Molecular Fertility Purchase Order Terms and Conditions
The Purchase Order terms and conditions of Purchase (the “Terms and Conditions”) set forth below, unless modified in writing by Molecular Fertility, LLC (“Purchaser”), shall govern the transaction between Purchaser and Seller as specified on the purchase order accompanying these Terms and Conditions; notwithstanding any conflicting term or condition of Seller’s order confirmation, invoice, acknowledgement or any other document or communication to the contrary.
Purchase Order Terms and Conditions. Purchaser’s order specified on the accompanying purchase order with respect to products to be purchased hereunder or services to be provided (the “Articles”) shall be governed by these Terms and Conditions. Nothing contained in any order confirmation or other correspondence shall in any way modify these Terms and Conditions or add any additional terms or conditions, all of which are hereby expressly objected to and rejected by Purchaser. Seller shall be deemed to have accepted and agreed to these Terms and Conditions upon the earlier to occur of Seller’s written response confirming the purchase order; Purchaser’s receipt of Articles; or the commencement of performance by Seller according to a time frame requested by Purchaser or reasonably to be inferred from the purchase order. These Terms and Conditions may be revised at any time by Purchaser, and orders submitted after such revisions will be governed by the revised Terms and Conditions.
Definitions: “Purchaser” means Molecular Fertility, LLC (“MOLECULAR FERTILITY”) and all of its operating divisions, affiliates and subsidiaries. “Purchaser’s Customers” means any party, such as a distributor, retailer or a consumer, which purchases goods or services from Purchaser and/or any party which resells goods or services offered by Purchaser. “Seller” means the entity to which this purchase order is addressed.
Invoicing: Seller must issue to Purchaser a separate invoice for each purchase order. If an order is divided into more than one shipment, a separate invoice must be issued for each shipment.
Cancellation: Purchaser reserves the right to cancel in part or whole this purchase order for any outstanding work or material designated by Seller to fulfill this order in any of the following situations: (A) the order is not shipped as specified; (B) the order is not received by Purchaser or Purchaser’s agent on or before Purchaser’s requested due date; (C) there is a regulatory change that affects Purchaser’s ability to use the material; (D) Seller cannot guarantee the Articles will meet Purchaser’s specifications; or (E) it becomes evident that Seller cannot meet one or more of these Terms and Conditions.
Seller Warranties: Seller certifies and warrants that Articles: (A) are legal for sale in the U.S.A., and in compliance with the applicable provisions of all state and federal laws and regulations and good manufacturing practices; (B) are free from infringement of any and all US and foreign patents and trademarks; (C) are not misbranded, contaminated or adulterated; (D) are in compliance with the laws regarding human trafficking and slavery of the country or countries in which Seller does business, including all material and/or components including materials, supplies, articles or equipment; and (E) that all food and dietary supplement products and/or ingredients are sanitary and fit for human consumption. If Articles are for dietary supplement use, Seller also warrants that Articles are either GRAS (Generally Regarded As Safe) for the intended use and have been in commerce prior to October 1994; or Seller has obtained an NDI (New Dietary Ingredient) approval or response of ‘no objection’ from the FDA for the Articles. If Seller is unsure as to the use of the Articles, it is Seller’s obligation to obtain this information from Purchaser. Seller will notify Purchaser if Seller is aware of or becomes aware of any regulatory, intellectual property, product liability, or other legal issues, concerns, infringement, contamination or adulteration and the like regarding Purchaser’s use of the Articles. Seller agrees it will hold Purchaser and/or Purchaser’s customers harmless and defend any suits or suits filed against Purchaser and/or Purchaser’s customers by reason of its distribution of Articles. Purchaser reserves the right to verify Seller’s compliance with applicable laws.
Specifications: Seller agrees that it has read and warrants that its products comply with Purchaser’s specifications. If Seller does not have Purchaser’s previously approved specifications on file for the order, it is Seller’s responsibility to notify Purchaser and obtain the specifications. Purchaser may test Articles to ensure compliance with Purchaser specifications, both as received and in finished manufactured product form.
