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Purchasing Terms and Conditions
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Vitamin, Supplement, Nutritional & Nutraceutical Manufacturer — Purchasing Terms and Conditions |





      The purchase order, together with these terms and conditions (“Terms and Conditions”), and any attachments and exhibits, specifications, instructions and other information, whether physically attached or incorporated by reference (collectively, the “Purchase Order”), constitutes the entire and exclusive agreement between FDC Vitamins, LLC, d/b/a Nutramed (“Nutra-Force's”) and the vendor (“Vendor”) for the purchase of raw materials (“Raw Materials”) identified in the Purchase Order.  Nutra-Force’s submission of the Purchase Order is conditioned on Vendor’s agreement that any terms different from or in addition to the terms of the Purchase Order, whether communicated orally or contained in any purchase order confirmation, invoice, acknowledgment, release, acceptance or other written correspondence, irrespective of the timing, shall not form a part of the Purchase Order, even if Vendor purports to conditions its acceptance of the Purchase Order on Nutra-Force’s to such different or additional terms.  Vendor’s electronic acceptance, acknowledgment of this Purchase Order or commencement of performance constitutes Vendor’s acceptance of these terms and conditions.  If a master agreement (“Master Agreement”) covering procurement of the product described in the Purchase Order between Vendor and Nutra-Force exists, these Terms and Conditions will prevail over any inconsistent terms therein.


      Vendor shall provide to Nutra-Force, the invoice cost to Nutra-Force for the Raw Materials, and Nutra-Force may then issue individual Purchase Orders applying any discounts and allowances agreed to in writing between the parties; setting the quantities ordered and delivery dates for the Raw Materials.  Vendor must provide Nutra-Force at least ninety (90) days prior written notice of any proposed price increases.  Vendor shall be deemed to have irrevocably accepted and agreed to a Purchase Order upon the earlier of Vendor’s: (a) commencement of activities to fulfill the Purchase Order; and (b) failure to object to the Purchase Order within two (2) business days of receipt.  Nutra-Force shall have the right in its sole and absolute discretion to increase, decrease or cancel a Purchase Order as to all or any of the Raw Materials within forty-eight (48) hours after releasing the Purchase Order.  Nutra-Force may cancel all or any part of an order that is not shipped by the “Scheduled Date” on the Purchase Order.  Payment terms shall be calculated based on the later of: (i) the date of receipt of a correctly completed invoice; and (ii) Raw Material receipt date at Nutra-Force destination.  All freight from the Vendor to Nutra-Force is FOB Destination, Freight Prepaid.  Nutra-Force shall have the right to refuse or return any Raw Materials that do not conform to all of the representations and warranties set forth herein for direct payment by check or electronic fund transfer to Nutra-Force, including transportation, handling and disposition costs.  In addition, any Raw Materials that have been seized or condemned shall be deemed to have been returned to Vendor hereunder.  Vendor must arrange with the carrier for the freight to be picked up, and Vendor shall be responsible for any delivery notification fees that the freight carrier charges.  No fuel, freight, shipping, or pallet charge may be added on to an invoice.  Nutra-Force may, at any time, set-off amounts Vendor owes Nutra-Force against any amounts Nutra-Force owes to Vendor or any of its affiliated companies.


