TERMS OF SALE
Sales under these terms of sale (these “Terms”) are by Fusion Packaging I, LLC, a Delaware limited liability company, or the affiliate thereof named in an order, (in either case, “Seller”) to the entity named as the buyer or purchaser (“Buyer”) in the documentation to which these Terms are attached or with which they are associated and are conditional upon Buyer’s agreement with these Terms and only these Terms. If these Terms are first tendered to Buyer before Buyer tenders a purchase order or similar document to Seller, these Terms are in lieu of any terms later submitted by Buyer and Seller rejects all additional or different terms and conditions of Buyer, whether confirmatory or otherwise. If Seller tenders these terms after the tender by Buyer of other terms, whether as part of a purchase order or otherwise, then Seller’s acceptance of any offer by Buyer associated with Buyer’s terms is expressly conditioned upon Buyer’s acceptance of these Terms exclusively and to the exclusion of any proffered Buyer terms or conditions, regardless of whether these Terms contain any terms additional to, or different from, any terms proffered by Buyer. Buyer’s performance, or acceptance of, or payment for, any products from Seller will constitute Buyer’s acceptance of these Terms exclusively. These Terms, together with any associated description of the products and quantity and price terms that are the subject of the purchase and sale transaction under these Terms constitute a “Supply Agreement.” Seller may receive and process purchase orders or other documents from Buyer, but such receipt or use is solely for administrative convenience and no such acceptance or use will be deemed an acceptance of any of Buyer’s terms or conditions.
Warranty; Remedies of Buyer:
Seller warrants solely to Buyer that the goods sold under any Supply Agreement will, during the 30 days following delivery by Seller, conform in all material respects to Seller’s descriptions thereof. EXCEPT AS EXPRESSLY DESCRIBED IN SECTION THE IMMEDIATELY-PRECEDING SENTENCE, ALL GOODS AND SERVICES DELIVERED UNDER ANY SUPPLY AGREEMENT ARE SUPPLIED “AS IS” AND WITH ALL FAULTS. SELLER MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY GOODS OR SERVICES AND EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY AS TO THEIR QUALITY, PERFORMANCE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. Buyer’s sole remedy for any claim against Seller of any kind shall be, the replacement of goods or credit against future product purchases.
Prices are subject to change without notice. All orders are accepted subject to Seller’s price in effect at time of shipment. All prices are exclusive of all tariffs, taxes, insurance, shipping, freight, and delivery charges.
Shipment terms are FOB (UCC 2-319) Seller’s Manufacturer for domestic shipments and EXW (Incoterms 2010) Seller’s Manufacturer for international shipments. Shipping dates are approximate and are contingent upon, among other things, prompt receipt of all necessary information. Seller may ship goods in a single shipment or in multiple shipments. Seller shall not be liable for delays in delivery. Seller’s breach or default in the delivery of any particular shipment will not permit Buyer the right to refuse to receive any other shipment. Time is not of the essence and Buyer is not entitled to reject an otherwise conforming tender made within a reasonable time. Any failure by Buyer to pay for any shipment within the time stated for payment is an anticipatory material breach with regard to other shipments. Once Seller commences production of products and/or provision of services and/or determines a shipping or delivery date with regard to the same, Seller will be entitled to provide, ship, and/or deliver such products and/or services and receive payment therefor and Buyer may not revise the timing for receipt of such products and/or services
Payment: Unless Seller, in its sole discretion and in a separate signed writing delivered to Buyer, elects to extend credit to Buyer, payment terms are C.O.D. If Seller authorizes payment by check and any check from Buyer is returned for any reason, Buyer shall, in addition to immediately paying all amounts due, reimburse Seller for all returned check fees and any other bank charges incurred on account of the returned check. If Seller authorizes payment other than C.O.D., invoices are due upon receipt. Overdue payments are subject to late fees equal to the lower of 1.5% per month or part thereof or the highest rate allowed by applicable law. In no event shall Buyer set off any payment due in connection with this transaction with any claim or an amount owed by Seller to Buyer in connection with this, or any other, transaction. Buyer grants to Seller a security interest in the products supplied under any Supply Agreement and any proceeds thereof and accessions thereto as security for Buyer’s obligations (payment and otherwise) to Seller. Seller may file any financing statement or similar document and/or take any other action permitted by applicable law to perfect and enforce such security interest and, if local law requires that a financing statement or similar document be signed or otherwise acknowledged by a debtor party, Buyer authorizes Seller to execute and deliver on Buyer’s behalf any such document.
