These Terms and Conditions of Sale (these “Terms”) apply to and are incorporated into all quotations, order acknowledgements, sales, and deliveries of products by VANTAGE NUTRITION (“Seller”) to the buyer (“Customer”), including capsules filled with any combination of powder, liquid, tablets and/or beadlets, and any related packaging, labels, inserts, and other materials supplied by Seller (collectively, the “Products”). Seller objects to and rejects any additional or different Terms in Customer’s purchase order or other documents, including any terms regarding warranties, returns, limitations of liability, indemnification, dispute resolution, delivery, or payment, unless expressly accepted in a written order acknowledgement signed by an authorized representative of Seller. Performance by Seller (including shipment, delivery, or acceptance of payment) does not constitute acceptance of any such terms. Customer represents and warrants that it is purchasing the Products solely for commercial, business, or professional use, and not for personal, family, household, or consumer use, and that Customer is a “merchant” with respect to the Products within the meaning of applicable commercial law. If there is a conflict among documents governing the transaction, the following order of precedence applies (highest to lowest): (a) a separately signed written supply and/or quality agreement and/or NDA and/or CDA between the parties, if any; (b) Seller’s written order acknowledgement or quotation; (c) these Terms.
Having regard to the specific nature of the production process of the Products, Seller reserves the right to supply a greater or smaller quantity of capsules to the Customer than the ordered quantity, with the proviso that the difference between the ordered and supplied capsules can be a maximum 10% (more or less). On first orders, actual yield might be less than 90% due to unforeseen circumstances and the customer will be invoiced for the actual quantity delivered.
Unless otherwise expressly agreed in writing by Seller or set forth on the applicable purchase order or Seller’s written order acknowledgement (the “Order Documents”), delivery shall be EXW (Incoterms® 2020) Seller’s shipping point (or such other point as Seller designates in writing). Any delivery dates or lead times are estimates only, and time is not of the essence, and Seller shall have no liability for any delay in delivery or failure to deliver on any stated date. If Seller, at Customer’s request, arranges transportation or makes other logistical arrangements, Seller does so solely as a convenience to Customer and not as an assumption of risk; any such freight, handling, storage, demurrage, customs brokerage, duties, taxes, fees, or other charges incurred shall be for Customer’s account and may be invoiced to Customer. Customer is responsible for providing all necessary delivery instructions and for accepting delivery. Customer shall not be entitled to cancel an order, reject Products, or assert any claim or offset due to any delay or partial delivery. If shipment of the Product is delayed or rescheduled for greater than ten (10) days after the confirmed ship date due to Customer’s fault, then upon the expiration of such ten (10) day period, the Customer shall pay to Seller, a storage and handling fee equal to one tenth of one percent (0.10%) per day of the quoted price for each day the shipment is delayed, with a maximum storage and handling fee of ten percent (10.0%) of the Purchase Order value.
Passes to the Customer upon delivery to the carrier. If the Customer fails to accept delivery of any of the Products on the date set forth in Seller’s notice that Seller has delivered the Products to the Delivery Location, or if Seller is unable to deliver the Products to the Delivery Location on the date because Customer has failed to provide appropriate instructions, documents, licenses, or authorizations, then: (i) the Products will be deemed to have been delivered to Customer ; and (ii) Seller , at its option, (A) may store the Products until the Customer takes possession of them, at which time the Customer will be liable for all costs and expenses resulting therefrom (including but not limited to the cost of storage and insurance), or (B) ship the Products to the Customer at Customer’s cost and expense.
Seller warrants solely to Customer that, at the time of shipment from Seller’s shipping point, the Products will materially conform to the written specifications expressly agreed in the applicable the “Specifications”. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, THE PRODUCTS ARE PROVIDED “AS IS” AND SELLER MAKES NO OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. SELLER DOES NOT WARRANT THAT THE PRODUCTS WILL BE SUITABLE FOR CUSTOMER’S INTENDED USE, OR MARKETING CLAIMS ARE COMPLIANT OR SUBSTANTIATED, OR THAT THE PRODUCTS WILL MEET ANY REQUIREMENTS OTHER THAN THE SPECIFICATIONS. Recommended storage conditions (which Customer is solely responsible for maintaining) are 15°C to 30°C and relative humidity of 40% to 65%, and the Products must be stored in the closed containers in which they are dispatched. SELLER SHALL HAVE NO LIABILITY AND THIS WARRANTY SHALL NOT APPLY TO ANY NONCONFORMANCE OR DAMAGE CAUSED BY OR RESULTING FROM: (a) shipment, handling, storage, or use after risk of loss has passed to Customer; (b) Customer’s or any third party’s acts or omissions; (c) Customer-supplied materials, components, packaging, labels, artwork, instructions, or Specifications; (d) modification, repackaging, relabeling, adulteration, or improper or unsuitable use; or (e) failure to follow recommended storage, handling, or shelf-life conditions. Customer’s sole and exclusive remedy for breach of this warranty shall be, at Seller’s option, replacement of the nonconforming Products or refund of the purchase price actually paid for the nonconforming Products, provided that Customer complies with the notice and return requirements set forth in the Defective Products section and provides Seller a reasonable opportunity to inspect the alleged nonconforming Products. Customer agrees to execute any documents reasonably requested.
