Taplast USA – General conditions of sale

Unless otherwise agreed to in a writing signed by Taplast USA, Inc. (“Taplast”), these General Conditions of Sale (hereinafter the “Conditions”) shall govern the sale of Taplast’s products (hereinafter the “Products”) to any purchaser (each a “Client”).  An acceptance of a sales order by Taplast is expressly conditioned on Client’s acceptance of these Conditions and Client’s placement of a sales order with Taplast is deemed an express acceptance hereof.  Client acknowledges and agrees that these Conditions supersede the terms and conditions of any documentation provided by Client and any conflicting or additional terms and/or conditions are expressly rejected by Taplast and are null and void.  These Conditions may be modified by Taplast, at any time, for any reason.  In the event these Conditions are updated, altered or modified, Taplast will provide Client with the revised conditions within a reasonable timeframe thereafter.

1. Products 

Products covered by these Conditions are (i) those listed in Taplast’s products’ catalogues as of the date of an order is placed by Client (hereinafter the “Standard Products”) and (ii) those specifically manufactured for Client on the basis of ad hoc agreed upon technical specifications (hereinafter the “Customized Products”).  Products’ catalogues or customized quotations forwarded by Taplast to Client shall in no event constitute an offer.  Client understands and agrees that any information about the Products provided by Taplast, including without limitation, drawings, illustrations, designs, measurements and/or descriptions created by Taplast (“Product Information”) is for informational and convenience purposes only and that Client shall not rely on the Product Information for, inter alia, the measurements, materials or design of the Products described or illustrated therein.  Further, Taplast makes no representations or warranties regarding the accuracy or precision of Product Information and disclaims all liability for Client’s reliance thereon, or reliance thereon by Client’s agents or employees.

2. Orders and orders confirmations

  1. Orders must be placed in writing via telefax, internet or e-mail and are subject to Taplast’s written acceptance by sales order confirmation.  Once submitted to Taplast, orders shall remain firm for a period of 15 (fifteen) days and, during such time period, Client may not cancel, modify or withdraw its order.  Taplast may either accept or reject any order, at its sole discretion; and, an order, shall be deemed automatically rejected if not confirmed in writing by Taplast within 15 (fifteen) days of receipt.  For purposes of these Conditions, orders shall also mean Client’s written acceptance of customized quotations prepared by Taplast which shall remain valid for a period of 30 (thirty) days.  Client’s failure to accept a customized proposal in writing within 30 (thirty) days of receipt from Taplast shall be deemed a rejection of such proposal and any orders related thereto will be subject to a new proposal.
  2. Should an order confirmation contain any modifications by Taplast, such modifications shall be deemed automatically accepted by Client, if after the expiration of 5 (five) days from Client’s receipt of the order confirmation, Client has not objected to such modifications in writing.
  3.  Taplast reserves the right to modify or discontinue any Product or Product design, even after an order confirmation is presented to Client, including, but not limited to changes of materials and colors available and/or change the technical specifications of any Products, at any time, without notice to Client, including those Products illustrated in Taplast catalogues and Client shall have no claim whatsoever with respect thereto. Should any modifications made subsequent to the issuance of an order confirmation significantly alter the technical characteristics or performance of the Products that are the subject thereof, Client shall have the right to cancel the portion of the order(s) with respect to such Products within 10 (ten) days of receipt of notice from Taplast regarding the modification.  Client understands and acknowledges that some minor design or other changes to Products may be made during the manufacturing process and that it shall not have the right to cancel its orders or any portion thereof with respect to any minor changes.
  4. Once an order has been confirmed, Taplast will only consider written requests for modifications or cancellation of such orders if received by Taplast within 7 (seven) business days of the transmission of the order confirmation to the Client.  Notwithstanding the foregoing, any and all requests to modify or cancel an order are subject to Taplast’s written acceptance as set forth in article 2.5 below.  Further, any and all costs incurred by Taplast in connection with an order modified or cancelled in accordance with this article 2.4 shall be borne by the Client.
  5. Except as otherwise expressly provided herein, all sales and orders are FINAL.  No Product may be returned or exchanged, nor may any order be cancelled, withdrawn or modified without Taplast’s prior written consent, which consent may be conditioned or withheld at Taplast’s sole discretion.

