Young Living Essential Oils, LC Terms and Conditions Of Purchase
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Except as set forth below, these Terms and Conditions of Purchase (the “Terms”) are applicable to this Purchase Order (as further defined below, the “PO”) issued by Buyer, regardless of whether the Terms are attached to the face of the PO (the “PO Face”), posted on Buyer’s website, or delivered separately, and shall be deemed to have been irrevocably accepted by Seller upon the earliest of Seller’s (a) acceptance of this PO as set forth below, (b) shipment or delivery of a Good, or (c) acceptance of any payment made by Buyer for a Good; provided, however, that Buyer shall not be obligated to pay the Prices for Goods until Seller has indicated its acceptance of this PO as set forth below. Notwithstanding the foregoing, if Buyer and Seller have executed and delivered a specific agreement governing the purchase and sale of the Goods (a “Specific Agreement”), the Specific Agreement shall govern if there is any conflict between the Terms and the Specific Agreement.
Seller shall accept or reject this PO within three business days (defined below) after receipt by delivering a notice of acceptance or rejection to Buyer. Seller shall include a reference to the PO number in its notice of acceptance (the “Acceptance Notice”). If Seller fails to issue the Acceptance Notice within three business days or otherwise commences performance under this PO, Seller will be deemed to have accepted this PO.
Seller shall accept or reject this PO within three business days (defined below) after receipt by delivering a notice of acceptance or rejection to Buyer. Seller shall include a reference to the PO number in its notice of acceptance (the “Acceptance Notice”). If Seller fails to issue the Acceptance Notice within three business days or otherwise commences performance under this PO, Seller will be deemed to have accepted this PO.
A. Certain Definitions.
“PO” means the Terms together with the details (the “Specific Details”) contained on the PO Face. “Delivery Date,” “Delivery Location,” “Prices,” and all other words or phrases included in the Specific Details have the meanings set forth therein, and “Goods” includes all materials, equipment, systems, and goods described in the PO or otherwise delivered to Buyer; “Buyer” means the buyer described on the PO Face; “Seller” means the seller described on the PO Face; and other capitalized terms shall have the meanings defined herein or in Section 17.1.
B. Goods
1. Warranty on Goods. In addition to any warranties contained in the Specific Details, Seller warrants to Buyer that (the “Warranty”): (a) for the period provided by applicable Law, the Goods will (i) conform to Buyer’s specifications and metrics, or if none are given, to samples thereof; (ii) be merchantable (as such term is defined in the Uniform Commercial Code, as adopted in the State of Utah) and free from defects in design, materials, and workmanship; (iii) not, and the use thereof for the particular purpose for which such Goods are ordinarily used will not, infringe upon, misappropriate, or otherwise violate the intellectual property rights or other rights of any Person; (iv) be fit and sufficient for the particular purpose for which such Goods are ordinarily used; (v) comply with all applicable Laws; (vi) not be counterfeit, adulterated, misbranded, or falsely labeled or advertised within the meaning of any applicable Law; and (vii) be produced, manufactured, assembled, and packaged in compliance with all Laws; and (b) each Good will be new and conveyed by Seller to Buyer with good title, free and clear of all encumbrances and liens. The foregoing warranties shall survive any inspection, delivery, acceptance, or payment by Buyer, but shall not apply to consumable items attached to or used in conjunction with Goods.
2. Inspection and Audit. Buyer shall have a reasonable period of time following delivery of the Goods to the Delivery Location (“Inspection Period”), to inspect all Goods and to inform Seller of Buyer’s rejection of any Goods that (a) do not conform to the description listed in the Specific Details or Buyer’s specifications or metrics; (b) on visual inspection, Buyer determines are otherwise defective or not in compliance with the Warranty; or (c) exceed the quantity of Goods stated in the Specific Details (any such Goods, “Nonconforming Goods”). If Buyer rejects any Nonconforming Goods, Buyer may elect to (i) require Seller, at Seller’s sole cost, to repair or replace the rejected Goods, (ii) purchase similar goods from another source and require Seller to (A) remove the Nonconforming Goods and (B) reimburse Buyer for the price paid for the replacement goods if the prices of the replacement goods exceed the Price of the Nonconforming Goods), (iii) repair the Nonconforming Goods itself or have a third party repair the Nonconforming Goods (and require Seller to reimburse Buyer’s reasonable and documented costs and expense in connection therewith), or (iv) retain the rejected Goods; in each case without limiting the exercise by Buyer of any other rights available to Buyer under the Terms or pursuant to applicable Law. All returns of Nonconforming Goods to Seller are at Seller’s sole risk and expense. Buyer’s acceptance of any Goods will not be deemed a waiver or limitation of Seller’s obligations pursuant to the Terms (or any breach thereof), including those obligations with respect to Seller’s Warranty and Seller’s duty to indemnify Buyer. Seller agrees that its plant, or such parts thereof as may be engaged in the performance of this PO shall be subject to inspection by Buyer and its authorized representatives during normal business hours.
3. Cancellation of the PO. Seller may not cancel this PO once accepted. Buyer may cancel this PO prior to Seller’s delivery of its Acceptance Notice. Buyer may terminate work under this PO in whole or in part at any time upon notice to Seller in writing. Seller will thereupon immediately stop work on this PO or the terminated portion thereof and notify its subcontractors to do likewise. Except where such termination is caused by a default or delay of Seller, Seller shall be entitled to reimbursement for its actual costs incurred up to and including the date of termination.
4. Changes to the PO. Buyer may, at any time and from time to time, by PO amendment issued to Seller: (a) make changes in shipping and packing instructions; (b) increase or decrease the quantity of Goods ordered; (c) change the drawings, specifications, samples or other written descriptions; (d) issue a suspension of work order; (e) make changes in the delivery schedule. If such changes cause an increase or decrease in the amount of work hereunder or in the cost of performance, or in the time required for performance, an equitable adjustment shall be made in the contract price and/or the delivery schedule and the PO shall be amended in writing accordingly. Any claims for adjustment under this clause must be asserted within sixty (60) days from the date of the PO amendment. Failure of Seller to make written notice thereof shall, upon expiration of the sixtieth (60) day, be construed as a waiver for any such adjustment. All Goods covered hereunder shall be manufactured in accordance with this PO unless a change thereto is subsequently authorized by a written PO amendment issued by Buyer.
