Terms and Conditions for the Sale of Naturs Products

1. Applicability.  

These terms and conditions (these “Terms”), any executed Reseller/Distribution Agreement (the “Reseller Agreement”) covering the sale of products owned, developed, manufactured, or produced by Naturs Design, Inc. (“Seller”), including RemZzzs® CPAP liners, as well as any future Naturs products (collectively, “Naturs Products”), to the buyer of such Naturs Products ("Buyer"), along with any accompanying confirmation of sale (“Confirmation”), and Seller’s Minimum Advertised Price Policy (“MAP Policy”) are the only terms which govern the sale of Naturs Products.  These Terms, any Reseller Agreement, the Confirmation, and MAP Policy comprise the entire agreement between Seller and Buyer. Notwithstanding anything herein to the contrary, the terms of the Reseller Agreement shall prevail to the extent they are inconsistent with these Terms, the MAP Policy, or Confirmation. 

These Terms prevail over any of Buyer's general terms and conditions of purchase regardless OF whether or when Buyer has submitted its purchase order or BUYER’s terms AND CONDITIONS. Fulfillment of Buyer's order does not constitute acceptance of any of Buyer's terms and conditions and does not serve to modify or amend these Terms. 

2. Orders.

(a) By issuing an order for Naturs Products to Seller, Buyer makes an offer to purchase such Naturs Products pursuant to these Terms. Seller has no obligation to accept any order; however, Seller may accept an order by confirming the order in writing or by delivering the applicable Naturs Products to Buyer, whichever occurs first (each accepted order, an “Order”). Seller may reject or cancel an Order, which it may do without liability or penalty, and without constituting a waiver of any of Seller’s rights or remedies under these Terms. 

(b) Upon acceptance of an Order, Buyer shall be obligated to purchase from Seller quantities of Naturs Products specified in such Order. Cancellation or modification of all or part of any Order is subject to Seller’s prior written consent in each instance. If cancellation or modification is allowed, Buyer agrees to pay to Seller all expenses incurred and damage sustained by Seller as a result of the cancellation or modification.  

3. Delivery.  

(a) The Naturs Products will be delivered within a reasonable time after the receipt of an Order, subject to availability of finished Naturs Products. Seller shall not be liable for any delays, loss, or damage in transit.

(b) Unless otherwise agreed to in writing by Seller and Buyer, Seller will, at Buyer’s cost and expense, deliver the Naturs Products, at the location specified in the Order (the “Delivery Point”), using Seller’s standard methods for packaging and shipping. Buyer shall take delivery of the Naturs Products within 2 days of Seller's written notice that the Naturs Products have been delivered to the Delivery Point. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Naturs Products at the Delivery Point.

(c) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Naturs Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer's Order.

4. Non-Delivery. The quantity of any installment of Naturs Products as recorded by Seller on dispatch from Seller's place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary. Seller shall not be liable for any non-delivery of Naturs Products (even if caused by Seller's negligence) unless Buyer gives written notice to Seller of the non-delivery within 5 days of the date when the Naturs Products would in the ordinary course of events have been received. Any liability of Seller for non-delivery of the Naturs Products shall be limited to replacing the Naturs Products within a reasonable time or adjusting the invoice respecting such Naturs Products to reflect the actual quantity delivered.

5. Shipping Terms. Delivery shall be made FOB Seller’s location of 263 Industrial Drive, Suite B, Hillsdale, Michigan 49242, or such other location as Seller may specify in writing to Buyer (“Seller’s Location”).

6. Title and Risk of Loss. Title to Naturs Products shipped under any Order and risk of loss or damage passes to Buyer upon delivery to the carrier.

7. Inspection and Rejection of Nonconforming Naturs Products.  

(a) Buyer shall inspect the Naturs Products within three days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Naturs Products unless it notifies Seller in writing of any Nonconforming Naturs Products during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Naturs Products” means only the following: (i) product shipped is different than identified in the Order; or (ii) product's label or packaging incorrectly identifies its contents.

(b) If Buyer notifies Seller of any Nonconforming Naturs Products during the Inspection Period, Seller shall, in its sole discretion, (i) replace such Nonconforming Naturs Products with conforming Naturs Products, or (ii) credit or refund the price for such Nonconforming Naturs Products, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. 

(c) Buyer acknowledges and agrees that the remedies set forth in this Section are Buyer's exclusive remedies for the delivery of Nonconforming Naturs Products. Except as provided under this Section, all sales of Naturs Products to Buyer are made on a one-way basis and Buyer has no right to return Naturs Products purchased under these Terms to Seller.

8. Price. 

(a) Buyer shall purchase the Naturs Products from Seller at the prices (the "Prices") set forth in Seller's purchase order form or pursuant to Seller’s written notice. If the Prices should be increased by Seller, Seller will provide Buyer with 30 days’ notice of such price increase.

