STANDARD TERMS AND CONDITIONS OF SALE OF
OURPET’S COMPANY, AS “SELLER”
THESE TERMS AND CONDITIONS. All products are furnished in accordance with these Standard Terms and Conditions of Sale of OURPET’S COMPANY, a Colorado corporation (“Seller”) and any terms and conditions printed on the face of the accompanying invoice or quotation furnished by Seller. IF THESE TERMS AND CONDITIONS ARE NOT ACCEPTABLE, BUYER MUST SO NOTIFY SELLER IMMEDIATELY. Any provision in Buyer’s purchase order or any other writing of Buyer that conflicts with, is inconsistent with or is in contradiction of these Standard Terms and Conditions of Sale shall be deemed waived, and it is agreed that these Standard Terms and Conditions of Sale shall control in the event of any controversy with respect to the terms and conditions of this contract.
- ACCEPTANCE OF ORDERS. All contracts of sale, including orders and terms of payment, are subject to final approval and acceptance in writing by Seller.
- All shipments will be billed at Seller’s prices in effect at time of shipment. If published rail, truck or air freight rates are increased prior to shipment, prices of unshipped items that have been ordered on a “delivered price” basis shall be increased or decreased accordingly.
- CANCELLATIONS; CHANGES. Cancellations or changes by Buyer may only be made with Seller’s prior consent, and any such cancellation or change, even if consented to by Seller, is subject to payment of cancellation charges or other equitable adjustment to cover any increased cost or expense or loss of profit incurred by Seller. Without limiting the foregoing, Buyer must notify Seller of any request for a decrease in scheduled quantities at least sixty days prior to any scheduled delivery date. Thereafter, no reduction in quantity will be permitted and payment in full must be made for the full quantity scheduled.
- PAYMENT; SECURITY. All payments hereunder shall be made in U.S. dollars at payment terms of net 30 days, unless otherwise agreed to in writing. If Buyer fails to fulfill the terms of payment, Seller may defer further shipments until such payments are made or may cancel the order or the unshipped portion thereof. Seller reserves the right to require from Buyer, at any time, satisfactory security for performance of Buyer’s obligations under any order placed with Seller, and refusal or failure to furnish such security will entitle Seller to suspend shipment until such security is furnished or to cancel the order or the unshipped portion thereof. Seller may assess a [1% per month payment late charge on any payments that extend these payment terms]. Any and all credits or price offsets, to the extent granted by Seller under Section 9 of these terms, shall only be made with respect to sales made within the last one-hundred and eighty (180) days and Buyer hereby waives any right to dispute the amount or application of any payment, credit, offset or any other amount paid hereunder after such period (with respect to the applicable payment, credit or offset).
- DELIVERY; RISK OF LOSS. All shipments are F.O.B. Seller’s facility unless otherwise provided on Seller’s invoice. Shipping and delivery dates are approximate and are based on prompt receipt of all necessary information. Title to all products sold, and risk of damage or loss in transit, passes to Buyer on delivery to the initial carrier. In the event of damage or loss in transit, Buyer must give immediate written notice to the carrier’s agent at destination and to Seller. Within thirty days after receipt of goods, Seller must be notified or any claims for shortage, errors in shipment or errors in charges.
- OVER/UNDER SHIPMENT. Seller reserves the right to over or under ship any release of products by [10%] or less.
- If Seller suffers any delay in performance beyond its reasonable control due to causes such as, but not limited to, federal, state, county or municipal laws and regulations, fires, strikes, labor disputes, floods, accidents, embargoes, transportation delays, shortage of railroad cars, fuel or other material, shortage of labor, act of God, act of government, act of terrorism, act of subcontractor or carrier, or act or omission of Buyer (including any refusal by Buyer to accept changes in pricing), the time of performance shall be extended a period of time equal to the period of the delay and its consequences.
- LIMITED WARRANTY. As its exclusive warranty hereunder, Seller warrants its products to be free from material defects in material and workmanship at the time of delivery. EXCEPT FOR THE FOREGOING WARRANTY, SELLER DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY.
