The following terms and conditions (the “Customer Terms and Conditions”) shall apply to the sale of goods (the “Products”) and/or the performance of services (the “Services”) by Packaged, LLC (“Packaged”), referred to herein as “Supplier”, to the customer, herein referred to as “Customer”, and apply in coordination with and in addition to, without limitation, any Sales and Distribution Agreement, Master Services Agreement, or Statement of Work, (each a “Supplemental Agreement”) between Supplier and Customer. Except as expressly set forth in these Customer Terms and Conditions, in the event of any conflict between any Supplemental Agreement and these Customer Terms and Conditions, the Supplemental Agreement shall control. These Customer Terms and Conditions are the only terms and conditions otherwise applicable to the sale or other provision of Supplier Products and Services to Customer except those that relate to pricing, quantities, delivery schedules, and any other terms included in the Supplier’s quotation (the “Quotation”), which terms control in the event of any conflict with these Customer Terms and Conditions. For the purposes of applying these Terms and Conditions the Customer and Supplier shall each constitute a party (“Party”) hereto and, collectively, the parties (“Parties”).
1. Pricing
The price of the Products and/or Services shall be equivalent to the price stated on the requisite Quotation unless otherwise stated in writing through Supplemental Agreement. The price includes all charges applicable to production, sale, configuration, storage, shipment, and applicable taxes. In the event that charges are subject to variation based on final quantities, shipping and delivery requirements, changes in applicable importation or exportation duties, tariffs, taxes, and customs clearances, or other conditional factors, such items will be identified on the Quotation. Any certificates or other evidence of applicable exemption to taxes or duties must be provided to Supplier prior to invoicing or such taxes or duties will be charged to Customer. If Supplier does not collect such taxes or duties from Buyer at the time of invoicing and is later required to pay the same to any taxing authority, Supplier will invoice Customer for such taxes or duties and Customer shall promptly make payment to Supplier for the same. Upon the Customer furnishing the Supplier with a signed Quotation or by the Customer otherwise indicating written acceptance of such, the Quotation will thereby constitute an Order and be subject to the Terms and Conditions herein.
2. Quantities
Unless exact quantities are required, as to be stated on applicable Quotation to be issued by Supplier, Customer will accept and pay for the actual number of units delivered, not to exceed 10% variance from the quantities listed for each item listed on the requisite Quotation, subject to the other applicable Supplier Terms and Conditions herein.
3. Shipping and Delivery
Products shall be shipped and delivered in accordance with the instructions and delivery schedule outlined in the applicable Quotation. Customer is responsible for any expedited shipping, emergency performance rates or other costs incurred to ensure timely delivery of Products or performance of Services, unless such costs are explicitly noted as being excluded on the accepted Quotation. Unless otherwise indicated on the applicable quotation, partial fulfillment and multiple shipments shall be accepted by Customer.
4. Shipping Terms; Title & Risk of Loss
Unless otherwise specified on the applicable Quotation or Supplemental Agreement, all orders shall be shipped under the terms, Free On Board: Shipping Point (“FOB Shipping Point”) and Title and risk of loss of Products in transit shall pass to Customer upon Products departing the designated shipping facility as determined by Supplier. All Products shall be prepared, marked and packaged in accordance with instructions provided by Customer in conjunction with acceptance of the applicable Quotation, and in absence of such instructions, in accordance with customary industry practices. Each shipment shall be accompanied by packing lists, bills of lading or other shipping documentation to be provided by Supplier, including any necessary documentation for customs or import/export requirements.
5. Inspection; Nonconforming Products
All materials and workmanship shall be in conformity with the quality and specifications provided by Customer in conjunction with the applicable Quotation. Customer, or assigned parties hereto, shall have the right to inspect and test materials and workmanship of all Products and Services. In the event that any Products or Services hereunder are determined to be defective in material or workmanship or otherwise not in conformity with the drawings, specifications, accepted samples or other directions provided by Customer and identified in the applicable Quotation, Customer shall notify Supplier of such nonconformity within (5) business days of delivery of Products or furnishing of Services and shall provide samples and/or evidence of any nonconformity as requested by Supplier. Upon confirmation of nonconformity by Supplier, Customer shall be granted, at Supplier’s discretion, either replacement of nonconforming Products or Services at the expense of the Supplier or credit for nonconforming Products or Services at the price specified on the applicable Quotation. Customer shall not return or exchange delivered Products without Supplier’s express prior written permission, which may be withheld at Supplier’s sole discretion. Products returned to Supplier without Supplier’s permission will be returned to Customer at Customer’s sole cost and expense.
