Terms & Conditions of Sale
THESE TERMS AND CONDITIONS SHALL BE DEEMED TO BE INCORPORATED BY REFERENCE INTO ANY ACKNOWLEDGEMENT, SALE CONTRACT, BLANKET ORDER OR OTHER DOCUMENT ISSUED OR EXECUTED BY BRADFORD SOAP. THESE TERMS AND CONDITIONS SUPERCEDE ANY TERMS CONTAINED IN BUYER’S PURCHASE ORDER, ACCEPTANCE DOCUMENT, CORRESPONDENCE OR OTHER DOCUMENT.
ACCEPTANCE BY BUYER OF ANY GOODS DELIVERED BY SELLER SHALL BE CONCLUSIVELY DEEMED ASSENT TO THESE TERMS AND CONDITIONS. SELLER’S FAILURE TO OBJECT TO PROVISIONS CONTAINED IN ANY COMMUNICATION FROM BUYER WILL NOT BE A WAIVER OF THESE PROVISIONS.
1. DEFINITIONS: The Term “Seller” means Bradford Soap International, Inc. and all of its subsidiaries. The Term “Buyer” means the party or parties purchasing goods from Seller.
2. ACCEPTANCE GOVERNING PROVISIONS: All sales by Buyer are made subject to these terms and conditions (the “Terms”), including those on the face of any invoice or order confirmation issued by Seller. If Buyer has submitted any other terms, they are rejected unless expressly agreed to in writing by Seller. If Buyer proceeds in any way with this transaction, takes possession of the goods or makes partial or full payment on account of the goods sold hereunder, Buyer hereby and thereby agrees to these Terms.
3. TAXES: Prices do not include any taxes, now or hereafter enacted, applicable to the goods sold on this transaction. Taxes will be added by Seller to the sales price where Seller invoices the same to comply with law, and will be paid by Buyer unless Buyer provides Seller with a proper tax exemption certificate.
4. PRICES, RELEASES, AND SETOFF: Prices apply only if the quantity ordered hereunder is released for shipment within twelve (12) weeks (or longer if mutually agreed to in writing) from the date of Seller's receipt of Buyer's order. Otherwise, Seller's standard price in effect at time of release shall apply to quantity shipped and Buyer shall pay the difference in price, if any, and Seller has the right to terminate this contract as if terminated pursuant to Paragraph 16.
Seller shall have the right, at any time during the course of this contract, to revise prices hereunder by giving written notice (which may be via email) of revised pricing to Buyer, such revised prices to apply to all goods thereafter shipped. If Buyer provides written objection within ten (10) days following notice of a price change established by Seller, Seller shall have the option of terminating this contract with no liability to Seller.
Buyer waives any rights of setoff or charge-backs against the price charged for goods delivered by Seller. Buyer’s sole remedies for claims or disputes arising out of transactions under this contract shall be as provided in Paragraph 14.
5. TITLE AND DELIVERY: All shipments of goods shall be delivered F.O.B. Seller's plant, and title and liability for loss or damage thereto shall pass to Buyer upon Seller's delivery of the goods to a carrier for shipment to Buyer, and any loss or damage thereafter shall not relieve Buyer from any obligation hereunder. Buyer shall be liable for costs of insurance and transportation and for all import duties, taxes and any other expenses incurred or licenses or clearance required at port of entry and destination. Method and route of shipment will be at the discretion of Seller, unless otherwise expressly agreed to in writing by Seller. Seller may deliver goods in installments. Shipping dates are approximate only. Seller shall not be liable for any loss or expense, whether by way of contract or tort, (consequential or otherwise) incurred by Buyer if Seller fails to meet the specified estimated delivery schedule because of unavoidable production or other delays. All provisions of this Paragraph 5 apply to both domestic and international shipments, except that title to goods shipped outside the U.S. shall pass at the point of destination; risk of loss or damage and all expense associated with goods shipped outside the U.S. shall be the responsibility of the Buyer.
6. TERMS AND METHOD OF PAYMENT: Buyer agrees to pay the price of Seller’s goods and any shipping or other charges relating thereto in full on the terms set forth on the face of any Seller invoice or on Seller’s statement of account or other Seller’s documents. In the event of Buyer’s failure to make such payment in full, Seller shall have all rights and remedies permissible under law, including, without limitation, the right to charge interest on overdue balances at the lesser of the rate of One and One-Half (1 ½%) percent per month or the highest rate permitted by applicable law. Buyer shall pay all costs and expenses of collection, including reasonable attorneys’ fees incurred prior to, during and after any trial (including appeals and bankruptcy proceedings) and costs of investigation. In the event of default on such payment obligation by Buyer, or in the event of Buyer’s insolvency, bankruptcy, receivership or assignment for the benefit of creditors, or in the event of Buyer’s admitted inability to pay debts as they become due, Seller may discontinue shipment and require payment in advance. Further, in any such circumstances, Seller shall have the right at Buyer’s expense, to: (a) repossess all goods that have been delivered by Seller to Buyer and (b) retain all goods that may be stored with Seller for Buyer’s account, both without the necessity of taking any other proceedings, or if such proceedings are required under law. Buyer acknowledges that all the goods so repossessed or retained shall be the property of Seller.