      Vendor represents, warrants, and covenants to Nutra-Force in addition to all warranties implied by law, that the Raw Materials shall: (a) be exactly as described in any accepted Purchase Order; (b) be free from defects in design, workmanship or materials, including, without limitation, such defects as could create a hazard to life or property; (c) be of merchantable quality and fit and safe for consumer use; (d) be exactly the same as any sample that may have been provided to and approved by Nutra-Force; (e) be manufactured, packed for shipment, stored and shipped in accordance with, or in a manner that shall meet or exceed, the requirements of the Food and Drug Administration’s Current Good Manufacturing Practices regulations (“cGMPs”) for dietary supplements (at 21 C.F.R. Part 111) unless Nutra-force has specifically notified Vendor in writing that the ingredient will only be used in conventional foods, in which case the Product shall be manufactured, packed for shipment, stored and shipped in accordance with the Food and Drug Administration’s (“FDA”) cGMPs” for food (at 21 C.F.R. Part 110) and, if applicable, in conformance with the FDA’s recommended good manufacturing practices for cosmetics, and shall be consistent with accepted industry practice, (f) not infringe or encroach upon any party’s personal, contractual or proprietary rights, including patent, trademark, trade name, service mark, copyright, right of privacy or trade secret rights; (g) conform to all descriptions of the Raw Materials presented by Vendor to Nutra-Force and all Raw Material specifications; (h) possess all performance qualities and characteristics claimed in trade publications and advertisements issued or authorized by Vendor; (i) be in full compliance with all federal, state and local laws, and regulations (“Applicable Law”); (k) be in full compliance with all applicable governmental, legal, regulatory and professional requirements, including without limitation, all Applicable Laws, codes, regulations, rules, ordinances, judgments, orders and decrees, including without limitation, those related to, fair trade and antitrust, customs, immigration, labor, employment, working conditions, worker health and safety, branding and labeling, adulteration and contamination: (l) meet Nutra-Force’s minimum shelf life for Raw Materials that carry a shelf life to the extent that a shelf-life is stated in the Purchase Order; (m) not be, as of shipment or delivery, adulterated or misbranded within the meaning of the Food, Drug and Cosmetic Act, the regulations thereunder or any other Applicable Law; (n) not be an article which may not, under the provisions of Sections 402, 403, 403B, 413, 601 or 602 of the Food, Drug and Cosmetic Act, or any other Applicable Law, be introduced into interstate commerce; (o) not be excluded from coverage under the insurance policy referenced in Section 9 below; (p) not contain conflict minerals as are generally recognized as such by United States and European governmental entities; and (q) comply with the bovine materials requirements at 21 C.F.R. § 189.5 and 21 C.F.R. § 700.27 and should be traceable to the original supplier. 

      In addition to the foregoing, Vendor represents, warrants, and covenants to Nutra-Force that the Raw Materials either: (x) were marketed in the United States before October 15, 1994, or (y) a New Dietary Ingredient Notification was filed with the FDA. 


      Vendor will supply Nutra-Force with a Certificate of Analysis (“COA”) for each batch of Raw Materials delivered.  The COA must specify the Raw Materials, specifications, test results obtained for the particular lot, test method reference, “best by” date or retest date (if applicable), and the signature of the person authorized to release the lot.  Included with each COA, Vendor must provide copies of test data sheets and all chromatograms for the applicable analytical tests. Vendor shall include with the COA any record of any investigation report prepared in response to an unplanned deviation or out-of-specification test result. Upon Nutra-Force’s request, Vendor shall submit a photocopy of an executed batch record along with the COA.


      Vendor, at its expense, shall perform all stability, validation and other raw material and in-process and finished product tests, as applicable, or checks required by the specifications and Applicable Laws and regulations in order to assure the conformity of the Raw Materials to the specifications.  Products that do not strictly comply with the specifications, Applicable Laws, or the Purchase Order shall not be shipped by Vendor.


      Vendor shall immediately notify Nutra-Force if any Raw Materials shall become subject to a warning, withdrawal or recall, or Vendor becomes aware that any Raw Materials previously delivered to Nutra-Force do not meet the assurances contained herein. Similarly, Vendor shall immediately notify Nutra-Force if any regulatory agency or law enforcement body provides any notice or observation of potential noncompliance of any Raw Materials with Applicable Law (e.g., a form FDA 483 issued after an FDA inspection or an FDA Warning Letter). Nutra-Force shall have sole responsibility for initiating and managing any recall of Nutra-Force’s finished products which contain Raw Materials supplied by Vendor. Vendor shall be informed prior to the initiation of a recall to the extent that such recall arises out of a breach of Vendor’s obligations hereunder. 

      There shall be timely exchange of information between Vendor and Nutra-Force about any potential recall. Vendor shall immediately inform Nutra-Force in writing of any circumstances that have come to its attention, which may make a recall necessary. In the event any regulatory authority requires or requests a recall, Nutra-Force or Vendor shall promptly notify the other party. Within 24 hours of learning that there is a reasonable probability that the use of, or exposure to, any Raw Materials will cause serious adverse health consequences or death to humans or animals, Nutra-Force and Vendor shall discuss and coordinate reporting to FDA’s reportable food registry. Within 48 hours of learning that a recall may be necessary, Nutra-Force and Vendor shall discuss details of the recall strategy. Nutra-force shall require a certificate of disposal should Raw Materials be returned to Vendor as the result of a recall. 


