The Terms and Conditions of Purchase (“Agreement”) applies to any applicable purchase order accepted by Contempo and will apply to all business transactions, including future transactions between Contempo and Purchase and forms the business and legal relationship terms of the purchaser/supplier relationship. This includes terms such as payment terms, purchase requests, tooling and molding, shipping terms, delivery, acceptance of products, returns, confidential information, ownership, and warranties. The Terms and Conditions of Purchase allow for the governance of multiple contracts between Contempo and Purchaser. Contempo and Purchaser are each referred to herein as a “Party” and collectively as the “Parties”. Please check back regularly for updates.
Contempo reserves the right to make changes to the Terms and Conditions from time to time, without giving any notice. You expressly acknowledge and agree that you are bound by the version of the Terms and Conditions in effect on your order date.
1.1 Purchaser Request. In a purchase order, Purchaser must provide Contempo with (1) quantity of goods, (2) Contempo item number, if applicable, (3) Purchaser Artwork, if applicable, and (4) Purchaser’s specific requirements for the goods, including but not limited to, compliance with any legal or regulatory terms, packing requirements, product or manufacturing certifications, such as child resistant requirements and sterilization, shelf life, documentation needed to accompany goods related to legal or other regulatory requirements, testing, warehousing, manufacturing, or shipping requirements (“Purchase Order”). Purchaser will confer with Contempo on the nature and extent of Purchaser’s specific requirements for evaluation by Contempo prior to accepting the order
1.2 Acceptance. Unless Purchaser is notified otherwise, the Purchase Order will be deemed accepted by Contempo two (2) business days after received by Purchaser.
1.3 Drawings. Contempo is not responsible for any information that is not correctly provided by the Purchaser and assumes no responsibility for errors if goods are manufactured in accordance with the specifications provided by Purchaser and/or printed with artwork provided and/or approved by Purchaser to Contempo.
1.4 Testing and Certification. Unless specifically requested in the Purchase Order and agreed upon by Contempo, Contempo is not responsible to provide any testing or certification of the products being ordered.
1.5 Freight. Contempo reserves the right to modify any estimated freight costs or fees. Freight charges are subject to fluctuations caused by factors outside the control of Contempo. Any quoted freight prices are subject to change up to the point of shipment.
1.6 Cancellation. Once a Purchase Order has been received by Contempo, Purchaser has two (2) business days to cancel the order. After two (2) business days, Purchaser is charged a 100% cancellation fee and required to make full payment.
2.1 Invoice. All payments will be tendered in United States currency. Purchaser agrees that it is responsible for payment of all shipping, duties, tariffs, taxes, Custom Artwork, artwork alterations, additional testing or certification, tooling or mold costs, late fees and any other cost or fee authorized by this Agreement regardless as to whether such amounts are specified in a Purchase Order. Purchaser further agrees that Contempo is not responsible for fluctuations in duty rates, taxes and fees, changes in tariffs or regulations issued by government agencies.
2.2 Insurance. Each Party shall procure and maintain all insurance coverage necessary in connection with manufacturing and delivery of the product.
2.3 Deposit. If a Deposit is required and the Purchaser fails to pay the Deposit within two (2) business days, Contempo reserves the right to delay production accordingly.
2.4 Payment of Balance. Unless agreed otherwise in writing, once Contempo provides Purchaser with notice that the products are ready to be shipped, Purchaser has seven (7) business days to pay the remaining balance (which includes the balance of the cost of goods, any additional fees or costs as authorized by this Agreement and not limited to an estimate of shipping, duties, tariffs, taxes and any fees related to extended warehousing at the receiving port). If payment is not made within seven (7) business days, a late fee in the amount of 1% of the balance will be charged for each thirty (30) days that the payment is overdue. If payment of the remaining balance is not timely made, it is within Contempo’s sole discretion to change the delivery period.
2.5 Overruns/Underruns. Purchaser agrees to pay for commercially acceptable levels of +/- 10% over/under runs.
2.6 Acceptance of Products. Purchaser will inspect each delivery upon receipt to verify that the correct products and quantities were delivered and to verify that no damage occurred during shipment. Purchaser will report all discrepancies and damage to Contempo within three (3) business days. The products shipped will be deemed accepted by Purchaser unless notice of defect is received by Contempo within three (3) business days of delivery. Purchaser will only reject the products if an incorrect product is shipped or if the product is deemed commercially unacceptable by Contempo. A variation of color between press approval and completed printing job is commercially acceptable. Purchaser’s sole remedy to products deemed defective by Contempo, and Contempo’s exclusive obligation is to repair the defective product or replace it with an equivalent unit in accordance with the Agreement.
