STANDARD TERMS AND CONDITIONS OF SALE
THE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”) GOVERN THE SALE OF NYCOTE® PRODUCTS (“NYCOTE® PRODUCTS”) BY NYCOTE LABORATORIES CORPORATION OR ITS AFFILIATED ENTITIES (“NYCOTE”) TO THE EXCLUSION OF ANY OTHER STATEMENTS AND AGREEMENTS. NYCOTE’S ACCEPTANCE OF ANY ORDER IS EXPRESSLY MADE CONDITIONAL UPON BUYER’S ACCEPTANCE OF THESE TERMS AND CONDITIONS, AND NYCOTE OBJECTS TO ANY ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS OR QUALITY REQUIREMENTS CONTAINED IN BUYER’S FORMS OR OTHERWISE. NO FAILURE OF NYCOTE TO OBJECT TO ANY TERMS AND CONDITIONS AND QUALITY REQUIREMENTS PRESENTED BY BUYER WILL BE DEEMED A WAIVER OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. BUYER’S SILENCE OR ACCEPTANCE OF NYCOTE® PRODUCTS CONSTITUTES ITS ACCEPTANCE OF THESE TERMS AND CONDITIONS.
The price of the Nycote® Products and payment terms and method are reflected on the sales order and include sales tax where applicable. Prices include Nycote’s standard packaging and any additional expense required to satisfy Buyer’s packaging specifications or requirements shall be at Buyer’s expense. Nycote shall issue invoices to Buyer for all Nycote® Products sold to Buyer. Payment may be made by check, money order, credit card or wire transfer (all fees are paid by Buyer). Where Nycote has extended credit to Buyer, terms of payment shall be net thirty (30) days from date of invoice, without offset, counter-claim, abatement or deduction. If any payment due under this Agreement from Buyer is not paid when due, then Buyer (a) shall pay interest on such overdue amount at the rate equal to 1½% per month or the highest legal rate under applicable law, whichever amount is lower, and (b) Buyer may choose not to sell Nycote® Products to Buyer or change the terms of payment for future orders upon notification to Buyer, including payment in advance and refusal to sell any Nycote® Products to Buyer.
Quantity discounts for approved purchase orders are applicable only if entire order is delivered to the same location on the same date.
In order to purchase any Nycote® Products, the Buyer must furnish to the Nycote a valid purchase order. All orders placed by Buyer are subject to acceptance by Nycote. Orders may not be cancelled or rescheduled without Nycote’s written consent.
All purchase orders must identify, Buyer’s name, complete billing address, phone number and contact information, a purchase order number, a complete and correct listing of the Nycote® Products to be purchased, unit quantities and size of container, correct and current pricing, requested delivery dates, complete ‘ship to address’ including company name, address, phone number and contact information, shipper to use and Buyer’s account number with that shipper.
If purchase order material is to comply with a specification, that specification number must be listed on the purchase order by the Buyer. Buyer is responsible for correcting any errors or omissions on the purchase order when informed by the Nycote. Should the Buyer not correct any purchase order errors, Nycote reserves the right not to process the purchase order and return same to Buyer.
DELIVERY AND RISK OF LOSS
Delivery shall be made EXW (Incoterms 2020), Nycote’s facility. All customs fees, import duties, cargo insurance, taxes and other charges imposed on the sale of the Nycote® Products shall be paid by Buyer. Title to the Nycote® Products and liability for loss or damage in transit or thereafter shall pass to Buyer upon Nycote’s delivery of the Nycote® Products at Nycote’s facility to a carrier for shipment. A delayed delivery of any part of an order does not entitle Buyer to cancel other deliveries. If Buyer refuses delivery of a shipped order, Buyer agrees to pay all shipping costs to return the order to Nycote and a restocking fee of 50 percent of the orders’ invoiced amount. As collateral security for the payment of the purchase price of the Nycote® Products, Buyer hereby grants to Nycote a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Nycote® 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 California Uniform Commercial Code.
If Buyer requests shipment by air, Buyer is responsible for any IATA Fee and Buyer acknowledges acceptance of this fee. If Buyer requests that the Nycote® Products be shipped to a non-U.S. location, Buyer must verify to Nycote that it has all licenses, permits and authorizations legally necessary or commercially advisable to import the Nycote® Products into the delivery location. Buyer agrees to comply with all U.S. laws and regulations concerning exports. For such shipments, Nycote may also be required to procure U.S. export licensing and/or authorization, and reserves the right to delay or cancel the purchase if under U.S. law it cannot ship the Nycote® Products to the non-U.S. location or to a non-U.S. customer.
For shipments outside of the United States, (a) the United Nations Convention for the International Sale of Goods shall not apply, and (b) terms of shipments shall be Ex-Works (Incoterms 2020) and all customs fees, import duties, cargo insurance, taxes and other charges imposed on the sale of the Nycote® Products shall be paid by Buyer in addition to the stated price.
