Purchase Order Terms

1. This PURCHASE ORDER shall constitute an offer only; it is not a confirmation or acceptance of any prior or contemporaneous offer or proposal, and such offer or proposal, if any, is hereby expressly rejected. Acceptance of this PO is expressly limited to the terms of this offer. Purchaser is not willing to enter into or be bound by any agreement other than on the terms, and only the terms, of this PO. Acceptance of this PO is expressly limited to the terms herein, which may not be contradicted, added to, or varied in any way or by any manner or method. Acceptance of this PO, and any agreement formed by this PO, may not be conditioned upon or contain any different or additional terms, whether contained in a verbal communication, an invoice, confirmation, e-mail, letter, or other writing, conduct, course of dealing, custom and habit, trade usage, or otherwise. Notice is hereby given that any terms in addition to or different from the terms of this PO are by this notification expressly objected to and expressly rejected. Shipment or other arrangements for delivery of the goods identified in this PO by the Seller shall constitute an acceptance of this PO on its terms, as shall the execution (signing) of this PO by the seller.

2. The contract formed by this PO, if accepted, is intended as a final, complete, and exclusive statement of its terms and conditions, and cannot be varied or changed, except by a future writing signed by each and all of the parties to the contract.

3. No employee or representative of Purchaser, except its CEO and President, are authorized to waive, delete, change, alter, excuse or otherwise modify or waive any of these "Purchase Order Terms."  Any attempt of other employee or representative to do so shall be of no force or affect.  The only employees or representatives of Purchaser who may make any such change, deletion, alteration, waiver or other modification are Purchaser's CEO and President, and then only in a writing written, signed and dated by the CEO or President. 

4. Time is of the essence in this contract. If delivery of items ordered herein is not completed by the time set forth herein, or within thirty (30) days, whichever is less, Purchaser reverses the right, without liability, in addition to all of its other rights and remedies, to terminate this contract as to items not yet delivered or in its entirety.

5. Before a truck is loaded for delivery to Purchaser, call for delivery appointment, give PO number, and get appointment number. Please call (323) 881-9948.

6. All products shipped must be preceded by a sample, and must be of equal or better quality than the quality as shown by sample.

7. All product expiration dates, code dates, and production dates must be noted on the PO, invoice and packing slip. The invoice and packing slips must identify the expiration date of all products shipped. Cases shall not be mixed. Each case shall contain products of the same manufacture and/or expiration date. All shipments must have uniform case counts.Each pallet to contain only one item separated by color, style, size, and label. No repack cases will be accepted. All merchandise to be shipped on number one grade 40” by 48” hardwood pallets. Driver to unload truck, separate and palletize merchandise even if by hand, and to attach pallet tags. Shipments with inaccurate information may be delayed or refused at dock. All merchandise that comes in with more than one code date, expiration date, production date, size, color, flavor, scent, case pack, case assortment, inner pack, style, formula or consistency must be listed separately. If any products to be delivered with a case pack different from that which is indicated on PO, all differences must be indicated at time delivery appointment is made. Purchaser reserves right to refuse unloading of trucks until Purchaser receives a complete and itemized packing slip for each delivery consistent with this section.  Seller has full responsibility for any delays caused thereby. Purchaser is not responsible for any charges associated with shipments made without delivery appointment or for deliveries made other than the scheduled date and time and other than as provided herein.

8. If Purchaser does not receive all of the merchandise ordered via this PO within thirty days or such lesser date as specified in this PO, Purchaser has the option to cancel all or any part of this PO and/or to return to Seller at Seller’s expense, or make available for pick-up by Seller at Seller’s expense, all or any part of the merchandise identified in this PO. If any of the conditions of this PO are not complied with, Purchaser has the option, in addition to any other remedies available at law or in equity, to cancel all or any part of this PO and to return or, at Purchaser’s option, to make available for pickup at Seller’s full expense all or any part of the merchandise identified in this PO or shipped pursuant to this PO.
9. Any and all goods, if any sent in excess of this PO, may be returned by Purchaser to Seller at Seller’s expense, or made available for pick-up by Seller at Seller’s expense.
10. Purchaser reserves the right to deduct excess transportation charges for incorrect classification of shipments made by the Seller.

11. Irrespective of who ships, Seller bears the risk of loss (and time periods for payment terms do not commerce) until and unless shipment is received in full and in good condition per sample at Purchaser’s warehouse, and legal title does not pass to Purchaser until this time, irrespective of whether or where “FOB” is identified on this PO or in any other document. Terms are based upon receipt or invoice, whichever is later.

12. By accepting this PO and by shipping the goods identified in this PO, Seller hereby represents and warrants that the goods to be furnished hereunder are and will be: (1) in conformity with all required laws, (2) produced, labeled, and identified in compliance with all applicable federal, state, and local laws, rules, and regulations, (3) free from any and all liens, rights, or claims of any other third parties, with free title to the goods passing to Purchaser at the time of delivery, (4) safe, defect free, and fit for their stated and intended purpose, and (5) not infringing on any patent, trademark, copyright, or other proprietary rights of any third party.  Seller grants Purchaser the right to test samples of the products identified in this PO in a manner and at testing facilities of Purchaser’s selection, and to deduct from the purchase price identified in this PO all costs, fees and expenses of such testing or, at Purchaser’s option, to otherwise charge Seller for all such costs, fees and expenses.  Should such testing reveal that the product and product labeling and packaging is not compliant with all laws, that it is not consistent with the sample provided, that it is not as represented by Seller, or that it is not as identified in this PO, Purchaser has the option, in addition to any other remedies available at law or in equity, to cancel all or any part of this PO and to return or, at Purchaser’s option, to make available for pickup at Seller’s full expense all or any part of the merchandise identified in this PO or shipped pursuant to this PO. 

