Customer Supply
Terms And Conditions
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1. INCORPORATION OF THESE TERMS.
A. Every contract for the sale or supply of goods (“Goods”) by Energizer, LLC or its affiliate (“Seller”) is subject to these terms and conditions (“Terms”) to the exclusion of all other terms, conditions, or contract obligations. Any offer, quotation, or acceptance of order issued by Seller is given on the basis that the contract of sale is subject only to these Terms, unless a written contract signed by both parties is in existence covering the sale of Goods. In this instance, the terms of the written contract prevail to the extent they are inconsistent with these Terms.
B. All orders placed by you (“Buyer”) shall be deemed to be on these Terms and no terms proposed or referred to by Buyer (whether in any order, acceptance form, or otherwise) shall form part of any contract of sale between Buyer and Seller. Fulfillment of Buyer’s order does not constitute acceptance of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
A. Every contract for the sale or supply of goods (“Goods”) by Energizer, LLC or its affiliate (“Seller”) is subject to these terms and conditions (“Terms”) to the exclusion of all other terms, conditions, or contract obligations. Any offer, quotation, or acceptance of order issued by Seller is given on the basis that the contract of sale is subject only to these Terms, unless a written contract signed by both parties is in existence covering the sale of Goods. In this instance, the terms of the written contract prevail to the extent they are inconsistent with these Terms.
B. All orders placed by you (“Buyer”) shall be deemed to be on these Terms and no terms proposed or referred to by Buyer (whether in any order, acceptance form, or otherwise) shall form part of any contract of sale between Buyer and Seller. Fulfillment of Buyer’s order does not constitute acceptance of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
2. THE CONTRACT.
A. Each contract (the “Contract”) for the sale of Seller’s Goods to Buyer shall be concluded by Seller’s acceptance of Buyer’s order, whether orally or in writing or by delivery of the Goods, and the Contract shall be created only on the acceptance of these Terms.
B. Buyer expressly acknowledges that (except as set forth in Section 2.C) there are no terms or representations other than as expressly contained in these Terms which have induced Buyer to enter into the Contract and there is no collateral contract pursuant to which Buyer has entered into the Contract.
C. No modification of these Terms shall be effective and bind Seller in any manner whatsoever unless expressly agreed to in writing by the parties.
D. Any reference in these Terms to any consent or agreement of Seller shall be effective only when given by a duly authorized signatory of Seller. Buyer shall not be entitled to rely on any such consent or agreement unless Buyer has satisfied itself that it is given by and on behalf of Seller by a person duly authorized to give such consent or agreement.
A. Each contract (the “Contract”) for the sale of Seller’s Goods to Buyer shall be concluded by Seller’s acceptance of Buyer’s order, whether orally or in writing or by delivery of the Goods, and the Contract shall be created only on the acceptance of these Terms.
B. Buyer expressly acknowledges that (except as set forth in Section 2.C) there are no terms or representations other than as expressly contained in these Terms which have induced Buyer to enter into the Contract and there is no collateral contract pursuant to which Buyer has entered into the Contract.
C. No modification of these Terms shall be effective and bind Seller in any manner whatsoever unless expressly agreed to in writing by the parties.
D. Any reference in these Terms to any consent or agreement of Seller shall be effective only when given by a duly authorized signatory of Seller. Buyer shall not be entitled to rely on any such consent or agreement unless Buyer has satisfied itself that it is given by and on behalf of Seller by a person duly authorized to give such consent or agreement.
3. THE GOODS.
A. Seller shall be entitled, in its sole discretion, to discontinue the supply of any Goods or to amend or modify any Goods without notice to Buyer. If Seller is by reason of any such circumstance unable to supply the Goods as ordered by Buyer, Seller shall notify Buyer and either Buyer or Seller may terminate the Contract, without any liability.
B. The Contract is not a sale of Goods by description, sample, or otherwise. Except as expressly provided in these Terms, Buyer shall take the Goods at its own risk as to their quality, condition, or sufficiency for any purpose.
C. If a sample of the Goods has been presented to and/or inspected by Buyer, it is expressly agreed and acknowledged that such sample was so presented and inspected solely to enable Buyer to assess the quality and does not constitute a sale by sample. Buyer shall take the Goods at its own risk as to their correspondence with any such sample.
A. Seller shall be entitled, in its sole discretion, to discontinue the supply of any Goods or to amend or modify any Goods without notice to Buyer. If Seller is by reason of any such circumstance unable to supply the Goods as ordered by Buyer, Seller shall notify Buyer and either Buyer or Seller may terminate the Contract, without any liability.
B. The Contract is not a sale of Goods by description, sample, or otherwise. Except as expressly provided in these Terms, Buyer shall take the Goods at its own risk as to their quality, condition, or sufficiency for any purpose.
C. If a sample of the Goods has been presented to and/or inspected by Buyer, it is expressly agreed and acknowledged that such sample was so presented and inspected solely to enable Buyer to assess the quality and does not constitute a sale by sample. Buyer shall take the Goods at its own risk as to their correspondence with any such sample.
4. PRICE.
A. All prices quoted by or on behalf of Seller are exclusive of taxes unless otherwise specified or agreed in writing.
B. In the absence of a written price quote by Seller, the prices in effect at the time of Buyer’s Contract will apply.
C. Seller reserves the right to amend such prices at any time in its sole discretion. Occasionally, reduced prices are offered on discontinued products, packaging, or assortments. Buyers interested in purchasing such items should contact their Energizer Representative for details.