      Nutra-Force and Vendor may each (the “Recipient”) have access to certain commercially valuable or otherwise proprietary or confidential information relating to the operations, products, sales and business of the other party and their affiliated and related companies or third parties (the “Discloser”) including, without limitation, trade secrets, processes, promotional information, item rankings, data and know-how, software programs, techniques, marketing plans, strategies, forecasts, unpublished copyrightable material, consumer lists, personal information with respect to employees, customers or others, sources of supply, prospects or projections, or any other proprietary or confidential matter, (“Confidential Information”). Confidential Information can be contained in any medium, including verbal form, graphic form, machine readable or electronic form, or written or other tangible form, whether or not marked as confidential. Confidential Information shall exclude any information that: (a) is or becomes part of the public domain through no wrongful act or failure to act on the part of the Recipient, (b) that is rightfully received by Recipient from a third party in possession of it who was not subject to any restrictions on the disclosure of such information; (c) is approved in writing for release by an authorized officer of the Discloser, (d) which has been independently developed by Recipient (as evidenced by its written records) without violation of this Agreement or any rights of the Discloser hereto or (e) required by any governmental authority having jurisdiction over that party asserting a right to obtain such Confidential Information, provided however, that prior to any such disclosure pursuant to this clause (e), the Recipient shall promptly advise the Discloser in the event of any request by a governmental authority for the Confidential Information so that the Discloser may have the opportunity to seek a protective order or to take other appropriate action to protect the Confidential Information. Without limiting the generality of the foregoing, Vendor acknowledges and agrees that any and all of Nutri-Force’s intellectual property and trade secrets, and information relating to any and all aspects of Nutra-Force’s distributing and marketing of Vendor’s products are the Confidential Information of the Nutra-Force. The obligations with respect to Confidential Information shall survive termination of the Agreement for a period of two (2) years. Nutra-Force and Vendor agree that, except as directed by Discloser, Recipient will not at any time, use for the Recipient’s benefit or disclose to any person for any purpose any Confidential Information, or permit any person to use, examine and/or make copies of any documents, files, data or other information sources which contain or are derived from Confidential Information, whether prepared by Recipient or otherwise coming into the Recipient’s possession or control, without the prior written permission of Discloser. Recipient shall maintain security procedures and practices sufficient to protect the confidentiality of Confidential Information from unauthorized access, destruction, use modification or disclosure. The parties shall return the Confidential Information and all corresponding files when the Agreement has expired or has been terminated by any party.

      Vendor shall obtain Nutra-Force’s written consent prior to any publication, presentation, public announcement, or press release concerning its relationship as a supplier to Nutra-Force. 


      Vendor shall indemnify, defend and hold harmless Nutra-Force, its parent, affiliates, subsidiaries, and their respective officers, directors, agents and employees, from and against any and all claims, liabilities, losses, damages and expenses (including attorneys’ fees and costs, increased and/or punitive awards) which arise out of or are related to: (a)  any actual or alleged defect in the Raw Materials; (b) the failure of the Raw Materials to comply with any of the Assurances set forth above or any other express, implied or statutory warranties, whether or not any demand for payment is made to Vendor and/or any lawsuit is actually filed against Nutra-Force; (c) bodily injury, death or damage to personal property arising out of or relating to the Raw Materials; and (d) Vendor’s breach of any of the Assurances set forth above, any other provision in this Agreement, or any other express, implied or statutory warranties.


      Vendor represents and warrants that as of the date hereof it maintains, and at all times while it is supplying Raw Materials to Nutra-Force it shall continue to maintain, a General Liability Insurance Policy (the “Insurance Policy”) in amounts sufficient to protect Nutra-Force and Vendor from the liabilities insured against thereunder, which policy contains a contractual liability endorsement with no exclusions for Raw Materials offered to Nutra-Force.  Nutra-Force must be named as an additional insured on the Insurance Policy, and upon written request of Nutra-Force, Vendor shall provide Nutra-Force with a certificate of insurance naming Nutra-Force as an additional insured accompanied by an actual copy of the additional insured endorsement.


      This Agreement may be executed in one or more counterparts, each of which when executed shall be deemed to be an original, but all of which taken together shall constitute one and the same agreement.  This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey without giving effect to the choice of law principles of such State.  Vendor agrees that the Federal and State courts located in Miami-Dade County, Florida shall have the exclusive jurisdiction and venue over any claims or disputes brought by Vendor against Nutra-Force, and Vendor expressly waives its right to a jury trial. This agreement may be executed and delivered by electronic facsimile or scanning transmission with the same force and effect as if it were executed and delivered by the parties simultaneously in the presence of one another.

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