2.7 Return of Items. Except as stated in Section 2.6 entitled “Acceptance of Products”, returns are not accepted for custom items. If Purchaser desires to return stock items, it must notify Contempo within five (5) business days of the delivery and Purchaser agrees to be responsible for any freight charges associated with that return. Purchaser may not return goods to Contempo without documentation and written consent by Contempo. If Contempo has authorized a return and requested the products in question to be returned, specifically for quality defects including manufacturing and in transit defects, Purchaser must provide Contempo with a Return Merchandise Authorization Form within three (3) business days of receipt of the return authorization from Contempo and the products in question are returned to Contempo within thirty (30) days of delivery. The returned products must be returned to Contempo undamaged and in the exact same form that the products were shipped. Contempo is not liable for any claims or credits for products returned or scrapped by the Purchaser without Contempo’s consent. Contempo is also not liable for products that are accepted by Purchaser but returned to Contempo damaged or not in the same form that the products were shipped to Purchaser. Purchaser agrees to a restocking fee of 10% of the total costs of goods for returned stock items and Purchaser also agrees to pay for freight associated with that return. Contempo will issue a credit due to Purchaser once Contempo has received the return of products and confirmed products are in their original condition.
3.1 Purchaser Artwork. Artwork will be supplied by the Purchaser in a format agreed upon by the parties (“Purchaser Artwork”).
3.2 Custom Artwork and Alterations. Purchaser agrees to pay art fees for creative services rendered in association with Custom Artwork or alterations, at the then current rate. All Custom Artwork or alterations remains the property of Contempo, unless otherwise agreed upon by the parties.
3.3 Contempo Logo. Contempo reserves the right to imprint its logo or other distinguishing marks on all films, die lines, molds or printed materials.
4.1 FOB Shipping. The Purchaser agrees that it takes delivery of the products once the Products are shipped from Contempo to the customer.
4.2 Delivery Period/Lead Time. The agreed delivery period and dates are binding on the Purchaser. The lead time begins when the Purchase Order is accepted by Contempo and a deposit is received by Contempo, as applicable.
4.3 Delivery Delay on Behalf of Purchaser. In the event that Purchaser requests a delivery delay, the Purchaser will notify Contempo in writing. It is within Contempo’s sole discretion to alter the delivery date at the request of Purchaser. Even if the delivery date is altered at the request of Purchaser, deadlines as to Purchaser’s payment obligations are not altered. Purchaser agrees to pay any additional costs or fees incurred by Contempo as a result of the modification. If Purchaser’s failure to comply with its obligations under this Agreement causes a delivery delay, Contempo is not in default.
4.4 Delivery Delay on Behalf of Contempo. In the event of a delivery delay on behalf of Contempo, Contempo will notify the Purchaser in writing of the delay. Contempo is not liable to Purchaser for delays of delivery.
4.5 Warehouse and Storage Fees. If the Purchase Order specifies that the products are to be delivered to Contempo’s warehouse, unless agreed to otherwise, Purchaser will be charged at current rates advised by Contempo. Within three (3) business days of Contempo receiving written notice that Purchaser desires to take possession of products, Contempo will provide Purchaser with an invoice as to all additional outstanding fees, not limited to warehousing fees, product costs, shipping, duties, taxes, and transport insurance associated with the transfer of the property. Purchaser must pay this invoice within five (5) business days prior to Contempo shipping the goods requested. Contempo is under no obligation to deliver the products until Purchaser has paid for all storage fees, costs, shipping, duties, taxes, and transport insurance associated with the transfer of the products. Contempo is not responsible for any costs, fees or damages incurred by Purchaser as a result of Purchaser’s failure to timely pay.
5.1 Need to Exchange. The Parties acknowledge that they may disclose Confidential Information (defined below) during the course of the engagement. Each Party will use the same care and discretion, but in no event less than reasonable care and discretion (reasonable care and discretion includes complying with any applicable data privacy laws), to prevent disclosure, publication, or dissemination of the other Party’s Confidential Information as it employs with its own Confidential Information; and will not use, reproduce, distribute, disclose, or otherwise disseminate the Confidential Information for any purpose other than and as to the extent expressly permitted under this Agreement or as may be reasonably necessary for the exercise of its rights or in connection with the performance of its obligations under this Agreement.