A. All prices quoted by or on behalf of Seller are exclusive of taxes unless otherwise specified or agreed in writing.
B. In the absence of a written price quote by Seller, the prices in effect at the time of Buyer’s Contract will apply.
C. Seller reserves the right to amend such prices at any time in its sole discretion. Occasionally, reduced prices are offered on discontinued products, packaging, or assortments. Buyers interested in purchasing such items should contact their Energizer Representative for details.
5. PAYMENT.
A. Seller shall invoice Buyer for all amounts due upon shipment of the Goods. All invoices shall be paid in full, without set off or deduction in any manner (except when expressly agreed in writing by Seller) on the due date specified on the invoice. No anticipation discount may be taken on invoices paid prior to their due date.
B. If any invoiced amounts are unpaid by Buyer after the invoice due date, Seller may suspend delivery of Goods to Buyer under any Contract between Seller and Buyer.
C. All sums due from Buyer to Seller under any Contract shall bear interest from the due date until payment is made in full at the highest rate allowed by applicable law.
D. Seller reserves the right to impose a credit limit on Buyer and/or require prepayment before delivery of Goods. Seller shall be entitled to suspend deliveries of Goods to Buyer if and for the period in which any credit limit is exceeded or until any prepayment is received.
A. Seller shall invoice Buyer for all amounts due upon shipment of the Goods. All invoices shall be paid in full, without set off or deduction in any manner (except when expressly agreed in writing by Seller) on the due date specified on the invoice. No anticipation discount may be taken on invoices paid prior to their due date.
B. If any invoiced amounts are unpaid by Buyer after the invoice due date, Seller may suspend delivery of Goods to Buyer under any Contract between Seller and Buyer.
C. All sums due from Buyer to Seller under any Contract shall bear interest from the due date until payment is made in full at the highest rate allowed by applicable law.
D. Seller reserves the right to impose a credit limit on Buyer and/or require prepayment before delivery of Goods. Seller shall be entitled to suspend deliveries of Goods to Buyer if and for the period in which any credit limit is exceeded or until any prepayment is received.
6. DELIVERY.
A. Delivery dates (if any) stated by Seller are estimates only and the time of delivery shall not be of the essence and cannot be made so, by any act or notice of Buyer. Seller will not deliver to P.O. boxes or residential addresses.
B. Seller shall not be liable to Buyer for any non-delivery, late delivery, or partial delivery for whatever reason or for any loss (whether direct or indirect) including without limitation, any consequential loss or lost opportunity arising (whether directly or indirectly) from any non-delivery or late delivery of all or any part of the Goods by Seller.
C. In the event of non-delivery of the Goods, Buyer shall inform Seller in writing within fourteen (14) days of receipt of invoice.
D. If the delivery of Goods is delayed or prevented by circumstances outside the reasonable control of Seller (including without limitation, acts or omissions of third parties) (i) any period specified for delivery (if any) shall be extended by such time as the cause preventing or hindering delivery subsists; provided that the either Seller or Buyer may by written notice terminate the Contract when the period for delivery has been, or is reasonably anticipated to be, extended for a period in excess of three (3) months and (ii) subject only to any termination under subparagraph (i) above, Seller shall be entitled to provide a partial delivery of the Goods and Buyer shall accept the same under the Contract.
E. Subject to Section 6.B, if full delivery of the Goods has not been made within three (3) months of any delivery date specified by Seller on Contract, Buyer may cancel any undelivered portion of its order in writing to Seller.
F. If Seller delivers to Buyer a quantity of Goods of up to 10% more or less than the quantity in the Contract, Buyer shall not object to or reject any portion of the Goods by reason of the surplus or shortfall and shall pay for the Goods at the price established by Seller per Section 4, adjusted pro rata. Seller shall not be liable for any 10% variance in quantities of Goods delivered.
G. If Buyer fails to accept delivery of the Goods, the Goods shall be deemed to have been delivered and the risk in the Goods shall pass to Buyer. Seller shall arrange for storage and insurance of the Goods until delivery is made and reserves the right to charge Buyer for all costs incurred.
A. Delivery dates (if any) stated by Seller are estimates only and the time of delivery shall not be of the essence and cannot be made so, by any act or notice of Buyer. Seller will not deliver to P.O. boxes or residential addresses.
B. Seller shall not be liable to Buyer for any non-delivery, late delivery, or partial delivery for whatever reason or for any loss (whether direct or indirect) including without limitation, any consequential loss or lost opportunity arising (whether directly or indirectly) from any non-delivery or late delivery of all or any part of the Goods by Seller.
C. In the event of non-delivery of the Goods, Buyer shall inform Seller in writing within fourteen (14) days of receipt of invoice.
D. If the delivery of Goods is delayed or prevented by circumstances outside the reasonable control of Seller (including without limitation, acts or omissions of third parties) (i) any period specified for delivery (if any) shall be extended by such time as the cause preventing or hindering delivery subsists; provided that the either Seller or Buyer may by written notice terminate the Contract when the period for delivery has been, or is reasonably anticipated to be, extended for a period in excess of three (3) months and (ii) subject only to any termination under subparagraph (i) above, Seller shall be entitled to provide a partial delivery of the Goods and Buyer shall accept the same under the Contract.
