Terms and Conditions of Sales:
1. CONTRACT. Unless otherwise stated all sales transactions are expressly subject to these terms and conditions. Modifications or additions will be recognized only if accepted in writing by a principal officer of Morrisette Packaging, Inc. (“Company”) or their designated representative. Provisions of Buyer’s purchase order or other documents that add to or differ from these Terms and Conditions of Sale are EXPRESSLY rejected. No waiver of these Terms and Conditions or acceptance of others shall be construed from failure of Company to raise objections.
2. QUOTATIONS AND PUBLISHED PRICES. Quotations automatically expire thirty (30) days from the date of issuance unless otherwise stated in the quotation and are subject to withdrawal by notice within that period. Company reserves the right to unilaterally extend such quotation up to six (6) months from the date of issuance. Prices shown on the published price lists and other published literature issued by the Company are not unconditional offers to sell and are subject to change without notice. Prices shall be subject to adjustment to those in effect at time of shipment.
3. TAXES. The Company’s prices for products and services do not include any applicable sales, use, excise or similar taxes, and the amount of any such tax which the Company may be required to pay or collect will be added to each invoice.
4. TERMS OF PAYMENT. Except as otherwise provided herein, cash payment in full shall be made within thirty (30) days from date of invoice. Buyer shall receive a one percent (1%) discount on all invoices fully paid within ten (10) days of the date of invoice except that any portion of an invoice related to (i) machines, (ii) machine parts, (iii) freight, or (iv) taxes shall not be eligible for such discount. Amounts past due are subject to a service charge of 1.5% per month (or fraction thereof) of maximum contract rate permitted by law. If the Company, in its sole discretion, deems that, by reason of the financial condition of the Buyer or otherwise, the continuance of production or shipment on the terms specified herein is not justified, the Company may require full or partial payment(s) in advance. All purchases made via a credit card may be subject to a processing surcharge which Buyer agrees to pay. Invoices paid by credit card are not eligible for the one percent (1%) discount contained in this section.
5. DELIVERY. Delivery dates indicated in a purchase order are approximate and are based on prompt receipt of all necessary information regarding the materials covered by the contract. The Company will use reasonable efforts to meet the indicated delivery date, but cannot be held responsible for its failure to do so. In the event of any delay in delivery caused by the Buyer, the Company will store and handle all items ordered at the Buyer’s risk and will invoice the Buyer for the unpaid portion of the contract price, plus storage, insurance and handling costs, on or after the date on which the materials are ready for delivery, payable in full within 15 days from invoice date. Title to the materials and risk of loss shall pass to Buyer upon delivery to a carrier.
6. SHIPPING CHARGES. Shipments are normally F.O.B. point of shipment. In this case, freight will be prepaid and billed as a separate item on the equipment invoice based on the charge listed by the carrier engaged to transfer the shipment from the point of manufacture to Buyer’s destination. Buyer shall be solely responsible for the payment of all freight charges.
7. PACKAGING EQUIPMENT. The following terms shall apply to any sales transaction which includes packaging equipment:
a. DELIVERY – Notwithstanding the provisions of Section 5, unless otherwise noted, packaging equipment will be shipped directly by the equipment manufacturer to Buyer. Company shall have no control over the delivery timing for such equipment and shall not be held responsible for any delays or failures in delivery by the manufacturer.
b. SECURITY INTEREST – Buyer agrees to grant Company a purchase money security interest (the “Security Interest”) in any packaging equipment as follows: (i) in the event of purchased packaging equipment, the Security Interest shall be in place until such time as the equipment is fully paid for by Buyer, or (ii) in the event of leased packaging equipment, the Security Interest shall be in place during the entire period Buyer possesses the packaging equipment. In either case, Buyer will assist Company in taking the necessary action to perfect Company’s security interest. In the event of a default by Buyer, the Company shall be entitled to any of the rights and remedies provided by law.
