Terms and Conditions of Sale
1. Applicability.
These Terms and Conditions of sale (these “Terms”) govern the sale of goods by Apexcm, Inc., a Delaware corporation (the “Apex”). These Terms apply to any Purchase Order accepted by Apex (the “Purchase Order”)from a Customer named on such Purchase Order (the “Customer”). Such Purchase Order and these Terms together comprise the entire agreement between Customer and Apex (the “Contract”), and, unless otherwise agreed by Customer and Apex, supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications. These Terms prevail over any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its purchase order or such terms; any such purchase order or terms submitted by Customer (including those attached to the Purchase Order or purportedly incorporated therein by reference to an external website hosting such terms and conditions) are hereby rejected by Apex and shall not become part of the Contract. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms. In the event of any conflict between a Purchase Order and these Terms, these Terms shall control.
2. Manufacture of Goods.
(a) Apex agrees that it will manufacture the nutraceuticals or other products (collectively, the “Goods”) specified on the applicable Purchase Order in accordance with written specifications provided by Customer and agreed to by Apex (the “Specifications”) and current Good Manufacturing Practices (“cGMP”) of the United States Food and Drug Administration (“FDA”) applicable to the Goods. Apex shall perform such manufacturing at Apex’s facility in Tampa, Florida (the “Manufacturing Facility”)
(b) Customer represents and warrants that it has allrights and power necessary to authorize Apex to manufacture the Goods under this Contract.
(c) Apex will have no obligation to commence manufacture of any Goods unless (i) Customer and Apex have agreed upon the Specifications and (ii) Customer has made any down payment, deposit, or advance payment specified in Section 11(a) or the applicable Purchase Order.
(d) Any completion dates, expected delivery dates, excepted receipt dates, or similar information included in a Purchase Order are estimates and shall not be binding on Apex.
(e) Once the initial manufacturing process is complete, Apex shall not be required to rework any finished Goods unless otherwise agreed by Apex and Customer. In such event, Apex will advise Customer the cost of any rework requested by Customer, and Apex shall not commence any rework unless and until Customer agrees in writing (which maybe by email) with such cost. Customer shall pay Apex the cost of the rework in full upon completion, not withstanding any other payment terms that apply to the original Purchase Order.
3. Labeling and Packaging.
(a) Customer shall supply to Apex all labels, artwork, and packaging materials required for the Goods. If Customer does not supply artwork to Apex within 3 weeks after the Purchase Order is accepted by Apex and all other such items to Apex within 8 weeks after the Purchase Order is accepted by Apex, then Apex shall be permitted to ship to Customer finished Goods with no labels or artwork in packaging determined by Apex in its commercially reasonable dissection.
(b) Customer shall be solely responsible for compliance of all labels and packaging materials it supplies with applicable laws and regulations and FDA requirements. Any feedback provided by Apex to Customer regarding such labels, including, without limitation, any label review checklist or similar document prepared by Apex, shall be for Customer’s information only and shall not give rise to any liability of Apex. Customer shall have the sole discretion to determine the content of its labels and shall bear all liability for such content.
(c) Except for its use of labels and packaging materials supplied by Customer, Apex shall package Goods and prepare them for shipment usingApex’s standard methods for packaging.
4. Product Documentation.
Following completion of manufacture of Goods, Apex will provide Customer with one more documents evidencing that the Goods were manufactured in accordance with Specifications and cGMP. Such documents may include, without limitation, Certification of Analysis, Master Product Specifications, Composition Analysis, Safety Data Sheet, Letter Guarantee, Certificate of Conformance, or Letter of Origin. If Customer requests any such documents before completion of manufacture, Apex may assess a documentation fee as a condition to providing such documents prior to the completion of manufacture.
5. Title and Risk of Loss.
Not withstanding anything in the Contract to the contrary, title and risk of loss to Goods shall pass to Customer immediately upon completion of manufacture, without the requirement of delivery of any specific documentation from Apex to Customer. Apex’s internal records regarding the time at which manufacture is completed shall be conclusive evidence of the passage of title.
6. Storage of Goods Until Shipment.
(a) From the time that title to Goods passes to Customer in accordance with Section 5 until the time that Customer’s carrier picks up such Goods at the Manufacturing Facility, Apex shall store the Goods at the Manufacturing Facility awaiting the arrival of Customer’s carrier. Customer shall bear all risk of loss to the Goods during such time. Apex shall have no obligation to insure any Goods that it is storing under this Contract. Apexs hall reasonably cooperate with Customer if Customer requests assistance with adding the Goods to Customer’s insurance policies following passage of title.
(b) If Customer’s carrier has not picked up the Goods fromthe Manufacturing Facility within two (2) business days after Customer hasreceived notice from Apex that manufacture of the Goods is complete, then Apex maycharge Customer a storage fee until the Goods are picked up.
