HAMPSHIRE INTERNATIONAL
TERMS AND CONDITIONS OF SALE
Last Updated: March 1, 2022
1. Offer, Governing Provisions and Cancellation. All sales of goods by HAMPSHIRE INTERNATIONAL (“Seller”) are governed by these Terms and Conditions of Sale. Issuance of these Terms and Conditions is not an acceptance of any offer made to purchase goods, but is an offer or counter-offer to sell goods that is expressly conditioned upon the buyer of such goods (the “Buyer”) assent to these Terms and Conditions of Sale. Seller expressly objects to and rejects any additional or different terms contained in any request for proposal, purchase order, acknowledgement or other communication previously or hereafter provided by Buyer to Seller. No such additional or different terms or conditions will be of any force or effect. The terms contained in or incorporated into these Terms and Conditions, together with any documents specifically adopted by reference, will be the entire agreement between Seller and Buyer on the subject of the transaction described herein; there are no conditions to that agreement that are not so contained or incorporated. THIS OFFER AND THAT AGREEMENT WILL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS).
No accepted offer may be cancelled, amended, modified, supplemented or altered by Buyer except upon terms and conditions accepted by Seller in writing, and no changes to these Terms and Conditions of Sale will be binding unless set forth in writing and signed by Seller. Any offer to sell goods may be revoked by Seller at any time before it is accepted in writing by Buyer and will automatically expire thirty (30) calendar days after its date if Buyer has not accepted it in writing before then. Neither Buyer’s acceptance of an offer to purchase goods nor any conduct by Seller (including but not limited to shipment of goods) will oblige Seller to sell to Buyer any quantity of goods in excess of the quantity that Buyer has committed to purchase from Seller at the time of such acceptance or conduct.
Buyer shall obtain and maintain all licenses, permits and other governmental approvals necessary to permit the purchase of and payment for goods by Buyer and to otherwise comply with applicable laws and regulations. Without limiting the generality of the foregoing, Buyer: (i) shall store the goods in accordance with all applicable laws, rules and regulations; (ii) shall distribute and ship the goods in accordance with all laws, rules and regulations and in accordance with any reasonable specific packaging and labeling requirements as reasonably requested by the manufacturer or Seller; (iii) shall not sell any goods with an expired expiration date (provided that Seller shall not deliver to Buyer any goods with an expiration date of less than six (6) months from the date of delivery), (iv) shall dispose of any such expired goods in accordance with all laws, rules and regulations; (v) shall not adulterate or misbrand goods, or engage in any activity that could or does render goods adulterated or misbranded; and (vi) shall, at all times, maintain all necessary records for compliance with the terms of these Terms and Conditions of Sale and all applicable laws, rules and regulations.
Without limiting the generality of the foregoing, Buyer shall comply with all applicable laws, rules, and regulations, including, but not limited to the Federal Food, Drug, and Cosmetic Act and including FDA’s Policy for Diagnostic Tests for Coronavirus Disease-2019 during the Public Health Emergency Guidance, and any medical device distribution requirements pursuant to state or local laws and regulations commonly referred to as “Regulatory Laws”. Buyer shall ensure its compliance with all Regulatory Law obligations. Advertising and promotional materials used to sell, promote and distribute the goods by Buyer shall be truthful, fully substantiated, and not misleading and in compliance with all applicable Regulatory Laws and shall not constitute tortious interference or unfair competition.
2. Delivery, Claims and Force Majeure. Unless otherwise provided on the face of these Terms and Conditions of Sale, goods shall be delivered to Buyer Ex Works Seller’s loading dock. Delivery of goods to the carrier will constitute delivery to Buyer, and regardless of shipping terms or freight payment, Buyer will bear all risk of loss or damage to the goods while in transit. Seller reserves the right to make delivery of goods in installments, unless otherwise expressly stipulated on the face of these Terms and Conditions of Sale or by referenced document; all such installments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Any delays in delivery of any installment of goods will not relieve Buyer of its obligations to such accept such installment or any remaining deliveries.
Claims for shortages or other errors in delivery must be made in writing to Seller within 10 calendar days after receipt of shipment, and failure to give such notice will constitute unqualified acceptance and a waiver of all such claims for such shortages or delivery errors by Buyer. Claims for loss of or damage to goods in transit must be made to the carrier, if applicable, and not to Seller.
