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Terms and conditions

Terms and Conditions of Sale Agreement

  1. Definitions.
    1. “Agreement” means this Terms and Conditions of Sale Agreement.
    2. “Customer” means any person or entity purchasing Products or Services from Therapak, either directly or through its employees or other individuals.
    3. Custom Products” means those products that are assembled or manufactured by Therapak to the written specifications (e.g., relating to the components, raw materials, stability, manufacture, testing, storage, handling, labeling, packaging, and/or shipping of the product) provided by Customer and agreed upon by Therapak.
    4. Products” means the goods that Therapak provides to Customer.
    5. Services” means work performed by employees or subcontractors of Therapak for Customer in accordance with a Scope of Work or similar order instrument that details the work and fees associated with a services engagement (each, an “SOW”).
    6. Therapak” means Therapak, LLC.
  2. ACCEPTANCE: THERAPAK RESERVES THE RIGHT TO ACCEPT OR REJECT ANY ORDER, TO TERMINATE THIS AGREEMENT, OR TO CHANGE THESE TERMS AND CONDITIONS OF SALE, WITHOUT NOTICE TO CUSTOMER, AT ANY TIME FOR ANY REASON, AND RECEIPT BY CUSTOMER OF A THERAPAK QUOTATION, PRICE LIST, OR CATALOG DOES NOT CONSTITUTE AN OFFER TO SELL. ALL SALES BY THERAPAK ARE SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND EXPRESSLY CONDITIONED UPON CUSTOMER’S ASSENT THERETO.  CUSTOMER WILL BE DEEMED TO HAVE ACCEPTED THESE TERMS AND CONDITIONS BY ISSUING A PURCHASE ORDER OR BY ANY OTHER STATEMENT (INCLUDING, WITHOUT LIMITATION, VIA E-MAIL), ACT, COURSE OF CONDUCT, DEALING, OR PERFORMANCE CONSTITUTING ACCEPTANCE UNDER APPLICABLE LAW, INCLUDING, WITHOUT LIMITATION, FAILURE TO OBJECT IN WRITING TO THESE TERMS AND CONDITIONS WITHIN A REASONABLE TIME OR BY ACCEPTANCE OF AND/OR PAYMENT FOR THE PRODUCTS OR SERVICES.  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.
  3. CREDIT CARDS: Therapak accepts Visa, Mastercard, and American Express credit cards.
  4. DAMAGED OR SHORTAGE OF MERCHANDISE: 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. Customer shall immediately inspect all deliveries for shipping damage upon receipt. If any external damage is noticed, Customer shall accept the shipment only after the driver has noted the damage on both carrier’s and Customer’s copies of the delivery receipt and Customer has requested an inspection by the carrier.  Customer shall keep all containers and packing material for inspection.  Customer shall promptly inspect all shipments for concealed shipping damage, defects, or shortages, notify Therapak of any such damage, defect, or shortage, and cooperate with Therapak in arranging an inspection by the carrier and the filing of a freight claim as applicable; provided that on all sales where Customer arranges transportation, in the event of loss or damage in transit, Customer should file its own claim with the carrier.   With respect to shipping damage, Customer must contact Therapak to request inspection within twenty-four (24) hours of delivery or unconditionally waive any right to make any claim relating to the damaged Products, including, without limitation, under the warranty set forth herein.  With respect to other claims, Customer’s failure to notify Therapak within thirty (30) days of delivery (or Customer’s non-receipt of the Products in the case of non-delivery) of defects or shortages reasonably discoverable upon proper inspection will be deemed an unconditional waiver of any right to make any claim relating to the defective or missing Products, including, without limitation, under the warranty set forth herein.
  5. ORDER CANCELING: Except for Products that do not meet the limited Product warranty set forth herein, Customer may only cancel or return Products in accordance with the following:
    1. Customer may not cancel or modify an order without the prior written consent of Therapak, which may be withheld for any reason or no reason at all, and any changes may be subject to price adjustment and/or cancellation fees.
    2. 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.
  6. OTHER DISCREPANCIES: Other discrepancies to be resolved must be reported in writing within 15 days of shipment.
  7. PAYMENT TERMS: Net 30 days from date of invoice, unless other credit terms are agreed to in writing by Therapak. Overdue balances are subject to a service charge of 1.5% per month plus taxes, reasonable attorneys’ fees, and other collections costs, if any, incurred by Therapak.
  8. 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.  Therapak price quotations are valid for the period specified on the quotation; provided, however, that quoted pricing is subject to adjustment based on shipment arrangements or other terms and conditions which were not part of Therapak’s original price quotation.
  9. MINIMUM ORDER AND FEES: The minimum order amount is $1,000 for a Customer’s first order and $300 for any subsequent order to any single destination. A drop ship fee may apply when Therapak ships to third party locations. Rush orders are subject to a surcharge.
  10. CUSTOM MANUFACTURED OR NON-STOCK ITEMS: Will be quoted on request, and subject to a manufacturing variance.
  11. TAXES: All applicable federal, state and municipal taxes will be assessed and added to the order at the time of billing.  If any claim is made against Therapak for any such taxes, Therapak shall promptly notify Customer of the amount of such taxes and Customer shall promptly pay such amount to Therapak or its designated payee.  If Customer possesses or otherwise enjoys tax-exempt status, Customer shall provide a duly authorized certificate of tax exemption to Therapak prior to or at the time of order placement or as otherwise requested by Therapak from time to time and shall notify Therapak upon change in Customer’s tax-exempt status.
  12. 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, and Therapak reserves the right to reject any returns requested more than thirty (30) days after the delivery date. Customer must 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.  If any Product is erroneously shipped to or returned to a Therapak facility, Customer will be responsible for removing the Product from Therapak’s facility immediately in accordance with applicable laws and regulations.
  13. FREIGHT: F.O.B., Point of Origin (Incoterms® 2020), collect freight, or prepay and added to invoice. Title and risk of loss in all Products will transfer to Customer upon Therapak’s delivery of such Products to the carrier or agent at Therapak’s facility, regardless of the freight term specified for transportation purposes.  Unless otherwise agreed to by Therapak in writing, Therapak reserves the right to choose the carrier, forwarding company, and means of transport.  Where and to the extent permitted by applicable law, shipping and handling fees, special packaging materials, carrier surcharges (including, without limitation, fuel surcharges), shipping palettes, environment-controlled shipping, and/or hazardous material fees imposed by government regulation will be added separately to the invoice.  Customer acknowledges that Therapak may refer to shipping and other fees on Therapak’s invoices as “freight,” “handling fees,” “expense recovery,” or similar terms.  The shipping and other fees that Therapak charges may not be limited to Therapak’s actual transportation costs and may include other shipping and handling costs.Shipping and/or delivery dates set forth in a Therapak quotation or order acknowledgement are based on estimates at the time of the quotation or order acknowledgement.  Therapak shall use commercially reasonable efforts to ship the Products in accordance with the shipping and/or delivery dates, provided that the foregoing will not constitute a guaranty of compliance with the quoted shipping and/or delivery dates, and Therapak will not be liable for any direct or indirect costs or damages incurred by Customer or any third party, including, without limitation, incidental or consequential damages, resulting from late deliveries.

