TERMS OF SALE      Kellogg Canada Inc.

THESE TERMS AND CONDITIONS APPLY IN RESPECT OF ALL TRANSACTIONS BETWEEN CUSTOMER AND KELLOGG. UNLESS OTHERWISE EXPRESSLY STATED IN A SEPARATE AGREEMENT WITH KELLOGG: (i) THIS AGREEMENT SHALL GOVERN THE RELATIONSHIP BETWEEN THE PARTIES; AND (ii) IN THE EVENT OF ANY CONFLICT WITH ANY AGREEMENT WITH CUSTOMER AND KELLOGG THIS AGREEMENT SHALL GOVERN THE RELATIONSHIP BETWEEN THE PARTIES.

  1. General: Kellogg Canada Inc. (“Kellogg”) is committed to serving all its customers fairly and equitably. Kellogg’s price list or any specific negotiated price, and these Terms of Sale constitute the terms and conditions pursuant to which Kellogg sells Kellogg products to Kellogg-approved customers (“Customers”). Kellogg may change these Terms of Sale at any time without prior notice. The applicable Terms of Sale are those in effect at the time an order placed by a Customer is received by Kellogg. The applicable Kellogg price list shall be the Kellogg price list in effect at the time that an order placed by a Customer is delivered by Kellogg (based upon the customer’s required delivery date). The applicable price list is referred to in these Terms of Sale as the “Price List”. The Price List or any specific price negotiated between Kellogg and Customer, and these Terms of Sale, are collectively referred to as “these Terms”. By placing an order with Kellogg, and/or by accepting delivery of products from Kellogg, a Customer will be deemed to have accepted and agreed to be bound by these Terms. These Terms will govern all product sales by Kellogg; no additional, amended or different terms appearing on Customer’s order forms or otherwise (unless issued by Kellogg in writing or agreed to in writing by Kellogg in advance) shall be incorporated into, limit, extend, supersede or otherwise modify, supplement or replace these Terms. Any attempt by Customer to supersede, alter, supplement, amend or modify these Terms by issuing Customer’s order form or otherwise will be null and void (and neither Kellogg’s lack of objection thereto nor shipment of products shall constitute Kellogg’s agreement to any terms and conditions other than those in these Terms), unless agreed to in writing by Kellogg in advance. The Kellogg products purchased by Customer from Kellogg are referred to in these Terms as “Kellogg Products”. If both Kellogg and Customer have committed to follow specific industry guidelines for any matters, such as the ECR Unsaleables Program, these Terms are deemed modified only if and to the extent necessary for Kellogg and the Customer to comply with such guidelines.
  2. No export: Customer shall not, directly or indirectly, sell into, export to, transfer to, or make available for delivery to, any jurisdiction outside Canada any Kellogg Products, or sell or otherwise distribute Kellogg Products to any person or entity it knows or, acting reasonably, ought to know will sell into, export to, transfer to, or make available for delivery to, any jurisdiction outside Canada any Kellogg Products. In addition to any other rights Kellogg may have, breach of this section shall be grounds for Kellogg to terminate its agreements with Customer and/or to refuse acceptance of orders, in whole or in part, and/or to stop shipment (with no liability on the part of Kellogg).
  3. Orders: At least 3 business days order processing lead time is required from the date following receipt by Kellogg of Customer’s order to the required shipping date. Transit days (the typical number of days Kellogg’s requires to move the customer’s order from Kellogg’s warehouse to the customer’s destination) will vary by customer by delivery location. Order processing lead time plus transit days determine the total number of lead time days required to process and deliver a customer order. All orders must meet required minimum volumes, cereal must be ordered in increments of Kellogg’s unit loads and Frozen/Convenience Foods must be ordered in increments of Kellogg’s unit loads or unit/load layers, include a requested delivery date and active Kellogg’s product SKU’s as deemed by ECCNet/GSI. Kellogg is not liable for delays in delivery or failure to deliver by required delivery date, regardless of the cause of such delay or failure. Kellogg, at its sole discretion, reserves the right to refuse acceptance of orders, in whole or in part, and/or to stop shipment, for any reason, including, but not limited to, Customer’s failure to adhere to these Terms, credit reasons, shortage of supply, disputes respecting unpaid invoices, unearned discounts, or invalid deductions or diverting. If Customer’s purchase orders do not match Kellogg’s agreed to pricing and it is deemed by Kellogg, in its sole discretion, that it is Customer error, Customer must revise and re-submit their order form. The same lead times shall apply with respect to a re-submission of a Customer purchase order.