Buyer will not sell, export, re-export, license, transmit, divert or otherwise transfer, directly or indirectly, any Nycote® product or any information or technology related to the Nycote® product except in accordance with applicable laws and regulations, including without limitation applicable UN, US and EU export control and economic sanctions laws and regulations and the laws and regulations of the country where Buyer is resident. Buyer acknowledges that it will (a) take all steps necessary to comply with such laws and regulations and (b) not take any actions that would cause Nycote to be in violation of such laws and regulations.
Sales tax is charged on all orders shipped to a California address unless Buyer submits current California sales tax exemption certificates to Nycote. Buyer shall be solely responsible for all taxes due or payable to any taxing jurisdiction as a result of the sale, delivery or use of the Nycote® Products provided to Buyer under this Agreement (other than taxes on the income or revenue of Nycote) and shall indemnify and hold Nycote harmless from any such taxes and all interest and penalties assessed in connection with such taxes.
INSPECTION AND DISCREPANCIES
Buyer will make adequate inspection of the Nycote® Products immediately after their receipt and will give Nycote notice within 10 days of delivery of any variance or non-conformance in the received Nycote® Products.
Notification of nonconformance must include:
- Packing List Number
- Lot or batch number
- Date of manufacture (DOM)
- Date of expiration (DOE)
- Photographs of the container showing details of subsections two to four above and of the Nycote® liquid in the container
- Documentation as to storage location of the Nycote® product and temperature within that location
- An explanation as to why Buyer believes the Nycote® product is non-conforming
After review of the information provided by Buyer, if Nycote agrees that the Nycote® Product shipped do not conform to Nycote specifications, Nycote will accept the returned material and replace it with conforming Nycote® Product.
Buyer’s failure to notify Nycote as required by Section 7.2 will constitute a waiver of such variance or non-conformity. Claims for Nycote® Products delivered damaged or defective shall also be filed with Nycote within 10 days after date of shipment. Use of Nycote® Products or failure to give notice to Nycote within the time required by this Section shall constitute acceptance of the Nycote® Products.
Nycote, at its own discretion, may elect to furnish a sample(s) to new customers for testing. These samples may be furnished free of charge to Buyer. Buyer requesting such samples acknowledges and agrees that all other costs required to send the sample, including without limitation, freight and IATA Fee are Buyer’s responsibility.
Once Nycote® Products have been shipped, they cannot be returned. To return an item due to variance or non-conformity, Buyer shall contact Customer Service to obtain a Return Merchandise Authorization (“RMA”) number. An RMA number is required for all returns. Returns must be shipped prepaid and properly packaged. Buyer assumes the risk of loss to returned Nycote® Products until the Nycote® Products are received by Nycote at Nycote’s facility.
Unless a shipping or delivery date is specified as firm on the face hereof, or otherwise in writing signed by Nycote, Nycote will use reasonable efforts to fill the order in accordance with the estimated delivery or shipping date, but Nycote will not be responsible for any delays in filling the order nor liable for any losses or damages resulting from such delays, and the order will not be subject to cancellation for such delays.
Nycote shall not be liable to Buyer or deemed to be in default on account of any delay in the delivery of any Nycote® Products, or in the performance of any other act to be performed by Nycote under this Agreement, due to causes beyond Nycote’s control, including without limitation, acts of God or the public enemy, acts of government, civil war, insurrection or riots, fire, floods, explosions, earthquakes or other casualties, epidemics, pandemics or other health related incidents, labor disputes, delays by third party suppliers, or export control related matters, whether foreign, national or local, whether valid or invalid (each a “Force Majeure”). Nycote shall have no obligation to procure any Nycote® Products from other sources and may allocate its available supply of Nycote® Products its customers, buyers, distributors and resellers on whatever basis Nycote may deem fair and practical. In the event that the duration of a Force Majeure exceeds six (6) months or is reasonably expected to exceed 6 months, Nycote is entitled to withdraw from any obligation it may have to supply the Nycote® Products to Buyer without the Buyer having any right to compensation.
Limited Warranty. Nycote warrants to Buyer that the Nycote® Products purchased hereunder will be free of defects in materials and workmanship and will conform to the specifications. Buyer’s remedy for breach of this warranty is limited to replacement or refund of Buyer’s purchase price for such Nycote® Products, at Nycote’s election; provided that such Nycote® Products must be returned to Nycote within thirty (30) days from date of delivery, transportation charges prepaid. No warranty will apply if Nycote® Products have been subject to misuse, neglect, accident or modification. Buyer’s failure to return such Nycote® Products to Nycote within such thirty (30) day period will constitute a waiver by Buyer of such claim. Nycote makes no warranty of any kind with respect to any services provided to Buyer and shall have no liability with respect to such services.
