Terms and Conditions of Sale
The following are the terms and conditions (herein: Agreement) governing the exchange of goods and property between Westwood Laboratories, Inc (herein: Seller) and you, the customer (herein: Buyer). All dealings between Seller and Buyer will be governed by these terms. All customer Purchase Orders (PO) will be deemed to include these terms as if set out therein. These terms will supersede and prevail over any inconsistent provision in any PO.
SHIPPING: All goods and materials manufactured and produced hereunder are shipped, delivered and deemed sold EXW Seller (EX Works) from its facility in Azusa, CA upon written notice from Seller to Buyer of availability to pick up. Risk of loss damage or delay with respect to all goods and materials manufactured, made available or produced hereunder shall pass from Seller to the Buyer in accordance with the INCOTERM 2010 stated in this section. Notwithstanding the foregoing, Buyer shall not ship, sell or transfer any goods and materials purchased from Seller to a third party until Seller notifies Buyer that such goods or materials purchased have successfully completed Seller’s quality program, unless otherwise mutually agreed to in writing by the parties.
CREDIT: Barring prior arrangement of credit in writing agreed to by the parties, all orders are sold with a 50% deposit placed prior to order acknowledgement and 50% Cash On Demand (COD) prior to release of product by Seller to Buyer or its designee.
PAYMENT TERMS: Where Buyer has made prior credit arrangements, all invoices net 30 days from date of invoice, payable by cash, check, or wire transfer, after which any amount due will bear interest at the rate of 1.5% per month (18% per annum). Seller shall issue the invoice on the date the goods and materials related to the order are made available for shipping. Seller retains the right to charge interest on all overdue accounts at the highest rate allowable under applicable state and federal statutes. Returned or dishonored checks will be charged a processing fee of $50 per check. In the event that Buyer fails to pay any invoice when due, Seller reserves the option, in its sole and exclusive discretion, to prepare future orders for Buyer on COD terms.
LIMITATIONS: Buyer agrees that all actions, claims, and disputes arising from this Agreement, shall be brought, if at all, within 12 months of the date the goods are available to be shipped. Buyer specifically waives any claim for non-conforming, defective, or damaged goods made more than 12 months after shipment.
ACCEPTANCE OF BUYER’S PURCHASE ORDERS: Seller accepts Buyer’s purchase order with an order acknowledgement issued via e-mail and /or fax. The accepted purchase order is subject to all terms and conditions contained herein. To the extent that Buyer’s purchase order contains terms and conditions which are contrary to, or inconsistent with, the terms and conditions contained herein, these terms and conditions take precedence.
CANCELLATION: Buyer agrees that once Buyer’s purchase order is accepted by Seller, Buyer cannot cancel without Seller’s written consent.
WARRANTIES: Seller shall manufacture all goods and products described in Buyer’s purchase order, under good sanitary conditions, in accordance with all formulas, specifications, and directions, and in accordance with good manufacturing practices and regulations of the FDA or other applicable regulatory agency(s). There are no other warranties, express or implied. Seller makes no warranty as to merchantability, fitness for any specific purpose, description, quality, productiveness, or any other warranty for the products sold hereunder. Buyer hereby waives the right of refusal or return of goods which is usually connected with non-warranty.
DAMAGES: The total liability of Supplier for any and all claims, losses, damages, or liabilities arising out of or relating to this Agreement, regardless of the form of action, shall in no event exceed the total amount paid by Customer to Supplier under the specific Purchase Order (PO) giving rise to the claim. Notwithstanding anything to the contrary, Supplier’s total cumulative liability under this Agreement, across all claims or causes of action, shall not exceed the total value of the Purchase Order(s) actually paid by Customer for the product in question over the 12 months preceding the claim.
FORCE MAJEURE: Neither Buyer nor Seller shall be deemed responsible for any failure to comply with the terms of this Agreement if such failure is due to cause beyond its reasonable control. These causes include, without limitation, fire, flood, explosion, earthquake, strike, labor disputes, picketing, lockouts, transportation embargoes, failure or delays in transportation, inability to secure materials by reasons of strike or labor disputes affecting supplies, acts of God, riots or insurrection, acts of any government or agency thereof, or judicial action.
GOVERNING LAW: This agreement shall be interpreted and governed by the laws of the State of California and by the Code of Laws of the United States of America when and where applicable.
ARBITRATION: Buyer and Seller agree that all disputes arising hereunder shall be submitted to binding arbitration in Los Angeles, California before a single arbitrator in accordance with the rules and regulations of the American Arbitration Association.
ATTORNEY’S FEES: In the event of any claim, dispute, arbitration, or litigation, arising out of this contract, the prevailing party shall be entitled to recover, in addition to costs and expenses, all attorney’s fees, irrespective of whether the manner results in litigation or arbitration.
BINDING AGREEMENT: This agreement supersedes all previous agreements of the parties whether oral or written with respect to the manufacturing, mixing, compounding, or otherwise producing products and materials as provided herein. This agreement shall be binding upon the parties hereto, their legal representatives, successors, and assigns.
MODIFICATIONS: This Agreement constitutes the sole and complete understanding of the parties and neither this Agreement nor any provision contained herein may be modified, waived, discharged or terminated except in writing and signed by the parties hereto.