3. Prices

  1.  Unless otherwise provided for in writing, prices are expressed in U.S. Dollars for delivery ExWorks (Incoterms 2010) – Taplast Warehouse, Erie, Pennsylvania, USA, and do not include shipping and handling, tariffs, taxes, duties, customs charges or any other charges related thereto or that may be imposed on the Products with respect to the importation into the country of Client.  Client shall be responsible for all such charges. Products are delivered with standard packaging.  The pricing for special packaging, if requested by Client in writing, shall be quoted separately.
  2. Prices shall be: (i) as set forth on Taplast’s prevailing price-list as of the date the order is received for Standard Products, and (ii) those specifically set forth in the order confirmation for Customized  Products.
  3. Price-lists are subject to change by Taplast, from time to time, at Taplast’s sole and exclusive discretion; provided however, that Taplast shall give Client at least 30 (thirty) days prior written notice of any such changes and changes to pricing shall not apply to orders already confirmed by Taplast.

4. Payment terms

  1.  Payment terms are those indicated in the order confirmation and time is of the essence with respect to all payment terms.
  2. Taplast may, at its sole discretion, offer Client extended payment terms (“Credit”).  The extension of Credit to Client will be subject to Client’s completion and Taplast’s review and acceptance of a credit application and satisfactory trade references.  As a condition to extending Credit to Client, Taplast reserves the right to require that Client, without limitation, provide Taplast with a promissory note, a guaranty or other sufficient assurances to secure all payments required hereunder.  Taplast reserves the right, at its sole discretion, to deny a grant of Credit and/or to change the terms and conditions upon which Credit is offered, at any time.  If Credit terms are extended to Client and Client fails to pay any installment or terminates any promissory note, guaranty or other security on which such Credit is conditioned, Taplast shall have the right to terminate Client’s Credit terms and may demand immediate payment of all amounts then owing to Taplast.
  3. In case of payment via wire transfer, the same shall be made to Taplast’s bank account as indicated in the order confirmation on the date payment falls due, net of all bank charges, if any.  Unless otherwise agreed to by the Taplast in writing, all payments shall be made in U.S. Dollars.  Payment shall not be deemed complete until cleared funds are received by Taplast in the amount indicated on the order confirmation.
  4. If Client fails to timely tender any payment due hereunder, Client shall pay monthly interest at (i) eight percent (8%) or (ii) the highest rate permitted by applicable law, and shall be responsible for all fees and costs, including, but not limited to reasonable attorneys’ fees, incurred in connection with the collection of such debt.  Notwithstanding the foregoing right to collect interest, in the event Client fails to make any payment when due, Taplast shall have the right to immediately cancel any order(s) by such Client and/or suspend any supply in progress.
  5. Client shall not be entitled to suspend or delay payments as a result of defects in the Products or delays in delivery thereof.

5. Delivery

  1.  All delivery dates are estimates only as of the date of the order confirmation and remain subject to change.  While Taplast shall make commercially reasonable efforts to make the Products available in accordance with the dates set forth in the order confirmation; Taplast shall not be liable for failure to deliver the Products as estimated.  Client agrees to arrange for shipping and pay all shipping and handling charges.
  2. Regardless of what may be agreed upon with respect to transport costs and/or any reference to the Incoterms contained in these Conditions, the order or order confirmation, delivery shall be deemed complete and risk of loss or damage to the Products shall pass to Client at Taplast’s premises in Erie, Pennsylvania, USA, upon the acceptance of the shipment by the carrier chosen by Client.