7. CONTINGENCIES AND FORCE MAJEUERE: Seller shall not be liable for any delay in delivery or for non-delivery, in whole or in part, caused by the occurrence of any contingency beyond the control either of Seller or Seller's suppliers, including, but not limited to, war, sabotage, insurrection, riot or other act of civil disobedience, act of a public enemy, failure or delay in transportation, act of any government or any agency or subdivision thereof, judicial action, labor dispute, accident, fire, explosion, flood, storm or other act of God, shortage of labor, fuel, raw material or machinery or technical failure where Seller has exercised ordinary care in the prevention thereof. Seller may allocate production and deliveries among Seller's customers.
8. SPECIFICATIONS; LABELING; CLAIMS: Specifications for all products to be supplied by Buyer are subject to agreement by both Buyer and Seller, which agreement may be made by Buyer’s acceptance of a product sample supplied by Seller. Specifications may include the desired shape, physical properties, dimensions, fragrance and color (the “specifications”) of the goods to be purchased hereunder. Any notice or instruction from the Buyer received subsequent to Seller's acknowledgment, including supplementary information contained in a confirming purchase order, which has the effect of changing the specifications, scope of work, or other terms, will be effective only upon an appropriate adjustment in the price and/or delivery date, and acceptance of any change by Seller in writing. Buyer is responsible for proper labeling of all goods supplied by Seller under these Terms, in compliance with all applicable rules and regulations including, without limitation, those promulgated by the US Food and Drug Administration, the Federal Trade Commission and state and local laws and regulations regarding consumer safety and product labeling. Buyer is responsible for any and all efficacy, health and benefit claims made with respect to the products supplied hereunder and shall indemnify and hold Seller harmless from and against any claims, costs, damages, penalties and liability of any kind with respect to product health, efficacy and benefit claims.
9. INTELLECTUAL PROPERTY: All intellectual property rights in and to the formulas, ingredients, specifications, soap base, manufacturing methods, and concepts contained within the products supplied under this Agreement are owned by and shall be retained by Seller. This Agreement includes a limited license to Buyer strictly to sell the products supplied under this Agreement. Buyer agrees that it shall not disclose, reverse engineer or attempt to use any of Seller’s intellectual property contained in the products to create derivative products or to manufacture, or procure the manufacture of, the products from any third party.
10. INSPECTION and RETURNS: Buyer hereby agrees to accept minor variations in the goods from the specifications or if applicable, samples referred to in paragraph 8 above. Seller shall have fulfilled its obligations hereunder notwithstanding any such minor variations. Buyer acknowledges and agrees that Buyer has ten (10) days from the date of receipt of the goods to inspect the goods and that such period is a reasonable amount of time to conduct such inspection. If Buyer does not notify Seller of any variations, shortages, or overages within such ten (10) day period, then the goods shall be deemed conforming in all respects and accepted by Buyer. Shortages or overages in quantity shall not be cause for rejection. Seller shall, at its option, issue credits or refunds for shortages timely notified. Buyer shall, at Seller’s option, pay Seller promptly for any overages timely notified at the price per unit under this contract. Variations that Seller and Buyer mutually agree are not minor variations shall be replaced or the applicable purchase price refunded, at Seller’s option.
11. LEGAL COMPLIANCE: Buyer, at all times, shall comply with all applicable federal, state and local laws and regulations. Export of the products covered by this quotation, contract or acknowledgment may be subject to export license control by the U.S. government. It is Buyer's responsibility to obtain any licenses which may be required under the applicable laws of the U.S. including the Export Administration Act and regulations promulgated thereunder.
12. LIMITED WARRANTY: THE FOLLOWING IS IN LIEU OF ALL WARRANTIES EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICUALAR PURPOSE, ALL OF WHICH ARE HEREBY DISCLAIMED AND EXCLUDED, AND ALL IMPLIED WARRANTIES AGAINST INFRINGEMENT OF ANY UNITED STATES OR FOREIGN PATENT, TRADEMARK COPYRIGHT, TRADE NAME OR SIMILAR COMMON OR CIVIL LAW ARE DISCLAIMED AND EXCLUDED.