    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.

  14. RETURN GOODS CREDIT: No credit will be granted by Therapak for the following:
    1. Unauthorized returns or products returned without an assigned return goods authorization provided by a Therapak representative.
    2. Products not returned within 30 days of original shipment date.
    3. Products that are not suitable for resale or are not in their original carton (such Products will be destroyed by Therapak).
    4. Products that are discontinued.
    5. 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 may be charged.
  15. PRODUCT AND SERVICE WARRANTIES AND LIMITATION OF LIABILITY: Therapak warrants to the original Customer only that:
    1. 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;
    2. All software programs are warranted in accordance with the software vendor’s license agreement;
    3. Services provided, if any, will be of the kind and quality designated and will be performed by qualified personnel.
    4. 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, CONDITIONS, OR GUARANTEES WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER STATUTORY, WRITTEN, ORAL, EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY (i) WARRANTY OF MERCHANTABILITY, SUITABILITY, SUSTAINABILITY, OR FITNESS FOR A PARTICULAR PURPOSE; (ii) WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE; AND (iii) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS.

      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. Customer will have the obligation of substantiating the chain of custody of the Products following delivery of the Products to Customer.  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.  All formulae, drawings, illustrations, descriptive matter, and particulars contained in Therapak’s catalogs, website, and marketing materials, and any technical advice or other statements given by Therapak or its representatives with respect to the use of the Products or any results that may be obtained therefrom, are indicative only and do not form a part of this Agreement and are not representations and warranties of any kind.

