- OFFER AND ACCEPTANCE. “SELLER” MEANS THE SELLER AS REFLECTED IN THE PURCHASE ORDER, PROPOSAL, OR ACKNOWLEDGMENT (THE “PROPOSAL”) TO WHICH THESE TERMS AND CONDITIONS ARE ATTACHED OR INCORPORATED BY REFERENCE. THE OFFER BY DIVERSIFIED PLASTICS, INC. (“BUYER”) TO PURCHASE PRODUCTS (INCLUDING ALL PRODUCTS SUBJECT TO THE PROPOSAL) IS EXPRESSLY MADE CONDITIONAL ON SELLER’S ASSENT TO THESE TERMS AND CONDITIONS, WHICH CONSTITUTE A BINDING CONTRACT BETWEEN SELLER AND BUYER (THE “PARTIES”). THIS CONTRACT CONSTITUTES THE COMPLETE AND FINAL AGREEMENT BETWEEN THE PARTIES FOR THE PRODUCTS. ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS CONTAINED IN ANY DOCUMENT FURNISHED BY SELLER, INCLUDING BUT NOT LIMITED TO, ANY PROPOSAL OR ANY ACKNOWLEDGMENT, ARE DEEMED TO BE MATERIAL AND ARE HEREBY OBJECTED TO AND REJECTED BY BUYER. IF SUCH AGREEMENT SHALL BE DEEMED AN OFFER OR COUNTER-OFFER BY SELLER, BUYER EXPRESSLY REJECTS SUCH OFFER OR COUNTER-OFFER. BUYER LIMITS ACCEPTANCE TO THESE CONTRACT TERMS AND EXPRESSLY OBJECTS TO ANY DIFFERENT OR ADDITIONAL TERMS PROPOSED BY SELLER. ANY ACTUAL PERFORMANCE BY BUYER OR SELLER THEREAFTER SHALL BE DEEMED A RENEWAL OF THE OFFER CONTAINED IN THIS CONTRACT AND ACCEPTANCE OF THIS CONTRACT WITHOUT CHANGE. IN THE EVENT OF A CONFLICT BETWEEN THE TERMS OF THIS CONTRACT AND THE TERMS OF ANY OTHER DOCUMENT, THE TERMS OF THIS CONTRACT SHALL CONTROL. THE OFFER TO SELL SELLER’S PRODUCTS IS VALID FOR THIRTY (30) DAYS FROM THE DATE OF THE PROPOSAL.
- CHANGES. By written notice, Buyer reserves the right to make changes to this Proposal, after it is issued, in quantities, specifications and place, time and method of delivery. If any such change causes an increase or decrease in the price of products under this Proposal or in the time required for Seller’s performance, a reasonable, equitable adjustment shall be agreed to by the parties.
- PRICE AND TERMS OF PAYMENT. All prices are DDP (delivered duty paid) at Buyer’s designated location. If a price is specified in this Proposal, the Proposal may not be filled at any price greater than the price set forth thereon without the written consent of Buyer. In the event Seller reduces its price for such products during the term of this Proposal, Seller shall reduce the prices in this Proposal correspondingly. Except as may be otherwise provided in this Proposal, the full contract price for the products shall be due and payable on the thirtieth (30th) business day following the later of the date an undisputed, accurate invoice is received by Buyer and the date all products are received by Buyer (“Payment Date’). Payment is made when Buyer’s check is mailed. Payment shall not constitute acceptance.
- TAXES. The prices applicable to products under this Proposal shall include all taxes except applicable state sales and use taxes, which taxes Buyer will pay provided they are added to the prices and stated as separate items on and at the time the applicable invoice is submitted by Seller. All taxes assessable upon the products prior to receipt by Buyer of products shall be borne by Seller.
- PACKAGING. Seller is responsible for properly packing, crating, insuring and shipping the products. Unless otherwise specified in this Proposal, any costs of packaging and shipping, including but not limited to, containers, crates, and other packaging materials, will be paid for by Seller. Seller assumes all costs and liability resulting from packing. Seller will include packing slips in all shipments and Buyer’s Proposal number (if any) will appear on all packages, slips, and invoices.
