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Terms and Conditions
1. Terms of Payment. Customer shall tender to Company all payments required in advance of shipment. All orders of $200 or more must be paid by cashier’s check, money order, or credit card unless otherwise agreed to by Company. Returned checks will incur a $50.00 charge. California Sales Tax must be assessed on all product or equipment purchases made in California and on all orders shipped to an address within California. Customer must provide a resale number for tax exemption for product purchases. Cancellations are subject to a 25 percent cancellation fee. No cancellations accepted after 24 hours from purchase. Noncompliance with terms of payment in connection with a previous purchase order shall give the Company the right to suspend shipment under this purchase order until all previous outstanding balances have been paid for in full.
2. Deposit Required by Customer. Company may require Customer to make a deposit payment prior to the Company’s acceptance of any purchase order for products.
3. Right of Company to Alter Credit Terms. If Customer fails to meet its obligations to make payment due hereunder the terms of this purchase order, or if the credit of Customer shall hereafter become impaired or its financial condition become such that, in Company’s sole judgment, the credit to be extended to Customer for the products should be curtailed or eliminated, Company shall have the right to require payment in advance of delivery for all products, and, upon notification to Customer by Company, the terms of payment hereunder shall be deemed amended so as to provide for payment in advance of delivery.
4. Limitation of Deductions. In making payments to Company under the terms of this purchase order, no deductions for warranty or any other claims against Company shall be made unless Customer receives from Company prior written approval.
5. Security Interest. Company is hereby granted a purchase money security interest in all products delivered by Company to Customer pursuant to this purchase order and in all proceeds from the sale of the products by Customer, including accounts receivable and cash receipts arising therefrom. Said security interest shall remain with Company until Company receives full payment of the purchase price thereof. Company shall have all rights of a secured party under the California Commercial Code. Customer shall execute such UCC financing and continuation statements as Company shall request from time to time. If Customer shall fail or refuse to sign any such statements, Company is irrevocably authorized to execute such statements as Customer’s attorney-in-fact.
6. Acceptance of Orders and Shipment of Products.
(a) Acceptance. Company shall not be bound by the terms of this purchase order until such order has been accepted by Company; provided, however, that upon acceptance by Company, this purchase order shall constitute a binding agreement of the Company to sell and ship, and of Customer to purchase and pay for, products specified on the reverse side hereof. Company reserves the right, in its sole and absolute discretion, to refuse to engage in business with any company and/or natural individual and to decline to accept this purchase order, specifically, without regard to cause.
(b) Inconsistent Terms in an Order. The terms and conditions hereof, and of any distribution agreement provided by Company to Customer, shall be the only agreements governing this purchase order. If Customer attaches or otherwise supplements this purchase order with its own form of purchase order, or any other forms, any terms or conditions contained in customer’s purchase order form that are inconsistent with the terms of this purchase order, shall be null and void and shall not be binding on Company.
(c) Shipment of Products. If this purchase order is accepted, Company shall use its best efforts to ship the products set forth on the reverse side hereof, to Customer, within a reasonable time after Company’s acceptance of such order. However, lead time will vary according to availability of supply, delays in transportation, manufacturing problems, and other conditions, and, consequently all delivery dates communicated by Company are estimates. Under no circumstances shall Company be liable to Customer, its agents or sub-Customers, or any other persons for any special or consequential damages, whether based upon lost goodwill, lost resale profits, work stoppage, impairment of or breach of contract, negligence, or such other actions as may be deemed or alleged to be the cause of a loss or damage to such a person by reason of any delay in shipment or the failure of Company to ship any products. All orders will be shipped by UPS, USPS, FedEx, or DHL unless otherwise specified. No next-day, second-day, or third-day delivery method will be used, unless requested by and paid for by the customer. There is an additional $8.00 charge for all COD orders. UPS does not collect cash for COD orders. Allow five working days for shipments in the U.S. (d) Return of Products. Customer shall not be permitted to return any products for credit without obtaining: (i) the prior written approval of Company to return such products; and (ii) a return authorization number issued by Company. If Company agrees to accept such returned products, a restocking charge of 25 percent of the invoice price (inclusive of any and all costs and expenses incurred by Company in packing, shipping transporting, or otherwise delivering products to Customer) shall be paid to Company by Customer. In addition, Customer shall bear all costs and expenses of returning products and all risk of loss until Products are received at the location the Company shall have designated for such return. Damage/defective products must be reported within 24 hours of receipt of merchandise. Customer must have original packaging with tracking number of the carrier to process the damage complaint. Damage complaints without original packaging and tracking number will not be accepted. Only items with manufacturing defects or with damages due to improper shipping will be accepted for return. Equipment damaged by improper use is ineligible for return under any circumstances. The Company will issue Company credit only for returns. No refunds.
