1. Applicability. All sales by Inovar Packaging Group, LLC, a Texas limited liability company (“Seller”), are subject to these Standard Terms and Conditions of Sale (these “Terms and Conditions”), unless expressly varied in a specific contract executed by Seller. These Terms and Conditions, together with any Seller quotation or purchase order (a “Purchase Order”), constitute the entire agreement between Seller and the party to whom the Purchase Order is addressed (“Buyer”) as it relates to Buyer’s purchase of the products described in such Purchase Order (the “Products”), and supersede any and all prior or contemporaneous written or oral agreements, correspondence, quotations, understandings, negotiations or discussions between Buyer and Seller with respect to their subject matter.
2. Purchase Orders. Any Purchase Order accompanying these Terms and Conditions shall constitute only an offer by Seller to Buyer to sell the Products and/or perform the applicable services, if any, described in the Purchase Order (collectively, the “Work”), as applicable, subject to these Terms and Conditions. Neither the Purchase Order nor these Terms and Conditions shall constitute an acceptance of any offer made by Buyer. If, notwithstanding the foregoing, any acceptance of an offer by Buyer is deemed to be made hereby, such acceptance is expressly conditioned upon Buyer’s assent to these Terms and Conditions. Seller hereby objects to any additional or different terms that may be contained in any of Buyer’s purchase orders, acknowledgements or other forms, or in any other communication received from Buyer. All inconsistent or additional terms, modifications, or changes are deemed material, are expressly rejected, and do not form a part of this Agreement unless Seller agrees to such terms in writing. TERMS THAT ARE PRINTED ON OR CONTAINED IN A PURCHASE ORDER OR OTHER FORM PREPARED BY BUYER THAT ARE ADDITIONAL TO, IN CONFLICT WITH, OR INCONSISTENT WITH THESE TERMS AND CONDITIONS ARE, UNLESS SPECIFICALLY AGREED TO IN WRITING BY A DULY AUTHORIZED REPRESENTATIVE OF SELLER, REJECTED BY SELLER AND SHALL HAVE NO FORCE OR EFFECT.
3. Acceptance. No order shall be binding on Seller until accepted by Seller. An individual contract for the supply of Products, on these Terms and Conditions, is formed on acceptance by Seller of an order from Buyer. Seller reserves the right to accept any order in whole or in part. Where Seller makes a part delivery of any order, such delivery shall constitute a separate contract. No order may be cancelled or varied after acceptance by Seller.
4. Prices; Taxes and Fees. Unless otherwise specified in writing, price quotations, whether in a Purchase Order or otherwise, are valid for a maximum of 30 days. Unless otherwise stated in the Purchase Order, all prices are exclusive of any applicable federal, state or local sales, use, excise, other similar taxes, delivery and transportation fees, and all such taxes and fees related to the Products shall be the responsibility of Buyer. Quoted prices are based upon the quantity and type of Product specified, and may be changed at any time prior to Buyer’s acceptance of a Purchase Order.
5. Payment Terms. Unless otherwise agreed, payment is due as follows: Net 30. If Buyer fails to make any payment when due, Buyer shall be liable for all costs and expenses related to collection of past due amounts, including reasonable attorneys’ fees.
6. Security Interest. To secure payment of all amounts due, Buyer grants to Seller a security interest in the Products purchased and in the proceeds of such Products. At Seller’s request, Buyer will promptly sign financing statements and any other documents appropriate to perfect and/or continue the security interest; provided that Buyer authorizes Seller to file any such financing statements or other documents to perfect this security interest at any time.
7. Delivery; Risk of Loss. Any stated delivery time represents Seller’s intended or typical delivery time, but actual delivery times may vary. Seller reserves the right to limit quantities at any time. Unless otherwise agreed, all sales are FOB Seller’s shipping point, and title and risk of loss or damage transfers to Buyer at that point or, if delivered directly by Seller, upon delivery to Buyer.
8. Inspection; Claims. Buyer shall carefully inspect all Products and shipping documents promptly upon delivery. No claim for shortages or Products damaged during delivery will be valid or enforceable against Seller unless (a) Buyer notifies Seller in writing specifying in detail the shortage or damage within five days from the date of delivery; (b) Buyer returns the damaged Products to Seller within 10 days following delivery; (c) upon return, Seller confirms such damage; and (d) Buyer has fulfilled all of the payment terms. Buyer’s notice must be accompanied by the original freight bill, with notation on the face thereof by an authorized agent for the carrier as to the Products claimed to be short or damaged during transit. Buyer shall be deemed to have waived any claim for shortages or Products damaged in transit if Buyer fails to so notify Seller within five days following delivery. Any processing or use of the Products by Buyer, other than return to Seller, shall be conclusive as to Buyer’s acceptance of the Products as being satisfactory and in accordance with these Terms and Conditions.
9. Cancellation and Returns. Buyer may not cancel any order of Products for Buyer’s convenience without Seller’s prior written consent. Seller may, in its sole discretion, authorize Buyer in writing to cancel Products normally carried in Seller’s inventory. Any cancellation so authorized shall be subject to a cancellation charge. Buyer may not cancel any processed Products, specially manufactured Products, or Products not normally carried in Seller’s inventory.
10. Use of Buyer’s Marks; Indemnification. Buyer hereby grants to Seller a limited, royalty-free license for Seller to use Buyer’s artwork, logos, trade names and other marks (“Buyer’s Marks”) for the purpose of performing the Work. Buyer shall defend at its own expense Seller and its directors, officers, employees, agents and affiliates from and against any and all third party claims, demands, suits or actions resulting from, arising out of or relating to Seller’s use of Buyer’s Marks in performing the Work. In addition, Buyer hereby grants to Seller a limited, royalty-free, revocable license to display Buyer’s Marks in Seller’s sales brochures, on its corporate website, and as examples of the type and quality of work that Seller performs.