E. Subject to Section 6.B, if full delivery of the Goods has not been made within three (3) months of any delivery date specified by Seller on Contract, Buyer may cancel any undelivered portion of its order in writing to Seller.
F. If Seller delivers to Buyer a quantity of Goods of up to 10% more or less than the quantity in the Contract, Buyer shall not object to or reject any portion of the Goods by reason of the surplus or shortfall and shall pay for the Goods at the price established by Seller per Section 4, adjusted pro rata. Seller shall not be liable for any 10% variance in quantities of Goods delivered.
G. If Buyer fails to accept delivery of the Goods, the Goods shall be deemed to have been delivered and the risk in the Goods shall pass to Buyer. Seller shall arrange for storage and insurance of the Goods until delivery is made and reserves the right to charge Buyer for all costs incurred.
7. CANCELLATION.
A. Buyer shall not cancel any order placed with Seller without Seller’s written consent to do so.
B. Buyer may request cancellation by providing written notice of its request to Seller and identification of the order placed by Buyer, including the date of order, delivery address, and the number, quantity and description of the Goods ordered.
C. If Seller consents to cancellation after the Goods have been processed for shipping, Buyer agrees to return the Goods to Seller at Buyer’s sole cost by delivering the Goods to Seller’s original shipping location in exactly the same state as they were on delivery.
D. Buyer shall indemnify Seller against all reasonable costs and expense (including, without limitation, administration, packaging, and carriage costs, but excluding any loss of profit or opportunity) incurred by Seller in effecting such cancellation and in connection with any breach of Seller’s condition of consent.
A. Buyer shall not cancel any order placed with Seller without Seller’s written consent to do so.
B. Buyer may request cancellation by providing written notice of its request to Seller and identification of the order placed by Buyer, including the date of order, delivery address, and the number, quantity and description of the Goods ordered.
C. If Seller consents to cancellation after the Goods have been processed for shipping, Buyer agrees to return the Goods to Seller at Buyer’s sole cost by delivering the Goods to Seller’s original shipping location in exactly the same state as they were on delivery.
D. Buyer shall indemnify Seller against all reasonable costs and expense (including, without limitation, administration, packaging, and carriage costs, but excluding any loss of profit or opportunity) incurred by Seller in effecting such cancellation and in connection with any breach of Seller’s condition of consent.
8. PASSING OF RISK AND PROPERTY.
A. Risk in the Goods shall pass to Buyer on delivery.
B. The Goods shall remain Seller’s property until Seller has received payment in full for such Goods. Until title in the Goods passes, Buyer shall: (i) hold the Goods for and on behalf of Seller; (ii) store the Goods in such a manner that they can be identified as Seller’s property; and (iii) keep the Goods separate from Buyer’s own property and the property of any third party.
C. Notwithstanding such retention of title: (i) the Goods shall be at Buyer’s risk from the time of delivery; (ii) Buyer shall insure the Goods against loss or damage accordingly and in the event of such loss or damage shall hold the proceeds of such insurance on behalf of Seller, as trustee for Seller; and (iii) Buyer may dispose of the Goods in the normal course of trading as agent for Seller (but with no authority to create privity of contract between Seller and any Buyer customer) provided that Buyer shall assign to Seller all its rights against its customers in respect of any such disposal and shall promptly on request by Seller, execute any documents required to perfect any such assignment.
D. Buyer grants to Seller, its agents, representatives, and employees an irrevocable license to enter any premises where the Goods are stored in order to: (i) inspect compliance by Buyer with its obligations under this Section 8; and/or (ii) take possession of the Goods which remain Seller’s property.
A. Risk in the Goods shall pass to Buyer on delivery.
B. The Goods shall remain Seller’s property until Seller has received payment in full for such Goods. Until title in the Goods passes, Buyer shall: (i) hold the Goods for and on behalf of Seller; (ii) store the Goods in such a manner that they can be identified as Seller’s property; and (iii) keep the Goods separate from Buyer’s own property and the property of any third party.
C. Notwithstanding such retention of title: (i) the Goods shall be at Buyer’s risk from the time of delivery; (ii) Buyer shall insure the Goods against loss or damage accordingly and in the event of such loss or damage shall hold the proceeds of such insurance on behalf of Seller, as trustee for Seller; and (iii) Buyer may dispose of the Goods in the normal course of trading as agent for Seller (but with no authority to create privity of contract between Seller and any Buyer customer) provided that Buyer shall assign to Seller all its rights against its customers in respect of any such disposal and shall promptly on request by Seller, execute any documents required to perfect any such assignment.
D. Buyer grants to Seller, its agents, representatives, and employees an irrevocable license to enter any premises where the Goods are stored in order to: (i) inspect compliance by Buyer with its obligations under this Section 8; and/or (ii) take possession of the Goods which remain Seller’s property.
9. INSPECTION AND QUALITY OF GOODS.
A. Seller warrants that the Goods will be delivered to Buyer in good and merchantable condition.
B. Any product warranty provided by Seller is non-transferrable to sales by Buyer made outside of the authorized distribution channel or Territory.