5. Shipment and Delivery.
5.1 Packaging and Notices. All Goods shall be packed by Seller in suitable containers or boxes for protection to permit safe transportation and handling. No charge shall be made by Seller for packaging unless expressly provided for on this PO. For each shipment of Goods, Seller shall provide Buyer sufficient advance warning and notice of any hazardous or restricted material that is contained in a Good or a part of the shipment, together with such special handling instructions. Upon shipment of a Good, Seller shall notify Buyer of the shipment date, carrier, and bill of lading/tracking number. All packages must include a packing slip stating the PO number and quantities shipped, with copies of such packing slip to be delivered to Buyer via electronic mail immediately after such PO has been shipped. (collectively, the “Shipment Information”).
5.2 F.O.B, Title and Risk of Loss. The F.O.B. point shall be the origin (or such other location as Seller and Buyer may have previously agreed upon in writing), and Seller shall bear all risk of loss or damage to the Goods to that point. Title in the Goods shall shift to Buyer upon acceptance of the Goods, which Seller shall deliver to Buyer free of any liens or encumbrances.
6. Prices and Payment. Invoices showing higher costs than printed on this PO will be subject to delay and further review. Price changes must be approved in advance by the Buyer in writing. Seller shall issue an invoice to Buyer for all Goods ordered by Buyer setting forth in reasonable detail the amounts payable by Buyer under the PO and contain: (a) the PO number, (b) the line-item number, if applicable; (c) Seller’s name; and (d) a copy of the applicable Shipment Information. A variation of plus or minus ten percent (+/-10%) from the PO quantity may be invoiced and will be accepted by Buyer based upon the actual amount delivered. Buyer must give Seller written notice within thirty (30) days after shipment date of Goods not received as part of the shipment but for which Seller invoices Buyer. Buyer may withhold and offset payment due to any invoices or related documents that Buyer disputes in good faith or that are incorrectly submitted to Buyer. Buyer shall pay to Seller the prices set forth on this PO net 30 (or such other payment term as Seller and Buyer may have previously agreed upon in writing) of Buyer’s receipt of the invoice. Any sums payable by Buyer to Seller shall be subject to all claims and defenses of Buyer, whether arising from this or any other transaction, and Buyer may set off and deduct against any such sums all present and future indebtedness of Seller to Buyer. Buyer shall not be obligated to pay any amount set forth in an invoice delivered more than 180 days after the date on which the Goods referenced in the invoice were delivered. Buyer shall not be liable for any federal, state or local taxes unless separately stated on the PO.
7. Advance Manufacture and Shipments. Unless otherwise previously agreed upon by Buyer and Seller in writing, Seller shall not manufacture in advance of Seller’s normal flow time or deliver any material in advance of the schedule set forth in this PO without Buyer’s prior written consent.
8. Duty to Advise. Seller shall promptly provide notice to Buyer of any of the following events or occurrences or any facts or circumstances reasonably likely to give rise to any of the following events or occurrences and Seller’s proposed actions for addressing such events or circumstances: (a) any delay in delivery of Goods; or (b) any defects or quality problems relating to Goods.
9. Compliance. Seller covenants that it shall comply with all applicable federal, state and local laws, regulations and rules, including without limitation those regarding occupational safety and health, and employment, and cosmetics, aromatics, and dietary supplements and California Prop 65 in connection with all Goods.
9.1 FCPA and Anti-Corruption Laws. Seller acknowledges that Buyer is a U.S. entity and has a substantial presence and affiliation in the U.S. and, as such, is subject to the provisions of the U.S. Foreign Corrupt Practices Act of 1977 (FPCA), which among other things, prohibits the making of corrupt payments. Under the FCPA, it is unlawful to directly or indirectly pay or to offer to pay anything of value to foreign government officials or employees or political parties or candidates in order to obtain or retain business or to secure an improper commercial advantage. Seller may be subject to additional anti-corruption laws, including the UK Anti-Bribery Act and local anti-corruption laws. Seller represents and warrants that it is familiar with the provisions of the FCPA and other applicable anti-corruption laws, and hereby agrees that it will not take or permit any action which will either constitute a violation under, or cause the Buyer or its affiliates to be in violation of, the FCPA or any applicable anti-corruption laws. Seller agrees to immediately notify Buyer of any potential violation of law.
9.2 CITES and Lacey Act Compliance.Seller acknowledges that certain Goods to be provided under this PO may be covered by plant-sourcing restrictions under international, foreign, and domestic laws, including but not limited to: the Convention on International Trade of Endangered Species (CITES), the United States Endangered Species Act (ESA), the United States Lacey Act and similar laws of the country of origin that govern the harvest, transport, processing, trade, or import/export of plants and plant products (collectively referred to as “Plant-Sourcing Restrictions”). Seller shall comply with all applicable Plant-Sourcing Restrictions in performance of this PO. Seller represents and warrants that none of the Goods provided under this PO were harvested, obtained, transported, processed, traded, or imported/exported in violation of any Plant-Sourcing Restrictions. Seller shall provide with each shipment of a CITES-listed plant, or non-CITES-listed plant or plant product as requested, a Certificate of Analysis, signed by the Seller, identifying scientific and physical parameters of the product, including origin information. Seller shall not import, export, or re-export, directly or indirectly, any plants or plant products or undertake any transaction in violation of any Plant-Sourcing Restrictions. Seller agrees to obtain and maintain applicable permits and other authorizations and supply chain documentation to demonstrate compliance with Plant-Sourcing Restrictions including for the export, re-export, or import of plants and plant products, and provide such documentation to Buyer as requested. Seller agrees to cooperate with Buyer in responding to any government inquiries regarding compliance associated with Plant-Sourcing Restrictions for Seller-provided Products. Seller agrees to immediately notify Buyer of any potential violation of Plant-Sourcing Restrictions.
