Berlin Packaging L.L.C. (Buyer) offers to purchase goods or services only upon the terms and conditions contained herein. Any of Buyer’s offers shall be deemed accepted and shall become a binding contract on the terms and conditions contained herein (a) when signed and returned by Seller, or (b) when Seller issues its oral or written acknowledgment, or (c) when Seller commences performance, or (d) when Seller otherwise accepts this offer. By accepting this offer, Seller waives all terms and conditions contained in Seller’s quotation, any verbal agreements, acknowledgments, invoices or other documents which are different from or additional to those contained herein, and all such different or additional terms and conditions shall be null and void and of no effect. Neither Buyer’s subsequent failure to object to any such terms, nor the acceptance of goods or services by Buyer nor inaction by Buyer shall constitute an agreement by Buyer to such additional terms.
A. All goods shall be suitably packed, marked and shipped by Seller in accordance with Buyer’s instructions, or in the absence of such instructions, in accordance with requirements of common carriers in a manner to secure lowest transportation costs, and no additional charge shall be made to the Buyer unless otherwise stated herein. The goods shall be shipped in a manner to insure proper protection and handling. Breakage or damage shall be Seller’s responsibility if shipped FOB destination.
B. Unless otherwise stated herein, all charges shall be FOB destination and no charge shall be made by Seller for transportation or storage. In the absence of other instructions from Buyer, all goods shall be shipped freight prepaid.
C. Packing slips shall accompany each shipment.
D. Original bill of lading, or other shipping receipt, for each shipment shall be promptly forwarded by Seller in accordance with Buyer’s instructions.
E. Seller shall describe goods on a bill of lading or other shipping receipt and route shipment in accordance with Buyer’s instructions.
F. Buyer will have no obligation to pay for an invoice unless goods have been received and accepted by Buyer. Buyer’s payment of an invoice will not constitute any waiver of Buyer’s rights or be deemed an acceptance of any shipment.
G. No interest, finance or service charge shall be payable.
H. When invoices are subject to discount for prompt payment, the discount period shall begin on the date the invoices are received by Buyer or the date the goods are received, whichever is later.
I. Buyer may refuse to accept orders shipped contrary to Buyer’s instructions in which event the goods may be returned to Seller at Seller’s expense.
J. Acceptance of any goods or services shall not bind Buyer to accept future deliveries, nor deprive it of the right to return goods already shipped or services already performed.
K. If delivery of the goods or services is not in accord with the delivery schedule or completion date, Buyer reserves the right, without liability, in addition to its other rights and remedies, to reject any goods or services and if Buyer elects to terminate all or a portion of this order and to purchase substitute goods or services elsewhere then Seller agrees to pay the excess costs so incurred.
1. Delivery and Performance. Time is of the essence. Deliveries are to be made in quantities and at times specified by Buyer. Buyer shall have no liability to pay for goods delivered to Buyer in excess of quantities specified by Buyer. Buyer may change or suspend delivery schedules upon notice to Seller. Buyer, in its discretion, may consider nondelivery of any installment of goods a breach of the whole order. Seller must notify Buyer immediately of any delay in performance for any reason. If there is any anticipated delay in the scheduled delivery date, Buyer may, in order to maintain the scheduled delivery date, require Seller (at Seller’s expense) to expedite delivery by performing its obligation on an accelerated premium time basis or by shipping via a speedier, alternate transport means.
2. Price. The price for goods shipped and work performed shall not be due until final acceptance by Buyer. Buyer’s payment shall not be deemed an acceptance. Seller represents that the prices, terms of payment, warranties and services extended to Buyer are no less favorable to Buyer than those extended to any other customer of Seller, as in effect on the date of Buyer’s orders, for substantially similar items and quantities and that prices comply with any applicable government regulations in effect at the time of quotation, sale and delivery. Except as otherwise provided in Buyer’s orders, the price in Buyer’s order is complete and no additional charges of any type shall be added without Buyer’s express written consent including but not limited to shipping, packaging, labeling, insurance, storage and crating. In addition, the price includes all applicable federal, state and local taxes. Buyer shall not be responsible for any other taxes, excises or fees (including but not limited to income, franchise or personal property taxes) in connection with Seller's furnishing of the goods and work. In the event Seller reduces its price for the goods, Seller agrees to reduce the prices to Buyer correspondingly.