7. Warranties. Company makes no express or implied representations or warranties concerning products or their performance, except that it will deliver good title to products free from all liens or encumbrances other than the purchase money security in favor of Company pursuant to this purchase order. Any statements and representations by Company outside this purchase order concerning products are only Company’s opinion, are not a part of the basis of the bargain, and are not warranted to be accurate.
8. Trademarks. Customer acknowledges and agrees that the names ‘’Spa De Soleil,” “Pharmaskincare®,” and product logotypes (collectively, the ‘’marks’’) used by Company are service marks and trademarks belonging solely to Company and that Customer shall not use the marks to identify its business. Customer may represent that it is an authorized Customer of Company in the manner described in Company’s procedures manual, but it shall not otherwise use the marks. Customer further acknowledges that its unauthorized use of the marks will be a breach of this purchase order and an infringement of Company’s trademark rights. Customer’s usage of the marks and any goodwill established by such use shall be exclusively for Company’s benefit.
9. Force Majeure. Company shall not be liable for any loss, damage, delay, or failure to perform in whole or in part resulting from causes beyond Company’s control, including, but not limited to, fires, strikes, insurrections, riots, embargoes, shortages in supplies, delays in transportation, or requirements of any governmental authority.
10. Liability Limit. Company shall not be liable for any breach of this contract or of any duty or obligation arising out of or related thereto in any amount in excess of the invoice price on the reverse and shall not be liable in any event for loss of contents or for special or consequential damages.
11. Laws. This purchase order shall be governed, construed, and interpreted under the laws of the State of California, including all applicable provisions of the California Commercial Code.
12. Arbitration. Any controversy or claim arising out of or relating to this purchase order in excess of $1,000 shall be settled by arbitration conducted in Los Angeles, California, in accordance with the commercial rules then in effect of the American Arbitration Association. Neither party shall be precluded from bringing an action in any court of competent jurisdiction for injunctive or other provisional relief as necessary or appropriate.
13. Agreement. Customer’s order for the purchase of the products itemized on the reverse side of this purchase order form constitutes Customer’s agreement to be bound by the terms and conditions of this purchase order.
AGREED TO AND ACCEPTED BY CUSTOMER - Upon ordering and completing payment, client acknowledges and accepts full terms and conditions above.
PRICES SUBJECT TO CHANGE WITHOUT NOTICE.
ACKNOWLEDGEMENT & RELEASE
1. Product Formulation, Labelling and Claims
In preparing products for production, OEM may provide Spa with OEM’s product formulation, label designs, label content, or product claims. Conversely, Spa may offer to provide OEM with Spa’s product formulation, label designs, label content, or product claims. Regardless of which party provides the product formulation, label designs, label content, or product claims, OEM is solely responsible for proofing and approving all product formulations, label designs, label content, or product claims prior to production.
2. Legal Compliance
OEM is solely responsible for ensuring that the products and all product formulations, label designs, label content, or product claims are in compliance with all applicable laws and regulations including FDA and State registration, product approvals, and labelling requirements.
3. Product Testing
OEM is solely responsible for complying with any applicable federal, state, or foreign nation laws or regulations that require product to be evaluated during or after production to ensure that product conforms to formula and is free of all hazards. Such testing may include product/batch validation, product/container stability, product/container compatibility, PET (Micro Challenge Testing) and RIPT sensitivity testing. OEM is likewise solely responsible for testing the performance, function, feasibility, efficacy, safety/RIPT, and stability of all formulas, product containers, product packaging, and/or product batches produced by Spa.
4. Actions of Third Parties
OEM acknowledges and agrees that Spa shall not be liable for any delays, loss, or damage to product or product packaging caused by third parties, including without limitation, shipping providers, fulfillment services, distributors, or retailers. OEM further acknowledges and agrees that Spa shall not be responsible for providing or selecting product containers or packaging that meet or exceed durability standards, including without limitation, crush test certifications, required by shipping and fulfillment service providers. OEM is solely responsible for determining the suitability and feasibility of all product containers and packaging.
OEM acknowledges and agrees that it has sole responsibility for product testing and for proofing, approving, and ensuring legal compliance of all product formulations, label designs, label content, or product claims. OEM releases Spa from all liability arising from or in connection with any product formulation, required or voluntary product registration, regulatory approval, product labeling, product claims or OEM’s failure to identify hazards or non- conformities by conducting adequate testing of the products during or after production. OEM understands and agrees that in no event shall Spa be liable to OEM for any direct, indirect, special or consequential damages or lost profits, related to or arising from or in connection with any product formulations, label designs, label content, product claims, or OEM’s failure to identify hazards or non-conformities by conducting adequate testing of the products during or after production.
OEM, to the fullest extent permitted by law, hereby agrees to pay, defend, indemnify and hold Spa harmless from any and all claims, demands, causes of action, damages, losses, costs, expenses, or government regulatory action or inquiry resulting from or arising in connection with product formulations, label designs, label content, or product claims or OEM’s failure to identify hazards or non-conformities by conducting adequate testing of the products during or after production.