These terms and conditions, and any attachment hereof, including those limiting warranties, (“Terms and Conditions”) are intended by the parties as the final expression, and contain the complete and exclusive statement of the terms and conditions of sale of all products, materials and related services (“Goods”), superseding all previous or simultaneous communications either oral or written. The parties herein are the rose plastic legal entity set forth on the corresponding Sales Agreement (“Seller”), and the party desiring to purchase Goods from Seller (“Buyer”). Seller’s quotations are offers which may only be accepted in full. If Buyer’s order or other form (including without limitation Buyer specification) or any conflicting oral representation by any agent, representative distributor, or employee of Seller states terms that are in addition to or different from those set forth herein, this writing shall be deemed notification of objection to such additional or different terms. NO MODIFICATION OF THESE TERMS AND CONDITIONS SHALL BE BINDING ON SELLER UNLESS SET FORTH IN A WRITTEN FORM AND SIGNED BY AN AUTHORIZED EMPLOYEE OF SELLER. Any Seller quotation, invoice, or order acknowledgement or any written supply agreement referencing these terms and conditions shall be referred to as a “Sales Agreement.” If Buyer and Seller are parties to a Sales Agreement that references these Terms and Conditions, then these Terms and Conditions are incorporated by reference and made part of such agreement.
2. PRICES AND PAYMENT TERMS
Buyer will make payment pursuant to Seller’s invoices at the prices and charges set forth therein, subject to any applicable Sales Agreement between the parties. Prices are subject to change without notice any time prior to Seller’s acceptance. All prices and payments are in U.S. dollars. The prices and charges stated do not include the cost of freight, insurance or state or federal excise, sales or use taxes, if any. All such charges and taxes which are applicable to the sale of the Goods are in addition to stated prices and will be paid by Buyer. Unless otherwise agreed to in writing by Seller, payment terms are net thirty (30) days from the date of invoice. Seller retains all rights at law pertaining to the collection of unpaid amounts owed by Buyer under any Sales Agreement, and Buyer will reimburse Seller for all costs associated with such collection activities, including reasonable attorney’s fees. Seller reserves the right to charge 1-1/2% interest per month on late payments. Whenever reasonable grounds for insecurity exist with respect to due payment by Buyer, Seller may demand different terms of payment and may demand assurance of due payment.
3. DELIVERY/RISK OF LOSS
Unless otherwise stated on the face of a Sales Agreement, all shipment of Goods are in accordance with Seller’s standard packaging and shipping policies and shall be EXW (Incoterms 2020) Seller’s facility. Advance reasonable written requests for shipment by Buyer’s preferred carrier of routing will be considered. All scheduled completion dates are estimated. Seller will use commercially reasonable efforts to ship by the dates specified; however, Seller shall not be liable for any delay or failure in the estimated shipment or delivery of the Goods or for any damages suffered by reason thereof. Risk of loss of, or damage to, the finished Goods or any portion thereof, shall pass to the Buyer upon delivery to carrier EXW or in the event of delay by Buyer, delivery shall be deemed to have occurred upon date of notice to the Buyer that the Goods are ready for shipment. Buyer hereby grants to Seller a purchase money security interest in and to the following currently existing or hereafter acquired personal property of Byer: (a) all Goods in BUYER’s inventory, and (b) all proceeds of Goods, including, without limitation, all accounts, contract rights, cash and general intangibles arising from the sale or other disposition of the Goods, and all payments under insurance (whether or not Seller is a loss payee thereof) or any indemnity warranty or guaranty payable by reason of loss or damage to or otherwise with respect to the Goods or such proceeds thereof. Buyer authorizes Seller to file such financing statements, continuations and amendments, and to do all such other acts, as in Seller’s judgment may be necessary or appropriate to establish, perfect, and maintain a valid and prior security interest in the collateral described above.
