NP NUTRA® TERMS AND CONDITIONS OF SALE
THESE TERMS AND CONDITIONS CONSTITUTE AN OFFER TO BUYER FOR THE SALE OF ALL PRODUCTS AND/ OR SERVICES ("PRODUCTS") BY NATURE’S POWER NUTRACEUTICALS CORPORATION (“NPN”). BUYER’S ACCEPTANCE OF THIS OFFER IS EXPRESSLY LIMITED TO AND CONDITIONAL UPON THESE TERMS AND CONDITIONS. ANY DIFFERENT OR ADDITIONAL TERMS PROPOSED BY BUYER, WHETHER IN BUYER’S PURCHASE ORDER, CONFIRMATION OR OTHERWISE, ARE UNACCEPTABLE TO NPN, ARE EXPRESSLY REJECTED BY NPN, AND WILL NOT BECOME PART OF THESE TERMS AND CONDITIONS.
NEITHER NPN'S ACKNOWLEDGMENT OF A PURCHASE ORDER NOR NPN'S FAILURE TO OBJECT TO DIFFERENT OR ADDITIONAL TERMS AND CONDITIONS IN ANY DOCUMENT ISSUED BY BUYER SHALL BE DEEMED AN ACCEPTANCE OF SUCH TERMS AND CONDITIONS OR A WAIVER OF THE PROVISIONS HEREOF.
NPN SHALL BE ENTITLED TO UPDATE AND/OR AMEND THESE TERMS AND CONDITIONS BY NOTIFYING BUYER OF SUCH UPDATE OR AMENDMENT OR BY SENDING BUYER THE UPDATED OR AMENDED TERMS AND CONDITIONS.
ANY ELECTRONIC COMMUNICATION BETWEEN NPN AND BUYER SHALL BE CONSIDERED TO BE A “WRITING” AND/OR “IN WRITING”. THE ELECTRONIC COMMUNICATION SYSTEM USED BY NPN WILL SERVE AS SOLE PROOF FOR THE CONTENT AND THE TIME OF DELIVERY AND RECEIPT OF SUCH ELECTRONIC COMMUNICATION.
Orders shall be initiated by Buyer issuing a purchase order or otherwise placing an order by electronic means acceptable to NPN. Orders shall identify the Products, unit quantities, SKU numbers, descriptions, applicable prices and requested delivery dates. As used herein, Order shall mean NPN’s acceptance of Buyer’s purchase order subject to NPN’s Product catalog and pricing in effect at time of issuance of the purchase order, and further subject to NPN’s terms and conditions of sale, as may be amended from time to time.
2.1 Prices shall be as specified by NPN and shall be applicable for the period specified in NPN's quote. If no period is specified in the quote, prices shall be applicable for thirty (30) days. Notwithstanding the foregoing, prices shall be subject to increase in the event of an increase in NPN's costs or other circumstances beyond NPN's reasonable control.
2.2 Prices are exclusive of taxes, impositions and other charges, including: sales, use, excise, value added and similar taxes or charges imposed by any government authority, international shipping charges, forwarding agent's and broker's fees, consular fees, document fees and import duties. If NPN shall be liable for or shall pay any of the foregoing, same shall be paid by Buyer to NPN in addition to the price of the Products.
3. PAYMENT TERMS
3.1 Unless NPN extends credit terms to Buyer, payment for all Orders shall be made before shipment of the Products. If NPN extends credit terms, payment shall be made in accordance with payment terms granted by NPN in writing. Buyer agrees to pay the entire net amount of each invoice from NPN pursuant to the terms of each such invoice without offset or deduction.
At any time, and in its sole discretion, NPN may change the terms of Buyer's credit, require payment in cash, bank wire transfer or by official bank check.
3.2 If NPN believes in good faith that Buyer's ability to make payments may be impaired or if Buyer shall fail to pay any invoice when due, NPN may suspend delivery of any order or any remaining balance thereof until such payment is made or cancel any Order or any remaining balance thereof, and Buyer shall remain liable to pay for any Products already shipped.