Customer shall inspect Products immediately upon receipt and prior to use, processing, repackaging, relabeling, or further distribution. Any claim for visible nonconformance or damage must be delivered to Seller in writing within ten (10) days after delivery. Any claim for latent (hidden) nonconformance must be delivered in written AQL within forty-five (45) days upon transfer of custody, and in all cases before expiration of the applicable shelf life and before the Products are used, processed, repackaged, relabeled, or further distributed. Each notice must include the purchase order number, invoice number, lot/batch number, quantity affected, a detailed description of the alleged nonconformance, supporting documentation (including photographs if applicable), and reasonable samples requested by Seller. Failure to provide timely notice constitutes an irrevocable waiver of the claim and acceptance of the Products. No Products may be returned without Seller’s prior written return authorization (RMA) and shipping instructions. Customer shall hold the affected Products in their original condition and packaging, segregated and available for inspection, and shall not use, dispose of, or further distribute them pending Seller’s review. Unless Seller agrees otherwise in writing, Customer shall return Products freight prepaid within ten (10) days after issuance of an RMA; if Customer fails to return requested Products or samples within the required time, the claim is waived. Seller may, at its option, inspect the Products at Customer’s facility. Seller’s determination, based on its inspection and/or testing, as to whether the Products are nonconforming shall be final and binding absent manifest error. If Seller confirms that Products materially fail to conform to the Specifications and the claim is timely and otherwise valid, Customer’s sole and exclusive remedy is as set forth in the Specifications section. If Seller determines the Products are conforming or that the alleged nonconformance is attributable to causes for which Seller is not responsible (including storage, handling, shipping, Customer-supplied materials, or Customer instructions), then Customer shall reimburse Seller for all costs incurred in connection with the claim, including shipping, handling, storage, inspection, and testing.
Customer is solely responsible for its labeling, claims, marketing, distribution, and sale of the Products and for compliance with applicable laws and regulations in all jurisdictions where the Products are marketed, distributed, or sold.
a. Definitions. “Recall” means any recall, market withdrawal, field correction, stock recovery, product removal, or similar corrective action involving the Products, whether voluntary or mandated by any governmental or regulatory authority. “Regulatory Action” means any inquiry, inspection, warning letter, notice, seizure, detention, adverse event reporting, or other action by any governmental or regulatory authority relating to the Products.
b. Notice; records; cooperation. Customer shall promptly notify Seller in writing upon becoming aware of any actual or threatened Recall or Regulatory Action relating to the Products, including any serious adverse event, consumer complaint trend, or allegation of nonconformance, contamination, adulteration, misbranding, or labeling or claim issues. Customer shall provide all reasonably requested information and documentation, including lot numbers, quantities, distribution records, complaint files, and samples, and shall cooperate in good faith. Customer shall maintain records sufficient to support traceability and any investigation.
c. No unilateral Recall for alleged manufacturing/spec issue. Except where required by applicable law with insufficient time to consult, Customer shall not initiate, publicly announce, or communicate with any governmental authority regarding a Recall based on an alleged manufacturing, quality, or specification issue attributable to Seller without first consulting with Seller and providing Seller a reasonable opportunity to investigate, including through inspection and testing.
d. Participation and coordination. To the extent permitted by law, Seller shall have the right to participate in and coordinate any investigation, root cause analysis, and corrective and preventive actions relating to an alleged manufacturing, quality, or specification issue. Seller may request that Customer route technical and manufacturing-related communications with regulators through Seller or include Seller on such communications.
