VERDESIAN LIFE SCIENCES U.S. LLC TERMS AND CONDITIONS OF SALE
- Offer and Acceptance, Buyer. These Terms and Conditions, together with the terms on the document into which these Terms and Conditions are incorporated by reference, any agreed upon attachments hereto, any agreed upon documents expressly referenced on the face hereof, and any executed distributor agreement between the parties regarding the Products (as defined below) (collectively, this “Contract”) constitute the complete and entire agreement between Verdesian Life Sciences U.S., LLC or any of its affiliates identified on the face hereof (“Supplier”) and the buyer to whom it is addressed (“Buyer”). In the event of any conflict between or among the terms of the documents constituting the Contract, these Terms and Conditions shall control. . Supplier offers to sell to Buyer and Buyer is willing to purchase from Supplier the products, items, materials, raw materials, chemicals, goods and/or services identified in this Contract (collectively “Products”). Neither the sales confirmation from Supplier nor these Terms and Conditions shall constitute an acceptance of any offer made by Buyer. If, notwithstanding the foregoing, any acceptance of an offer by Buyer is deemed to be made hereby, such acceptance is expressly conditioned on Buyer’s assent to these Terms and Conditions. Supplier hereby objects to any additional or different terms that may be contained in any of Buyer’s documents, including without limitation its purchase orders, forms, or any other material received from Buyer. All inconsistent or additional terms, modifications or changes purportedly added or made by Buyer are material, are expressly rejected, and do not form a part of the Contract unless Supplier agrees to such terms as specified herein. No order is binding on Supplier until accepted by Supplier and such acceptance is subject to these Terms and Conditions. This Contract may be amended, modified, or supplemented only in a writing signed by an authorized representative of Supplier. This Contract supersedes any prior contracts, proposals, understandings, offers or course of conduct, performance or custom of trade existing with respect to the subject matter of this Contract.
- Quotations, Pricing, Changes. Unless otherwise agreed in a written document executed by an authorized representative of Supplier, all prices for Products are those in effect at the time of shipment and all prices are in U.S. Dollars without including any federal, state, provincial, or local taxes and import duties. Any quotations provided by Supplier are based on estimated prices and are not binding. Supplier reserves the right to make any changes or corrections to prices quoted, at any time prior to shipment of Products, upon written notice to Buyer.
- Payment Terms; Invoice; Setoff. Unless otherwise stated in this Contract, terms of payment are net 30 days from the date of invoice. Buyer agrees to pay interest on overdue invoices at the greater of: (a) one and one-half percent (1.5%) per month or (b) the highest rate permitted by law. All shipments to be made hereunder shall at all times be subject to the approval of Supplier’s credit department. Supplier may invoice Buyer and recover for each delivery of Products made as a separate transaction without regard to any other delivery. If Buyer is in default under any contract with Supplier or if, in Supplier’s sole judgment, the financial responsibility of Buyer is or becomes unsatisfactory, then Supplier may at its option and without prejudice to any of its other remedies (i) defer or decline to make any shipments hereunder except upon receipt of satisfactory security or cash payments in advance, (ii) deduct any amount owed by Buyer or any of its affiliates to Supplier or its affiliates from any amount payable to Buyer by Supplier or its affiliates, or (iii) terminate any order of goods or services that may have been placed by Buyer. Buyer shall reimburse Supplier for any costs incurred by Supplier, including reasonable attorney’s fees, to collect amounts due by Buyer to Supplier.
- Security Interest. Supplier retains, and Buyer hereby grants to Supplier, a purchase money security interest under applicable laws in the Products until payment in full has been made. In the event of default by Buyer under this Contract, Supplier shall have all the rights and remedies of a secured creditor under applicable laws. Buyer authorizes Supplier to prepare any such financing statements and other documents as Supplier may require in order to perfect Supplier’s security interest.
- Orders shall not be subject to cancellation or modification by Buyer in whole or in part (a) without Supplier’s prior written consent and (b) payment of a reasonable cancellation charge for applicable costs of purchased materials and labor costs incurred or for which Supplier is obligated prior to cancellation or modification.
- Products Return Policy. Products returns submitted for credit must either be deemed defective or in the original packaging, unused, undamaged, not expired, and in saleable condition, in each case, as determined by Supplier. Supplier reserves the right to reject any return requests in its sole discretion. Products return requests must be initiated within 90 days from the date of purchase and authorized returns must be shipped back within 30 days of issuance of authorization to qualify for credit, unless otherwise indicated. To submit a Products return, submit a return request that provides all relevant information, including Product number(s) affected, quantity of Products, batch, lot or serial numbers, related sales order number, nature of the defect, etc. to email@example.com 1-800-868-6446. Products returns may be subject to restocking fees.