3.3 Checks are accepted subject to collection and the date of collection shall be deemed the date of payment. Any check received from Buyer may be applied by NPN against any obligation owing from Buyer to NPN, regardless of any statement appearing on or referring to such check, without discharging Buyer's liability for any additional amounts owing from Buyer to NPN, and the acceptance by NPN of such check shall not constitute a waiver of NPN's right to pursue the collection of any remaining balance. Buyer shall pay interest on any invoice not paid when due from the due date to the date of payment at the rate of one and one-half (1-1/2%) percent per month or such lower rate as may be the maximum allowable by law. If Buyer fails to make payment when due, NPN may pursue any legal or equitable remedies, in which event NPN shall be entitled to reimbursement for costs of collection and reasonable attorneys fees.
4.1 Unless otherwise specified in writing by NPN all deliveries of Products shall be Ex Works NPN’s facility in Gardena, California. The term Ex Works shall have the meaning set forth in the INCOTERMS 2010 published by the International Chamber of Commerce.
4.2 As a courtesy, NPN may offer to obtain competitive shipping quotations on behalf of Buyer and Buyer may direct NPN to accept a shipping quotation on its behalf and may request such shipping costs be added to NPN’s invoice. In event of any loss or damage to the Products during handling or in transit, NPN will, on Buyer’s behalf, file a freight claim for loss or damage to the Products and NPN will reimburse Buyer for damages received by NPN from the carrier. In coordinating such shipping, adding such shipping costs to its invoice, and filing a freight claim on behalf of Buyer, NPN is only accommodating Buyer. In such instances delivery shall remain ‘Ex Works’ and Buyer shall be fully responsible for all risk of loss or damage to the Products at the shipping point.
4.3 In all cases, risk of loss and damage shall pass to Buyer at the time of delivery (i.e. at the time the Products are made available to the designated carrier at NPN’s shipping dock). Title shall pass to Buyer upon full payment.
4.4 Appropriate storage temperatures for all Products are disclosed on NPN’s Certificates of Analysis. In all cases the method of shipping, including whether or not the Products are shipped using temperature-controlled freight is Buyer’s responsibility.
4.5 Any times or dates for delivery by NPN are estimates and shall not be of the essence. In no event shall NPN be liable for any delay in delivery. Delay in delivery of any Products shall not relieve Buyer of its obligation to accept delivery thereof. Deviations in quantity of Products delivered from that stated in NPN’s acceptance shall not give Buyer the right to reject the Products.
5. INSPECTION AND ACCEPTANCE
5.1 On delivery and during the handling, use, processing, transportation, storage and sale of the Products (the “Use”), Buyer shall examine the Products and satisfy itself that the Products delivered meet all contractual requirements.
5.2 Inspection and acceptance of the Products shall be Buyer's responsibility. Buyer shall report in writing any damage or shortage within 48 hours after delivery and any defect, including supporting third-party laboratory test reports that reference the method of analysis declared on NPN’s Product specifications sheet (the Specifications), within thirty (30) calendar days after delivery. Buyer is deemed to have accepted the Products unless written notice of rejection is received by NPN within the foregoing timetable.
5.3 Notwithstanding that Buyer may provide NPN with third-party laboratory test reports to support an out-of-specification (OOS) claim a determination of whether or not delivered Products conform to the Specifications shall be at NPN’s sole discretion not only by referencing any customer-provided third party laboratory test reports, but also by analyzing the samples or records retained by NPN and taken from the batches or production runs in which the Products were produced in accordance with the methods of analysis used by NPN. Products that NPN consents or directs in writing to be returned shall be returned to NPN at the risk and expense of Buyer, to the destination directed by NPN.
5.4 No return of Products shall be accepted by NPN without a return authorization, which may be issued by NPN in its sole discretion. Returned Products must be in original manufacturer's shipping containers complete with all packing materials. All Products for return shall be returned in the manner specified in the return authorization. A restocking fee of 15% (minimum $200 on orders under $1,000) may apply.
6. USE OF INFORMATION
Buyer shall solely rely on its own expertise, know-how and judgment in relation to the Products and Buyer’s use thereof. If statements or advice, technical or otherwise, are offered or given to Buyer, such statements or advice shall be deemed to be given as an accommodation to Buyer and without charge and NPN shall have no responsibility or liability for the content or use of such statements or advice.