- DELIVERY. Delivery of the products shall be DDP (delivered duty paid) at Buyer’s specified location. Unless otherwise specified in this Proposal, Seller shall prepay all freight and insurance. Title to the products and risk of loss to the products will pass to Buyer upon receipt. Delay in delivery shall be considered a default under this Proposal, and give rise to liability on the part of Seller for any and all damages, including without limitation incidental, special and consequential damages. Acceptance of products on delivery will not constitute a waiver of any claims against Seller for breach and damages on account of such delay or otherwise. If a delivery date is shown on the Proposal, such date must be adhered to unless Buyer agrees to change the date in writing prior to shipment. Seller shall promptly notify Buyer whenever it appears to Seller that it will not be able to deliver the quantities specified on the dates specified. Buyer reserves the right to refuse any products and to cancel (without cancellation charge or penalty) all or any part of this Proposal if Seller fails to deliver all or any part of the products in accordance with the terms of this Proposal. If Seller is not able to meet the shipment date for the products specified on the Proposal, Seller shall ship the products on an expedited basis at Seller’s cost and expense. Time is of the essence of this Proposal.
- INSPECTION AND ACCEPTANCE. Seller will give Buyer a reasonable amount of time (but never less than 30 days) to inspect the products upon receipt at Buyer’s location. Every tender of products must fully comply with all provisions of this Proposal. If a tender is made which does not fully conform, it shall constitute a breach; Seller shall not have the right to substitute a conforming tender without written permission of Buyer. Payment for products delivered hereunder shall not constitute acceptance thereof. Buyer shall have the right to inspect such products and to reject any or all which are defective or nonconforming. products rejected and products supplied in excess of quantities called for herein may be returned to Seller at its expense and, in addition to other rights, Buyer may charge Seller all expenses and costs (including labor costs) of unpacking, examining, repacking and reshipping such products. In the event Buyer receives products in which defects or nonconformity are not apparent on first examination of the quality thereof, Buyer reserves all rights herein and at law, including, without limitation, the right to require replacement or refund, as well as payment of damages.
- WARRANTY. Seller warrants for a period of twelve (12) months from the date of delivery to Buyer or for the period provided in Seller’s standard warranty covering the products, whichever is longer, that all products supplied or performed by it shall (i) be new and will not be used or refurbished; (ii) be of the highest quality and workmanship and free from both latent and patent defects, (iii) conform exactly to all specifications, drawings or descriptions which are furnished or specified by Buyer, (iv) conform to Seller’s samples, if any, (v) be merchantable, suitable and sufficient for the particular purpose for which they are required by Buyer, fit for the particular purposes for which the products are ordinarily employed and in compliance with all warranties under the Uniform Commercial Code (“UCC”), (vi) be free of any claim of any third party or any liens or encumbrances, and (vii) if services, be performed and completed in a professional, workmanlike manner, with the degree of skill and care that is required by current, good and sound professional procedures. Seller’s services will be provided by qualified personnel and performed in a professional manner to Buyer’s reasonable satisfaction; and if any product is dependent on the work of others, Seller shall inspect and be fully responsible and liable for such work. Seller will comply with all federal, state and local laws, rules and regulations (“Laws”) and Seller will obtain any necessary permits in connection with this Proposal. Seller agrees that the warranties in this Proposal shall survive inspection of, acceptance of or payment for the products or any part thereof. No representation or statement made by any employee, agent, or representative of Buyer shall be binding on Buyer, except as expressly set forth in this Proposal. Seller warrants that all products (i) shall be produced in compliance with all Laws, including, without limitation, all applicable requirements of the Fair Labor Standards Act, as amended, and (ii) when used by Buyer in the ordinary manner for which they are intended, shall not violate any Laws, including, without limitation, the applicable portions of the Occupational Safety and Health Act, as amended, or any standards or regulations issued thereunder. Additionally, products shall be subject to all written and oral express warranties made by Seller’s agents. All warranties shall be construed as conditions as well as warranties and shall not be exclusive. Seller shall furnish to Buyer Seller’s standard warranty and service guaranty applicable to the products. All warranties and service guaranties shall run both to Buyer (its successors, assigns, subsidiaries, divisions and affiliates) and to Buyer’s customers.
If Buyer identifies a warranty problem with the products during the warranty period, Buyer will notify Seller of such problems and will return the products to Seller, at Seller’s expense. Within five (5) business days of receipt of the returned products, Seller shall, at Buyer’s option, either repair or replace such products, or refund Buyer for the same. Replacement and repaired products shall be warranted for the remainder of the warranty period or twelve (12) months, whichever is longer.
- RETURNS. If any products do not conform to the requirements stated in this Proposal, Buyer reserves the right to reject the products. No defective products shall be replaced without Buyer’s written agreement. If the rejected products have been paid for, such products may be returned and charged back to Seller.
- INSOLVENCY OF SELLER. If, during the period of this Proposal, a petition in bankruptcy shall be filed by, or against Seller, or if Seller shall makes an assignment for the benefit of creditors, Buyer shall have the right, without prejudice to any other lawful remedy and without penalty, to cancel this Proposal.