6. Security Interest

  1.  Taplast hereby reserves the right and Client further grants unto Taplast a purchase  money security interest in and to all the Products shipped to the Client hereunder, Client’s inventory, and the proceeds thereof, to secure to Taplast the full payment of the purchase price. To allow Taplast to further protect its rights hereunder and guaranty receipt of payment for all Products purchased by Client, Client authorizes Taplast to take such steps as may be available to Taplast under applicable law, including but not limited to: (i) filing UCC financing statements, amendments, continuations and/or terminations in any and all appropriate filing offices and jurisdictions listing Taplast, as the secured party and Client, as the debtor; (ii) delivering authenticated notices to the holders of any conflicting security interests in the Products or Client’s inventory that states that Taplast has a security interest in the Products or Client’s inventory and a description of the Products; and (iii) seek agreement of any of Client s secured lenders to waive or subordinate any interests that the lenders may claim in the Products.  Buyer shall deliver to Taplast such financing statements (UCC-1’s) and all other documents as Taplast may reasonably request to perfect its interest in the Products in accordance with the provisions of the Uniform Commercial Code and Client hereby authorizes Taplast, its agents, attorneys, assigns and/or representatives to file UCC financing statements.  Client’s failure to pay any amounts when due shall give Taplast the right to possession and removal of the Products.
  2. Once shipped, Client shall bear the risk of loss or damage to the Products.  If the Products have not been paid for in full, Client shall:
    1. take out and maintain an “all risks” insurance policy with respect to the Products and include Taplast as a beneficiary thereof and loss payee thereunder. Evidence of such policy shall be promptly forwarded to Taplast;
    2. store the Products separately from all other products and make sure that they are easily identifiable; and
    3. maintain the Products in good condition and working order.
  3. To the extent an order has not been paid for in full, Taplast personnel shall at all times be entitled to enter Client’s premises or any location where the Products are stored in order to inspect or recover them, as the case may be.

 7. Limited Warranty and Inspection

  1. Taplast warrants that its Products will (i) be free from material defects in design, materials and workmanship; and (ii) substantially conform to the technical specifications for normal use and in accordance with the instructions provided by Taplast for a period of 12 (twelve) months from the date of delivery to Client (the “Warranty Period”) according to article 5 above.
  2. The Client shall inspect the Products promptly upon arrival and notify Taplast in writing of any patent defects discovered within 30 (thirty) days thereafter, specifying the relevant lot, delivery date and the nature of the defect.  In the event Taplast becomes aware of a hidden defects, within the Warranty Period, Client shall notify Taplast of any such defects in writing within 30 (thirty) days of discovery.  Client’s failure to notify Taplast in writing, within the notice periods specified herein or during the Warranty Period, of any non-conformity or defects discovered, shall constitute an irrevocable acceptance of the Products by Client and Taplast shall be relieved from any and all liability related to the same.  Taplast’s agents, distributors or intermediaries have no power to alter these Conditions or to represent and/or bind Taplast in anyway.  Therefore, for the purposes of this article 7.2, any notification to Taplast’s agents, distributors or intermediaries with respect to alleged defects in the Products shall be void with no effect.
  3. In the event Taplast determines, in its sole discretion, that the damage and/or defect described warrants a return of the Product for inspection pursuant to this limited warranty, Taplast shall provide Client with specific instructions on where to send the Products. If, Taplast, after reasonable inspection, deems a Product defective as a result of a defect in design, materials or workmanship or for failure to adhere to the technical specifications, Taplast, in its sole discretion, shall credit Client for the amount paid for the defective Product, repair or replace the defective Product at no cost to Client.  If identical materials are not available at the time of repair or replacement, Taplast may substitute materials of comparable quality.  The Products are meant for use only as indicated in the technical specifications or instructions prepared by Taplast and this warranty shall not cover any Product used for any other purposes. Any alteration by Client of the Products shall render this warranty void.
  4. This limited warranty extends only to the original purchaser for the Warranty Period and shall not cover defects or damages resulting from (i) damage in transit, accident, casualty, misuse, abuse, neglect, unusual physical stress, modification, alteration, improper operation, maintenance, handling, storage  or installation of the Product; (ii) incorrect or inadequate maintenance or care; (iii) normal wear and tear of the Product, including, but not limited to, discoloration, natural weathering of finishes or other cosmetic changes; or (iv) loss of functionality of the Product in highly corrosive environments or due to exposure to conditions beyond performance and design specifications. In no event shall the non-use of the Products entitle Client to an extension of the warranty period.
  5.  EXCEPT WHERE PROHIBITED BY LAW OR AS OTHERWISE PROVIDED HEREIN, TAPLAST HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. TAPLAST PERSONNEL ARE NOT AUTHORIZED TO ALTER THESE WARRANTIES.    

