Customer Terms

CENTIAN LLC

General Terms and Conditions for the Sale of Goods

1. Applicability. These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the goods (“Goods”) by Centian LLC (“Seller”) to the buyer of goods (“Buyer”). The accompanying confirmation of sale/acknowledgement of order (the “Sales Confirmation” and these Terms (collectively, this “Agreement”)) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral.  If Buyer issues a purchase order only the following terms of such purchase order shall be included in this Agreement:  (a) a list of the Goods to be purchased; (b) the price of each of the Goods ordered; (c) the quantity of each of the Goods ordered; and (d) the requested delivery date.  No other terms, whether inconsistent or contradictory, whether material or otherwise, sales and delivery or other conditions stated in Buyer’s purchase order or offer to purchase, in a confirmatory memorandum of an oral agreement or other written confirmation or acknowledgement of acceptance of Buyer’s offer to purchase by Seller, or arising from a course of dealing or usage of trade shall govern the sale of the Goods to Buyer by Seller or override these Terms.  For the avoidance of doubt, the term Sales Confirmation does not include any general terms or conditions of any purchase order or other document issued by Buyer.  All other terms set forth in any such Buyer offer to purchase or Buyer acceptance of Seller’s offer to sell or any confirmatory memorandum are specifically rejected.  Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
2. Shipment and Delivery.
   • Shipment. Unless expressly agreed to by Seller and Buyer in writing, Buyer shall select the method of shipment of, and the carrier for, the Goods.
   • Delivery. If no delivery date is specified in the Sales Confirmation, the Goods will be delivered within a reasonable time after the date of the Sales Confirmation.  If a  delivery date is specified in the Sales Confirmation, Seller will take commercially reasonable efforts to deliver the Goods within the time set forth on Buyer’s Acknowledgement.  The delivery date is an estimate only. Seller is not liable for or in respect of any loss or damage arising from any delay in filling any order, failure to deliver or delay in delivery.
   • Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods Exworks Centian’s warehouse (the “Delivery Point”). Buyer shall take delivery of the Goods within three (3) days of Seller’s written notice that the Goods have been delivered to the Delivery Point. Buyer understands and acknowledges that the delivery term “Exworks” means that Seller is obligated to make the Goods available to Buyer at the Delivery Point.  Buyer is responsible for arranging for a shipment contract, has the sole risk of loss or damage to the Goods during shipment, and Buyer may not reject Goods damaged or lost during shipment.
   • Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of this Agreement.
   • If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s notice that the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
3. Quantity. If Seller delivers to Buyer a quantity of Goods of up to ten percent (10%) more or less than the quantity set forth in the Sales Confirmation, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods the price set forth in the Sales Confirmation adjusted pro rata.
4. Amendment and Modification. These Terms, and the Agreement, including any quantities or pricing set forth in any Sales Confirmation, may only be amended or modified in a writing which specifically states that it amends these Terms or the Agreement and is signed by an authorized representative of each party.
5. Inspection and Rejection of Nonconforming Goods.
   • Buyer shall inspect the Goods within thirty (30) days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (i) product shipped as described in the specifications set forth in the Certificate of Analysis is different from the specifications for Goods identified in this Agreement or (ii) product’s label or packaging incorrectly identifies its contents.
   • Any petition to return goods must include a valid third party test report detailing the reason or reasons why the Goods are Nonconforming Goods and must be agreed upon by Seller. Goods must be tested by the Method of Analysis (MOA) provided by the factory that produced the goods.  Seller has the right to send Goods to a third party of its choice to verify whether the Goods are Nonconforming Goods, for example, whether the Goods do not meet specifications as shown on out of spec (OOS) lab reports.  Returns/refunds are not accepted unless Buyer can show that that the method of analysis it used followed exactly the MOA provided by the factory.  If Seller has disclosed known testing issues with specific laboratories used by Buyer, testing by such laboratories cannot be used as the basis for a return. Goods can only be returned after Buyer receives an RMA (Return Material Authorization) from Seller.  If Seller issues an RMA, Buyer must return Goods in good condition, in packs that have not been opened, incorrectly packaged or in partially used packs.  Poorly securing Goods for transport (bad palletizing, using poor pallets and other mistakes that could cause damage during transport) will result in fees to the Buyer or rejection of the RMA by Seller.  All stamps or stickers placed on the drums by the Buyer must be removed prior to return.  This includes, but is not limited to, stamps that say “Rejected” or “Quarantined.”  Any Goods received that include Seller stamps or stickers will result in fees imposed on Buyer for repackaging or may affect the acceptance of the RMA by Seller.
   • If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion and subject to Buyer’s strict compliance with the process set forth in Section 5(b), (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility named in writing by Seller. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.
   • Buyer acknowledges and agrees that the remedies set forth in Section 5(c) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 5(c), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
6. Price.
   • Buyer shall purchase the Goods from Seller at the price (the “Price”) set forth in Buyer’s purchase order that Seller has accepted with a Sales Confirmation.
   • All Prices are exclusive of all sales, use and excise taxes, and any 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; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets. Buyer acknowledges that the sale of Goods hereunder is at wholesale (for resale) for sales tax purposes under the law of the state in which Buyer is executing this Agreement.
7. Payment Terms.
   • Unless otherwise agreed in writing signing by Seller and Buyer, Buyer shall pay all invoiced amounts due to Seller within thirty (30) days from the date of shipment of the Goods by Seller 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, fees of collection agencies and reasonable attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for ten (10) days following written notice thereof.
   • 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.
8. Goods Sold “As Is”. OTHER THAN THAT THE GOODS SOLD HEREUNDER ARE THE GOODS BUYER HAS ORDERED, SELLER IS SELLING THE GOODS AS IS AND SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) 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.
9. Limitation of Liability.
   • IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
   • 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 GOODS SOLD HEREUNDER.
10. General Indemnification. Buyer shall defend, indemnify and hold harmless Seller its subsidiaries, affiliates, successors or assigns and its directors, officers, shareholders and employees (collectively, “Indemnitees“) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorneys’ and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses“) arising out of or occurring in connection with the marketing, distribution, sale, use or consumption of any product of Buyer that may contain, be incorporated into, attached to or packaged together with, the Goods.

Buyer shall not enter into any settlement without Seller’s or any Indemnitee’s prior written consent.

11. Buyer Forms. Documents or forms delivered to Seller with respect to the Goods created by the manufacturer or third parties or filled out by Seller at the request of Buyer are not a part of this Agreement (“Other Documents“).  Seller is not responsible for errors in such Other Documents or the information, representations or warranties set forth in such Other Documents.  Seller makes no warranties, express or implied, in such Other Documents.
12. Compliance with Law. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
13. 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 and such failure continues for ten (10) days after Buyer’s receipt of written notice of nonpayment; (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.
14. 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 rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
15. Confidential Information. All non-public, confidential or proprietary information of Seller, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, 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 in advance 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. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Seller on a non-confidential basis from a third party.
16. Force Majeure. The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of sixty (60) days, Buyer shall be entitled to give notice in writing to Seller to terminate this Agreement.
17. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
18. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
19. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
20. Governing Law. All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of North Carolina without giving effect to any choice or conflict of law provision or rule (whether of the State of North Carolina or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of North Carolina.
21. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of North Carolina in each case located in the City of Raleigh and County of Wake, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
22. 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 Sales 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), mail (with written 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.
23. 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.