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Terms and Conditions

STANDARD TERMS AND CONDITIONS OF SALE

ALL ORDERS ARE SUBJECT TO THE FOLLOWING STANDARD TERMS AND CONDITIONS, WHICH SUPERSEDE ANY INCONSISTENT OR ADDITIONAL TERMS AND CONDITIONS CONTAINED IN ANY PURCHASE ORDER OR OTHER CUSTOMER SUPPLIED FORM.

1. Sale Conditions.  As used herein, the term “Seller” shall mean Atkins Nutritionals, Inc., or Wellness Foods USA, LLC, as applicable, and the term “Buyer” shall mean the person, firm, entity or corporation purchasing goods supplied by Atkins Nutritionals, Inc., or Wellness Foods USA, LLC, whether pursuant to a Purchase Order (defined below), electronic data system, or otherwise (hereinafter “Products”). These terms and conditions of sale (hereinafter “Sale Conditions”) apply to and are deemed to be incorporated in all purchases and sales of the Products, and all descriptions, quotations, proposals, offers, acknowledgements, acceptances and sales are subject to and shall be governed exclusively by the terms and conditions stated herein. Buyer’s acceptance of any offer is limited to these Sale Conditions, which shall prevail over all terms and conditions (if any) proposed by Buyer, including any terms and conditions contained on quotations, purchase orders or other documents issued from Buyer (hereinafter “Purchase Order(s)”). No such additional or inconsistent terms or conditions proposed by Buyer shall become part of the agreement between Buyer and Seller unless expressly accepted in writing by Seller, which writing must specifically reference these Sale Conditions and the specific provision herein that such parties are agreeing to supersede or amend.  Seller hereby rejects any proposed additional or inconsistent terms that do not meet the foregoing requirements. Without limiting the foregoing, these Sale Conditions shall not be supplemented by any trade usage, course of prior dealings or acquiescence in any course of performance.

2. Price; Taxes.  All prices listed and quoted by Seller are exclusive of any federal, state or municipal sales, use or other similar taxes which Seller may be required to collect or pay upon sale or delivery of its Products to Buyer and Buyer shall be solely responsible for payment of such taxes (excluding, for the avoidance of doubt, taxes based on Seller’s income).  All taxes shall be paid by Buyer unless Buyer provides Seller with an exemption certificate acceptable to the relevant taxing authority; however, Seller may elect to pay any such taxes directly, in which event Buyer shall repay Seller promptly after invoicing therefor.

 3. Payment Terms.  Prior to credit approval, Seller’s payment terms are cash in advance.  Following approval of credit terms by Seller in accordance to its internal policies, payment terms of the gross invoice amount shall be 1% 15, net 30 days from the date of Seller’s invoice.  Seller reserves the right to modify, suspend or terminate, at any time and for any reason, any credit terms previously extended to Buyer. The Seller may at any time decline to make any shipment or delivery except upon receipt of payment or upon terms and conditions satisfactory to Seller. All amounts are stated and payments are to be made in US Dollars unless otherwise agreed in writing. If Buyer specifies a currency other than US Dollars, Seller reserves the right to amend the quoted price by any amount to cover movements in the exchange rate between the currency of the Buyer quotation and US Dollars arising between the time of quotation and acceptance of the Purchase Order. If any payment is overdue Seller shall be entitled, without prejudice to any other right or remedy, to suspend all further deliveries to Buyer without notice and/or to charge interest on any amount overdue at the applicable statutory default interest rate or if none at the rate of twelve percent (12%) per annum compounding daily (or, if less, the greatest amount permitted by law). If, despite any default by Buyer, Seller elects to continue to make shipments of Products, Seller's action in so doing shall not constitute Seller’s waiver of any default by Buyer or in any way prejudice Seller's legal remedies for such default. Seller shall be entitled at any time to set off any sums owing by Buyer to Seller against sums payable by Buyer if applicable.

 4. Delivery and Title.  Delivery terms are FOB Seller’s facilities unless otherwise specified by Seller in writing.  Buyer will supply Seller with delivery instructions promptly on notification to Buyer that Products are ready for shipment. If delivery instructions are not received or if Buyer requests that a shipment be postponed for more than ten (10) days after the date Buyer is notified that the Products are ready for shipment, Seller shall be entitled to make arrangements for storage of the Products at Buyer’s risk and expense and to charge Buyer accordingly. In such case, Seller’s obligation to deliver the Products will be deemed satisfied and Buyer will become responsible for the risk of loss of or damage to the Products and for paying the purchase price. In addition, delivery of Products to common carrier or licensed trucker shall constitute delivery to the Buyer, and all risk of loss or damage in transit shall be borne by the Buyer. The Seller reserves the right to make delivery in installments, unless otherwise expressly stipulated herein. All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve the Buyer of its obligation to accept remaining deliveries.

