TERMS OF SALE

THESE TERMS AND CONDITIONS APPLY IN RESPECT OF ALL TRANSACTIONS BETWEEN CUSTOMER AND KELLANOVA CANADA INC. (“ KELLANOVA”).   UNLESS OTHERWISE EXPRESSLY STATED IN A SEPARATE AGREEMENT WITH  KELLANOVA: (i) THIS AGREEMENT SHALL GOVERN THE RELATIONSHIP BETWEEN THE PARTIES WITH RESPECT TO THE PURCHASE AND SALE OF KELLANOVA PRODUCTS; AND (ii) IN THE EVENT OF ANY CONFLICT WITH ANY AGREEMENT WITH CUSTOMER AND KELLANOVA THIS AGREEMENT SHALL GOVERN THE RELATIONSHIP BETWEEN THE PARTIES. 

GENERAL

(1) General: Kellanova is committed to serving all its customers fairly and equitably.   Kellanova’s price list (“Price List”) or any specific negotiated price, and these Terms of Sale constitute the terms and conditions pursuant to which  Kellanova sells Kellanova products (“Products”) to Kellanova-approved customers (“Customer”). Kellanova may change these Terms of Sale at any time without prior notice.  The Price List or any specific price negotiated between Kellanova and Customer together with these Terms of Sale, are collectively referred to as the “Terms”.  The applicable Terms are those in effect at the time an order placed by a Customer is received by Kellanova.  The applicable Price List shall be the Kellanova price list in effect at the time that an order is delivered based upon the customer’s required delivery date. 

(2) Governing Terms: By placing an order with Kellanova, and/or by accepting delivery of products from Kellanova, a Customer will be deemed to have accepted and agreed to be bound by the Terms.  The Terms will govern the purchase and sale of all Products by Kellanova; no additional, amended or different terms appearing on Customer’s order forms or otherwise (unless issued by Kellanova in writing or agreed to in writing by Kellanova 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 Kellanova’s lack of objection thereto nor shipment of Products shall constitute Kellanova’s agreement to any additional or modified terms and conditions), unless agreed to in writing by Kellanova in advance. If both Kellanova 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 Kellanova and the Customer to comply with such guidelines.

(3) No Export: Products Purchased by Customers are for consumption and resale in Canada only. Customer shall not, directly or indirectly, sell into, export to, transfer to, or make available for delivery to, any jurisdiction outside Canada the Products purchased pursuant to the Terms.  For greater certainty, indirectly includes to sell or otherwise distribute Products to any person or entity it knows or, acting reasonably, ought to know will contravene this section.  In addition to any other rights Kellanova may have, breach of this section shall be grounds for Kellanova 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 Kellanova).

ORDERS PLACED WITH KELLANOVA 

(4) Order Acceptance: Kellanova must accept the Order.  Kellanova, 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.

(5) Shipping Lead Time: At least 3 Business Days (Display ready Packaging will require at least  14  Business Days) order processing lead time is required from the date following receipt by Kellanova of Customer’s order to the required shipping date.  Transit days (the typical number of days Kellanova’s requires to move the Customer’s order from Kellanova’s warehouse to the destination location designated by the Customer (the “Deliver Location”)) will vary by shipping mode, by Customer, and 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.  Kellanova is not liable for delays in delivery or failure to deliver by required delivery date, regardless of the cause of such delay or failure.  The same lead times shall apply with respect to any re-submission of a Customer purchase order.

(6) Volume Requirements: All orders must (i) meet required minimum volumes, (ii) must be ordered in Kellanova’s unit loads or full layer increments, (iii) include a requested delivery date and (iv) only include active Kellanova’s product SKU’s as deemed by Kellanova in its sole and absolute discretion. Quantities to establish unit loads, full layer increments and full truck load are available on the Price List.

(7) Taxes: Customer is responsible for goods and services tax, sales tax and all other taxes associated with an order, except taxes on Kellanova’s net income.

(8) Shipping: Kellanova shall determine carriers and routing for all orders. Truckload and less than truckload shipments will be made prepaid (at Kellanova’s cost) to the Delivery Location, provided minimum shipping quantities are met and Kellanova ships to such Delivery Location.  Charges for shipping to another location, resulting from refusal or unloading of the shipment, or relating to transport of Kellanova 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 Kellanova for any and all such amounts, and shall pay interest on all such amounts past due as set out in section 16 below.  Kellanova may make partial shipments without any penalty or fine.

