Purchase Order Terms and Conditions
- Applicability. This purchase order is an offer by Centian LLC (the “Buyer“) for the purchase of the goods specified on the face of this purchase order (the “Goods“) from the party to whom this purchase order is addressed (the “Seller“) in accordance with and subject to these terms and conditions (the “Terms“; together with the terms and conditions on the face of the purchase order, the “Order“). This Order, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to this Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of this Order. This Order expressly limits Seller’s acceptance to the terms and conditions of this Order. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Seller’s general terms and conditions of sale or any other document issued by Seller in connection with this Order. If there is any conflict between this Order and any terms or conditions contained in any other documentation proposed or delivered by Seller, the terms and conditions of this Order shall control. These Terms apply to any repaired or replacement Goods provided by Seller
- Acceptance. Buyer shall not be bound by this Order unless and until Seller executes and returns the acknowledgment copy or other written acknowledgment, including email or other electronic record of acknowledgment of this Order (the “Acknowledgment“), and no other form of acceptance shall be binding on Buyer. Seller accepts and shall be bound by this Order when it executes and returns the Acknowledgment or by commencing performance hereunder. Any shipment of Goods by Seller which is consistent with this Order with respect to quantity and price shall be deemed an acceptance of this Order. If Seller does not execute and return the Acknowledgment within two (2) Business Days (defined below) of Seller’s receipt of this Order, this Order will lapse. Buyer may withdraw this Order at any time before it is accepted by Seller. Business Days means any day of the year on which national banking institutions in Raleigh, North Carolina are open to the public for conducting business and are not required or authorized to close.
- Required Date. Seller shall deliver the Goods in the quantities and on the date(s) specified in this Order or as otherwise agreed in writing by the parties (the “Delivery Date“). Timely delivery of the Goods is of the essence. If Seller fails to deliver the Goods in full on the Delivery Date, Buyer may terminate this Order immediately by providing written notice to Seller, and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Goods on the Delivery Date. Buyer has the right to return any Goods delivered prior to the Delivery Date at Seller’s expense and Seller shall redeliver such Goods on the Delivery Date.
- Quantity. If Seller delivers more than or less than the quantity of Goods ordered, Buyer may reject all or any excess Goods. Any such rejected Goods shall be returned to Seller at Seller’s risk and expense. If Buyer does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price for the Goods shall be adjusted on a pro-rata basis.
- Shipment and Delivery. For shipment of Goods originating outside the United States, delivery shall be made CIF 99 New Hook Rd., Section #1, Bayonne, NJ 07002 (the “Delivery Location”), Incoterms 2020 in accordance with the terms on the face of this Order, unless Buyer otherwise agrees in writing. For shipment of Goods originating inside the United States, delivery shall be made Exworks Seller’s facility Incoterms 2020 in accordance with the terms on the face of this Order, unless Buyer otherwise agrees in writing. Seller shall give written notice of shipment to Buyer when the Goods are delivered to a carrier for transportation. Seller shall provide Buyer all shipping documents, including the Certificate of Analysis, invoice, packing list, air waybill/bill of lading and any other documents necessary to release the Goods to Buyer on the date Seller delivers the Goods to the transportation carrier. If Seller fails to deliver all such shipping documents prior to the date Seller delivers the Goods to the transportation carrier, Seller shall pay all fees and charges billed to Buyer on account of such delay. The Order number must appear on all shipping documents, shipping labels, bills of lading, Certificates of Analysis, air waybills, invoices, correspondence and any other documents pertaining to this Order.
- Packaging. All goods shall be packed for shipment according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Seller must provide Buyer prior written notice if it requires Buyer to return any packaging material. Any return of such packaging material shall be made at Seller’s expense.
- Amendment and Modification. No change to this Order is binding upon Buyer unless it is in writing, specifically states that it amends this Order and is signed by an authorized representative of Buyer.