C. Buyer shall inspect the Goods immediately on delivery and shall within three (3) working days of delivery give notice to Seller of any alleged (i) defect in the Goods, (ii) damage in transit to the Goods, or (iii) discrepancy between the Goods as delivered and the Goods stated on the packaging slip. If Buyer fails to give such notice within this three (3) day period, Buyer shall be deemed to have accepted the Goods.
D. Provided Buyer establishes to Seller’s reasonable satisfaction that the Goods are as alleged on such notice under Section 9.C, Seller shall in its sole discretion either (i) replace the relevant Goods, or (ii) arrange for collection of the Goods and refund or credit to Buyer the price of the relevant Goods promptly upon return.
E. If Buyer acts as a distributor or reseller of hearing aid batteries, Buyer shall ensure compliance with all applicable country-specific regulatory requirements governing such products.
A. Seller warrants that the Goods will be delivered to Buyer in good and merchantable condition.
B. Any product warranty provided by Seller is non-transferrable to sales by Buyer made outside of the authorized distribution channel or Territory.
C. Buyer shall inspect the Goods immediately on delivery and shall within three (3) working days of delivery give notice to Seller of any alleged (i) defect in the Goods, (ii) damage in transit to the Goods, or (iii) discrepancy between the Goods as delivered and the Goods stated on the packaging slip. If Buyer fails to give such notice within this three (3) day period, Buyer shall be deemed to have accepted the Goods.
D. Provided Buyer establishes to Seller’s reasonable satisfaction that the Goods are as alleged on such notice under Section 9.C, Seller shall in its sole discretion either (i) replace the relevant Goods, or (ii) arrange for collection of the Goods and refund or credit to Buyer the price of the relevant Goods promptly upon return.
E. If Buyer acts as a distributor or reseller of hearing aid batteries, Buyer shall ensure compliance with all applicable country-specific regulatory requirements governing such products.
10. SELLER LIABILITY.
A. Seller’s liability under these Terms shall be in lieu of and to the exclusion of all other liability, whether under any other warranties, conditions, or terms, express or implied, by law or otherwise and whether in contract, tort (including negligence) or under any other legal theory, including any liability with respect of the quality, condition, description, or fitness for any particular purpose of the Goods to the maximum extent permitted by applicable law.
B. SELLER IS NOT LIABLE TO BUYER FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THE SALE OF THE GOODS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED UPON OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
C. SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SALE OF GOODS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID BY BUYER TO SELLER FOR THE GOODS IN THE PRECEDING SIX (6) MONTH PERIOD OR $5,000 WHICHEVER IS LESS.
A. Seller’s liability under these Terms shall be in lieu of and to the exclusion of all other liability, whether under any other warranties, conditions, or terms, express or implied, by law or otherwise and whether in contract, tort (including negligence) or under any other legal theory, including any liability with respect of the quality, condition, description, or fitness for any particular purpose of the Goods to the maximum extent permitted by applicable law.
B. SELLER IS NOT LIABLE TO BUYER FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THE SALE OF THE GOODS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED UPON OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
C. SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE SALE OF GOODS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID BY BUYER TO SELLER FOR THE GOODS IN THE PRECEDING SIX (6) MONTH PERIOD OR $5,000 WHICHEVER IS LESS.
11. INTELLECTUAL PROPERTY RIGHTS.
A. The sale of Goods by Seller shall not confer any rights upon Buyer to use any of Seller’s intellectual property rights in any manner whatsoever and Buyer shall not amend or modify any trademarks or logos of Seller appearing on or in connection with the Goods.
B. Any specifications, plans, drawings, process information, patterns, designs, formulae or other processes (the “Specifications”) in connection with the Goods which may be supplied or disclosed to Buyer shall remain the sole property of Seller (or its licensors) and the supply of Goods by Seller shall not confer any rights upon Buyer to use the same in any manner whatsoever. Buyer shall keep all Specifications confidential and shall not disclose the same to any third party and shall return all Specifications to Seller promptly upon the request of Seller.
A. The sale of Goods by Seller shall not confer any rights upon Buyer to use any of Seller’s intellectual property rights in any manner whatsoever and Buyer shall not amend or modify any trademarks or logos of Seller appearing on or in connection with the Goods.
B. Any specifications, plans, drawings, process information, patterns, designs, formulae or other processes (the “Specifications”) in connection with the Goods which may be supplied or disclosed to Buyer shall remain the sole property of Seller (or its licensors) and the supply of Goods by Seller shall not confer any rights upon Buyer to use the same in any manner whatsoever. Buyer shall keep all Specifications confidential and shall not disclose the same to any third party and shall return all Specifications to Seller promptly upon the request of Seller.
12. FORCE MAJEURE.
If any circumstance outside the reasonable control of Seller and/or its suppliers prevents Seller from performing its obligations under the Contract: (i) Seller shall not be liable for any failure to perform its obligations for the period in which such force majeure circumstances may continue; and (ii) Seller shall be entitled to terminate the Contract upon written notice to Buyer, without further liability.
If any circumstance outside the reasonable control of Seller and/or its suppliers prevents Seller from performing its obligations under the Contract: (i) Seller shall not be liable for any failure to perform its obligations for the period in which such force majeure circumstances may continue; and (ii) Seller shall be entitled to terminate the Contract upon written notice to Buyer, without further liability.
