These terms will be effective July 27, 2022
These Terms and Conditions of Sale (these “Terms”) govern the sale by Vital Pharmaceuticals, Inc., and its affiliates and agents (collectively, "Seller"), of Seller’s products or materials (collectively, the “Products”) to the buyer, and its affiliates and agents (collectively, “Buyer”). If a written contract signed by both parties is in existence covering the sale of the Products covered hereby (an “Agreement”), the terms and conditions of that Agreement shall prevail to the extent they expressly and directly contradict any terms or conditions of these Terms. Any additional or conflicting terms or conditions provided by Buyer, whether or not material, shall not, in any manner by implication, waiver, or otherwise, govern the relationship between Seller and Buyer. 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 or any Agreement. Any waiver, modification or amendment of these Terms only shall be effective as against Seller only if contained in a written instrument duly executed by Seller. Acceptance of any purchase order (“P/O”) between Seller and Buyer is specifically conditioned upon these Terms and any invoice provided to Buyer by Seller (“Invoice”). Fulfillment of any P/O does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
Seller's obligation to deliver the Products to Buyer may be conditioned upon Seller’s receipt of full, cleared payment.
3. SHIPMENTS AND DELIVERY
- Shipment dates are based upon Seller’s sole judgment subject to production limitations and schedules; thus, shipment dates are not guaranteed.
- All sales are F.O.B. Seller’s warehouse. Delivery shall be deemed made upon the release of the Products to Buyer at the destination identified on any Invoice (the “Delivery Point”), at which point all risk of loss for the shipment shall pass to Buyer. Buyer is solely responsible for notifying the carrier as to any damage to or loss in transit of the Products. As collateral security for the payment of the purchase price of the Products, Buyer hereby grants to Seller a lien on, and security interest in, and to all right, title and interest of Buyer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Florida Uniform Commercial Code.
- Any claim by Buyer for shortages, discrepancies and/or damages related to the Products upon delivery (“Claim”) shall not be accepted by Seller unless the Claim is (i) received by Seller in writing within forty-eight (48) hours after delivery of the Products and (ii) accompanied by a reference to Seller’s shipping number (PRO) as noted on Seller’s notice or receipt of delivery (the “Delivery Receipt”). Seller shall be given a reasonable opportunity to inspect and confirm any Claim. Buyer’s use of the Products prior to such inspection and confirmation by Seller shall constitute acceptance of the Products and waiver of any Claim related thereto.
- Seller, in its sole discretion, without liability or penalty, may make partial shipments of the Products to Buyer. Each such partial shipment shall constitute a separate sale, and Buyer shall pay for the units shipped as set forth in these Terms whether such shipment is in whole or partial fulfillment of the corresponding P/O.
- If for any reason Buyer fails to accept delivery of any of the Products on the date fixed on the Delivery Receipt, or if Seller is unable to deliver the Products to the Delivery Point on such date because of any action by Buyer, including that Buyer has not provided appropriate instructions, documents, licenses, or authorizations: (i) risk of loss to the Products shall pass to Buyer; (ii) the Products shall be deemed to have been delivered; and (iii) Seller, at its option, may store and insure the Products until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including storage and insurance).
- The quantity of any installment of the Products as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery, unless Buyer provides to Seller conclusive evidence proving the contrary.
- Seller shall not be liable for any non-delivery of the Products (even if caused by Seller’s negligence), unless Buyer gives written notice to Seller of the non-delivery within 14 days of the date when the Products would have been delivered in the ordinary course of events.
- Any liability of Seller for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or adjusting the corresponding P/O to reflect the actual quantity delivered.
- If Seller delivers to Buyer a quantity of Products of up to 25% more or less than the quantity set forth in the P/O, Buyer shall not be entitled to object to or reject the Products or any portion of them by reason of the surplus or shortfall and shall pay for the Products the price set forth in the P/O adjusted pro rata.
- Any Invoice shall be priced in accordance with Seller’s prices in effect on the date of shipment.
- Any Invoice shall be priced in accordance with Seller’s prices in effect on the date of shipment.
