Terms of Sale
GENERAL TERMS AND CONDITIONS OF SALE
The provisions set forth below, together with any special terms and conditions set forth in any written sales order, contract or quotation from Ciranda Inc., are the terms and conditions upon which Ciranda Inc. ("Vendor") will sell to customer ("Customer"), and are exclusive of any additional or contrary terms and conditions contained in any purchase order or other communication from the undersigned Customer, or any third party. Any inconsistency or conflict between the provisions of these terms and conditions and the terms set forth in any purchase order submitted by Customer, in any invoice generated by Vendor, or in any other document or agreement between Customer and Vendor shall be resolved in favor of the provisions of these terms and conditions.
1. AGREEMENT. Vendor requires a written purchase order be received to process any order plus any special requirements (including labeling, testing) must be given in writing to Vendor at least seven (7) business days in advance of ship date. By acknowledging receipt of Vendor's standard order confirmation or signing Vendor's contract ("Order Confirmation"), Customer agrees to these terms and conditions. Vendor requires written acknowledgment of receipt of the Order Confirmation within two (2) business days. Customer orders cannot be released until such Order Confirmation is received. If Customer has not agreed to these terms and conditions through its execution of an Order Confirmation, Customer's acceptance of delivery, or payment for, or use of the Products will constitute Customer's agreement to these terms. These terms supersede any and all prior oral and written quotations, communications, agreements and understandings of the parties with respect of the sale and delivery of the Products and shall apply in preference to and supersede any and all terms and conditions of any order placed by Customer and any other terms and conditions submitted by Customer. Failure of Vendor to object to terms and conditions set by Customer shall in no event be construed as an acceptance of any terms and conditions of Customer. These terms and conditions may not be modified, supplemented, or waived except in writing and signed by an authorized representative of Vendor. Should any provision of these terms and conditions be illegal or unenforceable, the validity of the remaining terms and conditions shall not be affected thereby.
2. WARRANTY. Vendor warrants that all Products shipped to Customer, as of the date of such shipment, conform to the terms of the applicable Letter of Guarantee, if any, in all material respects, and are not adulterated, or misbranded under the terms of the Federal Food, Drug and Cosmetic Act, 21 USC § 342, as amended, or under any other applicable law and that the Products conform to quantity, quality and description with the particulars stated in the applicable purchase order in all material respects (the "Warranty"). The Products shall comply with Vendor's Technical Data Sheet(s); the then-current version of which shall be deemed for all purposes to be terms of each Order. California's Proposition 65 is excluded from the scope of this Warranty because Vendor is an ingredient supplier and compliance with the warning provisions generally requires an exposure assessment for the final consumer product. OTHER THAN THE WARRANTY, VENDOR MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, RELATING TO THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
3. LIMITATIONS ON WARRANTY. VENDOR SHALL NOT BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES RELATING TO THE PRODUCTS. CUSTOMER HEREBY WAIVES ANY CLAIMS THAT THESE EXCLUSIONS DEPRIVE CUSTOMER OF AN ADEQUATE REMEDY. THE LIABILITY OF VENDOR RELATING TO THE PRODUCTS AND/OR THESE TERMS AND CONDITIONS SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO ONE MILLION AND 00/100 DOLLARS ($1,000,000.00).
4. PRICES. Sale and contract prices shall be valid for forty-eight (48) hours from the date of the sales order or contract. Typographical and other errors in stated prices are subject to correction. In the event of significant cost increase of the Product(s) occurring during the performance of the contract resulting from any change in Law, including increased tariffs, or Freight and Shipping cost increases enacted after the date of this Agreement, the contract sum and contract requirements shall be equitably adjusted upon written agreement of the Parties. A change in cost of a Product(s) shall be considered significant when the cost of an item increases three percent between the date of this contract and the expected delivery date.
5. TESTING, FEES AND LIMITATIONS. Any changes and rushes to orders must be authorized by Vendor and will be subject to the following fees: (i) all rush orders will incur a $175.00 fee per pick up location, (ii) a $100.00 fee per change to a confirmed order, (iii) special labeling fee minimum $100.00 per warehouse and (iv) any orders not picked up within five (5) business days of a scheduled pick up will be deemed to be cancelled and subject to a restocking fee equal to the greater of 15% of the invoice amount and $100.00. All orders will include a Certificate of Analysis (COA), packing slip and invoice. COA will contain parameters reported by the manufacturer. Any specific product requirements or testing needed by Customer outside of the regularly reported parameters are the Customer's responsibility. For direct shipments, Customer must take possession of shipment containers including but not limited to; flexi tanks, 20', 40' standard or reefer at the time the container becomes available. If Customer is unable to do so, resulting in charges, these charges will be borne by the Customer.
