Last Updated Date: December 8, 2022
This purchase order is an offer by USRX, LLC d/b/a Urban Skin RX (“USRX”) for the purchase of the goods specified on the face of this purchase order (the “Goods”) from the party to whom the purchase order is addressed (the “Seller”) in accordance with and subject to these terms and conditions (the “Terms”; together with the terms and conditions on the face of the purchase order, the “Order”). This Order, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Order. The Order expressly limits Seller’s acceptance to the terms of the Order. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Seller’s general terms and conditions of sale or any other document issued by Seller in connection with this Order. These Terms apply to any repaired or replacement Goods provided by Seller hereunder. Except as otherwise agreed to in writing by USRX, USRX is not obligated to any minimum purchase or future purchase obligations under this Order.
This Order is not binding on USRX until Seller accepts the Order in writing. USRX may withdraw the Order at any time before it is accepted by Seller.
3. Delivery Date
Subject to the provisions of the Section hereof under header “Force Majeure,” Seller shall deliver the Goods in the quantities and on the date(s) specified in this Order or as otherwise agreed in writing by the parties (the “Delivery Date”). If no delivery date is specified, Seller shall deliver the Goods within ten (10) days of Seller’s receipt of the Order. Timely delivery of the Goods is of the essence. Seller shall indemnify USRX against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Goods on the Delivery Date.
If Seller delivers 10% more than the quantity of Goods ordered, USRX may reject all or any excess Goods. Any such rejected Goods shall be returned to Seller at Seller’s risk and expense.
5. Delivery Location
All Goods shall be delivered to the address specified in this Order (the “Delivery Location”) during USRX’s normal business hours or as otherwise instructed by USRX.
6. Shipping Terms
Except as otherwise agreed to in writing by USRX, delivery shall be made DDP Delivery Location, Incoterms® 2020. Seller shall give written notice of shipment to USRX when the Goods are delivered to a carrier for transportation. Seller shall provide USRX all shipping documents, including the commercial invoice, packing list, bill of lading and any other documents necessary to release the Goods to USRX contemporaneously or before Seller delivers the Goods to the transportation carrier. The Order number must appear on all shipping documents, shipping labels, bills of lading, invoices, correspondence and any other documents pertaining to the Order.
7. Title and Risk of Loss
Title passes to USRX upon delivery of the Goods to the Delivery Location. Seller bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Location.
All goods shall be packed for shipment according to USRX’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition.
9. Amendment and Modification
No change to this Order is binding upon USRX unless it is in writing, specifically states that it amends this Order and is signed by an authorized representative of USRX.
10. Inspection and Rejection of Nonconforming Goods
USRX has the right to inspect the Goods on or after the Delivery Date. USRX, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If USRX rejects any portion of the Goods, USRX has the right, effective upon written notice to Seller, to: (a) rescind the Order in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If USRX requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to deliver replacement Goods by the deadline reasonably established by USRX, USRX may replace them with goods from a third party and charge Seller any increased cost thereof and terminate this Order for cause pursuant to these Terms. Any inspection or other action by USRX under this Section shall not reduce or otherwise affect Seller’s obligations under the Order, and USRX shall have the right to conduct further inspections after Seller has carried out its remedial actions.
The price of the Goods is the price stated in the Order (the “Price”). If no price is included in the Order, the Price shall be the price set out in Seller’s published price list in force as of the date of the Order. Except as otherwise agreed to in writing by USRX, the Price includes all packaging, transportation costs to the Delivery Location, insurance, customs duties, and fees and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of USRX.
12. Payment Terms
Seller shall issue an invoice to USRX on or any time after the completion of delivery and only in accordance with the Order. USRX shall pay all properly invoiced amounts due to Seller within thirty (30) days (unless a different deadline is set forth in the Order) after USRX’s receipt of such invoice, except for any amounts disputed by USRX in good faith. All payments hereunder must be in US dollars and made by check or wire transfer.
Without prejudice to any other right or remedy it may have, USRX reserves the right to set off at any time any amount owing to it by Seller against any amount payable by USRX to Seller.
Seller represents, warrants and guarantees that all Goods shall conform in all respects to all samples, specifications and appropriate standards, will be new, and will be free from defects in materials or workmanship. All warranties implied by the Uniform Commercial Code in effect in North Carolina, including implied warranties of merchantability and fitness for a particular purpose, shall apply to all Goods, notwithstanding any other terms or disclaimers set forth in Seller’s invoices or other confirming documents. All warranties shall survive inspection, test, acceptance and use. Seller’s warranty shall run to USRX, its successors, assigns, customers and users of products sold by USRX. Seller represents and warrants to USRX that the title conveyed on all goods produced and delivered to USRX under these Terms and any purchase order will be good and marketable, and the Goods will be delivered free from any security interest or other lien or encumbrance (including any statutory or common law lien).
