WRIGHT BROTHERS PAPER BOX COMPANY, INC.

TERMS AND CONDITIONS OF SALE

 


1.  Offer, Governing Provisions and Cancellation.  This document is an offer or counter-offer by Wright Brothers Paper Box Company, Incorporated ("Seller") to sell the goods and/or services described in it to Buyer in accordance with these terms and conditions, is not an acceptance of any offer made by Buyer, and is expressly conditioned upon Buyer’s assent to these Terms and Conditions of Sale.  Seller objects to any additional or different terms contained in any purchase order or other communication previously or hereafter provided by Buyer to Seller.  No such additional or different terms or conditions will be of any force or effect.  The terms contained in or incorporated into this document will be the entire agreement between Seller and Buyer on the subject of the transactions described herein; and there are no conditions to that agreement that are not so contained or incorporated.  THIS OFFER AND THAT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAWS OF THE STATE OF WISCONSIN (WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS).  THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL NOT BE GOVERNED BY THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.  No accepted offer may be cancelled or altered by Buyer except upon terms and conditions accepted by Seller in writing; and no changes to this document will be binding unless set forth in writing and manually signed by Seller.  This offer may be revoked by Seller at any time before it is accepted by Buyer, and it shall automatically expire 30 calendar days after its date if Buyer has not accepted it before then.  Neither Buyer's acceptance of this offer nor any conduct by Seller (including but not limited to shipment of goods) shall oblige Seller to sell to Buyer any quantity of goods in excess of the quantity that Buyer has committed to purchase from Seller at the time of such acceptance or conduct.

2.  Credit Approval; Payment Terms.  Payment terms are 1% - 10, Net 30, subject to Seller's approval of Buyer's credit from time to time, in Seller's discretion.  If such approval is withheld or withdrawn, payment shall be due in advance of Seller’s performance.  Interest will be charged at the lesser of (i) 18% per annum, or (ii) the highest rate permitted by applicable law, on accounts more than 10 calendar days past due.

3.  Taxes and Other Charges.  Any manufacturer's tax, occupation tax, use tax, sales tax, excise tax, value added tax, duty, custom, inspection or testing fee, or any other tax, fee, interest or charge of any nature whatsoever imposed by any governmental authority on or measured by the transactions between Seller and Buyer shall be paid by Buyer in addition to the prices quoted or invoiced.  In the event Seller is required to pay any such taxes or other charges, Buyer shall reimburse Seller therefor on demand.

4.  Delivery, Claims and Force Majeure.  Unless otherwise provided on the face of this document, goods shall be delivered to Buyer F.O.B. Seller's loading dock.  Delivery of products to the carrier shall constitute delivery to Buyer; and regardless of shipping terms or freight payment, Buyer shall bear all risk of loss or damage in transit.  Seller reserves the right to make delivery in installments, unless otherwise expressly stipulated herein; all such installments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries.  Delay in delivery of any installment shall not relieve Buyer of its obligations to accept remaining deliveries.  Claims for shortages or other errors in delivery must be made in writing to Seller within 10 calendar days after receipt of shipment; and failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Buyer.  Claims for loss of or damage to goods in transit must be made to the carrier, and not to Seller.  All delivery dates are approximate.  Seller shall not be liable for any losses or damages as a result of any delay or failure to deliver due to any cause beyond Seller's reasonable control, including but not limited to any act of God, act of Buyer, embargo or other governmental act, regulation or request, fire, flood, accident, strike, slowdown, war, act of terrorism, riot, delay in transportation, equipment failure, or inability to obtain necessary labor, materials or manufacturing facilities.  In the event of any such delay, the date of delivery shall be extended for a period equal to the time lost because of the delay.  Buyer's exclusive remedy for other delays and for Seller's inability to deliver for any reason shall be rescission of its agreement to purchase.

5.  Changes.  Seller may at any time make such changes in design and construction of products as Seller deems appropriate, without notice to Buyer.  Seller may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by governmental authority or nonavailability of materials from suppliers.

