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TERMS AND CONDITIONS OF SALE
- ACCEPTANCE. These Terms and Conditions of Sale are NOVAPAK'S offer to Purchaser and become a binding contract when accepted by issuance of a written Purchase Order. All quotations are made and orders accepted subject to applicable regulations and orders of government agencies and are subject to final acceptance or confirmation by NOVAPAK and no terms or orders are binding upon NOVAPAK until so accepted.
- SHIPMENTS. Unless otherwise stated by NOVAPAK in writing, all deliveries will be FOB NOVAPAK's warehouse (UCC terms). All deliveries will be made via common carrier or some other reasonable means chosen by NOVAPAK unless specified by Purchaser and accepted by NOVAPAK. All risk of loss to products sold shall pass to Purchaser upon delivery by NOVAPAK of such product to a common carrier. Delivery schedules represent estimates by NOVAPAK and partial deliveries are permissible. NOVAPAK shall not be liable for any delay in the performance of orders or contracts or in the delivery or shipment of products or for any damages suffered by Purchaser by reason of such delay. Delivery is subject to Purchaser maintaining credit satisfactory to NOVAPAK. NOVAPAK may suspend or delay performance of delivery at any time pending receipt of assurance, adequate to NOVAPAK, at NOVAPAK's sole discretion, of Purchasers ability to pay, including without limitation, full or partial payment or payment of any outstanding amounts owed. Failure to provide such assurance will entitle NOVAPAK to cancel this contract without further liability or obligation to Purchaser. The Product will be shipped at NOVAPAK's earliest convenience and NOVAPAK shall select the point and route of shipment. NOVAPAK's weights and measures shall govern, except in case of proved error. Overruns or under runs, not to exceed 10% of the amount ordered, shall be considered acceptable delivery. The excess or deficiency shall be charged proportionately. Unless expressly stated in writing to the contrary, NOVAPAK reserves the right to select its source of raw materials, suppliers or producers of the Purchaser's goods.
- HELD INVENTORY. Without limiting any other rights NOVAPAK may have hereunder if the shipment of the Product is delayed as a result of any action or inactions of Purchaser for more than fourteen (14) days past Purchaser's acknowledged shipment date, the availability date requested by Purchaser or the Purchaser's release date whichever shall first occur, Purchaser shall pay NOVAPAK a warehouse charge equal to five percent (5%) of the purchase price of the Product per month or portion thereof after such thirty (30) day period. In the event the Product is held for two (2) months after any such thirty-day period, NOVAPAK will not accept any additional Purchase Orders from Purchaser. In the event the Product is held for four (4) months after the initial thirty (30) day period, Purchaser shall be invoiced for all Product held and such Product will be shipped to a destination specified by Purchaser at Purchaser's expense. If no destination is so specified, NOVAPAK may cancel all deliveries, past or subsequent without in any way limiting or waiving NOVAPAK's other remedies in law or Equity.
- PRICE. All prices are subject to change without notice. All orders will be invoiced at prices in effect on the day of shipment. Prices are also subject to adjustments for changes in raw materials as may be directly incurred by NOVAPAK between the date thereof and the date on which such materials are utilized by NOVAPAK fulfilling this order.
- TERMS OF PAYMENT. Purchaser shall make payments to NOVAPAK without discount within 30 days after date of invoice. Late payments will be subject to a late charge of 1-1/2% per month, or the highest amount allowed by applicable law if lower. If payment is not made as provided herein, or if Purchaser's financial responsibility becomes unsatisfactory to NOVAPAK, NOVAPAK may, at its option, (1) elect to withhold future deliveries of goods to Purchaser until such breach has been cured or Purchaser's financial responsibility has been established to NOVAPAK's satisfaction; (2) require payment in advance as to future deliveries; (3) demand return from Purchaser of any goods under this or any other invoice for which payment has not been made; or (4) cancel this Agreement. The remedies contained in this paragraph are cumulative and shall be in addition to any other remedies available to NOVAPAK under applicable law.
- RETURNS. Within (60) sixty days after Purchaser's receipt of products, Purchaser must give written notice to NOVAPAK of any claim by Purchaser based upon the condition, quantity or grade of products or of any claimed nonconformity with Purchaser's specifications. Purchaser's failure to comply with this policy will constitute irrevocable acceptance by Purchaser of such products and will bind Purchaser to pay NOVAPAK for the full price of such products. Accepted products may not be returned for any reason without NOVAPAK's written consent. Requests for authorization should be directed to NOVAPAK Customer Service, 2 Industrial Way-West, Eatontown NJ 07724 (1.800.975.2784).
