Terms & Conditions

SunOpta’s Terms and Conditions (including Disclaimers of Warranties and Limitation of Liability) Effective: July 1, 2017

NOTICE: Read these entire Terms and Conditions (including, but not limited to, the Disclaimers of Warranties and Limitation of Liability and Exclusive Remedies) before using Product. By using Product you are acknowledging that these entire Terms and Conditions (including, but not limited to, the Disclaimers of Warranties and Limitation of Liability and Exclusive Remedies) are part of the terms of sale. If you do not understand any of the terms, consult an attorney.

DEFINITIONS: “Contract” means the Sales Contract, Invoice, and/or Sales Confirmation incorporating these Terms and Conditions, together with these Terms and Conditions. “SunOpta” means SunOpta Grains and Foods, Inc., a Minnesota corporation, and includes its designated affiliates, successors and assigns. “Customer” means the person, firm, or entity entering into the Contract with SunOpta. “Product” means the products sold by SunOpta to Customer, as indicated on the Sales Contract, Invoice, and/or Sales Confirmation.

ENTIRE AGREEMENT: The Contract constitutes the full understanding of the agreement between SunOpta and the Customer. The parties understand and acknowledge that the Contract is a complete and exclusive statement of the terms of their agreement. No items, conditions, understandings, agreements, assignments, purchase orders, confirmations or acknowledgements purporting to modify or vary the terms of the Contract shall be binding upon the parties unless the same shall be made in writing and signed by an authorized signatory of both parties, with the sole exception of shipping terms as set forth below.

CUSTOMER OBLIGATIONS: Customer agrees to purchase said quantity at said price. Customer further agrees to take delivery of the product within stated shipping terms or, in the event the Customer requires delivery at a date beyond the stated shipping terms, Customer agrees to be liable for any additional costs and expenses charged by SunOpta.

DELIVERY, RISK OF LOSS, DELAY: Risk of loss of product shall transfer to the Customer upon delivery by SunOpta. Unless otherwise expressly agreed to in a signed writing, delivery of goods to common carrier or licensed trucker shall constitute delivery by SunOpta to the Customer, and all risk of loss or damage in transit shall be borne by the Customer. The order may not be cancelled by the Customer for delays in delivery or other cause until five days after written notice of such intention shall have been actually received by SunOpta, and the Customer shall be obligated to accept any goods shipped or delivered by SunOpta during such period. SunOpta shall be excused for any nonperformance or delay in performance due to acts of God, war, riot, embargoes, acts of civil or military authorities, fires, floods, accidents, quarantine restrictions, null conditions, strikes, differences with workmen, delays in transportation, shortage of vehicles, fuel, labor, crop shortages, or any circumstance or cause beyond the control of SunOpta in the reasonable conduct of its business.

PRODUCT TESTING: Any testing requested by the Customer that needs to be completed by a third party will be at Customer's cost.

LABELING REQUIREMENTS: Customer shall be solely responsible for ensuring that all labels and other packaging materials provided to SunOpta comply with the labeling requirements of the Federal Food, Drug, and Cosmetic Act, as amended (the “FD&C Act”) and other applicable federal and state food labeling laws and regulations. Notwithstanding any other provision set forth in a Contract, it is specifically understood and agreed that, with respect to all labels utilized in connection with the Product provided by SunOpta, including but not limited to the design, content, wording, artwork, label features, batch codes, date codes, logos, trademarks (registered and unregistered), service marks, trade names and trade dress set forth thereon that are provided by or prescribed by Customer (as such may be changed from time to time, “Customer Labeling Elements”), Customer shall be solely responsible therefor, including but not limited to their compliance with all applicable federal, state and local laws, rules and regulations (including without limitation the FD&C Act). Notwithstanding any provision to the contrary, SunOpta shall have no obligation to order or use labels or packaging that it knows to be non-compliant with applicable law or regulations.

RIGHT TO MARKS: Customer warrants and represents that it is, and at all applicable times remains, the exclusive owner of, or has the legal and valid right to use all designs, logos, trademarks (registered or unregistered), service marks, trade names and trade dress included within the Product label provided to SunOpta.

INDEMNITIFICATION: CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS SUNOPTA AND ITS AFFILIATES, SUCCESSORS, ASSIGNS, RELATED COMPANIES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES AND AGENTS FROM AND AGAINST ANY actual and potential legal, equitable, statutory or administrative claims, causes of action, liens, fines, penalties, investigations, recalls and other costs and expenses (including without limitation, reasonable fees and expenses of legal counsel of SunOpta’s choosing), and direct, indirect or consequential losses (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, loss of goodwill and similar losses) arising from or as a result of any claim that the Customer Labeling Elements (i) ARE FALSE, DECEPTIVE, MISLEADING, OR OTHERWISE CONSTITUTE MISBRANDING; (ii) INFRINGE ANY TRADE DRESS, COPYRIGHT, TRADE SECRET, PATENT OR OTHER IP RIGHTS; OR (iii) VIOLATE ANY FOREIGN, FEDERAL, STATE OR LOCAL LAW, REGULATION OR ORDER.

