Aroma Creations Terms and Conditions of Sale
Applicability. All sale of goods (“Goods”) by BMC Manufacturing, LLC, dba Aroma Creations, and/or any of its affiliates (individually or collectively, as applicable, “Seller”) to a buyer (“Buyer”) are subject only to the terms and conditions (“Terms and Conditions”) contained within this agreement (“Agreement”). These Terms and Conditions cannot be changed, except by the duly authorized representatives of both parties in writing, and no modification shall be affected by Seller’s acknowledgement and/or acceptance of purchase order form(s) or other document(s) from Buyer containing different terms and conditions. In the event Seller and Buyer have executed a separate written and duly authorized contract specifically governing the sale of the Goods, then such contract’s terms and conditions shall supersede these Terms and Conditions. To the extent such executed written contract is silent to certain terms and conditions contained herein, then these Terms and Conditions shall apply and control.
Order Acknowledgement and Price. Orders of Goods by Buyer shall not bind Seller until confirmed by Seller in writing by an order acknowledgement (“Order Acknowledgement”). These Terms and Conditions are deemed to be a part of, and incorporated into, every Order Acknowledgement for Goods sold by Seller. The price and currency indicated in the Order Acknowledgement shall be considered to be the price and currency agreed between the Buyer and Seller for the sale of Goods. Unless otherwise expressly agreed to by Seller and Buyer and indicated in the Order Acknowledgement, Seller’s price shall include standard packaging, but shall not include any freight expenses; insurance; storage fees; and/or Value Added Tax or any other tax, duty, levy, or charge in any jurisdiction in relation to the Goods or delivery thereof.
Delivery Terms. Unless otherwise specified in the Order Acknowledgement, the Goods shall be delivered by Seller to Buyer Ex Works, and to the address designated by Buyer on purchase order form. All costs of transportation and insurance to delivery destination shall be borne by Buyer, and all risks of loss shall pass to Buyer when the Goods are delivered to the carrier. Seller shall not be liable to Buyer for damage to Goods while in transit.
Delivery Date. Seller shall use commercially reasonable efforts to ship the Goods on the date stated in the Order Acknowledgement; provided, however, that such delivery terms are estimates and Seller shall not be held liable for any loss incurred by Buyer in the event of a shipping and/or delivery delay.
Handling, Loading, And Unloading Goods and Containers. Buyer acknowledges that the Goods may require special handling, personal protective equipment, storage, transportation, and/or treatment to comply with applicable safety and environmental laws, and Buyer understands and agrees that it be solely responsible for taking all action(s) necessary to comply with and abide by these laws to avoid spills and other dangers to persons, property, and the environment.
Warranties. Seller warrants that the Goods shall conform to Seller’s standard specifications for the Goods, tested by Seller’s test methods and/or such other specifications as have been agreed in writing by Seller and Buyer and in effect on the date of shipment (“Specifications”); provided, however, that Seller reserves the right to make any changes in the Specifications of the Goods which Seller considers to be required to conform with any applicable safety or other statutory requirement. Seller warrants further that such Goods are adequately contained, packaged, and labeled and conforms to any promises and affirmations of fact made on the container and label, subject also, however to any limitations or special conditions referred to thereon. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE GOODS, USED ALONE OR IN COMBINATION WITH OTHER MATERIALS, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE CONTEMPLATED BY BUYER CONCERNING THE GOODS AND CONTAINERS IN WHICH THE GOODS ARE SHIPPED, WHETHER OR NOT KNOWN BY SELLER, ARE EXPRESSELY DISCLAIMED. THE BUYER ACKNOWLEDGES THAT NO OTHER REPRESENTATIONS WERE MADE TO IT OR RELIED UPON BY IT WITH RESPECT TO THE GOODS HEREIN SOLD.
Claims. Buyer shall, within forty-five (45) days of receipt, bear responsibility for examining and testing the Goods for any damage, shortage, and/or for non-conformity with the Specifications (“Defective Goods”). All claims by Buyer or others for alleged Defective Goods, negligence, or any other cause, whether or not enumerated shall be waived unless made in writing, precisely describing the nature and extent of the defects, and shall be received by Seller within forty-five (45) days after Buyer’s receipt of Goods. At Seller’s Request, Buyer agrees that it shall promptly forward to Seller a representative sample of alleged Defective Goods. Notwithstanding the foregoing, apparent transport damages must be notified to the carrier and to Seller upon delivery of the Goods. BUYER EXPLICITLY UNDERSTANDS AND AGREES THAT IN ANY EVENT, ALL CLAIMS MADE AFTER THE GOODS HAVE UNDERGONE ANY TRANSFER FROM ORIGINAL PACKAGING CONTAINERS, PROCESSING, TREATMENT, AND/OR INCORPORATION INTO ANOTHER PRODUCT, IN ANY FORM WHATSOEVER, INCLUDING BEING RESOLD IN ANY FORM WHATSOEVER BY BUYER, SHALL BE NULL AND VOID. Failure of Buyer to give notice of any claim within the applicable time period specified herein shall be deemed an absolute and unconditional waiver of such claim. In case of duly proven Defective Goods, Seller shall, at its choice, either replace or repair at its own expense such Defective Goods, or refund Buyer the price paid.
