Terms & Conditions for Suppliers

This Purchase Order becomes a contract subject to the Terms and Conditions set forth herein when accepted by acknowledgment or commencement of performance by Seller. No change in modification of, or revision of this Order or the Terms and Conditions hereof, shall be valid unless agreed to in writing by an Executive Officer of All Foils, Inc., hereinafter called the “Buyer.” The failure of Buyer to actively reject, whether orally or in writing, any conflicting or contradictory terms contained in any document forwarded by Seller to Buyer prior or subsequent to the Purchase Order shall not be deemed to be an assent to such terms. The Terms and Conditions set forth herein shall also apply to any subsequent transactions between the parties.

If a specific price for the goods has been quoted to Buyer by a representative or agent of Seller, or if a price previously established by Seller has been set forth for the goods on the face of this Order, such price shall be the price of the goods and the full extent of Buyers’ liability for the goods, unless a different price is agreed to by Buyer in writing. Seller warrants that the price for the goods is not less favorable than that currently extended to any other customer for the same or like articles in equal or less quantities. In the event Seller establishes or offers a lower price for the sale of such articles in such quantities, either generally or for any one sale to any other customer, from the date of acceptance of this Order to the date the goods are invoiced to Buyer, Seller agrees to reduce the price hereof correspondingly. Any stenographic, clerical, or mathematical errors by Buyer are subject to correction.

No additional charges of any kind, including charges for boxing, packing or cartage, taxes, import or export duties, excises, or other extras, will be allowed unless specifically agreed to by Buyer in writing.

Seller’s prices shall exclude any federal, state or local sales, use or excise taxes levied upon, or measured by the sale, the sales price or use of the goods. All such taxes, lawfully applicable, shall be listed separately on Seller’s invoice. If such applicable taxes are not separately listed, Seller assumes responsibility for the payment of such taxes, and shall indemnify and hold Buyer harmless from any and all liability in connection with such taxes. Tax exemption certificates and other evidence of exemption, furnished by Buyer, and shall be accepted by Seller in lieu of such taxes.

Deliveries are to be made both in quantities and at times specified herein. Buyer reserves the right at any time to cancel and void this Order or any part thereof without liability if delivery is not made within the time specified on the Order, or within the time mutually agreed upon, or if unspecified, within a reasonable time. If time is specified on the Order, time is of the essence.

If the goods are not packaged, marked, shipped and routed in accordance with Buyer’s direction and the instructions set out in this Order, Seller shall pay the Buyer any excess costs occasioned to Buyer thereby.

Except as otherwise expressly provided herein, title to and the risk of loss on all goods shipped by Seller to Buyer shall not pass to Buyer until Buyer’s inspection and acceptance of such goods at Buyer’s warehouse, plant or job site specified.

Acceptance of the goods shall take place at the time when such goods have been delivered to Buyer and have passed Buyer’s inspection and tests. Inspection and test of the goods by Buyer may at Buyer’s option be made at Seller’s plant and/or the point of destination. Acceptance of all or any part of the goods by Buyer shall not relieve Seller from any of its obligations and warranties hereunder, nor will acceptance of any part of the Order bind the Buyer to accept future shipments or deprive Buyer of any right which it may have to return goods already accepted. Acceptance of all or any part of the Order shall not be deemed a waiver of the Buyer’s right either to cancel or to return all or any portion of the goods because of failure to conform to the Order or by reason of defects, latent or patent, or any other breach of warranty, or to make any claim for damages, suffered by the Buyer as a result of any defaults of the Seller or the Seller’s products or performance. In no event shall payment be deemed to constitute acceptance. If inspection discloses that any part of the goods received is not in accordance with Buyer’s specifications, or if any of the goods fail to meet the warranties contained in Paragraph 10 hereof, Seller, upon notice thereof from Buyer, shall promptly correct or replace the same at Seller’s expense. If Seller shall fail to do so, Buyer may cancel this Order as to all such goods, and in addition, may cancel the then remaining balance of this Order. After notice to Seller, all such goods will be held at Seller’s risk. Buyer may, and at Seller’s direction shall, return such goods to Seller at Seller’s risk and all transportation and handling charges, both to and from the original destination, shall be paid by Seller. Any payment for such goods shall be refunded by Seller unless Seller promptly corrects or replaces the same at its expense. Return of any defective material by Buyer shall not be deemed a waiver of any right or remedy which the Buyer may have as a result of or in connection with the existence of such defect or defects. The Seller hereby assumes responsibility for any and all consequential damages arising from such rejection of goods by Buyer.

Payment shall be made according to the terms set forth on the face of this Order. Unless otherwise agreed, invoices shall be paid within sixty (60) days after the receipt of the invoice or of the acceptance of goods by Buyer, whichever is later. It is understood that the cash discount period will date from the receipt by Buyer of the goods or of the invoice, whichever is later. C.O.D. shipments will not be accepted.

Seller warrants that the goods provided are of merchantable quality and are fit for their intended use and purpose. Buyer shall have the right to all Buyer’s remedies and Seller’s warranties to the fullest extent provided under the Uniform Commercial Code, including, but not limited to, warranties of merchantability and fitness. Such remedies and warranties shall survive inspection tests, acceptance and payment.