All delivery dates are approximate and delivery dates are subject to change as a result of a delay in shipment or delivery of goods by Seller’s supplier. Seller will not be liable for any losses, liabilities, costs, expenses or damages as a result of any delay or failure to deliver any goods due to any cause beyond Seller’s reasonable control, including but not limited to, any act of God, nationwide or global pandemic (including Coronavirus/COVID), act or omission of Buyer, technical problems or technical questions, embargo or other government act, regulation or request, fire, accident, strike, slowdown, war, act of terrorism, riot, material shortages, delays in transportation, inability to obtain necessary labor, materials or manufacturing facilities, or delays in production or shipment by Seller’s manufacturers and/or suppliers. In the event of any such delay, the date of delivery will be extended for a period equal to the time lost because of the delay. Buyer’s exclusive remedy for any delays that are within Seller’s reasonable control, will be rescission of its agreement to purchase such delayed goods. Except in connection with delays that are within Seller’s reasonable control, Buyer shall otherwise have no right to rescind the accepted offer nor shall Buyer be entitled to any refund or reduction in purchase price as a result of such delay in delivery of goods.
3. Warranties. Seller shall assign to Buyer the same limited warranties of the manufacturer or suppliers of the goods sold by the manufacturer or supplier to Seller as in effect on the date of delivery of such goods to the extent permitted by such warranties and applicable law. All claims under such limited warranties must be made by Buyer directly to the manufacturer or supplier of the goods and not to Seller. The warranties Seller assigns to Buyer are available upon Buyer’s request.
THE ABOVE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED. SELLER EXPRESSLY DISCLAIMS AND EXCLUDES ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.
Any description of the goods, whether in writing or made orally by Seller or its agents, specifications, samples, models, bulletins, drawings, diagrams, engineering sheets or similar materials used in connection with Buyer’s order are for the sole purpose of identifying the goods and shall not be construed as an express warranty. Any suggestions by Seller or Seller’s agents regarding use, application or suitability of the goods shall not be construed as an express warranty.
4. Emergency Use Authorization. The goods are manufactured, shipped, marketed, and sold authorized by, and pursuant to, an Emergency Use Authorization (“EUA”) of the US Food and Drug Administration. Buyer expressly acknowledges that an Emergency Use Authorization is not a 510(k) clearance to market and sell in perpetuity. Buyer further acknowledges that pursuant to 21 U.S.C. 360bbb-3(b)(1) the FDA may revise or revoke an EUA if the circumstances justifying issuance no longer exist, the criteria for its issuance are no longer met, or other circumstances make a revision or revocation appropriate to protect public health or safety. Buyer agrees that, should such a revision or revocation be issued, Buyer will discontinue further resales of the goods (as and if so required by the revision or revocation), and understands that Buyer will in such event have no right to cancel or revoke its agreement to purchase the goods, or to receive any refund or reduction of the purchase price of goods purchased hereunder.
5. Consequential Damages and Other Liability. Seller’s liability with respect to the goods sold hereunder and with respect to any other breaches of its contract with Buyer, will be limited to the amount of the contract price of the affected goods. SELLER WILL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR UNDER OTHER THEORIES OF LAW OR EQUITY, WITH RESPECT TO GOODS SOLD BY SELLER, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO. Without limiting the generality of the foregoing, Seller specifically disclaims any liability for property damages, penalties, special or punitive damages, damages for lost profits or revenues, down-time, lost good will, cost of capital, cost of substitute goods, or for any other types of economic loss, or for claims of Buyer’s customers or any third party for any such damages, costs or losses. SELLER WILL NOT BE LIABLE FOR, AND DISCLAIMS, ALL CONSEQUENTIAL, INCIDENTAL, INDIRECT AND CONTINGENT DAMAGES WHATSOEVER.
