1. Introduction: These Terms and Conditions (“Terms”, “Agreement”) govern the relationship and obligations between FormuNova LLC (“we”, “us”, “our”) and the Client (“you”, “your”, “buyer”) for the provision of product development and manufacturing services. By placing an order with us, you agree to be bound by these Terms.
2. Deposit and Payment:
2.1 Unless stated otherwise in your proposal, upon placing an order you will be required to pay a deposit amounting to 50% of the total custom manufacturing value.
2.2 The remaining balance, as well as the shipping costs (when applicable) and quality testing fees, shall be due and payable when the order is ready for shipment.
2.3 All payments shall be made in US Dollars and using payment methods approved by us.
2.4 Manufacturing orders will be shipped once final payment is received.
3. Quality Testing:
3.1 A quality testing fee of $80 applies to each individual custom product within an order.
3.2 The said fee covers microbiology testing procedures for each batch.
4. Shipping:
4.1 Our shipping terms are EXW. You may arrange shipping directly with your preferred carrier. We will provide the necessary weight and dimensions of the final volume post-manufacturing and will receive the shipping labels from you.
4.2 Alternatively, upon request, we can arrange shipping on your behalf, selecting the most cost-efficient carrier. Shipping costs will be billed separately and detailed in the final invoice.
4.3 Under EXW terms, title and risk of loss — including damage from temperature, handling, or conditions in transit or storage — pass to the Client upon tender at our facility.
5. Labeling:
5.1 We provide essential product information and the die-cut template required for label or packaging print design (when applicable).
5.2 Upon receiving your finalized label design, we undertake the responsibility of managing the printing process (when applicable).
5.3 Label printing costs are already included in the price of Custom Manufacturing (when applicable, unless stated otherwise).
6. Specification, Production and Lead Time:
6.1 Specification and Approval. After you place your order, we will prepare a finished-product specification for your product (the “Specification”). Production will not begin until you have given final written approval of the Specification. Upon your approval, the Specification becomes part of this Agreement and is the definitive and controlling description of the goods for all purposes, including determining whether goods conform. The approved Specification supersedes any conflicting description, sample, model, rendering, or statement made before approval, including in the proposal or during R&D.
6.2 Prior to placing an order you will have received an estimated lead time for your order. This duration is an estimate and may be subject to changes based on various factors.
6.3 Due to natural fluctuations in production yields, you may receive from 90% to 110% of the ordered units in your final production batch. The final charge will be based on the actual shipped units and the final quoted price.
6.4 We guarantee as part of the Specification of each product that the ingredient list and concentrations will be 100% consistent between the final approved R&D sample and production, up to the limitations of our industry-standard, 3rd-party calibrated and audited scales; however, variability in color and/or scent and/or texture may be observed due to the different size of tanks and mixers and expected variability of natural ingredients. Such variability is considered normal, within specification, and is not, by itself, a basis for rejection, return, refund, or a claim of nonconformity.
6.5 Custom-manufactured or custom-labeled goods are produced to buyer-approved specifications and are non-cancellable and non-returnable. Buyer must inspect goods upon receipt and provide written notice of any claimed nonconformity within 10 days of tender; absent timely notice, goods are deemed accepted. Remedies for any nonconformity claim are limited to replacement or credit toward a replacement or future order of the units that fail to meet the Specification, and this is your sole and exclusive remedy.
7. Warranties:
7.1 Limited Warranty. We warrant that, at the time of tender at our facility, each finished product will (a) conform in all material respects to the Specification, subject to the natural and processing variability described in Section 6.4, and (b) be manufactured in accordance with applicable good manufacturing practices. The ingredient list and concentrations will be consistent with the final approved R&D sample as, and to the extent, provided in Section 6.4. These are the only express warranties we make; they run solely to you and are not transferable.
7.2 Samples and Models. Any samples, models, prototypes, or pre-production units we provide are for illustrative and evaluation purposes only. They establish an approximate description of the goods and do not create any express warranty that production goods will match the sample or model in color, shade, texture, scent, or appearance. The approved Specification — not any sample or model — is the sole and definitive standard for determining whether goods conform.
7.3 Buyer-Directed Specifications. Where you select, direct or approve any formulation, ingredient, packaging component, or design characteristic, you assume responsibility for its suitability for your intended use, including its stability and its performance in transit, storage, and distribution. We make no warranty as to the suitability of buyer-directed elements.