13. Seller hereby agrees to indemnify and defend (with counsel to be selected by Purchaser in Purchaser’s sole and absolute discretion) and hold Purchaser harmless, at Seller’s sole cost and expense, from and against any and all claims, liens, causes of action, losses, liabilities, damages, costs, and expenses, including attorney’s fees, if any claim or action is made or brought or any assertion is made that alleges a breach of, noncompliance with, or variance from any of the terms, representations, or warranties of this PO, as well as in the case of any other claim or action against Purchaser asserting that the product (including product packaging and labeling) purchased under this PO is defective, harmful, dangerous, not compliant with law, mislabeled or not appropriately or fully labeled, infringing on the intellectual property rights of another, not compliant with California's Proposition 65, or otherwise giving rise to or resulting in a legal or equitable claim against Purchaser.

14. The contract to be formed by the acceptance of this Purchase Order shall be governed by California law. The place of making of the contract shall be deemed to be in the City of Commerce, County of
Los Angeles, State of California. Any action arising out of or relating to such contract or this Purchase Order shall be commenced and maintained in the State of California, in the venue of the County of
Los Angeles.

15. Seller represents that all items purchased are sold at a price not less favorable than being currently offered to any other company.

16. All products subject to our inspection and approval.

17. All coded are dated merchandise must arrive within 90% of the remaining expiration code date and shelf life from the time the Purchaser Order was written as well as all other requirements specified on the Purchases Order.

18. Seller warrants that the goods offered, as well as similar goods, have not been subject to any product liability claims, recall or other such matter.

19. All products with pre-prices, cents off, free sample, or any pricing information must so indicate on PO.

20. All pallets shipped with merchandise are included in the price of the product and become the property of Purchaser.

21. If merchandise is not shipped on number one 40” X 48” hardwood pallets, Purchaser reserves the right to refuse or make a fair market adjustment to the purchase price for the value of the missing pallets, and for any other costs that may have been incurred as a result of the missing pallets.

22. Purchaser has the right to advertise any merchandise associated with this purchase order unless noted herein to the contrary. Seller warrants that Purchaser has the right and authorization to advertise any such merchandise.    

23. “Freight Prepaid” as used in a Purchase Order means that Seller agrees to pay all costs associated with any shipment and/or delivery and the Purchaser is in no way responsible for any payment or reimbursement of said expense.

24. The terms of this PO are extremely confidential. No information contained herein may be used for any reason except that which is absolutely necessary for processing the shipment and payment of this order. Confidentiality also applies to the existence of the order. Seller warrants that it will not convey or allow to be conveyed any information regarding this order, including, but not limited to, items purchased, quantity, price, profit, and terms. None of these matters may be disclosed either publicly or to any third party, nor to any non-essential person within Seller’s company.

25. Wherever the term Purchaser is used herein, it shall, at Purchaser’s option, apply to Purchaser or Purchaser’s designee.

26. Any and all taxes, duties, tariffs, surcharges, levies, deposits (including California Redemption Value), fees and any other such charges are included in the merchandise purchase price unless indicated herein to the contrary on the PO.

27. If an account is to be factored, Purchaser must be notified by Seller before acceptance of this PO, and purchaser reserves the right to remit payment either to seller or to seller’s factor, at Purchaser’s election

28. Seller agrees to obtain insurance relative to any item(s) sold to Purchaser under this PO, naming Purchaser as an additional insured with respect to the products(s) subject to this PO, with a deductible of no greater than $1,000, policy limits of no less than $1,000,000 per claim, a term of no less than one year, pre-paid in full, and coverage that includes not only general liability and product liability, but also all claims for advertising injury, infringement of intellectual property rights (e.g., third party liability coverage for infringement of trademark, trade-name, trade-dress, copyright, slogans, titles, etc.), personal injury with regard to promotion or advertising, and violation of California Proposition 65. Such insurance shall be with a top rated insurer admitted in the States of California, Arizona, Nevada and Texas. Purchaser shall not be required to remit payment until such proof of insurance is supplied. No discount period shall begin to run, no penalty or delinquency period shall begin to run, and the time after which any late fee or other delinquency fee may be imposed shall not begin to run until Seller delivers to Purchaser such proof of adequate insurance. If such proof of adequate insurance is not provided, Purchaser may, at its option, either (a) retain the goods and take a 10% discount on the amount of its PO, or (b) advise the Seller that the goods are available for pick-up at Purchaser’s warehouse(s) and or retail store(s), at Seller’s expense, and with a 5% handling charge due from Seller to Purchaser.

29. Purchaser sells many products in California, and thus requires all products purchased under this PO to be fully compliant with California’s Proposition 65, which generally requires the labeling of potentially hazardous products falling within its scope (as is more fully set forth at the website of the California Office of Environmental Health Hazard Assessment, http:// www.oehha.ca.gov, and the California Attorney General’s Prop 65 website, http://caag.state.ca.us/prop65/). Seller is requited to appropriately label all such products before delivery to Purchaser, and by shipping or delivering under this PO, Seller attests to the fact that it has determined whether the product being sold under this PO is covered by Prop 65, and that if it is, Seller has ensured that each such product has been properly labeled before being made available to Purchaser.  Seller therefore represents, warrants and certifies that any products shipped or sold under this PO are compliant with Proposition 65.

30.It is Purchaser’s policy not to purchase products known to be manufactured using exploitive or unfair labor practices, such as forced labor, abusive labor practices, child labor or other labor practices that are illegal in the place at which the products being offered are manufactured.  By signing or shipping under this PO, Seller attests to the fact that after a diligent inquire, Seller has ascertained that no product that is the subject matter of this Purchase Order has been manufactured using any such exploitive or unfair labor practices.