Standard Terms & Conditions
Goods and services covered by this or any future order are being sold by Gamer Packaging, Inc. (“Seller”) only in accordance with the terms and conditions contained herein and in Seller’s quotation, acknowledgment, or Offer Agreement (“Seller’s Offer”) if any. Seller’s Offer to sell the goods or services described in Seller’s Offer is being made only upon the terms and conditions contained herein in addition to Seller’s Offer. Seller’s Offer shall be deemed accepted and shall become a binding contract on the terms and conditions contained herein: (a) when Buyer issues its oral or written acknowledgment, (b) when Seller commences performance, or (c) when Buyer otherwise accepts Seller’s Offer. By accepting Seller’s Offer, Buyer waives all terms and conditions contained in Buyer’s purchase order or other documents which are different from or additional to those contained herein (whether or not Buyer sends its documents before or after Seller sends this form or any written acknowledgments), and all such different or additional terms and conditions shall be null and void and of no effect.
- At the time of sale to Buyer Seller shall possess title and right to resell and distribute all goods covered by Seller’s Offer, as such Seller retains a principal relationship concerning such goods with the manufacturer.
- Prices within Seller’s Offer are valid upon the date issued but become void after the date specified therein or, if no date is specified, then thirty (30) days from date issued. Shipping allowances and prices are subject to change by Seller with at least seven (7) days written notice to Buyer. Any reorder of goods that occur following the expiration of the Seller’s Offer are subject to stated increases. Notwithstanding the above, increases in costs associated to labor, freight, materials, or resources related to the manufacturing, storage or transport of goods that arise following the date of Seller’s Offer and prior to delivery of goods may be invoiced to Buyer without advance notice.
- Transport & Delivery. Shipment will be made in accordance with instructions issued by the terms of Seller’s Offer. Seller shall use best efforts to meet all designated deadlines. However, shipping, delivery, lead times and performance dates are approximate and as such are not guaranteed. Seller reserves the right to review transportation costs and make adjustments up or down based on real time market conditions. In the event Buyer requests, causes, or allows a delay to the delivery or shipment date, Buyer shall be fully responsible to pay or to reimburse Seller for any charges incurred as a result of such delays requested, caused or allowed by Buyer.
- Performance Requirements. All Seller Offers shall be subject to: (i) credit approval; (ii) rejection and/or modification due to lead times, delivery dates or raw material availability; and (iii) minimum order quantities. If Seller’s Offer contains any clear or quantifiable performance targets required to be achieved by Buyer, Buyer shall be liable to Seller for all consequences in the event defined targets are not achieved.
- Force Majeure. Neither party shall be liable or responsible to the other party for any delay or other failure of performance resulting from circumstances that are beyond its reasonable control relating to production, storage or transportation of goods, including without limitation acts of God, acts of military or civil authorities, terrorism, fire or other casualty, strikes, lockouts, weather, epidemic, pandemic, war, riot, delays in transportation, or inability to obtain necessary products, goods, materials, components, equipment, services, energy or utilities through usual and customary practices. In any such event, either party may, with prompt notice detailing circumstances and anticipated duration to the other party, from time to time without further liability: (a) postpone its performance under this contract and agree to resume all performance obligations as soon as reasonably practicable (b) make partial performance and agree to resume all performance obligations as soon as reasonably practicable, (c) mutually discuss and agree on temporary relief from obligations until reasonably practicable.
