Terms & Conditions – Sales
Prices quoted are exclusive of, and Buyer will pay, shipping and related fees, foreign, federal, state, local excise, sales, use, personal property and any other taxes or duties, except only taxes based on Supplier’s income. Any certificates or other evidence of applicable exemptions to such taxes or duties must be provided to Supplier prior to invoicing or such taxes or duties will be charged to Buyer; provided, however, if Supplier does not collect such items from Buyer and is later requested or required to pay the same to any taxing authority, Buyer shall promptly make payment to Supplier or directly to such taxing authority if requested by Supplier.
Supplier does not represent that its prices are equal to or lower than those charged to other customers or comparable to prices offered by a third party.
The parties agree that the pricing in the Quotation properly reflects any and all discounts (including without limitation the value of any discounts, rebates, or other price concessions) and such discounts are intended to reflect discounts or other reductions in price within the meaning of the discount exception to the Federal Anti-Kickback Statute 42 U.S.C. Section 1320a-7b (b) (3) (A). Buyer will properly report and appropriately reflect such discounted prices on cost reports or claims submitted to any state or federal program that provides reimbursement to Buyer for the discounted goods and/or services. Buyer will also retain invoices and other price documentation and make them available to federal and state officials upon request.
Shipments shall be made in accordance with the delivery schedule outlined in the applicable (i) Quotation or (ii) purchase order expressly accepted by Supplier (a “Purchase Order”). Unless otherwise provided in the applicable Quotation, (i) Buyer shall be responsible for arranging shipping to and from Supplier’s facilities and payment of all costs related thereto and (ii) terms shall be FOB Supplier’s dock, and Supplier shall bear no risk of loss following the pickup therefrom.
Products to be exported, if any, are subject to Supplier’s ability to obtain export licenses and other necessary papers within a reasonable time. Buyer will furnish all consular and customs declarations and will accept and bear all responsibility for penalties resulting from errors or omissions therefrom. Except as otherwise expressly stated on the Quotation, Buyer shall be responsible for all costs of shipping and transport of the Products, including packing materials, and any import and/or export duties.
Buyer shall not return or exchange shipped Products without Supplier’s express prior written permission (which may be withheld in Supplier’s sole discretion). Products returned to Supplier without Supplier’s permission shall be returned to Buyer at Buyer’s sole cost and expense. Products returned with Supplier’s permission may be subject to a restocking fee.
Buyer may not cancel any order and shall be liable for a fee equal to 100% of the contract value plus any cancellation charge incurred by Supplier and any expenses or fees incidental to such cancellation, including the cost of any raw or production materials purchased in furtherance of such order.
To the extent (i) Buyer requires or requests that Supplier initiate or prepare for production of the Products or performance of the Services (whether or not pursuant to an order, a Quotation or forecasts) or (ii) Supplier informs Buyer that it is initiating or preparing for production of the Products or performance of the Services based on Buyer forecasts or other information provided by Buyer (and Buyer does not instruct Supplier to defer initiation or preparations for production within 5 days of being so informed), including by purchasing (or entering into a commitment to purchase) any raw materials, Buyer shall be responsible for all costs incurred by Supplier in connection with, or incidental to, fulfilling such requirement or requests (including the cost of purchasing the raw materials), whether or not such Products or Services are ultimately required by Buyer, regardless of the absence of a purchase order for such Products, Services or raw materials.
Buyer shall inspect the Products promptly following taking possession thereof and inform Supplier of any failure of such Products to comply in all material respects with any applicable specifications agreed to by Buyer and Supplier or the warranties applicable thereto. If any of the Products fail to comply in any material respects with any applicable specifications or warranties, Buyer may reject such Products by providing prompt written notice of such rejection to Supplier (in any event within two (2) business days following such inspection) and Supplier shall replace such non-compliant Products at its expense.
Supplier shall not be liable for any loss, damage, cost or expense resulting from delays arising out of causes beyond its control and without its fault or negligence, including acts of God, acts of the government, fires, floods, strikes, freight embargoes, delays in transportation, difficulties in obtaining labor, materials, manufacturing facilities or transportation, and unusually severe weather (each a “Force Majeure Event”), nor shall such delay affect the remainder of any order. Upon such Force Majeure Event, the time for performance shall be suspended for the duration of the Force Majeure Event. If the Force Majeure Event materially impacts Supplier’s ability to meet its obligations at the agreed upon price, Supplier may reasonably increase pricing upon written notice to Buyer.
