Terms & Conditions.

1. Buyer’s Credit

Seller reserves the right, as non-exclusive remedies, to either terminate this contract or to suspend further deliveries to Buyer in the event Buyer fails to pay for any shipment when due. Buyer agrees that interest shall accrue on all past due accounts at the rate of one and a half percent (1.5%) per month (18% annually) (or the maximum lawful rate if lower). Buyer further agrees to pay all costs of collection incurred by Seller, including reasonable attorneys’ fees and court costs. Should Buyer’s financial wherewithal become unsatisfactory to Seller (determined in Seller’s sole but reasonable discretion), cash payments or other payment security satisfactory to Seller may be required by Seller for any future deliveries of Goods (in addition to any previously delivered Goods).

2. Shipments

All shipments are F.O.B. shipping point unless otherwise specified. Title to the Goods and all risk of loss with respect to any Goods shipped shall pass to Buyer when such Goods are delivered to the carrier at such shipping point. All delivery dates are estimates for approximate dates of delivery, are subject to shipping variations and requirements and do not constitute a guarantee of delivery on such dates. Seller shall not be liable for any delays, loss, or damage in transit.

3. Weight and Containers

For Goods that are originally supplied to Seller by a domestic manufacturer/supplier (“Domestically Sourced Goods”) and Goods that are originally supplied to Seller from an international manufacturer/supplier (“Internationally Sourced Goods”, to be designated on applicable order verification report as “INTLSOURCE”): All weights and dimensions supplied by the manufacturer/supplier are assumed correct and Seller shall not be responsible for any reweigh fees incurred by Buyer. For Domestically Sourced Goods, where returnable containers are used in shipment, title to such containers shall remain in Seller, and a deposit in the amount required by Seller must be made at the time payment is tendered for the Goods. Such containers must be kept in good conditions, must not be used for any material other than the Goods shipped therein and must be returned within sixty (60) days from date of shipment at Buyer’s cost. Upon receipt by Seller of such containers so returned in good condition, a refund of the deposit will be made. For the avoidance of doubt, unless an order verification report expressly states that the Goods are supplied to Seller by an international manufacturer (designated on such order verification report as INTLSOURCE), the Goods supplied under all purchase orders shall be Domestically Sourced Goods.

4. Decorations; Contents

Seller, upon Buyer’s request, may affix decorations to the Goods such as labels or silk screens (“Decorations”). Buyer acknowledges and agrees that it is solely responsible for the Decorations’ content and that the Decorations do not infringe upon the intellectual property or other rights of any third party. Buyer agrees to indemnify and hold Seller harmless from any claims, damages, causes of actions, including attorneys’ fees, arising from any claims that the Decorations infringe upon the intellectual property or other rights of any third party. Buyer agrees that Buyer has the sole responsibility for determining the adequacy of Goods for Buyer’s particular use. All materials should be tested and approved under the user conditions determined by Buyer, as Buyer is in the position to know or make this determination because of peculiar knowledge of such matters as: (A) product formulations; (B) intended use; (C) filing, assembly, and packaging operations; (D) shipping and storage conditions; (E) method of merchandising including handling and shelf life; and (F) control over any warnings to be given concerning the use and handling of Goods and containers (and the adequacy of such warnings). Pricing is subject to change upon inspection of the actual bottles/containers and artwork.

SELLER MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, EVEN IF THAT PURPOSE IS KNOWN TO SELLER, WITH RESPECT TO ANY DECORATIONS OR THE ADEQUACY OF THE GOODS.

5. Inspection

The terms of this Section vary depending upon the origin of the Goods:

(A) For Domestically Sourced Goods, the following shall apply: Seller, upon receipt of Goods from the manufacturer/supplier, consistent with Seller’s standard protocol and industry practices, will not open any packaging to conduct a visual inspection of the Goods with regards to stock packaging. Seller is not responsible for quality inspection of the Goods from the manufacturer. Notwithstanding the foregoing, Seller may, in limited circumstances and in Seller’s sole discretion, perform a visual inspection for any value add or Decorations performed outside of the stock package protocol.

(B) For Internationally Sourced Goods, the following shall apply: Seller, upon receipt of Goods from the manufacturer, may open any packaging to conduct visual and physical quality inspections of the Goods. Seller shall have the right to retain three (3) production samples from each shipment. Buyer shall be responsible for the purchase of up to a ten percent (10%) overage of Goods per purchase order. If an order shall be incomplete by less than ten percent (10%) of the Goods ordered under the applicable purchase order, Buyer agrees that the order will be shipped with such shortage and the order shall be deemed complete. If an order shall be incomplete by more than ten percent (10%) of the Goods for such purchase order, Buyer acknowledges and agrees that in the sole discretion of the Seller, the order will either be (i) deemed complete and shipped with such shortage, or (ii) Seller will place the remaining amount of the order on backorder.

