Customer Standard Terms And Conditions
HERITAGE PLASTICS, INC.
CUSTOMER STANDARD TERMS AND CONDITIONS
1. ACCEPTANCE. This Sales Order, which incorporates by this reference any terms set forth by Seller on the face of this Sales Order (together, the “Order”) is subject to the following terms and conditions. Receipt of this Order shall create a contract between Heritage Plastics, Inc. (“Seller”) and the purchaser of plastic resin and calcium carbonate pellets from Seller (collectively, the “Products”) to whom this Order is addressed (“Buyer”). All terms and conditions proposed by Buyer which are different from or in addition to this Order are unacceptable to Seller, are expressly rejected by Seller and waived by Buyer, shall be of no force or effect, and shall not become a part of this Order absent an express written statement by Seller to the contrary. In the event of any conflict between the terms and conditions herein and any terms on the face hereof, the terms on the face hereof shall govern.
2. PAYMENT TERMS. Acceptance of this Order is subject to Buyer passing a credit check. If Seller determines, in its sole discretion, that Buyer is a credit risk, Buyer must provide Seller with a letter of credit acceptable to Seller before any Order will be accepted. All payments under this Order shall be made in United States dollars. Unless otherwise agreed to by Seller in writing, all amounts owed under this Order must be paid net thirty (30) days of invoicing of this Order for domestic shipments, or net sixty (60) days of invoicing of this Order for international shipments, unless otherwise agreed upon in writing. If a payment is forty-five (45) days past due, Seller may place a credit hold on Buyer’s account. All outstanding funds must be wired to Seller before the credit hold is released.
3. PRICE. The price of the Products (the “Price”) will be as stated on the face of this Order or the current resin market price as determined by the Seller’s pricing policy in effect from time to time.
4. SHIPMENT, DELIVERY, RISK OF LOSS. Seller shall use commercially reasonable efforts to ensure that any delivery dates on the face of this Order (each a “Delivery Date”) are met, but does not guarantee delivery of the Products on a Delivery Date. Seller may change a scheduled Delivery Date, temporarily suspend a scheduled Delivery Date or otherwise reschedule a delivery at any time, none of which shall entitle Buyer to a modification of the Price. Seller may, in its sole discretion, withhold delivery to Buyer if Buyer has not paid any Order previously due from Buyer to Seller. Unless otherwise agreed by Seller in the accepted Order, (a) all deliveries of Products shall be made FOB Origin-Freight prepaid Seller’s shipping facility at either (i) Picayune, Mississippi, USA, or (ii) Sylacauga, Alabama, USA and (b) Seller shall (i) arrange for an appropriate common carrier or carriers (the “Carrier”) to pick up the Products from Seller, (ii) pre-pay the Carrier for all delivery charges and
(iii) deliver the same to Buyer. Where Seller arranges for the Carrier, Seller’s invoice to Buyer will include the cost of freight for delivery of any such Products to Buyer. Title to and risk of loss of the Products shall pass from Seller to Buyer when the Products are tendered by Seller to the Carrier. Any claim by Buyer against the Carrier for damage to or loss of the Products shall be made by Buyer directly against the Carrier, in which case Buyer shall forward a copy of any such claim to Seller within ten (10) days after the date such claim is made against the Carrier.
(a) Seller. In addition to any other rights of Seller hereunder, Seller may, at its option, immediately cancel or reject all or any part of this Order, at any time and for any reason or for no reason at all.
(b) Buyer. Buyer may cancel or change the quantities of this Order relating to any Products prior to the tender of such Products by Seller to the Carrier. If the Products have already been tendered to Carrier, Buyer may only cancel or change the quantities of this Order if Seller, in its sole discretion, determines that it is able to divert the Products to another buyer. If Seller determines it is unable to divert the Products to another buyer, Buyer may return the Products to Seller within sixty (60) days at Buyer’s cost.
