PLASTIMOLD STANDARD TERMS AND CONDITIONS
Last updated: May 11, 2019
1. ACCEPTANCE OF PURCHASE ORDERS,
Sales of any goods or any related services (collectively “Products”) referenced in Customer’s written Purchase Order to Supplier (“Purchase Order”) is expressly conditioned upon the terms and conditions set forth below (these “Terms and Conditions”). Unless specifically set forth in a separate written agreement between Supplier and Customer, any terms specified or referenced in Customer’s Purchase Order which are not included herein, or conflict with any term herein, shall be deemed null and void as these Terms and Conditions shall control the rights, privileges and remedies of Customer. These Terms and Conditions represent the entire agreement between the Customer and Supplier pertaining to the subject matter of this Purchase Order and shall supersede all prior oral and written agreements, proposals, communications, and documents. No Purchase Order placed by Customer shall be deemed accepted unless or until Supplier issues a written acknowledgement. Any amendment, change order, revision, or termination to an already-accepted Purchase Order shall be subject to acceptance by an authorized representative of Supplier.
2. PRICES, TAXES
2.1. The price set forth in Supplier’s Quotation (“Price”) are in United States Dollars. Nothing set forth in Customer’s Purchase Order shall modify or amend the quoted prices, quantities, and/or the scope of Products offered, unless such modification or addition is agreed to in writing by Supplier prior to the Purchase Order.
2.2. Price is exclusive of any taxes (including, without limitation, sales, use, value added, goods and services, business, property (real or personal, tangible or intangible), license, documentation, registration, import, export, excise, franchise, stamp, or other tax), custom fees or tolls, levy, impost, withholding, fee, duty or other charge of any nature imposed by any governmental authority or other tax authority in any jurisdiction, and any and all fines, penalties, additions to tax, interest and other charges relating thereto (collectively “Taxes”). Taxes shall be paid by Customer in addition to Price. If any payment by Customer is subject to withholding tax, Customer agrees to increase the amount of any payment which is subject to a withholding or pay an additional amount as is necessary to ensure that Supplier receives the same amount it would have received if there had been no withholding. Customer shall deliver any certifications and other documents required to demonstrate eligibility for, and to benefit from, any exemption or other relief from Taxes or any portion thereof.
3. PACKAGING, SHIPPING
3.1. Supplier shall pack Products in accordance with its standard commercial practices. Unless otherwise noted, standard packaging includes the parts inserted into a kraft box. If Customer has any special shipping or handling requirements, Customer shall notify Supplier in a timely manner regarding any such special requirements, and Customer shall be responsible for any increase in cost to pack Purchase Order.
3.2. Price does not include any shipping or handling charges, and Customer shall incur both the cost and the risk for bringing Products to their final destination. Supplier shall notify Customer when Products are available at Supplier’s facility for pickup and Customer shall be responsible for arranging to have Products picked up from Supplier’s facility, and for completing any export documentation and clearing Purchase Order through U.S. Customs. In the event Customer would like Supplier to deliver Products or any portion thereof to a specified destination, the destination shall be clearly identified in Purchase Order and Customer shall provide an account number that Supplier can use for all shipping costs.
3.3. In the absence of specific instructions, Supplier shall select the carrier and, at its discretion, may ship “collect”, prepaid or subject to invoice payment terms, but shall not be deemed to have assumed any liability in connection with the shipment, nor shall the carrier be construed as an agent of Supplier.
3.4 If the event Customer chooses to contract Supplier for fulfillment services, the terms of any “Fulfillment Agreement” will supersede Section 3 of these Terms and Conditions.
4. DELIVERY, TITLE, AND RISK OF LOSS
4.1. Supplier’s quoted delivery schedule represents its best estimate and is based on current schedules and workload. Supplier shall have no liability for delay damages or any other damages or losses sustained by Customer as a result of such estimate not being met by Supplier. Partial deliveries shall be permitted.
4.2. Unless otherwise agreed to by Supplier in writing, delivery shall be deemed to have occurred FOB origin (Incoterms 2010) for all shipments. If Customer fails to pick up Products within one (1) week or fails to provide a proper charge account for shipping costs, Supplier shall be entitled to invoice Customer for Products and reserves the right to put Products in storage and charge Customer for Supplier’s storage costs.
4.3. Title and liability for loss or damage to Products shall transfer from Supplier to Customer upon delivery of Products at FOB origin for all shipments.