6. TAXES AND TRANSPORTATION CHARGES. Vendor's prices do not include any privilege, occupation, personal property, value-added, sales, excise, use or other taxes, and Customer shall be liable for all such taxes, whether or not invoiced by Vendor. Freight and insurance quotations are merely estimates based upon currently prevailing rates and, because Vendor has no control over such quotations, any variations in the actual rates at the time of shipment shall be charged to the Customer's account. Vendor may add a charge for export packing to the price, and Vendor reserves the right to impose an additional reasonable charge for packing and/or packaging to comply with Customer's specifications or instructions.
7. PAYMENT TERMS. Unless otherwise specified by Vendor in writing, payment terms are as noted on the sales order or contract without exception, unless the terms are Cash Against Documents or Letter of Credit in which case Vendor is paid by Customer prior to receiving the Product. If Vendor determines that Customer's financial condition or credit rating does not justify a sale on credit, Vendor may require advance payment, a personal guarantee and/or may ship C.O.D. If Customer contends that any invoice is incorrect, Customer must so notify Vendor within seven(7) business days after receipt of the invoice. If Customer does not so notify Vendor, Customer forever waives the right to dispute the accuracy of the invoice. Any payment not made when due shall accrue a late charge of 1-1/2% per month. Payment must be made to Vendor's office in Hudson, Wisconsin. Customer shall reimburse Vendor for any expenses, including reasonable attorneys' fees, incurred in the collection of any delinquent account or enforcing its rights hereunder.
8. FORECASTS. Within a reasonable time after the Start Date of any contract, but in no event more than thirty (30) days prior to each calendar quarter, and on a calendar quarterly basis thereafter, Customer may provide a non-binding rolling forecast of purchases of the Product for the next two (2) calendar quarters. Such forecasts shall be for Vendor's convenience and for planning purposes and will not exceed more than ten percent (10%) of the then current contracted quantities.
9. DELIVERY AND RISK OF LOSS. Delivery will be FCA Seller's warehouse or other point of origin (Incoterms® 2020). Vendor shall have no further responsibility for the Products, and all risk of damage to or loss or delay of the Products shall pass to Customer, upon their delivery to the FCA point. Vendor shall have the right to determine the method of shipment and routing of the Products, unless otherwise specified by Customer. For International orders, all Products are sold FCA Vendor's warehouse (Incoterms® 2020). All risk of loss shall pass to Customer when the Products are delivered to the port of destination. Shipment of Products held by reason of Customer's request or inability to receive Products will be at the risk and expense of the Customer. Customer assumes sole responsibility for ensuring that Product supplied by Vendor conforms to all applicable laws and regulations of country of import. Unless otherwise specified by Vendor in writing, Customer shall pay such delivery charges as Vendor may establish from time to time, which will be included on Customer's invoice. In the event transportation arranged by Vendor results in damage to the Product or any other quality issue, the following shall occur: (i) Vendor must be notified immediately, (ii) damage or other issues must be documented on delivery paperwork and signed by receiver and driver and issued to Vendor, (iii) pictures of damage or other issues must be issued to Vendor and hidden damage must be reported as above within 48 hours and documented. Failure to comply with the foregoing requirement will result in claim rejection. Delivery in a manner directed by Customer shall be at Customer's sole cost and expense. Vendor shall not be liable for damages caused by delays in shipping or delivery for any reason whatsoever. Delay in the delivery of the Products shall not relieve Customer from the obligation to accept and pay for such Products. Orders not picked up within 48 hours of scheduled pick up will be subject to fees, including and not limited to administrative costs; restocking fees; warehouse fees. Vendor is not responsible for unavailability of Product once it has been restocked or reduced shelf life due to late pick up by Customer.
10. VARIATIONS. Customer agrees to accept a shipment quantity that is plus or minus a quantity equal to ten percent (10%) of the order quantity requested by Customer. Customer will be invoiced for the quantity that is actually shipped within these guidelines and Customer agrees to pay the invoice pursuant to the terms and conditions set forth in Paragraph 5 above.