9.3 Trade Sanction Laws. For any Goods or work within the scope of this PO, Seller agrees not to enter or maintain contracts, subcontracts, agreements, or other formal or informal business relationships with countries, companies, or individuals that would violate U.S. trade sanction laws. This includes any party listed on the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons, the U.S. Commerce Department’s Denied Persons List, Unverified List, Entity List, or Nonproliferation Sanctions List, or the similar lists of the United Nations or the World Trade Organization. Seller agrees to immediately notify Buyer of any potential violation of law.
9.4 Supplier Code of Conduct. With regard to the Goods supplied under this PO, Seller acknowledges and agrees to comply with Buyer’s policies and requirements for suppliers and their subcontractors as set forth in Buyer’s Supplier’s Compliance Manual and Supplier Code of Conduct, which manuals have been or soon will be provided to Seller by Buyer, and which Buyer may amend from time to time.
9.5 Toxics in Packaging Reduction Laws. Seller guarantees that packaging and packaging components manufactured and/or supplied to Buyer, and delivered to Buyer on or after January 1, 1992, do not contain lead, cadmium, mercury, or hexavalent chromium that has been intentionally introduced during manufacturing or distribution of said package or packaging components. Should incidental levels of lead, cadmium, mercury, or hexavalent chromium be present, these levels conform with allowable limits prescribed by all applicable federal, state, and local laws, regulations, and rules.
10. Permits, Licenses, and Authorizations. Seller shall obtain and maintain all permits, licenses, franchises, approvals, authorizations, registrations, certificates, variances, and similar rights obtained or required to be obtained, from any governmental authority necessary for the exercise of its rights and performance of Seller’s obligations hereunder.
11. Withdrawal or Recall of Goods. If any Goods sold to Buyer are Nonconforming Goods and a recall campaign is necessary, Buyer may implement such recall campaign and return defective Goods to Seller or destroy such Goods, as determined by Buyer in its reasonable discretion, at Seller’s sole cost and risk. If a recall campaign is implemented, at Buyer’s option and Seller’s sole cost, Seller shall promptly replace any defective Goods and provide such replacement Goods to Buyer or Buyer’s designee. Seller will be liable for all of Buyer’s costs associated with any recall campaign (including Buyer’s expenses associated with determining whether a recall campaign is necessary) if such recall campaign is based upon a determination that the Goods fail to conform to the warranties set forth hereunder. Seller shall notify Buyer immediately of any event or occurrence that could necessitate the need to recall the Goods together with supporting information concerning the degree to which the basis for such action relates to any Goods.
12. Intellectual Property; Confidentiality and Non-Use. Seller agrees that all drawings, formulas, specifications, samples and/or written disclosures forming a part of this PO (whether previously provided or provided for the first time hereunder), either by reference or otherwise, are the property of Buyer and its assigns and are submitted in confidence with the understanding and agreement by Seller that such drawings, specifications, samples, and/or written disclosures shall not be disclosed to any third parties or utilized (except for the limited purposes contemplated by this PO), in whole or in part, by Seller, either for itself or by it on behalf of any other person, firm or corporation, without the prior written consent of Buyer. Seller expressly acknowledges that it has no, and by virtue of this PO shall receive no, right, title, or interest in and/or to any intellectual property or other proprietary rights related to the Goods except as otherwise agreed by the parties in writing. To the extent Seller incorporates into any Goods any intellectual property rights of a third party, Seller hereby grants to Buyer a perpetual, irrevocable, nonexclusive, worldwide, royalty free right and sublicense to use such intellectual property rights solely to the extent necessary to use such Goods. To the extent Seller incorporates into any Goods any intellectual property rights of Seller, Seller hereby grants to Buyer a perpetual, irrevocable, nonexclusive, worldwide, royalty free right and license to use such intellectual property rights solely to the extent necessary to use such Goods.
13. Default. Seller shall be in default under this PO if (1) Seller is in breach of, or threatens to breach, any representation, warranty or covenant of Seller hereunder and either the breach cannot be cured or, if the breach can be cured, it is not cured by Seller within a commercially reasonable period of time under the circumstances, in no case exceeding 30 days following Seller’s receipt of notice of such breach, (2) Seller fails to, or threatens not to, timely deliver Goods conforming to the requirements of, and otherwise in accordance with, the Terms (except to the extent Seller is paying liquidated damages therefor as required by Section 14); or (3) Seller fails to provide Buyer, within a commercially reasonable time after Buyer’s request (but in no case exceeding five days after such request) with adequate and reasonable assurance of Seller’s financial and operational capability to perform timely any of Seller’s obligations hereunder. Subject to Section 14, upon a default under this PO, Buyer shall be entitled to (a) suspend some or all of its performance under this PO, (b) cancel the affected Goods without paying a return charges claim, (c) terminate this PO and have no further obligation under this PO to Seller, and (d) declare all or part of Seller’s obligations to Buyer under this PO immediately due. Buyer may set off against all amounts Buyer owes Seller all amounts Seller owes Buyer.
14. LIQUIDATED DAMAGES. DAMAGES TO BUYER CAUSED BY SELLER’S FAILURE TO COMPLY WITH THE DELIVERY DATES ARE DIFFICULT TO ASCERTAIN. ACCORDINGLY, LIQUIDATED DAMAGES MAY BE SET FORTH IN THE PO, AND SUCH LIQUIDATED DAMAGES (1) REPRESENT A FAIR, REASONABLE, AND PROPORTIONATE APPROXIMATION OF BUYER’S DAMAGES CAUSED THEREBY AND DO NOT CONSTITUTE A PENALTY, AND (2) SHALL BE THE SOLE DAMAGES AVAILABLE TO BUYER FOR SELLER’S FAILURE TO COMPLY WITH THE DELIVERY DATES, BUT THE LIQUIDATED DAMAGES SHALL NOT PRECLUDE BUYER’S EXERCISE OF (A) OTHER NON-MONETARY REMEDIES THAT MAY BE AVAILABLE FOR SUCH DEFAULT, INCLUDING TERMINATION OF THE PO IF SELLER SUSPENDS PAYMENT OF LIQUIDATED DAMAGES OR A CAP ON LIQUIDATED DAMAGES HAS BEEN MET, EQUITABLE RELIEF, OR A REQUEST FOR ADEQUATE ASSURANCE, OR (B) ANY REMEDIES (MONETARY OR OTHERWISE) AVAILABLE FOR OTHER DEFAULTS THAT OCCUR CURRENTLY WITH, BEFORE, OR AFTER SUCH DEFAULT.
