T2 PACKAGING PRODUCTS INC. Terms and Conditions of Sale
T2 PACKAGING PRODUCTS entity selling goods hereunder is referred to herein as “Seller” and the customer purchasing goods hereunder is referred to herein as “Buyer.” Buyer’s acceptance of goods sold by Seller shall manifest Buyer’s assent to these Terms and Conditions including, but not limited to, SELLER’S EXCLUSION OF IMPLIED WARRANTIES IN SECTION 3 AND THE LIMITATION OF LIABILITY IN SECTION 4. If Buyer is a US Entity (as defined below), any proposal by Buyer for additional or different terms or attempt by Buyer to vary any of the terms set forth herein shall not operate as a rejection of these Terms and Conditions but shall be deemed to be a material alteration thereof, and these Terms and Conditions shall be deemed accepted by Buyer without said additional or different terms. If Buyer is a Canadian Entity (as defined below), any proposal by Buyer for additional or different terms or attempt by Buyer to vary any of the terms set forth herein shall not become part of this agreement. As used herein, the term “US Entity” means any limited liability company, corporation, partnership, proprietorship or other entity which is domiciled in the United States. As used herein, the term “Canadian Entity” means any company, corporation, partnership, proprietorship or other entity which is domiciled in Canada. Unless otherwise expressly stated to the contrary in this agreement, each provision herein shall apply to Buyer regardless of whether Buyer is a US Entity or a Canadian Entity.
1. EXCUSE OF PERFORMANCE (a) Deliveries may be suspended by Seller in the event of: Act of God, war, terrorist attack, riot, fire, explosion, accident, flood or sabotage; lack of adequate fuel, power, raw materials, labor, containers or transportation facilities; compliance with governmental requests, laws, regulations, orders or actions; breakage or failure of machinery or apparatus; national defense requirements or any other event, whether or not of the class or kind enumerated herein, beyond the reasonable control of Seller; or in the event of labor trouble, strike, lockout or injunction (provided that Seller shall not be required to settle a labor dispute against its own best judgment); which event makes impracticable the manufacture, transportation, acceptance or use of a shipment of the goods or material upon which the manufacture of the goods is dependent.
(b) If Seller determines that its ability to supply the total demand for the goods, or obtain any or a
sufficient quantity of any material used directly or indirectly in the manufacture of the goods is hindered, limited or made impracticable, Seller may allocate its available supply of the goods or such material (without obligation to acquire other supplies of any such goods or material) among itself and its purchasers (including Buyer) on such basis as Seller determines without liability for any failure of performance which may result therefrom.
(c) Deliveries suspended or not made by reason of this section may be canceled by Seller without liability.
(d) Delays shall not be responsible for any damage of any kind resulting from any delay and shall not be liable for any default or delay in performance if caused directly or indirectly, by Acts of God.
2. SHIPMENTS No purchase order shall be binding upon Seller unless Seller has accepted the purchase order in writing. The Seller will provide and commit to a delivery timeframe after receipt of a written purchase order, a full down payment, and when required, upon approved specifications and customer samples intended for use in production. Firm delivery timelines are provided only upon receipt of deposit, are subject to current plant loads and capacities, and as such may vary from prior estimates.
3. LIMITED WARRANTY Subject to the limitations and unless otherwise provided herein, Seller
warrants title and that all goods sold hereunder shall conform to Seller's standard specifications or to the attached specifications, if any. Subject to the preceding sentence and except as otherwise expressly provided herein, SELLER MAKES NO REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR ANY OTHER MATTER WITH RESPECT TO THE GOODS, whether used alone or in combination with other substances. Moreover, BUYER IS SOLELY RESPONSIBLE FOR DETERMINING WHETHER GOODS SOLD HEREUNDER ARE SUITABLE FOR THE MATERIALS BEING PLACED IN THEM BY OR AT THE DIRECTION OF BUYER OR THE ULTIMATE USER AND FOR DETERMINING THE PROPER METHODS OF FILLING THE GOODS AND THE CLOSURES TO BE USED ON THE GOODS, TAKING INTO ACCOUNT THE LIKELY STORAGE AND THE USE OF
THE FILLED GOODS BY BUYER, THE PACKAGER AND THE ULTIMATE USER.
