GLOBAL PACKAGING SOLUTIONS, LLC
STANDARD TERMS & CONDITIONS FOR SALE OF ITS PRODUCTS
ACCEPTANCE. The following Standard Terms and Conditions are applicable to all quotations and orders between Global Packaging Solutions, LLC (“GPS”) and any buyer (“Buyer”) of any products of GPS (“Products”) and are the only terms and conditions, oral or written, applying to the sale of Products to Buyer except for additional terms consistent with these Standard Terms and Conditions on prices, quantities, delivery schedules, and the description and specifications of the Products as set forth in an order form issued by GPS (“GPS Order Form”). GPS hereby objects to and rejects any other terms or conditions appearing on, incorporated by reference in or attached to any purchase order, acceptance, acknowledgement, invoice, transmittal or other document other than a GPS Order Form. GPS’s failure to object to any provision contained in a document or communication from Buyer shall not be a waiver of these Standard Terms and Conditions or any GPS Order Form. All proposals, negotiations, representations, quotations or agreements, if any, written or oral, regarding the sale of any Products and made prior to or contemporaneous with the date of these Standard Terms and Conditions are merged herein.
Acceptance of these Standard Terms and Conditions and any GPS Order Form, both or either of which may be delivered to Buyer in electronic form by GPS shall be deemed to have occurred upon the earlier of (i) executing or accepting these Standard Terms and Conditions, (ii) executing or accepting any GPS Order Form; (iii) when Buyer is aware that GPS has commenced performance thereunder or (iv) taking delivery of any Products. Accepted GPS Order Forms may not be modified, cancelled or rescheduled without GPS’s written consent and are subject to modification, cancellation or reschedule charges determined by GPS.
SPECIFICATIONS OF PRODUCTS. Any specifications for a Product shall be only as set forth in a GPS Order Form (“Specifications”).
PRICES AND PAYMENT TERMS. The prices for the Products are as set forth in an applicable GPS Order Form. Any acceptance or issuance by GPS of a GPS Order Form does not provide Buyer with any price protection on Products that would be shipped more than 30 days after the date of the GPS Order Form. The price of Products are subject to modification by GPS at any time, including for changes in resin prices (the movement of HDPE as reported by the Chem Data Index). Unless different payment terms are specified in a GPS Order Form, payment terms are net 30 days from the date of shipment of Product under a GPS Order Form. Payments must be made by wire transfer and received in GPS’s account no later than 30 days from the date of shipment of Product. If GPS does not receive full payment by the due date, a late fee will be applied at a rate of 1.5% of the original balance per month. Buyer will incur all charges, if any, related to the wire transfer of the funds to GPS’s account. Prices exclude any tax or duty now or hereafter imposed upon the production, transportation, export, import, storage, delivery, sale, or use of Products. Any changes to any Specifications, sophistication of print, order patterns, payment terms, or other matters in a GPS Order Form may result in GPS modifying pricing on the applicable Products. Without waiving any other rights or remedies available to GPS under applicable law or otherwise, GPS may, at its option, defer shipment or deliveries of Products until all past-due accounts of Buyer to GPS have been satisfied in full.
INVENTORY. If GPS has agreed to retain an inventory or safety stock of Products, GPS’s obligation to produce Products for inventory shall be subject to Buyer’s continued compliance with this Agreement including timely payment and the responsibility to provide an accurate forecast and comply with applicable lead-times. In the event any item of Product is discontinued or changed by Buyer, Buyer shall purchase and pay for all such Products that have been manufactured and raw materials for open purchase orders for such Product. In the event any Products are maintained in inventory for more than ninety (90) days, Buyer will either purchase such Products or order the Products scrapped and pay the purchase price as if such Products had been purchased (and GPS will retain the scrap) and, in such cases, payment will be due immediately at the end of the 90 day period without regard to Buyer’s payment terms or standard payment terms above.
TAXES. Buyer shall pay GPS any and all governmental taxes, charges or duties of every kind (excluding any tax based upon GPS’s income) that GPS may be required to pay with respect to the production, transportation, export, import, storage, delivery, purchase, sale or use of the Products. Buyer shall provide GPS, on request, with properly completed exemption certificates for any tax or duty from which Buyer claims an exemption.
SHIPMENT; RISK OF LOSS AND INSPECTION. Shipment dates are approximate only. Unless different delivery terms are specified in a GPS Order Form, title and risk of loss shall pass to Buyer FOB (Incoterms 2000). Buyer may inspect the Products, or provide for inspection, at the point of shipment. Buyer shall inspect the Products for failure to conform to any Specifications immediately upon receipt.
