A. TERMS OF PURCHASE ORDER ACCEPTANCE AND CONTROLLING PROVISIONS: These Standard Terms and Conditions of Sale (“Terms and Conditions”) apply to all purchase orders (“Orders”) for the purchase of goods and/or services (collectively, the “Products”) which are accepted in writing by Jansy Packaging, LLC (“JANSY”). Any acceptance by Buyer of a Quotation, or issuance of an Order in response to any Quotation, is expressly limited and subject to these Terms and Conditions. No terms and conditions, other than the terms and conditions contained herein, shall be binding upon JANSY unless accepted by it in a writing signed by an authorized representative of JANSY. All terms and conditions contained in any oral or written communication submitted by Buyer which are different from or in addition to these Terms and Conditions are hereby rejected and are void. These Terms and Conditions supersede all prior proposals, negotiations, communications and understandings (both oral and written) with respect to the subject matters hereof.
B. PRICE; PAYMENT TERMS; INTEREST CHARGES: Buyer agrees to pay for the Products according to JANSY's applicable payment terms for the Buyer. In the event Buyer fails to make any payment to JANSY when due, Buyer's entire account(s) with JANSY may become immediately due and payable without further notice or demand. All past due amounts are subject to interest charges at the rate of twelve (12) percent per annum from the due date.
C. DELIVERY: JANSY will make a good faith effort to complete delivery of the Products as indicated by JANSY in writing. The delivery date provided by JANSY for the Products is only an estimate and is based upon the prompt receipt of all necessary information from Buyer and is subject to product availability. JANSY shall have no liability for and will not accept any back-charge for loss or damage due to delay or inability to deliver, whether or not such loss or damage was made known to JANSY, including, but not limited to, liability for JANSY's non-performance caused by acts of God, war, terrorism, labor difficulties, accidents, inability to obtain materials, delays of carriers, contractors or suppliers or any other causes of any kind whatsoever beyond the control of JANSY. Under no circumstances shall JANSY be liable for any special, consequential, incidental, indirect, or liquidated damages, losses, or expense (whether or not based on negligence) arising directly or indirectly from delays or failure to give notice of delay.
D. SHIPMENTS: JANSY ships Products (a) F.O.B. point of shipment, (b) F.O.B. destination, or (c) C&F or CIF destination port and which of the aforementioned methods of shipment shall be in accordance with terms of each Order. In the case of F.O.B. point of shipment, risk of loss transfers to the Buyer upon tender of goods to Buyer, Buyer’s representative or Buyer’s carrier at the point of shipment. In the case of F.O.B. destination, risk of loss transfers to the Buyer upon arrival of the goods at destination indicated by Buyer. In the case of C&F or CIF shipments, risk of loss transfers to the Buyer once the goods arrive at the destination port. Buyer authorizes JANSY to apply for and obtain any and all permits, licenses and inspections that may be required for the purchase, importation and/or use of the Products. The cost of permits, licenses, inspections, special packing or special handling caused by Buyer's requirements or requests shall be added to the amount of the Order. If Buyer causes or requests a shipment delay, or if JANSY ships or delivers the Products erroneously as a result of inaccurate, incomplete or misleading information supplied by Buyer or its agents or employees, storage and all other additional costs and risks shall be borne solely by Buyer. JANSY in its sole discretion will attempt to accommodate any request made by the Buyer to modify or expedite the method of shipment after JANSY has accepted an Order. Buyer will be responsible for and shall pay upon demand all additional expenses incurred to implement such change to an Order.