4. LIMITATION OF LIABILITY (a) Within fifteen (15) days after receipt of each shipment of the goods, Buyer shall examine such goods for any damage, defect or shortage. All claims for any cause whatsoever (whether such cause is based in contract, negligence, strict liability, other tort or otherwise) shall be deemed waived unless made in writing and received by Seller within fifteen (15) days after Buyer's receipt of the goods, in respect to which such claim is made, or, if such claim is for non-delivery of such goods, within fifteen (15) days after the date upon which such goods were to be delivered, provided that as to any such cause not reasonably discoverable within such fifteen (15) day period (including that discoverable only in processing, further manufacture, other use or resale) any claim shall be made in writing and received by Seller within ninety (90) days after Buyer's receipt of the goods, in respect to which such claim is made, or within fifteen (15) days after Buyer learns of the facts giving rise to such claim, whichever shall first occur. Failure of Seller to receive written notice of any such claim within the applicable time period shall be deemed an absolute and unconditional waiver by Buyer of such claim irrespective of whether the facts giving rise to such claim shall have then been discovered or of whether processing, further manufacture, other use or resale of the goods shall have then taken place.
(b) BUYER'S EXCLUSIVE REMEDY SHALL BE FOR DAMAGES, AND SELLER'S TOTAL LIABILITY FOR ANY AND ALL LOSSES AND DAMAGES ARISING OUT OF ANY CAUSE WHATSOEVER (WHETHER SUCH CAUSE IS BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE) SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE GOODS IN RESPECT TO WHICH SUCH CAUSE ARISES OR, AT SELLER'S OPTION, THE REPAIR OR REPLACEMENT OF SUCH GOODS, AND IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR FOR ANY LOST PROFITS RESULTING FROM ANY SUCH CAUSE. Seller shall not be liable for, and Buyer assumes liability for and shall indemnify and hold harmless Seller from, any claims, suits, actions, expenses, costs (including attorneys’ fees), damages and liabilities resulting from or connected with the handling, transportation, possession, processing, further manufacture, other use or resale of the goods including personal injury and property damage irrespective of whether the goods are used alone or in combination with any other substance or material. Transportation charges for the return of the goods shall not be paid unless authorized in writing in advance by Seller.
(c) If Seller furnishes technical or other advice to Buyer, whether or not at Buyer's request, with respect
to processing, further manufacture, other use or resale of the goods, Seller shall not be liable for, and Buyer
assumes all risk of such advice and the results thereof.
(d) Buyer expressly agrees that the foregoing exclusive and limited remedies are reasonable and do not
cause the remedies available to Buyer to fail of their essential purpose.
5. FREIGHT, TAXES, AND DUTIES All prices quoted to Buyer are exclusive of all sales, use, value-added and similar taxes (collectively, “Sales Taxes”), and all such Sales Taxes are the responsibility and for the account of Buyer. If Seller is required to collect Sales Taxes from Buyer, then Buyer agrees to pay such Sales Taxes concurrently with the payment of the purchase price. Any increase in freight rates paid by Seller on shipments covered by this contract and hereafter becoming effective and any tax or governmental charge or increase in same (excluding any franchise or income tax or other tax or charge based on income) (a) increasing the cost to Seller of producing, selling or delivering the goods or of procuring materials used therein or (b) payable by Seller because of the production, sale or delivery of the goods, may, at Seller's option, be added to the price herein specified.
6. LOSS IN TRANSIT Shipping terms shall be F.O.B. Seller’s plant unless stated otherwise through other Incoterms (International shipping terms). Title and risk of breakage, loss, or delay in delivery of the goods shall pass to Buyer upon delivery of the goods to a carrier for shipment to Buyer.
7. BUYERS P.O. Any provisions of Buyer’s Purchase Order which are in addition to, inconsistent with or contrary to the Quotation shall be deemed to be of no effect unless the Seller acknowledges or accepts Buyer’s Purchase Order and the additional, inconsistent or contrary provisions or terms are specifically accepted by a written instrument signed by an officer of the Seller referring to such modifications specifically. Under no circumstances will the Seller recognize any provisions or terms of Buyer’s Purchase Order which are in addition to, inconsistent with or contrary to the Terms and Conditions; the Terms and Conditions may only be modified by a separate written instrument signed by an officer of the Seller. If terms of payment are set forth in the Quotation, then those terms shall control over “Terms and Payment”, below, of these Terms and Conditions.
