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SWISS PAC USA TERMS AND CONDITIONS OF SALE
The following Terms and Conditions of Sale shall govern the sale and purchase of Products (defined below) by and between Swiss Pac USA and Customer, and such Terms and Conditions of Sale are incorporated in their entirety into all invoices, sales orders, purchase orders, telephone orders, custom orders, e-mail orders, e-commerce or website orders, and any other transaction between Swiss Pac USA and Customer for sale and purchase of the Products. Swiss Pac USA and Customer may individually be referred to as a “Party” or collectively as the “Parties.”
- 1. PRICES, TRADE TERMS, INTEREST, TAXES
- 2. TERMS OF PAYMENT, CUSTOM ORDERS
- 3. SHIPMENTS AND INSURANCE
- 4. DELIVERY
- 5. TERMINATION OR AMENDMENT
- 6. CLAIMS AND RETURNS
- 7. CUSTOMER’S WARRANTY AND REPRESENTATION
- 8. PATENTS
- 9. WARRANTY DISCLAIMER
- 10. LOSS OR DAMAGE
- 11. INDEMNIFICATION
- 12. GENERAL CONDITIONS
- 13. DISPUTE RESOLUTION
- 14. ACCEPTANCE
All prices to customer (“Customer”) on products provided by Swiss Pac USA, including, but not limited to, pouches, labels, glass and plastic bottles, corrugated boxes, or any other packaging product (collectively “Products” and/or “Goods”) are in currency of the United States of America (“US”). All transportation, insurance, brokerage and other charges for delivery from Swiss Pac USA to Customer represent estimated charges. If actual charges at the time(s) of shipment are greater than estimated, Customer shall pay any increase on or before the due date set forth on the invoice for the Products sent by Swiss Pac USA to Customer. The following charges are (unless otherwise specified herein or in a separate purchase or sales order) not included in the prices for Products and Swiss Pac USA reserves the right to separately charge Customer for them: (a) shipping, taxes, customs and export and import duties; (b) all miscellaneous charges such as weighing and inspection charges, and charges for consular invoices and certificates of origin; (c) charges in effect at the time(s) of shipment which are not in effect on the date hereof or which Swiss Pac USA could not reasonably know were in effect; (d) a special handling charge at a minimum cost of $25 to be assessed pursuant to a Customer’s request for special handling on a case-by-case basis per order.
Payment for Products is due in full in advance of delivery, unless Swiss PAC USA grants credit terms, in its sole discretion. When credit is granted (in Swiss Pac USA’s sole discretion), Customers shall pay the full invoice within thirty (30) days or less after the date of Swiss Pac USA’s invoice therefor, unless a different payment time is agreed to by Swiss Pac USA in writing. If, in Swiss Pac USA’s sole discretion, the financial condition of the Customer does not justify continuation of production or shipment on credit terms, Swiss Pac USA shall have the discretion to cancel any unfilled orders from Customer or parts thereof and/or may require immediate payment for all goods delivered and/or full or partial payment in advance for all goods not delivered. A charge of the lower of 1-1/2% per month or the highest legal rate of interest will apply to all outstanding balances exceeding payment terms. Swiss Pac USA may cancel or delay delivery if Customer fails to make prompt payment or if Customer is in arrears.
Notwithstanding the foregoing, custom ordered Products require FULL payment in advance, are final sale, and cannot be returned unless: i) such Products are defective and/or non-conforming, as determined in the sole discretion of Swiss Pac USA; and ii) the Customer adheres to the express provisions of Section 6 hereof.
Unless complete and specific shipping instructions are received from Customer sufficiently before the shipment date and agreed to in writing by Swiss Pac USA, Swiss Pac USA may select the means of shipment. Swiss Pac USA reserves the right to make partial shipments and to invoice Customer therefor, such shipments and invoices to be governed by the terms and conditions contained herein. If shipment of any Products is delayed by Customer, all goods held by Swiss Pac USA shall be at Customer’s risk of loss and expense.