- Payment for all shipments shall be made by Buyer against any Invoice within thirty (30) days from the date of invoice, terms net cash, unless otherwise stated on the face thereof. All payments not made by the due date shall bear interest at a rate of one- and one-half percent (1.5%) per month on the unpaid balance. Buyer shall reimburse and indemnify Seller for any costs of collection incurred in collecting any past due sums, in whole or in part, including court fees, out of pocket expenses, fees of collection agencies, and reasonable attorneys’ fees as provided in Section 18.
- If Buyer fails to fulfill the terms of payment, Seller, in its sole discretion, without liability or penalty, (i) may defer, delay, or cancel all further delivery of the Products to Buyer, and/or (ii) may immediately terminate, for cause, any agreement between Seller and Buyer.
- Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any Claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
6. RETURN AND REJECTION POLICY
- Buyer may return or reject Nonconforming Products within ten (10) days of delivery (the “Inspection Period”). However, no Products may be returned or rejected without Buyer first obtaining from Seller a return authorization number (the “RMA”). The RMA number must be referenced on Buyer’s return or rejection. Buyer shall be responsible for the shipping costs of any return or rejection, unless stated otherwise in writing by Seller. Any Authorized Return shall be reviewed by Seller prior to the issuance of any replacement, credit, or refund, as set forth below. Seller, at its sole discretion, may charge a restocking fee of twenty-five percent (25%) for any rejections and returns that are not authorized by Seller in writing. An “Authorized Return” means any return or rejection of Nonconforming Products for which Buyer provides timely notice and furnishes such written evidence or other documentation as reasonably required by Seller.
- Buyer shall be deemed to have accepted the Products unless it both (i) notifies Seller in writing of any Nonconforming Products during the Inspection Period and (ii) furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Products” means only the following: the Products delivered are different than those identified in the P/O, the Products are expired or will expire within less than 90 days after the date the Products were delivered to Buyer, and/or the Products’ label or packing incorrectly identifies the contents therein. For the avoidance of doubt, “Nonconforming Products” do not include discontinued Products.
- If directed by Seller in writing related to an Authorized Return, Buyer shall ship, at Buyer’s expense and risk of loss, the Nonconforming Products at issue to Seller’s offices in Florida or any other destination reasonably selected by Seller. Upon Seller’s receipt of such shipment and confirmation of an Authorized Return, Seller shall remedy the matter by, in its sole discretion, either (i) replacing the Nonconforming Products at issue at Seller’s expense and risk of loss, or (ii) issuing to Buyer a credit or refund of the price of the Nonconforming Products at issue, as well as of any reasonable shipping and handling expenses incurred by Buyer in connection with the return shipment at issue. If Seller exercises its option to replace Nonconforming Products, Seller shall ship the replacement products to the original Delivery Point.
- BUYER ACKNOWLEDGES AND AGREES THAT THE REMEDIES SET FORTH IN SECTION 6(C) ARE BUYER’S SOLE AND EXCLUSIVE REMEDIES AND SELLERS ENTIRE LIABILITY FOR THE DELIVERY OF NONCONFORMING PRODUCTS. EXCEPT AS PROVIDED UNDER SECTION 6(C), ALL SALES OF THE PRODUCTS TO BUYER ARE MADE ON A ONE-WAY BASIS AND BUYER HAS NO RIGHT TO RETURN ANY PRODUCTS PURCHASED FROM SELLER.
7. DISCONTINUED PRODUCTS
Discontinued Products are sold as-is; they are non-returnable, non-refundable, and cannot be exchanged for alternative products. All sales of discontinued Products are final.
8. NO OBLIGATION OR WARRANTY REGARDING PRODUCT LABELS
- The Products may bear Seller's standard respective labels, which Seller reserves the right to change from time to time in its sole discretion. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER REGARDING THE CONFORMITY OF ITS PRODUCT LABELS TO ANY PARTICULAR OR SPECIAL REQUIREMENTS OF LAW THAT MAY BE APPLICABLE WITHIN ANY JURISDICTION WHERE SELLER'S PRODUCTS MIGHT BE SOLD OR RESOLD.
- It shall be the sole responsibility of Buyer to ensure that labeling of the Products meets any and all particular or special requirements of law of any jurisdiction where Buyer might sell or resell the Products. Unless otherwise specifically agreed in writing signed by a duly authorized representative of Seller, Seller shall have no obligation to label or re-label the Products in any particular or special way.
