Terms & Conditions for Purchase Orders

These Terms and Conditions for Purchase Orders (the “Terms and Conditions”) exclusively govern all aspects of the purchase of all goods by Blulabs LLC and/or Blulabs Brands LLC (the “Buyer”) from the seller named in any given Purchase Order (the “Seller,” and together with “Buyer,” the “Parties”) and are expressly incorporated into every Purchase Order, subject only to any variance expressly stated on the face of the Purchase Order or otherwise agreed to in a writing signed by both Parties.

A “Purchase Order” means any writing issued by Buyer to Seller which at a minimum specifies (i) the type of goods to be purchased, (ii) the quantity of the goods to be purchased, (iii) the estimated or firm delivery date scheduled for the goods (the “Delivery Date”), (iv) the unit price and the total price of the goods to be purchased, (v) the billing address and (vi) the delivery address.

1. Offer, Acceptance and Modification of Purchase Orders

• Buyer’s transmission of the Purchase Order constitutes its offer to purchase per its specifications and on these Terms and Conditions.
• Seller accepts the Purchase Order per its specifications and on these Terms and Conditions upon Seller acknowledging receipt of the Purchase Order, in a writing to the Buyer, within 72 hours of receiving the Purchase Order, and then confirming to the Buyer acceptance of the Purchase Order, in writing, within 15 business days of receiving same. The Purchase Order is void if Seller does not accept it in accordance with the foregoing.
• “Change Order” means any writing issued by Buyer that references the Purchase

Order and expressly modifies it.   Sections 1(a)-(b) shall also govern the offer and acceptance of any Change Order.  Any aspect of the Purchase Order not expressly modified by a Change Order shall be deemed to continue in full force and effect.  A Change Order that is offered and accepted shall be deemed part of the Purchase Order.

• Any attempt by Seller to modify or supplement these Terms and Conditions or the Purchase Order or any Change Order, other than as set forth above, will be deemed rejected by Buyer and will not at all bind the Parties unless such is expressly and otherwise agreed to in a writing signed by both Parties.

2. Production and Sourcing of Goods /

Confidential Information and Proprietary Rights

• Unless the Purchase Order states that it is for identical goods that Seller has previously supplied to Buyer, the Purchase Order is subject to (i) at Buyer’s request and Seller’s expense, Seller providing Buyer a sample of each type of good ordered, (ii) Buyer’s approval of such samples via a First Article Inspection (FAI) form signed by Buyer and (iii) at Buyer’s request and Seller’s expense, Buyer’s inspecting (either directly or through a third party that it might engage) the manufacturing site where the goods ordered will be produced.
• In connection with a Purchase Order, Buyer may provide Seller with access to and copies of sensitive, confidential, proprietary and trade secret information (“Confidential Information”) which is of unique value to Buyer. Examples of such information include, but are not limited to: Pricing information, new product plans, business strategies, client identities and information, inventions and designs, samples, performance data, and other information not generally available to the public. Seller agrees not to disclose or use any of Buyer’s Confidential Information, either during or after Seller’s work on the Purchase Order, except as necessary to perform Seller’s duties for the benefit of Buyer or as Buyer may consent in writing.  If these Terms and Conditions are enforced in a jurisdiction where a timeframe is required for a non-disclosure provision to be enforceable with respect to such Confidential Information, then Seller’s obligations as to such will be in effect during  Seller’s performance in respect of the Purchase Order and for five (5) years thereafter. Upon Buyer’s request, Seller shall promptly return all of the Confidential Information received from Buyer.
• All intellectual property rights in any goods that are the subject of the Purchase Order which Buyer had prior thereto or are developed by Buyer or Seller, or by Buyer and Seller jointly, in connection therewith shall be owned exclusively by Buyer, and Seller shall use such only to fill the Purchase Order for Buyer. Seller affirms that all inventions, innovations, improvements, developments, methods, designs, analyses, drawings, reports, client identities, advertising materials, and all similar or related information (whether or not patentable) which are shared by Buyer with Seller and/or are conceived, developed or made by Seller (in whole or in part) in connection with its work on the Purchase Order belong to Buyer as works made for hire, along with all profits derived therefrom. Furthermore, to the extent necessary, Seller hereby expressly assigns to Buyer all Seller’s right, title, and interest in and to any intellectual property rights that are developed in connection with the Purchase Order and shall perform all actions reasonably requested by Buyer to establish and confirm Buyer’s ownership in same and Buyer’s right to all related profits, including, without limitation, executing any assignments, consents, powers of attorney and like instruments.

