Jebsen & Jessen Life Science, Inc.
NOTICE: THIS TRANSACTION BETWEEN JEBSEN & JESSEN LIFE SCIENCE, INC. (“SELLER”) AND BUYER, AND ALL DOCUMENTS PERTAINING TO IT, IS SUBJECT TO AND CONDITIONED UPON THESE TERMS AND CONDITIONS OF SALE (“TERMS”) AND THESE TERMS ARE INCORPORATED BY REFERENCE INTO AND ARE A PART OF ALL TRANSACTIONS BETWEEN SELLER AND BUYER.
1) Order Process; Additional or Conflicting Terms; Conditions.
a) “Sales Documents” include any quotation, proposal, order confirmation, order acceptance and invoice issued in writing by Seller, and all Sales Documents incorporate the Terms by reference. Buyer’s purchase of Products (defined below) from Seller will be governed solely by the Sales Documents which will constitute the contract between Buyer and Seller (collectively, the “Contract”). In no event will Buyer’s terms in any purchase order or otherwise apply to, nor will Buyer’s proposed additional or different terms modify, the Contract unless Seller expressly includes Buyer’s proposed terms in the Sales Documents. Seller hereby objects to and rejects any additional or different terms or conditions proposed by Buyer or contained in any purchase order, commercial document or other correspondence from Buyer, regardless of any knowledge Seller may have of such terms, and such terms will not bind Seller or be applicable to the transaction (even if Buyer’s purchase order is referenced in the Sales Documents). If any of these Terms conflict with the other Sales Documents, the specific terms in the applicable Sales Documents will prevail over these Terms. The applicable terms of any revised or later Sales Document will control over such terms in a prior, similar Sales Document. No other terms or changes, modifications, amendments or waivers of any terms in a Contract will apply to Seller unless in writing and signed by an authorized officer of Seller.
b) All sales of products and any other goods sold by Seller (individually, “Product” and collectively, “Products”) are contracts entered into in North Carolina and then only in accordance with the Sales Documents.
c) Seller will sell Products to Buyer in the quantities and at the times set forth in the Sales Documents. Buyer may order Products by submitting written purchase orders that reference Product(s), quantity per Product, and requested delivery date. All orders and requests submitted to Seller for Products, are subject to acceptance by Seller and only the terms of the Sales Documents will apply. Seller’s acceptance may be in writing (such as via an order confirmation), including via email, or by delivery of Products to Buyer.
d) Buyer may not cancel or change a Contract except with the prior written consent of Seller. Seller may change a Sales Document at any time to correct mathematical or clerical errors.
2) Prices; Payment.
a) All prices for Products will be as specified by Seller in its Sales Documents. If no price has been specified in the Sales Document, the price will be Seller’s standard price in its catalogs or price lists in effect at the time of delivery. All prices from Seller must be in writing and may be changed at any time.
b) The price does not include any sales, use, personal property, excise, value added tax, transfer or other tax, nor any duties or assessment, arising out of or related to Products or their purchase and sale which may be imposed by any governmental authority, all of which will be the obligation of, and paid by, Buyer. In the event that Seller pays any such tax, duty or assessment, Buyer will reimburse Seller in accordance with the terms of Section 2(c). Buyer is responsible for obtaining and providing to Seller any certificate of exemption or similar document required to exempt any sale from sales, use or similar tax liability.
c) Unless expressly specified otherwise in the Sales Documents, Buyer will pay all amounts due in full, and without deduction or setoff immediately upon Buyer’s receipt of the invoice, regardless of any dispute or controversy that may arise. The date of payment will be the date Seller receives payment in full. If at any time, in its sole discretion, Seller has any doubt or concern as to Buyer’s financial standing or ability to perform its obligations, Seller may decline to make shipments, except upon receipt of a deposit or other satisfactory security or cash before shipment.
d) If Buyer fails to make any payments as and when due or otherwise defaults (i) interest will accrue from the date the payment was due until payment is received in full at the lower of 1.5% per month or the maximum amount allowed by applicable law and (ii) Seller may without limiting its other rights and remedies take any or all of the following actions: (1) suspend performance; (2) terminate a Contract for default; (3) require Buyer to pay the full Contract price and any interest, fees and other charges immediately; and (4) take any other actions or pursue any other rights or remedies. Failure by Seller to charge interest on late payments or to exercise its other rights and remedies will not be construed as a waiver of any other legal or equitable remedies.