E. INSPECTION & ACCEPTANCE OF GOODS: Claims for damage, shortage or errors in shipping must be reported to JANSY in writing within three (3) days following delivery to Buyer. Buyer shall have fifteen (15) days from the date Buyer receives any Products to inspect such Products for defects and nonconformance which are not due to damage, shortage or errors in shipping and notify JANSY, in writing, of any defects, nonconformance or rejection of such Products. After such fifteen (15) day period, Buyer shall be deemed to have irrevocably accepted the Products, if not previously accepted. After such acceptance, Buyer shall have no right to reject the Products for any reason or to revoke acceptance. Buyer hereby agrees that such fifteen (15) day period is a reasonable amount of time for such inspection and revocation. Buyer shall have the right to order any change or modification to any product or service previously ordered by Buyer or its representatives, and to cancel any unfulfilled Order but not without JANSY's written consent (which shall not be unreasonably withheld) and payment to JANSY of all charges and expenses owed to or incurred by JANSY. Special or custom Orders may not be canceled or returned, and no refund will be made. The sole and exclusive remedy for merchandise alleged to be defective will be the replacement of the merchandise or, in JANSY’s sole discretion, refund of the purchase price. All claims for damage, defects and nonconformance must be accompanied by supporting documentation, including photographs and samples. JANSY reserves the right to physically inspect any product alleged to be damaged, defective or nonconforming.
F. LIMITED WARRANTY; REMEDIES; LIMITATION OF LIABILITY: JANSY WARRANTS THAT AT THE TIME OF DELIVERY ALL PRODUCTS SHALL BE IN GOOD WORKING ORDER FREE FROM DEFECTS IN EXCESS OF THE ACCEPTABLE QUALITY LIMITS (“AQL”) IN MATERIALS AND WORKMANSHIP AND SHALL MEET THE EXPRESS WRITTEN SPECIFICATIONS OF THE ACCEPTED ORDER. JANSY HEREBY DISCLAIMS ALL OTHER EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES, WHETHER IMPLIED BY OPERATION OF LAW, COURSE OF DEALING, CUSTOM OF THE TRADE, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. UNDER NO CIRCUMSTANCES, AND IN NO EVENT, WILL JANSY BE LIABLE FOR PERSONAL INJURY OR PROPERTY DAMAGE OR ANY OTHER LOSS, DAMAGE, OR INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL, OR LIQUIDATED DAMAGES OF ANY KIND, WHETHER BASED UPON WARRANTY, CONTRACT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER CAUSE OF ACTION ARISING IN CONNECTION WITH THE DESIGN, MANUFACTURE, SALE OR TRANSPORTATION OF THE PRODUCTS SOLD BY JANSY. BUYER HEREBY ACKNOWLEDGES AND AGREES THAT UNDER NO CIRCUMSTANCES, AND IN NO EVENT, SHALL JANSY'S LIABILITY, IF ANY, EXCEED THE NET SALES PRICE OF THE DEFECTIVE PRODUCT(S). IN THE EVENT BUYER TIMELY PROVIDES WRITTEN NOTICE AND SUPPORTING DOCUMENTATION TO JANSY OF A DEFECTIVE PRODUCT, IN THE EVENT JANSY CONFIRMS THAT A PRODUCT IS DEFECTIVE, JANSY, IN ITS SOLE DISCRETION, SHALL DELIVER AT ITS SOLE EXPENSE A NON-DEFECTIVE REPLACEMENT PRODUCT TO BUYER OR REFUND TO BUYER THE PURCHASE PRICE PAID FOR THE DEFECTIVE PRODUCT.
G. RECOMMENDATIONS BY JANSY: Buyer acknowledges that JANSY does not make and specifically disclaims any and all implied representations, warranties and/or guaranties of any kind with respect to (i) the Products sold, their use, design, application or operation, their merchantability, their physical condition or their fitness for a particular purpose, or (ii) the accuracy or reliability of any technical information or guidance, specifications, formulations or documents furnished to Buyer.
H. DEFAULT; REMEDIES OF JANSY: Buyer agrees that any of the following shall constitute an event of default which shall enable JANSY, at its option, to suspend any unexecuted portion of this Order or to terminate the agreement and exercise any rights or remedies which it may have in equity or at law: (a) the failure of Buyer to perform any terms or conditions contained herein or in any accepted Purchase Order, including, without limitation, remitting any payment when due; (b) any failure of Buyer to give required notice; (c) the insolvency of Buyer or its failure to pay debts as they mature, an assignment by Buyer for benefit of its creditors, the appointment of receiver for Buyer or for the materials covered by this Order or the filing of any petition to adjudicate Buyer bankrupt; (d) the dissolution or termination of existence of Buyer; (e) a failure by Buyer to provide reasonable assurance of performance within ten (10) days after a written demand by JANSY or (f) if JANSY, in good faith and with five (5) days advance written notice to the Buyer, believes that Buyer's prospect of performance under this Agreement is impaired. All rights and remedies of JANSY herein are in addition to, and shall not exclude, any rights or remedies that JANSY may have by law. In the event it becomes necessary to incur any expense for collection of any overdue account, reasonable collection charges, including reasonable attorneys' fees and court costs, will be added to the balance due and Buyer shall pay all such charges.
