Terms and Conditions of Sale
V101722
ALL TRANSACTIONS ARE GOVERNED BY SELLER’S TERMS AND CONDITIONS OF SALE. ANY PROPOSAL THAT INCLUDES DIFFERENT OR ADDITIONAL TERMS THAT VARY FROM HEALTH & BEAUTY MANUFACTURING, LLC (“SELLER”) TERMS AND CONDITIONS OF SALE ARE OBJECTED TO AND DISALLOWED. NOTWITHSTANDING THE FOREGOING, ANY SUCH COUNTERPROPOSALS BY BUYER SHALL NOT OPERATE AS A REJECTION OF THE CONTRACT OF SALE, BUT AS A REJECTION OF THE ADDITIONAL OR DIFFERENT TERM(S)
1. Formation of Contract. An order is deemed by Seller to be an offer to purchase, which Seller may accept or reject in its sole discretion. Seller’s acceptance of an offer to purchase is binding on Seller only if made by written instrument or, if not by written instrument, by shipment of the products ordered (and acceptance by shipment shall only be binding as to the portion of the order actually shipped by Seller). Any automatic or computer-generated response to an order by Seller’s system or otherwise shall not be deemed acceptance of an order. Seller’s acceptance is subject to Seller’s Terms and Conditions of Sale stated herein.
2. Credit. Seller may, but shall not be obligated to, grant credit terms to Buyer. Acceptance of any order is subject to final credit approval by Seller. Seller reserves the right to cancel any sale if Seller deems Buyer unable to pay for any products. Seller reserves the right, in its sole discretion and without prior notice, to deny, change or limit the amount or duration of credit to be allowed Buyer, either generally or with respect to a particular purchase order, and may require cash payments in advance or security satisfactory to Seller.
3. Cost of Delivery, Taxes and Other Charges. Buyer shall pay the costs of delivery of the products. Buyer shall pay all sales, use, excise or similar taxes, or other charges, which Seller is required to pay, or to collect and remit, to any Government (national, state or local) and which are imposed on or measured by the sale. The Buyer agrees to pay or reimburse the Seller, for any sales tax, use tax or excise tax that shall be imposed by any Federal, State or Municipal authorities unless Buyer shall provide proof of exemption there from in writing and in a form satisfactory to Seller.
4. Labeling. Seller will provide Buyer with information about the ingredients of the products to permit Buyer to create label(s) for the products in accordance with applicable laws (the “Buyer’s Labels”). If Buyer engages Seller to label the products (the “Seller’s Labels”), Buyer hereby grants to Seller a limited, revocable, non-exclusive license to use the trademarks, logos, or artwork owned or licensed to Buyer (collectively referred to as the “Licensed Marks”), solely for the purpose of displaying such Licensed Marks on Seller’s Labels. Seller will not have any liability with respect to the Buyer’s Labels.
5. Transfer of Property and Risk of Loss. Seller retains the right and title to the products sold to Buyer until Seller is paid in full for the products. Buyer shall obtain the right and title to the products upon payment to Seller of the purchase price and any taxes, excise or other charges. The risk of loss, including, but not limited to the risk of loss, theft, damage or destruction of the products, transfers to Buyer F.O.B. Seller’s factory.
6. Payment Terms. Buyer will be responsible for the prices stated at the time of the transaction, as well as any:
(i) sales, use, excise, and related taxes;
(ii) shipping and handling charges, and
(iii) any credit card and merchant processing fees and surcharges. By using any such card or payment provider,
Buyer is hereby representing and warranting its full right and authority to make such purchase in the manner elected without violating any applicable law, rule, or regulation. Buyer also agrees that it will not dispute any payments for products made using a credit card and Buyer and Seller will make best efforts to negotiate any payment disputes. The Buyer agrees to pay interest on any delinquent amount at the highest lawful rate. Further, the Buyer agrees that it shall be obligated to pay a charge of fifty dollars ($50.00) for any check, which it shall issue, and said check is returned by the makers bank for any reason.
If Buyer shall fail to make payments when due or if Seller shall become dissatisfied as to Buyers financial responsibility, Seller reserves the right to cancel any offer or contract with Buyer or Seller may decline to make deliveries. Should it be necessary to assign Buyers account to a collection agency or attorney because any sums owed by Buyer are overdue, all collection charges and legal fees shall be paid by Buyer.
7. No Set-Off. Buyer shall have no right of set-off or withholding, and no deduction of any amounts due from Buyer to Seller shall be made without Seller’s prior, express written approval.
8. Patents. Sellers reserves the right to discontinue deliveries of any products, the manufacture, sale or use of which would, in Seller’s opinion, infringe upon any U.S. patent, trade mark or design now or hereinafter issued, registered, or existing and under which Seller is not licensed.
