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Any claim relating to and use of, the Site and the materials contained on the Site are governed by and construed in accordance with the laws of the state of California. User of this site irrevocably consents to the exclusive jurisdiction and venue of the Circuit Court of Alameda County, California in all disputes arising out of or relating to these Terms and Conditions or the use of the Site.
If any provision of these Terms and Conditions is declared by a court to be invalid, illegal, or unenforceable, such provision shall be deemed severable from this Agreement and the other provisions shall remain in full force and effect. The failure of PackagingBuyer to exercise or enforce any right or provision of these Terms and Conditions shall not constitute a waiver of such right or provision.
THE SITE IS PROVIDED ON AN “AS IS” BASIS, WITH ALL FAULTS. PACKAGINGBUYER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES RIGHTS, AND THE WARRANTY OF FITNESS FOR PARTICULAR PURPOSE. PACKAGINGBUYER WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE PRODUCTS AND SERVICES, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES. IF USE OF CONTENT AND MATERIAL FROM THE SITE RESULTS IN THE NEED FOR SERVICING, REPAIR OR CORRECTION OF EQUIPMENT OR DATA, USER ASSUMES ANY COSTS THEREOF.
USER HEREBY RELEASES AND FOREVER DISCHARGES PACKAGINGBUYER AND ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUBSIDIARIES AND AFFILIATES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, FROM ANY AND ALL MANNER OF LIABILITY, CLAIMS, COUNTERCLAIMS, DEMANDS, SETOFFS, DAMAGES, OR CAUSES OF ACTION, WHICH HE OR SHE NOW HAS OR WHICH MAY HEREAFTER ACCRUE, WHETHER HERETOFORE ASSERTED OR UNASSERTED, KNOWN OR UNKNOWN, ARISING OUT OF, OR IN ANY WAY RELATING TO USE OF THE SITE BY THE USER, SPECIFICALLY INCLUDING BUT NOT LIMITED TO ANY CLAIMS BASED IN WHOLE OR IN PART UPON THE ALLEGED NEGLIGENCE OF PACKAGINGBUYER, IN OPERATING THE SITE OR OTHERWISE.
USER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS PACKAGINGBUYER, AND ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUBSIDIARIES AND AFFILIATES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, FROM AND AGAINST ANY AND ALL LOSSES, COSTS, LIABILITIES, OBLIGATIONS, DAMAGES, DEFICIENCIES, EXPENSES, ACTIONS, SUITS, PROCEEDINGS, DEMANDS, ASSESSMENTS AND/OR JUDGMENTS, INCLUDING REASONABLE ATTORNEYS’ FEES, THAT ARE CAUSED BY, OR RESULT OR ARISE FROM, ANY BREACH BY THE USER OF ANY OF THESE TERMS AND CONDITIONS.
EXCUSE OF PERFORMANCE
(a) Deliveries may be suspended by either party in the event of: Act of God, war, riot, fire, explosion, accident, flood, sabotage: lack of adequate fuel, power, raw materials, labor, container or transportation facilities: compliance with governmental requests, laws, regulations, orders or actions; breakage or failure of machinery or apparatus; national defense requirements or any other event, whether or not of the class or kind enumerated herein, beyond the reasonable control of such party; or in the event of labor trouble, strike, lockout or injunction (provided that neither party shall be required to settle a labor dispute against its own best judgment): which event makes impracticable the manufacture, transportation, acceptance or use of a shipment of the goods or of a material upon which the manufacture of the goods is dependent.
(b) If Seller determines that its ability to supply the total demand for the goods, or obtain any or a sufficient quantity or any material used directly or indirectly in the manufacture of the goods is hindered, limited or made impracticable. Seller may allocate its available supply of the goods or such material (without obligation to acquire other supplies of any such goods or material) among itself and its purchasers on such basis as Seller determines to be equitable without liability for any failure of performance which may result therefrom.
(c)Deliveries suspended or not made by reason of this section shall be canceled without liability, but this contract shall otherwise remain unaffected.
