Standard Terms and Conditions
PREFERRED PLASTICS, INC.
STANDARD TERMS AND CONDITIONS OF SALE
All sales by Preferred Plastics, Inc. and its affiliates (collectively “Preferred”) are subject to the following terms and conditions of sale. “Goods” refers to any products sold by Preferred and “Customer” refers to the person or entity purchasing Goods from Preferred.
Agreement. All sales of Goods and any provision of services by Preferred to Customer are governed by and subject to these standard terms and conditions of sale, as they may be amended from time to time by Preferred, which form a binding agreement between Preferred and Customer (the “Agreement”). This Agreement incorporates by reference all additional terms and conditions stated in applicable price lists, product catalogs, order acknowledgments, electronic data interchange directives, and sources and other documentation furnished by Preferred to Customer (“Additional Terms”). These standard terms and conditions govern in the event of any conflict or inconsistency with any Additional Terms. This Agreement is a complete and exclusive statement of the terms and conditions of the agreement between Preferred and Customer. Any changes to this Agreement are binding and enforceable only if made in writing and signed by an authorized officer for both parties. Preferred does not agree to and rejects any terms contained in Customer’s purchase orders or other documents that are additional to or different from these terms. Terms that are printed on or contained in a purchase order or other form prepared by Customer additional to, in conflict with or inconsistent with theses terms shall be inapplicable and shall have no force or effect. If Customer has not otherwise agreed to these terms, Customer’s acceptance of delivery of, or full or partial payment for, the Goods will constitute Customer’s acceptance of these terms and conditions.
Orders. All orders for Goods must be in the form of a purchase order submitted by Customer to Preferred at 800 East Bridge Street, Plainwell, Michigan 49080. All orders are subject to final approval by Preferred. Upon approval, Preferred may issue an order acknowledgment to Customer. Following approval by Preferred, orders may not be changed or canceled without the written approval of Preferred. Customer may request cancellation of a purchase order by submitting a written request to Preferred. Customer will reimburse Preferred for all expenses and losses resulting from any Customer change or cancellation.
Prices. The prices of Goods will be those prices published in the then current price list in effect on the date that Preferred accepts the order for the Goods sold, or as specifically agreed by the parties in writing. Prices are subject to change without notice. Prices quoted are exclusive of all taxes and charges of any kind, including without limitation, sales, excise, use and property taxes. Preferred will add all taxes and charges to the invoice and Customer agrees to pay all applicable taxes or charges levied by any tax authority, excluding any taxes based upon Preferred’s income.
Payment Terms. Payment terms shall be as stated in the invoice or order acknowledgment issued by Preferred to Customer or as otherwise agreed by Preferred. Full payment for all Goods is due in accordance with the applicable terms. All payments shall be made in U.S. Dollars. Discount terms for early cash payments will apply only as specified in the invoice or agreed by Preferred. Invoices not fully paid by the specified payment date are deemed overdue and unpaid balances will accrue interest at the rate specified in the applicable price list, or if no rate is specified, at the rate of two (2) percent above the prime rate published in the Wall Street Journal or at the highest rate permitted by law, if lower. Preferred will be entitled to suspend performance of any order or obligation to Customer until the Customer’s account is current. If at any time Preferred determines that Customer’s financial condition, payment practices or credit rating does not justify a sale on credit, Preferred may require advance payment or may ship C.O.D. Customer will reimburse Preferred for all expenses, including reasonable attorneys’ fees, incurred in the collection of any delinquent account or enforcing its rights under these terms and conditions.
Title to Goods. Title to and risk of loss of the Goods will pass to Customer upon delivery of the Goods to the Customer or the carrier at the shipping point. Customer grants Preferred a security interest in the Goods and will keep the Goods properly stored, insured and identifiable as subject to Preferred's lien until full payment is made by Customer for the Goods. Preferred reserves the right to enter Customer's premises to repossess Goods for which payment is overdue. Notwithstanding the foregoing, Customer is entitled to sell the Goods and pass good title thereto to any unaffiliated third party; provided however, that such right will automatically cease if Customer becomes insolvent or if a petition in bankruptcy or receivership (or any similar legal or administrative proceeding) is filed by or against Customer, if any trustee or receiver is appointed for assets of Customer, or if Customer makes an assignment for the benefit of creditors.