6. CHANGES. Seller reserves the right to change the specifications of the Products at any time; if Seller changes specifications for any Product that is subject to an Order from Buyer, Seller must notify Buyer of such changes in advance of shipping the Order so that Buyer can determine if it wants to complete the Order.
7. RETURN OF PRODUCT; CREDITS.
(a) Defective Products. If Buyer believes a Product is defective, it must notify Seller within sixty (60) days of receipt of the Product and deliver a sample of such Product (the “Defective Product”) to Seller for testing. If Seller, in its sole discretion, finds a Product to be defective, it will issue Buyer a payment credit in an amount equal to the Price charged to Buyer for the Defective Product for use on future Orders.
(b) Order Not Containing Proper Amount of Products. If Buyer receives a delivery of Products that does not contain the proper amount of Products ordered by Buyer, Buyer must accept the Order, but may, within ten (10) days of receipt of the Products by Buyer, request a payment credit from Seller in an amount equal to the Price of any Products not properly included in the delivery.
(c) Compliance with Seller Policies. All credits are subject to final approval by Seller and shall be subject to Seller’s credit policies in effect from time to time.
8. WARRANTY. SELLER HEREBY WARRANTS TO BUYER THAT THE PRODUCTS PURCHASED HEREUNDER BY BUYER SHALL BE FREE FROM ANY DEFECTS AT THE TIME OF DELIVERY BASED ON SELLER’S APPLICABLE SPECIFICATIONS FOR SUCH PRODUCT (THE “WARRANTY”). THE WARRANTY SHALL BE THE ONLY WARRANTY MADE BY SELLER WITH REGARD TO THE PRODUCTS. ORAL STATEMENTS BY SELLER’S EMPLOYEES DO NOT CONSTITUTE WARRANTIES AND SHOULD NOT BE RELIED UPON BY BUYER. IN THE EVENT OF A BREACH OF THE WARRANTY, SELLER SHALL, IN ITS SOLE DISCRETION, REPLACE THE DEFECTIVE PRODUCT AT NO COST TO BUYER OR ISSUE A CREDIT IN THE AMOUNT EQUAL TO THE AMOUNT OF DEFECTIVE PRODUCT IN THE ORIGINAL ORDER. THIS SHALL BE BUYER’S SOLE REMEDY WITH RESPECT TO THE WARRANTY. THE WARRANTY IS EXPRESSLY CONDITIONED ON BUYER’S COMPLIANCE WITH THE TERMS OF THIS ORDER (INCLUDING ALL TERMS OF PAYMENT HEREUNDER). EXCEPT AS EXPRESSLY STATED ABOVE IN THE WARRANTY, THE PRODUCTS PROVIDED UNDER THIS ORDER ARE PROVIDED “AS IS.” SELLER DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT.
9. DISCLAIMER. UNDER NO CIRCUMSTANCES SHALL SELLER BE RESPONSIBLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR OTHER INJURY ARISING OUT OF OR IN ANY WAY RELATED TO (I) ANY DELAY OR INABILITY BY BUYER TO RECEIVE OR USE THE PRODUCTS HEREUNDER, AND (II) ANY BREACH OF THE WARRANTY.
10. INDEMNIFICATION. Buyer agrees to indemnify and hold harmless Seller and Seller’s parent company, affiliates, directors, owners, officers, employees, agents, representatives, successors and
assigns (collectively, the “Seller Indemnified Parties”) from and against any and all actions, claims, demands, suits, liabilities, losses, damages, obligations, judgments, settlements, costs, and other expenses (including attorneys’ fees, paralegals’ fees and court costs) incurred or suffered by the Seller Indemnified Parties which relate to or arise out of any actual or alleged (a) breach by Buyer hereunder,
(b) the failure of Buyer to comply with and observe any federal, state or local laws (including federal motor vehicle regulations and safety standards), orders or other legal requirements or standards which may be applicable to Buyer or Buyer’s business, or (c) claim or finding that the Products (or any of Buyer’s products into which Products are included) have caused or contributed to the death, injury or illness of any person or damage to any property, to the extent caused by Buyer.
