DEFINITIONS. “Goods” means, without limitation, the materials, supplies, equipment, products or services covered by this Order. “Buyer” means Combi Packaging Systems, LLC. “Seller” means the business entity to which this Order is addressed including Seller’s principal if Seller is acting as a broker or agent.
ACCEPTANCE AND FORMATION. This purchase order, together with these Terms and Conditions, any specifications, schedules, exhibits, or other writings which may be annexed hereto by Buyer and made a part hereof (“Order”), sets forth the complete and final agreement between Buyer and Seller and shall govern all purchases made by Buyer from the Seller of Goods and services (“Services”). No amendments, modifications or supplements to the provisions of this Order will be valid and binding upon Buyer unless in writing and signed by Buyer. At the election of Buyer, Seller’s commencement of performance of this Order shall constitute acceptance by Seller of all of the terms and conditions of this Order. Seller shall not assign this Order or enter into any subcontract for Goods or Services covered hereby without the written consent of Buyer. Buyer’s consent, however, shall not release Seller from any obligation or liability.
DELIVERY AND QUANTITY. Time is of the essence with respect to any delivery of Goods or Services.Any quantity of Goods delivered in excess of the quantity indicated on the face hereof may be returned to Seller at Seller’s cost.
INVOICES. Seller’s invoices shall be mailed and/or emailed not later than the day after each shipment is made. Individual invoices shall be issued for shipments applying against each Order. Invoice payment dates will be computed from the date the Services are completed or the Goods are received by Buyer or the date when invoices are received by Buyer, whichever is later. Any applicable sales tax, duty excise tax, use tax, or other similar tax or charge, for which Buyer has not furnished an exemption certificate, must be itemized separately on Seller’s invoices. Additionally, Seller’s invoices must include the purchase order number and the location the Goods and Services were delivered to.
WARRANTY. Seller expressly warrants that the Goods and Services shall be: (a) in strict conformance to the specifications, drawings, samples, or other descriptions set forth in the Order; (b) merchantable; (c) fit for the purpose intended; (d) free from defects in material and workmanship; (e) free from defects in design; (f) free from liens or encumbrances on title; (g) to the extent the Goods are, or contain hardware and/or software, free from viruses and other sources of network corruption; and (h) comply with all applicable laws, ordinances and regulations. Seller also warrants that Seller shall perform its obligations in a professional, workmanlike, and timely manner, consistent with industry standards and in compliance with any scope of work or similar document agreed between the parties in writing and will comply with all of Buyer’s policies when on Buyer’s premises. All Goods are subject to final inspection and acceptance at Buyer’s plant, payment therefore shall not constitute acceptance. Any Goods which are found to be defective, either before or after acceptance, may be rejected and returned to Seller at Seller’s risk and expense for repair or replacement, or for credit at Buyer’s option. Buyer shall notify Seller of any Goods which are found to be defective, and if Buyer finds it impractical to return defective Goods for repair or replacement within a reasonable time, it may perform necessary repairs and charge the reasonable cost thereof to Seller. Any payments made on any rejected Goods shall be immediately refunded to Buyer.
CERTIFICATE OF COMPLIANCE. Seller shall provide with each shipment a certificate stating: (a) that all Goods, including the designs, supplied by Seller have been inspected; (b) they comply in all respects with the specifications and/or drawings in accordance with the Order; and (c) all inspection and test results are available for examination by Buyer. Where Goods or processes are procured from others, Seller shall provide a certificate certifying these Goods and processes as above and that evidence of same is available for examination by Buyer.
PRICE AND PAYMENT. Seller warrants that the prices of the Order shall not exceed those charged by Seller to any other customers purchasing the same items in like or lesser quantities. Buyer will pay for the Goods and Services within 45 days after the Buyer’s receipt of the applicable invoice and the Goods have been received or the Services completed.
CHANGES. Buyer may at any time, by a written order signed by an authorized representative, make changes in or additions to the drawings and specifications, issue additional instructions, require additional work or the omission of work covered by this Order and Seller shall proceed with the work as so changed. Changes shall be within the general scope of the Order. If any changes cause a material increase or decrease in the amount or character of the work or time required under this Order, an equitable adjustment shall be made in the price or time for performance or both and the Order shall be modified in writing accordingly. Any claim for adjustment under this Section must be asserted within 30 days from the date the change is ordered or within such further time prior to the date of final settlement as may be agreed to in writing by the parties.
