WRIGHT BROTHERS PAPER BOX
COMPANY, INC.
TERMS AND
CONDITIONS OF
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
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withheld or withdrawn, payment shall be due in advance of Seller’s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.