RAW PRODUCT ACKNOWLEDGMENT: Unless otherwise expressly agreed to in a signed writing, SunOpta will not conduct environmental or product pathogen testing on any raw products. Customer acknowledges and agrees that it is responsible to implement necessary actions, including a validated kill step, if it purchases any raw products from SunOpta. If purchasing raw products, Customer further acknowledges it will sign and return to SunOpta annual Customer Assurances required under 21 CFR 117.136 et seq.

PRODUCT RECALLS: Customer agrees to assist SunOpta in all reasonable ways with respect to any Product recall, withdrawal, or removal from market, including, but not limited to providing documentation to SunOpta, upon SunOpta’s request, verifying location of and/or destruction of the impacted Product.

DISCLAIMER OF WARRANTIES: SunOpta warrants solely that the Product meets the specifications supplied by or agreed to in writing by SunOpta. OTHER THAN THE EXPRESS WARRANTIES ABOVE, SUNOPTA MAKES NO OTHER WARRANTIES OR REPRESENTATIONS REGARDING THE PRODUCT AND SUNOPTA DISCLAIMS ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES FOR NON-INFRINGEMENT, AND WARRANTIES THAT MIGHT OTHERWISE ARISE FROM ANY REPRESENTATIONS MADE BY OR ON BEHALF OF SUNOPTA OR SAMPLE OF ANY PRODUCT.

LIMITATION OF LIABILITY AND EXCLUSIVE REMEDIES: CUSTOMER MAY NOT RECOVER FROM SUNOPTA ANY AMOUNT FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, AMOUNTS EXPENDED IN USING THE PRODUCT, OR MARKETING THE PRODUCT. THIS LIMITATION OF LIABILITY IS APPLICABLE TO ANY CLAIM, WHETHER THE LEGAL THEORY FORMING THE BASIS FOR SUCH CLAIM INVOLVES CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND SUNOPTA’S SOLE LIABILITY ARISING FROM OR RELATED TO THE PURCHASE, RESALE, AND/OR USE OF THE PRODUCT IS A REFUND OF THE PURCHASE PRICE OF THE PRODUCT. Customer agrees and acknowledges that limiting any potential recovery to the purchase price of the Product is reflected in the purchase price of the Product, and without this limitation the purchase price of the Product would be significantly higher. Customer also agrees and acknowledges that if SunOpta refunds an amount at least equal to the price Customer or paid for the Product, this limitation of liability will not have failed of its essential purpose.

PROMPT NOTICE OF PRODUCT CLAIMS: The specified time period to provide SunOpta notice of a claim regarding Product is 45 days from the date on the Sales Contract, Invoice, and/or Sales Confirmation. Notice must be provided to SunOpta in writing. SunOpta will investigate claims for which it has been provided notice within the specified time period. Any claims made for which SunOpta did not receive notice within the 45 days as described above will be barred.

LIMITATIONS PERIOD ON CLAIMS: Any legal action against SunOpta arising from or related to a Contract, including but not limited to Product performance or Product conformance, must be commenced within 370 days after the cause of action accrues. All actions shall be barred after such time.

INCOTERMS: The Contract is subject to and governed by all applicable 2010 Incoterms. Pursuant to 2010 Incoterms, title for the Product passes to Customer at the time risk transfers to Customer. AMENDMENT OF SHIPPING TERMS: SunOpta reserves the right to extend or amend the shipping terms for reasons beyond its control to ensure completion of its shipment obligations. IMPOSITION OF SUBSEQUENT COSTS: Any additional costs imposed on SunOpta due to increases in freight charges or changes in applicable laws or regulations, subsequent to the date of this Contract shall retroactively accrue to the Customer's account, where applicable.

FINANCE CHARGE; COLLECTIONS: SunOpta may impose on all unpaid balances past their due date a finance charge of 1.5% per month, 18% per year or the maximum legally allowable rate, whichever is less. Customer shall pay SunOpta its costs and expenses including attorney’s fees incurred in connection with the collection of Customer’s past due account, including any proceedings in bankruptcy or on appeal.

NATIONAL GRAIN AND FEED ASSOCIATION RULES: To the extent they are applicable to the Product sold, the National Grain and Feed Association Rules shall apply to this Agreement, provided however, that these Terms and Conditions shall supersede any conflicting provision of the National Grain and Feed Association Rules.

SPECIFIC PERFORMANCE: SunOpta has the right of specific performance, that is, the exact fulfillment of this contract in accordance with its terms.

CANCELLATION BY CUSTOMER: Cancellation of the Contract by Customer may result in penalties for storage and interest until the product can be resold or a mutually agreed upon arrangement established between both parties.

NON-WAIVER BY SUNOPTA: Waiver by SunOpta of a breach of any term of the Contract shall not be construed as a waiver of any other breach. SEVERABILITY: If any term in these Terms and Conditions is held to be unenforceable, all remaining terms shall remain in effect and shall be fully enforceable. GOVERNING LAW; VENUE: This contract shall be governed by and shall be construed according to the laws of the State of Minnesota, excluding any principals or rules that direct the application of another jurisdiction's laws. Any legal suit, action, or proceeding arising out of or relating to this Contract or the transactions contemplated hereby shall be instituted in the state or federal courts of the United States of America or the courts of the State of Minnesota in each case located in the County of Hennepin, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.