FREEMEN NUTRA GROUP, LLC TERMS AND CONDITIONS
These Terms and Conditions, Seller’s Purchase Order Acknowledgement, and the Invoice shall constitute the entire agreement of the parties ("Agreement") with respect to Buyer’s purchase from Freemen Nutra Group, LLC (“FNG” or “Seller”) of products, components, raw materials and/or ingredients (individually referred to as a “Product” or collectively as “Products”).
1. AGREEMENT: Buyer is purchasing the Products set forth in the Order Acknowledgment on the terms therein subject to these Terms and Conditions. Buyer understands and acknowledges that FNG is a reseller of the Products. This Agreement prevails over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend this Agreement.
2. ACCEPTANCE OF PRODUCT: Product shall be deemed accepted unless Buyer provides notice to FNG within 14 days of receipt of Product by Buyer of an alleged non-conformity. Buyer shall conduct any required inspection at its expense within said 14-day period and only after FNG approval shall the Buyer return any nonconforming goods to FNG at Buyer's expense and risk. If the Product is to be delivered in installments, Seller may elect to treat each such installment as a separate contract without limitation to Seller’s rights hereunder.
3. BLANKET, CUSTOM AND SPECIAL ORDERS: If the Purchase Order requires bulk, special or custom handling, or is a blanket purchase order, then (a) Buyer is responsible for full payment for the entire Purchase Order in accordance with the terms of this Agreement; (b) such order may not be cancelled or reduced in quantity; and (c) the Product delivered under such Purchase Order may not be returned to Seller except as otherwise stated in this Agreement.
4. PAYMENT: Payment of the Purchase Price is due and payable as set forth in the Invoice. Any amounts unpaid and past due will accrue interest at the rate of 18% per annum, or the maximum allowable interest rate under applicable law, whichever is less. In the event Buyer fails to timely pay FNG, Buyer shall be responsible for all expenses incurred by FNG to collect such unpaid amounts, including reasonable attorney's fees and costs.
5. PRICE: All Prices are fixed as of the date of the Invoice and/or the Order Acknowledgment date. All prices quoted are exclusive of taxes, fees, levies, duties, handling, and freight charges unless otherwise approved by FNG in writing.
6. CREDIT TERMS: Credit terms are set and monitored by FNG’s credit department. Credit terms and privileges may be terminated by FNG at any time for any reason without notice. A $50 service fee will be assessed for any check returned for insufficient funds.
7. RETURN POLICY: All returns must be pre-authorized by FNG. Returned goods must be accompanied by FNG’s Returned Materials Authorization (“RMA”) document. Products must be returned in their original packaging, condition and quality. Buyer assumes all liability for product which is damaged in transit. All returns permitted for any reason other than quality, will be subject to a restocking fee of 10%. All restocking fees are non-refundable. To preserve the integrity of the raw materials and ensure harmonization with CGMPs FNG adheres to the following policy pertaining to returned goods:
a. FNG must be notified in writing no more than 14 days after delivery of material of items Buyer seeks to return.
b. All returns related to non-defective raw materials must be approved by FNG before an RMA is issued.
c. A 10% restocking fee (up to maximum of $1000) will be implemented on all returned items.
d. Return freight costs are responsibility of Buyer.
e. All customer labels must be completely removed before and material must be in original sealed shipping condition. Photos may be requested prior to pick-up.
f. No opened/sampled material can be returned.
g. A credit memo will be issued once the conditions above are met and material has been received in FNG’s warehouse for final inspection.
8. NO WARRANTIES: SELLER MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE WHATSOEVER WITH RESPECT TO THE PRODUCT OR ANY PORTION OR INGREDIENT THEREOF, INCLUDING ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR ANY PURPOSE OR USE, TITLE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY OR OTHERWISE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, SELLER IS A DISTRIBUTOR/RESELLER AND UNDERTAKES NO INVESTIGATION REGARDING THE QUALITY OR FITNESS OF THE PRODUCT OR ANY PORTION OR INGREDIENT THEREOF RECEIVED FROM ITS THIRD-PARTY SUPPLIERS AND MAKES NO WARRANTY OR GUARANTEE RELATED THERETO. BUYER AGREES TO LOOK SOLELY TO SELLER’S THIRD-PARTY SUPPLIERS FOR ALL CLAIMS RELATED TO QUALITY OR FITNESS OF THE PRODUCT OR ANY PORTION OR INGREDIENT THEREOF.