(b) All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any foreign or domestic governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller's income, revenues, gross receipts, personnel, or real or personal property, or other assets. 

9. Payment Terms.  

(a) Buyer shall pay all invoiced amounts due to Seller within 30 days from the date of Seller’s invoice. Buyer shall make all payments hereunder by check, ACH, or wire transfer, and in US dollars. For the avoidance of doubt, if Buyer makes payment by ACH or wire transfer, Buyer shall be solely responsible for any associated wire transfer or other bank fees.

(b) Buyer shall pay interest on all late payments 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 Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Naturs Products if Buyer fails to pay any amounts when due hereunder. 

(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller's breach, bankruptcy, or otherwise.  

10. Limited Warranty. 

(a) Seller warrants to Buyer that, for a period of one (1) year from the date of sale (the “Warranty Period”), the Naturs Products will be free from material defects in material and workmanship.

(b) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 10(a), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE NATURS PRODUCTS, 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.

(c) Seller shall not be liable for a breach of the warranty set forth herein unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within two days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Naturs Products and Buyer (if requested to do so by Seller) returns such Naturs Products to Seller's place of business at Seller's cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer's claim that the Naturs Products are defective.

(d) Seller shall not be liable for a breach of the warranty set forth herein if: (i) Buyer makes any further use of such Naturs Products after giving such notice; (ii) the defect arises because Buyer failed to follow Seller's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Naturs Products; or (iii) Buyer alters or repairs such Naturs Products, including without limitation the packaging, without the prior written consent of Seller.

(e) Subject to the terms of this Section, with respect to any such Naturs Products during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Naturs Products (or the defective part) or (ii) credit or refund the price of such Naturs Products at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller's expense, return such Naturs Products to Seller.

(f) THE REMEDIES SET FORTH IN THIS SECTION SHALL BE THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS SECTION. 

11. Limitation of Liability.

(a)  IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

(b) IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO these Terms WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE NATURS PRODUCTS SOLD HEREUNDER. 

12. Resale of Naturs Products.

(a) Buyer may only resell Naturs Products if it has entered into a Reseller Agreement with Seller. Unless otherwise consented to by Seller, Buyer may only resell Naturs Products to end-users or consumers and is prohibited from selling Naturs Products to persons or entities that intend to resell the Naturs Products (each a “Secondary Reseller”). 

(b) If Buyer has entered into a Reseller Agreement with Seller, then Buyer may offer customers Seller’s limited consumer warranty. This warranty is void if sold to a Secondary Reseller. 

(c) In the event Buyer breaches this section or sells to a Secondary Reseller, then Seller may terminate the relationship with Buyer and pursue any remedies available to Seller under law, in equity, or pursuant to the terms of the Reseller Agreement or these Terms. 

13.   Compliance with Law. 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 these Terms.

14.     Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate the Reseller Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under these Terms; or (ii) has not otherwise performed or complied with any of these Terms, in whole or in part. 

15. Confidential Information. All non-public, confidential, or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller 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 these Terms is confidential, solely for the use of performing these Terms and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information: (i) which Buyer can demonstrate, by contemporaneous documentary evidence, was already known to it prior to the date it was received; (ii) which, at the time of the disclosure or later, is published or becomes otherwise available to the general public as part of the public domain through no act or failure to act on the part of Buyer and without breach of these Terms; or (iii) which Buyer can demonstrate, by contemporaneous documentary evidence, came into its possession from a third party who has a bona fide right to make such information available without restriction.

16. Force Majeure. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached these Terms, for any failure or delay in fulfilling or performing any of these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, hurricane, tropical storm, or similar weather disturbance, explosion, governmental actions, war, terrorist threats, or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lockouts, strikes, or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials, or telecommunication breakdown or power outage. 

17. Miscellaneous. 

(a) Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under these Terms.

(b) Relationship of Seller and Buyer. The relationship between Seller and Buyer is that of independent contractors. Nothing contained in the Reseller Agreement or these Terms shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between Seller and Buyer, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

(c) Waiver. No waiver by Seller of any of the provisions of the Reseller Agreement or these Terms is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from the Reseller Agreement or these Terms operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege thereunder or hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.  

(d) No Third-Party Beneficiaries. The Reseller Agreement and these Terms are for the sole benefit of Seller and Buyer 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 the Reseller Agreement or these Terms.

(e) Governing Law. All matters arising out of or relating to the Reseller Agreement or these Terms is governed by and construed in accordance with the internal laws of the State of Florida, without giving effect to any choice or conflict of law provision or rule. Collier County, Florida, shall be the sole jurisdiction for disputes arising out of these Terms.  If Buyer is located outside the United States, Seller and Buyer agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply.

(f) Severability. If any term or provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.