      If any Product or Service warranted hereunder proves defective or non-conforming, as determined by Therapak in its sole reasonable discretion, Therapak’s sole and exclusive liability and Customer’s sole and exclusive remedy hereunder shall be for Therapak to repair or replace the Product or re-perform the Service.  For purposes of this Agreement, a defective or non-conforming Product is defined only as a Product that does not meet the limited product warranty set forth herein and excludes Products that fail to meet any fitness of use by Customer or any unique Customer operating conditions or applications.

      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 (INCLUDING, WITHOUT LIMITATION, WARRANTY), TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY OR FORM OF ACTION, EVEN IF THERAPAK 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.  HOWEVER, THESE PROVISIONS DO NOT LIMIT OUR LIABILITY THAT CANNOT BE LIMITED BY LAW.

  16. INDEMNITY: Customer shall indemnify, defend, and hold harmless each of Therapak, its subsidiaries, affiliated entities, and divisions, and its or their respective successors, assigns, officers, directors, shareholders, subcontractors, agents, employees, and representatives (each, a “Customer-Indemnified Party”) from and against, and in respect of, any and all actions, claims, suits, judgments, damages, liabilities, losses, settlement payments, penalties, costs, and expenses (including, without limitation, attorneys’ fees) of every kind whatsoever (collectively, “Damages”) arising out of, from, or in connection with any: (i) patent, copyright, or trademark infringement, or violation of any other proprietary right, arising out of the use of any Product or any specifications furnished by Customer; (ii) breach by Customer of any term or provision of this Agreement; (iii) Damages arising out of or relating to Customer’s receipt, handling, storage, possession, transportation, disposal, purchase, resale, or use of any Product (whether used singly or in combination with other products); and (iv) wrongful or negligent act or omission by any of Customer or its officers, directors, shareholders, agents, servants, employees, and representatives; provided, that this section will not obligate Customer to indemnify any Customer-Indemnified Party for any portion of Damages directly attributable to, and directly caused by, the negligence of a Customer-Indemnified Party.  Customer may not settle any such claim against a Customer-Indemnified Party without the prior written consent of such Customer-Indemnified Party.  If Customer elects not to assume such defense, the Customer-Indemnified Party may elect to do so, and Customer shall pay all costs and expenses of counsel selected by such Customer-Indemnified Party in connection with such defense.  Any legal counsel appointed by Customer to defend such a claim must be experienced in the type of litigation involved and must be reasonably satisfactory to the Customer-Indemnified Party.  Customer and each Customer-Indemnified Party shall cooperate fully in connection with all matters related to the defense of any such claim.
  17. CONFIDENTIAL INFORMATION: Customer shall maintain in confidence, not disclose to any third party, and not use, except for the specific purpose of performing under this Agreement, all confidential information furnished to it by Therapak or any affiliate of Therapak in connection with this Agreement or derived from Therapak or any affiliate of Therapak in performance of this Agreement. Customer shall return to Therapak or an affiliate of Therapak, upon request, all copies of documents and other tangible media then in Customer’s possession that were furnished by or derived from Therapak or an affiliate of Therapak, respectively, in connection with the performance of this Agreement. Customer shall inform its employees, agents, and representatives of these obligations and shall require them to assume equivalent obligations and is liable for the acts and omissions of its employees, agents, and representatives with respect to Therapak’s confidential information.  Customer acknowledges that Therapak would not have any adequate remedy at law for the breach by Customer of any one or more of its obligations contained in this section and agrees that in the event of any such actual or potential breach, Therapak may, in addition to the other remedies that may be available, file a suit in equity to enjoin Customer therefrom.
  18. EXPORT CONTROLS: Products purchased or received under this Agreement are subject to the customs and 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, including, without limitation, the Export Administration Act of 1979 and the Arms Export Control Act of 1976, 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 obtain any license to export, re-export or import as may be required.
  19. ANTI-CORRUPTION: 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 Agreement or to benefit the other party. Failure by Customer to comply with this section shall be deemed a material breach of this Agreement and Therapak will have the right to immediately terminate this Agreement and its performance without any liability to Customer.
