TERMS AND CONDITIONS OF SALE
The terms and conditions of sale set forth below, except as otherwise modified in writing by Amerilure, Inc. (“Seller”) shall govern the transaction specified on the face hereof between Seller and the party submitting the associated purchase order as “Customer”, notwithstanding any conflicting term or condition of Customer’s purchase order, acknowledgement, or any other document or communication to the contrary.
1. Terms of Sale. Customer’s order specified on the face hereof with respect to products to be purchased hereunder, services to be provided, or formulations to be developed or supplied (collectively, the “Products”) shall be governed by these terms and conditions (the “Terms and Conditions”). Nothing contained in any purchase order or other correspondence shall in any way modify these Terms and Conditions or add any additional terms or conditions, all of which are hereby expressly objected to and rejected by Seller. Customer shall be deemed to have accepted and agreed to these Terms and Conditions upon submission of its order. These Terms and Conditions may be revised at any time by Seller, and purchase orders submitted after such revisions will be governed by the revised Terms and Conditions. Except as set forth herein, all sales are final.
2. Orders. Customer may submit a purchase order to Seller in writing, including requested delivery date(s) that are consistent with Seller’s established lead times. Accepted purchase orders will be confirmed (subject to necessary revisions) by Seller via written confirmation (“Order Confirmation”). An Order Confirmation shall be deemed accepted by and binding on Customer (an “Accepted Order”) as follows: (i) if the Order Confirmation confirms Customer’s request without modification, upon delivery by Seller; or (ii) if the Order Confirmation contains any revisions or changes, upon the earlier to occur of Customer’s written acknowledgment of the same or three (3) business days after receipt and no objection from Customer.
3. Payment. For standard products ordered by pre-approved credit applicants, terms of payment are net 30 days from date of shipment unless other terms are specifically granted in writing by Seller. Seller may require a completed credit application prior to granting credit and may suspend Customer’s credit at any time in Seller’s sole discretion, Seller will not be required to perform or undertake any work until and unless payment is current. Unless otherwise agreed to by Seller, all payments hereunder shall be in U.S. dollars. Any amounts owing hereunder and not paid on a timely basis shall bear interest at a rate of 1.5% per month, which is an annual percentage rate of 18% per annum (or the highest rate permitted by law, whichever is lower), applied to the adjusted previous balance from and after the due date thereof. Returned checks may be submitted for collection and are subject to a $25 returned check fee. Failure to pay any amount owing in full on the terms specified herein shall void all discounts given. Customer shall pay all of Seller’s costs and expenses (including attorneys’ fees, court costs and other collections costs) incurred to collect any amounts owing Seller. Seller reserves the right to apply interest charges retroactively, whether or not they are shown on individual statements or invoices.
4. Shipping. All shipments will be suitably packaged in Seller’s standard shipping cartons and shipped to Customer, or an entity designated by Customer, FOB Seller’s shipping dock in Piscataway, New Jersey, unless otherwise specified in the associated purchase order; meaning that the title and risk of loss shall pass to Customer upon delivery to the carrier, except as otherwise agreed by the parties in an Accepted Order. All freight, insurance, pallet, and other shipping expenses, as well as any special packing expense, shall be paid by Customer. Seller may pay the shipping expenses and invoice Customer. The freight carrier chosen by Customer shall call and set up an appointment for pickup and Customer shall be responsible for any delivery notification fees that the freight carrier charges. If applicable, Customer shall be responsible for clearing goods for export and shall pay for all export documentation, clearance, and export license fees and taxes, as
well as any special packaging required for export.
5.Risk of Loss and Delivery; Title. Liability for loss or damage passes to Customer upon delivery to the carrier but Customer assigns to Company any claim for damage or loss that occurs during shipping or prior to the date Customer accepts the Products. Any shipping or delivery dates set forth in an Accepted Order are approximate only. Seller shall not be liable for any loss or expense (consequential, incidental, or otherwise) incurred by Customer (or any of its customers) if Seller fails to meet shipping or delivery dates for any reason Customer will be billed for the freight costs and a minimum 20% restocking charge for standard items (50% for custom items) will apply if a package is refused.
