Terms and Conditions
By accepting this quotation or acknowledgement and/or placing an order, Buyer agrees to be bound by all terms, regardless of any terms in Buyer's communications.
1. Title. Title to and risk of loss for all Products shall pass to Buyer when the Products are loaded on a trailer or rail car at such manufacturing plant. Products include the items described on the attached quote sheet and any replacements or substitutes for such items.
2. Raw Material Price Adjustments. Prices may be adjusted (up or down) on no less than thirty (30) days prior written notice from Seller to Buyer at any time during the term for changes in the price of raw materials. The initial prices for Products reflect current market resin prices. The resin price adjustment shall be calculated, unless otherwise provided in the attached quote sheet, as follows: for each $0.01 per pound change, the price for Products will be increased/decreased by the following factor: $0.025 x gram weight per Products = price increase/decrease per thousand (1,000) Products. All raw materials purchased by Seller for Buyer (i.e., colorant, corrugate, labels, liners, etc.) shall be purchased by Buyer (and Seller will bill back and invoice Buyer) should Buyer's purchase order be cancelled or the Product not taken by Buyer in a reasonable time period. In the event of such a bill back, Buyer shall have, upon payment of the amount owing, the right to receive any such raw materials so purchased.
3. Quantities. If Buyer wishes to exceed its initial quantities estimate it shall provide notice to Seller in sufficient time to allow Seller to adjust its manufacturing capability to meet the additional requirements. Seller shall not be responsible for its failure to supply excess quantities unreasonably disproportionate to the stated estimate.
4. Acceptance of Delivery. Buyer shall accept delivery of the Products hereunder if the delivery complies in all material respects with the Specifications (described and defined below in Paragraphs 7 and 8). Buyer shall inspect all of the Products delivered hereunder within ten (10) days of their delivery. Buyer shall provide Seller with written notice of its rejection of a delivery, in whole or in part, within thirty (30) days of such delivery. Any notice of rejection shall specify in detail the reason(s) for rejection. If Buyer shall fail to provide Seller with such written notice within thirty (30) days of delivery, then the delivery shall be deemed to have accepted by Buyer as of the thirtieth day after delivery. A delivery shall be deemed to have complied in all material respects with the Specifications if defective Products are not in excess of one percent of all Products contained in the delivery (the Allowance). If Buyer shall send a notice of rejection, or otherwise make a claim within the time frames set forth below in Paragraph 6, then Seller shall be given an opportunity to conduct an adequate investigation in such way as it may determine the facts upon which the rejection or claim is made. Defective products shall be retained by Buyer for disposition instructions from Seller. No defective Products are to be returned by Buyer unless specifically authorized by Seller.
5. Payment Terms. All prices to be quoted by Seller are F.O.B. Seller's (or Seller's manufacturer's) manufacturing plant. Payment terms for Products shipped to Buyer are net 30 days from the date of Seller's invoice (the Due Date). Payment must be received in full by Seller no later than the Due Date or interest may be assessed by Seller (in its sole discretion) on all past due amounts at the rate of twelve percent (12%) per annum from the Due Date until the date payment is received in full. Payment terms are an extension of credit based upon an evaluation of Buyer's financial condition as reflected in written information from Buyer. Upon request, Buyer will furnish Seller financial statements and other evidence of its financial condition necessary to establish, in Seller's opinion, Buyer's ability to timely perform its obligations. If Seller reasonably believes Buyer's ability to make payments is impaired or its financial condition has materially deteriorated, Seller may from time to time amend Buyer's payment terms, require past due amounts to be paid and/or require posting of adequate security or such other documents as Seller may reasonably require. Pending receipt of requested items, Seller may withhold delivery of Products and providing services; place Buyer on a C.O.D. basis; and/or require Buyer to pay part or all of any past due amount as a condition to continued service.
