Terms and Conditions:
Please note that your order is expressly subject to the terms and conditions set forth below, and this document constitutes the terms of agreement in their entirety between you / Buyer and Nutritional Supplement Manufacturers, Inc. (“Seller”) with respect to any order Buyer places with Seller (the “Contract”). Any additional or different terms stated in any purchase order or other document shall be of no binding effect and is hereby objected to and rejected. Buyer agrees to accept and be bound by the terms and conditions set forth herein. The confirmation of the order implies for the buyer, acceptance of these Terms and Conditions of Sale and the recognition of complete comprehension. In addition, by tendering full payment, a deposit payment, or choosing to use credit terms, buyer is accepting and agreeing to this Contract. Additionally, the buyer’s/customer’s signature also signifies understanding and acceptance of this Contract.
Terms and Conditions of Sale
1. Price and Payment. Prices for the goods are as stated on the face of the Order. All prices are EX Works Seller’s warehouse and do not include any cost for freight. Any costs or charges for freight, insurance or any applicable sales, use, transfer, excise or other taxes, tariffs or custom duties, shall be the responsibility of Buyer. Increases in labor and material costs before completion of this Order plus applicable overhead as well as surcharges may be invoiced to Buyer. Final payment must be received within the payment terms specified in the accepted Order. All Orders are to be paid in full when production of the Order is complete and are not contingent upon label completion. If Seller is printing labels for the order, Seller will see that the label production will coincide with goods production. If payment in full of an invoice is not made by or before the due date, Buyer agrees to pay interest on any unpaid amount at a rate of 1.5% per month or 18% per annum from the due date until the invoice and all interest associated therewith is paid in full, and shall pay for all Seller’s costs of collection including reasonable attorney’s fees and court costs. Attorneys’ fees and costs incurred by Seller in connection with any legal action or proceeding with respect to the collection of any invoices which are in arrears shall be the responsibility of Buyer. All sales are final. Seller does not offer payment terms to anyone. However in the event Seller grants payment terms to Buyer, Seller may revoke such payment terms at any time and for any reason, in Seller’s sole and absolute discretion, and require Buyer to tender pre-payment for goods either before manufacture or before delivery.
2. Delivery of Goods. Delivery terms for goods purchased hereunder shall be EX Works Seller’s warehouse or other point designated by Seller (the “Shipping Point”) and Buyer’s designated carrier shall pick-up the goods at the Shipping Point and all cost of shipping shall be borne by Buyer. Buyer has the option of electing to insure the goods while the goods are in the possession of a third-party carrier, the cost of such insurance will be borne by Buyer and such costs are in addition to the shipping costs. Title to the goods purchased by Buyer and risk of loss of all goods shall pass to Buyer upon delivery of the goods to Buyer’s designated carrier or common carrier at the Shipping Point. Delivery dates set forth on the Order are subject to change and are predicated on conditions existing at the time. Seller does not guarantee any delivery dates and shall not be responsible for any loss or damage of any kind or nature whatsoever caused by any delay in delivery irrespective of the cause of such delay.
3. Storage Fees and Quantity Fluctuation. Storage fees are not part of this invoice. Inactive inventory stored in Seller’s facility will be billed at a rate of $50.00 per pallet per week, unless otherwise agreed upon. Any materials held longer than 30 days without payment will be considered abandoned and will become the property of Seller. It is provided further that Seller has the right to sell goods that are not paid for after 45 days. For every order there is a possibility of 10%+/- for the final quantity of goods. The customer is responsible for this fluctuation as it is an industry standard. This applies to all orders from minimum and up.
4. Inspection and Rejection. Buyer shall carefully inspect all goods promptly upon the receipt. Any claim for overage or shortage must be presented to Seller, in writing, within three (3) business days of receipt of the goods by Buyer. Any other claim for breach of the warranty stated in paragraph 9 hereof, must be presented to SELLER in writing, within thirty (30) days after receipt of the goods by Buyer. Failure to make a claim within the above specified periods shall constitute a waiver of any such claim. Claims must be accompanied by supporting documentary proof of such overage shortage or breach of warranty.
5. Expiration dates. The expiration date of a good can only be determined by doing a stability study. If a stability study is not conducted, a “Date of Manufacturing” will be issued for each good. If an expiration date is issued without a stability study, this will be done only per the Buyer’s request and is at Buyer’s own risk and Seller is not liable. Buyer certifies that the goods and packaging ordered has been stability tested in accordance with industry standards prior to ordering and that the goods and packaging specifications provided by Buyer are identical to the specification used for stability testing. Seller is not responsible for stability testing the goods unless agreed upon in writing and signed by an officer of Seller. In the event that Buyer’s goods and/or packaging specifications have not been stability tested, or the specifications provided to Seller deviate from those used in the stability test, Buyer agrees to hold Seller harmless and to fully indemnify Seller against any and all claims for damages or loss arising out of the goods becoming unstable, unmarketable, less effective than claimed or intended, or otherwise deviating from the specifications, which occurred as a result of the good’s instability after manufacturing. This indemnification includes Seller’s costs, expenses and reasonable attorney fees.