8. AGREEMENT The Proposal and Buyer’s Purchase Order constitute the final, complete and exclusive expression of the parties’ agreement.
9. PRICES AND PACKING The prices, point of delivery, terms of payment and packing instructions for each
shipment of goods shall be in accordance with Seller's schedules and instructions for such goods in effect at the
time of each such shipment. Such schedules and instructions may be revised from time to time by Seller. If
Seller desires to revise the applicable price, point of delivery or terms of payment for the goods hereunder prior
to the shipment date, but it is restricted to any extent against so doing by reason of any governmental law,
regulation, order or action, or if the price, point of delivery, or terms of payment in effect under this contract are altered by reason of any governmental law, regulation, order or action, Seller shall have the right to (a) terminate this contract by written notice to Buyer, (b) suspend deliveries for the duration of such restriction or alteration or
(c) apply to this contract (as of the effective date of such restriction or alteration) any price, point of delivery,
service allowance or terms of payment governmentally acceptable. Any delivery suspended under this section
shall be canceled without liability, but this contract shall otherwise remain unaffected.
10. CANCELLATION After acceptance by the Seller, Purchase Orders shall not be subject to cancellation by Buyer except with Seller’s express written consent and upon terms that will indemnify the Seller against all direct, incidental and consequential losses or damage. The Seller may withhold its consent to a termination or cancellation for any reason. Cancellations are subject to a restocking charge of ten percent (10%) of the total purchase order.
11. TERMS OF PAYMENT Unless otherwise noted on the Seller sales order confirmation document, terms are fifty percent (50%) of the total sales price of more than five thousand USD ($5000 USD) due with Buyer’s Purchase Order a non-refundable deposit; one-hundred percent (100%) if total sales price is less than five thousand USD ($5000 USD). If a balance is due, net 30 days after shipment. The method of payment agreed upon via video conference, teleconference or agreed to method, but always prior to shipment. If payment is submitted by wire or ACH transfer, the customer must submit a request to the Sellers Accounting Department for banking information. It is incumbent upon the customer to ensure banking information is accurate prior to payment. Any change in banking information or payment instruction must be confirmed by directly contacting the Sellers Accounting Department by telephone and obtaining verbal and written confirmation of said changes from an officer of the Seller. ‘DO NOT CONVERT’ must be indicated to the wire instructions. If the instruction is not present, funds will be declined and returned at customer cost. Unless otherwise specified by the Seller. All prices are F.O.B. or unless stated otherwise by the Seller.
12. INTEREST ON LATE PAYMENTS Invoices unpaid and past due will be subject to a service charge on the unpaid balance. The BUYER guarantees that the final invoice will be paid no later than 30 calendar days after shipment from the Seller and that a delay in payment will result in a service charge on the unpaid balance of an interest rate equal to the lesser of 20% per annum or the maximum allowable interest rate under applicable law, and Buyer shall be responsible and liable for all expenses incurred by the Seller in collection, including reasonable legal fees. Title to products sold hereunder (“Products”) shall remain with the Seller until the total sales price has been paid in full by the Buyer.
13. WAREHOUSE CHARGES If Seller delays the shipment of goods as a result of any action or inaction of
Buyer for more than thirty (30) days beyond Seller's acknowledged shipment date, the availability date requested by Buyer, or Buyer's release date, whichever occurs first, Buyer shall pay Seller a warehouse charge equal to seven percent (7.0%) of the price of such goods for each month, or portion thereof, beyond such 30-day period. Additionally, after sixty (60) days, Buyer will be invoiced for all goods remaining in inventory and at the end of one hundred eighty (180) days, any such goods remaining in inventory shall be shipped to the destination specified by Buyer or if no destination is so specified, Seller may cancel all subsequent deliveries under this contract and destroy such goods without thereby restricting, limiting or waiving any of Seller's other remedies at law or equity.