9. NO EXPRESS OR IMPLIED WARRANTIES
SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE PRODUCTS AND HEREBY DISCLAIMS ANY AND ALL SUCH REPRESENTATIONS AND WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, OR 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.
10. LIMITATION OF DAMAGES
- SELLER SHALL NOT BE LIABLE TO BUYER FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR INDIRECT DAMAGES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, WARRANTY, OR OTHERWISE, INCLUDING ANY LOST PROFITS, LOST REVENUES, OR LOST SAVINGS, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE, REGARDLESS OF WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- IN NO EVENT SHALL THE AGGREGATE DAMAGES OR OTHER LIABILITIES OF SELLER TO BUYER, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, WARRANTY OR OTHERWISE, EXCEED THE PURCHASE PRICE PAID BY BUYER TO SELLER FOR THE PRODUCTS IN RESPECT OF WHICH SUCH ALLEGED DAMAGES AND LIABILITIES ARE MADE.
- AS SET FORTH IN SECTION 6, ALL CLAIMS FOR DEFECTS MUST BE PRESENTED TO SELLER IN WRITING WITHIN TEN (10) DAYS AFTER DELIVERY TO BUYER. FAILURE OF BUYER TO GIVE SUCH NOTICE SHALL CONSTITUTE A WAIVER BY BUYER OF ALL DAMAGES AND LIABILITIES IN RESPECT THEREOF. FAILURE TO COMPLY WITH THE FORGOING AND OTHER PROVISIONS IN SECTION 6 SHALL INVALIDATE ANY CLAIM FOR DEFECTS IN THE PRODUCTS BY BUYER.
Buyer assumes all risk and liability for loss, damages, or injury to persons or to the property of Buyer or others arising out of the use or presence of the Products purchased hereunder. Buyer agrees to defend, indemnify, and hold harmless Seller against any liability, damages, losses, costs, and expenses in connection with any suit or claim (“Claim”), including loss of use, loss of profits, damages, or injuries to persons or property, arising out of or relating to any use of the Products purchased by Buyer, Buyer’s customers, or other third parties. Buyer shall notify Seller in writing immediately upon learning of any Claim. However, failure to notify the Seller of any Claim will not relieve the Buyer from any liability or obligation under this Section 11 or otherwise. Seller may participate in the settlement, negotiation, and defense of any Claim and, at its option, may assume the defense of any Claim by giving written notice to Buyer. Buyer may not settle any Claim if such settlement (a) does not fully and unconditionally release Seller from all liability relating thereto or (b) adversely impacts the exercise of the rights granted to Seller under these Terms or the Agreement, unless Seller otherwise agrees in writing.
Seller may cancel any P/O at any time if Buyer fails to perform or observe any term or condition in these Terms by giving Buyer ten (10) days written notice of cancellation. Cancellation hereunder shall not prevent Seller from pursuing any other remedy available to Seller by law or from seeking all such damages to which Seller may be entitled.
13. RESTRICTIONS ON USE OF SELLER’S INTELLECTUAL PROPERTY
Seller retains all right, title, and interest in all of its trade names and trademarks, both registered and unregistered, patents, copyrights, trade secrets, and other intellectual property rights, including all intellectual property rights to any of the Products (collectively, “Seller’s Intellectual Property”). No license, express or implied, of any of Seller’s Intellectual Property is granted by Seller to Buyer by these Terms. Buyer's use or display of Seller's Intellectual Property in conjunction with Buyer’s sale or resale of the Products must be pre-approved by Seller in writing and is subject to the following restrictions:
Attribution of Ownership. Any use or display by Buyer of any of Seller's Intellectual Property shall be accompanied by an express recognition of Seller's rights in such intellectual property.
Webpage or Published Advertisement. In the case of a webpage or published advertisement which is or which features any of Seller’s Intellectual Property, Buyer shall display the appropriate copyright (©), trademark registration (®), or trademark (™) symbols large enough to be easily readable. Under no circumstances shall Buyer present any of Seller's Intellectual Property in a webpage or advertisement without identifying the business that is actually responsible for or that is sponsoring the webpage or advertisement.
Domain Names. Buyer shall not use a domain name that incorporates all or any part of, or that is confusingly similar to, any of Seller's Intellectual Property.