11. EXCUSED PERFORMANCE. No delay or failure of Seller to perform its obligations under this Order will be a breach of this Order, if, and to the extent that, it is caused by an event or occurrence beyond Seller’s reasonable control , such as, by way of example, acts of God , fire, flood, wind storm, explosion, riot, natural disaster, war, terrorism, sabotage, labor dispute, strike, computer failure, supply source failure or order or other action of a court or other governmental authority.
12. TAXES. If Buyer is buying the Products for resale, Buyer shall deliver to Seller a certificate satisfactory to Seller that acknowledges (i) Buyer is not an “end user” of the Products as such term is defined by the various state taxing authorities and (ii) Buyer’s intention to resell the Products to wholesale or retail purchasers.
13. REMEDIES. Each and all of the various rights, powers and remedies of Seller as set forth in this Order shall be considered as cumulative, with and in addition to any other rights, powers or remedies of Seller, and no one of them is exclusive of the others or is exclusive of any other rights, powers and remedies allowed by law or in equity. All rights, powers and remedies of Seller hereto shall survive the termination of this Order.
14. SETOFF. Seller may offset against any amounts otherwise owed to Buyer, any amounts due or to become due from Buyer to Seller or its affiliates.
15. NO IMPLIED WAIVER. The failure of either party at any time to require performance by the other party of any provision of this Order shall in no way affect the right to require such performance at any time thereafter, nor shall the waiver of either party of a breach of any provision of this Order constitute a waiver of any succeeding breach of the same or any other provision. Any waiver of the terms or conditions of this Order must be in writing.
16. NON-ASSIGNMENT. Buyer may not assign or delegate its obligations under this Order without Seller’s prior written consent. Seller may freely assign this Order without Buyer’s consent. Any assignment in violation of this paragraph shall be null and void.
17. RELATIONSHIP OF PARTIES. Buyer and Seller are independent contracting parties and nothing in this Order shall make either party the agent or legal representative of the other for any purpose whatsoever.
18. GOVERNING LAW AND JURISDICTION. This Order shall be governed by and construed in accordance with the laws of the State of Texas. The parties hereto agree that all actions or proceedings in any way, manner or respect, arising out of or from or related to this Order shall be litigated only in courts having situs within the city of Houston, Harris County, Texas. Each party hereby consents and submits to the jurisdiction of any local, state or federal court located within Harris County, Texas and waives any right such party may have to transfer the venue of any such litigation.
19. ATTORNEYS’ FEES. If either party brings an action or other proceeding to enforce or
interpret this Agreement, Seller shall, if it is the prevailing party in that action or proceeding, be entitled to recover from Buyer all such fees, costs and expenses (including all court costs and reasonable attorneys’ and paralegals’ fees) suffered or incurred by Seller in the pursuit or defense of such action or proceeding.
20. SEVERABILITY. If any term of this Order shall be invalid or unenforceable, the remainder of this Order shall not be affected thereby and shall remain enforceable to the extent permitted by law.
21. ENTIRE AGREEMENT. This Order constitutes the entire agreement between Buyer and Seller with respect to the subject matter contained herein and supersedes all oral or written statements as well as any sales orders, order acknowledgements or other communications between the parties. Except as otherwise expressly set forth herein, this Order may only be modified by a new Order or an Order amendment/alteration issued by Seller which specifically references this Order. This Order shall be binding upon and inure to the benefit of the parties hereto and their respective representatives, successors and permitted assigns.
22. NOTICES. Any notice or other communication under this Order must be in writing and will be deemed given when it is delivered in person or sent by facsimile (with proof of receipt at the number to which it is required to be sent), on the third business day after the day on which it is mailed by first class mail, or on the second business day after being sent by Federal Express, United Parcel Service or other express delivery service, to the last known address of the recipient.
23. HEADINGS. The section and paragraph headings and titles herein are for convenience of reference only and shall not be deemed a part of this Order.