Purchase Order Terms & Conditions

Innove Beauty & Wellness

These terms and conditions are incorporated into and made a part of the Purchase Order to which they are attached (collectively, the “Purchase Order”) and govern all orders for products and/or services (“Product” or “Products”) resulting from any Purchase Order issued to Vendor (“Vendor”) by Innove, Inc. on its own behalf or on behalf of its subsidiaries and affiliates (collectively “Innove”). The terms and conditions stated in this Purchase Order is the agreement between the parties to the Purchase Order, unless Innove and Vendor have entered into and executed a separate supply or purchase agreement prior to the “Purchase Order Date” on the facing page of the Purchase Order and which is effective on the Purchase Order Date. IF ANY ACCEPTANCE OR OTHER COMMUNICATIONS CONTAIN ADDITIONAL TERMS OR CONFLICT WITH TERMS AND CONDITIONS IN THE PURCHASE ORDER, THEY SHALL APPLY ONLY IF BOTH PARTIES AGREE TO THE ADDITIONAL OR CONFLICTING TERMS IN AN AMENDMENT TO THE PURCHASE ORDER SIGNED BY THEIR AUTHORIZED SIGNATORIES (EACH AN “AMENDMENT”). In the event there is a translation of the Purchase Order, the English language version shall control. 1. ORDERS. A Purchase Order is deemed accepted by Vendor if no written notice is provided to Innove of its rejection with the rejection reason within five (5) days after receipt by Vendor. 2. PRICING & PAYMENT. Pricing for the Products shall be the same or better pricing for the Products as Vendor offers to its other customers and Innove shall be provided the benefit of all lower prices offered by Vendor. Unless otherwise stated on the facing page of the Purchase Order, Innove shall pay the Total Amount owed to the Vendor 60 days after receipt of the invoice. The prices and terms of payment stated herein apply to all Products purchased hereunder. Innove shall have no obligation to honor invoices for Products at any increased price or additional charge unless such increases or additional charges are agreed to in writing by Innove. Without limiting any remedy to Innove pursuant to the Purchase Order or by law, in the event of any delay in the delivery of the Product caused solely by the Vendor, Innove shall be entitled to a discount off the Total Amount for the Products or portion thereof which is delayed. The discount shall be equal point three percent (0.03%) of such delayed Product or portion of Product ordered per day of delay. 3. TAXES. Vendor shall be responsible for all taxes and other governmental fees, charges, assessments of whatever nature (other than import customs duties as described below) for any applicable local, state and federal taxes, other than the corporate income taxes of Innove. Taxes shall be stated separately on the facing page of the Purchase Order. The price stated herein shall not include any tax for which an exemption is available or for which Innove has furnished Vendor evidence of a lawful exemption. Vendor agrees to pay and hold Innove harmless from and against any penalty, interest, additional tax or other charge that may be levied or assessed as a result of the delay or failure of Vendor, for any reason, to pay any tax or file any return or information to be filed or paid by Vendor. 4. DELIVERY. The obligation of Vendor to meet the delivery dates, specifications, and quantities, as set forth herein, is critical to the performance of the Purchase Order. If any of Vendor’s deliveries fail to meet schedule, Innove, without limiting its other rights or remedies, may either direct expedited routing and charge any excess cost incurred thereby to Vendor or cancel all or part of a Purchase Order in accordance with the default or termination provisions stated in this Purchase Order. Products that are delivered in advance of schedule are delivered at the risk of Vendor and may, at Innove’ option, be returned at Vendor’s expense for proper delivery and/or Innove may withhold payment therefore until the date that the Products are actually scheduled for delivery. No substitution of materials or accessories may be made to Products without Innove’ written consent. Vendor shall provide Innove with regular updates regarding the status of each delivery. At a minimum, Vendor shall inform Innove no later than thirty (30) days prior to the originally scheduled delivery date of the status of any shipment of Product and a final delivery date and schedule update not less than ten (10) days from the delivery date on the facing page. All deliveries, unless otherwise stated in the Purchase Order, shall F.O.B. Destination. Vendor acknowledges that the Products and any related materials or information provided along with the Products may be subject to export control laws and regulations of the United States and any amendments thereof. Vendor shall provide Innove with all information necessary, including but not limited to, proper Product classification and ECCN numbers under applicable export control rules and regulations, to allow Innove to import and/or export Products to the country of destination, if applicable. If the Vendor is to directly export such Products to Innove’ designated location(s), Vendor shall fully comply with all applicable export statutes, rules and regulations. Vendor affirms that it does not conduct or commission animal testing of any cosmetics and/or household products, including without limitation, ingredients or formulations of such products, supplied to Norvell, a Division of Innove, Inc. after 5/1/2007″. 