15. Indemnification. Seller shall indemnify, defend and hold harmless the Buyer Parties (collectively, “Buyer Indemnified Parties”) against any and all losses, damages, liabilities, deficiencies, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, incurred by any Buyer Indemnified Party (collectively, “Losses”), including as a result of a third-party Claim against a Buyer Indemnified Party, to the extent the Losses arise out of (a) a negligent or wrongful act, error, or omission of, or a breach of the representations, warranties, or covenants hereunder by, Seller or its Representatives; (b) any bodily injury, death, or damage to property directly or indirectly caused by Seller or its Representatives; (c) manufacturing, suppling, or handling of the Goods prior to delivery thereof; or (d) any allegation that any of the following violates applicable Laws or infringes, misappropriates or otherwise violates any intellectual property right or other right of any Person: (i) intellectual property rights of Seller, (ii) the use of intellectual property rights of Seller in the production of the Goods (or otherwise embodied in the Goods), or (iii) the Goods or the use thereof for the purpose for which such Goods are ordinarily used, except in all cases to the extent such Claims result directly from the Buyer Indemnified Party’s or its Personnel’s negligence, willful misconduct, or a breach of the representations, warranties, or covenants hereunder by, the Buyer Indemnified Party or its Representatives.
15.1.Effect of Insurance. The obligations of this Section 15 shall apply regardless of the amount of insurance coverage held by Seller, and shall be both independent of and not limited by or to any insurance carried or provided by Seller pursuant to the Terms or otherwise.
15.2 No Liability for Consequential or Indirect Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, EXCEPT TO THE EXTENT LIABILITY ARISES FROM A PARTY’S (a) BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (b) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (c) IN THE CASE OF SELLER AS THE LIABLE PARTY, (i) INTELLECTUAL PROPERTY INFRINGEMENT BY THE GOODS OR (ii) INDEMNIFICATION OBLIGATIONS HEREUNDER IN CONNECTION WITH A THIRD PARTY CLAIM.
16. Miscellaneous.
16.1 Further Assurances. Upon Buyer’s reasonable request, Seller shall, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, necessary to give full effect to the Terms.
16.2 Relationship of the Parties. . The relationship between Seller and Buyer is solely that of vendor and vendee and they are independent contracting parties. Nothing in the Terms creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the Parties.
16.3 Entire Agreement; Order of Precedence. The Terms and the Specific Agreement contain the entire understanding between the Parties with respect to the subject matter of the PO and supersedes and replaces all previous negotiations, understandings and writings relating to the subject matter hereof. If a conflict exists among the terms and conditions contained in the Terms, and the Specific Details, the Specific Details shall control. If a conflict exists between the Specific Details and the Terms available on Buyer’s website as of the date of the PO, the Terms available on Buyer’s website shall control. If any additional or different terms or conditions are contained in any documentation provided by Seller, such as a Seller prepared proposal, bid, quotation, Acceptance Notice, bill of lading, or receipt (“Seller’s Proposed Terms”), the PO shall control regardless of when Seller’s Proposed Terms are received by Buyer unless Buyer agrees in writing to any of Seller’s Proposed Terms; otherwise, Buyer rejects Seller’s Proposed Terms. If a conflict exists between the PO and the Specific Agreement, the Specific Agreement shall control.
16.4 Notices. All notices, requests, consents, claims, demands, waivers, and other communications under the PO shall be sufficient in all respects if given in writing and delivered to the other Party at its address set forth in the Specific Details (or to such other address that the receiving Party may designate from time to time in accordance with this section) in person, by email, by overnight courier, or by certified mail, postage prepaid, return receipt requested. Notice shall be deemed given, delivered, and received on the earlier of the date of delivery, in the case of personal delivery or email, or on the delivery or refusal date, as specified on the return receipt in the case of certified mail or on the tracking report in the case of overnight courier.
16.5 Headings. The headings in Terms are for reference only and do not affect the interpretation of the Terms.
16.6 Severability; If any provision of this PO shall be held void or unenforceable, the remaining provisions shall remain in full force and effect. This PO may be altered, amended, or revoked only by issuance of a new PO or written change order issued by Buyer that specifies the Section or Specific Details of the Terms to be altered or amended. No waiver under the Terms is effective unless it is in writing and signed by an authorized representative of the Party waiving its right.
16.7 Cumulative Remedies. All rights and remedies provided hereunder are cumulative and not exclusive.
16.8 Assignment. Neither this PO, nor the rights and obligations hereunder, may be assigned, delegated, transferred, or subcontracted (each, an “Assignment”) by Seller without the prior consent of Buyer. No Assignment by Seller shall relieve Seller of any of its obligations under this PO, and any purported Assignment by Seller in violation of this Section is null and void. This PO is binding on and inures to the benefit of the Parties and their respective permitted successors and permitted assigns.
16.9 No Third-Party Beneficiaries. This PO benefits solely the Parties and their respective permitted successors and permitted assigns and nothing in the Terms, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the PO.
16.10 Governing Law; This PO shall be governed by and construed under the Laws of the State of Utah, excluding that body of Law related to choice of Laws. By entering into this PO, Seller and Buyer irrevocably submit themselves and their principals individually to personal jurisdiction in courts of the State of Utah and agree that jurisdiction for any dispute shall be solely within the State of Utah.
16.11 No Public Announcements. Seller shall not use Buyer’s name or the fact that Seller is selling Goods to Buyer in any press releases, media statements, or public communications without Buyer’s prior written consent.