- When requested by Supplier in writing under certain sales programs, Buyer shall provide Supplier with a reasonable estimate of its future volume or quantity requirements for the Products during the term of the order (“Projections”). Buyer may issue release orders in accordance with the Projections to Supplier and Buyer will specify the quantities needed, delivery locations and shipment dates for the Products.
- Delivery & Risk of Loss. Unless otherwise agreed in writing by the parties, Supplier reserves the right to select the mode of transport and the identity of the carrier. Unless otherwise agreed in writing, delivery term is Ex Works (EXW) (Incoterms 2010) Supplier’s Facility. Buyer will bear all risk of loss once Products are delivered to the carrier at Supplier’s Facility.
Neither Buyer nor any consignee shall have the right to direct or re-consign any shipment to any destination other than that specified in the bill of lading without Supplier’s written consent. In the event that Supplier consents in writing to Buyer’s re-consignment of any shipment, Buyer shall be responsible to pay for all shipping and transportation costs. The delivery date provided by Supplier for the goods is only an estimate and is based upon prompt receipt of all necessary information from Buyer. Delivery times may vary depending on available production capacity and material availability at the time of the purchase order placement. Supplier will not be responsible for any delays, loss or damage in transit or failure to deliver within the time estimated, and none of delays, loss or damage in transit or failure to deliver within the time estimated will be a breach of Contract on Supplier’s part. Under no circumstances shall Supplier have any liability for penalties or other consequential damages of any kind resulting in whole or in part from Supplier’s delay in delivering, or failure to deliver, any Products to Buyer as agreed.
9. Certification Statements. Supplier may provide Buyer with access to an online Safety Data Sheet (SDS) for applicable Products. In addition, and upon Buyer’s written request, Supplier will provide (a) a Certificate of Analysis (COA) and/or (b) a Certificate of Origin (COO), as applicable.
10. Warranty. Supplier warrants to Buyer that at the time of shipment the applicable Products conform to the specifications set forth on the label. THE WARRANTY SET FORTH IN THE PRIOR SENTENCE IS SUPPLIER’S SOLE WARRANTY WITH RESPECT TO THE PRODUCTS AND (a) SUPPLIER NEITHER MAKES, NOR AUTHORIZES ANY AGENT, REPRESENTATIVE OR THIRD PARTY TO MAKE, ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO THE PRODUCTS’ CONDITION, QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND (b) SUPPLIER HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY AND THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
BUYER’S SOLE AND EXCLUSIVE REMEDY AND THE LIMIT OF SELLER’S LIABILITY FOR BREACH OF THE LIMITED WARRANTY SET FORTH ABOVE (INCLUDING CLAIMS BASED ON CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL THEORIES) SHALL BE LIMITED TO, AT SUPPLIER’S ELECTION, ONE OF THE FOLLOWING: (I) REPLACEMENT OF THE AMOUNT OF PRODUCT USED, OR (II) REFUND OF THE PURCHASE PRICE PAID FOR THE PRODUCT; PROVIDED THAT SUPPLIER’S PROVISION OF (I) OR (II) IS CONDITIONED ON ITS FIRST BEING PROMPTLY NOTIFIED OF SUCH BREACH OF WARRANTY IN WRITING.
11. Compliance with Instructions. Buyer shall comply with all instructions relating to the Products as may be issued by Supplier from time to time, including, but not limited to, instructions concerning (a) storage, handling, blending, transportation, possession, processing, further manufacture or use, safety precautions, or other measures required or recommended to be taken in order to ensure that the Products function properly and do not cause damage or injury to any property or person, (b) any Trademarks related to the Products and (c) use of the Products (collectively, “Instructions”), whether contained in any instructions set forth on or included in any of the Products’ labels or packaging. Buyer shall bring such Instructions to the attention of any subsequent buyer of the Products and shall ensure that such subsequent buyer complies with all Instructions.
12. Ownership of Proprietary Materials. Except for a limited license to use or sell the Products, as applicable, Supplier does not transfer or license to Buyer any patent, trade secret, trademark, copyright or other intellectual property right (“Intellectual Property Right”) owned or used by Supplier, and Supplier retains ownership of any Intellectual Property Right that is related to the Products or is otherwise developed by or provided to Buyer in connection with the supply of the Products. Supplier will have no obligation with respect to any infringement claim based upon any: (a) misuse or modification of the Products by Buyer or its employees or agents, (b) use of the Products in combination with other materials, goods, products, or services, (c) failure of Buyer to implement any update provided by Supplier that would have prevented the claim, or (d) Products that Supplier made to Buyer’s specifications or designs.
