STANDARD TERMS & CONDITIONS
All quotations for the goods (the "Goods") set forth on Seller’s Quotation or Pro forma Sales Order Confirmation Form (“Order Form”) are subject to written confirmation prior to acceptance by Seller of any order made in response hereto. Unless otherwise specified on the Order Form, Seller’s quotation automatically expires thirty (30) days from the date of Seller’s Order Form and is subject to termination by notice within that period. These Terms and Condition shall become part of the agreement between Seller and Buyer created by acceptance of the Seller’s Order Form, or acceptance by Seller of any purchase order or similar document from Buyer and incorporated by reference therein.
Acceptance of the offer reflected on Seller’s Order Form by Buyer is expressly limited to the exact terms contained herein and any attempt by Buyer to alter or omit any of such terms shall be deemed a rejection and a counteroffer. If Seller’s Order Form is accepted and Buyer's order form is used for the purpose, it is expressly understood and agreed that the terms and conditions herein set forth shall prevail insofar as the same may in any way conflict with the terms and conditions set forth in such purchase order form of Buyer, and the issuance of such purchase order by Buyer shall be deemed to evidence the consent of Buyer to the foregoing.
Payment Terms The amount of any invoice (the “Invoice”) issued in conjunction with the purchase of Goods resulting from Seller’s
Order Form or Buyer’s purchase order is payable in full within thirty (30) days of the Invoice date (the “Payment Terms”). Should Buyer contest any charge on an Invoice, Buyer must notify the Seller in writing within the Payment Terms period; the uncontested balance of the Invoice must be paid within the Payment Terms. At Seller’s option, credit terms may be rescinded if, in Seller’s sole judgment, the Buyer’s financial condition or payment performance doesn’t warrant continuation of the extension of credit. In these cases, Seller may require payment in advance and/or defer future shipment until Buyer’s account is within Payment Terms. In the event that an Invoice remains unpaid or only partially paid at month-end and is outside the Payment Terms, a late charge equal to one and one-half percent (1.5%) will be applied to the balance outside of Payment Terms. Payment or accrual of late charges does not defer payment of any bill, extend credit terms, or extend any payment of invoice beyond the original due date. Seller may employ third parties to assist in the collection of past due monies owed. In those cases, Buyer agrees to pay all reasonable collection costs, including attorney fees, whether or not litigation has commenced, and all costs of litigation incurred.
Delivery and Shipping Costs
Unless otherwise specified on the front of Seller’s Order Form, all costs of delivery shall be charged separately to Buyer. Pricing will be quoted F.O.B. Seller’s warehouse unless shipped direct from manufactures plant. Method and route of shipment are at Seller's discretion, unless the Buyer supplies explicit instructions which are acceptable to Seller. Title and risk of loss shall pass to Buyer upon physical delivery to Buyer or upon delivery to Buyer’s specified carrier.
Seller shall provide storage in seller’s warehouse free of charge for three (3) months following the later of (i) the arrival of the Goods at Seller’s warehouse or (ii) the Buyer’s initial want date. After such three (3) month period, Seller may Invoice Buyer for the Goods, in which case Buyer shall pay for all Goods within thirty (30) days of such invoice or products may be culleted at Seller’s option without releasing Buyer from the obligation to pay for such products. At Buyer’s request, Seller may provide an additional three (3) months of storage for any such paid for Goods, provided that Buyer shall be responsible for storage charges calculated and Invoiced at a rate of $15.00 per pallet per month. If the order is shipped direct from manufactures plant, manufacturers storage policy applies.
Taxes and Other Exclusions from Price
Unless otherwise specified on the front of Seller’s Order Form (i) if the Goods are manufactured outside of the United States, all duties, import fees, tariffs, customs charges and related expenses of importing the Goods shall be charged separately to, and shall be for the account of Buyer and (ii) in any event, the amount of all present and future sales, revenue, excise, and other taxes applicable to the Goods shall be added to the purchase price and shall be paid by Buyer, or in lieu thereof Buyer shall provide Seller with a tax exemption certificate acceptable to the applicable taxing authorities.
Quantity Variations Unless otherwise provided on Seller’s Order Form, overruns of printed material of up to ten (10%) percent of the total amount of product designated on the Order Form shall conclusively be deemed to constitute fulfillment of the order. This standard and acceptable yield differential should be taken into account when placing order quantities.
An order by Buyer in response to Seller’s Order Form once placed with and accepted by Seller cannot be cancelled without Seller's consent (which may be withheld in Seller's sole discretion) and then only upon terms that will indemnify Seller against loss.