9. RISK OF LOSS: Title to the Product and risk of loss passes from FNG to Buyer when the Product leaves FNG’s possession. Regardless of the manner of shipment, loss or damage that occurs during shipping is solely Buyer’s responsibility.
10. ASSIGNMENT: Buyer shall not assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of FNG.
11. LIMITATION OF LIABILITY: IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR SPECIAL, NONCOMPENSATORY, CONSEQUENTIAL, INDIRECT, INCIDENTAL, STATUTORY OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR LOST PROFITS, LOST SALES, LOST REVENUE, LOSS OF USE, HARM TO CONSUMERS OR END-USERS, DAMAGE TO BUYER’S EQUIPMENT, PROPERTY OR GOODWILL) ARISING FROM, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCT(S) (INCLUDING ANY COMPONENTS OR INGREDIENTS THEREOF), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, EVEN IF FNG HAS BEEN INFORMED OF OR IS AWARE OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE. BUYER’S SOLE REMEDY IN THE EVENT THAT THE PRODUCT DOES NOT MEET WITH BUYER’S EXPECTATIONS, WHETHER COMMUNICATED TO FNG IN ADVANCE OR NOT, SHALL BE A RETURN OF THE PRODUCT TO FNG AS SET FORTH IN PARAGRAPH 7 OF THIS AGREEMENT. FURTHERMORE, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, FNG’S TOTAL AGGREGATE LIABILITY TO BUYER FOR ANY CLAIM, DEMAND, ACTION OR PROCEEDING ARISING FROM, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCTS (INCLUDING ANY COMPONENTS OR INGREDIENTS THEREOF) SHALL BE LIMITED TO THE AGGREGATE PURCHASE PRICE PAID BY BUYER TO FNG FOR THE PRODUCTS FOR WHICH SUCH CLAIM, DEMAND, ACTION OR PROCEEDING RELATES.
12. INDEMNIFICATION: Buyer shall indemnify, defend and hold harmless FNG, and the third-party manufacturers and suppliers of the Products sold hereunder, from and against all losses, liabilities, damages and expenses (including without limitation attorneys’ fees and costs) resulting from any claims, demands, actions and other proceedings to the extent arising from, relating to or in connection with (a) the use, handling or storage of the Product (including any components or ingredients thereof), or (b) any claim that the Product (including any components or ingredients thereof), or the sale or use thereof, infringes, misappropriates or otherwise violates (or contributes to or induces the infringement, misappropriation or other violation of) the patent or other intellectual property rights of any person or entity or violates or otherwise conflicts with any applicable law, regulation or court order. Buyer further acknowledges that FNG is a reseller of Products to commercial customers that are not intended for sale directly to consumers. Accordingly, Buyer will indemnify and hold harmless FNG from any claims, demands, actions, losses, costs, expenses, causes of action, damages, injury to a third party (including consumers) resulting from a derivative product, supplement, vitamin, mineral, ingredient, food, ingestible or other item that contains the Product purchased by Buyer in connection with this Agreement.
13. DELIVERY DATES: All delivery dates are approximate and FNG shall not be responsible for damages of any kind resulting from any delay.