- Inspection and Rejection of Nonconforming Goods. The Buyer or Buyer’s customer has the right to inspect the Goods on or after the Delivery Date. Buyer or Buyer’s customer for the Goods, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective or otherwise damaged. If Buyer or its customer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Seller, to: (a) rescind this Order in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the nonconforming, defective or damaged Goods and require replacement of the rejected Goods. If Buyer or its customer rescinds this Order in its entirety, Seller must pay for all related expenses, including, but not limited to, transportation charges for the return of the nonconforming or defective Goods. If Buyer or its customer requires replacement of the rejected Goods, Seller shall, at its expense, within seven (7) days replace the nonconforming, defective or damaged Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the nonconforming or defective goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate this Order for breach pursuant to Section Any inspection or other action by Buyer or its customer under this Section shall not reduce or otherwise affect Seller’s obligations under this Order, and Buyer or its customer shall have the right to conduct further inspections after Seller has carried out its remedial actions.
- Price. The price of the Goods is the price stated in this Order (the “Price“). Unless otherwise specified in the Order, the Price includes all packaging, transportation costs to the Delivery Location, insurance, customs duties and fees and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer.
- Payment Terms. Seller shall issue an invoice to Buyer within one week of the completion of delivery and only in accordance with the Terms. Except for any amounts disputed by Buyer in good faith, Buyer shall pay all properly invoiced amounts due to Seller in accordance with the payment terms set forth on the face of this Order after Buyer’s receipt of such invoice. Provided, however, timely payment by Buyer shall be subject to Buyer’s receipt of Seller’s invoice within one week. In the event of a payment dispute, Buyer shall deliver a written statement to Seller no later than one (1) day prior to the date payment is due on the disputed invoice listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not so disputed are deemed accepted and must be paid, notwithstanding disputes on other items, within the period set forth in this Section 10. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under the Order notwithstanding any such dispute. If Seller’s computer servers or systems are hacked or breached which hack or breach results in Buyer paying a fake invoice that is represented to be an invoice from Seller, Seller shall reimburse Buyer on demand for such payment or Buyer shall have the right to setoff with respect to such payment as provided in Section
- Setoff. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to Buyer by Seller against any amount payable by Buyer to Seller under this Order.
- Warranties. Seller warrants to Buyer that: (a) the Goods conform to applicable specifications, samples and other requirements specified by Buyer, including the compounds and materials set forth in the Certificate of Analysis and to the labels affixed to the Goods by Seller (the “Specifications“); (b) the Goods are not adulterated or misbranded within the meaning of the S. Food Drug & Cosmetic Act (“FD&C Act“); (c) none of the Goods are goods or articles which may not, under the provisions of Section 404 or 505 of the FD&C Act, be introduced into interstate commerce; (d) the Goods have been stored and shipped in accordance with, and are compliant with, good manufacturing practices, codified at U.S. Code of Federal Regulations, 21 CFR parts 110 and 111 et seq., (“GMP“); (e) the Goods were manufactured in compliance with FD&C Act and United States law at the facility of Seller set forth on the face of the Order; (f) the Goods do not include compounds or materials not set forth in the Certificate of Analysis; (g) if the source of the Goods is a natural source (derived from plants), the Goods do not include synthetic compounds or materials similar to such natural source; (h) the Good are free and clear of all liens, security interests or other encumbrances; (i) the Goods do not infringe or misappropriate any third party’s patent or other intellectual property rights; and (j) that Seller and its facilities are compliant with GMP. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Buyer. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the Goods with the foregoing warranties. If Buyer gives Seller notice of noncompliance with this Section, Seller shall, at its own cost and expense, promptly replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Buyer. Such repair or replacement shall not be Buyer’s exclusive remedy. Supplier’s warranty that the Goods are not adulterated or misbranded and that none of the Goods are goods or articles that may not be introduced into interstate commerce shall constitute a continuing guaranty and undertaking, within the meaning of Section 303(c)(2) of the FD&C Act and 21 C.F.R. § 7.12-7.13.