7. FORCE MAJEURE
7.1 Neither party shall be liable to the other for any damage, loss, cost or expense arising out of or in connection with any delay, restriction, interference or failure in performing any obligation caused by any circumstance beyond its reasonable control, including, without limitation, acts of God, laws, regulations, acts of governments or other administrative measures, orders or decrees of any court, earthquake, flood, fire, explosion, war, terrorism, riot, sabotage, accident, epidemic, strike, lockout, labor disturbances, difficulty in obtaining necessary raw materials, lack of or failure of transportation, United States Customs or Federal Drug Administration clearance or inspection delays, breakdown of plant or essential machinery, emergency repair or maintenance, breakdown or shortage of utilities, delay in delivery or defects in goods supplied by suppliers or subcontractors (“Force Majeure”).
7.2 Upon the occurrence of any event of Force Majeure, the party affected shall, promptly after it ascertains the impact of the Force Majeure, inform the other party by written notice thereof specifying the cause of the event and how it will affect its performance of its obligations under NPN's acceptance. In the event of any delay, the obligation to deliver shall be suspended for a period equal to the time lost by reason of Force Majeure. However, should a Force Majeure event continue or be expected to continue for a period extending to more than thirty days after the delivery date set forth in NPN’s acceptance, either party is entitled to cancel the affected part of the order for standard product without any liability to the other. Buyer shall not have the right to cancel any part of the affected order for non-standard product, or product which was produced pursuant to a non-cancelation agreement, for which NPN has previously committed to purchase from its suppliers or subcontractors.
8. WARRANTY AND CONTINUING PRODUCT GUARANTEE
NPN warrants to Buyer that upon delivery to Buyer the Products shall conform to NPN specifications for such Products. If, and to the extent Products fail to meet such NPN specifications, NPN may, at NPN's election, within a reasonable time, repair or replace the Products at no charge to Buyer, or issue a credit in the amount of the original invoice price; provided, however, that such Products must be returned to NPN, along with acceptable evidence of purchase, within thirty (30) days from date of delivery, transportation charges prepaid.
8.2 CONTINUING PRODUCT GUARANTEE.
8.2.1 Each Product is guaranteed, as of the date of its delivery: (a) to not be adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act, (the “Act”), (b) to not be an article which cannot be introduced into interstate commerce under the provisions of the Act; (c) to not be misbranded within the meaning of the Federal Hazardous Substances Act, and (d) to be in compliance with all applicable United States federal, state, and local laws. The parties acknowledge, however, that some of the Products covered by this Guarantee may be subject to extensive and exclusive federal regulation, that such United States federal regulation often preempts state and local laws, and therefore compliance with such federal laws and regulation will satisfy each of Buyer’s obligations herein.
8.2.2 NPN acknowledges that all such Products are manufactured under sanitary conditions following good manufacturing practices and are clean, wholesome and safe for human consumption.
8.2.3 NPN agrees to defend, indemnify and hold harmless Buyer from any meritorious actions or lawsuits, brought by any third-party against Buyer, and for any resulting damages, for any illness to the extent caused by Seller’s actual breach of the guarantee set forth in this Section 8.2 (“Claims”). NPN shall have no responsibility, however, with respect to any Claims brought by any such third-parties which allege any independent negligence or misconduct on the part of Buyer and Buyer shall defend, indemnify and hold harmless NPN against any such meritorious actions or lawsuits brought by a third party against NPN alleging any negligence or misconduct by Buyer.
8.2.4 Buyer, and NPN, as the case may be, shall give written notice to the other immediately following the discovery of any actual or threatened Claims, provide the indemnifying party all information the indemnifying party deems necessary to evaluate the merits of the Claim, and allow the indemnifying party to defend and resolve any Claims at its own discretion and through a representative or attorney of its own choosing.
8.3 THE FOREGOING WARRANTY AND CONTINUING GUARANTEE IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, SUITABILITY OR FITNESS FOR ANY PURPOSE OR USE OR CLAIM OF INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT.