Buyer agrees to make adequate inspection of the Goods promptly after receipt. Non- conformity, defects, or shortages must be reported in writing to Seller within ten (10) days of receipt of Goods; otherwise, shipment is presumed to be complete and in accordance with the bill of lading and packing list. Buyer’s failure to comply with this provision will constitute a waiver for any non-conformity or defect and cause all allegedly short shipments to be deemed complete.
5. LIMITED WARRANTY
Seller warrants that the Goods manufactured by it shall be substantially free from material defects in workmanship and material for a period of six (6) months from the date of delivery as described above. Should any failure to conform to this warranty arise within said period, Seller shall, upon prompt notification thereof and provided that the Goods have been stored and handled in accordance with good industry practice and with any specific Seller recommendations, correct such nonconformity by furnishing replacement goods, EXW shipment point, or, at its sole option, by reworking the defective Goods. Goods repaired or replaced and designs corrected under warranty are warranted only for the remainder of the original warranty period. Seller’s limited warranty obligations hereunder shall not apply to issues arising out of work performed by others upon, or in connection with, the Goods without Seller’s express written consent and Seller shall not be liable or responsible for any back-charges for such work performed by others upon, or in connection with the Goods. In no case may authorized back-charges exceed the purchase price of the specific Goods on which back-charges were requested. Correction of nonconformities, whether patent or latent, in the manner and within the time provided above shall constitute the entire liability of Seller with respect to such Goods whether in contract, warranty, tort, negligence, strict liability, or otherwise. Seller does not endorse or claim suitability of its Goods for specific medical applications. It is the responsibility of the Buyer to determine technically suitable for the intended use. SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SUITABILITY OF GOODS FOR USE IN MEDICAL APPLICATIONS. SELLER DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, THAT THE GOODS SUPPLIED OR SELLER’S PERFORMANCE HEREUNDER CONFORM TO ANY MILITARY OR OTHER GOVERNMENT SPECIFICATIONS, FEDERAL ACQUISITION REGULATIONS OR OTHER GOVERNMENT PROCUREMENT STANDARDS. SELLER REJECTS ANY TERMS PROPOSED BY BUYER AT ANY TIME WHICH WOULD REQUIRE THAT THE GOODS OR SERVICES SUPPLIED BY SELLER CONFORM TO ANY MILITARY OR OTHER GOVERNMENT SPECIFICATIONS, FEDERAL ACQUISITION REGULATIONS OR OTHER GOVERNMENT PROCUREMENT STANDARDS. ANY SUCH TERMS WOULD CONSTITUTE A MATERIAL ALTERATION OF THE AGREEMENT BETWEEN SELLER AND BUYER. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, OR IMPLIED, IN FACT, OR IN LAW (INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PURPOSE OR ANY OTHER WARRANY IIMPLIED BY USAGE IN TRADE OR A COURSE OF DEALING). NO PROMISE OR AFFIRMATION OF FACT MADE BY ANY EMPLOYEE, AGENT, OR REPRESENTATIVE OF SELLER, NOR ANY SAMPLE PROVIDED TO BUYER, SHALL CONSTITUTE A WARRANTY OR GIVE RISE TO ANY LIABILITY OR OBLIGATION.