14. TERMINATION: Seller may terminate this Agreement if (a) (i) Buyer is unwilling or unable to accept delivery of the Product on the delivery date and (ii) the parties are unable to agree on another delivery date, (b) Buyer fails to timely pay the Purchase Price or any other amount due from Buyer to Seller under this or any other Agreement, (c) Buyer fails to give Seller appropriate shipping, delivery or other instructions when reasonably required, and in any event within two (2) business days of Seller requesting same, (d) there occurs a breach, or an anticipatory breach, by Buyer in performance of any of its other obligations under this Agreement (and with respect to any such breach that is capable of being cured, Buyer fails to cure such breach to Seller’s satisfaction within seven (7) days of Seller advising Buyer in writing of same), (e) Buyer ceases its operations, (f) Buyer is adjudged insolvent or bankrupt; any voluntary or involuntary proceeding is instituted by or against Buyer seeking relief, reorganization or arrangement under any law relating to insolvency; Buyer makes any assignment for the benefit of creditors; or any receiver or trustee is appointed for any substantial part of Buyer’s property or assets, or (g) in Seller’s reasonable opinion, Buyer’s ability to perform Buyer’s obligations under this Agreement, or Buyer’s creditworthiness, is or is likely to be materially impaired or threatened.
15. FORCE MAJEURE: (a) Seller shall not be liable to Buyer for any delay, breach, incomplete performance or nonperformance of Seller’s obligations under this Agreement that is wholly or partially due to any cause beyond Seller’s control (“Force Majeure”), which shall include (without limitation) any Acts of God; war; civil disturbance; fire; storm; flood; pandemic, failure by any party or third-party to perform (including, without limitation, any seller or supplier of Seller); acts of any international organization, state, government, federal, local or like body or authority (“public authority”); non-availability of or delay in obtaining or variation of export or import permits or authorizations; imposition by any public authority of quota or other restrictions on any Products or the price at which they may be sold (including without limitation the imposition of (or any increase in) any duty, tariff or tax on the Product sold or on any material ingredient of the Product sold); interruptions in the supply chain beyond Seller’s control, including but not limited to non-availability, delay or diversion in availability of shipping or other transport; lock outs, strikes or trade disputes, whether or not official; break down or interruption of any plant, machinery, communications or data processing services or equipment; shortage or non-availability of labor, components, raw materials or supplies of any commodity; or any combination of the foregoing; or any Force Majeure affecting any supplier of Seller. (b) On the happening of Force Majeure, (i) Seller may by written notice to Buyer elect to suspend delivery of all or any of the Product without incurring liability to Buyer, and Buyer shall continue to perform all of Buyer’s obligations in respect of the Product delivered or in the course of delivery to Buyer or in relation to which Seller does not elect to suspend delivery; (ii) if Force Majeure continues for ninety (90) days or Seller acting reasonably sooner concludes such is irrecoverable, Seller may by written notice to Buyer terminate this Agreement in respect of all or any of the Product without incurring liability to Buyer, but without affecting Buyer’s obligations in relation to the Product delivered or in the course of delivery to Buyer; and (iii) if Force Majeure ceases to apply and Seller has not exercised its right of termination under the foregoing clause (ii), Seller shall recommence deliveries of the Product within a reasonable time (with time for shipment and/or delivery of the Product extended accordingly) and Buyer shall duly perform Buyer’s obligations as buyer of the Product. (c) Seller shall use reasonable efforts to advise Buyer in writing of Force Majeure or its cessation, but failure to do so shall not restrict Seller’s rights under this Section 15. If Force Majeure interferes with Seller’s delivery of the Product or would cause the cost of the Product to exceed the Purchase Price (or materially decrease Seller’s margin), Seller shall be under no obligation to deliver the Product unless Buyer agrees to pay such additional costs.
16. COMPLIANCE WITH APPLICABLE LAWS: Buyer shall be solely responsible for its purchase, use, handling and storage of the Product, and FNG shall have no responsibility therefor. Buyer shall use, handle and store the Product, at all times, in strict accordance with all applicable laws, regulations and court orders and shall not infringe, misappropriate or otherwise violate (and shall not contribute to or induce the infringement, misappropriation or other violation of) the patent or other intellectual property rights of FNG or any third party. Buyer shall also be solely responsible for determining whether its purchase, use, handling or storage of the Product (i) complies with all applicable laws, and (ii) infringes upon the patent or other intellectual property rights of FNG or any third party. Without limiting the generality of the foregoing, the Buyer shall be solely responsible for determining whether FNG has any and all licenses, registrations, approvals and other authorizations from governmental authorities and/or third parties necessary for the purchase, use, handling and/or storage by the Buyer of the Product, and FNG shall have no responsibility or liability therefor.
