(a) These terms and conditions of sale (“Terms”) are the only terms which govern the sale and/or sample shipping of the product (“Product”) by Natuera Florida, Inc. (“Seller”) to the buyer (“Buyer”); provided, that, if a written contract signed by both parties is in existence covering the sale of the Product, the provisions of said contract shall prevail to the extent they are inconsistent with these Terms.
(b) The accompanying quotation, confirmation of sale and/or invoice, as applicable (the “Confirmation” and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
(c) If samples of the Products are reasonably requested by Buyer, then Seller may provide Buyer with reasonable sample amounts of Products promptly upon Buyer’s request. Products samples shall be bound by the terms and conditions set forth herein.
- Delivery. The Product will be delivered within a reasonable time after the receipt of Buyer’s purchase order or sample request, subject to availability. Seller shall not be liable for any delays, loss or damage in transit. Unless otherwise agreed in writing by the parties, Seller shall deliver the Product to the location specified by Buyer (the “Delivery Point”) using Seller’s standard methods for packaging and shipping.
- Non-Delivery. Seller shall not be liable for any non-delivery of Product (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within five (5) days of the date when the Product would in the ordinary course of events have been received. Any liability of Seller for non-delivery of the Product shall be limited to replacing the Product within a reasonable time or adjusting the invoice respecting such Product to reflect the actual quantity delivered.
- Shipping Terms. Unless otherwise agreed by Seller in the Confirmation, delivery shall be made FOB Origin, freight prepaid. Seller shall make delivery in accordance with the terms on the face of the Confirmation.
- Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Product at the Delivery Point.
- Amendment. These Terms may only be amended in a writing signed by an authorized representative of each party.
- Inspection of Product and Refunds and Returns Policy.
(a) Buyer shall inspect the Product within five (5) days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Product unless it notifies Seller in writing of any Nonconforming Product during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Order” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents, or (iii) Buyer receives product(s) in container(s) with visible damage.
(b) IN ORDER TO SAFEGUARD THE COMPLIANCE OF ITS PRODUCTS WITH APPLICABLE LAW, SELLER ONLY ACCEPTS THE RETURN OF PRODUCTS THAT ARE UNOPENED AND UNUSED IN THE EVENT OF A NONCONFORMING ORDER. IN ORDER FOR SELLER TO ACCEPT THE RETURN OF PRODUCTS AND PROCESS REFUNDS OR PRODUCT CREDIT FOR NONCONFORMING ORDER, BUYER MUST INFORM SELLER WITHIN FIVE (5) BUSINESS DAYS OF THE OCCURRENCE OF A NONCONFORMING ORDER AND SHIP, AT ITS SOLE EXPENSE AND RISK OF LOSS, THE NONCONFORMING PRODUCT TO SELLER IN ACCORDANCE WITH ITS INSTRUCTIONS WITHIN TEN (10) BUSINESS DAYS.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 7(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Order. Except as provided under Section 7(b), Buyer has no right to return Product purchased hereunder to Seller nor Request a refund from Seller for any such Products.
- Price. Buyer shall purchase the Product from Seller at the price (the “Price”) set forth in Seller’s published price list in force as of the date that Seller accepts Buyer’s purchase order. All Prices are exclusive of all sales, use and other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes.
- Payment Terms. Buyer shall pay all invoiced amounts due to Seller on receipt of Seller’s invoice. Buyer shall make all payments hereunder by wire transfer, corporate check or money order and in US dollars. Buyer 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. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
- Limited Warranty.
(a) Seller warrants to Buyer that for a period of 12 months from the date of production of the Product (“Warranty Period”), such Product will conform to the applicable certificate of analysis (“COA”) and the labeling of the Product.
(b) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 10(a), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCT, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(c) Seller shall not be liable for a breach of the warranty set forth in Section 10(a) unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within ten (10) days of the time when Buyer discovers or ought to have discovered the defect; (ii) Buyer (if requested by Seller) returns the Product to Seller’s place of business; and (iii) Seller reasonably verifies Buyer’s claim that the Product is defective.
(d) Seller shall not be liable for a breach of the warranty set forth in Section 10(a) if: (i) Buyer makes any further use of such Product after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, handling or use of the Product; or (iii) Buyer alters such Product without the prior written consent of Seller.
(e) Subject to Section 10(c) and Section 10(d), with respect to any such Product during the Warranty Period, Seller shall, in its sole discretion, either: (i) replace such Product, or (ii) credit or refund the price of such Product provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Product to Seller at Seller´s facilities as instructed by Seller.
(f) THE REMEDIES SET FORTH IN SECTION 10(e) SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 10(a).
- Limitation of Liability.
(a) IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCT SOLD HEREUNDER.
- Indemnification. Buyer shall indemnify, defend and hold harmless Seller and its directors, officers, employees, agents, independent contractors, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party, relating to any claim of a third party or Seller arising out of, resulting from or occurring in connection with: (a) Buyer’s use of the Product purchased from Seller; (b) Buyer’s negligence, willful misconduct, breach of this Agreement; (c) Buyer’s violation of Applicable Law; or (d) any claims made by Buyer with respect to any product containing the Product.
- Compliance with Law. Buyer shall comply with all federal, state and local laws, regulations, rules and orders applicable to Buyer or its business (“Applicable Law”). Buyer shall maintain in effect all licenses, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
- Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of these Terms; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
- Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right or remedy arising from this Agreement shall operate as a waiver thereof. No single or partial exercise of any right or remedy hereunder precludes any other or further exercise thereof or the exercise of any other right or remedy.
- Confidential Information. All non-public, confidential or proprietary information of Seller, including, but not limited to, specifications, samples, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, in any format, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Agreement, is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section.
- Force Majeure. Any delay or failure of Seller to perform its obligations under this Agreement will be excused to the extent that the delay or failure was caused directly by an event beyond such Party’s reasonable control, without such Party’s fault or negligence and that by its nature could not have been foreseen by such Party or, if it could have been foreseen, was unavoidable (which events may include acts of God, natural disasters, embargoes, explosions, riots, wars, acts of terrorism, epidemics or pandemics, governmental orders or actions, strikes, labor stoppages or slowdowns or other industrial disturbances, shortage of adequate power or transportation facilities).
- Assignment. Buyer shall not assign this Agreement without the prior written consent of Seller. Any purported assignment in violation of this Section is null and void. No assignment relieves Buyer of any of its obligations under this Agreement.
- Governing Law; Jurisdiction. All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the State of Florida without giving effect to any choice or conflict of law provision. Any suit, action or proceeding arising out of this Agreement shall be instituted in the courts of the State of Florida in Broward County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
- Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
- Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Sections 10, 11, 12, 14 and 16.