- CANCELLATION/CHANGES. NOVAPAK recognizes a Purchase Order as a legal instrument that is binding upon the company issuing this document under the Uniform Commerce Code (UCC). Upon receipt of a Purchaser's Purchase Order signifying their intent to pay for goods rendered, NOVAPAK may begin activities to produce the ordered product "in good faith." Prior to any of the activities set forth below being performed, Purchasers may cancel their orders in writing at any time without penalty. The list of activities shall include but is not limited to the following:
| ACTIVITY |
PURCHASER COST RESPONSIBILITY |
| Specialty resins ordered or received |
50% of order value |
| Preforms manufactured for bottle production |
30% of order value |
| Special raw material (colorant, boxes, etc.) |
20% of order value |
| Utilized direct or temporary labor |
30% of order value |
| Line set-up initiated |
Applicable below minimum run price |
| Production begun |
Below min. run cost plus price for number of units produced |
| Order produced |
Full value of order plus held inventory costs of 1.5%/month |
Purchaser may not cancel or change an order placed with and accepted by NOVAPAK except with the prior written consent of NOVAPAK and with terms that indemnify NOVAPAK against any loss or damage. All cancellations/changes must be in writing and sent to NOVAPAK Corporation, 2 Industrial Way-West, Eatontown NJ 07724 or FAXED to 732.544.8007 and approved in writing. Upon receipt of your request NOVAPAK will respond in writing within 3 (three) business days. Subsequent charges assigned jointly by the Customer Service Manager and applicable Plant Manager.
- TAXES. All taxes, charges and other levies imposed by federal, state or local government on the manufacture, sale, shipment or use of the Product (other than income and excess profit taxes) shall be paid by the Purchaser.
- WARRANTY AND LIABILITIES. NOVAPAK warrants it has title to Product delivered hereunder and may properly sell the same to Purchaser and that such Product will conform to NOVAPAK's standard specifications or to the attached specifications, if any. NOVAPAK MAKES NO OTHER WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED, CONCERNING THE PRODUCT OR THE MERCHANTABILITY OR FITNESS THEREOF FOR ANY PURPOSE. NOVAPAK shall not be liable for special, indirect or consequential damages of any kind under this Agreement or otherwise, whether or not caused by negligence, and assumes no risk whatsoever as to the result of the use of Product either singly or in combination with other material. Purchaser assumes responsibility to analyze Product, and NOVAPAK shall have no liability if Purchaser uses Product that does not conform to the aforesaid specifications. Notwithstanding anything to the contrary herein contained, the Purchaser shall be responsible to notify the NOVAPAK promptly and no later than sixty (60) business days after the receipt of the Product of any questions as to the compliance of the Product with the Product specifications. Purchaser represents that it is familiar with the characteristics of Product and assumes all responsibility and liability for and will indemnify and hold NOVAPAK harmless from any and all loss or injury to persons or property arising out of handling use or possession of Product delivered to it. Purchaser agrees to hold NOVAPAK free and harmless from any and all claims, liabilities, judgments, losses, economic losses or expenses (including reasonable attorneys fees) incurred by the NOVAPAK in connection with its performance of this order and asserted by the Purchaser or a third party except as may otherwise be permitted by the terms of this confirmation.
- CLAIMS. NO CLAIM OF ANY KIND, WHETHER BASED ON DELIVERY OR NON-DELIVERY OF PRODUCT OR ON TORT (E.G., NEGLIGENCE OR STRICT LIABILITY.) SHALL BE GREATER IN AMOUNT THAN THE PURCHASE PRICE OF THE QUANTITY OF PRODUCT TO WHICH SUCH CLAIM RELATES. Any claims by Purchaser must be received by NOVAPAK in writing within sixty (60) days of the date of delivery or non-delivery. Failure to deliver notice of claim to NOVAPAK within such ten (10) day period will constitute a waiver by Purchaser of all claims in respect of such delivery or non-delivery. In addition, the NOVAPAK does not warrant or represent that the Product is fit for any specific use or purpose notwithstanding any communication, whether oral or written, received by the NOVAPAK from the Purchaser who assumes full responsibility for the fitness of the Product for any specific use or purpose. Unless the Purchaser requests in writing that the Product be cleaned, washed, sterilized, or packaged in a particular manner other than that which is customary "Service", (and the NOVAPAK confirms in writing that it will perform the Service, the Purchaser agrees to pay as consideration the additional cost to the NOVAPAK of performing any such Service). There is no obligation or responsibility of the NOVAPAK nor can there be any assumption by the Purchaser that the NOVAPAK will perform such Service.
- INTELLECTUAL PROPERTY RIGHTS. The NOVAPAK has no knowledge of Purchaser's intended uses but has provided products based solely upon information furnished to the NOVAPAK by the Purchaser. NOVAPAK makes no representations or warranties to the Purchaser regarding any infringement of Intellectual Property Rights (or the absence thereof) resulting from the use of the Products. NOVAPAK reserves all Intellectual Property Rights it may have in the Products. All Intellectual Property Rights with respect to any design and/or invention conceived or first reduced to practice, by the NOVAPAK in connection with the Products shall remain the property of the NOVAPAK.
- OWNERSHIP OF DRAWINGS, PATENTS AND OTHER PROPERTY. All drawings, illustrations, negatives, litho positives, dimensions, specifications performance projections, designs, plans, computations, and descriptions prepared by NOVAPAK in connection with any work quotations, or contract, whether of products or general engineering or other arrangements are NOVAPAK property and must not be copied or disclosed to any other persons or used for any purpose whatsoever without NOVAPAK's prior written consent. Artwork, tooling, molds, which are billed and paid for by Purchaser shall be released to Purchaser upon request and subject to full payment of all outstanding invoices of Purchaser. NOVAPAK will not be responsible for any material left in its possession and not used for a period greater than three (3) years.
