Terms and Conditions
Please note that your order is subject to the terms and conditions set forth below in this sales contract (the “Contract”). This Contract constitutes all of the terms of agreement and is binding between you (the “Buyer”) and Elixr Industries LLC (the “Seller”) with respect to your order for the manufacture and packaging of goods (the “Goods”) that Buyer places with Seller pursuant to the purchase order submitted by Buyer and accepted by Seller (the “Order”) identified above. No additional or different terms stated orally or in any other document other than the Order are agreed to or binding on Buyer or Seller. Buyer and Seller agree to accept and be bound by the Order and the terms and conditions set out below. Special terms and conditions described on the Order supersede the Contract. The Buyer’s full payment or a deposit payment indicates acceptance and agreement to this Contract.
1. Price and Payment. Prices for the Goods are as stated on the face of the Order. All prices are 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. 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 and label production does not coincide with Goods production. 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. All sales are final.
2. Delivery of Goods. Delivery terms for Goods purchased hereunder shall be 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. In case of Force Majeur (as described in Paragraph 10) or any circumstance caused directly or indirectly by Buyer, Seller shall not guarantee 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 (materials obtained for or by Buyer and Goods in process or finished) stored in Seller’s facility, due to Buyer delays (due to decision making, labels not being ready, etc) will be billed at a rate of $100.00 per pallet per week and $50 for goods that take up less than ¼ of a pallet, unless otherwise agreed upon. Any inactive inventory 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.
Not more than five (5%) of Goods delivered can have cosmetic defects such as dented capsules, broken capsules and crooked labels. Should such defects happen Seller is to compensate Buyer for same amount of Goods by adding those to next order. However, Buyer cannot throw away any Goods. Upon prior agreement with the Buyer, all defective Goods need to be returned to an address specified by Seller. Shipping cost is to be paid by Buyer. Seller will reimburse shipping fees to Buyer after inspecting goods. Buyer nor Seller is to pay no storage and no handling fees regarding those Goods.
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 two (2) business days of receipt of the Goods by Buyer. Any other claim for breach of the warranty stated in Paragraph 11 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 Goods 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. Labels. Should Buyer be late in delivering labels and Goods have to be put back on the line to be labeled, Buyer agrees to pay an additional setup fee of $1,000.00.
7. Buyer’s Responsibility for Goods. Except for a breach by Seller of the Warranty in Paragraph 11, 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.
8. Raw Materials Supplied by Seller. Unless otherwise agreed to and expressly provided for in the Order, when Seller supplies raw materials for manufacture into Goods for sale, distribution or consumption in California, Seller shall calculate levels of contaminants in the daily dose stated on label and determine whether the dose meets all requirements of California’s Safe Drinking Water and Toxic Enforcement Act of 1986 (commonly known and referred to as Proposition 65, “Prop 65” herein). Buyer agrees to adjust dosage and/or change labels as needed to comply with Prop 65, as advised by Seller based on testing performed by Seller. Buyer acknowledges its responsibility to comply with Prop 65 and agrees to accept Sellers guidance and advice as required to achieve such compliance. Should the Goods not meet Prop 65 thresholds at the dosage levels on the labels proposed by Buyer, Buyer agrees that such goods will not be sold or otherwise distributed in California or that it will label all such Goods sold or otherwise distributed in the state of California with the warning required under Prop 65, and shall cause Prop 65 required warnings to be prominently displayed to all California internet on-line buyers with California IP addresses, whether sold directly by Buyer or distributors of Buyer. Buyer agrees that IP detection will be utilized on their own and their distributor’s websites in order to identify California buyers for purposes of displaying the required warnings. Additionally, Buyer represents to Seller and agrees to ensure that any dosage recommendation will not cause overdose or adverse reactions in individuals, including but not limited to vitamins or substances that may 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. Raw Materials Stored at Seller Facility. From time to time our customers request us to buy and store raw materials for them, to be used in production of their Goods. We can do so with the following conditions:
We can accept or reject storing raw materials for any reason.
