Terms & Conditions of Purchase
These Standard Terms and Conditions of Purchase (“Terms”) are the only terms that govern the conditions under which Valudor Products, LLC, and its affiliated companies (“Buyer”), will purchase chemical products (“Goods”) from the seller (“Seller”) identified on the purchase order attached hereto (“Purchase Order”). Buyer’s acceptance of Seller’s Goods is made expressly conditional on Seller’s assent to these Terms, and Seller’s signature to the Purchase Order shall constitute assent to these Terms. These Terms supersede any inconsistent terms and conditions in any documentation submitted by or on behalf of Seller to Buyer, including any invoice provided by Seller. The Purchase Order and these Terms comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.
Price; Payment Terms
Seller shall issue an original invoice, consistent with the terms set forth in the Purchase Order, which shall include Buyer’s purchase order number, line item number, quantity, description of Goods, unit price, payment terms and discounts. Unless otherwise provided in the Purchase Order, Seller shall not issue any invoice prior to the actual delivery date of Goods.
Delivery. Seller shall:
A. Pack Goods to prevent damage and deterioration. No charges will be allowed for packing or packaging unless stated in the Purchase Order. Buyer may charge Seller, or take credit on the applicable invoice, for damage to or deterioration of any Goods resulting from improper packing or packaging.
B. Label the Goods according to Globally Harmonized System of Classification and Labeling of Chemicals (GHS).
C. Consolidate Goods shipped by Seller on the same day on one Bill of Lading, unless Buyer authorizes otherwise.
D. Not deliver Goods prior to the scheduled delivery dates, or in multiple shipments, unless authorized by Buyer. Late deliveries may be cause for a price reduction, or cancellation pursuant to Item 9 below, at Buyer’s discretion. Buyer shall, at no additional cost, retain Goods furnished in excess of the specified quantity or in excess of any allowable overage unless, within 30 days of shipment, Seller requests return of such excess. In the event of such request, Seller shall pay or reimburse Buyer for costs associated with storage, handling, packaging and shipping to return the excess.
Seller must indicate on the bill of lading the complete routing for the Goods, including the order number, place of delivery as shown on the invoice, and the proper description of the Goods shipped. Seller shall also (a) mark the order number on the invoice, packing slip, bill of lading, container detail sheet and on each case and package; (b) show the complete routing weight, commodity and case or package numbers, (c) mark each container to show the total number of cases of containers covered by each bill of lading, (d) provide certificate verifying wood treatment of pallets as required by ISPM 15, (e) provide dangerous goods documentation for all shipments containing hazmat materials and (f) provide ISF documentation prior to vessel loading at port of origin. Safety Data Sheets (OSHA Form 20) must be sent by Seller and received by Buyer at least five (5) working days prior to delivering controlled substances or hazardous material as defined and regulated by OCCUPATIONAL SAFETY AND HEALTH ACT, 1970, TOXIC SUBSTANCES CONTROL ACT, 1976 and other pertinent laws or regulations.
Acceptance and Rejection.
A. Buyer shall accept Goods or give Seller notice of rejection within a reasonable time after receipt at destination. No inspection, test, delay, or failure to inspect or test, or failure to discover any defect or other nonconformance, shall relieve Seller of any obligations under these Terms or impair any rights or remedies of Buyer or Buyer’s customer.
B. If Seller delivers nonconforming Goods, Buyer may, at its option and at Seller’s expense: (i) return Goods for credit or refund; (ii) require Seller to promptly correct or replace Goods; (iii) correct Goods; or (iv) obtain replacement Goods from another source. Seller shall not redeliver corrected or rejected Goods without disclosing to Buyer the former rejection or requirement for correction.
Warranties and Indemnification.
In addition to any standard warranty or guaranty of Seller, Seller further expressly warrants that all Goods ordered to specifications will conform thereto and to the samples or other descriptions furnished or adopted by Buyer and further expressly warrants that all Goods: (i) shall be free from defects in materials and workmanship; (ii) are of merchantable quality and are fit and safe for the purpose for which purchased or apparently intended by Buyer or Buyer’s customer; (iii) have been manufactured, packaged, labeled and are now being furnished in compliance with all applicable federal, state and local laws, including, but in no way limited to, the Consumer Products Safety act, the Fair Labor Standards Act, the Federal Food, Drug & Cosmetic Act and the National Traffic and Motor Vehicle Safety Act of 1966; (iv) are being conveyed by Seller’s good and rightful title, and will be delivered free from any security interest or other lien or encumbrance of any third person or any rightful claim of any third person; and (v) do not infringe on any United States or foreign trademark, patent or other intellectual property rights of any third person. These warranties shall run to Buyer, its successors and assigns, and Buyer’s customers. Further, Seller will indemnify, defend, and hold harmless Buyer, its successors and assigns, and Buyer’s customers (collectively called “Indemnified Parties”) from any and all such claims, suits, actions, awards, including, but not limited to, awards based on intentional infringement of patents known to Seller at the time of such infringement, damages and/or including attorney’s fees and/or costs, liabilities, damages, costs and attorney’s fees (collectively called “Claims”) related to a breach of any of Seller’s representations hereunder, including the actual or alleged infringement of any United States or foreign intellectual property right. Indemnified Parties will duly notify Seller of any such Claim; and Seller will, at its own expense, fully defend such Claim on behalf of Indemnified Parties.