Seller reserves the right among other remedies either to terminate this contract or to suspend further deliveries under it in the event Buyer fails to pay for any one shipment when same becomes due. Buyer agrees to pay interest on all past due accounts at the rate of 15% a year (or the maximum lawful rate if lower). Buyer further agrees to pay all costs of collection including reasonable attorneys’ fees and court costs. Should Buyer’s financial responsibility become unsatisfactory to Seller, cash payments or security satisfactory to Seller may be required by Seller for future deliveries and for the goods theretofore delivered.
The quantity shipped in any contract month may be limited by Seller to wither, (a) the average of the monthly quantities ordered by Buyer for the preceding contract months or (b) the maximum quantity covered by this contract divided by the number of months in the contract. Any quantity not shipped as a result of any such limitation shall be deducted from the total quantity of this contract. Seller shall not be bound to tender delivery of any quantities for which Buyer has not given shipping instructions.
Seller warrants title and that all goods sold hereunder shall conform to Seller’s standard specifications or to the attached specifications, if any. Subject to the preceding sentence and except as otherwise expressly provided herein, SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR ANY OTHER MATTER WITH RESPECT TO THE GOODS, whether used alone or in combination with other substances.
LIMITATION OF LIABILITY
(a) Within ten (10) days after receipt of each shipment of the goods, Buyer shall examine such good for any damage, defect or shortage. All claims for any cause whatsoever (whether such cause be based in contract negligence, strict liability, other tort or otherwise) shall be deemed waived unless made in writing and received by Seller within thirty (30) days after Buyer’s receipt of the goods.
(b) BUYER’S EXCLUSIVE REMEDY SHALL BE FOR DAMAGES, AND SELLER’S TOTAL LIABILITY FOR ANY AND ALL LOSSES AND DAMAGES ARISING OUT OF ANY CAUSE WHATSOEVER (WHETHER SUCH CAUSE BE BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE) SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE GOODS IN RESPECT TO WHICH SUCH CAUSE ARISES OR, AT SELLER’S OPTION. THE REPAIR OR REPLACEMENT OF SUCH GOOD AND IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES RESULTING FROM ANY SUCH CAUSE. Seller shall not be liable for, and Buyer assumes liability for and shall indemnity and hold harmless. Seller from any claims, suits, actions, expenses, costs, including attorney’s fee’s, damages and liabilities resulting from or connected with the handling, transportation, possession, processing, further manufacture, other use or resale of the goods including personal injury and property damage irrespective of whether the goods are used alone or in combination with any other substance or material. Transportation changes for the return of the good shall not be paid unless authorized in writing in advance by Seller.
(c) If Seller furnishes technical or other advice to Buyer, whether or not at Buyer’s request, with respect to processing, further manufacture, other use or resale of the goods,. Seller shall not be liable for and Buyer assumes all risk of, such advice and the results thereof.
LOSS IN TRANSIT
Title and risk of breakage, loss or delay in delivery of the goods shall pass to the Buyer upon delivery of the goods to a carrier for shipment to the Buyer.
PRICES AND PACKAGING
The prices, point of delivery, terms of payment and packing instructions for each shipment of goods shall be in acceptance with Seller’s schedules and instructions for such goods in effect at the time of each such shipment. Such schedules and instructions may be revised from time to time by Seller. If Seller desires to revise the applicable price, point of delivery or terms of payment for the goods hereunder prior to the shipment date, but is restricted to any extent against so doing by reason of any governmental law, regulation, order or action, or if the price, point of delivery, or terms of payment in effect under this contract are altered by reason of any governments law, regulation, order or action, Seller shall have the right to (a) terminate this contract by written notice to Buyer, (b) suspend deliveries for the duration of such restriction or alteration or (c) have apply to this contract (as of the effective date of such restriction or alteration) any price, point of delivery, service allowance or terms of payment governmentally acceptable. Any delivery suspended under this section shall be canceled without liability, but this contract shall otherwise remain unaffected.