TERMS AND CONDITIONS OF SALE
Table of Content
- 1 APPLICABILITY
- 2 ORDERS AND DELIVERY PROCESSING
- 3 PRICES / PAYMENT TERMS
- 4 RETENTION OF TITLE
- 5 BUYER’S OBLIGATION
- 6 RECEIPT OF NONCONFORMING GOODS
- 7 LIMITATION OF LIABILITY AND NOTICE OF NO WARRANTY
- 8 PRIVACY / DATA PROTECTION
- 9 FORCE MAJEURE
- 10 NOTICES
- 11 GOVERNING LAW / JURISDICTION
- 12 CONFIDENTIAL INFORMATION
- 13 MISCELLANEOUS
- Our online shop (https://www.bonsilageusa.com) (“BONSILAGE® USA Web Shop”) is directed to B2B customers of PROVITA SUPPLEMENTS, Inc. located within the geographical area of the United States of America. By placing an order for products or services from this website, you agree and affirm that you are of legal age to enter into this agreement, and you accept and are bound by these terms and conditions. You understand that these terms and conditions may limit your legal rights. You affirm that, if you place an order on behalf of an organization or company, you have the legal authority to bind any such organization or company to these terms.
YOU MAY NOT ORDER OR OBTAIN PRODUCTS OR SERVICES FROM THIS WEBSITE IF YOU (i) DO NOT AGREE TO THESE TERMS, (ii) ARE NOT THE OLDER OF (A) AT LEAST 18 YEARS OF AGE OR (B) LEGAL AGE TO FORM A BINDING CONTRACT WITH PROVITA SUPPLEMENTS, INC., OR (iii) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE’S CONTENTS, PRODUCTS OR SERVICES BY APPLICABLE LAW.
- These general Terms and Conditions of Sale (these “Agreement”) are the only terms which govern the sale of Supplements and / or other Goods (”Goods”) by PROVITA SUPPLEMENTS, Inc. (”PROVITA”) to you (”BUYER”) through the BONSILAGE® USA Web Shop.
- This Agreement comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, whether written and oral. This Agreement prevails over any of BUYER’s general terms and conditions of purchase regardless whether or when BUYER has submitted a purchase order, Supply Agreement or such terms. Fulfilment of BUYER’s order does not constitute acceptance of any of BUYER’s terms and conditions and does not serve to modify or amend this Agreement. The parties mutually agree that the Agreement can be specifically enforced in court and can be cited as evidence in legal proceedings alleging breach of the Agreement.
- PROVITA hereby objects and rejects any counter-confirmation, counteroffer, or other reference by BUYER which purports to amend the terms and conditions found in the Agreement. This Agreement may only be amended by a writing executed by a person with actual authority to bind PROVITA.
- PROVITA may revise this Agreement from time to time without prior written notice at any time, in PROVITA’s sole discretion. Any changes to this Agreement will be in effect as of the “Last Updated Date” referenced on the Site. You should review this Agreement prior to purchasing any product or services that are available through this Site. Your continued use of this Site after the “Last Updated Date” will constitute your acceptance of and agreement to such changes.
- Orders placed by BUYER will be an offer to buy, under this Agreement, all products and services listed in your order. All orders must be accepted by PROVITA in writing. Written confirmation by PROVITA includes, but is not limited to, an invoice from PROVITA for the relevant goods.
- BUYER shall submit an Order in BONSILAGE® USA Web Shop when purchasing the Goods from PROVITA. Each individual Order is an independent and entire transaction between the Parties. BUYER will pay all shipping and handling charges unless otherwise specified in the order confirmation.
- Delivery dates mentioned in the Order are estimates only and cannot be guaranteed. PROVITA is not liable for delays in shipments.
- PROVITA will use best efforts to notify BUYER as quickly as possible of impending delays concerning any delivery date. To the extent PROVITA, in its sole discretion, determines, it may deliver products and services in instalments.