5. PACKING, MARKING AND SHIPMENT. Unless otherwise specified by Innove in writing, Vendor shall pack and mark the Products so as to reasonably ensure that the Products reach Innove at its ultimate destination in a secure fashion. Unless otherwise agreed to in writing by Innove or as otherwise stated in the Purchase Order, Vendor shall prepay all shipping, customs duties and insurance charges. Damage discovered after transfer of title that is determined to be a result of faulty packaging or handling by Vendor shall remain Vendor’s sole responsibility. Unless otherwise provided, the price stated in this Agreement shall include all charges and expenses with respect to containers, packing and crating, and for transportation to the mutually agreed destination. Purchase Order number, Harmonized Tariff Codes and Innove sku and/or part numbers, if applicable, must be shown on all packing slips and invoices and on all packages, crates, and other containers. Each shipment must contain a packing slip showing the number of pieces in the shipment. Innove’ count shall be accepted as correct if any packing slip quantity is in dispute and the packing slip is omitted. Notwithstanding Section 7 below, in the event that there are any delays in the delivery of the Product(s) as a result of any regulatory requirements in connection with the Product packaging, Vendor shall be fully liable for any costs, losses and/ or damages associated with such delay. 6. FORCE MAJEURE. It shall not be a default and neither Innove nor Vendor shall be liable for a failure to perform hereunder arising from causes or events beyond a party’s control and without the fault or negligence of such party. Vendor shall notify Innove in writing within five (5) calendar days after the beginning of such cause. To the extent that, and so long as the obligations of either party are affected by any such cause or event, such obligations shall be suspended; provided, however, that should Vendor fail to comply with Innove’ delivery schedule, Innove may terminate any agreement to purchase Vendor’s Products, Purchase Order or part thereof without liability. 7. INSPECTION AND PRODUCT CHANGES. (a) Vendor shall conduct outgoing inspection of Products in accordance with procedures agreed between the parties before delivery of such Product to Innove, and Innove will be permitted, at its option, to participate in such outgoing inspection. If any inspection or test is made on Vendor’s premises, Vendor, without additional charge, shall provide reasonable facilities and assistance for the safety and convenience of Innove’ representatives. Inspection may be performed, at Innove’ option on an appropriate statistical sampling basis. Upon delivery of the Product at the location specified by Innove, Innove may conduct incoming inspection of such Product. (b) Innove shall notify Vendor of any shortages or other non-conforming Product. If Innove rejects any Product due to non-conformance, Innove may, in addition to all its other rights and remedies at law or equity, exercise one or more of the following remedies: (1) return rejected Product for full credit at the purchase price charged plus any return packaging and transportation charges; or (2) accept a conforming part of any shipment; or (3) have rejected Product replaced by Vendor at the Total Amount stated in the Purchase Order less any payments made thereon by Innove. This section does not apply to rejections based on defects, which are covered by the Warranty section below. (c) Upon reasonable prior notice to Vendor, Innove shall have the right, during normal business hours and at its own expense, to access Vendor’s facilities and systems in order to ascertain compliance by Vendor with the terms of the Purchase Order. Vendor agrees to cooperate fully with such audits. No inspection or acceptance, approval or acquiescence by Innove with respect to the Product shall relieve Vendor from any portion of its warranty obligation nor shall waiver by Innove of any specification requirement for one or more items constitute a waiver of such requirements for remaining items unless expressly agreed by Innove in writing. The inspection rights stated above are notwithstanding prior payment by Innove. (d) Vendor shall give Innove no less than one (1) year prior written notice of any Product revision that may impact the Product’s operation, interchangeability with existing Products, appearance, life cycle or Innove’ quality approvals of any Products. Vendor shall, at the time of notification, provide Innove with (1) a Product change number; (2) a description of such change; (3) reason for change; (4) a description of the impact