6. Claims. All claims for any cause whatsoever (whether such cause be based in contract, negligence, strict liability, other tort or otherwise) shall be deemed waived unless made in writing and received by Seller within sixty (60) days after Buyer's receipt of the Products, in respect to which such claim is made, or, if such claim is for non-delivery of such Products, within sixty (60) days after the date upon which such Products were to be delivered, provided that as to any such cause not reasonably discoverable within such sixty (60) day period (including that discoverable only in processing, further manufacture, other use or resale) any claim shall be made in writing and received by Seller within one hundred eighty (180) days after Buyer's receipt of the Products, in respect to which such claim is made, or within thirty (30) days after Buyer learns of the facts giving rise to such claim, whichever shall first occur. Failure of Seller to receive written notice of any such claim within the applicable time period shall be deemed an absolute and unconditional waiver by Buyer of such claim irrespective of whether the facts giving rise to such claim shall have then been discovered or of whether processing, further manufacture, other use or resale of the goods shall have then taken place.
7. Specifications. Specifications (as defined herein) for Products shall be changed only upon the mutual written agreement of both parties.
8. Warranties. Subject to the Allowance contained in Paragraph 4 above and the limitations set forth in Paragraph 11 below, Seller warrants title and that all Products sold shall conform to the specifications (Specifications) agreed upon by both parties in writing and attached to the parties Agreement(s) (the term Agreement(s) as used in these Terms includes any Quotation(s) of Seller that are accepted by Buyer). Otherwise, SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR ANY OTHER MATTER WITH RESPECT TO THE PRODUCTS, whether used alone or in combination with other substances. Moreover, BUYER IS SOLELY RESPONSIBLE FOR DETERMINING WHETHER GOODS SOLD HEREUNDER ARE SUITABLE FOR THE MATERIALS BEING PLACED IN THEM BY OR AT THE DIRECTION OF BUYER OR THE ULTIMATE USER AND FOR DETERMINING THE PROPER METHODS OF FILLING THE PRODUCTS AND THE CLOSURES TO BE USED ON THE PRODUCTS, TAKING INTO ACCOUNT THE LIKELY STORAGE AND THE USE OF THE FILLED PRODUCTS BY BUYER, THE PACKAGER, AND/OR THE ULTIMATE USER.
9. Termination. A party shall have the right at any time to terminate the parties Agreement(s) upon the occurrence of any one or more of the following: (a) breach of the Agreement(s) by the other party in the performance of any of the terms, conditions, warranties, covenants or other provisions of the Agreement(s), which breach is not cured within thirty (30) days following written notice of such breach to the defaulting party (or within fifteen (15) days of such notice in the case of a breach of an obligation to pay money); or (b) the making by the other party of an assignment for the benefit of creditors, the appointment of a trustee or receiver or similar officer of any court for the other party, or the institution of bankruptcy or similar proceedings by or against the other party. Termination of the Agreement(s) pursuant to this Paragraph 9 is in addition to all other remedies that may exist in favor of the terminating party for a breach of the Agreement(s), and all such remedies shall be cumulative; provided, however, upon any termination pursuant to this Paragraph 9, Buyer shall remain liable to pay Seller for (i) Products produced to date of termination, (ii) raw material purchased for production in accordance with Paragraph 2 above, (iii) shipment of Products, (iv) any outstanding mold costs, and (v) any other amounts due Seller for finished goods that comply with the terms hereof.
10. Force Majeure. If Seller's performance is prevented, delayed or otherwise affected by any cause beyond its control, including labor disputes, fire, terrorism, acts of God, unavailability of Product, transportation, materials or fuel, delays by suppliers, loss of facilities or internet, telecommunication or electrical systems, voluntary foregoing a right in order to comply with or accommodate government orders or requests, compliance with any law or otherwise ("Force Majeure"), Seller may reduce or eliminate Products without liability or obligation during the Force Majeure period.