Except as otherwise set forth in an applicable Quotation, amounts due in respect of the Products and Services will be paid within thirty (30) days from the earlier of (i) Buyer’s receipt of an invoice for such Products or Services and (ii) Buyer’s acceptance of such Products or Supplier’s performance of such Services, as applicable. In the event Buyer’s payments are not paid when due under the terms of the Quotation, Supplier may charge interest at a rate specified on the Quotation for the period commencing on the due date until the same are paid in full, or the highest interest rate permitted by applicable law, whichever is lower. Supplier may require payment in advance due to its risk assessment of Buyer’s financial condition. Payments by Buyer are not subject to setoff or recoupment for any present or future claim Buyer may have against Supplier or its affiliates.
If Buyer fails to make payments when due, Supplier may immediately repossess all Products not paid in full and may suspend provision of the Products or Services, and Buyer shall pay for any reasonable out-of-pocket expenses incurred by Supplier in collecting payments, including without limitation, third-party attorneys’ and collections fees.
Until Buyer has paid the entire purchase price, Buyer grants and conveys to Supplier and Supplier retains, a purchase money security interest in the Products. Upon written request by Supplier, Buyer will execute any document necessary for Supplier to perfect the security interest, and Buyer authorizes Supplier to file this document and any appropriate financing statement for purposes of such perfection.
Supplier hereby provides a limited warranty to Buyer that all Products furnished by Supplier to Buyer shall be free of adulteration at the time Buyer takes possession and free of defects in workmanship. In the event of breach of the foregoing warranty, Supplier shall take reasonable action, at Supplier’s expense, to correct such breach or replace the non-conforming Products with conforming Products. The foregoing remedy is Buyer’s sole and exclusive remedy against Supplier for breach of this warranty. Supplier hereby expressly disclaims all implied warranties, including without limitation any implied warranty as to merchantability or fitness for a particular purpose.
For the avoidance of doubt, Supplier shall not be liable to Buyer or otherwise for any defect or deficiency which results, in whole or in part, from (i) negligent storage or handling of the Products by Buyer, its employees, agents, or contractors, or use that is inconsistent with normal storage or operational conditions or (ii) any misuse, alteration or damage occurring after title of the Products has transferred to Buyer pursuant to the terms hereof.
Supplier may terminate all or any part of any Purchase Order or Quotation, upon prior written notice of default to Buyer, if Buyer becomes insolvent or subject to proceedings under any law relating to bankruptcy, insolvency or the relief of debtors. Upon such termination, Buyer shall be liable for 100% of the contract value plus any costs or expenses incurred by Supplier in connection with such termination.
Supplier and its licensors will retain all intellectual property rights to the Products and Services (other than Buyer IP (as defined below)), including without limitation, designs, drawings, patterns, plans, specifications, technology, technical data, software and information, technical processes and business methods, whether patentable or not, arising from the sale or other provision of the Products or Services to Buyer. Buyer will not enforce against Supplier, Supplier’s Buyers or their respective affiliates any intellectual property rights that include any system, process or business method utilizing or otherwise relating to Products or Services acquired from Supplier. Buyer acknowledges that the packaging and labeling of the Products will bear Buyer’s trade names and trademarks (“Buyer IP”). Buyer hereby grants Supplier a non-exclusive, worldwide and royalty-free license to use such Buyer IP in connection with such packaging and labeling. Buyer shall review all packaging materials prior to order and provide its written approval (including by e-mail) of the use of such packaging materials for the Products.
Neither party may assign these Terms or a Purchase Order without the prior written consent of the other party, provided that Supplier may assign to any of its affiliates. Any attempted assignment of these Terms or any Purchase Order in violation of the foregoing shall be null and void.
The parties will comply with all applicable federal, state or local laws, orders, regulations and/or ordinances applicable to the sale, purchase and distribution of the Products and the performance and use of the Services, including without limitation anti-bribery, anti-corruption, import/export, privacy and anti-kickback laws.
EXCEPT AS OTHERWISE REQUIRED BY LAW, IN NO EVENT WILL SUPPLIER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR BUSINESS INTERRUPTION OR LOSS OF PROFITS) BASED UPON BREACH OF ANY WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY. SUPPLIER’S MAXIMUM LIABILITY HEREUNDER WILL NOT EXCEED THE PRICE OF THE PRODUCTS OR SERVICES FURNISHED BY SUPPLIER GIVING RISE TO THE CLAIM. Supplier’s rights and remedies in these Terms are in addition to, and not in lieu of, any other rights or remedies that Supplier may have at law or in equity.
