Vytalogy Wellness, LLC
Purchase Order Terms & Conditions
1. ENTIRE AGREEMENT
These purchase order terms and conditions (Terms and Conditions) apply to all purchases by Vytalogy Wellness, LLC or any of its affiliates (including but not limited to Jarrow Formulas, Inc., Jarrow Industries, LLC, Natrol LLC, Natrol Industries, LLC, New Wellness Industries II, LLC and New Wellness Industries III, LLC) (Buyer) from any entity (Seller) that receives an order from Buyer to buy, regardless of how the order was given to Seller (Order); provided however, that if Buyer and Seller have any other signed agreement related to the purchase from Seller, the terms of that written agreement or agreements will control. Except as provided in the first sentence of this Section 1, in the event of a conflict between these Terms and Conditions, and those contained in any proposal, acknowledgment, Seller invoice, or other writings, these Terms and Conditions will control. If such other proposal, acknowledgment, invoice or writing contains additional terms in conflict with these Terms and Conditions, said additional terms will not become a part of the agreement between Buyer and Seller unless both parties so agree in writing.
2. TERMS AND CONDITIONS TERMS PREVAIL
THESE TERMS AND CONDITIONS PREVAIL OVER CONTRARY ACKNOWLEDGMENT, EXCEPT ANY SIGNED AGREEMENT AS PROVIDED FOR IN SECTION 1. SELLER’S SHIPMENT OF GOODS OR PROVISION OF SERVICES WILL CONSTITUTE ACCEPTANCE OF THESE TERMS AND CONDITIONS. NOTWITHSTANDING ANY CUSTOM, PRACTICE OR COURSE OF DEALING, BUYER MAY INSIST ON STRICT ADHERENCE TO THESE TERMS AND CONDITIONS. ANY WAIVER BY BUYER OF ANY TERM, CONDITION OR PROVISION WILL NOT BE CONSTRUED TO BE A WAIVER OF ANY OTHER TERM, CONDITION OR PROVISION HEREOF NOR WILL SUCH WAIVER BE DEEMED A WAIVER OF ANY SUBSEQUENT BREACH OF THE SAME TERM, CONDITION OR PROVISION.
3. TAXES
Unless otherwise stated on an Order, the prices stated include all federal taxes or duties and exclude all state and local taxes applicable to an Order on the date of the Order. No charges will be allowed for containers, coating, boxing or other packaging unless otherwise expressly stated in an Order, but damage to any goods not packed to ensure proper protection of said goods will be charged to Seller. Complete packing list must accompany each shipment.
.4. ASSIGNMENT
Seller will not assign an Order or any part thereof, including any payments due or to become due under an Order, without the written consent of Buyer.
5. SHIPPING/ARRIVAL DATE
The shipping and/or arrival date specified is critical and orders will be shipped and work completed within the time specified in an Order, failing which Buyer reserves the right, upon notice to Seller, to cancel an Order or to purchase the described goods or services from a vendor of Buyer choice and charge Seller with all loss or damage occasioned thereby, unless deferred shipment or services have been authorized by a Buyer duly authorized representative.
6. FORCE MAJEURE
Neither Buyer nor Seller will be liable for delay or default in the fulfillment of an Order due to matters beyond the reasonable control of the party charged with performance, including an act of nature, accident, riot, war, act of terrorism, embargo or government interference. During any such delay or default by Seller, Buyer may elect to purchase the described goods or services in an Order elsewhere and, at Buyer sole option, apply such purchases to reduce the quantity of goods or services deliverable under an Order.
7. PRESENCE ON BUYER'S PREMISES
If Seller's performance under an Order requires the presence of Seller, its agents, employees or subcontractors upon the premises of Buyer, Seller will comply with the Federal Occupational Safety and Health Act and all regulations issued thereunder and otherwise will take all necessary precautions to prevent the occurrence of any injury to person or property during the progress of such work. Except to the extent that any such injury is due solely and directly to Buyer negligence, Seller will pay Buyer for any loss which may result in any way from any act or omission of Seller, its agents, employees or subcontractors, and Seller will maintain such Public Liability, Property Damage, and Employee's Liability and Compensation Insurance as will protect Buyer from said risks and from any and all claims under any applicable Worker's Compensation and Occupational Disease Acts.
8. INDEMNIFICATION; LIMITATION OF LIABILITIES
Seller agrees to indemnify, defend and hold Buyer harmless from and against all loss, damages, liability, actions, judgments, costs and expenses, including reasonable attorney fees and costs (including allocable in-house counsel expenses), suffered, incurred or asserted, by or against Buyer, by reason of Seller's breach of a warranty, by reason of Seller's breach of any term or condition of an Order or by reason of a personal injury, including death, or property damage sustained by Buyer or a third party, as a result of an act or omission of Seller, its agents or employees in fulfillment of an Order. Buyer's liability to pay any amount to Seller for any reason shall not exceed the amount Buyer has agreed to pay Seller for the goods or services. BUYER SHALL NOT BE LIABLE TO SELLER FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES OR COMMERCIAL LOSSES ARISING FROM THE PURCHASE OF GOODS AND/OR SERVICES REGARDLESS OF THE CAUSE OF ACTION OR THE FORM OF THE CLAIM FOR DAMAGES, AND EVEN IF BUYER IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES.
