1. Used herein, “Seller” means Plastic Bottle Corporation; “Products”, the goods and items sold by Seller hereunder; “Purchaser”, all buyers and users of Products produced and sold hereunder. Seller’s sole responsibility is to furnish Products in accordance with specifications furnished Seller by Purchaser. Seller is not responsible for completeness, correctness, suitability, appropriateness, or otherwise of Purchaser’s specification. Purchaser has not informed Seller of the intended use of Products, and in any event, Seller shall not be responsible for suitability for, or propriety of, any particular or specified intended use of Products. Purchaser’s sole and exclusive remedy with respect to this Agreement and Products shall be to obtain repair or replacement of non-conforming Products, unless otherwise authorized in writing by Seller. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING (BUT NOT LIMITED TO) LOST PROFITS ARISING OUT OF OR RELATED TO THE PRODUCTS OR SERVICES PROVIDED HEREUNDER BY SELLER, EVEN THOUGH SELLER MAY HAVE BEEN ADVISED, KNOWN OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. Transportation charges for all returned goods shall be the responsibility of Purchaser, unless expressly agreed to the contrary in writing by Seller.
2. SELLER RESERVES THE RIGHT AT ANY TIME AFTER THE ACCEPTANCE OF AN ORDER TO CANCEL SAME, WITHOUT LIABILITY, IN THE EVENT THAT IN SELLER’S JUDGMENT, PURCHASER’S INTENDED USE OF THE GOODS MAY RESULT IN DEATH OR INJURY TO PERSONS OR PROPERTY ATTRIBUTABLE TO INCOMPATIBILITY BETWEEN THE GOODS AND PURCHASER’S PRODUCT.
3. Seller makes no representations or warranties other than as stated in these Terms and Conditions. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THESE “TERMS AND CONDITIONS”. ALL OTHER EXPRESS OR IMPLIED WARRANTIES ARE HEREBY EXCLUDED, INCLUDING (BUT NOT LIMITED TO) IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR PURPOSE. Seller has no knowledge of Purchaser’s intended use, but has provided Products based solely upon information furnished by Purchaser. Seller makes no representations or warranties to Purchaser regarding any infringement of intellectual property rights (or the absence thereof) by Products. Seller 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 Seller in connection with the Products shall reside in Seller.
4. Unless expressly stated in writing to the contrary, Seller reserves the right to select its source of raw materials, suppliers or producers of the Purchaser’s goods. Seller shall not be liable for any delays or failures in delivery due to causes beyond its control, including (but not limited to) strikes, fires, floods, storms, scarcity of materials, government regulations/orders, or acts of God. Overruns or underruns, not to exceed 10% of the amount ordered, shall be considered acceptable delivery. The excess or deficiency shall be charged proportionately.
5. Unless explicit shipping instructions have been given Seller by Purchaser, Seller shall use its best judgment in shipping goods to Purchaser. In the event that pallets or containers owned by Seller are shipped with goods, Seller may make a reasonable deposit charge, to be refunded or credited upon the return of such pallets or containers in good condition, ordinary wear and tear excepted. In the event that Purchaser has given Seller specific shipping instructions, Seller will comply with those instructions to the extent practicable; provided, however, that Seller assumes no liability for failure to comply. Seller reserves the right to (a) invoice Purchaser for and/or to 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) transfer to its general stock any products ordered by Purchaser for which Seller 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 the later; or (c) resell for any prices and on any terms Seller may choose, or to scrap, any products for which Purchaser shall not have requested that shipment be made within six (6) months following Purchaser’s initial requested shipping date or date of manufacture, whichever date shall last occur, and to invoice Purchaser for such products according to Seller’s then current price list less net proceeds from any resale of any net scrap value. Seller reserves the right to assess storage charges on all merchandise held in storage by Seller in excess of thirty (30) days following completion of the order or thirty (30) days after the Purchaser’s requested availability date, whichever is the later. Except as stated herein to the contrary, no merchandise may be returned without the written authorization of Seller, and Seller reserves the right to impose a reasonable restocking charge for merchandise which Seller accepts for return when not otherwise required to do so. Seller recognizes no claim for damage to merchandise in transit, or shortages occurring during transit, unless noted by Purchaser on the delivery receipt at time of delivery and returned to Seller within five (5) days after delivery. Nothing herein shall be construed to require Seller to replace damaged goods or to make up shortages when such would not otherwise be its responsibility.
6. In the event of any breach of the provisions of this contract by Purchaser, Seller, at its option without prejudice to any other remedy or remedies which Seller may have against Purchaser for such breach, may (a) without affecting in any way the obligation of either party in respect of further shipments hereunder, regard each shipment as a separate and independent sale on the terms and conditions applicable hereunder; or (b) terminate this contract as regards further shipments and declare the obligations of Purchaser for all shipment made due forthwith, but Purchaser shall remain liable to Seller for all loss and damage sustained by reason of any such breach. Seller’s right to require performance of Purchaser’s obligations hereunder shall not be affected in any way by any previous waiver, forbearance or course of dealing.
