1. General. These terms and conditions of purchase (these “Terms”) are the only terms which
govern the purchase of the goods (“Goods”) by PreZero US Packaging, LLC (“Buyer”) from the seller
named on the Purchase Order (“Seller”). Notwithstanding anything herein to the contrary, if a written
contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms
and conditions of said contract shall prevail to the extent they are inconsistent with these Terms. The
accompanying purchase order (the “Purchase Order”) and these Terms (collectively, this
“Agreement”) comprise the entire agreement between the parties, and supersede all prior or
contemporaneous understandings, agreements, negotiations, representations and warranties, and
communications, both written and oral. These Terms prevail over any of Seller's general terms and
conditions regardless of whether or when Seller has submitted its sales confirmation or such terms. This
Agreement expressly limits Seller's acceptance to the terms of this Agreement. Fulfillment of or other
performance under this Purchase Order constitutes acceptance of these Terms.
2. Delivery of Goods. Seller shall deliver the Goods in the quantities and on the date(s) specified
in the Purchase Order or as otherwise agreed in writing by the parties (the “Delivery Date”). If Seller
fails to deliver the Goods in full on the Delivery Date, Buyer may terminate this Agreement immediately
by providing written notice to Seller and Seller shall indemnify Buyer against any losses, claims,
damages, and reasonable costs and expenses directly attributable to Seller's failure to deliver the Goods
on the Delivery Date. Buyer has the right to return any Goods delivered prior to the Delivery Date at
Seller's expense and Seller shall redeliver such Goods on the Delivery Date. Seller shall deliver all Goods
to the address specified in the Purchase Order (the “Delivery Point”) during Buyer's normal business
hours or as otherwise instructed by Buyer. Seller shall pack all goods for shipment according to Buyer's
instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered
in undamaged condition. Seller must provide Buyer prior written notice if it requires Buyer to return
any packaging material. Any return of such packaging material shall be made at Seller's risk of loss
and expense. Seller acknowledges that time is of the essence with respect to Seller's obligations
hereunder and the timely delivery of the Goods.
3. Quantity. If Seller delivers more than 5% or less than 5% of the quantity of Goods ordered,
Buyer may reject all or any excess Goods. Any such rejected Goods shall be returned to Seller at Seller's
sole risk and expense. If Buyer does not reject the Goods and instead accepts the delivery of Goods at
the increased or reduced quantity, the Price for the Goods shall be adjusted on a pro-rata basis.
4. Purchase Order Changes. Buyer reserves the right to modify the purchase order with respect to
quantities, delivery schedules and/or specifications as desired by Buyer by issuing one or more change
orders to Seller. Seller shall not make any changes to Purchase Orders or affecting the Goods without
the prior written consent of Buyer, which shall be withheld in its sole discretion.
5. Shipping Terms. In the absence of any other agreement, delivery shall be made DDP Delivery
Point. The Purchase Order number must appear on all shipping documents, shipping labels, bills of
lading, air waybills, invoices, correspondence, and any other documents pertaining to the Purchase
6. Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Goods at the
7. Buyer’s Materials. All materials, parts and documents, including tools, forms, patterns, models,
profiles, designs, drawings, test requirements, standard specifications, samples, templates and test
materials (collectively, the “Buyer’s Materials”), supplied by Buyer to Seller shall remain the property
of Buyer and may be used only as priorly agreed between Buyer and Seller. Buyer’s Materials are
provided by Buyer “as is”. Any processing of materials and assembling of parts by Seller shall be carried
out on behalf of Buyer. Buyer shall be the joint owner of Goods that have been manufactured or
produced using the Buyer’s Materials. Seller shall not transfer, convey, sell or assign the Buyer’s
Materials, along with items manufactured using Buyer’s Materials, to third parties without Buyer’s prior
written consent. Seller shall not use Buyer’s Materials for purposes other than those agreed with Buyer
and shall not allow unauthorized inspection and use by third parties. With further rights being reserved,
in case of breach of this Section by Seller, Buyer may request the return of Buyer’s Materials.
8. Inspection and Rejection of Nonconforming Goods. Buyer has the right to inspect the Goods on
or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods, and may
reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If
Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Seller, to:
(a) rescind this Agreement in its entirety; (b) accept the Goods at a reasonably reduced price; or (c)
reject the Goods and require replacement of the rejected Goods. If Buyer requires replacement of the
Goods, Seller shall, at its expense, promptly replace the nonconforming or defective Goods and pay
for all related expenses, including, but not limited to, transportation charges for the return of the
defective goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement
Goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and
terminate this Agreement for cause pursuant to Section 18. Any inspection or other action by Buyer
under this Section shall not reduce or otherwise affect Seller's obligations under the Agreement, and
Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions.
