The Buyer hereby purchases the product(s) from UniChem Enterprises Inc. (The “Seller”) upon the Terms and Conditions set forth herein.
Agreement: All purchases of products by Buyer from Seller are subject to the Terms and Conditions set forth herein. These Terms and Conditions, the Seller’s Purchase Order Confirmation and Invoice shall collectively constitute thecomplete and exclusive agreement between the parties (“Agreement”) as they become effective upon Seller’s issuance of its Purchase Order Confirmation or invoice. No signature is required by Buyer for the Agreement to become effective and binding. In the event that Buyer disagrees with any terms or conditions of the Agreement, Buyer shall notify Seller in writing within five (5) days from its receipt of the Agreement/Terms and Conditions. Buyer’s failure to timely notify Seller of its objections to the Agreement/Terms and Conditions shall constitute as its acceptance of the same.
Acceptance of Products. The product(s) sold by Seller shall be deemed “accepted” if not refused or returned by the Buyer within 10 days of the Buyer’s receipt. The Buyer shall conduct any required inspection at its expense and shall return any nonconforming goods to the Seller within said 10-days period at the Buyer’s expense and risk.
Payment: Payment of the Purchase Price is due and payable as set forth on the invoice. Any amounts unpaid and past due will be subject to a service charge on the unpaid balance at an interest rate equal to the lesser of 12% per annum or the maximum allowable interest rate under applicable law. The Buyer shall be responsible and liable for all expenses incurred by the Seller in collection, including reasonable attorney’s fees.
Price: All Prices are fixed as of Purchase Order date and/or the Seller’s Purchase Order Confirmation date. All prices quoted are exclusive of taxes, fees, levies, duties, handling, and freight charges (“Taxes and Shipping Charges”) unless otherwise approved by the Seller.
Credit Terms: Credit terms are set and monitored by the Seller’s credit department. Seller is not obligated to extend any credit terms to Buyer and any credit terms may be terminated by the Seller at any time for any reason without notice. A $25 service fee will be assessed for any NSF check.
Return Policy: All “Special order” product(s) must be prepaid before delivery and are non returnable. All returns must first be authorized by the Seller’s management. Returned goods must be accompanied by the Seller’s Returned materials Authorization Number (RMA Number), customer name, and the original purchase order number. Returned material must be returned in its original packaging, form and quality. The Buyer assumes all liability for product which is damaged in transit or received in any other form. The Seller reserves the right to reject any material that has been contaminated or tampered with in any way, shape or form, by the Buyer or any outside party. All Returns received for any reason other than quality, will be subject to a 15% restocking charge. All restocking charges are non refundable.
Warranties: The Seller makes no warranty or guarantee, express or implied, including any warranty as to merchantability or fitness for any purpose or use of otherwise, on the product, or any portion or ingredient thereof. To the extent allowed by applicable law, Seller disclaims all implied warranties. Without limiting the foregoing, Buyer acknowledges that 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 manufacturers or Third-Party suppliers and makes no warranty or guarantee related thereto.
Risk of Loss and Delivery Methods: Title to the Product and risk of loss passes from the Seller to the Buyer on shipment from the Seller’s facility. Regardless of the manner of shipment, loss or damage that occurs during shipping is the Buyer’s responsibility; any shortage or damage to Products during transit should be reported to the carrier. In the event that Buyer fails to provide adequate instructions or Buyer’s instructions are deemed as unreasonable or unacceptable by Seller, Seller shall select a method of shipping consistent with standard industry practice.
Assignment: The Buyer shall not assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the Seller.
Limitation of Liability: In no event shall the Seller be liable to the Buyer or any Third Party for any special, indirect, incidental or consequential damages in connection with, or as a result of the sales, performance, non-performance, delivery, or non-delivery of the product or any portion or ingredient thereof or for any charges or expenses of any nature incurred without the Seller’s written consent (except direct damages as provided herein), and Buyer agrees to indemnify and hold the Seller harmless from any and all such claims by the Buyer or others. The Buyer’s exclusive remedy, and the Seller’s entire liability for any claim made by the Buyer or others against the Seller is limited to direct damages not to exceed the purchase price for the portion of the product which caused damages.
Delivery Dates and Force Majeure: All delivery dates are approximate and the Seller shall not be responsible for damages of any kink resulting from any delay. The Seller shall not be liable for any default or delay if caused, directly or indirectly, by the elements, accidents, any governmental action, prohibition or regulation, shortage or inability to obtain or non-arrival or defect of any labor, material, ingredient or product used in the product, failure of any party or Third Party to perform, or from any other cause whatever beyond the Seller’s control, that is, a “Force Majeure Condition” (e.g. acts of God, natural disasters, war, etc.) If a Force Majeure Condition interferes with the Seller’s delivery of the Product which would cause the cost of the Product(s) to exceed the purchase Price, the Seller shall be under no obligation to deliver the Product unless the Buyer agrees to pay such additional costs.
Conflicting Terms: All Purchase Orders accepted by Seller shall be subject to the Term and Conditions started herein and these terms may be changed or amended from time to time by the Seller. Absent the express written approval of Seller, any terms and conditions presented in orders or documents issued by the Buyer which are in conflict with or in addition to the terms and conditions of this Agreement shall be inapplicable to the sales and deemed explicitly rejected by Seller. Acceptance of an order or shipment of product(s) itself shall not be or deemed to be acceptance of any conflicting or additional terms and conditions by Seller.
Miscellaneous:
Enforcement: The Buyer shall be responsible and liable for all costs incurred by the Seller in enforcing the terms of this Agreement, including reasonable attorney’s fees.
Binding Effect: This Agreement shall be binding upon and inure to the benefit of the parties, their respective successors, legal representatives and permitted assignees.
Governing Law: This Agreement shall be governed by and construed under the laws of California, without regard to conflicts of laws rules. Any cause of action that may arise in any way under or due to this Agreement shall be brought in the County of San Bernardino, California, and the parties waive any right to a jury trial.
Notices: All notices required to be given shall be in writing and delivered to the address set forth on the Purchase Order by hand or by certified first class mail, postage prepaid, return receipt requested, and shall be deemed given upon the date hand delivered or three days after mailing.
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 valid and enforceable by limiting it as to time, subject or scope as required under applicable law.
No Waiver: All rights and remedies of the Seller 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 the Seller, nor shall there be any estoppel against the Seller, except by written consent of the Seller.
No Agency Relationship. No term herein contained shall be deemed or construed as granting a party any right or authority to assume or to create any obligation or responsibility, express or implied, for or on behalf of, or in the name the other party. It is intended that each Party shall remain an independent contractor responsible only for its own actions.
Limitations: Any suit or other action based on breach of this Agreement or any other claim arising from the Product(s) (other than an action by the Seller for amounts due the Seller) must be commenced within one year from the date of tender for delivery of products by the Seller.
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