Terms & Conditions

“Buyer” means the entity to which Seller is selling the Products.
“Products” means the goods (described in the attached invoice) Seller has agreed to supply to Buyer.
“Seller” means the entity selling the Products to Buyer.

(a) Seller shall select the method of shipment of, and the carrier for, the Products.  Seller may, in its sole discretion, without liability or penalty, make partial shipment of Products. Each shipment will constitute a separate sale and Buyer shall pay for the Products shipped, whether such shipment is in whole or partial fulfillment of a purchase order.
(b) Seller shall pack, mark, and ship Products with a certificate of analysis for the Products and shipment documentation showing Seller’s identification number for the subject Products, and the quantity of Products in the shipment.
(c) Title to Products shipped passes to Buyer upon delivery.  Risk of loss shall pass to Buyer upon Seller’s tender of the Products to the carrier.
(d) Any liability of Seller for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual quantity delivered.

Buyer may cancel its order only with the prior written consent of Seller, which Seller may withhold at its sole discretion. All cancellations will be subject to a 15% restocking fee.

(a) Buyer shall purchase the Products from Seller at the prices set forth on the applicable invoice.
(b) All prices are exclusive of, and Buyer is solely responsible for and shall pay, and shall hold Seller harmless from, all sale, 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; provided, however, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenue, gross receipts, personnel or real or personal property or other assets.
(c) All prices exclude shipping and handling charges, which are the obligation of Buyer and will be added to the invoice if prepaid by Seller.

(a) Buyer shall pay to Seller all invoiced amounts by the due date specified on the invoice. Buyer shall make all payments in US Dollars by check, ACH, or wire transfer in accordance with the instructions provided on the invoice.
(b) Buyer shall pay interest on all late payments at the lesser rate of 1.25% 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 late payments, including, without limitation, attorney’s fees and court costs. In addition to all other remedies available under these Terms and Conditions or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend delivery of any Products if Buyer fails to pay any amounts when due hereunder.
(c) Buyer shall not withhold any amounts due and payable by any reason of any set-off of any claim or dispute with Seller.
(d) If Buyer disputes any invoice or portion thereof, it shall notify Seller in writing within ten (10) days of receipt of said invoice, detail the reason for the dispute, and pay all undisputed amounts. All charges not timely disputed in writing shall be deemed to be undisputable and shall be due and payable as set forth above.

Seller represents and warrants that all Products delivered hereunder will conform to the certificate of analysis that accompanies the shipment and corresponds to the applicable Products. Buyer may reject any Products which do not substantially conform to the applicable certificate of analysis within ten (10) days after delivery.  At Seller’s option, Seller shall either replace such rejected Products or issue a credit or reimburse Buyer for Products so rejected. THE WARRANTY SET FORTH IN THIS SECTION IS STRICTLY LIMITED TO ITS TERMS AND IS IN LIEU OF ALL OTHER WARRANTIES AND GUARANTESS, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, SPECIFICALLY EXCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

(a) IN NO EVENT SHALL SELLER 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 PUNTITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORSEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOT WITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO BUYER’S PURCHASE OF PRODUCTS HEREUNDER, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO SELLER FOR THE PRODUCTS SOLD HEREUNDER.

(a) Buyer shall indemnify, defend and hold harmless Seller and its representatives (collectively, “Seller Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees (collectively “Losses”), incurred by a Seller Indemnified Party relating to or arising from any claim of a third party arising out of or occurring in connection with (i) any goods manufactured, created, sold or distributed by Buyer that contains Products in any amount, (ii) Buyer’s or its contractors’ or representatives’ negligence, willful misconduct or breach of the Terms and Conditions.  Buyer shall not enter into any settlement of a claim involving a Seller Indemnified Party without a Seller Indemnified Party’s prior written consent.
(b) Subject to Section 7, Seller shall indemnify, defend and hold harmless Buyer and its representatives (collectively, “Buyer Indemnified Party”) against any and all Losses incurred by a Buyer Indemnified Party, relating to or arising from any claim of a third party arising out of or occurring in connection with (i) the Products, (ii) Seller’s or its contractors’ or representatives’ negligence, willful misconduct or breach of the Terms and Conditions. Seller shall not enter into any settlement of a claim involving a Buyer Indemnified Party without a Buyer Indemnified Party’s prior written consent.

Seller reserves the right by written notice to cancel any order or require full or partial payment or adequate assurance of performance from Buyer without liability to Seller in the event of: (i) Buyer’s insolvency, (ii) Buyer’s filing of a voluntary petition in bankruptcy, (iii) the appointment of a receiver or trustee for Buyer or (iv) the execution by Buyer of an assignment for the benefit of creditors. Seller reserves its right to suspend its performance until payment or adequate assurance of performance is received and also reserves its right to cancel Buyer’s credit at any time for any reason.

Neither Buyer nor any of Buyer’s owners, officers, managers, employees or agents shall: (a) make any representations, warranties, guarantees, indemnities, similar claims, or other commitments (i) actually, apparently, or ostensibly on behalf of Seller, or (ii) to any customer or third party with respect to the Products; (b) engage in any unfair, competitive, misleading, or deceptive practices with respect to Seller or the Products, including any product disparagement; (c) make any medicinal, health, or therapeutic claims with respect to any of Buyer’s goods that contain Seller’s Products; (d) resell, market, distribute, or otherwise provide the Products to any third party other than (i) to be used by Buyer inits own products or (ii) as otherwise explicitly consented to by Seller.

Buyer represents and warrants to Seller that it is in compliance with all applicable laws, regulations and ordinances relating to the purchase of Products, the sale of Buyer’s products and the operations of its business.

These Terms and Conditions may be only amended or modified in a writing which specifically states that it amends these Terms and Conditions and is signed by an authorized representative of each party.

No waiver by Seller of any of the provisions of these Terms and Conditions is 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 and Conditions 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.

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 or accessed in written, electronic or other form of media, and whether or not marked, designated, or otherwise identified as “confidential” is confidential 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: (i) in the public domain; (ii) known to Buyer at the time of disclosure; or (iii) rightfully obtained by Buyer on a non-confidential basis from a third party.

Seller shall not be liable or responsible to Buyer for any failure or delay in fulfilling or performing any terms herein 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, lockouts, 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, or telecommunication breakdown or power outage.

Buyer shall not assign any of its rights or delegate any of its obligations hereunder 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 hereunder.

The relationship between the parties is that of independent contractors. Nothing contained herein 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.

All matters arising out of or relating to these Terms and Conditions are governed by and construed in accordance with the laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule (whether of the State of Illinois or any other jurisdiction) that would cause the application of the laws of any other jurisdiction.

Any legal suit, action or proceeding arising out of or relating to these Terms and Conditions shall be commenced in the state courts of the State of Illinois, in each case located in the City of Chicago and Cook County. Each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Buyer and Seller agree that the mailing by certified or registered mail, return receipt requested, of any process required by any such court shall constitute valid and lawful service of process, without necessity for service by any other means provided by statute or rule of court. The parties waive the right to a trial by jury in any action or proceeding arising out of the transactions hereunder.  

All notices and other communications given or made hereunder shall be via e-mail to the recipient and e-mail address designated by the receiving party in writing and shall be deemed effective when sent, if sent during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day.

If any term or provision hereunder is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision or invalidate or render unenforceable such term or provision in any other jurisdiction.