Delivery and Delay. Preferred will deliver Goods to Customer FOB shipping point by the method of shipment and routing determined by Preferred, except as otherwise specifically agreed in writing between Preferred and Customer. Customer will pay Preferred for all delivery charges as established by Preferred and stated in the invoice. Shipments are subject to the standard limitations on loss or liability imposed by the carrier, except to the extent Customer submits an advance written request for higher loss coverage as available from the carrier at Customer's cost. Any Delivery dates specified in an order acknowledgment are estimates only and time is not of the essence. Preferred may deliver all of the Goods at one time or in portions from time to time. All deliveries are subject to modifications or cancellation due to events beyond Preferred’s reasonable control, including acts of God, compliance with any law, order, rule or regulation of any governmental or other authority, delay in transportation, labor disputes, strikes, failure of equipment or systems, or shortages of any labor or materials or services ("force majeure"). If Preferred cannot finish and deliver the Goods on the estimated delivery date due to an event of force majeure or if Preferred has reasonably endeavored to deliver the Goods on the estimated delivery date, the estimated time of delivery will be extended accordingly and Preferred will not be liable for any loss of profit or property, or for any direct, indirect, special, incidental, consequential or other damages caused by any delay or failure to deliver. If Customer causes or requests a delay in the manufacture or delivery of any Goods, Customer will reimburse Preferred for all resulting damages, including without limitation, payment of reasonable storage expenses for the Goods during the period of delay or interruption.
Credits and Chargebacks. Claims for credits and chargebacks will be considered by Preferred only if: 1) received by Preferred within sixty (60) days of ship date or reasonable delivery of the specific goods that are the subject of such claim, and 2) submitted to Preferred with a complete description identifying the specific goods and the reason that Customer is claiming such credit or chargeback. Credits and chargebacks may be denied by Preferred in Preferred’s sole discretion and, without limiting the foregoing, will be denied without review if not submitted within the sixty (60) day period with required descriptions.
Permitted Sales. Customer will inspect all Goods for damage before offering them for sale and will not sell any Goods that are damaged, defective, “irregular,” “seconds,” or otherwise fail to qualify as “first quality” unless Preferred has specifically authorized such sales in writing. Customer is prohibited from promoting, advertising or selling any Goods through the Internet, computer “web sites” or “home pages,” computer on-line transactions or similar technology developed in the future, except as specifically authorized in a signed agreement between Preferred and Customer. Preferred may withhold or revoke its consent to any of the above at any time in its sole discretion.
Warranty. Preferred warrants that upon delivery the Goods will be free from defects in material and workmanship under proper and normal use. Goods shall be considered “defective” if the defect materially impairs the value of the Goods for their intended use to Customer or the end-user. Preferred further warrants that all Goods and services will be produced and furnished in accordance with applicable laws and regulations, including the Fair Labor Standards Act of 1938, as amended.
Remedies. In accordance with the terms of the limited warranty stated above (“Warranty”), Preferred will replace any defective Goods or, at its option, refund the purchase price paid to Preferred net of shipping costs, provided that written notice of the defect is received by Preferred within thirty (30) days of the appearance of such defect. If notice is not given within such period, any claim for breach of warranty shall be conclusively deemed to have been waived and Preferred shall not be liable under this Warranty.
Stock Returns. All sales are final and no return of nondamaged Goods will be accepted without prior written authorization from Preferred. If Preferred determines that it erred on the quantity, style or other aspect regarding the initial shipment of Goods, Preferred will authorize the return of saleable Goods provided the request for return authorization is made within thirty (30) days of Customer’s receipt of the merchandise shipped in error. Upon receipt of authorized stock returns, Preferred will credit Customer’s account with the price initially charged for the returned Goods plus the amount expended by Customer on freight. A restocking fee and repackaging fee may be deducted from the credit if not caused by Preferred’s error. If Customer ships nondamaged merchandise to Preferred without first obtaining Preferred’s written authorization, such shipment will be refused by Preferred and returned to Customer at Customer’s expense.
