Customer Terms & Conditions
TERMS AND CONDITIONS OF SALE
EFFECTIVE NOVEMBER 2017
The party listed as the seller on the face of any invoice (hereinafter, the “Seller”) hereby rejects all terms and conditions proposed by the party listed as the buyer on the face of such invoice (the “Buyer”), which are different from or additional to those specified herein. In no case shall Seller’s act of shipping to Buyer be taken as assent to any provision different from or additional to the Terms and Conditions set forth herein.
2. ACCEPTANCE BY BUYER:
Buyer’s failure to notify Seller of cancellation or objection within reasonable time of receipt of these Terms and Conditions shall constitute acceptance of Seller’s specific terms and conditions. In any case, Buyer’s acceptance of shipment shall constitute acceptance of Seller’s terms and conditions as in effect on the date of acceptance.
3. TERMS AND CONDITIONS:
This Agreement shall be comprised of (a) the terms and conditions set forth herein, including but not limited to what are regarded as fair and reasonable provisions expressing and limiting warranties, liabilities, and risks, and (b) any separate warranty or other agreement that is expressly agreed to by Seller and Buyer in addition to these Terms and Conditions. Irrespective of the fact that one or more terms are left open in this Agreement, the parties do intend to make a contract.
All prices are subject to change without notice, and the prices stated herein, including materials covered by this Agreement shall be adjusted to, and the material shall be invoiced and remitted at, Seller’s prices in effect at the time of actual shipment. In the event prices are increased in excess of twenty percent (20%), Seller shall notify buyer prior to shipment and Buyer shall have the option to cancel without recourse against Seller and subject to Section 9 hereof. At its sole discretion, Seller may institute surcharges from time to time as it becomes necessary due to material changes in the price of shipping, petroleum costs, micro-ingredients, or other raw materials.
Seller shall not be responsible for any delays, including but not limited to delays caused by acts of God, strikes, mechanical breakdown, material shortages, and any condition beyond its control. Shipping dates stated herein or in any Order Acknowledgement or Invoice are Seller’s best estimate, and Seller shall be responsible only to use its best efforts to complete shipment within 180 days of dates specified subject to extension by reason of delays beyond Seller’s control. In the event shipment is delayed, at Seller’s discretion, beyond such extended time, Buyer shall have the option to cancel without recourse against Seller subject to Section 9 hereof.
6. EXCLUSION OF WARRANTIES:
EXCEPT WITH RESPECT TO THE WARRANTY OUTLINED IN THE WARRANTY CERTIFICATE PROVIDED TO BUYER, SELLER HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTEES OF FITNESS AND MERCHANTABILITY.
7. NO EXTENSION OF WARRANTY:
NO WARRANTY, EXPRESS OR IMPLIED INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS, ARE EXTENDED BY SELLER, OR MAY BE EXTENDED BY BUYER, TO ANY THIRD PERSON.
8. LIMITATION OF DAMAGES:
SELLER SHALL NOT BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES FOR BREACH OF ANY WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO PRODUCTS SOLD HEREUNDER, OR FOR ANY CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OF THE PRODUCT OR CAUSED BY ANY DEFECT, FAILURE, OR MALFUNCTION OF ANY PRODUCT, WHETHER A CLAIM FOR SUCH DAMAGE IS BASED UPON WARRANTY, TORT, CONTRACT, NEGLIGENCE OR OTHERWISE.
Goods may be returned to Seller only after receipt by Buyer of written authorization and shipping instructions from Seller. In connection with any authorized return, Seller may charge a reasonable restocking fee.
Claims by Buyer for damages, shortages, etc., must be made in writing immediately upon receipt of materials.
All requests for cancellations must be made in writing by Buyer, and orders are not subject to cancellation without the prior written consent of Seller. Orders in process or completed at the time Buyer’s cancellation request is received by Seller are subject to cancellation charges up to the invoice value of the material ordered.
12. PAYMENT TERMS:
All payment terms are as stated on the face of the Seller’s Invoice. Seller may, if it has reason to believe that Buyer’s ability to perform is in any way impaired, demand assurance and/or, upon written notification to Buyer, change payment terms. Accounts not paid in full within the terms of sale stated on the Seller’s Invoice will be liable for a PAST DUE SERVICE CHARGE of 1.5 % PER MONTH of such unpaid balance. In no event shall the SERVICE CHARGE exceed the maximum allowable interest rate established by the law governing same. Seller may withhold shipment whenever Buyer’s account is past due, or, upon notice to Buyer, whenever Buyer’s account has reached the maximum credit allowance, as determined by Seller in its sole discretion. The discount date of any cash discount terms will be based on the invoice date.