I. INDEMNIFICATION: JANSY makes no promise or representation that the Products will conform to any international, federal, state or local laws, ordinances, regulations, codes or standards, except as particularly specified and agreed upon in writing by an authorized representative of JANSY. JANSY shall not be responsible for any losses or damages sustained by the Buyer or by any third party as a result of improper use or misapplication of the Products. To the fullest extent permitted by law, Buyer shall defend, indemnify and hold harmless JANSY, and its principals, agents and employees, against any loss, damage, claim, suit, liability, judgment or expense (including, without limitation, attorney's fees) arising out of or in connection with any injury, disease or death of persons (including, without limitation, Buyer's employees and agents) or damage to or loss of any property or the environment, or violation of any applicable laws or regulations resulting from or in connection with the sale, transportation or use of the Products by Buyer or of the information, formulations, services or other work supplied to Buyer, whether caused by the concurrent and/or contributory negligence of Buyer or any of its agents, employees or suppliers. The obligations, indemnities and covenants contained in this paragraph shall survive the consummation or termination of this transaction.
J. RETURNS: Only with prior written return authorization from JANSY, Buyer may return any product which JANSY stocks within thirty (30) days of receiving the product, if: (i) it is in new condition, suitable for resale in its undamaged original packaging and with all its original parts and (ii) it has not been opened, used, modified, altered or damaged. Buyer's product returns not meeting (i) and (ii), above, will be evaluated on an individual basis after Buyer has contacted JANSY's authorized representative for prior written permission to return such product. For all product returns, Buyer is responsible for return freight to the origin from which the product was shipped. This provision shall not apply to any goods that are rejected or returned in accordance with the provisions of Paragraph I.
K. INTELLECTUAL PROPERTY: JANSY represents and warrants that it is authorized to sell the Products and that and that the Products will be delivered to their agreed destination free and clear of all liens and encumbrances. JANSY makes no warranty or representation that the use or sale of any Product, whether alone or in combination with other products, will not infringe any patents, trademarks, registered designs, formulas or other proprietary rights of any party, and all such warranties and representations hereby are disclaimed.
L. TAXES; TARIFFS: Buyer shall pay the purchase price for all Products in accordance with the terms of each accepted Order. Unless otherwise expressly stated in each accepted Order, prices set forth in JANSY’s Quotation are exclusive of any taxes, fees, tariffs, duties, surcharges, and levies, however designated or imposed, including but not limited to value-added and withholding taxes that are levied or based upon the amounts paid under any accepted Order. The amount of any sales, excise, use or other taxes, if any, applicable to the Products, together with all duties, tariffs, or other surcharges imposed upon the Products by any governmental entity, regulatory agency or taxing authority (collectively, “Taxes”), and where required by law shall be paid by JANSY and added to JANSY’s invoice and shall be paid by Buyer, unless Buyer provides JANSY with an exemption certificate acceptable to the taxing authorities. With respect to any Taxes which JANSY may be required to pay or collect under any existing or future law, upon or with respect to the sale, purchase, delivery, storage, processing, use or consumption of any of the Products, including taxes upon or measured by the receipts from the sale thereof, JANSY will notify Buyer of all such applicable Taxes in its quotation if such information is known and shall include all such Taxes in its invoice. JANSY shall promptly notify and remit an invoice to Buyer for any Taxes which are imposed or become due on any Products or shipments thereof after an Order has been accepted by JANSY. In no circumstance may Buyer cancel any Order because of the imposition of any Taxes.