- EXCLUSIVE REMEDY. SELLER’S ENTIRE AND EXCLUSIVE LIABILITY, WHETHER FOUNDED ON WARRANTY, CONTRACT, NEGLIGENCE OR OTHERWISE, AND BUYER’S EXCLUSIVE AND SOLE REMEDY, IS LIMITED TO REPLACEMENT OF DEFECTIVE PRODUCTS OR, AT SELLER’S OPTION, RETURN OF THE PURCHASE PRICE SUBJECT TO A 15% REDUCTION IN RESPECT OF SELLER’S RESTOCKING FEE. If Buyer delivers a written notice of breach of warranty to Seller within thirty days after delivery of any product furnished hereunder, then, after reasonable opportunity to investigate whether the product is defective, Seller at its option will either replace the product or repay the contract price and any transportation charges for such product upon its return. No returned product will be accepted unless Seller has first authorized its return. Returned products must be accompanied by a packing slip showing in detail the list of the returned products and the date of Seller’s authorization of their return. Seller will not be responsible for transportation charges for any products returned without authorization or as to which Seller determines there has been no breach of warranty. FAILURE BY BUYER TO DELIVER A WRITTEN NOTICE OF CLAIM TO SELLER WITHIN THIRTY DAYS AFTER THE ACTUAL DELIVERY DATE OF ANY PRODUCT SHALL CONSTITUTE A WAIVER BY BUYER OF THE FOREGOING EXCLUSIVE REMEDY.
- DISCLAIMER OF LIABILITY. WHETHER OR NOT ANY DELAY OR DEFAULT IS SO EXCUSABLE, SELLER SHALL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND WHATSOEVER, WHETHER DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL, INCLUDING, WITHOUT LIMITATION, ANY DAMAGE OR INJURY TO PERSON OR PROPERTY, LOST SALES OR PROFIT OR INCREASED COST OR EXPENSE, RESULTING, DIRECTLY OR INDIRECTLY, FROM ANY FAILURE TO MANUFACTURE, BREACH OF WARRANTY OR DELAY IN DELIVERY. NO CLAIM OF ANY KIND, WHETHER AS TO PRODUCTS DELIVERED OR FOR NON‑DELIVERY OF PRODUCTS, SHALL EXCEED THE AMOUNT OF THE PRICE BUYER PAID FOR THOSE PRODUCTS UNDER THIS CONTRACT.
- TAXES, TARIFFS AND CHARGES. Any and all taxes, tariffs or charges that Seller may be required to pay or collect under applicable law upon or applicable to the sale, purchase, manufacture, processing, transportation, delivery, storage, use or consumption of any of the products covered hereby (other than Seller’s income taxes) shall be for the account of Buyer. Seller may add any such taxes or charges to the price quoted herein, and collect and remit any such taxes, tariffs or charges to the proper authorities, unless Buyer provides an acceptable exemption certificate in accordance with applicable law.
- [NO OBLIGATION TO CONTINUE OR STOCK PRODUCTS. Seller reserves the right to discontinue or modify any line or type of product at any time without liability to Buyer, except to refund any sums already paid by Buyer for the undelivered portion of such products. Seller shall have no obligation to stock or supply any replacements or parts for any products.]
- NO WAIVER. The failure of Seller or Buyer to insist, in any one or more instances, upon the performance of any of the terms or conditions of this contract, or to exercise any right hereunder, shall not be construed as a waiver of the future performance of any such term or condition or the future exercise of such rights, nor shall it be deemed to be a waiver of any other terms or condition, or the exercise of any other rights under this contract.
- NO ASSIGNMENT. Buyer may not assign any rights hereunder without first obtaining the written consent of Seller.
- GOVERNING LAW. This contract shall be construed and enforced according to the domestic substantive laws of the State of Ohio without giving effect to any choice or conflict of laws provision or rule that would cause the application of the domestic substantive laws of any other state. If any provision of these Standard Terms and Conditions of Sale is declared unlawful or invalid, the remaining provisions shall nevertheless continue in full force and effect.
- VENUE; SUBMISSION TO JURISDICTION. Any action, lawsuit or proceeding relating to this agreement or the sale contemplated by this agreement (“Proceeding”) shall be brought in any state or federal court of competent jurisdiction located in [__Lake___] County, Ohio, and each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such Proceeding, waives any objection it may now or hereafter have to venue or to convenience of forum, and agrees that all claims in respect of the Proceeding shall be heard and determined only in any such court.
- ENTIRE AGREEMENT. These Standard Terms and Conditions and the provisions on Seller’s invoice constitute the sole and entire agreement between Seller and Buyer, and shall govern exclusively as to the sale and delivery of any goods or services to Buyer. Such terms and conditions supersede any different, additional or inconsistent language, terms and conditions in Buyer’s order or in any other communication between Seller and Buyer, notwithstanding any statement in Buyer’s terms to the contrary. All prior communications, representations, negotiations and promises with respect to this sale are merged herein. Any purported modification or revision of this agreement or any part hereof, or waiver of any breach thereof, whether written or oral, shall be of no effect unless expressly agreed to in a writing signed by an authorized representative of each party.