Terms and Conditions
1. Controlling Document – Private Label Select (“SELLER”) accepts the Buyer’s order pursuant to and conditioned on the Buyer’s assent to the terms and conditions set forth herein, and SELLER agrees to furnish goods (the “Product” or “Products”) only upon these terms and conditions. This writing constitutes the entire Agreement between the parties. Differing terms and conditions shall require a separate written Agreement executed by Seller and Buyer. THE TERMS OF THIS AGREEMENT SHALL SUPERSEDE ANY CONFLICTING TERMS CONTAINED ON THE Buyer’s ORDER OR ANY DOCUMENT OR INSTRUMENT SUBMITTED BY BUYER. The Buyer is responsible for the design and content of all packaging and labeling. The Buyer’s responsibility specifically includes the obligation to ensure that the packaging and labeling complies with all applicable federal, state or local laws or regulations. SELLER will not use any packaging and labeling other than that provided, specified or approved by Buyer. No prior or current dealings between the parties and no usage of trade shall be relevant to, supplement or explain any term nor shall such dealings constitute a waiver of any of the terms contained herein. Photocopies, electronic copies and facsimile transmissions of documents shall be effective as originals and shall be considered a “writing” between the parties. Buyer is deemed to have accepted the Terms and Conditions contained herein upon shipment of the Product.
2. Acceptance of Buyers Order – All orders are subject to approval of SELLER’s credit department. If in the judgment of SELLER the financial condition of the Buyer at any time does not justify continuance of shipment on the terms of payment specified, SELLER may require full or partial payment in advance. In the event of bankruptcy or insolvency of Buyer, or in the event of any proceeding brought by or against Buyer under insolvency laws, SELLER shall be entitled to cancel any order of the Buyer then outstanding and shall receive reimbursement from Buyer for SELLER’s cost as of the date of cancellation.
3. Prices and Taxes – Buyer shall pay SELLER the prices stated on SELLER’s Sales Acknowledgement or any price expressly quoted by SELLER in writing to the Buyer subsequent to SELLER’s Sales Acknowledgement. SELLER reserves the right to change the price on future orders of Products. All prices listed or quoted shall be exclusive of delivery charges, taxes, customs, duties, or other customary shipping fees unless otherwise expressly stated.
4. Shipment – SELLER is committed to meeting Buyer’s requirements for Product delivery. Any shipping or delivery dates as indicated by Buyer or SELLER are estimates only, and SELLER shall have no liability to Buyer for failure to complete delivery of an order by the date indicated or for any of Buyer’s incidental, indirect or consequential damages arising from a delay. SELLER shall ship Product to Buyer F.O.B. Origin, with packaging and carriers as designated by SELLER, unless otherwise specified in writing between the parties. SELLER’ title to Product passes to Buyer upon delivery of Product to the Carrier for shipment, with Carrier acting as Buyer’s agent. Buyer assumes the risk of loss for Product in transit and shall be responsible for obtaining insurance, if desired. The Shipment Date will be the date the Product is delivered to Carrier or if Buyer is arranging shipment the date Seller informs Buyer that the Product is ready for shipment will be considered the shipment date. In the event that delivery of Product is suspended due to credit issues or delivery is wrongfully not accepted by Buyer, Product shall be held and stored by Seller at Buyer’s expense and risk of loss shall immediately transfer to Buyer and all amounts due for said product shall be immediately payable. Storage and handling fees will be applied equal to $500 per pallet, plus a daily combined fee of $25 per pallet.
5. Quantity Tolerances – Seller may ship and bill for a quantity equal between 90% and 110% of the quantity specified in the Buyer order and Buyer acknowledges such quantity will complete Buyer order and Buyer further agrees to accept and pay for such quantity.
6. Returns – Buyer may not return Product without SELLER’ prior written authorization. If a return is authorized, Buyer shall return all Products within 10 days after receipt of authorization, and shall ship the Product F.O.B. Destination. When retest is required, Buyer will be charged an additional $500.00 per Product lot if Product is found to be conforming. All Products sought to be returned must be within the lot expiry period and received not later than 45 days after originally shipped by SELLER. The written authorization will specify the location the return Product should be shipped to. All unauthorized returns will become the property of SELLER and no credit will be issued.
7. Terms of Payment – Payment for Product shall be due as of the Payment Due Date stated on the SELLER’ invoice. Any portion of the invoiced amount that is unpaid as of the Payment Due Date will be subject to a late payment charge of l.5% per month (18% per year) or the highest amount permitted by law. Unless otherwise indicated in writing, each shipment shall be considered an independent transaction and payment therefore shall be made accordingly. Invoiced freight charges include applicable shipping, handling, and processing charges. SELLER shall maintain a priority purchase money security interest in the Product (and replacement) delivered and in the proceeds from the sale and disposition thereof, until Buyer has made payment in full for such Product. Buyer shall, upon request by SELLER, execute all documents (such as UCC-l) necessary to perfect such security interest in Product. SELLER has the right, upon demand, to repossess Product delivered hereunder if Buyer fails to make timely payment. All payments shall be made without any deduction and free of any set-off or other counterclaim. Buyer agrees that Seller has the right to determine, in its sole discretion, how to apply Buyer payments to open invoices or other amounts due Seller by buyer. Buyer agrees to pay all costs incurred in collection, including attorney’s fees.
