Terms and Conditions
Fortney Packaging, Inc. ("SELLER")
GOODS AND SERVICES COVERED BY THIS ORDER ARE BEING SOLD ONLY IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN, AND IN SELLER’S QUOTATION OR ACKNOWLEDGMENT IF ANY, INCLUDING THE TERMS AND CONDITIONS PRINTED ON THE REVERSE SIDE THEREOF. SELLER OFFERS TO SELL THE GOODS OR SERVICES DESCRIBED HEREIN ONLY UPON THE TERMS AND CONDITIONS CONTAINED HEREIN. THE OFFER SHALL BE DEEMED ACCEPTED AND SHALL BECOME A BINDING CONTRACT ON THE TERMS AND CONDITIONS CONTAINED HEREIN, (A) WHEN SIGNED AND RETURNED BY BUYER, OR (B) WHEN BUYER ISSUES ITS ORAL OR WRITTEN ACKNOWLEDGMENT, OR (C) WHEN SELLER COMMENCES PERFORMANCE, OR (D) WHEN BUYER OTHERWISE ACCEPTS THIS OFFER. BY ACCEPTING THIS OFFER, BUYER WAIVES ALL TERMS AND CONDITIONS CONTAINED IN BUYER’S PURCHASE ORDER OR OTHER DOCUMENTS WHICH ARE DIFFERENT FROM OR ADDITIONAL TO THOSE CONTAINED HEREIN (WHETHER OR NOT BUYER SENDS ITS DOCUMENTS BEFORE OR AFTER SELLER SENDS THIS FORM), AND ALL SUCH DIFFERENT OR ADDITIONAL TERMS AND CONDITIONS SHALL BE NULL AND VOID AND OF NO EFFECT.
Increases in labor, freight and material costs are subject to change by Seller with a 30 day notice.
2. Quotations and Orders
Written quotations are void unless accepted within 30 days from date of issue. Seller reserves the right to accept or reject Buyer’s purchase orders in its sole discretion. Any accepted purchase orders shall be governed by these Terms and Conditions and no additional or different terms in any such purchase order shall be part of the parties’ agreement.
3. Artwork and Tooling
Buyer shall be charged for artwork, printing plates, dies and tooling. All such charges shall be invoiced with the first shipment unless otherwise agreed. Artwork, printing plates, dies and tooling shall remain Seller’s property. If Buyer, or a third party on behalf of Buyer, provides Seller with incorrect or defective artwork, printing plates, dies and/or tooling and Seller incurs at least 2 hours of downtime as a result thereof, then Seller may charge Buyer $500/hour for each hour of downtime incurred by Seller up to a maximum of 6 hours. Buyer’s order will be aborted from press if such downtime reaches the 6 hour maximum limit. Is this inclusive of the cost of any materials no longer usable?
4. Delivery or Performance
Unless otherwise specified on the face hereof, all deliveries are F.O.B. point of shipment. Shipment will be made in accordance with instructions issued by Seller. Upon delivery of goods to carrier, Buyer assumes risk of all loss and damage resulting from any cause whatsoever. Shipping, delivery or performance dates are approximate and are not guaranteed. Seller will use reasonable commercial efforts to meet the delivery dates but is not liable for any direct or indirect costs resulting from late delivery. Seller reserves the right to ship and invoice for a quantity of goods which may vary up to ten percent over or under the quantity specified and Buyer agrees to accept delivery and pay for such revised quantity and consider the shipment to be complete. Partial deliveries shall be accepted by the Buyer and paid for at contract prices and terms. Buyer shall have no right to delay the delivery or shipment date. Seller may charge storage charges for any goods which it holds for Buyer.
Buyer may select the mode of transportation, routing and carrier for delivered orders. If Buyer does not provide Seller with shipping instructions, then Seller shall select the mode of transportation for delivered orders. Buyer shall provide Seller with a minimum lead time of 10 days to make shipping arrangements. Seller will use its reasonable business efforts to meet the scheduled dates, but does not guarantee to meet such dates. Time for delivery shall not be of the essence. Failure by Seller to make any shipments by scheduled dates does not constitute a cause for cancellation and/or for damages of any character. In the event of delay in delivery requested by Buyer or caused by Buyer, Seller will store all Products at Buyer’s risk and expense.
