General Terms and Conditions of Sale
1. Formation of Contract
1.1 “Agreement” means the purchase order or other contract of which these General Terms and Conditions of Sale (“Terms and Conditions”) form a part, together with all other exhibits appendices, attachments, addenda, and other documents identified therein and made a part thereof. “Seller” means LaDove, Inc. “Buyer” means the party identified as the purchaser of goods and services in the purchase order or other contract of which these Terms and Conditions form a part.
1.2 These Terms and Conditions, upon execution hereof by the Seller, confirm the offer (or counteroffer) of the Seller to sell, and constitute a complete statement of the Agreement between the Buyer and Seller, which shall not be supplemented or amended except as set forth on the face of this Agreement or by separate written agreement signed by both parties. The provisions set forth on the face hereof shall govern, where inconsistent with any terms and conditions provided by the Buyer.
1.3 Any terms and conditions of the Buyer additional to or varying from these Terms and Conditions, shall not be binding on the Seller unless specifically agreed to in writing by the Seller. The Seller's acceptance, or acknowledgement, of the Buyer's purchase orders or shipping instructions shall not constitute such written agreement. If these Terms and Conditions shall be deemed an acceptance of a prior offer by the Buyer, such acceptance is expressly conditional on the Buyer's assent to any additional or different terms contained herein.
- Acceptance
2.1 No offers, arrangements or orders shall be binding on the Seller unless and until confirmed by the Seller in writing.
2.2 Acceptance by the Buyer of delivery of all or any part of the product sold hereunder shall be an acknowledgement and acceptance by the Buyer of these Terms and Conditions, whether or not the Buyer shall have first received these Terms and Conditions.
2.3 To the extent any terms and conditions provided by the Buyer differ from these Terms and Conditions, these Terms and Conditions are provided to clarify and will supersede any differing terms, proposals, discussions, and correspondence provided by Buyer, whether written or oral and regardless of when made, all of which were provided for informational purposes only. If the Buyer has provided terms and conditions to the Seller, these Terms and Conditions are provided by the Seller to the Buyer as a counteroffer to the Buyer’s terms and conditions but will only be considered accepted with an executive’s signature.
2.4 The Parties agree that all transactions hereunder shall, at all times, comply with applicable export control, customs and foreign trade laws and regulations and any amendments thereto. In particular, the Customer shall observe and respect any restrictions, prohibition, or export license requirement applicable to the Product.
2.5 The Buyer shall promptly inform in writing the Seller of any information and data, and any modification thereto, required by the Seller to comply with the export control laws and regulations applicable in the countries of export and import, as well as for re-export, and concerning the Products. In particular, the Customer shall inform the Buyer of the final destination, end-user and end-use of the Products.
2.6 In the case of breach of these obligations, the Buyer shall be liable to the Seller irrespective of any limitation of liability provisions that may have been agreed within the order hereof.
- Price, Payment, and Order Cancellation
3.1 Unless otherwise specified on the face hereof, the selling price shall be F.O.B. shipping point by common carrier chosen by Seller (freight prepaid, duty and entry paid).
3.2 The price for each item is the amount specified in Seller's price list in effect at the time of shipment exclusive of any applicable taxes or other governmental levy. Prices, quotations, specifications and other terms and all statements appearing in the Seller's sales literature and otherwise made by the Seller are subject to change without notice. Notwithstanding the foregoing, Buyer may change or cancel any unfilled order for goods covered by an increase in price except for specially fabricated goods, proprietary formulations specifically made for a customer or products packaged and inventories in bags printed to the customer's specifications using their trademarks, which are already completed or in process, by giving ten (10) days written notice to Seller.
The Seller is not responsible for typographical errors made in any of its publications or for stenographic or clerical errors made in preparation of quotations. All such errors are subject to correction. All prices are subject to sales tax where applicable.
3.3 Payment of the selling price and additional costs are due in accordance with the terms set forth on the face of this Agreement. All payments hereunder shall be made to LaDove, Inc., 5701 Miami Lakes Drive, Miami Lakes, FL 33014. Lots separately delivered may be billed separately to the Buyer. Complaints or claims by the Buyer shall not impair the Seller's right to payment as provided hereunder and any adjustments to be made as a result of such complaints shall be made subsequent to such payment.
3.4 If the credit of the Buyer shall at any time, in the sole judgment of the Seller, become impaired, the Seller may, at its sole option, and without incurring any liability therefore, divert or prevent the discharge of shipments enroute to the Buyer and cancel the unfilled portion of the contract, or require payment in advance before making any further shipment. The Seller shall not be required to discharge shipment or make delivery until any security or advance payment required by it has been given or paid and may divert shipments and/or cancel the unfilled portion of the contract if such security or payment shall have not been given or made by the Buyer within the time specified by the Seller. All costs and expenses incurred by the Seller due to its exercise of any right or option under this Paragraph shall be at the full expense of the Buyer.