c. WARRANTY – COMPANY MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO PACKAGING EQUIPMENT. COMPANY DISCLAIMS ALL WARRANTIES EITHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE). BUYER SHALL LOOK SOLELY TO THE MANUFACTURER’S WARRANTY ON PACKAGING EQUIPMENT FOR ANY DEFECTS IN THE EQUIPMENT AND SHALL HAVE NO RECOURSE THROUGH COMPANY.
d. MAINTENANCE – Buyer is solely responsible for performing all preventative maintenance on packaging equipment in accordance with manufacturer recommendations. Company’s sole obligation with respect to packaging equipment is for initial setup. Any repairs or troubleshooting of packaging equipment issues after delivery shall be on a time and materials basis to be invoiced by Company to Buyer.
8. MODIFICATIONS. Buyer may, with express written consent of the Company, make changes in the specifications for materials or work covered by a purchase order. In such event the contract price and delivery dates shall be equitably adjusted. The Company shall be entitled to payment for reasonable profit plus costs and expenses incurred by it for work and materials tendered unnecessarily as a result of such changes and for work and materials required to effect said changes.
9. CANCELLATION. Undelivered parts of any order may be cancelled by the Buyer only with the written approval of the Company. If the Buyer makes an assignment for the benefit of creditors, or in the event that the Company for any reason feels insecure about the Buyer’s willingness or ability to perform, then Company shall have the unconditional right to cancel any sales transaction. In the event of any cancellation of an order by either party, the Buyer shall pay to the Company the reasonable costs and expenses incurred by the Company prior to receipt of notice of such cancellations, plus the Company’s usual rate of profit for similar work. The minimum cancellation charge will be 15% of the contract price.
10. DEFAULT. Upon default and placing this instrument with an attorney for collection or repossession of equipment, Buyer agrees to reimburse reasonable attorney’s fees and court costs incurred by the Company in connection therewith.
11. NON-EQUIPMENT WARRANTIES. COMPANY EXPRESSLY WARRANTS THE MATERIALS FURNISHED BY IT AS SET FORTH HEREIN WILL BE FREE OF DEFECTS IN MATERIAL AND WORKMANSHIP. COMPANY DISCLAIMS ALL OTHER WARRANTIES EITHER EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE). IN ADDITION, BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH BY COMPANY OF ITS WARRANTIES HEREUNDER SHALL BE THE REPLACEMENT OF DEFECTIVE PRODUCT AT COMPANY’S EXPENSE.
12. INTELLECTUAL PROPERTY. The sale and delivery of Company’s materials to Buyer will in no way transfer to Buyer any right of ownership in any patents, copyrights, trademarks, technologies, designs, specifications, drawings, trade secrets, or other intellectual property incorporated into the materials.
13. DISCLAIMER OF DAMAGES. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY TYPE OF SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES WHETHER SUCH DAMAGES ARISE OUT OF OR ARE A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. Such damages shall include, but not be limited to, loss of profits or revenues, loss of use of the equipment or associated equipment, cost of substitute equipment, facilities, down time costs, increased costs or claims of Buyer’s customers or contractors for such damages.
14. LIMITATION OF LIABILITY. The Company shall not be liable for any loss, claim, expense or other damage caused by, contributed to by or arising out of the acts or omissions of Buyer or third parties, whether negligent or otherwise. In no event shall the Company’s liability for any cause of action whatsoever exceed the cost of the item giving rise to the claim, whether based in contract, warranty, indemnity, or tort (including negligence). Any suit arising hereunder must be commenced within one (1) year from the date the cause of action accrues. Except as otherwise noted, the Company shall not indemnify any party.
15. FORCE MAJEURE. The inability of Company to fulfill its obligations required under these terms and conditions resulting from defaults or delays caused by conditions beyond Company’s reasonable control including, but not limited to strikes, insurrection, acts of God, war, terrorist activities, emergencies, public health emergencies, declared epidemic or pandemic, shortages or unavailability of materials, weather, change in law or other similar causes, will extend the period for the performance of the obligations for the period equal to the period(s) of any such delay(s) and Buyer will not have the right to terminate; provided that Company will continue to perform to the extent feasible in view of such force majeure.