  20. OWNERSHIP RIGHTS: Except as expressly set forth herein, no right, title or interest in or to Therapak’s intellectual property or proprietary rights (“Intellectual Property Rights”) is granted by Therapak to Customer whether by implication, estoppel, or otherwise, and the sale of Products and Services to Customer hereunder shall have no effect on Therapak’s Intellectual Property Rights with respect to the Products and Services, including, without limitation, any and all patent, trade secret, copyright, trademark, trade dress, and service mark rights relating to the Manufactured Products.  Without limiting the foregoing, Therapak is and will remain the sole and exclusive owner of all right, title and interest in and to its standard operating procedures, specifications, drawings, and designs, and, if applicable, its proprietary software licensed to Customer hereunder, including any improvements or other inventions relating thereto.  Customer agrees to respect all such rights, and to take or permit to be taken no actions which would infringe upon such rights.  Customer shall not derive or attempt to derive by reverse engineering, disassembling, or otherwise any portion of the proprietary software.  As between Customer and Therapak, all Intellectual Property Rights in and to the Services or any materials, processes, ideas, concepts, techniques, inventions, discoveries, or improvements produced by Therapak or provided by Therapak under this Agreement will be the property of Therapak.  Effective upon completion of the Services and payment by Customer of the fees and expenses invoiced by Therapak with respect thereto, Customer will have a nonexclusive license to use the materials and processes developed and provided by Therapak under this Agreement for Customer throughout Customer’s organization.  Customer’s interest in and obligations with respect to any programming, materials, or data to be obtained from third-party vendors, whether or not obtained with the assistance of Therapak, will be determined in accordance with the agreements and policies of such vendors.
  21. MISCELLANEOUS:
    1. FORCE MAJEURE – Therapak will not be liable for the failure or delay in performing any obligation under this Agreement if and to the extent such failure or delay is by reason of any event or cause beyond the reasonable control of Therapak, including, but not limited to, fire, storm, flood, earthquake, explosion, accident, terrorist attack, disruption of markets, acts of God, epidemic, pandemic, public health warning or alert, insurrection, riot, invasion, public disorder, strike, labor dispute, work stoppage, lockout, cybersecurity attack, transportation embargo or delay, shortage of materials or machinery, utility disruption, act or omission of any government, or any rules, regulations or priorities of any government or branches, departments, officers, agencies or instrumentalities thereof.
    2. TERMINATION – This 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.
    3. 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.
    4. APPLICABLE LAW – This Agreement is made pursuant to and shall be construed and enforced exclusively in accordance with, the internal laws of the State of Delaware (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.  Any action or proceeding directly or indirectly arising out of or relating to this Agreement shall only be brought, heard, and determined in the State or Federal Courts located in Delaware. Customer hereby irrevocably submits and agrees to the exclusive jurisdiction and venue of such courts with respect to any such action or proceeding, and irrevocably waives any and all objections to personal jurisdiction and inconvenient forum and agrees that process may be served upon it in any such action or proceeding by United States registered mail directed to the address indicated in the attached Order. EACH PARTY HERETO EXPRESSLY AND IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM RELATING TO OR ARISING IN ANY WAY FROM THE ORDER. THERAPAK AND CUSTOMER EACH ACKNOWLEDGE THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
    5. AUTHORITY TO ENTER INTO AGREEMENT – Each party represents and warrants that it is authorized to enter into this 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.
    6. 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; provided, however, neither party will have the right to transfer, assign or delegate its rights or obligations under this Agreement or any portion thereof without the prior written consent of the other party (except that Therapak may assign this Agreement to a parent, subsidiary, or successor corporation without such consent).  Notwithstanding the foregoing, Therapak will have the right, without the prior approval of Customer, to appoint subcontractor(s) or agent(s) to perform certain services hereunder.
    7. NO THIRD-PARTY BENEFICIARY RIGHTS.  This Agreement is not intended to and will not be construed to give any third party any interest or rights (including, without limitation, any third-party beneficiary rights) with respect to or in connection with the subject matter of this Agreement, except as otherwise expressly provided for in this Agreement.
    8. 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, or anything other than an independent contractor for all purposes of this Agreement, and except as may be authorized specifically in writing, neither party has express or implied authority to bind the other in any manner whatsoever by virtue of this Agreement.

Therapak reserves the right to change this Terms of Sale Agreement at any time without notice.

Revision date: August 23, 2023