  4. Taxes: Customer is responsible for goods and services tax, sales tax and all other taxes associated with an order, except taxes on Kellogg’s net income.
  5. Shipping: (a) Kellogg shall determine carriers and routing for all orders. Truckload and less than truckload shipments will be made prepaid (at Kellogg’s cost) to the location designated by Customer (the “Delivery Location”), provided minimum shipping quantities are met and Kellogg ships to such Delivery Location. Charges for shipping to another location, resulting from refusal or unloading of the shipment, or relating to transport of Kellogg Products from Delivery Location to Customer’s premises, and charges for demurrage, detention, redelivery, sorting, stop-off, excess freight, switching, or other accessorial charges are Customer’s sole responsibility. Customer shall, on demand, immediately fully reimburse Kellogg for any and all such amounts, and Customer shall pay interest on all such amounts past due, calculated and payable monthly from the date that is ten days following the date of demand until payment is received by Kellogg, at a rate of 1.5% per month (18% per year). Risk of loss of or damage to, and responsibility for, Kellogg Products shall pass to Customer upon delivery of Kellogg Products to Delivery Location or upon Customer pick-up (if permitted by Kellogg). (b) Kellogg does not accept expired or close to code products (i.e. product with less 60 day shelf life remaining) for credit. Kellogg Products may not be returned to Kellogg by Customer except as provided in (c) or except in accordance with the terms of an arrangement made in writing with Kellogg in advance and, in any event, Kellogg Products will not be accepted with less than a 60 day shelf life. (d) Shortage or damage claims must be submitted to Kellogg in writing within 48 hours of delivery to Delivery Location, supported by carrier documentation (ie: truck pro-bill or intermodal inspection report) clearly indicating shortage or damage and the number of cases affected. When a customer receives a damaged shipment, the number of damaged cases must be noted on the carrier’s pro-bill, followed by a driver’s signature. Kellogg Canada inc. shall not allow deductions from invoices, where the customer has not indicated the damage on the carrier’s pro-bill at time of delivery. Where no indication of damage is written on the carrier copy of the pro-bill, it shall be assumed that any damage occurred after delivery on the customer’s premises or its designated place of delivery. If Kellogg does not receive written notification of such shortage or damage within such period, it shall be conclusively presumed that the Kellogg Products were delivered in their entirety and without damage. (e) Kellogg may make partial shipments.
  6. LIABILITY: KELLOGG SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD-PARTY IN CONTRACT, TORT, DELICT OR OTHERWISE FOR ANY LIABILITY, LOSS, DAMAGE, INJURY, COST, CLAIM OR EXPENSE OF ANY KIND (TOGETHER, “LIABILITIES, AND EACH A “LIABILITY”) RELATING IN ANY WAY TO THE KELLOGG PRODUCTS, CUSTOMER’S ORDER OF SAME, AND/OR FAILURE OR DELAY IN PERFORMANCE BY OR NEGLIGENCE OF KELLOGG (INCLUDING ITS EMPLOYEES, AGENTS AND REPRESENTATIVES), EVEN IF ADVISED OF THE POSSIBILITY THEREOF AND NOTWITHSTANDING ACCEPTANCE OF ORDERS, INCLUDING, WITHOUT LIMITATION, (I) DIRECT, INDIRECT, GENERAL, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOSS OF BUSINESS REVENUE, FAILURE TO REALIZE EXPECTED SAVINGS, OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND WHATSOEVER; (II) ANY LIABILITY OF CUSTOMER TO A THIRD PARTY AND (III) LIABILITIES CAUSED BY CIRCUMSTANCES BEYOND KELLOGG’S REASONABLE CONTROL (INCLUDING, WITHOUT LIMITATION, ACTS OF GOD; THE ELEMENTS; STRIKES; SLOWDOWNS; RAW MATERIAL SHORTAGES; RIOTS; FIRES; WAR CONDITIONS; ACCIDENTS; ACTS OF CIVIL, MILITARY OR GOVERNMENT AUTHORITIES; TERRORIST ACTS; DELAYS IN TRANSIT; CARRIER SHORTAGE; EMBARGO; INSUFFICIENT PRODUCTION OR QUANTITIES ON HAND, AND OTHER CAUSES). WITHOUT LIMITING OR VARYING THE FOREGOING (OR ANY OTHER PROVISION OF THESE TERMS), IN THE EVENT OF A FUNDAMENTAL BREACH BY KELLOGG, KELLOGG’S TOTAL LIABILITY (IF ANY) HEREUNDER SHALL IN NO EVENT WHATSOEVER BE GREATER THAN THE AMOUNT PAID BY CUSTOMER TO KELLOGG FOR THE KELLOGG PRODUCT(S) IN RESPECT OF WHICH THE LIABILITY AROSE.