- Unless otherwise specified in the order confirmation, PROVITA will choose, in its sole discretion, the freight operator and the means of transport. For products and services being delivered to a location in the United States, title and risk of loss pass to BUYER upon transfer of the products to the carrier/freight operator. For products and services being delivered to a location outside of the United States, delivery and passing of risk will be pursuant to Delivered at Place or “DAP” as defined by the Ninth Edition of the International Chamber of Commerce International Commercial Terms (“Incoterms 2020”).
- BUYER is solely liable for any perishing, deterioration, or destruction of goods if it does not accept any delivery. If BUYER does not accept delivery of any goods, PROVITA may store such goods at BUYER’s expense. PROVITA may, at its sole discretion, dispose of unaccepted goods in any fashion it deems appropriate, without any obligation to use commercially reasonable methods.
- If PROVITA delivers to BUYER a quantity of Goods which vary by no more than five percent (5%) (either more or less) of the quantity set forth in the Confirmation, BUYER shall not be entitled to object to or reject the Goods or any portion of them by reason of such variance and shall pay for such Goods the price set forth in the Confirmation, adjusted pro rata.
- BUYER shall purchase the Goods from Provita at the prices (the “Prices”) set forth for the BUYER in the BONSILAGE® USA Web Shop or otherwise identified by Provita. All Prices, discounts, and promotions posted on this Site are subject to change without notice. Posted prices do not include taxes or charges for shipping and handling.
- All Prices are exclusive of all statutory, sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by BUYER. BUYER shall be solely responsible for all such charges, costs and taxes; provided, that, BUYER shall not be responsible for any taxes imposed on, or with respect to, PROVITA’s income, revenues, gross receipts, personnel or real or personal property or other assets. If, as a result of a change of law between the agreement date and the delivery date, additional or increased charges, including but not limited to duties, examination fees, or levies, shall be payable, then PROVITA may, in its sole discretion, increase the purchase price accordingly.
- The portion of the purchase price based upon weight shall be based on the weight of the Goods as determined at the loading. A customary weight decrease during transport shall be at the risk of BUYER.
- Invoices issued by PROVITA are due for payment within 30 calendar days date of issuance. If BUYER defaults on payment of any invoice, or become financially unstable or insolvent, PROVITA may call all outstanding invoices due for payment immediately, call for surety, or rescind any outstanding Orders or contracts. In event of default PROVITA is entitled to demand default interest on the respective invoice amount at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. BUYER shall reimburse PROVITA for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law, PROVITA shall be entitled to suspend the delivery of any Goods if BUYER fails to pay any amounts when due hereunder.
- The right of PROVITA to pursue other remedies not enumerated herein is reserved. Election of any remedy by PROVITA available under this Agreement is not a waiver of any other right or remedy available to PROVITA at law or equity.
- BUYER may only offset or retain amounts owed to PROVITA with PROVITA’s express written permission.
- Any Goods shipped or delivered to Buyer shall remain PROVITA’s property until any PROVITA has received all payments owed to it for the Goods, plus any other fees, penalties, or expenses (the “Retention Period”). For the duration of the Retention Period, BUYER may not pledge the retained Goods or use them as security, and resale is only permissible in the ordinary course of business and only on condition that BUYER receives full payment for such resale and promptly pays PROVITA using the proceeds of the resale.
- BUYER may process, comingle, or combine retained Goods with other goods or items during the Retention Period. Such combined Goods will be the property of PROVITA during the Retention Period, and PROVITA will have full ownership of the same. BUYER shall store these combined Goods with no less than ordinary, reasonable care.
- In cases where the BUYER breaches this Agreement, including but not limited to defaults in payment, PROVITA may, among its other remedies, repossess any or all retained Goods or collect from third parties any amounts due to BUYER for resold Goods. Repossession of Goods does not extinguish BUYER’s obligation to pay for the same. PROVITA’s election to rescind or withdraw from an Order does not limit PROVITA’s right to seek damages for BUYER’s breach.
- In the event of any third-party claim of ownership of or lien over the Goods during the Retention Period, BUYER will promptly notify PROVITA of such claims, and hereby agrees to indemnify and hold harmless PROVITA from any claims or actions, including but not limited to actions to determine ownership of the Goods.