17. Additional Definitions; Interpretation.
17.1 Definitions. “Buyer Parties” means Buyer, its affiliates, and its and their respective officers, directors, shareholders, members, partners, and employees, and the successors and assigns of all of the foregoing; “Claim” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or other, whether at law, in equity or otherwise; “Effective Date” means the date of the PO; “Law” means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, governmental order or other requirement or rule of law of any governmental authority, including the Foreign Corrupt Practices Act, the Federal Trade Commission Trade Practice Rules, and the Fair Labor Standards Act; “Party” means Buyer or Seller, as applicable; “Person” means an individual or entity; “Personnel” of a Party means any agents, employees, contractors, or subcontractors engaged or appointed by such Party; and “Representatives” means a Party’s affiliates and each of their respective Personnel, officers, directors, partners, shareholders, attorneys, third-party advisors, successors and permitted assigns.
17.2 Interpretation. Unless a clear contrary intention appears, (a) the words “include,” “includes,” or “including” mean including without limiting the generality of the description preceding such term; (b) the word “or” is not exclusive; (c) the phrases “the PO” and “the Terms” and the words “herein,” “hereof,” “hereby,” “hereto,” “hereunder” and derivatives or similar words refer to the PO; (d) the singular includes the plural and vice versa; (e) references to an agreement, instrument, Law, or other document means such agreement, instrument, Law, or other document as amended, supplemented, replaced, and modified from time to time; and (i) all references to money shall be in United States dollars.
1. Warranty on Goods. In addition to any warranties contained in the Specific Details, Seller warrants to Buyer that (the “Warranty”): (a) for the period provided by applicable Law, the Goods will (i) conform to Buyer’s specifications and metrics, or if none are given, to samples thereof; (ii) be merchantable (as such term is defined in the Uniform Commercial Code, as adopted in the State of Utah) and free from defects in design, materials, and workmanship; (iii) not, and the use thereof for the particular purpose for which such Goods are ordinarily used will not, infringe upon, misappropriate, or otherwise violate the intellectual property rights or other rights of any Person; (iv) be fit and sufficient for the particular purpose for which such Goods are ordinarily used; (v) comply with all applicable Laws; (vi) not be counterfeit, adulterated, misbranded, or falsely labeled or advertised within the meaning of any applicable Law; and (vii) be produced, manufactured, assembled, and packaged in compliance with all Laws; and (b) each Good will be new and conveyed by Seller to Buyer with good title, free and clear of all encumbrances and liens. The foregoing warranties shall survive any inspection, delivery, acceptance, or payment by Buyer, but shall not apply to consumable items attached to or used in conjunction with Goods.
2. Inspection and Audit. Buyer shall have a reasonable period of time following delivery of the Goods to the Delivery Location (“Inspection Period”), to inspect all Goods and to inform Seller of Buyer’s rejection of any Goods that (a) do not conform to the description listed in the Specific Details or Buyer’s specifications or metrics; (b) on visual inspection, Buyer determines are otherwise defective or not in compliance with the Warranty; or (c) exceed the quantity of Goods stated in the Specific Details (any such Goods, “Nonconforming Goods”). If Buyer rejects any Nonconforming Goods, Buyer may elect to (i) require Seller, at Seller’s sole cost, to repair or replace the rejected Goods, (ii) purchase similar goods from another source and require Seller to (A) remove the Nonconforming Goods and (B) reimburse Buyer for the price paid for the replacement goods if the prices of the replacement goods exceed the Price of the Nonconforming Goods), (iii) repair the Nonconforming Goods itself or have a third party repair the Nonconforming Goods (and require Seller to reimburse Buyer’s reasonable and documented costs and expense in connection therewith), or (iv) retain the rejected Goods; in each case without limiting the exercise by Buyer of any other rights available to Buyer under the Terms or pursuant to applicable Law. All returns of Nonconforming Goods to Seller are at Seller’s sole risk and expense. Buyer’s acceptance of any Goods will not be deemed a waiver or limitation of Seller’s obligations pursuant to the Terms (or any breach thereof), including those obligations with respect to Seller’s Warranty and Seller’s duty to indemnify Buyer. Seller agrees that its plant, or such parts thereof as may be engaged in the performance of this PO shall be subject to inspection by Buyer and its authorized representatives during normal business hours.
3. Cancellation of the PO. Seller may not cancel this PO once accepted. Buyer may cancel this PO prior to Seller’s delivery of its Acceptance Notice. Buyer may terminate work under this PO in whole or in part at any time upon notice to Seller in writing. Seller will thereupon immediately stop work on this PO or the terminated portion thereof and notify its subcontractors to do likewise. Except where such termination is caused by a default or delay of Seller, Seller shall be entitled to reimbursement for its actual costs incurred up to and including the date of termination.
4. Changes to the PO. Buyer may, at any time and from time to time, by PO amendment issued to Seller: (a) make changes in shipping and packing instructions; (b) increase or decrease the quantity of Goods ordered; (c) change the drawings, specifications, samples or other written descriptions; (d) issue a suspension of work order; (e) make changes in the delivery schedule. If such changes cause an increase or decrease in the amount of work hereunder or in the cost of performance, or in the time required for performance, an equitable adjustment shall be made in the contract price and/or the delivery schedule and the PO shall be amended in writing accordingly. Any claims for adjustment under this clause must be asserted within sixty (60) days from the date of the PO amendment. Failure of Seller to make written notice thereof shall, upon expiration of the sixtieth (60) day, be construed as a waiver for any such adjustment. All Goods covered hereunder shall be manufactured in accordance with this PO unless a change thereto is subsequently authorized by a written PO amendment issued by Buyer.
5. Shipment and Delivery.
5.1 Packaging and Notices. All Goods shall be packed by Seller in suitable containers or boxes for protection to permit safe transportation and handling. No charge shall be made by Seller for packaging unless expressly provided for on this PO. For each shipment of Goods, Seller shall provide Buyer sufficient advance warning and notice of any hazardous or restricted material that is contained in a Good or a part of the shipment, together with such special handling instructions. Upon shipment of a Good, Seller shall notify Buyer of the shipment date, carrier, and bill of lading/tracking number. All packages must include a packing slip stating the PO number and quantities shipped, with copies of such packing slip to be delivered to Buyer via electronic mail immediately after such PO has been shipped. (collectively, the “Shipment Information”).
5.2 F.O.B, Title and Risk of Loss. The F.O.B. point shall be the origin (or such other location as Seller and Buyer may have previously agreed upon in writing), and Seller shall bear all risk of loss or damage to the Goods to that point. Title in the Goods shall shift to Buyer upon acceptance of the Goods, which Seller shall deliver to Buyer free of any liens or encumbrances.