There shall be added to the time within which Swiss Pac USA shall perform any obligation in connection with the period of time that delay in such performance is directly or indirectly caused by or in any manner arises from acts of God or of the public enemy, acts or omissions of Customer, fire, flood, strike, epidemic, accident, work force issues, riot, war, severe weather, lack of or inadequate transportation facilities, delays in transportation, delays in delivery of material or services by supplier, delays or failure in procuring any export or import licenses or other documents or authorizations deemed necessary or desirable by Swiss Pac USA, by or from shortages of labor, fuel, material or supplies, by or from regulations, priorities, orders or embargoes imposed by any civil or military governmental authority in either its sovereign or contractual capacity, or by or from any other cause or causes (whether or not similar in nature to any of those hereinbefore specified) beyond the reasonable control of Swiss Pac USA. If Swiss Pac USA is entitled to any such extension of time, Customer shall, on Swiss Pac USA’s request and at Customer’s expense, promptly procure an extension of any applicable letter of credit and confirmation thereof required to be issued in connection herewith for the same period of time. Delivery dates quoted are approximate only, are not guaranteed, and may be extended by Swiss Pac USA for a reasonable time. Whether or not a premium charge for a delivery date is quoted, Swiss Pac USA shall in no event be liable for special, incidental or consequential damages resulting from failure to meet delivery schedules. Customer shall not refuse to take delivery of Products on account of delay in receipt of documents if Swiss Pac USA has made reasonable efforts to dispatch such documents through regular channels. Swiss Pac USA reserves the right to ship Products freight collect and to select the means of transportation and routing, and may insure all Products shipped at 110% value and all freight and insurance costs shall be for Customer’s account. Risk of loss is assumed by Customer upon the earlier of: (i) delivery to Customer or (ii) delivery by Swiss Pac USA to a carrier for delivery.
No contract between Swiss Pac USA and Customer is subject to termination, cancellation, modification or amendment in any respect by Customer except upon written request to Swiss Pac USA, accepted in writing by an officer of Swiss Pac USA and then only upon payment by Customer of all reasonable termination, cancellation, modification or amendment charges determined by Swiss Pac USA in its sole discretion. In the event of any modification or amendment, Swiss Pac USA may, at its option, revise its price and delivery schedule to provide for such modification or amendment. Swiss Pac USA reserves the sole right to terminate any contract resulting herefrom without charge in the event Swiss Pac USA does not receive all documents and assurances required by Swiss Pac USA.
Subject to Customer’s full compliance with the terms and conditions set forth herein, in stock Products can be returned if returned in the original packaging and the Products are in the same condition as received by Customer. However, in stock returns shall be subject to a 20% restocking charge. Custom ordered Products are final sale, and may only be returned if such Products are defective and/or non-conforming, as determined in the sole discretion of Swiss Pac USA. All claims for return of Products for any reason, shortages, or discrepancies must be made within ten (10) days after the earlier of Customer’s receipt or access to the goods. NO GOODS MAY BE RETURNED FOR ANY REASON WITHOUT SECURING A RETURN AUTHORIZATION FROM Swiss Pac USA PRIOR TO RETURN SHIPMENT. Any return shipment, when authorized, will be examined upon receipt to ensure that the goods are in good condition, and only then will the Customer receive a reimbursement. ONLY THE VALUE OF THE GOODS IS REIMBURSABLE.
Customer warrants and represents that any Product it purchases hereunder is suitable and appropriate for such Product’s intended use and application. Pursuant to and in addition to the indemnification obligations set forth below, Customer shall indemnify, defend, and hold Swiss Pac USA harmless against any damage, claim, expense or loss, including all costs and attorneys’ fees, resulting from claims due to any breach of Customer’s warranties and representations set forth herein.
Swiss Pac USA makes no warranty as to patents, including but not limited to U.S Patents, foreign patents, hidden patents (i.e. patents embedded within other patents), or that any other goods or parts thereof sold by Swiss Pac USA will be delivered to Customer free of the rightful claim of any third person by way of patent infringement. Swiss Pac USA assumes no responsibility for any patent violations resulting from an unusual or not contemplated application and/or use of the goods or parts thereof by Customer or others. The sale of goods by Swiss Pac USA does not convey any license or right (whether expressly, by implication, estoppel or otherwise) under any patent claim of Swiss Pac USA or of any other person, firm, corporation or government.
Pursuant to and in addition to the indemnification obligations set forth below, Customer shall indemnify, defend, and hold Swiss Pac USA harmless against any damage, claim, expense or loss, including all costs and attorneys’ fees, resulting from claims of infringement of patents, trademarks or copyrights arising from compliance with Customer’s design or specifications or instructions. Customer shall be exclusively responsible for designs or devices which the Customer may order incorporated in or imprinted or placed on the Products, notwithstanding that Swiss Pac USA may have been consulted thereon or performed artwork or other special services in connection therewith.
TO THE FULLEST EXTENT PERMITTED BY LAW, SWISS PAC USA HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS MANUFACTURED AND/OR SOLD BY IT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MECHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, USE OR APPLICATION, OR THAT ANY PRODUCTS ARE DELIVERED FREE OF CLAIMS OF THIRD PARTIES BY WAY OF INFRINGEMENT OR THE LIKE. EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN WRITING BY SWISS PAC USA, ALL GOODS ARE SOLD “AS IS” AND “WITH ALL FAULTS”.