9. Price. The price of the Goods is the price stated in the Purchase Order (the “Price”). If no price
is included in the Purchase Order, the Price shall be the price set out in Seller's published price list in
force as of the date of the Purchase Order. Unless otherwise specified in the Purchase Order, the Price
includes all packaging, transportation costs to the Delivery Point, insurance, customs duties and fees
and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the
Price is effective, whether due to increased material, labor or transportation costs or otherwise, without
the prior written consent of Buyer.
10. Payment Terms. Seller shall issue an invoice to Buyer on or any time after the completion of
delivery and only in accordance with these Terms. Buyer shall pay all properly invoiced amounts due
to Seller within 90 days after Buyer's receipt of such invoice, except for any amounts disputed by Buyer
in good faith. Payment does not indicate acceptance of the delivery by Buyer. Without prejudice to any
other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing
to it by Seller against any amount payable by Buyer to Seller. The parties shall seek to resolve all such
disputes expeditiously and in good faith. Seller shall continue performing its obligations under this
Agreement notwithstanding any such dispute.
11. Warranties. Seller warrants to Buyer that for a period of 36 months from the Delivery Date,
all Goods will: (i) be free from any defects in workmanship, material and design; (ii) conform to
applicable specifications, drawings, designs, samples and other requirements specified by Buyer; (iii)
be fit for their intended purpose and operate as intended; (iv) be merchantable; (v) be free and clear
of all liens, security interests or other encumbrances; and (vi) not infringe or misappropriate any third
party's patent or other intellectual property rights. These warranties survive any delivery, inspection,
acceptance or payment of or for the Goods by Buyer. The warranties set forth in this Section are
cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of
limitations runs from the date of Buyer's discovery of the noncompliance of the Goods with the
foregoing warranties. If Buyer gives Seller notice of noncompliance pursuant to this Section, Seller
shall, at its own cost and expense, promptly replace or repair the defective or nonconforming Goods
and pay for all related expenses, including, but not limited to, transportation charges for the return of
the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to
Buyer. In urgent cases (e.g. to avoid the interruption of the production), Buyer shall be entitled to
rectify the defects itself, at Seller’s expenses and without prior notice.
12. Spare Parts. Seller agrees to supply, at reasonable prices, spare parts for the Goods for a
period of at least 10 years after the last delivery of the Goods.
13. General Indemnification. Seller shall defend, indemnify and hold harmless Buyer and Buyer's
parent company, their subsidiaries, affiliates, successors or assigns and their respective directors,
officers, shareholders and employees (collectively, “Indemnitees”) against any and all loss, injury,
death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or
expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any
right to indemnification hereunder and the cost of pursuing any insurance providers (collectively,
“Losses”) arising out of or occurring in connection with the Goods purchased from Seller or Seller's
negligence, willful misconduct or breach of the Terms. Seller shall not enter into any settlement without
Buyer's prior written consent.
14. Intellectual Property Indemnification. Seller shall, at its expense, defend, indemnify and hold
harmless Buyer and any Indemnitee against any and all Losses arising out of or in connection with any
claim that Buyer's or Indemnitee's use or possession of the Goods infringes or misappropriates the
patent, copyright, trade secret or other intellectual property right of any third party. In no event shall
Seller enter into any settlement without Buyer's or Indemnitee's prior written consent.
15. Limitation of Liability. Nothing in this Agreement shall exclude or limit (a) Seller's liability under
this Agreement, or (b) Seller's liability for fraud, personal injury or death caused by its negligence or
16. Insurance. During the term of this Agreement and for a period of three years thereafter, Seller
shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not
limited to, commercial general liability (including product liability) in a market standard sum with
financially sound and reputable insurers. Upon Buyer's request, Seller shall provide Buyer with a
certificate of insurance from Seller's insurer evidencing the insurance coverage specified in these Terms.
17. Compliance with Law. Seller shall comply with all applicable laws, regulations and ordinances.
Seller shall maintain in effect all the licenses, permissions, authorizations, consents and permits that
it needs to carry out its obligations under this Agreement. Seller shall comply with all export and
import laws of all countries involved in the sale of the Goods under this Agreement or any resale of
the Goods by Seller. Seller assumes all responsibility for shipments of Goods requiring any government
import clearance. Buyer may terminate this Agreement if any governmental authority imposes
antidumping or countervailing duties or any other penalties on Goods.
