Terms and Conditions

Liquid Container L.P.

Purchase Order Terms and Conditions

Applicable Law - Definitions. The definition of terms, interpretation of this Order, and the rights of parties hereto shall be construed and governed by the laws enacted in Buyer’s state (as shown on the face hereof), including the Uniform Commercial Code. "Buyer" means Liquid Container L.P. "Seller" means the person or entity to which this purchase order is addressed. "Order" means this purchase order, including all terms and conditions on the face and reverse side hereof and all specifications issued hereunder. "Goods" means those materials, property or services that are the subject of this Order.
Acceptance. If this order is deemed to constitute an offer, it shall be accepted in the expressly limited manner specified on the face hereof. If this order is deemed to constitute acceptance of an offer, such acceptance is expressly made conditional on Seller’s assent to the terms of this Order, and shipment of any part of the Goods or other commencement of performance shall be deemed to constitute such assent.
Routings, Risk of Loss, Excess Shipments, and Delays. (a) Time is of the essence in the performance of the Order by Seller. (b) Buyer may select mode of transportation, routing of, and carrier for the Goods. Seller shall be liable for excess transportation costs resulting from deviation in Buyer’s instructions. (c) Goods shall all be delivered by Seller to Buyer’s business from which goods were ordered, unless otherwise specified on the face hereof. Risk of loss as to such Goods shall remain with Seller until after Goods are delivered and all nonconformities are cured. (d) Buyer’s weight and count are conclusive, and Buyer shall have no liability for payment for Goods delivered in excess of the quantity ordered. Excess Goods shall be subject to rejection by Buyer and redelivery to Seller at Seller’s expense. (e) If, prior to time of delivery of the Goods, Seller has reason to believe that it will be unable to meet its delivery schedule, it shall immediately notify Buyer in writing, shall indicate the cause of delay, shall use its best efforts to cure the anticipated delay, and permit Buyer to engage in expediting. Upon receipt of notice of anticipated delay or upon occurrence of an actual delay, Buyer may (i) direct expedited routing of Goods with excess cost paid by Seller, or (ii) cancel the Order and purchase substitute Goods elsewhere, with resulting excess costs and expenses paid by Seller.
Delivery, Packing & Crating. Goods to be furnished hereunder shall be suitably prepared for shipment to comply with carrier regulations. No charges are allowed for packing, crating, freight express, or cartage unless authorized hereunder.
Quality Warranties. In addition to all other warranties, whether express or implied, Seller warrants that all Goods delivered shall strictly conform to the terms, conditions, and specifications specified herein or furnished forthwith, shall be good in design, material and workmanship, free from defects, merchantable and fit for their intended purpose, and shall meet applicable industrial and governmental safety standards. Seller further warrants that Seller will have title to and the right to sell such Goods at the time of delivery. Seller shall also assign or otherwise transfer to Buyer the warranties on goods and services incorporated into Goods sold hereunder. All warranties herein mentioned shall survive any inspections, delivery, acceptance or payment by Buyer, and all such warranties shall run to Buyer, its successors, assigns, customers and users of Goods. Repairs or replacements of the Goods shall be made by Seller, without cost to Buyer, at any time within the warranty period of the Goods, when the Goods are deemed defective by Buyer.
Inspection of Goods, Rejection of Goods and Revocation of Acceptance. After receipt of Goods, Buyer shall have a reasonable time, but not less than seven (7) days, in which to inspect and accept or reject Goods, and payment for Goods shall not constitute acceptance. Buyer may reject Goods not conforming to the terms, conditions, and specifications, or warranties furnished under this Order. For all rejected Goods, Seller shall provide Buyer a full refund for or replacement of the Goods, at the Seller’s risk and expense, including transportation costs both ways. Buyer may, at its option, purchase substitute Goods in lieu of rejected Goods, and Seller shall be liable for the difference in costs, less expenses saved by the Buyer. Acceptance of part of Goods shall not bind Buyer to accept the remainder. Acceptance of all or part of Goods shall not deprive Buyer of the right to revoke acceptance and return any part of the Goods or the right to make a claim for damages because of the failure of the Goods to conform to this Order. Buyer shall not be liable to Seller for failure to accept Goods for causes beyond Buyer’s reasonable control.
