STANDARD TERMS AND CONDITIONS OF SALE
Last Revised: September 2022
1. TERMS OF PURCHASE ORDER; ACCEPTANCE AND CONTROLLING PROVISIONS: These Terms and Conditions of Sale (“Terms and Conditions”) apply to all purchase orders (“Orders”) for the purchase of goods and/or services (collectively, “Products”) which are accepted in writing by Precious Packaging, Inc. (“SELLER”). Any acceptance by BUYER of a Quotation, or issuance of an Order in response to any Quotation, is expressly limited and subject to these Terms and Conditions. No other terms and conditions shall be binding upon SELLER unless accepted in writing by an authorized representative of SELLER. All terms and conditions contained in any oral or written communication submitted by BUYER which differ from or in addition to these Terms and Conditions hereby are rejected and are void. These Terms and Conditions supersede all prior proposals, negotiations, communications and understandings (both oral and written) with respect to the subject matters hereof.
2. PRICE; PAYMENT TERMS; INTEREST CHARGES: BUYER shall pay for the Products according to SELLER's applicable payment terms. All past due amounts shall be subject to interest charges at the rate of twelve (12%) percent per annum from the due date until the date of payment.
3. DELIVERY: SELLER will make a good faith effort to complete delivery of the Products agreed to by SELLER in writing. The delivery date provided by SELLER for the Products is only an estimate and is based upon the prompt receipt of all necessary information from BUYER and is subject to product and shipment availability. SELLER shall have no liability and will not accept any back-charges for loss or damage due to delay or inability to deliver, whether or not such loss or damage was made known to SELLER, including, but not limited to, liability for SELLER's non-performance, caused by acts of God, war, terrorism, labor difficulties, accidents, inability to obtain materials, delays of carriers, contractors or suppliers or any other causes of any kind whatsoever beyond the control of SELLER.
4. SHIPMENTS: SELLER ships Products (a) F.O.B. point of shipment, (b) F.O.B. destination, or (c) C&F or CIF destination port in accordance with terms of each accepted Order. BUYER authorizes SELLER to obtain any permits, licenses and inspections that may be required to effect delivery of the Products. All costs for permits, licenses, inspections, special packing or special handling caused by BUYER's requirements shall be added to the price of the Order. SELLER in its sole discretion will attempt to accommodate any request made by the BUYER to modify or expedite the method of shipment after SELLER has accepted an Order. BUYER shall pay upon demand all expenses incurred to implement any changes to an Order.
5. INSPECTION & ACCEPTANCE OF GOODS: Claims for damage, shortage or errors in shipping must be reported to SELLER in writing within five (5) business days following delivery. BUYER shall have fifteen (15) days from the date Products are delivered to inspect the Products and to notify SELLER, in writing, of any defects, nonconformance or rejection of such Products. After such fifteen (15) day period, BUYER shall be deemed to have irrevocably accepted the Products. After such acceptance, BUYER shall have no right to reject the Products for any reason or to revoke any prior acceptance. BUYER agrees that such fifteen (15) day period is a reasonable amount of time for such inspection and revocation. The sole and exclusive remedy for Products alleged to be defective will be the replacement of the Products or, in SELLER’s sole discretion, refund of the purchase price. All claims for damage, defects and nonconformance must be accompanied by supporting documentation, including photographs and samples. SELLER reserves the right to physically inspect any damaged, defective or nonconforming Product.
6. LIMITED WARRANTY; BUYER’S REMEDIES; LIMITATION OF LIABILITY: SELLER WARRANTS THAT AT THE TIME OF DELIVERY ALL PRODUCTS SHALL BE FREE FROM DEFECTS AND SHALL MEET THE EXPRESS WRITTEN SPECIFICATIONS OF THE ACCEPTED ORDER. SELLER DISCLAIMS ALL OTHER EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, LIQUIDATED, PUNITIE OR SPECIAL DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, STRICT LIABILITY, NEGLIGENCE, OR OTHER THEORY OF LAW ARISING IN CONNECTION WITH THE DESIGN, MANUFACTURE, SALE, TRANSPORTATION OR DELIVERY OF THE PRODUCTS. IN NO EVENT, SHALL SELLER'S LIABILITY, IF ANY, EXCEED THE NET SALES PRICE OF THE DEFECTIVE PRODUCT(S) IN QUESTION. IN THE EVENT BUYER TIMELY PROVIDES WRITTEN NOTICE AND SUPPORTING DOCUMENTATION TO SELLER OF A DEFECTIVE PRODUCT, AND SELLER CONFIRMS THAT A PRODUCT IS DEFECTIVE, SELLER, IN ITS SOLE DISCRETION, SHALL DELIVER AT ITS SOLE COST AND EXPENSE A NON-DEFECTIVE REPLACEMENT PRODUCT TO BUYER OR REFUND TO BUYER THE PURCHASE PRICE PAID FOR THE DEFECTIVE PRODUCT.
