These Terms of Sale (“Terms”) are incorporated by reference into every quotation, order acknowledgment, order confirmation, invoice or other sales document (collectively, “Sales Documents”) issued by Anchor Bay Packaging Corporation and/or its applicable affiliate(s) named thereon (“Seller”) to the buyer and/or its applicable affiliate(s) named thereon (“Buyer”). Seller’s quotation and these Terms constitute the Seller’s offer or counteroffer to sell the goods and/or services included in the quotation (the “Goods”) to Buyer subject in all respects to, and strictly in accordance with, these Terms and the Sales Documents exclusively. Upon acceptance by Buyer through placement of an order for any Goods, acceptance of delivery of any Goods, payment for any Goods, or other actions taken by Buyer in furtherance of ordering any Goods, the Sales Documents together with these Terms shall constitute the parties’ contract for sale of the Goods (“Agreement”) and are binding on the Buyer and Seller as provided in this Agreement. Any terms or conditions included in any documents issued by Buyer that contradict, alter, are inconsistent with, add to, or otherwise affect the Agreement are hereby rejected, are not incorporated into the Agreement, and apply only if expressly acknowledged and accepted in a signed writing by Seller. For the avoidance of doubt, Seller hereby objects to any additional or different terms proposed by Buyer as wholly unacceptable to Seller, and such proposed additional or different terms shall not become part of the Agreement (or otherwise a part of any contract between Seller and Buyer) and shall have no effect with respect to any sales by Seller or purchases by Buyer of any Goods. Seller’s performance under any accepted purchase order, release or other similar written instruction (each, an “Order”) issued by Buyer is expressly limited to and conditioned upon Buyer’s acceptance of the terms and conditions of the Agreement exclusively (including these Terms). In the event of a conflict between the Terms and any Sales Document made part of the Agreement, the applicable Sales Document shall control.
Unless otherwise specified by Seller, Seller’s price(s) for the Goods shall remain in effect for Thirty (30) days after the date of Seller’s quotation. Prices for Goods do not cover storing, installing, starting up, or maintaining the Goods unless expressly stated in Seller’s quotation.
The price for the Goods is as stated in Seller’s quotation. Prices are subject to increase for any reason, including, without limitation, increased raw material costs, increased labor or other manufacturing costs, increased development costs, changes in volumes from those estimated or expected, changes to delivery schedules, or any other unforeseen circumstances. Unless otherwise agreed to in a writing signed by the parties, Prices are not subject to decrease for any reason, including, without limitation, prices charged for similar goods or services sold or otherwise quoted to other customers of Seller (including, without limitation, Buyer’s affiliates), any productivity, quality or other periodic price reduction programs, industry, commodity or other benchmarking activities, or Buyer’s receipt of a quotation for similar goods or services at lower price.
All shipping dates are approximate and are based upon Seller’s prompt receipt of all necessary information from Buyer to properly process any order. Notwithstanding any provisions to the contrary risk of loss shall transfer to Buyer in accordance with the Incoterms quoted. Legal title to the Goods shall transfer to the Buyer upon receipt by Seller of full payment by Buyer.
Buyer is deemed to have accepted the Goods upon delivery and waives any objection as to quality or quantity.
Seller shall not be liable for delays in performance or for non-performance due to any foreseen or unforeseen events or actions beyond Seller’s control, including, but not limited to, any accidents; laws; acts of god; foreign or domestic governmental orders, regulations or actions; wars, invasion or similar hostilities; terrorist threats or acts; riots or other civil unrest; fires, flood, earthquake or other adverse weather condition; explosion; national emergency; revolution; insurrection; epidemic, pandemic, disease or other public health emergency; labor problems, including lockouts, strikes, slowdowns or other labor dispute (whether or not relating to either party’s workforce); restraints or delays affecting carriers; inability or delay in obtaining supplies of adequate or suitable materials or services; telecommunication breakdown or other equipment failure; shortage of power or other utilities, supplies, infrastructure, or transportation; or other circumstances beyond the reasonable control of Seller. In the event of such delay, the time for performance or delivery shall be automatically extended by a period of time necessary for Seller to overcome the effect of the delay.