These Terms are governed by and shall be construed in accordance with the laws of San Bernadino of California excluding its conflicts of law rules. The parties consent to the sole and exclusive venue and jurisdiction of the federal and state courts situated in or having jurisdiction over the San Bernadino of California The United Nations Convention on Contracts for the International Sale of Goods shall not apply. Any action by Buyer for loss or damage arising from or related to the goods and/or services must be commenced within the earlier of one (1) year from the date of delivery or occurrence of the event, or such claim will be forever barred. If Supplier substantially prevails in any legal dispute, Buyer shall pay all reasonable costs incurred by Supplier, including but not limited to collection costs, attorneys’ fees and costs of legal action.
Except as specifically and expressly provided herein, the parties shall be considered independent contractors for the purposes of these Terms and any ORDER. The relationship between Buyer and Supplier shall not be that of partners, agents or joint venturers. Nothing in these Terms or any order shall be deemed to constitute a partnership, agency agreement or joint venture between them for any purpose whatsoever.
These Terms, any Quotation and any Purchase Order constitute the entire agreement between the parties, there being no other promises, terms, conditions, or obligations, referring to the subject matter not contained or referred to herein. If any provision of these Terms, to any extent, is declared invalid or unenforceable, the remainder of these Terms will not be affected thereby and will continue to be valid and enforceable to the fullest extent permitted by law. Any modifications hereto must be in writing and signed by both parties. Supplier’s failure to strictly enforce any of these terms shall not be considered a waiver of any of its rights hereunder. The termination or expiration of these Terms will not affect the survival and continuing validity of any provision which expressly or by implication is intended to continue in force after such termination or expiration.
Terms & Conditions – Purchase Orders
All Products must be shipped at the most advantageous rates unless otherwise authorized in writing by Buyer. Any extra expense in effecting delivery of the Products not so shipped will be charged to Seller. Delivery shall not be deemed to be complete until all Products have been actually received and accepted by Buyer, notwithstanding any agreement to pay freight, express or other transportation charges.
If Seller fails to provide and deliver the quality or quantity of Products specified in any Purchase Order, Seller shall be liable for any additional costs or expenses incurred by Buyer to fulfill the applicable order. If Seller is delinquent in shipping product based on their commitment date, Seller is responsible for upgrading the shipment to an expedited method at their expense.
Adequate scheduling of shipment of Products shall be made by Seller. Seller acknowledges that the delivery dates specified by Buyer are essential to fulfilling Seller’s obligations to Buyer. Seller shall not, however, make material commitments or production arrangements in advance of such time as is reasonably necessary to meet Buyer’s delivery schedule. No claims shall be allowed for such advance efforts. Shipments shall be strictly in accordance with Buyer’s delivery schedule and Seller shall have no claims or rights against Buyer for any production commenced in advance of an order from Buyer. Buyer reserves the right to return, at Seller’s expense, all Products received in advance of delivery schedules or to hold the Products and pay Seller’s invoices on normal maturity after the scheduled delivery date.
An itemized list of contents must be placed in each package delivered to Buyer by or on behalf of Seller. Buyer will not be liable for any charge for cartage or packing unless agreed upon in writing prior to the shipment of the applicable Products. All expenses incurred due to Seller’s failure to furnish necessary shipping documents shall be paid by Seller. Unless otherwise specified, (i) all packing and crating by Seller shall be in compliance with carrier’s tariffs and in suitable containers for protection in shipment and storage, and (ii) the price or prices for the Products shall include all charges for Seller’s packing and crating.
Copies of packing lists and itemized invoices, each bearing the applicable order number, must be mailed on day of shipment. THE APPLICABLE BILL OF LADING OR EXPRESS RECEIPT MUST BE ATTACHED TO THE APPLICABLE SELLER INVOICE. The applicable order number shall be displayed immediately after Buyer’s name on such invoice or bill of lading.
Invoices subject to cash discount should be mailed on the day that they are dated. If the invoice is not mailed on such date, the discount period will begin on the day that such invoice is received by Buyer’s Purchasing Department. Seller’s failure to attach the applicable Bill of Lading or Express Receipt to the applicable invoice will delay payment and the discount period will begin when the documents are received.
All invoices must bear the following certification in order to be processed for payment. “We hereby certify that these goods were produced in compliance with the Fair Labor Standards Act of 1938 as amended, and regulations and orders issued by the United States Department of Labor thereunder.”