Indemnification. Seller shall defend, indemnify and save harmless Buyer from and against any loss, cost, damage, or expense arising from (a) any damage to Buyer’s property, including property occupied or used by, or in the care, custody or control of Seller, alleged to have been caused by defective Goods or by any act or omission, negligent or otherwise, of Seller, or any subcontractor of Seller or any of their employees, workmen, servants or agents; and (b) any claims which may be made against Buyer by reason of injury or death to person or damage to property, howsoever alleged to have been caused, and claimed to have been suffered by any person or entity or by Seller or by any employees, workmen, servants, or agents and (c) a claim of infringement of any intellectual property right of a third person by any of the goods delivered hereunder. In no event shall Seller be required to indemnify Buyer for any injury, death, or loss caused solely by the negligence of Buyer. Seller agrees to defend, indemnify and hold harmless from all liabilities, and claim, which may arise out of failure of Seller to comply with the provisions of Paragraphs 8, 10, 11 and/or 12 of this Order. In addition Seller further agrees to indemnify, defend, and hold harmless Buyer from all losses and expenses resulting from an actual or alleged breach of warranty, express or implied, or other actual or alleged breach of this Order by Seller including incidental or consequential damages without limitation, and attorney’s fees.
Insurance. Seller shall obtain insurance coverage in the following minimum amounts:
(a) Worker’s Compensation - statutory limits for the state or states in which the work is to be performed, Employer’s Liability - $1,000,000; and
(b) Commercial General Liability - $1,000,000 combined single limit per occurrence including Premises and Operations, Independent Contractors, Contractual Liability and Products and Completed Operations coverages; and
Liquid Container L.P. shall be named as an additional insured party under each of these policies with the exception of the policies covering Worker’s Compensation. Such insurance coverage shall be maintained by Seller at all times during which it is performing work under this Order.
Non-Waiver. The failure or delay of Buyer to insist upon strict performance of any terms and conditions hereof, to exercise any rights or remedies provided herein or by law, the acceptance of or payment for any Goods hereunder, shall not release Seller from any of the obligations of this Order and shall not be deemed a waiver of any right of Buyer of any of the terms hereof.
Equal Employment Opportunity. Seller certifies that it is in full compliance with Executive Order No. 11246 as amended, and all administrative regulations issued pursuant thereto, as well as all other applicable equal employment obligations as required by Executive Orders, Rules, Regulations, or law as of the date of executing this Order. Nothing herein shall constitute an employer/employee relationship between Seller and Buyer and any other respective employees or agents.
Occupational Safety and Health. Seller warrants that any Goods sold pursuant to this Order comply in all respects with the Occupational Safety and Health Act of 1970 (OSHA), any amendments thereto, and all applicable regulations and standards promulgated thereunder.
Compliance with Laws. Seller shall comply with all applicable federal, state and local laws, and rules and regulations of any governmental authority which have the effect of law. Any provisions required to be included in this Order by any such applicable law, rule or regulation shall be deemed incorporated herein. Without limiting the generality of the foregoing, Seller certifies to Buyer that the Goods purchased hereunder were produced in compliance with the applicable requirements of the Fair Labor Standards Act of 1938, as amended.
Withholding of Payments. Buyer shall have the right (but no duty) to withhold any moneys payable by it hereunder and apply the same to the payment of any obligations of Seller to Buyer.
Assignment. None of the work to be performed under this Order shall be assigned or subcontracted by Seller without prior written consent of the Buyer. With regard to any assignment or subcontract under this Order, Seller shall remain obligated to Buyer as if no assignment or subcontract had been made.
Termination of Order. (a) Buyer may at any time terminate Seller’s performance under this Order, in whole or in part, by written notice to Seller, whereupon Seller shall terminate its performance upon receipt of such notice and shall terminate all orders, and subcontracts to the extent they relate to such performance, (b) To the extent this Order covers Goods normally carried in the inventory of Seller, as distinguished from Goods specially made to Buyer’s specifications, Buyer shall have no liability for any termination of this Order, in whole or in part, prior to shipment. For any termination for which notice thereof is sent to Seller after receipt of Goods by Buyer, liability shall be limited to returning such Goods and reimbursing Seller the direct cost of handling and transportation, (c) To the extent Goods are specially made to Buyer’s specifications Buyer shall pay Seller the price of finished Goods accepted by Buyer and the cost to Seller, excluding profits and losses of work in process and raw materials relating to this Order, less the agreed value of any Goods used or sold by Seller with Buyer’s consent. Payment provided under this paragraph shall constitute Buyer’s only liability in the event this Order is terminated.