7. Purchaser hereby agrees to be liable to Seller and any assignee of Seller for, and indemnifies and saves Seller and such assignee harmless from and against all claims, liabilities, judgments, decrees, fines, penalties, fees, amounts paid by or due from Seller or such assignee in settlement of, or any other costs, losses, or expenses incurred (including, but not limited to, attorney’s fees, expert witness fees, court costs and expenses) directly or indirectly arising out of, resulting from or in association with, any threatened or pending claim, action, or suit (whether civil, criminal, administrative, investigatory or otherwise and whether valid or not) and any appeals related thereto, in or under which Seller is a party of participant; (a) because of any alleged or actual infringement by any of the Products of any intellectual property right; (b) because of Purchaser’s use or misuse of Products; or (c) because of any other reason, including Purchaser’s actual or threatened breach of, or default under, any of Purchaser’s representations, warranties or obligations hereunder, or incurred by Seller to enforce any term or condition hereunder, or any of Purchaser’s representations, warranties or obligations hereunder. Purchaser irrevocably agrees to pay Seller all costs and expenses including, without limitation, reasonable attorney’s fees, court costs and the fees of collection agencies, incurred by the Seller in exercising any of its rights or remedies related to or under this agreement, enforcing any of the terms and conditions of this agreement or collecting any sums due Seller under this agreement.
8. Quoted prices are based upon immediate cash payment by Customer, unless expressly stated to the contrary on the face hereof. Seller shall be entitled to, and Customer hereby agrees to and authorizes Seller, to charge additional fee for non-cash payments.
9. Prices quoted are for single shipments of the quantities of Products specified, unless otherwise authorized in writing by Seller. Prices quoted are subject to change without notice to Purchaser. Prices invoiced are those in effect at time of shipment, unless otherwise stated. Purchaser acknowledges that the prices reflect, and are based upon Purchaser’s acceptance of, all terms of this agreement including, but not limited to, Paragraphs 1-8 hereof. Seller has indicated willingness to undertake greater liabilities and risk in exchange for increased charges reflecting that exposure. Purchaser has opted to accept lower charges and concomitant limitations on Seller’s liabilities and risk as set forth herein. ALL SHIPMENTS ARE F.O.B.: PLANT OF MANUFACTURE OR WAREHOUSE. ON ALL SHIPMENTS, WHETHER OR NOT SELLER PAYS THE FREIGHT, TITLE AND RISK OF LOSS PASS TO PURCHASER AT TIME OF SHIPMENT FROM PLANT OF MANUFACTURE OR WAREHOUSE.
10. Terms inconsistent with those stated in these Terms and Conditions of Sale which may appear on Purchaser’s order will not be binding on Seller unless otherwise authorized in writing by Seller. Terms and Conditions of Sale represents the entire Agreement between Seller and Purchaser regarding the subject matter hereof, and supersedes all prior written and oral agreements, representations and/or understanding between Seller and Purchaser regarding the subject matter hereof. Seller and Purchaser acknowledge and agree that there are no other written or oral agreements, promises, representations and/or understandings with respect to the subject matter hereof. Other than President of Seller or such other individual as he may nominate in writing, no employee, independent contractor, agent, or other representative of Seller shall have any power or authority to add to, waive, modify, alter or amend the Terms and Conditions of Sale and no amendments to or modifications of these Terms and Conditions of Sale will be valid and binding upon Seller unless in writing and signed by Seller. Any waiver by Seller of a breach of any provision of these Terms and Conditions of Sale shall not operate as or be construed to be a waiver of any other breach of such provision or of any other provision of these Terms and Conditions of Sale. The failure of Seller to enforce any term or condition of these Terms and Conditions of Sale on one or more occasion shall not be considered a waiver or deprive Seller of the right thereafter to enforce that term or any other term of the Terms and Conditions of Sale. No waiver by Seller of any default or breach by Purchaser shall be effective unless in writing and signed by Seller. The interpretation of these Terms and Conditions of Sale shall be governed by established trade customs.
11. This Agreement shall bind and inure to the benefit of the parties, their successors and assigns. THE AGREEMENT SHALL BE CONSTRUED UNDER THE INTERNAL LAWS OF THE STATE OF ILLINOIS and may be enforced by Seller in any state or federal court sitting in the State of Illinois. The parties hereby consent to the jurisdiction of the Illinois courts in any matter relating to this Agreement. The illegality, invalidity or unenforceability of any provision of the Agreement under the law of any jurisdiction shall not affect its legality, validity or enforceability under the law of any other jurisdiction, nor the legality, validity or enforceability of any other provision. Anything herein to the contrary notwithstanding, this contract is not assignable by Purchaser, except with the written consent of Seller, and the same shall terminate at the option of Seller in the event of any voluntary or involuntary bankruptcy, receivership, insolvency, or reorganization proceedings of, by or against Purchaser, but without thereby waiving any claim for damages which Seller may have against Purchaser.
Copyright Plastic Bottle Corporation
Plastic Bottle Corporation
28055 North Ashley Circle, Suite 110, Libertyville, Il 60048