As used herein, the term Seller shall mean Polypro International, Inc., the seller of the goods hereunder. Every contract for sale is subject to these terms and conditions contained herein unless otherwise specifically agreed upon in writing by Polypro International, Inc. All orders accepted by Polypro International, Inc. are on the condition that the Buyer accepts such terms and conditions. Polypro International, Inc.’s failure to object to inconsistent or supplementary provisions contained in the Buyer’s purchase order or other communications shall not be deemed to be a waiver of these terms and conditions or an acceptance of such inconsistent or supplementary provisions. Any terms or conditions contained in Buyer’s order, purchase order, or other document of Buyer that are different from or in addition to the terms and conditions hereof are hereby rejected. Buyer’s purchase order shall be deemed an acceptance of these terms and conditions. No representations or warranties other than those contained herein shall be binding upon Polypro International, Inc., unless made in writing and signed by a duty authorized officer of Polypro International, Inc.
1. In the event the Buyer fails to pay for any one shipment when payment becomes due, Seller reserves the right, among other remedies, to suspend further deliveries. Should Buyer’s financial responsibility become unsatisfactory to Seller, cash payments or other satisfactory security may be required by Seller.
2. Seller warrants that the goods delivered to Buyer will comply with Seller’s published specifications for quality. All goods purchased by Buyer are subject to Buyer’s right of inspection and approval prior to use by Buyer and while the goods remain in their original condition and in the packaging as shipped by Seller. However, Buyer shall conduct its own examination of the goods within ten (10) days of delivery and determine to Buyer’s own satisfaction that the goods otherwise are of acceptable quality and are suitable for Buyer’s intended use. Buyer shall have the right to reject any goods that do not conform to Seller’s specifications or other obligations stated herein only if Buyer’s inspection and rejection occur while the goods are in their original packaged state, occur prior to Buyer’s use, distribution, sale or other transfer of the goods, and the inspection and rejection occur within ten (10) days after delivery of the goods to Buyer. Upon Buyer’s affirmative acceptance of the goods, or in the absence of Buyer’s timely and express written rejection of the goods in accordance with these Terms and Conditions, then such goods are deemed accepted by Buyer and to be in compliance with Seller’s obligations stated herein. EXCEPT AS EXPRESSLY PROVIDED ABOVE, SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ITS GOODS OR TO THE USE OF ITS GOODS BY THE BUYER IN COMBINATION WITH THE OTHER SUBSTANCES, WHETHER AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER MATTER. ANY MODELS, DRAWINGS, PLANS, TECHNICAL LITERATURE OR OTHER AFFIRMAIONS OF FACT PROVIDED BY SELLER WITH REFERENCE TO THE GOODS HEREUNDER ARE SOLELY FOR THE CONVENIENCE OF BUYER AND SHALL NOT IN ANY WAY MODIFY THE DISCLAIMERS OF EXPRESSED OR IMPLIED WARRANTIES SET FORTH HEREIN. NO AGENT, EMPLOYEE OR REPRESENTATIVE OF SELLER IS AUTHORIZED TO MAKE ANY OTHER WARRANTY ON BEHALF OF SELLER OR TO ASSUME FOR SELLER ANY OTHER LIABILITY IN CONNECTION WITH THE GOODS DELIVERED HEREUNDER.
Seller shall assume no liability to any person for any claim to special, consequential, incidental or penal damages of any kind resulting from breach of contract, warranty, tort (including negligence and strict liability) or other duty in connection with the sale, delivery or use of the Seller’s goods.
3. Risk of loss will transfer to Buyer in accordance with the Incoterms set forth in the quote and/or invoice issued by Seller to Buyer. Title in and to all of Seller’s products shall remain with Seller until payment is made in full by Buyer and received by Seller.
4. No change in the goods or services ordered, or their method of production, including, without limitation, substitution of materials, equipment or production location shall be made without Seller’s prior, written consent, which will not be unreasonably withheld. Deliveries of Seller’s goods shall be made when, where and in such quantities as specified by the terms of a quote and/or invoice issued by Seller to Buyer, and Buyer may not change such terms without Seller’s prior, written consent. Buyer shall not have the right to cancel an order acknowledged by Seller; provided, however, that Buyer may cancel an order if Seller remains in material default thereof after written notice of default delivered by Buyer to Seller at least thirty (30) days prior to the date of cancellation. Either party may immediately cancel all or any part of an order without liability to the other party in the event of the happening of any of the following: (a) insolvency of the other party, (b) filing of a voluntary petition in bankruptcy by the other party, (c) filing of an involuntary petition in bankruptcy against the other party, (d) appointment of a receiver or trustee for the other party, or (e) execution of an assignment for the benefit of creditors by the other party; provided that any such petition, appointment or assignment is not dismissed, vacated, nullified or stayed within sixty (60) calendar days of such event.