5.2 Definition of Confidential Information. Each Party may, in its capacity as a receiving Party (“Receiving Party”), disclose Confidential Information of the disclosing Party (“Disclosing Party”) to: the Receiving Party’s accountants, internal and external auditors, legal counsel and other professional advisors (collectively, “Professional Advisors”) if, and to the extent that such persons need to know the Confidential Information to provide applicable professional advisory services relating to the Receiving Party’s business, on condition that such persons are made aware before such disclosure of the confidential nature of the Confidential Information and have agreed in writing to hold the Confidential Information of the Disclosing Party in confidence under terms that are at least as stringent as the terms of this Section 5 or, in the case of Professional Advisors, a duty of confidence exists between the Receiving Party and such person; and a governmental authority if and to the extent required by the governmental authority, on condition that, to the extent permitted by applicable law, before disclosing such Confidential Information, the Receiving Party must use reasonable efforts to promptly notify the Disclosing Party of the required disclosure in writing, in any event at least thirty (30) days before disclosure, and, at the disclosing Party’s cost and expense, cooperate with the Disclosing Party to take such steps as it desires to challenge or contest such disclosure or seek a protective order.
5.3 Confidential Information means any and all information relating to the business of the Disclosing Party, whether or not explicitly marked as confidential, including without limitation, information and data which related to the website application(s), research, product plans, products, services, current or contemplated trademarks and other intellectual property, clients, customers, markets, software, developments, inventions, processes, designs, drawings, engineering, hardware configuration information, marketing or finances of the Disclosing Party.
5.4 Not Confidential Information. Information is not be considered Confidential Information under this Agreement if such information: was already known to the Receiving Party, has become generally known to the public through no wrongful act of the Receiving Party; has been rightfully received by the Receiving Party from a third party without confidentiality or disclosure restrictions; is furnished to a third party by the Disclosing Party hereunder without restrictions on the third party’s right to disclose the information; or is independently developed by the Receiving Party without use, directly or indirectly, of the Confidential Information received from the other Party hereto. The Receiving Party bears the burden of demonstrating the applicability of Sections 5.4(i)-(v) through written, contemporaneous documentation.
5.5 Notification Obligation. In any event, upon learning of any unauthorized disclosure or use of the Disclosing Party’s Confidential Information by the Receiving Party, the Receiving Party will notify the Disclosing Party within three (3) business days and cooperate fully with the Disclosing Party to protect the Disclosing Party’s Confidential Information.
6.1 Purchaser’s Intellectual Property. Purchaser may provide Contempo with Purchaser’s own and/or a third party’s written content, materials, trade or service marks, trade dress, images, illustrations, likenesses, voices, graphics, multimedia files and/or text, photographs, video, pictures, sound recordings, computer programs, and other works of authorship and information or Custom Artwork paid for by Purchaser (the “Purchaser Content”). Purchaser or its third-party licensors will retain or be granted all right, title and interest (including copyright and other proprietary or intellectual property rights) in the Purchaser Content.
6.2 Contempo’s Intellectual Property. Contempo retains all right, title and interest (including copyright and other proprietary or intellectual property rights) in any materials owned by Contempo, which include, without limitation, data, information, packaging designs developed for Purchaser, trademarks, images, illustrations, graphics, multimedia files and/or text, and any derivative works thereto, as well as any and all materials independently developed at any time without use of Purchaser Content. Unless agreed otherwise in writing, Contempo owns all IP related to development created for Purchaser and the IP will not be considered a work for hire.
6.3 Intellectual Property of Purchaser Molds. Unless specifically stated otherwise in writing, Contempo retains all right, title and interest (including copyright and other proprietary or intellectual property rights) in the molds and any property or method created by or on behalf of Contempo pursuant to this Agreement.
7.1 Non-Solicitation and Non-Poaching. Purchaser agrees, on it’s behalf and on behalf of any third party engaged by it, during the term of this Agreement and for a period of 24 months, not to solicit any of Contempo’s employees, suppliers or other strategic partners introduced by Contempo to leave the employment or use the services of the suppliers or other strategic partners without the prior written consent of Contempo,
8.1 Representation. Purchaser represents and warrants that its use of the products purchased from Contempo will only be used and sold in compliance with all legal and regulatory requirements.
