1. AGREEMENT: All sales by Grand Rapids Label Company, a Michigan corporation (“Seller”) shall be governed by the terms set forth on Seller's invoice (“Order”) and these terms and conditions. The agreement between Seller and the buyer identified on the face of the Order (“Buyer”) with respect to the sale of goods and other items described thereon (“Goods”) shall consist only of the Order and these terms and conditions. In the event of any conflict between these terms and conditions and the Order, these terms and conditions shall control unless expressly agreed otherwise by Seller in writing. Seller objects to and shall not be bound by any additional or different terms in any subsequent communication from Buyer to Seller. Notwithstanding any contrary provision in Buyer’s purchase order, no action by Seller, including delivery of Goods, will be deemed an acceptance by Seller of any purchase order from Buyer with terms which are different than or additional to those contained in the Order or these terms and conditions.
2. PRICE: Prices are based on estimated annual volumes provided by Buyer, bulk packaging, and agreed upon standard pack quantities set forth in the Order. Quoted prices are valid for 30 days from date of quotation. Prices are in U.S. Dollars and may be subject to change. If a supplier raises its prices or imposes a surcharge on Seller, Seller reserves the right to increase prices or institute surcharges on the Goods, and Buyer agrees to accept such increases or surcharges until the termination of such price increase or surcharge or until the termination of the Order. Any contractual price agreements with a duration over 12 months may be subject to price adjustments if any supplier raises prices by more than 5% over a 12-month period. 30 days advance notice will be provided for contractual price changes and available documentation will be provided. Material price baseline is based on quotation date. Prices are F.O.B. Seller’s shipping point unless otherwise stated on the face of the Order. Unless otherwise provided in the Order, prices of Goods are exclusive of freight costs and any applicable sales, use or other taxes or duties, all of which shall be paid by Buyer.
3. PAYMENT TERMS: Unless otherwise provided in the Order, all amounts due to Seller will be paid by Buyer within 30 days of the date of Seller’s invoice. Payments shall be made to Seller at the address specified in the Order, without any offset or deduction for any reason, and Buyer specially waives all rights of offset and deduction. When any payment is not paid on or before its due date, Buyer agrees to pay a late charge on the sum outstanding, from the due date for receipt of payment to the actual date of receipt of payment, at a rate of 2.0% per month on the unpaid balance. If a payment is not paid on or before its due date, Buyer agrees that Seller may also cease performance under any and all of Buyer’s Orders whether or not related to the late payment. Buyer agrees to reimburse Seller for all costs (including, without limitation, attorneys’ fees and court costs), incurred in the collection of any overdue amount. Seller reserves a security interest in the Goods until Seller has received payment in full of all amounts owed to Seller. Buyer shall execute any document and take any action necessary or desirable to perfect, protect and enforce Seller’s security interest in the Goods. Buyer authorizes Seller to file on Buyer’s behalf and at Buyer’s expense any financing statement or similar document relating to the Goods without Buyer’s signature.