6.  Warranty; Disclaimers.  Seller warrants that the goods or services provided hereunder shall be in accordance with the applicable specifications at the time of delivery to Buyer.  This warranty shall expire with respect to each shipment 20 calendar days after the date that shipment was delivered to Buyer.  If within such warranty period Buyer notifies Seller of any alleged non-compliance, and any such goods or services shall be proved to Seller's satisfaction to have been non-compliant with the specifications at the time of delivery, the non-compliant goods will be replaced by Seller free of charge, the non-compliant services will be reperformed by Seller free of charge, or Seller will make a fair allowance for said noncompliance.  Such replacement, reperformance or allowance (whichever Seller determines, in its discretion, to provide) shall be Seller's sole obligation and Buyer's exclusive remedy for any noncompliance or deficiency in goods or services furnished hereunder, and shall be conditioned upon Buyer’s return of such goods to Seller, F.O.B. Seller’s loading dock, if Seller requires same to confirm noncompliance.  Any goods replaced or services reperformed under this warranty are warranted only for the balance of the original warranty period.  THE ABOVE WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED; AND SELLER EXPRESSLY DISCLAIMS AND EXCLUDES ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.

7.  Infringement.  Seller will, at its own expense, defend any suits that may be instituted by anyone against Buyer for alleged infringement of any United States patent relating to goods provided by Seller, and pay any final damage award therein, provided Buyer shall have made all payments then due hereunder, shall give Seller immediate notice in writing of any such suit, shall transmit to Seller immediately upon receipt all processes and papers served upon Buyer, and shall permit Seller, through its counsel, to defend or settle the same either in the name of Buyer or in the name of Seller, giving Seller all needed information, assistance and authority to enable Seller to do so.  Further, if the result of any such suit is a determination or acknowledgement of infringement, Seller shall, at Seller's option (a) obtain for Buyer the right to continue to use the goods purchased from Seller, or (b) replace the same with non-infringing goods, or (c) modify such goods so that they are non-infringing, or (d) remove such goods and refund to Buyer the undepreciated portion of the purchase price.  To the extent that any goods that Seller furnishes to Buyer are manufactured in accordance with drawings, designs or specifications proposed or furnished by Buyer, or contain markings, trademarks or logos specified by Buyer, Seller shall not be liable, and Buyer shall indemnify and hold harmless Seller from and against any and all losses, liabilities, damages, claims and expenses (including but not limited to Seller's attorneys' fees and other costs of defense) incurred by Seller as a result of any claim of patent, trademark, copyright or trade secret infringement, or infringement or any other proprietary rights of third parties.

8.  Consequential Damages and Other Liability.  Seller's liability with respect to the goods or services sold hereunder shall be limited to the warranty and indemnity provided in sections 6 and 7 of these Terms and Conditions of Sale and, with respect to any breaches of its contract with Buyer, shall be limited to the contract price of the goods or services that are the subject of the breach.  SELLER SHALL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR UNDER OTHER THEORIES OF LAW OR EQUITY, WITH RESPECT TO GOODS OR SERVICES SOLD BY SELLER, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO.  Without limiting the generality of the foregoing, Seller specifically disclaims any liability for property damage, penalties, special or punitive damages, damages for lost profits or revenues, down-time, lost good will, cost of capital, cost of substitute goods or services, or for any other types of economic loss, or for claims of Buyer's customers or any third party for any such damages, costs or losses.  Notwithstanding anything to the contrary herein, SELLER SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR CONTINGENT DAMAGES WHATSOEVER.

9.  Technical Information.  Any sketches, models or samples submitted by Seller shall remain the property of Seller, and shall be treated as confidential information by Buyer unless Seller has in writing indicated a contrary intent.  No use or disclosure of such sketches, models or samples, or any design or production techniques revealed thereby, shall be made by Buyer without the express, prior written consent of Seller.

10.  Tools.  Any dies, jigs or tools that Seller manufactures or acquires in connection with its performance hereunder shall remain the property of Seller, notwithstanding any charges to Buyer therefor.  Any such charges convey to Buyer the right to have the tools, dies or jigs used by Seller for performance hereunder, but do not convey title or right of possession or any other right.

11. Storage. Storage of completed product, work in process or raw materials may be available and, if so, the terms thereof shall be resolved as part of the original terms. If storage has been agreed upon, but the time for such storage has expired, then, unless the parties have agreed otherwise, Seller may (a) invoice the Buyer for the purchase price of all finished goods and  Seller’s cost for all work in process (including labor and overhead) and raw materials and (b) charge for further storage at its standard rates.

If Buyer has not requested shipment within six months after (a) date that the goods were available for shipment or (b), if later, the last date of the storage period, then, unless the Buyer has directed Seller to ship the goods and paid the cost of shipment, Seller may, at Seller's option, ship the goods or destroy them, in each case, at Buyer’s expense.