of such change upon (i) reliability, (ii) Product specifications, (iii) form, fit or function; (5) proposed price impact (if any) and (6) proposed effective date for such change and recommend implementation schedule therefore. Only upon Innove’ written approval of the change, may Vendor implement the change to Product. Notwithstanding the above, Vendor shall not change its production methods or conditions (which includes, but is not limited to, process changes, sourcing changes, design changes, component changes, geographical relocation of manufacturing or production site, drawing changes or process step discontinuance) in a manner that would alter the Product specifications after the issuance of a Purchase Order and before delivery of the ordered Product without the prior written consent of Innove. Vendor shall inform Innove in writing of all such planned changes. If Vendor makes any such above changes without Innove’ prior written consent, Vendor shall be responsible for any direct damages and loss caused by the failure of such Product used by Innove in its product and service processes. 8. WARRANTY. (a) Vendor warrants to Innove that Products will at the time of delivery and be (i) free and clear of all liens and encumbrances; and (ii) the Vendor has all right, title and interest necessary to provide Innove (and all those taking title or possession of the Products directly or indirectly from Innove) with the rights necessary to incorporate the Product into a product or offering provided by Innove to its customers. (b) Vendor further warrants that for a period of eighteen (18) months after Innove’ acceptance of the Products (the “Warranty Period”), the Products (i) shall be merchantable and free from defects in design, material and workmanship and fit and safe for their intended purpose and use; (ii) have been produced, manufactured and/or delivered in compliance with all applicable laws, including without limitation provincial, federal, state, and local laws, and meet all government regulations with regard to product certifications, consumer safety, product liability, OSHA, warranty, safety, and any other regulated matters; (iii) to the extent applicable, (1) are not adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act as amended (the “Act”), or within the meaning of any applicable state or municipal law in which the definitions of “adulteration” and “misbranding” are substantially identical with those contained in the Act; and (2) are not goods which may not under the provisions of Section 404, 505, 512, 515, or 516 of the Act be introduced into Interstate commerce, or which may not under substantially similar provisions of any state or municipal law be introduced into commerce; and (iv) shall conform to the specifications for the Products. This warranty shall survive any inspection, acceptance, payment and sale of the Products to Innove’ customer and/or the end-user of a product or offering provided by Innove. Vendor agrees that the foregoing warranties will inure to the benefit of Innove, its successors, assigns, customers and end users. Any Products that do not comply with the foregoing warranties may be returned to Vendor and Vendor, shall promptly, at Innove’ option: (i) provide Innove with a full refund of the purchase price paid by Innove for the Products along with any costs incurred by Innove for the packaging and shipment of such Products; (ii) repair the Products; or (iii) replace the Products. Return of Products hereunder shall be at Vendor’s expense (including any expenses and penalties incurred by Innove in recalling Products delivered to Innove’ customers and/or their end users). Delivery to Innove of corrected or replaced Products shall also be at Vendor’s expense. Products corrected or replaced shall be subject to all warranty and indemnification provisions of this Agreement in the same manner and to the same extent as Products originally delivered under this Agreement. All repairs and replacement costs including, but not limited to, labor and parts shall be the full responsibility of the Vendor during the warranty period. 9. ADDITIONAL OBLIGATIONS. If required by Innove, Vendor shall provide supervision, training and assistance on the use and incorporation of the Products with other products and services for production of Innove’ products to its customers and their end users, including startup and commissioning at Innove’ facilities at no additional charge. Vendor shall also provide training on the operation and maintenance of equipment, containers and related Products to Innove designated trainees at no additional cost. Vendor shall ensure that any Products with “use by” or other expiration dates will not expire for at least 18 months after delivery to Innove. 10. RECALLS. In the event that a recall of the Products is necessitated by a defect, a failure to conform to the specifications, applicable laws, a breach of this Purchase Order or any other reason within the Vendor’s control, Vendor shall bear all costs and expenses of the recall, including without limitation, costs of notifying customers, customer refunds, costs of returning goods, lost profits, and other costs, expenses and penalties incurred to meet obligations arising from the recall. 