Terms of Sale Agreement
ACCEPTANCE: Receipt of our Price List does not constitute an offer to sell. ALL SALES ARE SUBJECT TO AND EXPRESSLY CONDITIONED UPON THE TERMS AND CONDITIONS CONTAINED HEREIN, AND UPON CUSTOMER’S ASSENT THERETO. THE TERMS AND CONDITIONS CONTAINED HEREIN WILL BE CONTROLLING, AND ANY ADDITIONAL AND/OR INCONSISTENT TERMS AND CONDITIONS SET FORTH IN ANY ACKNOWLEDGMENT, PURCHASE ORDER, OR ACCEPTANCE DOCUMENTS REQUESTED FROM AND/OR PROVIDED BY CUSTOMER ARE EXPRESSLY REJECTED. NO VARIATION OF THESE TERMS AND CONDITIONS WILL BE BINDING UPON THERAPAK UNLESS AGREED TO IN WRITING AND SIGNED BY AN OFFICER OR OTHER AUTHORIZED REPRESENTATIVE OF THERAPAK.
CREDIT CARDS: Therapak accepts all major credit cards.
DAMAGED OR SHORTAGE OF MERCHANDISE: Our responsibility for shipment ceases with acceptance by carriers. No short payments will be allowed. If any goods called for on the bill of lading are short or damaged, do not accept them until the freight agent makes a short / damage notation on your freight bill. Thoroughly inspect the shipment as soon as received. This is absolutely necessary. Unless you do this, the transportation companies will not entertain any claim for loss or damage. If the freight agent feels no inspection is deemed necessary, note whom you talked to and the date on the freight bill. We are not responsible for loss or damage when you give the transportation company a cleared receipt. For settlement for your claim, send a copy of the freight bill and your invoice along with the carrier’s claim form to the carrier immediately. All claims must be received within 30 days of shipment. All requests for proof of delivery must be received within 30 days of shipments.
ORDER CANCELING: All orders canceled after shipment must follow the Return Goods Authorization procedures below. Non-Stock or custom product orders cannot be canceled once product or raw materials are manufactured.
OTHER DISCREPANCIES: Other discrepancies to be resolved must be reported in writing within 15 days of shipment.
PAYMENT TERMS: Net 30 days from date of invoice. Overdue balances are subject to a service charge of 1.5% per month.
PRICES/AVAILABILITY: All prices and product availability are subject to change without notice. Therapak reserves the right to change product specifications without notice. Merchandise is sold in case lots only.
MINIMUM ORDER AND FEES: The minimum order amount is $500 to any single destination. A drop ship fee will apply when Therapak ships to third party locations. Rush orders are subject to a $15 surcharge.
CUSTOM MANUFACTURED OR NON-STOCK ITEMS: Will be quoted on request, and subject to a +/- 10% variance.
TAXES: All applicable federal, state and municipal taxes will be assessed and added to the order at the time of billing.
TRUCKLINE SERVICE: If additional services are requested, you will be invoiced at truck line cost to us (i.e. driver unload, driver detention, sort, segregate, re-deliver, storage, palletizing, lift gate, inside delivery, call for appointment services, etc.)
RETURN GOODS AUTHORIZATION: Requests for authorization must include the reason for the return, item number, quantity, Therapak invoice number and the customer’s purchase order number. A Therapak representative will send a copy of the authorization to the customer to be used as a packing slip with the returned merchandise. Partial case packaged items will not be accepted for return.
All returns must be authorized by your Therapak representative. Please follow the instructions on the “Return Goods Authorization” form. Unauthorized returns will not be accepted and will be returned at the sender’s expense. This also applies to orders cancelled after shipment has been made, in which case the freight charges will be billed back to the customer. All returns must be made within 15 days of authorization.
FREIGHT: F.O.B., Point of Origin, collect freight, or prepay and added to invoice. Return shipments must be freight prepaid except for return of products shipped in error or defective products, which will have pick up arranged by a Therapak representative. Collect shipments will not be accepted by Therapak. Enclose a copy of the authorization as the packing list.
RETURN GOODS CREDIT: No credit will be granted by Therapak for the following:
- Unauthorized returns or products returned without an assigned return goods authorization provided by a Therapak representative.
- Products not returned within 30 days of original shipment date.
- Products that are not suitable for resale or are not in their original carton (such products will be destroyed by Therapak).
- Products that are discontinued.
- Custom manufactured or non-standard products.
Credit for authorized returns will be based on the price for which the customer was invoiced when the product was shipped. A 25% restocking fee will be charged.
PRODUCT AND SERVICE WARRANTIES AND LIMITATION OF LIABILITY: Therapak warrants to the original customer only that:
- All products, branded and private label, will meet the manufacturer’s specifications for a term equal to the warranty period stated in the product manufacturer’s literature;
- All software programs are warranted in accordance with the software vendor’s license agreement;
- Services provided, if any, will be of the kind and quality designated and will be performed by qualified personnel.
- Therapak makes no claims or warranties concerning sustainable/green products. Any claims concerning sustainable/green products, including but not limited to, any of the following: green, recycled, recyclable, reusable, refillable, renewable, biodegradable, degradable, photodegradable, compostable, carbon footprint, renewable sources, source reduced, ozone safe, ozone friendly, environmentally friendly, no CFC.s, CRC-Free, are the sole claims of the manufacturer and not those of Therapak.
THERAPAK HEREBY DISCLAIMS ALL OTHER WARRANTIES OR GUARANTEES, WHETHER STATUTORY, WRITTEN, ORAL, EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
The liability of Therapak under this limited warranty does not extend to any products which are abused, altered or misused by the customer or any other persons or entities or which become defective or non-conforming through the actions or inaction of the customer or any other persons or entities. A defective or non-conforming product is defined only as a product which is outside of the manufacturer’s defined product specifications, and shall not include products that fail to meet any fitness of use by customer or any unique customer operating conditions or applications.