6. Price. Seller shall provide the Products at the price(s) set forth in each Accepted Order. However, if the raw material or component costs increase by more than 5% after the date on which an Accepted Order was processed, Seller may adjust the pricing to reflect such increases and will provide notice to Customer prior to commencing production of any batch that is affected by such increase. Customer shall be deemed to have accepted such increased price(s) unless it notifies Seller in writing otherwise within two (2) business days of receiving such notice. Seller agrees to provide, upon request, documentation justifying any such proposed price increase.
7. Taxes. Customer’s purchase price does not include any federal, state, provincial or local taxes or fees that may be applicable to the sale or shipment of the Products, all of which will be the sole responsibility of Customer. Seller may either require prepayment of such taxes or fees, or add them as a line item on its invoice, and Customer will reimburse Seller for the same within fifteen (15) days of the date of the invoice. If a taxing authority later determines such taxes are owing, Customer shall promptly pay or reimburse Seller for the same.
8. Inspection of Products. Customer will inspect all Products promptly upon receipt. Customer must notify Seller within fifteen (15) calendar days of receipt of any Product that it believes fails in a material way to meet applicable specifications. Failure to provide such timely notification shall be deemed final acceptance of the Products by Customer.
9. Cancellations. Accepted Orders are non-cancelable. However, if Seller elects, in its sole discretion, to allow cancellation of an Accepted Order prior to shipment, Customer shall pay Seller for its actual costs and losses associated with such cancellation, or in the alternative, Seller may assess a cancellation fee of 20% of the value of the Accepted Order for standard items or 50% of the value of any custom order (“Cancellation Fee”). Customer acknowledges that Seller shall suffer a material adverse impact on its business if it cancels an Accepted Order, or a part thereof, prior to shipment and that the resulting damages may not be susceptible of precise determination. Customer acknowledges that the Cancellation Fee, if elected by Seller, is a reasonable approximation of such damages and shall be deemed to be liquidated damages and not a penalty. Company may, at its sole option, resell, use, or destroy any Products subject to cancellation.
10. Returns. No Products may be returned for credit, even if properly rejected, without prior authorization of Seller. If Seller elects, in its sole discretion, to allow return of any Products after shipment, Customer shall pay a 20% restocking charge on standard items refused or returned within 30 days of shipment date, unless the return is for properly rejected Products. Customer may not return custom labeled or manufactured items unless there is a defect, and then only if properly rejected. If Seller decides at its sole discretion to accept a return of any standard items Products more than 30 days after the shipment date, a 40% restocking charge will be assessed on all such returns. No expired Products may be returned under any circumstances. Products that have been bottled, encapsulated, tableted, or incorporated into or mixed with other ingredients or products, or which have been processed or contaminated, shall not be accepted for return. Customer will pay for all freight costs associated with returned Products (other than for properly rejected Products within 30 days or Products that fail to meet the warranty set forth herein and returned with prior authorization). Under no circumstances shall any credit be given for Products not purchased within the prior 12 months. Customer will be responsible for all shipping charges for any returned Products, except for those that are properly rejected within 30 days and returned with prior authorization. In no event will Seller be liable for replacement of Products (or for shipping charges) which have been damaged or abused by Customer or its agents. No credits may be taken by Customer without the express written consent of Seller. Seller will not authorize credit for any Products that have been destroyed or discarded by Customer.