Seller may immediately terminate the Agreement or all or any part of any order or release as a result of: (a) Buyer’s breach, threatened breach or repudiation of any representation, warranty, covenant or other term of the Agreement; (b) any assignment for the benefit of creditors or any institution of proceedings in bankruptcy or insolvency by or against Buyer; (c) Buyer’s request for accommodation from Seller, financial or otherwise, in order to meet its obligations under the Agreement; (d) Buyer entering or offering to enter into one or more transactions effecting a sale of a substantial portion of Buyer’s assets or business, or any merger, sale or exchange of equity interests that would result in a change of control of Buyer; or (e) financial or other condition that could, in Seller’s sole discretion, endanger Buyer’s ability to make required payments or otherwise perform. In addition, Seller may terminate the Agreement or all or any part(s) of any order or release, with or without cause, upon delivery of thirty (30) days’ advance written notice to Buyer.
Following Seller’s termination, Buyer shall reimburse Seller, upon receipt of Seller’s written demand, for all Goods completed in accordance with Buyer’s order or release and for any work-in-progress, raw materials acquired for manufacture of Goods, unrecovered amounts for capital equipment, tooling, fixtures, material costs, etc. amortized into the selling piece price, any unreimbursed non-recurring engineering costs or other research or development costs, and Seller’s costs for settling any claims or disputes with its sub-suppliers in connection with component parts, raw materials, or services related to the Goods (collectively, “Termination Costs”). Under no circumstances shall Seller have any obligation to assist Buyer in any transition of supply of the Goods (or substitutes therefor) to Buyer or any other vendor, except to the extent otherwise expressly agreed by Seller, and then, only upon Seller’s actual receipt of all Termination Costs owed by Buyer to Seller together with any applicable fees for such transition support.
Buyer may terminate or suspend its order for any or all of the Goods covered by the Agreement only upon Seller’s written consent or pursuant to Seller’s applicable policy or practices covering such termination or suspension. Following Buyer’s termination, Buyer shall reimburse Seller all Termination Costs. Under no circumstances shall Seller have any obligation to assist Buyer in any transition of supply of the Goods (or substitutes therefor) to Buyer or any other vendor, except to the extent otherwise expressly agreed by Seller, and then, only upon Seller’s actual receipt of all Termination Costs owed by Buyer to Seller together with any applicable fees for such transition support.
Seller warrants that seller has good transferrable title to the goods delivered, free and clear of liens upon receipt of final payment for such goods and that the goods meet in all material respects the agreed upon specifications at the time of delivery. The foregoing warranties are exclusive and given and accepted in lieu of any and all other warranties, express or implied, statutory or otherwise, and seller disclaims all other warranties including, but not limited to, warranties of merchantability or of fitness for a particular purpose. Seller shall not be liable for damages caused by delay in performance. In no event, regardless of the form of the claim or cause of action (whether based in contract, infringement, negligence, strict liability, other tort or otherwise), shall seller’s liability to buyer and/or its customers exceed the price paid by buyer for the specific goods manufactured by seller giving rise to the claim or cause of action. Buyer agrees that in no event shall seller’s liability to buyer and/or its customers extend to include incidental, consequential or punitive damages. The remedies of buyer set forth in this paragraph shall be buyer’s sole and exclusive remedy to the exclusion of any and all other remedies. No agreement varying or extending the foregoing warranties, or the remedies or limitations contained herein, will be binding upon seller unless in writing and signed by a duly authorized officer of seller expressly referencing this paragraph.
Any tax or governmental charge payable by the Seller because of the manufacture, sale or delivery of the Goods may at Seller’s option be added to the price herein specified and invoiced to Buyer.