11. Limitation of Damages. Buyer's exclusive remedy for Product(s) proven to be other than as warranted shall be at Seller's option: (i) refund of the purchase price; or (ii) the repair or replacement of the Product(s) without charge, F.O.B. point of destination, but only within the Continental United States. Seller's liability for any and all loss or damage to Buyer resulting from any cause whatsoever including but not limited to Seller's negligence, damaged or defective Product(s) irrespective of whether such defects are discoverable or latent or irrespective of whether the claim arises out of tort, contract or any other legal theory, shall in no event exceed the aggregate purchase price of the particular Product(s) with respect to which losses or damages are claimed. Independent of any other provision of these Terms or otherwise, IN NO EVENT SHALL SELLER BE LIABLE TO BUYER DIRECTLY FOR BREACH OR FOR THIRD PARTY CLAIMS AGAINST BUYER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING ECONOMIC DAMAGE, COSTS OF RECALL, LOST PROFITS, LOSS OF BUSINESS OR GOODWILL, OR INJURY TO PROPERTY AS A RESULT OF SELLER'S BREACH OF ANY WARRANTY, ANY OTHER TERM OF THESE TERMS, AND/OR ANY OTHER AGREEMENT BETWEEN SELLER AND BUYER, REGARDLESS OF WHETHER SELLER HAS BEEN ADVISED, HAS OTHER REASON TO KNOW, OR IN FACT KNOWS OF THE POSSIBILITY THEREOF. If Seller furnishes technical or other advice to Buyer, whether or not at Buyer's request, with respect to processing, further manufacture, other use or resale of the Products, Seller shall not be liable for, and Buyer assumes all risk of, such advice and the results thereof.
12. Administration. The parties recognize that, during the term of the parties Agreement(s), purchase orders, letters, e-mails, invoices, releases and other routine documents (collectively Forms) may be used to implement or administer provisions of these Terms. Therefore, the parties agree that these Terms shall prevail in the event of any conflict between these Terms and the printed provisions of such Forms, or typed provisions of Forms that add to, vary, modify or are in conflict in any way with the provisions of these Terms. In the event Seller and Buyer do not both sign a formal Supply Agreement or similarly styled document that incorporates or supersedes these Terms, then these Terms shall become part of (and shall be incorporated into) the parties Agreement(s) and shall not be varied by Forms and shall be the entire Terms of the parties. Neither party may assign the parties Agreement(s) without the prior written consent of the other party, except that each party may assign its rights and obligations under the parties Agreement(s) (so long as the assigning party remains liable to the non-assigning party) to a purchaser of substantially all of its assets, without consent and upon notice from the assigning party to the non-assigning party.
13. Dispute Resolution. All disputes involving any agreement between Seller and Buyer shall be submitted to a single arbitrator appointed by and operating under the Commercial Rules of the American Arbitration Association. The location of the arbitration hearing shall be Southfield, Michigan. All documents, records, information, and other materials (Arbitration Materials) submitted in the arbitration shall be confidential and shall not be disclosed without the consent of the party submitting the Arbitration Materials. The arbitration session shall be held no later than sixty days after the date on which the arbitrator is appointed, unless otherwise ordered by the arbitrator. The arbitrator shall render a decision within twenty business days after the conclusion of the arbitration session. The decision of the arbitrator shall be final and binding on Seller and Buyer, in the absence of manifest error, and may be enforced by any court having competent jurisdiction. The cost of the arbitrator shall be shared equally by Seller and Buyer unless otherwise ordered by the arbitrator. The successful party in any arbitration or subsequent legal action may recover all costs, including reasonable attorneys' fees.
14. Confidentiality. Seller shall not disclose to others, Buyer's confidential information either during the performance of the parties Agreement(s), or thereafter. Confidential information as used herein shall mean all information, data and experience of Buyer relating to Buyer's products, whether of a technical, engineering, operational, or economic nature, which is designated or treated as confidential by Buyer, all price and technical information including but not limited to, the formulation, composition, analysis, design, materials, instructions, use, process or otherwise.
15. Miscellaneous. Michigan law will govern these Terms, any other Agreement(s) between Seller and Buyer, and all other aspects of Seller's and Buyer's relationship without reference to conflict of laws provisions. Any waiver or delay in enforcing any of the parties Agreement(s) will not deprive a party of the right to act at another time or due to another breach. All provisions of these Terms are severable. These Terms supersede prior oral or written agreements by the parties that relate to its subject matter. Captions are intended for convenience of reference only. The parties may not modify these Terms other than by a subsequent writing signed by each party. These Terms will be interpreted as if written jointly by Seller and Buyer.