The Terms and Conditions in this Sales Acknowledgement and on any attachment hereof, including those limiting warranties, are intended by the parties as the final expression, and contain the complete and exclusive statement of the terms and conditions of this Agreement superseding all previous or simultaneous communications either oral or written. Seller’s quotations are offers which may only be accepted in full. If Buyer’s order or other form (including without limitation Buyer specification) or any conflicting oral representation by any agent, representative distributor, or employee of rose plastic USA, L.L.L.P. states terms that are in addition to or different from those set forth herein, this writing shall be deemed notification of objection to such additional or different terms. NO MODIFICATION OF THESE TERMS AND CONDITIONS SHALL BE BINDING ON rose plastic USA, L.L.L.P. UNLESS RECEIVED IN WRITTEN FORM WITHIN TEN (10) DAYS AND SIGNED BY AN AUTHORIZED EMPLOYEE OF rose plastic USA, L.L.L.P. The parties to this document are rose plastic USA, L.L.L.P. hereafter referred to as “Seller”, and the party designated on the face hereof hereinafter referred to as “Buyer”.
DISCLAIMER OF WARRANTIES: SELLER DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, THAT THE GOODS SUPPLIED OR SELLER’S PERFORMANCE HEREUNDER CONFORM TO ANY MILITARY OR OTHER GOVERNMENT SPECIFICATIONS, FEDERAL ACQUISITION REGULATIONS OR OTHER GOVERNMENT PROCUREMENT STANDARDS. SELLER DISCLAIMS THE WARRANTY OF MERCHANTABILITY INCLUDING WITHOUT LIMIT ANY WARRANTY OF MERCHANTABILITY THAT MAY BE DEEMED TO INCLUDE COMPLIANCE WITH SUCH SPECIFICATIONS, REGULATIONS OR STANDARDS. SELLER ALSO DISCLAIMS ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY IMPLIED BY USAGE IN TRADE OR A COURSE OF DEALING.
REJECTION OF MILITARY OR OTHER GOVERNMENT STANDARDS: SELLER REJECTS ANY TERMS PROPOSED BY BUYER AT ANY TIME WHICH WOULD REQUIRE THAT THE GOODS OR SERVICES SUPPLIED BY SELLER CONFORM TO ANY MILITARY OR OTHER GOVERNMENT SPECIFICATIONS, FEDERAL ACQUISITION REGULATIONS OR OTHER GOVERNMENT PROCUREMENT STANDARDS. ANY SUCH TERMS WOULD CONSTITUTE A MATERIAL ALTERATION OF THE CONTRACT BETWEEN SELLER AND BUYER.
Invoices shall be issued in accordance with the payment schedule shown on the Sales Acknowledgement form. An interest charge of 1-1/2% per month will be charged on past due balances which is an effective rate of 18% per annum or the maximum amount allowed by law, whichever is less. All payments made shall be in United States currency.
Unless expressly stated, all prices quoted do not include any applicable Federal, state, or local taxes except those attributable to Seller’s income. If Seller shall be required to pay such charges, either on its own behalf or on behalf of the Buyer, with respect to material covered by this order, such charges shall be added to the prices shown on Sales Acknowledgement.
Unless otherwise stated on the face of the Sales Acknowledgement, all shipment of goods are in accordance with Seller’s standard packaging and shipping policies and shall be F.O.B. Seller’s facility. Advance reasonable written requests for shipment by Buyer’s preferred carrier of routing will be honored.
All scheduled completion dates are estimated. Seller will use commercially reasonable efforts to ship by the dates specified; however, Seller shall not be liable for any delay or failure in the estimated shipment or delivery of the product or for any damages suffered by reason thereof.
RISK OF LOSS
Risk of loss of, or damage to, the finished product or any portion thereof, shall pass to the Buyer upon delivery to carrier F.O.B or in the event of delay by Buyer, delivery shall be deemed to have occurred upon date of notice to the Buyer that the material is ready for shipment.
Seller warrants that the product manufactured by it shall be free from material defects in workmanship and material for a period of six (6) months from the date of delivery as described above. Should any failure to conform to this warranty arise within said period, Seller shall, upon prompt notification thereof and provided that the product has been stored and handled in accordance with good industry practice and with any specific Seller recommendations, correct such nonconformity by furnishing a replacement product, F.O.B. shipment point, or, at its option, by reworking the defective product. Items repaired or replaced and designs corrected under warranty are warranted only for the remainder of the original warranty period.
Seller’s limited warranty obligations hereunder shall not apply to issues arising out of work performed by others upon, or in connection with, Seller’s product without Seller’s express written consent and Seller shall not be liable or responsible for any back-charges for such work performed by others upon, or in connection with Seller’s product. In no case may authorized back-charges exceed the purchase price of the specific product on which back-charges were requested. Correction of nonconformities, whether patent or latent, in the manner and within the time provided above shall constitute the entire liability of Seller with respect to such product whether in contract, warranty, tort, strict liability, or otherwise.
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, OR IMPLIED, IN FACT, OR IN LAW (INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PURPOSE).
Shortages must be reported in writing to Seller within ten (10) days of receipt of material; otherwise, shipment is presumed to be complete and in accordance with the bill of lading and packing list.
LIMITATION OF LIABILITY
IN NO EVENT, SHALL SELLER, ITS SUBCONTRACTORS OR ITS VENDORS BE LIABLE IN CONTRACT, TORT, STRICT LIABILITY, WARRANTY OR OTHERWISE, FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, SUCH AS BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS OR REVENUE, LOSS OF USE OF SYSTEM, NONOPERATION OR INCREASED COST OF OPERATION OR OTHER EQUIPMENT OR COST OF CAPITAL, EVEN IF ADVISED IN ADVANCE.