6. LIMITATION OF LIABILITY
IN NO EVENT SHALL SELLER, ITS SUBCONTRACTORS, AFFILIATES OR VENDORS BE LIABLE TO BUYER OR TO ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, CONTINGENT OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS) ARISING OUT OF OR RELATING TO: (I) ANY BREACH OF CONTRACT OR WARRANTY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHER THEORIES OF LAW WITH RESPECT TO THE GOODS SOLD OR SERVICES RENDERED, OR UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO; (II) THE TENDER OF DEFECTIVE OR NON-CONFORMING GOODS; OR (III) ANY CLAIM OF ANY KIND ARISING OUT OF OR RELATING TO ANY ORDER OR SELLER’S PERFORMANCE IN CONNECTION THEREWITH. IN ANY EVENT, SELLER’S LIABILITY WILL NOT EXCEED THE PURCHASE PRICE OF THE GOODS ON WHICH SUCH LIABILITY IS BASED. BUYER ASSUMES ALL RISK AND LIABILITY FOR ANY LOSS, DAMAGE OR INJURY TO PERSONS OR PROPERTY ARISING OUT OF, CONNECTED WITH OR RESULTING FROM THE HANDLING AND USE OF SELLER’S GOODS, EITHER ALONE OR IN COMBINATION WITH OTHER GOODS. THE PARTIES AGREE THAT SELLER IS NOT LIABLE TO BUYER OR ANY OTHER THIRD PARTY, IF SELLER'S STERILE GOODS BECOME CONTAMINATED OR ALTERED DOWNSTREAM. FURTHER, THE PARTIES AGREE THAT LIABILITY IS SPECIFICALLY LIMITED AS SET FORTH IN THIS SECTION. NO ACTION ARISING OUT OF ANY CLAIMED BREACH OF THESE TERMS AND CONDITIONS, SALES AGREEENT OR TRANSACTIONS BETWEEN THE PARTIES MAY BE BROUGHT BY BUYER MORE THAN SIX (6) MONTHS AFTER THE CAUSE OF ACTION HAS ACCRUED. THE REMEDIES OF BUYER SET FORTH IN THESE TERMS AND CONDITIONS ARE EXCLUSIVE. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY CONTAINED IN THIS SECTION ARE A FUNDAMENTAL AND INTEGRAL PART OF THE BASIS OF EACH PARTY’S BARGAIN HEREUNDER.
7. FORCE MAJEURE
Seller shall not be liable for any loss or damage resulting from delay in the prosecution or completion of any work or delivery of any Goods caused by labor disputes, hurricanes or other weather related emergencies, floods, fires, riots, thefts, accidents, pandemics, diseases, or other public health crises or governmental or federal, state, or local agency actions, guidelines, measures, or recommendations related to same, inability to obtain labor, materials, components, or fuel, acts of any government entity, or any other cause which is beyond the reasonable control of Seller (collectively, “Force Majeure Events”). Seller agrees to notify the Buyer if any Force Majeure Events occur that prevent Seller from satisfying any of its obligations as set forth herein. In the event of a Force Majeure Event, Seller shall have the right to cancel any Sales Agreement or any part thereof without any resulting liability.
8. CANCELLATION/TERMINATION/FAILURE TO TAKE DELIVERY
Buyer agrees that an order shall in no event be subject to cancellation except by prior written consent of Seller, and then only when Seller is fully reimbursed for work performed and material used. If Buyer cancels all or part of an order for special, non- standard Goods ("Specials"), Buyer shall pay Seller the greater of an amount equal to (i) 100% of the price for such cancelled Specials, or (ii) the actual and consequential damages incurred by Seller, including without limitation Seller's anticipated profit and expenses already incurred by Seller. If Buyer cancels all or part of an order for standard goods, Buyer shall pay Seller a restocking charge equal to the value of the cost of raw materials, handling and labor costs.
