VIVA 5, LLC, TERMS AND CONDITIONS OF PURCHASE
Effective Date: 12/01/2021
These terms and conditions of purchase, as may be modified in writing by Buyer from time to time (the “Terms”), shall govern this transaction and any futuretransaction between Seller and Buyer, notwithstanding any conflicting term or condition of Seller’s acknowledgement or any other document orcommunication to the contrary. Buyer hereby objects to and rejects any terms or conditions contained in any such document or communication which iscontrary or in addition to these terms and conditions.
The term “Buyer,” except as otherwise defined herein, means Viva 5, LLC. The term “Seller” refers to the company or person(s) listed on the face of this Purchase Order to whom this offer or counteroffer is extended and includes any entity who provides the articles or services purchased byBuyer. The word “articles” means goods, products, raw materials, equipment, supplies, parts, assemblies, services or other items covered by this Purchase Order. The term “Purchase Order” shall be understood to include these Terms, the information on the face hereof (including any documents or standards referenced thereon or herein, or separately transmitted by Buyer together with these terms and conditions or as part of the purchasing process)and any duly executed change orders and attachments.
2. Acceptance of Purchase Order
These Terms and the Purchase Order constitute Buyer’s offer or counteroffer to Seller for the purchase of the articlesidentified in the Purchase Order and shall be binding upon acceptance by Seller. Acceptance by Seller shall occur upon the earlier of Seller’s sending awritten acknowledgment to Buyer, or the commencement of performance by Seller. By accepting this Purchase Order, Seller agrees to and accepts these Terms. No changes to these Terms or the Purchase Order shall be binding upon Buyer unless expressly confirmed by Buyer in writing. All charges associated with the Purchase Order must be itemized therein, and any charges not so itemized will not be paid by Buyer absent Buyer’s express written consent.
3. Correspondence and Acknowledgments
All correspondence and acknowledgments related to the Purchase Order shall be directed to the attention ofBuyer’s purchasing office, at the e-mail address listed on the Purchase Order, or to such other e-mail address as Buyer may inform Seller in writing.
TIME, QUANTITY, AND DELIVERY TO THE DELIVERY LOCATION IS OF THE ESSENCE UNDER THESE TERMS. The Seller shall deliver the articles on or before the delivery date set forth in the Purchase Order (the “Deliver By Date”) to the delivery location identified in the Purchase Order (the “Delivery Location”). Delivery shall occur when the articles are received at the Delivery Location. In the event of Seller’s failure to deliver the articles by the Deliver By Date, Buyer reserves the right to (i) cancel the Purchase Order or any part thereof by written notice to Seller, without prejudice to any otherrights Buyer may have at law or in equity, and (ii) to return part or all of any associated shipment of articles. Additionally, commencing three (3) days afterthe Deliver By Date, Buyer may, at its sole discretion, deduct up to one-half percent (0.5%) of the amount due to Seller under the Purchase Order for eachday that delivery of the articles is delayed beyond the Deliver By Date. Acceptance of partial shipments of articles shall be in the Buyer’s sole discretion.
All shipments of articles are subject to Buyer’s inspection and approval or rejection notwithstanding Buyer’s prior receipt of or payment for thearticles. Buyer shall have a reasonable period of time, and in any event no less than 10 business days following receipt of a shipment of articles (the“Inspection Period”) to inspect the articles and to inform Seller, in writing, of Buyer’s rejection of any nonconforming articles. For purposes hereof, “nonconforming articles” shall mean any articles received from Seller that: (i) are not delivered by the Deliver By Date; (ii) are not in conformity with the Purchase Order; (iii) upon visual inspection or testing, Buyer reasonably determines do not comply with any of Buyer’s quality control standards, or any specifications, product samples or descriptions communicated or provided by Seller to Buyer; (iv) upon visual inspection or testing, Buyer reasonably determines are otherwise defective; or (v) upon visual inspection or testing, Buyer reasonably determines are not in compliance with applicable law. Without Buyer’s prior written authorization, Seller shall not ship nonconforming articles whether as an accommodation or otherwise. If Buyer rejects any nonconforming articles, Buyer may elect to (a) require Seller, at Seller’s sole cost, to replace the rejected articles; (b) obtain the articles from a third party; or (c) retain the nonconforming articles, in each case without limiting the exercise by Buyer of any other rights available to Buyer under these terms orpursuant to applicable law.
