ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXCLUDED. SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, THAT ARTICLES HEREUNDER WILL PERFORM SATISFACTORILY IN USE, OR IN BUYER’S FILLING, ASSEMBLING, STORAGE, OR SHIPPING OPERATIONS, OR WITH REGARD TO THE CHEMICAL AND PHYSICAL COMPATIBILITY BETWEEN THE ARTICLES SOLD HEREUNDER AND ANY SPECIFIC MATERIALS WHICH BUYER MAY CONTEMPLATE BRINGING INTO CONTACT WITH SUCH ARTICLES.
Seller’s liability in connection with the articles described herein, is limited as set forth herein. SELLER SHALL NOT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR ANY ADDITIONAL TERMS AND CONDITIONS.
If the terms of this form or Seller’s acknowledgement differ from Buyer’s order, Seller’s form shall be a counter-offer and not an acceptance unless Buyer assents hereto, which shall be expressly limited to these terms. Buyer’s ordering or accepting goods shall constitute such assent. Any term stated by Buyer differing from the terms hereof is a material alteration hereof and is hereby objected to. No act or omission of Seller shall waive these conditions.
All quotes are subject to Seller’s Pricing Instructions, Terms and Conditions of Sale, General Purpose Quality Standards, and all other terms now or hereafter set forth in Seller’s catalogue. Where this quote differs from Seller’s catalogue, Seller’s catalogue, as updated, shall prevail.
All price quotations are FOB, Seller’s point of shipment, and are firm for the time indicated. Otherwise, all quotations are subject to change without notice. When extension of delivery dates is requested, goods shall be billed at the price prevailing at shipment. Changes in quantity or specifications are subject to price revision. Seller reserves the right to sell products to different buyers at differing prices.
Buyer grants Seller a security interest in all goods sold by Seller to Buyer until all goods are paid for. Buyer appoints Seller as Buyer’s attorney-in-fact to sign any financing statement or other document or take any other action necessary to perfect such security instrument or otherwise protect Seller’s security.
All taxes and increases in cost to Seller, resulting from present or future laws or other government act shall be Buyer’s responsibility.
Seller may increase prices on undelivered balances, by notice. If buyer objects in writing within ten (10) days after notice, Buyer may cancel its order as to items not then manufactured at such increased prices, but Buyer shall accept all items which are then finished or in process within thirty (30) days after the effective date of such increased prices, and Buyer shall pay for all such items at the prices that were effective prior to said increase.
Seller shall be excused from performing under this Agreement in the event of and during adverse weather conditions, fires, accidents, floods, strikes, lock-outs, labor disturbances, unavailability of or unreasonable or extraordinary increases in costs of materials, equipment, labor or other costs, acts of war, riot, rebellion, acts of governmental bodies or officials, inability to obtain transportation, equipment or parts, or any other occurrence beyond Seller’s reasonable control. Notwithstanding any excuse of performance by Seller, Buyers shall be liable for the price of all goods actually delivered.
Seller warrants that the goods sold will meet the specifications agreed to by Seller, subject to tolerances specified or expressly agreed to by Seller, and subject to the terms herein. Buyer shall absorb all loss’ due to defects up to 1% of the entire quantity delivered under any order. Seller will allow for defects in excess of 1% of entire quantity covered under any order in the first washing, sterilizing and filling of containers, if done with reasonable care, and if written claim therefore is made by Buyer within ten (10) days after Buyer receives the shipment, and Seller is given sufficient opportunity to investigate adequately, either by inspection at Buyer’s place of business or by having the containers returned to Seller’s factory, whichever Seller may direct. Allowance shall not exceed the allocable contract price of defective containers. Replacement of defective items or issuance of credit in accordance with the provisions hereof shall be Buyer’s exclusive remedy for any claim, whether based on contract, warranty, tort, strict liability or otherwise. Seller is not required to make adjustment with respect to goods previously supplied based on any design or other modification in later goods. Buyer assumes all risk and liability for results obtained by the use of the articles sold hereunder.
All goods shall be subject to reasonable variations, as to quantities, and shall be within the standard tolerance limits specified by S.P.I. where applicable, as to capacity, heights, diameter, thickness, width, and weight. Seller shall be allowed variation in quantity of ten percent (10%) over or under.
Prices are based upon Seller’s standard shades and colors. Seller will charge extra for special shades and colors. Seller will duplicate requested shades and colors as nearly as practicable, but exact duplication is not guaranteed. If Buyer has designated raw materials or components, Seller reserves the right to substitute raw materials or components which in its sole judgment are substantially equivalent.
Buyer assumes all risks of damage or loss to any products arising from any cause, including, without limitation all risk of delay, damage or loss in transportation or delivery, regardless whether title has passed.
If Buyer’s financial condition ever becomes unsatisfactory to Seller, or Buyer attempts to transfer any of Buyer’s business, Seller may require Buyer to post security satisfactory to Seller, in advance, before manufacture or delivery of any goods, and/or declare the entire purchase price payable, in advance.
Payment terms are cash with order, or with Seller’s Credit Department approval, net cash 30 days. Finance charges of 1.5% per month will be added to all past due amounts. Buyer shall make pro-rata payments as shipments are made. If Buyer delays shipments, payment is due when Seller notifies Buyer that Seller is prepared to ship, and Buyer will pay a reasonable storage charge from that time until shipment is made.
Buyer waives all claims not submitted in writing within ten (10) days after receipt of the goods. Seller may at any time inspect any and all allegedly defective goods. Any and all claims relative to goods that Buyer has used or disposed of are waived.
If any person claims Seller is violating any law or regulation or is infringing any intellectual property or contributing to any act of unfair competition or is in violation of any law, Seller may suspend delivery of all goods pending resolution thereof or cancel this Agreement. Buyer shall indemnify and save Seller harmless for loss or damage, including attorney’s fees, resulting from any claim based upon Seller’s manufacture or sale of goods embodying any structure, composition, mark, design, notice or other device or materials specified by Buyer.
Orders accepted by Seller may not be cancelled without Seller’s written consent. If the goods must be specially manufactured and any change or cancellation is made, Buyer shall take all completed goods at full price and all goods in process at Seller’s cost plus pro-rata profit (as calculated by Seller) and Buyer shall also reimburse Seller for any loss on materials purchased or on commitments made for the order. Seller may retain any down payment as liquidated damages if Buyer cancels any order or does not accept delivery. In any event, Seller reserves the right to require a cancellation charge of fifteen percent (15%) of the price on any cancelled order, in addition to all of Seller’s other rights and remedies hereunder and under applicable law.
All information furnished by Seller or prepared by Buyer for Seller (including, without limitation, prices, drawings and other specifications) is confidential. Without Seller’s express written permission, Buyer shall not disclose any such information to any other person or use such information itself for any purpose other than performing this agreement.