- SEPARATE SALES. Each delivery of Product shall constitute a separate sale with the same effect as though made under a separate Agreement covering the amount thereof. Any delay or default by NOVAPAK with respect to any delivery shall not affect Purchaser's obligation to order, accept and pay for future deliveries.
- REMEDIES. NOVAPAK reserves the right (a) to invoice Purchaser for and/or ship, any Products at any time on or after date of manufacture or Purchaser's initial requested shipping date as shown on the face hereof, whichever is the later; (b) to transfer to its general stock any Products ordered by Purchaser for which NOVAPAK shall have been given no instructions for shipment to be made within four (4) weeks following the date of manufacture or Purchaser's initial requested shipping date, whichever is later, or (c) to resell for any prices and on any terms NOVAPAK may choose, or to scrap any Product for which Purchaser's initial requested shipping date or date of manufacture, whichever date shall last occur, and to invoice Purchaser for such products according to NOVAPAK's then current price list less net proceeds from any resale of any net scrap value. In accordance with section 2 of this Agreement, NOVAPAK reserves the right to access storage charges on all Product held in storage by NOVAPAK in excess of thirty (30) days following completion of the order or thirty (30) days after the Purchaser's acknowledged availability date, whichever is later. Except as stated herein to the contrary, no Product may be returned without the written authorization of NOVAPAK, and NOVAPAK reserves the right to impose a reasonable restocking charge for merchandise which NOVAPAK accepts for return when not otherwise required to do so. Purchaser grants and NOVAPAK retains a security interest in all the merchandise sold and proceeds thereof until the purchase price is paid in full. Checks do not constitute payment in full and do not satisfy or suspend the obligation to pay the purchase price until such checks have cleared Purchaser's bank. If Purchaser commits a breach of any of the provisions of this Agreement; or if Purchaser defaults in the payment of any indebtedness to NOVAPAK whether or not under this Agreement; or if any bankruptcy, receivership, insolvency or reorganization proceedings are instituted by or against Purchaser, then in any such event NOVAPAK shall have the right, in addition to any other rights and remedies it may have, to suspend deliveries hereunder or to terminate this Agreement.
- WAIVER. Any waiver by the parties of strict conformance with any of the terms and conditions of this Agreement shall not be a waiver of any subsequent failure to comply with such terms and conditions.
- ENTIRETY OF CONTRACT. This Agreement and attachments contain the entire understanding between the parties, and supersede any other understanding and arrangements whether oral or written except for any written agreement between Purchaser and NOVAPAK which refers to this section 10 and specifies those portions of this Agreement which are subordinate to any such written agreement. Any other agreements between the parties concerning the purchase and sale of Product are hereby superseded. No interpretation, revision of amendment to this Agreement shall be effective unless stated in writing and signed by a duly authorized representative of each of the parties hereto. All purchase orders or purchase acknowledgements which may be used to order or acknowledge orders for delivery of Product shall be deemed intended for record purposes only, and any terms or conditions contained therein shall not serve to add or modify the terms and conditions of this Agreement.
- ASSIGNMENT. This Agreement shall not be assigned by Purchaser without the prior written consent of the NOVAPAK.
- FORCE MAJEURE. Neither party shall be liable for any failure or delay in performance hereunder which may be due, in whole or in part, to fire, explosion, strike or labor difficulty, accident, breakdown of machinery or equipment, curtailment in the supply of natural gas, whether pursuant to actions or proceedings already or hereafter commenced, inability to obtain power, labor or materials, including Product, from normal sources of supply, transportation or handling accidents or delays, act of God, act, order, regulation or request of government or other public authorities, war, riot, or civil disorder or any other cause or causes, of any nature beyond the control of the party affected. In the event of curtailment of supply of Product due to any causes. NOVAPAK shall have the right to apportion deliveries of Product on such basis as may appear to it to be equitable. Any accepted order which, due to any such causes, shall not have been filed by the end of the Agreement term, may be cancelled by either party with respect to Product not then delivered.
- GOVERNING LAW. This Agreement shall be governed by and construed under the laws of the State of New Jersey. In the case of shipments outside the U.S.A., the trade terms as used herein shall be interpreted according to the provisions of "Incoterms 1980" of the International Chamber of Commerce.
- NOTICES. Any notices required or permitted by this Agreement shall be sent by registered or certified mail, return receipt requested, to the parties at the addresses for the parties set forth on NOVAPAK's offer to Purchaser. The term NOVAPAK shall refer to affiliates of NOVAPAK where appropriate.
- TITLE AND RISK OF LOSS. Title to and risk of loss, damage, breakage or late delivery to the Product shall pass to Purchaser upon NOVAPAK's delivery to a carrier at the shipping point, FOB ((NOVAPAK's warehouse (UCC)), notwithstanding any terms of shipment specified herein.
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