Manufacturer Warranties Only
Buyer acknowledges that Seller is an independent distributor or sales agent on behalf of various manufacturers and does not manufacture the Goods. Accordingly, the only warranty provided with respect to the Goods comes from the manufacturer, the terms of which may be obtained from Seller. SELLER, FOR ITSELF, MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WHETHER AN IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR USE, OR OTHERWISE. NOTE: IT IS BUYER'S RESPONSIBILITY TO DETERMINE THE
SUITABILITY OF THE GOODS FOR BUYER'S PRODUCT, AND THE ADEQUACY OF THE MANUFACTURER’S WARRANTY. At the request of Buyer, Seller may provide reasonable assistance to Buyer in processing warranty claims with respect to the manufacturer’s Goods.
Limitation on Damages
In no event shall Seller be liable to Buyer for consequential or incidental damages, loss of profit, loss of business, loss of business opportunity or damage to the goodwill or reputation of any party. Seller’s liability to Buyer, for any reason, whether for breach of contract, indemnity, injury to person or property, or otherwise, shall not exceed the price of the Goods which gives rise to the claim.
Indemnification by Buyer
Buyer shall indemnify, defend and save harmless Seller from and against any claims, loss, damages, liability (including personal injury claims), costs or expenses (including reasonable legal expenses and attorneys' fees) that arise from either (a) the modification, alteration or decoration in any way of any Goods purchased as a result of Seller’s Order Form, (b) from the improper handling or storage of the Goods by Buyer, (c) the use of the glass containers for anything other than their accepted commercial purpose (d), acts of negligence or misconduct by Buyer.
Sketches, Plates and Engravings
All designs, sketches and original work not provided by Buyer will remain the property of Seller or the manufacturer of the Goods reflected herein. Unless written arrangements are made to the contrary, all type may be distributed and lithographic, photogravure or other work effaced immediately after an order is executed. If arrangements are made to the contrary, they shall include rental payments unless another specific arrangement has been made.
Dies and Molds
Dies, molds, tools, printing plates, negatives, blocks and engravings provided by Seller or the manufacturer of the
Goods covered by Seller’s Order Form shall remain the property of Seller, whether or not a charge is imposed on Buyer in respect of them. Seller shall advise Buyer of when normal wear and tear has made major maintenance or tool replacement necessary for continued satisfactory production. A charge may be made in connection with the cost of such maintenance or replacement and the tools concerned will remain the property of Seller.
All cans are sold on an As Is basis. Manufacturer and Seller are not responsible for the taste and smell of the product after the can has been filled. For printed beer and wine cans, manufacturers require samples of the product that is going into the can for testing purposes. If manufacturer approves the liquid going into the can, any deviation from that formulation needs to be resubmitted for retesting. For cider, sour beer, certain carbonated soft drinks (CSDs) and beers that contain citrus, manufacturers will no longer provide a warranty. Please note that because of the fragile nature of cans and for the need for them to be handled and transported, there is a standard and acceptable 2% yield loss that should be taken into account when placing order quantities.
Buyer's Requirements, Printing and Construction
Alterations from original copy on and after first proof, including alterations in style or construction will be charged extra. Proofs of all work may be submitted for Buyer's approval and no responsibility will be accepted for any errors in proofs which may be approved by Buyer. Buyer shall be wholly responsible (in respect of copyright, trademark, design, all common law and statutory right and otherwise whatsoever) for any matter of work which Buyer instructs Seller to print or perform and for any design, sketch, drawing, painting, construction work or other thing which he supplies and or instructs Seller to supply or execute and for all claims by third parties arising therefrom and Buyer shall defend and keep Seller and the manufacturer of Goods covered by Seller’s Order Form indemnified against all proceedings, claims, costs, expenses and liability whatsoever in respect thereof.
Pallets 40 x 48 supplied will be billed to Buyer and are non-returnable and non-refundable. Certain other pallets, tier sheets and top frames (“Returnable Pallets”) are returnable, in which case they will be billed on the Invoice and Buyer will be responsible for retuning them at their expense to Seller’s designated facility within 60 days. Returnable Pallets not returned within 60 days or not in good usable condition will not be refundable.
While Seller and the manufacturer of Goods covered by Seller’s Order Form will make commercially reasonable efforts to supply material in accordance with the samples submitted or quoted for, there is no guaranty that the materials will be identical. If sample containers are submitted by Seller to Buyer for approval, Buyer should confirm dimensions by the actual packing thereof prior to the approval by Buyer.