11. AVAILABILITY, PARTS AND MAINTENANCE. Vendor shall provide Innove with no less than one (1) year prior written notice of its intent to no longer offer for sale the Products and shall grant Innove a final option to purchase Products in a reasonable quantity, time and manner. Vendor shall offer maintenance support and make available to Innove replacement parts for all Products furnished to Innove for a period of five (5) years from the last day of the Product warranty underlying the Products purchased under this Purchase Order. Prices for the Products, maintenance support and repair parts shall be no greater than those offered by Vendor to any other customer for the Products, maintenance, support and repair parts. Without waiving any of its rights or remedies under the Purchase Order or by law, in the event Vendor is unable to provide such Products, maintenance, support or repair parts, Vendor shall, at Innove’ sole option, license and grant to Innove all rights and information, including without limitation technical information and documentation of Vendor necessary for Innove, directly or indirectly, to obtain or manufacture such parts. The technical information and documentation shall include, by example and not by way of limitation: (a) manufacturing drawings and specifications covering raw materials, Products components, special tooling and the operation thereof; (b) a detailed list of all commercially available parts and components purchased by Vendor on the open market disclosing the part number, name and location of the supplier and price lists, for the purchase thereof; and (c) in-depth test specifications and procedures describing the methods of testing and repairing the material. Vendor will provide Innove with repair services (including all necessary parts and personnel) within forty eight (48) hours after receipt of such request from Innove. Vendor shall provide Innove with full technical support for the Product, providing Innove with manuals, drawings, plans and other documentation, and make available any product upgrade, improvement or retrofit to Innove at competitive cost. If during the manufacturing stage of the Product, Vendor has developed any advancement applicable to the Product, Vendor shall inform Innove and promptly incorporate such improvements or advancements into the Products currently in production with the consultation and approval of Innove. 12. COMPLIANCE WITH LAWS. Vendor warrants that it is in compliance with all laws, rules, regulations, standards, ordinances of the United States and any and all other applicable jurisdictions in which Vendor sells Product or has an office and/or does business, including, without limitation, all laws, rules, regulations, standards and ordinances relating to the environmental protection, worker health and workplace safety, fair labor and employment, child labor, human rights and race and gender discrimination, and any international treaties or agreements relating to any of the foregoing (collectively, the “Local Laws). Vendor further warrants, and shall so certify in writing to Innove, upon request, that Vendor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, age, or disability or any other status protected by the Local Laws. 13. INDEMNIFICATION. Vendor agrees to indemnify, save and hold harmless Innove, its successors, assigns, subsidiaries, affiliates and their respective officers, directors and representatives, as well as Innove’ customers (each, the “Indemnified Party” and collectively, the “Indemnified Parties”) from and against all losses, liabilities, damages, judgments, settlements, expenses (including, without limitation, attorney ‘s fees and costs) for claims based on injuries or damages to any person or property arising out of or in any way related to: (a) the Purchase Order; (b) the breach of any obligation or warranty, and/or (c) the delivery, condition, manufacture, purchase, sale, use, operation of the Products, including without limitation, as the Products may be incorporated into and made a part of finished products sold by Innove, purchased hereunder, except to the extent solely caused by the gross negligence of Innove. Vendor also agrees to, and will assume on behalf of the Indemnified Party, upon its demand (without regard to the real or apparent merits of such action), the defense of any court or agency action that may be brought against an Indemnified Party under this indemnity. 