Terms and Conditions
Terms and Conditions
Nexiuum, Inc. Terms and Conditions of Sale – US
1. ENTIRE AGREEMENT.
Each party agrees that all sales of goods (“Goods”) by Nexiuum, Inc. (“Seller”) to Buyer are governed by these Terms and Conditions of Sale (“Terms and Conditions of Sale”), which supersede any other terms of Buyer or Seller. Each party agrees that the Terms and Conditions of Sale will also govern all sales of Goods to Buyer by any Nexiuum, Inc. subsidiary, affiliate, or division, in which case such subsidiary, affiliate, or division will be the “Seller” under this Agreement (unless otherwise agreed in writing by such subsidiary, affiliate, or division).
Buyer acknowledges that these Terms and Conditions of Sale are subject to change from time to time, and the parties agree that each sale of Goods will be governed by the version of the Terms and Conditions of Sale – US available online at www.nexiuum.com under the Terms and Conditions tab at the time of acceptance by Seller of an order for such Goods.
The Terms and Conditions of Sale, together with the order for Goods from Buyer and agreed by Seller (“Order”) or other contract documents to which they apply, constitute the entire agreement between the parties with respect to Goods (“Agreement”).
All references by Seller to Buyer’s specifications and similar requirements are only to describe Goods and work covered hereby, and no warranties or other terms will have any force or effect. No other terms of Buyer, no modification, amendment, or waiver to this Agreement, and no cancellation, change, or return of any Order under this Agreement will be binding on either party until agreed in writing by such party’s authorized representative.
Buyer may not rely on any representation, promise, or term not set forth herein, and Seller expressly objects to and rejects all terms not contained in this Agreement.
Seller’s acceptance of Orders, whether oral or written, and/or its delivery of Goods to Buyer is based on the express condition that Buyer agrees to all these Terms and Conditions of Sale.
2. QUOTATIONS.
Where this Agreement is used by Seller to place a bid or provide a quote, Seller’s quotation is for prompt acceptance and may be changed and/or withdrawn without notice. Buyer’s prompt acceptance of the quotation is a material term of the bid and any subsequent agreement.
In cases where freight allowance is included in the quotation, Buyer is liable for any rate increase and/or additional expense over the calculated allowance resulting from compliance with Buyer’s shipping instructions.
3. DELIVERY.
Delivery terms (per Incoterms® 2020) are stated on each Order. All Orders must include Buyer’s or forwarder’s address and are assumed to authorize immediate release upon ready-to-ship status unless otherwise specified in writing. All shipping dates are approximate; production will not begin until receipt by Seller of complete manufacturing, shipping, and credit information.
Tender of delivery is deemed to occur at the earliest of:
(A) acceptance of shipment by designated shipper,
(B) allocation of Goods to Buyer at a location other than Seller’s location,
(C) delivery to Buyer’s representative or designee, or
(D) mailing of an invoice to Buyer.
Buyer agrees to provide Seller with defined shipping instructions within seven (7) business days following receipt of the packing list provided by Seller. Title to Goods passes to Buyer on tender of delivery, subject to Seller’s right to stop Goods in transit and to any interest of Seller reserved to secure Buyer’s payment or performance, even if freight is included or prepaid.
If Seller holds Goods at Buyer’s instruction or because Buyer has failed to supply shipping instructions or because Seller, in its sole discretion, determines that any part of Goods should be held for Buyer’s account, Seller may invoice Buyer for the Goods, as well as for storage. Storage fees will be at Seller’s standard rates.
Goods invoiced and held at any location for whatever reason will be at Buyer’s risk, and Seller may charge for (but is not obligated to carry) insurance.
If Buyer fails to provide shipping instructions, Seller may, at its option, ship the Goods to Buyer at the address specified in the applicable Order and invoice Buyer for the Goods. Buyer agrees to make payment of such invoice when due.
Buyer will accept and pay for partial deliveries at the Agreement prices and terms. If Buyer declares or indicates an intention not to accept delivery, Seller may, at its option, give written notice to Buyer that Seller is ready and willing to deliver, and such notice will constitute a valid tender of delivery.
Buyer must report any shortages in shipments within three (3) calendar days of receipt of the initial shipment. Buyer may not make any deduction from any payment due because of loss or damage to Goods in transit.
If Buyer makes a written request, Seller, in its sole discretion, may agree as a service to Buyer to process Buyer’s claim against the freight vendor for any loss or damage in transit, so long as Seller receives the claim within five (5) calendar days of delivery of the Goods. All claims must be accompanied by a delivery receipt, signed by the freight vendor’s agent at the time of delivery, on which the loss or damage has been noted.
4. PRICES; PAYMENT.
Prices and payment terms are stated on the Order or invoice. Seller may make partial shipments, and payment for that portion will be due as indicated. Prices do not include sales, use, excise, or other similar taxes, and Buyer agrees to pay any present or future such tax unless Buyer provides valid exemption certificates.
If Seller has cause to question Buyer’s ability to perform, Seller may demand assurances, including payment in advance.
If Buyer fails to provide such assurance within ten (10) calendar days, becomes insolvent, or fails to pay when due, Seller may suspend performance, cancel Orders, and recover all damages and costs, including attorneys’ fees.