7.4 DISCLAIMER OF IMPLIED WARRANTIES. EXCEPT FOR THE EXPRESS LIMITED WARRANTY IN SECTION 7.1, THE GOODS ARE PROVIDED “AS IS,” AND WE DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. NO ORAL OR WRITTEN STATEMENT, ADVICE, OR REPRESENTATION BY US OR OUR REPRESENTATIVES CREATES ANY WARRANTY.
8. Limitation of Liability and Indemnification:
8.1 Our Manufacturing Responsibility. We are responsible for manufacturing your product in conformity with the approved Specification and applicable good manufacturing practices (“GMP”). Nothing in this Section limits our responsibility for defects to the extent caused by our failure to manufacture the goods in conformity with the Specification or applicable GMP (a “Manufacturing Defect”).
8.2 Sole and Exclusive Remedy for Nonconforming Goods. For any claim that the goods fail to conform to the Specification, your sole and exclusive remedy is the remedy stated in Section 6.5 (replacement or credit of the nonconforming units). This Section 8.2 governs commercial quality claims for the goods themselves; it does not limit our indemnification obligation for third-party claims under Section 8.6.
8.3 Exclusion of Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY LOST PROFITS OR REVENUE, LOST SALES, BUSINESS INTERRUPTION, COST OF SUBSTITUTE GOODS, OR HARM TO REPUTATION OR GOODWILL, ARISING OUT OF OR RELATING TO THE GOODS OR THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. This exclusion applies between the parties and does not limit amounts payable to a third party under the indemnification obligations in Sections 8.6 and 8.7.
8.4 Liability Cap. TO THE MAXIMUM EXTENT PERMITTED BY LAW, OUR TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE GOODS OR THIS AGREEMENT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO US FOR THE SPECIFIC GOODS GIVING RISE TO THE CLAIM. This cap does not apply to either party’s indemnification obligations under Section 8.6 and Section 8.7.
8.5 Client Responsibility and Assumption of Risk. You are responsible for storing, handling, shipping, and distributing the goods in accordance with the storage and handling conditions stated in the Specification. Except to the extent caused by a Manufacturing Defect, we are not liable for any defect, damage, degradation, melting, leakage, separation, or change in appearance resulting from storage, handling, or transit conditions outside those stated in the Specification, or from characteristics you selected or directed under Section 7.3.
8.6 Our Indemnification. We will defend, indemnify, and hold you harmless from and against third-party claims for bodily injury or property damage to the extent caused by a Manufacturing Defect or by our breach of the express limited warranty in Section 7.1, subject to the procedure in Section 8.8.
8.7 Your Indemnification. You will defend, indemnify, and hold harmless FormuNova LLC and its officers, members, employees, and agents (the “Indemnified Parties”) from and against any and all third-party claims, demands, actions, losses, liabilities, damages, fines, penalties, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to: (i) your marketing, advertising, promotion, product claims, or label content, including any content or claims you approved, supplied, or directed; (ii) any formulation, ingredient, packaging, component, artwork, trademark, or other material or specification you selected, supplied, or directed, including any claim that it infringes or misappropriates a third party’s rights; (iii) your storage, handling, distribution, sale, use, or recall or withdrawal of the goods; (iv) any bodily injury, property damage, or economic loss alleged to arise from the goods after tender; and (v) your violation of any applicable law or regulation, or of this Agreement — except, in each case, to the extent the claim is caused by a Manufacturing Defect or by our breach of Section 7.1.
8.8 Indemnification Procedure. The party seeking indemnification (the “Indemnitee”) will give the indemnifying party (the “Indemnitor”) notice of any claim for which it seeks indemnification. The Indemnitor will assume and control the defense and settlement with counsel reasonably acceptable to the Indemnitee; however, the Indemnitor may not settle any claim in a manner that imposes any obligation, liability, or admission on the Indemnitee without its prior written consent. The Indemnitee may participate in the defense with its own counsel at its own expense. An Indemnitee’s failure to give prompt notice relieves the Indemnitor of its obligations only to the extent it is actually prejudiced by the delay.
8.9 Allocation of Risk. You acknowledge that our pricing reflects the allocation of risk in this Agreement, including the disclaimers and limitations in Sections 6, 7, and 8, and that these provisions are an essential basis of the bargain between us.
8.10 Time to Bring Claims. Any action arising out of or relating to the goods or this Agreement must be commenced within one (1) year after the cause of action accrues; otherwise it is permanently barred, except where a shorter limitation period is not permitted by applicable law.
