Invoice Terms and Conditions of Sale
1. Agreement: Unless otherwise mutually agreed in writing, the Terms and Conditions set forth on this form contain the entire agreement between MUNK PACK INC. (“MUNK PACK”) and the purchaser referenced herein (“Purchaser”) with respect to the sale and purchase of the goods referenced herein (“Goods”). If contrary terms or conditions are set forth in a written agreement signed by both parties, then that Agreement shall control, except to the extent it is silent or ambiguous, in which case these Terms and Conditions will control. Acceptance of goods establishes acceptance of these terms and conditions, and any previous purchase order terms and conditions are superseded hereby in their entirety. MUNK PACK’s provision of the Goods is expressly conditioned on these Terms and Conditions applying to the purchase transaction. MUNK PACK’ relationship with Purchaser is purely on an at-will basis isolated to each individual order and MUNK PACK reserves the right to terminate sales to Purchaser and the relationship with Purchaser at any time. This Agreement is governed by the laws of the state of Connecticut.
2. Price, Payment, and No Returns or Deductions: Pricing is as stated on the Invoice. MUNK PACK reserves the right to increase prices for future orders upon notice provided on its order confirmation or otherwise. Unless stated otherwise on the Invoice, payment terms are prepay for the first order, or otherwise until credit terms are established, and net thirty (30) days of invoice date for subsequent orders. MUNK PACK may suspend production, shipment or delivery of any additional Goods until such payments are made. MUNK PACK reserves the right to charge interest on past due invoices at the rate of one and one-half (1.5) percent per month, but not in excess of the maximum lawful rate, until paid in full. A flat fee of $60 will apply to any returned checks. No returns, deductions, set-offs, credits or short-pays whatsoever, directly or indirectly, shall be permitted without MUNK PACK’s express, advance, written permission, and where permitted, supportive documentation will be provided in each instance, including dated proof of deliveries, dated proof of performance, Purchaser’s debit note/invoice for any applicable deductions taken, etc.
3. Security Interest/Trust Claim: Title transfer shall be subject to Purchaser’s proper payment; until full and proper payment has been made, MUNK PACK shall hold a purchase money security interest in the Goods and shall have full reclamation rights until full and proper payment for the Goods has been received.
4. Delivery Terms, Transfer of Risk of Loss and Purchaser’s Responsibilities: Once an order has been placed and a delivery date scheduled, the order may not be cancelled or materially changed by Purchaser except with MUNK PACK prior consent (given at its discretion), and in no event may an order be cancelled after the Goods have shipped. MUNK PACK shall exert reasonable efforts to ensure that all orders are timely delivered. MUNK PACK disclaims liability for delayed orders due to causes beyond MUNK PACK’s control. Title and risk of loss to Goods shall pass to the Purchaser upon arrival of the MUNK PACK carrier at the Purchaser’s destination, and Purchaser bears the responsibility for unloading at Purchaser’s risk and expense. Purchaser shall have sole liability and responsibility for all Goods purchased hereunder upon transfer of risk of loss and without limitation, Purchaser will be responsible for all damage to the Goods caused by the negligence of Purchaser, its employees, agents, carriers, warehousemen or contractors in connection with handling, storage or transportation of the Goods. Purchaser agrees not to resell any Goods which are within 1 month of their stated “Best By” or shelf life date, or which are damaged or defective for any reason. The Goods will have a minimum of 9 months shelf life remaining as of shipment to Purchaser, unless otherwise communicated to Purchaser. Purchaser shall refrain from any activity which is likely to have an adverse impact upon the goodwill or reputation of the Goods or MUNK PACK, and Purchaser shall comply with all applicable laws or legal requirements, including but not limited to advertising, promotion and labeling of the Goods, in the conduct of its business operations and its distribution and resale of the Goods.
5. Resale Outside of the United States. Unless otherwise agreed with MUNK PACK in writing, Purchaser shall not resell the Goods to any buyer or customer outside the United States. (U.S.) International Purchasers, which are Purchasers who have received MUNK PACK’s International Price List and expressed an interest and intent to sell the Goods outside the U.S., shall not resell the Goods to any buyer or customer located inside the (U.S.), and shall not knowingly resell the Goods to a buyer that intends to reimport the Goods into the U.S., without the express written permission of MUNK PACK and subject to MUNK PACK’s provided conditions respecting such activities. International Purchasers shall keep shipping and resale records of the Goods, and upon MUNK PACK’s request at any time, will share shipping documents as proof of compliance with the resale terms.
