Scope: Binding Effect.
These terms and conditions of sale apply to all purchase orders accepted by Morris Packaging, LLC and any of its affiliated companies (“Seller”) and to all price quotations made by the Seller. This also applies to any non-system generated forms of purchase orders including email orders, verbal orders, or customer approvals for vendor managed inventory items. To the extent that these terms and conditions conflict with or are different from those contained in any purchase order or other procurement documents submitted by Buyers, these terms and conditions will control, and any additional or inconsistent terms are rejected by Seller. Buyer’s acceptance of or payment for the goods shall conclusively confirm assent to these terms.
Unless otherwise agreed to by the parties: (a) delivery is FOB Seller’s plant (origin) and (b) title and risk of loss will pass to Buyer upon delivery of products to the carrier at the shipping point. Seller will follow Buyer’s shipping instructions. Absent such instructions from Buyer, Seller will ship by the method it deems most advantageous. Delivery dates are estimates only. Seller will make commercially reasonable efforts to meet specified delivery dates but will otherwise not be responsible for delayed deliveries.
All prices are exclusive of any sales, use, revenue, or excise taxes, and customs duties, or other similar charges, all of which will be the responsibility of the Buyer.
Buyer will accept or reject products within 90 days of delivery. Failure to notify Seller in writing of nonconforming products within such period shall be deemed an unqualified acceptance. Any use of the products by Buyer which is not related to acceptance testing shall constitute acceptance.
Prior credit approval and non-delinquent status are necessary before Seller will ship on an open account basis. If at any time the financial responsibility of Buyer, or the credit risk involved, shall become unsatisfactory to the Seller, Seller may require cash or other satisfactory security prior to shipments or deliveries. With respect to any credit sale, Buyer grants to Seller a purchase money security interest in the products sold, and any proceeds thereof, as security for Buyer’s obligation to pay the purchase price, and Buyer agrees to execute any financing statement or other instrument required to perfect such security interest.
Credit memos or other discounts against future purchases issued by Seller in connection with products returned by Buyer (or for other agreed upon reasons) must be used by Buyer within 180 days of issuance by the Seller, and unless applied by the Buyer against the purchase of additional products within such period, shall expire. Seller will not pay credit memos via check unless both parties agree the business relationship is permanently severed.
Credit Terms & Delivery Amounts.
Unless otherwise agreed to in writing by both Seller and Buyer, the payment terms to be extended to Buyer are Net30 Days. In addition, Seller may deliver and invoice for a quantity that differs from the Buyer’s initial purchase order quantity based on our stated Over and Under Run Tolerances.
Products are warranted to conform to agreed or Seller’s published specifications, subject to customary tolerances, and to be free from defects in material or workmanship that materially impair use. Seller will repair or replace, at its option, product found to be defective or nonconforming, provided that: (a) Buyer gives prompt written notice of the defect or nonconformity (see bullet point #4); (b) Seller has provided a written Return Materials Authorization (RMA) number to the Buyer and Buyer has returned the nonconforming product to seller, freight paid by Seller, and; (c) Seller has reasonably verified Buyer’s claim that the Products are defective or nonconforming. This Warranty is in lieu of all other warranties or obligations express or implied. Seller expressly disclaims all implied warranties, including warranties of merchantability and fitness for a particular purpose. THE PRODUCT WARRANTY EXPIRES ONE YEAR FROM THE DATE OF DELIVERY.
Upon request, Seller will provide or make available to Buyer a Material Safety Data Sheet (“MSDS”) for all products. The Buyer agrees to read and understand the MSDS before using the products. Buyer will hold Seller harmless from any damage, loss, expense, or claim resulting directly or indirectly, from use of products.
Limitation of Liability.
In no event shall Seller be liable to Buyer in an amount exceeding the purchase price of the subject product. In no event shall Seller be liable for indirect, special, incidental, exemplary, punitive, or consequential damages of any kind (including lost profits or revenues, loss of customers, or plant downtime) sustained from any cause or arising out of any legal theory, whether based in contract, negligence, strict tort liability, or otherwise. These limitations include any liability that may arise out of third-party claims. Any lawsuit by Buyer against Seller shall be filed within one year from delivery of subject product by Seller. These limitations shall apply notwithstanding any failure of essential purpose or of any limited remedy provided herein. Any technical advice furnished or recommended by Seller or any Seller representative concerning any usage or application of any product is believed to be reliable, but Seller makes no warranty, either express or implied, as to its accuracy or completeness or of the results to be obtained. With regards to any further processing of any product, Buyer assumes full responsibility for quality control, testing, storage, and for use of products provided by Seller in combination with the items provided or manufactured by the Buyer or by others.
Buyer assumes full liability and responsibility for compliance with all information and precautions provided to Buyer, and with all laws, statutes, ordinances, and regulations of any governmental authority applicable to the processing, transport, delivery, discharge, unloading, storage, handling, sale, and use of each product and United States export control laws. Buyer further agrees to protect, defend, and hold harmless Seller from and against all claims, demands, causes of action, damages, losses, liabilities, costs, expenses, penalties, and judgments associated with the processing, transport, delivery, unloading, discharge, storage, handling, sale, or use of any product after delivery which is (a) inconsistent with any information provided to Buyer; (b) in violation of any applicable law, statute, ordinance, or regulation of any governmental authority; or (c) not the result of Seller’s negligence or willful misconduct.
Intellectual Property Infringement.
Seller will defend or settle any claim or action brought against Buyer to the extent that it is based upon a claim that products provided by Seller to Buyer infringe any United States patent, and Seller will pay all costs, damages, and attorney’s fees finally awarded against Buyer in any such action. Such defense, settlements, and payments are expressly conditioned on the following: (a) that Seller is promptly notified in writing by Buyer of any such claim existence; (b) that Seller is granted in writing sole control of the defense of any such claim and of all negotiations for settlement or compromise; (c) that Buyer cooperates with Seller in a reasonable way to facilitate the settlement or defense of the claim; and (d) that the claim does not arise from modifications not authorized by the Seller.
Seller shall not be responsible for delays caused by acts of God, fires, floods, strikes, war, riot, civil unrest, accidents, delay by suppliers of materials, or shortages of material, or any other causes beyond Seller’s reasonable control. In the event of the Seller’s inability, for any reason, to supply the total quantities of product ordered by buyers, Seller may allocate its available supply among its customers, including affiliates, departments, and divisions of Seller, on such basis as Seller deems commercially reasonable, without liability to Buyer for any failure of performance that may result therefrom.
Proposals, drawings, specifications, pricing and technical data furnished to Buyer by Seller shall be retained in confidence, remain the exclusive property of Seller, not be disclosed by Buyer to third parties or used in a manner not authorized by Seller, and returned to Seller upon request. Unless otherwise agreed by the parties in writing, any and all such materials including intellectual property, developments and improvements to products made or implemented by Seller shall be the sole and exclusive property of Seller, regardless of Buyer’s participation therein.
Additional Terms & Conditions.
The rights and liabilities of the parties arising out of or relating to this agreement will be governed by the laws of the state of Illinois, excluding application of it conflicts of laws principles and excluding all provisions of the United Nations Convention on Contracts for the International Sale of Goods and the United National Convention on the limitation period in the International Sale of Goods. Venue in any lawsuit between the parties will lie exclusively in state or federal courts in the state of Missouri, and the prevailing party in such litigation will be entitled to recover all reasonable costs, fees, and other expenses, including attorneys’ fees and expenses in connection with any trial, appeal, or petition for review. To the fullest extent permitted by law, the parties expressly waive trial by jury in any action arising under this agreement.