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The following are the terms and conditions ("Terms and Conditions") under which Essentra Specialty Tapes ("Essentra Specialty Tapes"), its designated representatives and its successors and assigns, sells its products.
1. Terms and Conditions. These Terms and Conditions shall apply to purchase orders issued and accepted or other contractual commitments to buy and sell Essentra Specialty Tapes products (collectively, "Orders"). Essentra Specialty Tapes hereby gives notice of its objection to any different or additional terms that may be included by the person, firm, corporation or other business entity that places an Order ("Buyer"). These Terms and Conditions will become a binding contract only when a written or electronic acceptance of an Order is sent to Buyer by Essentra Specialty Tapes. If Buyer has not otherwise accepted these Terms and Conditions, Buyer’s acceptance of any products delivered by Essentra Specialty Tapes pursuant to any Order shall constitute Buyer’s acceptance of these Terms and Conditions with respect to such Order. These Terms and Conditions shall govern each Order notwithstanding any different, conflicting or additional terms and conditions which may appear on any form submitted by Buyer.
2. Prices. Essentra Specialty Tapes prices for stock products are subject to change without prior notice. Prices payable under an Order for stock products shall be based on Essentra Specialty Tapes published prices in effect at the time the Order was placed. Notwithstanding the foregoing sentence, however, for stock products to be delivered more than 30 days after an Order was placed, the applicable price shall be the higher of the price in effect at the time the Order was placed and the price in effect on the date Essentra Specialty Tapes delivers the product for shipment. Prices for custom products shall be as stated in Essentra Specialty Tapes quotation. Stenographic and clerical errors, if any, made by Essentra Specialty Tapes in any price quotation are subject to correction by Essentra Specialty Tapes. Prices are exclusive of all sales, use and similar taxes. Any tax Essentra Specialty Tapes may be required to collect or pay upon the sale or delivery of Essentra Specialty Tapes products shall be for the account of Buyer, who shall promptly pay the amount thereof to Essentra Specialty Tapes or the taxing authority as required.
3. Termination for Convenience. Orders for products shall be terminable by Buyer on written notice received by Essentra Specialty Tapes prior to delivery by Essentra Specialty Tapes to the carrier for shipment. Upon termination of an Order by Buyer for stock products, Buyer shall be liable for a restocking charge of 20% of the price for each product terminated. Upon termination by Buyer of an Order for custom products (a) with respect to products manufactured prior to termination, Buyer shall be liable for the full price, and (b) with respect to products not fully manufactured, Buyer shall be liable for all direct and indirect costs and expenses incurred by Essentra Specialty Tapes in fulfilling the Order, including all materials purchased, commitments made and tooling performed.
4. Deliveries and Delivery Quantities. Essentra Specialty Tapes will make all commercially reasonable efforts to adhere to the shipping or delivery dates requested by Buyer. Essentra Specialty Tapes shall not be liable for any damages, loss or expense of Buyer for failure to meet any shipping or delivery dates for any reason whatsoever. Unless otherwise agreed, all products shall be delivered F.O.B. (in accordance with the Uniform Commercial Code) Essentra Specialty Tapes manufacturing facility or a Essentra Specialty Tapes-owned distribution facility (whichever is applicable), and Buyer shall make all arrangements with an appropriate carrier to receive and transport the products to the destination specified by Buyer. Risk of loss for the products shall pass to Buyer upon delivery to the carrier. If Essentra Specialty Tapes agrees to arrange for a carrier, the cost of the carrier and insurance shall be added to the otherwise applicable price but risk of loss for the products will still pass to Buyer upon delivery to the carrier. Title shall pass upon Essentra Specialty Tapes receipt of full payment by Buyer. Buyer shall accept overruns and under-runs on each individual item of custom product purchased hereunder, not exceeding 10% of the quantity of any product ordered. Where closer control of quantity is required by Buyer, special arrangements must be made in a writing signed by Buyer and Essentra Specialty Tapes. Any claims for shortages in the quantity of product delivered to Buyer must be made to Essentra Specialty Tapes, in writing, within 15 days from the date of delivery. Notwithstanding the foregoing, Essentra Specialty Tapes may make partial deliveries of products. In the event of a shortage of any product or delays in delivery caused by force majeure as provided in Paragraph 13 below, Essentra Specialty Tapes reserves the right to apportion products among its customers in its sole discretion.
5. Inspection. Buyer acknowledges that Essentra Specialty Tapes inspects the products sold hereunder on a sampling basis only, and such inspections will be conducted in accordance with Essentra Specialty Tapes standard practice of quality control. If 100% inspection is required by Buyer, arrangements must be made with Essentra Specialty Tapes before an Order is placed and reflected in a writing signed by both parties. Additional inspection requirements may affect the price. Notwithstanding the foregoing, with respect to custom products, Buyer assumes full responsibility for inspecting all custom products upon delivery.