16. INTERPRETATION. Should any term or provision contained in the contract contravene or be invalid under applicable law, the contract shall not fail by reason thereof but shall be construed in the manner as if such term or provision had not appeared therein.
17. RETURNS. Company must be contacted for a Return Authorization number (RAN) within fourteen (14) days of receipt of any shipment to Buyer from Company to be eligible for return credit. Buyer must return items within ten (10) days of receiving a RAN. Item must be in new and unused condition and packaged in original packaging and container. Items returned for Buyer’s convenience (and not for product or part failure or warranty issues) will be subject to a twenty-five percent (25%) restocking fee, minimum $200. Specially ordered or manufactured materials may be subject to separate restocking and/or freight charges by Company if Company elects to allow the return of such materials.
18. DELIVERY DAMAGE. All damage to materials delivered to Buyer must be noted by the freight transportation agent delivering the materials to Buyer. Buyer shall communicate any concerns with delivery damage to Company immediately upon receipt of such delivery damaged materials. Company will work in good faith with Buyer to resolve concerns with delivery damaged materials. Buyer’s acceptance of items with delivery damage without appropriate notation of damage shall constitute a waiver of Buyer’s right to make any claim for such damage against Company. Company shall have no obligation to correct damage to materials caused by improper use of such materials.
19. GOVERNING LAW AND PLACE OF JURISDICTION. The legal relationship between Buyer and Company shall be governed by the laws of the State of North Carolina. The exclusive place of jurisdiction for all disputes under any purchase order or these Terms and Conditions shall be Guilford County, North Carolina.
20. DISPUTE RESOLUTION. In the event that any dispute or claim arising out of, or in connection with these Terms and Conditions, or any dispute or claim between Company and Buyer that does not directly arise out of and relate to these Terms and Conditions but exists because of the relationship created between Buyer and Company related to these Terms and Conditions, whether in contract, tort, statutory, or other law, for all claims of any type, including intentional torts and statutory claims as well as claims concerning the Work, quality of work, completion of work, or the enforcement of this Agreement, (hereafter, “Dispute”) arises such Dispute shall be finally settled by litigation in the State and Federal Courts located in Guilford County, North Carolina, or, at Company’s sole election, by binding arbitration in the exclusive venue of Greensboro, North Carolina, in accordance with the then-current rules and procedures of the American Arbitration Association (the “AAA”) by one (1) arbitrator appointed by the AAA. Arbitration under this section shall be subject to the Federal Arbitration Act. The arbitrator shall apply the law of the State of North Carolina, without reference to rules of conflict of laws the merits of any dispute or claim. Should there be disagreement between Buyer and Company as to the application of this binding arbitration clause to a Dispute, the arbitrator(s) appointed by AAA shall decide if the issue should be resolved by the arbitrator(s) who has/have the full power to determine the scope of this clause. In all arbitrations pursuant to this section, the Parties shall have the right to reasonable discovery, the scope of which shall be determined in the discretion of the arbitrator. Any decision and award by the arbitrator shall be final and binding and judgment may be entered thereon by any court of competent jurisdiction.
21. INDEMNITY. Buyer shall defend, indemnify and hold harmless Company, including its officers, directors, employees, agents, and assigns, from and against any and all claims, suits, liabilities, expenses, attorney’s fees or damages (collectively “Claims”) respecting property, including loss of use thereof, injuries to persons, including death, and from any other Claims on account of acts or omissions of Buyer arising from or relating to Buyer’s use, operation, or maintenance of materials provided by Company, or any of its subcontractors, suppliers, officers, agents, employees or servants to the extent such Claim is caused by the negligent acts of such party. Buyer’s obligation hereunder shall not be limited by the provisions of any workers’ compensation act or similar statute.