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This is to acknowledge receipt of the purchase order referenced on the front of this document (the "Order") relating to the product(s) described on such Order (the "Products") and to set forth the terms and conditions ("Terms and Conditions") of sale of the Products pursuant to such Order. The purchaser under such Order is referred to as "Buyer" and New Chapter, Inc. is referred to as "Seller." Any terms set forth on the face of such Order, or on the reverse side thereof, or attached to or accompanying such Order, other than the specifications of the Products, the quantity, price and desired delivery date, are hereby rejected. The following terms shall be in the nature of a counter-offer to the buyer, and upon fulfillment of the Order, these shall be the exclusive terms governing the Order.
1. TERMS OF PAYMENT: Terms are as indicated from the date of Seller's invoice in U.S. currency. Seller shall have the right, among other remedies, either to terminate this agreement or to suspend further performance under this and/or other agreements in the event Buyer fails to make any payment when due. Buyer shall be liable for all expenses, including attorneys' fees, relating to the collection of past due amounts. Any payment not paid when due shall bear interest at a rate to be determined by Seller, which shall not exceed the maximum rate permitted by law, from the due date until paid. In some instances, cash payments or security satisfactory to Seller may be required by Seller for future deliveries and for the Products theretofore delivered.
2. RETURN OF PRODUCT FOR CREDIT: Product returns (other than end-user returns as discussed in 5. below) may only be made at Seller's discretion. No returns will be accepted without an accompanying, approved Returned Materials Authorization (RMA) as issued by Seller. All RMA's will be credited in the amount of the purchase price paid by Buyer less a 15% restocking fee to Buyer's account when the return has been received and processed. Refunds will not be issued. Product that has less than one year dating, or is discontinued or expired will not be accepted for return.
3. TAXES: Any tax or governmental charge (or increase in same) affecting Seller's costs of production, sale, or delivery shall be for Buyer's account and shall be added to the price. Unless Buyer provides to Seller a valid, applicable and correct tax exemption certificate prior to Seller's acceptance of the order, Buyer is responsible for sales and all other taxes associated with the order, however designated, except for taxes on Seller's net income.
4. SHIPMENT AND DELIVERY: If deliveries are made F.O.B. Seller's shipping point, risk of loss or damage and responsibility shall pass from Seller to Buyer upon delivery to and receipt by a common carrier. Any claims for shortages or damages suffered in transit shall be submitted by Buyer directly to the carrier. If deliveries are made F.O.B. Buyer's receiving point, risk of loss or damage and responsibility shall pass from Seller to Buyer upon delivery to Buyer's receiving point. Any claims for shortages or damages suffered in transit shall be submitted by Seller directly to the carrier provided Buyer has reported damages to Seller within 14 days as specified in 5. below. While Seller will use commercially reasonable efforts to maintain the delivery date(s) acknowledged or quoted, all shipping dates are approximate and not guaranteed. Delayed delivery shall not be grounds for termination of the Order and shall not entitle Buyer to any damages whatsoever. Seller reserves the right to make partial shipments. Backorders will be shipped unless Buyer has communicated the inability to accept backorders in writing prior to the placement of the order. Seller, at its option, shall not be bound to tender delivery of any Products for which Buyer has not provided shipping instructions. If the shipment of the Products is postponed or delayed by Buyer for any reason, Buyer agrees to reimburse Seller for any and all storage and other additional expenses resulting therefrom.
5. LIMITED WARRANTY; LIMITATION OF REMEDY AND LIABILITY: Seller warrants 100% end user (consumer) satisfaction. Buyer will be credited at full purchase price for customer returns regardless of reason for return. SELLER MAKES NO OTHER WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS, WITHOUT LIMITATION, ANY WARRANTY AGAINST INFRINGEMENT; AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Buyer agrees to examine and inspect the Products upon arrival at the destination. If Buyer deems any Products nonconforming, Buyer shall promptly give detailed written notice of such nonconformity to Seller. Any claim of nonconformity shall be deemed waived unless written notice thereof is given to Seller promptly after discovery, but in no event later than fourteen (14) days from the date of sale. Seller's responsibility and Buyer's exclusive remedy is limited to the replacement of the Products or a credit of the amount of the purchase price paid by Buyer, at Seller's option, upon the return of any nonconforming Products to Seller at Buyer's expense.