6. Packaging and Packing. Standard packaging and packing methods selected by Essentra Specialty Tapes will be used unless otherwise agreed in a writing signed by both parties. Additional packaging and packing costs incurred at Buyer’s request shall be payable by Buyer and added to the applicable invoice.
7. Payment and Credit Terms. Essentra Specialty Tapes payment terms are net 30 days from the date of the invoice for Buyers who have an established credit record with Essentra Specialty Tapes, which shall be determined by Essentra Specialty Tapes in its sole discretion. Essentra Specialty Tapes reserves the right to refuse to deliver any product to Buyer except upon payment in cash upon delivery. In the event Buyer fails to make payments as required herein, Buyer shall pay interest at a rate of 1 and 1/2% per month on the unpaid balance, together with the costs of collection and attorneys’ fees, all without relief from valuation and appraisement laws. Essentra Specialty Tapes shall have a security interest in all products delivered to Buyer under an Order until Essentra Specialty Tapes receives payment in full as provided herein.
8. Warranties and Remedies. Essentra Specialty Tapes warrants that at the time of delivery for shipment (a) stock products delivered hereunder shall be free of defects in workmanship and material and conform to any product descriptions that are made a part of the Order and accepted by Essentra Specialty Tapes in writing and (b) custom products delivered hereunder shall conform to any Buyer specifications that are made a part of an Order and accepted by Essentra Specialty Tapes in writing. EXCEPT AS PROVIDED IN THE PRECEDING SENTENCE, ESSENTRA SPECIALTY TAPES MAKES NO WARRANTY REGARDING PRODUCTS PURCHASED HEREUNDER (OTHER THAN WARRANTY OF TITLE) AND DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WHETHER CREATED BY CONTRACT OR BY OPERATION OF LAW, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE WARRANTIES MADE HEREIN ARE MADE SOLELY TO BUYER AND SHALL NOT EXTEND TO OR BE ASSIGNABLE TO BUYER’S CUSTOMERS, INCLUDING BUT NOT LIMITED TO ANY CUSTOMER WHO MAY BE A CONSUMER AS THAT TERM IS DEFINED UNDER THE MAGNUSON-MOSS WARRANTY-FEDERAL TRADE COMMISSION IMPROVEMENT ACT. If any Product delivered hereunder fails to conform to the foregoing warranty and such product (or non-conforming part thereof) is returned to Essentra Specialty Tapes by Buyer, then Essentra Specialty Tapes, at Essentra Specialty Tapes sole option, shall repair or replace such product (or non-conforming part) and make such repaired or replacement product (or part) available for shipment to Buyer. Essentra Specialty Tapes obligation to repair or replace is expressly conditioned on (a) Buyer obtaining written return authorization from Essentra Specialty Tapes prior to returning such non-conforming product and (b) Essentra Specialty Tapes receipt of such nonconforming product within 30 days after delivery. Buyer shall bear all costs of transporting the non-conforming product (or part) back to Essentra Specialty Tapes for repair or replacement and then from Essentra Specialty Tapes back to Buyer. Essentra Specialty Tapes remedial obligations shall be excused if the product (or part) has been subjected to alteration, misuse, abuse or improper storage by Buyer. Unless Essentra Specialty Tapes expressly agrees in writing in advance, no set-off, allowance or credit shall be allowed for any non-conforming product. The repair or replacement remedy as set forth in this paragraph shall be Buyer’s sole and exclusive remedy for non-conforming products purchased hereunder.