13. RESTRICTIONS.
A. Buyer is expressly prohibited from advertising for sale or selling the Goods on the Internet, without explicit written authorization by Seller (the “Internet Sales Authorization”). The Internet Sales Authorization will specify any conditions and restrictions of sale and the Internet Sales Territory (e.g., authorization limited to specific URLs) and is expressly incorporated into these Terms. Energizer may revoke or modify the Internet Sales Authorization at any time in its sole discretion upon notice to Buyer.
B. Buyer shall not sell the Goods to any person or entity other than an End-User unless written consent to do so is provided by an authorized representative of Seller. An “End-User” means any purchaser of the Goods from Buyer who is the ultimate consumer for whom the Goods are designed and who does not intend to resell the Goods to a third party.
C. Buyers who are authorized distributors upon written consent of Seller shall not sell or transfer the Goods to any person or entity other than: (i) resellers that sell directly to End-Users only, or (ii) Seller authorized resellers. Buyer will not sell or transfer the Goods to any Seller prohibited resellers. Further, Buyers who are authorized distributors will ensure that Buyer’s customers will not: (i) sell or advertise for sale the Goods outside the Territory, or (ii) sell the Goods on any website, application, or other online point of presence (including, without limitation, on any online marketplace) without explicit written authorization from Seller.
D. Buyer shall not sell or offer for sale any product bearing a trademark, copyright, patent, or name associated with Seller, which Buyer purchased or obtained from a source other than directly from Seller.
E. Buyer will not obscure or alter in any fashion the serial number on the Goods or their packaging.
F. Buyer will not sell the Goods in a format or quantity that differs from those made by Seller for sale in the Territory.
G. Buyer shall not use the Goods in a medical device or sell the Goods to any person or customer who Buyer knows or should reasonably know will use the Goods in a medical device, unless such resale is authorized in writing by Seller. Seller expressly disclaims any warranty that the Goods are of the quality to be used in a medical device. Seller shall not be liable for, and Buyer and its customers shall indemnify Seller from and against, any claims arising from the use of the Goods in a medical device including, without limitation, bodily injury or death.
H. Except as authorized in writing by Seller, Buyer shall not export the Goods outside of its authorized geographic Territory (the “Territory”). Buyer may only sell and advertise for sale the Goods within the Territory and Seller expressly prohibits Buyer from soliciting or consummating sales outside the Territory.
I. LIQUIDATED DAMAGES. FOR EACH OCCASION THAT BUYER BREACHES SECTION 13 OF THESE TERMS AND IN ADDITION TO ALL OTHER REMEDIES AVAILABLE TO SELLER UNDER THESE TERMS AND AT LAW, BUYER AGREES TO PAY SELLER, AS LIQUIDATED DAMAGES AND NOT AS A PENALTY, THE GREATER OF THE FOLLOWING AMOUNTS: (I) THE COSTS AND FEES ASSOCIATED WITH SELLER’S INVESTIGATION AND ENFORCEMENT REGARDING THE BUYER’S UNAUTHORIZED SALES; OR (II) FIVE TIMES (5X) THE MSRP OF THE GOODS PER UNIT OF GOODS. BUYER AND SELLER AGREE THAT THESE DAMAGES ARE NOT PUNITIVE, THAT SELLER’S DAMAGES DUE TO BREACH OF SECTION 13 OF THESE TERMS ARE DIFFICULT TO QUANTIFY, AND THAT THESE LIQUIDATED DAMAGES ARE A REASONABLE APPROXIMATION OF SELLER’S DAMAGES IN THE EVENT OF A BREACH.
J. If Buyer breaches Section 13 of these Terms, Buyer agrees to provide Seller with a list of customers to whom Buyer has sold in the last twelve (12) months and participate in an audit performed by Seller of where the Goods have been sold in violation of these Terms.
K. Notwithstanding anything to the contrary in these Terms, this Section 13 is void where prohibited by law.
A. Buyer is expressly prohibited from advertising for sale or selling the Goods on the Internet, without explicit written authorization by Seller (the “Internet Sales Authorization”). The Internet Sales Authorization will specify any conditions and restrictions of sale and the Internet Sales Territory (e.g., authorization limited to specific URLs) and is expressly incorporated into these Terms. Energizer may revoke or modify the Internet Sales Authorization at any time in its sole discretion upon notice to Buyer.
B. Buyer shall not sell the Goods to any person or entity other than an End-User unless written consent to do so is provided by an authorized representative of Seller. An “End-User” means any purchaser of the Goods from Buyer who is the ultimate consumer for whom the Goods are designed and who does not intend to resell the Goods to a third party.
C. Buyers who are authorized distributors upon written consent of Seller shall not sell or transfer the Goods to any person or entity other than: (i) resellers that sell directly to End-Users only, or (ii) Seller authorized resellers. Buyer will not sell or transfer the Goods to any Seller prohibited resellers. Further, Buyers who are authorized distributors will ensure that Buyer’s customers will not: (i) sell or advertise for sale the Goods outside the Territory, or (ii) sell the Goods on any website, application, or other online point of presence (including, without limitation, on any online marketplace) without explicit written authorization from Seller.
D. Buyer shall not sell or offer for sale any product bearing a trademark, copyright, patent, or name associated with Seller, which Buyer purchased or obtained from a source other than directly from Seller.