3.5 Prompt payment is of the essence of this contract and a default in any payment will, at the option of the Seller, operate as a breach of the entire contract. Past due payments shall bear interest computed monthly at a rate of 3% above the United States prime rate PRIME:IND.
3.6 The Buyer shall be in default hereunder if any one or more of the following events occurs: (a) the Buyer shall default in fulfilling any of its obligations to the Seller; (b) a receiver, liquidator or trustee of the Buyer, or of any of its property, is appointed by court order; (c) the Buyer is adjudicated bankrupt or insolvent; (d) any property of the Buyer is sequestered by court order; (e) a petition is filed by or against the Buyer under any bankruptcy, reorganization, arrangement, insolvency, moratorium, readjustment of debt, dissolution or liquidation law of any jurisdiction; (f) the Buyer becomes insolvent, makes an assignment for the benefit of its creditors, admits in writing its inability to pay its debts generally as they become due, or consents to the appointment of a receiver, trustee or liquidator of the Buyer or of all or any substantial part of its property. In the event of such default, all unpaid payments shall, at the Seller's option, become immediately due and payable and the Seller shall have the right to consider its contract with the Buyer cancelled and to recover all damages to which Seller is entitled, and shall further have all rights and remedies, including those of a secured party, provided by applicable law. For this paragraph's purposes, "Buyer" shall include any corporation controlling, controlled by, or under the common control with, Buyer.
3.7 All costs incurred by the Seller as a result of non-payment or delay in payment by the Buyer, including without limitation collection costs, cover costs, transportation, and storage costs, and reasonable attorney's fees, shall be paid by Buyer.
3.8 The Buyer shall not have the right to cancel any order once placed, except where such cancellation is expressly agreed to in writing by the Seller.
3.9 The Buyer acknowledges and agrees to reimburse the Seller for any excess packaging and/or raw materials procured specifically for an order, due to packaging or raw material supplier minimum order quantities. This reimbursement obligation applies to the extent that these materials are in excess and cannot be reasonably utilized by the Seller in the ordinary course of its business. This clause ensures that the Seller is compensated for any surplus materials procured on behalf of the Buyer, thus safeguarding the Seller from monetary loss due to minimum order requirements of its suppliers.
- DISCLAIMER OF WARRANTY
THE SELLER WARRANTS THAT THE PRODUCT CONFORMS TO THE SPECIFICATIONS SET FORTH ON THE FACE HEREOF. THE SELLER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE.
- Remedies of Buyer
5.1 Seller shall not be liable for any claim arising in connection with the product sold to the Buyer hereunder unless written notice is given by the Buyer to the Seller as provided in paragraph 5.2 below.
5.2 Written notice of any objection, complaint or claim concerning the product must be given within thirty (30) days after the date on which risk of loss with respect to the product passes to the Buyer in accordance with the applicable provisions of paragraph 7.1 below.
5.3 Failure to give such notice in the manner and within the time provided herein shall be deemed a waiver by the Buyer of all claims with respect to such product.
5.4 Buyer's sole and exclusive remedy in the event of any nonconformity or defect in the products shall be governed by the terms of Section 10.4.
- Passage of Title - Security Interest
6.1 Seller shall retain title to, ownership of, and a security interest in, the product and its proceeds until the contract purchase price set forth on the face hereof shall have been paid in full.
6.2 At the request of Seller, Buyer shall execute and deliver to Seller all such financing statements and other instruments and documents as may be requested by Seller to evidence and to perfect its security interest in the product. Expenses of filing financing statements or other security documents with the appropriate state and local governmental authorities shall be for the account of the Buyer.
- Delivery
7.1 Risk of loss with respect to the product shall pass to the Buyer on delivery to the common carrier chosen pursuant to Section 8 hereof.
7.2 In the event that delivery is dependent on the Buyer's cooperation and the Buyer fails to cooperate in effecting delivery at the time agreed upon, or absent such agreement, at the time fixed by the Seller, the Buyer's failure to cooperate shall, without more, be deemed a default by the Buyer.