3. Warranties. In addition to all warranties provided by law, Seller expressly warrants that all the goods and services covered hereby shall (a) strictly conform to all specifications, drawings, instructions, samples or other description furnished by Seller or specified by Buyer, (b) be merchantable, of good material and workmanship, free from defects and of highest quality and be fit and sufficient for Buyer’s purposes and Buyer’s end-customers’ purposes. Seller warrants that (a) Buyer shall receive title to the goods free and clear of any liens, encumbrances and any actual or claimed patent, copyright or trademark infringement, (b) the goods shall be adequately contained, packaged, marked and labeled, and (c) the services will be performed and the goods manufactured and supplied in compliance with all applicable Federal, state and local laws, regulations and orders and all industry, agency and association standards and best practices. Buyer’s approval of any specifications, drawings, samples or other descriptions furnished by Seller shall not relieve Seller of its obligations hereunder. These warranties shall survive any inspection, delivery, acceptance or payment by Buyer, and shall be for the benefit of Buyer, its successors, assigns, customers and users of the goods or services. Buyer’s failure to make an inspection or failure to discover any breach of warranty shall not constitute a waiver of any of Buyer’s rights or remedies whatsoever. The warranties contained in these terms and conditions may not be limited.
4. Cancellation. Buyer shall have the right to cancel all or any part of this order without liability if (a) Seller does not make deliveries as specified, (b) Seller does not make progress as to endanger timely performance, (c) Seller breaches any of the terms hereof, (d) Buyer’s business purpose is substantially frustrated, or (e) Seller becomes insolvent or there is filed by or against Seller any insolvency proceeding.
5. Inspections. All goods shall be received subject to Buyer’s inspection and rejection. Defective or non-conforming goods shall be held at Seller’s expense and risk and, if Seller so directs, shall be returned at Seller’s expense.
6. Changes. Buyer reserves the right at any time to make changes in drawings, specifications, designs, packaging, methods of shipment, quantities, place of delivery or delivery schedule as to any goods or services covered hereby. Any difference in price or time for performance resulting from such changes shall be equitably adjusted and confirmed in writing by Buyer. Seller will not make any changes in drawings, specifications, materials, descriptions and shipping instructions without Buyer’s prior written consent.
7. Buyer’s Materials. All of Buyer’s tooling, goods and other property in Seller’s possession shall be held by Seller as bailee for hire for use only in filling orders from Buyer, shall be kept separate from other materials, and shall be clearly identified by Seller as Buyer’s property, and shall be fully insured by Seller. All such materials not consumed in the performance of this order shall be held by Seller pursuant hereto until Buyer otherwise directs. Seller waives and releases Buyer from, and Seller shall defend, indemnify and hold harmless Buyer from and against, all claims for damage to property and for injury or damage to Seller, its employees or others, arising out of or in connection with the presence or use of such materials whether such injury or damage is caused by defects in such material, Buyer’s negligence or otherwise.
8. Termination for Convenience. Buyer shall have the right to terminate this Purchase Order for convenience, in whole or in part, at any time, upon delivery of written notice thereof to Seller. Upon receipt of such notice, Seller shall immediately stop its performance and cancel all of its cancellable commitments pertaining to the terminated work and do only such work as is necessary to preserve and protect then existing work in progress. In the event of such termination, Buyer’s sole liability shall be limited to payment for (a) the Purchase Order price for goods previously completed and delivered in accordance with this Purchase Order and not previously paid for, plus (b) Seller’s costs incurred prior to the date of termination for work in progress pertaining to the Purchase Order and for all inventory acquired or ordered in good faith for the purpose of fulfilling this Purchase Order which Seller is unable to cancel or return or otherwise use, plus (c) Seller’s reasonable direct costs of cancelling the aforementioned cancellable commitments and preserving and protecting the work in progress. With Buyer’s written consent, Seller may sell or retain at an agreed price any work in progress or inventory, the payment for which by Buyer is provided for in item (b) above, and Seller shall credit Buyer the amount so agreed or received. Any such work in progress or inventory not so retained or sold shall be transferred and delivered by Seller in accordance with Buyer’s instructions. Appropriate adjustment will be made for delivery costs or savings incurred by Seller. In no event shall Buyer be liable to Seller hereunder for loss of any anticipated profits on any portion of Seller’s terminated work or for any indirect or overhead expenses of Seller, including without limitation, unabsorbed fabrication shop overhead. Seller’s cancellation charges shall be subject to Buyer’s audit. Seller will use good faith efforts to mitigate Buyer’s exposure and payments.
