SALES TERMS AND CONDITIONS – COLUMBIA COSMETICS
1. GENERAL TERMS. All sales by Columbia, Cosmetics (“Columbia”) are subject to these terms and conditions (the “Terms”). Terms or conditions of the Buyer’s order which are inconsistent with these terms and conditions shall have no effect unless each such term is specifically accepted in writing by an officer of Columbia. This writing is the final expression of the parties’ agreement. No course of prior or current dealings, other documents or writings, or usage of the trade shall be used to supplement or interpret this agreement. No statements or representations of any kind or nature which are not set forth herein have been relied upon by the parties hereto. No modification of this agreement shall be effective unless in writing and duly executed by both parties. If any section of this agreement shall be deemed unenforceable, such determination shall not affect the enforceability of the remainder of this agreement. This agreement binds Buyer, Columbia, and their respective successors, assigns and legal representatives.
2. PRICES. Prices are subject to change without notice. Unless otherwise agreed in a signed writing of the parties, orders will be invoiced at Columbia’s published price at the time of shipment. If the price should be increased by Columbia before delivery of the goods to a carrier for shipment to Buyer, then Buyer shall be billed by Seller on the basis of such increased price. All prices are FCA (as defined in Incoterms 2010). Freight and insurance may be prepaid by Columbia upon Buyer’s request, with those charges added to the invoice price. Buyer shall pay any sales, use or similar taxes, or shall provide a certificate of exemption from such taxes. Buyer shall pay any new, increased or additional tax, charge, freight, tariff or duty which may, after the date of quotation of price, be imposed on this transaction or the goods sold hereunder, or on the export or import of the goods sold or delivered hereunder.
3. ORDERS, CONFIRMATIONS, CHANGES & CANCELLATIONS. All orders are subject to acceptance by Columbia. Simultaneously with placing an order, Buyer represents and warrants that it is solvent at the time the order is placed, and acknowledges that Columbia is relying primarily on that representation in shipping goods on credit terms, notwithstanding that Columbia may make other credit checks or require other assurance or security for payment of the purchase price. Upon thirty (30) days advance written notice to Columbia before the shipment date of the Products, Buyer may make only shipment date changes to an Order. All cancellations of an Order or portions thereof are at Columbia sole discretion and shall be subject to a cancellation charge which could be up to twenty (25%) percent of the Order cost.
4. PAYMENT TERMS. Buyer shall make all payments hereunder in immediately available funds by check or wire transfer and in invoiced currency. Interest will accrue on the past due unpaid balance, at the higher of 1.5% per month or the highest rate permitted by law. Chargeback’s and other deductions from payments will not be allowed until credit memos are issued by Columbia. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Columbia, whether relating to Columbia’s breach, bankruptcy or otherwise.
5. SECURITY INTEREST: BUYER’S INSOLVENCY. Until payment is received in full by Columbia, Buyer hereby grants to Columbia a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the goods sold hereby, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the California Uniform Commercial Code (“UCC”). In addition, if Buyer becomes insolvent, makes an assignment for the benefit of creditor(s), files or suffers the filing or a petition in bankruptcy, then to the extent Columbia does not receive cash payment at the time of delivery, Columbia at its option may cancel this agreement and may refuse to ship or deliver goods to Buyer. If any of the conditions in the previous sentence exists, whether such fact is known or unknown to Columbia, title to any goods sold hereunder shall not be transferred to Buyer until full payment is made to Columbia. Columbia shall retain full power to dispose of such goods for its own account, and Buyer and its successors or legal representatives shall have no claim for such goods or the proceeds of such goods. Nothing in this Section 5 shall be deemed to limit or restrict the rights of Columbia as a seller under the UCC.
6. DAMAGED GOODS. Columbia is not responsible for damage in transit. Upon receipt by Buyer, all goods must be inspected carefully for damages or shortage. Claims for losses, damaged goods or shortages must be made within 10 days of delivery directly to the carrier’s claims department. Columbia is not liable for any losses, claims or damages which Buyer alleges to have occurred or existed prior to delivery to any carrier unless Buyer shall have detailed its claim to the carrier. All other claims with respect to quality or quantity of the goods must be made in writing (electronic acceptable) to Columbia within 10 days after Buyer receives the goods, or such claims will be bared and the goods will be deemed unconditionally accepted by Buyer. If any claim is made, Columbia must be given an adequate opportunity to investigate the claim. Buyer’s failure to comply with the terms of this Section 6 and with all other terms set forth herein shall render null and void all claims of Buyer against Columbia.
7. DELIVERY. Unless otherwise indicated herein or expressly agreed otherwise in writing, all shipments shall be made FCA (as defined in Incoterms 2010) from Columbia’s warehouse(s). Columbia is not responsible for failure or delay in shipping or delivering goods ordered if such failure is due to an act of God, war, labor difficulties, accident, or any other causes of any kind whatsoever which are beyond the control of Columbia. DELIVERY DATES ARE NOT GUARANTEED. Columbia has the right to extend shipment dates and to make partial deliveries: payment for each partial delivery shall be due pursuant to Section 4 above. If Columbia is paying for shipment, Buyer shall pay any and all increases in shipment costs between the date of order placement and the date of delivery. The goods shall be deemed delivered when Columbia notifies Buyer by telephone, email or facsimile that the goods are available for pickup, and from and after the date of such notification, Buyer shall be solely responsible for any and all loss or damage to goods which are deemed delivered to Buyer.
8. WARRANTIES. Columbia warrants that it has good, unencumbered title to the goods sold hereunder. Columbia further warrants that the goods sold hereunder will meet the specifications published by Columbia or the description of the goods ordered as set forth on the order confirmation/invoice hereof, subject, however, to reasonable variations in manufacturing tolerances and sales classifications, and based on relevant information provided by suppliers to Columbia.