7.3 In the event that the Seller shall fail, for any reason other than the existence of a force majeure condition, as defined below, to make delivery of the product sold hereunder (or any installment, where delivery is to be made in installments) the Buyer shall be entitled to give written notice to Seller granting a reasonable extension of time and the Buyer may terminate this Agreement if delivery is not made within such extension of time. The Buyer's right of termination granted in this paragraph shall be in lieu of any and all claims of the Buyer against the Seller for damages arising from or in connection with the failure of the Seller to make delivery. Where the parties have agreed upon delivery in installments, exercise by the Buyer of the right of termination granted in this paragraph shall not affect the liability of the Buyer to make payment to the Seller for any installments delivered prior to the date of termination of this Agreement.
8. Modes of Shipment
8.1 Whenever transportation is supplied by the Buyer or produced for the benefit of the Buyer, the Seller shall have such transportation loaded within the legal or customary days after consultation with the Buyer. Seller shall not, however, be responsible for any costs or damages arising from delays in loading, and all storage, demurrage, wharfage, handling of the charges or penalties for delay, if any, shall be for the account of the Buyer.
8.2 Whenever the Buyer shall be obligated to supply storage and such storage is insufficient or not supplied in time to receive the product the Seller shall have the right to discharge and store the product sold, and the costs and expenses arising therefrom shall be for the account of the Buyer.
9. Force Majeure
9.1 If because of force majeure the Seller is unable to carry out any of its obligations under this Agreement and if the Seller promptly notifies the Buyer in writing, expressly claiming such force majeure, then the provisions of paragraphs 9.2-9.4 shall apply. The term "force majeure" as used herein shall mean any causes reasonably beyond the control and without fault or negligence of the Seller which wholly or in substantial part prevent the manufacture, transportation, loading, unloading, delivery, or storage of the product sold hereunder. Examples, without limitation, of force majeure are: acts of God; acts of the public enemy; acts of war; riot or civil commotion; labor disputes, labor or material shortages; accidents, fire, explosions, floods; breakdowns or breakage of or damage of plants, equipment or facilities; partial or complete embargoes imposed by originating or connecting inland carriers; interruptions to or contingencies of transportation; orders or acts of any governmental authority; acts, rules, regulations or expressed policies of any government.
9.2 If force majeure notice is given under paragraph 9.1 above, the obligations of the Seller shall be suspended to the extent made necessary by such force majeure and during its continuance.
9.3 If a force majeure condition continues so that obligations of the Seller remain suspended under paragraph 9.2 for a period amounting to sixty (60) consecutive days measured from the dates of performance, and at any time thereafter, Seller reasonably concludes that there is no likelihood of ending such conditions in the immediate future, then Seller may terminate the Agreement without liability by giving thirty (30) days' notice to the Buyer at the expiration of said fifteen (15) days, unless such condition shall have been ended, the Seller may terminate the Agreement forthwith.
9.4 Deficiencies in shipment or failures to ship when agreed due to suspension or reduction of obligations for reasons of force majeure shall not be made up except by written agreement by the parties.
10. LIABILITY FOR DAMAGES
10.1 The Seller shall not be liable for any damages caused by the product delivered or to be delivered to the Buyer, or by the Buyer's or any third Party's use of such product, after the product has been identified to the contract.
10.2 The Seller's obligations hereunder are expressly subject to the occurrence of events of force majeure described in Article 9, and no liability shall be incurred by Seller for damages of any nature resulting from suspension, reduction, or termination of deliveries for reasons of force majeure, or from Seller's compliance with any government action.
10.3 Buyer expressly assumes liability and responsibility for compliance with all laws governing special labeling and packaging of any products done at Buyer's request and the production of products exclusively for Buyer pursuant to a proprietary formulation. The buyer also expressly assumes liability and responsibility for adhering to the rights of others (patents, trademarks, copyrights, unfair competition or other) in Buyer's use and sale of all products packaged or produced pursuant to the foregoing sentence.
10.4 SELLER SHALL NOT BE LIABLE TO BUYER FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO THIRD PARTY DAMAGES. MOREOVER, SELLER’S SOLE LIABILITY AND BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES RESULTING FROM SERVICES, PRODUCTS, OR EQUIPMENT PROVIDED BY SELLER OR SELLER’S FAILURE TO PROVIDE SUCH SERVICES, PRODUCTS, OR EQUIPMENT, SHALL BE LIMITED TO, AT SELLER’S OPTION, THE REFUND OF THE PURCHASE PRICE OR REPLACEMENT OF THE SERVICES, PRODUCT, OR EQUIPMENT IN QUESTION. SELLER SHALL HAVE NO LIABILITY TO BUYER FOR ANY DAMAGES RESULTING FROM THE SERVICES, PRODUCTS, OR EQUIPMENT NOT MANUFACTURED, IMPORTED, OR PROVIDED BY SELLER. BUYER ASSUMES ALL RISKS AND LIABILITY FOR RESULTS OBTAINED BY THE USE OF THE PRODUCTS, WHETHER USED ALONE OR IN COMBINATION WITH OTHER MATERIALS, OR WHERE THE CLAIMED DAMAGE RESULTS FROM DETERIORATION OR CONTAMINATION OCCURRING AFTER RECEIPT. THE BUYER MUST NOTIFY THE SELLER OF ANY CLAIM RELATING TO ANY SERVICE, PRODUCT, OR EQUIPMENT WITHIN THIRTY (30) DAYS OF THE EVENT GIVING RISE TO SUCH CLAIM OR SUCH CLAIM IS WAIVED.