3) Delivery.
a) Unless otherwise stated in Seller’s Sales Documents, all deliveries of Products are Ex Works (Incoterms 2010) Seller’s facility located in North Carolina or such other location as designated by Seller (“Delivery Point”). Buyer will take delivery of Products when Products have been made available at or delivered to the Delivery Point. The prices do not include any transportation or packaging costs and Buyer is responsible for all such costs. Seller may make partial or early deliveries. Notwithstanding any requested delivery dates by Buyer, the delivery date in Seller’s Sales Documents will control, and any delivery date, delivery schedule, forecast or commitment is only an estimate and Seller will not be liable for any delay or failure to deliver all or any part of any order for any reason. Seller will not be responsible for any damage to the Products caused by a carrier and Buyer’s sole recourse for such damage will be against the carrier.
b) If for any reason Buyer fails to accept delivery of any Products on the date fixed pursuant to Seller’s notice that Products have been delivered at the Delivery Point, or if Seller is unable to deliver Products at the Delivery Point due to Buyer’s fault, including lack of appropriate instructions, documents, licenses, authorizations, personnel or facilities: (i) risk of loss to Products will pass to Buyer; (ii) Products will be deemed to have been delivered; and (iii) Seller, at its option, may store Products until Buyer picks them up and Buyer will be liable for all related costs and expenses (including storage and insurance).
c) The Contract is concluded subject to Seller obtaining the necessary licenses and approvals to export a Product from the country where manufacturing of such Product takes place and, if applicable under the delivery terms of the Contract, to import that Product to the country of destination. Should the fulfillment of the Contract fail due to the lack of such a license or approval, Buyer shall not be entitled to a claim against Seller for damages or for any other reasons. For imports to country of destination, Buyer is exclusively responsible for examining and determining any licenses or approvals needed for the importation and Buyer must advise Seller in writing before an award of Contract of any import licenses or approvals needed or any import constraints (including embargos or quantity restrictions) in the country of destination. If Buyer designates a freight forwarder for shipments, then Buyer and its freight forwarder will be responsible for any failure of Buyer or Buyer’s freight forwarder to comply with applicable import laws and regulations of any country or countries, including those promulgated by the U.S. Office of Foreign Assets Control (OFAC). Seller will provide Buyer‘s designated freight forwarder with required commodity information.
4) Acceptance; Returned Products.
Buyer will inspect all Products immediately upon their delivery and prior to use or resale. Immediately and no later than three (3) days after delivery of a Product, Buyer must give written notice to Seller of any claim by Buyer based upon any shortage, defect or discrepancy of Products sold, and the notice must indicate the basis of the claim in detail. Buyer’s failure to comply with this Section 4 will constitute irrevocable acceptance by Buyer of Products delivered and will bind Buyer to pay to Seller the full price of such Products. Any Products sold will not be returned without Seller's prior written consent and then only in accordance with Seller’s then return policies.
5) Limited Warranty.
a) Subject to the provisions in the Sales Documents, Seller warrants that when Products are delivered at the Delivery Point, Products will materially comply with the specifications for such Products set forth in the Sales Documents; provided, minor deviations acceptable within the trade in quality, quantity, color, range, width, weight, fittings, accessories or design are allowed. (“Limited Warranty”). Buyer must make any Warranty Claim (defined in Section 6(b) below) within twelve (12) months after the delivery date of Products (the “Warranty Period”). The Limited Warranty extends to Buyer only, and not to any resale customer of Buyer or end-consumer, and is non-transferable. In the event of a Product resale by Buyer, Buyer is solely responsible for any and all warranty and other claims resulting from Products and for any representations or warranties made by Buyer to its customers and any end-customers. Buyer will not refer to Seller, including the Limited Warranty, in any manner in connection with its resale of Products.
b) Buyer is solely responsible for proper selection of Products and their use and application, and Buyer has tested Products or otherwise determined their suitability for Buyer’s intended use. In particular, Seller makes no representations or warranties regarding a Product’s fitness for human consumption or use with foodstuffs, products and raw materials. As such, Buyer should not rely on Seller to ensure that Products purchased will meet any standards or specifications, including those relating to health, safety, or particular uses intended by Purchaser.
c) Any depictions, projections, diagrams, illustrations, and other descriptions or other information from Seller or its affiliates, applicable to Products or a Contract, whether included in catalogs or otherwise, are descriptions or approximations only, and do not constitute any specifications, representations, warranties, or guarantees, implicitly or explicitly.
