GENERAL TERMS AND CONDITIONS OF SALE
Article 1. Scope and binding character of the present terms.
- Unless otherwise agreed in writing, these terms and conditions are applicable to any sale of products by Freedom Packaging headquartered in Watsonville, California, 95076 (hereinafter the “Seller”), to customer (hereinafter the “Customer”). These terms and conditions, together with any purchase order, statement of work and any other documents specifically adopted by reference herein, constitute the entire agreement between the parties (the “Agreement”). This Agreement constitutes the parties’ entire contractual agreement and supersedes any previous oral or written representations, including but not limited to provisions in Customer’s order for products. The terms of this Agreement may not be varied or modified in any manner, unless in a subsequent writing signed by an authorized representative of Seller.
- These conditions shall apply to all contractual relationships between the Seller and the Customer.
- When particular terms are agreed upon between the Seller and the Customer, the latter shall prevail on the present terms in the event of any inconsistency.
Article 2. Order Confirmations / Acceptance. Order Confirmations will be confirmed within 24 hours of initial order placement providing the customer has provided a valid e-mail address, company address and telephone number. Any acceptance by Seller is limited to acceptance on the express terms and conditions set forth in this Agreement. Any proposal for additional or different terms by Customer or any attempt by Customer to vary in any degree any of the terms of this Agreement is hereby objected to and rejected.
Article 3. Price.
- All prices are expressed in USD and expressly exclude any taxes, duties, shipping & handling costs, and other charges, all of which are due and payable by Customer.
- Prices are based upon the economic conditions, taxes and rights applicable at the moment of the order, as well as on the prices of the Seller’s suppliers and contractors.
- Prices are subject to modification by Seller without any prior notice, in function of the variation of these elements, whatever the cause.
- Credit Hold: The Seller reserves the right to withhold the shipping of the products until the Customer clears credit hold.
- All bank charges related to an order are not included in the Price and are due by the Customer.
Article 4. Payment terms.
- Payment can be only made using the following payment methods: (i) Credit terms (upon prior approval by Supplier); or (ii) ACH or bank wire transfer.
- Payment in full is due based upon documented and agreed upon payment terms between the Seller and the Customer. Credit terms are available only for qualified customers. Standard credit terms are Net 30 days. Seller reserves the right, after prior written notice, to withhold or cancel the delivery of the products in case of non-payment of the due price, without prejudice to any other right of action.
- Interest on past due amounts shall be 1.5% per month (18% per year).
Article 5. Deliveries. Deliveries will be made depending on the product’s availability. Unless otherwise agreed in writing, the Seller’s delivery dates shall an estimate only and shall not be final or binding on Seller. Seller shall not have defaulted under this Agreement if Seller does not deliver the products on the estimate delivery date, and Customer shall not use any late delivery as a justification for cancelling the sale, rejecting the products or claiming any type of damages. Customer shall be obligated to pay for all delivery charges and costs.
Article 6. Delivery Problems. The Seller will not be held responsible or liable for delivery issues or delivery failures for any reason whatsoever including, but not limited to, incorrect delivery address provided by Customer, products shortage, product end of life, missed delivery window charges, carrier or freight issues or any other reason.
Article 7. Shipping. The Seller will ship products according to its own selected shipping instructions, unless otherwise specified by the Customer. The Seller will attempt to ship the products within the estimated timeframe reflected on the order confirmation but will not be liable for any failure to do so. For items on back order, the Seller may ship whenever the products become available without prior notice to the Customer.
Article 8. Risk and Title of products.
- The risk of loss or damage in transit shall be upon Seller and shall pass to the Customer immediately upon delivery of the product to Customer’s designated location, except where shipment is by Buyer’s vehicle, in which case the risk of loss or damage shall pass to Buyer upon completion of loading at Seller’s warehouse. In most instances, transportation costs are included in the product price if a minimum shipment weight is met. However, transportation costs are separately due and payable by the Customer when the shipment charge is in addition to product price.
- Unless otherwise agreed in writing, delivery shall take place at the time when the products are delivered to the Customer by the shipper.
- All return costs of the products to the Seller’s premises pursuant to the present section will be borne by the Customer.
Article 9. Inspection, Acceptance and Rejection.
- The Customer must inspect the products immediately upon delivery. The products shall be deemed to be accepted in full by the Customer if (i) the Customer has not given a full and detailed written notice to the Shipper within twenty four (24) hours of delivery, and (ii) Shipper has not received any such notice within twenty four (24) hours of delivery.
- Upon any timely delivered notice of product rejection, Customer will set aside any such product and preserve such product in its current condition. Seller will issue the Customer a return materials documentation (packing slip), which includes a return material authorization (CAR) number and the quality issue tracking number. Customer must include all documentation identifying and explaining why such products have been rejected and such documentation must be included with any return. Products returned to the Seller without written authorization from the Seller, or not in accordance with the Seller’s shipping instructions, will not be credited or replaced. The Seller will be responsible for arranging return freight and the associated charges from the Customer’s location to the Seller’s return location. Any custom products or non-standard manufactured products made specifically for Customer are non-refundable and non-returnable.