Buyer shall indemnify, defend, and save Seller harmless with respect to any and all demands, claims, actions, or judgments against Seller, directly or indirectly, for any consequential, material, special, liquidated, punitive, or other damages, costs, and expenses, including attorney’s fees, regardless of whether such demand, claim, action, or judgment is based on theories of contract, tort, negligence, strict liability, warranty, indemnity, contribution, statute, or otherwise, (collectively, the “Claims”) including without limitation: (a) any and all Claims arising out of or related to injury to and/or death of any and all persons and for loss of and/or damage to property arising from use, handling, repair, adjustment, operation, modification, or conversion of Goods covered by these Terms and Conditions; (b) any and all Claims of a third party against Seller based on a theory of infringement or violation of patents, trademarks, trade names, trade secrets, copyrights, or the like where such Claim is based in whole or in part on Seller’s compliance with specifications provided by Buyer; (c) any and all Claims of an employee of Buyer against Seller, it being understood that Buyer hereby expressly waives any Workers’ Compensation immunity to which it may otherwise be entitled in the context of a Claim brought by its employee(s); (d) any and all Claims of a third party against Seller arising out of or related to these Terms and Conditions or any Sales Agreement; (e) any and all Claims against Seller arising out of or related to Buyer’s breach of its obligations under these Terms and Conditions and/or Buyer’s negligent performance of its obligations under these Terms and Conditions; and (f) any and all Claims alleging Seller’s sole negligence, it being understood that Buyer shall indemnify, defend, and save Seller harmless from/against Seller’s own negligence. Buyer’s obligations in this Section extend to instances where Seller is alleged or found to be negligent and includes, without limitation, reasonable attorneys' fees and all other expenses incurred by Seller in connection therewith. If Seller, at its sole option, chooses to defend a Claim, Buyer shall cooperate with and assist Seller in Seller’s defense of the Claim in whatever reasonable ways Seller chooses. Buyer acknowledges that its foregoing obligation(s) to indemnify, defend, and save Seller harmless extends to any and all Claims brought against Seller, including, without limitation: (i) any Claim brought by an employee of Buyer, it being understood that Buyer hereby expressly waives any Workers’ Compensation immunity to which it may otherwise be entitled in the context of a claim brought by its employee(s); and (ii) any Claim alleging Seller’s sole negligence, it being understood that Buyer shall be responsible to indemnify, defend, and save Seller harmless from/against liability resulting from Seller’s own negligence. Immediately upon Seller’s demand, Buyer shall assume at its sole expense the defense of Seller against any Claim. Counsel selected by Buyer to defend Seller against any Claim shall be acceptable to Seller. If Buyer fails to timely retain counsel acceptable to Seller, Seller may do so and recover all reasonable defense costs from Buyer, together with reasonable attorney’s fees incurred in connection with an action to recover such defense costs.
10. NON-WAIVER REMEDIES: COST AND ATTORNEY’S FEES
The remedies of Seller herein reserved or created shall be cumulative and additional to any other or further remedies provided at law or in equity. Seller may remedy any breach of the Terms and Conditions hereof without waiving the breach remedied or without waiving any other prior or subsequent breach. Buyer shall pay Seller any costs and expenses, including attorney’s fees, incurred by Seller in exercising and of its rights or remedies hereunder or enforcing any of the Terms and Conditions hereof.
11. SPECIAL TOOLS AND PLATES
Unless otherwise agreed to in writing by the parties, all the tools, dies, plates, and fixtures, if any, required for the manufacture of the Goods (collectively, the “Tools”) shall remain the sole property of Seller and shall be retained in Seller’s possession, whether or not Buyer has paid Seller for such Tools. These Tools shall be used by Seller in filling orders of Buyer, but if a period of twelve (12) months has elapsed since the receipt of any order from Buyer requiring the use of such Tools, Seller may thereafter make any such use or disposition of the Tools as Seller desires, without any accounting to Buyer for such use or disposition, or the proceeds thereof.
12. INFORMATION DISCLOSED/INTELLECTUAL PROPERTY
In the event Seller discloses Confidential Information to Buyer, Buyer agrees not to use such Confidential Information except for the purposes set forth herein or to disclose such Confidential Information except to those individuals with a need to know such Confidential Information, each whom shall agreed to be bound by this confidentiality obligation, and to take reasonable steps to protect such information. “Confidential Information” shall mean and include, but not be limited to, all forms and types of nonpublic proprietary information, including financial, business, scientific, technical, economic, or engineering information, methods, or no-how, formulae, specifications, pricing, methods, techniques, processes, and prototypes. Unless otherwise agreed in writing, no information or knowledge heretofore or hereafter disclosed to Seller by Buyer in the performance of or in connection with the terms hereof, shall be deemed to be confidential or proprietary and any such information or knowledge shall be free from restrictions, other than a claim for patent infringement, as part of the consideration hereof. No right, title, or interest in and to any development, invention, or work of authorship, conceived or developed by Seller during the course of performance hereunder, is conveyed to Buyer. Seller does not grant to Buyer, and nothing contained herein will obligate or be construed to obligate Seller to grant to Buyer, any license under any patents or other intellectual property owned by Seller.