9. Disclaimer of Warranties.
THE WARRANTIES SET FORTH HEREIN OR IN SELLER’S WARRANTY DOCUMENTS WITH RESPECT TO A PRODUCT ARE THE ONLY WARRANTIES MADE BY SELLER IN CONNECTION WITH THE PRODUCTS AND THE TRANSACTIONS CONTEMPLATED AS A RESULT OF THIS SALE. SELLER MAKES NO OTHER WARRANTIES OR REPRESENTATIONS TO BUYER OR ANY OTHER PERSON OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, AND SELLER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PRODUCTS SOLD HEREUNDER ARE SOLD ONLY TO THE SPECIFICATIONS SPECIFICALLY SET FORTH BY THE SELLER IN WRITING. SELLER’S SOLE OBLIGATION FOR A REMEDY TO BUYER SHALL BE REPAIR OR REPLACEMENT OF NON-CONFORMING PRODUCTS. BUYER ASSUMES ALL RISK WHATSOEVER AS TO THE RESULT OF THE USE OF PRODUCTS PURCHASED, WHETHER USED ALONE OR IN COMBINATION WITH OTHER PRODUCTS OR SUBSTANCES.
10. Limitation of Liability. No claim by Buyer of any kind including, but not limited to, claims for indemnification, whether as to quality or amount of product delivered or non-delivery, shall be greater in amount then the purchase price for the products in respect of which damages are claimed.
IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, OR LOSS OF DATA, ARISING OUT OF, OR AS A RESULT OF, THE SALE, DELIVERY, SERVICING, USE OR LOSS OF THE PRODUCTS SOLD HEREUNDER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN.
It is expressly understood that any technical advise furnished by Seller with reference to the use of its products is given gratis and Seller assumes no obligation or liability for the advice given or results obtained, all such advice being given and accepted at Buyers risk.
11. Indemnification. Buyer agrees to defend, indemnify and hold harmless Seller, its subsidiaries, parents and affiliates and their officers, directors, shareholders, agents, servants and employees from and against any and all third party claims, losses, liabilities, damages, expenses and costs, including attorney’s fees and court costs, arising out of
(i) any negligent act or omission, willful misconduct or fraud of Buyer or its agents; or
(ii) Buyer’s breach of any of its representations, warranties or obligations contained in this Agreement; or
(iii) Buyer’s failure to fully conform to all laws, ordinances, rules and regulations;
(iv) the alteration or modification of the Products by the Buyer or its employees, agents or representatives or the use of the products in combination with any other products; and
(v) Buyer’s Labels and the Licensed Marks.
12. Inspection. Buyer shall inspect the products promptly upon receipt for non-conformity (including but not limited to non-conformity for quantity, quality, and/or defects), such inspection may include laboratory analysis of the products by Buyer or third-party engage by Buyer. Buyer shall provide Seller with a copy of any results (and reports, if any) of such laboratory analysis of the products within five (5) business days. Failure by Buyer to provide Seller with written notice of a claim within [30 days] from the date of delivery or, in the case of non delivery, from the date fixed for delivery, shall constitute a waiver by Buyer of all claims with respect to such products.
13. Excuses for Non-Performance. If the manufacture, transfer or receipt by either party of any products covered hereby is prevented, restricted or interfered with by reason of any event beyond the reasonable control of the party so affected, such party shall be excused from making or taking deliveries hereunder to the extent of such prevention, restriction or interference, and neither party shall be be liable to the other for default or delay in performing, except with respect to Buyer’s payment obligations. If by reason of any cause whatsoever, quantities of the merchandise covered herein are not reasonably available to the Seller, the Seller may, at its sole discretion, use a comparable substitution, OR allocate its available supply of any such merchandise among its existing or prospective purchasers in such a manner as the Seller, in its sole opinion, shall deem proper, without thereby incurring any liability for failure to perform hereunder. Failure of the Seller to meet requested delivery dates shall not be construed as a reason for cancellation of the order or as a breach of contract and no penalty for early or late shipment will attach or be accepted by the Seller. All sales are subject to matters beyond our reasonable control. Performance of Seller will be excused in case of God, war, riots, fire, explosions, floods, strikes, lockouts, injunctions, inability to obtain fuel, power, raw materials, labor, containers or transportation facilities, accidents, breakage of machinery or apparatus, national emergency or because performance is made impracticable by the occurrence of any other unforeseeable contingency, or because of compliance in good faith with any applicable foreign or domestic governmental statute, regulation, order or other interference whether or not it later provides to be invalid or in any circumstances which are beyond the reasonable control of the parties, to the extent that the same prevent or delay the performance of obligations herein contained. Any delivery so suspended shall be cancelled without liability, but the contract shall otherwise remain unaffected.
