Container Manufacturing, Inc. (“SELLER”)
TERMS AND CONDITIONS
GOODS ANDSERVICES COVERED BY THIS ORDER ARE BEING SOLD ONLY IN ACCORDANCE WITH THE TERMS AND
CONDITIONS CONTAINED HEREIN UNLESS ADDITIONAL TERMS OR MODIFICATIONS ARE SET OUT IN SELLER'S
QUOTATION (INCLUDING STATEMENTS ON THE REVERSE THHEREOF) OR ACKNOWLEDGMENT IF ANY, IN WHICH CASE
SUCH ADDTITIONS OR MODIFICATIONS SHALL APPLY. SELLER OFFERS TO SELL THE GOODS AND SERVICES
DESCRIBED HEREIN ONLY UPON THE TERMS AND CONDITIONS HEREIN UNLESS MODIFIED OR ADDED TO AS
AFORESAID. THE OFFER SHALL BE DEEMED ACCEPTED AND SHALL BECOME A BINDING CONTRACT ON THE TERMS AND
CONDITIONS CONTAINED HEREIN, (A) WHEN SIGNED AND RETURNED BY BUYER, OR (B) WHEN BUYER ISSUES ITS
ORAL OR WRITTEN ACKNOWLEDGEMENT, OR (C) WHEN SELLER COMMENCES PERFORMANCE, OR (D) WHEN BUYER
OTHERWISE ACCEPTS THIS OFFER. BY ACCEPTING THIS OFFER, BUYER WAIVES ALL TERMS AND CONDITIONS
CONTAINED IN BUYER’S PURCHASE ORDER OR OTHER DOCUMENTS WHICH ARE DIFFERENT FROM OR ADDITIONAL TO
THOSE CONTAINED HEREIN (WHETHER OR NOT BUYER SENDS ITS DOCUMENTS BEFORE OR AFTER SELLER SENDS THIS
FORM), AND ALL SUCH DIFFERENT OR ADDITIONAL TERMS AND CONDITIONS SHALL BE NULL AND VOID AND OF NO
1. Price. Prices are subject to change by Seller without notice. Increases in labor, freight and
material costs before completion of contract plus applicable overhead as well as surcharges may be
invoiced to Buyer.
2. Delivery or Performance. Seller will use reasonable commercial efforts to meet the delivery date
requested by Buyer but is not liable for any direct or indirect costs resulting from late delivery
Unless otherwise specified on the quotation or otherwise agreed to in writing all deliveries are
F.O.B. point of shipment. Shipment will be made in accordance with Seller’s written instructions.
Upon delivery of goods to carrier, Buyer assumes risk of all loss and damage resulting from any
cause whatsoever. Shipping, delivery or performance dates are approximate and are not guaranteed.
Seller reserves the right to ship and invoice for a quantity of goods which may vary up to ten
percent over or under the quantity specified and Buyer agrees to accept delivery and pay for such
revised quantity and consider the shipment to be complete. Partial deliveries shall be accepted by
the Buyer and paid for at contract prices and terms. Buyer shall have no right to delay the
delivery or shipment date. Seller may charge storage charges for any goods held for Buyer.
3. Warranty and Remedy. Subject to any express terms set out on the quotation or otherwise agreed
to in writing, Seller warrants to Buyer, for a period of 30 days from the date of shipment and/or
performance of services, that the goods delivered hereunder conform to Seller’s then Current
Specifications. Current Specifications means the current technical drawings of the manufacturer of
the goods. Materials and services furnished by Seller’s suppliers or subcontractors and supplied by
Seller to Buyer are warranted by Seller only to the extent of the supplier’s or subcontractor’s
express warranty to Seller and only to the extent such party honors its warranty after notification
by Seller. If during such period Buyer promptly notifies Seller in writing of any breach of such
warranty and complies with Seller’s applicable warranty procedures, Seller shall thereupon, at
Seller’s option, re-perform services, repair or replace any defective goods at Seller’s plant or
refund the price of the goods or services or part thereof which gives rise to the claim. The
foregoing shall constitute the sole and exclusive remedy of Buyer and the full liability of Seller
for any breach of warranty.
THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER
WARRANTIES, WHETHER WRITTEN, ORAL OR IMPLIED, INCLUDING ANY WARRANTY OF PERFORMANCE,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE FOREGOING WARRANTY SUPERSEDES AND EXCLUDES
ANY ORAL WARRANTIES OR REPRESENTATIONS, OR WRITTEN WARRANTIES OR REPRESENTATIONS MADE OR IMPLIED
INCLUDING, WITHOUT LIMITATION, IN ANY MANUAL, LITERATURE, ADVERTISING BROCHURE OR ANY OTHER
MATERIALS OR BASED ON CUSTOM OR OTHERWISE. ALL WARRANTIES OF PERFORMANCE, MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED.