6. Damages for Seller’s Breach
By accepting the Purchase Order, Seller acknowledges that Buyer is relying on Seller’s special ability to obtain andsupply the articles in the specified quantities and quality and by the Deliver By Date. Accordingly, Buyer shall be entitled to recover all damages suffered in the event of Seller’s breach of the Purchase Order, including but not limited to consequential and incidental damages.
7. Payment Terms
Terms of payment, absent an authorized amendment hereto and except where Seller offers superior terms or as otherwise provided inthe Purchase Order, shall be 1% 10 Days, Net 45 Days from date of Buyer’s acceptance of the articles, which in the case of consumables does not occur until the articles have passed all relevant screening tests. Payment is deemed made on the date on which payment is transmitted by Buyer. If the articles aregoods, payment may be delayed by Buyer for the duration of any hold, ban, or detention imposed by any relevant government authority.
8. Packing and Shipping
Seller shall properly pack, mark, and ship the articles as instructed by Buyer and otherwise in accordance with applicable law and industry standards. There will be no additional charge for packing, boxing, crating, carting, or storage of the articles, unless otherwise expressly confirmed in writing by Buyer, and articles shall be suitably packed to secure lowest transportation costs. Seller shall provide Buyer with all shipping documentation in compliance with applicable law and regulations. Seller must provide only one packing list per Purchase Order, which shall accompany each shipment that relates to such Purchase Order. Buyer’s Purchase Order number, quantity and description of articles in the shipment, Seller’s name, billof lading number, and the country of origin must be plainly marked on all packing lists, packages, bills of lading, shipping orders, and correspondence. Buyer shall only be liable to pay for quantity of articles ordered but may, in its sole discretion, retain any excess quantities of articles shipped without its approval. All orders are F.O.B. Delivery Location unless the Purchase Order states otherwise.
9. Title and Risk of Loss
Title to the articles shall pass to Buyer upon delivery of the articles. Title shall pass to Buyer even if Seller has not received payment for such articles, provided that Buyer will not be relieved of its obligation to pay for such articles in accordance with these Terms. Risk of loss toarticles under a Purchase Order passes to Buyer upon receipt and acceptance by Buyer at the Delivery Location, and Seller will bear all risk of loss or damage with respect to shipments of articles until Buyer’s receipt and acceptance of such articles in accordance with the terms hereof.
10. Warranty and Compliance
Seller warrants that all articles shall conform to applicable specifications, drawings, descriptions, and samples, and shall be merchantable, of good workmanship and materials, fit for the particular purpose or purposes for which intended, free from defect, claim encumbrance, or lien, and in compliance with law. Seller warrants that the articles do not contain any ingredients or additives of any kind other than what is specifically disclosed to Buyer in Seller’s certificate(s) of analysis or specifications, including but not limited to any artificial flavorings, sweeteners, chemicalsor substitutes that mimic, supplement, alter or enhance the primary articles/ingredients being supplied or that would constitute any attempt to engage in “economic adulteration.” Seller warrants that no animals were used to test any ingredients or raw materials that are intended for or may be used in cosmetic products. Seller warrants that the articles, including the trademarks used in connection therewith, as well as the claims and representations madeby Seller with respect thereto, and the manufacturing processes and structure of the articles, do not infringe the intellectual property rights of any thirdparties. Seller warrants and certifies that its activities and those of its suppliers comply with all applicable laws and regulations in the country or countries in which Seller or its suppliers do business including those concerning human trafficking and slavery. If articles delivered or services furnished herein do not meet the warranties specified herein or otherwise applicable, Buyer may at its option return at Seller’s expense the defective or nonconforming articles forcredit or refund, or require Seller to correct, at no cost to Buyer, any defective or nonconforming article or services. Buyer’s inspection, approval, acceptance, use of or payment for all or any part of articles shall in no way affect its warranty rights.
11. Assignment and Subcontract
Neither these Terms, the Purchase Order, nor any duty or right thereunder shall be delegated or assigned by Sellerwithout the prior written consent of Buyer. Any assignment not made in accordance with this paragraph is void and shall have no effect.
12. Hazardous Materials
If any article supplied hereunder is required to have a Material Safety Data Sheet (MSDS) under applicable laws orregulations, then a copy of the current version must be submitted with each shipment of the article or be on file with Buyer.
