Terms of Sale

STANDARD TERMS AND CONDITIONS OF SALE FOR SAFS, INC.

  1. Applicability.These terms and conditions of sale (these “Terms“) govern the sale of the goods (“Goods“) by SAFS, INC. (“Seller“) to the buyer (the “Buyer”) named in the accompanying quote, invoice or other sales confirmation document (the “Sales Confirmation“; together with these Terms, the “Agreement”). These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms. No agreement or understanding to modify these Terms shall be binding upon Seller unless in writing and signed by Seller’s authorized representative. Except as expressly set forth in these Terms, following Seller’s issuance of an order confirmation or other acceptance of Buyer’s purchase order, Buyer shall have no right to cancel its purchase order. Seller’s quote may contain additional commercial terms which apply to Buyer’s purchase order and following Seller’s issuance of an order confirmation or other acceptance of Buyer’s purchase order, such terms shall be expressly incorporated into these Terms.
  2. Delivery of Goods.
    1. The Goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order, subject to availability of the finished Goods.
    2. Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to the location set forth on the Sales Confirmation (the “Delivery Point“) using Seller’s standard methods for packaging and shipping such Goods. Any changes to the delivery method or Delivery Point requested by Buyer may result in changes to the Prices and/or changes to the estimated delivery dates. Buyer shall be responsible for all unloading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point and will unload and release all transportation equipment promptly so Seller incurs no demurrage or other expense.
    3. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
  3. Non-Delivery.
    1. The quantity of any installment of Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
    2. Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
    3. Buyer acknowledges and agrees that the remedies set forth in Section 3 are Buyer’s exclusive remedies for any non-delivery of Goods.
  4. Shipping Terms. Unless otherwise set forth in the Sales Confirmation, delivery of the Goods shall be made FOB Delivery Point.
  5. Title and Risk of Loss. Title and risk of loss pass to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the 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 under the Washington Uniform Commercial Code.
  6. Buyer’s Acts or Omissions. If Seller’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Seller shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.
  7. Inspection and Rejection of Nonconforming Goods.
    1. Buyer shall inspect the Goods within days five (5) days of receipt (“Inspection Period“). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; (ii) product’s label or packaging incorrectly identifies its contents; or (iii) the Goods are damages.
    2. If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Notwithstanding the foregoing, Buyer shall have the obligation to mitigate its damages for any damaged Goods in accordance with the instructions, which may include but shall not be limited to repackaging instructions, provided by Seller. Buyer acknowledges and agrees that the remedies set forth in Section 7(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods.
  8. Price. Buyer shall purchase the Goods from Seller at the prices (the “Prices“) set forth in the Sales Confirmation. Prices are subject to change in the event Buyer request any changes, including but not limited to any changes in the quantity or type of Goods and/or shipping preferences or due to global factors beyond Seller’s control. All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personal or real property, or other assets.
  9. Payment Terms.
    1. Buyer shall pay all invoiced amounts due to Seller within the time frame set forth in the Sales Confirmation.
    2. Buyer 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. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
    3. Seller may in its sole discretion impose credit limits on Buyer.
  10. Warranty.
    1. Seller warrants to Buyer that when the Goods are delivered to the Delivery Point, that such Goods will: (i) be of merchantable quality; (ii) be free from defects in materials and workmanship; (iii) be safe and fit for the intended purpose, including if applicable, fit for human consumption; (iv) comply with all United States federal, state, and local laws, regulations, and requirements and shall be free of any and all contamination of any type, whether chemical, biological, or otherwise, within the standards established by the Food and Drug Administration or other regulatory agency; and  (v) be free and clear of all encumbrances and liens of any kind.
    2. EXCEPT FOR THE PRODUCT WARRANTIES SET FORTH IN SECTION 10(a), SELLER MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; or (iii) 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.
    3. In the event any of the Goods breach the warranty set forth in Section 10(a), Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) to the extent payment for the Goods has been received, credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller. THE REMEDIES SET FORTH IN THIS SECTION ARE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN
  11. Compliance with Law. Each party shall comply with all applicable laws, regulations, and ordinances and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
  12. Confidential Information.