3. Delivery of Goods

• Seller shall make delivery on the Purchase Order during Buyer’s normal business hours on the Delivery Date. Seller shall not make partial deliveries without Buyer’s prior written approval.  If Seller fails to deliver on the Purchase Order in full within five (5) days after the Delivery Date, Buyer may elect either (i) to have Seller make delivery (not already in transit) by air freight at Seller’s own expense; (ii) to accept delivery upon its arrival at a five percent (5%) discount to the price stated for that Purchase Order, which shall increase by an additional five percent (5%) upon each additional five (5) day period thereafter until delivery is made in full; or (iii) to terminate the Purchase Order and all related Purchase Orders and return to Seller any partial delivery made, without liability to Buyer, in which case Seller will indemnify Buyer against any lost profits and other losses, claims, damages and reasonable expenses, whether incurred by Buyer’s customer or by Buyer itself, that are directly attributable to Seller’s failure to meet the Delivery Date. Buyer also has the right to return any goods delivered prior to the Delivery Date at Seller’s expense, and Seller shall redeliver such on the Delivery Date.
• Seller shall be responsible for (i) coordinating with Buyer’s freight forwarder all necessary delivery arrangements to meet the Delivery Date for the Purchase Order, including but not limited to booking shipment not later than ten (10) business days prior to the Cargo Ready Date, i.e., the date the goods must be ready for shipment from the Seller’s facility (ex-factory) in order to meet the Delivery Date, (ii) preparing and submitting all shipping documents within three (3) days of the Cargo Ready Date, or not later than 24 hours from the ISF Date, i.e., the date by which the Importer Security Filing must be submitted for shipments entering the United States, and (iii) timely making any and all other necessary arrangements with shippers, government agencies and otherwise for transport and to obtain any related certifications or authorizations therefor. Seller will send Buyer all the above paperwork as and when prepared to confirm all preparations, including telex releases, not less than seven (7) days before the Vessel ETA, i.e., the estimated time of arrival of the vessel at the port of discharge.
• Seller, at its own expense, shall pack, crate and brace all goods for shipment according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure they are delivered undamaged, including without any defect or partial deterioration, and in accordance with all applicable laws. Seller shall conspicuously mark on the outside of each container the name of its contents and applicable Purchase Order number to which they relate and print same on the face of all related shipment documentation along with the number of containers shipped, the shipping country of origin and the bill of lading number.
• Seller must provide Buyer prior written notice if it requires Buyer to return any packaging material, in which case, its return shall be at Seller’s risk of loss and expense.
• Seller hereby affirms that, subject to the foregoing, time is of the essence with respect to the delivery, including the Delivery Date, the project milestones and other requirements set forth by the Purchase Order and these Terms and Conditions.

4. Inspection, Acceptance and Rejection of Goods

• All goods delivered, pursuant to the Purchase Order, are subject to inspection by the Buyer upon delivery, and, in the event Buyer reasonably determines that any goods are nonconforming or defective, Buyer has the right to reject all or any portion of those goods within sixty (60) days of the latter of the Delivery Date or actual date of receipt at Buyer’s designated location. If Buyer rejects any goods, it has the right, upon written notice to Seller, (i) to accept the rejected goods at a reasonably reduced price, (ii) to require Seller, at Seller’s expense, to promptly deliver to Buyer replacement goods for the rejected goods that conform to the Purchase Order, F.O.B. Buyer’s designated site, and to facilitate the return or disposal of the rejected goods that Seller had delivered, or (iii) to terminate the Purchase Order and all related Purchase Orders and return to Seller any delivery made, without liability to Buyer, in which case Seller will issue a full refund and indemnify Buyer against any lost profits and other losses, claims, damages and reasonable expenses, whether incurred by Buyer’s customer or by Buyer itself, that are directly attributable to Seller’s failure to make full delivery in conformity with the Purchase Order. If Seller fails to timely deliver replacement goods under subpart (ii) above, Buyer’s remedies shall be those established by Section 3(a) above.
• Buyer may reject all or any goods that Seller purports to deliver pursuant to the Purchase Order in excess of the quantity actually ordered thereunder. Any such rejected goods shall be returned to Seller at Seller’s sole risk and expense. If Buyer does not reject the goods and instead accepts the delivery of such excess goods, the Buyer shall increase its payment to Seller for the Purchase Order on pro-rata basis as full compensation.
• Any goods delivered on a Purchase Order that are not rejected by Buyer within sixty (60) days shall be deemed accepted by the Buyer, and title to such shall pass to Buyer; provided, however, at no point during that sixty (60) day period will Buyer be restricted by Seller in its use or resale thereof. Seller will bear all risk of loss or damage for the goods related to any Purchase Order prior to delivery of such at the address on the Purchase Order.