6. Confidentiality. In connection with Purchaser’s purchase of Goods from MUNK PACK, MUNK PACK may disclose to Purchaser confidential information of MUNK PACK, including without limitation, information pertaining to customers, vendors, products, product specifications, product concepts, pricing, finances, business, marketing, plans, sales, which is the confidential, proprietary information of MUNK PACK (the “Confidential Information”). Purchaser shall not, under any circumstance, use, disclose or make available to any person or entity any of the Confidential Information except as reasonably required in connection with the Purchaser’s resale of the Goods or another purpose expressly approved by MUNK PACK in writing.
7. Indemnity; Insurance: Excepting to the extent of MUNK PACK’s responsibility hereunder, Purchaser agrees to fully defend, hold harmless and indemnify MUNK PACK from any costs, damages, losses, injuries, claims or liabilities resulting from Purchaser’s activities after risk of loss has transferred to Purchaser hereunder, its breach of its commitments hereunder or its resale or other activities relating to the Goods. Purchaser agrees to maintain appropriate insurance coverage (generally to be not less than $1,000,000 per occurrence, with contractual liability coverage and with full waiver of subrogation unless otherwise specifically mutually agreed with MUNK PACK in writing) to cover its liabilities and responsibilities hereunder. Such insurance coverage may be terminated or materially modified only upon at least 30 days’ prior written notice to MUNK PACK.
8. Quality Warranty: AS ITS SOLE AND EXCLUSIVE WARRANTIES RESPECTING THE GOODS AND/OR THE TRANSACTIONS HEREUNDER, MUNK PACK represents and warrants that as of the time of tender of delivery by MUNK PACK to Purchaser and/or its representatives, the Goods (A) are not knowingly adulterated, misbranded, or falsely labeled within the meaning of any local, state or federal laws now in force in the U.S.; (B) are in material conformance with the samples previously provided to the Purchaser; (C) do not infringe upon or violate any patent, copyright, trademark, trade name or other third party rights; and (D) materially comply with all applicable regulations, laws & legal requirements applicable to sale in the U.S. ALL OTHER WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY & FITNESS OF PURPOSE, ARE DISCLAIMED.
9. Damaged or Defective Goods: Purchaser shall inspect the Goods promptly upon delivery to ascertain any visible damage or defects. In the event that the Goods are determined to be damaged or defective as of delivery, or otherwise in the event of MUNK PACK’s breach of the warranties specified herein, then as Purchaser’s sole and exclusive remedy, Purchaser may obtain (to the extent, and only to the extent, of any documented defect or damage) replacement Goods or a refund, as approved by MUNK PACK. In such event, Purchaser shall promptly notify MUNK PACK of the damage or defect within 72 hours of delivery and will obtain MUNK PACK authorization for a Return of Goods. Returns will only be accepted in situations involving damaged or defective Goods. In no event shall MUNK PACK be responsible to, or liable to Purchaser for, any indirect, consequential, incidental, special, or punitive damages (including but not limited to lost profits, economic loss, lost revenues, business interruption, lost productivity, loss of use, downtime, overhead or administrative expenses, damage to reputation or goodwill) respecting any claim made by Purchaser whatsoever.
10. Recall: In the event MUNK PACK is required by a regulatory agency to recall Goods, or in the event MUNK PACK voluntarily initiates a withdrawal or recall of Goods, Purchaser agrees to cooperate with and assist MUNK PACK in locating and retrieving and/or disposing of the recalled Goods. Purchaser shall promptly report to MUNK PACK any complaints or other information regarding the Goods of which it becomes aware that could reasonably be expected to lead to recall or other regulatory action.
11. Waiver of Remedies. PURCHASER HEREBY EXPRESSLY WAIVES ALL RIGHTS AND REMEDIES AVAILABLE UNDER THE UNIFORM COMMERCIAL CODE, OR ANY OTHER APPLICABLE STATE OR INTERNATIONAL LAWS, RESPECTING THE GOODS AND/OR THE TRANSACTION HEREUNDER, EXCEPT AS OTHERWISE PROVIDED HEREIN. Any claim of any nature whatsoever relating to the Goods, the sales transaction or any other matter relating to MUNK PACK must be asserted by Purchaser within 120 days of delivery of the applicable Goods, or the same shall be deemed waived by the Purchaser, null and void and of no further effect.