6. Changes and Cancellation
Upon acceptance of Supplier Quotation by Customer, the corresponding Order, as defined herein, may not be cancelled or changed, including but not limited to: drawings, design or specifications for Products or Services, method of shipment, shipping configuration, place of delivery, and quantity of Products or Services, provided, however, that if Customer requests a change or cancellation, Packaged will use commercially reasonable efforts to accommodate such a request and shall not unreasonably withhold consent to such a request. Any additional costs, charges or fees for accommodating such a request will be communicated by Supplier to Customer, charged by Supplier to Customer, and payable by Customer in conjunction with the payment terms applicable to the Order.
7. Excusable Delays
Supplier acknowledges that time is of the essence with respect to Customer Orders. In the event of Supplier’s inability to meet the delivery requirements stated on the Quotation, Supplier will communicate any such delay to Customer as soon as administratively possible. Customer acknowledges that quoted lead times are estimated and may be subject to change prior to delivery. Supplier shall not be liable for any loss, damage, cost or expense resulting from delays arising out of causes beyond its control and without its fault or negligence, including acts of God, acts of the government, fires, floods, strikes, freight embargoes, delays in transportation, difficulty in obtaining labor, manufacturing facilities or transportation, and unusually severe weather (each a “Force Majeure Event”), nor shall such delay affect the remainder of any order.
8. Invoicing and Payment Terms
Except as otherwise set forth on applicable Quotation or Supplemental Agreement, Supplier will promptly invoice Customer upon the shipment of Products or the performance of Services. Amounts due will be payable by Customer within the payment term set forth therein. In the event that Customer fails to pay invoices in compliance with the terms defined herein, and in any applicable Quotation or Supplemental Agreement, Customer shall be liable for any out-of-pocket expenses incurred by Supplier for collecting payments, including, with limitation, third-party attorney and collections fees. In the event of delinquent payment, Supplier reserves the right to apply finance charges equal to 1.33% per month (16% per annum) or the highest rate permitted by law, whichever is lower, to any past due invoices.
9. Property of Packaged
Any materials, printing plates, dies, patterns, drawings, designs, samples, molds, tooling, tools, or other property for which Supplier has created, obtained, or has otherwise utilized to provide the Products and/or perform the Services under any Quotation (“Production Materials”) shall remain the property of Supplier unless the furnishing of Production Materials by Customer or sale and delivery of Production Materials to Customer is specified in the applicable Quotation or Supplemental Agreement. Any applicable shipping or delivery fees in support of the sale of such Production Materials shall be the responsibility of Customer.
10. Warranties
Supplier hereby provides a limited warranty to Customer that all Products or Services furnished by Supplier hereunder are free of any liens or encumbrances, free from defects in the material and workmanship, and that all Products furnished will conform to applicable specifications, drawings, samples, and/or other descriptions. Supplier shall not be liable to Customer or otherwise for any defect or deficiency resulting, in whole or part, from negligent storage or handling of the Products by Customer, its employees, agents, or contractors, use that is inconsistent with the normal operating conditions, or misuse, alteration, or damage occurring after Title of the Products has been transferred to the Customer pursuant to the terms herein. Supplier hereby disclaims any implied warranty as to the merchantability or fitness for a particular purpose of any Products delivered or Services performed by Supplier to Customer.
Unless manufactured pursuant to detailed designs furnished by Supplier, Customer assumes design responsibility and warrants all Products to be suitable for the purpose intended by Customer. As such, Customer’s liability shall apply to any and all product liability claims, actions or lawsuits and shall include, without limitation as to amount, incidental or consequential damages of any form or nature. To the extent that the Products delivered hereunder are manufactured pursuant to designs provided to Supplier by Customer for the purpose of manufacturing such goods, Customer warrants that the sale or use of any or all goods delivered hereunder will not infringe any United States or foreign patent, service mark, trademark, trade name, copyright or other intellectual property right of any third party and agrees that Customer will hold Supplier and its officers, directors, affiliate companies, employees and customers harmless from any expense, loss, damage or liability which may be incurred on account of infringement or alleged infringement of any such intellectual property right by such goods (or the use, sale or distribution thereof), and that Customer will at its own expense defend any action, suit or claim in which such infringement is alleged. Customer shall duly notify Supplier as to such suits or claims; Supplier shall have the right to participate in the defense of any such action.
11. Assignment & Subcontracting
Supplier may use subcontractors for any of Supplier’s obligations under these Customer Terms and Conditions without the prior written approval of Customer. Supplier will be responsible for the performance of any approved subcontractors, shall ensure that such subcontractors comply with these Customer Terms and Conditions.