Unless agreed otherwise in writing, Seller may/will store Products at no additional charge to Buyer for a maximum of 30 days. After 30 days, storage fees will be assessed to Buyer each month in an amount equal to 2% of the total price of the stored Products. Releases of Products to Buyer valued at less than $1,000 will be assessed a handling fee equal to $5020 per release. In no event will Products be warehoused more than 3 months. Upon expiration of 3 months, Seller shall invoice Buyer the outstanding balance for stored Products and any attendant fees. Presuming Buyer has paid for such, the Products shall be released to Buyer. Should Buyer decline release of the Products, or in the event that Buyer is in arrears on amounts owed to Seller, Seller may elect to dispose of the Products and assess the additional cost to Buyer.
6. Force Majeure
Seller shall not be liable for any delay or other failure of performance due to causes beyond its reasonable control, including without limitation acts of God, acts of Buyer, acts of military or civil authorities, fire or other casualty, strikes, lockouts, weather, epidemic, war, riot, delays in transportation or car shortages, inability to obtain necessary labor, materials, components, equipment, services, energy or utilities through Seller’s usual and regular sources at usual and regular prices or failure or inability of the manufacturer of the goods to perform. In any such event, Seller may, with notice to Buyer, at any time and from time to time without further liability to Buyer (a) postpone its performance, (b) make partial performance or cancel all or any portion of this contract or (c) allocate available quantities among its customers in any manner which Seller deems reasonable. Cancellation of any part of this contract shall not affect Seller’s right to payment for performance of any other part hereof.
7. Limitations of Seller’s Liability
Seller’s liability on any claim of any kind, including, without limitation, negligence, with respect to goods or services shall in no case exceed the purchase price of the good or service or part thereof which gives rise to the claim. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR SIMILAR DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR ECONOMIC DAMAGES), OR FOR DAMAGES IN THE NATURE OF PENALTIES.
8. Buyer’s Use
Buyer assumes sole responsibility for analyzing and determining the suitability of any services and goods supplied by Seller including all parts and components and Buyer agrees that it is not relying on Seller in making such determination even if Seller provided assistance, guidance or design. Buyer assumes full responsibility for any particular use or purpose. Buyer will not order or use any goods or services unless it is satisfied that the goods and services are suitable for Buyer’s use and conform to all of its requirements. Buyer agrees to store and use all goods and services in a safe manner. Seller is cautioning Buyer that not all products are compatible with plastic, glass, metal or the other goods and Buyer agrees not to use any goods with any abrasive, caustic or acid solutions or any other substance which may cause injury to persons or property.
9. Indemnification and Waiver
Buyer shall defend, indemnify and hold harmless Seller from any cost, loss or damage sustained by Seller and from and against all claims asserted against Seller by Buyer or any other party with respect to the goods or services which are the subject of this contract. This indemnity includes but is not limited to costs, loss, damages and claims arising in whole or in part out of (a) failure of Buyer, its agents, employees or customers to follow specifications, instructions, warnings or recommendations furnished by Seller, (b) failure of Buyer, its agents, employees or customers to comply with all applicable laws and regulations, including, but not limited to any applicable Federal, state and local laws and regulations governing hazardous materials or safety, all as they may be amended or supplemented from time to time, (c) misuse of the goods by Buyer, its agents, employees or customers including use of goods with any substance that causes injury to person or property, (d) misrepresentation by Buyer, its agents, employees or customers, (e) the sole or contributing negligence of Buyer, its agents, employees or customers, or (f) alleged infringement of any patent, trademark or copyright as a result of Seller’s performance in accordance with Buyer’s designs, plans, specifications or directions, (g) any and all lawsuits, liabilities, damages, injuries, claims, demands and expenses (including attorneys’ fees and legal expenses) of whatever kind and nature arising on account of the manufacture, use, storage, maintenance or repair of any of Seller’s goods regardless of by whomever manufactured, used, operated, maintained or stored and/or arising as a result of claims based upon strict liability imposed upon Seller except for claims directly resulting from Seller’s gross negligence. Buyer hereby waives and releases Seller from all rights of contribution or indemnity to which it may otherwise be entitled. As used in paragraph 8 hereof, the term “Seller” shall mean the Seller, its officers, directors, employees, parent, subsidiaries, divisions, affiliates, successors and assigns. This Indemnity shall continue in full force and effect notwithstanding the termination of any order or contract.
