By accepting a quotation or acknowledgement and/or placing an order with STIK-PAK SOLUTIONS, INC., a Virginia corporation, or any of its affiliates (collectively, “Seller”), Buyer (as defined by the applicable purchase order and/or purchase agreement) agrees to be bound by all Terms set forth below, regardless of any terms in any communication provided by Buyer.

 

1. Applicability.

These terms and conditions (these “Terms”) are the only terms and conditions which govern all the sale of goods (“Products”) by Seller to Buyer. Without limiting the foregoing, the term “Products” includes items included in the quotation provided to Buyer by Seller, and any replacements or substitutes thereto.

The accompanying quotation, acknowledgment, purchase order, or invoice (the “Sales Confirmation”) and these Terms comprise the entire agreement between the parties (the “Agreement”), and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms in any respect.

Without limiting the foregoing, the parties recognize that during the term of the parties’ Agreement, purchase orders, letters, e-mails, invoices, releases and other routine documents may be used to implement and administer the provisions of these Terms; therefore, the parties agree that these Terms shall prevail in the event of any conflict between these Terms and any of the foregoing that in any way alter, vary or modify or are in conflict with the provision of these Terms.

Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Products covered hereby (a “Master Sales Agreement”), the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.

 

2. Delivery.

Subject to availability, the Products will be delivered within a reasonable time after the receipt of Buyer’s purchase order, payment (per Section 4), film, cartoning and other material or information that may be identified. Seller shall not be liable for any delays, loss or damage in transit of Product.

Buyer shall accept delivery of Product if delivery complies in all material respects with any applicable specifications set forth in the Sales Confirmation and or purchase order.

Buyer shall inspect all Products delivered within a reasonable time, and Buyer agrees the reasonable time shall not exceed ten (10) days of delivery.  Buyer shall provide Seller written notice of rejection, in whole or in part, within fifteen (15) days of delivery.  Any written notice of rejection shall specify in detail the reasons for such rejection.  If Buyer fails to provide written notice of rejection within the fifteen-day period, the delivery shall be deemed accepted by Buyer as of the sixteenth day after delivery.  If Buyer provides notice of rejection, Seller shall be provided an opportunity to investigate in such a way as to determine the facts upon which rejection was made.  Rejected Products shall be retained by Buyer, at Buyer’s expense, until such time as Seller provides disposition instructions, which instructions shall not be unreasonably delayed.  Seller shall have no obligation to accept the return of rejected Products.  No rejected products are to be returned by Buyer unless specifically authorized by Seller.

If any rejected Product is a Nonconforming Product (as defined below), and Buyer timely rejects such Nonconforming Product, Seller shall, in its sole discretion, (i) replace such Nonconforming Product with a conforming Product, or (ii) credit or refund the price of such Nonconforming Product, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Upon Seller’s request and instruction, Buyer shall ship, at its expense and risk of loss, the Nonconforming Product to Seller’s facility. If Seller exercises its option to replace Nonconforming Product, Seller shall, after receiving Buyer’s shipment of Nonconforming Product, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Product to Buyer.

Buyer acknowledges and agrees that the remedies set forth in Section 2 are Buyer’s exclusive remedies for the delivery of any Nonconforming Product.

“Nonconforming Product” is a product that deviates materially and means only the following: (i) the Product shipped is different than identified in Buyer’s purchase order; or (ii) the Product’s label or packaging incorrectly identifies its contents.

 

3.  Shipping

Delivery shall be made FOB Seller’s facility. Buyer is responsible for paying all shipping cost, including freight charges, storage, customs, taxes, and other fees.

 

4. Payment Terms.

All prices quoted are FOB Seller’s facility.  Payment terms are: (a) for first time Buyers first order, 100% payment must accompany Buyer’s first purchase order; (b) for first time Buyers second order, 50% payment must accompany Buyer’s second purchase order, and balance of invoice due at time of shipping; (c), for return buyers, with approved credit terms, payments are net thirty (30) days from the date of Seller’s invoice (the “Due Date”) unless otherwise agreed to in writing between Buyer and Seller.   If payment is not received by Seller in full by the Due Date, Seller, in its sole discretion, may apply interest to any past due amounts at the rate of 12% per month, prorated from actual payment receipt date.  Buyer shall be responsible for all reasonable attorneys’ fees due to the collection of late payments.