4. DELIVERY: Delivery dates are not guaranteed but are estimated on the basis of immediate receipt by Seller of all information to be furnished by Buyer, and all shipments are subject to Seller’s production schedule. Buyer shall thoroughly inspect all Goods immediately upon delivery. Buyer must provide Seller with written notice of any damage, loss, shortage or nonconformity of the Goods within five days after Buyer’s receipt of Goods. If Buyer fails to give such notice, Buyer shall be deemed to have accepted the Goods and Buyer shall pay for the Goods in accordance with the terms of the Order. Buyer expressly waives any rights Buyer may have to revoke acceptance after such five-day period. Buyer requests for delay of shipment for up to two weeks may be allowed, at Seller’s sole discretion. Seller will not be liable for any delay in delivery of Goods when the delay is caused directly or indirectly by fire, flood, frost, disease, accident, riot, acts of God, war, terrorism, governmental interference, national emergency, strikes or other labor difficulties, shortage of labor, fuel, power, raw materials or supplies, transportation delays, or any other cause or causes whatsoever beyond its control. In the event Seller is delayed in performance by Buyer, Buyer will be responsible for any resulting increase in cost, including handling charges, insurance charges and storage charges, and Seller may invoice Goods ready for shipment with payment to be made in accordance with the payment schedule as if the Goods had been shipped. Seller will not stock finished Goods unless Buyer and seller agree to specific lead times, order quantities, order frequency and obsolescence disposition. Buyer is required to provide 120 days’ notice on Goods pending obsolescence. In the absence of such notice, Buyer will be responsible for full value of obsolete Goods under the terms of their stocking agreement. If Buyer has provided annual expected volumes, Seller may purchase material to improve lead times. Buyer is required to provide 90-day notice of reductions in volumes or pending obsolesce. In the absence of such notice, the buyer is responsible for cost of on hand inventory not to exceed 25% of the annual expected sales. In the event delay is caused by Buyer’s failure to furnish information necessary for Seller’s performance, Seller may extend the shipment date for a reasonable time in proportion to the period of Buyer’s delay. In the event of any reschedule of delivery of Goods by Buyer for a period of more than two weeks, inventory carrying charges will be assessed at a reasonable rate until such Goods are shipped. Each installment of Goods to be delivered pursuant to the Order is to be considered as a separate sale, and Buyer shall be liable to pay the agreed price for each such installment without regard to any failure to deliver other installments or any right to offset against such installments. Seller’s breach or default in the delivery of any installment shall not give Buyer the right to refuse to receive any other installments.
5. SHIPPING; RISK OF LOSS: Buyer assumes all risk of loss of Goods upon delivery of Goods by Seller to the designated carrier. To the extent set forth in the Order, Seller agrees to package the Goods, put them in the possession of a carrier, and obtain and deliver documents necessary to enable Buyer to obtain possession of the Goods. Seller shall not be obligated to obtain insurance or to prepay transportation costs. Buyer agrees to pay all loading, unloading, and other charges incidental to transportation. Seller will use commercially reasonable efforts to follow Buyer’s shipping instructions, but Seller may make commercially reasonable changes to such instructions. Breach of the Order or these terms and conditions shall have no effect upon this provision controlling the risk of loss.
6. CHANGES: Changes in the Order may be made only if Buyer submits written instructions for such changes and an authorized agent of Seller accepts those changes in writing. If any such approved changes increase Seller’s costs in Seller’s reasonable judgment, Seller may condition approval of any such change on agreement by Buyer to a price increase to recoup such cost increase, plus reasonable return. Any change to estimated annual volumes, Order quantities, design, or special packaging may result in modifications to pricing. Seller shall determine the quantity of Goods per container and carton size.
7. CANCELLATION: Neither the Order nor any related purchase order may be terminated, cancelled, or modified (in whole or in part) except with Seller’s prior written consent. Seller may terminate the Order at will. In the event of any termination or cancellation of all or part of the Order by Buyer, Buyer agrees to pay Seller for all reasonable and allocable materials, management, labor, overhead, and general and administrative costs and expenses incurred as a result of any such termination or cancellation, plus a reasonable profit. In the event of any termination or cancellation, inventory carrying charges will be assessed at a reasonable rate on the value of such inventory until the relevant inventory is disposed of.