- The BUYER will examine all good or services immediately on delivery, regardless of whether reference samples have been sent. BUYER must provide PROVITA with prompt notice of any complaint, issue, defect, or objection. In the event of a defect, which could not have been actually detected during an initial inspection, BUYER must provide PROVITA with prompt notice on discovery of the defect. If BUYER does not give prompt notice, the BUYER will waive, and will construed to have waived, any claims or damages for any complaint, issue, defect, or objection.
- BUYER will accept, and will be deemed to have accepted, all Goods unless it notifies PROVITA in writing of any nonconforming Goods no later than one (1) business day of the Goods being delivered and furnishes all written evidence or other documentation as reasonably required by PROVITA. “Nonconforming Goods” means only the following: (i) product shipped is different from the product identified in the Order; or (ii) product’s label or packaging incorrectly identifies its contents. BUYER’s notice of Nonconforming Goods must clearly specify and describe the alleged defect.
- By accepting the Goods, BUYER agrees to:
(i) use the Goods only for their stated and intended purpose as set forth by PROVITA on its website and/or packaging;
(ii) comply with all rights and restrictions set forth on the packaging accompanying the Goods, which are hereby incorporated by reference;
(iii) comply with all export and import laws of all countries involved in the sale of Goods under this Agreement and / or the relevant Order; and
(v) not perform research on or with the Goods nor allow others, either directly or indirectly, to do research on or with the Goods other than to make economic comparisons and tests of effectiveness for your own, personal use.
- BUYER shall comply with all applicable laws, regulations and ordinances. BUYER shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. BUYER shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by BUYER. BUYER assumes all responsibility for shipments of Goods requiring any government import clearance. PROVITA may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
- BUYER is responsible for returning, by appropriate and reasonable method of delivery, any Nonconforming Good to PROVITA. BUYER shall ship, at its expense and risk of loss, the Nonconforming Goods to PROVITA’s facility located at 6103 Blue Circle Dr, Minnetonka MN 55343, or such other address PROVITA may designate in writing.
- Upon receipt of a Nonconforming Good, PROVITA may, in its sole discretion, (i) inspect the alleged Nonconforming Goods and/or dispute the allegation; (ii) replace such Nonconforming Goods with conforming Goods, or (iii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by BUYER in connection therewith. If PROVITA exercises its option to replace Nonconforming Goods, PROVITA shall, after receiving BUYER’s shipment of Nonconforming Goods, replace the Nonconforming Goods in conformity with the terms of this Agreement for supplying BUYER with Goods.
- BUYER acknowledges and agrees that the remedies set forth in Section are BUYER’s exclusive remedies for the delivery of Nonconforming Goods. All sales of Goods to BUYER are final and BUYER has no right to return Goods purchased under this Agreement to PROVITA. Any right BUYER may have to object to or return Goods shall cease to exist, if such right has not already ceased to exist, when BUYER has mixed, processed, used or resold the Goods delivered.
- The warranty obligation of PROVITA shall not be applicable to defects or non-conformance of any Goods resulting from:
- normal wear and tear; or
- handling, storage, use not in accordance with PROVITA’s manuals or other specific instructions.
- PROVITA MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. ALL WARRANTIES ARE EXPRESSLY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY KIND RELATING TO THE SALE, HANDLING OR USE OF ANY GOODS IS A CLAIM FOR DAMAGES AND IN NO EVENT SHALL DAMAGES OR ANY OTHER RECOVERY OF ANY KIND AGAINST PROVITA EXCEED THE PURCHASE PRICE OF THE GOODS INVOLVED. PROVITA SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTIAL OR CONSEQUENTIAL DAMAGES OR EXPENSES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR INCOME AND ANIMAL OR PROPERTY LOSS OR DAMAGE, WHETHER OR NOT BASED ON OUR NEGLIGENCE, STRICT LIABILITY IN TORT OR ANY OTHER CAUSE OF ACTION. ALL SUCH CLAIMS ARE DEEMED AND SHALL BE CONSTRUED AS IRREVOCABLY WAIVED BY BUYER.
- The limitation of liability set forth in Section 12(b) above shall not apply to liability resulting from PROVITA’s gross negligence or wilful misconduct.
