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Purchase Order Terms and Conditions

1. Terms and conditions / relationship of the parties

These terms and conditions (collectively “Terms”) control the purchase of goods and services listed in this Purchase Order (“Order”) and constitute the full and complete agreement between Ulta Inc. or any of its affiliates (“ULTA” or “Buyer”) and Supplier. Any prior offers regarding such purchase is rejected. In the event of any conflict between any provisions written by Buyer that are part of this Order, including any exhibits attached hereto, and these Terms, such written provisions shall control. The parties agree that if one or more master or governing agreements are in effect between the parties as of the issuance of this Purchase Order, then the terms and conditions of those agreements shall supersede any conflicting terms and conditions in the this Purchase Order and the remaining terms and conditions of this Purchase Order shall remain in effect. There are no oral or written collateral representations, agreements or understandings except as referenced herein. Each party acknowledges that it is not entering into this Order on the basis of any representations that are not expressly contained in this Order. These Terms may not be waived or amended except in writing by Buyer. Supplier shall provide goods and perform services as an independent contractor. Nothing in this Order shall be construed to constitute Supplier as an agent or employee of Buyer, or imply a joint venture or principal and agent relationship between the parties.

2. Order acceptance / cancellation

Issuance of this Order constitutes an offer expressly limited to the Terms. Supplier’s acceptance, which acceptance shall be (a) Supplier’s written confirmation of acceptance of this Order which may be provided via email or through an order confirmation submitted electronically through the SAP Business Network, (b) Supplier’s commencement of services or delivery of goods to Buyer, or (c) failure to raise any issues with this Order within 48 hours of receipt, whichever occurs first, shall be deemed agreement to such Terms. Any modification of these Terms by Supplier shall be deemed a material alteration and is expressly objected to and rejected by Buyer. Upon notice to Supplier, Buyer may terminate this Order or any part hereof and/or reject any alleged acceptance by Supplier at any time prior to (a) Supplier’s complete delivery of all conforming services to Buyer or (b) Supplier’s delivery of conforming goods to Buyer and Buyer’s acceptance thereof and in such case, Buyer will only pay Supplier an amount equal to a percentage of the Order price reflecting the amount of services performed or goods accepted prior to Buyer’s notice. Buyer’s inspection testing, payment or use of the goods or services shall not constitute acceptance thereof and shall not affect Supplier’s obligations and warranties set forth herein, which shall survive Buyer’s inspection, testing, acceptance and/or use. Notwithstanding any provision to the contrary and in addition to any other remedy, Buyer may (i) within 90 days of delivery, return any unaccepted or unused goods to Supplier for full refund or (ii) cancel this Order in whole or in part upon notice in the event: (a) Supplier fails to make delivery at the time provided; (b) Supplier fails to comply with any other term or condition of this Order or any other Order from Buyer within ten (10) days of the demand; (c) a receiver or other similar officer is appointed over any or all of Supplier’s property or assets; (d) Supplier files a voluntary petition in bankruptcy, or an involuntary petition in bankruptcy is filed against Supplier; (e) Supplier merges with or is acquired by a third party; (f) Supplier assigns, delegates or subcontracts this Order or any of its rights or obligations hereunder without prior written consent of Buyer; or (g) Supplier fails any quality requirements, including, but not limited to, audits and inspections by Buyer, a third party or the government or any governmental agency. Buyer shall have no liability to Supplier beyond payment of any balance owed for goods or services delivered to and accepted by Buyer prior to Buyer’s sending notice of termination. Upon receipt of Buyer's notice, Supplier shall immediately stop and cause all suppliers and subcontractors to stop all performance hereunder.

3. Price and Payment

Supplier shall furnish goods or services in accordance with the Terms stated herein. Unless otherwise stated, the price terms contained herein include all costs or charges of any kind that will be paid by Buyer, and Buyer shall not be liable for any other costs or charges, including, without limitation, charges for inspection, packaging, crating and shipping; all applicable sales, use and excise taxes; and any customs duties. Supplier warrants that the prices to be charged for articles or services ordered herein are not in excess of prices charged to other customers similarly situated, for similar quantities of goods of like quality. Supplier shall issue invoices only upon delivery of the goods or completion of services ordered by Buyer hereunder. Unless otherwise authorized by an ULTA representative, all invoices for Purchase Orders issued to Supplier via the SAP Business Network must be submitted back to ULTA via the SAP Business Network. Supplier must pass through Buyer’s purchase order number on such invoice. If Buyer has a claim against Supplier resulting from this Order or any other transaction, Buyer may set off such amounts from Supplier’s invoice and only authorize payment for the undisputed amounts. Unless different payment terms are specified on the face hereof, Buyer shall issue payment within sixty (60) days of its receipt of a correct and conforming invoice. Payment is contingent upon delivery by Supplier of conforming goods or satisfactory completion of services. In no event shall Buyer be obligated to pay interest or penalties on any amounts. Any attempt by Supplier to create a security interest in delivered goods is expressly rejected by Buyer and shall be without effect. Except as may be otherwise provided in this Order, the contract price shall include all applicable Federal, State and local taxes of any kind in effect on the contract date.