Buyer shall have the right to expedite, inspect and test any of the Products prior to shipment. All Products are also subject to Buyer’s inspection and approval on arrival. If rejected, they will be held for disposal at Sellers risk. Such inspection, or the waiver thereof, however, shall not relieve Seller from full responsibility for furnishing Products conforming to the requirements of the Purchase Order, prejudice any claim, right or privilege Buyer may have because of the use of defective or unsatisfactory Products or work.
Samples and grading are to be supplied to Buyer, as requested from time to time, at Seller’s sole cost and expense.
a. All Products are free of defects in material and workmanship, conform to applicable specification, drawing samples and descriptions, and are of merchantable quality, and are suitable for Buyer’s intended purposes.
b. The Products are owned by Seller, and upon acceptance by Buyer, will be delivered to Buyer free and clear of all claims, liens, encumbrances and penalties.
c. No part of the Products are subject to any actual or claimed trademark, patent or copyright infringements or any litigation based thereon.
d. All Products and packaging shall bear markers and labels and be manufactured and distributed in compliance with all applicable federal, state and municipal laws, rules and regulations, including without limitation the Fair Labor Standards Act, the Federal Food, Drug and Cosmetic Act, the Fair Practices and Labeling Law and the Toxic Substances Control Act, as applicable.
e. No product, component, or ingredient with a foreign country origin is to be used without prior written approval from Buyer.
f. Products meet all requirements of the Federal Food, Drug and Cosmetic Act as amended, including those related to pesticide and chemical residues, as applicable.
g. Seller is in compliance, and will be in compliance, with all applicable foreign, federal, state and local laws, statutes and ordinances including, but in no way limited to rules, regulations and standards of the Occupational Safety and Health Act of 1970 and the Federal Contract Work Hours and Safety Standards Act and the rules and regulations promulgated under these acts.
h. Neither Seller, nor any of its subcontractors, will utilize child, slave, prisoner or any other form of forced or involuntary labor, or engage in abusive employment or corrupt business practices, in the supply of Products under these Terms and Conditions. The foregoing warranties and representations shall survive Buyer’s acceptance and payment for the Products covered by these Terms and Conditions.
All Products furnished by Seller and any services or installation relating thereto pursuant to any Purchase Order shall be warranted to be of the best quality of their respective kinds and to be free of defects in design, workmanship, or material and when known to Seller suitable for their intended purposes. In the event of breach, Seller shall take all necessary action, at Seller’s expense, to correct such breach in the most expeditious manner possible. Should Seller fail to correct any such breach in a timely manner, Buyer may proceed, at Seller’s expense, to perform the necessary corrective work. This warranty shall also inure to the benefit of Buyer’s customers and users of the Products.
Seller may not assign or factor these Terms and Conditions or any Purchase Order without the prior written consent of Buyer. Any attempted assignment of these Terms and Conditions or any Purchase Order in violation of the foregoing shall be null and void.
Buyer may, at any time, by written notice to Seller, make changes within the general scope of any Purchase Order in any one or more of the following (i) drawings designs, or specifications; (ii) method of shipping or packing; (iii) place of inspection, acceptance or point of delivery; and (iv) schedule of deliveries.
Buyer may terminate all or any part of any Purchase Order by giving notice of default to Seller, if Seller: (a) refuses or fails to deliver the Products within the time specified; (b) fails to comply with any of the provisions of these Terms and Conditions or any Purchase Order or so fails to make progress so as to endanger performances hereunder; or (c) becomes insolvent or subject to proceedings under any law relating to bankruptcy, insolvency or the relief of debtors.
In the event of a termination for default, Buyer’s liability shall be limited to the payment for Products delivered and accepted by Buyer under the applicable Purchase Order.
Buyer may terminate any order at any time for its convenience, in whole or in part, in which event, Buyer’s sole obligations shall be to reimburse Seller for (a) those Products actually shipped and accepted by Buyer up to the date of termination, and (b) costs incurred by Seller for unfinished Products, which were specifically manufactured for Buyer prior to termination in accordance with a Purchase Order and which are not standard products of Seller. In no event shall Buyer be responsible for loss of anticipated profit nor shall reimbursement exceed the applicable order value.
Buyer may at any time, by written notice to Seller, stop all or any part of the work called for by any Purchase Order. Upon receipt of such notice, Seller shall take all reasonable steps to minimize the incurrence of costs during the period of work stoppage. Buyer may subsequently either cancel the stop work order resulting in an equitable adjustment in the delivery schedule and/or the price, or terminate the work in accordance with the provisions of these Terms and Conditions or the applicable Purchase Order. Acceptance and/or payment of all or any part of the Products shall not be deemed to be a waiver of Buyer’s rights either to (i) cancel shipments already sent, (ii) cancel future shipments, (iii) return all or any portion of the Products because of failure to conform to any Purchase Order, by reason of defects, latent or patent or other breach of warranty, or (iv) make any claim for damages including manufacturing costs and loss of profits or other special damages incurred by Buyer. Such rights shall be in addition to any other rights and remedies provided by law which shall not be limited by anything contained herein or otherwise.