5. Payment

• Unless otherwise specified on its face, the purchase price specified on the Purchase Order shall be understood to include all of the manufacturing, sourcing, packaging, transportation, insurance, customs duties and fees and taxes, including, but not limited to, all sales, use or excise taxes therefor (including any related samples) regardless of any market conditions that might change after the Purchase Order is accepted by Seller.
• Buyer shall make full payment to Seller for the Purchase Order not later than sixty (60) days after receipt of all goods ordered thereunder, subject to Sections 3 and 4 above. Seller shall issue an invoice that includes payment instructions, references the Purchase Order by number and includes a description of the delivered goods that exactly matches the packing slip and as-loaded container contents.
• Without prejudice to any other right or remedy Buyer may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller under the Purchase Order. In the event of a payment dispute, Buyer shall provide a written list to Seller of all disputed amounts, with a reasonably detailed description as to its basis for any amount disputed. The Parties shall seek to resolve all such disputes expeditiously and in good faith, and Seller shall perform under any other Purchase Order notwithstanding any such dispute under the Purchase Order.

6. Compliance with Laws and Industry Standards / Insurance

• Seller represents and warrants that it does and will maintain all necessary licenses and will comply with all laws applicable to its manufacturing, sourcing and delivering the goods and any other services related or necessary or helpful to carrying out the Purchase Order, including, but not limited to, environmental, labor and safety matters as well as any export, import and clearance laws of any countries in the course of Seller’s work.
• Seller shall perform the Purchase Order using quality materials and personnel of the requisite skill, experience and qualifications and in a professional workmanlike manner in accordance with generally recognized industry standards for providing the goods under the Purchase Order and shall devote adequate resources to meet its obligations to do so.
• Seller shall, at its own expense, maintain and carry adequate liability, product and any other insurance related to its manufacturing, sourcing and delivering to Buyer the goods under the Purchase Order and, within thirty (30) days of Buyer’s request, shall provide a certificate of insurance from Seller’s insurer evidencing its insurance coverage. Except where prohibited by law, Seller shall require its insurer to waive all rights of subrogation arising from Seller’s rights and that might result in any claims against Buyer.

7. Assignment and Subcontracting

• The Purchase Order calls for personal performance by Seller, and neither the performance nor the right to receive any payments thereunder may be assigned by Seller, including any effort to subcontract any portion of the work. Any attempted assignment or delegation by Seller shall be invalid and ineffective as against Buyer, unless Buyer has provided its consent in a signed writing. Buyer may assign its rights under the Terms and Conditions, without Seller’s consent, to any affiliate or assignee or successor in interest. The Terms and Conditions shall be binding on Seller and Buyer and each of its heirs, successors, executors and permissible assigns.
• Any approval for subcontracting that might be granted by Buyer shall not relieve Seller of its obligations under the Terms and Conditions or Purchase Order, and Seller shall remain fully responsible for the performance of each third-party it might engage and for their compliance with the Terms and Conditions as if they were Seller’s own operation. Nothing contained in the Terms and Conditions shall create any contractual relationship between Buyer and Seller’s subcontractors or suppliers.

8. Warranties

• Seller warrants that the goods delivered under the Purchase Order (i) are of high merchantable quality, (ii) conform to the specifications stated in the Purchase Order and  any samples provided by Seller and approved by Buyer via FAI, (iii) are fit for their intended purpose and operate as intended, (iv) are free from any latent defects in workmanship and material and design, (v) are free and clear of any and all liens and encumbrances, and (vi) do not infringe or misappropriate any third-party patent or any other intellectual property rights.
• In the event that Buyer reasonably determines that Seller has materially breached Section 8(a), Buyer may reject all or any portion of the goods delivered pursuant to that Purchase Order or any related Purchase Order in accordance with Section 4(a) above, provided, however, that as to Section 8(a)(iv)-(vi), Buyer may act upon sixty (60) days actual knowledge of the breach.
• Seller represents and warrants that it complies with the U.S. Foreign Corrupt Practices Act and all applicable anti-corruption laws in jurisdictions where Seller operates and further represents and warrants that it does not employ child labor, prison labor or indentured labor in the production of goods supplied under the Purchase Order, in compliance with all applicable local and international laws. Seller agrees, upon request, to provide Buyer with certifications or other documentation verifying compliance with the above.
• The foregoing warranties are in addition to any warranties implied by law or further provided by Seller.

9. Indemnification and Limitation of Liability

• Seller shall defend, indemnify and hold harmless Buyer and its subsidiaries, affiliates, successors, assigns and customers and their respective directors, officers, shareholders and employees against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including attorneys’ fees and costs, arising out of or related to Seller’s breach of the Terms and Conditions, Buyer’s enforcing the Terms and Conditions and/or Seller’s negligence, gross negligence and willful misconduct related to the Purchase Order, as well as any claim that Seller’s production methods or Buyer’s use or possession of goods, samples or materials provided by Seller for the Purchase Order infringe or misappropriate the patent, copyright, trade secret or any other intellectual property rights of any third party. 
• In connection with the foregoing, Buyer may select its own counsel and control its own defense at Seller’s cost.
• Seller shall not enter into any settlement with any third party for any claim that at all relates to the Purchase Order and indemnification without Buyer’s prior written consent.
• Buyer shall not be liable to Seller or any third party Seller may engage for costs, lost profits or any special, consequential, incidental or indirect damages, however caused, and whether based on contract, tort, product liability or otherwise in excess of the amount paid for the goods delivered under the Purchase Order, which will be the full extent of Buyer’s liability to anyone.