6. Cancellations / Returns

The terms of this Section vary depending upon the origin of the Goods:

(A) For Domestically Sourced Goods, the following shall apply: Buyer may, within thirty (30) days of Buyer’s receipt of the Goods, return the Goods in their new, original, unopened condition for a credit with the Seller in the amount of the returned Goods. In the event the condition of the Goods is unsatisfactory to Seller, in its sole discretion, Seller may reject the returned Goods and send back to Buyer at Buyer’s cost. A restocking fee of twenty percent (20%) will apply to all returns. Transportation charges for the return of Goods shall not be paid unless authorized in writing in advance by Seller.

(B) For Internationally Sourced Goods, the following shall apply: Buyer may only cancel a purchase order within forty-eight (48) hours of placing an order to Seller. Failure of Seller to receive cancellation notice from Buyer within forty-eight (48) hours of Buyer placing any order shall bind Buyer to these Terms and any other obligations that result from the purchase order, including, without limitation, full payment for the Goods. If the Goods do not meet Buyer’s specifications or Buyer reasonably determines the Goods are defective, after confirmation of same by Seller, then Buyer may, within thirty (30) days of Buyer’s receipt of the Goods, return the Goods in their new, original condition for a credit with the Seller in the amount of the returned Goods. In the event the condition of the returned Goods is unsatisfactory to Seller, in its sole discretion, Seller may reject the returned Goods and send back to Buyer at Buyer’s cost. Transportation charges for the return of Goods shall not be paid unless authorized in writing in advance by Seller.

7. Warranty

Seller shall use all reasonable efforts to make available to Buyer, on a “pass through” basis, all applicable manufacturer warranties available to Seller for the Goods and/or services provided to Buyer, and Seller will use commercially reasonable efforts to facilitate the processing of any of Buyer’s covered warranty claims with the manufacturer.

EXCEPT AS EXPRESSLY SET FORTH ABOVE, SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO MANUFACTURER’S DEFECTS, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR ANY OTHER MATTER WITH RESPECT TO THE GOODS, WHETHER USED ALONE OR IN COMBINATION WITH OTHER SUBSTANCES. MOREOVER, NOTWITHSTANDING ANY COMMUNICATIONS BETWEEN THE PARTIES, BUYER IS SOLELY RESPONSIBLE FOR DETERMINING WHETHER GOODS SOLD HEREUNDER ARE SUITABLE FOR THE MATERIALS BEING PLACED IN THEM BY OR AT THE DIRECTION OF BUYER OR THE ULTIMATE USER AND FOR DETERMINING THE PROPER METHODS OF FILLING THE GOODS AND THE CLOSURES TO BE USED ON THE GOODS, TAKING INTO ACCOUNT THE LIKELY STORAGE AND USE OF THE FILLED GOODS BY BUYER, THE PACKAGER AND THE ULTIMATE USER.

8. Limitation of Liability

(A) Within ten (10) days after receipt of each shipment of the Goods, Buyer shall examine such Goods 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 in respect to which such claim is made or, if such claim is for non-delivery of such Goods, within thirty (30) days after the date upon which such Goods were to be delivered. Failure of Seller to receive written notice of any such claim within the applicable time period shall be deemed an absolute and unconditional waiver by Buyer of such claim irrespective of whether the facts giving rise to such claim shall have then been discovered or of whether processing, further manufacture, other use or resale of the Goods shall have taken place.

(B) BUYER’S EXCLUSIVE REMEDY IN RESPECT OF DAMAGED OR DEFECTIVE GOODS SHALL BE FOR MONETARY DAMAGES (AS LIMITED HEREIN) OR REPAIR OR REPLACEMENT AS EXPRESSLY PROVIDED HEREIN, 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 AMOUNT SELLER HAS RECOVERED FROM THE MANUFACTURER/SUPPLIER OF THE GOODS IN RESPECT TO WHICH SUCH CAUSE ARISES OR REPAIR OR REPLACEMENT OF SUCH GOODS (WHICH, FOR PURPOSES OF CLARITY, SHALL ALSO BE LIMITED TO THE AMOUNT OF THE MANUFACTURER’S COVERAGE). IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY SUCH CAUSE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REPUTATION OR LOSS OF GOODWILL.