IN NO EVENT SHALL SWISS PAC USA BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES. SWISS PAC USA’S LIABILITY FOR DAMAGES SHALL NOT EXCEED THE PAYMENT, IF ANY, RECEIVED BY SWISS PAC USA FOR THE PRODUCT FURNISHED OR TO BE FURNISHED, AS THE CASE MAY BE, WHICH IS THE SUBJECT OF CLAIM OR DISPUTE. SWISS PAC USA SHALL NOT BE LIABLE FOR LOSS OR DAMAGE (WHETHER PERSONAL, PROPERTY OR OTHERWISE) IN EXCESS OF THE PURCHASE PRICE, RESULTING FROM OR ARISING OUT OF THE BREACH OF ANY TERM OR CONDITION (WHETHER EXPRESS OR IMPLIED) OF ANY CONTRACT RESULTING HEREFROM, OR OTHERWISE RESULTING FROM, OR ARISING OUT OF, THE MANUFACTURE, SALE, DELIVERY, INSTALLATION AND/OR SERVICING OF THE PRODUCTS OR THE PERFORMANCE OR NONPERFORMANCE OF ANY CONTRACT RESULTING HEREFROM.
IF FOR ANY REASON SWISS PAC USA SHALL BE OBLIGATED WITH RESPECT TO DEFECTIVE GOODS, ITS OBLIGATION SHALL BE LIMITED (IN ITS SOLE DISCRETION) TO (A) REPAIRING OR REPLACING DEFECTIVE PRODUCTS OR PARTS THEREOF OR (B) CREDITING ALL OR A PORTION OF THE PURCHASE PRICE TO CUSTOMER UPON TIMELY RETURN OF THE DEFECTIVE PRODUCTS
Customer shall indemnify, defend and hold harmless Swiss Pac USA, its directors, officers, agents, employees, members, subsidiaries and successors in interest from any claim, action, proceeding, liability, loss, damage, cost, or expense, including, without limitation, reasonable attorneys’ fees and costs, to the extent arising out of, in connection with, resulting from, or related to this Agreement. Swiss Pac USA shall give Customer notice of any charge, suit, action, proceeding or claim that may be subject to the indemnification obligations set forth above and allow Customer the reasonable opportunity to investigate such charge, suit, action, proceeding or claim. In connection with any charge, suit, action, proceeding or claim brought against Swiss Pac USA by a third party, Swiss Pac USA shall have the option, in its sole and absolute discretion, to participate in the defense at Customer’s expense. The indemnification obligations set forth in this Agreement shall survive the termination (or expiration) of this Agreement.
(a) No modification, amendment, rescission, discharge, abandonment or waiver of these terms and conditions of sale shall be binding upon Swiss Pac USA unless set forth in writing and signed by Swiss Pac USA.
(b) No modification or amendment of any order resulting herefrom shall be binding upon Swiss Pac USA unless set forth in writing and signed by Swiss Pac USA.
(c) No delay or failure on the part of Swiss Pac USA in exercising any right or remedy under any contract between Customer and Swiss Pac USA, and no partial or single exercise thereof, shall constitute a waiver of such right or remedy or any other right or remedy.
(d) If any term of any contract between Customer and Swiss Pac USA or the application thereof shall be illegal, such illegality shall not affect any other term or condition hereof and such other terms and conditions shall continue in full force and effect.
(e) Paragraph headings are inserted for convenience only and do not form a part of any contract.
(f) Swiss Pac USA shall not be obligated to perform any term or condition if such performance might, in the opinion of Swiss Pac USA’s legal counsel, violate any governmental law, regulation or ordinance (foreign or domestic) and Swiss Pac USA shall not be liable for damages or loss as a result of such nonperformance.
(g) Swiss Pac USA reserves the right to make changes in design and/or to add improvements in the goods it manufacturers or sells at any time without incurring any obligation to replace goods previously sold.
(h) The terms and conditions contained herein represent the entire understanding of the parties with respect to the subject matter hereof. All stenographic or clerical errors or omissions, however, are subject to correction.
(i) The contract between Swiss Pac USA and Customer shall be construed in accordance with and governed by the laws of the State of Florida, U.S.A. Customer consents to the exclusive jurisdiction of the Courts of Miami-Dade County, Florida and/or the U.S. District Court for the Southern District of Florida in any action brought to collect monies owed by Customer by Swiss Pac USA.
(j) On all orders, Swiss Pac USA will consider the order completed if the overruns or under runs on rolls, sheets, envelopes and bags shall not exceed what was stated on the quotation. On any quantity that requires a portion of a roll, Swiss Pac USA reserves the right to furnish the entire roll or the quantity of sheets, bags or envelopes made therefrom. Swiss Pac USA reserves the right to ship and invoice (at the rate of the quantity specified on the order) overruns in accordance with the above and Swiss Pac USA likewise deems any under runs within the same range as constituting the complete fulfillment of such orders.