For payments of injection molds manufactured by Supplier, Customer shall pay 50% of the total price of injection molds before Supplier shall commence manufacturing. The 50% balance of the injection molds will be paid upon mutual approval of a sample product by Supplier and Customer. For payments of Products, new customers require a 50% deposit with Purchase Order and 50% due 30 days after shipping of Product. Payment shall be deemed to have been made when a check is received by Supplier or payment is received by an electronic transfer in Supplier’s bank account. Supplier reserves the right to assess interest on any late payments from the date due until receipt of payment in full at the lesser of (a) one and one-half percent per month compounded monthly, or (b) the maximum rate permitted by law. In addition to any remedies under law, Supplier may at its sole discretion suspend future deliveries or services until all delinquent payments due are received. All payments hereunder shall be paid without any deductions, set-off, or offset claims, including for Taxes. “Research and Development” projects will have milestones associated with deposits and payments with the cost and payment schedule for same outlined in an “R&D Proposal.
6. FORCE MAJEURE AND EXCUSABLE DELAY
6.1. Supplier shall not be liable for any damages of any kind for delayed or non-performance if such delay or non-performance is due, directly or indirectly, to: (a) Customer, including omissions or failure to act on the part of Customer or its agents or employees; (b) an “Event of Force Majeure”, defined herein as including acts of God, acts of public enemies, fires, floods or unusually severe weather conditions, strikes, lockouts, disputes with workmen or other hostilities, embargoes, wars, riots or civil disturbances, epidemics or quarantine restrictions, delays or shortages of transportation, governmental action including the government’s denial or failure to grant an export license or other needed government authorization; (c) causes beyond Supplier’s reasonable control, including severe accidents at Supplier’s plant, unforeseen production or engineering delays or inability of Supplier or its vendors to secure adequate materials, manufacturing facilities or labor, or any other acts and causes not within the control of Supplier, which by the exercise of due diligence and reasonable effort, Supplier would not have been able to foresee, avoid or overcome.
6.2. Supplier shall notify Customer of any delayed or non-performance due to an excusable delay or Event of Force Majeure as soon as practicable. If either such event should occur, Supplier’s period of performance shall be extended for a period of time equal to the duration of either such event. If the excusable delay or Event of Force Majeure extends more than six (6) months, Supplier and Customer may mutually agree to terminate the Purchase Order or any portion thereof impacted by the excusable delay or Event of Force Majeure, and Customer shall promptly pay Supplier for any delivered Products or services performed, any works in process, any termination costs, including vendor settlement expenses, and a reasonable profit on the terminated Purchase Order or portion thereof that Supplier and Customer agreed to terminate.
Subject to the terms and conditions set forth in Section 13, Limitation of Liability, Supplier warrants that Products manufactured by Supplier shall be free from defects, including latent defects, in material and workmanship under normal use and service when operated in accordance with Supplier approved operating instructions for twelve (12) months from shipment for Products. Supplier’s obligation and Customer’s sole remedy under this warranty shall be limited to, at Supplier’s option, the repair or replacement of the warranted nonconforming Products, or any portion thereof, FOB origin. Notwithstanding the foregoing, this warranty shall not apply to an Event of Force Majeure, wear and tear, or to defects arising from or connected with Customer’s or any third party’s (i) improper receipt, transport, handling, storage, maintenance, testing, installation, operation or of Products, or (ii) alteration, modification, maintenance, overhaul, repair, neglect or foreign object damage of Products. This warranty does not apply to consumable items such as tubes, fuses, bulbs, filters, and like items. Customer shall provide prompt written notice of the failure of Products, or any portion thereof, within the above warranty period and ensure warranted nonconforming Products, or any portion thereof, is/are properly packed and returned to Supplier transportation and insurance prepaid.
