By submission of an order pursuant to an estimate issued by Kind Manufacturing (“Order), Customer confirms that these Terms and Conditions shall govern.
1. ACCEPTANCE: Customer’s execution of its Order shall constitute an offer to Kind Manufacturing to perform the services and provide the goods pursuant to the express terms of its Order. Kind Manufacturing shall be deemed to have accepted this Order upon the earliest of Kind Manufacturing execution of the Order. Any proposal for additional or different terms or any attempt by Customer to vary in any degree any of the terms is rejected. Any changes to this Order must be approved by the parties in writing.
2. PRODUCTION DETAILS
A. Estimates: Estimates shall be valid 30 days from issuance and subject to modification prior to Kind Manufacturing’s approval of the Order.
B. Receiving: Customer shall deliver all ingredients, bulk, labels, and packaging supplies (“Components”) no more than two weeks prior to manufacturing and no less than one week prior to manufacturing (“Receiving Window”). All incoming component must include on the outside packaging: Client Name, Client Number, Order Number. Customer shall ship Components to:
262 Columbus Avenue
Roselle, NJ 07203
C. Waste: Customer shall provide 10% additional Components to account for waste. Kind Manufacturing will mix and fill the Order until all components are utilized. Customer agrees to pay for additional units produced beyond the estimate. Kind Manufacturing will return all unused components at Customer’s expense.
D. Testing and Specifications: Prior to any filling, Kind Manufacturing will hold the bulk for micro testing. Customer shall specify aerobic plate count tolerances for fill.
E. Variations: Customer acknowledges that certain production variations are inevitable due to the nature of Kind Manufacturing’s process, including, without limitation, fill level and label alignment/centering. The parties agree that Goods containing production variations shall not be deeded to be non- conforming or defective and Kind Manufacturing shall not be responsible for production variations.
F. Storage Fee: Kind Manufacturing shall return to Customer all completed units and remaining Components immediately following the end of production. Customer shall incur a storage fee for any units or Components held prior to the Receiving Window and after the completion of production.
3. DELIVERY. The delivery lead-time for the Goods shall be four (4) weeks after Kind Manufacturing’s acceptance of this Order. All deliveries of the Goods shall be ExWorks Roselle, New Jersey. Title to, and risks of loss of or damage to, the Goods shall be transferred from Kind Manufacturing to Customer upon the delivery to Customer’s carrier.
4. PAYMENT: Customer agrees to pay the prices set forth in its estimate, plus all shipping costs, handling charges, taxes and duties (collectively, the “Purchase Price”). Customer shall pay 50% of the estimate upon Kind Manufacturing's acceptance of it’s Order and the remaining balance upon the completion of production and prior to shipping. The final balance shall be determined by the actual labor time, components received, and completed goods manufactured.
5. REMEDIES FOR NON-PAYMENT: If Customer fails to make any payment when due, Kind Manufacturing reserves the right to suspend performance. Customer agrees to pay a charge on all amounts past due at the rate of 1.5% per month (18% per year) or the maximum lawful rate, whichever is less. In the event of non-payment, Customer agrees to pay Kind Manufacturing reasonable attorney fees and costs, if any, incurred by Kind Manufacturing to collect payment, and all applicable interest charges.
6. CANCELLATIONS: Customer may cancel it’s order prior to production. Cancellations must be submitted in writing. Upon cancellation, Customer shall be entitled to a refund of the Purchase Price, less any setup fees and costs incurred by Kind Manufacturing. The return of Components shall be at Customer’s expense, including Kind Manufacturing’s fees to facilitate the return. Refunds shall be delivered to Customer within thirty (30) days following notice of cancellation. THIS ORDER MAY NOT BE CANCELLED AT ANYTIME FOLLOWING THE START OF PRODUCTION. CUSTOMER ACKNOWLEDGES THAT THE GOODS CREATED HEREUNDER ARE MANUFACTURED EXCLUSIVELY FOR CUSTOMER AND, AS SUCH, KIND MANUFACTURING DOES NOT ACCEPT RETURNS.
7. EXCUSABLE DELAYS: Kind Manufacturing shall have no liability if its performance is delayed or prevented by causes beyond its reasonable control, including, without limitation, acts of nature, labor disputes, government priorities, transportation delays, insolvency or other inability to perform by Kind Manufacturing’s vendors, or any other commercial impracticability. In the event of any such delay, the date of delivery or performance shall be extended for a period equal to the time lost by reason of delay.
