TECHFLEX PACKAGING STANDARD TERMS & CONDITIONS FOR SALES OF GOODS

Standard Terms and Conditions for Sales of Goods
  1. SCOPE; BINDING EFFECT: These terms and conditions of sale apply to all Purchase Orders accepted by TechFlex Packaging, LLC (“Seller”) and to all price quotations made by Seller.  To the extent that these terms and conditions conflict with or are different from those contained in any Purchase Order or other procurement documents submitted by the Buyer, these Terms and Conditions will control, and any additional or inconsistent terms are rejected by Seller.  Buyer’s acceptance of or payment for the Goods shall conclusively confirm assent to these terms.
  1. TAXES: All prices are exclusive of any sales, use, revenue, or excise taxes, and customs duties, or other similar charges, all of which will be paid by Buyer.
  1. LEAD TIMES: No lead times are guaranteed unless otherwise stated in writing by Seller.
  2. QUOTATIONS: Prices in quotations are effective for 30 days unless otherwise stated in writing by Seller.  Furthermore, unless otherwise stated in writing, quoted prices do not include: (i) printing plates or cylinders, (ii) freight, or (iii) tooling fees.
  1. DELIVERY: Unless otherwise agreed to by all parties: (a) delivery is FOB Seller’s plant and (b) title and risk of loss will pass to Buyer upon delivery of Products to the carrier at the shipping point.  Seller will follow Buyer’s shipping instructions.  Absent such instructions from Buyer, Seller will ship by the method it deems most advantageous.  Delivery dates are estimates only.  Seller will make commercially reasonable efforts to meet specified delivery dates but will otherwise not be responsible for delayed deliveries.
  2. ACCEPTANCE: Buyer will accept or reject Products within 60 days of delivery.  Failure to notify Seller in writing of Nonconforming Products within such period shall be deemed an unqualified acceptance.  Any use of the Products by Buyer which is not related to acceptance testing shall constitute acceptance.
  3. CREDIT SALES: Prior credit approval and non-delinquent status are necessary before Seller will ship on an open account basis.  If at any time the financial responsibility of Buyer, or the credit risk involved, shall become unsatisfactory to Seller, Seller may require cash or satisfactory security prior to shipments or deliveries hereunder.  With respect to any credit sale, Buyer grants to Seller a purchase money security interest in the Products sold, and any proceeds thereof, as security for Buyer’s obligation to pay the purchase price, and Buyer agrees to execute any financing statement or other instrument required to perfect such security interest.
  4. CREDIT MEMOS: Unapplied cash, credit memos or other discounts against future purchases issued by Seller in connection with Products returned/rejected by Buyer must be used by Buyer within 90 days of issuance by Seller, and unless applied by Buyer against the purchase of additional Products within such 90-day period, shall expire.
  5. CANCELLATION: In the event of a full or partial cancellation of any Purchase Order, Buyer is responsible for all costs incurred up to and including the time of cancellation.  This includes all costs expended and committed for raw materials, work in process, finished Goods, labor, supplies, and administrative costs.
  6. RETURNS: All returns must be approved, in advance, in writing in the form of an authorization number (RMA).  Seller cannot accept returned Product without this prior authorization and the respective number.  No Product may be returned, and no credit will be given for Product after the expiration of 364 days from the date such Product was received by Buyer, or 364 days from the date Seller makes such Product available for shipment to Buyer, in the case the Product is being held by Seller at Buyer’s request.  No credit will be given for Product claimed to be defective that were consumed by Buyer and commercially sold or otherwise used in commercial applications.
