China Vitamins, LLC
Terms and Conditions
Except as expressly otherwise agreed to in writing by an authorized representative of China Vitamins, LLC (“Seller”), the following terms and conditions shall apply to, and form a part of, each purchase order from a buyer of Seller’s goods ( “Buyer”) that has been accepted by Seller (the “Order”) and any additional and/or different terms of the Order or other document are rejected in advance and shall not become a part of the Order.
1. BASIC TERMS: The provisions of the Order that relate solely to the description of the Seller’s goods (the “Goods”), the price of the Goods, the initial schedule of delivery of the Goods, the schedule of payment of such price (excluding any excuse for non-payment), and the terms of shipment of the Goods shall be as set forth in the Order.
2. SELLER’S OTHER RIGHTS: In addition to the rights and remedies conferred upon Seller by this Order (including these Terms and Conditions), Seller shall have all rights and remedies conferred at law and in equity and shall not be required to proceed with the performance of the Order if Buyer is in default in the performance of such Order or of any other contract or Order with Seller.
3. MODIFICATION OF PAYMENT TERMS: If any proceeding is initiated by or against Buyer under any bankruptcy or insolvency law, or in the judgment of Seller the financial condition of Buyer, at the time the Goods are ready for shipment, does not justify the terms of payment specified, Seller reserves the right to require full payment in cash prior to making shipment. If Buyer defaults in any of its obligations, Seller may, at Seller’s option, declare all sums owed by Buyer immediately due and payable; and if Seller sues to collect any indebtedness of Buyer, Buyer shall pay all expenses and costs incurred by Seller in connection with such action, including reasonable attorney’s fees. Accounts past due shall bear interest at 18% per annum.
4. DELIVERY: Time of delivery is an estimate only and is based upon the receipt of all information and necessary approvals. Seller shall in no event be liable for delays caused by fires, acts of God, strikes, labor difficulties, acts of governmental or military authorities, delays in transportation or procuring materials, or causes of any kind beyond Seller’s control. No provision for liquidated damages for any cause shall apply under the Order.
5. CLAIMS AND RETURNS: No Goods sold to Buyer shall be returned to Seller for replacement or credit without providing Seller with the opportunity to inspect the alleged defect in the Goods. Seller will make the arrangements regarding the return of any defective Goods. Seller will, in its discretion, determine whether the Goods will be repaired or replaced. All returned Goods, for whatever cause, will be subject to inspection by Seller prior to final acceptance of the return. Receipt of Goods by Buyer shall constitute acceptance of the Goods and a WAIVER OF ALL CLAIMS FOR A BREACH AS A RESULT OF A DELAY. All claims for alleged defects/shortages must be made to Seller within ten (10) days of receipt of the shipment on which such defect/shortage is claimed and will be deemed waived if not made within that time period.
6. DISCLAIMER OF WARRANTIES; LIABILITY LIMITATIONS: SELLER MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, WHICH EXTEND BEYOND THE SPECIFICATION OF THE GOODS SET FORTH IN THE ORDER. SELLER EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE GOODS WILL BE FIT FOR ANY PARTICULAR PURPOSE BUT ARE SOLD “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. SELLER’S LIABILITY TO BUYER OR ANY THIRD PARTY ON ANY CLAIM BASED UPON ANY THEORY OF LIABILITY, INCLUDING NEGLIGENCE, FOR ANY LOSS OR DAMAGE ARISING OUT OF, OR IN ANY OTHER MANNER CONNECTED WITH, THE USE OF THE GOODS OR BREACH OF THIS ORDER, OR FROM THE MANUFACTURE, SALE, DELIVERY, RESALE, INSPECTION, OR USE OF ANY OF THE GOODS PROVIDED HEREUNDER, IS IN NO CASE GREATER THAN THE PURCHASE PRICE ALLOCABLE TO THE GOODS WHICH GIVE RISE TO THE CLAIM AND WHICH PURCHASE PRICE OR PORTION THEREOF HAS ACTUALLY BEEN RECEIVED BY SELLER. WHETHER AS A RESULT OF BREACH OF THE ORDER OR ANY WARRANTIES OR ALLEGED NEGLIGENCE, IN NO WAY WILL BE LIABLE TO BUYER OR ANY THIRD PARTY FOR SPECIAL, LIQUIDATED, INCIDENTAL OR CONSEQUENTIAL DAMAGES EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. CANCELLATION: The Order may not be canceled or altered except with the prior express written consent of Seller.
8. ASSIGNMENT: The rights of Buyer under the Order shall neither be assignable nor transferable without the prior written consent of Seller.
9. CHOICE OF LAW; VENUE; CONSENT TO SERVICE OF PROCESS: The Order shall be construed, interpreted and the rights of Buyer and Seller determined in accordance with the laws of the State of New Jersey (without reference to the choice of law provisions thereof), except with respect to matters of law concerning the internal corporate affairs of any corporate entity that is a party to or the subject of the Order and as to those matters the law of the jurisdiction under which such entity derives its powers shall govern. Buyer and Seller agree to the exclusive jurisdiction and venue of the state and federal courts of the State of New Jersey with respect to any dispute arising out of or related in any way to the Order. Buyer and Seller agree that service of process may be made upon Buyer or Seller by mailing a copy thereof by registered or certified mail, postage prepaid to such party at its address as provided for in the Order.