E. Buyer will not obscure or alter in any fashion the serial number on the Goods or their packaging.
F. Buyer will not sell the Goods in a format or quantity that differs from those made by Seller for sale in the Territory.
G. Buyer shall not use the Goods in a medical device or sell the Goods to any person or customer who Buyer knows or should reasonably know will use the Goods in a medical device, unless such resale is authorized in writing by Seller. Seller expressly disclaims any warranty that the Goods are of the quality to be used in a medical device. Seller shall not be liable for, and Buyer and its customers shall indemnify Seller from and against, any claims arising from the use of the Goods in a medical device including, without limitation, bodily injury or death.
H. Except as authorized in writing by Seller, Buyer shall not export the Goods outside of its authorized geographic Territory (the “Territory”). Buyer may only sell and advertise for sale the Goods within the Territory and Seller expressly prohibits Buyer from soliciting or consummating sales outside the Territory.
I. LIQUIDATED DAMAGES. FOR EACH OCCASION THAT BUYER BREACHES SECTION 13 OF THESE TERMS AND IN ADDITION TO ALL OTHER REMEDIES AVAILABLE TO SELLER UNDER THESE TERMS AND AT LAW, BUYER AGREES TO PAY SELLER, AS LIQUIDATED DAMAGES AND NOT AS A PENALTY, THE GREATER OF THE FOLLOWING AMOUNTS: (I) THE COSTS AND FEES ASSOCIATED WITH SELLER’S INVESTIGATION AND ENFORCEMENT REGARDING THE BUYER’S UNAUTHORIZED SALES; OR (II) FIVE TIMES (5X) THE MSRP OF THE GOODS PER UNIT OF GOODS. BUYER AND SELLER AGREE THAT THESE DAMAGES ARE NOT PUNITIVE, THAT SELLER’S DAMAGES DUE TO BREACH OF SECTION 13 OF THESE TERMS ARE DIFFICULT TO QUANTIFY, AND THAT THESE LIQUIDATED DAMAGES ARE A REASONABLE APPROXIMATION OF SELLER’S DAMAGES IN THE EVENT OF A BREACH.
J. If Buyer breaches Section 13 of these Terms, Buyer agrees to provide Seller with a list of customers to whom Buyer has sold in the last twelve (12) months and participate in an audit performed by Seller of where the Goods have been sold in violation of these Terms.
K. Notwithstanding anything to the contrary in these Terms, this Section 13 is void where prohibited by law.
14. COMPLIANCE WITH LAWS.
A. Buyer shall be solely responsible for compliance with all applicable laws, regulations, and ordinances and shall obtain all necessary permits, licenses, approvals, and registrations as may be required for the sale, marketing, distribution, and advertisement of the Goods, including U.S. and other applicable export control laws, sanctions laws, anti-boycott laws, and anti-corruption laws, and shall assume the related costs and expenses thereof.
B. Buyer shall comply with all applicable economic and financial sanctions laws (“Sanctions Laws”), including those enforced by the Office of Foreign Control Assets of the U.S. Department of Treasury (“OFAC”), the European Union, or the United Kingdom. It shall not directly or indirectly sell, supply, transfer, or export Goods to any entity or person subject to sanctions (“Sanctioned Entity”) or to country or region subject to comprehensive U.S. sanctions/embargo (“Sanctioned Territory”), as designated by OFAC, without the advance written permission of Energizer. Sanctioned Territories include Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, the so-called Donetsk People’s Republic (DNR) region of Ukraine, and the so-called Luhansk People’s Republic (LNR) region of Ukraine, and may be updated from time to time based on current law. Buyer is not directly or indirectly owned by any Sanctioned Person and is not ordinarily resident of or located in a Sanctioned Territory.
C. Buyer represents and warrants that it has not and will not use or permit the use of, export of or transfer (by any means, electronic or otherwise) of any Goods that are subject to any applicable export control laws and regulations, including but not limited to, laws and regulations of the United States, the United Kingdom, and the European Union (collectively, “Export Control Laws”), without complying in all respects with Export Control Laws including, without limitation, all relevant export authorization(s), notices and instructions in relation to any use, export or transfer of the Goods.
D. Buyer is responsible for conducting reasonable due diligence on all customers, carriers, freight forwarders, shippers, and other parties involved in the resale of Energizer products to ensure compliance with applicable Sanctions Laws and Export Control Laws.
E. Buyer shall not sell, export, or re-export, directly or indirectly, any Goods to the Russian Federation or the Republic of Belarus or for use in Russia or Belarus or to any third party if Buyer has reason to believe it intends to re-export Goods to the Russia or Belarus, shall undertake best efforts to ensure that third parties comply with this requirements, and shall maintain adequate monitoring procedures to detect violations of this prohibition by third parties.
F. Buyer shall comply with all Territory import, export, packaging, labeling, environment, health, sanitation, and registration laws and other regulatory requirements with respect to the purchase, storage, sale, distribution and environmentally proper final disposal of the Goods. Buyer shall be solely responsible for any fines or fees imposed due to Buyer’s non-compliance. Buyer shall obtain Seller’s prior consent before making any packaging modification (affixing stickers, re-packaging, etc.) to the Goods to achieve compliance.
G. Buyer shall comply with Seller’s privacy notice, which is published on the website https://energizergrouplegal.com/Energizer-Privacy-Notice-USA.html and all relevant privacy legislation and regulations pertaining to personal and sensitive data of identified or identifiable individuals (the “Privacy Rules”).