8.2 Warranties. No representations, understandings, guarantees, or warranties, whether express or implied, are made by Contempo except as those contained in this Agreement or in the Purchase Order are binding on Contempo.
8.3 Sterilization and Sanitation. Contempo does not offer sterilization or sanitation services for any of its products. Contempo is not required or responsible for sterilization or sanitation of any products, including but not limited to, glass or plastic packaging containers. It is the Purchaser’s sole responsibility to sterilize and sanitize products.
8.4 Exclusive Warranties. CONTEMPO MAKES NO WARRANTIES WHETHER EXPRESS OR IMPLIED WITH REGARD TO THE PRODUCT. ALL IMPLIED WARRANTIES OR FITNESS OR MERCHANTABILITY FOR A PARTICULAR PURPOSE ARE HEREBY EXPRESSLY DISCLAIMED. ALL IMPLIED WARRANTIES AGAINST INFRINGEMENT ARE HEREBY EXPRESSLY DISCLAIMED.
8.5 Component Materials. CONTEMPO HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, WITH RESPECT TO THIRD PARTY COMPONENTS, PARTS OR MATERIALS THAT ARE USED WITH THE PRODUCTS.
8.6 Limited Liability. THE LIABILITY OF CONTEMPO, WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE PRICE OF THE PRODUCTS ONLY (EXCLUDING ANY ADDITIONAL COSTS AND FEES SUCH ASSHIPPING, DUTIES, TARIFF, AND TAXES) IN THE APPLICABLE PURCHASER ORDER FOR WHICH CONTEMPO’S LIABILITY IS CLAIMED, AND IN NO EVENT WILL CONTEMPO BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE, WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE, THAT ARISE IN CONNECTION WITH THE PRODUCTS OR IN CONNECTION WITH EITHER CONTEMPO’S FAILURE TO DELIVER OR ITS LATE DELIVERY OF THE PRODUCTS (INCLUDING, BUT NOT LIMITED TO, LOSS OF USE OF THE PRODUCTS AND LOSS OF PROFITS).
8.7 Acknowledgment. PURCHASER ACKNOWLEDGES THAT THE REMEDIES PROVIDED HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REMEDIES AVAILABLE TO PURCHASER AT LAW OR IN EQUITY.
8.8 Limitation on Deductions. Purchaser hereby agrees that, in making any and all payments to Contempo under the terms of the Agreement, no deductions for warranty or any such other claims against Contempo will be made unless Purchaser receives prior approval of the validity of such a claim from Contempo.
9.1 Indemnity. Purchaser will release, protect, defend, indemnify and hold harmless Contempo, its affiliated companies, co-venturers and invitees, and the directors, officer, employees, agents, representatives and underwriters from and against any and all claims, demands, causes of action and lawsuits of every kind and character brought against any of them by any third party for personal injury, death or loss of, damage to property, violations of Federal or State laws and regulations, or infringement of the intellectual property rights of a third party arising out of or in any way directly or indirectly related to the use of the products by Purchaser, in each case except to the extent caused by the gross negligence or intentional misconduct of Contempo.
9.2 Contempo Indemnity. Contempo shall defend, indemnify and hold Purchase and its parent companies, subsidiaries, affiliates, officers, directors, employees, agents and representatives harmless from any and all claims, demands, liabilities, actions, suits, proceedings, losses, injuries and death, including damages, judgments, expenses and/or costs (including without limitation reasonable attorneys’ fees and related costs) based on or arising out of: (i) any claims or demands relating to the design of the products as provided by Contempo; (ii) any claims or demands relating to Contempo’s negligence, use, ownership, maintenance, transfer, transportation or disposal of the products; (iii) any claims or demands of Contempo’s violation or alleged violation of any federal, state, or local laws or regulation; or (iv) any claims or demands arising out of a breach by Contempo of any of the terms and conditions of this Agreement.