6. Prices and Payment. Invoices showing higher costs than printed on this PO will be subject to delay and further review. Price changes must be approved in advance by the Buyer in writing. Seller shall issue an invoice to Buyer for all Goods ordered by Buyer setting forth in reasonable detail the amounts payable by Buyer under the PO and contain: (a) the PO number, (b) the line-item number, if applicable; (c) Seller’s name; and (d) a copy of the applicable Shipment Information. A variation of plus or minus ten percent (+/-10%) from the PO quantity may be invoiced and will be accepted by Buyer based upon the actual amount delivered. Buyer must give Seller written notice within thirty (30) days after shipment date of Goods not received as part of the shipment but for which Seller invoices Buyer. Buyer may withhold and offset payment due to any invoices or related documents that Buyer disputes in good faith or that are incorrectly submitted to Buyer. Buyer shall pay to Seller the prices set forth on this PO net 30 (or such other payment term as Seller and Buyer may have previously agreed upon in writing) of Buyer’s receipt of the invoice. Any sums payable by Buyer to Seller shall be subject to all claims and defenses of Buyer, whether arising from this or any other transaction, and Buyer may set off and deduct against any such sums all present and future indebtedness of Seller to Buyer. Buyer shall not be obligated to pay any amount set forth in an invoice delivered more than 180 days after the date on which the Goods referenced in the invoice were delivered. Buyer shall not be liable for any federal, state or local taxes unless separately stated on the PO.
7. Advance Manufacture and Shipments. Unless otherwise previously agreed upon by Buyer and Seller in writing, Seller shall not manufacture in advance of Seller’s normal flow time or deliver any material in advance of the schedule set forth in this PO without Buyer’s prior written consent.
8. Duty to Advise. Seller shall promptly provide notice to Buyer of any of the following events or occurrences or any facts or circumstances reasonably likely to give rise to any of the following events or occurrences and Seller’s proposed actions for addressing such events or circumstances: (a) any delay in delivery of Goods; or (b) any defects or quality problems relating to Goods.
9. Compliance. Seller covenants that it shall comply with all applicable federal, state and local laws, regulations and rules, including without limitation those regarding occupational safety and health, and employment, and cosmetics, aromatics, and dietary supplements and California Prop 65 in connection with all Goods.
9.1 FCPA and Anti-Corruption Laws. Seller acknowledges that Buyer is a U.S. entity and has a substantial presence and affiliation in the U.S. and, as such, is subject to the provisions of the U.S. Foreign Corrupt Practices Act of 1977 (FPCA), which among other things, prohibits the making of corrupt payments. Under the FCPA, it is unlawful to directly or indirectly pay or to offer to pay anything of value to foreign government officials or employees or political parties or candidates in order to obtain or retain business or to secure an improper commercial advantage. Seller may be subject to additional anti-corruption laws, including the UK Anti-Bribery Act and local anti-corruption laws. Seller represents and warrants that it is familiar with the provisions of the FCPA and other applicable anti-corruption laws, and hereby agrees that it will not take or permit any action which will either constitute a violation under, or cause the Buyer or its affiliates to be in violation of, the FCPA or any applicable anti-corruption laws. Seller agrees to immediately notify Buyer of any potential violation of law.
9.2 CITES and Lacey Act Compliance.Seller acknowledges that certain Goods to be provided under this PO may be covered by plant-sourcing restrictions under international, foreign, and domestic laws, including but not limited to: the Convention on International Trade of Endangered Species (CITES), the United States Endangered Species Act (ESA), the United States Lacey Act and similar laws of the country of origin that govern the harvest, transport, processing, trade, or import/export of plants and plant products (collectively referred to as “Plant-Sourcing Restrictions”). Seller shall comply with all applicable Plant-Sourcing Restrictions in performance of this PO. Seller represents and warrants that none of the Goods provided under this PO were harvested, obtained, transported, processed, traded, or imported/exported in violation of any Plant-Sourcing Restrictions. Seller shall provide with each shipment of a CITES-listed plant, or non-CITES-listed plant or plant product as requested, a Certificate of Analysis, signed by the Seller, identifying scientific and physical parameters of the product, including origin information. Seller shall not import, export, or re-export, directly or indirectly, any plants or plant products or undertake any transaction in violation of any Plant-Sourcing Restrictions. Seller agrees to obtain and maintain applicable permits and other authorizations and supply chain documentation to demonstrate compliance with Plant-Sourcing Restrictions including for the export, re-export, or import of plants and plant products, and provide such documentation to Buyer as requested. Seller agrees to cooperate with Buyer in responding to any government inquiries regarding compliance associated with Plant-Sourcing Restrictions for Seller-provided Products. Seller agrees to immediately notify Buyer of any potential violation of Plant-Sourcing Restrictions.
9.3 Trade Sanction Laws. For any Goods or work within the scope of this PO, Seller agrees not to enter or maintain contracts, subcontracts, agreements, or other formal or informal business relationships with countries, companies, or individuals that would violate U.S. trade sanction laws. This includes any party listed on the U.S. Treasury Department’s List of Specially Designated Nationals and Blocked Persons, the U.S. Commerce Department’s Denied Persons List, Unverified List, Entity List, or Nonproliferation Sanctions List, or the similar lists of the United Nations or the World Trade Organization. Seller agrees to immediately notify Buyer of any potential violation of law.
9.4 Supplier Code of Conduct. With regard to the Goods supplied under this PO, Seller acknowledges and agrees to comply with Buyer’s policies and requirements for suppliers and their subcontractors as set forth in Buyer’s Supplier’s Compliance Manual and Supplier Code of Conduct, which manuals have been or soon will be provided to Seller by Buyer, and which Buyer may amend from time to time.
9.5 Toxics in Packaging Reduction Laws. Seller guarantees that packaging and packaging components manufactured and/or supplied to Buyer, and delivered to Buyer on or after January 1, 1992, do not contain lead, cadmium, mercury, or hexavalent chromium that has been intentionally introduced during manufacturing or distribution of said package or packaging components. Should incidental levels of lead, cadmium, mercury, or hexavalent chromium be present, these levels conform with allowable limits prescribed by all applicable federal, state, and local laws, regulations, and rules.