4. Cash Discount and Set Offs

Discounts shall be calculated from the date the goods or services are received by Buyer at the destination designated in the Order. Buyer may at any time set off any amount owing from Supplier to Buyer, or Buyer’s subsidiaries, against any amount due and owing to Supplier or any of Supplier’s subsidiaries, pursuant to this Order or any other agreement between Buyer and Supplier or their respective subsidiaries or affiliates.

5. Delivery, F.O.B. point, title. Risk of loss. Time is of the essence

Delays in shipment shall be reported immediately to Buyer. Buyer reserves the right to cancel this Order in whole or in part if Supplier fails to make deliveries in accordance with the terms of the Order and any Corporate Purchase Agreement referenced therein. F.O.B. point shall be Buyer’s location unless different shipping terms are specified on the face of this Order. Notwithstanding any prior inspection and F.O.B. point, Supplier shall bear all risk of loss until final inspection and acceptance of goods by Buyer. Supplier shall also bear all risk of loss with respect to goods rejected by Buyer. Subject to inspection and acceptance, Buyer will be liable for payment only for quantities ordered and delivered. Overshipments or non-conforming goods shall be held at Supplier’s risk and expense for a reasonable time waiting shipping instructions. Shipping charges for returns are at Supplier’s expense. If any goods or services are defective in material or workmanship or otherwise not in conformity with the requirements of this Order, Buyer shall have the right either reject them and to (i) return them at Supplier’s risk and expense, including transportation both ways with Supplier providing a full refund to Buyer within thirty (30) days or (ii) to require their correction at Supplier’s sole cost.

6. Indemnification, limitations of liability

Supplier agrees to indemnify, and save harmless Buyer, its successors, assigns, and its customers from and against any and all expenses, liabilities or other losses (including attorneys’ fees and costs) arising from or by reason of goods and services covered by this Order, Supplier’s acts, omissions or negligence, or any Intellectual Property Rights (as defined below), and to defend any suits based thereon, with respect to the goods and services furnished by Supplier. Without limitation, such obligation to indemnify shall exist with respect to claims and demands relating to: (a) any goods; (b) any part of such goods; or (c) any combination of such goods, other hardware, and/or other software wherein such infringement would not occur but for such goods being a part of such combination, infringes on any Intellectual Property Rights (as defined below), foreign or domestic. If, as the result of an action as set forth above, the sale or use of any goods, or part thereof, is enjoined by court order, Supplier shall, at its expense: (a) procure for Buyer the right to continue selling and/or using the goods, (b) replace or modify the goods with functionally-equivalent, non-infringing goods (subject to Buyer’s approval and satisfaction), or (c) return the purchase price of each unit of goods that Buyer is unable to ship due to the injunction. The indemnity set forth in this paragraph shall apply notwithstanding that the goods sold hereunder may have been produced by Supplier in compliance with specifications furnished by Buyer. Any attempt by Supplier to perform the following is expressly rejected and is ineffective: (a) disclaim any theory or grounds upon which Buyer, or successive purchasers of the goods and services covered hereby (collectively “Purchasers”), might recover against Supplier; (b) limit its liability by means of a “Force Majeure” or similar term; (c) disclaim any kind or class of damages; (d) establish time limitation periods within which the Purchasers are obligated to assert claims against Supplier. Buyer and any successive purchasers of the goods and services covered hereby retain and shall be entitled to assert all rights and claims available to them at law or equity against Supplier in respect of the transactions subject to this Order. For purposes of these Terms, “Intellectual Property Rights” means, collectively, all of the following worldwide intangible legal rights, whether or not filed, perfected, registered or recorded and whether now or hereafter existing, filed, issued or acquired: (i) patents, patent applications, and patent rights, including any and all continuations, divisions, reissues, reexaminations or extensions thereof; (ii) rights associated with works of authorship, including by not limited to copyrights, copyright applications and copyright registrations, moral rights; (iii) rights relating to the protection of trade secrets and confidential information, including but not limited to rights in industrial property, customer, Supplier and prospect lists and all associated information or databases and other confidential or proprietary information; (iv) trademarks, service marks, logos, trade dress, trade names, service names, and industrial design rights; and (v) any rights analogous to those set forth in the preceding clauses and any and all other proprietary rights relating to intangible property.