11. FORCE MAJEURE. Fulfillment of this order is contingent upon the availability of materials. Vendor shall not be liable for any delays in delivery, or for non-delivery or nonperformance, in whole or in part, caused by the occurrence of any contingency beyond the control of either Vendor or suppliers of Vendor including, but not limited to: fires, destruction of plant; strike; lockout; labor disturbances; pandemic; epidemic; flood; accident; delay in transportation; war; insurrection; terrorism; act of God; riot; blockage; embargo; raw materials shortages; laws, regulations and requirements of the United States, or the country in which or through which delivery is to be made or any state or territory thereof, or of any governmental subdivision of any thereof; restraining orders for decrees of any court or judge; or any other cause similar or dissimilar to those herein before enumerated.
12. ACCEPTANCE OF ORDERS. Orders and offers to purchase received by or on behalf of Vendor are subject to acceptance only at its office in Hudson, Wisconsin.
13. CANCELLATION, COUNTERMAND AND RETURN OF GOODS. Purchase Orders and Contracts cannot be cancelled or deferred by Customer, except with the prior written consent from the Vendor. Purchase Orders authorized by Vendor to be cancelled shall be returned at Customers' sole cost and expense and at the direction of Customer and shall be subject to a restoking fee equal to the greater of 15% of the invoice amount and $100.00.With regard to Contracts, in order to request termination or defer a Contract, Customer shall provide a sixty (60) day written notice to Vendor. Upon acceptance of termination by Vendor, Vendor shall then be entitled to reasonable termination charges equal to a percentage of a Contract price which reflects the amount of work performed prior to termination plus actual direct costs from termination. Upon a Termination for Convenience, Customer will pay to Vendor (i) the price for finished and completed Goods that conform to the requirements of the Contract and delivered to Customer and (ii) any floor stock and product that Vendor has in inventory or on a non-cancellable contract not yet delivered including any Goods in transit for Customer within the 30-day termination period.
14.SOLVENCY. Customer represents to Vendor that Customer is solvent and able to pay its obligations in the ordinary course of business.
15. NON-DISCLOSURE OF CONFIDENTIAL AND/OR PROPRIETARY TECHNICAL INFORMATION. Customer shall not disclose any technical/proprietary information furnished by Vendor or acquired by Customer or by virtue of or as a result of the implementation of any purchase order to any person, firm or body or corporate authority and shall make all endeavors to ensure such technical/proprietary information is kept confidential. Confidential technical/proprietary information may include without limitation, technical know-how, trade secrets, technical data, new product strategy, new products or processes, formulae, recipes, specifications, inventions, research projects, customer lists, pricing, pricing policies, operational methods, financial information, marketing information, supplier and manufacturing information and others business affairs. Title to such technical/proprietary information imparted/supplied by Vendor to Customer shall at all times remain the absolute property of Vendor. The information shall be considered confidential / technical and proprietary information whether it is enclosed orally or in writing, or whether learned through observation or documentation.
16. INDEMNITY. Customer acknowledges the Product supplied under this agreement is intended for further manufacturing. Furthermore, as an ingredient supplier, the finished uses and application of the Product supplied are unknown to Vendor and therefore Customer will defend, indemnify and hold harmless Vendor from and against all damages, losses, claims and expenses, including attorneys' fees, incurred by Vendor as a result of (a) any breach by Customer of any of its obligations under these terms and conditions of sale, (b) any claim relating to any quality, safety or condition of or inherent defect introduced into the Products after the time of delivery to Customer, c) arising out of or in connection with Customer's use or application of the Products after the time of delivery to the Customer or (d) any returns or cancellations authorized by Vendor, including the profit on any part of the order that is cancelled or returned.
17. APPLICABLE LAW. These terms and conditions shall be deemed to have been made in the State of Wisconsin and shall be governed by, construed and interpreted in accordance with the laws of the State of Wisconsin. With respect to any dispute, controversy or claim arising out of or relating to these terms and conditions or the relationship between the parties, Vendor and Customer agree and consent to jurisdiction of and exclusive venue in the United States District Court, Western District of Wisconsin, St. Croix County.
18. ATTORNEYS' FEES. If an action is instituted in any court involving these terms and conditions and/or any Products sold hereunder, The prevailing party shall have the right to collect from the other party its reasonable costs and necessary disbursements and attorneys' fees incurred in enforcing this Agreement.