17. CONFLICTING TERMS: All Order Acknowledgments accepted by the Buyer shall be subject to these Terms and Conditions, which may be changed or amended from time to time by FNG. In the event of a conflict between the terms in an Invoice or Order Acknowledgment, on the one hand, and these Terms and Conditions, on the other hand, these Terms and Conditions shall govern and control.
18. ETHICAL SOURCING: FNG is committed to supporting sustainable, socially responsible and moral practices and is committed to aligning itself with all stakeholders who also work to support this commitment. FNG holds all stakeholders to the expectation to maintain the same or reasonably appropriate levels of compliance with the applicable standards FNG strives for. FNG will not knowingly engage in business with companies who do not follow similar ethical practices to which we espouse. Should it come to light that a supplier who FNG currently engages in business with has broken any part of the above ethical code of conduct, FNG will immediately end the business relationship with this supplier. Please our full Ethical Sourcing statement on our website.
19. SUSTAINABILITY: We recognize that our activities affect the environment and commit to minimizing adverse impacts across the business. FNG is committed to aligning itself with all stakeholders who also work to support this commitment. We aim to comply with all current and future environmental legislation, prevent pollution, and incorporate appropriate environmental factors into business decisions. We expect all stakeholders to maintain the same or reasonably appropriate levels of compliance with the applicable standards FNG strives for. Please our full Sustainability statement on our website.
21. MISCELLANEOUS: (a) Enforcement. Buyer shall be responsible for all costs incurred by Seller in enforcing Seller’s rights and Buyer’s obligations under this Agreement, including reasonable attorney's fees and costs. (b) Binding Effect: This Agreement shall be binding upon and inure to the benefit of the parties, their respective successors, legal representatives and permitted assignees. (c) Governing Law: This Agreement shall be governed by and construed under the laws of New Jersey, without regard to conflicts of law rules. Any cause of action that may arise in any way under this Agreement shall be brought exclusively in the state or federal courts located in the State of New Jersey. Buyer irrevocably submits to this exclusive jurisdiction and agrees not to commence any legal action against Seller arising from or relating to this Agreement or the sale of Products hereunder in any other court or forum. (d) Notices: All notices required to be given shall be in writing and delivered to the address set forth on the Purchase Order by certified first class mail, postage prepaid, return receipt requested, or by continued fax or e-mail and shall be deemed given upon the date electronically delivered or three days after mailing. (e) Severability: The invalidity or unenforceability of any provision of this Agreement shall not affect any other provision which shall remain in full force and effect. If any provision of this Agreement is for any reason held to be invalid or unenforceable, it shall be construed as valid and enforceable by limiting it as to time, subject or scope as required under applicable law. (f) No Waiver: All rights and remedies of FNG shall be deemed cumulative and not exclusive, and the exercise of any such remedy shall not be deemed a waiver of any other right or remedy. No term or condition of this Agreement shall be deemed waived by FNG, nor any act be deemed an estoppel against FNG, except by written consent of FNG. (g) Limitations: Excluding actions by FNG for nonpayment of any amounts due in connection with this Agreement, any suit, claim or action that arises from or relates to this Agreement or the Product must be commenced within one (1) year from the date that the suit, claim or action arose. (h) No Third-Party Beneficiaries. This Agreement is intended to be solely for the benefit of the Parties hereto and their lawful successors and permitted assigns and is not intended to create any right enforceable by any other person. (i) Electronic Copies: The executed Order Acknowledgment may be delivered by electronic mail, facsimile transmission, or other electronic means, and such electronic copy shall be deemed an original.