Terms & Conditions of Sale
These Standard Terms and Conditions of Sale (“Terms”) are the only terms that govern the conditions under which Valudor Products, LLC, and its affiliated companies (“Valudor”), will sell products to customer (“Customer”), and Customer will purchase products from Valudor. Valudor’s acceptance of Customer’s order is made expressly conditional on Customer’s assent to these Terms, and Customer’s acceptance of product shall constitute assent to these Terms. These Terms supersede any inconsistent terms and conditions in any documentation submitted by or on behalf of Customer to Valudor. The accompanying invoice 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.
Compliance with Laws.
Customer and Valudor shall adhere to all applicable federal, state, and municipal laws, rules and regulations.
All orders are subject to current credit approval. From time to time, Valudor may review Customer’s creditworthiness. Customer agrees to provide Valudor with all credit information reasonably requested, and Customer represents and warrants to Valudor now, and each time Customer places an order, that all information Customer has provided is true and correct, and that Customer has not omitted any information necessary to make the information not misleading. Valudor may refuse to accept any order or refuse shipment if Customer does not meet Valudor’s current credit requirement.
Valudor warrants that the products covered hereunder will conform strictly to applicable specifications, and that upon payment, title to the products shall be transferred to Customer free and clear of all liens. In the event of a breach of such warranty, Valudor will, without cost to the Customer, at Valudor’ option, either (i) furnish replacement product or (ii) grant a credit to Customer’s account in the amount of Customer’s net purchase price of such defective product. Defects in the products caused by third parties, acts of God, and abnormal use of the products unrelated to Valudor’ activities are specifically excluded from the coverage of this warranty. Valudor shall not be liable to Customer for any third-party claims brought against Customer. Customer hereby undertakes and agrees to hold Valudor harmless and indemnify Valudor against any claim brought by a third party against Customer relating to the product.
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE GIVEN AND ACCEPTED IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER REMEDIES. THESE ARE THE ONLY REMEDIES OF CUSTOMER FOR ANY BREACH OF WARRANTY OR OTHER CLAIM. VALUDOR’ TOTAL LIABILITY ARISING OUT OF THE SUPPLYING OF PRODUCTS, OR THE USE OF THE PRODUCTS, WHETHER ON WARRANTIES OR CLAIM OF NEGLIGENCE, OR OTHERWISE, SHALL NOT IN ANY CASE EXCEED THE COST PAID BY CUSTOMER TO VALUDOR FOR THE PRODUCTS AND IN NO CASE SHALL VALUDOR BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES.
If the Customer chooses to sell Valudor’ product(s) to a manufacturer, producer, packager, supplier, distributor, retailer, or any other business entity, that will introduce any concentration of Valudor’ product(s) into the stream of commerce in California, it is solely the Customer’s responsibility, and in no way Valudor’ responsibility, to ensure that the California consumer receives a warning, if necessary, prior to exposure to Valudor’ product(s), that meets the requirements of California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (“Proposition 65”), as amended, including, but not limited to, Section 25249.6 of the California Health and Safety Code.
The products sold hereunder may be or become hazardous, whether singly or in combination with other goods or products. Customer will take all steps necessary to familiarize, inform and warn its employees, agents, customers, and contractors who may handle or come into contact with the products of all the hazards pertaining to, and proper procedures for safe use of, the product and of the containers or equipment in which the product may be handled, shipped, or stored. Customer also undertakes to label as appropriate any materials which it makes or resells that includes the product sold. CUSTOMER WILL INDEMNIFY, DEFEND AND HOLD VALUDOR HARMLESS FROM AND AGAINST ANY CLAIM, LIABILITY OR EXPENSE (INCLUDING LEGAL FEES) INCLUDING, BUT NOT LIMITED TO, INJURY OR DEATH ARISING DIRECTLY OR INDIRECTLY FROM CUSTOMER’S FAILURE TO SO FAMILIARIZE, INFORM, AND WARN. THESE UNDERTAKINGS APPLY IN FULL MEASURE WHETHER VALUDOR IS ALLEGED OR FOUND TO BE CONCURRENTLY, PARTIALLY OR JOINTLY NEGLIGENT OR AT FAULT OR LIABILITY WITHOUT FAULT IS SOUGHT TO BE IMPOSED ON VALUDOR.
Payment terms are stated on the invoice. Standard payment terms are net-30 from the date of shipment, unless otherwise negotiated. No claim, defense, set-off, or counterclaim arising under any other agreement shall be asserted against payment due. Customer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Valudor for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Valudor does not waive by the exercise of any rights hereunder), Valudor shall be entitled to suspend the delivery of any products if Customer fails to pay any amounts when due hereunder and such failure continues for 10 days following written notice thereof.
Orders may not be cancelled or varied by Customer without Valudor’s written consent and may entail, as a condition to such consent, the reimbursement to Valudor of all costs incurred in performing such order. If Customer purports to cancel or vary an order without Valudor’s consent or refuses to accept delivery of products previously ordered, then, without prejudice to any other rights or remedies that Valudor may have, Valudor shall be entitled to charge Customer any costs and fees incurred by Valudor in respect of all products ordered, supplied or manufactured for execution of such order, as well as a cancellation fee equal to five percent (5%) of the market value of the products under the order so cancelled. In these circumstances, Valudor shall be entitled to store the products, at Customer’s cost, and to dispose of the products to any third party on such terms as Valudor may see fit. All costs and expenses incurred with respect to such disposal shall be reimbursed by Customer to Valudor upon Valudor’s first demand.
Unless specifically agreed otherwise, delivery times are best estimates only and shall not be of the essence. Valudor will undertake all reasonable efforts to deliver the products by the estimated delivery time. Valudor reserves the right to change delivery dates for products in accordance with available delivery options. Any expected delays in shipments will be notified to Customer. Receipt by Customer of any products delivered hereunder constitutes unqualified acceptance of and waiver by Customer of its rights to make any claim of any nature whatsoever with respect to the products unless Customer gives Valudor written notice of such claim within thirty (30) days after receipt of such products or, in case of non-delivery, within thirty (30) days of the date on which delivery was scheduled. Use or disposition of any portion of the products by Customer will be a waiver of all claims with respect to such portion. Customer is not entitled to deduct from an invoice the amount of any claim asserted against Valudor without Valudor’s written consent.
If raw material costs to produce or transport the products significantly increase, Valudor reserves the right to pass on the entire cost of the increase, or some portion thereof, in the form of a surcharge for as long as the conditions persist.
In the event either Customer or Valudor is unable to perform its obligations, either in whole or in part, under these Terms as a result of an Act of God, or any other condition or cause beyond its reasonable control (these causes being referred to as “Force Majeure”), the quantities so affected shall be eliminated from these Terms without liability, but these Terms shall otherwise remain unaffected.
If the final judgment of a court of competent jurisdiction declares any portion of these Terms to be invalid or unenforceable, then these Terms shall be modified to the minimum extent necessary to bring the remainder of these Terms into compliance.
Failure of Valudor or Customer to exercise any right under these Terms on one occasion shall not be deemed a waiver of its right to exercise the same right on another occasion.
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; (ii) may not be assigned by Customer; and (iii) 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 and conditions 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.