PRETIUM PACKAGING: TERMS AND CONDITIONS OF SALE
1. ACCEPTANCE: These Terms and Conditions of Sale are PRETIUM PACKAGING’s offer to Purchaser and become a binding contract when accepted by issuance of a written Purchase Order. All quotations are made and orders accepted subject to applicable regulations and orders of government agencies and are subject to final acceptance or confirmation by PRETIUM PACKAGING and no terms or orders are binding upon PRETIUM PACKAGING until so accepted.
2. SHIPMENTS: Unless otherwise stated by PRETIUM PACKAGING in writing, all deliveries will be FOB PRETIUM PACKAGING’s warehouse (UCC terms). All deliveries will be made via common carrier or some other reasonable means chosen by PRETIUM PACKAGING unless specified by Purchaser and accepted by PRETIUM PACKAGING. All risk of loss to products sold shall pass to Purchaser upon delivery by PRETIUM PACKAGING of such product to a common carrier. Delivery schedules represent estimates by PRETIUM PACKAGING and partial deliveries are permissible. PRETIUM PACKAGING shall not be liable for any delay in the performance of orders or contracts or in the delivery or shipment of products or for any damages suffered by Purchaser by reason of such delay. Delivery is subject to Purchaser maintaining credit satisfactory to PRETIUM PACKAGING. PRETIUM PACKAGING may suspend or delay performance of delivery at any time pending receipt of assurance, adequate to PRETIUM PACKAGING, at PRETIUM PACKAGING’s sole discretion, of Purchaser’s ability to pay, including without limitation, full or partial payment or payment of any outstanding amounts owed. Failure to provide such assurance will entitle PRETIUM PACKAGING to cancel this contract without further liability or obligation to Purchaser. The product will be shipped at PRETIUM PACKAGING’s earliest convenience and PRETIUM PACKAGING shall select the point and route of shipment. PRETIUM PACKAGING’s weights and measures shall govern, except in case of proved error. Overruns or under-runs, not exceed 10% of the amount ordered, shall be considered acceptable delivery. The excess or deficiency shall be charged proportionately. Unless expressly stated in writing to the contrary, PRETIUM PACKAGING reserves the right to select its source of raw materials, suppliers or producers of the Purchaser’s goods.
3. HELD INVENTORY: Without limiting any other rights PRETIUM PACKAGING may have hereunder if the shipment of the Product is delayed as a result of any action or inactions of Purchaser for more than fourteen (14) days past Purchaser’s acknowledged shipment
date, the availability date requested by Purchaser or the Purchaser’s release date whichever shall first occur, Purchaser shall pay PRETIUM PACKAGING a warehouse charge equal to five percent (5%) of the purchase price of the Product per month or portion thereof after such thirty (30) day period. In the event the Product is held for two (2) months after any such thirty-day period, PRETIUM PACKAGING will not accept any additional Purchase Orders from Purchaser. In the event the Product is held for four (4) months after the initial thirty (30) day period, Purchaser shall be invoiced for all Product held and such Product will be shipped to a destination specified by Purchaser at Purchaser’s expense. If no destination is so specified, PRETIUM PACKAGING may cancel all deliveries, past or subsequent without in any way limiting or waiving PRETIUM PACKAGING’s other remedies in law or Equity.
4. PRICE: All prices are subject to change without notice. All orders will be invoiced at prices in effect on the day of shipment. Prices are also subject to adjustments for changes in raw materials as may be directly incurred by PRETIUM PACKAGING between the date thereof and the date on which such materials are utilized by PRETIUM PACKAGING fulfilling this order.
5. TERMS OF PAYMENT: Purchaser shall make payments to PRETIUM PACKAGING without discount within 30 days after date of invoice. Late payments will be subject to a late charge of 1-1/2% per month, or the highest amount allowed by applicable law if lower. If payment is not made as provided herein, or if Purchaser’s financial responsibility becomes unsatisfactory to PRETIUM PACKAGING, PRETIUM PACKAGING may, at its option (1) elect to withhold future deliveries of goods to Purchaser until such breach has been cured or Purchaser’s financial responsibility has been established to PRETIUM PACKAGING’s satisfaction; (2)require payment in advance as to future deliveries; (3) demand return from Purchaser of any goods under this or any other invoice for which payment has not been made; or (4) cancel this Agreement. The remedies contained in this paragraph are cumulative and shall be in addition to any other remedies available to PRETIUM PACKAGING under applicable law.