9. PROPRIETARY MATERIALS
Confidential or proprietary information of any type, including but not limited to blueprints, drawings, specifications, dies, patterns, tools, business plans, processes and formulations furnished or paid for by Buyer pursuant to an Order, or acquired by Seller from Buyer in any manner while fulfilling an Order, will be and remain Buyer’s property, and will not be reproduced, used for the benefit of or disclosed by Seller to others without Buyer’s prior written consent. Upon completion of an Order or its termination, any such proprietary materials will be delivered to Buyer unless Seller is advised by Buyer to the contrary in writing. Seller will not use confidential or proprietary information acquired during its fulfillment of an Order.
10. WARRANTIES
Seller warrants, if applicable to the item being purchased, that:
A) the described goods in an Order do not infringe any patent, design, trade secret, copyright or trademark, either directly or contributory, including goods made to specifications supplied by or received from Buyer. Seller agrees to defend and indemnify Buyer and hold Buyer harmless against all claims of such infringement upon timely notice from Buyer;
B) goods or services to be delivered hereunder were produced incompliance with all applicable requirements of the Fair Labor Standards Act of 1938 as amended, including specifically Sections 206, 207, 212 and 215, and all regulations and orders of the U.S. Department of Labor issued under Section 14 thereof;
C) the described goods in an Order will comply with all applicable federal, state and local laws and regulations and Seller makes all warranties contained in the Uniform Commercial Code;
D) all food articles, food ingredients and food packaging shipped or delivered to Buyer pursuant to an Order, as of the date of such shipment or delivery, are not adulterated or misbranded with the meaning of the Federal Food, Drug, and Cosmetic Act, as amended, and are not an article which may not, under the provisions of Section 404 or 505 of said Act, be introduced into Interstate Commerce, and are not an article adulterated or misbranded under any applicable provisions of any state or municipal law;
E) all finished goods delivered pursuant to an Order comply at the actual time of delivery to Buyer with the Federal Occupational Safety and Health Act and with the Federal Consumer Product Safety Act, and all applicable provisions thereunder;
F) the goods delivered pursuant to an Order will be: free and clear of all liens, encumbrances and security interests; free from defects in material and workmanship; of merchantable quality; and that they otherwise conform to specifications furnished by Buyer;
G) the goods delivered pursuant to an Order are fit for the particular purposes to which Buyer is to apply them and disclosed to Seller;
H) Seller warrants that it has good title to the Equipment and transfers same to Buyer free of any liens or encumbrances. If the Equipment or any services rendered in connection with the work (Services) are found to be defective in material or workmanship for a period of twelve (12) months from the date of delivery of the Equipment (Warranty Period), then Seller will, at its option and expense, repair or replace such defective Equipment component or Service; and
I) the above warranties are inapplicable to and exclude any defect, damage, or malfunction resulting from (i) normal wear and tear, (ii) misuse, negligence, or modification of the Equipment or Services by Buyer or its agents, (iii) repair service provided by third parties, (iv) failure by Buyer to follow installation/operating manuals or instructions, (v) failure of parts or components or services not provided by Seller, or (vi) any other cause outside Seller’s reasonable control.
Buyer reserves the right to cancel an Order in whole or in part if Seller breaches any of the aforementioned warranties. Payment for goods specified in an Order or acceptance of physical delivery thereof will not constitute an acceptance of such goods. All such goods will be received subject to Buyer acceptance or rejection. If rejected, the goods or work will be returned for credit or replacement, or modified at Seller's risk, and all handling and transportation charges occasioned by the return of the goods will be assumed by Seller.
11. PRICE/QUANTITY
No price changes from those shown on an Order will be accepted unless authorized in writing by the Buyer prior to shipment. Neither the quantity nor quality of the goods delivered by Seller to Buyer will differ from those specified on an Order or any specifications incorporated into an Order, nor will any other modifications of an Order be effective unless such changed quantity or other modification is first authorized by Buyer. Seller will make no shipment of nonconforming goods, whether as an accommodation or otherwise, unless first authorized in writing by Buyer.
12. CANCELLATION
In addition to and without prejudice to Buyer’s right to cancel for any delivery failure, Buyer may terminate an Order at any time prior to delivery of goods covered by an Order. Buyer will have no obligation for cancellation charges for standard stock merchandise. Buyer’s sole liability for cancellations relating to goods manufactured to Buyer unique specifications will be limited to Seller’s actual direct out-of-pocket costs through the date notice of cancellation is received by Seller. In no event will Buyer’s liability to Seller be more than the price on an Order.
13. GOVERNING LAW; VENUE AND ATTORNEYS’ FEES AND COSTS
All disputes related to an Order will be governed by and construed in accordance with the laws of the State of California without regard to any contrary conflicts of law principles. All legal actions arising under an Order will be initiated and maintained in the state or federal courts in Los Angeles, California. Seller and Buyer irrevocably consent to such jurisdiction and venue. The prevailing party in any legal proceeding or arbitration relating to an Order will be entitled to recover its reasonable attorneys’ fees and costs, including allocable in-house legal fees and costs, incurred in connection with such proceeding, and any appeal, as part of the same proceeding.