- TERMINATION. Buyer may terminate this Proposal in whole or in part at any time by written notice delivered to Seller. In the event of such termination and if Seller has not breached this Proposal, Buyer shall bear the actual out-of-pocket costs of products (or portions thereof) actually procured by Seller to fill the products required by this Proposal to be delivered within the ten (10) day period following the date of Buyer’s notice for termination, where such products (or portions thereof) have been procured specially for Buyer and are not resalable in the course of Seller’s business. Such payment shall be Seller’s exclusive remedy for such termination.
- FORCE MAJEURE. Buyer reserves the right at its option either to have Seller suspend shipment or performance of products covered by a Proposal or to cancel this Proposal, in whole or in part, at any time (without cancellation charge or penalty) where such suspension or cancellation is deemed necessary or appropriate by Buyer as a result of civil insurrection, war, fire, strike, labor stoppages or other labor disturbances, acts of God, acts or omissions of Seller, acts or omissions of any government, floods, epidemics, freight embargoes, shortages of fuel, energy or materials, failure of suppliers or subcontractors to satisfactorily meet scheduled deliveries, or any cause beyond the reasonable commercial control of Buyer.
- INDEMNITY. Seller shall indemnify and hold harmless, Buyer and its affiliates, and their directors, shareholders, owners, representatives, customers, agents, and employees (each of them “Indemnitees”), from and against any fine, penalty, loss, cost, damage, injury, claim, liability and expense, including, without limitation, reasonable attorneys’ fees and other costs and fees (individually and collectively “Liabilities”), including, but not limited to, Liabilities associated with (i) injury to or death of any person, (ii) damage to, or loss or destruction of, any property; (iii) contamination of, or any adverse impact upon, the environment, (iv) attachments, liens or claims of materialmen or laborers, (v) breach of warranty, (vi) infringement of a patent, copyright, trademark, service mark, trade secret, or other legally protected right, and (vii) any violations by Buyer of California Proposition 65, where such Liabilities arise out of, result from, or are incurred in connection with (a) products (negligent, defective or otherwise), (b) the acts or omissions of Seller, its affiliates or their agents, in connection with this Proposal, and/or (c) the breach or non-performance by Seller of any term of this Proposal, except for that portion of Liabilities caused by the sole gross negligence or willful misconduct of Buyer. At Buyer’s request, Seller shall defend Buyer in connection with any Liabilities.
- SERVICES. If the Proposal is for services, in whole or in part, the following terms and conditions shall apply. Seller is an independent contractor and is not the agent or servant of Buyer. Seller has inspected the premises and site of the service to be preformed, takes the premises as is and acknowledges that no representations have been made to Seller as to the conditions of said premises or site. Work, when commenced, shall be continuously prosecuted to completion. If Seller shall for any reason be unable to complete the work within the time set forth on this Proposal, Buyer reserves the right to complete the work and Seller shall reimburse Buyer for the costs and expenses in connection therewith. Seller waives any and all right Seller may have to any mechanic’s liens under the laws of the locality in which the work is performed.
- MISCELLANEOUS. The laws applicable to this Proposal shall be the laws of the State of Minnesota without regard to its conflict of laws. If either party commences suit, action or other legal proceeding against the other that relates to this Proposal or any product, the forum for the same, including without limitation the forum of the trial, will take place only in Hennepin County, Minnesota. Both parties agree to accept the exclusive jurisdiction of such courts and by signing this Proposal, both parties waive any objection to venue in such courts. If Buyer must enforce the terms of this Proposal through legal or other proceedings, Buyer shall be entitled to interest, attorneys fees and costs. No right or interest in this Proposal shall be assigned by Seller nor shall any duty be delegated by Seller without the written consent of Buyer. Any assignment or transfer without such written consent shall be null and void. This Agreement shall inure to the benefit of, and be binding upon, the successors and assigns of Buyer without restriction. No failure or delay by Buyer in exercising any right or remedy under this Proposal will operate as a waiver of, or impair, any such right or remedy. No waiver of any such right or remedy will be effective unless given in a signed written notice. No waiver of any right or remedy will be deemed the waiver of any other right or remedy. This is not an exclusive agreement. Buyer is free to engage others to perform or provide products the same as or similar to those provided by Seller. Despite any language in this Proposal to the contrary, all provisions by their intent or express language contemplate surviving the termination or expiration of this Proposal and delivery of products shall survive.
IN NO EVENT SHALL BUYER BE LIABLE TO SELLER OR SELLER’S ASSISTANTS, OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, WHETHER OR NOT BUYER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.