Prices are subject to change without notice. Seller reserves the right to correct prices made in error, with or without notice.
Buyer's property when supplied to Seller or the manufacturer of Goods covered by Seller’s Order Form will be held or worked on at Buyer's risk. While every care will be taken to secure the best results where materials are supplied by Buyer, Seller assumes no responsibility for imperfect work caused by defects in or unsuitability of materials so supplied by Buyer.
Assistance and Advice
Upon request, Seller at its discretion will furnish as an accommodation to Buyer such technical advice or assistance as is available in reference to the Goods. Seller assumes no obligation or liability for the advice or assistance given or results obtained, all such advice or assistance being given and accepted at Buyer's risk.
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 or provision of this agreement shall be valid and enforceable to the fullest extent permitted by law.
Seller shall not be liable for loss or damage of any kind resulting from delay or inability to deliver on account of causes beyond its control, including but not limited to acts of God, acts of Buyer, acts of military or governmental authorities, fires, strikes, flood, epidemic, war, riot, freight embargoes or delays in transportation or availability of railcars, or inability to obtain necessary labor, fuel, materials, components or services through Seller's usual and regular sources at usual and regular prices.
Buyer may not assign its obligations under a confirmed Order Form without the prior written consent of Seller, which consent shall not be unreasonably withheld.
Governing Law; Venue
THESE TERMS SHALL BE CONSTRUED UNDER CALIFORNIA LAW WITHOUT REGARD TO CONFLICTS OF
LAW PRINCIPLES. ANY ACTION BROUGHT TO ENFORCE OR INTERPRET ANY PART OF THE AGREEMENT BETWEEN SELLER AND BUYER OR THE RIGHTS OR OBLIGATIONS OF THE PARTIES SHALL BE BROUGHT
EXCLUSIVELY IN THE SUPERIOR COURT OF THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, OR TO THE EXTENT FEDERAL JURISDICTION EXISTS, IN THE FEDERAL COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA. EACH OF THE PARTIES HEREBY CONSENTS TO THE PERSONAL JURISDICTION OF SUCH COURTS, AND WAIVES ANY OBJECTION BASED ON VENUE OR INCONVENIENT FORUM.
Mediation. If a dispute between the parties hereto is not resolved within thirty (30) days from the date that either party has notified the other that such dispute exists, then either party may give notice to the other party that the dispute shall be submitted to mediation with a mediator acceptable to both parties, and the parties shall, for a sixty (60) day period from the receipt of such notice, seek in good faith to resolve such dispute in mediation. If the parties are not able to resolve the dispute in mediation, then such dispute shall be referred to binding arbitration, except to the extent that injunctive relief is available to a party hereto.
Arbitration. Any dispute submitted to arbitration pursuant to this Section shall be determined by arbitration in accordance with the rules of the Judicial, Arbitration and Mediation Services (JAMS). The parties shall select a single arbitrator to hear the matter; provided that if the parties are unable to agree, the arbitrator shall be selected by JAMS. The arbitration shall be held in Los Angeles County, California. Any decision made by the arbitrator shall be final, binding and conclusive on the parties and each party to the arbitration shall be entitled to enforce such decision to the fullest extent permitted by law and entered in any court of competent jurisdiction. The arbitrator shall have the discretion to award recovery of attorneys’ fees and costs to the prevailing party.
Entire Agreement. This Agreement constitutes the entire contract between Buyer and Seller relating to the Goods or services identified herein. No modifications hereof shall be binding upon Seller unless in writing and signed by Seller's duly authorized representative and no modification shall be affected by Seller's acknowledgement or acceptance of Buyer's purchase order forms containing different provisions. Trade usage shall neither be applicable nor relevant to this Agreement, nor be used in any manner whatsoever to explain, qualify or supplement any of the provisions hereof. No waiver by either party of default shall be deemed a waiver of any subsequent default. All waivers shall be in writing to be effective. The terms set forth herein shall apply to all purchases by Buyer.
Seller and Buyer each agree that they will (i) keep pricing and terms information confidential, (ii) not disclose pricing and terms information to any third party without the other’s permission, and (iii) use reasonable efforts to limit access to the other parties information to those employees that have a need to know.
We may revise and update these Standard Terms & Conditions from time to time at our sole discretion. These updated terms shall be effective immediately and will be posted on our Web site. Please check the Web site from time to time as these updated terms will be binding on you.
August 2019 update