(c) If Customer’s carrier has not picked up the Goods from the Manufacturing Facility within 60 days after Customer has received notice from Apex that manufacture of the Goods is complete, then Apex shall give notice of such failure to Customer and Customer shall have 30 days from the date of such notice to cause the Goods to be picked up from the Manufacturing Facility. If Customer does not cause such Goods to be picked up by the end of such 30-day period, Apex reserves the right to deem the Goods abandoned by Customer. Any Goods deemed abandoned may be, at Apex’s option, either stored byApex for a storage fee or destroyed by Apex for a destruction fee.
7. Shipping and Delivery.
Customer shall be responsible for arranging shipment of the Goods from the Manufacturing Facility to a location designated by Customer. Shipping terms shall be F.O.B. the Manufacturing Facility unless otherwise agreed in a Purchase Order. Customer shall pay all shipping and handling expenses. Apex shall not be liable for any delays, loss or damage in transit. Not withstanding the foregoing, if agreed by Customer and Apex, Apex will coordinate shipping ofthe Goods for a fee.
8. Non-delivery.
(a) The quantity of Goods as recorded by Apex on dispatch from the Manufacturing Facility is conclusive evidence of the quantity received by Customer on delivery unless Customer can provide conclusive evidence proving the contrary.
(b) Apex shall not be liable for any non-delivery of Goods unless Customer gives written notice to Apex of the non-delivery within 5 day sof the date when the Goods would in the ordinary course of events have been received.
(c) Any liability of Apex for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the price paid by Customer respecting such Goods to reflect the actual quantity delivered.
(d) Customer acknowledges and agrees that the remedies set forth in Section 6(c) are Customer’s exclusive remedies for non-delivery of Goods.
9. Customer’s Acts or Omissions.
If Apex’s performance of its obligations under this Contract is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, Apex shall not be deemed in breach of its obligations under this Contract or otherwise liable for any costs, chargesor losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
10. Inspection and Rejection of Nonconforming Goods.
All Goods shall be deemed accepted by Customer unless Apex delivers Goods that do not conform with this Contract and Customer provides Apex with written notice specifying such non-conformance within 10 days after Apex notifies Customer that manufacture of the Goods is complete. If Apex delivers nonconforming Goods to Customer and Customer notifies Apex within such 10 day period, Part 6 of Article 2 of the Uniform Commercial Code as adopted in Florida shall govern the rights and obligations of the parties with respect to such nonconforming Goods, subject to any agreement between the parties regarding the return or replacement of such nonconforming Goods.
11. Price.
(a) Customer shall purchase the Goods from Apex at the price (the “Price”) set forth on the face of the Purchase Order.
(b) All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, tariffs, duties and charges of any kind imposed by any governmental authority on any amounts payable by Customer. Customer shall be responsible for all such charges, tariffs, costs and taxes; provided, however, that, Customer shall not be responsible for any taxes imposed on, or with respect to, Apex’s income, revenues, gross receipts, personnel or real or personal property or other assets.
(c) In addition to the Price, Customer shall pay Apex all applicable fees for services or other work performed by Apex pursuant to the fee schedule attached hereto as Exhibit A and incorporated herein by reference. All such fees shall be due on demand unless otherwise agreed by Apex.
12. Payment Terms.
(a) Unless otherwise set forth in the Purchase Order, 50%of the Price of the Goods shall be due within two (2) business days after Apex accepts the Purchase Order. Any such payment is non-refundable unless Apex cancels the applicable Purchase Order pursuant to Section 18.
(b) Unless otherwise set forth in the Purchase Order, the balance of the Price is due after manufacturing of the Goods is complete. Apex will send Customer an invoice after completion of manufacture that will specify the due date. If no due date is specified, payment will be due upon delivery of the invoice.
(c) All payments shall be made in US dollars by ACH transfer. Apex may accept other payment methods at the request of Customer, provided that Customer shall pay any reasonable charges assessed by Apex in connection with Apex’s acceptance of alternate payment methods.
(d) Customer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Apex for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
(e) If a Customer payment is returned, dishonored, or otherwise insufficient, Customer shall pay Apex an amount equal to 110% of the Price within five (5) days after Apex notifies Customer that the payment was insufficient.
(f) Customer shall not withhold payment of any amounts due and payable by reason of any set off of any claim or dispute with Apex, whether relating to Apex’s breach, bankruptcy or otherwise.
(g) As collateral security for the payment of the Price, Customer hereby pledges and grants to Apex a lien on and security interest in and to all of the right, title, and interest of Customer in, to, and under all finished Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds)of the foregoing. The security interest granted under this provision constitutes a purchase money security interest as such term is defined in the Uniform Commercial Code.