6. RETURNS: Within (60) days after Purchaser’s receipt of products, Purchaser must give written notice to PRETIUM PACKAGING of any claim by Purchaser based upon condition, quality or grade of products or of any claimed nonconformity with Purchaser’s specifications. Purchaser’s failure to comply with this policy will constitute irrevocable acceptance by Purchaser of such products and will bind Purchaser to pay PRETIUM PACKAGING for the full price of such products. Accepted products may not be returned or any reason without PRETIUM PACKAGING’s written consent. Requests for authorizations should be directed to PRETIUM PACKAGING CUSTOMER SERVICE, 15450 South Outer Forty Drive, Suite 120; Chesterfield, MO 63017; 314-727-8200; Fax 314-727-0249.
7. CANCELLATION/CHANGES: PRETIUM PACKAGING recognizes a Purchase Order as a legal instrument that is binding upon the company issuing this document under the Uniform Commerce Code (UCC). Upon receipt of a Purchaser’s Purchase Order signifying their intent to pay for goods rendered, PRETIUM PACKAGING may begin activities to produce the ordered product “in good faith”. Prior to any of the activities set forth below being performed, Purchasers may cancel their orders in writing at any time without penalty. The list of activities shall include but is not limited to the following:
ACTIVITY PURCHASER COST RESPONSIBILITY
– Specialty resins ordered or received – 50% of order value
– Preforms manufactured for bottle production – 30% of order value
– Special raw material (colorant, boxes, etc.) – 20% of order value
– Utilized direct or temporary labor – 30% of order value
– Line set-up initiated – Applicable below minimum run price
– Production begun – Below min.run cost plus price for number of units produced
– Order produced – Full value of order plus held inventory costs of 1.5%/month
8. Purchaser may not cancel or change an order placed with and accepted by PRETIUM PACKAGING except with the prior written consent of PRETIUM PACKAGING and with terms that indemnify PRETIUM PACKAGING against any loss or damage. All cancellations/changes must be in writing and sent to PRETIUM PACKAGING Corporation, 15450 South Outer Forty Drive, Suite 120; Chesterfield, MO 63017; 314-727-8200; Fax 314-727-0249 and approved in writing. Upon receipt of your request PRETIUM PACKAGING will respond in writing within 3 (three) business days. Subsequent charges assigned jointly by the Customer Service Manager and applicable Plant Manager.
9. TAXES: All taxes, charges and other levies imposed by federal, state or local government on the manufacture, sale, shipmentor use of the Product (other than income and excess profit taxes) shall be paid by the Purchaser.
10. WARRANTY AND LIABILITIES: PRETIUM PACKAGING warrants it has title to Product delivered hereunder and may properly sell the same to Purchaser and that such Product will conform to PRETIUM PACKAGING’s standard specifications or to the attached specifications, if any. PRETIUM PACKAGING MAKES NO OTHER WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED, CONCERNING THE PRODUCT OR THE MERCHANTABILITY OR FITNESS THEREOF FOR ANY PURPOSE. PRETIUM PACKAGING shall not be liable for special, indirect or consequential damages of any kind under this Agreement or otherwise, whether or not caused by negligence, and assumes no risk whatsoever as to the result of the use of Product either singly or in combination with other material. Purchaser assumes responsibility to analyze Product, and PRETIUM PACKAGING shall have no liability if Purchaser uses Product that does not conform to the aforesaid specifications. Not withstanding, anything to the contrary herein contained, the Purchaser shall be responsible to notify the PRETIUM PACKAGING promptly and no later than sixty (60) business days after the receipt of the Product of any questions as to the compliance of the Product with the Product specifications. Purchaser represents that it is familiar with the characteristics of Product and assumes all responsibility and liability for and will indemnify and hold PRETIUM PACKAGING harmless from any and all loss or injury to persons or property arising out of handling use or possession of Product delivered to it. Purchaser agress to hold PRETIUM PACKAGING free and harmless from any and all claims, liabilities, judgments, losses, economic losses or expenses (including reasonable attorney fees) incurred by PRETIUM PACKAGING in connection with its performance of this order and asserted by the Purchaser or a third party except as may otherwise be permitted by the terms of this confirmation.