10. Cancellation by Buyer
Buyer may cancel this contract only upon Seller’s written agreement and payment of reasonable cancellation charges including, without limitation, (1) the price for goods, services and raw materials completed or ordered prior to Seller’s receipt of such notice together with reasonable profit thereon, (2) all costs previously incurred in connection with uncompleted goods or services together with reasonable profit thereon, and (3) all other expenses incurred by Seller by reason of such cancellation.
11. Advice and Assistance
Upon request, Seller in its discretion may furnish to Buyer technical advice, design services or assistance regarding the goods or services. Seller assumes no obligation or liability for the advice, services or assistance given or results obtained, which shall be at Buyer’s sole risk.
12. Seller’s Proprietary Rights
Seller shall be the sole owner of all drawings, inventions, tooling and improvements made by or for Seller in connection with the performance of this contract. Buyer shall not reproduce any drawing furnished by Seller. Buyer shall not use or disclose any of Seller’s trade secrets or confidential information, whether or not designated as such, except as required in connection with the use or resale of the goods or services covered by this contract.
13. Credit and Collection
Seller is relying upon Buyer’s representation of solvency and if Seller at any time reasonably believes that Buyer is insolvent or its credit is impaired, Buyer shall be in material breach hereof and Seller may, without liability to Buyer, withhold performance, change payment terms and/or repossess goods previously delivered. Title to goods shall remain within Seller until payment in full is received. In extending any credit hereunder, Buyer shall pay to Seller interest on the unpaid amount at the maximum annual rate permitted by law or 1-1/2% per month, whichever is less and if Buyer fails to pay according to the terms of this contract, Seller may make such charges and may also collect the amount unpaid with Buyer being liable to Seller for all costs of collection including attorney’s fees and court costs.
14. Buyer’s Financial Responsibility
If Seller shall at any time doubt Buyer’s financial responsibility, Seller may demand adequate assurance of due performance or decline to make any further shipments except upon receipt of cash payment in advance or security. If Seller demands adequate assurance of due performance and the same is not forthcoming within 10 days after the date of Seller’s demand, Seller may at its option (1) defer shipments under any order from Buyer which Seller has accepted until adequate assurances are received or (2) cancel this order and any other order from Buyer which Seller has accepted and recover damages.
This contract constitutes the entire agreement between Buyer and Seller relating to the goods or services which are the subject hereof. No modifications shall be binding upon the Seller unless in writing signed by Seller’s duly authorized representative. If any term or provision of this contract shall to any extent be invalid or unenforceable, such provision will be enforced to the maximum extent permitted by applicable law and the remainder of the contract shall not be affected thereby, and each term and provision of this contract shall continue to be valid and enforced to the fullest extent permitted by law. No waiver by either party of default shall be deemed a waiver of any subsequent default. The captions used herein shall have no substantive significance.
16. Choice of Law and Jurisdiction
These terms and conditions shall be construed in accordance with the laws of the State of Pennsylvania, without regard to principles governing conflicts of laws. Buyer and Seller consent to the exclusive jurisdiction and venue of the federal and state courts situated in or having their situs over Shippensburg, Pennsylvania, United States of America, provided either party may seek injunctive or other equitable relief in any court of competent jurisdiction.
17. Dispute Resolution
Except in the event of a disclosure of confidential information in violation of an Agreement or a violation of a covenant not to compete, in the event of any dispute or controversy arising out of this agreement other than an unauthorized release of confidential information, or a violation of a covenant not to compete, whether involving an interpretation of the agreement, obligations of the parties, a claim for damages regardless of whether arising from negligence, recklessness, professional malpractice, or any alleged breach of this agreement, the parties hereto agree that any such dispute or controversy shall be resolved by first referring such dispute or controversy to non-binding mediation. Mediation shall be conducted by experienced mediators provided by any recognized mediation service. A single mediator shall be selected from a panel of mediators maintained by the United States District Court for the Middle District of Pennsylvania. If the parties are unable to agree upon a mediator, the parties shall ask a Judge of the Middle District to appoint a mediator.
In the event non-binding mediation fails to resolve the dispute or controversy then such dispute or controversy shall be resolved by means of binding arbitration. The parties hereby waive any right to trial by judge or jury and consent to arbitration as a substitute therefore. Arbitration shall be conducted under the auspices of the American Arbitration Association. There shall be one arbitrator. In the event the parties are unable to agree upon an arbitrator by mutual consent from the American Arbitration Association’s Panel of Arbitrators within thirty (30) days of the initial request for arbitration, then both parties agree to allow the American Arbitration Association to select an arbitrator.