e. Cost allocation; exclusive remedy. (a) Customer-paid Recalls. Customer shall be solely responsible for all costs and expenses of any Recall or Regulatory Action to the extent arising out of or relating to: (i) Customer’s labeling, advertising, marketing claims, distribution, or sale of the Products; (ii) Customer supplied formulas, specifications, ingredients, packaging, labels, artwork, or instructions; (iii) Customer’s storage, handling, transportation, repackaging, relabeling, or other acts or omissions after risk of loss has passed to Customer; or (iv) Customer’s violation of applicable law. (b) VANTAGE-caused nonconformance. Only if a Recall is directly and solely caused by Products that materially fail to conform to the written Specifications at the time of shipment, as determined by Seller in good faith based on inspection and testing consistent with the Defective Products process, then Seller’s responsibility, if any, shall be limited to the exclusive remedies stated in these Terms (replacement of the nonconforming Products or refund of the purchase price actually paid for the nonconforming Products, at Seller’s option). (c) No expansion of liability. This section does not expand Seller’s warranties or liabilities beyond those expressly stated in these Terms, and all limitations of liability apply to any Recall or Regulatory Action.
f. Indemnity preserved. Customer’s indemnification obligations apply to all claims, losses, damages, liabilities, penalties, fines, costs, and expenses (including reasonable attorneys’ fees) arising from or relating to any Recall or Regulatory Action except to the limited extent expressly covered by subsection (b) of Cost allocation; exclusive remedy above, and subject in all cases to the limitations of liability stated in these Terms.
Seller will not be liable for any loss, damage or delay arising out of its failure to perform hereunder due to causes beyond its reasonable control, including without limitation, acts of God or the customer, acts of civil or military authority, fires, strikes, floods, epidemics, quarantine restrictions, war, riots, delays in transportation, or transportation embargoes. In the event of any such delay, Seller’s performance date(s) will be extended for that length of time as may be reasonably necessary to compensate for the delay.
Customer represents and warrants that (a) it will comply with all present and future laws; (b) the Products will not be used in the marketing, packaging, or repackaging of any product which is in violation of any federal, state or local law or with any person or entity on any applicable government sanction, restricted party or denial list without a license or otherwise in violation of applicable law or regulation; (c) it is responsible for communicating with any governmental authority concerning Products, including without limitation with respect to the registration, classification or notification of Products, or the use, packaging, labeling, distribution, marketing, promotion, sate or disposal of the same or any adverse events related to Products (for the avoidance of doubt, Seller may interact with governmental authorities for the purpose of fulfilling its obligations hereunder); d) storing and handling Products in appropriate conditions following its delivery; (e) determining that the specifications for Product to permit its sale in each country in the world and (f) it is not, and will not, in connection with any Product, do business with any entity identified on the U.S. Office of Foreign Asset Control (OFAC) “Blocked Persons and Specifically Designated Nationals List” (SDNs List); and it is aware of and, hereby confirms its compliance with, all applicable economic sanctions, including, without limitation, any applicable U.S. economic sanctions. Customer shall conduct all such activities at all times in compliance with applicable laws. The parties acknowledge and agree that Seller has no control, role, or other form of influence in Customer’s use, packaging, labelling, distribution, marketing, promotion, sale and disposal of Products, nor does it control or influence over any payments or transfers of value that may be made by Customer to health care professionals, health care institutions, or any other customer or third party. Customer is responsible for participation and compliance in all government health care programs and any rebate liability, mandatory pricing, or reporting obligations resulting therefrom.
In no event shall Seller or its affiliates be liable to Customer or its affiliates for any incidental, indirect, punitive, exemplary, special or consequential damages of any kind however caused (including fault or negligence) arising out of or in connection with any purchase order related to the subject matter hereunder, including without limitation, loss of profits, goodwill or business interruption. Sellers total cumulative liability arising out of or relating to any purchase order shall not exceed the aggregate amounts actually paid by the customer to seller under the specific purchase order giving rise to the claim. Further, Customer agrees to unconditionally indemnify, defend and hold harmless Seller and its officers, directors, employees, agents, consultants, successors and assigns from and against any losses, damages (including statutory damages), liabilities, obligations, (including without limitation incidental, consequential, special or indirect damages (including loss of revenue, diminution in value or any damages based on any type of multiple)), deficiencies, actions, judgments, suits, interest, awards, penalties, forfeitures, fines, levies, disbursements, costs or expenses of whatever kind, including reasonable attorneys’ fees and expenses (“Claim”) that may be imposed on, incurred by, appropriated from or asserted against Seller in any way relating to or arising out of (a) the violation of any third party’s trade secrets, trademarks, copyright, patent or other proprietary rights related to the subject matter hereunder; (b) any misrepresentations, omissions or breach of any warranty of Customer herein; (c) the gross negligence or willful misconduct of Customer or (d) the manufacture, packaging, sale, marketing, labeling, promotion, use, distribution or disposal of the finished product; except, in each case, to the extent such Claims are attributable to the gross negligence or willful misconduct of Seller.