14. Seller’s Rights. If Buyer should fail in any manner to fulfill the terms and conditions hereof, Seller may defer further shipments until such default is cured. Remedies provided herein shall be in addition to, and not in lieu of, other remedies that may be available to Seller. If for any reason, the quantities of the products covered hereby or of any materials used in the production of the products reasonably available to Seller shall be less than Seller total needs for its own use and for sale, Seller may allocate its available supply of products among its existing or prospective purchasers and/or its own departments, divisions and affiliates in such manner Seller deems proper in Seller’s sole discretion, without thereby incurring liability on account of the method of allocation determined or its implementation or for failure to perform this Agreement. As to custom formulas, Seller reserves the right to a minimum 15% over/under quantity in which event the contract price will be adjusted pro-rata. All price quotes are based on FOB Health and Beauty Manufacturing LLC warehouse unless otherwise specified in writing. Customer recognizes that commodities pricing can be volatile. The prices on the quotation are for immediate acceptance and are subject to change without notice unless otherwise indicated on the face hereof. Seller reserves the right to increase the unit price if quantity is reduced. In the event customer supplied material(s) do not arrive 15 working days prior to production Seller reserves the right to extend delivery date. Product will be shipped to billing address on the Purchase Order unless separate ship-to address is provided within 5 working days of order receipt. Any change of ship-to address thereafter must be notified in writing and may be subject to a change fee of $250. Buyer recognizes that due to inherent nature, natural materials [ie: Plant-derived ingredients] are subject to environmental conditions which may cause color and/or consistency of product to vary from lot to lot. The Buyer recognizes that some or all of the merchandise noted on Invoices also may be affected by temperature changes (i.e., during delivery, storage or handling): The Seller shall not be liable for any damage to merchandise once said merchandise leaves the actual control of the Seller. Health and Beauty Manufacturing is unable to offer ANY Guarantee or return policy for the following categories of products. These Categories are: (a.) ANY CUSTOMER SUPPLIED FORMULAS, RAW MATERIALS AND/OR FINISHED PRODUCTS, (b.) Any Custom Product Formula not offered as a Stock, Private Label Finished Product by Health and Beauty Manufacturing. Customer Supplied (c.) and Custom Product Formula Returns are not accepted for any reason once the custom product formula order has been processed. Due to the nature of natural ingredients, there can be slight variations in color, viscosity and scent of all bases from batch-to-batch. These changes are NOT grounds for a return. Note: Cancellations, if allowed, can only be done if we have not already started making your product or have not pre-ordered any required ingredients. Once production has begun, we cannot cancel, credit or refund.
15. Governing Law. This Agreement shall be construed, and the respective rights and duties of Buyer and Seller shall be determined, according to the laws of the State of Florida, without giving effect to its principles of conflicts of laws. The UN Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
16. Dispute Resolution. Any claims or legal actions by one party against the other arising under these Terms and Conditions of Sale Agreement and/or any sale and purchase of products hereunder or any transaction contemplated hereby or concerning any rights under this Agreement shall be commenced and maintained in any state or federal court located in [state, (specify county)]. Both parties hereby submit to the jurisdiction and venue of any such court. THE PARTIES FURTHER AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS OF THIS AGREEMENT.
17. No Assignment. This contract between Buyer and Seller is not transferable by either party without the prior written consent of the other party, except that Seller may assign this Agreement without Buyer’s consent if the assignment is to a to an affiliate or if the assignment is carried out as part of a merger, restructuring, or reorganization, or sale or transfer of all or substantially all of Seller’s assets.
18. Compliance with Laws; Export Laws. Buyer and Seller shall comply with all applicable international, national, state, regional and local laws and regulations with respect to their performance of this Agreement. Buyer agrees to adhere to all applicable US Export laws and regulations with respect to the products.
19. SMS Communications Policy.
Buyer agrees that Seller may communicate with Buyer and its representatives via SMS/text messaging for purposes including, but not limited to, order confirmations, production updates, delivery notifications, account communications, and other business-related matters. By providing a mobile telephone number to Seller, Buyer consents to receive such communications from Seller through its designated communication platforms, including RingCentral or similar service providers.
Buyer represents that it has the authority to provide any mobile number submitted to Seller and to consent to receipt of SMS communications at such number. Message and data rates may apply. Message frequency may vary.
Buyer may opt out of SMS communications at any time by replying STOP to any message received or by providing written notice to Seller requesting removal from SMS communications. Consent to receive SMS communications is not a condition of purchase.
Seller will comply with applicable federal and state laws governing electronic communications, including but not limited to the Telephone Consumer Protection Act (TCPA), as applicable.
20. Miscellaneous. These Seller’s Terms and Conditions of Sale are the sole and exclusive statement of the parties’ understanding and agreement with respect to the transactions contemplated by this sale, notwithstanding any other terms that might be contained in any purchase order or other document received from Buyer or submitted to Seller. These Terms and Conditions of Sale constitute the entire agreement between the parties regarding the subject matter hereof and can only be modified or changed in writing and signed by authorized representatives of both parties. No waiver by Seller of any of Seller’s Terms and Conditions of Sale or any breach hereof shall constitute or be deemed to be a waiver of any such term or any such breach in any other case. No waiver shall be deemed to occur as a result of the failure to enforce any term or condition of these Seller’s Terms and Conditions of Sale. If any clause or portion hereof shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining clauses or portions shall remain in full force and effect. The paragraph headings are for convenience only and shall not be used in interpreting or construing these Seller’s Terms and Conditions