Article 10. Limitation of Remedies and Liability. To the fullest extent permitted by applicable law, the remedies provided in this Agreement are Customer’s sole and exclusive remedies for breach of this Agreement by the Seller. In no event will Seller be liable to the Customer for any lost profits or any incidental, consequential, special, indirect or punitive damages. Furthermore, Seller’s maximum liability to Customer for any breach of this Agreement will be the total amount paid by the Customer for products purchased in the past six (6) months.
Article 11. Limited Warranty.
EXCEPT FOR ANY WARRANTIES EXPRESSLY MADE IN WRITING BY SELLER TO CUSTOMER OR THAT ARE EXPRESSLY CONTAINED IN THIS AGREEMENT, CUSTOMER HAS AGREED (I) TO ACCEPT ANY AND ALL PRODUCTS ON AN “AS IS, WHERE IS, WITH ALL FAULTS” BASIS WITH NO RIGHT OF SET-OFF OR REDUCTION IN THE PURCHASE PRICE, AND (II) SUCH SALE SHALL BE WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, WARRANTY OF INCOME POTENTIAL, OPERATING EXPENSES, USES, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), AND SELLER DISCLAIMS AND RENOUNCES ANY SUCH REPRESENTATION OR WARRANTY.
ALL STATEMENTS, INFORMATION, AND RECOMMENDATIONS (TECHNICAL OR OTHERWISE) ABOUT SELLER’S PRODUCTS, AND THE USE OR APPLICATION OF SUCH PRODUCTS, ARE BASED ON SELLER’S EXPERIENCE AND TESTING AND ARE BELIEVED TO BE RELIABLE BUT DO NOT CONSTITUTE AN EXPRESS OR IMPLIED GUARANTEE OR WARRANTY AS TO ACCURACY, COMPLETENESS OR RESULTS TO BE OBTAINED. ALL PRODUCTS ARE SOLD, AND SAMPLES PROVIDED, WITH CUSTOMER’S AGREEMENT THAT IT ASSUMES SOLE, INDEPENDENT RESPONSIBILITY FOR ITS OWN QUALITY CONTROL, TESTING, QUALIFICATION PROCESS AND DETERMINING THE SUITABILITY OF PRODUCTS FOR ANY INTENDED USE OR PURPOSE.
This warranty applies solely to the original Customer that purchased the products and creates no rights, duties or obligations TO any third party or any heir, successor or assign of Customer. Upon the determination to Seller’s satisfaction that the products were stored and used by Customer in accordance with Seller’s suggested, applicable standards (if any) and not damaged during transportation, Customer’s sole and exclusive remedy for breach of any warranty shall be replacement of the defective products or, at Seller’s option, the issuance of a credit or refund in an amount up to the purchase price of the defective product. In no event shall Seller be responsible for claims beyond the purchase price of the defective Product. Customer will maintain traceability of all products used by Customer to use in determining if a product liability claim is based on Seller’s actual product, and any lack of traceability may result in Seller’s denial of a claim in whole or in part. THE WARRANTY SPECIFICALLY SET FORTH IN THIS SECTION 11 IS IN LIEU OF ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. SELER SPECIFICALLY DISCLAIMS AND RENOUNCES ANY AND ALL OTHER SUCH WARRANTIES.
Article 12. Data Protection. By placing an order, the Customer agrees that the Seller may store, process and use Customer’s personal data collected from an order form for the purposes of providing products to Customer and to improve Seller’s processes and procedures. The Customer may obtain a copy of the personal data held by the Seller on written request. If any personal data is incorrect, the Seller will correct it on written request of the Customer.
Article 13. Force Majeure. The following shall be considered herein as events of force majeure allowing the cancellation or suspension of the Seller’s contractual obligations, without any right of recourse for the Customer: accident affecting the manufacture or storage of the products, strikes, work stoppages or labor demands or difficulties, labor shortages or inability to procure labor, shortages of equipment, materials or supplies, shortages or lack of warehousing space or facilities, truck shortages or other transportation difficulties, war, hostilities or national emergency, acts of God, the elements, mechanical breakdowns, power failures, any act by any governmental authority or body, all external occurrences likely to delay or prevent Seller’s performance or to render such performance economically infeasible, or any other causes beyond Seller’s control.
Article 14. Unenforceability. If any provision of these general terms and conditions becomes void or unenforceable by force or operation of law, the remaining clauses shall remain valid and enforceable.
Article 15. Severability. If any term of this Agreement is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such term shall be deemed reformed or deleted, but only to the extent necessary to comply with such statute, regulation, ordinance, order or rule, and the remaining provisions of this Agreement shall remain in full force and effect.
Article 16. Applicable Law and Jurisdiction.
- These General Terms and Conditions are to be construed in accordance with and governed by the laws of the State of California, USA, without reference to California’s choice of law rules.
- Customer acknowledges and understands that the making of this Agreement is in Santa Cruz County, California. Any lawsuit involving federal law shall be filed and maintained in the U.S. District Court for Northern California in San Jose, California, while any state law claims shall be filed and maintained in the Superior Court for Santa Cruz County, California. Any arbitration, mediation or other remedial process (excluding a lawsuit involving federal law) shall be filed and maintained in Santa Cruz County, California.