Seller shall have no liability for any
damages or claims if Buyer uses goods that do not conform to Current Specifications. If Buyer has
made any repairs or alterations to any goods, Buyer will have waived all warranty claims. No
warranties may be assigned to any subsequent Purchaser or user of the goods or services.
4. Limitations of Liability of the Seller. The liability of the Seller on any claim of any kind,
including, without limitation, negligence, with respect to goods or services shall in no case
exceed the purchase price of the good or service
or part thereof which gives rise to the claim. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR SIMILAR DAMAGES (INCLUDING, WITHOUT
LIMITATION, LOST PROFITS OR ECONOMIC DAMAGES), OR FOR DAMAGES IN THE NATURE OF PENALTIES.
5. Use by Buyer. Buyer has sole responsibility for assessing and determining the suitability of any
services and goods supplied by Seller including all parts and components "(in this paragraph
referred to as Goods") for any use by the Buyer or its customers and Buyer agrees that it is not
relying on Seller in making such assessment or determination even if Seller provided assistance,
guidance or design. Buyer assumes full responsibility for any particular use or purpose. Buyer will
not order or use any Goods or services unless it is satisfied that the Goods or services are
suitable for Buyer’s use and conform to all of its requirements. Buyer agrees to store and use all
Goods and services in a safe manner. Seller draws the Buyer’s attention to the fact that not all
products are compatible with plastic, glass, metal or other substances and Buyer agrees not to use
any Goods with any abrasive, caustic or acid solutions or any other substance which may cause
injury to persons or property.
6. Indemnification and Waiver. Buyer shall defend, indemnify and hold harmless Seller from any
cost, loss or damage sustained by Seller and from and against all claims asserted against Seller by
Buyer or any other party with respect to the goods or services which are the subject of this
contract. This indemnity includes but is not limited to costs, loss, damages and claims arising in
whole or in part out of (a) failure of Buyer, its agents, employees or customers to follow
specifications, instructions, warnings or recommendations furnished by Seller, (b) failure of
Buyer, its agents, employees or customers to comply with all applicable laws and regulations,
including, but not limited to any applicable Federal, state and local laws and regulations
governing hazardous materials or safety, all as they may be amended or supplemented from time to
time, (c) misuse of the goods by Buyer, its agents, employees or customers including use of goods
with any substance that causes injury to person or property, (d) misrepresentation by Buyer, its
agents, employees or customers, (e) the sole or contributing negligence of Buyer, its agents,
employees or customers, or (f) alleged infringement of any patent, trademark or copyright as a
result of Seller’s performance in accordance with Buyer’s designs, plans, specifications or
directions, (g) any and all lawsuits, liabilities, damages, injuries, claims, demands and expenses
(including attorneys’ fees and legal expenses) of whatever kind and nature arising on account of
the manufacture, use, storage, maintenance or
repair of any of Seller’s goods regardless of by whomever manufactured, used, operated, maintained
or stored and/or arising as a result of claims based upon strict liability imposed upon Seller
except for claims directly resulting from
Seller’s gross negligence. Buyer hereby waives and releases Seller from all rights of contribution
or indemnity to which it may otherwise be entitled. As used in this paragraph 6, the term “Seller”
shall mean the Seller, its officers, directors, employees, parent, subsidiaries, divisions,
affiliates, successors and assigns. This Indemnity shall continue in full force and effect
notwithstanding the termination of any order or contract.
7. Limitation of Time within which to bring an Action. Unless Buyer commences an action against
Seller with respect to the goods or services which are the subject of this contract within one year
from the date of delivery of the particular good or service which gives rise to the claim, said
claim will be forever barred and waived and released by Buyer if it is not commenced by Buyer.
8. Force Majeure. Seller shall not be liable for any delay or other failure of performance due to
causes beyond its reasonable control, including without limitation acts of God, acts of Buyer, acts
of military or civil authorities, fire or other casualty, strikes, lockouts, weather, epidemic,
war, riot, delays in transportation or car shortages, inability to obtain necessary labor,
materials, components, equipment, services, energy or utilities through Seller’s usual and regular
sources at usual and regular prices or failure or inability of the manufacturer of the goods to
perform. In any such event, Seller may, with notice to Buyer, at any time and from time to time
without further liability to Buyer (a) postpone its performance, (b) make partial performance or
cancel all or any portion of this contract or (c) allocate available quantities among its customers
in any manner which Seller deems reasonable. Cancellation of any part of this contract shall not
affect Seller’s right to payment for performance of any other part hereof.