Seller shall not be required to store goods purchased by Buyer unless expressly agreed in a separate signed writing. If Seller agreed in a separate sighed writing to store goods purchased by Buyer, risk of loss will transfer to Buyer upon identification of goods to the Supply Agreement and Buyer shall pay in full for the goods Unless otherwise agreed in writing, Seller shall be entitled to immediate payment for products purchased by Buyer notwithstanding any storage by Seller on Buyer’s behalf. Seller may ship the goods to Buyer upon the expiration of the period stated for storage (or, if no period is stated, 90 days). If Buyer refuses to accept the goods upon shipment or states that Buyer will refuse shipment in violation of this provision, Seller may dispose of the goods in any manner Seller deems reasonable (including, but not limited to, reselling the goods, in which case Buyer will have no right to any proceeds of such sale or for unjust enrichment in connection therewith) and Buyer will pay to Seller reasonable storage charges for any period during which Seller stores the goods in excess of the time for which the parties contracted.
(a) In addition to, and not in lieu of, any other right of Seller, Seller may cease receiving or filling orders by Buyer at any time for any reason or no reason. (b) In any circumstance where Seller has the right to demand adequate assurance of Buyer’s performance (such as, but not limited to, under Section 2-609 of the Uniform Commercial Code, where applicable), Buyer will provide such assurance within a reasonable time not to exceed five days. (c) If Buyer fails to pay in accordance with these Terms or any Supply Agreement or fails to comply with any provision of these Terms or any Supply Agreement, Seller may terminate any Supply Agreement as to unshipped portions of the products and terminate any applicable raw materials orders placed with its suppliers, and Buyer will remain liable for shipped products. If Seller elects to continue to make shipments after the Buyer has failed to make payment for the shipment in advance or fails to provide adequate assurances of performance, no action by Seller shall constitute a waiver of any default by the Buyer or in any way affect Seller’s remedies for any such default. All of Seller’s rights are cumulative and no pursuit by seller of any particular remedy will be deemed an exclusive election of such remedy. If, and to the extent that, Seller has invested in molds or engineering associated with the goods or services to be sold under any Supply Agreement and Buyer breaches the Supply Agreement, Seller may recover, in addition to any other damages to which it is entitled, such of those costs that are not amortized over the production and sale to Buyer of such goods or services.
Buyer shall inspect the Products immediately upon receipt. If the packaging shows signs of damage or spillage, Buyer must reject delivery promptly upon delivery. If after opening the package Buyer discovers the Product containers are dented or damaged, or that there is any shortage in shipment, then Buyer must inform Seller within two days after receipt.
Choice of Law, Jurisdiction, and Venue:
Each Supply Agreement will be governed exclusively by the law of the State of Texas without regard for its conflict of law rules. Any dispute, claim, or cause of action arising out of, or related to, any Supply Agreement must be brought only in the courts of the State of Texas sitting in Dallas County, Texas or in the United States District Court for the Northern District of Texas.
Seller shall not be liable for delays in the performance arising out of causes beyond the control of Seller. Such causes include, but are not limited to, acts of God, the public enemy, or government, fires, floods, epidemics, quarantine restrictions, strikes, terrorism, freight embargoes, unusually severe weather, and defaults of suppliers due to any such causes where the supplies or services to be furnished by the supplier where not obtainable from other sources at no additional cost in sufficient time to permit Seller to meet the agreed upon schedule.
All goods shall be furnished subject to Seller’s standard manufacturing variations and practices and within limits and sizes Seller produces. Buyer expressly agrees that the quantity manufactured and/or shipped hereunder may vary over or under the quantity set forth by up to 10% of such quantity and within these limits. Buyer may not use any goods in any application other than as permitted by the specifications included in the applicable Supply Agreement.