DISCLAIMER OF WARRANTIES AND GUARANTEES. SUBJECT TO THE FOREGOING, NYCOTE DOES NOT MAKE, NOR SHALL IT BE DEEMED TO HAVE MADE, AND BUYER HEREBY WAIVES, RELEASES AND RENOUNCES, ANY OTHER WARRANTIES, GUARANTEES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESSED OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE NYCOTE® PRODUCTS DELIVERED, SOLD OR TRANSFERRED HEREUNDER, INCLUDING, BUT NOT LIMITED TO:
(A) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR USE OR FOR A PARTICULAR PURPOSE, OR ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE OR AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY;
(B) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT IN STRICT OR ABSOLUTE LIABILITY OR ARISING FROM THE NEGLIGENCE OF NYCOTE, ACTUAL OR IMPUTED; OR
(C) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF, OR DAMAGE TO, ANY OTHER THING AS A RESULT OF THE USE OF THE NYCOTE® PRODUCTS, OR ANY LOSS OF USE, REVENUE OR PROFIT, OR ANY OTHER DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
LIMITATION OF LIABILITY
IN NO EVENT SHALL NYCOTE BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT NYCOTE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL NYCOTE’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 PURCHASE PRICE OF THE NYCOTE® PRODUCTS SOLD HEREUNDER. Nothing in this Section 13 will limit or exclude Nycote’s liability for any matter for which it is unlawful for Nycote to exclude or restrict its liability.
Buyer hereby releases and will hold harmless, indemnify and defend Nycote, its present and future officers, directors, employees, agents, subsidiaries, affiliates, successors and assigns from and against any liability, demands, suits, penalties, fines, forfeitures, claims, losses, damages, suits and costs (including reasonable attorneys’ fees incurred), regardless of the basis of liability or legal principle involved, which any or all of them may suffer, incur, be responsible for or pay arising out of or relating to any Nycote® Products supplied hereunder.
CONTROL OF PURCHASED NYCOTE® PRODUCTS
Buyer understands that it has control of the purchased Nycote® Products and as such acknowledges that it will maintain an environment conducive to meeting all specified requirements including, without limitation, storage temperature, shelf life limits, and appropriate usage.
Should Buyer resell any portion of any purchase order of a Nycote® Product to an end user, Buyer agrees to furnish the name of the end user to the Nycote if requested. If requested by the Nycote and not furnished by the Buyer, the Nycote reserves the right not to furnish the Nycote® Products to the Buyer. Before any resale, Buyer must confirm that a sale of Nycote® Products to the resale purchaser does not violate any U.S. export or anti-bribery regulations. The resale purchaser must also be notified that the sale and use of the Nycote® Products must be in accordance with U.S. law. Buyer is liable for any violations of U.S. law resulting from any such resales.
RIGHT OF ENTRY
Nycote shall be permitted to review the Buyer’s facilities, with the Buyer’s permission, to ensure proper procedures for Nycote® Products protection.
All data and other information obtained by Buyer from Nycote in connection with this Agreement shall be held in strict confidence by Buyer and used solely for the purposes of fulfilling Buyer’s obligations under this Agreement. Buyer shall treat such data and information with the same degree of care that it uses to protect its own proprietary or confidential information.
Termination. An agreement with Buyer to deliver Nycote® Products under this Agreement will not oblige Nycote to take additional orders for the future. At all times, Nycote will be entitled to end the relationship with Buyer and such termination will never entitle Buyer to compensation.
Validity. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction only, be ineffective to the extent of such prohibition or unenforceability, without invalidating the remaining provisions hereof.
No Waiver. The failure of either party to enforce any of the provisions of this Agreement, or to exercise any right herein provided, shall not be a present or future waiver of such provisions, nor in any way affect the validity of this Agreement or any part hereof.
Amendment. No provision of this Agreement may be changed, waived, discharged, or terminated except in writing signed by both parties.
Successors and Assigns. This Agreement and all warranties herein created or assigned shall be binding upon and shall inure to the benefit of, and shall be enforceable by, the parties hereto and their respective successors and permitted assigns.
Choice of Law; Jurisdiction; Attorney’s Fees. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, USA. All actions arising out of this Agreement shall be heard exclusively in the state and federal courts located in the County of Los Angeles, State of California, USA and the parties hereby submit to the exclusive jurisdiction of such courts for the purpose of any such action. In the event of any action for the breach of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees, costs and expenses, including the costs of arbitration, incurred in connection with such action.
Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed to have been given when sent by overnight courier or transmitted by facsimile or electronic mail, addressed to the party to which such notice is directed at its address on the Sales Order or to such other address as a party shall from time to time designate to the other party in writing for this purpose.