All purchases of products and/or services (collectively "Goods") by American Plastics LLC, its parent or its affiliates (collectively, "BUYER") are subject to and conditioned on the terms and conditions set forth herein and on the front side of BUYER's purchase order (collectively, these "Terms"), and on no other terms and conditions unless expressly agreed to in a writing signed by a corporate officer of BUYER. The seller(s) of the Goods to BUYER is referred to as "VENDOR." THIS ARRANGEMENT IS BETWEEN BUYER AND VENDOR ONLY, AND VENDOR AGREES THAT BUYER'S PRINCIPALS AND AGENTS ARE NOT LIABLE UNDER ANY CIRCUMSTANCES. BUYER's orders for Goods, including all of BUYER's purchase orders, requests for quotation and any other form for placing orders, are referred to as "Orders" (and together with these Terms, the “Agreement”). Invoices, bills of lading, quotations and any other form used by VENDOR for billing or pricing are referred to as "Invoices." All Invoices are subject to the Terms. The Terms prevail over any of VENDOR’s general terms and conditions regardless of whether or when VENDOR has submitted its sales confirmation or such terms. BUYER objects to and rejects any terms or conditions in Invoices that are in addition to or different from these Terms. If Invoices are conditioned on BUYER's acceptance of VENDOR's terms and conditions, and the terms of quantity and price of the Goods in an Order are the same as those in VENDOR's Invoices, then all additional or different terms in VENDOR's Invoices are rejected, and BUYER's acceptance shall create an agreement between BUYER and VENDOR on these Terms. VENDOR's agreement to these Terms shall also occur upon (i) VENDOR's commencement of performance on any Order or (ii) VENDOR's signature on any Order. If any Terms are unacceptable, VENDOR must not begin performance. Documents attached by BUYER to its Order are part of the Terms.
BUYER shall have the right from time to time by written notice to VENDOR to make changes in specifications, quantity, designs, packing, testing, destination, and delivery schedule. If any such change causes an increase of decrease in the cost of, or the time required for VENDOR'S performance, an equitable adjustment shall be made in the contract price or delivery schedule, or both. Any increase in price or extension of time for delivery shall only be binding on BUYER if evidenced by a Change Order signed by BUYER. Any claim by VENDOR for adjustment under this clause shall be deemed waived by VENDOR unless made in writing within ten (10) days from receipt by VENDOR of BUYER'S notice of change.
The price of the Goods is the price stated in the Order (the "Price"). No increase in the Price last quoted or charged by the VENDOR, whether due to increased material, labor, transportation costs or otherwise, is effective without the prior written consent of BUYER. Prices for Goods remain firm despite any delays in delivery or acceptance. All insurance, packaging, transportation, storage costs and other fees and applicable taxes are borne by VENDOR. Unless otherwise specified herein, no charge will be allowed for tooling, printing plates, packing or shipping. Unless otherwise specified herein, prices are F.O.B. destination and include all applicable federal, state and local taxes and duties, and BUYER is not obligated to pay any other charges/amounts in any form.
BUYER shall have the right to schedule delivery at one time or in installments. VENDOR shall deliver the Goods in the quantities and on the date(s) specified in this Order or as otherwise agreed in writing by the parties (the "Delivery Date"). If no delivery date is specified, VENDOR shall deliver the Goods within 30 days of VENDOR’s receipt of the Order. Timely delivery of the Goods is of the essence. If VENDOR fails to deliver the Goods in full on the Delivery Date, or if any Goods are non-conforming, BUYER may, without limiting its rights or remedies, direct further or alternate production and shipping, and VENDOR shall indemnify BUYER for all losses, claims, damages and reasonable costs and expenses attributable to VENDOR’s failure to deliver the Goods on the Delivery Date. If VENDOR is not able to perform by the date BUYER specifies, VENDOR must notify BUYER immediately, so BUYER has sufficient time to decide whether to cancel all or part of an Order without further obligation by BUYER and with VENDOR compensating BUYER for all damages. All Goods shall be delivered to the address specified in this Order (the "Delivery Location") during BUYER´s normal business hours or as otherwise instructed by BUYER. Unless otherwise stated in this Order, the applicable Order number shall appear on VENDOR's tags, containers, bills of lading, packing lists and Invoices. VENDOR shall pack all Goods for shipment in accordance with BUYER’s instructions, or if there are no instructions, in a manner sufficient to ensure the GOODS are delivered in an undamaged condition. All corrugated items must show BUYER's part number and PO. Shipments shall be accompanied by a packing slip describing the contents, weight, and quantity of Goods in each package. If an Invoice does not reflect the correct Order number, then payment terms do not commence until receipt of a revised Invoice. VENDORS are responsible for PPAP submission, if applicable.