13. Limited Trademark License. If words, symbols, designs, trademarks, service marks, logos, commercial symbols and other indicia of trade origin of Buyer (collectively “Buyer Marks”) are provided by Buyer to Supplier for printing on a particular Product, then Buyer represents that the Buyer Marks are either in the public domain or are the property of Buyer and do not infringe on the Intellectual Property Rights of others.
14. Indemnification. Buyer assumes complete responsibility for, and agrees to defend, indemnify and hold Supplier and its affiliates and its and their respective employees, directors, officers, agents, and representatives harmless from, all claims, demands, actions, and causes of action, and all actual costs incurred as a result thereof, including reasonable attorney’s fees, expert witness fees and court costs, on account of injury to any person or any property damage, arising out of the handling, transportation, storage, possession, processing, further manufacture or other use or resale of the Products sold by Buyer after the Products are delivered to Buyer or upon Supplier’s delivery to carrier at Supplier’s Facility, whether or not such Products are handled, stored, or used singly or in conjunction with other Products; provided, however, this paragraph shall not operate to relieve Supplier from liability resulting solely from Supplier’s gross negligence or willful misconduct. Buyer will not make any admissions on behalf of Supplier or enter into a settlement without Supplier’s prior written consent. The indemnification obligations of Buyer under this Section are not exclusive and are in addition to, and shall not impair or exclude Supplier’s rights or remedies otherwise available to Supplier, under applicable law, and all such rights and remedies of Supplier are cumulative.
15. Insurance Requirement. In addition to specific insurance requirements which may be set out in this Contract, throughout the term of this Contract, Supplier shall have and maintain at its expense: (a) general and public liability insurance with coverage limits reasonably acceptable to Buyer and naming Buyer as an additional insured, and (b) worker’s compensation insurance as required by applicable law. Insurance coverage amounts shall in no case be less than as standard in the industry, and shall be with carriers with at least an A.M. Best rating of “A” excellent, and a financial size rating of at least Class V. Supplier will furnish to Buyer certificates of insurance setting forth the amount of coverage, policy number, date(s) of expiration, and Buyer’s status as an additional insured or loss payee. Supplier shall provide at least sixty (60) days’ prior written notice to Buyer of cancellation or material alteration of insurance. Throughout the term of this Contract and until Supplier has received full payment of all amounts owing to it under this Contract, Buyer shall (a) maintain insurance covering all Products in such amounts and against such risks as is customarily maintained by companies engaging in the same or similar businesses and similarly located, which insurance shall name Supplier as insured or coinsured, and (b) upon request by Supplier, do all other things necessarily or desirable to adequately insure the Products against loss or damage. Buyer will furnish to Supplier certificates of insurance setting forth the amount of coverage, policy number, date(s) of expiration, and Supplier’s status as an additional insured or loss payee. Buyer shall provide at least sixty (60) days’ prior written notice to Supplier of cancellation or material alteration of insurance.
16. Confidentiality. All confidential or proprietary information of Supplier and its affiliates, including, without limitation, inventions, developments, know how, specifications, business plans, results of testing, systems, financial information, pricing information, product information, methods of operation, customer information, supplier information, the existence and terms of this Contract, and compilations of data, whether or not marked as “confidential” (“Confidential Information”), may be used by Buyer only for the purposes contemplated under this Contract, and Buyer shall not disclose such Confidential Information to third parties or otherwise use it for any other purpose. Confidential Information will not include information which: (a) is or becomes publicly available without breach of this Contract by Buyer; (b) was known to Buyer prior to its receipt from Supplier as evidenced in dated, written documentation; or (c) is developed by Buyer independently of its access to Confidential Information as evidenced by dated, written documentation. Buyer is permitted to disclose Supplier’s Confidential Information only to those of its and its affiliates’ employees and authorized subcontractors on a need to know basis as is required for Buyer to perform its obligations under this Contract, provided that such employees and authorized subcontractors have written confidentiality obligations to Buyer that apply to Confidential Information which obligations are no less stringent than the confidentiality obligations under this Section. Upon termination of this Contract, Buyer shall promptly return to Supplier all Confidential Information and shall not use Confidential Information for its own, or any third party’s, benefit. Buyer’s confidentiality obligations shall survive termination of this Contract for so long as Confidential Information remains confidential. In order to assure that Supplier is able to obtain the full benefit of the restrictions set forth in this Section, Supplier shall be entitled to injunctive relief, including, but not limited to, emergency, preliminary, temporary and permanent injunctions, from any court of competent jurisdiction as may be necessary to enjoin any violation of the foregoing covenants, without the necessity of proving immediate irreparable harm or an inadequate remedy at law. If the parties have already entered into a Confidentiality or Non-Disclosure Agreement (“NDA”), the terms and conditions of the NDA shall apply and control for confidentiality obligations between the parties in lieu of this Section.