9. Usage. Essentra Specialty Tapes reserves the right to select sources of supply for raw materials and to change the raw materials at any time. Essentra Specialty Tapes does not guarantee the compatibility of performance of the materials in its products, or the products themselves, with any of Buyer’s specific products or intended uses, whether or not such uses are known to Essentra Specialty Tapes or disclosed by Buyer to Essentra Specialty Tapes. Buyer is responsible for insuring compatibility between Essentra Specialty Tapes product and any other products or components that may be combined therewith or placed therein. Buyer assumes all risk and liability for results obtained by the use of the products sold hereunder, whether used singly or in combination with other products. Buyer shall indemnify, save and hold Essentra Specialty Tapes harmless from and against (a) any and all loss, damage, injury, claim, cause of action or proceeding arising out of Buyer’s sale or use of Essentra Specialty Tapes product, whether singly or in combination with other products, and (b) any and all costs and expenses, including attorneys’ fees, related thereto. To the fullest extent permitted by applicable law, in the event of and in connection with any resale of Essentra Specialty Tapes products by Buyer in any fashion whatsoever, Buyer shall require and obtain from its customers restrictions of warranties and limitations and waivers of liability, and other limited remedies, defenses and protections running to and for the benefit of Essentra Specialty Tapes, including indemnity, at least equal to and including such items set forth herein, in order to maintain and provide to Essentra Specialty Tapes throughout the channels of distribution through and including the ultimate use and consumption of Essentra Specialty Tapes products the limitations and waivers of liability, remedies, defenses and protections set forth herein without any enlargement whatsoever of liability of Essentra Specialty Tapes as if the sale hereunder to Buyer were to and for the ultimate use or consumption of such Essentra Specialty Tapes product. Buyer shall insure that all information, labels and other warnings concerning Essentra Specialty Tapes product provided to Buyer by Essentra Specialty Tapes, if any, are kept and delivered with Essentra Specialty Tapes product throughout the channels of distribution. Without limiting Buyer’s obligations as stated elsewhere herein, Buyer shall indemnify, save and hold Essentra Specialty Tapes harmless from and against any and all loss, damage, injury, claim, cause of action or proceeding that may result from Buyer’s failure to adhere to the covenants contained in this paragraph, and from and against any and all costs and expenses, including attorneys’ fees, related thereto.
10. Custom Die Cut Products. The following provisions apply to all sales of custom die cut products sold under an Order. In the event Essentra Specialty Tapes fabricates, or manufactures any dies, forms or patterns (collectively called "Dies") necessary for the manufacture of custom die cut products sold under an Order, Buyer shall reimburse Essentra Specialty Tapes for the full cost of making such Dies and such Dies shall remain the property of Essentra Specialty Tapes until Essentra Specialty Tapes receives full payment from Buyer. In the event Essentra Specialty Tapes is required to re-design, repair or replace any Dies, Buyer shall reimburse Essentra Specialty Tapes for all such costs, including tooling and re-tooling costs. Buyer acknowledges that such Dies will be based on technical information and drawings provided by Buyer to Essentra Specialty Tapes, and Buyer agrees not to assert any claim against Essentra Specialty Tapes with respect to any such technical information or drawings Buyer may have disclosed to Essentra Specialty Tapes. Essentra Specialty Tapes shall comply with all specifications, drawings, quality requirements and procedures specified by Buyer, but once Buyer has agreed in writing to the design for a Die, Buyer shall be solely responsible for the proper form, fit and function of the products manufactured using the Die. Essentra Specialty Tapes shall have no liability to Buyer for, and without limiting Buyer’s obligations as stated elsewhere herein, Buyer shall indemnify and hold Essentra Specialty Tapes harmless from, any claims, including but not limited to claims of third parties, arising out of or relating in any way to the Dies or the products manufactured using such Dies, whether based on patent, trademark, copyright, defective design, product liability, and whether arising out of contract, tort or strict liability, except to the extent such claim arises out of the negligence or willful misconduct of Essentra Specialty Tapes or its employees. In the event Buyer provides Dies to Essentra Specialty Tapes, Essentra Specialty Tapes shall have no liability to Buyer for any loss or damage to such Dies during transportation from Buyer to Essentra Specialty Tapes or during Essentra Specialty Tapes possession and control of such Dies, unless such loss or damage is due solely to the gross negligence or intentional misconduct of Essentra Specialty Tapes or its employees. Buyer shall be solely responsible for obtaining and paying for any insurance on such Dies. To the fullest extent permitted by applicable law, Essentra Specialty Tapes shall retain a security interest in the Dies (whether created by Essentra Specialty Tapes or provided by Buyer) in an amount equal to the total of (i) any unpaid amount due Essentra Specialty Tapes hereunder for cost of fabrication, casting, manufacturing, repairing or re-tooling of such Dies, plus (ii) any unpaid amount due Essentra Specialty Tapes for any products manufactured by Essentra Specialty Tapes using the Dies. Buyer shall, at Buyer’s sole cost and expense, promptly remove the Dies from Essentra Specialty Tapes facility after the last production run using such Dies, provided Buyer has fully paid for such Dies and re-tooling costs, if any. In the event Buyer fails to do so within 24 months after the last production run using such Dies, Essentra Specialty Tapes shall have the right to dispose of such Dies and shall have no liability to Buyer for the Dies or the disposal thereof.