8. Buyer Furnished Materials – Acceptance of such materials is at Buyer's risk. Buyer shall be responsible for any and all costs incurred by Seller resulting from such materials not meeting quality, quantity and or delivery date specifications. Buyer shall furnish the amount specified by Seller and in no case less than 115% of such material needed to complete the Buyer order to which such materials relate. Such materials must be received by Seller on later than the date specified on Seller’s Sales Acknowledgement. Buyer may store reasonable quantities of materials at PLS for pending and ongoing orders at no charge. Materials held four months or longer with no open purchase orders shall be charged $75.00 per pallet handling plus $75.00 per month per pallet to store. Nonpayment of storage and handling fees, or materials held for nine months or longer may be considered abandoned property and Seller reserves the right to dispose of property without notice to Buyer.
9. Inspection – Buyer shall be responsible for inspecting and examining all Product shipped hereunder prior to acceptance. Buyer shall give SELLER written notice of rejection specifying the alleged Non-Conformance within five (5) days following delivery to Buyer. Failure to provide such written notice of rejection within this period shall be deemed to be acceptance of the Product by the Buyer and a waiver of all claims of shortages, damage or defect or any other claim. Seller will not be liable for any damages without an opportunity of Seller to view, repair, replace or otherwise cure the cause of the purported damage. SELLER will not consider any claim for non-conforming Product or shortages (“Non-Conformances”) unless Buyer complies with the notice and authorization requirements set forth above. Buyer shall set aside and hold such Product without further use or processing until Seller advises Buyer as to the proper disposition of the Product.
10. Warranty – There are no express warranties hereunder. The liability of SELLER for any claim brought by the Buyer is limited, at SELLER’s option, solely to replace the Product, or apply an appropriate credit adjustment not to exceed the sales price of the Product to Buyer. Buyer is only entitled to the remedies listed above provided that has complied with the terms set forth in sections 4 and 7 herein. Buyer shall have no right to “cover” by procuring substitute goods at the expense of SELLER. SELLER HEREBY MAKES NO OTHER WARRANTY EXPRESSED OR IMPLIED. SELLER EXPRESSLY EXCLUDES THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE, AND ALL OTHER OBLIGATIONS OR LIABILITIES ON THE PART OF SELLER. SELLER NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR SELLER ANY LIABILITIES. UNDER NO CIRCUMSTANCES SHALL SELLER, ITS AFFILIATES, SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABLE TO THE BUYER OR ANY OTHER PERSON FOR ANY KIND OF SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGE, LOSS OR EXPENSE.. This section sets forth the sole and exclusive remedy against SELLER. No action may be taken against SELLER for breach of this Agreement more than one year after the accrual of the cause of action.
11. Intellectual Property – All specifications, designs, product formulations, data methods, patterns, and ideas made, used, conceived, developed or acquired by SELLER incident to its performance under this Agreement and all patent, trade-secret, know how, copyright, trademark or other proprietary right therein (all the foregoing, INTELLECTUAL PROPERTY) shall be the exclusive property of SELLER, and no part of the purchase price hereunder shall be deemed applicable to acquisition of or licensing of the foregoing unless otherwise agreed to in writing by SELLER. No licenses to any INTELLECTUAL PROPERTY of SELLER (including use of trademarks and trade names) are granted to Buyer. Buyer will not copy, deformulate, reverse engineer, modify, or create derivative works from any of Seller’s INTELLECTUAL PROPERTY. SELLER HEREBY MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER ABOUT THE NON-INFRINGEMENT OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY.
12. Force Majeure – SELLER shall be relieved of the performance of its obligations for the duration and to the extent that it is prevented in the performance of its obligations by reasons of force majeure. For purposes of this clause, force majeure is defined as circumstances or events, which may have not been foreseen at the time of entering into this transaction, which are not the fault of SELLER and which prevent the performance of all obligations hereunder and which are not capable of being remedied. Force majeure events include, but are not limited to, acts of God, acts of war, acts of the Government, acts of Buyer, inability to obtain necessary labor, materials or manufacturing facilities, blockades, revolutions, industrial disputes and commercial impracticality.
13. Indemnification – Buyer shall indemnify, defend, and hold SELLER, its employees, suppliers, and agents harmless from and against any and all liabilities, damages, injuries, claims (irrespective of the legal theory on which any claim is based), suits, judgments, causes of action, and expenses (including attorneys’ fees, court costs and out-of-pocket expenses) suffered or incurred by SELLER as a result of any action or omission by Buyer its employees or agents.
14. Assignability – SELLER may assign or subcontract all or any portion of its right or obligations with respect to sale of the Product or assign the right to payment without Buyer’s consent. Buyer may not assign these Terms and Conditions, or any of its rights or obligations herein without prior written consent of SELLER subject to the restrictions in assignment contained herein. These Terms and Conditions will be binding on and inure to the benefit of the parties hereto and their successors and assigns. No portion of this Agreement will be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by both parties.
15. Law and Jurisdiction – This Agreement shall be deemed to be made in New Mexico and governed in all respect by New Mexico law. The parties to this Agreement irrevocably consent to the exclusive jurisdiction of the State and Federal Courts located in the State of New Mexico. If any portion of this Agreement is found by a Court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the remainder of this Agreement.
16. Changes – Any changes in the Buyer’s order accepted by Seller may, at the sole discretion of the Seller, result in changes in shipping dates.