Seller, except as otherwise hereinafter provided, warrants the goods against faulty workmanship or the use of defective materials, and that such goods will conform to the agreed specifications in all material respects. Seller warrants that at the time of delivery Seller has title to the goods free and clear of any and all liens and encumbrances. These warranties are the only warranties made by Seller and can be amended only by a written instrument signed by an officer of Seller.
Seller's warranties are herein above set forth shall not be enlarged, diminished or affected by, and no obligation or liability shall arise or grow out of Seller's rendering of technical advice or service in connection with Buyer's order of the goods furnished hereunder.
13. PRODUCT USE OR APPLICATION INDEMNITY: Buyer agrees to indemnify and hold harmless Seller for all claims, whether arising in tort, contract, or by law or regulation, against Buyer and/or Seller, including attorney's fees, expenses and costs, arising out of the use or application of Seller's products by any third party, or any recall of such products, including claims for injuries or other damage, whether direct or indirect, actual or alleged, consequential or otherwise arising from the goods, notwithstanding any actual or alleged defect or hazard inherent in the goods, or resulting from any actual or alleged infringement of any United States or foreign patent, copyright, patent or trademark. Buyer shall be responsible for the full costs and all damages, direct or indirect, including any consequential damages, of any product recall.
14. EXCLUSIVE REMEDIES: If the goods furnished by Seller fail to conform to Seller's exclusive limited warranty, Seller's sole and exclusive liability shall be (at Seller's option) to repair, replace or credit Buyer's account for any such goods which are returned by Buyer, provided that (i) Seller is promptly notified in writing upon discovery by Buyer that such goods failed to conform to this contract with a detailed explanation of any alleged deficiencies, (ii) such goods are returned to Seller, F.O.B. Seller's plant, and (iii) Seller's examination of such goods shall disclose to Seller's satisfaction that such alleged deficiencies actually exist and were not caused by accident, misuse, neglect, alteration, improper installation, unauthorized repair or improper testing. If such goods are non- conforming, Seller shall reimburse Buyer for the transportation charges paid by Buyer for such goods. If Seller elects to repair or replace such goods, Seller shall have a reasonable time to make such repairs or replace such goods.
THIS IS THE SELLER'S ONLY LIABILITY AND BUYER'S EXCLUSIVE REMEDY FOR ANY CLAIM, WHETHER ARISING IN TORT OR CONTRACT, AND IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, COLLATERAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES. SELLER’S MAXIMUM LIABILITY UNDER ANY CIRCUMSTANCES SHALL BE LIMITED TO THE AMOUNT THAT BUYER HAS PAID TO SELLER DURING THE PRECEDING 180 DAYS FOR THE GOODS GIVING RISE TO THE CLAIM OF LIABILITY.
15. ACCEPTANCE OF PRODUCT: Acceptance shall be presumed conclusively to have occurred thirty (30) days following delivery of product to Buyer, unless Buyer has accepted the product prior to that date.
16. TERMINATION AND CANCELLATION: If, in Seller's commercially reasonable judgment, the Buyer's financial condition does not justify the terms of payment specified, Seller may cancel this contract unless Buyer shall immediately pay for all goods which have been delivered and pay in advance for all goods prior to delivery.
17. ASSIGNMENT: This contract is binding upon and inures to the benefit of the parties and their respective successors and assigns, but shall not be otherwise assignable by Buyer without the prior consent of Seller.
18. APPLICABLE LAW: This contract and performance hereunder shall be governed by the laws of the State of Rhode Island (without regard to its conflict of law provisions) and this instrument shall be considered a contract made in that state. Buyer agrees that it may bring suit against Seller only in said state, and for purposes of such suit against Buyer, submit itself to the jurisdiction of that state. For the avoidance of doubt, the United Nations Convention on the International Sale of Goods shall not apply.
19. ENTIRE AGREEMENT: These terms and conditions constitute the final, complete and exclusive agreement between the parties hereto relating to the sale of the goods covered by this contract. No other terms or conditions shall be binding upon the parties unless expressly agreed to in writing by the parties hereto. If any phrase, clause or provision shall be declared void, the validity of any other provisions shall not be affected thereby.
20. ARBITRATION: At Seller’s sole election, all claims, disputes, demands and controversies arising under, out of or in connection with or in relation to the goods and hereunder may be submitted to and be determined by arbitration in the State of Rhode Island in accordance with the rules of the American Arbitration Association then in affect.