Past due balances accrue a service charge of 18% per annum or the maximum allowed by law, whichever is greater.
5. CANCELLATION, CHANGES, AND RETURNS.
If Buyer properly requests a cancellation, change, or return, Seller may, at its option:
(A) charge Buyer for costs incurred;
(B) revise prices and delivery dates; and/or
(C) accept returned Goods for credit if, in Seller’s sole discretion, they are standard stock and in good condition.
All returned Goods must be securely packed, and credit will be determined by Seller, less handling and freight.
6. FORCE MAJEURE; DEFERRED DELIVERY.
Seller will not be liable for delay or failure due to Force Majeure, including but not limited to: fire, flood, storm, act of God, labor issues, material shortages, civil unrest, pandemic, transportation delay, or government action.
Seller will have additional time as reasonably necessary and may adjust the price. Buyer’s acceptance of Goods constitutes waiver of any delay claim.
If delivery is delayed or interrupted by Force Majeure, Seller may store Goods at Buyer’s expense and risk.
7. WARRANTY; INTELLECTUAL PROPERTY.
Nexiuum, Inc. (“Manufacturer”) warrants to [Customer Name] (“Buyer”) that all finished powder supplement products manufactured and supplied under this Agreement (“Products”) will, at the time of shipment:
Conform in all material respects to the written formulations, specifications, and labeling approved in writing by Buyer;
Be manufactured in accordance with current Good Manufacturing Practices (cGMP) as required under 21 C.F.R. Part 111 and all other applicable federal, state, and local laws and regulations; and
Be free from defects in materials and workmanship under normal storage and handling conditions for a period of twelve (12) months from the date of manufacture (“Warranty Period”), unless otherwise stated on the Product’s Certificate of Analysis.
EXCLUSIONS.
This warranty does not apply to, and Nexiuum will not be liable for:
(a) Defects or nonconformities resulting from Buyer’s formulations, raw material specifications, labeling content, or packaging design;
(b) Any changes, adulteration, or mishandling of Products after shipment, including improper storage, exposure to heat, moisture, or contaminants;
(c) Product that has passed its stated expiration or “best by” date;
(d) Normal variations inherent in raw materials or manufacturing processes that do not materially affect Product quality or safety; or
(e) Any Product sold under private label using Buyer’s brand, claims, or marketing representations.
Nexiuum makes no warranty with respect to the efficacy, marketability, or regulatory compliance of any claims, statements, or representations made by Buyer or used in connection with the sale or marketing of the Products.
REMEDIES.
If any Product is found to breach this warranty and Buyer provides written notice within thirty (30) days of discovery and within the Warranty Period, Nexiuum’s sole obligation and Buyer’s exclusive remedy will be, at Nexiuum’s option:
(a) to replace the defective Product with conforming Product;
(b) to repair or rework the Product to meet specifications; or
(c) to credit or refund the purchase price paid for such Product.
Nexiuum may require the return or a sample of the Product for inspection, and Buyer must provide batch numbers, lot codes, and relevant documentation upon request.
8. LIMITATION OF LIABILITY.
THE WARRANTIES IN SECTION 7 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT WILL SELLER BE LIABLE FOR ANY PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFIT, LOSS OF USE, DAMAGE TO PROPERTY, OR CLAIMS OF BUYER’S CUSTOMERS.
NO CLAIMS OF ANY KIND MAY BE BROUGHT AGAINST SELLER MORE THAN TWELVE (12) MONTHS AFTER DELIVERY.
Buyer agrees to indemnify Seller for all liability resulting from Buyer’s negligence or willful misconduct.
Buyer acknowledges and agrees that Nexiuum shall not be responsible or liable for any changes in, or compliance with, any federal, state, territorial, district, or municipal laws, regulations, policies, or procedures applicable to the sale, marketing, distribution, or use of the products. Buyer is solely responsible for ensuring that all products manufactured by Nexiuum are sold, marketed, labeled, and distributed in full compliance with all applicable laws, rules, and regulations in each jurisdiction where the products are or will be offered, sold, or distributed.
9. CONTROLLING LAW; VENUE; DISPUTE RESOLUTION.
This Agreement is governed by the laws of the State of Utah, without regard to conflict of laws. The U.N. Convention on Contracts for the International Sale of Goods does not apply.
All disputes (“Disputes”) will be resolved by binding arbitration in the State of Utah. No Dispute may proceed as a class, collective, or representative action.
If this limitation is found unenforceable, the Dispute will proceed in the state or federal courts of Utah, which will be the exclusive venue.
EACH PARTY WAIVES ALL RIGHTS TO A JURY TRIAL.
10. MISCELLANEOUS.
(A) No waiver is effective unless in writing, signed by an authorized representative.
(B) Buyer may not assign this Agreement without Seller’s prior written consent.
(C) Seller’s remedies are cumulative.
(D) If any provision is held invalid, the remainder remains effective.
(E) Each party is an independent contractor.
(F) Notices must be delivered in person, by overnight courier, or email (with confirmation) to the addresses on the applicable Order.
(G) No provision will be construed against either party as the drafter. The English version governs over translations.
In the case of notice to Seller, please also send a copy to:
Nexiuum
870 S 860 E
SUITE 100
American Fork, UT 84003
Attn: General Counsel