10. Permits, Licenses, and Authorizations. Seller shall obtain and maintain all permits, licenses, franchises, approvals, authorizations, registrations, certificates, variances, and similar rights obtained or required to be obtained, from any governmental authority necessary for the exercise of its rights and performance of Seller’s obligations hereunder.
11. Withdrawal or Recall of Goods. If any Goods sold to Buyer are Nonconforming Goods and a recall campaign is necessary, Buyer may implement such recall campaign and return defective Goods to Seller or destroy such Goods, as determined by Buyer in its reasonable discretion, at Seller’s sole cost and risk. If a recall campaign is implemented, at Buyer’s option and Seller’s sole cost, Seller shall promptly replace any defective Goods and provide such replacement Goods to Buyer or Buyer’s designee. Seller will be liable for all of Buyer’s costs associated with any recall campaign (including Buyer’s expenses associated with determining whether a recall campaign is necessary) if such recall campaign is based upon a determination that the Goods fail to conform to the warranties set forth hereunder. Seller shall notify Buyer immediately of any event or occurrence that could necessitate the need to recall the Goods together with supporting information concerning the degree to which the basis for such action relates to any Goods.
12. Intellectual Property; Confidentiality and Non-Use. Seller agrees that all drawings, formulas, specifications, samples and/or written disclosures forming a part of this PO (whether previously provided or provided for the first time hereunder), either by reference or otherwise, are the property of Buyer and its assigns and are submitted in confidence with the understanding and agreement by Seller that such drawings, specifications, samples, and/or written disclosures shall not be disclosed to any third parties or utilized (except for the limited purposes contemplated by this PO), in whole or in part, by Seller, either for itself or by it on behalf of any other person, firm or corporation, without the prior written consent of Buyer. Seller expressly acknowledges that it has no, and by virtue of this PO shall receive no, right, title, or interest in and/or to any intellectual property or other proprietary rights related to the Goods except as otherwise agreed by the parties in writing. To the extent Seller incorporates into any Goods any intellectual property rights of a third party, Seller hereby grants to Buyer a perpetual, irrevocable, nonexclusive, worldwide, royalty free right and sublicense to use such intellectual property rights solely to the extent necessary to use such Goods. To the extent Seller incorporates into any Goods any intellectual property rights of Seller, Seller hereby grants to Buyer a perpetual, irrevocable, nonexclusive, worldwide, royalty free right and license to use such intellectual property rights solely to the extent necessary to use such Goods.
13. Default. Seller shall be in default under this PO if (1) Seller is in breach of, or threatens to breach, any representation, warranty or covenant of Seller hereunder and either the breach cannot be cured or, if the breach can be cured, it is not cured by Seller within a commercially reasonable period of time under the circumstances, in no case exceeding 30 days following Seller’s receipt of notice of such breach, (2) Seller fails to, or threatens not to, timely deliver Goods conforming to the requirements of, and otherwise in accordance with, the Terms (except to the extent Seller is paying liquidated damages therefor as required by Section 14); or (3) Seller fails to provide Buyer, within a commercially reasonable time after Buyer’s request (but in no case exceeding five days after such request) with adequate and reasonable assurance of Seller’s financial and operational capability to perform timely any of Seller’s obligations hereunder. Subject to Section 14, upon a default under this PO, Buyer shall be entitled to (a) suspend some or all of its performance under this PO, (b) cancel the affected Goods without paying a return charges claim, (c) terminate this PO and have no further obligation under this PO to Seller, and (d) declare all or part of Seller’s obligations to Buyer under this PO immediately due. Buyer may set off against all amounts Buyer owes Seller all amounts Seller owes Buyer.
14. LIQUIDATED DAMAGES. DAMAGES TO BUYER CAUSED BY SELLER’S FAILURE TO COMPLY WITH THE DELIVERY DATES ARE DIFFICULT TO ASCERTAIN. ACCORDINGLY, LIQUIDATED DAMAGES MAY BE SET FORTH IN THE PO, AND SUCH LIQUIDATED DAMAGES (1) REPRESENT A FAIR, REASONABLE, AND PROPORTIONATE APPROXIMATION OF BUYER’S DAMAGES CAUSED THEREBY AND DO NOT CONSTITUTE A PENALTY, AND (2) SHALL BE THE SOLE DAMAGES AVAILABLE TO BUYER FOR SELLER’S FAILURE TO COMPLY WITH THE DELIVERY DATES, BUT THE LIQUIDATED DAMAGES SHALL NOT PRECLUDE BUYER’S EXERCISE OF (A) OTHER NON-MONETARY REMEDIES THAT MAY BE AVAILABLE FOR SUCH DEFAULT, INCLUDING TERMINATION OF THE PO IF SELLER SUSPENDS PAYMENT OF LIQUIDATED DAMAGES OR A CAP ON LIQUIDATED DAMAGES HAS BEEN MET, EQUITABLE RELIEF, OR A REQUEST FOR ADEQUATE ASSURANCE, OR (B) ANY REMEDIES (MONETARY OR OTHERWISE) AVAILABLE FOR OTHER DEFAULTS THAT OCCUR CURRENTLY WITH, BEFORE, OR AFTER SUCH DEFAULT.
15. Indemnification. Seller shall indemnify, defend and hold harmless the Buyer Parties (collectively, “Buyer Indemnified Parties”) against any and all losses, damages, liabilities, deficiencies, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, incurred by any Buyer Indemnified Party (collectively, “Losses”), including as a result of a third-party Claim against a Buyer Indemnified Party, to the extent the Losses arise out of (a) a negligent or wrongful act, error, or omission of, or a breach of the representations, warranties, or covenants hereunder by, Seller or its Representatives; (b) any bodily injury, death, or damage to property directly or indirectly caused by Seller or its Representatives; (c) manufacturing, suppling, or handling of the Goods prior to delivery thereof; or (d) any allegation that any of the following violates applicable Laws or infringes, misappropriates or otherwise violates any intellectual property right or other right of any Person: (i) intellectual property rights of Seller, (ii) the use of intellectual property rights of Seller in the production of the Goods (or otherwise embodied in the Goods), or (iii) the Goods or the use thereof for the purpose for which such Goods are ordinarily used, except in all cases to the extent such Claims result directly from the Buyer Indemnified Party’s or its Personnel’s negligence, willful misconduct, or a breach of the representations, warranties, or covenants hereunder by, the Buyer Indemnified Party or its Representatives.