8. PROPRIETARY INFORMATION
For the term of Customer’s Purchase Order, Supplier and Customer, to the extent of their right to do so, may exchange proprietary and/or confidential information not generally known to the public (“Proprietary Information”) only to the extent and as reasonably required to perform its obligations hereunder. Any document marked “Confidential” or “Proprietary” and all copies made of any such document shall be returned by the receiving party (“Recipient”) of Proprietary Information to the disclosing party (“Owner”) upon completion of the purpose for which they were provided or destroyed by Recipient at Owner’s direction. Neither Supplier nor Customer shall be liable for any disclosure if the data: (a) is generally available to the public (or becomes so) without breach of by Recipient; (b) was available to Recipient on a non-confidential basis from a source that had the right to disclose such information; (c) was rightfully in the possession of Recipient prior to receipt from Owner; or (d) was independently developed without use of Owner’s Confidential Information. No license to a party, under any trademark, patent, copyright, mask protection right or any other intellectual property right, is either granted or implied by the conveying of Proprietary Information to such party. No use of any Supplier trademark, service mark, trade name, design, logo or other trade dress may be made without the prior written consent of Supplier. Any Supplier mark or logo existing on Products must not be altered or modified in any manner, combined with other elements, or rearranged without the prior written consent of Supplier. None of the Proprietary Information which may be disclosed or exchanged by Owner shall constitute any representation, warranty, assurance, guarantee or inducement to Recipient of any kind and, in particular, regarding the non-infringement of trademarks, patents, copyrights or any intellectual property rights, or other rights of third persons other than the rights expressly granted herein. Customer agrees that it will not attempt, nor will it direct or employ others to attempt, to reverse engineer Products, subassemblies and/or software that is developed, manufactured or sold by Supplier. The ownership in all Proprietary Information disclosed Owner to the other pursuant to the Purchase Order shall remain with Owner unless otherwise stated in Purchase Order. The confidentiality obligations herein shall survive for a period of five (5) years after expiration of Purchase Order.
9. INTELLECTUAL PROPERTY RIGHTS
9.1. Supplier grants to Customer a nonexclusive, nontransferable, revocable license to use a copy of any software program embedded in Products, in object code only, for use as part of Products (“License”). Notwithstanding the foregoing, License is subject to the following prohibitions: (a) Customer shall not attempt to decompile, reverse engineer, or disassemble the object code, or in any other way convert the object code into a human-readable form; (b) Customer shall not manufacture, sell, deliver or in any way provide any products containing the object code; (c) Customer shall not use the object code to create derivative or competing products of any kind; or (d) Customer shall not transfer the object code to a third party for any reason without prior written consent of Supplier, which may be withheld at Supplier’s sole and reasonable discretion, and only then subject to Customer executing a sub-license agreement with the same terms and conditions herein and providing Supplier the sub-license agreement executed by the transferee. Any transfer must be in full compliance with U.S. Export Laws and may require additional export licenses or other authorizations to be obtained by Customer and/or Supplier. Other than License, Supplier is not granting any other rights to its intellectual property, patents, trademarks, software, or proprietary data, other that the right of Customer to use Products for its intended purposes. Supplier’s vendors are direct and intended beneficiaries of License and may enforce it directly against Customer.
9.2. Customer represents and warrants that Products do not and will not infringe or misappropriate any third party's patent, trade secret, or other intellectual property rights. In the event Supplier deems production or design of Products infringes or misappropriates any third party’s patent, trade secret or intellectual property right, then Supplier shall have the right, at its option, to modify or replace the infringing parts of Products so that it becomes non-infringing. Supplier shall have no liability for any claim based upon any of the following: (a) Supplier’s compliance with Customer’s design, specifications or design instructions; (b) alterations by Customer or by third parties of the design or products furnished by Supplier not approved in writing by Supplier; (c) failure of Customer to use any recommendations by Supplier to avoid infringement; (d) use of the design or products in a manner, or for a purpose, for which was neither designed nor foreseeable by Supplier; (e) assembly, function or use of the design or products in combination with any materials and/or software not supplied by Supplier; (f) a patent, trademark or copyright in which Customer or affiliate has a direct or indirect interest by license or otherwise, or (g) Open source software. Customer shall defend and indemnify Supplier from and against any third-party claim arising from any of the aforementioned circumstances in this paragraph.
9.3. THIS ENTIRE SECTION SETS FORTH SUPPLIER’S ENTIRE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
11. GOVERNING LAW, VENUE
These Terms and Conditions and any action related hereto shall be governed, controlled, interpreted, and defined by and under the laws of the State of Florida, USA, without regard to the conflict of laws provisions thereof. The venue for any disputes which arise from, or in any way relate to, Products or these Terms and Conditions shall either be in the County Court or Circuit Court of Palm Beach County, Florida as determined by the jurisdictional cap amounts for said courts.
12.1. Customer and Supplier (collectively the “Parties”, each a “Party”) shall attempt in good faith to resolve any dispute arising under these Terms and Conditions or in any applicable purchase order by negotiation and consultation between themselves. If such dispute is not resolved on an informal basis within thirty (30) business days from the commencement of negotiations, either party may initiate mediation proceedings as set forth below.