11. Manufacturing. Unless otherwise agreed upon in writing, Seller’s sole responsibility to Customer where Customer’s order specifies the manufacture of a specific article or Products, is to provide to Customer a standard description of ingredients and quantities of such ingredients used in the manufacture of the Article, which information shall be conveyed to Customer through Seller’s formulation sheet and/or a certificate of analysis provided at the time of delivery of the Products. Seller does not warrant that constituents of the Products which are present in trace or minimal amounts (including any levels that are required to be disclosed by the laws of a particular state or locale, other than the laws of the state of Utah or federal laws of the U.S.) are or will be disclosed, absent a specific written agreement between Seller and Customer which requests that Seller either provide or arrange for specific analytical procedures and which agrees upon a price for such additional services (“Analytical Services”). Seller does not warrant that any food allergen that may be a component or subcomponent of the Products, or carried on any constituent ingredient thereof, has been disclosed, in the absence of a specific written agreement between Seller and Customer providing for Analytical Services. Customer will be solely responsible for, and Seller will have no
responsibility to comply with, the laws and regulations of any state or province or country into which the Products are sold by Customer, including the requirements of the Food Allergen Labeling and Consumer Protection Act of 2004, or into which Customer knows or should know the Products will be shipped or sold by Customer or its customers, absent a written agreement with Seller to the contrary.
12. Warranty and Disclaimer. Seller warrants that the Products meet its written specifications. Seller does not warrant, and specifically disclaims, that its Products meet any written specifications of Customer unless an authorized officer of Seller has agreed in writing to meet such Customer specifications. Customer’s sole remedy for defective Products shall be a refund of some or part of the purchase price. To the extent that any specifications or certifications are based upon information obtained from Seller’s suppliers, Seller shall have no liability in the event such specifications or certifications are ultimately determined to be incorrect, other than to assign to Customer, without
recourse, any claims which Seller may have against such suppliers. SELLER HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS, THEIR FITNESS FOR ANY PARTICULAR PURPOSE, THEIR QUALITY, OR THEIR MERCHANTABILITY.
13. Limitation of Liability. NOTWITHSTANDING ANYTHING IN THE TERMS AND CONDITIONS TO THE CONTRARY, SELLER SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO CUSTOMER FOR ANTICIPATED PROFITS, LOST PROFITS OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES WITH RESPECT TO ANY CLAIM ARISING OUT OF THE TERMS AND CONDITIONS, OR OTHERWISE RELATED TO THE PRODUCTS, REGARDLESS OF WHETHER SUCH CLAIM SOUNDS IN TORT, CONTRACT, BREACH OF WARRANTY OR ANY OTHER THEORY. IN ANY EVENT, SELLER’S MAXIMUM LIABILITY TO CUSTOMER FOR ANY CLAIM SHALL BE LIMITED TO PURCHASE PRICE PAID OR REPLACEMENT OF THE PRODUCTS, AT SELLER’S SOLE DISCRETION.
14. Security Interest. Customer hereby grants, and Seller hereby reserves, a security interest in the Products until the purchase price has been paid, foreclosable in accordance with applicable law.
15. Contingencies. Seller will not be liable for any delay in performance or for nonperformance in whole or in part caused by the occurrence of any delay or failure to perform its obligations hereunder by reason of fire, earthquake, flood, explosion, strike, riot, war, terrorism, or other event beyond the control either of Seller or Seller’s suppliers. Seller’s time for delivery under an Accepted Order shall be extended by the total of all such delays, and if any such delay exceeds 45 days, Seller may cancel affected deliveries in whole or in part without liability.
16. Requirements of Law; Indemnification. Customer will not make any representations, warranties or guarantees with respect to the specifications, features, or capabilities of the Products that are inconsistent with the documentation accompanying the Products and these terms and conditions, including, without limitation, the disclaimer of warranties contained herein, or that are contrary to applicable law, or that are false or misleading. Customer will be solely responsible for, and will comply with, all laws and regulations of any state or province or country into which the Products are sold by Customer, or into which Customer knows or should know the Products will be shipped or sold by Customer or its customers, absent a written agreement with Seller to the contrary, including those laws which address, without limitation, (i) labeling of products and
disclosure of content, or required or permissible product content, (ii) marketing, sales, distribution or pricing of products, and (iii) the United States Foreign Corrupt Practices Act (which prohibits certain payments to government officials or their agents or instruments). Customer will defend, indemnify and hold Seller harmless from and against any and all claims, demands, liabilities of whatever nature, and all damages, liabilities, costs and expenses, including attorneys’ fees and costs, of any kind incurred in connection with any claim or action arising out of: (i) any breach of the Terms and Conditions; (ii) the negligent acts or omissions or willful misconduct of Customer or its officers,
employees, agents, or other representatives; and (iii) Customer’s activities with respect to the Products.