Meta-Tags. Buyer shall not use or allow to be used any of Seller's Intellectual Property in the meta-tags of any webpage.
14. FORCE MAJEURE
Any delays or any failure of performance or delivery by Seller shall not constitute default or give rise to any claims for damages or liability if, and to the extent, caused, directly or indirectly, by acts of God, acts of Buyer, rules or regulations of governmental authority, strikes or other concerted acts of workers, lockout, labor difficulties, fires, floods, hurricanes, or any other natural disasters, epidemics, riots, war, difficulties or delays in transportation due to fuel shortages, inability to obtain from Seller’s usual sources of supply, inability to obtain suitable or sufficient energy, labor, machinery, facilities, supplies, or materials, issues of human health or safety, pandemics, viruses, tariffs, national or regional emergency, or failure of any third party to honor its contractual terms (collectively, “Force Majeure Events”). Upon any Force Majeure Events, Seller shall have the right, in its sole discretion, to allocate its available production among any or all purchasers, as well as among departments and divisions, as Seller may determine, without liability or penalty whatsoever for any failure of performance relating to Buyer. Seller, in its sole discretion, without liability or penalty, also may suspend or terminate its obligations to Buyer upon any Force Majeure Events that would render Seller’s performance unreasonable in light of the purchase price paid by Buyer to Seller for the Products at issue in any P/O.
15. GOVERNING LAW, FORUM, AND JURISDICTION; BUYER’S COMPLIANCE WITH APPLICABLE LAW
- In the event a dispute arises between Seller and Buyer in connection with the Products, the sale of the Products, any P/O, any Invoice, or the contract for sale of the Products, or otherwise in connection with these Terms, such dispute (and any related Legal Proceeding) shall be governed by the laws of the State Florida without regard to its choice of laws provisions. Buyer further irrevocably agrees that any legal action, suit, appeal, or other legal proceeding (collectively, “Legal Proceeding”) arising out of, or in connection with, the Products, the sale of the Products, any P/O, any Invoice, or the contract for sale of the Products, or otherwise in connection with these Terms (whether for breach of contract, tortious conduct, or otherwise) shall be brought exclusively in the state or federal courts located in Broward County, Florida. Buyer irrevocably accepts, and submits to, the exclusive jurisdiction of the aforesaid courts in personam, with respect to any such action, suit, appeal, or proceeding and waives any and all objections to the exercise of such jurisdiction in such courts, including any objections based upon forum non conveniens or improper venue.
- Buyer shall comply with all applicable laws, regulations, and ordinances, including export and import laws, of all countries and other jurisdictions involved in connection with Buyer’s sale or resale of the Products. Buyer shall maintain in effect all licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations in connection with the Products, the sale of the Products, or the contract for sale of the Products, or otherwise in connection with these Terms. Buyer assumes all responsibility for shipments of the Products requiring any government clearance, whether for export, import, or otherwise. Seller, without liability or penalty, may terminate any agreement between Seller and Buyer if any governmental authority imposes antidumping or countervailing duties or any other penalties on the Products.
In addition to any remedies that may be provided under these Terms, Seller may terminate any P/O, the Agreement, or any other agreement with Buyer with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount, in whole or in part, when due under these Terms or any Invoice; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; 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.
No waiver by Seller of any of the provisions of these Terms shall be effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from these Terms shall operate, or may be construed to operate, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege under these Terms shall preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
18. ATTORNEYS' FEES
In the event of any Legal Proceeding between Seller and Buyer in connection with the Products, the sale of the Products, any P/O, any Invoice, or the contract for sale of the Products, or otherwise in connection with these Terms (whether for breach of contract, tortious conduct, or otherwise), including enforcement of any award related thereto, the prevailing party shall be entitled to recover from the other party reasonable attorney’s fees and other litigation expenses and court costs at all trial and appellate levels, including the prevailing party’s reasonable attorneys’ fees payable to outside counsel and a reasonable allocation of amounts related to time incurred by its in-house legal counsel.
If any provision of these Terms is found to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect the validity, legality, and enforceability of any other provision of these Terms.
The headings in these Terms are for convenience only, do not constitute a material part of these Terms, and shall not affect in any way the meaning or interpretation of the provisions in these Terms.