Unless otherwise agreed by Seller, and subject to the approval of Seller’s Credit Department, terms are F.O.B. shipping point, net 30 days from date of Seller’s invoice. Freight charges may include shipping and handling charges, and Buyer shall pay all such charges. If any payment owed to Seller hereunder is not paid when due, it shall bear interest, at a rate to be determined by Seller which shall not exceed the maximum rate permitted by law, from the date on which it is due until it is received. Seller shall have the immediate right, among other remedies, either to terminate the Agreement or to suspend further deliveries under this Agreement and/or any other agreements with Buyer in the event Buyer fails to make any payment hereunder when due.
Buyer acknowledges and agrees that Buyer may not set off or otherwise debit against or recoup from any amounts due or to become due to Seller, any amounts due or to become due to Buyer, unless and until Seller agrees in writing to such setoff or recoupment, and shall not exercise any purported right to setoff, debit or recoupment in connection with any disputed, contingent or unliquidated claim. In the event Buyer fails to comply with the foregoing and without authorization or otherwise improperly sets off, debits or recoups from amounts due or to become due to Seller, Seller shall be entitled, in addition to all of its other rights hereunder or otherwise, to suspend performance of its obligations under the Agreement until Buyer reverses such setoff, debit or recoupment. Further, any amounts due or to become due to Seller shall not be otherwise reduced on account of any price reduction or compromise on receivables that Buyer may agree to with its Customers, including, without limitation, in connection with any systems, assemblies, components, modules or other goods or services incorporating or otherwise utilizing Goods. Buyer shall pay all Seller’s costs of collection, including Seller’s attorneys’ fees.
Seller shall have no liability to Buyer whatsoever to the extent that Seller has relied upon any data or information supplied by Buyer to Seller (“Data”) in the selection or design of the Goods and the preparation of Seller’s quotation.
Buyer agrees to comply with all applicable import and export control laws, regulations, orders and requirements, including without limitation those of the United States (including, but not limited to, the United States Mexico-Canada Agreement) and the European Union, and the jurisdictions in which the Seller and Buyer are established or from which items may be supplied.
All non-public, confidential or proprietary information of Seller, including, without limitation, specifications, samples, patterns, designs, plans, drawings, documents, data, hardware, software, material formulations and compositions, manufacturing processes and methods, financials, business operations, customer or supplier lists, pricing, discounts or rebates, disclosed or otherwise made available by Seller or its agents to Buyer, and any representations, compilations, analysis, and summaries of the foregoing, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, or observed or otherwise learned, and whether or not marked, designated or otherwise identified as “confidential” in connection with the Agreement shall be held by Buyer in strict confidence and used solely for the purpose of doing business with Seller pursuant to the Agreement, and may not be otherwise used, disclosed or copied by Buyer unless authorized in advance by Seller in writing. Buyer shall restrict access to and limit disclosure of Seller’s confidential information to only those of Buyer’s employees, directors, officers, managers, and advisors with a need to know the information to accomplish the purpose of the Agreement, provided that they have been instructed and are bound in writing not to disclose the confidential information or use it for any purpose other than as permitted under the Agreement; and provided further that Buyer shall at all times remain fully liable to Seller for any act or omission by such persons that would constitute a breach of the Agreement if taken or not taken by Buyer. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller and promptly and securely destroy (with written certification thereof) any compositions, summaries or other embodiments thereof. Seller shall be entitled to injunctive relief for any violation of this paragraph. The obligations of non-use and confidentiality set forth in this paragraph do not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure as evidenced by Buyer’s written records; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party as evidenced by Buyer’s written records. The obligations contained in this paragraph shall not prevent Buyer from disclosing Seller’s confidential information to the extent required by applicable law or a valid order issued by a court or government agency of competent jurisdiction, determined on advice of competent counsel, provided that Buyer provides Seller prompt written notice of such requirement so as to permit Seller to seek an appropriate protective order to prevent disclosure of all or part of such confidential information, and Buyer reasonably cooperates with Seller in obtaining such protective order, and provided further that Buyer will disclose only that portion of the confidential information that Buyer is legally required to disclose and will make reasonable efforts to obtain reliable assurances that confidential treatment will be accorded such confidential information. For the avoidance of doubt, Buyer’s obligations under this paragraph shall survive any expiration or termination of the Agreement.