d) Buyer acknowledges that Seller is not the source or manufacturer of Products. As applicable, and to the extent assignable, Seller will upon the request of Buyer pass-through, transfer and assign to Buyer all warranties on the Products from the source or manufacturer. For the avoidance of doubt, Seller will not have any obligations under any warranty from the source or manufacturer, and will not facilitate any warranty claims against a source or manufacturer of Products on behalf of Buyer.
e) EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY PROVIDED IN SECTION 5(a) ABOVE, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, STATUTORY OR OTHERWISE, REGARDING OR RELATING TO PRODUCTS AND SELLER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS AND IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO PRODUCTS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
f) No employee, dealer, distributor, sales representative, or any other person or entity is authorized to offer any different or additional warranties or remedies, or to change the Limited Warranty, without the signature of an authorized officer of Seller.
6) Buyer’s Limited Warranty Claims.
a) Buyer must inspect and test Products for any alleged non-conformities prior to Products’ use. Buyer shall not use any Product which Buyer considers may have potential non-conformities. The Limited Warranty is conditioned upon Buyer following the claims process then in effect, which Seller may change from time to time.
b) Buyer must give Seller written notice of any Products which Buyer alleges do not conform to the Limited Warranty, specifying the alleged non-conformities (each notice, a “Warranty Claim”). Any Warranty Claim must be made within thirty (30) days after Buyer is aware of the alleged non-conformity and, in any event, within the Warranty Period. Seller’s Warranty Claims process may include obtaining from Seller a return authorization number in order to return a Product. If Seller requests it, Buyer will allow Seller to inspect the alleged non-conforming Product, and/or Buyer will return, at its expense, any alleged non-conforming Product to a location designated by Seller for Seller, to verify the claimed non-conformity. Seller will have a reasonable opportunity to evaluate the Warranty Claim, including inspection of Product or component thereof, to determine whether it meets the Limited Warranty.
c) The Limited Warranty expires when, and no claims may be made after, the Warranty Period ends. Any Warranty Claim made after the Warranty Period is not a valid claim.
d) For any Products which Seller determines do not conform to the Limited Warranty, Seller’s sole liability and obligation, and Buyer’s sole and exclusive remedy, will be, at Seller’s choice, to either replace such non-conforming Product or to refund the purchase price.
7) Limitations; Exclusions.
a) SELLER’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO A CONTRACT (INCLUDING SELLER’S BREACH), PRODUCTS OR THE USE (OR INABILITY TO USE) ANY PRODUCTS, WHETHER IN WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, WILL NOT EXCEED THE AMOUNT BUYER PAID TO SELLER FOR THE PARTICULAR PRODUCT AT ISSUE.
b) Seller is not responsible for any injury or damage resulting from the use or application of Products, alone or in conjunction with other products or raw materials.
c) IN NO EVENT WILL SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, REGARDLESS OF THE THEORY OF RECOVERY, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8) Termination or Suspension.
Without limiting Seller’s other rights and remedies, Seller may suspend or terminate performance and delivery, if: (a) Buyer fails to perform or observe any other obligations under the Sales Documents or under other existing or future contracts between Seller and Buyer; (b) there is a change in the control or management of Buyer; (c) Buyer ceases to conduct its operation in the normal course of business; (d) Buyer becomes insolvent or files for bankruptcy or has a bankruptcy proceeding filed against it; or (e) Buyer makes an assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of all or part of Buyer’s property.
9) Indemnity.
Buyer agrees to indemnify, defend and hold harmless Seller and its affiliates, and their respective officers, directors, employees and agents, from any and all claims, actions, suits, damages, liabilities, costs, obligations, and expenses (including attorneys’ fees and expenses) arising out of or relating to: (a) selection, application, use or incorporation of Products; (b) any processing or modification of Products in any manner by Buyer, its employees, agents or customers; (c) claims regarding warnings or failure to warn of dangers related to Products; (d) any violation or failure to comply with applicable laws and regulations, including those pertaining to health and/or safety; (e) intentional or negligent act, or misrepresentation by Buyer, its employees or agents; (f) any breach of warranty or misrepresentation (express or implied) made by Buyer, its employees or agents; or (g) any third party demand, claim or action arising out of or relating to a Contract, Products or any goods with which Products were used or into which Products were incorporated.
10) Insurance.