9. LIMITATION OF LIABILITIES
BUYER SHALL NOT IN ANY EVENT BE ENTITLED TO, AND NPN SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, WITHOUT LIMITATION, BUSINESS INTERRUPTION COSTS, REMOVAL AND/OR REINSTALLATION COSTS, REPROCUREMENT COSTS, LOSS OF PROFIT OR REVENUE, LOSS OF DATA, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEAD, INJURY TO REPUTATION OR LOSS OF BUYERS, EVEN IF NPN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BUYER'S RECOVERY FROM NPN FOR ANY CLAIM SHALL NOT EXCEED BUYER'S PURCHASE PRICE FOR THE PRODUCT GIVING RISE TO SUCH CLAIM IRRESPECTIVE OF THE NATURE OF THE CLAIM, WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE.
Buyer’s wrongful rejection of Products or cancellation of an Order shall entitle NPN to recover from Buyer all damages incurred by NPN as a result.
11. SUSPENSION AND TERMINATION
If Buyer is in default of performance of its obligations towards NPN, or if NPN has reasonable doubts with respect to Buyer’s performance of its obligations to NPN and Buyer fails to provide to NPN adequate assurance of Buyer’s performance before the date of scheduled delivery and in any case within thirty (30) days of NPN’s demand for such assurance; or if Buyer becomes insolvent or unable to pay its debts as they mature, or goes into liquidation or any bankruptcy proceeding shall be instituted by or against Buyer, or if Buyer makes any assignment for the benefit of its creditors, then, without prejudice to any other rights of NPN, NPN may by notice in writing (i) demand re-delivery and take repossession of any delivered Products which have not been paid for,; and/or (ii) suspend its performance or terminate the Order for outstanding delivery of Products unless Buyer makes such payment for Products on a cash in advance basis.
12. COMPLIANCE WITH LAWS AND STANDARDS
NPN makes no promise or representation that the Products shall conform to any law, statute ordinance, regulation, code or standard (“Laws and Standards”), unless expressly stated in NPN’s acceptance to Buyer’s order or in the Specifications. Buyer acknowledges that the use of the Products may be subject to requirements or limitations under Laws and Standards. Buyer shall be exclusively responsible for (i) ensuring compliance with all Laws and Standards associated with its intended Use of the Products; and (ii) obtaining all necessary approvals, permits or clearances for such Use.
Neither party may assign any of the rights or obligations under NPN’s Confirmation without the prior written consent of the other party, provided however, that NPN may assign such rights and obligations, wholly or partly, to any of its parent companies, subsidiaries or affiliates or to a third party acquiring all or a substantial part of NPN’s assets or business relating to the Products.
14. GOVERNING LAW; VENUE
14.1 The Order, as accepted by NPN, shall be interpreted and construed in accordance with the laws of the State of California without regard to principles of conflict of laws. The United Nations Convention on Contracts for the International Sale of Products shall not apply.
14.2 The parties irrevocably: (i) agree that any suit, action or other legal proceeding arising out of this Purchase Order shall be brought exclusively in a State Court of California or United States District Court, in either case, sitting in Los Angeles County, California, having jurisdiction over such matters; (ii) consent to the personal jurisdiction of such courts and (iii) waive any objection to venue in such courts and any claim as to inconvenient forum.
The order, as accepted by NPN, shall not be modified, supplemented, qualified, or interpreted by any trade usages or prior course of dealing not made a part of the order by its express terms. No amendments to or modifications will be valid and binding upon NPN unless in writing and signed by an authorized representative of NPN.
If any provision of this order, as accepted by NPN, is determined to be invalid or unenforceable, such provision, invalidity or unenforceability shall not affect the validity or enforceability of any other provision hereof.
Failure by NPN to enforce at any time any provision of these Terms and Conditions shall not be construed as a waiver of NPN’s right to act or to enforce any such term or condition and NPN’s rights shall not be affected by any delay, failure or omission to enforce any such provision. No waiver by NPN of any breach of Buyer’s obligations shall constitute a waiver of any other prior or subsequent breach.
18. ENTIRE AGREEMENT
The Order, as accepted by NPN, sets forth the complete and final agreement between the parties, and supersedes any and all prior or contemporaneous oral or written communications relating to its subject matter.