- Warranty and Remedy. Seller warrants to Buyer, for a period of one hundred and twenty (120) days from the date of delivery of goods and/or performance of services, that its services hereunder are performed in a good and workmanlike manner, in accordance with applicable laws, and that goods delivered hereunder, under proper and normal use, are free from material defects in materials and workmanship, except that . goods and services furnished to Buyer by suppliers or subcontractors of Seller shall be warranted by Seller only to the extent of the supplier’s or subcontractor’s express warranty to Seller. If during such period Buyer promptly notifies Seller in writing of any breach of such warranty and complies with any applicable warranty procedures of Seller, Seller shall thereupon, at Seller’s option, re-perform services, repair or replace any defective goods or refund the price of the goods or services or part thereof which gives rise to the claim. Seller shall make no allowance for repairs or alterations made by Buyer unless made with Seller’s prior written consent. The foregoing shall constitute the sole and exclusive remedy of Buyer and the full liability of Seller for any breach of warranty. The foregoing warranty is exclusive and in lieu of all other warranties, whether written, oral or implied, including any warranty of performance, merchantability or fitness for particular purpose, (and supersedes and excludes any oral warranties or representations or written warranties or representations, not expressly designated in writing as a “warranty” or “guarantee” of Seller, made or implied in any manual, literature, advertising brochure or any other materials). All warranties of merchantability and fitness for a particular purpose are hereby disclaimed. No warranties may be assigned to any subsequent Purchaser or user of the goods or services without prior written notice and approval by Seller.
- Limitation of Seller’s Liability. In no event shall Seller be liable for any special, incidental or consequential damages or for damages in the nature of penalties.
- Buyer’s Use. Upon acceptance, Buyer acknowledges that it shall have reviewed all specifications and technical documentation and agrees that the outlined specifications and technical documentation for the goods are sufficient for its purpose. Additionally Buyer agrees to have conducted an appropriate evaluation of the goods, and is solely responsible for determining the suitability of the goods including all parts and components of the goods purchased from Seller and is not relying on Seller in making such determination. Buyer will not order or use any goods or services unless it is satisfied that the goods and services are suitable for Buyer’s use.
- Limitation of Actions. Any action for any loss or damage with respect to the goods or services which are the subject of this contract must be commenced by Buyer within four (4) months from the date of delivery of goods or services or such claim shall be forever barred. Buyer shall provide Seller reasonable opportunity to examine and test goods that are the basis for any such claim. As a condition for replacement, refund or credit, Seller may request the return of alleged nonconforming goods in the same condition as when received. All claims against Seller resulting in the return of goods must be: (i) approved in advance by Seller; (ii) of goods in new condition; (iii) not decorated or uniquely customized; and (iv) manufactured within four (4) months.
- Indemnification and Waiver. Seller shall defend, indemnify and hold harmless Buyer from any cost, loss or damage sustained by Buyer with respect to the goods or services provided under Seller’s Offer for Seller’s breach of warranty as set forth in paragraph 6 hereof. Buyer shall defend, indemnify and hold harmless Seller from any cost, loss or damage sustained by Seller and from and against all claims asserted against Seller with respect to the goods or services which are the subject of this contract including but not limited to that arising in whole or in part out of (a) failure of Buyer, its agents, employees or customers to follow specifications, instructions, warnings or recommendations furnished by Seller, (b) failure of Buyer, its agents, employees or customers to comply with all applicable laws and regulations, including but not limited to, the Occupational Safety and Health Act and any other applicable Federal, state and local laws and regulations governing hazardous materials or safety, all as they may be amended or supplemented from time to time, (c) misuse of the goods by Buyer, its agents, employees or customer including use of goods with any substance that causes injury to person or property, (d) misrepresentation by Buyer, its agents, employees or customer, (e) the sole or contributing negligence of Buyer, its agents, employees or customers, or (f) alleged infringement of any patent, trademark or copyright as a result of Seller’s performance in accordance with Buyers designs, plans, or specifications, (g) from any and all lawsuits, liabilities, damages, injuries, claims, demands and expenses (including legal expenses) of whatever kind and nature arising on account of the manufacture, use, storage, maintenance, repair or operation of any of Seller’s goods regardless of by whomever manufactured, used, operated, maintained or stored and/or arising as a result of claims based upon strict liability imposed upon Seller except for claims directly resulting from Sellers gross negligence.