11. CLAIMS: NO CLAIM OF ANY KIND, WHETHER BASED ON DELIVERY OR NON-DELIVERY OF PRODUCT OR ON TORT (E.G.NEGLIGENCE OR STRICT LIABILITY.) SHALL BE GREATER IN AMOUNT THAN THE PURCHASE PRICE OF THE QUANTITY OF PRODUCT TO WHICH SUCH CLAIM RELATES. Any claims by Purchaser must be received by PRETIUM PACKAGING in writing within sixty (60) days of the date of delivery or non-delivery. Failure to deliver notice of claim to PRETIUM PACKAGING within such sixty (60) day period will constitute a waiver by Purchaser of all claims in respect of such delivery or non-delivery. In addition, the PRETIUM PACKAGING does not warrant or represent that the Product is fit for any specific use or purpose notwithstanding any communication, whether oral or written, received by PRETIUM PACKAGING from the Purchaser who assumes full responsiblity for the fitness of the Product for any specific user or purpose. Unless the Purchaser requests in writing that the Product be cleaned, washed, sterilized, or packaged in a particular manner other than that which is customary “Service”, (and PRETIUM PACKAGING confirms in writing that it will perform the service, the Purchaser agrees to pay as consideration the additional cost to PRETIUM PACKAGING of performing any such Service). There is no obligation or responsibility of PRETIUM PACKAGING nor can there be any assumption by the Purchaser that PRETIUM PACKAGING will perform such Service.
12. INTELLECTUAL PROPERTY RIGHTS: PRETIUM PACKAGING has no knowledge of Purchaser’s intended uses but hasprovided products based solely upon information furnished to PRETIUM PACKAGING by the Purchaser. PRETIUM PACKAGING makes no representations or warranties to the Purchaser regarding any infringement of Intellectual Property Rights (or the absence thereof) resulting from the use of the Products. PRETIUM PACKAGING 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 PRETIUM PACKAGING in connection with the Products shall remain the property of PRETIUM PACKAGING.
13. OWNERSHIP OF DRAWINGS, PATENTS AND OTHER PROPERTY: All drawings, illustrations, negatives, litho positives, dimensions, specifications performance projections, designs, plans, computations, and descriptions prepared by PRETIUM PACKAGING in connection with any work quotations,or contract, whether of products or general engineering or other arrangements are PRETIUM PACKAGING property and must not be copied or disclosed to any other persons or used for any purpose whatsoever without PRETIUM PACKAGING’s prior written consent. Artwork, tooling, molds which are billed and paid for by Purchaser shall be released to Purchaser upon request and subject to full payment of all outstanding invoices of Purchaser. PRETIUM PACKAGING will not be responsible for any material left in its possession and not used for a period greater than three (3) years.
14. SEPARATE SALES: Each delivery of Product shall constitute a separate sale with the same effect as though made under a separate Agreement covering the amount thereof. Any delay or default by PRETIUM PACKAGING with respect to any delivery shall not affect Purchaser’s obligation to order, accept and pay for future deliveries.