8. Intellectual Property

  1. Any and all intellectual property rights in and to the Products and/or the Customized Products, the technical specifications, the design and “look and feel”, the molds, the tooling, and instruction manuals related thereto, including without limitation, any patent, copyright, trademark or other proprietary rights related to the Products and/or the Customized Products are expressly reserved by Taplast and shall remain the exclusive property of Taplast.  The sale of Products to Client hereunder shall not convey any express or implied license under any patent, copyright, trademark or other proprietary rights owned or controlled by Taplast (or is affiliated companies), whether relating to the Products or any manufacturing process or other matter.
  2. Where any Customized Products are manufactured in accordance with plans, drawings, measurements or specifications furnished by Client (collectively referred to herein as “Specifications”), Client must provide such Specifications to Taplast in writing.  Client acknowledges and agrees that Taplast may rely on, and assume the accuracy of, all Specifications provided by Client, including measurements set forth therein, and Client further agrees that Taplast shall not be responsible for any inaccuracies in the Products arising out of Taplast’s reliance upon inaccurate measurements provided by Client in its Specifications.  Client shall indemnify, defend and hold Taplast harmless from all loss, damage, claims, actions, fines and any other expense, including reasonable attorneys’ fees and expenses arising from or relating to such Specifications, including but not limited to claims brought by a third-party with respect to their intellectual property rights.

9. Assignment

 Client shall not be entitled to transfer, assign or otherwise dispose of its rights or obligations under these Conditions or an order placed with Taplast, by operation of law or otherwise, without Taplast’s prior written consent.

10. Force Majeure

Taplast shall not be liable to Client for any reason, including without limitation, on account of any failure to deliver, loss, damage or delay in delivery or performance caused by strikes, union agitation, lock-outs, accidents, fire, short supply or absence of raw materials, delay of carriers or in the delivery of raw materials by the suppliers, compliance with any law, regulation or other governmental order, whether or not valid, riots or other civil disturbance, insolvency or other inability to perform by the manufacturer, insurgence, war-like acts, war, the elements, embargoes, acts of God, any other commercial impracticability or any other cause beyond its reasonable control.  If such a delay occurs, delivery or performance shall be extended for a period equal to the time lost by reason of delay.

11. Applicable law and jurisdiction

11.1 These Conditions and the sales of Products to Client hereunder shall be governed by the laws of the State of Pennsylvania without regard to conflicts of law rules.  Any disputes hereunder shall be resolved in the courts of the State of Pennsylvania, County of Erie.  The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Conditions.

12. Limitation on Liability

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT WILL TAPLAST BE LIABLE FOR ANY LOSS, DAMAGE OR CLAIM FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, LOSS OF REVENUE, DELAY OR DAMAGES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY.  IN NO EVENT SHALL TAPLAST’S LIABILITY EXCEED, IN THE AGGREGATE, THE TOTAL PURCHASE PRICE, IF ANY, RECEIVED BY TAPLAST FOR THE PRODUCTS.  THE FOREGOING LIMITATIONS APPLY TO BOTH CLIENT AND CLIENT’S CUSTOMERS.

 13. Remedies 

Client’s failure to comply with the provisions of these Conditions and any order confirmation, including failure to make a payment when due or failure to timely accept delivery, shall constitute a breach of contract.  In the event of such breach, in addition to all other rights and remedies Taplast may have at law or in equity, Taplast shall be entitled to resell any Products in its possession, without liability to Client.   In effecting any such resale based upon Client’s breach of contract, Taplast shall be deemed to act in the capacity of agent on Client’s behalf.  Client shall remain liable for any net deficiency on resale and all other amounts owed to Taplast, including lost profits, expenses, reasonable attorneys’ fees and any other damages permitted by applicable law.

14. Miscellaneous provisions

  1. These Conditions and any order confirmation placed in accordance herewith shall not be amended or modified except in writing signed by each of the parties.
  2. The invalidity or unenforceability, in whole or in part, of any provision herein shall not affect the validity or enforceability of any other provision of these Conditions.
  3. Failure by Taplast to enforce any of the provisions of these Conditions or of an order confirmation governed hereby shall not be construed as a waiver of such provisions or of Taplast’s right to enforce each and every provision herein.