H. Buyer represents and warrants that is has not and shall not make, directly or indirectly, in connection with the Contract or in connection with any other business transaction related to Seller, a payment or gift of, or an offer, promise, or authorization to give money or anything of value to any (a) government official or (b) person or entity while knowing or having reason to believe that some portion or all of the payment or thing of value will be offered, given, or promised, directly or indirectly, to a government official or another person or entity; for the purpose of influencing any act or decision of such government official or such person or entity in their official capacity, including a decision to do or omit to do any act in violation of their lawful duties or proper performance of functions; or inducing such government official or such person or entity to use their influence or position with any government entity or other person or entity to influence any act or decision; in order to obtain or retain business for, direct business to, or secure an improper advantage for Seller or Buyer. Buyer further represents and warrants that it has taken no action and will take no action, directly or indirectly, that would constitute a violation of the provisions of any applicable anti-corruption laws, including, without limitation, the United States Foreign Corrupt Practices Act of 1977, as amended from time to time (“FCPA”), the U.S. Travel Act, the U.K. Bribery Act, and any laws enacted pursuant to the OECD Convention on Combatting Bribery of Foreign Public Officials in International Business Transactions (collectively, the “Anti-Corruption Laws”).
I. Buyer will comply with U.S. antiboycott laws and shall not engage in activities prohibited by such laws, including refusing to do business with or in a boycotted country or engaging in discriminatory practices in support of an unsanctioned boycott.
J. Buyer agrees to indemnify Seller from and against all losses (including losses arising in connection with investigations by governmental authorities) which in any way result from an actual, threatened, deemed, or alleged violation of the Privacy Rules, Anti-Corruption Laws, Sanctions Laws, Export Control Laws, or any other applicable law by Buyer.
K. Buyer shall promptly inform Energizer if it becomes aware of non-compliance or has good reason to suspect non-compliance with respect to applicable laws or terms of this agreement. Buyer shall maintain complete and appropriate bookkeeping records and retain business documentation regarding its performance under this Contract for a period of at least five (5) years.
A. Buyer shall be solely responsible for compliance with all applicable laws, regulations, and ordinances and shall obtain all necessary permits, licenses, approvals, and registrations as may be required for the sale, marketing, distribution, and advertisement of the Goods, including U.S. and other applicable export control laws, sanctions laws, anti-boycott laws, and anti-corruption laws, and shall assume the related costs and expenses thereof.
B. Buyer shall comply with all applicable economic and financial sanctions laws (“Sanctions Laws”), including those enforced by the Office of Foreign Control Assets of the U.S. Department of Treasury (“OFAC”), the European Union, or the United Kingdom. It shall not directly or indirectly sell, supply, transfer, or export Goods to any entity or person subject to sanctions (“Sanctioned Entity”) or to country or region subject to comprehensive U.S. sanctions/embargo (“Sanctioned Territory”), as designated by OFAC, without the advance written permission of Energizer. Sanctioned Territories include Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine, the so-called Donetsk People’s Republic (DNR) region of Ukraine, and the so-called Luhansk People’s Republic (LNR) region of Ukraine, and may be updated from time to time based on current law. Buyer is not directly or indirectly owned by any Sanctioned Person and is not ordinarily resident of or located in a Sanctioned Territory.
C. Buyer represents and warrants that it has not and will not use or permit the use of, export of or transfer (by any means, electronic or otherwise) of any Goods that are subject to any applicable export control laws and regulations, including but not limited to, laws and regulations of the United States, the United Kingdom, and the European Union (collectively, “Export Control Laws”), without complying in all respects with Export Control Laws including, without limitation, all relevant export authorization(s), notices and instructions in relation to any use, export or transfer of the Goods.
D. Buyer is responsible for conducting reasonable due diligence on all customers, carriers, freight forwarders, shippers, and other parties involved in the resale of Energizer products to ensure compliance with applicable Sanctions Laws and Export Control Laws.
E. Buyer shall not sell, export, or re-export, directly or indirectly, any Goods to the Russian Federation or the Republic of Belarus or for use in Russia or Belarus or to any third party if Buyer has reason to believe it intends to re-export Goods to the Russia or Belarus, shall undertake best efforts to ensure that third parties comply with this requirements, and shall maintain adequate monitoring procedures to detect violations of this prohibition by third parties.
F. Buyer shall comply with all Territory import, export, packaging, labeling, environment, health, sanitation, and registration laws and other regulatory requirements with respect to the purchase, storage, sale, distribution and environmentally proper final disposal of the Goods. Buyer shall be solely responsible for any fines or fees imposed due to Buyer’s non-compliance. Buyer shall obtain Seller’s prior consent before making any packaging modification (affixing stickers, re-packaging, etc.) to the Goods to achieve compliance.
G. Buyer shall comply with Seller’s privacy notice, which is published on the website https://energizergrouplegal.com/Energizer-Privacy-Notice-USA.html and all relevant privacy legislation and regulations pertaining to personal and sensitive data of identified or identifiable individuals (the “Privacy Rules”).