Seller agrees to indemnify and save harmless Buyer, its officers, employees, agents, representatives or any of its customers buying or using the Products specified herein from any loss, damage or injury arising out of a claim or suit at law or equity for actual or alleged infringement of letters patent, by reason of the buying, selling or using the Products supplied under these Terms and Conditions, and, if required by Buyer, will assume the defense of any and all suits and will pay all costs and expenses incidental thereto.
“Confidential Information” means any confidential or proprietary information that Buyer discloses to Seller hereunder. Confidential Information does not include any information that (i) is already in Seller’s possession without obligation of confidence; (ii) becomes publicly available other than through a breach of these Terms and Conditions; or (iii) is required to be disclosed pursuant to a court or government agency order or rule, provided that before disclosing any Confidential Information, Seller, to the extent permitted by law, provides reasonable notice of such order or rule to provide Buyer the opportunity to object to or limit such disclosure. Seller will exercise reasonable care to protect Confidential Information from unauthorized disclosure, which care shall not be less than Seller exercises to protect its own Confidential Information. Seller will use the Confidential Information solely in furtherance of fulfilling any Purchase Orders hereunder and will disclose the Confidential Information only to its employees or agents who need to know such information and agree to adhere to the confidentiality provisions of these Terms and Conditions. Notwithstanding any other provision in these Terms and Conditions, Buyer may seek provisional remedies in a court of competent jurisdiction, with or without notice, to enforce these obligations.
Seller assumes the following risks: (a) all risks of loss or damage to all Products, work in process, materials and other things until the delivery thereof as herein provided; (b) all risks of loss or damage to third persons and their property until the delivery of all the Products as herein provided; (c) all risks of loss or damage to any property received by Seller from, or held by Seller or its supplier for the account of, Buyer, until such property has been delivered to Buyer or its customer as the case may be, and (d) all risks of loss or damage to any of the Products or part thereof rejected by Buyer, from the time of shipment thereof to Seller until redelivery thereof to Buyer.
Any fixtures (including patterns, dies, molds and jigs) furnished to Seller by Buyer, or specifically paid for by Buyer, shall be the property of Buyer and subject to removal by Buyer upon completion of the order, and shall be used only in filling Buyer’s orders and held by Seller at its sole risk.
Seller agrees to indemnify, defend and hold harmless Buyer and its officers, agents and employees, successors and assigns, from any and all liability, loss, damage or expense which Buyer may suffer as a result of claims, demands, costs or judgements against it involving Seller’s activities related to the Products, any Purchase Order or any failure by Seller to comply strictly with these Terms and Conditions, including the warranties stated in Sections 5 and 6 above, or otherwise to fully and timely discharge its obligations under these Terms and Conditions or any Purchase Order. This indemnity shall include the expense of any defense, including attorney’s fees, and shall be in addition to any other remedies provided by law.
Seller shall carry comprehensive general liability insurance, including contrac¬tual and product liability coverage, with minimum limits acceptable to Buyer.
Seller shall, at the request of Buyer, supply certificates evidencing such coverage.
Seller agrees to deliver as a separate line item a NAFTA Certificate of Origin (Customs Form 434) for all Products that meet the NAFTA Rules of Origin. Buyer reserves the right to withhold all payments to Seller until such time as a completed NAFTA Certificate is delivered. A NAFTA Certificate is mandatory for all Products which are labeled “MADE IN THE USA”.
Seller agrees to a minimum of Net 60 payment terms from receipt date unless otherwise stated on the applicable Purchase Order.
These Terms and Conditions and any Purchase Orders hereunder are governed by and shall be construed in accordance with the laws of the State of California, excluding its conflicts of law rules. The parties consent to the sole and exclusive venue and jurisdiction of the federal and state courts situated in or having jurisdiction over the State of California.
Except as specifically and expressly provided herein, the parties shall be considered independent contractors for the purposes of these Terms and Conditions and any Purchase Order. The relationship between Buyer and Seller shall not be that of partners, agents or joint venturers. Nothing in these Terms and Conditions or any Purchase Order shall be deemed to constitute a partnership, agency agreement or joint venture between them for any purpose whatsoever.