17. Termination for Cause; Termination for Convenience. Either party may upon written notice to the other party terminate all or any part of this Contract without further liability on the part of the party who provides such notice, if the other party: (a) is in Default of this Contract, however, if the Default can be cured then only if such Default is not cured within thirty (30) days of receipt of written notice of the Default from the non-defaulting party; or (b) has committed a material breach of this Contract, which cannot be cured. A party shall be in “Default” under this Contract if it fails to perform any obligation under the Contract, breaches any representation or warranty under this Contract, or fails to provide adequate assurance of performance under the Contract within a reasonable time after written and justifiable demand by the other party. In addition to the foregoing, (x) Supplier may terminate this Contract at any time for its convenience, by notice to Buyer, and (y) Buyer may terminate this Contract in accordance with Section 19. If this Contract is terminated pursuant to this Section 17, Buyer will pay Supplier for raw materials unique to the Products, work-in-process and finished goods in inventory for the Products purchased by Buyer pursuant to this Contract (including Products authorized under a release or schedule from Buyer) that are useable and in a merchantable condition remaining in Supplier’s possession on the termination date (“Inventory”), and Supplier shall deliver such Inventory to Buyer. The purchase price for the Inventory will be (a) the contract price for all conforming Products that have been completed in accordance with this Contract as of the termination date and not previously paid for, plus (b) the costs of work-in-process and raw materials incurred by Supplier in furnishing the Products, less (c) the reasonable value or cost (whichever is lower) of any goods or materials used or sold by Supplier with Buyer’s written consent. Payments made under a termination for convenience will not exceed the aggregate price for finished goods that would be produced by Supplier under a delivery release or schedule outstanding on the date of termination. Upon any termination of this Contract, Buyer shall comply with the confidentiality provisions of Section 16.
18. Limitation on Supplier’s Liability. UNDER NO CIRCUMSTANCES WILL SUPPLIER BE LIABLE FOR ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF REVENUE, OR COST OF CAPITAL, WHETHER BASED ON NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY, OR ANY OTHER THEORY. Supplier’s liability on any claim of any kind for loss or damage arising out of, in connection with or resulting from the performance or breach of this Contract shall in no case exceed the price allocable to the Products which give rise to the claim.
19. Force Majeure. Supplier shall not be liable to Buyer for any losses, damages or expenses incurred or sustained by Buyer or any other person(s) by reason of Supplier’s delay in a scheduled delivery or a failure in performance caused by acts beyond Supplier’s control, such as, without limitation, (a) acts of God, landslides, lightning, earthquakes, fires, storm or storm warnings such as hurricanes which result in the evacuation of the affected areas, floods, washouts, or explosions; (b) acts of others such as strikes, lockouts or other industrial disturbances, riots, sabotage, terrorism, insurrections or wars; and (c) governmental actions such as necessity for compliance with any court order, law, statute or ordinance, or regulations promulgated by a governmental authority having jurisdiction, in each case other than with respect to such matters arising out of the actions of the person claiming excuse of performance by reason thereof (“Force Majeure”). In the event of the occurrence of any Force Majeure event, the time for performance shall be extended for such time as may be reasonably necessary to enable Supplier to perform. Supplier may, during any period of shortage due to any of the above contingencies, allocate its available supply of Products among itself and its customers in such manner as Supplier, in its reasonable judgment, deems fair and equitable. Notwithstanding the foregoing, if an event of Force Majeure delays or interrupts Supplier’s performance hereunder for a period in excess of 120 days, Buyer may, at its option and upon 10 days’ prior written notice, (x) terminate this Contract without liability therefor (except as set forth in Section 17 above) or (y) purchase the Products from other sources while the event of Force Majeure remains ongoing.
20. Inspection. Upon the carrier’s delivery of Products to Buyer, Buyer shall immediately inspect the Products for damage, missing quantity, defects or other non-conformities. If Buyer discovers any damaged or missing Product, or any defective or other non-conforming Product, Buyer shall (a) note the defect on its proof of delivery and (b) notify Supplier in writing of the claim immediately, and in any event no later than 5 days after the date of the carrier’s delivery of the Product to Buyer (the “Inspection Period”). Any Product for which Buyer does not provide written notice of rejection to Supplier during the Inspection Period shall be deemed accepted by Buyer. Prior to returning any rejected Product, Buyer must obtain authorization, including a return destination, from Supplier. Unless otherwise agreed by Supplier in writing, Buyer’s return shipment to Supplier of rejected Product shall be at Buyer’s expense and risk of loss.