Payment terms are an extension of credit based upon Seller’s evaluation of Buyer’s ability to timely perform its obligations.  If Seller reasonably believes Buyer’s ability to make payments is impaired or its financial condition has materially deteriorated, Seller reserves the right to immediately amend payment terms, require past due balances be paid and/or require adequate security in the form of deposits or such documents as Seller may reasonably require.  Pending receipt of requested items, Seller reserves the right to withhold delivery of any Product, place Buyer on Cash On Delivery (COD) terms, or require Buyer to pay all or part of any past due balance as a condition of future sales or services.

The parties agree that no right of set-off exists, and neither party shall withhold or reduce any payments due under this Agreement, regardless of any claims, disputes, or counterclaims against the other party unless otherwise agreed to in writing between Buyer and Seller.

5.  Title and Risk.

Seller retains title of all Product until paid in full. Risk of liability, loss and damage for all Products shall pass to Buyer when the products are loaded for transport at the manufacturing facility.

6.  Collateral Security.

As collateral security for the payment of the purchase price of the Products, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under Title 8.9A of the Code of Virginia (1950), as amended.

 

7.  Price Adjustments.

If these Terms are provided in connection with a Master Sales Agreement, the price of any Product may be adjusted up or down with thirty (30) days’ prior written notice from Seller to Buyer at any time during the term of such agreement. Initial prices for Products reflect current market prices and, upon receipt of the aforementioned thirty-day notice, Buyer shall be subject to any such price increase. Buyer explicitly acknowledges that the price may be affected by any changes to tariffs or other import duties that might occur.

 

8. Quantity.

As standard in the industry, Products received may be +/- 10% of the quantity ordered (“Acceptable Margin”).  If Seller delivers to Buyer a quantity of Products within the Acceptable Margin of the quantity set forth in the Sales Confirmation, Buyer shall not be entitled to object to or reject the Products or any portion of them by reason of the surplus or shortfall and shall pay for such Products the price set forth in the Sales Confirmation, adjusted pro rata.

If Buyer wishes to increase initial order quantities, Buyer shall notify Seller in sufficient time to allow Seller to adjust manufacturing capability to meet the additional requirements. Seller shall not be responsible for failure to meet the additional quantity requirement if unreasonably disproportionate to the initial order quantity.

 

9. Cancellations; Raw Materials.
   
   

   Buyer is responsible for purchasing raw materials (like corrugated board, film, cartons, pouches, flexible packaging, ingredients, etc.) purchased by the Seller on behalf of the Buyer if the Buyer cancels their purchase order or fails to take delivery of the product within a reasonable time period, with a minimum of seven (7) days. If unused raw materials are billed back to Buyer, upon payment of the amount owing, Buyer shall have and retain all right and title to any such raw materials so purchased, which can be transferred to Buyer at Buyer’s expense.

 

10. Specifications.
    
    

    Specifications for any Product (including artwork, recipe, packaging, etc.) shall be changed only upon the mutual written agreement of both parties.

 

11. LIMITED WARRANTIES; DISCLAIMER.

Seller warrants that it has good title to the Product and that all Product shall conform to the specifications agreed to by the parties.

Except for the foregoing representation made in this Section 11, Seller makes no other representations or warranties of any kind, including any implied warranty of merchantability or fitness for a particular purpose, whether expressed or implied by law, course of dealing, course of performance, usage of trade or otherwise, with respect to any Product.

Seller shall not be liable for a breach of the warranty set forth in this Section 11 unless: (i) Buyer gives written notice of the breach, reasonably described, to Seller within thirty (30) days of the time when Buyer discovers or ought to have discovered such breach; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Product and Buyer (if requested to do so by Seller) returns such Product to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim.

With respect to any breach of the limited warranty set forth in this Section 11, Seller shall, in its sole discretion, either: (i) replace such Product or (ii) credit or refund the price of such Product; provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Product to Seller.