 5. Security Interest; Insurance.  Until payment in full by Buyer, Products shall be held by Buyer as bailee for Seller and will be kept readily identifiable as Seller’s property. Buyer agrees that Seller shall retain a purchase money security interest in all Products sold to Buyer (the “Collateral”), and to any proceeds from the disposition of such Collateral until the purchase price due Seller shall have been paid in full.  Upon any default by Buyer hereunder, Seller shall have all rights and remedies of a secured party under the Uniform Commercial Code, which rights shall be cumulative. Prior to full payment of the purchase price, Buyer shall keep insured the Products shipped to Buyer by Seller under adequate insurance policies with such provisions, for such amounts and with such insurers as shall be satisfactory to Seller, but in no case in an amount less than the purchase price of such Products.

 6. Acceptance.  Buyer will be responsible for the unpackaging and inspection of all Products upon arrival.  All Products sold by Seller hereunder shall be deemed irrevocably accepted by Buyer unless within twenty (20) days from the shipment date, Buyer notifies Seller in writing that such Products are damaged, defective or shipped in error.  Damaged Products and packaging must be kept for inspection by Seller and/or the carrier. Any claims for shortages must be made to Seller in writing within ten (10) days from receipt of the Products at issue and noted on the bill of lading at the time of delivery.

 7. Returns.  All returns must be authorized by Seller.  A return authorization number issued by Seller must accompany all returned Products. 

 8. Warranty; Disclaimer. The Products will be covered by Seller’s standard warranty.  Seller’s standard warranty is the only warranty provided by Seller for the Products. No other warranties whatsoever are offered for the Products under THESE SALE CONDITIONS. Therefore, SELLER hereby expressly disclaims and BUYER expressly waives: (i) any statutory or implied warranty of merchantability or fitness for any purpose, (ii) any implied warranty arising from course of dealing, course of performance or trade usage, and (iii) any other WARRANTY, right, claim, or remedy whatsoever of BUYER or any other person, customer, or purchaser claiming by, through, or under BUYER against SELLER arising pursuant to SELLER’s Standard Warranty or THESE SALE CONDITIONS OR any agreement pertaining to the Products, or arising pursuant to indemnity, tort (including, but not limited to, negligence), products liability or strict liability, or otherwise. No agreement varying or extending SELLER’s Standard Warranty or the remedies, exclusions, or limitations set out in SELLER’s Standard Warranty shall be effective unless signed by an authorized executive officer of SELLER.

 9. Intellectual Property. Ownership of all intellectual property rights in the Products shall be and remain owned by and vest exclusively with Seller or its licensors.  Buyer shall not reverse engineer, disassemble, or otherwise attempt to rebuild or recreate the Products. Seller’s trademarks and names shall not be used otherwise than in reference to, and as applied by Seller to the Products. Further, if Seller objects to any use of its marks or names, upon notice to Buyer of the objection, Buyer shall cease and desist from such use. Any and all use of Seller’s marks or names by Buyer shall inure to the exclusive benefit of Seller.

 10. Default and Cancellation.  In the event of Buyer’s default in payment for the Products purchased hereunder, Buyer shall be responsible for all reasonable costs and expenses incurred by Seller in collection of any sums owing by Buyer, including reasonable attorneys’ fees, and Seller shall not be obligated to make any further deliveries to Buyer.  Should Buyer elect to cancel an order, in whole or in part, Buyer shall be liable to Seller for reasonable cancellation charges which shall include but not be limited to all costs and expenses incurred by Seller in connection with procuring and filling Buyer’s Purchase Order.  Cancellations will not be accepted after shipment of any Products to Seller.

 11. Indemnity.  BUYER WILL INDEMNIFY, DEFEND, AND HOLD SELLER HARMLESS (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, AGENTS OR SUBCONTRACTORS) FROM AND AGAINST ANY LOSS, LIABILITY, CLAIM OR DAMAGE SUFFERED BY SELLER, ITS DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, AGENTS OR SUBCONTRACTORS: (a) AS A RESULT OF THIRD-PARTY CLAIMS CAUSED BY BUYER THAT ARE MADE AGAINST SELLER; AND (b) CAUSED BY BUYER AS A RESULT OF BUYER SUPPLYING OR SELLING THE PRODUCTS TO ANY PERSON OR ENTITY.