- General Indemnification. Seller shall defend, indemnify and hold harmless Buyer its subsidiaries, affiliates, successors or assigns and its directors, officers, shareholders and employees and Buyer’s customers (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
- Any breach or alleged breach by Seller of the terms, covenants, warranties, and conditions of this Order;
- Any negligent act or alleged negligent act by Seller or its agents, representatives, or employees in the performance of this Order; or
- any defect in the manufacture of any Goods
Seller shall not enter into any settlement without Buyer’s or Indemnitee’s prior written consent.
- Intellectual Property Indemnification. Seller shall, at its expense, defend, indemnify and hold harmless Buyer and any Indemnitee against any and all Losses arising out of or in connection with any claim that Buyer’s or Indemnitee’s use or possession of the Goods infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. In no event shall Seller enter into any settlement without Buyer’s or any Indemnitee’s prior written consent.
- Insurance. During the term of this Order and for a period of two (2) years thereafter, Seller shall, at its own expense, maintain and carry Commercial General Liability Insurance with limits no less than one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) in the aggregate per policy year, including bodily injury and property damage and products and completed operations and advertising liability, which policy will include contractual liability coverage insuring the activities of Seller under this Order with financially sound and reputable insurers. Upon Buyer’s request, Seller shall provide Buyer with a certificate of insurance from Seller’s insurer evidencing the insurance coverage specified in this Order. Seller shall provide Buyer with thirty (30) days’ advance written notice in the event of a cancellation or material change in Seller’s insurance policy.
- Compliance with Law. Seller is in compliance with and shall comply with all applicable laws, regulations and ordinances. Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Order.
- Termination. In addition to any other rights to terminate provided in this Order, either party may terminate this Order with immediate effect upon written notice to the other party, if such other party (i) fails to perform or comply with any of its material obligations, responsibilities or duties under this Order, in whole or in part, does not cure such failure within fifteen (15) days of receipt of written notice of such failure except in the case of a failure to comply with a party’s obligations under Section 19 in which case no opportunity to cure shall be required; or (ii) 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. Buyer may terminate this Order for its convenience, in whole or in part, at any time with or without cause for undelivered Goods on two (2) days’ prior written notice to Seller. Buyer shall pay Seller the Price for all conforming Goods ordered hereunder and delivered in accordance with this Order on the date of the notice of termination for convenience.
- Waiver. No waiver by any party of any of the provisions of this Order shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Order, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Order shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- Confidential Information. All non-public, confidential or proprietary information of the Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Buyer to Seller, 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 Order is confidential, solely for the use of performing this Order and may not be disclosed or copied unless authorized by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Seller at the time of disclosure; or (c) rightfully obtained by the Seller on a non-confidential basis from a third party.
- Force Majeure. Neither party shall be liable to the other for any delay or failure in performing its obligations under this Order to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (“Force Majeure Event“). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, hostilities, terrorist acts, riots, strike, embargoes or industrial disturbances. Seller’s economic hardship or changes in market conditions are not considered Force Majeure Events. Seller shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under this Order. If a Force Majeure Event prevents Seller from carrying out its obligations under this Order for a continuous period of more than twenty (20) Business Days, Buyer may terminate this Order immediately by giving written notice to Seller.
- Assignment. Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Order without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. Buyer may at any time assign, transfer or subcontract any or all of its rights or obligations under this Order without Seller’s prior written consent.
- Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Order 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. No relationship of exclusivity shall be construed from this Order.
- No Third-Party Beneficiaries. This Order 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 this Order.
- Governing Law. All matters arising out of or relating to this Order shall be 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. The United Nations Convention on the International Sale of Goods is hereby excluded from applicability to this Order and the sale of goods contemplated herein.
- Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Order 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 County of Wake, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
- Cumulative Remedies. The rights and remedies under this Order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
- Notices. All notices, requests, 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 this Order 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), email (with written confirmation of transmission), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Order, 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.
- Severability. If any term or provision of this Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Order or invalidate or render unenforceable such term or provision in any other jurisdiction.