5. Seller shall not be liable for any loss or damage arising out of any failure or delay in delivering any goods where such failure or delay has been occasioned by an act of God, fire, embargo, strike or other labor strife, inability to secure materials or equipment from usual sources, war, riot, accidents, lack of the usual means of transportation or any circumstances beyond the Seller’s control not mentioned above which may delay or prevent Seller from making delivery in the ordinary course of business.
6. Notwithstanding delivery of goods, no terms or conditions, in conflict with or supplement to these terms and conditions, in communications from Buyer before or after delivery of goods, shall be binding on Seller unless specifically accepted in writing by Seller.
7. Any tax or government charge or import and customs duties, tariffs and fees imposed or increase in same becoming effective after Seller’s quote for the sale of goods or Buyer’s placement of an order for the purchase of goods from Seller which increases the cost to Seller of producing, selling or delivering the goods therein specified, or in procuring such goods shall, to the extent not presently included in the specified price, be added to such price.
8. Where shipment of the goods requires use by Seller of carboys, drums, barrels or other returnable containers, title to such containers shall remain with Seller and a deposit in the amount required by Seller must be made at the time the goods are paid for to insure the return of the container to point of shipment. Such containers must be kept in good condition and may not be used for any product other than shipped therein. ICC regulations require that empty drums must have filling and vent holes properly closed and empty carboys must be thoroughly (completely) drained. On such containers being so returned, a refund of the deposit will be made.
9. Buyer shall have ten (10) days after delivery of the goods to notify Seller in writing of any claimed defects in the goods or of any claimed failure by Seller to comply with its promises and obligations concerning the goods. In the event of any claim by Buyer for which Seller has liability, Seller shall have the option of either (1) replacing the defective goods sold with goods that comply with Seller’s published specifications or (2) adjusting the purchase price. In no event shall Seller’s total liability for any and all claims for damages made by Buyer exceed the purchase price of the goods to which the claims relate. Seller shall have no obligation to maintain insurance coverages insuring its products or its business operations. To the extent Seller maintains any insurance coverage, it shall have no obligation to name Buyer as an additional insured or a loss payee under any of its insurance coverages. The remedy set forth in this paragraph shall be the sole and exclusive remedy of the Buyer for any and all claims for damages against Seller. Failure by Buyer to give notice of a claim within ten (10) days after the occurrence upon which such claim is founded shall constitute a waiver by the Buyer of all claims. Seller assumes no liability for the failure of discharge or unloading implements or materials used by Buyer (whether or not supplied by Seller).
10. Buyer shall defend, indemnify and hold harmless Seller, its affiliates and their respective officers, directors, employees, agents and representatives from and against liability, damage, loss, cost or expense (including reasonable attorneys’ fees and costs) of any kind or nature whatsoever arising out of any third party claims or suits resulting from (a) claims relating to the manufacture, promotion, use, distribution or sale of Buyer’s goods incorporating Seller’s goods, (b) the negligence or lack of the care by Buyer, Buyer’s customers, agents, employees or invitees, in whole or in part, and (c) claims of contributory infringement or inducement of infringement against Seller based on infringement by Buyer of any third party intellectual property rights covering Buyer’s goods incorporating Seller’s products, including all materials produced or used in the manufacture of Buyer’s goods (excluding Seller’s products) or methods for the manufacture or use of Buyer’s goods. Promptly after receiving notice of any claim or lawsuit to which this paragraph applies, Seller will notify Buyer in writing, and Buyer will immediately assume responsibility at its sole expense for the handling and defense of such claim or suit on behalf of Seller. The parties will fully cooperate with each other in such defense.
11. Buyer waives any right it now has or later acquires to set off any amount due from Seller or its affiliates against amounts owed by Buyer to Seller.
12. Seller’s weights taken at shipping points govern.
13. Waiver by Seller of the breach by the Buyer of any provision herein shall not be deemed a waiver of future compliance and such provision as well as other provisions herein shall remain in full force and effect. Any action resulting from any breach on the part of the Seller as to any provision herein must be commenced within one year after the cause of action has occurred.
14. Each party agrees to keep the terms of this document, and the transactions to which these terms apply, strictly confidential and to only disclose such terms to agents and employees of the party on a “need to know” basis. Further, each party shall assure that no agent or employee to whom any provision of this document is disclosed shall further disclose such provisions in any manner inconsistent with this section. Notwithstanding the foregoing, the parties acknowledge that invoices and shipping documents may have to be disclosed to third parties in the ordinary course of business and agree that such disclosure is not prohibited by this section.
The rights and duties of the Seller and the Buyer shall be determined by the laws of the State of Minnesota without regard to Minnesota’s choice of law provisions and the terms and conditions contained herein shall be construed and considered to have been made and performed in the State of Minnesota. The parties consent to the exclusive jurisdiction of the courts of the State of Minnesota in connection with any controversy or claim arising out of this agreement and both parties agree to commence any suit arising out of this agreement in the courts of the State of Minnesota.