Buyer will maintain commercial general liability, personal injury and property damage insurance policies, including wrongful death coverage, in reasonable amounts consistent with industry standards with a nationally recognized insurance company.
11) Confidential Information.
All confidential or proprietary information (“Confidential Information”) provided by Seller to Buyer will not be used by Buyer (except as necessary internally for use of Products) and will not be disclosed by Buyer to any person or entity unless the disclosure is agreed to in writing by Seller. Information generally available to the public, through no fault of Buyer or its employees or agents, is not confidential information of Seller.
12) Security Agreement.
Buyer grants Seller a continuing first priority purchase money security interest in all Products sold or delivered to it and to the proceeds of those Products (collectively, “Collateral”) to secure the full payment of the purchase price of Products and all other obligations of Buyer arising out of a Contract. Buyer authorizes Seller to file on Buyer’s behalf all financing statements, continuation statements and other documents necessary or desirable to establish, perfect, maintain, preserve and enforce Seller’s security interest in the Collateral.
13) Force Majeure.
Seller will not be liable, and its performance (and delivery dates and delivery periods) will be deemed extended, for any delays or failure to perform directly or indirectly resulting from or arising out of events and causes beyond its reasonable control or the reasonable control of its suppliers, including: accidents; acts of God; fires and natural calamities (including floods, earthquakes, storms and epidemics); acts, failure to act and omissions of any governmental authority; declared or undeclared wars; terrorism; explosions; strikes or other labor disputes; changes in any law or regulation; or delays in obtaining or the inability to obtain labor, materials, or Products through usual sources at normal prices.
14) Relationship.
Seller is an independent contractor. Nothing in a Contract will be construed as creating a partnership, association or joint venture between the parties. Buyer will have no power or authority to enter into any commitment on behalf of or otherwise bind Seller on any matter including making any representation or warranty on behalf of Seller. No employee of either party will be deemed to be an employee of the other party.
15) Limitation on Actions.
Buyer must commence any action or proceeding that arises out of or relates to a Contract, Seller’s breach of a Contract, or Products within the earlier of: (a) one (1) year after the claim or cause of action has accrued; or (b) the period prescribed by applicable statute of limitation or repose. Any action or proceeding Buyer does not commence within such period will be forever barred. The Sales Documents contain Buyer’s sole and exclusive remedies relating to the Contract and Products regardless of the theory of recovery.
16) Waiver; Assignment; Severability.
Any failure by Seller to exercise any of its rights under a Contract will not be construed as a waiver of such rights. Buyer may not assign a Contract (including by operation of law), or all or any portion of its rights or obligations under a Contract, without Seller’s prior written consent, and any attempted assignment without that consent will be void. If any of the provisions of these Terms or any other Sales Documents are held to be invalid by any court of competent jurisdiction, such provision(s) will be deemed to be severable and these Terms and any Sales Documents will then be construed and enforced in accordance with the remaining provisions.
17) Notices.
All notices, request, consents, claims, demands, waivers and other communications under these Terms or any Sales Documents (each, a “Notice”) will be deemed given if in writing and delivered personally, deposited in the United States mail, certified mail, return receipt requested or sent by FedEx or other recognized national overnight delivery service to the respective addresses of the parties listed in the applicable Sales Document or those other addresses of which either party gives the other party written notice.
18) Choice of Law; Jurisdiction; Venue.
The transaction and Contract, and any matter, dispute or controversy arising out of or relating to the transaction, Contract or Products will be governed by the laws of the State of North Carolina, excluding its conflicts of law principles and the provisions of the 1980 United Nations Convention on the International Sale of Goods are expressly excluded. Buyer and Seller consent and submit to the exclusive jurisdiction and venue of the United States District Court for the Western District of North Carolina and the state courts of North Carolina.
19) Miscellaneous.
A Contract will be binding on, and will inure to the benefit of, the parties and their respective successors, heirs and permitted assigns. Any consent, approval or agreement required or allowed by Seller may be given or withheld by Seller in its sole discretion and must be in writing and signed by an officer of Seller to be effective. Buyer will not have any right of set-off with regard to any amounts owed to Seller, regardless of any dispute or controversy that may arise. As used herein, the word “including”, “include” or “includes” will be exemplary only, and will not be construed as limiting the word or phrase to which it relates. A Contract contains the entire agreement of the parties relating to the subject matter and supersedes all previous and contemporaneous agreements, understandings, usages of trade and courses of dealing, whether written or oral.