10. Termination

Buyer may terminate the Purchase Order, in whole or in part, at any time, including for convenience, and with immediate effect upon written notice to Seller, and Seller’s exclusive remedy is payment for the goods delivered and accepted thereunder prior to the termination.

11. Force Majeure

No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached the Terms or Conditions, for any failure or delay in performing hereunder when and to the extent such is caused by or results from the following force majeure events: acts of God, flood, fire, earthquake, explosion, epidemic, pandemic, war, invasion, terrorist threat or act, riot or other civil unrest, government order, law or action, national or regional emergency, and/or embargo or blockade coming into effect after the date of the Purchase Order. The Party which has its performance impeded by such shall give notice within ten (10) days thereof to the other Party, stating the duration the occurrence is expected to continue, and it shall use diligent efforts to end the failure or delay, mitigate its effects and resume performance as soon as reasonably practicable after the cause ceases.  Such Force Majeure shall permit either party to cancel the Purchase Order without liability.

12. Relationship of the Parties and No Third-Party Beneficiaries

• The relationship between Buyer and Seller is that of independent contractors. Nothing contained in the Terms and Conditions 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 whatsoever.
• The Terms and Conditions are for the sole benefit of the Parties and Buyer’s customers 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. 

13. Waiver

No course of dealing nor any delay on the part of either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof; nor shall any instance of a waiver or partial exercise on the part of any Party of any right, power or privilege preclude any further exercise thereof or the exercise of any other right, power or privilege by that Party.

14. Notices

• All notices, requests and demands related to the Terms and Conditions and any Purchase Order shall be in writing and sent by email to the Parties at the email addresses printed on the Purchase Order. Notice will be deemed given 24 hours after the notice is sent.
• Seller shall promptly provide written notice to Buyer of (i) any failure by Seller to perform any of its obligations under the Purchase Order or the Terms and Conditions, (ii) any delay in the manufacturing or delivery of the goods, (iii) any defects or quality issue relating to the goods; (iv) any deficiency in Buyer specifications, samples, prototypes or test results relating to the goods; and (vi) any failure by Seller or any approved subcontractor to comply with any laws.

15. Governing Law and Venue

These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Florida, without regard to the principles of conflicts of laws.  The Parties will first attempt to resolve any disputes arising under the Purchase Order through good faith negotiations. Any legal proceeding arising out of such dispute that is not so resolved may be instituted, at the sole election of the initiating party, either (i) in a state or federal court in the State of Florida, in Miami-Dade County, or (ii) in the event the purchase price of the goods subject to the claim is less than $200,000, by way of binding arbitration before and under the rules of the American Arbitration Association (AAA), to be heard either in Miami-Dade County or remotely.  Seller and Buyer hereby consent to the personal and exclusive jurisdiction of such court or the AAA and hereby waive any objection(s) that they may have to personal jurisdiction, the venue of any such proceeding and any claim or defense of inconvenient forum. The Parties further agree that the opposing Party must file any compulsory counterclaim in that same court or arbitration proceeding, or else waive it.  The prevailing party shall be entitled to recover from the non-prevailing party all reasonable attorneys’ fees, court costs, arbitration fees and all other related costs or expenses incurred.

16. Severability

If any part of the Terms and Conditions shall be held or declared to be invalid or unenforceable for any reason by any court or arbitrator of competent jurisdiction, such provision shall be ineffective but shall not affect any other part of the Terms and Conditions, and the court making the determination of invalidity or unenforceability shall have the power to modify such term or provision and to delete specific words or phrases and replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the Parties’ intention of the invalid or unenforceable term or provision. The Terms and Conditions and any affected Purchase Order will be enforceable as such.

17. Entire Agreement

These Terms and Conditions, along with the Purchase Order, constitute the complete and entire understanding and agreement between Buyer and Seller regarding the subject matter thereof. No amendment, modification or waiver of any of the Terms or Conditions or the Purchase Order shall be valid and binding unless made in writing and signed by both Parties or otherwise as expressly provided herein. The Parties acknowledge that any oral or written representations, warranties or communications of any kind, including but not limited to any payments to Seller or Seller’s rights of any kind, that are not included herein are deemed immaterial, non-binding and not part of the Terms and Conditions or the Purchase Order. If there is anything that a Party hereto believes is part of the Terms and Conditions or Purchase Order but that is not expressly written therein, such party shall inform the other party before signing or otherwise accepting the Purchase Order, so the term or condition can be expressly included in one of those writings.