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Customer Purchase Order Terms & Conditions

1. Definitions. “Seller” shall refer to INW Manufacturing, LLC or any of its affiliate entities that are (i) included in a purchase order or acknowledgement of the purchase order or (ii) deliver/manufacture the Products (as defined below) and “Customer” shall refer to customer/buyer entity identified in the purchaser order or acknowledgment of the purchase order.

2. Acceptance of Agreement. These Terms and Conditions (the “Terms”) are the only terms that govern the manufacture and sale of goods as described in the purchase order or acknowledgment of the purchase order (collectively, “Products” or “Goods”) by Seller to the Customer. Notwithstanding anything herein to the contrary, if a written contract covering the sale of the Products and signed by both parties is in existence, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms. Any of Customer’s acknowledgment of these Terms, acceptance or receipt of the Products, tendering of any payment, or election to use credit terms is deemed Customer’s acceptance of these Terms. Any oral terms or written provisions, terms, or conditions on Customer's invoices, orders, or any other form that purport to modify, conflict with or are contrary to, or supplement the provisions of these Terms are void and not accepted. 

3. Shipping and Delivery. Legal and equitable title to the Products (and risk of loss thereof) shall pass to Customer when the Product is physically delivered to Customer’s authorized representative/carrier. Seller will comply with all regulations of the customs agency or department of the importing country. Unless otherwise expressly stated on the face of an acknowledgment of a purchase order, prices and delivery are “FOB-Origin.” Late delivery to Customer shall be excused by Seller’s written notice (which may be provided by email) of any of the following events within a reasonable time following Seller’s learning of the event: (a) Seller not receiving Customer’s supplied materials or components, or required vendor materials or components, more than thirty (30) days prior to the agreed upon delivery date; (b) Seller’s postponement (in its sole discretion) of production scheduling due to Customer or its required vendor’s inability to confirm delivery dates for materials or components supplied by Customer or its required vendor(s); (c) Adverse testing issues concerning materials that result in delay; (d) The unavailability of, any unforeseen delay in obtaining, or Seller’s inability due to circumstances reasonably beyond its control to obtain, raw material or packaging components used in the Products or formulas; (e) Any force majeure event; and (f) Customer fails to remain continuously current on all invoice balances owed to Seller. Furthermore, Seller shall not be liable for any delays, loss, or damage in transit; but Seller will be responsible for any of its own manufacturing or scheduling delays.

4. Inspection. Customer shall inspect Products received under these Terms within 14 days of receipt of such Products (“Inspection Period”) and either accept or, only if any such Products do not materially conform to the Specifications, the quantity (subject to 10% surplus or shortfall) specified in the PO or any applicable Confirmation or defects that obviously occurred, as determined by Seller, during Seller’s manufacturing process (“Nonconforming Products”), reject such Products by written notice to Seller. Customer will be deemed to have accepted Products unless it provides Seller with written notice of any Nonconforming Products prior to expiration of the Inspection Period. Nonconforming Products do not include those Products that were damaged during shipping and/or logistics, and Seller shall not be responsible for such damaged Products. If Customer timely notifies Seller of any Nonconforming Products, Seller shall determine, in its reasonable discretion, whether the Products are Nonconforming Products. Each notice from Customer of Nonconforming Products shall specify the applicable lot numbers of the Products which Customer contends are non-conforming and shall be accompanied by documentation supporting the reason for such rejection and a representative sample of such Products. In connection with such notice, Seller shall have a right to inspect such Products and to require Customer to furnish Seller with such other written evidence or other documentation as may be reasonably requested by Seller. If Seller determines that such Products are Nonconforming Products, Seller shall, in its sole discretion, either: (i) replace such Nonconforming Products returned by Customer to Seller with conforming Products; or (ii) refund to Customer the amount paid by Customer to Seller for such Nonconforming Products returned by Customer to Seller. THIS SECTION SETS FORTH CUSTOMER’S SOLE REMEDY AND SELLER’S ENTIRE LIABILITY WITH RESPECT TO NONCONFORMING PRODUCTS. Except as provided under this Section, Customer has no right to return Products shipped to Customer pursuant to these Terms.  Customer shall reimburse Seller for any and all costs and expenses incurred for continuing to store, hold, stock, or otherwise contain any Seller materials or products which have been deemed solely by Seller to be stranded, for any reason (“Stranded Costs”). Customer shall reimburse Seller for Stranded Costs immediately upon receipt of invoice for such.

5. Payment, Invoices and Taxes. Unless the acknowledgment of a purchase order or a written agreement signed by both parties states otherwise, Customer agrees to pay for the Products per the agreed-upon terms of approved credit or 50% payment on receipt of the Seller’s acknowledgement of the purchase order, followed by 50% payment on receipt of the Products. In the event Customer fails to timely pay such invoices, the Customer hereby agrees that Seller shall have the right to apply 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. Customer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Products and stop Products in transit if Customer fails to pay any amounts when due hereunder. Customer shall not have a right to withhold, offset, recoup or debit any amounts owed (or to become due and owing) to Seller against any other amount owed. Invoices may be dated prior to the shipping date in some events. Seller will include the purchase order number on all invoices. Seller's price includes all sovereign, state and local sales, use, excise, value added, privilege, payroll, occupational and any other taxes, fees or duties applicable to the Products, and includes delivery. All taxes will be separately stated on the invoice, and to the extent the invoice includes both taxable and nontaxable amounts, any taxable amounts shall be separately stated on the invoice. Neither party is responsible for taxes on the other party’s income.

