As used herein: the term “Seller” refers to Multi-Plastics, Inc. and its affiliates; the terms “Products” or “Product” refer to plastic roll or sheet stock and any other goods or services manufactured, sold, distributed or provided by Seller; and the term “Buyer” refers to any person or entity that purchases a Product from Seller.
1. Terms of Agreement; Price Policy. Seller’s offer to sell Products to Buyer is expressly conditioned upon the acceptance of these terms and conditions, in addition to those variables – quantity, price, payment terms, shipping terms, etc. – contemplated or allowed herein. Any contrary, conflicting or additional terms or conditions contained in Buyer’s acceptance or any other document shall not become part of the contract between Seller and Buyer. Prices for Products quoted by Seller are firm for the time period in Seller’s offer, or thirty (30) days from the date of Seller’s offer if no such date is specified therein. All Products are priced in U.S. Dollars, unless otherwise stated in the Seller’s offer. In accordance with general practice in Seller’s business, the quantity of a particular Product delivered to Buyer may vary by an amount not to exceed 10%. Buyer shall be invoiced and pay for the quantity of Product actually delivered, within such parameters.
2. Payment Terms. Buyer shall pay Seller for Products within the time period specified in Seller’s offer, or 1% 10 Net thirty (30) days after delivery of the applicable Product, if a payment date is not specified in Seller’s offer. Any amount not paid within thirty (30) days of the date that such amount is due shall bear interest at a rate of 1.5% per month.
3. Shipment; Risk of Loss. Unless otherwise stated in Seller’s offer to Buyer, all prices are F.O.B. Seller’s facility, with Buyer bearing all costs, insurance premiums, freight and all other charges or expenses incurred after Seller has placed the Products in the custody of the applicable carrier. Title to and risk of loss with regard to all Products shall pass to Buyer upon Seller’s placing the Products in the custody of the carrier for shipment to Buyer, unless otherwise agreed. As used herein, the terms “delivered”, “delivery” and other similar terms shall refer to the delivery of the Products to the appropriate carrier.
4. Inspection. Within 10 days following the date of receipt by Buyer, Buyer shall inspect the Products and shall immediately notify Seller of any non-conforming Products. Failure by Buyer to immediately notify Seller in writing of any such problem shall be conclusive proof that the Products have been received by Buyer as ordered by Buyer. Seller shall in no event have any responsibility for any damage caused to the Products during shipment. It shall be the sole responsibility of Buyer to file any appropriate claims for reimbursement with the carrier.
5. Warranties; Limitation of Liability. Any warranties provided by Seller to Buyer must be clearly set forth in Seller’s written offer. OTHERWISE, THERE ARE NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ANY PRODUCT. In the event that an express warranty is provided by Seller to Buyer, Seller’s exclusive liability to Buyer, and Buyer’s sole remedy against Seller, shall be the replacement by Seller of any defective Product, and all other costs associated with correcting any defect shall be the sole responsibility of Buyer. Under no circumstances shall Seller to liable for any indirect, economic or consequential damages.
6. Indemnification. Buyer shall indemnify, defend and hold Seller harmless with respect to any demand, claim, fee, penalty, fine, action, cause of action or other liability made by or with respect to a third party for injury, death or property damage that arises out of: (a) Buyer’s use of the Product; or (b) the failure of Buyer to abide by its obligations hereunder. Notwithstanding the foregoing, the indemnification set forth in (a), above, shall not be applicable to any liability directly arising out of a material defect with respect to a Product.
7. Taxes; Licenses and Permits. Unless otherwise stated in Seller’s offer to Buyer, Seller’s price does not include any federal, state or local property, license, privilege, import, export, sales, use, excise, gross receipts, value added, or other similar taxes which may now or hereafter be applicable to, measured by, imposed upon, or with respect to the sale of the Products, or their value or use. Such taxes are the liability of Buyer, and Buyer shall pay or reimburse Seller for any such taxes. Additionally, unless otherwise stated, Buyer shall be solely responsible for obtaining all export or import licenses or permits with respect to the Products. In the event that the laws or regulations of the United States of America restrict the importation of the Products to a particular country, Buyer shall be fully responsible for complying with such laws or regulations, and shall notify Seller of any such issues.
8. Force Majeure. Seller shall not be liable for failures or delays caused by circumstances beyond its control, including, but not limited to, weather, acts of war or terrorism, riots, shortage or curtailment of materials, lack of parts, labor disputes, lockouts, strikes, transportation problems or delays, embargos or changes in law.
9. Security Interest. Buyer hereby grants to Seller a purchase money security interest in any Products, and Seller shall have the right to file any financing statements or other similar notices with respect thereto that it reasonably deems appropriate.
10. Confidentiality. Each party shall not to disclose or use any technical or proprietary information of the other party, except as required to perform hereunder or as required by law. Each party shall maintain ownership of its technical and proprietary information.
11. Governing Law; Forum Selection; Jury Waiver; Attorney Fees. All questions concerning the validity, meaning or enforcement of the Agreement, and all questions relating to the performance thereunder, shall be judged and resolved in accordance with the laws of the State of Ohio. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. THE PARTIES AGREE THAT, EXCEPT FOR ANY RESTRICTIONS WITH REGARD TO SUBJECT MATTER JURISDICTION, ANY STATE OR FEDERAL COURT LOCATED IN FRANKLIN COUNTY, OHIO, SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DECIDE ANY CASE OR CONTROVERSY BETWEEN SELLER AND BUYER WITH REGARD TO THIS AGREEMENT OR ANY GOODS OR SERVICES SOLD OR PROVIDED BY SELLER. EACH PARTY AGREES NOT TO INITIATE ANY ACTION, WHETHER LEGAL OR EQUITABLE, AGAINST THE OTHER PARTY, EXCEPT IN A STATE OR FEDERAL COURT LOCATED IN FRANKLIN COUNTY, OHIO. BOTH PARTIES CONSENT TO SERVICE OF PROCESS FROM SAID COURTS, IN ACCORDANCE WITH THE RULES THEREOF, AND WAIVE ANY OBJECTIONS REGARDING INCONVENIENT FORUM, VENUE, OR PERSONAL JURISDICTION. In the event of any litigation arising from or related to the services provided under this Agreement, the prevailing party shall be entitled to recover all reasonable costs incurred, including court costs, attorney fees and other related expenses.
12. Entire Agreement; Captions; Severability. These terms and conditions, together with those variables (quantity, price, payment terms, shipping terms, etc.) contemplated herein, shall represent the entire agreement of the parties with regard to the sale of Products by Seller to Buyer, and no other representations, promises or agreements, oral or otherwise, between the parties not contained therein shall be of any force and effect. These terms and conditions may not be changed, waived, discharged or terminated except in writing executed by Seller and Buyer. The captions contained herein are for convenience only and shall have no effect upon the construction or interpretation of these terms and conditions. If any clause or provision contained herein is held to be illegal, invalid or unenforceable, under any present or future law, the remainder shall not be affected thereby. In lieu of such a clause or provision held to be illegal, invalid or unenforceable there shall be added a clause or provision as similar in terms as possible which shall be legal, valid and enforceable.