VENDOR shall perform the services to BUYER as described and in accordance with the dates or schedule set forth on the Order and in accordance with the terms and conditions set forth in these Terms.
Title and risk of loss to the Goods purchased hereunder shall remain with VENDOR until receipt and acceptance by BUYER of conforming Goods at the destination point specified herein.
VENDOR represents and warrants to BUYER that it has in place with reputable insurers such insurance policies in coverage amounts that would be maintained by a prudent supplier of goods and services similar to the Goods provided hereunder, including, as applicable, professional errors and omissions liability insurance and comprehensive commercial general liability insurance (including product liability coverage, all-risk contractors´ equipment insurance, and automobile liability insurance) with financially sound and reputable insurers. In addition, VENDOR will take out and maintain, at its own cost, such insurance policies and coverages as may be reasonably required by BUYER from time to time. VENDOR will promptly deliver to BUYER, as and when requested, written proof of such insurance. If requested by BUYER, such insurance will provide that it cannot be cancelled, or materially changed to affect the coverage provided under this Order, without the insurer providing at least 30 days´ prior written notice to BUYER.
VENDOR represents and warrants that all Goods delivered pursuant to an Order shall conform in quantity, weight (if applicable), quality, description and other specifications as set forth on the face of this Order or as otherwise represented by VENDOR; shall be of merchantable quality; shall be free from defects in material and workmanship; shall be fit and sufficient for the purposes intended by BUYER; and shall perform as specified herein or otherwise represented by VENDOR. VENDOR further represents and warrants that said Goods are free and clear of all liens, pledges, encumbrances and security agreements of any kind or nature, do not infringe or misappropriate any third party’s patent or other intellectual property rights and that VENDOR is the owner of said Goods and has good right to sell same, pursuant to the terms and conditions of the Agreement. These warranties are cumulative and in addition to any other warranty provided by law or equity and survive any delivery, inspection, acceptance, or payment of or for the Goods by BUYER. Any applicable statute of limitations runs from the date of BUYER´s discovery of the noncompliance of the Goods with the foregoing warranties.
VENDOR represents and warrants that any services performed pursuant to an Order shall be done by persons who are properly licensed, certified, or accredited as required by applicable law and are suitably skilled, experienced and qualified to perform such services.
Notwithstanding any payment that may be made, BUYER shall have the right to inspect Goods to be delivered pursuant to this Order on the premises of VENDOR and at destination on or after the Delivery Date. If it is determined in the sole discretion of BUYER that any such Goods do not conform to the specifications of this Order, BUYER may, at its option, reject only the non-conforming Goods, accept the non-conforming Goods at a reasonably reduced price, or reject the entire Order. If BUYER rejects the Goods or any non-conforming portion thereof, BUYER shall notify VENDOR and, at BUYER’S option may (1) hold the rejected Goods for VENDOR'S account, or (2) return such Goods, at VENDOR'S expense, to VENDOR. BUYER shall have no liability or obligation whatsoever with respect to any Goods held in its possession for VENDOR'S account or returned to VENDOR. In addition, BUYER may require replacement of the rejected Goods. If BUYER requires replacement of the Goods, VENDOR shall, at its expense, replace the non-conforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the non-conforming Goods and the delivery of replacement Goods. In no event shall VENDOR have more than ten (10) calendar days from receipt of BUYER'S notice of the non-conformity to cure such nonconformity or to replace the non-conforming Goods.
BUYER has the exclusive right, title and interest, including all intellectual property rights, in and to all artwork, inventions, processes, designs, molds, tooling, printing plates, dies, die lines and other properties, made or acquired by VENDOR in fulfilling an Order (collectively "Designs and Tools") whether or not such Designs and Tools were charged to or paid for by BUYER. VENDOR shall transmit to BUYER all Designs and Tools within 48 hours after BUYER's request. If VENDOR fails to transmit such Designs and Tools within 48 hours after BUYER's request, VENDOR agrees to reimburse BUYER any expenses incurred by BUYER in making new Designs and Tools.
If any Goods contain a trademark, patent, trade secret, character, design, name, symbol and/or other proprietary material owned, copyrighted, or licensed by BUYER (“Licensed Material”), VENDOR shall not use in any way any of the Designs and Tools, or any Licensed Material of BUYER for any purpose other than to perform this Order.