(k) Swiss Pac USA assumes no responsibility that the Products will conform to any City, State or Federal law regulating labeling, construction, material, thickness or use, or will not infringe any trade mark, copyright or patent.
(l) The giving of or failure to give advice or recommendations of any character by Swiss Pac USA shall not impose any liability upon Swiss Pac USA. No charge is being made for any technical advice furnished, and Swiss Pac USA assumes no obligation or liability for the results obtained or conclusion reached, all such advice being accepted at Customer’s risk, and further investigated by Customer should it feel further inquiry is necessary.
(m) Sketches and dummies furnished by Swiss Pac USA shall remain Swiss Pac USA’s property and no use of same shall be made, or any idea obtained therefrom be used, except upon compensation to be determined by Swiss Pac USA.
(n) Drawings made and manipulated by Swiss Pac USA and plates made from Swiss Pac USA’s original designs and the necessary electrotypes or plates used in the printing of the order, remain Swiss Pac USA’s exclusive property, unless otherwise agreed upon in writing, or unless paid for by Customer, remain the property of Swiss Pac USA.
(o) Swiss Pac USA shall store artwork, plates, molds and dies without charge. However, Swiss Pac USA shall have the right without liability, to destroy them if not used for two (2) years.
(p) Swiss Pac USA shall have the right to imprint its trade mark and/or its quality control codes in a suitable inconspicuous locality on any Products furnished by it.
(q) If shipment is deferred in whole or in part at Customer’s request, beyond the shipping date originally specified, Swiss Pac USA reserves the right to immediately bill Customer for such unshipped portion and for expenses incurred for storage, it being understood that such unshipped Products are Customer’s property, and the liability of Swiss Pac USA is that of warehouseman only.
(a.) Mediation: Notwithstanding anything else contained herein, Swiss Pac USA and Customer acknowledge and agree that mediation shall be a condition precedent to the filing of any action against any Party arising from, related to, or in connection with any agreement between the Parties, these Terms and Conditions, and any agreement made subject to these Terms and Conditions. Any Party may invoke mandatory mediation of the dispute utilizing the services of an independent mediator, who shall be selected by mutual agreement of the Parties involved in the dispute, and such Parties shall endeavor to schedule such mediation within thirty (30) days after mediation is invoked, which period may be extended upon agreement of the Parties to accommodate their schedules. The costs of the mediator shall be shared equally between the Parties. Mediation shall be conducted in Miami-Dade County, Florida, and the Parties shall personally participate in the mediation proceedings contemplated herein, and shall endeavor to achieve a resolution of the dispute through mutual agreement.
(b) Jurisdiction and Venue: If Mediation does not resolve any such dispute between the Parties, then the exclusive jurisdiction and venue to resolve any controversy or claim arising out of, or relating to, the contract between Swiss Pac USA and Customer, shall be any federal or state court in Miami-Dade County, Florida, and the Parties expressly consent to such jurisdiction and venue.
(c) Attorneys’ Fees: The prevailing party in any action brought pursuant to these Terms and Conditions and/or any agreement entered into between the Parties hereunder shall be entitled to prevailing party attorney fees, costs, and expenses, through and including all appellate litigation and post-judgment collection.
(a) Swiss Pac USA hereby notifies Customer of its objection to all terms and conditions in any purchase order or any other communications from Customer which are additional to, different from, or conflicting with the terms and conditions contained herein and hereon. Neither the failure by Swiss Pac USA to object to a purchase order or any other communication from Customer, nor any shipment of the Goods described hereon, shall be deemed an acceptance of any terms or conditions which are additional to, different from, or conflicting with the terms and conditions contained herein.
(b) All terms and conditions hereof (and no other) shall be deemed accepted if Customer agrees to the quantity, description and price of the Goods, whether such confirmation or acceptance be via invoice, sales order, purchase order, telephone order, custom order, e-mail order, e-commerce or website order, or any other transaction between Swiss Pac USA and Customer for sale and purchase of the Products. Such confirmation or acceptance shall be deemed an acceptance of all the terms and conditions herein and not a counteroffer, regardless of whether it contains terms or conditions which are additional to, different from or conflicting with the terms and conditions contained herein. In any event, Customer shall be deemed to have accepted all the terms and conditions contained herein (and no other) upon Customer’s acceptance or use of the Goods provided by Swiss Pac USA.
(c) The furnishing by Swiss Pac USA of Goods to Customer shall constitute acceptance by Customer unless notice of defect or nonconformity is received by Swiss Pac USA within ten (10) days of Customer’s receipt of such Goods. Notwithstanding the foregoing, any use of the Goods by Customer, its agents, employees, contractors or licensees, for any purpose, after receipt thereof, shall constitute immediate acceptance.