12. Confidential Information
All non-public, confidential or proprietary information of Supplier, including, but not limited to, Intellectual Property Rights, technology, specifications, documents, prototype Products, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by Supplier to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with these Customer Terms and Conditions is confidential, and shall not be disclosed or copied by Customer without the prior written consent of Supplier. Customer shall use at least the same degree of care as it uses to protect its own confidential information of a similar nature, but no less than reasonable care, to prevent the unauthorized use or disclosure of the Confidential Information of Supplier as described herein. Customer shall promptly return to Supplier all Confidential Information upon written request. All of the obligations of Customer under this Section shall survive the expiration or termination of these Customer Terms and Conditions. Customer shall maintain the appropriate security safeguards reasonably necessary to prevent unauthorized access to or use or disclosure of Confidential Information.
13. Intellectual Property
Materials, elements, specifications, trade secrets, recipes, formulas, patents, copyrights, trademarks, service marks, or rights to other works, (collectively “Intellectual Property”) provided by and utilized by Supplier or any party assigned by Supplier for the purposes of supplying Products or performing Services in conjunction with these Supplier Terms and Conditions, are highly confidential and covered by the applicable clauses of these Supplier Terms and Conditions. Any such Intellectual Property shall remain the property of the providing Party and the confidentiality obligations of the receiving Party shall continue perpetually.
14. Indemnification
Customer shall defend, indemnify and hold harmless Supplier and it’s affiliates, directors, officers, shareholders and employees against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorneys’ fees, arising out of or occurring in connection with (a) the Products or the Services, (b) the negligence or willful misconduct of Customer or Customer’s employees, agents or contractors, (c) Customer’s breach of these Customer Terms and Conditions, (d) any claim that the Products infringe or misappropriate the patent, copyright, trade secret or other intellectual property right of any third party; and (e) a violation of any law by Customer or Customer’s employees, agents or contractors.
15. Termination for Default
Supplier may terminate all or any part of Quotation or Order, upon written notice of default to Customer, if Customer becomes insolvent or subject to proceedings under any law relating to bankruptcy, insolvency, or relief of debtors. Upon such termination, Customer shall be liable for the full price of all Products or Services included on applicable Quotation or Order as well as any expenses incurred by Supplier in connection with such termination.
16. Termination for Convenience
Supplier may terminate any Order at any time for its convenience, in whole or in part, in which event, the sole obligations of Supplier shall be to (a) ship to Customer all completed Products, and (b) invoice Customer for all shipped Products and Services performed. In no event shall Supplier be responsible for loss of anticipated profit nor shall any reimbursement for Products paid for but not delivered exceed the price of such undelivered Products per the applicable Quotation or Order.
17. Employment and Law Compliance
Customer represents that it is currently in compliance and agrees that it will remain in compliance with all applicable foreign, federal, state, and local laws, statutes, and ordinances including, if applicable, those related to occupational safety and health and employment law. Customer further represents that it has obtained and will maintain all permits, licenses, and approvals necessary to sell or otherwise utilize the Products and/or Services prescribed herein.
18. Governing Law and Venue
These Customer Terms and Conditions shall be governed by and construed in accordance with the internal laws of the State of New Jersey without giving effect to any choice or conflict of law provision or rule. Each Party irrevocably submits to the exclusive jurisdiction and venue of the federal and state courts located in Bergen County, New Jersey in any legal suit, action or proceeding arising out of or based upon these Customer Terms and Conditions or the Products and/or Services provided hereunder. Each Party hereby waives any objection (on the grounds of lack of jurisdiction, forum non conveniens, or otherwise) to the jurisdiction or venue of such courts. The parties agree to waive their right to a trial by jury under any applicable state or federal law and to submit the suite to a trial before the bench.
19. Relationship and Survivability
There is no relationship of partnership, joint venture, employment, franchise or agency between Supplier and Customer, and neither Supplier or Customer will have the power to bind each other or incur obligations on the other Party’s behalf without such Party’s prior written consent. If any term or provision of these Customer Terms and Conditions is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Customer Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction. All of the obligations of Supplier and Customer under these Customer Terms and Conditions that expressly or by their nature survive the expiration or termination of these Customer Terms and Conditions shall continue in full force and effect notwithstanding such expiration or termination until they are satisfied in full or by their nature expire. These Customer Terms and Conditions may be modified from time to time at the discretion of Supplier and without notice to Customer.