15.1.Effect of Insurance. The obligations of this Section 15 shall apply regardless of the amount of insurance coverage held by Seller, and shall be both independent of and not limited by or to any insurance carried or provided by Seller pursuant to the Terms or otherwise.
15.2 No Liability for Consequential or Indirect Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, EXCEPT TO THE EXTENT LIABILITY ARISES FROM A PARTY’S (a) BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (b) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (c) IN THE CASE OF SELLER AS THE LIABLE PARTY, (i) INTELLECTUAL PROPERTY INFRINGEMENT BY THE GOODS OR (ii) INDEMNIFICATION OBLIGATIONS HEREUNDER IN CONNECTION WITH A THIRD PARTY CLAIM.
16. Miscellaneous.
16.1 Further Assurances. Upon Buyer’s reasonable request, Seller shall, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, necessary to give full effect to the Terms.
16.2 Relationship of the Parties. . The relationship between Seller and Buyer is solely that of vendor and vendee and they are independent contracting parties. Nothing in the Terms creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the Parties.
16.3 Entire Agreement; Order of Precedence. The Terms and the Specific Agreement contain the entire understanding between the Parties with respect to the subject matter of the PO and supersedes and replaces all previous negotiations, understandings and writings relating to the subject matter hereof. If a conflict exists among the terms and conditions contained in the Terms, and the Specific Details, the Specific Details shall control. If a conflict exists between the Specific Details and the Terms available on Buyer’s website as of the date of the PO, the Terms available on Buyer’s website shall control. If any additional or different terms or conditions are contained in any documentation provided by Seller, such as a Seller prepared proposal, bid, quotation, Acceptance Notice, bill of lading, or receipt (“Seller’s Proposed Terms”), the PO shall control regardless of when Seller’s Proposed Terms are received by Buyer unless Buyer agrees in writing to any of Seller’s Proposed Terms; otherwise, Buyer rejects Seller’s Proposed Terms. If a conflict exists between the PO and the Specific Agreement, the Specific Agreement shall control.
16.4 Notices. All notices, requests, consents, claims, demands, waivers, and other communications under the PO shall be sufficient in all respects if given in writing and delivered to the other Party at its address set forth in the Specific Details (or to such other address that the receiving Party may designate from time to time in accordance with this section) in person, by email, by overnight courier, or by certified mail, postage prepaid, return receipt requested. Notice shall be deemed given, delivered, and received on the earlier of the date of delivery, in the case of personal delivery or email, or on the delivery or refusal date, as specified on the return receipt in the case of certified mail or on the tracking report in the case of overnight courier.
16.5 Headings. The headings in Terms are for reference only and do not affect the interpretation of the Terms.
16.6 Severability; If any provision of this PO shall be held void or unenforceable, the remaining provisions shall remain in full force and effect. This PO may be altered, amended, or revoked only by issuance of a new PO or written change order issued by Buyer that specifies the Section or Specific Details of the Terms to be altered or amended. No waiver under the Terms is effective unless it is in writing and signed by an authorized representative of the Party waiving its right.
16.7 Cumulative Remedies. All rights and remedies provided hereunder are cumulative and not exclusive.
16.8 Assignment. Neither this PO, nor the rights and obligations hereunder, may be assigned, delegated, transferred, or subcontracted (each, an “Assignment”) by Seller without the prior consent of Buyer. No Assignment by Seller shall relieve Seller of any of its obligations under this PO, and any purported Assignment by Seller in violation of this Section is null and void. This PO is binding on and inures to the benefit of the Parties and their respective permitted successors and permitted assigns.
16.9 No Third-Party Beneficiaries. This PO benefits solely the Parties and their respective permitted successors and permitted assigns and nothing in the Terms, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the PO.
16.10 Governing Law; This PO shall be governed by and construed under the Laws of the State of Utah, excluding that body of Law related to choice of Laws. By entering into this PO, Seller and Buyer irrevocably submit themselves and their principals individually to personal jurisdiction in courts of the State of Utah and agree that jurisdiction for any dispute shall be solely within the State of Utah.
16.11 No Public Announcements. Seller shall not use Buyer’s name or the fact that Seller is selling Goods to Buyer in any press releases, media statements, or public communications without Buyer’s prior written consent.
17. Additional Definitions; Interpretation.
17.1 Definitions. “Buyer Parties” means Buyer, its affiliates, and its and their respective officers, directors, shareholders, members, partners, and employees, and the successors and assigns of all of the foregoing; “Claim” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or other, whether at law, in equity or otherwise; “Effective Date” means the date of the PO; “Law” means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, governmental order or other requirement or rule of law of any governmental authority, including the Foreign Corrupt Practices Act, the Federal Trade Commission Trade Practice Rules, and the Fair Labor Standards Act; “Party” means Buyer or Seller, as applicable; “Person” means an individual or entity; “Personnel” of a Party means any agents, employees, contractors, or subcontractors engaged or appointed by such Party; and “Representatives” means a Party’s affiliates and each of their respective Personnel, officers, directors, partners, shareholders, attorneys, third-party advisors, successors and permitted assigns.
17.2 Interpretation. Unless a clear contrary intention appears, (a) the words “include,” “includes,” or “including” mean including without limiting the generality of the description preceding such term; (b) the word “or” is not exclusive; (c) the phrases “the PO” and “the Terms” and the words “herein,” “hereof,” “hereby,” “hereto,” “hereunder” and derivatives or similar words refer to the PO; (d) the singular includes the plural and vice versa; (e) references to an agreement, instrument, Law, or other document means such agreement, instrument, Law, or other document as amended, supplemented, replaced, and modified from time to time; and (i) all references to money shall be in United States dollars.