WARRANTY; DISCLAIMER OF WARRANTY. GPS WARRANTS FOR A PERIOD OF SIX MONTHS FROM SHIPMENT OF A PRODUCT TO BUYER ONLY THAT THE PRODUCT WILL CONFORM TO ANY SPECIFICATIONS IN A GPS ORDER FORM IN ALL MATERIAL RESPECTS. BUYER’S EXCLUSIVE REMEDY FOR GPS’S BREACH OF ANY WARRANTY SHALL BE FOR GPS TO, AT GPS’S ELECTION, PROVIDE TO BUYER REPLACEMENT PRODUCT OR ISSUE BUYER A CREDIT FOR THE PURCHASE PRICE PAID FOR THE PRODUCT. NO CLAIM FOR BREACH OF WARRANTY WILL BE VALID IF MADE AFTER THE PRODUCT HAS BEEN ALTERED OR USED. BUYER SHALL AFFORD GPS A PROMPT AND REASONABLE OPPORTUNITY TO INSPECT ANY PRODUCT FOR WHICH A BREACH OF WARRANTY CLAIM IS MADE. NO PRODUCT SHALL BE RETURNED WITHOUT GPS’S EXPRESS CONSENT AND THE ISSUANCE OF A RETURN AUTHORIZATION AND RETURN INSTRUCTIONS PER GPS’S CUSTOMER RETURN POLICY. EXCEPT FOR THE WARRANTIES IN THE IMMEDIATELY PRECEDING PARAGRAPH, GPS EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
LIMITATIONS OF LIABILITIES. In no case shall GPS be liable for any special, incidental or consequential damages based upon breach of contract, negligence, strict liability, tort, or any other legal theory, even if GPS is notified of the possibility of such damages. In all cases, GPS’s maximum liability arising out of or relating to these Terms and Conditions and any GPS Order Form, regardless of the legal theory, shall not exceed the contract price of the Products supplied by GPS to which such liability relates. GPS shall not be liable for any loss, damage, detention or delay due directly or indirectly to causes beyond its reasonable control, such as acts of God, acts of Buyer, acts of civil or military authority, fires, strikes, floods, epidemics, war, riot, delays in transportation, government restrictions or embargoes, or difficulties in obtaining necessary labor, materials, manufacturing facilities or transportation due to such causes. GPS further reserves the right to allocate inventories and current production and to substitute suitable materials when, in its opinion, circumstances warrant such allocation or substitution.
INDEMNIFICATION. BUYER SHALL HOLD HARMLESS AND INDEMNIFY GPS FROM AND AGAINST ANY EXPENSES, CLAIMS OR CAUSES OF ACTION (INCLUDING GPS’S ATTORNEY’S FEES AND EXPENSES) AS A RESULT OF (i) DEATH, BODILY INJURY, PERSONAL INJURY OR PROPERTY DAMAGE ARISING OUT OF BUYER’S MARKETING, ADVERTISING, SALE, DISTRIBUTION OR USE OF THE GOODS (INCLUDING ANY CLAIMS OR CAUSES OF ACTION BASED ON ITEMS FOR WHICH OR WITH WHICH THE GOODS ARE USED) EXCEPT TO THE EXTENT CAUSED SOLELY BY GPS’S GROSS NEGLIGENCE; (ii) BUYER’S VIOLATION OF ANY APPLICABLE LAW OR STANDARD IN THE MARKETING, ADVERTISING, LABELING (OR IMPROPER OR INADQUATE LABELING), SALE, DISTRIBUTION OR USE OF THE GOODS OR THE ITEMS WITH WHICH OR FOR WHICH THE GOODS ARE USED; (iii) ANY ALLEGED PATENT, TRADEMARK, TRADE DRESS, COPYRIGHT, TRADE SECRET OR OTHER IP INFRINGEMENT BASED ON BUYER’S SAMPLES, MOCK-UPS OR SPECIFICATIONS; (iv) ANY ILLEGAL, FALSE, MISLEADING OR DECEPTIVE INFORMATION THAT BUYER INSTRUCTS GPS TO PRINT ON OR OTHERWISE APPLY TO OR USE WITH THE GOODS; AND (v) ANY ENVIRONMENTAL POLLUTION, CONTAMINATION OR DAMAGE (INCLUDING, IN ADDITION TO THE ABOVE, FINES AND PENALTIES TO THE EXTENT ALLOWED BY LAW, CLEAN-UP AND OTHER REMEDIAL OR CONTAINMENT COSTS AND LEGAL, TECHNICAL OR SIMILAR FEES AND EXPENSES) ARISING OUT OF SUCH POLLUTION, CONTAMINATION OR DAMAGE TO THE ENVIRONMENT OR NATURAL RESOURCES OCCURRING IN CONNECTION WITH BUYER’S USE OF ANY GOODS REGARDLESS OF CAUSE, INCLUDING BUYER’S NEGLIGENCE, STRICT LIABILITY, OR OTHER ACT OR OMISSION . BUYER WARRANTS THAT CUSTOM GOODS ORDERED BASED ON BUYER’S SAMPLES, MOCKUPS OR SPECIFICATIONS DO NOT INFRINGE ANY TRADE DRESS, COPYRIGHT, TRADE SECRET OR OTHER IP RIGHTS OF OTHERS OR ANY LETTERS PATENT GRANTED BY ANY COUNTRY. GPS RESERVES THE RIGHT (BUT SHALL HAVE NO DUTY) TO DISCONTINUE DELIVERIES OF ANY GOODS, THE MANUFACTURE, SALE OR USE OF WHICH MIGHT: (i) INFRINGE ANY TRADE DRESS, COPYRIGHT, TRADE SECRET, PATENT OR OTHER IP RIGHTS; or (ii) VIOLATE ANY FOREIGN, FEDERAL, STATE OR LOCAL LAW, REGULATION OR ORDER.