6. Raw Materials Supplied by Buyer. Seller will accept raw material supplied by Buyer for the manufacture of Buyer’s goods with the understanding that Seller is relying completely on the Certificate of Analysis provided with the raw material to determine the content of the raw material and shall not be responsible for inferior raw material or mistakes on the Certificate of Analysis. Seller is not responsible for testing the raw material provided by Buyer prior to manufacturing the goods unless agreed upon in writing and signed by an officer of Seller. In the event that testing of the goods after manufacturing reveals that the goods do not meet specifications due to the inferior raw material supplied by the Buyer, Buyer will hold Seller harmless and assume all liability and costs associated with the manufacturing of the goods.
7. Labels. Buyers who are supplying art for Seller to print must have their ‘ready to print’ artwork to Seller within 3 weeks of submitting the Supplement Facts. Buyers not complying with this 3 week timeframe will be subject to their orders losing their priority in the production process. Seller will not be responsible for any delays resulting from Buyer not complying with this deadline. Buyers supplying finished labels must deliver the printed labels to Seller’s facility no later than 5 weeks after submitting the Supplement Facts. In the event labels are not submitted within the specified time frames, the goods will be completed, bottled and invoiced without labels. Buyer will be required to meet the invoice terms requiring final payment within 3-5 days of the invoice. Buyers choosing to have labels applied after the final invoice is issued will be charged an additional $1,000 processing fee to reschedule the goods for labeling.
8. Buyer’s Responsibility for Goods. Except for a breach by Seller of the Warranty in paragraph 9, Buyer acknowledges and agrees that Buyer is solely responsible for all aspects of the goods, including but not limited to, their safety, efficacy, legality, design, the formula, any label content, packaging materials, and all marketing and promotional claims made about the goods in any forum or media. Additionally, Buyer is responsible to see that the goods, including, but not limited to, any label, formula, ingredient, component, raw materials, or marketing materials fully comply in every respect with all local, state and federal laws, statutes, rules, orders and regulations applicable to the goods. Buyer assumes sole responsibility for analyzing and determining the suitability of any goods supplied by Seller and Buyer agrees that it is not relying on Seller in making such determination even if Seller provided assistance, guidance or design. Buyer assumes full responsibility for any particular use or purpose. Buyer will not order or use any goods unless it is satisfied that the goods are suitable for Buyer’s use and conform to all of its requirements. Buyer agrees to store and use all goods in a safe manner.
Specifically, it is up to Buyer to calculate levels of contaminants in daily dose stated on label and to make sure such dose meets California Proposition 65, should goods be offered for sale in USA. Seller is to adjust dosage and change labels to comply with Prop 65. Buyer bares sole responsibility to meet Proposition 65 rules. Should contaminants not meet Prop 65 Buyer certifies that they will label all products sold to the state of California with a sticker reading “WARNING:This product contains a chemical known to the state of California to cause birth defects or other reproductive harm.” Buyer will make sure that the dose they recommend will not cause overdose or adverse reactions in individuals, including but not limited to vitamins that accumulate in the body. Buyer will include all appropriate and/or legally required warnings on labels and supporting websites and literature with regard to concerns of side effects/adverse reactions.
9. Warranty and Remedy. Seller warrants that the goods delivered hereunder will be manufactured in accordance with applicable Good Manufacturing Practices of the United States Food and Drug Administration (“GMP”) and conform to the agreed upon specifications for the goods, in all material respects, at the time of delivery to Buyer. Seller makes no representation or warrantee that the goods are appropriate for Buyers intended use and Seller shall have no liability for any damages or claims resulting from Buyer use of goods. THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL OR IMPLIED, INCLUDING ANY WARRANTY OF PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE FOREGOING WARRANTY SUPERSEDES AND EXCLUDES ANY ORAL WARRANTIES OR REPRESENTATIONS, OR WRITTEN WARRANTIES OR REPRESENTATIONS MADE OR IMPLIED INCLUDING, WITHOUT LIMITATION, IN ANY MANUAL, LITERATURE, ADVERTISING BROCHURE OR ANY OTHER MATERIALS OR BASED ON CUSTOM OR OTHERWISE. ALL WARRANTIES OF PERFORMANCE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED. IT IS THE SOLE RESPONSIBILITY OF BUYER TO DETERMINE THE ADEQUACY OF ALL GOODS PURCHASED BY BUYER FOR ANY INTENDED SPECIFIC PURPOSE OR USE. SELLER SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR LIABILITY ARISING OUT OF OR RESULTING FROM CUSTOMER’S POSSESSION OR SALE OF THE PRODUCTS, REGARDLESS OF WHETHER SUCH LIABILTY IS BASED IN TORT, CONTRACT OR OTHERWISE AND WHETHER OR NOT SUCH LOSS IS FORESEEABLE. If Buyer has made any alteration to any goods, Buyer will have waived all warranty claims. No warranties may be assigned to any subsequent purchaser or user of the goods or services.