Product Liability Insurance: Seller will provide and maintain product liability insurance in the amount of at least $2 million (US $2,000,000.00) per incident and Seller agrees to furnish a current certificate of liability insurance, if not previously supplied. Seller will name MOLECULAR FERTILITY, LLC as an additional insured on such certificate of liability insurance.
Pricing Disclosure: Seller agrees to notify Purchaser of all volume discounts, promotional allowances, special sales and all other discounts, rebates and allowances that could reasonably apply to this order. Seller agrees that it provides MOLECULAR FERTILITY the lowest net price that it offers to any customer purchasing the same materials in similar quantities.
Payment: Seller agrees to provide invoices to Purchaser with sufficient time to allow Purchaser to take any prompt payment discounts offered. If Seller does not provide Purchaser invoices in a manner that allows prompt payment discounts to be taken Purchaser may take half of the prompt payment discount when paying the invoice at due date. The date of the measurement of prompt payment discount and of payment due date is the invoice date or the date of product receipt, whichever is later. Payment terms are not triggered until the date of delivery of goods ordered in the purchase order and their accompanying certificates of analysis as required on the purchase order. Delay of delivery, including all ordered goods or an accompanying certificate of analysis, may result in a delay in payment.
Shipping: Seller agrees to ship this order as instructed or as previously instructed by Purchaser. Seller agrees not to split the order without consent of Purchaser in such a way that would increase the freight cost of Purchaser.
Lot Numbers, Backorders and Special Charges: Seller agrees to only provide shipments of single lots, unless otherwise specified by or agreed upon with Purchaser. Seller agrees that lot numbers are to be included on each packing slip invoice and exterior of each shipping container. Seller agrees that its lot numbering system will be reasonable and consistent with best industry practices. Seller agrees that the order is to be sent complete, and if not possible to be sent complete that backorders are not to be sent without Purchaser’s agreement prior to shipment. Seller agrees to not add charges for any shipment unless the charges are included on MOLECULAR FERTILITY’S purchase order.
Specified Date: if a “do not ship before” date is specified. Seller agrees to not ship goods order before the specified date. Seller agrees that if it ships prior to the specified date, Purchaser may deduct a 2% allowance from the invoice to reimburse Purchaser for additional inventory costs and inconvenience.
Good Manufacturing Practices (GMP’s): Seller understands the Purchaser is required to meet all appropriate FDA GMP’s in order to sell products containing Seller’s materials, including the FDA dietary supplement cGMP S Seller understand that some GMP obligations may extend to Seller and Seller agrees to comply with Seller’s obligations. Seller agrees to probably provide at Purchaser’s request accurate authenticated data on Seller’s materials and all underlying components, including but not limited to the full name and address of all the manufacturers of all such components of Seller’s materials. Seller agrees to participate in an audit or audit survey for GMP purposes, if requested by Purchaser.
Deliveries: Deliveries are to be made both in quantities and at times specified in schedules furnished to MOLECULAR FERTILITY, hereinafter "Schedules". MOLECULAR FERTILITY shall have no liability for payment for material or items delivered to MOLECULAR FERTILITY which are in excess of quantities specified in the delivery Schedules. MOLECULAR FERTILITY may from time-to-time change delivery schedules or direct temporary suspension of scheduled shipments. If at any time Seller has reason to believe that delivery shall not be made as scheduled, written notice setting forth the cause of the anticipated delay and the probable duration of the anticipated delay shall be given immediately to MOLECULAR FERTILITY. In the event of any late delivery, MOLECULAR FERTILITY may, at its option, cancel the Purchase Order for default, partially cancel the Purchase Order, vary delivery terms hereunder, or use other material without any liability whatsoever. Any such action shall be in addition to and not in lieu of any other remedies that MOLECULAR FERTILITY may have in law or in equity.