  7. WARRANTY: Products are warranted to conform to agreed or Seller’s published specifications, subject to customary tolerances, and to be free from defects in material or workmanship that materially impair use.  Seller will repair or replace, at its option, any Product found to be defective or nonconforming, provided that: (a) Buyer gives prompt written notice of the defect or nonconformity; (b) Seller has provided written return authorization to Buyer and Buyer has returned the nonconforming Product to Seller, freight prepaid by Seller; and (c) Seller has reasonably verified Buyer’s claim that the Products are defective or nonconforming.  THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR OBLIGATIONS EXPRESS OR IMPLIED.  SELLER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
  8. LIMITATION OF LIABILITY: IN NO EVENT SHALL SELLER BE LIABLE TO BUYER IN AN AMOUNT EXCEEDING THE PURCHASE PRICE OF THE SUBJECT PRODUCT.  IN NO EVENT SHALL SELLER BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS OR REVENUES, LOSS OF CUSTOMERS, OR PLANT DOWNTIME) SUSTAINED FROM ANY CAUSE OR ARISING OUT OF ANY LEGAL THEORY, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT TORT LIABILITY, OR OTHERWISE.  These limitations include any liability that may arise out of third-party claims.  Any lawsuit by Buyer against Seller shall be filed within one year from delivery of the subject Product by Seller.  These limitations shall apply notwithstanding any failure of essential purpose or of any limited remedy provided herein.  Any technical advice furnished or recommendation made by Seller or any Seller representative concerning any use or application of any Product is believed to be reliable but Seller makes no warranty, either express or implied, as to its accuracy or completeness or of the results to be obtained.  With regard to any processing of any Product, Buyer assumes full responsibility for quality control, testing, storage and for use of Products provided by Seller in combination with items provided or manufactured by Buyer or by others.
  9. BUYER INDEMNITY: Buyer assumes full liability and responsibility for compliance with all information and precautions provided to Buyer, and with all laws, statutes, ordinances, and regulations of any governmental authority applicable to the processing, transportation, delivery, unloading, discharge, storage, handling, sale and use of each Product and United States export control laws.  Buyer further agrees to protect, defend and hold harmless Seller from and against all claims, demands, causes of action, damages, losses, liabilities, costs, expenses (including reasonable attorneys’ fees), penalties, and judgments associated with the processing, transportation, delivery, unloading, discharge, storage, handling, sale or use of any Product after delivery which is (i) inconsistent with any Information provided to Buyer; (ii) in violation of any applicable law, statute, ordinance or regulation of any governmental authority or (iii) not the result of Seller’s negligence or willful misconduct.
  10. FORCE MAJEURE: Seller shall not be responsible for delays caused by acts of God, fires, floods, strikes, war, riot or civil unrest, accidents, delay by suppliers of material or shortages of material, inability to obtain necessary labor, manufacturing facilities, utilities, or transportation, or any other causes beyond Seller’s reasonable control.  In the event of Seller’s inability, for any reason, to supply the quantities of Product contemplated by the Agreement, Seller may allocate its available supply among its customers, including affiliates, departments and divisions of Seller, on such basis as Seller may deem commercially reasonable, without liability to Buyer for any failure of performance that may result therefrom.
  11. ADDITIONAL TERMS: The rights and liabilities of the parties arising out of or relating to this Agreement will be governed by the laws of the state of California, excluding application of its conflicts of laws principles and excluding all provisions of the United Nations Convention on Contracts for the International Sale of Goods and the United Nations Convention on the Limitation Period in the International Sale of Goods.  Venue in any lawsuit between the parties will lie exclusively in state or federal courts in the state of California, and the prevailing party in such litigation will be entitled to recover all reasonable costs, fees, and other expenses (in addition to statutory “costs” of litigation), including attorneys’ fees and expenses in connection with any trial, appeal, or petition for review.  TO THE FULLEST EXTENT PERMITTED BY LAW, THE PARTIES EXPRESSLY WAIVE TRIAL BY JURY IN ANY ACTION ARISING UNDER THE AGREEMENT.  This Agreement may not be assigned by Buyer without Seller’s prior written consent.  No waiver of any violation or nonperformance of this Agreement in one instance shall be deemed to be a waiver of any subsequent violation or nonperformance.  All waivers must be in writing.  If any term or provision of this Agreement shall to any extent be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, and each term and provision of the Agreement shall be valid and enforced to the fullest extent permitted by law.  Nothing in this Agreement shall be construed as creating any direct or beneficial right in or on behalf of any third party.  THIS IS THE ENTIRE AGREEMENT BETWEEN THE PARTIES AND SUPERSEDES ALL PRIOR OR CONTEMPORANEOUS AGREEMENTS, UNDERSTANDINGS, OR REPRESENTATIONS WITH RESPECT TO THE SUBJECT MATTER HEREOF.  THIS AGREEMENT MAY NOT BE MODIFIED OR AMENDED EXCEPT IN A WRITING SIGNED BY BOTH PARTIES.