STOP WORK ORDER. Buyer may, at any time, by written order to Seller require Seller to stop all or any part of the work called for by this Order for a period of up to 90 days. Upon receipt of such order, Seller shall forthwith comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work covered by the Order during the period of work stoppage. An equitable adjustment shall be made in the delivery schedule or Order price, or both, and the Order shall be modified in writing accordingly, if (a) the stop work order results in an increase in the time required for, or in Seller’s cost properly allocable to the performance of any part of this Order, and (b) Seller asserts a claim for such adjustment within 30 days after the end of the period of work stoppage.
TERMINATION. Buyer may, with written notice, for whatever reason or no reason, with or without cause, at any time terminate this Order and/or any order.
PACKING.No charge will be allowed for packing, boxing, or cartage unless agreed upon at the time of purchase, but damage to any Goods not packed to ensure proper protection will be charged to Seller. Each package must contain a memorandum showing shipper’s name, contents of package, and Buyer’s Purchase Order number. An itemized packing slip must accompany each shipment. All shipments of hazardous materials shall comply with U.S. Department of Transportation regulations and labeling shall meet OSHA regulations as published in 29 C.F.R. 1910.1200, for the transporting and labeling of hazardous materials. All of the above and Material Safety Data Sheets shall be supplied by Seller.
SHIPMENT. Shipping terms are F.O.B. Buyer’s address shown on the Order, and Seller will bear the risk of loss, damage or destruction until final acceptance of the Goods by Buyer at Buyer’s destination. Seller shall not insure any shipments or declare excess valuation on any shipments for Buyer’s account. Seller will be charged with any costs incurred by Buyer arising out of Seller’s failure to conform to the foregoing instructions. Any unauthorized deviation resulting in additional shipping cost shall be debited to Seller. Should the Seller fail to deliver the Goods or Services within Seller’s promised delivery date, Seller shall make partial shipments as available by the fastest mode of transportation and shall be debited by Buyer for the resulting premium transportation charges.
NON-INFRINGEMENT. Seller warrants that the Goods and Services, and the use thereof do not infringe any trade secret, patent, trademark, or copyright and that Seller will indemnify and hold harmless the Buyer on account of any such alleged or actual infringement as provided for in Section 17.
BUYER’S INFORMATION. All written information obtained by Seller from Buyer in connection with this Order, including, but not limited to, any specifications, drawings, blueprints, and software programs, and any other types of tangible or intangible information, shall remain the property of Buyer, shall be used by Seller only to the extent necessary for performance of this Order, and shall not be disclosed to any third parties without written consent of Buyer. Seller shall keep confidential and shall not, without the prior written consent of the Buyer, disclose to any third party or otherwise make public the terms or existence of this Order or any confidential or sensitive information of the Buyer.
PROPERTY. Whenever Seller shall, by virtue hereof, have in its possession property of Buyer, Seller assumes the risk of and shall be responsible for any loss of or damage to said property while said property is in the possession, control, or custody of Seller. Seller shall segregate, clearly mark and maintain complete inventory of all such property. Seller will immediately notify Buyer of any loss of or damage to such property. Seller shall also be liable hereunder for all losses to Buyer occasioned by Seller’s failure to furnish timely written notice to Buyer of any loss of or damage to property of Buyer suffered in transit or prior to receipt by Seller. Seller agrees that any Buyer property furnished hereunder shall be used only in the performance of this Order unless otherwise approved by Buyer. As directed by Buyer, upon termination or completion of this Order, Seller will deliver such property to the extent not incorporated in delivered end products to Buyer in good condition subject to ordinary wear and tear.
BUYER PROPERTY. Buyer will own any equipment, tooling or and/or materials ancillary to work performed furnished or paid for, in whole or in part, by Buyer (collectively “Buyer Property”). Seller will, to the extent feasible, identify Buyer Property as Buyer directs and will use and dispose of Buyer Property only in accordance with Buyer’s written instructions. Seller assumes complete liability for any Buyer Property in Seller’s possession and Seller agrees to pay for all repair, maintenance and replacement of Buyer Property.
INDEMNIFICATION. Seller agrees to completely defend, indemnify and hold harmless Buyer, and its officers, directors, employees, affiliates, and agents (collectively, the “Indemnified Party”), from any and all suits, claims, judgments, awards, losses, costs or expenses, damages (including attorneys’ fees) relating to, arising out of, or caused by the performance hereunder, any act or omission of Seller or any Goods or Services. This duty to defend, indemnify and hold harmless extends to any legal claim or proceeding, whether based on contract, warranty, infringement, strict liability in tort, negligence or other legal theory, and also extends not only to third party claims but also to any loss suffered directly by the Indemnified Party. Buyer is entitled to control Seller’s defense of Buyer hereunder.