- Taxes. All taxes and other charges imposed by federal, state, local or foreign governments on the manufacture, sale, shipment, import, export or use of the goods (other than Seller’s income taxes) are not included in the price and shall be paid by Buyer. Buyer shall defend, indemnify, and hold harmless Seller from and against all liabilities for such taxes or charges and attorney’s fees or costs incurred by Seller in connection therewith.
- Buyer’s Materials. All of Buyer’s tooling, goods and other property in Seller’s possession shall be fully insured by Buyer and Buyer releases Seller from all liability for loss or damage to such material caused by Sellers negligence or otherwise. If Seller has agreed to retain an inventory or stock of goods, Seller’s obligation to inventory goods shall be subject to Buyer’s continued compliance with this Agreement including timely payment, accurate forecasts, and compliance with applicable lead-times. If at the request of Buyer, any good is to be discontinued or altered, Buyer agrees to purchase and pay for all such raw materials that have been procured and goods that have been manufactured on their behalf. In the event any goods are maintained in inventory exceeding an agreed upon storage period, Buyer agrees to either purchase such goods or order the goods scrapped and pay the purchase price as if such goods had been purchased in addition to any scrap fees.
- Proprietary Rights. Unless agreed otherwise, Seller shall be the sole owner of all drawings, inventions or improvements made by or for Seller in connection with the performance of this contract. Buyer shall not reproduce any drawing furnished by Seller. Neither party shall use or disclose any of the other party’s trade secrets or confidential information, whether or not designated as such, except as required in connection with the use of the goods or performance of services covered by this Agreement.
- Buyer’s Financial Responsibility. This contract shall be deemed a Security Agreement under the Uniform Commercial Code, wherein Buyer authorizes Seller as its attorney to execute and file on Buyer’s behalf all documents Seller deems necessary to perfect such security interest. If Seller shall at any time doubt Buyer’s financial responsibility, Seller may demand adequate assurance of due performance or decline to make any further shipments except upon receipt of cash payment in advance or security. If Seller demands adequate assurance of due performance and the same is not forthcoming within 10 days after the date of Seller’s demand, Seller may at its option (1) continue to defer further shipments under this order and/or any other order from Buyer which has been accepted by Seller until adequate assurances are received or (2) cancel this order and any other order from Buyer which has been accepted by Seller and recover damages. Any amounts past due are subject to interest and penalty, wherein Buyer shall pay to Seller the lesser of interest on the unpaid amount at the maximum annual rate permitted by law or 1-1/2% per month. All payments processed with or amounts charged to a credit card are subject to an additional 2.5% processing fee.
- No Integration. Seller’s Offer together with these Standard Terms and Conditions constitute the entire agreement between Buyer and Seller relating to the goods or services which are the subject hereof. No modifications shall be binding upon either party unless in writing and signed by both parties’ duly authorized representative. Seller’s Offer may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. A signature to Seller’s Offer transmitted electronically shall have the same authority, effect and enforceability as an original signature. If any term or provision of this contract shall to any extent be invalid or unenforceable, the remainder of the contract shall not be affected thereby, and each term and provision of this contract shall continue to be valid and enforced to the fullest extent permitted by law. No waiver by either party of default shall be deemed a waiver of any subsequent default. The captions used herein shall have no substantive significance. To the extent any term contained in Seller’s Offer differs from a term in these Standard Terms and Conditions, the terms set forth in Seller’s Offer shall control.
- Choice of Law and Jurisdiction. These terms and conditions shall be construed in accordance with the laws of the State of Minnesota, without regard to principles governing conflicts of laws. Buyer and Seller consent to the jurisdiction and venue of the federal and state courts situated in or having their situs over Minneapolis, Minnesota.
- Attorney’s Fees. If either party pursues any legal action to enforce any of its rights, neither party shall be entitled to recover from the other party any attorney’s fees, arbitration costs, or any other costs and expenses incurred in connection with such action.