H. Buyer represents and warrants that is has not and shall not make, directly or indirectly, in connection with the Contract or in connection with any other business transaction related to Seller, a payment or gift of, or an offer, promise, or authorization to give money or anything of value to any (a) government official or (b) person or entity while knowing or having reason to believe that some portion or all of the payment or thing of value will be offered, given, or promised, directly or indirectly, to a government official or another person or entity; for the purpose of influencing any act or decision of such government official or such person or entity in their official capacity, including a decision to do or omit to do any act in violation of their lawful duties or proper performance of functions; or inducing such government official or such person or entity to use their influence or position with any government entity or other person or entity to influence any act or decision; in order to obtain or retain business for, direct business to, or secure an improper advantage for Seller or Buyer. Buyer further represents and warrants that it has taken no action and will take no action, directly or indirectly, that would constitute a violation of the provisions of any applicable anti-corruption laws, including, without limitation, the United States Foreign Corrupt Practices Act of 1977, as amended from time to time (“FCPA”), the U.S. Travel Act, the U.K. Bribery Act, and any laws enacted pursuant to the OECD Convention on Combatting Bribery of Foreign Public Officials in International Business Transactions (collectively, the “Anti-Corruption Laws”).
I. Buyer will comply with U.S. antiboycott laws and shall not engage in activities prohibited by such laws, including refusing to do business with or in a boycotted country or engaging in discriminatory practices in support of an unsanctioned boycott.
J. Buyer agrees to indemnify Seller from and against all losses (including losses arising in connection with investigations by governmental authorities) which in any way result from an actual, threatened, deemed, or alleged violation of the Privacy Rules, Anti-Corruption Laws, Sanctions Laws, Export Control Laws, or any other applicable law by Buyer.
K. Buyer shall promptly inform Energizer if it becomes aware of non-compliance or has good reason to suspect non-compliance with respect to applicable laws or terms of this agreement. Buyer shall maintain complete and appropriate bookkeeping records and retain business documentation regarding its performance under this Contract for a period of at least five (5) years.
15. GENERAL.
A. It is a condition of the sale of Goods under the Contract that Buyer is not dealing as a consumer and is purchasing the Goods in the course of its business and Buyer expressly represents and warrants the same on placing each order with Seller.
B. No waiver or delay by Seller in exercising its rights under any Contract shall prejudice such exercise or any other or future exercise.
C. If any provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision of these Terms or invalidate or render unenforceable such provision in any other jurisdiction.
D. These Terms and any Contract shall be governed and construed in accordance with the laws of the State of Missouri, U.S.A., excluding: (i) its conflicts of laws principles; (ii) the United Nations Convention on Contracts for the International Sale of Goods; (iii) the 1974 Convention on the Limitation Period in the International Sale of Goods (the “1974 Convention”); and (iv) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980. Any dispute arising in connection with these Terms or any Contract must be resolved by arbitration in St. Louis, MO, U.S.A with the rules, procedures, and practices of the ICC Court. The Arbitral Court must be composed of three (3) independent arbitrators. Each party appoints an arbitrator, and the two appointed arbitrators will jointly appoint the third member of the Arbitral Court.
E. Buyer shall not assign any benefit under the Contract.
F. Where Seller permits Buyer to use Seller’s electronic data interchange (EDI) system for the conduct of business under these Terms, Buyer shall use EDI fully in accordance with Seller’s EDI policies and protocols from time to time.
G. Buyer acknowledges that Seller may receive business contact information from Buyer in connection with the sale of Goods. Buyer represents that it has secured the rights for Seller to process this business contact information as necessary. Buyer is solely responsible for ensuring that the data subjects to which such business contact information pertains have received all notices and given all consents that may be necessary to permit Seller to engage in such processing activity under applicable data protection law.
A. It is a condition of the sale of Goods under the Contract that Buyer is not dealing as a consumer and is purchasing the Goods in the course of its business and Buyer expressly represents and warrants the same on placing each order with Seller.
B. No waiver or delay by Seller in exercising its rights under any Contract shall prejudice such exercise or any other or future exercise.
C. If any provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision of these Terms or invalidate or render unenforceable such provision in any other jurisdiction.
D. These Terms and any Contract shall be governed and construed in accordance with the laws of the State of Missouri, U.S.A., excluding: (i) its conflicts of laws principles; (ii) the United Nations Convention on Contracts for the International Sale of Goods; (iii) the 1974 Convention on the Limitation Period in the International Sale of Goods (the “1974 Convention”); and (iv) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980. Any dispute arising in connection with these Terms or any Contract must be resolved by arbitration in St. Louis, MO, U.S.A with the rules, procedures, and practices of the ICC Court. The Arbitral Court must be composed of three (3) independent arbitrators. Each party appoints an arbitrator, and the two appointed arbitrators will jointly appoint the third member of the Arbitral Court.
E. Buyer shall not assign any benefit under the Contract.
F. Where Seller permits Buyer to use Seller’s electronic data interchange (EDI) system for the conduct of business under these Terms, Buyer shall use EDI fully in accordance with Seller’s EDI policies and protocols from time to time.
G. Buyer acknowledges that Seller may receive business contact information from Buyer in connection with the sale of Goods. Buyer represents that it has secured the rights for Seller to process this business contact information as necessary. Buyer is solely responsible for ensuring that the data subjects to which such business contact information pertains have received all notices and given all consents that may be necessary to permit Seller to engage in such processing activity under applicable data protection law.