6. Recall. Buyer shall promptly notify Seller in writing of any complaint or adverse claim about any goods or its use of which Buyer becomes aware. If any government agency requires the recall of any goods or packaging or Seller reasonably determines that any goods or packaging should be recalled or should be withdrawn from distribution and sale, then Seller and Buyer shall coordinate the immediate cessation of sale and distribution and the recall or withdrawal, as determined by Seller to be necessary, of all such goods or packaging. If determined by Seller to be necessary or advisable, Buyer and Seller shall cooperate to recall or reacquire the applicable goods or packaging from any purchaser thereof. In no event shall Buyer be entitled to recover lost profits or other consequential damages as a result of any recall of the goods. If the problem at issue was caused by Buyer, then Buyer shall pay the costs and expenses associated with any such recall, and Buyer shall indemnify Seller for its reasonable costs and expenses associated with such recall.
7. Buyer’s Indemnity. BUYER WILL INDEMNIFY AND HOLD HARMLESS SELLER FROM AND AGAINST ANY AND ALL LOSSES, LIABILITIES, DAMAGES AND EXPENSES (INCLUDING BUT NOT LIMITED TO ATTORNEYS FEES AND OTHER COSTS OF DEFENSE) THAT SELLER MAY INCUR AS A RESULT OF ANY CLAIM BY BUYER OR BUYER’S CUSTOMERS OR BY ANY THIRD PARTY ARISING OUT OF OR RELATING TO THE GOODS SOLD HEREUNDER, INCLUDING BUT NOT LIMITED TO ANY SUCH CLAIM BASED UPON THE NEGLIGENCE OF SELLER IN DESIGNING, MANUFACTURING, PERFORMING AND/OR SELLING SUCH GOODS, UNLESS SUCH LOSSES, LIABILITIES, DAMAGES OR EXPENSES ARE ULTIMATELY DETERMINED TO BE ATTRIBUTABLE SOLELY TO THE WILLFUL MISCONDUCT OF SELLER.
8. Disbursing Agent. Sunnyside Title LLC (the “Disbursing Agent”) has been selected as a neutral third party by Buyer to hold funds wired for the purchase of the goods being sold hereunder (the “Purchase Price”). The Disbursing Agent shall disburse the Purchase Price less any fees due to the Disbursing Agent pursuant to a separate Global Disbursing Agreement, on behalf of the Buyer, to the Seller. Seller and Buyer hereby expressly waive and release any and all claims, now known or hereafter known, against the Disbursing Agent and its officers, directors, managers, employees, agents, affiliates, shareholders, members, successors and assigns (collectively, “Releasees”) on account of any financial loss arising out of or attributable to the transfer of the Purchase Price between the Buyer and Seller, whether arising out of ordinary negligence of the Disbursing Agent or any Releasees or otherwise. Buyer and Seller covenant not to make or bring any such claim against the Disbursing Agent or any other Releasee, and forever release and discharge the Disbursing Agent and all other Releasees from liability under such claims.
9. Taxes and Other Charges. Any manufacturer’s tax, occupation tax, use tax, sales tax, excise tax, value added tax, duty, custom, inspection or testing fee, or any other tax, fee, interest or charge of any nature whatsoever imposed by any governmental authority on or measured by the transaction between Seller and Buyer will be paid by Buyer in addition to the prices quoted or invoiced unless Buyer furnishes Seller with exemption certificates acceptable to taxing authorities. In the event Seller is required to pay any such taxes or other charges, Buyer will reimburse Seller therefor on demand.
10. Changes. Seller may at any time make such changes in design and construction of products, components or parts as Seller deems appropriate, without notice to Buyer. Seller may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by governmental authority, or nonavailability of materials from suppliers.
11. Technical Information. Any inventions, technical information, processes, trade secrets, know-how, designs, formulations, certificates of analysis, specifications, plans, drawings, blueprints, samples, catalogs, service manuals, data sheets, sales, service and technical bulletins, customer lists, sales and marketing programs, price lists, cost data, sales aids, and all other publications and information submitted by Seller will remain the property of Seller, and will be treated as confidential information. No use or disclosure of such confidential information, sketches, models or samples, or any design or production techniques revealed thereby, will be made without the express, prior written consent of Seller.
12. Survival. The obligations of the parties under these Terms and Conditions of Sale which by their nature would continue beyond the termination, cancellation or expiration of these Terms and Conditions of sale, including by way of illustration and not limitation, those in Section 4, shall survive termination, cancellation or expiration of these Terms and Conditions of Sale.