9. Cancellation by Buyer. Buyer may cancel this contract only upon Seller’s written agreement and
payment of reasonable cancellation charges. Such charges may include without limitation, (1) the
price for goods, services and raw materials completed or ordered prior to Seller’s receipt of such
notice together with reasonable profit thereon, (2) all costs previously incurred in connection
with uncompleted goods or services together with reasonable profit thereon, and (3) all other
expenses incurred by Seller by reason of such cancellation.
10. Credit and Collection. Seller is relying upon Buyer’s representation of solvency and if Seller
at any time reasonably believes that Buyer is insolvent or its credit is impaired, Buyer shall be
in material breach hereof and Seller may, without liability to Buyer, withhold performance, change
payment terms and/or repossess goods previously delivered. Title to goods shall remain in Seller
until payment in full is received. In extending any credit hereunder, Buyer shall pay to Seller
interest on the unpaid amount at the maximum annual rate permitted by law or 1-1/2% per month,
whichever is less and if Buyer fails to pay according to the terms of this contract, Seller may
make such charges and may also collect the amount unpaid with Buyer being liable to Seller for all
costs of collection including attorney’s fees and court costs.
11. Financial Responsibility of Buyer. If Seller shall at any time doubt Buyer’s financial
responsibility, Seller may demand adequate assurance of due performance or decline to make any
further shipments except upon receipt of cash payment in advance or security. If Seller demands
adequate assurance of due performance and the same is not forthcoming within 10 days after the date
of Seller’s demand, Seller may at its option (1) defer shipments under any order from Buyer which
Seller has accepted until adequate assurances are received or (2) cancel this order and any other
order from Buyer which Seller has accepted and recover damages.
12. Attorneys’ Fees. If Seller pursues any legal action to enforce any of its rights, Seller shall
be entitled to recover from Buyer all reasonable attorneys’ fees and all other costs and expenses
incurred by Seller in connection with such action.
13. Taxes. All taxes and other charges imposed by federal, state, local or foreign governments on
the manufacture, sale, shipment, import, export or use of the goods (other than income taxes) are
not included in the price and shall be paid by Buyer. It is recognized that the applicable tax, the
applicable tax rate and methods of collection of taxes may change, but any such change shall not
alter Buyer’s obligation to pay such taxes. Buyer shall defend, indemnify and hold harmless Seller
from and against all liabilities for such taxes or charges and attorney’s fees or costs incurred by
Seller in connection therewith. If applicable, Buyer shall provide Seller with a tax exemption
certificate from the taxing authorities.
14. Buyer’s Materials. All of Buyer’s tooling, goods, and other property in Seller’s possession
shall be fully insured by Buyer and Buyer releases Seller from all liability for loss or damage to
such material caused by Seller’s negligence or otherwise.
15. Proprietary and Intellectual Property Rights of Seller. Seller shall be the sole owner of all
drawings, inventions, tooling and improvements made by the Seller in connection with the
performance of this contract as well as any intellectual property rights arising therefrom. In the
event that intellectual property rights do arise, Buyer shall provide all reasonable assistance, at
Seller's expense, to enable Seller to secure such rights. Buyer shall not reproduce any drawing
furnished by Seller. Buyer shall not use or disclose any information it knows or reasonably should
know to be a trade secret of confidential information of the Seller, except as required in
connection with the use or resale of the goods or services covered by this contract or in response
to a court order, in which case Seller shall be given timely notice of the order in order to allow
it adequate time to make representations to the Court that the information should not be disclosed.
16. Advice and Assistance. Upon request, Seller in its discretion may furnish to Buyer technical
advice, design services or assistance regarding the goods or services. Seller assumes no obligation
or liability for the advice, services or assistance given or results obtained, which shall be at
Buyer’s sole risk.
17. Miscellaneous. Unless modifications or additions are effected by a specific quotation as noted
above, this contract constitutes the entire agreement between Buyer and Seller relating to the
goods or services which are the subject hereof. No modifications shall be binding upon the Seller
unless in writing signed by Seller’s duly authorized representative. If any term or provision of
this contract shall to any extent be invalid or unenforceable, such provision will be enforced to
the maximum extent permitted by applicable law and 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. No waiver by either party of default shall be
deemed a waiver of any subsequent default. The captions used herein shall have no substantive
18. Choice of Law. These terms and conditions shall be construed in accordance with the laws of the
State of New Jersey,
without regard to principles governing conflicts of laws.