(C) Seller shall not be liable for, and Buyer assumes liability for and shall indemnify, release, defend and hold harmless Seller and its officers, directors, employees, affiliates, subsidiaries, successors, and assigns from, any claims, judgements, suits, actions, expenses, costs (including without limitation attorneys’ fees), damages and liabilities that Seller may incur or be required to pay to any third party resulting from or connected with (i) to the extent Seller provides labeling/decorating services, the content of the label, including, but not limited to, the label content’s being in compliance with all laws, (ii) 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, (iii) any act or omission of Buyer, including without limitation those arising from the negligent (or more culpable) acts or omissions of Buyer, (iv) Buyer’s breach of any terms of these Terms or any Supply Agreement (as defined herein), and (v) any violation or non-compliance by Seller or Buyer of any postconsumer recycled content laws or laws similar thereto.

(D) 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 result thereof.

9. Usage / Performance Liability

SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY GOODS’ USAGE, SAFETY, RELIABILITY, DURABILITY, OR PERFORMANCE, WHETHER USED ALONE OR IN COMBINATION WITH OTHER SUBSTANCES. SELLER ACCEPTS NO LIABILITY FOR THE USAGE, SAFETY, RELIABILITY, DURABILITY, OR PERFORMANCE OF ANY GOODS.

Buyer hereby releases Seller from any liability arising out of the Goods. Buyer further agrees to indemnify and hold Seller harmless from any legal claim in any way connected to the Goods due to Buyer’s conduct. Buyer acknowledges and agrees that any use of the Goods is at Buyer’s own risk. Further, for clarity, Buyer acknowledges that Seller serves in a representative capacity of manufacturers/vendors when selling Goods, and Seller makes no representations, warranties or certifications whatsoever in respect of (and in no event shall Seller be deemed responsible for the accuracy or completeness of) any manufacturer-provided information, including, without limitation, manufacturer-provided statements, representations, warranties or certifications as to food contact, FDA or other legal compliance, PCR content, safety, sustainability, product specifications, drawings, capabilities, technical data or any other product information (it being expressly acknowledged that any such manufacturer-provided information is being provided by the manufacturer, and not Seller (and Seller does not independently verify any such manufacturer-provided information) and such manufacturer-provided information is subject to change without notice by the manufacturer).

10. Buyer’s Acts or Omissions

If Seller’s performance of its obligations under these Terms is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Seller shall not be deemed in breach of its obligations under these Terms or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.

11. Freight and Taxes

Any increase in freight rates paid by Seller on shipments covered by this contract and hereafter becoming effective and any tax or governmental charge (including, without limitation, tariffs/duties) or increase in same (excluding any franchise or income tax or other tax or charge based on income) that (a) increase the cost to Seller of producing, selling, or delivering the Goods or of procuring materials used therein; or (b) are payable by Seller because of the production, sale, or delivery of the Goods such as Sales Tax, Retailer’s Occupational Tax, Gross Receipts Tax, or Value Added Tax, may, at Seller’s option, be added to the price of Goods herein specified. For Internationally Sourced Goods, Buyer acknowledges and agrees that as of actual ship date for the Goods, the freight and container cost may have fluctuated from the quoted price supplied by Seller and/or the purchase order pricing accepted and acknowledged by Seller. Seller reserves the right to, at any time prior to shipment of the Goods, adjust the freight and container costs accordingly (whether increased or decreased) regardless of Seller’s acceptance of any purchase order pricing or pricing quote, to reflect the actual freight and container costs of each specific shipment, and Buyer agrees to pay Seller an amount consistent with such increase or decrease in freight consistent with the terms herein.

12. Buyer Inventory

As a courtesy to Buyer, Seller may, in limited circumstances and in Seller’s sole discretion, fulfill Buyer’s order through the manufacturer and retain a portion of the Goods from such order on Seller’s premises for a period of time. Seller shall hold title to such Goods until such time as Buyer takes possession and makes full and final payment to Seller for such Goods. Notwithstanding the foregoing, at any time, upon thirty (30) days prior notice provided by Seller to Buyer, Buyer shall remove such Goods from Seller’s premises at Buyer’s sole cost and submit payment for such Goods in full. In the event Buyer fails to timely remove such Goods, Seller shall be entitled to charge, and Buyer shall be responsible for payment of, a storage fee as reasonably determined in Seller’s sole discretion, which storage fee shall be due and payable within five (5) days of Seller’s invoice for the same.