Damaged Goods. Prior return authorization from Preferred for damaged Goods is required. If a return is approved, Preferred will authorize the return of saleable Goods. Damaged Goods should be shipped in cartons marked “DAMAGED.” Preferred will inspect returned Goods upon receipt and determine whether such Goods are actually of inferior quality. If inspection reveals no legitimate reason to issue credit, Preferred will inform Customer that there is “No Credit” and such Goods will be immediately disposed of unless: 1) Customer has specifically requested that all “No Credit” Goods be returned to Customer, or 2) Customer has enclosed a note with the Goods requesting that specific Goods be returned if “no credit” can be allowed. Return of “No Credit” Goods shall be at Customer’s expense.
Special Parts Made to Order. Customer will accept over-runs or under-runs on each individual items not exceeding 10% of the quantities ordered, and the billing will be adjusted accordingly.
Limitations on Warranty. Preferred’s liability for any defect in the Goods, whether based on contract, tort, warranty, strict liability, or any other theory, shall not exceed the purchase price of the defective Goods. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. IN PARTICULAR, THERE IS NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE REMEDY OF REPLACEMENT OR REFUND PROVIDED UNDER THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER REMEDIES. PREFERRED SHALL HAVE NO LIABILITY TO THE CUSTOMER FOR CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY NOT CAUSED BY NEGLIGENCE OF PREFERRED, PROPERTY DAMAGE, LOST PROFITS OR OTHER ECONOMIC INJURY DUE TO ANY DEFECT IN THE GOODS OR ANY BREACH OF THIS AGREEMENT BY PREFERRED. PREFERRED SHALL NOT BE LIABLE TO THE CUSTOMER IN TORT FOR ANY DEFECT IN THE DESIGN OR MANUFACTURE OF THE GOODS.
No representative, agent or dealer of Preferred has authority to modify, expand, or extend this Warranty, to waive any of the limitations or exclusions of this Warranty, or to make any different or additional warranties with respect to any Goods or services furnished by Preferred.
Intellectual Property. Customer acknowledges Preferred’s ownership or license of all trademarks, service marks, copyrights, imprints, rights of publicity, patents, design patents, registered designs, industrial designs, trade dress, product design, trade secrets and other intangible rights relating to the Goods (collectively “Preferred Intellectual Property”) and acknowledges that Customer shall have no right, title or interest whatsoever in any Preferred Intellectual Property. Any use of Preferred Intellectual Property in the promotion or sale of Goods will inure to the sole benefit of Preferred, shall be subject to Preferred’s approval and shall strictly conform to sales and advertising guidelines as established from time to time by Preferred. Customer grants Preferred an irrevocable, unrestricted and fully paid license of any intellectual property (such as designs, copyrightable advertising or promotional materials) developed in connection with the Goods and agrees to provide, and obtain from all third parties, all assignments or “work for hire” certifications necessary to secure Preferred’s rights to all such intellectual property.
Period of Limitations. No claim, suit or other proceeding may be brought by Customer for any breach of the foregoing Warranty by Preferred or in any way arising out of this Agreement or relating to the Goods after one (1) year from the date the cause of action accrues.
Applicable Law. This Agreement between Preferred and Customer shall be considered to have been made in the State of Michigan, and it shall be governed by and interpreted according Michigan law, without giving effect to conflict of law principles. Any action arising out of or relating to the Agreement may be brought only in a federal or state court in Grand Rapids, Michigan, having jurisdiction of the subject matter, and Customer irrevocably consents that such court shall have personal jurisdiction over Customer and waives any objection that the court is an inconvenient forum.
Independent Contractor. Preferred is an independent contractor under this Agreement. Nothing in this Agreement shall be deemed to make Preferred or its employees or agents an employer, employee, partner or joint venturer of Customer.
Miscellaneous. If any provision of this Agreement is invalid or unenforceable under any applicable law, the provision shall be ineffective to that extent and for the duration of the illegality, but the remaining provisions shall be unaffected. Customer shall not assign any of its rights nor delegate any of its obligations under this Agreement without the prior written consent of Preferred. This Agreement shall be binding upon and enforceable by and against Customer and Preferred, and their respective legal representatives, successors, and assigns.
Preferred’s Rights. Preferred has all rights and remedies given to sellers by applicable law, and Preferred’s rights and remedies are cumulative and may be exercised from time to time by Preferred. No waiver by Preferred of any breach of the Agreement by Customer shall be effective unless in writing nor operate as a waiver of any other breach. Preferred shall not lose any right because it has not exercised that right in the past.