THE REMEDIES SET FORTH IN THIS SECTION 11 SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 11.

 

12. LIMITATION OF LIABILITY. 

IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCT SOLD HEREUNDER.

The limitation of liability set forth in this Section 12 shall not apply to (i) liability resulting from Seller’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller’s acts or omissions.

 

13. Termination.
    
    

    In addition to any remedies that may be provided under these Terms, Seller shall have the right at any time to terminate the Agreement upon notice to Buyer upon the occurrence of any one or more of the following: (i) Buyer fails to perform or breaches any of the terms, conditions warranties or other provisions of the agreement, and such failure or breach is not cured within thirty (30) days following the written notification of said failure or breach to Buyer; (ii) the assignment by Buyer for the benefit of creditors or the appointment of a trustee, receiver or any similar officer of the court; or (iii) the institution of bankruptcy or similar proceedings by or against Buyer.  Buyer shall remain liable to pay Seller for any Product produced for Buyer as of the date of such termination and any raw materials purchased for Buyer, and any other amounts due Seller in accordance with these Terms.

 

14. Force Majeure.
    
    

    If Sellers performance is prevented, delayed or otherwise affected by any cause beyond its control, including any labor dispute, fire, flood, earthquake, act of terrorism, pandemic, endemic, health emergency, local or national emergency, act of war, act of God, civil unrest, government order or action, explosion, unavailability of product or raw materials beyond Seller’s control, transportation or fuel shortage, supplier delays, loss of facilities or internet, telecommunication or electrical systems, voluntarily foregoing a right in order to comply with or accommodate government orders or requests, compliance with any law or otherwise (“Force Majeure”), Seller may reduce, delay, or eliminate products without liability or obligation during the Force Majeure.

 

15. No Assignment.
    
    

    Neither party may assign its rights or obligations under the Agreement without prior written consent from the non-assigning party.

 

16. Buyer Indemnification for Third Party Claims.
    
    

    Buyer shall defend, hold harmless and indemnify Stik-Pak Solutions. Inc and its Affiliates, agents, directors, officers and employees from and against any and all losses resulting directly or indirectly from any Third Party claims, suits, actions or demands, whether brought during or after the termination of this Agreement, arising out of: (i) any breach of this Agreement by Buyer; (ii) any claim that any products or services provided by Buyer hereunder infringe or misappropriate the Intellectual Property Rights of a Third Party (other than to the extent such claim of infringement is based on compliance with Stik-Pak Solutions’ specifications), or (iii) Buyer’s gross negligence or intentional misconduct (or the gross negligence or intentional misconduct of Third Parties engaged by Buyer for any Project). Subject to this Section 4.3.1, Buyer shall control the defense and settlement of any such claims, at its option, with counsel reasonably acceptable to Stik-Pak Solutions, Inc.

 

17. Dispute Resolution.

The parties (i) hereby irrevocably and unconditionally submit to the jurisdiction of the state courts of Virginia and to the jurisdiction of the United States District Court for Western District of Virginia (W.D. Va.) for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (ii) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in the state courts of Virginia and to the jurisdiction of the United States District Court for Western District of Virginia (W.D. Va.), and (iii) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court.

 

18. Governing Law.
    
    

    All matters arising out of or relating to the Agreement or these Terms are exclusively governed by and construed in accordance with the internal laws by the courts of the Commonwealth of Virginia without giving effect to any choice or conflict of law provision or rule (whether of the Commonwealth of Virginia or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Commonwealth of Virginia.

 

19. Headings.
    
    

    The headings in these Terms are for reference only and do not affect the interpretation of these Terms.

 

20. Interpretation.
    
    

    These Terms will be interpreted as if written jointly by Buyer and Seller.

 

21. Waivers.
    
    

    Any waiver or delay of any of the parties’ rights hereunder will not deprive a party the right to act at another time or due to another breach.

 

22. Modifications.
    
    

    The parties may not alter or modify these Terms other than by subsequent written acknowledgement by both parties.

 

23. Severability.
    
    

    If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.