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Used herein, “Seller” means
Plastic Bottle Corporation; “Products”, the goods and
items sold by Seller hereunder; “Purchaser”, all buyers
and users of Products produced and sold hereunder. Seller’s
sole responsibility is to furnish Products in accordance with
specifications furnished Seller by Purchaser. SELLER IS NOT RESPONSIBLE
FOR COMPLETENESS, CORRECTNESS, SUITABILITY, APPROPRIATENESS, OR
OTHERWISE OF PURCHASER’S SPECIFICATION. PURCHASER HAS NOT
INFORMED SELLER OF THE INTENDED USE OF PRODUCTS, AND IN ANY EVENT
SELLER SHALL NOT BE RESPONSIBLE FOR SUITABILITY FOR, OR PROPRIETY
OF, ANY PARTICULAR OR SPECIFIED INTENDED USE OF PRODUCTS. PURCHASER’S
SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIS AGREEMENT AND PRODUCTS
SHALL BE TO OBTAIN REPAIR OR REPLACEMENT OF NON-CONFORMING PRODUCTS,
UNLESS OTHERWISE AUTHORIZED IN WRITING BY SELLER. IN NO EVENT
SHALL SELLER BE LIABLE FOR ANY INCIDENTAL, INDIRECT, OR CONSEQUENTIAL
DAMAGES WHATSOEVER, INCLUDING (BUT NOT LIMITED TO) LOST PROFITS
ARISING OUT OF OR RELATED TO THE PRODUCTS OR SERVICES PROVIDED
HEREUNDER BY SELLER, EVEN THOUGH SELLER MAY HAVE BEEN ADVISED,
KNOWN OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
Transportation charges for all returned goods shall be the responsibility
of Purchaser, unless expressly agreed to the contrary in writing
by Seller.
- SELLER RESERVES THE RIGHT AT
ANY TIME AFTER THE ACCEPTANCE OF AN ORDER TO CANCEL SAME, WITHOUT
LIABILITY, IN THE EVENT THAT IN SELLER’S JUDGMENT, PURCHASER’S
INTENDED USE OF THE GOODS MAY RESULT IN DEATH OR INJURY TO PERSONS
OR PROPERTY ATTRIBUTABLE TO INCOMPATIBILITY BETWEEN THE GOODS
AND PURCHASER’S PRODUCT.
- SELLER MAKES NO REPRESENTATIONS
OR WARRANTIES OTHER THAN AS STATED IN THESE TERMS AND CONDITIONS.
THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THESE “TERMS
AND CONDITIONS”. ALL OTHER EXPRESS OR IMPLIED WARRANTIES
ARE HEREBY EXCLUDED, INCLUDING (BUT NOT LIMITED TO) IMPLIED WARRANTIES
OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR PURPOSE.
Seller has no knowledge of Purchaser’s intended use, but
has provided Products based solely upon information furnished
by Purchaser. Seller makes no representations or warranties to
Purchaser regarding any infringement of intellectual property
rights (or the absence thereof) by Products. Seller reserves all
intellectual property rights it may have in the Products. All
intellectual property rights with respect to any design and/or
invention conceived or first reduced to practice by Seller in
connection with the Products shall reside in Seller.
- Unless expressly stated in
writing to the contrary, Seller reserves the right to select its
source of raw materials, suppliers or producers of the Purchaser’s
goods. Seller shall not be liable for any delays or failures in
delivery due to causes beyond its control, including (but not
limited to) strikes, fires, floods, storms, scarcity of materials,
government regulations/orders, or acts of God. Overruns or underruns,
not to exceed 10% of the amount ordered, shall be considered acceptable
delivery. The excess or deficiency shall be charged proportionately.
- Unless explicit shipping instructions
have been given Seller by Purchaser, Seller shall use its best
judgment in shipping goods to Purchaser. In the event that pallets
or containers owned by Seller are shipped with goods, Seller may
make a reasonable deposit charge, to be refunded or credited upon
the return of such pallets or containers in good condition, ordinary
wear and tear excepted. In the event that Purchaser has given
Seller specific shipping instructions, Seller will comply with
those instructions to the extent practicable; provided, however,
that Seller assumes no liability for failure to comply. Seller
reserves the right to (a) invoice Purchaser for and/or to ship,
any products at any time on or after date of manufacture or Purchaser’s
initial requested shipping date as shown on the face hereof, whichever
is the later; (b) transfer to its general stock any products ordered
by Purchaser for which Seller shall have been given no instructions
for shipment to be made within four (4) weeks following the date
of manufacture or Purchaser’s initial requested shipping
date, whichever is the later; or (c) resell for any prices and
on any terms Seller may choose, or to scrap, any products for
which Purchaser shall not have requested that shipment be made
within six (6) months following Purchaser’s initial requested
shipping date or date of manufacture, whichever date shall last
occur, and to invoice Purchaser for such products according to
Seller’s then current price list less net proceeds from any
resale of any net scrap value. Seller reserves the right to assess
storage charges on all merchandise held in storage by Seller in
excess of thirty (30) days following completion of the order or
thirty (30) days after the Purchaser’s requested availability
date, whichever is the later. Except as stated herein to the contrary,
no merchandise may be returned without the written authorization
of Seller, and Seller reserves the right to impose a reasonable
restocking charge for merchandise which Seller accepts for return
when not otherwise required to do so. Seller recognizes no claim
for damage to merchandise in transit, or shortages occurring during
transit, unless noted by Purchaser on the delivery receipt at
time of delivery and returned to Seller within five (5) days after
delivery. Nothing herein shall be construed to require Seller
to replace damaged goods or to make up shortages when such would
not otherwise be its responsibility.
