All shipments and deliveries of Seller’s product are subject solely to the following terms and conditions. Any previous terms and conditions, including those in any Purchase Order or other documents submitted by Buyer, are rejected.
SHIPMENTS AND PAYMENTS. Any shipment and delivery hereunder may be subject to the approval of the Packaging Support Group Credit Department. If Buyer fails to make any payment in accordance with the terms and provisions hereof, the Seller, in addition to its other rights and remedies, may defer shipments or deliveries hereunder until receipt of satisfactory security of cash before shipment.
PRICES. Seller reserves the right to change prices without notice. If Seller shall make an error in computing product pricing, prices shall be subject to correction and the Buyer may cancel the purchase order at their option. Seller’s invoice may be subject to additional line-items fees or charges necessary to address sales, use, or similar tax which may be applicable.
DELIVERY. Seller will make commercially reasonable efforts to ship glass containers in quantities as close as practical to those described on Buyer’s purchase order. Volumes shipped shall not exceed order volumes by any amount greater than 10%. Buyer shall be notified in writing by Seller in the event Seller is unable to deliver product by the date appearing on Seller’s order confirmation document. If the scheduled delivery date exceeds the date represented on Seller’s order confirmation document by a period greater than 5 business days, Buyer may at its sole option cancel its purchase order in writing at no expense to Seller.
FREIGHT, TITLE, RISK OF LOSS AND TAXES. Unless otherwise agreed upon by both parties in writing, product prices shall be calculated as FOB, Jonesboro, Arkansas or the point of manufacture. Title to product and risk of loss shall pass to Buyer at the time product is loaded onto Buyer’s carrier or, if sold with delivered pricing, at the time of delivery to Buyer’s location. It is the Buyers sole responsibility to inspect arriving deliveries for accuracy, damage, and missing items. Upon confirming the condition and accuracy of the delivery against the packing list and signing the Bill of Lading (BOL), Buyer confirms and acknowledges that all products have been delivered in a condition and quantity satisfactory to Buyer. For shipments of product outside of the continental United States, Buyer is responsible for and shall pay directly to the appropriate authority or agency any and all taxes and duties related to the sale, purchase, import, or export of product including, but not limited to Sales Tax, Goods and Services Tax, and Harmonized Sales Tax, or any similar tax.
RETURN POLICY. We will gladly accept items returned in like new condition, odor-free and in original packaging within 30 days of purchase less a 25% restocking fee. Exchanges are not subject to re-stocking fee. Customer is responsible for all shipping charges.
FORCE MAJEURE. Seller shall under no circumstance be responsible for any failure to comply with this agreement due to fire; flood; riot; strike; freight embargoes or transportation delay; shortage of labor; inability to secure fuel, materials, supplies, power, or experience significant increase in the costs any thereof; acts of God or of the public enemy; any existing or future laws or acts of the federal, state, or local government with which the appropriate party, in its judgment and discretions, deems advisable to comply as a legal duty; or to any cause beyond Seller‘s reasonable control.
CREDIT ON ACCOUNT. Events may occur in which Buyer has funds held in Buyer’s name within Seller’s accounting system. Those monies shall be collectively referred to as a Credit on Account. Buyer is encouraged to request that credit funds be applied towards additional purchases or reimbursement as soon as practical. Seller shall consider all monies left on account in Buyer’s name to be abandoned after (1) one calendar year from the date in which said funds are credited towards Buyer’s account.
WARRANTIES AND REMEDIES.
A. These warrantees shall be in lieu of all other product quality warranties or representations either expressed or implied including any warranty of merchantability or fitness for a particular use. It is the Buyer’s express responsibility to determine the product’s suitability for the Buyer’s needs.
B. Seller warrants, subject to the disclaimers stated herein, that at the time of delivery of product to Buyer that the delivered goods or services shall:
C. Seller specifically disclaims any warranty or liability for:
D. In the event of an alleged breach of any of the above warranties, Buyer shall furnish Seller notice of any such breach of warranty within a reasonable time, not to exceed five business days after discovery of the breach. As Buyer’s exclusive remedy for an actual breach of warranty, the purchase price thereof shall be credited to the Buyer’s account.
E. Seller shall be given an opportunity to conduct an adequate investigation of all claims of breach of this section both by inspection at the Buyer’s place of business or at the sole discretion and expense of Seller, at the Seller’s place of business or other place of Seller’s choosing.
INDEMNITY. Buyer shall indemnify and hold Seller and its Parent companies, subsidiaries and affiliates and their respective officers, directors, employees and agents harmless from any damages, losses, and expenses resulting from any claim, lawsuit or proceeding arising from any act or omission of Buyer or from Buyer's failure to comply with any of these terms and conditions, and from any damages, losses and expenses arising out of or in connection with a third-party claim that a product infringes any patent, copyright, trademark right, trade secret, mask work right or other proprietary right of any third party to the extent that such claim is attributable to Seller’s incorporation of designs or materials provided by Customer into the Product. This obligation shall survive the
termination or non-renewal of this Agreement.
Subject to the disclaimers and limitation of liability contained herein, Seller shall indemnify and hold Buyer and its parent companies, subsidiaries and affiliates and their respective officers, directors, employees, and agents harmless from any damages, losses, and expenses (excluding attorney’s fees) resulting from any claim, lawsuit or proceeding arising from any act or omission of Seller or from Seller’s failure to comply with any of the terms and conditions of this Agreement, and from any damages, losses and expenses (excluding attorney’s fees) arising out of or in connection with a third- party claim that a product, material or component provided or procured by Seller or Seller’s manufacturing process infringes any patent, copyright, trademark right, trade secret, mask work right or other proprietary right of any third party; provided, however, that Seller will have no liability under this section to the extent such infringement is attributable to the incorporation of designs or materials provided by Buyer into the product This obligation shall survive the termination or non-renewal of this Agreement.
LIMITATION OF LIABILITY. In no event shall Seller be liable to Buyer or any third party for loss of profit, loss of business, loss of business opportunity, loss of market share, damage to the goodwill or reputation of any party or its products, or for any special, indirect, incidental, punitive, exemplary or consequential damages however caused and under any theory of liability whether based in
contract (including indemnity, breach of warranty or representation of other breach of contract), tort (including negligence), or otherwise. The foregoing limitations shall apply regardless of whether such party has been advised of the possibility of such damages and notwithstanding the failure of essential purpose of any limited remedy stated herein.
Buyer hereby agrees that, prior to providing any product to any other commercial entity or party, Buyer shall obtain such party’s agreement to the limitations set forth herein and an acknowledgement that Seller is a third-party beneficiary to such agreement for the purposes of such limitation. Buyer further aggress to fully indemnify Seller for any and all claims made by such third-party commercial entity or party made against Seller seeking the excluded losses or damages as set forth above.
NON-ASSIGNMENT. Neither the underlying agreement nor any interest therein may be assigned by Buyer, whether by operation of law or otherwise, without the prior written consent of Seller, which consent shall not be unreasonably withheld.
APPLICABLE LAW. The laws of the state of Arkansas shall apply to the interpretation and enforcement of this agreement, and jurisdiction over any disputes lies solely in the federal and state courts in Craighead County, Arkansas.
AMENDMENTS. No amendment or other modification of this agreement is binding upon the parties unless it is in writing and executed by a duly authorized representative of each party.