10. Limitations of Seller’s Liability. Seller’s liability on any claim of any kind, including, without limitation, negligence, with respect to goods or services shall in no case exceed the purchase price of the good or service or part thereof which gives rise to the claim. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR SIMILAR DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR ECONOMIC DAMAGES), OR FOR DAMAGES IN THE NATURE OF PENALTIES REGARDLESS OF CAUSE AND WHETHER OR NOT FORESEEABLE. THE OBLIGATION OF SELLER TO REPLACE (OR REFUND THE PURCHASE PRICE OF) ANY DEFECTIVE GOODS SHALL BE IN LIEU OF ALL OTHER REMEDIES, AND SELLER’S LIABILITY FOR DAMAGES UNDER THIS CONTRACT (WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, TORT OR OTHERWISE) SHALL NOT IN ANY EVENT EXCEED A REFUND OF THE PURCHASE PRICE PAID BY BUYER TO SELLER FOR THE SPECIFIC GOODS IN QUESTION.
11. Indemnity. Buyer agrees to indemnify, defend, and hold Seller, its officers, directors, shareholders, agents and employees, or any affiliates thereof, harmless from and against all claims, liabilities, costs, damages, losses, judgments for damages or expenses (including reasonable attorney’s fees) caused by, arising out of, or resulting from (i) any breach of this terms and condition of sale by Buyer, or (ii) the marketing, distribution and/or sale of the goods, including but not limited to failure to warn, product liability claims, recalls and class action lawsuits. Seller agrees to indemnify, defend, and hold Buyer, its officers, directors, shareholders, agents and employees, or any affiliates thereof, harmless from and against all claims, liabilities, costs, damages, losses, judgments for damages or expenses (including reasonable attorney’s fees) resulting solely from a breach by Seller of the warranty stated in paragraph 9 above.
12. Binding Arbitration for Dispute – Waiver of right to a jury trial: All controversies and claims arising out of or relating to these terms and conditions of sale shall be settled solely by binding arbitration held in San Diego, California in accordance with the commercial rules then in place of the American Arbitration Association, and judgment upon any award thereon, may be entered in any court having jurisdiction thereof. Only one arbitrator will be allowed. The arbitrator must be either an experience individual in the business of manufacturing or a retired judge. If the parties cannot agree upon an arbitrator, then the AAA will be asked to select an arbitrator in conformity with the requirements listed herein. The costs of the arbitration and the arbitrator’s fee will be split. Each side will pay its own attorney fees and costs. Notwithstanding, the arbitrator will be allowed to award arbitration costs, his fee, and reasonable attorney fees and costs to the prevailing party based upon the arbitrator’s assessment of the good faith underlying the claims/defenses of the non-prevailing party. In the event of a dispute, the parties shall continue to perform each of their other obligations hereunder while resolving any such dispute. The Parties agree that the power of the arbitrator will be expressly limited to a strict interpretation of California law and that no deviation of the terms and conditions of this Agreement or California law will be allowed by the arbitrator. This arbitration provision survives the termination of the Contract.
13. Miscellaneous. This Contract contains the entire understanding of the parties with regard to Seller’s sale of goods referenced herein to Buyer. These terms and conditions of sale constitutes the complete and exclusive agreement and no statement or agreements, oral or written, shall vary or modify the written terms hereof under any circumstances. This includes any purchase order. Any modification must be so designated and must be in writing signed by both parties. Any notice, direction or other instrument required or permitted to be given under these terms and conditions of sale shall be in writing and given by delivering it by hand or sending it by registered mail (with receipt requested), by recognized courier service with acknowledgement of receipt requested, by e-mail or other similar form of recorded communication to an officer of the parties. If any provision of this Contract is declared invalid, illegal or unenforceable, all other provisions shall remain in full force and effect. Nothing herein contained shall be deemed to constitute an employment or agency relationship or employment agreement, joint venture, or partnership among the parties hereto and nothing herein contained shall be construed to regard the parties hereto as other than that of buyer and seller. This Contract shall be governed by the laws of the State of California. Any dispute which arises between Seller and Buyer concerning this Contract or any other aspect of their relationship shall be interpreted and construed in accordance with the laws of the State of California without regard to conflict of laws provisions.