9. Force Majeure:
9.1 Neither party will be liable for any failure or delay in performing its obligations (other than your obligation to pay for goods already delivered or services already performed) to the extent caused by events beyond its reasonable control, including acts of God, fire, flood, earthquake, severe weather, epidemic or pandemic, war, terrorism, civil unrest, government orders, laws, or regulations, embargoes, labor disputes or strikes, utility or telecommunications failures, transportation or carrier delays, and shortage or unavailability of raw materials, ingredients, packaging, or components (each, a “Force Majeure Event”).
9.2 The affected party will notify the other within a reasonable time and use commercially reasonable efforts to mitigate the effects of the Force Majeure Event. Time for performance will be extended for the duration of the Force Majeure Event.
9.3 A Force Majeure Event does not excuse your obligation to pay for goods already delivered. If a Force Majeure Event prevents us from completing an order, Section 10.2 governs any resulting refund.
10. Termination and Cancellation:
10.1 Non-Refundable; Custom Orders. Because your order is custom-manufactured to your approved Specification, upon your order we procure ingredients, packaging, and components specific to your order that cannot be repurposed or resold. Accordingly, all amounts paid are non-refundable and all orders are non-cancellable and non-returnable, except as expressly provided in Section 10.2 (our inability to complete an order). For clarity: (a) claims that delivered goods fail to conform to the Specification are governed solely by Sections 6.5 and 8.2 (replacement or credit — not a refund); and (b) client-initiated cancellations are governed by Section 10.3. The only circumstance in which we provide a monetary refund is our own determination that we are unable to complete an order.
10.2 Commitment to Delivery; Our Inability to Complete. Once an order has been paid for, we will fulfill and deliver it. If we determine that we are unable to complete an order, we will refund the amounts you have paid attributable to the units we did not manufacture and make available for delivery; where an order is completed in part, the refund will be prorated accordingly. This is the sole circumstance in which a monetary refund is provided.
10.3 Order Commencement. The acceptance of our estimate initiates a chain of events within our manufacturing process, including the allocation of production capacity and the procurement of necessary ingredients. Given this commitment of resources:
• If a Client chooses to cancel an order before the manufacturing process has begun, the initial deposit will be retained by us to cover these commitments and will not be refundable.
• If a Client chooses to cancel an order after the manufacturing process has started or has been completed, the entire amount of the estimate will be charged to compensate for the resources, time, and effort already expended. Additional disposal and storage charges may incur.
• Any and all charges associated with Product Development, Samples, Design Services, Consulting Services or Digital Products are non-refundable and final.
10.4 Clients are advised to consider their needs and intentions carefully before accepting the estimate, as our production process will be promptly initiated to deliver the highest quality product in the most efficient timeframe.
10.5 Late Payment. Any amount not paid when due will accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by law, from the due date until paid. You will reimburse us for all reasonable costs of collection, including attorneys’ fees.
11. Governing Law:
11.1 This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, without regard to its conflict of laws principles. Any disputes or legal actions arising out of or relating to this Agreement shall be commenced in the appropriate court within Stone Mountain, Georgia, and both parties consent to the exclusive jurisdiction of these courts.
11.2 Prevailing Party. If any party commences a legal action or proceeding to enforce or interpret this Agreement, or to collect any amounts owed under it, the prevailing party will be entitled to recover from the other party its reasonable attorneys’ fees, court costs, and expenses incurred in connection with the action or proceeding, including any appeal and any post-judgment collection efforts, in addition to any other relief to which it is entitled.
12. Amendments:
We may update or amend these Terms from time to time without prior notice. The version applicable to your order is the version in force on the date of the order.
13. General Provisions:
13.1 Entire Agreement. These Terms are accepted when you place your order. Together with the applicable proposal or Product Development Sheet, and the finished-product Specification once approved by you under Section 6.1, they constitute the entire agreement between the parties regarding the goods and supersede all prior or contemporaneous statements, samples, representations, and understandings, whether oral or written. No addition to or modification of these Terms is binding unless in a writing issued or countersigned by us. In the event of a conflict, these Terms govern the legal and commercial terms, and the approved Specification governs the description and conformance of the goods.
13.2 Severability. If any provision of this Agreement is held invalid or unenforceable, it will be modified to the minimum extent necessary to make it enforceable, or if it cannot be, severed, and the remaining provisions will remain in full force and effect.
14. Acknowledgment:
Your placement of an order constitutes acknowledgment and acceptance of these Terms. We are grateful for the opportunity to serve your business and strive for excellence in delivering quality products.
Thank you for considering FormuNova LLC for your product development and manufacturing needs.