All non-public, confidential or proprietary information of BUYER, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by BUYER to VENDOR, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the purpose of performing this Agreement and may not be disclosed or copied unless authorized in advance by BUYER in writing. Upon BUYER's request, VENDOR shall promptly return all documents and other materials received from VENDOR. BUYER shall be entitled to injunctive relief for any violation of this Section 10.
In the event any bankruptcy, receivership, or insolvency proceedings, voluntary or involuntary, are instituted by or against VENDOR, BUYER may, at its option, cancel this Order with no liability for damages.
VENDOR shall comply with the applicable provisions of all Federal, State, and local laws and all regulations issued thereunder and any provisions required to be included in the Agreement, including but not limited to, Executive Orders 11701 (employment of veterans), 11758 (employment of the disabled), 11625 (utilization of minority business enterprises). 12138 and 11246 (equal employment opportunity), as amended by 11375 which requirements are incorporated herein by reference. By accepting or performing this Order, VENDOR certifies in accordance with 41 CFR part 60 - 1.8 with respect to orders which exceed $10,000 and which are not otherwise exempt from the Equal Opportunity Clause (E.O. 11246 as amended by E.O. 11375) that it does not and will not maintain segregated facilities or permit its employees to perform services at any location under its contract where segregated facilities are maintained, and that it will obtain similar certification prior to the award of any non-exempt contract. VENDOR certifies that the Goods are produced in compliance with Sections 6, 7, and 12 of FSLA (The Fair Labor Standards Act of 1938 as amended). VENDOR warrants that no substance contained in the Goods transferred to BUYER is a "hazardous substance" as defined under CERCLA, or if so, that the Goods furnished are produced in compliance with applicable state and federal requirements and OSHA regulations. VENDOR further warrants that any chemicals contained in the Goods transferred are on the list compiled by the EPA pursuant to 15 USC 2601, et seq. VENDOR shall maintain in effect all of the licenses, permissions, authorizations, consents and permits required to carry out its obligations under the Agreement. VENDOR agrees to defend, indemnify and hold harmless BUYER against all claims, actions, liabilities and fees arising out of any alleged violation of applicable laws.
VENDOR shall defend, indemnify and hold harmless BUYER and BUYER's officers, directors, employees and agents, from any and all claims, losses, demands, liabilities, actions, damages, settlements, judgments, interest, awards, penalties, fines, costs or other expenses (including reasonable attorney and professional fees and costs and the cost of enforcing any right to indemnification hereunder) in any way arising out of or related to any actual or alleged: (a) defect in design, material or workmanship of the Goods; (b) breach by VENDOR of any of these Terms or of the Agreement; (c) personal injury, death or property damage in connection with the Goods; (d) infringement or misappropriation of any patent, copyright, trade name, trade dress, trade secret or other intellectual property right of any third party; (e) acts or omissions of VENDOR; and (f) price discrimination or price fixing regarding the Goods. BUYER may control any defense and is authorized to settle any claim/lawsuit. VENDOR shall not enter into any settlement without VENDOR’s prior written consent.
This Order or any portion hereof may not be assigned by VENDOR, by operation of law or otherwise. Any purported assignment without BUYER'S written consent shall be null and void. BUYER may at any time assign or transfer any and all of its rights and obligations hereunder without VENDOR’s prior written consent to any affiliate or to any person acquiring all or substantially all of BUYER’s assets.
Without prejudice to any other right or remedy it may have, BUYER reserves the right to set off at any time any amount owing to it by VENDOR against any amount payable by BUYER to VENDOR.
This agreement and the rights, duties, obligations and remedies of the BUYER and VENDOR hereunder, shall be governed by and construed in accordance with the laws of the State of Missouri without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of or relating to this Order shall be instituted in the federal courts of the United States of America or the courts of the State of Missouri, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
BUYER reserves the right to cancel this Order or any part hereof with no liability for damages: (1) at any time prior to VENDOR'S acceptance of this Order, or (2) if VENDOR fails to comply with any of the terms and conditions stated herein.
No course of performance, course of dealing or trade usage between BUYER and VENDOR, or delay or failure of BUYER to enforce at any time any of the terms and conditions of this Order shall be construed as a waiver or modification of such terms and conditions. No waiver by any party of any of the provisions of this Order shall be effective unless explicitly set forth in writing and signed by the party so waiving. No single or partial waiver of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
The relationship between the parties is that of independent contractors. Nothing contained in the Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Order.
This Order is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
The rights and remedies under this Order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of this Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Order, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
If any term or provision of this Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of this Order which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order.