If any provision of any Supply Agreement is illegal or unenforceable such provision will be reformed to, insofar as is possible, permit it to confirm with applicable law and, in any case, the remaining provisions will continue in full force and effect.
The waiver by the Seller of any term, provision, or condition hereunder must be in writing and shall not be construed to be a waiver of any other term, condition, or provision hereof, nor shall such waiver be deemed a waiver be deemed a waiver of any other provision or a breach of the same provision on a future occasions.
Seller may subcontract the performance of any obligation of Seller under any Supply Agreement, provided only that Seller remains primarily liable for the performance of the obligation. Buyer may not assign any right or obligation under any Supply Agreement. Seller may assign any right or obligation under any Supply Agreement and, provided only that Seller’s assignee has assumed the obligation(s) of Seller, Seller will, upon such assignment, have no further liability as to the assigned obligations.
Attorney Fees and Costs of Collection:
Seller will be entitled to recover from Buyer Seller’s attorneys’ fees and costs of collection in any action to collect any amount due and not disputed in good faith.
Except as expressly and particularly set forth in a separate written agreement signed by Seller, Buyer will obtain no right whatsoever in any copyright, patent, trademark, trade secret, mask work, or other intellectual property right of Seller or that Seller creates, originates, discovers, or reduces to practice, or in which Seller acquires author or other rights, whether in consequence of these Terms, any Supply Agreement, any transaction or dealing between Seller and Buyer, or otherwise. Seller reserves all such rights to itself. The parties acknowledge that, absent a specific and separate written and signed agreement between the parties expressly granting rights to Buyer, no Supply Agreement is intended to require that Seller perform any development work for Buyer or create for Buyer any work of authorship, invention, or other matter in which proprietary rights exist.
Seller may display, showcase, or otherwise hold out to actual or potential customers the goods sold under any Supply Agreement and identify Buyer therewith, provided only that Seller may not express or imply to any third party an association with or endorsement by, Buyer greater than is reasonably to be inferred by the fact of Seller’s supply to Buyer of the goods.
Limitation of Liability:
NOTWITHSTANDING ANYTHING IN ANY SUPPLY AGREEMENT OR OTHERWISE TO THE CONTRARY, SELLER WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFITS) ARISING FROM OR CAUSED, DIRECTLY OR INDIRECTLY, BY (a) SELLER’S PERFORMANCE OR FAILURE TO PERFORM, (b) BY THE USE OR SALE OF ANY GOOD OR SERVICE BY BUYER OR ANY CUSTOMER OR SUCCESSOR HOLDER (INCLUDING, BUT NOT LIMITED TO, ANY END USER) OF ANY GOOD OR SERVICE, (c) BY ANY OTHER ACT OR OMISSION OF SELLER, or (d) BY ANY OTHER CAUSE. IN NO EVENT WILL SELLER’S TOTAL LIABILITY TO BUYER FOR ANY CLAIM EXCEED THE SUM PAID TO SELLER BY BUYER FOR THE GOODS OR SERVICES SUPPLIED UNDER THE SUPPLY AGREEMENT IN CONNECTION WITH WHICH THE CLAIM ARISES. NO ACTION MAY BE BROUGHT BY BUYER FOR ANY BREACH OF ANY SUPPLY AGREEMENT MORE THAN ONE YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION. THE ABOVE LIMITATIONS APPLY NOTWITHSTANDING THAT SELLER KNEW OF, OR SHOULD HAVE KNOW OF, THE POSSIBILITY OF SUCH DAMAGES OR THAT THESE OR ANY OTHER LIMITATIONS CAUSE A REMEDY TO FAIL OF ITS ESSENTIAL PURPOSE.
Integration Clause; Modification:
These Terms, together with any specific terms contained in any Supply Agreement, any separate written and signed distributor agreement, and any separate written confidentiality agreement between the parties, embody the entire agreement between the parties with regard to the subject matter hereof and thereof and supersede all other prior agreements between the parties with regard to such subject matter. Neither these Terms nor any Supply Agreement may be modified, except in writing and signed by the party against whom enforcement is sought.