  7. Limited Warranty: Kellogg warrants that all Kellogg Products supplied to Customer will comply with applicable laws, and will be of merchantable quality and fit for human consumption at the time received at Delivery Location, provided that Customer transports and stores the Kellogg Products in accordance with approved and reasonable food quality handling practices. Except as provided in the previous sentence, Kellogg shall not be liable for Kellogg Product claims of any kind. Kellogg shall not be liable for unsold Kellogg Product remaining on Customer’s shelves, nor for Kellogg’s Products with less than a 30 day shelf life. Kellogg’s responsibility for breach of the warranty provided above shall be to, at its option, replace the defective Kellogg Product or reimburse the cost of such Kellogg Product to Customer or, if agreed by Customer, to give a credit to the Customer for the cost of such Kellogg Product. Such replacement, reimbursement or credit shall be the sole and exclusive remedy available to Customer for a breach of warranty provided above. KELLOGG MAKES NO OTHER WARRANTIES, CONDITIONS OR REPRESENTATIONS RESPECTING THE KELLOGG PRODUCTS. ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS (EXPRESS OR IMPLIED, ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE) ARE HEREBY EXCLUDED.
  8. Credit: Kellogg has the sole discretion, to determine whether, and on what terms, to grant credit to Customer.
  9. Customer Bankruptcy, etc.: In the event that (i) Customer enters or is placed into receivership, (ii) Customer is petitioned into bankruptcy or makes a proposal under any bankruptcy or insolvency legislation for the benefit of its creditors, (iii) Customer ceases to carry on business or is wound up, (iv) there is a sale by Customer of all or a substantial part of its business, (v) there is a significant change in the shareholdings of Customer (i.e., there is a change of control of Customer, or there is a change in the legal or beneficial ownership of shares in the capital of the Customer representing more than 25% of the issued and outstanding voting interests or more than 25% of the issued and outstanding equity of Customer), or (vi) there is seizure of any Kellogg Products (or any products previously sold by Kellogg to Customer) by legal process or otherwise, then, in addition to any other rights Kellogg may have, all outstanding invoices (including any outstanding taxes, interest and other applicable costs and charges) become immediately due and payable, without demand or notice, and Customer shall pay all of Kellogg’s costs of collection, including reasonable legal fees. Further, in any such circumstances, Kellogg may, at its sole option, terminate its agreements with Customer (without affecting any liabilities incurred by Customer prior to termination, and with no liability on the part of Kellogg), refuse acceptance of orders in whole and in part and/or to stop shipment, and/or decline to permit Customer’s participation in promotions.
  10. Price: Kellogg shall provide all existing customers with notice of price increases or any Kellogg declines in accordance with FCPC (or any successor thereof) guidelines. Kellogg warrants price against decline only for Kellogg Products in transit to Delivery Location, and for unfilled orders on hand at the time of any price decline. Kellogg will not warrant price against decline for Kellogg Products that Customer has agreed to sell or distribute (or has sold or distributed) to a third party in breach of these Terms. The Customer confirms that any and all advertising related to the resale price of Kellogg Products will be compliant with Kellogg’s Minimum Advertised Pricing Policy.
  11. Title/Security: Kellogg retains title to and ownership of all Kellogg Products until paid for in full (including payment of the purchase price together with any applicable taxes, interest and any other applicable costs and charges) by Customer. Notwithstanding the foregoing, all responsibility for and risk relating to the Kellogg Products passes to the Customer on delivery to the Delivery Location or upon Customer pick-up. Customer grants Kellogg a security interest (which shall include a purchase money security interest where it satisfies the criteria therefor) in all Kellogg brand products in which the Customer now or hereafter has rights or an interest (including the Kellogg Products) and all proceeds thereof (including insurance proceeds and including proceeds of proceeds, collectively the “Collateral”), until the Kellogg Products are paid for in full (including payment of the purchase price together with any applicable taxes, interest and other costs and charges) and as security for such payment. Customer shall, at its own expense, execute any documents and do such other things as Kellogg deems appropriate to establish, complete and perfect such title retention and security interest.