For purposes of these Terms, “Confidential Information” means all non-public information disclosed by Seller to Customer, whether in writing, orally, electronically, visually, or in any other form, including information relating to Seller’s pricing, quotations, business operations, quality systems, specifications, processes, methods, equipment, manufacturing know-how, and technical or commercial information, that is designated as confidential or that a reasonable person would understand to be confidential given the nature of the information and the circumstances of disclosure. Customer shall (a) use Confidential Information solely for purposes of placing orders for, receiving, and using the Products in accordance with the Order Documents, (b) not disclose Confidential Information to any third party except to Customer’s employees, affiliates, and contractors who have a need to know and who are bound by written confidentiality obligations at least as protective as those contained herein, and (c) protect Confidential Information using at least the same degree of care it uses to protect its own confidential information of like importance, and no less than reasonable care. Confidential Information does not include information that Customer can demonstrate by contemporaneous records: (i) is or becomes public through no act or omission of Customer, (ii) was lawfully known to Customer without restriction before receipt from Seller, (iii) is lawfully received by Customer from a third party without breach of any obligation of confidentiality, or (iv) was independently developed by Customer without use of or reference to Confidential Information. If Customer is required by law, regulation, or court order to disclose any Confidential Information, Customer shall, to the extent legally permitted, provide Seller prompt written notice and reasonably cooperate to seek a protective order or other appropriate remedy. Customer shall disclose only the portion of Confidential Information legally required and shall use reasonable efforts to obtain confidential treatment for any Confidential Information so disclosed. Upon Seller’s written request, Customer shall promptly return or destroy (and certify destruction of) all Confidential Information in its possession or control, except that Customer may retain copies required to be maintained under applicable law or in routine backup systems, provided that such retained information remains subject to these Terms. Customer acknowledges that unauthorized use or disclosure of Confidential Information may cause irreparable harm for which monetary damages may be an inadequate remedy, and Seller shall be entitled to seek equitable relief (including injunctive relief and specific performance) in addition to any other remedies available at law or in equity.
All rights and title to inventions and intellectual property conceived and reduced to practice by Seller in the course of performing its obligations hereunder shall belong to Seller. For purposes of clarity, the term “inventions” shall encompass, without limitation, any new process, systems, equipment, or any improvement thereon, and components and/or intermediate substances, whether patentable or not, made by Seller in connection with or related to the Products.
The price for the Products and conditions of sales are subject to review from time to time by Seller to reflect any changes in the costs of energy, materials or labor, or market conditions. Prices invoiced will be those in effect at the time of shipment.
Payment terms (including any required deposits, credit terms, due dates, and approved payment methods) shall be as set forth in the applicable Order Documents. If the applicable Order Documents do not specify payment terms, all invoices are due and payable upon receipt. Any extension of credit is at Seller’s sole discretion and may be modified, withdrawn, or revoked at any time. Seller may require, at any time and without liability, prepayment, cash in advance, cash on delivery, letters of credit, security, or other assurances of payment acceptable to Seller, and may suspend production, shipment, or delivery until such assurances are received. Payment shall be made in the currency shown on the invoice.
Customer shall pay all undisputed amounts when due and shall not withhold, set off, or deduct any amounts from any invoice for any reason. If Customer disputes any portion of an invoice, Customer must notify Seller in writing with reasonable detail within ten (10) days after the invoice date, and Customer shall timely pay all undisputed portions. Seller may apply payments in its discretion, including to the oldest outstanding amounts, and may set off any amounts owed by Seller to Customer against amounts owed by Customer to Seller, to the extent permitted by law.
Seller reserves the right to charge Customer for warehousing and handling of Products held for Customer beyond the agreed shipment or delivery date (including where Customer delays acceptance or fails to provide shipping instructions), and shall issue a separate invoice for such charges. Past-due amounts shall accrue a service charge (interest) at the lesser of 1.5% per month (18% per year) or the maximum rate permitted by applicable law, calculated from the due date until paid in full. Customer shall reimburse Seller for all costs of collection of overdue amounts, including reasonable attorneys’ fees, court costs, and collection agency fees.