12.2. The Parties shall cooperate with each other in selecting a mediation service and shall cooperate with the mediation service and with each other in selecting a neutral mediator and in scheduling the mediation proceedings. The mediator's fees and expenses and the costs incidental to the mediation will be shared equally between the Parties.
12.3. If the Parties cannot resolve any dispute for any reason, within five (5) days after submission to mediation, either party may file suit in a court of competent jurisdiction in accordance with the provisions of Section 11.
13. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, AND REGARDLESS OF THE NUMBER OF CLAIMS OR THE FORM OR CAUSE OF ACTION, WHETHER IN CONTRACT, EQUITY, STATUTE, TORT, NEGLIGENCE (ACTIVE OR PASSIVE) OR OTHERWISE, SUPPLIER SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQEUENTIAL DAMAGES OF ANY KIND, AND SHALL NOT BE LIABLE TO CUSTOMER FOR LOSSES OF USE, DATA, PROFIT, REVENUE, INCOME, BUSINESS, ANTICIPATED SAVINGS, REPUTATION, AND MORE GENERALLY, ANY LOSSES OF AN ECONOMIC OR FINANCIAL NATURE, REGARDLESS OF WHETHER SUCH LOSSES MAY BE DEEMED AS CONSEQUENTIAL OR ARISING DIRECTLY AND NATURALLY FROM THE INCIDENT GIVING RISE TO THE CLAIM, AND REGARDLESS OF WHETHER SUCH LOSSES ARE FORESEEABLE OR WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES. EXCLUDING GROSS NEGLIGENCE OR WILLFULL MISCONDUCT, SUPPLIER’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH A PURCHASE ORDER SHALL IN NO EVENT EXCEED ACTUAL, DIRECT, AND PROVEN DAMAGES OF THE PRICE OF PRODUCTS DIRECTLY PURCHASER BY CUSTOMER UNDER PURCHASE ORDER GIVING RISE TO THE CLAIM. THIS LIMITATION OF LIABILITY SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY. TO THE EXTENT THESE TERMS AND CONDITIONS CONTAIN ANY SPECIFIC REMEDIES PROVIDED BY SUPPLIER TO CUSTOMER, REGARDLESS OF FORM, SUCH REMEDIES SHALL BE PROVIDED BY SUPPLIER ON A SOLE AND EXCLUSIVE BASIS AND IN LIEU OF ANY OTHER REMEDIES, DAMAGES, OR LOSSES.
The Parties shall each carry insurance coverage in types and amounts adequate to protect against any losses, damages, liabilities, or expenses that may reasonable be expected to be incurred under Purchase Order, and both shall keep such insurance coverage in effect until the conclusion of Purchase Order.
Any modification of these Terms and Conditions shall be valid only if it is in writing and signed by the authorized representatives of both Supplier and Customer.
Neither Party may assign or delegate Purchase Order or any of its rights, duties or obligations regarding Purchase Order to any third party without the prior written consent of the other Party. Any attempt by either Party to assign or delegate any of its rights, duties or obligations regarding Purchase Order without such consent shall be void and of no effect. However, nothing in this Section is intended to preclude Supplier from awarding routine subcontracts or purchase orders to vendors or other suppliers in its sole discretion.
Notwithstanding anything set forth herein to the contrary or as otherwise provided by law, Customer shall not be allowed, or have any right, to audit or examine Supplier’s books and records.
18. NO THIRD-PARTY BENEFICIARIES
Except as expressly provided herein, these Terms and Conditions are for the sole and exclusive 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.
If either Party, at its option, agrees to waive any of these Terms and Conditions, then such waiver shall not for any purpose be construed as a waiver of any succeeding breach of the same or of any other of these Terms and Conditions; nor shall such a waiver be deemed as a course of conduct.
If any of these Terms and Conditions are at any time held to be invalid or unenforceable, then such term or condition shall be construed as severable and shall not in any way render invalid or unenforceable the remainder of these Terms and Conditions, which shall remain in full force and effect.
21. PUBLIC DISCLOSURE
Except as required to obtain necessary licenses or governmental approvals, neither Party shall issue any news releases, articles, brochures, advertisements, or other information releases relating to the subject matter of Purchase Order, except as otherwise required by law, without the prior written approval of the other Party.
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Plastimold Products, Inc. 250 N Congress Ave. Delray Beach, FL 33445