11. Limitation of Liability. IN NO EVENT SHALL ESSENTRA SPECIALTY TAPES BE LIABLE FOR ANY INDIRECT, INCIDENTAL. SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF ANY ORDER OR THE PRODUCTS SOLD THEREUNDER, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, INCLUDING STRICT LIABILITY, WHETHER AT LAW OR IN EQUITY, INCLUDING BUT NOT LIMITED TO, LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT AND PRODUCT LIABILITY CLAIMS. IN NO EVENT SHALL Essentra Specialty Tapes AGGREGATE LIABILITY TO BUYER WITH RESPECT TO ANY PRODUCT DELIVERED PURSUANT TO ANY ORDER EXCEED THE AGGREGATE COMPENSATION PAYABLE TO ESSENTRA SPECIALTY TAPES HEREUNDER FOR THE PRODUCTS COVERED BY SUCH ORDER. No action, whether in contract or tort, arising out of or in connection with an Order, may be brought by either party more than 18 months after the cause of action has accrued, except that an action for nonpayment may be brought by Essentra Specialty Tapes at any time within 36 months from the date payment becomes 90 days past due.
12. Patents/Indemnity. Without limiting Buyer’s obligations as stated elsewhere herein, Buyer shall indemnify, save and hold Essentra Specialty Tapes harmless from and against (a) any and all claims, suits or proceedings based on an allegation that any product furnished hereunder in compliance with Buyer’s Order, instructions or specifications constitutes an infringement or misappropriation of any patent, trademark, trade secret, copyright, or other intellectual property right and (b) any judgment or other recovery therein. Buyer shall promptly pay or secure any judgment or recovery and pay Essentra Specialty Tapes reasonable costs and expenses, including attorneys’ fees, in defending any such claim, action or proceeding.
13. Force Majeure. Neither Buyer nor Essentra Specialty Tapes shall be liable to the other for any failure to perform, or delay in the performance of any obligation hereunder (except the obligation to pay amounts due hereunder) to the extent such failure or delay is due to causes beyond the reasonable control and without the fault or negligence of the party whose performance is prevented or delayed, provided that the party whose performance is prevented or delayed (a) provides prompt written notice to the other of such circumstances and (b) makes reasonable efforts to perform or complete performance hereunder despite the impediment to performance. Without limiting the generality of the foregoing language, such causes shall include fire, storm, flood, act of God, war, explosion, sabotage, act of terrorism, strikes or other labor trouble, shortages or inability to secure transportation, raw materials, machinery and/or other equipment necessary for the manufacture of the product, the expropriation of Essentra Specialty Tapes plant, the product and/or raw materials in whole or in part by a federal or state authority, acts of the federal government, any state or local government or any agency thereof and any other like cause interfering with the production or transportation of the product.
14. Cancellation. Any Order may be cancelled by Essentra Specialty Tapes upon Buyer’s breach or repudiation thereof for any reason, including bankruptcy, reorganization or insolvency or for the appointment of a receiver or any assignment for the benefit of creditors and without regard to materiality of such breach or repudiation, provided such breach shall not be cured, or such repudiation is not retracted, within five days after Essentra Specialty Tapes provides written notice thereof to Buyer.
15. General Provisions. These Terms and Conditions and any sale hereunder shall be governed by the laws of the State of Illinois, U.S.A., notwithstanding any choice of law provision that might apply the laws of another jurisdiction. Any claim or dispute arising out of an Order or the products delivered under any Order may only be brought in the state and federal courts located in the State of Illinois. Buyer may not assign any Order or any interest therein without the prior written consent of Essentra Specialty Tapes. Any actual or attempted assignment without such consent shall be void and shall entitle Essentra Specialty Tapes to cancel the Order. Each Order is for the sale of goods, and the relationship between the parties is that of buyer and seller. Nothing herein shall be deemed to constitute a hiring, partnership or joint venture between the parties. All rights and remedies whether conferred hereby or by any other instrument of law shall be cumulative, and may be exercised singularly or concurrently. Failure by Essentra Specialty Tapes to enforce any term or condition herein shall not be construed as a waiver of that or any other term or condition. No waiver shall be binding upon Essentra Specialty Tapes unless in writing and signed by Essentra Specialty Tapes and any such waiver shall be limited to the particular instance referred to. In the event any provision of these Terms and Conditions is held invalid under any applicable statute or rule of law, then to the maximum extent permitted by law, such provision shall be deemed severable from these Terms and Conditions and the remainder shall continue in full force and effect. Notwithstanding the above, such invalid term or condition shall be construed, to the extent possible, in accordance with the original intent of the parties. Each Order and these Terms and Conditions constitute the entire agreement between Essentra Specialty Tapes and Buyer with respect to the subject matter herein and supersede all proposals, oral and written, all previous negotiations and all other communications between the parties. To the extent that any provision of these Terms and Conditions conflicts or is inconsistent with the Buyer's terms and conditions, these Terms and Conditions shall prevail.
Essentra Specialty Tapes Terms and Conditions/V3/09.16.2009