As security for Customer’s payment and performance obligations, Customer grants to Seller a continuing purchase money security interest in, and lien upon, the Products (including any commingled goods to the extent permitted by law) and all proceeds thereof until all amounts owed to Seller are paid in full. Customer authorizes Seller to file and maintain UCC financing statements and other documents deemed necessary or desirable by Seller to perfect and enforce such security interest. If Customer becomes insolvent, makes an assignment for the benefit of creditors, is the subject of any bankruptcy or similar proceeding, or otherwise defaults, Seller may, in addition to any other rights and remedies, declare all amounts immediately due, cancel any unfulfilled portion of any order, and exercise all rights of a secured party under the Uniform Commercial Code and other applicable law, including the right to repossess the Products and any proceeds, without judicial process to the extent permitted by law. Seller may suspend production or shipment of any orders while any amounts remain past due.
Termination of the order in whole or in part can be made only with Seller’s prior written consent and upon terms that will indemnify Seller against loss and afford an equitable profit. If an order cancellation is agreed upon, the Customer will be charged for any and all expenses incurred by Seller. Any deposits or prepayments are non-refundable unless otherwise expressly agreed in the applicable Order Documents.
Orders are non-changeable except to the extent Seller expressly agrees in a written instrument signed by an authorized representative of Seller. Any changes to an order will result in the issuance of a new order acknowledgement and possible extended lead time. Any permitted change to an order (including changes to formula, specifications, packaging, labeling, quantities, or requested ship dates) shall be subject to terms that fully indemnify Seller and provide Seller an equitable profit. Without limiting the foregoing, Customer shall pay, and Seller may invoice immediately upon approval of such change. If a change to an order is agreed upon, the Customer will be charged for any and all expenses incurred by Seller as a result of such change.
Customer acknowledges that the Products and related technical information, if any, may be subject to export control, customs, and sanctions laws and regulations of the United States and other jurisdictions. Customer shall comply with all applicable export, re-export, import, customs, and sanctions laws and regulations and shall obtain, at their expense, all required licenses, permits, and authorizations. Customer shall not export, re-export, transfer, or otherwise provide the Products (directly or indirectly) to any prohibited destination, end user, or end use, including any sanctioned or restricted party or any destination subject to comprehensive sanctions, or in any manner that would cause Seller to violate applicable law.
No waiver, consent, modification, amendment or change of the terms contained herein shall be binding unless in writing and signed by an authorized representative of Seller and the Customer.
Documents, and any dispute, claim, or controversy arising out of or relating to the Products, these Terms, or any Order Documents (each, a “Dispute”) shall be governed by and construed in accordance with the laws of the State of New Jersey, without regard to its conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply. Any claim, action, or proceeding arising out of or relating to the Products, these Terms, or any Order Documents must be commenced within one (1) year after the cause of action accrues, or it is permanently barred. Customer and Seller agree that any Dispute shall be brought exclusively in the state or federal courts located in the State of New Jersey, and each party irrevocably submits to the personal jurisdiction and venue of such courts and waives any objection based on inconvenient forum. EACH PARTY IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY DISPUTE.
Seller’s failure to enforce any provision of these Terms shall not constitute a waiver of future enforcement of that provision or any other provision. Customer may not assign or transfer any rights or obligations under these Terms or any Order Documents without Seller’s prior written consent, and any attempted assignment without consent is void. Seller may assign these Terms and its rights and obligations under any Order Documents without Customer’s consent. If any provision of these Terms is held to be invalid, illegal, or unenforceable, the remaining provisions will remain in full force and effect and the invalid, illegal, or unenforceable provision shall be enforced to the maximum extent permitted to effect the parties’ intent. These Terms together with the applicable Order Documents constitute the entire agreement between the parties with respect to the Products and supersede all prior or contemporaneous agreements and understandings, whether written or oral, relating to the subject matter hereof. Headings are for convenience only and do not affect interpretation. All provisions which by their nature should survive termination or completion of performance shall survive, including without limitation provisions relating to payment, confidentiality, intellectual property, warranty disclaimers, limitations of liability, indemnification, and dispute resolution. No course of dealing or performance shall modify these terms.