18. Termination. In addition to any remedies that may be provided under these Terms, Buyer
may terminate this Agreement with immediate effect upon written notice to the Seller, either before
or after the acceptance of the Goods, if Seller has not performed or complied with any of these Terms,
in whole or in part. If the Seller becomes insolvent, files a petition for bankruptcy or commences or
has commenced against it proceedings relating to bankruptcy, receivership, reorganization or
assignment for the benefit of creditors, then the Buyer may terminate this Agreement upon written
notice to Seller. If Buyer terminates the Agreement for any reason, Seller's sole and exclusive remedy
is payment for the Goods received and accepted by Buyer prior to the termination.
19. Waiver. No waiver by Buyer of any of the provisions of this Agreement is effective unless
explicitly set forth in writing and signed by Buyer. No failure to exercise, or delay in exercising, any
right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a
waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder
precludes any other or further exercise thereof or the exercise of any other right, remedy, power or
20. Confidential Information. All non-public, confidential or proprietary information of Buyer,
including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents,
data, business operations, customer lists, pricing, discounts or rebates, disclosed by Buyer to Seller,
whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and
whether or not marked, designated or otherwise identified as “confidential” in connection with this
Agreement is confidential, solely for the purpose of performing this Agreement and may not be
disclosed or copied unless authorized in advance by Buyer in writing. Upon Buyer's request, Seller
shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled
to injunctive relief for any violation of this Section. This Section does not apply to information that is:
(a) in the public domain, (b) known to Seller at the time of disclosure; or (c) rightfully obtained by
Buyer on a non-confidential basis from a third party.
21. Force Majeure. No party shall be liable or responsible to the other party, or be deemed to
have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing
any term of this Agreement, when and to the extent such party's (the “Impacted Party”) failure or
delay is caused by or results from the following force majeure events (“Force Majeure Event(s)”):
(a) acts of God; (b) flood, fire, earthquake or other natural disasters, epidemics, or explosion; (c)
war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil
unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the
date of this Agreement; and (f) other similar events beyond the reasonable control of the Impacted
Party. The Impacted Party shall give notice within 3 days of the Force Majeure Event to the other
party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use
diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are
minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably
practicable after the removal of the cause. In the event that the Impacted Party's failure or delay
remains uncured for a period of 30 consecutive days following written notice given by it under this
Section 20, the other party may thereafter terminate this Agreement upon 7 days' written notice.
22. Assignment. Seller shall not assign, transfer, delegate or subcontract any of its rights or
obligations under this Agreement without the prior written consent of Buyer. Any purported assignment
or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve
the Seller of any of its obligations hereunder. Buyer may at any time assign or transfer any or all of its
rights or obligations under this Agreement without Seller's prior written consent to any affiliate or to
any person acquiring all or substantially all of Buyer's assets.
23. Relationship of the Parties. The relationship between the parties is that of independent
contractors. Nothing contained in this Agreement shall be construed as creating any agency,
partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship
between the parties, and neither party shall have authority to contract for or bind the other party in any
24. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and
their respective successors and permitted assigns and nothing herein, express or implied, is intended to
or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement.
25. Governing Law. All matters arising out of or relating to this Agreement are governed by and
construed in accordance with the internal laws of the State of California without giving effect to any
choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction
other than those of the State of California. The United Nations Convention on International Sale of
Goods shall not apply to the Agreement.
26. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this
Agreement shall be instituted in the federal courts of the United States of America or the courts of the
State of California, County of Butte, and each party irrevocably submits to the exclusive jurisdiction of
such courts in any such suit, action or proceeding. In the event of suit or any other legal and/or
administrative action brought by the parties herein to enforce their legal rights, the prevailing party is
entitled to recovery of reasonable attorney’s fees, collection agency costs, and court costs.
27. Notices. All notices, requests, consents, claims, demands, waivers, and other communications
hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth
on the face of the purchase order or to such other address that may be designated by the receiving
party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight
courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested,
postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon
receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements
of this Section.
28. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in
any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision
of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
29. Survival. Provisions of these Terms which by their nature should apply beyond their terms will
remain in force after any termination or expiration of this Agreement including, but not limited to, the
following provisions: 11 (Warranties), 12 (Spare Parts), 13 (General Indemnification), 14 (Intellectual
Property Indemnification), 15 (Limitation of Liability), 16 (Insurance), 17 (Compliance with Laws), 20
(Confidential Information), 25 (Governing Law), 26 (Submission to Jurisdiction) and 29 (Survival).
30. Amendment and Modification. These Terms may only be amended or modified in a writing
stating specifically that it amends these Terms and is signed by an authorized representative of each