- “Force Majeure” means events, which cannot reasonably be foreseen, avoided or surmounted by the affected Party, including without limitation the following events:
- war (whether declared or not), armed conflict or the serious threat of same (including without limitation hostile attack, blockade, military embargo);
- hostilities, invasion, act of a foreign enemy or extensive military mobilization;
- civil war, riot, rebellion and revolution, military or usurped power, insurrection, civil commotion or disorder, mob violence, act of civil disobedience;
- act of terrorism, sabotage or piracy;
- act of authority whether lawful or unlawful, compliance with any law or governmental order, rule, regulation or direction, curfew restriction, expropriation, compulsory acquisition, seizure of works, insurrection, requisition, nationalization, sanction, blockade, embargo, prohibition on exportation or importation of material or equipment or service; restriction in the use of power;
- act of God, plague, epidemic, including but not limited to future developments in the Covid-19 pandemic, natural disaster such as but not limited to violent storm, cyclone, typhoon, hurricane, tornado, blizzard, earthquake, volcanic activity, landslide, tidal wave, tsunami, flood, damage or destruction by lightning, drought;
- explosion, fire, destruction of machines, equipment, factories and of any kind of installation, prolonged break-down of transport, telecommunication or electric current; and
- general labor disturbance such as but not limited to boycott, strike and lock-out, go-slow, occupation of factories and premises.
- Either Party shall be entitled to suspend performance of its obligations under the Agreement and the Purchase Order to the extent that such performance is impeded or made unreasonably onerous by any events of Force Majeure.
- The Party claiming to be affected by Force Majeure shall notify the other Party as soon as reasonably practicable after the occurrence of a Force Majeure event and after the cessation of such circumstance.
- If delay in delivery is caused by Force Majeure, the time for delivery shall be extended by a period, which is reasonable having regard to all the circumstances in the case, including time required for demobilization and immobilization.
- Either Party shall be entitled to terminate the Purchase Order by notice in writing to the other Party if performance is suspended under this article for more than 60 Days. Notwithstanding, BUYER shall have no claims against PROVITA as a result, including, but not limited to, for breach of contract or default, unless solely caused by PROVITA’s wilful misconduct or gross negligence. In the event of any failure or delay in PROVITA fulfilling or performing any term of this Agreement as set forth in this Section, PROVITA may withdraw from this Agreement and BUYER shall have no claims, for breach of contract or otherwise, against PROVITA as a result.
- All notices, requests, consents, claims, demands, waivers and other communications hereunder intended for PROVITA (each, a “Notice”) shall be in writing and addressed to PROVITA at the following address:
PROVITA SSUPPLEMENTS, Inc.
6103 Blue Circle Dr
Minnetonka MN 55343
- Notice may be sent to such other address that may be designated by PROVITA in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt, and (b) if BUYER has complied with the requirements of this Section.
- PROVITA may send BUYER notice to any address or e-mail address designated by BUYER in making any order or invoice, and may be delivered by any means, including but not limited to electronic or e-mail transmission.
- All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Minnesota without giving effect to any choice or conflict of law provision or rule (whether of the State of Minnesota or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Minnesota.
- Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal or state courts located in the County of Hennepin, State of Minnesota, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
- All non-public, confidential or proprietary information of PROVITA, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by PROVITA to BUYER, 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 this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by PROVITA in writing. Such confidential or proprietary information remains the property of PROVITA. Upon PROVITA’s request, BUYER shall promptly return all documents and other materials received from PROVITA. PROVITA shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to BUYER at the time of disclosure; or (c) rightfully obtained by BUYER on a non-confidential basis from a third party.
- BUYER may not transfer or assign, directly or indirectly, any or all of its rights or obligations under the Purchase Order without the prior written consent of PROVITA.
- No waiver by PROVITA of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by PROVITA. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- This Agreement 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 any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
- Nothing in this Agreement 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.
- If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Provisions of this Agreement which by their nature should apply beyond the term of the Agreement will remain in force after any termination or expiration of this Order including, but not limited to, the following provisions: Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction and Survival.