6. Customer Responsibility for Products. Customer shall be solely responsible to ensure that the Products ordered have been stability tested in accordance with industry standards prior to ordering and that the Products and packaging specifications provided by Customer are identical to the specification used for stability testing. Seller is not responsible for stability testing the Products unless agreed upon in writing and signed by an authorized representative of Seller.

7. Compliance With Laws. Customer represents and warrants that it is in compliance with all Applicable Laws.  The term “Applicable Laws” includes laws related to labor and employment, worker safety, data privacy, consumer protection, environmental protection, business operations, manufacturing, quality assurance, licensing, authorization, zoning, import/export, shipment, non-discrimination and anti-corruption laws.

8. Indemnification and Limitation of Liability.  Customer shall indemnify and hold harmless Seller and its managers, officers, employees, agents, affiliates, successors and assigns against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind (including attorneys’ fees and the costs of enforcing any right to indemnification under these Terms), relating to, arising out of or resulting from any claim arising out of or occurring in connection with (i) Customer’s breach of these Terms, (ii) any third-party claims for infringement of intellectual property used at direction of Customer, (iii) product liability claims arising from the products which otherwise comply with (A) the warranties of Seller, or (B) Customer’s product specifications; (iv) any marketing, promotion, distribution, advertising, or sales of products by Customer or its agents (including, without limitation, as it relates to any product related claims); (v) product non-compliance with Proposition 65; and (vi) Customer’s negligence or willful misconduct. IN NO EVENT SHALL SELLER BE LIABLE TO CUSTOMER OR ANY THIRD PARTY 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. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED TEN (10) PERCENT OF THE CUMULATIVE AMOUNT ACTUALLY RECEIVED BY SELLER FROM CUSTOMER OF CUSTOMER’S PURCHASE PRICE OF THE RELEVANT PRODUCTS.

9. Warranties. Seller warrants that the Products will be manufactured in accordance with applicable Good Manufacturing Practices of the United States Food and Drug Administration (“GMP”) and conform to the agreed upon specifications for the Products, in all material respects, at the time of delivery to CUSTOMER. SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) 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. SELLER DOES NOT AND SHALL NOT WARRANT PRODUCT COMPLIANCE WITH CALIFORNIA’S SAFE DRINKING WATER AND TOXIC ENFORCEMENT ACT OF 1986 (“PROPOSITION 65”) UNLESS SELLER ISSUES A SPECIFIC WRITTEN AND SIGNED WARRANTY TO THAT EFFECT IN FAVOR OF CUSTOMER AT THE TIME OF PRODUCT MANUFACTURE.

10. Intellectual Property and Confidential Information. All non-public, confidential, or proprietary information of either party, including specifications, formulas, samples, patterns, designs, plans, drawings, documents, data, business operations, supplier lists, customer lists, pricing, discounts, or rebates, disclosed by the disclosing party or its representatives to 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 these Terms is confidential and may not be disclosed or copied unless authorized by the disclosing party in writing. Upon the disclosing party’s request, the receiving party shall promptly return all documents and other materials received from the disclosing party; except that the receiving party shall have the right, subject to the requirements of these Terms, to retain the disclosing party’s Confidential Information contained in the receiving party’s (i) professional work papers and (ii) secure, archival computer back-up files maintained in the ordinary course of business. The disclosing party shall be entitled to injunctive relief for any violation of this Section.

11. Governing Law, Jurisdiction and Venue. These Terms shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the conflict of laws provisions thereof. The United Nations Convention on Contracts for the Sale of Goods (CISG) shall not apply to these Terms. Each party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other party in any way arising from or relating to these Terms in any forum other than the federal and state courts located in the same county and same state as the Seller’s Address on the purchase order, and each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts. Each party agrees that a final judgment in any such proceeding may be enforced in other jurisdictions. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THESE TERMS.

12. Force Majeure. Seller shall be excused from liability for the failure or delay in performance of any obligation under these Terms by reason of any event beyond such party’s reasonable control, including weather, pandemic, civil disturbances, acts of civil or military authorities or Acts of God. Such excuse from liability shall be effective only to the extent and duration of the event(s) causing the failure or delay in performance and provided that the party has not caused such event(s) to occur. Notice of a party’s failure or delay in performance due to force majeure must be given to the other party within 14 calendar days after its occurrence. Customer shall still pay for all costs, fees and charges actually incurred regardless of this provision.

13. Assignment/Order Cancellation.  Customer may not assign or cancel these Terms, in whole or in part, without Seller’s written consent.  Seller may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under these Terms.

14. Miscellaneous. No amendment to these Terms is effective unless it is in writing, identified as an amendment to these Terms, and signed by each party. These Terms are binding on and inures to the benefit of the parties and their respective successors and permitted assigns. These Terms benefits solely the parties to these Terms and their respective permitted successors and permitted assigns and nothing in these Terms, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms. The relationship between the parties is that of independent contractors. No waiver of any of the provisions of these Terms shall be effective unless explicitly set forth in writing and signed by the party so waiving and no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms shall operate or be construed as a waiver thereof. Seller shall be entitled to recover its reasonable costs and expenses, including attorneys’ fees, incurred in enforcing and/or defending its rights under these Terms. Except as otherwise provided herein, all rights and remedies provided in these Terms are cumulative and not exclusive. A holding that any term or condition of these Terms is void or unenforceable shall not render void or unenforceable any other terms or conditions of these Terms.