Limitation of Liability. SELLERS LIABILITY SHALL BE EXPRESSLY LIMITED TO THE PURCHASE PRICE OF THE QUANTITY OF DAMAGED GOODS IN RESPECT OF WHICH ANY CLAIM IS MADE. Seller may provide Buyer with information regarding the use of the Goods in Buyer’s product(s). With regard to such occurrences, Buyer acknowledges that Seller is in no way responsible for the use or sale of Seller’s Goods by Buyer. Buyer acknowledges that Seller cannot anticipate all conditions under which Seller’s Goods may be used, and therefore, Buyer agrees to conduct its own tests to determine the safety and suitability of Seller’s Goods for Buyer’s purposes. Any information provided by Seller is without warranties, either express or implied, and Buyer agrees to indemnify and save Seller harmless of and from any and all losses, costs (including, without limitation, reasonable attorneys’ fees) and claims arising out of, or in connection with, Buyer’s products and/or personal goods, including, but not limited to products made in whole or in part from Seller’s Goods, a safety related property of Seller’s Goods, and/or any non-compliance with any applicable governmental laws and regulations, whether or not such claims and liability are for negligence or otherwise. FURTHERMORE, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, LOST REVENUES, OR LOSS OF BUSINESS REPUTATION (IN EACH CASE REGARDLESS OF WHETHER CATEGORIZED AS DIRECT OR CONSEQUENTIAL DAMAGES) INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY, REGARDLESS IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHER LEGAL THEORY.
Confidentiality. All information and materials (including the Goods thereof or the terms of any Order Acknowledgement or other arrangements relating to the Goods) provided by Seller to Buyer are strictly confidential and may not be disclosed by Buyer to any third parties (other than its affiliates), without Seller’s prior express written permission.
Intellectual Property. All intellectual property rights arising out of or in connection with the Goods are the exclusive property of the Seller. The sale of Goods shall not, by implication or otherwise, convey any license under any intellectual property right relating to the compositions and/or applications of the Goods, and Buyer explicitly assumes all risks of any intellectual property infringement by reason of the use of the Goods, whether singularly or in combination with other materials or in any processing operation.
Invoices and Payment. Seller shall invoice Buyer for the price of Goods on or at any time after the shipment of Goods. Buyer shall pay Seller in accordance with the agreed upon terms, as stated in the Order Acknowledgement. Should Buyer elect to pay Seller with a credit card, Seller shall charge an additional service fee for processing equal to three percent (3.0%) of the total invoice amount being charged to the credit card. If payment is not received in accordance with the agreed upon terms, Seller reserves the right to charge for collection fees, legal fees, interest (up to the maximum amount allowed by law), and any other cost(s) realized and/or deemed necessary in connection with collection of overdue payments for Buyer. Payment terms are extended to Buyer by Seller, at Seller’s sole discretion. Seller reserves the right to require advance cash payment from Buyer for purchases of Goods. In addition, Seller reserves the right to withhold shipments until Buyer’s past due account balances are paid in full. Should Seller, in its sole discretion, determine that Buyer’s financial standing is unsatisfactorily impaired, it reserves the right to withhold and/or cancel shipments to Buyer, whether or not Order Acknowledgement(s) have been provided to Buyer.
Force Majeure. No liability shall result from delay in performance or non-performance by Seller caused by circumstances beyond its control, including, without limitation, acts of God, natural disasters, fire, flood, earthquakes, epidemics, explosions, riots, wars, terrorism, civil disturbances, perils of sea, labor disturbances (ie - strikes, slow-downs or sabotage), machinery breakdowns, Government actions, inactions or prohibitions, shortages of raw materials or utilities, delay in delivery or defects in goods supplied to Seller’s suppliers or subcontractors, and/or traffic stoppages. Seller reserves the right to allocate supplies among its buyers.
Notices. All notices under these Terms and Conditions must be in writing and mailed or delivered to Buyer at the Appropriate address set forth in Aroma Creations Account Set-up Form, or to Seller as set forth at the beginning of this Terms and Conditions of Sale Agreement.
Severability. Buyer and Seller expressly acknowledge and agree that the provisions, or portions thereof, of this Agreement shall be deemed severable and the invalidity of or unenforceability of any provision, or portion thereof, shall not affect the validity or enforceability of the other provisions hereof. If any provision, or portion thereof, of this Agreement is unenforceable for any reason, it is the express intent of the Parties that such provision, or portion thereof, shall be appropriately limited and given effect to the greatest extent that it may be enforceable in the discretion of the court or, in the alternative, such provision shall be severed in its entirety, if a court of competent jurisdiction determines a lesser limitation that what is stated is not appropriate.
Governing Law. This Agreement shall be governed by, and construed and interpreted in accordance with the domestic laws of the State of South Carolina, without regard to the fact that South Carolina law may suggest another state’s law should apply. Any dispute concerning or arising under this Agreement must be submitted to a court of competent jurisdiction, either state or federal, within the State of South Carolina, and the Buyer and Seller voluntarily submit to that jurisdiction. In no event shall the United Nations Convention on the International Sale of Goods apply to this Agreement or any transaction thereunder.