15. REMEDIES: PRETIUM PACKAGING reserves the right (a) to invoice Purchaser for and/or ship, any Products at any time on or fter date of manufacture or Purchaser’s initial requested shipping date as shown on the face hereof, whichever is the later; (b) to transfer to its general stock any Products ordered by Purchaser for which PRETIUM PACKAGING 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 later, or (c) to resell for any prices and on any terms PRETIUM PACKAGING may choose, or to scrap any Product for which Purchaser’s initial requested shipping date or date of manufacture, whichever date shall last occur, and to invoice Purchaser for such products according to PRETIUM PACKAGING’s then current price list less net proceeds from any resale of any net scrap value. In accordance with section 2 of this Agreement, PRETIUM PACKAGING reserves the right to access storage charges on all Product held in storage by PRETIUM PACKAGING in excess of thirty (30) days following completion of the order or thirty (30) days after the Purchaser’s acknowledged availability date, whichever is later. Except as stated herein to the contrary, no Product may be returned without the written authorization of PRETIUM PACKAGING, and PRETIUM PACKAGING reserves the right to impose a reasonable restocking charge for merchandise which PRETIUM PACKAGING accepts for return when not otherwise required to do so. Purchaser grants and PRETIUM PACKAGING retains a security interest in all the merchandise sold and proceeds thereof until the purchase price is paid in full. Checks do not constitute payment in full and do not satisfy or suspend the obligation to pay the purchase price until such checks have cleared Purchaser’s bank. If Purchaser commits a breach of any of the provisions of this Agreement; or if Purchaser defaults in the payment of any indebtedness to PRETIUM PACKAGING whether or not under this Agreement; or if any bankruptcy; receivership, insolvency or reorganization proceedings are instituted by or against Purchaser, then in any such event PRETIUM PACKAGING shall have the right, in addition to any other rights and remedies it may have, to suspend deliveries hereunder or to terminate this Agreement.
16. WAIVER: Any waiver by the parties of strict conformance with any of the terms and conditions of this Agreement shall not be a waiver of any subsequent failure to comply with such terms and conditions.
17. ENTIRETY OF CONTRACT: This Agreement and attachments contain the entire understanding between the parties, and supersede any other understanding arrangements whether oral or written except for any written agreement between Purchaser and PRETIUM PACKAGING which refers to this section 10 and specifies those portions of this Agreement which are subordinate to any such written agreement. Any other agreements between the parties concerning the purchase and sale of Product are hereby superseded. No interpretation, revision of amendment to this Agreement shall be effective unless stated in writing and signed by a duly authorized representative of each of the parties hereto. All purchase orders or purchase acknowledgements which may be used to order or acknowledge orders for delivery of Product shall be deemed intended for record purposes only, and any terms or conditions contained therein shall not serve to add or modify the terms and conditions of this Agreement.
18. ASSIGNMENT: This Agreement shall not be assigned by Purchaser without prior written consent of PRETIUM PACKAGING.
19. FORCE MAJEURE: Neither party shall be liable for any failure or delay in performance hereunder which may be due, in whole in part, to fire, explosion, strike or labor difficulty, accident, breakdown of machinery or equipment, curtailment in the supply of natural gas, whether pursuant to actions or proceedings already or hereafter commenced, inability to obtain power, labor or materials, including Product, from normal sources of supply, transportation or handling accidents or delays, act of God, act, order, regulation or request of government or other public authorities, war, riot, or civil disorder or any other cause or causes, of any nature beyond the control of the party affected. In the event of curtailment of supply of Product due to any causes, PRETIUM PACKAGING shall have the right to apportion deliveries of Product on such basis as may appear to it to be equitable. Any accepted order which, due to any such causes shall not have been filed by the end of Agreement term, may be cancel either party with respect to Product not then delivered.
20. GOVERNING LAW: This Agreement shall be governed by and construed under laws of the State of New Jersey. In the case of shipments outside the U.S.A., the trade terms as used herein shall be interpreted according to the provisions of “Incoterms 1980” of the International Chamber of Commerce.
21. NOTICES: Any notices required or permitted by this Agreement shall be sent by registered or certified mail, return receipt requested, to the parties at the addresses for the parties set forth on PRETIUM PACKAGING’s offer to Purchaser. The term PRETIUM PACKAGING shall refer to affiliates of PRETIUM PACKAGING where appropriate.
22. TITLE AND RISK OF LOSS: Title to and risk of loss, damage, breakage or late delivery to the Product shall pass to Purchaser upon PRETIUM PACKAGING’s delivery to a carrier at the shipping point, FOB (PRETIUM PACKAGING’s warehouse (UCC), notwithstanding any terms of shipment specified herein.