7. RECOMMENDATIONS BY SELLER. Except as expressly set forth in an accepted Order, BUYER acknowledges that SELLER does not make and specifically disclaims any and all implied representations, warranties and/or guaranties of any kind with respect to (i) the Products sold, their use, design, application or operation, their merchantability, their physical condition or their fitness for a particular purpose, or (ii) the accuracy or reliability of any technical information or guidance, specifications, formulations or documents furnished to BUYER.
8. BUYER’S DEFAULT; REMEDIES OF SELLER: BUYER agrees that any of the following shall constitute an event of default which shall enable SELLER, at its option, to suspend any unexecuted portion of an Order or to terminate the parties’ agreement and exercise all rights or remedies which it may have in equity or at law: (a) BUYER’s failure to perform any obligations contained herein or in any accepted Order, including remitting any payment when due; (b) BUYER’s failure to give required notice; (c) the insolvency of BUYER or its failure to pay debts as they mature, an assignment by BUYER for benefit of its creditors, the appointment of a receiver for BUYER or the filing of any Bankruptcy petition by or on behalf of BUYER; (d) the dissolution of BUYER; (e) a failure by BUYER to provide reasonable assurance of performance within ten (10) days after a written demand by SELLER or (f) if SELLER, in good faith and with five (5) days advance written notice to the BUYER, believes that BUYER's prospect of performance under this Agreement is impaired. All rights and remedies of SELLER herein are in addition to, and shall not exclude, any rights or remedies that SELLER may have in equity or at law. In the event SELLER incurs any expense to pursue or effect collection of any overdue account, BUYER agrees to pay Seller’s reasonable attorneys' fees and court costs incurred in connection therewith, including post-judgment collection efforts.
9. INDEMNIFICATION: SELLER makes no representation that the Products will conform to any international, federal, state, or local laws, ordinances, regulations, codes or standards, except as particularly specified and agreed upon in writing by SELLER. SELLER shall not be responsible for any losses or damages sustained by the BUYER or by any third party as a result of improper use or misapplication of the Products. To the fullest extent permitted by law, BUYER shall defend, indemnify and hold harmless SELLER, its principals, agents, and employees, from and against any loss, damage, claim, suit, liability, judgment or expense (including, without limitation, SELLER’s reasonable attorneys’ fees and costs) arising out of or in connection with any injury, death or damage to or loss of property, or violation of any applicable laws or regulations, arising in connection with the sale, transportation, delivery or use of the Products by BUYER or BUYER’s customers, or from the information, formulations, or other work supplied to BUYER. The obligations, indemnities and covenants contained in this paragraph shall survive the termination of any Order.
10. RETURNS: Upon written authorization from SELLER, BUYER may return any Product which SELLER stocks within thirty (30) days of receiving the Product, if: (i) it is in new condition, suitable for resale in its undamaged original packaging and with all its original parts and (ii) it has not been opened, used, modified, altered or damaged. BUYER's product returns not meeting (i) and (ii), above, will be evaluated on an individual basis after BUYER has contacted SELLER's authorized representative for prior written permission to return such Product. For all product returns, BUYER is responsible for return freight to the origin from which the Product was shipped. This provision shall not apply to any Products that are rejected or returned in accordance with the provisions of Paragraph 6.
11. INTELLECTUAL PROPERTY: SELLER warrants that the Products will be delivered to their destination free and clear of all liens and encumbrances. SELLER makes no warranty or representation that the use or sale of any Product, whether alone or in combination with other products, will not infringe any patents, trademarks, registered designs, formulas or other proprietary rights of any party, and all such warranties and representations hereby are disclaimed.