Seller agrees to indemnify, defend and hold Buyer harmless from any and all losses, costs or expenses, including, but not limited to,government fines or assessments and reasonable attorneys’ fees and court costs incurred on account of or related to any breach by Seller of any covenant,warranty or representation contained or referenced herein, or in any other document provided or produced by Seller. At Buyer’s option, Seller shall defendBuyer, at Seller’s expense, in all suits or proceedings arising out of any of the foregoing, and/or reimburse Buyer for its expenses and costs (includingreasonable attorneys’ fees and costs). Buyer shall have the right to offset any loss, liability or damages suffered by Buyer or any of its affiliates against anyamounts owing to Seller or any of Seller’s affiliates.
14. Intellectual Property Rights
In the event any articles sold and delivered hereunder shall be covered by any patent, copyright, trademark, otherintellectual property right, or application therefor owned by or licensed to Seller and necessary for Buyer to use or sell any article (the “Intellectual Property Rights”), Seller shall inform Buyer in writing of the nature of the Intellectual Property Rights and shall be deemed to have granted to Buyer a license to use the Intellectual Property Rights in connection with the manufacture, sale, marketing, or distribution of those goods of Buyer which incorporate the same. Seller represents and warrants to Buyer that it is the owner of or has a license to use all Intellectual Property Rights related to thearticles and is authorized to grant the license described herein to Buyer.
15. Advertising and Endorsements
Seller shall not advertise, disclose, nor claim or imply endorsement in any way to any third party nor use anyinformation whatever concerning these Terms, the Purchase Order, or Buyer’s relationship with Seller without prior express written permission from Buyer.
Buyer may at any time insist upon strict compliance with these Terms, notwithstanding previous custom, practice or course of dealing to the contrary. Identification of the articles shall occur at the moment this offer is accepted by Seller. These Terms and the Purchase Order contain the entire agreement of the parties. In the event of discrepancies, omissions, and/or errors in this Purchase Order, the matter shall be submitted immediately to Buyer for determination. No waiver by Buyer of any provision of these Terms or of any obligation of Seller, and no partial or single exercisethereof, shall constitute a waiver of any other provision or of any other of Seller’s obligations.
These Terms, the Purchase Order, and any contract arising therefrom between Buyer and Seller shall be governed by and construed inaccordance with the laws of the State of Florida, without regard to conflict of laws principles. Any dispute between Buyer and Seller arising out of or related to these Terms or any Purchase Order shall be brought exclusively in federal or state courts situated in Pinellas County, Florida, and Seller hereby submits to the exclusive jurisdiction of such courts.
18. Provisions Applicable to Consumables
In addition to the foregoing, the following provisions shall apply to articles that are intended for human oranimal consumption or use (with the word “human” being replaced by “animal” to the extent the article is intended for animal consumption or use). Sellerrepresents and warrants that: (i) such articles will conform with claims made and specifications referenced on the corresponding label (to the extent thatSeller has been supplied a copy of such label or been made aware of the claims made on such label); and (ii) such articles are and shall be fit for human consumption or use, and do not contain any substances or ingredients that may be harmful to a human who consumes or uses them. Without limiting the generality of the foregoing, Seller further warrants that the articles comprising each shipment or other delivery hereafter made by Seller to Buyer, as of the date of such shipment or delivery, shall: (a) if goods, not be adulterated, misbranded, unapproved new drugs or otherwise violative within the meaning of the Federal Food, Drug, and Cosmetic Act (hereafter “FDC Act”), 21 U.S.C. 301 et seq.; (b) have been formulated, manufactured, packaged, labeled,advertised, promoted, and handled in accordance with, and are otherwise in accordance with and not in violation of, all other applicable requirements of federal, state and local law; and (c) otherwise not be an article that may not properly be introduced into commerce under the provisions of the FDC Act or any other federal, state or local law and include or reference all required warnings. Seller also warrants to Buyer that all claims, representations and otherstatements about the articles that have been made by Seller in labeling, advertising or other promotion for the articles are truthful, not misleading, and supported by valid substantiating data, and in addition, Seller warrants to Buyer that Buyer may properly repeat in any labeling, advertising or otherpromotion for the articles, or for any product which includes the articles, any or all of the claims, representations or other statements about the articles that have been made by Seller in its labeling, advertising or other promotion for the articles. Furthermore, with respect to all such products, all shipments of rawmaterials or finished goods shall be accompanied by a current and accurate Certificate of Analysis, Allergen Statement, and Material Safety Data Sheet meeting Buyer’s requirements.