Buyer acknowledges and agrees that Seller has ownership and title to all trademarks, service marks, trademarks, trade names, trade dress, patents, copyrights and other intellectual property rights with respect to the Goods. Seller is and will be the sole owner of any economic rights that may arise from the invention, development, program design, specifications or applications made in the development of the Goods. Any suggestions and/or requests made by Buyer in connection with the Goods shall not grant Buyer any intellectual property rights in such Goods.
To the fullest extent permitted by applicable law, Buyer hereby expressly agrees to indemnify, defend, and hold harmless Seller and Seller’s affiliates, and its and their officers, directors, managers, employees, agents, successors and assigns from and against any and all claims, liabilities, lawsuits, losses, costs, expenses and damages (including attorneys’ and professionals’ fees) of any kind or nature whatsoever, including, without limitation, claims for personal injury (including, without limitation, death) or property damage, whether such claims are founded in contract, tort or otherwise, including strict liability, which arise as a result of or otherwise relate to the Agreement (including, without limitation, any breach thereof) and/or the Goods, except to the extent arising solely and directly as a result of Seller’s gross negligence or willful misconduct.
(a) Buyer shall not assign or delegate the Agreement or any of Buyer’s rights or obligations under the Agreement without Seller’s prior written consent. (b) The Agreement (including, without limitation, these Terms) contains the entire understanding of the parties relating to the subject matter thereof and is intended as a final expression of the parties’ agreement and a complete statement of the terms thereof, and all prior negotiations and proposals between the parties regarding the sale and purchase of Goods are superseded. (c) No action, regardless of form, arising out of transactions under the Agreement, may be brought by either party more than two years after the cause of action has accrued. (d) Any modification of the Agreement, including, without limitation, these Terms, must be set forth in a written instrument signed by a duly authorized representative of Seller, provided, however, that notwithstanding the foregoing, the parties hereby acknowledge and agree that Seller may modify these Terms from time to time by posting revisions to Seller’s website (or any successor thereto) prior to the date when any such modification shall become effective, and such revised Terms shall apply to all new or revised orders or releases issued on or after the effective date thereof, and Buyer further acknowledges and agrees it is responsible to review such Seller website periodically. (e) The Agreement is formed and shall be construed, performed, and enforced under the laws of the State of Michigan without regard to conflicts of law provisions, and the U.N. Convention on Contracts for the International Sales of Goods shall not apply. Buyer and Seller agree that the exclusive venue and jurisdiction for all actions arising under the Agreement shall be in the appropriate state and federal courts located in the State of Michigan. Buyer shall pay Seller’s reasonable attorneys’ fees, costs, and expenses incurred in enforcing any provision of the Agreement. (f) If any provision of the Agreement is invalid under any statute or rule of law, such provision, to that extent only, shall be deemed to be omitted without affecting the validity of the remainder of the Agreement. (g) Headings are solely for the purpose of reference, are not part of the agreement of the parties, and shall not in any way affect the meaning or interpretation of the Agreement. (h) Buyer and Seller are independent contractors, and nothing contained herein makes either party the agent or legal representative of the other party for any purpose. (i) Seller’s waiver of any breach by Buyer shall not be construed as a waiver of any other breach, and no waiver by Seller shall be effective unless it is in writing. The failure of Seller to require performance under any provision of the Agreement shall in no way affect Seller’s right to require full performance at any subsequent time with respect to that provision or any other provision of the Agreement. (j) If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law or public policy, or otherwise invalid or unenforceable, the remaining provisions will remain in full force and effect, and the parties shall substitute the invalid or unenforceable provision with a valid provision that, as closely as possible, achieves the same business purpose as the invalid or unenforceable provision. (k) These Terms shall survive and continue in full force and effect following the expiration, cancellation or termination of the Agreement. (l) Unless otherwise agreed in writing, all notices required to be given by Buyer to Seller with respect to the Contract shall not be effective unless in writing and sent to Seller’s address.