Materials Furnished by MOLECULAR FERTILITY: Any materials furnished by MOLECULAR FERTILITY other than on a charge basis in connection with the Purchase Order shall be deemed as held by Seller upon consignment, with MOLECULAR FERTILITY retaining title to the materials until they are consumed by Seller. All such materials not used in the manufacture of the products covered by the Purchase Order shall, as directed, be returned to MOLECULAR FERTILITY at MOLECULAR FERTILITY's expense, and, if not accounted for or so returned, shall be paid for by Seller.
Right of Rejection: Purchaser or purchaser’s agent(s) will inspect the Articles within 30 days of receipt. If the Articles are found to not meet the specification(s) provided by Purchaser, the Purchaser reserves all rights to reject the Articles and to bear no liability, financial or otherwise, for any costs or materials incurred by Seller to produce or provide the Articles. Purchaser will provide Seller with written notice of rejection of the Articles. Seller may offer to replace or provide replacement Articles to Purchaser, or may offer to compensate Purchaser in part or whole through discounts or other incentives to accept the rejected Articles; however, all rights to accept or reject the Articles, any replacement Articles or any financial or other incentives offered by Seller rest solely with Purchaser. Purchaser is under no obligation to consider any mitigation offered by Seller for properly rejected Articles. Purchaser is under no obligation to place an order with Seller to replace in whole or in part Articles provided by Seller which are properly rejected by Purchaser.
Ownership: Ownership of any Articles or any materials used to produce or provide the Articles which are invoiced directly to Purchaser, such as printing plates and dies, ingredients specifically sourced on behalf of MOLECULAR FERTILITY, immediately become the property of Purchaser upon invoicing of such by Seller.
Recalls: If Seller is aware that their product is misbranded contaminated and/or adulterated, Seller shall immediately notify Purchaser if Purchaser or any other party issues a recall for Seller’s Articles or any other Articles containing Seller’s Articles. Seller shall fully cooperate with Purchaser regarding any recall related activities. Seller shall reimburse Purchaser and/or Purchaser’s customers for all of Purchaser’s and/or Purchaser’s customer’s expenses associated with the recall, including cost of raw materials, cost of finished product freight in and out, administrative expenses, legal expenses, and lost profits during the recall, testing expenses, notification expenses, etc. Seller understands the recall can result in loss of brand reputation to Purchaser and/or Purchaser’s customers.
Certificate(s) of Analysis: A Certificate of Analysis must be provided at the time of the shipment for all Articles intended to be used as ingredients by Purchaser. Certificates of Analysis must comply with all applicable regulations, including the FDA dietary supplement cGMP’s. Seller may be required to provide actual test result data from the Certificate of Analysis. Purchaser may test materials to ensure compliance with the Certificate of Analysis.
Container Identification: The shipping container shall contain the following information in a clear and readable manner on its exterior: product name, lot number, gross weight net weight and country of origin.
Venue/Choice of Law: Seller and MOLECULAR FERTILITY agree that any and all proceedings relating to the Purchase Order or arising out of or related to this Agreement shall be initiated and prosecuted in the state or federal courts in Onondoga County in the State of New York, which shall have exclusive jurisdiction for such purposes, and Seller hereby irrevocably consents to such jurisdiction. Any such litigation or proceedings shall be governed by and construed in accordance with the laws of the State of Florida, without giving effect to principles of conflicts of law.
Entire Agreement; Severability: This Agreement with any order acknowledgement constitutes the entire Agreement between Seller and MOLECULAR FERTILITY with respect to the subject matter hereof, and supersedes any prior oral or written agreements. All additions or modifications to this Agreement must be made in writing and must be signed by Seller and MOLECULAR FERTILITY. Any failure by MOLECULAR FERTILITY to enforce any of the terms and conditions of this Agreement shall not constitute a waiver of any other term or condition. If any provision contained in this Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
Attorney’s Fees: In the event that either party seeks to enforce this Agreement by suit or other action, then the prevailing party in such suit or action shall be entitled to recover its reasonable attorney’s fees and costs from the non-prevailing party.