THESE ARE THE GENERAL TERMS AND CONDITIONS OF SALE OF POLYPLASTICS USA, INC. ("SELLER") (THIS "AGREEMENT") AND ALL SALES ARE LIMITED TO THE TERMS AND CONDITIONS SET FORTH HEREIN. ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY BUYER ARE HEREBY DEEMED TO BE MATERIAL ALTERNATIONS AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS HERE. THE TERMS OF THIS AGREEMENT ARE EXCLUSIVE.
Seller's quotations are expressly made conditional on Buyer's assent to the terms set forth herein which represent the sole and exclusive terms and conditions upon which Seller offers to sell Products to Buyer. These terms and conditions of sale shall not be amended, modified or rescinded, and no amendment, modification or rescission of the terms and conditions set forth herein will be binding upon Seller, unless such amendment, modification or rescission is agreed to in writing, makes express reference to amending these terms and conditions, and is signed by an authorized representative of Seller.
1.DELIVERY; FORCE MAJEURE:
(A) The Products shall be delivered F.O.B. Seller's designated facility, unless otherwise agreed in writing. Whether or not Seller prepays shipping charges, title to each shipment of the Products sold hereunder and risk of loss thereon shall pass to Buyer when Seller or its agent delivers such shipment to a common carrier or licensed trucker consigned to Buyer or his agent, but such shipment shall remain subject to Seller's rights of stoppage in transit, rights of reclamation and other legal rights of Seller.
(B) If a specific shipping date is designated and agreed, Seller shall use reasonable efforts to meet such shipping date, but shall have no liability if Seller is unable to do so despite such reasonable efforts.
(C) Seller shall not be in default or liable, directly or indirectly, because of Seller's delay or failure to deliver or perform arising or resulting, in whole or in part, from (i) any event, occurrence or cause beyond the reasonable control of Seller, and without its fault or negligence, including but not limited to acts of God, actions by any governmental authority, fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage, labor problems (including lockouts, strikes and slowdowns), inability to obtain or delay in obtaining power, material, labor equipment or transportation, or court injunction or order — in each case where such event, occurrence or cause directly or indirectly interferes with, or renders substantially more burdensome, Seller's production, delivery, or performance; provided that written notice of such delay (including the anticipated duration of the delay) shall be given by the affected party to the other party as soon as possible after the event or occurrence (but in no event more than 10 days thereafter).
Seller warrants that the Products will conform to Seller's specifications for the Products at the time of delivery under Section 1 above and be conveyed with good title thereto free from security interest, liens and encumbrances unknown to Buyer.
3.DISCLAIMER OF FURTHER WARRANTIES:
Except for the limited express warranty of Seller set forth in Section 2 above, Seller (including, without limitation, Seller's parent, subsidiary and affiliate companies ("Affiliates")) MAKES NO WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, UNDER THIS AGREEMENT AND/OR IN CONNECTION WITH THE PRODUCTS (INCLUDING WITHOUT LIMITATION ANY EXPRESS OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS OF THE PRODUCTS FOR A PARTICULAR PURPOSE OR FOR ANY USE CONTEMPLATED BY BUYER), AND NONE SHALL BE IMPLIED BY LAW.
4.LIMITATION OF LIABILITY AND REMEDIES:
(A) Subject to the terms and conditions hereof (including Section 8 (Claims) below), Seller's responsibility, and the sole and exclusive remedy of Buyer for any tender of non-conforming or defective goods or breach of warranty, is, at Seller's option and subject to the terms hereof, to repair, to replace (without any additional charge and shipped to Buyer F.O.B. Seller's plant), or to keep the Products and refund/credit Buyer's account in the amount of the purchase price of, any defective or non-conforming Products which are returned or offered to be returned by Buyer to Seller (with transportation charges prepaid by Buyer) during the period set forth in Section 8 below, provided that (1) Seller is promptly notified in writing with a detailed explanation of any alleged deficiencies upon discovery by Buyer that such Products fail to conform to this Agreement; and (2) Seller's examination of such Products shall disclose to Seller's satisfaction that such Products are defective or non-conforming under this Agreement.
