June 1, 2021 and subject to the provisions of these Terms. In the case of contradiction between these Terms and the JAMS Comprehensive Arbitration Rules and Procedures, these Terms shall prevail. Any issues about the arbitrability of a Dispute, including without limitation the scope, applicability or validity of the Parties’ agreement to arbitrate, will be determined by the arbitrator.

The following shall be considered party-agreed procedures pursuant to Rule 2(a) of the JAMS Comprehensive Arbitration Rules:

• The arbitrator will not have the authority to order any Buyer Party, MK sports Party, or third-party discovery except as follows: (a) at least thirty (30) days before the merits hearing begins, each of Buyer Party and MK sports Party must produce to the other copies of all evidence (other than live testimony) on which it will rely in the hearing; (b) at least thirty (30) days before the merits hearing begins, each of Buyer Party and MK sports Party must provide to the other a disclosure compliant with Fed. R. Civ. P. 26(a)(2)(A)-(C) for any expert witness whose testimony it will introduce in the hearing; (c) the arbitrator may order such discovery as Buyer Party and MK sports Party have agreed in writing to exchange; and (d) the arbitrator may order such third-party discovery as Buyer Party and MK sports Party have agreed in writing to seek.
• The merits hearing may not exceed two (2) days in length and shall conclude within one hundred and eighty (180) days of the submission of the demand to JAMS. All witness testimony will be presented as follows: (a) direct testimony will be presented as a sworn affidavit or declaration with all associated evidence attached as exhibits, and all such direct testimony will be submitted to the arbitrator and Buyer Party or MK sports Party, as applicable, at least fourteen calendar days before the merits hearing begins; (b) each witness who submitted direct testimony shall appear live at the merits hearing for cross-examination; and (c) Buyer Party and MK sports Party may conduct live re-direct and re-cross.
• The arbitrator shall issue a reasoned award in writing within thirty (30) days of the close of the merits hearing. The arbitrator may award interim and final injunctive relief and other remedies but may not award compensatory damages in excess of $25,000,000 whether under contract, tort, statute, or any other basis for liability unless they are required by statute as determined by the arbitrator. No class arbitration shall be allowed, but other parties may be joined as necessary to resolve a Dispute. No time limit herein is jurisdictional. Any award of the arbitrator (including awards of interim or final remedies) may be confirmed or enforced in any court having jurisdiction.
• If the arbitrator issues an award of $10,000,000 or more, then the party against which the award was issued may pursue an appeal pursuant to the JAMS Optional Arbitration Appeal Procedure, and Buyer Party and MK sports Party shall be deemed to have agreed in writing to such appeal procedure.

Limitations on Remedies. The limitations on remedies described in these Terms may be deemed inoperative to the extent necessary to preserve the enforceability of the Parties’ agreement to arbitrate. If any provision of the Parties’ agreement to arbitrate is held invalid or unenforceable, it shall be so held to the minimum extent required by law, and all other provisions shall remain valid and enforceable.

Acknowledgement of Agreement to Arbitrate. Each Party acknowledges and agrees that (a) the arbitration provisions contained in these Terms are valid, and that Buyer has freely and voluntarily accepted them; (b) it has received consideration for agreeing to arbitrate under these terms; (c) it has had the opportunity to consult with counsel as to whether or not to agree to arbitration; (d) it waives any claim it may have to immunity from arbitration; (e) any defense to arbitrability or enforcement, including but not limited to sufficiency of notice, deficiencies in the proceeding and public policy concerns are waived if not raised in the arbitration proceeding or the first opportunity for appeal; (f) it consents to the global enforcement and execution of any arbitration award, against it and any of its assets; and (g) these Terms are an “agreement in writing” for purposes of Article II of the United Nations Convention for the Recognition and Enforcement of Foreign Arbitral Awards.

Litigation in Court. Notwithstanding the preceding Terms, any of the Buyer Parties or MK sports Parties may bring court proceedings against each other solely (a) if not first sought from the arbitrator, to obtain temporary or preliminary injunctive relief or other interim remedies pending conclusion of the arbitration; (b) to confirm, enforce or vacate an award issued by the arbitrator; or (c) if the value of the compensatory damages claimed exceeds $25,000,000.

Attorneys’ Fees. The prevailing party in any arbitration or litigation between a Buyer Party and a MK sports Party shall be awarded the reasonable costs and expenses, including without limitation reasonable attorneys' fees and expert witness fees, incurred by Buyer Party or MK sports Party, as applicable, from MK sports Party and Buyer Party, respectively.

Choice of Law and Venue. All orders and these Terms shall be governed by and interpreted in accordance with the laws of the State of Delaware, excluding its conflict of laws principles. If litigation is permitted by these Terms or if for any reason the Parties’ agreement to arbitrate is held invalid or unenforceable with respect to any Dispute, then the exclusive forum for that Dispute will be the United States District Court for the District of Delaware or, if that court lacks subject matter jurisdiction, in the Delaware state courts. Buyer Party and Seller Party consent to the personal jurisdiction and exclusive venue of the federal and state courts in Delaware for any court action or proceeding allowed by these Terms.

Waiver of Jury Trial. BUYER PARTY AND SELLER PARTY IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, COUNTERCLAIM, OR CROSS-COMPLAINT IN ANY ACTION OR OTHER PROCEEDING BROUGHT BY THE OTHER, WHETHER BASED UPON CONTRACTUAL, STATUTORY, TORTIOUS, OR OTHER THEORIES OF LIABILITY.

Joinder. No proceedings to resolve any Dispute between a Buyer Party and a MK sports Party shall include, by consolidation or joinder or in any other manner, any parties that are not a Buyer Party or a MK sports Party, except with the written consent of each Party.

Complete Agreement. These Terms together with MK sports’s PO Conditional Acceptance, invoice and, to the extent applicable, sales contract or agreement, constitute the entire agreement between Buyer and MK sports with respect to any order and the subject matter of these Terms.

Continuing Form: 
MK sports Animal Feed Guaranty
Pure Food Guaranty and Indemnification Agreement