The Buyer’s order appears in our records as shown on the invoice or order acknowledgement, as applicable. Any corrections must be called to the Seller’s attention in writing immediately.
14. FAIR LABOR STANDARDS ACT:
Seller hereby certifies that all goods of its manufacture covered by the Buyer’s order are produced and furnished in compliance with regulation of the Child Labor and other provisions of the Fair Labor Standards Act of 1938, as amended, and any regulations or orders issued thereunder.
Seller is not responsible for damage to goods in transit, and all shipments must be inspected carefully upon receipt and any claim for damage filed with the carrier promptly.
16. ENTIRE CONTRACT:
The terms and conditions contained in this Agreement as of the date of acceptance by Buyer shall constitute the entire contract of sale and purchase of the goods sold hereunder, unless the parties have each signed a separate agreement covering any term or condition contained herein. In the event that such a separate contract has been executed by the parties, the terms of that contract shall prevail to the extent they are different than the terms contained herein.
17. ADDITIONAL RECOVERY:
If Buyer breaches this Agreement in whole or in part and Seller brings suit, Seller shall be entitled to recover its costs and attorney’s fees.
18. APPLICABLE LAW:
This Agreement shall, in all respects, be governed by the provisions of the law as they were in effect as of the date of this agreement in the state in which the Seller has produced the goods, without regard to the conflict of laws principles thereof.
19. EXPORT/IMPORT COMPLIANCE:
Buyer shall comply with all Export/Import Laws that apply to its purchase, export, import, use, or transfer of any product. Without limitation to the foregoing, Buyer understands and acknowledges that products cannot be exported, reexported, transferred, retransferred, or transshipped (i) to any Sanctioned Countries, except in compliance with applicable Export/Import Laws, or (ii) to any other destination for which an export, reexport, or import license is required, without Buyer obtaining such license. Buyer confirms that neither Buyer nor any person that owns, directly or indirectly, 50% or more of Buyer, nor any party for which Buyer is purchasing the Products is a Restricted Party or subject to any other sanctions, restrictions, or designations under applicable Export/Import Laws. Notwithstanding any other provision of this Agreement, the Parties shall not be required to take or refrain from taking any action, nor shall they be required to furnish any information, that is prohibited or penalized under the laws of the United States, including the antiboycott laws and regulations administered by the U.S. Commerce and Treasury Departments.
For purposes of this Section 19, the following definitions shall apply:
- “Export/Import Laws” shall mean any applicable U.S. laws and regulations governing exports from the United States, imports into the United States, reexports/retransfers of items subject to U.S. export jurisdiction, or relating to economic sanctions and embargoes. Such laws and regulations include without limitation (as may be amended from time to time): the Export Administration Act (50 U.S.C. App. §§ 2401-2420); the Export Administration Regulations (15 C.F.R. Part 730 et seq.); the economic sanctions laws, regulations, and other executive orders (including those set out in 31 C.F.R. Chapter V) enforced by the Office of Foreign Assets Control; the International Emergency Economic Powers Act (50 U.S.C. § 1701-1706); the International Traffic in Arms Regulations (“ITAR,” 22 C.F.R. Parts 120-130); the Arms Export Control Act (“AECA,” 22 U.S.C. § 2751 et seq.); the Foreign Trade Regulations (15 C.F.R. Part 30); U.S. Customs laws and regulations; and any trade control laws and regulations administered by a non-U.S. government (except to the extent inconsistent with U.S. law).
- “Restricted Party” shall mean any person (entity or individual) that is identified on any applicable U.S.-government restricted party list, including the List of Specially Designated Nationals and Blocked Persons (SDN List); the Denied Persons, Unverified, Entity, Debarred or non-proliferation sanctions Lists; or any applicable list maintained by a non-U.S. government (except to the extent compliance with such restrictions would be inconsistent with U.S. law).
- “Sanctioned Countries” shall mean those countries identified by the U.S. Department of the Treasury, Office of Foreign Assets Control, as being subject to U.S. economic sanctions and embargoes (as may be updated and amended from time to time), including Cuba, Iran, North Korea, Sudan, and Syria.
20. INCORPORATION OF TERMS AND FUTURE CHANGES:
All shipments are subject to the terms and conditions contained in this Agreement. The current version of this Agreement supersedes all previous Terms and Conditions issued by Seller. Seller reserves the right to unilaterally modify or amend any term or condition of this Agreement at any time without prior notice. Any failure to enforce or apply a term or provision of this Agreement shall not constitute a waiver of that term or provision by Seller, and shall not diminish or impair Seller’s right to enforce such term or provision in the future. If one or more provisions of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not be so affected or impaired.