We can terminate storage of raw materials at any time for any reason.
Although most of our locations are airconditioned, we do not guarantee any specific temperature.
Raw materials that we store for you are NOT insured.
You can simply call your insurance company and ask them to extend insurance for raw materials stored at 3rd party locations, then name us in the insurance policy. Should you not want to bother with the insurance policy you bear all the risk of storing the material with us.
We do not accept any liability if the raw material is either damaged due to fire, flood or other mishaps.
We charge a storage fee of $90 per pallet per month. If the material does not fill a pallet, we charge you $50 per month.
You agree we can dispose of the raw material after storing it for over 90 days without you having us use it or if it fails and you do not pick it up for whatever reason.
We will dispose of the raw material after 90 days at a charge of $100 per 50 lbs.
10. Delay: Force Majeur. Delivery dates are approximate, dating from the receipt of all engineering and manufacturing information, and Seller shall have no liability to Buyer for Seller’s delay or default in delivery due to strikes, secondary boycotts, riots, wars, accidents, fires, floods, explosions, vandalism, government embargoes, priorities or regulations, transportation delays, shortage of labor, fuel, materials, supplies, power transportation facilities or tooling capacity or other similar causes beyond Seller’s reasonable control. Under no circumstances shall Seller have any liability for penalties or other consequential damages of any kind resulting in whole or part from Seller’s delay in delivering or failure to deliver any Good to Buyer as agreed if caused by Force Majeur.
11. 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. 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.
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. 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 GOODS, REGARDLESS OF WHETHER SUCH LIABILTY IS BASED IN TORT, CONTRACT OR OTHERWISE AND WHETHER OR NOT SUCH LOSS IS FORESEEABLE.
12. 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.
13. Indemnification. 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 11 above.
14. Miscellaneous. This Contract and the associated Order 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. Any modification to this Contract or the associated Order must be clearly designated as such and must be in writing and signed by both parties.
15. Jurisdiction and Disputes. This Contract will be governed by and construed and enforced in accordance with the laws of the State of New York. In the event of any controversy or claim arising out of or relating to this Contract, or a breach thereof, Buyer and Seller may mutually elect to first attempt to settle the dispute by mediation, administered by the American Arbitration Association under its Mediation Rules. If settlement is not reached within forty-five (45) days after submission for mediation, any unresolved controversy or claim shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The number of arbitrators shall be one. The place of arbitration shall be King’s County NY. New York law shall apply. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. BUYER AND SELLER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE PERFORMANCE UNDER OR ENFORCEMENT OF THIS AGREEMENT.
16. Agreement Binding on Successors. The provisions of this Contract will be binding upon and inure to the benefit of each the Buyer and the Seller, and their respective heirs, administrators, successors and assigns. Neither the Buyer nor the Seller may assign this Contract without the prior written consent of the other party. Such assignment is invalidated if made in contravention of this term.
17. Waiver. No waiver by either the Buyer and the Seller of any default shall be deemed a waiver of any prior, contemporaneous or subsequent default of the same or any other provision of this Contract.
18. Severability. If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision, and such invalid term, clause or provision shall be deemed to be severed from this Contract.
19. Read and Understood. Buyer and Seller acknowledge that it has read and understand this Contract and shall be bound by its terms and subject to its conditions.
20. Entire Agreement. This Contract supersedes all previous and contemporaneous communications and understandings, whether oral or written, and constitutes the sole and entire agreement between the Buyer and the Seller pertaining to the subject matter hereof.
21. Construction. The Buyer has been represented by counsel, or has had the opportunity to be represented by counsel, in connection with this Contract and, accordingly, any rule of law or any legal doctrine that would require interpretation of any claimed ambiguities in this Contract against the drafting Seller has no application and is expressly waived.
22. Duly Authorized Representative. The Buyer represents and warrants that its representative whose name appears on the Order is duly authorized by all necessary and appropriate corporate actions to execute this Contract.
<REMAINDER OF PAGE LEFT INTENTIONALLY BLANK>