17. Safety and Health. In those instances where Seller furnishes Material Safety Data Sheets,including warnings and safety and health information concerning goods and/or the containers therefor, Customer agrees to disseminate such information so as to give warning of possiblehazards to persons who Customer can reasonably foresee may be exposed to such hazards, including but not limited to Customer’s employees, agents, contractors or customers. Customer shall instruct its employees, agents, contractors and customers on the safe handling, use, selling, storing, transportation and disposal practices for the Product. IF CUSTOMER FAILS TO DISSEMINATE SUCH WARNINGS AND INFORMATION, CUSTOMER AGREES TO DEFEND AND INDEMNIFY SELLER AGAINST ANY AND ALL LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH FAILURE, INCLUDING BUT NOT LIMITED TO LIABILITY FOR INJURY, SICKNESS, DEATH AND PROPERTY DAMAGE; PROVIDED HOWEVER, THAT IF SELLER IN THIS INSTANCE HAS CONTRIBUTED TO SUCH LIABILITY, CUSTOMER’S INDEMNITY TO SELLER SHALL BE REDUCED BY THE PROPORTION IN WHICH SELLER CONTRIBUTED TO SUCH LIABILITY. Seller will provide Customer with reasonable notice and opportunity to defend in the event any claim or demand is made on Seller to which such indemnity relates.
18. Insurance. Customer shall at all times maintain adequate insurance for Customer’s activities.
19. Independent Contractors. It is understood and agreed by the parties that an Accepted Order does not create a fiduciary relationship between them, each party is an independent contractor, and that nothing therein or in these Terms and Conditions is intended to constitute that any party is an agent, legal representative, joint venturer, partner, employee, or servant of the other for any purpose whatsoever.
20. Non-Exclusivity. Notwithstanding anything herein to the contrary, Customer acknowledges that Seller has an existing business providing the Products to third parties and nothing herein or in any purchase order shall be interpreted to restrict or prevent Seller from continuing to operate or pursue such business. Seller shall provide the Products on a non-exclusive basis and may provide the Products, or any other services or products, to any other entity or company, whether or not in competition with Customer.
21. Governing Law. The validity, construction, and performance of all Accepted Orders and these Terms and Conditions shall be governed by the laws of the State of New Jersey, without regard to conflict of law principles. All actions, claims, or legal proceedings concerning the same shall be
commenced and maintained exclusively in the courts of the State of New Jersey, Middlesex County, or in the United States District Court for the District of New Jersey AND THE PARTIES EXPRESSLY WAIVE THE RIGHT TO A JURY TRIAL THEREWITH.
22. Severability. The Terms and Conditions shall be enforced to the fullest extent permissible under applicable laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any provision of the Terms and Conditions would be held in any jurisdiction to be invalid, prohibited or unenforceable for any reason, such provision, as to such jurisdiction, shall be ineffective, without invalidating the remaining provisions of the Terms and Conditions or affecting the validity or enforceability of such provision in any other jurisdiction. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in
such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of the Terms and Conditions or affecting the validity or enforceability of such provision in any other jurisdiction.
23. No Waiver. No failure by Seller to enforce any of the provisions of the Terms and Conditions or any rights with respect thereto, or to exercise any election provided in the Terms and Conditions, shall in any way be considered a waiver of such provisions, rights or elections or in any way affect the validity of the Terms and Conditions. No failure by Seller to enforce any such provisions, rights or elections shall prejudice Seller from later enforcing or exercising the same or any other provisions, rights or elections it may have under the Terms and Conditions.
24. Facsimile and Electronic Signatures. Facsimile and electronic signatures on an Accepted Order, the Terms and Conditions and other documents related to Seller’s sale of the Products to Customer shall be valid and binding.
25. Other. The rights accruing to Seller hereunder will be deemed to run to and be for the benefit of Seller and its affiliates, subsidiaries and/or parent entities.