LIMITATIONS OF LIABILITY. Any liability of Buyer for breach of any term or condition imposed upon it, whether such term or condition is contained in this Order or otherwise, will not exceed the purchase price for the Goods or Services in the Order. Buyer will not under any circumstance be liable for special, punitive, indirect, incidental or consequential damages of any nature (including without limitation, any loss of use, loss of contracts, loss of profit, loss of revenue, loss of goodwill, loss of anticipated savings, increased costs, liabilities to third parties).
INSURANCE. Seller shall procure and maintain appropriate insurance coverage of at least the following limits: (a) Worker’s Compensation: Statutory; (b) General Commercial Liability: $1 million per occurrence, $2 million aggregate; (c) Automobile: $1 million per occurrence; and (d) Professional Liability: $1 million per occurrence. Seller will provide a certificate of insurance upon request. Buyer makes no representation that such insurance coverage is adequate for Seller and Seller is solely responsible for maintaining adequate insurance. The obligation of Seller to provide insurance shall not limit in any way Seller’s liability or obligations arising under this Order.
COMPLIANCE WITH LAWS. In performing this Order, Seller warrants that it will comply with all applicable federal, state, and local laws, and the rules and regulations of any governmental authority. Buyer reserves the right to cancel any Order without penalty or liability to Buyer in the event Seller’s performance under this Order does not comply with such laws, rules and regulations. The Seller must advise the Buyer upon receipt of any Order if the Goods or Services to be supplied contain any hazardous or harmful materials requiring special handling or treatment. All Goods, Services and hazardous materials supplied to the Buyer shall comply with all applicable requirements under the Toxic Substance Control Act, 15 U.S.C. 2601 et seq., and implementing regulations thereunder.
LAW AND INTERPRETATION. This Order shall be governed by and interpreted in accordance with the laws of the State of Ohio without regard to conflicts of laws or principles. The parties agree that any dispute concerning this Order shall be brought in a Court of competent jurisdiction in Stark County, State of Ohio. In addition, to the extent of any express conflict or inconsistency between Buyer’s Terms and Conditions of Purchase and Seller’s documentation or terms, Buyer’s Terms and Conditions will control. In the event that any provision of these Terms and Conditions is declared to be illegal or invalid, only such provision shall be affected. These Terms and Conditions shall then be construed and enforced as if such provision had not been contained herein, and all other provisions not directly dependent thereon shall remain in full force and effect.
AUDIT. At any time, upon reasonable notice, Buyer may audit Seller’s policies, books, records, cost of goods sold, and work in progress with respect to the manufacture of the Goods and facilities to assure compliance with the terms of this Order and any applicable laws or regulations. Seller shall fully cooperate with any and all audits by Buyer. If Buyer’s audit determines any noncompliance with this Order, Seller shall immediately correct such noncompliance and will reimburse Buyer for all audit expenses.
INDEPENDENT CONTRACTOR. The relationship of Seller to Buyer shall at all times be one of independent contractor, and neither party shall be or represent itself to be an employee, agent, representative, partner or joint venture of the other, nor shall either party have the right or authority to assume or create any obligation on behalf of or in the name of the other or to otherwise act on behalf of the other. Seller shall be solely responsible for any benefits, taxes, statutory obligations, workers compensation, and other obligations due to employees and permitted subcontractors of Seller. Seller shall supply, at its own expense, all tools, supplies and equipment necessary for the provision of Goods and completion of the Services including, without limitation, transportation, and will bear all costs and expenses in connection with performing the Services.
NON-EXCLUSIVE. The parties agree and acknowledge that Buyer is not obligated to purchase any amount of Goods or Services from Seller, and Buyer may, at its sole option, use or purchase Goods or Services from other vendors.
THIRD PARTY BENEFICIARIES. The Goods and Services may be provided to Affiliates of Buyer, which shall have the right to enforce the terms as if signatories hereto. “Affiliates” are entities that directly or indirectly control or are controlled by, or are under common control with, Buyer.
FORCE MAJEURE. Neither party shall be liable for failure to perform or delay in performance hereunder if such failure or delay is due to fire, storm, flood, war, embargo, or any act of God or other cause or contingency beyond such party’s reasonable and/or foreseeable control. The party claiming the force majeure event shall use its best efforts to mitigate the effects of such event and resume performance as soon as reasonably practical. Buyer may, without obligation or liability to Seller, purchase Goods from another supplier until Seller is able to resume performance of its obligations hereunder.
WAIVER. Any waiver by either party of any provision or condition of this Order shall not be construed or deemed to be a waiver of any other provision or condition of this Order, nor a waiver of a subsequent breach of the same provision or condition, unless such is expressed in writing and signed by the party to be bound.
SURVIVAL. The provisions of Sections 5, 13, 14, 17 and 18 shall survive the termination of this Order.