8. CUSTOMER CLAIMS: Claims for any non-conforming Goods must be made by Customer, in writing, within five (5) days of Customer’s receipt of such Goods and must state with particularity all material facts concerning the claim then known to Customer. Failure by Customer to give notice within such five (5) day period shall constitute an unqualified acceptance of such Goods by Customer, and a waiver of any right to reject or revoke acceptance of such Goods.
9. USE AND SAFETY: Kind Manufacturing does not guarantee that the Goods conform to any plans, specifications or intended use. Customer is solely responsible for determining whether the Goods are acceptable for Customer’s intended purpose and end use. KIND MANUFACTURING EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND/OR INDEMNIFICATIONS RELATED TO PRODUCT SAFETY AND/OR INTENDED USE. Customer shall defend, indemnify and hold harmless Kind Manufacturing, and any person acting for or on behalf of Kind Manufacturing, from and against any and all actions, causes of action, suits, proceedings, claims, liabilities, losses, expenses and damages of any kind or character, together with all costs and expenses (including, without limitation, reasonable attorneys' fees and expenses, and all other litigation costs and expenses, interest and penalties) based on an allegation that (i) Customer’s use and/or resale of the Goods conflict with any law; or (ii) the Goods fail to comply with any labeling or product safety law.
10. KIND MANUFACTURING WARRANTIES: Kind Manufacturing warrants that all Goods sold are new and free and clear of any security interests or liens. Customer’s exclusive remedy for breach of such warranties shall be replacement with new Goods or termination of any security interests or liens. Kind Manufacturing MAKES NO OTHER WARRANTIES WRITTEN OR ORAL, EXPRESS, IMPLIED OR BY STATUTE. NO IMPLIED STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE APPLIES.
11. CUSTOMER’S INTELLECTUAL PROPERTY: Customer represents and warrants that Customer is the sole owner of all right, title and interest in and to the graphic(s), trademark(s) and/or logo(s) delivered to Kind Manufacturing. Kind Manufacturing acknowledges that the Customer Intellectual Property Rights are and shall remain the sole property of Customer, and Customer shall maintain the exclusive right to control the Customer Intellectual Property Rights. Kind Manufacturing shall not use the Customer Intellectual Property Rights in any manner other than as expressly permitted by this Order. Customer shall defend, indemnify and hold harmless Kind Manufacturing, and any person acting for or on behalf of Kind Manufacturing, from and against any and all actions, causes of action, suits, proceedings, claims, liabilities, losses, expenses and damages of any kind or character, together with all costs and expenses (including, without limitation, reasonable attorneys' fees and expenses, and all other litigation costs and expenses, interest and penalties) based on an allegation that the use by Kind Manufacturing of any Customer Intellectual Property Rights that Customer authorized Kind Manufacturing to use pursuant to this Order constitutes an infringement of patents, design rights, copyrights, trademarks or any other intellectual property or proprietary rights owned or controlled by third persons.
12. KIND MANUFACTURING'S INTELLECTUAL PROPERTY: all white label formulations purchase by Customer from Kind Manufacturing shall remain the sole property of Kind Manufacturing, and Kind Manufacturing shall maintain the exclusive right to control the Intellectual Property Rights. Customer shall not reverse engineer white label formulations.
13. LIMITATIONS OF LIABILITY:UNLESS APPLICABLE LAW OTHERWISE REQUIRES, KIND MANUFACTURING’S TOTAL LIABILITY TO CUSTOMER RELATING TO OR ARISING OUT OF THIS ORDER IS LIMITED TO THE PURCHASE PRICE OF THIS ORDER. KIND MANUFACTURING SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, INCIDENTAL, DIRECT, CONSEQUENTIAL OR PENAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, BACK CHARGES, LABOR COSTS, COSTS OF REMOVAL, REPLACEMENT, LOSS OF EFFICIENCY, LOSS OF PROFITS OR REVENUES, LOSS OF USE OF THE GOODS OR ANY ASSOCIATED GOODS, DAMAGE TO ASSOCIATED GOODS, LATENESS OR DELAYS IN DELIVERY, UNAVAILABILITY OF GOODS, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, FACILITIES OR SERVICES, DOWNTIME, OR CLAIMS FROM CUSTOMER OR OTHER PARTIES).
14. GOVERNING LAW: This Order and all disputes related to this Order shall be governed by the laws of the State of New York, without giving effect to its conflict of law rules.
15. FORUM SELECTION: Any dispute under this Order shall be brought in the federal or state courts in New York County, New York, and Customer consents to the jurisdiction of the same.
16. COUNTERPARTS: This Agreement may be executed in counterparts, each of like tenor and effect, and each of which is to be deemed to be an original, but all of which, together, shall constitute one and the same instrument.