Seller shall, at its expense, defend, indemnify and hold harmless USRX and USRX’s subsidiaries, affiliates, successors or assigns and its respective directors, officers, shareholders and employees and USRX’s customers (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with (a) the products purchased from Seller; (b) Seller’s negligence, willful misconduct or breach of the Terms; and/or (c) any claim that USRX’s or Indemnitee’s use or possession of the Goods infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. Seller shall not enter into any settlement without USRX’s or Indemnitee’s prior written consent.
16. Limitation on USRX’s Liability
In no event shall USRX be liable for anticipated profits or indirect, incidental, consequential, punitive, special or exemplary damages or for penalties of any description.
Seller shall maintain such public liability insurance, including product liability, contractual liability, automotive liability insurance (including non-owned automotive liability), workers’ compensation and employer’s liability insurance as will adequately protect USRX against all damages, liabilities, claims, losses and expenses. Seller agrees to submit certificates of insurance evidencing its insurance coverage when requested by USRX. All insurance coverage provided to USRX by Seller pursuant to these terms and conditions shall be primary insurance with respect to Seller’s obligations and shall not be or be considered to be contributing insurance with any of USRX’s policies of insurance. No recovery by USRX under any policy of insurance procured by Seller shall limit, waive or bar any other right, remedy, claim, cause of action or recovery that USRX may have against Seller under these terms and conditions or applicable law.
18. Compliance with Law
Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Order. Seller shall comply with all export and import laws of all countries involved in the sale of Goods under this Order. Seller assumes all responsibility for shipments of Goods requiring any government import clearance. USRX may terminate this Order if any government authority imposes antidumping duties, countervailing duties, or any retaliatory duties on the Goods.
USRX may terminate this Order, in whole or in part, at any time with or without cause for undelivered Goods on five (5) days’ prior written notice to Seller, to the extent such Goods have not been delivered by the Delivery Date or USRX reasonably determines that such Goods will not be delivered on or before the Delivery Date. In addition to any remedies that may be provided under these Terms but subject to the provisions of the Section hereof under header “Force Majeure,” USRX may terminate this Order with immediate effect upon written notice to Seller, either before or after the acceptance of the Goods, if Seller has not performed or complied with any of these Terms, in whole or in part. If Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against Seller proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then USRX may terminate this Order upon written notice to Seller. If USRX terminates the Order for any reason pursuant to these Terms, Seller’s sole and exclusive remedy is payment for the Goods received and accepted by USRX prior to the termination.
No waiver by any party of any of the provisions of the Order shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Order, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Order shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
21. Confidential Information
All non-public, confidential or proprietary information of USRX, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by USRX to Seller, 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 the Order is confidential, solely for the use of performing the Order and may not be disclosed or copied unless authorized by USRX in writing. Upon USRX’s request, Seller shall promptly return all documents and other materials received from USRX. USRX shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to Seller at the time of disclosure; or (c) rightfully obtained by Seller on a non-confidential basis from a third party.
Seller shall not assign, transfer, delegate or subcontract, in each case, either directly or indirectly, any of its rights or obligations under the Order without the prior written consent of USRX. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve Seller of any of its obligations hereunder.
23. Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in the Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Order.
24. No Third-Party Beneficiaries
This Order is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity (other than Indemnitees) any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
25. Governing Law
All matters arising out of or relating to this Order shall be governed by and construed in accordance with the internal laws of the State of North Carolina without giving effect to any choice or conflict of law provision or rule.
26. Submission to Jurisdiction
Any legal suit, action or proceeding arising out of or relating to this Order shall be instituted in the federal courts of the United States of America or the courts of the State of North Carolina in each case located in Charlotte, Mecklenburg County, North Carolina, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
27. Cumulative Remedies
The rights and remedies under this Order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of this Order or to such other address that may be designated by the receiving party in writing.
If any term or provision of this Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Order or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of this Order which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order including, but not limited to, the following provisions: Setoff, Warranties, General Indemnification, Intellectual Property Indemnification, Insurance, Compliance with Law, Confidential Information, Governing Law, Submission to Jurisdiction, and Survival.
31. Force Majeure
No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Order, for any failure or delay in fulfilling or performing any term of this Order when and to the extent such party’s (the “Impacted Party”) failure or delay is caused by or results from the following force majeure events (each, a “Force Majeure Event”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Order; (f) national or regional emergency; and (g) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within two (2) business days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of thirty (30) consecutive days following written notice given by it under this Section, the other party may thereafter terminate this Order upon five (5) days’ written notice.