(a) These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the products or services (“Goods”) which 3D Barrier Bags, Inc. and its affiliates (“Seller”) have agreed to supply to you (“Buyer”). All orders are accepted and all contracts are made subject to the Terms.
(b) The accompanying quotation (the “Sales Confirmation” and these Terms (collectively, this “Agreement”)) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
(a) The goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order. Seller shall not be liable for any delays, loss or damage in transit.
(b) Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to the location agreed to in writing between Buyer and Seller (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such Goods. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point.
(c) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
(d) If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s notice that the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licences or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
(a) The quantity of any installment of Goods as recorded by Seller on despatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
(b) The Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within three days of the date when the Goods would in the ordinary course of events have been received.
(c) Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time at Seller’s expense, free of charge to Buyer.
Seller shall make delivery in accordance with the terms on the face of the Sales Confirmation.
(a) Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Florida Uniform Commercial Code.
(b) Until payment by Buyer in full of the Price and any other monies due to Seller in respect of all other products or services supplied or agreed to be supplied by Seller to Buyer (including but without limitation any costs of delivery) the property in the Goods shall remain Seller’s and Buyer shall hold the same as the fiduciary agent of and bailee for Seller and accordingly Buyer shall store the same separately from any items owned by Buyer or any third party and shall appropriately identify and mark the same as being our property and Buyer will insure such Goods for their replacement value with a reputable insurer and note Seller’s interest on any policy documents.
(c) Until such time as property in the Goods has passed to Buyer (and provided that the Goods are still in existence and have not been resold) Seller shall be entitled at any time to require Buyer to deliver up the Goods to Seller and if Buyer fail to do so forthwith we or our agents may enter Buyer’s premises and take possession of any Goods in which property remains Seller’s and remove and dispose of them as Seller’s think fit. Seller shall apply the proceeds of disposal (after deduction of all expenses) in discharge of the amount unpaid by Buyer.
These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of Buyer and a director of Seller.
(a) Buyer shall inspect the Goods within 24 hours of receipt (the “Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods within the Inspection Period. Buyer shall have 30 days after the Inspection Period to furnish to Seller written evidence or other documentation as reasonably required by Seller with respect to such Nonconforming Goods. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
(b) If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) refund the Price (or proportionate Price) for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility identified on the Sales Confirmation. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 7(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 7(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
(a) Buyer shall purchase the Goods from Seller at the price(s) quoted by Seller or as otherwise agreed between Buyer and Seller in writing (the “Price”). If Seller notifies Buyer in writing of Price increase before delivery of the Goods to a carrier for shipment to Buyer, then Buyer shall be billed by Seller on the basis of such increased price.
(b) All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
(c) Unless otherwise agreed in writing between Buyer and Seller, the Price shall not include packaging costs.
(a) Buyer shall pay all invoiced amounts due to Seller in accordance with the terms of payment in respect of the Price (and where relevant any delivery charges) agreed between Buyer and Seller in writing. Unless otherwise agreed to in writing, such invoiced amounts shall be paid not later than 30 days from the end of the month in which the invoice was issued (the “Payment Terms”). Buyer shall make all payments hereunder by cash, check, credit card or telegraphic transfer and in US dollars.
(b) In the event Buyer fails to make any payment in accordance with the Payment Terms then, without prejudice to any other right or remedy available to Seller, Seller shall be entitled to:
(i) cancel the contract for the sale and purchase of the Goods made pursuant to these Terms;
(ii) appropriate any payment made by Buyer to any Goods supplied under any other contract between Buyer and Seller, in Seller’s sole discretion;
(iii) charge interest to accrue on a daily basis at the lesser of the rate of 2% or the highest rate permissible under applicable law, per month from which payment falls due to the actual date of payment, such interest to be paid monthly;
(iv) demand payment of all outstanding balance from Buyer, whether due or not and/or cancel any outstanding order and/or decline to make further deliveries of the Goods (under this or any other contract between Buyer and Seller) except upon receipt of cash or satisfactory securities;
(v) recover the Price notwithstanding that delivery of the Goods may not have taken place and the property in the Goods has not yet been passed to Buyer.
(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
(a) SELLER MAKES NO WARRANTY WHATSOEVER, WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; OR (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(b) NOTWITHSTANDING ANY PROVISION OF THESE TERMS THE CONTRARY, SELLER SHALL NOT BE LIABLE TO BUYER (I) WITH RESPECT TO ANY DEFECT IN THE QUALITY OF THE GOODS OR (II) THE FAILURE OF THE GOODS TO MEET THE SPECIFICATIONS WHERE THE DEFECT OR FAILURE HAS ARISEN AS A RESULT OF IMPROPER STORAGE OR ANY ACT OR OMISSION OF BUYER.
(c) Any specification supplied by us shall be approximate only and for information and guidance only and shall not form part of the Contract.
(a) IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.
(c) The limitation of liability set forth in Section 11(b) above shall not apply to (i) liability resulting from Seller’s gross negligence or willful misconduct and (ii) death or personal injury resulting from Seller’s acts or omissions.
(d) Buyer shall indemnify Seller against all actions, claims, demands, losses (direct, indirect, consequential or otherwise), expenses, costs, actions and proceedings (“Loss”) suffered by Seller which arises as a result of a breach by Buyer of any provision of the Contract or Buyer’s breach of statutory duty or its negligence or the negligence of any of its representatives. If the Goods are to be manufactured by Seller in accordance with a specification submitted by Buyer, Buyer shall indemnify Seller against all Loss suffered by Seller in connection with any infringement claim by a third party relating to such Goods.
(e) Buyer shall be responsible for supplying reliable and accurate information to Seller (Including, without limitation, drawings, plans and designs) to enable Seller to manufacture the Goods. Seller shall be entitled to assume that all information supplied by Buyer is accurate, fit for the purpose for which it is supplied and that Seller can rely on the same. Seller shall not be liable for any Loss or delay of in delivery of the Goods which directly or indirectly arises from Buyer’s failure to supply accurate information.
Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Failure to do so shall not entitled Buyer to withhold or delay payment of the price. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
All non-public, confidential or proprietary information of Seller, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Seller on a non-confidential basis from a third party.
Unless otherwise agreed in writing, all Intellectual Property Rights in relation to the Goods and their method of manufacture, including any drawings or designs created by us or on your behalf in the performance of the contract, shall vest in Seller and remain property of ours notwithstanding the purchase of the Goods by Buyer and Buyer undertakes to enter into such agreements or deeds as Seller shall require to vest any such Intellectual Property Rights as aforesaid. Unless otherwise agreed, in writing and notwithstanding that Buyer may have contributed toward the costs of such items, all tooling (and all Intellectual Property Rights in relation to such tooling) produced or acquired by Seller in relation to the manufacture of the Goods shall be and remain Seller’s property. For purposes of these Terms, “Intellectual Property Rights,” means any copyright, patent, utility, model, design right, registered design, know how, show how, trade or service marks, rights in databases, topography rights and any equivalent or similar right in any jurisdiction throughout the world including any application, or the right to apply for any of the foregoing.
The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from any acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement. Seller shall be entitled to assign or subcontract all or any of its rights and obligations under this Agreement.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
20. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Florida.
Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Florida in each case located in the County of Orange, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at their registered office or principal place of business or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order including, but not limited to, the following provisions: Compliance with Laws, Confidentiality, Governing Law, Submission to Jurisdiction/Arbitration and Survival.