M. FORCE MAJEURE: JANSY expressly disclaims liability for any failure, delay or error in the performance of any of its obligations under this Agreement caused, in whole or in part, by conditions beyond its reasonable control, including but not limited to strikes or other labor disputes; regional, national, or worldwide pandemics, health or similar emergencies; riots, war, terrorist actions or insurrections; fires, floods or other natural causes or catastrophic events; or the acts or regulations of any government or agency or subdivision thereof. In the event that any such condition prevents JANSY from performing any of its obligations under this Agreement, JANSY shall notify Buyer as soon as possible when performance is expected and will keep the Buyer advised on the progress of resolving the circumstance giving rise to the non-performance. Buyer shall accept all Products which have been shipped before such interruption, or which may be completed within sixty (60) days of such notice, notwithstanding such delay. In the event Products cannot be completed within such timeframe, and further provided the Products have not been manufactured as of the time of such interruption, JANSY shall have the right, exercisable in its sole discretion, to terminate the applicable Purchase Order immediately upon written notice without further liability of any kind with respect to that Purchase Order.
N. SEVERABILITY: These terms and conditions of sale shall not be construed against the party preparing them, but shall be construed as if all parties jointly prepared these terms and conditions of sale and any uncertainty or ambiguity shall not be interpreted against any one party. If any provision hereof is held to be illegal, invalid or unenforceable under any present or future laws, such provision shall be fully severable and the terms and conditions herein shall be construed and enforced as if such illegal, invalid or unenforceable provision had never been made a part hereof. The remaining provisions shall remain in full force and effect and shall not be affected by such illegal, invalid or unenforceable provisions or by their severance from these Terms and Conditions.
O. SET-OFF: Buyer shall not be entitled to set-off any amounts due Buyer against any amount due JANSY in connection with this transaction.
P. NON-WAIVER: JANSY's failure to insist upon the strict performance of any term or condition herein shall not be deemed a waiver of any of JANSY's rights or remedies hereunder, nor of its right to insist upon the strict performance of the same or any other term herein in the future. No waiver of any term or condition hereunder shall be valid unless in writing and signed by JANSY's authorized representative.
Q. ENTIRE AGREEMENT: These Terms and Conditions together with each applicable purchase order accepted by JANSY constitute the entire, complete, and exclusive agreement between the parties with respect to the subject matter thereof and contain all the agreements and conditions of sale; no course of dealing or usage of the trade shall be applicable unless expressly incorporated herein. These Terms and Conditions may not be added to, modified, superseded or otherwise altered or amended except by a written modification signed by an authorized representative of each party. All transactions shall be governed solely by the terms and conditions contained herein. These Terms and Conditions shall control in the event of any conflict or ambiguity in the language of an Order.
R. NOTICES: All notices shall be in writing and addressed to the parties at the addresses set forth in the Purchase Order or Confirmation, or to such other address that may be designated by the addressee in writing. All notices shall be delivered by personal delivery, nationally recognized overnight courier, or by certified or registered mail (return receipt requested, postage prepaid).
S. NO ASSIGNMENT; NO THIRD-PARTY BENEFICIARIES: Buyer shall not assign any of its obligations hereunder to any third party without JANSY’s express, written consent in advance. This Agreement is only for the benefit of the parties, and no third party shall have a right to enforce any provision of this Agreement.
T. GOVERNING LAW; TIME LIMITATIONS: This transaction shall be governed in all respects by the substantive laws of the State of New York (excluding choice of law provisions). Buyer agrees that any legal action that Buyer may bring arising out of or related to this transaction or the Products sold hereunder shall be filed in the State or Federal Courts located within New York County, New York within two (2) years after the date of JANSY’s invoice, notwithstanding any longer applicable statute of limitations. The United Nations Convention on Contracts for the International Sale of Goods ('CISG') shall NOT apply to the transactions to which these Terms and Conditions apply, nor to any other aspect of the relationship between the parties, and application of the CISG is expressly disclaimed and waived.
U. INDEPENDENT CONTRACTORS: The relationship between JANSY and Buyer is that of independent contracting parties. Nothing contained in this Agreement shall be construed or interpreted to create any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the parties. Neither party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement or undertaking with any third party.
V. WAIVER OF JURY TRIAL: Buyer and JANSY irrevocably and unconditionally waive any right either party may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.