Seller shall not be responsible for any losses or damages due to misuse, accident, abuse, neglect, deterioration, spoilation, Buyer's negligence or intentional conduct, unauthorized modification or alteration, or use in excess of recommended amounts.
IT IS UNDERSTOOD AND AGREED THAT SELLER'S LIABILITY HEREUNDER OR IN CONNECTION WITH THE MANUFACTURE OR SALE OF THE PRODUCTS DESCRIBED HEREIN, WHETHER IN CONTRACT, TORT, INFRINGEMENT, UNDER ANY WARRANTY, IN NEGLIGENCE OR OTHERWISE SHALL NOT EXCEED THE RETURN OF THE AMOUNT OF THE PURCHASE PRICE PAID BY BUYER. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF ANTICIPATED PROFITS INCURRED BY BUYER).
It is agreed and understood that Buyer shall not make warranties or representations concerning the Products that have not been made or approved by Seller and shall not alter or modify any warranty supplied by Seller. Buyer hereby agrees to indemnify and hold harmless Seller for all loss, cost and expense incurred by Seller directly or indirectly resulting from the extension by Buyer, its officers, employees, agents, subdistributors or representatives of representations or warranties not authorized by Seller or the alteration or modification of any warranty extended by Seller. The provisions of this paragraph shall survive termination, for whatever reason, of the Order.
6. EXCUSE OF PERFORMANCE (FORCE MAJEURE): Seller shall not be liable for delays in performance or for non-performance due to acts of God; acts of Buyer; unforeseen circumstances or any other events or causes beyond Seller's reasonable control. Deliveries or other performance may be suspended for an appropriate period of time or canceled by Seller upon notice in the event of any of the foregoing, but the remainder of the Order shall remain unaffected.
If Seller determines that its ability to supply the Products, or to obtain material used directly or indirectly in the manufacture of the Products, is hindered, Seller may allocate its available supply of the Products among its purchasers on such basis as Seller determines to be equitable without any liability arising therefrom.
7. CHANGES: Once order is received, accepted and in process, no changes may be made.
8. GENERAL PROVISIONS: These Terms and Conditions supersede all other communications, negotiations and prior oral or written statements regarding the subject matter of these Terms and Conditions. No change, modification, rescission, discharge, abandonment, or waiver of these Terms and Conditions shall be binding upon Seller unless made in writing and signed on its behalf. No conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain, reject, or supplement these Terms and Conditions shall be binding unless made in writing and signed by the party to be bound. No modification shall be affected by Seller's receipt, acknowledgment, or acceptance of purchase orders, shipping instruction forms, or other documentation containing terms at variance with or in addition to those set forth herein. No waiver by either party with respect to any breach or default or of any right or remedy and no course of dealing shall constitute a continuing waiver of any other breach or default or of any other right or remedy, unless expressed in writing and signed by the party to be bound. All typographical or clerical errors made by Seller in any quotation, acknowledgment or publication are subject to correction. The remedies provided in this Agreement for either party are cumulative and in addition to any other remedies that may be available at law or equity.
The validity, performance, and all other matters relating to the interpretation and effect of this agreement shall be governed by the laws of the state of Vermont, without giving effect to its conflict of laws rules. The application of the United Nations Convention on Contracts for the International Sale of Goods and the United Nations Convention on the Limitation Period in the International Sale of Goods to this Agreement are expressly excluded. Buyer and Seller agree that the proper venue for all actions arising in connection herewith shall be only in the state where the Products involved in such actions were manufactured and the parties agree to submit to such jurisdiction.