If any product or service warranted hereunder proves defective or non-conforming, Therapak’s sole liability and Customer’s sole remedy hereunder shall be for Therapak to repair or replace the product or re-perform the service.
IN NO EVENT SHALL THERAPAK HAVE ANY OBLIGATION OR LIABILITY FOR ANY EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, USE OR GOODWILL, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY OR FORM OF ACTION, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. THE TOTAL LIABILITY OF THERAPAK (INCLUDING ITS SUBCONTRACTORS AND AGENTS), IF ANY, FOR DAMAGES RELATING TO THIS AGREEMENT SHALL BE LIMITED TO AN AGGREGATE AMOUNT NO GREATER THAN: (1) AN AMOUNT EQUAL TO THE PRICE PAID FOR THE PRODUCT(S) UNDER WHICH THE DAMAGES ARISE; AND (2) AN AMOUNT EQUAL TO THE FEES PAID FOR THE SERVICES UNDER WHICH THE DAMAGES ARISE.
Each party (a “Recipient”) shall maintain in confidence, not disclose to any third party, and not use, except for the specific purpose of performing under this Terms of Sale Agreement, all proprietary information furnished to it by the other party (a “Discloser”) or any affiliate of Discloser in connection with this Terms of Sale Agreement or derived from the Discloser or any affiliate of Discloser in performance of this Terms of Sale Agreement. Recipient shall return to the Discloser or an affiliate of Discloser, upon request, all copies of documents and other tangible media then in Recipient’s possession that were furnished by or derived from Discloser or an affiliate of Discloser, respectively, in connection with the performance of this Terms of Sale Agreement. The Recipient shall inform its employees, agents, and representatives of these obligations and shall require them to assume equivalent obligations.
Products purchased or received under this Terms of Sale Agreement are subject to export control laws, restrictions, regulations and orders of the United States. Customer agrees to comply with all applicable export laws, restrictions and regulations of the United States or foreign agencies or authorities, and shall not export, or transfer for the purpose of re-export, any product to any prohibited or embargoed country or to any denied, blocked, or designated person or entity as prohibited by any such United States or foreign law or regulation. Customer represents and warrants that it is not on the Denied Persons, Specially Designated Nationals or Debarred Persons List, or any equivalent list maintained by a foreign regulatory authority and is not otherwise prohibited by law from purchasing the products or services hereunder. Customer shall be responsible to obtain any license to export, re-export or import as may be required.
Customer represents and warrants that: (a) it is familiar with and understands the terms of the U.S. Foreign Corrupt Practices Act of 1977, as amended (“U.S. FCPA”), and that customer will comply with the U.S. FCPA and all other applicable anti-bribery or anti-corruption laws or regulations of any other country or jurisdiction which are applicable to the parties’ business activities hereunder; (b) no principal, partner, officer, director or employee of customer is or will become an official of any governmental body of any country or jurisdiction (other than the U.S.) that is applicable to the parties’ business activities hereunder; and (c) customer has not and shall not offer, pay, give, or promise to pay or give, directly or indirectly (including through a third party or intermediary) any payment or gift of any money or thing of value to any government official, government employee (or employee of any company owned in part by a government), political party, political party official, or candidate for any government or political office (each, a “Government Official”) to influence any acts or decisions of such Government Official or to induce such official to use his or her influence with the government to effect or influence the decision of such government in order to assist either Therapak or customer in its performance of their obligations under this Terms of Sale Agreement or to benefit the other party. Failure by Customer to comply with this section shall be deemed a material breach of this Terms of Sale Agreement and Therapak will have the right to immediately terminate this Terms of Sale Agreement and its performance without any liability to customer.
- TERMINATION – This Terms of Sale Agreement may be terminated by either party for convenience at any time upon reasonable written notice delivered to the other party. In the event of any termination or expiration of this Terms of Sale Agreement, customer shall be billed immediately for products shipped through the effective date of such termination or expiration and all custom manufactured or non-standard products purchased for customer in Therapak’s inventories at such date, and customer shall pay the invoiced amount immediately upon receipt of such invoice. The paragraphs relating to the disclaimer of implied warranties, limitation of liability, and proprietary information shall survive termination of this Terms of Sale Agreement.
- MERGER, MODIFICATION, WAIVER – No amendment, modification or waiver of these terms shall be binding on either party unless reduced to writing and signed by an authorized officer of the party to be bound, and in the case of a waiver, shall be effective only in the specific instance and for the specific purpose for which given, and shall not be construed as a waiver of any subsequent breach.
- APPLICABLE LAW – This Terms of Sale Agreement is made pursuant to, and shall be construed and enforced exclusively in accordance with, the internal laws of the State of California (and United States federal law, to the extent applicable), without giving effect to otherwise applicable principles of conflicts of law. The United Nations Convention on Contracts for the International Sales of Goods expressly shall not apply.
- AUTHORITY TO ENTER INTO AGREEMENT – Each party represents and warrants that it is authorized to enter into this Terms of Sale Agreement and that in so doing it is not in violation of the terms or conditions of any contract or other agreement to which it may be a party.
- ASSIGNMENT – This Terms of Sale Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns and designees.
- NATURE OF RELATIONSHIP – Neither party, its employees or permitted subcontractors or agents shall, under any circumstances, be considered to be an agent, partner, joint venturer or representative of the other party.
Therapak reserves the right to change this Terms of Sale Agreement at any time without notice.