13. Compliance with Laws.
Each party shall comply with all laws and regulations applicable to its performance of its obligations under this Contract.
14. Non-Exclusive Relationship.
Apex is manufacturing the Goods to Customer on a non-exclusive basis. Apex reserves the right to manufacture goods that compete with Customer’s Goods for parties other than Customer.
15. Warranties.
(a) Customer warrants that it owns all right and title to any logos, tradenames, trademarks, designs, or other intellectual property included in any labels or packaging provided by Customer.
(b) Apex warrants that the Goods will be manufactured in accordance with cGMP and the Specifications. For the avoidance of doubt, Apex is not responsible for natural variances in the color of Goods due to the use of natural ingredients.
(c) EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 14(b), APEX MAKES NO OTHER WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE GOODS, OR ANY WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. ANY IMPLIED WARRANTIES ARE HEREBY DISCLAIMED BY APEX.
16. Indemnification.
(a) Customer shall defend,indemnify and hold harmless Apex against any and all loss, injury, death,damage, liability, claim, deficiency, action, judgment, interest, award,penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with (i) all labels and packaging supplied by Customer to Apex, including, without limitation, if any labels do not comply with any applicable laws or regulations or the requirements of the FDA, or (ii)Customer’s negligence, intentional omission, willful misconduct, or breach of this Contract.
(b) Apex shall defend, indemnify and hold harmless Customer against any and all Losses arising out of or occurring in connection with (i) Apex’s failure to comply with cGMP or Specifications when manufacturing the Goods, or (ii) Apex’s negligence,intentional omission, willful misconduct, or breach of this Contract.
17. Limitation of Liability.
(a) IN NO EVENT SHALL APEX BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL,EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS, LOST REVENUES, OR DIMINUTION IN VALUE ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, WHETHER ORNOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CUSTOMER OR COULD HAVE BEEN REASONABLY FORESEEN BY CUSTOMER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED,AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL APEX’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO ANY SPECIFIC PURCHASE ORDER, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO APEX FOR THE GOODS SOLD UNDER SUCH PURCHASEORDER.
18. Cancellation.
Apex may cancel any specific Purchase Order at any time prior to commencement of manufacture of the applicable Goods without penalty by providing written notice of cancellation to Customer if there has been any documented increase in the cost to Apex to manufacture the Goods in accordance with the applicable Purchase Order (e.g., an increase in raw materials costs occurring after acceptance of a Purchase Order but before commencement of manufacture). Customer shall have no right to cancel a Purchase Order without Apex’s consent.
19. Remedy for Breach.
In addition to any other rights or remedies available to Apex at law or in equity, if Customer breaches this Contract, Apex may (a) cancel any open orders and return to Customer any amounts received by Customer for Goods not manufactured, less a reasonable administrative charge, or (b)refuse to deliver any Goods that Customer has ordered but that have not yet been shipped to Customer (in which case Apex shall return to Customer any amounts paid by Customer for Goods not shipped by Apex, less a reasonable administrative charge).
20. Waiver.
No waiver by Apex of any of the provisions of this Contract is effective unless explicitly set forth in writing and signed by Apex. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Contract operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
21. Force Majeure.
Apex shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Contract, for any failure or delay in fulfilling or performing any term of this Contract when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Apex including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot,or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes, or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 90 days, Customer shall be entitled to terminate this Contract by providing written notice of termination to Apex.
22. Assignment.
Customer shall not assign any of its rights or delegate any of its obligations under this Contract without the prior written consent of Apex. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Contract.
23. No Third-Party Beneficiaries.
This Contract is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Contract.
24. Governing Law.
All matters arising out of or relating to this Contract are governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Florida.
25. Submission to Jurisdiction.
Any legal suit, action or proceeding arising out of or relating to this Contract shall be instituted in the federal courts of the United States of America or the courts of the State of Florida in each case located in the City of Tampa and County of Hillsborough, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
26. Notices.
All notices, requests, consents, claims, demands,waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Purchase Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email(with confirmation of receipt) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Contract, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
27. Severability.
If any term or provision of this Contract is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Contractor invalidate or render unenforceable such term or provision in any other jurisdiction.
28. Survival.
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Contract including, but not limited to, the following provisions: Limitation of Liability, Governing Law, Submission to Jurisdiction, and Survival.
29. Amendment and Modification.
This Contract may only be amended or modified in a writing stating specifically that it amends this Contract and is signed by an authorized representative of each party.
Exhibit A
FeeSchedule[1]:
Pallet Storage:
Shipment Coordination:
New Product Document Bundle:
Destruction of Abandoned Goods:
Other:
1 Fee schedule provided on request. Please ask your account manager for the current fee schedule.