12. TAXES; TARIFFS: BUYER shall pay the purchase price for all Products in accordance with the terms of each accepted Order. Unless otherwise expressly stated in each accepted Order, prices set forth in SELLER’s Quotation are exclusive of any taxes, fees, tariffs, duties, surcharges, and levies, including without limitation value-added and withholding taxes that are levied or based upon the amounts paid. The amount of any sales, excise, use or other taxes, if any, applicable to the Products, together with all duties, tariffs, or other surcharges imposed upon the Products by any governmental entity, regulatory agency or taxing authority (collectively, “Taxes”), shall be added to SELLER’s invoice and paid by BUYER, unless BUYER provides SELLER with an exemption certificate acceptable to the taxing authorities. With respect to any Taxes which SELLER may be required to pay or collect under any existing or future law, SELLER will notify BUYER of all such applicable Taxes when known and shall include all such Taxes in its invoice. In no circumstance may BUYER cancel any Order because of the imposition of any Taxes.
13. FORCE MAJEURE. SELLER expressly disclaims all liability for any failure, delay or error in the performance of any of its obligations under this Agreement that is caused, in whole or in part, by conditions beyond its reasonable control, including, but not limited to, strikes or other labor disputes; regional, national, or worldwide pandemics, or similar health emergencies; riots, war, terrorist actions or insurrections; fires, floods or other natural causes or catastrophic events; or the acts or regulations of any governmental agency. In the event that any such condition prevents SELLER from performing any of its obligations, SELLER shall notify BUYER as soon as possible when performance is expected and will keep the BUYER advised on the progress of resolving the circumstance giving rise to the non-performance. BUYER shall accept all Products which have been shipped before such interruption, or which may be completed within sixty (60) days of such notice, notwithstanding such delay. In the event Products cannot be completed within such timeframe, and further provided the Products have not been manufactured as of the time of such interruption, SELLER shall have the right, exercisable in its sole discretion, to terminate the applicable Order and to refund any payments previously paid immediately upon written notice without further liability of any kind.
14. SEVERABILITY: If any provision hereof is determined to be illegal, invalid or unenforceable under any present or future laws, such provision shall be fully severable and these Terms and Conditions shall be construed and enforced as if such illegal, invalid or unenforceable provision had never been made a part hereof. The remaining provisions shall remain in full force and effect and shall not be affected thereby.
15. SET-OFF: BUYER shall not be entitled to set-off any amounts due BUYER against any amount due SELLER in connection with the transactions contemplated and undertaken hereby.
16. ENTIRE AGREEMENT: These Terms and Conditions together with each accepted Order constitute the entire, complete, and exclusive agreement between the parties with respect to the subject matters hereof and contain all conditions of sale. These Terms and Conditions may not be added to, modified, or otherwise amended except by a written modification signed by an authorized representative of each party. These Terms and Conditions shall control in the event of any conflict or ambiguity in the language of an Order.
17. NOTICES: All notices shall be in writing and addressed to the parties at the addresses set forth in the Order or Confirmation, or to such other address that may be designated by the addressee in writing. All notices shall be delivered by nationally recognized overnight courier, or by certified mail, return receipt requested, postage prepaid.
18. NO ASSIGNMENT; NO THIRD-PARTY BENEFICIARIES: BUYER shall not assign any of its obligations hereunder to any third party without SELLER’s prior express, written consent. This Agreement is only for the benefit of the parties, and no third party shall have a right to enforce any provision of this Agreement.
19. GOVERNING LAW; TIME LIMITATIONS: This transaction shall be governed by the substantive laws of the State of New York, USA without reference to choice of law principles. BUYER agrees that any legal action BUYER brings arising out of or related to any Orders or Products shall be filed in the State or Federal Courts located within New York County, New York, USA within two (2) years after the date of SELLER’s delivery of the Products, notwithstanding any longer applicable statute of limitations. The United Nations Convention on Contracts for the International Sale of Goods ('CISG') shall NOT apply to the transactions to which these Terms and Conditions apply, nor to any other aspect of the relationship between the parties, and application of the CISG is expressly disclaimed and waived.
20. INDEPENDENT CONTRACTORS: The relationship between SELLER and BUYER is that of independent contracting parties. Nothing contained in this Agreement shall be construed or interpreted to create any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the parties. Neither party may assume or create any obligations on behalf of the other party or to bind the other party to any agreement or undertaking with any third party without the other party’s express written consent.
21. WAIVER OF JURY TRIAL: BUYER and SELLER irrevocably and unconditionally waive any right either party may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.