(9) Risk of Loss: Risk of Loss of or damage to, and responsibility for, Products shall pass to Customer upon delivery of Kellanova Products to Delivery Location or upon Customer pick-up (if permitted by Kellanova).

(10) Return of Product: Kellanova Products may not be returned to Kellanova by Customer except as provided in or except in accordance with the terms of an arrangement made in writing with Kellanova in advance and, in any event, Products will not be accepted with less than a 60 day shelf life.

(11) Shortage and Damage: Any alleged Product shortage or damage must be communicated to Kellanova’s OS&D department via OSDKCI@KELLANOVA.COM in writing immediately after completion of receiving of the Product on the agreed upon date and time, all supporting documentation (i.e. Customer’s enterprise system report or signed pro-bill or intermodal inspection report or digital images) clearly indicating shortage or damage and the number of cases/display ready pallets affected.  Kellanova in its sole discretion shall determine the acceptability of documentation as proof of shortage or damage/refusal. Kellanova shall not allow deductions from invoices, where the customer has not provided acceptable documentation of any shortage or damage.  If Kellanova does not receive written notification of such shortage or damage within such period, it shall be conclusively presumed that the Kellanova Products were delivered in their entirety and without damage and that any damage occurred after delivery on the Customer’s premises or its designated place of delivery.  The customer shall not provide disposition of any refused products, all refused products must be returned immediately using the same agent who made the initial delivery.  The receiver is not authorized to mark or label or deface in any way products that are refused.  No product from any other previous delivery may be returned unless pre-authorized and coordinated by Kellanova (Issues a Kellanova Return Authorization Number).

(12) Credit: Kellanova has the sole discretion, to determine whether, and on what terms, to grant credit to Customer.

(13) Title/Security: Kellanova retains title to and ownership of all 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 Kellanova Products passes to the Customer on delivery to the Delivery Location or upon Customer pick-up.  Customer grants Kellanova a security interest (which shall include a purchase money security interest where it satisfies the criteria therefor) in all Kellanova brand products in which the Customer now or hereafter has rights or an interest (including the Kellanova Products) and all proceeds thereof (including insurance proceeds and including proceeds of proceeds, collectively the “Collateral”), until the Kellanova 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 Kellanova deems appropriate to establish, complete and perfect such title retention and security interest.

(14) Limited Warranty: Kellanova warrants that all 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.  Except as provided in the previous sentence, Kellanova shall not be liable for Kellanova Product claims of any kind. Kellanova shall not be liable for unsold Product remaining on Customer’s shelves, nor for Products with less than a 30 day shelf life. Kellanova’s responsibility for breach of the warranty provided above shall be to, at its option, replace the defective Product or reimburse the cost of such Product to Customer or, if agreed by Customer, to give a credit to the Customer for the cost of such Product.  Such replacement, reimbursement or credit shall be the sole and exclusive remedy available to Customer for a breach of warranty provided above. KELLANOVA MAKES NO OTHER WARRANTIES, CONDITIONS OR REPRESENTATIONS RESPECTING THE KELLANOVA PRODUCTS.  ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS (EXPRESS OR IMPLIED, ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING) ARE HEREBY EXCLUDED.

PRICE

(15) Price: Kellanova shall provide all existing customers with notice of list price increases or any Kellanova declines in accordance with FHCP (or any successor thereof) guidelines. Kellanova will not warrant price against decline for Kellanova Products that Customer has agreed to sell or distribute (or has sold or distributed) to a third party in breach of these Terms.  If Customer’s purchase orders do not match Kellanova’s agreed to pricing and it is deemed by Kellanova, in its sole discretion, that it is Customer error, Customer must revise and re-submit their order form.  The Customer confirms that any and all advertising related to the resale price of Kellanova Products will be compliant with Kellanova’s Minimum Advertised Pricing Policy.

(16) 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.  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). Kellanova shall apply payments received from Customer in such order as Kellanova shall determine in its sole discretion.  Except with Kellanova’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 Kellanova (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 Kellanova be required to pay Customer any such amounts (unless otherwise provided for in these Terms or unless agreed to in writing in advance by Kellanova).  If Customer deducts any amount from invoice amount, the amount deducted is an unpaid amount that shall bear interest in accordance with these Terms. Kellanova offers a discount incentive for early payment of invoices by Customer.  In such cases, if full payment of the invoice amount is received by Kellanova within 10 days of the invoice date, Customer is eligible to deduct 1% of the total amount as indicated at the bottom of such invoice.  Cash discounts are not negotiable.  Customer must reimburse Kellanova 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).