- In the event of any breach
of the provisions of this contract by Purchaser, Seller, at its
option without prejudice to any other remedy or remedies which
Seller may have against Purchaser for such breach, may (a) without
affecting in any way the obligation of either party in respect
of further shipments hereunder, regard each shipment as a separate
and independent sale on the terms and conditions applicable hereunder;
or (b) terminate this contract as regards further shipments and
declare the obligations of Purchaser for all shipment made due
forthwith, but Purchaser shall remain liable to Seller for all
loss and damage sustained by reason of any such breach. Seller’s
right to require performance of Purchaser’s obligations hereunder
shall not be affected in any way by any previous waiver, forbearance
or course of dealing.
- Purchaser hereby agrees to
be liable to Seller and any assignee of Seller for, and indemnifies
and saves Seller and such assignee harmless from and against all
claims, liabilities, judgments, decrees, fines, penalties, fees,
amounts paid by or due from Seller or such assignee in settlement
of, or any other costs, losses, or expenses incurred (including,
but not limited to, attorney’s fees, expert witness fees,
court costs and expenses) directly or indirectly arising out of,
resulting from or in association with, any threatened or pending
claim, action, or suit (whether civil, criminal, administrative,
investigatory or otherwise and whether valid or not) and any appeals
related thereto, in or under which Seller is a party of participant;
(a) because of any alleged or actual infringement by any of the
Products of any intellectual property right; (b) because of Purchaser’s
use or misuse of Products; or (c) because of any other reason,
including Purchaser’s actual or threatened breach of, or
default under, any of Purchaser’s representations, warranties
or obligations hereunder, or incurred by Seller to enforce any
term or condition hereunder, or any of Purchaser’s representations,
warranties or obligations hereunder. Purchaser irrevocably agrees
to pay Seller all costs and expenses including, without limitation,
reasonable attorney’s fees, court costs and the fees of collection
agencies, incurred by the Seller in exercising any of its rights
or remedies related to or under this agreement, enforcing any
of the terms and conditions of this agreement or collecting any
sums due Seller under this agreement.
- All sales are made on the basis
of immediate cash payment, unless expressly stated to the contrary
on the face hereof. Seller reserves the right at any time and
from time to time to extend and revoke, as to any Purchaser and
as to any order, such credit terms as it determines, including
the right to require that payment be made in full or in part prior
to the shipment of all or any part of an order.
- Prices quoted are for single
shipments of the quantities of Products specified, unless otherwise
authorized in writing by Seller. Prices quoted are subject to
change without notice to Purchaser. Prices invoiced are those
in effect at time of shipment, unless otherwise stated. Purchaser
acknowledges that the prices reflect, and are based upon Purchaser’s
acceptance of, all terms of this agreement including, but not
limited to, Paragraphs 1-8 hereof. Seller has indicated willingness
to undertake greater liabilities and risk in exchange for increased
charges reflecting that exposure. Purchaser has opted to accept
lower charges and concomitant limitations on Seller’s liabilities
and risk as set forth herein. ALL SHIPMENTS ARE F.O.B.: PLANT
OF MANUFACTURE OR WAREHOUSE. ON ALL SHIPMENTS, WHETHER OR NOT
SELLER PAYS THE FREIGHT, TITLE AND RISK OF LOSS PASS TO PURCHASER
AT TIME OF SHIPMENT FROM PLANT OF MANUFACTURE OR WAREHOUSE.
- Terms inconsistent with those
stated in these Terms and Conditions of Sale which may appear
on Purchaser’s order will not be binding on Seller unless
otherwise authorized in writing by Seller. Terms and Conditions
of Sale represents the entire Agreement between Seller and Purchaser
regarding the subject matter hereof, and supersedes all prior
written and oral agreements, representations and/or understanding
between Seller and Purchaser regarding the subject matter hereof.
Seller and Purchaser acknowledge and agree that there are no other
written or oral agreements, promises, representations and/or understandings
with respect to the subject matter hereof. Other than President
of Seller or such other individual as he may nominate in writing,
no employee, independent contractor, agent, or other representative
of Seller shall have any power or authority to add to, waive,
modify, alter or amend the Terms and Conditions of Sale and no
amendments to or modifications of these Terms and Conditions of
Sale will be valid and binding upon Seller unless in writing and
signed by Seller. Any waiver by Seller of a breach of any provision
of these Terms and Conditions of Sale shall not operate as or
be construed to be a waiver of any other breach of such provision
or of any other provision of these Terms and Conditions of Sale.
The failure of Seller to enforce any term or condition of these
Terms and Conditions of Sale on one or more occasion shall not
be considered a waiver or deprive Seller of the right thereafter
to enforce that term or any other term of the Terms and Conditions
of Sale. No waiver by Seller of any default or breach by Purchaser
shall be effective unless in writing and signed by Seller. The
interpretation of these Terms and Conditions of Sale shall be
governed by established trade customs.
- This Agreement shall bind and
inure to the benefit of the parties, their successors and assigns.
THE AGREEMENT SHALL BE CONSTRUED UNDER THE INTERNAL LAWS OF THE
STATE OF ILLINOIS and may be enforced by Seller in any state or
federal court sitting in the State of Illinois. The parties hereby
consent to the jurisdiction of the Illinois courts in any matter
relating to this Agreement. The illegality, invalidity or unenforceability
of any provision of the Agreement under the law of any jurisdiction
shall not affect its legality, validity or enforceability under
the law of any other jurisdiction, nor the legality, validity
or enforceability of any other provision. Anything herein to the
contrary notwithstanding, this contract is not assignable by Purchaser,
except with the written consent of Seller, and the same shall
terminate at the option of Seller in the event of any voluntary
or involuntary bankruptcy, receivership, insolvency, or reorganization
proceedings of, by or against Purchaser, but without thereby waiving
any claim for damages which Seller may have against Purchaser.
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