 12. Limitations on Liability.  REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, STRICT LIABILITY OR OTHERWISE), IN NO EVENT (i) SHALL SELLER’S MAXIMUM LIABILITY FOR ALL DAMAGES EXCEED ACTUAL DIRECT DAMAGES CAUSED BY THE SPECIFIC PRODUCTS COMPLAINED OF, WHICH IN NO EVENT SHALL EXCEED THE TOTAL AMOUNT PAID FOR SUCH PRODUCTS, OR (ii) SHALL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, SPECIAL OR INDIRECT DAMAGES (INCLUDING BUT NOT LIMITED TO LOST BUSINESS PROFITS OR REVENUES, DAMAGE OR DESTRUCTION OF PROPERTY).

 13. Compliance with Laws.  Buyer also that it will comply with all applicable laws and regulations relating to its purchase and sale of the Products.

 14. Confidentiality.  Each party acknowledges and agrees that each may be disclosing to the other confidential or proprietary materials and other confidential or proprietary information that is properly marked or identified as confidential or proprietary (“Confidential Information”) which, if improperly used or disclosed by the receiving party, could cause irreparable harm to the disclosing party.  The following information will not be considered ''Confidential Information'': (a) information that is already generally available to the public at the time of disclosure by the disclosing party; (b) information that hereafter becomes generally available to the public, through no fault of the receiving party; (c) information that is known by the receiving party prior to the disclosure; (d) information that is independently developed by the receiving party without use of the disclosing party’s confidential information; and (e) information that becomes lawfully known through a third party without restriction.  Each party agrees to maintain the other party’s Confidential Information as confidential and not to, directly or indirectly, disclose or reveal it to any third party, or use it for any purpose, except for purposes of these Sale Conditions or as required by a court or governmental authority of competent jurisdiction, after first notifying the disclosing party of such disclosure requirement.

 15. Compliance with Seller Policies.   The Buyer shall comply with any policies governing the purchase and sale of Products as provided and updated by the Seller from time to time.

 16. Force Majeure.  The Seller shall be excused for any delay in performance due to acts of God, acts of war, fires, floods, accidents, mill conditions, labor disputes, delays in transportation, delayed issuance of export control licenses, or any circumstance or cause beyond the control of the Seller in the reasonable conduct of its business. In the event of such delay, the date of shipment shall, at the request of Seller, be deferred for a period equal to the time lost by reason of the delay or otherwise for a reasonable time.

 17. Governing Law and Venue.  These Sale Conditions and the rights and obligations of the parties hereunder shall be governed by and construed in accordance with the internal laws of the State of Colorado and the United States of America, without regard to choice of law principles. The United States District Court for the District of Colorado and the state courts sitting in Denver, CO shall be sole venues for any dispute arising directly or indirectly from the relationship created or the transactions contemplated by these Sale Conditions. Each of the parties consent to the jurisdiction and venue of such courts and waives any argument that any such courts do not have jurisdiction over such party or such dispute or that venue in any such forum is not appropriate or convenient. The United Nations Convention on Contracts for the International Sale of Goods shall not be applicable to these Sale Conditions.

 18. Modification and Waiver.  The terms and conditions set forth above shall not be modified, rescinded or waived unless confirmed in writing by a duly authorized officer of Seller and Buyer. Seller’s failure to object to provisions contained in any communications from Buyer shall not be deemed a waiver of the provisions of these Sale Conditions. 

 19. Severability.  If any provision of these Sale Conditions shall be deemed invalid or unenforceable, these Sale Conditions shall be construed as though such provision does not appear herein and shall be otherwise fully enforceable.

 20. Notices.  All notices, consents, demands, and other communications with respect hereto shall be in writing and sent by first class mail, express mail, or courier, postage prepaid, to Atkins Nutritionals, Inc.: 1050 17TH Street, Ste 1500, Denver CO  80265, to the attention of Vice President, Operations and Customer Support, with a copy to the attention of the General Counsel at the same address, and if to Buyer, as indicated on the face of the Purchase Order or electronic data transmission.

 21. Entire Agreement.  These Sale Conditions constitute the entire agreement between Seller and Buyer relating to the purchase and sale of the Products. Buyer represents that the person placing the Purchase Order on Buyer’s behalf has the full authority to do so.

 22. Successors and Assigns. These Sale Conditions and the rights of Buyer hereunder shall not be assigned by Buyer without Seller’s prior written consent, which shall not be unreasonably withheld or delayed.  Seller may assign these Sale Conditions and the rights of Seller hereunder upon written notice to Buyer. Subject to these conditions, these Sale Conditions will be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.