Stack Plastics, Inc. Terms and Conditions
(Vendors see page 3)
Any quotation (or acceptance of a customer’s purchase order (“Purchase Order”) (together with these terms and conditions, this “Quotation”) for the sale of goods (the “Goods”) by Stack Plastics, Inc. (“Stack”) to the buyer (“Buyer”) is subject to the following terms and conditions:
1. Terms and Acceptance. Prices quoted are for a period of ninety days from the date on the front of this Quotation. No contract will result from this Quotation unless and until a purchase order, upon the terms and conditions set forth herein, is accepted in writing by Stack. Stack may withdraw this Quotation without notice at any time prior to acceptance by Buyer. If this Quotation is provided to Buyer in response to Buyer’s written or oral offer to purchase the Goods and if Buyer’s offer contains provisions inconsistent with or in addition to the terms and conditions of this Quotation (collectively, the “Conflicting Terms”), this Quotation shall be considered a counteroffer to sell the Goods to Buyer under the terms and conditions herein, and any Conflicting Terms shall be void and of no force or effect. Buyer’s acceptance of any such counteroffer is exclusively limited to the terms and conditions set forth herein.
2. Payment. Stack shall invoice Buyer for the purchase price at the time of shipment (defined below). The purchase price shall be due and payable as stated and agreed upon in the acceptance of the purchase order.. If Buyer’s credit is impaired at any time, or if delivery is unreasonably delayed through any fault of Buyer, at Stack’s sole discretion Stack may require payment in advance. A late payment charge of 1.5% per month (or the highest rate allowed by law, whichever is lower) on the unpaid balance will apply to all amounts not paid by the due date.
3. Price Adjustment; Modification of Order. Prices quoted are based upon continuous operation of molds and availability of raw materials unless otherwise specified and agreed to in writing by Stack. The quoted price is subject to increase if production of the Goods involves non-continuous operation of the molds, and if the cost of materials, energy, or labor increases if the full delivery of goods exceeds six months from the date of acceptance of the Purchase Order Any requests by Buyer to modify the quantity, delivery date, or other specification regarding the Goods will be subject to Stack’s prior written approval and the prices quoted may be adjusted. Typographic and clerical errors in this Quotation and in any purchase order, acknowledgement or invoice are subject to correction by Stack.
4. Taxes, Duties and Licenses. Buyer agrees to pay any and all applicable federal, state and local taxes (domestic and foreign) to which the Goods may be subject, including, without limitation, excise taxes, sales taxes, property tax, value-added taxes and use taxes, duties and license fees.
5. Cancellation. ALL SALES ARE FINAL. Buyer may not cancel an order accepted by Stack or return non-defective Goods without Stack’s written consent, which may be denied at Stack’s sole discretion. If an order is cancelled, Buyer will pay to Stack all costs and expenses incurred by Stack in connection with the cancelled orders, including the costs of preparing the equipment for the manufacture of the Goods and the costs of materials (including color concentrate), as well as the full purchase price of all Goods already produced or in production. A 15% charge will be added to all costs of expenses incurred.
6. Tools and Equipment. All non-customer purchased, dies, jigs, gauges, fixtures, or other equipment used by Stack in producing Goods shall remain the property of Stack, unless provided otherwise in writing.
7. Delivery. All prices are FOB Stack’s shipping bay and do not include any shipping charges, which are the sole responsibility of Buyer. Delivery of the Goods (“Delivery”) shall be deemed to occur when Stack notifies Buyer that the Goods are available for pickup at Stack’s shipping bay, and title and risk of loss shall pass at such time. . The Goods may be delivered in one or more Deliveries as Stack may reasonably determine to be most expedient. [Buyer agrees that Stack may deliver 10% more or less than the quantity of Goods ordered and that such Delivery shall satisfy Stack’s obligations with respect to Delivery of the Goods. Buyer shall accept and pay for the actual quantity of Goods delivered on a pro-rata price basis.]
8. Inspection; Buyer’s Remedies. Buyer shall have ten business days following Delivery to inspect the Goods for conformance with the applicable specifications and if Buyer fails to give written notice of acceptance or non-conformance within such ten business day period the Goods shall be deemed accepted. If Buyer gives timely written notice of non-conformance, and if (a) such non-conformance is established under procedures customary in the industry or otherwise established to Stack’s satisfaction and (b) on Stack’s request Buyer promptly returns to Stack all or part of the Goods alleged by Buyer to be non-conforming, then at Stack’s sole discretion Stack may make a pro rata refund of the purchase price to Buyer or provide repaired or replacement Goods. A cash refund will not be allowed at any time.
9. WARRANTY; EXCLUSION OF WARRANTIES. Stack warrants that, at the time of Delivery, the Goods will be free from defects in material and workmanship that render the Goods unable to meet the specifications of this quotation / customer drawing. THIS WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL OTHER OBLIGATIONS OR LIABILITIES ARISING OUT OF STACK’S OBLIGATIONS HEREUNDER, INCLUDING LIABILITIES ARISING FROM CLAIMS OF CONTRACT OR TORT. STACK SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INDIRECT, PUNITIVE OR INCIDENTAL DAMAGES. STACK’S LIABILITY FOR ANY CLAIM ARISING HEREUNDER OR UNDER ANY PURCHASE ORDER OR ACCEPTANCE OR WITH RESPECT TO ANY GOODS SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY BUYER FOR SUCH GOODS
10. Indemnity. Buyer shall indemnify, save and hold harmless Stack from any and all loss, cost, expenses and damages, including reasonable attorneys’ fees, on account of claims, demands, actions and proceedings, concerning the Goods: (a) alleging infringement of intellectual property rights; (b) arising out of any change to, or alteration of the Goods by Buyer or any third party; (c) involving the use by Buyer or a third party in a manner or application not intended by Stack; or (d) involving any negligence whatsoever on the part of Buyer or any third party.