(B) NOTWITHSTANDING ANYTHING TO THE CONTRARY, AND TO THE EXTENT PERMITTED BY LAW, SELLER (including without limitation any Affiliate of Seller) SHALL NOT BE RESPONSIBLE OR LIABLE, AND BUYER WAIVES ALL CLAIMS AGAINST SELLER (including without limitation any Affiliate of Seller), FOR ANY LOSS OF USE, REVENUE OR ANTICIPATED PROFITS, OR FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, CONTINGENT OR PUNITIVE DAMAGES OF ANY KIND, WHETHER OR NOT BASED UPON NEGLIGENCE OR BREACH OF WARRANTY OR STRICT LIABILITY IN TORT OR ANY OTHER CAUSE OF ACTION UNDER THIS AGREEMENT OR RELATING IN ANY WAY TO THIS AGREEMENT OR TO THE PRODUCTS SUPPLIED OR TO BE SUPPLIED HEREUNDER AND WHETHER OR NOT SELLER (including without limitation any Affiliate of Seller) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Buyer waives any causes of action or theories of liability including, but not limited to, those arising under contract, tort, strict liability, product liability, statutes, or otherwise, except as specifically provided by the UCC as modified and limited herein.
(C) IN NO EVENT WILL CLAIMS OR DAMAGES OR ANY OTHER RECOVERY OF ANY KIND AGAINST SELLER (or any Affiliate of Seller) UNDER THIS AGREEMENT OR RELATING IN ANY WAY TO THIS AGREEMENT OR TO THE PRODUCTS SUPPLIED OR TO BE SUPPLIED HEREUNDER EXCEED THE PRICE PAID BY BUYER FOR THE SPECIFIC PRODUCTS GIVING RISE TO THE CLAIM OR DAMAGES.
(D) To the extent permitted by law, Seller (including any Affiliate of Seller) will not be liable to Buyer or any third parties for any loss, damage or injury to persons or property resulting (after delivery hereunder) from the handling, storage, transportation, resale or use of the Products in manufacturing, processes, or in combination with other substances, or otherwise.
Buyer shall indemnify, defend and hold harmless Seller, and Seller's Affiliates, and their respective shareholders, officers, directors, employees, representatives and agents, from and against any and all third party claims, damages, and expenses (including reasonable attorney's fees) under theories of tort, product liability, negligence (ordinary or gross), warranty, contract,
statute or otherwise arising out of the use, storage, sale, processing or other disposition of the Products, supplies or materials used in connection with the Products, or parts manufactured with the Products, (1) if the action or inaction of the Buyer or its employees, customers or agents, or the Buyer's design specifications, were a material or proximate cause of injuries or damages giving rise to claims against the Seller, and/or (2) if the claim asserted is inconsistent with the limitation of warranties, limitation of liability and/or limitation of remedies set forth in this Agreement.
6.HANDLING, LOADING, UNLOADING AND CONTAINERS:
Buyer acknowledges that the Products may require special handling, storage, transportation, labeling, packaging, treatment or use to comply with applicable laws (including without limitation, transportation, safety and environmental laws) and will comply with all applicable laws and take all reasonable action to avoid spills or other damage to persons, property or the environment.
7.PAYMENT TERMS; BUYER CREDIT; PRICES:
(A) Buyer's payments for Products shall be due on or before Net 30 days from date of bill of lading. Credit terms may be modified or cancelled both as to time and amount, at any time by written agreement of Buyer and Seller. Buyer shall not be obliged to make any shipment when Seller is in default to Buyer under this or any other contract. Buyer shall make no deductions or setoffs (including those for alleged damages) from payments due hereunder.