    1. All non-public, confidential or proprietary information of a party (the “Disclosing Party”), including but not limited to, business partners, vendors, suppliers, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by the Disclosing Party to the other party (the “Receiving Party”), whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by the Disclosing Party in writing. Upon Disclosing Party’s request, the Receiving Party shall promptly return all documents and other materials received from the Disclosing Party. The Disclosing Party shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (i) in the public domain; (ii) known to the Receiving Party at the time of disclosure; or (iii) rightfully obtained by the Receiving Party on a non-confidential basis from a third party.
    2. The Buyer shall not, directly or indirectly, except in collaboration with or with the prior express written consent of the Seller: (i) enter into transaction with any party introduced to the Buyer by the Seller (the “Introduced Party”) similar to, in competition with, or which otherwise could have the effect of preventing the Seller from receiving the full benefit of the transaction contemplated by the Agreement; (ii) solicit the Introduced Party to enter into such transaction; or (iii) induce, solicit, procure or otherwise encourage its representatives or any third party, or respond to any solicitation from any of the same, to enter into any such transaction.
  13. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement and such failure continues for five (5) days after Buyer’s receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. In addition to any other right or remedy Seller may have at law or equity, upon Seller’s termination of this Agreement Buyer may sell or otherwise dispose of any Goods which Seller has not fully paid for.
  14. Indemnification. Buyer will indemnify, defend and hold harmless Seller, its affiliates, and their respective employees, officers, directors and agents from and against all losses, damages, liabilities, settlements, judgments, demands, fines, penalties, awards, costs and expenses (including reasonable attorney’s fees and court costs) arising from any claims, actions, suits, demands, or proceedings (whether or not involving a third-party) arising out of or in connection with: (i) any breach of Buyer’s warranties, representations, covenants or other obligations or duties contained in the Agreement; (ii) Buyer’s  breach or violation of any other obligation or duty under applicable law; or (iii) Buyer’s  acts or omissions, or willful misconduct. 
  15. Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
  16. During the term of this Agreement and for a period of one (1) year thereafter, Buyer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $1,000,000 with financially sound and reputable insurers. Upon Seller’s request, Buyer shall provide Seller with a certificate of insurance from Buyer’s insurer evidencing the insurance coverage specified in these Terms. Seller shall be listed as an additional insured under such insurance policies. Buyer shall provide Seller with thirty (30) days’ advance written notice in the event of a cancellation or material change in Buyer’s insurance policy. Except where prohibited by law, Buyer shall require its insurer to waive all rights of subrogation against Seller’s insurers and Seller.
  17. Force Majeure. No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party“) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, pandemics/epidemics or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (h) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice as soon as commercially possible of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of two hundred (200) days consecutive days following written notice given by it under this Section 17, either party may thereafter terminate Buyer’s purchase order and the accompanying Sales Confirmation.
  18. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Washington without giving effect to any choice or conflict of law provision or rule (whether of the State of Washington or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Washington. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be brought exclusively in the U.S. District Court for the Western District of Washington (unless that court does not have jurisdiction over the action or proceeding, in which case the action or proceeding will be brought exclusively in state court in Pierce County, Washington), and each party irrevocably submits to the sole and exclusive jurisdiction of these courts in any action or proceeding
  19. Wavier and Severability. No waiver by either party of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by such party. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement 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. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
  20. Assignment. The Agreement does not create a partnership, joint venture, employment relationship, or other similar relationship between the parties and any of their respective employees. Each party is an independent contractor to the other party, has no authority to bind the other party, and is solely responsible for its respective employees, directors, officers, contractors, subcontractors and agents.
  21. Notices. Any notice required or contemplated by this Agreement shall be in writing, delivered in person, or email or by fax with the original copy thereof sent immediately thereafter by established overnight courier service on a priority basis addressed to the parties, at such addresses as may from time to time be provided by the parties.
  22. 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 Agreement.
  23. Relationship of the Parties. The relationship between the parties is that of independent contractors. Except as expressly set forth in this Agreement, nothing contained herein shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, or employment between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
  24. No Third-Party Beneficiaries. This Agreement 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 these Terms.

© 2024, SAFS INC., USA

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