The liability of Seller, its representatives, distributors, subcontractors or vendors, with respect to this contract, or anything done in connection therewith, or from the manufacture, sale, delivery, resale, technical direction covered by or furnished under this contract, whether in contract, in tort, in warranty, in strict liability or otherwise, shall not exceed the purchase price paid on the contract.
No action arising out of any claimed breach of this agreement or transactions under this agreement may be brought by Buyer more than six (6) months after the cause of action has accrued.
THE REMEDIES OF THE BUYER SET FORTH IN THIS DOCUMENT ARE EXCLUSIVE. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY CONTAINED IN THIS SECTION ARE A FUNDAMENTAL AND INTEGRAL PART OF THE BASIS OF EACH PARTY’S BARGAIN HEREUNDER, AND SELLER WOULD NOT ENTER INTO THIS AGREEMENT ABSENT SUCH LIMITATIONS.
Seller shall not be liable for any loss or damage resulting from delay in the prosecution or completion of the work caused by labor disputes, floods, fires, riots, thefts, accidents, inability to obtain labor, materials, components, or fuel, acts of Government, or any other cause which is beyond the reasonable control of Seller. Seller agrees to notify the Buyer if any of these events occur. Seller shall have the right in the event of the happening of any of the above contingencies, to cancel this agreement or any part thereof without any resulting liability.
CANCELLATION/TERMINATION/FAILURE TO TAKE DELIVERY
Buyer agrees that an order shall in no event be subject to cancellation except by prior written consent of Seller, and then only when Seller is fully reimbursed for work performed and material used. If Buyer cancels all or part of an order for special, non-standard products ("Specials"), Buyer shall pay Seller the greater of an amount equal to (i) 100% of the price for such cancelled Specials, or (ii) the actual and consequential damages incurred by Seller, including without limitation Seller's anticipated profit and expenses already incurred by Seller. If Buyer cancels all or part of an order for standard products, Purchaser shall pay Seller a restocking charge equal to the value of the cost of raw materials, handling and labor costs.
To the extent that Buyer’s agents, employees, or subcontractors enter upon premises occupied by or under the control of Seller, or any of its customers or suppliers, in the course of performance hereunder, Buyer shall take all necessary precautions to prevent the occurrence of any injury, including death, to any person, or any damage to any property, arising out of any actions or omissions of such agents, employees, or subcontractors. Except to the extent that any such injury or damage is due to Seller’s gross negligence, Buyer shall indemnify and hold Seller harmless against all losses, claims, liabilities, and expenses, including reasonable attorney’s fees, arising out of any act or omission of Buyer, its agents, employees or subcontractors, and Buyer shall maintain such Public Liability, Property Damage and Employee’s Liability Compensation Insurance as will protect Seller from liability under any applicable Occupational Health and Safety, Workman’s Compensation, Occupational Disease Acts or similar laws.
Neither party shall delegate any duties, nor assign any rights or claims hereunder, without prior written consent of the other party.
NON-WAIVER REMEDIES: COST AND ATTORNEY’S FEES
The remedies of Seller herein reserved or created shall be cumulative and additional to any other or further remedies provided at law or in equity. Seller may remedy any breach of the terms or conditions hereof without waiving the breach remedied or without waiving any other prior or subsequent breach. Buyer shall pay Seller any costs and expenses, including attorney’s fees, incurred by seller in exercising and of its rights or remedies hereunder or enforcing any of the terms or conditions hereof.
SPECIAL TOOLS AND PLATES
Unless otherwise agreed in writing, all the tools, dies, plates, and fixtures, if any, required for the manufacture of the goods shall remain the sole property of Seller and shall be retained in Seller’s possession, whether or not Buyer has paid Seller for such items. These items shall be used by Seller in filling orders of Buyer, but if a period of twelve (12) months has elapsed since the receipt of any order from Buyer requiring the use of such tools, dies, plates, and fixtures, Seller may thereafter make any such use or disposition of such items as Seller desires, without any accounting to Buyer for such use or disposition, or the proceeds thereof.
Unless otherwise disclosed in writing to Seller, no information or knowledge heretofore or hereafter disclosed to Seller in the performance of or in connection with the terms hereof, shall be deemed to be confidential or proprietary and any such information or knowledge shall be free from restrictions, other than a claim for patent infringement, as part of the consideration hereof.
Waiver by Seller of any of these Standard Terms and Conditions shall not constitute a waiver of any other of these Standard Terms and Conditions.
Any provisions hereof prohibited by law shall be ineffective to the extent of such prohibition without invalidating the remaining provisions hereof.
The Sales Acknowledgement, its acceptance, sale of the product, and any other matter arising out of the transaction contemplated hereunder shall be governed by the substantive law of the Commonwealth of Pennsylvania without regard to its conflicts of law provisions or the United Nations Convention for the International Sale of Goods.
Any written notice provided for herein to be given to Seller by Buyer shall be mailed or delivered to Seller’s address stated in the Sales Acknowledgement or to an address and / or person subsequently designated in writing by Seller. Likewise, any notice to be given to Buyer by Seller shall be mailed to or delivered to Buyer at address stated in the Sales Acknowledgement or to an address and / or person subsequently designated in writing by the Buyer.
The headings used herein are for reference purposes and shall not effect the meaning or interpretation hereof.
These terms and conditions constitute the complete and exclusive agreement between the parties concerning the subject matter thereof and supersede all prior representations, statements and promises made by Seller which are nor expressly stated in said terms and conditions.