AGENCY. These Terms and Conditions do not constitute an agency relationship between the parties and neither party shall hold itself out to be the legal representative, agent, or employee of the other party for any purpose whatsoever.
MODIFICATION, WAIVER. Neither these Terms and Conditions nor any GPS Order Form, nor any term or provision hereof or thereof may be modified, amended, or waived by Buyer, except by a writing duly executed by GPS.
ASSIGNMENT. These Standard Terms and Conditions and any GPS Order Form shall be binding upon and inure to the benefit of GPS and Buyer and each of their respective successors and permitted assigns. Neither party shall assign or delegate its rights or responsibilities under these Standard Terms and Conditions or applicable GPS Order Form, or any portion thereof, without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, however, that GPS may assign these Standard Terms and Conditions and any GPS Order Form in connection with a merger, a sale of all or substantially all of its assets or a reorganization without the consent of Buyer by providing notice to Buyer.
SEVERABILITY. If any provision of these Standard Terms and Conditions or any GPS Order Form shall be held invalid or unenforceable, such provision shall be deemed deleted from these Standard Terms and Conditions or any GPS Order Form and replaced by a valid and enforceable provision which, so far as possible, achieves the same economic and other benefits for the parties as the severed provision was intended to achieve, and the remaining provisions of these Standard Terms and Conditions and any applicable GPS Order Form shall continue in full force and effect.
NOTICE. Any notices and other communications provided for hereunder shall be in writing (including telegraphic, telex, or cable communication) and shall become effective (i) when manually delivered on a business day during normal business hours at the place of receipt to the party to be given such notice, (ii) on the seventh business day following the day when deposited, if mailed by certified or registered mail with return receipt requested and postage thereon fully prepaid, (iii) on the second business day following the day when deposited, if sent by overnight courier, fully prepaid, or (iv) the business day such notice shall have been sent by telex, telegram, telecopier, cable, or similar electronic device, fully prepaid.
ENTIRE AGREEMENT. These Standard Terms and Conditions together with any GPS Order Forms represent the entire integrated contract of the parties with respect to the terms of purchase and sale of the Products, and supersedes all previous agreements and understandings between the parties with respect to the subject matter of these Terms and Conditions, and may not be modified except by an instrument in writing signed by the duly authorized representatives of the parties.
GOVERNING LAW AND FORUM. These Terms and Conditions and all GPS Order Forms shall be governed by, construed and interpreted in accordance with the laws of the State of New York, without reference to the conflicts of laws principles thereof. Any claim, action, suit or other proceeding initiated under or in connection with these Terms and Conditions or any GPS Order Form may be asserted, brought, prosecuted and maintained only in any federal or state court in the State of New York having jurisdiction over the subject matter thereof, and the parties hereto hereby waive any and all right to object to the laying of venue in any such court and to any right to claim that any such court may be an inconvenient forum. The parties hereto submit themselves to the jurisdiction of each such court and agree that service of process on them in any such action, suit or proceeding may be affected by the means by which notices are to be given to it under these Terms and Conditions.