14. INTELLECTUAL PROPERTY. Vendor warrants that the Products specified herein and their sale, use, or existence, whether alone or in combination with other products or components, will not and does not infringe or misappropriate any copyright, patent, trademark, trade secret or any other intellectual property right of a third party (each, an “IP Claim”). If the sale, use, or existence of any Products are subject to an IP Claim and their use is enjoined or threatened to be enjoined, Innove may, at its sole option, require Vendor either to procure for the Indemnified Party (as defined in Section 13 above) the right to continue using such Products, or for Vendor to modify such Products so that they are no longer subject to an IP Claim or for the Indemnified Party to return all such Products (in their finished state, if applicable) and for Vendor to refund to the Indemnified Party the total purchase price of the Products, plus all cost and expenses related to the production of finished products, their recall from Innove (its subsidiaries and affiliates), its customers and their end users and return to Vendor. In addition, Innove may pursue any remedy or remedies available at law or in equity. If any third party asserts a claim or commences an action against the Indemnified Parties as a result of Innove’ use of, or incorporation of Vendor’s Products) into Innove products, Vendor agrees to indemnify, defend and hold the Indemnified Party harmless from the action or claim and to pay any resulting costs, damages, expenses (including attorney fees), loss or liability (including amounts paid in settlement) incurred by the Indemnified Party. With regard to a claim under this Section 14 or under Section 13 above, the Indemnified Party agrees to: (a) promptly notify Vendor after the Indemnified Party receives notice of such a claim; (b) give Vendor complete authority over defense or settlement of same (unless such settlement will materially affect the Indemnified Party ability to use Product or could be harmful to the overall business of the Indemnified Party, in which case, any settlement must first be approved by the Indemnified Party in writing); and (c) at Vendor’s expense, provide Vendor with such assistance as it reasonably requires in the defense of the claim. 15. MODIFICATION. Innove may at any time, by written notice, make changes to the Purchase Order or any of its terms and Vendor shall comply therewith. If any such change causes an increase or decrease in the cost of or time required for performance of Vendor’s obligations pursuant to this Agreement, an equitable adjustment shall be made in the price or delivery schedule or both, and the Purchase Order shall be modified in writing accordingly. Any claim by Vendor for an adjustment must be made in writing within (5) Business Days of the receipt of Innove’ change notice. 16. ASSIGNMENTS. No right or obligation under this Agreement, including the right to receive payments due or to become due hereunder, shall be assigned by Vendor without the prior written consent of Innove, and any purported assignment without such consent shall be void. Vendor shall not subcontract or in any other manner delegate to any other party the performance of any work or the supplying of any services under this Agreement without the prior written consent of Innove. 17. INSURANCE. Upon request of Innove, Vendor shall furnish to Innove a certificate of insurance, naming Innove as an additional insured, and showing that Vendor carries adequate general liability, property damage, product liability, professional services, errors and omissions, and workers’ compensation insurance or evidence sufficient to Innove of Vendor’s authority and ability to self- insure. 18. CONFIDENTIALITY. Vendor acknowledges that the Products, the Purchase Order and other information provided by Innove to Vendor such as manufacturing and sales information, process information, specifications, data, business plans or other property contain Confidential Information and Trade Secrets (“Proprietary Information”) of Innove. Vendor agrees: (a) to hold the Proprietary Information in the strictest confidence, (b) not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Proprietary Information to any third party, and will require that its representatives requiring such material for effective performance of this Purchase Order have undertaken an obligation of confidentiality and limitation of use consistent with the Purchase Order; and (c) not to make use of the Proprietary Information other than for the permitted purposes under of this Purchase Order. Each party hereunder shall institute internal operating procedures to assure limited access and use of Proprietary Information consistent with these Purchase Order and shall exercise due care to monitor and assure compliance herewith. Vendor shall not without the prior written consent of Innove, in any manner advertise or publish the fact that Vendor has furnished or has contracted to furnish to Innove the Products to be furnished under this Purchase Order. Upon completion of all work under this Agreement or termination of this Purchase Order, Vendor shall, upon the demand of Innove, promptly return to Innove all Proprietary Information, without limitation, furnished or paid for by Innove in connection with this Purchase Order, with all copies or reproductions then in Vendor’s possession or control. The confidentiality provisions contained herein shall survive performance, termination or cancellation of the Purchase Order. 