Additional terms stated on any material safety data sheet provided in conjunction with the goods are incorporated herein as if set forth in full. Columbia makes no warranties other than as set forth above, and all other express and implied warranties, including warranties of merchantability or fitness for a particular purpose, are hereby expressly disclaimed by Columbia. Without limiting the generality of the foregoing, there are no warranties, express or implied, with respect to goods sold hereunder misused or used on or in conjunction or reformulated with goods not sold by Columbia. Columbia does not warrant favorable results and assumes no liability in connection with the use of the products. The products are intended for use by persons having technical skill and knowledge, at their own discretion and risk.
9. THIRD PARTY CLAIMS. Buyer will indemnify, defend and hold Columbia harmless (including reasonable attorney fees and costs), from and against any claim by any third party for loss, injury or damage alleged or suffered by such third party as a result of the use or misuse of goods delivered and accepted by Buyer hereunder.
10. BUYER’S REMEDIES. Buyer shall not make any claim of any kind, whether in tort or contract, as to goods delivered or for non-delivery of goods, in an amount greater than the purchase price of the allegedly damaged or undelivered goods. The remedy hereby provided shall be the sole and exclusive remedy of Buyer; any right of Buyer to consequential or incidental damages is hereby excluded. Notwithstanding the foregoing, if Columbia is timely notified of non-conforming goods and Buyer returns such goods (at Buyer’s sole risk and cost), at the sole option of Columbia, Columbia may replace such non-conforming goods with conforming goods or credit Buyer’s account. Return merchandise will not be received without an RMA number issued by Columbia and displayed on the return. IN NO EVENT SHALL COLUMBIA BE RESPONSIBLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.
11. SELLER’S REMEDIES. If Buyer fails or refuses to perform its obligations hereunder, Columbia may exercise all of the rights and obtain all of the remedies of a seller under the UCC, including without limitation cancellation of this agreement and orders for future delivers, and may recover from Buyer all of its damages, including without limitation attorney fees and costs of collection (which shall be deemed liquidated at the rate of 35% of the total owed by Buyer to Columbia), and costs of transportation. All partial payments may be retained by Columbia.
12. NOTICES. All notices required or permitted under this document shall be in writing, sent by certified mail, return receipt requested or by a recognized overnight delivery service with proof of delivery, to Columbia at the address set forth on the reverse side hereof, and to Buyer at the address set forth on its order. All notices shall be deemed delivered when received or refused by the addressee.
13. JURISDICTION. The laws of the State of California shall apply to all actions brought under these terms of sale, and the courts of that State and the Federal District Court in California shall be the sole forum for resolution of disputes arising hereunder.
14. SURVIVAL. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of Buyer’s order.
15. FORCE MAJEURE: Any conditions of force majeure shall be cause for our company to suspend its commitments until said conditions shall cease to exist. The following conditions shall be considered force majeure or Acts of God in relation to the terms and conditions of sale: any unforeseeable circumstance the effects of which could not be have reasonably prevented by Columbia and which are of such nature as to prevent Columbia from fulfilling its obligations. The following conditions constitute force majeure or Acts of God: fire, flood, interruption or delay in transportation, shortcomings on the part of a supplier or sub-contractor, strikes of any kind, machine breakdowns.
16. BUYER’S MATERIALS: Columbia may, from time to time, house materials or inventory owned by Buyer (“Buyer Materials”) at its facility (“Columbia Facility”) in order for Columbia to perform services for Buyer. Buyer represents and warrants that any and all materials or other items furnished by or on behalf of Buyer to Columbia for use in connection with production of Columbia’s products will be Buyer’s exclusive property, free and clear of all liens, claims and encumbrances whatsoever and further Assumes All Liability of their merchantability. Unless otherwise indicated on Columbia’s acknowledgment and/or invoice, Buyer shall bear all costs of delivering such materials and items to Columbia’s production facility. Columbia does not QC Buyer Materials or assume any liability for merchantability of Buyer supplied Materials. All Buyer Materials shipped to Columbia must be on Standard Pallets (40”x48”). Non-compliant shipments will be refused or re palletized at a cost of $100 per pallet.
Upon Columbia’s receipt of Buyer Materials, Buyer agrees that it shall bear all and insure against all risk of loss at all times while such Buyer Materials are located at the Columbia Facility or while such Buyer Materials are under the direction and control of Columbia. Unless caused by the gross negligence or willful misconduct of Columbia, in no event shall Columbia be liable for any loss or damage to the Buyer Materials. In the event there is no order or de minimus activity related to the Buyer Materials for a period of 30 days, Buyer agrees to pay the storage and other fees associated with Columbia’s storage, inventorying and warehousing of the Buyer to the Buyer Materials (“Buyer Materials Warehouse Storage Fees”) at a rate of $55 per pallet per month.
Upon termination of relationship with Buyer, Columbia will use reasonable efforts to notify Buyer of any such Buyer Materials which remain under Columbia’s direction or control and, unless otherwise agreed to in writing by both parties, Buyer shall accept C.O.D. return shipment of all such remaining Buyer Materials. In the event such Buyer Materials are returned to Columbia, Buyer shall remain liable for all costs related to the shipment of such Buyer Materials and Columbia shall have the right to destroy, resell or otherwise dispose of such Buyer Materials and Buyer shall be liable for all costs and expenses related thereto, including but not limited to all costs of shipment, destruction, resale, enforcement of and collection under this Agreement, including reasonable attorney’s fees.