10.5 TO THE FULLEST EXTENT PERMITTED BY LAW, THE BUYER AGREES TO DEFEND, INDEMNIFY, AND HOLD THE SELLER AND THE SELLER’S AFFILIATES HARMLESS FROM ALL LIENS, DEMANDS, CLAIMS, ACTIONS, COSTS, JUDGMENTS, FINES, LIABILITIES, OR EXPENSES BROUGHT BY ANY THIRD PARTY (INCLUDING ANY GOVERNMENTAL AGENCY) THAT ARISE OUT OF OR RELATE TO THIS AGREEMENT OR THE GOODS, PRODUCTS, OR SERVICES PROVIDED UNDER THIS AGREEMENT.
11. Waiver - Severability of Terms
11.1 Waiver by the Seller of any default of the Buyer hereunder shall not be deemed a waiver of any other default of the Buyer. The express provision herein for certain rights and remedies of the Seller shall not be construed to deprive the Seller of any other rights and remedies to which it would otherwise be entitled under applicable law.
11.2 The invalidity of any provision of these Terms and Conditions shall not affect the remaining provisions hereof.
12. Governing Law - Notice
12.1 This Agreement shall be interpreted in accordance with the internal laws of the State of Florida, U.S.A., and no presumption shall be deemed to exist in favor or against either Party as a result of the preparation and/or negotiation of this Agreement.
12.2 This Agreement and all the Terms and Conditions hereof shall be binding upon the Parties and their respective successors and assigns; however, the Buyer shall not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Seller, and any attempted assignment without Seller’s prior written consent shall be void.
12.3 The parties hereto submit to the jurisdiction of the courts of the State of Florida, U.S.A., and the Federal Courts of the United States located in Florida. To the extent that the Buyer or any of its property has or may hereafter acquire any right of sovereign immunity from suit, the Buyer hereby irrevocably waives any such right of sovereign immunity in respect of its obligations, rights, and duties under this Agreement.
12.4 Notices or other communications shall be sent by email, or registered or certified mail, return receipt requested. Email notice shall be deemed received twelve hours after transmission. Mail notice shall be deemed received on the fifth day after mailing (or on the next business day if the fifth day is not a business day). Where both methods of notice are used, the earlier shall establish the effective date of notice. Notice shall be given to the address of a party as stated on the face hereof until appropriate notice otherwise.
13. Confidentiality
13.1 Each Party (“Receiving Party”) shall keep confidential, and cause its employees, agents, and affiliates to keep confidential, any non-public, proprietary and confidential technical, commercial, or business information of the other Party (“Confidential Information”) and its affiliates, (collectively, “Disclosing Party”) which are made available to Receiving Party by Disclosing Party or which result from either Party’s performance in connection with this Sales Confirmation. Receiving Party agrees not to use said Confidential Information and data except for the purposes of performing under this Agreement, and further agrees not to disclose said Confidential Information for a period of five years after the expiration or termination of this Agreement, except to the extent required by law. However, the above obligations of confidentiality and non-use do not apply to Confidential Information which (a) Receiving Party can demonstrate was known to it prior to disclosure by Disclosing Party; (b) is, or later becomes, public knowledge without breach of this Agreement by Receiving Party; (c) Receiving Party receives from a third party who did not receive the same directly or indirectly from Disclosing Party under obligations of confidentiality; or (d) is developed by Receiving Party independently from information received from Disclosing Party, as evidenced by appropriate documentation.
14. Compliance with Laws
14.1 Customer shall comply with all laws, ordinances, rules and regulations now in force or hereafter adopted that are applicable to the purchase, storage or use of the Product, use of the System, use of the services, and all other aspects of Customer’s operations, including the Foreign Corrupt Practices Act of 1977, as well as any applicable licenses and consents required by such laws, ordinances, rules and regulations, which licenses and consents shall be obtained by Customer.