The decision of the arbitrator shall be conclusive, final, and binding, unless the arbitration award/decision exercises or includes rights or liabilities that are outside the scope of the written terms of the Agreement. If necessary the decision of the arbitrator may be entered and enforced by any court that would have had jurisdiction of the dispute or controversy if the parties had not agreed upon arbitration. The parties agree that the arbitrator may award to the prevailing party their reasonable attorney fees and costs.
18. Limited Warranty
Seller warrants to Buyer that its Products will be free from material defects in workmanship and materials under normal use and service, for a period for 6 months from the date of Seller’s delivery of the Products to the Delivery Point (the “Warranty Period”). There is NO WARRANTY in cases of damage in transit, negligence, abuse, abnormal usage, misuse, accidents, altered Products, failure to follow Seller’s instructions or improper storage. SELLER’S SOLE AND EXCLUSIVE OBLIGATION (AND BUYER’S SOLE AND EXCLUSIVE REMEDY) UNDER THIS WARRANTY SHALL BE, UPON PROMPT WRITTEN NOTICE RECEIVED BY SELLER DURING THE WARRANTY PERIOD OF ANY BREACH, TO EITHER, AT SELLER’S OPTION, REPAIR, CORRECT OR REPLACE WITHOUT CHARGE, F.O.B. SELLER’S FACILITY, ANY DEFECTIVE PRODUCT EXPRESSLY WARRANTED HEREIN BY SELLER AGAINST DEFECTS AND FOUND BY SELLER IN ITS SOLE DISCRETION TO BE DEFECTIVE AND COVERED BY THIS WARRANTY, OR CREDIT BUYER FOR THE PURCHASE PRICE PAID FOR SUCH PRODUCT. SELLER SHALL NOT BE LIABLE TO BUYER, OR TO ANYONE CLAIMING UNDER BUYER, FOR ANY OTHER OBLIGATIONS OR LIABILITIES, INCLUDING, BUT NOT LIMITED TO, OBLIGATIONS OR LIABILITIES ARISING OUT OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR TORT OR ANY THEORY OF STRICT LIABILITY, WITH RESPECT TO THE PRODUCTS OR SELLER’S ACTS OR OMISSIONS OR OTHERWISE. This warranty covers only replacement, correction or repair of defective Products at Seller’s main facility and does not include the cost of inspection, removal, delivery or field service travel and living.
19. Limited Liability
Prior to using Products, Buyer or user shall determine the suitability of the Product for the intended use and Buyer shall assume all risk and liability whatsoever in connection therewith. IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, INDIRECT, COMPENSATORY, PUNITIVE, CONSEQUENTIAL, SPECIAL OR OTHER DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS. SELLER’S AGGREGATE LIABILITY WITH RESPECT TO A DEFECTIVE PRODUCT AND THESE TERMS AND CONDITIONS, THE PRINTING SERVICES AGREEMENT AND/OR ANY QUOTATION, ACKNOWLEDGMENT OR INVOICE ISSUED FROM SELLER TO BUYER SHALL BE LIMITED TO THE MONIES PAID BY BUYER TO SELLER FOR THE DEFECTIVE PRODUCT. The remedy described in this section 14 is Buyer’s exclusive remedy and is in lieu of any other remedy otherwise available at law or by contract.
20. Disclaimer of Warranties
SELLER AND BUYER AGREE THAT THE WARRANTY IN SECTION 13 IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS FURNISHED BY SELLER HEREUNDER (INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRINTING OR REPRODUCTION OF UNIVERSAL PRODUCT CODE INFORMATION). SELLER HEREBY DISCLAIMS AND EXCLUDES ALL OTHER EXPRESS OR IMPLIED WARRANTIES. Any oral or written description of the Products is for the sole purpose of identifying the Products and shall not be construed as a warranty.
21. Engineering Data and Design Information
Except for data, information and drawings provided by Buyer, all engineering data, design information, composition plates, sketches and drawings used in the completion of Buyer’s order and all of Seller’s copyrights, trademarks, patents and other intellectual property are and shall remain Seller’s property. Buyer shall not use, copy, reproduce, distribute, publish or communicate to any third party such data, information, intellectual property or drawings without Seller’s prior written permission.