11. Confidentiality. Buyer hereby agrees all pricing and sales information provided by Seller to Buyer shall be deemed Seller’s confidential information, and Buyer shall not disclose such confidential information to any other person or entity, and shall use the same degree of care to avoid publication or dissemination of such confidential information as Buyer employs with respect to its own information which it does not desire to have published or disseminated.
12. Limited Warranty; Damages. Seller warrants that the Products shall be free from defects in material and workmanship at the time of shipment from Seller’s facility or other place of shipment. THIS LIMITED WARRANTY IS THE ONLY WARRANTY MADE BY SELLER, AND IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY STATEMENTS MADE BY EMPLOYEES, AGENTS OF SELLER OR OTHERS REGARDING THE PRODUCTS OR WORK. THE SOLE AND EXCLUSIVE REMEDY OF BUYER FOR ANY BREACH OF THE FOREGOING WARRANTY SHALL BE REPLACEMENT OR REPAIR OF THE PRODUCTS AND/OR WORK OR A REFUND OF THE PURCHASE PRICE OF SUCH PRODUCTS AND/OR WORK, WHICH REMEDY SHALL BE DETERMINED BY SELLER IN SELLER’S SOLE DISCRETION. IN NO EVENT SHALL SELLER BE LIABLE FOR LOST PROFITS OR OTHER SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF SELLER TO BUYER AND OTHERS ARISING FROM ANY CAUSE WHATSOEVER IN CONNECTION WITH ANY PRODUCT OR WORK COVERED HEREBY SHALL, UNDER NO CIRCUMSTANCES, EXCEED THE PURCHASE PRICE PAID FOR THE PRODUCT OR WORK BY BUYER. Any description of the products, whether made in writing or orally by Seller or Seller’s agents, or in any Purchase Order, specifications, samples, models, bulletins, drawings, diagrams, engineering sheets, catalogues, product brochures, photographs and/or other illustrations are for the sole purpose of identifying the Products and shall not be construed as an express warranty and shall not form part of the terms of the transaction between Seller and Buyer unless expressly confirmed to be such in writing by Seller.
13. Termination. Seller reserves the right to terminate the Purchase Order in whole or in part for convenience upon written notice to Buyer.
14. Force Majeure. Seller shall not be liable to Buyer for any delay or failure in performance caused by acts beyond Seller’s control, including but not limited to: acts of God, war, vandalism, sabotage, accidents, fires, floods, strikes, labor disputes, mechanical breakdown, shortages or delays in obtaining suitable parts or equipment, material, labor or transportation, acts of any unit of government or a governmental agency, or any similar cause, the non-occurrence of which was a basic assumption of the parties.
15. Prevailing Party. In the event of any claim, dispute or controversy arising out of or relating to these Terms and Conditions, the prevailing party shall be entitled to recover its attorneys’ fees, arbitration costs and court costs from the non-prevailing party.
16. Assignment; Third Parties. Buyer may not delegate or assign its rights or obligations without Seller’s prior written consent. Any delegation or assignment without such written consent shall be null and void, and without any legal force or effect. Notwithstanding Seller’s consent to any assignment or delegation by Buyer, these Terms and Conditions shall be fully binding on Buyer, its successors and permitted assigns. These Terms and Conditions shall not be deemed or construed as granting or conferring any rights in or providing any basis for claims by third parties.
17. Waiver. Any waiver of these Terms and Conditions, to be valid or binding, must be in writing and signed by the party against which such waiver is to be enforced, and shall not constitute a continuing waiver of any other breach or default, and acceptance by Seller of any payments with knowledge of any breach or default shall not constitute such waiver. No omission or delay by either party in exercising any right, power or privilege shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or further exercise thereof or exercise of any other right, power, or privilege.
18. Governing Law; Disputes. These Terms and Conditions and any subsequent sales agreements between Seller and Buyer shall be governed by the laws of the State of Texas without regard to its conflicts of law principles. Any controversy or claim arising out of or relating to these Terms and Conditions or any Purchase Order shall be settled by final and binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and shall be conducted in Dallas, Texas. Judgment on the award rendered by the arbitrator may be entered by any court in Dallas County, Texas, having jurisdiction thereof. Claims shall be heard by a single arbitrator. The place of arbitration shall be Dallas, Texas.
19. Severability. In the event that any provision of these Terms and Conditions is determined to be unenforceable or invalid under any applicable law or be so held by applicable court or arbitration decision, such unenforceability or invalidity shall not render these Terms and Conditions unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court or arbitration decision.
20. Notices. All notices required or permitted to be given hereunder shall be in writing and may be delivered by hand, by facsimile, by electronic transmission in .PDF format or similar format, by nationally recognized private courier, or by U.S. mail, to (a) Seller at 611 Magic Mile, Arlington, Texas 76011, attn: Todd Tubbs, Vice President, email: firstname.lastname@example.org, fax: (817) 275-2770, or (b) Buyer at the address indicated in the Purchase Order, or to such other respective addresses as may be designated by notice given in accordance with this Section 20. Notices delivered by hand shall be deemed delivered when actually delivered. Notices delivered by facsimile or by electronic transmission shall be deemed given on the date of receipt, provided that a party sending notice by facsimile or electronic transmission will bear the burden of authentication and of proving transmittal, receipt and time of receipt. Notices given by a nationally recognized private courier shall be deemed delivered on the date delivery is promised by the courier. Notices delivered by mail shall be deemed given three business days after being deposited in the U.S. mail, postage prepaid, registered or certified mail, return receipt requested.