If the Purchase Order contemplates that the Goods will be purchased on a CIF basis, then Seller herby agrees to maintain the following insurance coverage: Comprehensive or Commercial General Liability Insurance, including Products Liability coverage and Broad Form Vendors Endorsement, on an occurrence basis, including contractual liability insurance, with limits not less than 110% of the value of the Goods. Prior to the furnishing of Goods, Seller will furnish Buyer with a Certificate of Insurance, stipulating that Seller has in force all coverages required above, in the limits set out above, naming Buyer, its subsidiaries and affiliated companies, its employees and its agents, as Additional Insureds.
Prohibition Against Forced Labor, Child Labor and Trans-Shipments.
Seller certifies, represents and warrants that Goods are not mined, produced, manufactured, assembled or packaged by the use of forced labor, prison labor or forced or illegal child labor and that Goods were not trans-shipped for the purpose of mislabeling, evading quota or country of origin restrictions or for the purpose of avoiding compliance with forced labor, prison labor or child labor laws. Seller will indemnify, defend, and hold harmless the Indemnified Parties from any and all Claims related to a breach of any of Seller’s obligations set forth in this Section 7.
Unless the Purchase Order specifies otherwise, the prices set forth in the Purchase Order include, and Seller is liable for and shall pay, all taxes, impositions and charges impose on or measured by these Terms except for sales and use taxes for which Buyer specifically agrees to pay and which are separately stated on the Purchase Order.
Cancellation. Buyer may cancel, at no charge from Seller, all or any part of a Purchase Order:
A. If Seller fails to deliver Goods within the time specified by the Purchase Order or any written extension.
B. If Seller fails to perform any other provision of these Terms.
C. In the event of Seller’s suspension of business, insolvency, appointment of a receiver for Seller’s property or business, or any assignment, reorganization or arrangement by Seller for the benefit of its creditors.
D. In the event any force majeure of Buyer, which includes, but is in no way limited to, lockouts, strikes, riots, war, fire, civil insurrection, flood, earthquake, or any other casualty or cause beyond Buyer’s control, which might reasonably tend to impede or delay the reception, handling, inspecting, processing or marketing of Goods.
Assignment, Delegation and Subcontracting.
Seller shall not assign any of its rights or interests in these Terms, or subcontract all or substantially all of Seller’s performance of these Terms, without buyer’s prior written consent. Seller shall not delegate any of its duties or obligations under these Terms. No assignment, delegation or subcontracting by Seller, with or without Buyer’s consent, shall relieve Seller of any of its obligations under these Terms.
Seller shall keep and cause its employees to keep confidential any technical information, data and information concerning the business, research plans or activities of Buyer, its Affiliates, or third parties or the premises of any them which are made available (whether in writing or orally or by observation) to Seller and its employees by Buyer or its Affiliates or which result from the Goods under any order. Seller shall not disclose terms of sale or pricing provided to the Buyer. If Seller is obliged to disclose confidential information under applicable law, Seller shall deliver promptly to Buyer a prior written notice of such required disclosure and shall not disclose such before reasonable time is provided to Buyer to reject to such disclosure.
Rights, Remedies and Severability. Any failures, delays or forbearances of either party in insisting upon or enforcing any provisions of these Terms, or in exercising any rights or remedies under these Terms, shall not be construed as a waiver or relinquishment of any such provisions. rights or remedies; rather, the same shall remain in full force and effect. The rights and remedies set forth in these Terms are cumulative and in addition to any other rights or remedies that the parties may have law or in equity. If any provision of these Terms is or becomes void or unenforceable by law, the remainder shall be valid and enforceable.
Miscellaneous. These Terms (i) may not be modified, terminated, or waived except as expressly provided herein or agreed to in writing by the party to be charged; and (ii) shall be governed by and construed in accordance with the laws of the State of California without giving effect to choice of law principles. All claims, including tort claims, arising directly or indirectly out of these Terms or any incorporating order will be filed exclusively in the state or federal courts located in County of San Diego, California. The Parties expressly waive all objections to this venue and assent to personal jurisdiction therein. THE PARTIES KNOWINGLY AND IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF THESE TERMS AND CONDITIONS OR ANY ORDER INCORPORATING THEM.