13. GOVERNING LAW/SEVERABILITY
The laws of the Commonwealth of Pennsylvania, excluding its conflict of laws provisions and the United Nations Convention on Contracts for the International Sales of Goods, shall apply in interpreting these terms, conditions, and limitations, and shall apply to all questions arising in connection with any Sales Agreement, the acceptance hereof, the sale of Goods covered hereby, the Sales Agreement, and any claims related to the foregoing. Any proceeding arising out of these Terms and Conditions or Sales Agreement, the acceptance hereof, the sale of Goods covered hereby, or any claims relating to the foregoing may be brought by Buyer only in the Court of Common Pleas of Washington County, Pennsylvania or the United States District Court for the Western District of Pennsylvania. If any clause or provision of these Terms and Conditions is held in violation of applicable law, the Terms and Conditions shall be interpreted as if such provisions are in full force and in effect to the extent legally permitted or, if such clause or provision is prohibited in its entirety, it shall be null and void, and the Sales Agreement as so modified shall remain in full force and effect.
14. LEGAL AND TRADE COMPLIANCE
Goods, services and information supplied under the Order are subject to Buyer’s compliance with all laws, including the U.S. Foreign Corrupt Practices Act and all other applicable anti-corruption laws and regulations and U.S. import and export laws and regulations and may be subject to EU and other applicable countries’ anti-corruption and export/import rules and regulations as well. For shipments outside of the U.S., Seller will be responsible for obtaining the appropriate export license(s) necessary to permit shipment of the ordered Goods, including applications for agreements relating to defense services, and Buyer will cooperate with Seller in obtaining such export licenses at Seller’s request. Seller will have no liability to Buyer in the event that an export license is delayed, not approved or is later withdrawn or suspended. Buyer agrees to comply with applicable import and export regulations whether administered by the Office of Defense Trade Controls, the U.S. Department of State, the Bureau of Export Administration, the U.S. Department of Commerce, the Office of Foreign Asset Control (OFAC) or any other agency of the U.S. Government which provide inter alia that the equipment shall not be re-sold, diverted, re-exported or disposed of in other than the country of ultimate destination without the prior approval of the U.S. Department of State or Commerce or other Agency of the U.S. Government, whichever is applicable. Buyer agrees to provide Seller any documentation Seller reasonably requests to comply with the regulations. For shipments within the U.S., it is the responsibility of Buyer or other exporter to comply with all U.S. export control laws and regulations. Should Buyer’s actions, or the actions of its owners, directors, officers, employees, representatives, consultants or agents, result in the assessment of any fine, penalty or disgorgement of profits against Seller for violation of any applicable laws, Buyer hereby agrees to indemnify and defend Seller therefor.
Any written notice provided for herein to be given to Seller by Buyer shall be mailed or delivered to Seller’s address stated in the Sales Agreement or to an address and / or person subsequently designated in writing by Seller. Likewise, any notice to be given to Buyer by Seller shall be mailed to or delivered to Buyer at address stated in the Sales Agreement or to an address and / or person subsequently designated in writing by the Buyer.
The Sales Agreement may be performed, and all rights hereunder may be enforced against Buyer, by Seller or any subsidiary, parent or affiliate of Seller. The headings used herein are for reference purposes and shall not affect the meaning or interpretation hereof. These Terms and Conditions constitute the complete and exclusive agreement between the parties concerning the subject matter thereof and supersede all prior representations, statements and promises made by Seller which are not expressly stated in said Terms and Conditions. Waiver by Seller of any of these Terms and Conditions shall not constitute a waiver of any other of these Terms and Conditions.
17. PROHIBITION ON ASSIGMENT
Buyer may not, by operation of law or otherwise, assign its rights or delegate its obligations hereunder to any third party without the prior written consent of Seller, and any such purported or attempted assignment or delegation shall be null and void.