19. TERMINATION: (a) Innove may terminate the Purchase Order, in whole or in part, without liability: (i) If Innove anticipates Vendor’s breach of the Purchase Order and Vendor does not provide adequate assurance of its performance within ten (10) days of Innove’ request; (ii) if deliveries are not made at the time or in the quantities specified; (iii) in the event of a breach or failure by Vendor to meet other terms of the Purchase Order; or (iv) Vendor is insolvent; makes a general assignment for the benefit of creditors; admits in writing its inability to pay debts as they mature; a trustee or receiver of Vendor or of any substantial part of Vendor’s assets is appointed by any court; or if a proceeding is instituted under any provision of any federal, state or country bankruptcy or insolvency law, rules or regulation, by or against Vendor. These rights shall be in addition to any other remedies provided Innove by law. No waiver by Innove of a breach by Vendor of any provision of this Agreement shall constitute a waiver of any other breach or provision. All of Innove’ rights and remedies hereunder shall be cumulative and not exclusive. (b) Innove may terminate the Purchase Order, in whole or in part, at any time for its convenience by notice to Vendor in writing. Vendor’s sole compensation for such termination shall be payment by Innove of the percentage of the total order price corresponding to the proportion of work completed in filling the order prior to such notice, plus any reasonable expenses incurred by Vendor in terminating orders and work in progress. Such termination claim must be submitted to Innove within sixty (60) days of the date of termination and shall be subject to audit by Innove. (c) Upon any termination under this Section, title to all Product, equipment, materials, work-in-progress, finished products, plans, drawings, specifications, information, special tooling, and any other items for which Vendor may submit a claim shall vest in Innove, and Vendor shall promptly deliver these items to Innove and take all necessary action to protect such property prior to such delivery. 20. LIMITATION ON LIABILITY. IN NO EVENT SHALL Innove BE LIABLE TO VENDOR FOR, AND VENDOR HEREBY WAIVES, ANY INDIRECT, ECONOMIC, SPECIAL, COMMERCIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF BUSINESS REVENUE OR EARNINGS, LOST DATA, DAMAGES CAUSED BY DELAYS, OR A FAILURE TO REALIZE EXPECTED SAVINGS) DIRECTLY OR INDIRECTLY ARISING OUT OF OR IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS PURCHASE ORDER, WHETHER OR NOT BE FORESEEN OR THEIR LIKELIHOOD HAS DISCLOSED TO Innove. Innove’ liability on any claim of any kind for any loss or damage arising out of, connected with or resulting from this Purchase Order, or from the performance or breach thereof, shall in no case exceed the price allocable to the Products under this Purchase Order giving rise to the claim. Innove shall not be liable for penalties of any description. Any action resulting from any breach on the part of Innove as to the Products delivered hereunder must be commenced within one (1) year after the cause of action has accrued. The limitations, exclusions and disclaimers set out in this Purchase Order shall apply: (a) whether an action, claim or demand arises from a breach of warranty or condition, breach of contract, tort (including negligence), strict liability or any other kind of civil or statutory liability connected with or arising out of this Agreement; (b) to Innove, its subsidiaries and affiliates and their respective directors, officers and representatives. Some jurisdictions do not allow limitation or exclusions of certain types of damages or of implied conditions or warranties. The limitations, exclusions, and disclaimers set forth in this Purchase Order shall not apply only if and to the extent that the laws of a competent jurisdiction require liabilities beyond and despite these limitations, exclusions and disclaimers. 21. SETOFF: Any claim against Vendor or any of its related entities by Innove or its affiliates or subsidiaries which arise out of this or any other transaction may be set off against any money due Vendor hereunder. 22. CHOICE OF LAW. This Agreement shall be governed by the laws of the State of Ohio, without reference to conflicts of law. Vendor irrevocably consents to the jurisdiction of the courts of Summit County, Ohio. The parties specifically agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. 23. AUDITS. For a period of two years after the date of the Purchase Order (the “Two Year Period”), Vendor shall keep accurate records relating to Vendor’s obligations under this Purchase Order. Auditors may inspect, for the Two Year Period, such records of Vendor on behalf of Innove. Any audit shall be during regular business hours at Vendor’s offices. If an audit reveals that Vendor has overcharged Innove, Vendor shall immediately refund overcharged amounts. If an audit reveals a five percent (5%) or greater noncompliance for any particular quarter by Vendor, then Vendor shall pay Innove’ reasonable costs of conducting the audit.