11. Stack’s Remedies. In the event of any breach or default by Buyer, Stack may pursue any of the following remedies, each of which is exclusive of, cumulative with, and in addition to any other right or remedy of Stack: (a) terminate or cancel this Quotation, (b) retain any down payment made by Buyer and/or the proceeds of the security interest in the Goods (described below), and apply it to damages hereunder or to the reduction of any other amount owed by Buyer to Stack, and (c) pursue any other remedies available at law or in equity. If Stack incurs expenses in attempting to collect any amount owed or to enforce any term or condition of this Quotation, including, without limitation, court costs, expenses and attorneys’ fees, then Buyer will pay to Stack, in addition to any other sums owed or relief sought, all such expenses to the fullest extent permitted by law.
12. Security Interest. Stack reserves a purchase money security interest in the Goods sold and the proceeds thereof, in the amount of the price quoted therefore. In the event of a default in any of Buyer’s obligations to Stack, including without limitation a failure to make payments when due, Stack may immediately repossess the Goods sold hereunder, with no requirement of notice or opportunity to cure. On request of Stack, Buyer agrees to execute financing statements and other instruments that Stack may request at any time and from time to time to perfect Stack’s security interest. Buyer agrees to provide any duly authorized representative of Stack with the opportunity, during Buyer’s normal business hours upon reasonable advance notice, to inspect any inventory of Goods for which payment in full has not been made.
13. Force Majeure. Stack shall not be liable to Buyer for any damages, costs, expenses or other consequences incurred by Buyer or by any other person or entity, as a result of delay in manufacture of or inability to deliver or accept delivery of any Goods due to circumstances or events beyond Stack’s reasonable control, including, without limitation, acts of God, change in or in the interpretation of any laws, strikes, lockouts or other labor problems, transportation delays, unavailability of supplies or materials, floods, earthquakes, fires, explosions, civil disturbances, acts of terrorism, military action or usurped power, or actions or failures to act on the part of a governmental authority.
14. Independent Relationship. The relationship of Stack and Buyer created pursuant to this Quotation is, and is intended to be, that of independent contractors. This Quotation does not constitute, nor shall it be construed to constitute, one party as an employee, agent, representative, partner or joint venture partner of the other party for any purpose.
15. Non-Waiver. No waiver by Stack of any breach of this Quotation shall operate as a waiver of such breach, or of any subsequent breach thereof.
16. Severability. If any provision of this Quotation is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired, and the parties shall use their best efforts to substitute a valid, legal and enforceable provision, which, insofar as practical, implements the purpose of this Quotation.
17. Assignment. Buyer may not assign its rights or obligations under this Quotation, in whole or in part, by operation of law or otherwise, without the prior written consent of Stack, and any attempted assignment not in accordance herewith shall be null and void and of no force or effect. Subject to the immediately preceding sentence, the terms of this Quotation shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors, heirs, representatives and permitted assigns.
18. Confidentiality. The terms of this Quotation (including, without limitation, all information concerning the prices of Goods sold or to be sold), all information contained herein, and all the negotiations and communications leading hereto, shall remain confidential and shall not be disclosed by Buyer without the prior written consent of Stack; provided, that nothing herein will preclude Buyer from disclosing such information, or any part thereof, if such disclosure is required by law or by subpoena or order issued by a court, administrative agency, or governmental entity (though Buyer will promptly notify Stack of any such required disclosure).
19. Jurisdiction; Dispute Resolution. This Quotation shall be governed by and construed in accordance with the laws of the State of California, regardless of choice of law principles, and Buyer submits to the exclusive jurisdiction of the state and federal courts of California with jurisdiction over the County of San Mateo for any disputes arising in relation to this Quotation. Any action brought against Stack must be commenced within one year of the date of accrual of the cause of action or it shall be barred.
20. Entire Agreement; Amendment and Modification. This Quotation represents the entire agreement of the parties with respect to its subject matter. Any and all prior discussions or agreements with respect hereto are merged into and superseded by the terms of this Quotation. This Quotation may be modified or amended only in writing signed by the parties that expressly refers to this Quotation and states an intention to modify or amend it.
Vendor Change ControlManufacturer will give Stack Plastics, Inc. ninety (90) days advance written notice of any proposed changes ("Proposed Change Notice") in site characteristics, materials and/or to its Manufacturing Process, which might affect the form, fit, performance, maintainability, operation, function, reliability, interface interconnectability, compatibility, design rules, models, or size of Products. Such Proposed Change Notice will describe the nature of the proposed changes, including reasons for the changes, the anticipated schedule for implementation of the changes and other relevant technical and logistic considerations, including without limitation, quality and reliability data to the extent available. Customer will approve or disapprove any such proposed changes promptly, but in no event no later than thirty (30) days after receipt of the Proposed Change Notice. If Customer disapproves such proposed changes within the thirty (30) day period, Manufacturer will continue to manufacture and deliver Products using the old Manufacturing Process as originally agreed to by the parties hereunder.