Cancellation. Buyer may cancel this Order for default with respect to all or any part of undelivered Goods if Seller (a) does not meet delivery or performance schedules, (b) breaches any terms hereof, including warranties, or (c) becomes insolvent or commits any act of bankruptcy. In the event of cancellation for default, Buyer shall have no liability whatsoever for undelivered Goods or any part thereof.
Buyer’s Property. Confidentiality. Buyer retains title to property, all information and materials furnished to Seller to facilitate performance under this Order, and the same shall be (i) treated as Buyer’s confidential information, (ii) used exclusively by Seller to complete this Order, and (iii) returned to Buyer at its direction or upon completion, termination, or cancellation of this Order, along with copies of reproductions thereof, unless otherwise agreed to in writing by Buyer.
Special Tooling. (a) "Special Tooling" means all patterns, dies, fixtures, molds, jigs, gauges, inspection devices, special cutting tools, special test devices, drawings, and templates, and any replacements thereof, which, prior to the date of this Order, were not owned or used by Seller and which Seller has been or will be required to acquire and use solely for the purpose of furnishing Goods under this Order. Special Tooling does not include tools, capital items, or property owned by or furnished by Buyer. Before commencing work under this Order, Seller agrees to obtain prior written approval of Buyer as to the purchase of special tooling, and such request shall describe in detail each item and the price thereof, (b) Seller agrees that all special tooling shall be used exclusively for performance of work under this Order or as directed by Buyer in writing, and agrees to maintain special tooling in good condition, fully covered by insurance, and to replace it at Seller’s cost if lost, stolen, destroyed, or otherwise rendered unfit for use. Seller agrees to permit inspection and to supply Buyer with detailed statements of inventory of the special tooling upon request. Upon completion, cancellation, or termination of the work for which such special tooling is required, Seller shall prepare a list of Goods for which special tooling has been used, together with a detailed listing in a form acceptable to Buyer of the special tooling, including the unamortized cost and fair market value of each item, and shall by written assignment transfer possession and title to the special tooling to Buyer, free and clear of liens and encumbrances, in exchange for the lesser of the unamortized cost or fair market value of the tooling, except that Buyer shall be under no obligation to purchase such special tooling. Buyer reserves the right to dispose of special tooling without taking possession thereof and to receive any salvage or resale revenues resulting therefrom. Seller agrees that Buyer shall have the right to enter Seller’s premises for the purpose of obtaining possession of any special tooling.
Taxes. Prices stated herein include all taxes directly applicable to the Goods sold hereunder. Notwithstanding the foregoing, Buyer shall only be liable for such federal, state, and local taxes levied on Buyer which Seller is required by law to collect from the Buyer.
Buyer’s Right to Make Changes. Buyer may at any time, by written notice to Seller, make changes in the drawings, specifications, quantities, and schedules and shipping instructions under this Order. If any changes increases or decreases the cost of performing this Order or the time required for its performance, an equitable adjustment in prices and/or schedules shall be made, provided, however that any claim by Seller for such adjustment shall be presented in writing to Buyer within thirty (30) days from the date the change is ordered by Buyer.
Cumulative Remedies. Any right or remedy of Buyer provided herein is in addition to Buyer’s other rights and remedies provided herein or by law, and all of Buyer’s rights and remedies hereunder are cumulative and non-exclusive.
Entire Agreement. This Order constitutes the entire agreement between the parties in respect to the subject matter hereof and shall supersede all previous proposals, both oral and written, negotiations, representations, commitments, writings and all other communications between the parties. No waiver, alteration, modification of or addition to the terms and conditions contained herein shall be binding unless expressly agreed to in writing by a duly authorized representative of Buyer.
Settlement of Disputes. Any claim or dispute arising in connection with this Order which is not settled by the parties within sixty (60) days of notice thereof first being given by either party to the other shall be finally settled by arbitration under the Commercial Arbitration Rules and the Guidelines for Expediting Larger, Complex Commercial Arbitration of the American Arbitration Association, and judgement award rendered by the arbitrators may be entered in any court having jurisdiction over it.

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