(B) Unless otherwise expressly agreed by Seller in writing, prices for Products do not include sales, excise, use, value-added or other similar taxes now in effect or hereafter levied, transportation charges (such as freight, insurance, shipping, storage, handling, demurrage or similar charges), or special packaging, and Buyer shall pay all such charges, including applicable sales or other taxes levied with respect to Products and this Agreement (unless exempt therefrom), as well as any government fees levied on the inspection and/or installation of the Products, upon receipt of the related invoice from Seller and in accordance with this Agreement. In the event that this Agreement expressly provides that any of the foregoing charges are specifically included in the price, any charges attributable to increases in applicable rates after the date such price is quoted to Buyer shall be added to the price.
Buyer must test and inspect the Products for compliance with this Agreement within a reasonable time after each shipment is received. If Buyer believes the Products are deficient or defective in any respect, Buyer shall notify Seller in writing by (i) 3 business days after receipt of any shipment as to any deficiency or defect of apparent order and condition, and (ii) 180 days after receipt of any shipment as to any other deficiency or defect, and in each case, before any part of the Products (except for reasonable test and inspection for apparent order and condition) has been changed from its original condition, or Buyer will have waived any rights or claims against Seller. Any claims for delay or non-delivery must be made in writing within 30 days of delivery or the date fixed for delivery, respectively. Seller's invoice weights, volumes, sizes and tares established in good faith will govern unless proved erroneous.
All notices must be in writing and mailed or delivered to the appropriate address set forth in this Agreement or otherwise as designated by Buyer and Seller in writing.
(A) All technical advice, recommendations and services of Seller or any Affiliate of Seller) are intended for use by persons having the appropriate qualifications and skills, at their own risk, and Seller and any such Affiliate of Seller assumes no responsibility, and Buyer hereby waives all claims against Seller and any Affiliate of Seller, for results obtained or damages incurred from the use of the advice, recommendations and services of Seller or any Affiliate of Seller. Buyer will indemnify, defend and hold Seller and Affiliates of Seller harmless from and against all claims, damages, costs and expenses (including without limitation attorney's fees and other professional fees relating to the investigation, defense and/or settlement thereof) ("Claims") resulting from special marking of the Products or containers in accordance with requests of Buyer, and from and against all Claims by third parties against Seller or any Affiliate resulting from a breach by Buyer of its obligations under this Agreement.
(B) Governing Law; Arbitration. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Michigan without regard to Michigan's or any other state's law regarding conflict of laws or rules that might otherwise call for the application of the laws of any other jurisdiction. Any controversy or claim arising from or relating in any way to the subject matter thereof, including without limitation any termination of this Agreement, any sale of the Products hereunder or any Product, shall be submitted to arbitration in accordance with the Rules of the American Arbitration Association then existing. Unless the parties agree otherwise, the site of the arbitration shall be in Oakland County, Michigan. The arbitration award shall be binding upon the parties, and judgment on such award may be entered and the award enforced in any court having appropriate jurisdiction, or application may be made to that court for a judicial acceptance of the award and an order of enforcement, as the party seeking to enforce that award may elect. The arbitrator(s) shall have no power or authority to add to or detract from this Agreement of the parties. The parties, any arbitrator(s), and their agents, shall keep confidential and not disclose to any non-party the existence of the arbitration, all non-public materials and information provided in the arbitration by another party, and orders or awards made in the arbitration.
(C) Waiver. The failure or delay of either party hereto to insist upon a strict performance of any of the terms and provisions herein shall not be deemed a waiver of any breach or default in the terms or provisions herein, nor shall the acceptance by either party of any money paid hereunder after any breach or default by another party of any one or more of the terms or provisions herein, whether before or after notice or knowledge thereof to or by either party, constitute a waiver by such party of such breach or default. Any waiver by either party to this Agreement of any condition, part, term or provision of this Agreement shall not be construed as a waiver of any other condition, part, term or provision of this Agreement, nor shall such waiver be construed as a waiver of such condition, part, term or provision respecting any future event or circumstance.