(17) 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 FHCP Guidelines from time to time (if such guidelines are then in effect). In accordance with the FHCP 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.

LIMITED LIABILITY

(18) LIMITED LIABILITY: KELLANOVA SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD-PARTY IN CONTRACT, TORT, 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 PRODUCTS, CUSTOMER’S ORDER OF SAME, AND/OR FAILURE, NEGLEGENCE OR DELAY IN PERFORMANCE BY KELLANOVA (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; (II) ANY LIABILITY OF CUSTOMER TO A THIRD PARTY AND (III) LIABILITIES CAUSED BY CIRCUMSTANCES BEYOND KELLANOVA’S REASONABLE CONTROL.   WITHOUT LIMITING OR VARYING THE FOREGOING (OR ANY OTHER PROVISION OF THESE TERMS), IN THE EVENT OF A FUNDAMENTAL BREACH BY KELLANOVA, KELLANOVA’S TOTAL LIABILITY (IF ANY) HEREUNDER SHALL IN NO EVENT WHATSOEVER BE GREATER THAN THE AMOUNT PAID BY CUSTOMER TO KELLANOVA FOR THE KELLANOVA PRODUCT(S) IN RESPECT OF WHICH THE LIABILITY AROSE.

MISCELLANEOUS

(19) Product Recall: Should Kellanova recall any Kellanova Products, Customer shall comply with any requests of Kellanova in that regard and shall allow Kellanova access to Customer’s premises for purposes of collecting any such recalled products.  Kellanova’s responsibility in the event of a recall by Kellanova of Kellanova Products shall be to, at its option, replace the recalled Kellanova Product with the same or similar Kellanova Products or reimburse the cost of such Kellanova Product to Customer or, if agreed by Customer, to give a credit to the Customer for the cost of such Kellanova Product.  Except as provided in the previous sentence, Kellanova shall have no liability to Customer in respect of such recalled products.  Kellanova shall not be liable for any such recalled Kellanova Products with less than a 30 day shelf life on the date of recall.

(20) 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 Kellanova Products (or any products previously sold by Kellanova to Customer) by legal process or otherwise, then, in addition to any other rights Kellanova 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 Kellanova’s costs of collection, including reasonable legal fees.  Further, in any such circumstances, Kellanova 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 Kellanova), refuse acceptance of orders in whole and in part and/or to stop shipment, and/or decline to permit Customer’s participation in promotions.

(21) Termination: In addition to any other rights Kellanova may have, breach of the Terms shall be grounds for Kellanova 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 Kellanova).

(22) Governing Law and Interpretation: 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.   All references to days shall mean any day other than Saturday, Sunday and any day which is a legal holiday in the Province of Ontario. By placing an order with Kellanova, Customer agrees with Kellanova to the non-exclusive jurisdiction of the courts of Ontario.

(23) 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.

(24) Waiver: The failure of Kellanova 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.

(25) Entire Agreement: These Terms represent the only and entire agreement between Customer and Kellanova with respect to the subject matter hereof.   Only an authorized Kellanova Corporate Officer, in writing and in advance, may change these Terms or agree to additional or amended terms.

(26) Cybersecurity: Customer represents and warrants that it will establish and maintain commercially reasonable and appropriate administrative, technical and physical safeguards consistent with the highest industry standards against the destruction, loss, alteration, unauthorized access to or use of Kellanova’s data or Customer’s data or systems, and any anticipated threats and hazards to the security and integrity of Kellanova’s data or Customer’s data or systems (the “Data and System Safeguards”); Customer will promptly notify Kellanova of any breach of the Data and System Safeguards that might reasonably be expected to compromise the ability of Customer to perform its obligations under this Terms of Sale.

(27) Mars Transaction: Notwithstanding anything to the contrary in this Terms of Sale, nothing in this Terms of Sale shall restrict, or limit, the ability of Mars, Incorporated, a corporation organized in Delaware, or any of its affiliates (other than Kellanova, its subsidiaries and other entities in which Kellanova directly or indirectly owns 50% or more of the capital stock or other equity interests thereof) to (a) compete in any business or with any person or in any geographic area or (b) purchase or sell products or services from or to any person.

 

September 2024