9. Tooling. Unless otherwise stated on the face hereof, Seller at its own expense shall furnish, keep in good condition, insure and replace when necessary all tooling and other materials necessary for the performance of this order. If Seller uses special tooling or other material relating principally to Buyer’s orders, Buyer at any time may purchase any such tooling or material for the unamortized cost thereof.
10. Buyer’s Proprietary Rights. Seller shall not use or disclose any of Buyer’s trade secrets or confidential information, whether or not designated as such, except as required for the purposes of filling this order. All inventions or ideas whether patentable or not made by or for Seller incident to the filling of this order shall vest in and inure to Buyer’s sole benefit. SELLER AGREES THAT ALL INFORMATION CONTAINED IN THE DRAWINGS, BLUEPRINTS, SPECIFICATIONS AND OTHER DOCUMENTS SUBMITTED BY BUYER TO SELLER HEREUNDER IS EXCLUSIVELY PROPRIETARY TO BUYER AND SHALL BE RETURNED TO BUYER UPON COMPLETION, EXPIRATION OR TERMINATION OF THIS PURCHASE ORDER OR IF REQUESTED BY BUYER. SELLER SHALL KEEP ALL SUCH INFORMATION STRICTLY CONFIDENTIAL. SELLER SHALL NOT, WITHOUT BUYER'S PRIOR WRITTEN CONSENT, USE SUCH INFORMATION IN WHOLE OR IN PART FOR ITS OWN BENEFIT OR TO BUYER'S DETRIMENT OR DISCLOSE SUCH INFORMATION IN WHOLE OR IN PART TO ANY OTHER PERSON.
11. Review of Seller's Drawings, Data and Work. Review by Buyer of any drawings, data or work provided by Seller shall be only for purposes of ascertaining general conformity with Buyer's specifications. The review by Buyer of any drawings, data and work does not include review of the efficacy, adequacy or safety of Seller's methods or the means adopted by Seller to perform its work, nor does it include a review of any detail, design or specification prepared by Seller for use in the fabrication of the goods purchased. Buyer's review of or comments upon any drawings, data or work of Seller or Buyer providing any drawings, data or work to Seller shall not relieve Seller from the entire responsibility for the correctness and adequacy of the engineering, design, workmanship, material, goods and all other services or for any other obligation of Seller. Any information furnished by Seller to Buyer in connection with the purchase of goods hereunder shall not be deemed to be confidential information and shall be acquired free from any restriction as part of the consideration for this Purchase Order.
12. Intellectual Property. SELLER REPRESENTS AND WARRANTS THAT ALL GOODS FURNISHED HEREUNDER WILL NOT INFRINGE UPON ANY UNITED STATES OR FOREIGN PATENT, TRADEMARK OR COPYRIGHT OR OTHER PROPRIETARY RIGHT. Seller at its expense shall defend (by counsel acceptable to Buyer), indemnify and hold harmless Buyer from any loss, cost, expense or damage incurred by Buyer and from and against all claims asserted against Buyer, its customers and users of the goods for infringement of any patent, trademark or copyright or other proprietary right by reason of the manufacture, use or sale of the goods or any part thereof. If the use or sale of the goods is held to infringe any such rights, Seller shall at its expense either procure for Buyer, its customers and users the right to continue using or selling said goods or replace them with a non-infringing product.
13. Compliance with Laws. In performance of its obligations hereunder, Seller shall comply with all applicable legal requirements; and all goods and services shall comply with and be produced in accordance with applicable law. Seller’s acceptance of this order and furnishing of goods and services hereunder shall constitute certification by Seller of such compliance. Seller shall furnish additional certificates and other evidence of compliance as Buyer shall request.
14. Equal Opportunity Clause. Seller shall not maintain segregated facilities or discriminate against any employees or applicants for employment because of age, race, color, religion, sex or national origin or on any other ground prohibited by law. Seller shall take affirmative action to ensure that applicants are employed, and that employees are treated well during employment, without regard to their age, race, color, religion, sex or national origin. Such action shall include without limitation the following: employment, upgrading, demotion, or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. Seller shall post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of the Equal Opportunity Act. Seller certifies that it does and will comply with all provisions of Executive Order, 11246, as amended, the Vietnam Era Veterans Readjustment Act, the Rehabilitation Act, all other equal employment opportunity laws and Executive Orders and of the rules, regulations and order of the Secretary of Labor, as amended, which are incorporated herein by reference. This Equal Opportunity Clause is hereby incorporated in every non-exempt contract between Seller and Buyer, and shall be contained in each non-exempt contract between Seller and its subcontractors.