  12. Invoices/Discounts: Payment of invoice (including applicable taxes and any other applicable costs and charges) is due and payable within 30 days of invoice date or as otherwise determined by Kellogg. Customer shall pay interest on all amounts past due, calculated and payable monthly from the date payment is due until it is received, at a rate of 1.5% per month (18% per year). Kellogg shall apply payments received from Customer in such order as Kellogg shall determine in its sole discretion. Except with Kellogg’s prior written consent, and except as permitted below, Customer is not entitled to deduct from invoice amount any amount including without limitation any penalty or fee which a Customer may attempt to impose on Kellogg (whether for delay or shortage in shipment, missed appointments, wrong products shipped, warranty claims, incorrect invoicing, overage of products, or otherwise), any costs, expenses or other amounts relating to promotions, or any amount representing alleged errors or alleged amounts owing to Customer discovered in audits, nor will Kellogg be required to pay Customer any such amounts (unless otherwise provided for in these Terms or unless agreed to in writing in advance by Kellogg). If Customer deducts any amount from invoice amount, the amount deducted is an unpaid amount that shall bear interest in accordance with these Terms. Kellogg offers a discount incentive (equal for all Customers) for early payment of invoices by Customer. In such cases, if full payment of the invoice amount is received by Kellogg within 10 days of the invoice date (or such other period as determined by Kellogg), Customer is eligible to deduct 1% of the Total Amount as indicated at the bottom of such invoice (or such other amount as may be determined by Kellogg). Cash discounts are not negotiable. Customer must reimburse Kellogg for any discounts taken in error and/or any invoice corrections, on demand. Except as permitted above, if a Customer itself calculates and deducts any discount from an invoice amount and does not pay the full invoice amount when due, the amount not paid will bear interest as an unpaid amount in accordance with these Terms (even if such Customer would be entitled to a discount for early payment).
  13. Audit: Requests for correcting alleged errors, if any, discovered by a party in an audit of its books (including audits of prior billings and shipments) may be submitted to the other party within the time period(s) set out in the then current FCPC Guidelines from time to time (if such guidelines are then in effect). In accordance with the FCPC Guidelines on today’s date, any claim shall be calculated from the month of any such invoice and supported by sufficient documentation for verification. Claims shall have a 90 day waiting period prior to the actual deduction. If the party accepts the claim in whole or part, payment by that party to the other party of the accepted amount shall be made within 30 days of such acceptance. In no event will either party be responsible for the costs, expenses or any penalty or fee of the other for audits, research, bookkeeping, reconciliation, or other administration related thereto.
  14. Product Recall: Should Kellogg recall any Kellogg Products, Customer shall comply with any requests of Kellogg in that regard and shall allow Kellogg access to Customer’s premises for purposes of collecting any such recalled products. Kellogg’s responsibility in the event of a recall by Kellogg of Kellogg Products shall be to, at its option, replace the recalled Kellogg Product with the same or similar Kellogg Products or reimburse the cost of such Kellogg Product to Customer or, if agreed by Customer, to give a credit to the Customer for the cost of such Kellogg Product. Except as provided in the previous sentence, Kellogg shall have no liability to Customer in respect of such recalled products. Kellogg shall not be liable for any such recalled Kellogg Products with less than a 30 day shelf life on the date of recall.
  15. Governing Law: These Terms and all related transactions will be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein. By placing an order with Kellogg, Customer agrees with Kellogg to the non-exclusive jurisdiction of the courts of Ontario.
  16. Severability: The invalidity or unenforceability of any provision of these Terms or any part thereof shall not affect the validity or enforceability of any other provision thereof and any such invalid or unenforceable provision or part shall be deemed to be severable.
  17. Waiver: The failure of Kellogg to enforce or insist upon compliance with any of these Terms, or any waiver of same in any instance, shall not be construed as a general waiver or abandonment of any these Terms.
  18. Entire Agreement: These Terms represent the only and entire agreement between Customer and Kellogg with respect to the subject matter hereof. Only an authorized Kellogg Corporate Officer, in writing and in advance, may change these Terms or agree to additional or amended terms.

November 2015