7. Warranty

Supplier warrants that: (a) all goods or services will conform to the design specifications and drawings, samples or other descriptions referred to in this Order; (b) all goods will be new and Supplier has good title to the goods and has conveyed such title to Buyer free and clear of all liens and encumbrances; (c) Supplier possesses, and shall maintain insurance with coverage of at least the amount Buyer shall pay Supplier for the goods and services; (d) all services performed under this Order are performed in a good and worker like manner that equals or exceeds the applicable industry standards; (e) the goods are merchantable and fit for their intended purpose and are free from defects in design, material and workmanship; and (f)Supplier shall comply with all applicable laws, rules and regulations. Supplier shall comply with the Ulta Supplier Standards set forth at as may be amended from time to time. Supplier acknowledges and affirms that Buyer has disclosed to Supplier the purposes for which the goods are intended, and that Buyer is relying on Supplier to furnish suitable goods. Such warranties shall survive any inspection, delivery, acceptance, or payment by Buyer of the goods or services, for a period equal to the longer of the date set forth in the manufacturer’s warranty or six months following date of shipment, unless otherwise specified herein. Such warranties shall run to Buyer, its successors, assigns, customers or users of its products.

8. Buyer's Property

All materials including tools, furnished or paid for by Buyer unless otherwise specified herein, shall be the property of the Buyer, shall be subject to removal at any time without additional cost upon demand by the Buyer, shall be used only in filling orders from the Buyer, shall be kept separate from other materials or tools, and shall be clearly identified as the property of the Buyer. Supplier assumes all liability for loss or damage, with the exception of normal wear and tear, and agrees to supply detailed statements of inventory promptly upon request.

9. Title Specification

Buyer shall at all times have title to all drawings and specifications furnished by Buyer to Supplier and intended for use in connection with this Order. Supplier shall not disclose such drawings and specifications to any person, firm or corporation other than Buyer’s or Supplier’s employees or subcontractors. Supplier shall, upon Buyer’s request, promptly return all drawings and specifications to Buyer.

10. Potential Delays

Supplier shall notify Buyer immediately if Supplier obtains knowledge of any material shortage, governmental regulation, labor dispute or other event or impediment that could result in delay in delivery.

11. Potential Delays

The rights and remedies provided by Buyer herein shall be cumulative and in addition to any other rights and remedies provided by law or equity (or provided under the Uniform Commercial Code).

12. Waiver

All waivers must be in writing. Waiver of breach of any provision of this Order shall not constitute waiver of full compliance with such provision nor shall it be a continuing waiver or a waiver of any other breach.

14. Subcontracting

Supplier shall notify ULTA in writing in advance of Supplier’s desire to retain any subcontractors to support the performance of the Services. ULTA reserves the right, in its sole discretion, to disapprove such retention. Supplier shall also be liable for any subcontractor it hires to perform the Services for ULTA, and covenants that such subcontractors shall, prior to performance of any Services, agree in writing to be bound by the terms of this Agreement. Supplier agrees promptly to furnish copies of such agreements signed by subcontractors. In addition, Supplier shall expressly notify any such subcontractor in writing that such subcontractor is not permitted to further subcontract the provision of Services to any third party subcontractor without (1) first notifying Supplier and Buyer of such planned subcontracting in writing; and (2) obtaining BOTH Supplier and Buyer’s prior written approval to such subcontracting.

15. Confidentiality / Publicity

Supplier, its employees, agents and representatives, shall consider as Buyer’s "Confidential Information," all non-public information provided by Buyer, all specifications or other documents prepared by Supplier in connection herewith, the fact that Buyer has contracted to purchase goods or services from Supplier, and all other non-public information relating to this Order. Without Buyer's prior written consent, Supplier shall not (a) disclose or use Confidential Information for any purpose other than performing this Order, (b) announce, publicize or discuss with third parties the subject matter of this Order, (c) include Buyer’s name or trademarks in any marketing materials or (d) disclose that Buyer is Supplier’s customer. The foregoing provisions shall be subject to the terms of any other written agreement executed by the parties relating specifically to confidentiality, non-disclosure and/or publicity.

16. Entire Agreement

These Terms, including any attachments and/or any Statements of Work issued hereunder, represent the entire agreement of the parties hereto related to the subject matter hereof, and any prior agreements, promises, negotiations, or representations, whether oral or written, not expressly set forth in these Terms are superseded and of no force and effect. These Terms may be modified only in a writing signed by authorized representatives of both parties. There are no oral or written collateral representations, agreements or understandings except as provided herein. Each party acknowledges that it is not entering into these Terms on the basis of any representations not expressly contained herein.