15. Conflict Minerals. Seller shall ensure that all goods supplied that contain “conflict minerals” (i.e., columbite-tantalite (coltan), cassiterite (tin), gold, wolframite (tungsten), or their derivatives) are “DRC conflict-free” (i.e., that such “conflict minerals” do not directly or indirectly finance or benefit armed groups in the Democratic Republic of the Congo or an adjoining country). Seller has established appropriate policies, due diligence frameworks, and management systems that are designed to accomplish this goal. Seller shall provide such information to Buyer and take such other actions as Buyer requests to enable Buyer and its customers to comply with any applicable obligations under regulations of the Securities and Exchange Commission promulgated under Section 13(p) of the Securities Exchange Act of 1934, as amended.
16. Indemnification and Waiver. Seller shall defend, indemnify and hold harmless Buyer from any loss, damage, cost and expense sustained by Buyer and from and against all claims asserted against Buyer arising in whole or in part out of any act or omission of Seller, its agents, employees or subcontractors with respect to the good or services which are the subject of this contract including, without limitation, any actions arising out of the manufacture, use, storage, maintenance, repair or operation of any of Seller's goods unless such action directly results from the gross negligence of Buyer. Seller shall defend, indemnify and hold harmless Buyer from and against all claims asserted against Buyer for injuries to employees of Seller, its agents, representatives or subcontractors arising in whole or in part out of Buyer’s negligence. Seller hereby waives and releases Buyer from all rights of contribution or indemnity to which it may otherwise be entitled. As used in this paragraph 14, the term “Buyer” shall mean the Buyer, its officers, directors, agents, employees, subcontractors, parent, subsidiaries, divisions and affiliates.
17. Insurance. Seller shall furnish upon Buyer’s request insurance carrier’s certificates satisfactory to the Buyer showing that Seller has adequate Worker’s Compensation, General Liability, Product Liability, Motor Vehicle Liability and Property Damage insurance coverage and Buyer will be named as an additional insured party on such insurance. All such certificates shall specify that in the event of cancellation, at least thirty days prior written notice thereof shall be given to Buyer. The purchase of such insurance coverage or the furnishing of such certificates shall not satisfy Seller’s obligations or liability hereunder or in any way modify Seller’s indemnification of Buyer.
18. Remedies. Seller shall be liable for all damages, direct and indirect, resulting from its breach of any of the terms and conditions herein contained. Buyer’s rights and remedies hereunder shall survive delivery, acceptance or payment hereunder and shall be in addition to those provided in law or in equity.
19. Subsequent Sales. Buyer will resell the goods it purchases from Seller and therefore can not control its customer’s use or ordering of the goods. In no event shall Buyer be liable to Seller for anticipated profits or for incidental, special or consequential damages and in no case shall Buyer’s liability exceed payment of the purchase price allocable to the particular good or service or part thereof which directly gives rise to the claim.
20. Miscellaneous. This contract constitutes the entire agreement between the parties relating to the goods or services which are the subject hereof. No modifications shall be binding upon Buyer unless in a writing signed by Buyer’s authorized representative. This order is non-assignable by Seller. Buyer shall be entitled at all times to set off any amount owing at any time from Seller to Buyer against any amount payable at any time by Buyer. If any term or provision of this contract shall to any extent be invalid or unenforceable, the remainder of the contract shall not be affected thereby, and each term and provision of this contract shall continue to be valid and enforced to the fullest extent permitted by law and the invalid or unenforceable provision will be enforced to the maximum extent permitted under applicable law. No waiver by Buyer or default by Seller shall be deemed a waiver of any subsequent default. The captions used herein shall have no substantive significance.
21. Choice of Law and Jurisdiction. These terms and conditions shall be construed in accordance with the laws of the State of Illinois, without regard to principles governing conflicts of laws. Buyer and Seller consent to the jurisdiction and venue of the federal and state courts situated in or having their situs over Chicago, Illinois.
22. Attorneys’ Fees. If Buyer pursues any legal action to enforce any of its rights, Buyer shall be entitled to recover from Seller all reasonable attorneys’ fees, any arbitration costs, and all other costs and expenses incurred by Buyer in connection with such action.