9.3 Purchaser Indemnity. Purchaser shall defend, indemnify and hold Contempo and its parent companies, subsidiaries, affiliates, officers, directors, employees, agents and representatives harmless from any and all claims, demands, liabilities, actions, suits, proceedings, losses, injuries and death, including damages, judgments, expenses and/or costs (including without limitation reasonable attorneys’ fees and related costs) based on or arising out of: (i) any claims or demands that use of any Purchaser Artwork violates another intellectual property rights; (ii) any claims or demands relating to Purchaser’s negligence, use, ownership, maintenance, transfer, transportation or disposal of the products; (iii) any claims or demands related to Purchaser’s violation or alleged violation of any federal, state, or local laws or regulation; (iv) any claims of patent, trademark, or copyright infringement where Purchaser is using Contempo’s information not in conformance with this Agreement; or (v) any claims or demands arising out of a breach by Purchaser of any of the terms and conditions of this Agreement.
10.1 Force Majeure. Except for Purchaser’s payment obligations to Contempo, neither Party will be in default in the performance of its obligations under the Agreement if such performance is prevented or delayed because of war, hostilities, revolution, civil commotion, riot, strike, labor dispute, lack or failure of transportation facilities, epidemic, pandemic, fire, wind, earthquake, storm or flood, use of any law, order, proclamation, regulation or ordinance of any government, or of any subdivision thereof, because of Acts of God or for any other cause, whether similar or dissimilar to those enumerated, that is beyond the reasonable control and without the fault or negligence of the Party whose performance is affected (any such act is hereinafter called “Force Majeure”).
10.2 Notice of Event of Force Majeure. In each instance of Force Majeure, the Party whose performance is affected will give the other Party written notice thereof no later than fourteen (14) days after having knowledge of the circumstances of Force Majeure or as soon as circumstances otherwise permit. Such notice will include a brief description of the events or circumstances constituting Force Majeure and an estimate of the anticipated delay in performance caused thereby. Not later than fourteen (14) days after knowledge of the cessation of any such continuing events or of circumstances constituting Force Majeure, the Party whose performance was affected will give the other Party written notice of the date of such cessation.
11.1 Entire Agreement. This Agreement and applicable Purchase Orders contain the entire understanding between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous written or oral negotiations and agreements between them regarding the subject matter hereof. The Agreement may be amended only by a writing signed by both of the parties.
11.2 Notice. All notices will be in writing and will be deemed to be delivered when received by certified mail, postage prepaid, return receipt requested, or when sent by facsimile, or e-mail with read receipt requested. All notices sent by certified mail will be directed to the parties at the respective addresses given above or to such other addresses as either Party may, from time to time, designate by notice to the other Party.
11.3 Severability. Any provision of this Agreement that is deemed invalid, illegal or unenforceable in any jurisdiction will be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining provisions hereof in such jurisdiction or rendering that or any other provision of this Agreement invalid, illegal or unenforceable in any other jurisdiction. If any covenant should be deemed invalid, illegal or unenforceable because its scope is considered excessive, such covenant will be modified so that the scope of the covenant is reduced only to the minimum extent necessary to render the modified covenant valid, legal and enforceable.
11.4 No Implied Waivers. The failure of either Party at any time to require performance by the other Party of any provision hereof will not affect in any way the right to require such performance at any later time nor will the waiver by either Party of a breach of any provision hereof be taken or held to be a waiver of such provision.
11.5 Governing Law. This Agreement is governed in all respects by the laws of the State of Rhode Island, without regard to its conflict of laws provisions. Purchaser hereby expressly consents to the personal jurisdiction of the state and federal courts located in Providence County, Rhode Island for any lawsuit arising from or related to this Agreement.
11.6 Assignment. Contempo may assign its rights, duties or obligations under this Agreement to any person or entity, in whole or in Party, without the prior written consent of the Purchaser. Purchaser may not assign its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, without the prior written consent of Contempo. This Agreement is binding upon and inure to the benefit of the successors and assigns of the parties hereto.
11.7 Termination. Contempo may terminate this Agreement at any time.
11.8 Review. The parties hereby acknowledge that they have read this Agreement carefully, that they have been afforded sufficient time to understand the terms and effects of it, and that they, in fact, fully understand all of the terms and effects of it, and that they have had sufficient time to consult legal counsel, and they are voluntarily entering into and executing this Agreement.
11.9 Authority. The parties represent and warrant as to themselves that they have the power and authority to enter into this Agreement and that the execution, delivery and performance of this Agreement has been duly authorized by all necessary action.