14. PATENTS Unless otherwise expressly provided herein, Seller warrants that the
goods sold pursuant to this contract, except for those made for Buyer according to Buyer's specifications, do not infringe any valid U.S. or Canadian patent. This warranty is given upon the condition that Buyer promptly notify Seller of any claim or suit involving Buyer in which such infringement is alleged and on the condition that, if Seller is affected, Buyer permit Seller to control completely the defense or compromise of any such allegation of infringement. Seller does not warrant that the use of the goods or any material made therefrom, whether the goods are used alone or in combination with any other material, will not infringe a patent. Seller reserves the right to terminate Seller's warranty at any time with respect to any undelivered goods, it being agreed that in the event of such termination Buyer may, without penalty, thereafter refuse acceptance of such undelivered goods. Buyer assumes liability for, and shall indemnify and hold harmless Seller from, any claims, suits, actions, penalties, expenses, costs, including attorneys’ and similar fees, damages, and liabilities for alleged infringement of any patent, trademark, trade dress, copyright or similar rights based on or connected with Buyer's use, design or specification of any item covered hereby or Seller's compliance with Buyer's instructions.
15. TOOLS AND MOLDS Seller shall invoice Buyer for 50% of the quoted price due at the time of tooling
order placement and the balance due upon sampling and approval of tools. Buyer also agrees to pay Seller for
all charges and costs for changes in such tools and molds which are requested by Buyer. Buyer assumes the risk of any losses, costs, or claims resulting from such changes. All such charges and costs shall be paid by Buyer within twenty (21) days of the date shown on Seller's invoice for such charges and costs. Seller shall pay for all normal repair and maintenance on all such tools and molds. Such tools and molds shall remain the property of Seller and shall be used exclusively for the production of goods for Buyer until two (2) years after the completion of the most recent production order using such tools and molds or one (1) year after the completion of the most recent sampling on a unit-cavity tool or mold. Following such period, or at any time that Buyer fails to pay Seller's invoices for charges for such tools and molds when they are due, Seller will, if requested by Buyer, store such tools and molds for possible future use by Buyer; provided, however, that Buyer pays Seller seventy dollars ($70) a month as storage and maintenance charges. If Buyer does not pay such storage and maintenance charges, Seller may either destroy such tools and molds or use them in any manner.
16. MISCELLANEOUS If Buyer is a US Entity, the validity, interpretation and performance of this contract and any dispute connected herewith shall be governed and construed in accordance with the laws of the State of Delaware without regard to conflicts or choice of law principles. If Buyer is a Canadian Entity, the validity, interpretation and performance of this contract and any dispute connected herewith shall be governed and construed in accordance with the laws of the Province of Ontario without regard to conflicts or choice of law principles. The Convention for the International Sale of Goods shall not apply to the sale and purchase of goods hereunder. This contract constitutes the full understanding of the parties, a complete allocation of risks between them and a complete and exclusive statement of the terms and conditions of their agreement. Except as provided by the Seller, no conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain or supplement the terms or conditions of this contract shall be binding unless hereafter made in writing and signed by Seller, and no modification shall be effected by the acknowledgement or acceptance of purchase order or shipping instruction forms containing terms or conditions at variance with or in addition to those set forth herein. No waiver by Seller with respect to any breach or default or of any right or remedy and no course of dealing shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver shall be expressed in a writing signed by Seller. Notwithstanding any statute of limitations that might otherwise be applicable, any suit or action relating to the goods or the sale of goods hereunder or otherwise based upon or relating to, these terms and conditions or the document of which these terms and conditions are a part or any alleged breach thereof must be brought no later than one (1) year after the action accrues or be forever barred (except suits or actions for recovery of the goods or payment therefor). If any provision herein becomes invalid or illegal in whole or in part, such provision shall be deemed amended, as nearly as possible, to be consistent with the intent expressed herein, and if such amendment is impossible, that provision shall fall by itself without invalidating any of the remaining provisions not otherwise invalid or illegal. The parties have expressly required that these terms and conditions and all documents and notices relating to them be drafted in English. Les parties aux présentes ont expressément exigé que la présente convention et tous les documents et avis qui y sont afférents soient rédigés en anglais.
Last Revised: 12/20