8. LIMITED WARRANTY: Seller warrants to Buyer that, at the time physical possession of the Goods passes to Buyer or when title of the Goods passes to Buyer (whichever is earlier): (a) the Goods shall materially correspond with the specifications expressly set forth in the Order; and (b) the Goods shall be in material compliance with applicable laws and regulations. Seller shall not be liable on any claim regarding the Goods that is not made within thirty (30) days after such date. EXCEPT FOR THE EXPRESS WARRANTIES ABOVE, SELLER MAKES NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY SPECIFICALLY DISCLAIMED BY SELLER AND WAIVED BY BUYER. Seller’s warranty coverage does not include Goods subjected to misuse, abuse, neglect, damage, accident or improper storage or which have been altered by anyone other than Seller or its authorized representative. Products manufactured by a third party ("Third Party Product") may contain, be attached to or packaged together with, the Goods. Third Party Products are not covered by the warranty in this Section. For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
9. REMEDIES: Seller’s sole obligation under the foregoing warranties shall be limited to, at Seller’s exclusive option, repairing or replacing defective Goods or refunding the purchase price paid for such Goods, and Buyer’s exclusive remedy for breach of any of such warranties will be enforcement of such obligation of Seller. In the event Buyer claims Seller has breached any of its obligations under the Order or these terms and conditions, whether of warranty or otherwise, Seller reserves the right to inspect any claimed defect to determine if Seller has any obligations hereunder, and Seller may request the return of the Goods (or a sample of the defective Goods or test results) to Seller at Buyer’s expense. No Goods may be returned without Seller’s prior written consent. No credit or return authorization of any nature will be granted for Goods with any form of customization. The remedies contained in this Section shall constitute the sole recourse of Buyer against Seller for breach of any of Seller’s obligations under the Order and these terms and conditions. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR DAMAGES ARISING FROM ANY DEFECT, FAILURE, NONCONFORMITY OR MALFUNCTION OF THE GOODS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE. IN ADDITION, IN NO EVENT SHALL SELLER’S LIABILITY ON ANY CLAIM FOR DAMAGES ARISING OUT OF OR CONNECTED WITH THE ORDER OR THE MANUFACTURE, SALE, DELIVERY, OR USE OF THE GOODS EXCEED THE PURCHASE PRICE OF THE GOODS PREVIOUSLY PAID BY BUYER UNDER THE APPLICABLE ORDER.
10. INDEMNIFICATION: Buyer hereby agrees to indemnify, defend and hold harmless Seller and its members, managers, officers, employees, affiliates, agents, successors and assigns from and against any and all damages, losses, liabilities, claims, suits, or expenses of any kind or nature whatsoever (including reasonable attorneys’ fees and court costs) arising out of or relating to: (a) the negligence or willful misconduct by Buyer or its employees, contractors, agents or representatives; (b) any breach of the Order, these terms and conditions or Buyer’s representations, warranties and covenants contained herein by Buyer; (c) any flaw or error in any designs, specifications or instructions provided by Buyer or its affiliates; (d) any infringement by the Goods of any third party trademark, copyright, patent or other intellectual property right, to the extent such infringement arises out of any intellectual property provided by Buyer or its affiliates; or (e) the continued use of any Goods which are known by Buyer to be defective or which are rendered defective by misuse or abuse.
11. CONFIDENTIAL INFORMATION: Any technical information disclosed by either Buyer or Seller to the other is proprietary to each and may not be used or disclosed by the other without the written consent of the owner of the technical information. Any technical information owned or developed by Seller, including, but not limited to, patents, trademarks, copyrights, know-how and proprietary information, and used for the supply of Goods under the Order shall remain the sole and exclusive property of Seller.
12. LAWS AND REGULATIONS: In connection with the Goods, Buyer shall comply with all applicable federal, state, and local laws, statutes and ordinances.
13. ASSIGNMENT: Buyer shall not (by operation of law or otherwise) assign its rights or delegate its performance under the Order without the prior written consent of Seller, and any attempted assignment or delegation without such consent shall be null and void.
14. GOVERNING LAW; VENUE: The Order and these terms and conditions shall be governed by and interpreted in accordance with the laws of the State of Michigan, exclusive of any conflict of laws principles. Any and all actions concerning any dispute relating to the supply of Goods shall be filed and maintained in the Circuit Court of Kent County, Michigan or the federal District Court for the Western District of Michigan. Buyer and Seller specifically consent and submit to the exclusive jurisdiction and venue of such state or federal court, and irrevocably waive any objections either may have based on improper venue or forum non conveniens to the conducting of any proceeding in any such court.
15. MISCELLANEOUS: The Order and these terms and conditions, constitute the entire agreement of the parties with respect to the matters covered thereby, and supersede all prior oral and written agreements or understandings relating to the subject matter hereof, including Buyer’s quotations, proposals, acknowledgments and other documents. No course of dealing, course of performance, usage of trade or other agreement or understanding that purports to amend, add to, omit or waive terms and conditions from the Order or these terms and conditions shall be binding unless made in writing and signed by Buyer and Seller. The failure of either party to insist on performance of any provision of the Order shall not be construed as a waiver of that provision in any later instances. The Order shall be for the benefit of Seller and Buyer and not for the benefit of any other person or entity
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