13. Prices and Packaging

The prices, point of delivery, terms of payment and packing instructions for each shipment of Goods shall be in accordance with Seller’s schedules and instructions for such Goods in effect at the time of each such shipment, provided however, for clarity and notwithstanding anything contained herein or otherwise to the contrary, Seller shall at all times have the right to modify prices for Goods as necessary to cover vendor-imposed surcharges on a “pass-through” basis (including fuel surcharges, tariff surcharges or other supply chain surcharges impacting Seller’s costs for materials, inventory, components or other products in connection with its performance of this contract). Such schedules and instructions may be revised from time to time by Seller. Seller may revise pricing prior to the shipment date upon circumstances set forth in Section 12. 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 it 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 governmental 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.

14. Excuse of Performance

(A) Deliveries may be suspended by Seller in the event of: an act of God, pandemic, epidemic, war, terrorist attack, riot, fire, explosion, accident, flood or sabotage; lack of adequate fuel, power, raw materials, labor, containers, or transportation facilities, or other supply chain disruptions; compliance with governmental request, laws, regulations, orders or actions; breakage or failure of machinery or apparatus; acts beyond Seller’s reasonable control; or in the event of labor trouble or shortage, strike, lockout or injunction (provided that Seller shall not 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 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 of any material used directly or indirectly in the manufacture or distribution 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 Goods or material) among itself and its purchasers (including Buyer) on such basis as Seller determines to be equitable without liability for any failure of performance which may result there from.

(C) Deliveries suspended or not made by reason of this section shall be canceled without liability, but this contract shall otherwise remain unaffected.

15. Other Agreements

In the event the Seller and Buyer have entered into a supply agreement (“Supply Agreement”), stocking agreement, or decorated agreement related to Goods sold (each an “Other Agreement”) and a conflict exists between any language contained herein and in any Other Agreement, the language in such Other Agreement shall govern.

16. Assignment

Buyer shall not (by operation of law or otherwise) assign its rights or delegate its performance hereunder without the prior written consent of Seller, which consent Seller may withhold in its absolute discretion, and any attempted assignment or delegation without such consent shall be void. Seller shall have the right to assign its rights or delegate its performance hereunder in its sole discretion and without the prior written consent of Buyer.

17. Imported Goods; Compliance with Laws

In the case of Internationally Sourced Goods, Buyer acknowledges the Goods purchased by Buyer from Seller are imported from countries outside of the United States and that Seller is not the manufacturer of the Goods or the exclusive distributor of the Goods in the United States. Buyer covenants and agrees that Buyer is and will continue to comply with all federal laws, including, but not limited to, the laws governing imports and the Foreign Corrupt Practices Act of 1977, as amended.

18. Confidential Information

All non-public, confidential or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with these Terms is confidential, solely for the use of performing these Terms and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section.

19. Miscellaneous

The validity, interpretation and performance of this contract and any dispute connected herewith shall be governed and construed in accordance with the laws of the State of Wisconsin without regard to conflicts or choice of law principles. All disputes arising out of or relating to these Terms shall be subject to the exclusive personal jurisdiction and venue of the state and federal courts of the State of Wisconsin to which the parties irrevocably submit. The United Nations Convention on International Sales of Goods shall not apply to these Terms. These Terms constitutes the full understanding of the parties, a complete allocation of risks between them and a complete and exclusive statement of the terms and conditions of their agreement. Except as expressly provided in these Terms, no conditions, usage of trade, course of dealing or performance, understanding or agreement purporting to modify, vary, explain or supplement the terms or conditions of this contract shall be binding unless hereafter made in writing and signed by Seller, and no modification shall be effected by the acknowledgement or acceptance of purchase order or shipping instruction forms containing terms or conditions at variance with or in addition to those set forth herein. No waiver by Seller with respect to any breach or default or of any right or remedy and no course of dealing shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver shall be expressed in writing signed by Seller. If any provision herein becomes invalid or illegal in whole or in part, such provision shall be deemed amended, as nearly as possible, to be consistent with the intent expressed herein, and if such amendment is impossible, that provision shall fall by itself without invalidating any of the remaining provisions not otherwise invalid or illegal. The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. Seller reserves the right to make changes to these Terms at any time, and such changes will be effective immediately upon being posted on Seller’s website https://illingpackaging.com/terms-conditions/ (the “Site”). Buyer can determine when these Terms were last revised by referring to the “LAST UPDATED” legend at the top of the copy of these Terms on the Site.