21. Independent Contractors. Buyer and Supplier are independent contractors, and nothing in this Contract makes either party the agent or legal representative of the other party for any purpose. Neither party has authority to assume or to create any obligation on behalf of the other party. Each of Buyer and Supplier, respectively, assumes full responsibility and exclusive liability for the payment of all contributions, unemployment obligations, payroll taxes, federal, state, provincial, local and foreign, if applicable, as to all of its employees engaged in the performance of such party’s work under this Contract.
22. Governing Law, Jurisdiction and Venue. This Contract shall be governed by and construed in accordance with the laws of the State of North Carolina, including its statutes of limitation, but without reference to the choice of law principles thereof. Each party irrevocably submits to the jurisdiction of the Courts of the State of North Carolina and the United States District Court for the Middle District of North Carolina and hereby waives, to the fullest extent it may effectively do so, the defense of an inconvenient forum to the maintenance of such action or proceeding.
23. Assignment, Third Party Beneficiaries, Precedence, Waiver, Severability. Neither party may assign this Contract in whole or part without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that Supplier may, in its sole discretion, and without Buyer’s consent assign this Contract, in whole or in part or with respect to any of its rights and obligations hereunder, to any affiliate or successor company or entity resulting from a sale of assets, shares or other ownership interest, merger, operation of law, reorganization or consolidation. Subject to the foregoing, all of the terms, conditions, covenants, and agreements contained herein shall inure to the benefit of, and be binding upon, any such affiliate or successor and any permitted assignees of the respective parties hereto. Consent by either party to such assignment in one instance shall not constitute consent by the party to any other assignment. If Supplier consents to Buyer subcontracting any of its duties under this Contract, Buyer will ensure that the subcontractor agrees to be bound by all of the terms and conditions of this Contract. Supplier may terminate this Contract upon written notice to Buyer, without any further liability to Buyer, if there is a change of control of Buyer, by operation of law or otherwise. Supplier’s affiliates are intended third party beneficiaries of this Contract. Except as expressly provided herein, nothing in these Terms and Conditions is intended to, or shall, confer any right, benefit or remedy of any nature whatsoever on any third party. In the event of a conflict between these Terms and Conditions and any other agreement between the parties, these Terms and Conditions will prevail, unless the other agreement expressly and specifically states the parties’ intent to supersede these Terms and Conditions on a specific matter (but then only with respect to such other agreement and only with respect to such matter). No provision of this Contract may be waived unless pursuant to a written instrument executed by the party against which any such waiver is to be effective. The failure of either party to enforce any right or remedy provided hereunder or by law on a particular occasion will not be deemed a waiver of that right or remedy on a subsequent occasion or a waiver of any other right or remedy. Any provision found invalid or unenforceable will not affect the validity or enforceability of any other provision and the invalid provision may be judicially modified to the extent enforceable.
24. Compliance. Each of Buyer and Supplier will at its expense comply with all federal, state, provincial, local and foreign laws, orders, rules, regulations and ordinances, including import and export laws and regulations (“Laws”), that may be applicable to such party’s performance of its obligations under this Contract; and shall identify and procure required permits, certificates, licenses, insurance, approvals and inspections in performance of this Contract. At Supplier’s request, Buyer will certify in writing its compliance with all applicable Laws, including those related to anti-corruption, customs, anti-boycott, trade embargo, import/export control, immigration, privacy, labeling, environmental, hazardous materials, restricted substances, health, safety and labor (including child welfare, wage and hour), and the U.S. Anti-Kickback Law (42 USC 1320a-7b). Additional or more specific legal compliance and/or social responsibility provisions may be added to this Contract in: (a) an attached COMPLIANCE WITH LAWS ADDENDUM or (b) if published on Supplier’s website.
25. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of this Contract or to such other address that may be designated by the receiving party in writing. All notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Contract, a Notice is effective only (a) upon receipt by the receiving party and (b) if the party giving the Notice has compiled with the requirements of this Section.
26. Survival. The provisions of these Terms and Conditions which by their nature should apply beyond their terms will remain in force after any termination of expiration of this Contract, including, but not limited to the following provisions: Insurance, Compliance, Confidentiality, Governing Law, Limited Trademark License, Jurisdiction and Venue, Limitation of Liability and Survival.