Seller shall indemnify and hold Buyer harmless against all loss on account of claims of injuries and/or death to persons or damage to property, based in whole or part upon damage to or a defect in the goods or from any act or omission of Seller, its agents, employees, subcontractors, and carriers. Further, Seller agrees to indemnify and hold harmless the Buyer, its successors and assigns, against any and all claims, liabilities, costs and expenses (including, but not limited to, court costs, attorneys’ fees, inspectors’ fees, and/or costs of testing) incurred by Buyer in connection with or related to any recall, inspection, tests, replacement or correction of the goods or any and all parts or equipment in which the goods are incorporated, when such recall, inspection, tests, replacement or correction result from or are related to, in whole or in part, damage to or a defect or alleged defect in the goods.

Except for customary quantity variations recognized by trade practice, goods in excess of those specified need not be accepted by Buyer and any such goods not accepted will be held at Seller’s risk. Buyer may, and at Seller’s direction shall, return such goods at Seller’s risk, and all transportation charges, both to and from the original destination, shall be paid by Seller.

Unless otherwise authorized by Buyer in writing, Seller shall not make commitments for materials nor fabricate in advance of time necessary to permit shipment on delivery date.

Buyer shall have the right to cancel, suspend or change from time to time the goods and services to be furnished by Seller hereunder, upon written notice to Seller. Upon the receipt of such written notice, Seller shall immediately comply with the notice and adjust operations in connection with this Order accordingly. All costs and expenses relating to this Order incurred by Seller subsequent to the receipt of such notice, which would not have been incurred if Seller had complied with such notice, shall be the sole responsibility of Seller. In the event of cancellation of this Order, Buyer shall be responsible and liable only for the price of the goods accepted prior to such notice, plus the actual and reasonable costs incurred by Seller prior to the Notice of Cancellation with respect to the goods canceled. In the event of suspension of this Order, Buyer shall be responsible and liable only for the price of goods eventually accepted. Any increase in the price of such goods shall be subject to the prior written approval of Buyer. In the event of a modification of this Order by Buyer, including but not limited to, a change in the number or design of the goods, Buyer shall be responsible and liable only for the price of the goods accepted, plus the actual and reasonable costs incurred by Seller to accomplish such modification. Any increase in the price of the goods resulting from the modification of this Order is subject to the prior written approval of Buyer. In the event of any cancellation, suspension or modification of this Order, Buyer shall not be responsible or liable for any costs of production, processing or shipping of the goods apart from the price of the goods accepted, if such costs represent a portion of and are included in the price of such accepted goods. In no event whatsoever, including the event of any cancellation, suspension or modification of this Order, shall Seller be entitled to, or shall Buyer be responsible or liable for, Seller’s anticipated profits, overhead, and/or incidental or consequential damages.

Buyer reserves the right, by written notice, to cancel this Order without liability to Buyer in the event of, (1) insolvency of Seller, (2) the filing of a voluntary Petition in Bankruptcy by Seller, (3) the filing of an involuntary petition to have Seller declared bankrupt, (4) the appointment of a Receiver or Trustee for Seller, (5) or the execution by Seller of an assignment for the Benefit of Creditors. If Seller fails to perform, or breeches any of the terms of this Order, Buyer reserves the right, immediately upon failure of performance or breach, and without liability to Seller, (1) to cancel this Order in whole or in part by written notice to Seller, or (2) after notifying Seller of such failure or breach, and of Buyer’s intent to exercise such right, to obtain the goods from another source, with any excess cost resulting there from chargeable to Seller. Seller shall be liable for Buyer’s damages in connection with such breach or failure to perform, including consequential damages reasonably foreseeable by Seller or of which Seller was apprised by Buyer, provided, however, the Seller shall not be responsible for delays or defaults occasioned by fires, acts of God, wars or riots, but in the event of such occurrence, Buyer’s reserves the right to cancel this Order without liability of any kind.

Except when Buyer supplies all specifications for the goods, Seller shall hold and save Buyer, its successors, assigns, customers and users harmless from loss and/or liability of any nature or kind arising out of or existing because of the infringement or alleged infringement of any patent for or on account of the manufacturer, sale or use of any goods furnished hereunder. Buyer shall notify Seller in writing of any suit filed against it or its customers, on account of any such infringement or alleged infringement, and at Seller’s request shall give Seller control of the defense of such suit, insofar as Buyer has the authority to do so, and information and assistance for the same, all at Seller’s expense. Buyer and the party against whom suit is brought may be represented by their own counsel in any such suit. Furthermore, in the event that Buyer should be enjoined in such suit or proceeding from using any part of the goods delivered hereunder, Seller, as its option, shall promptly either: (a) secure termination of the injunction or liability; or (b) replace the goods with non-infringing goods or modify them to become non-infringing, all at Seller’s expense. The provisions of this paragraph shall not apply to the Buyer’s use of any of the goods delivered hereunder in combination with other materials or in the practice of any process, or to infringement by reason of such use.

Machinery, equipment, patterns, drawings, specifications and samples furnished to Seller by Buyer on other than a charge basis shall be held by Seller upon consignment, and upon the completion of the Order shall be returned to Buyer or otherwise satisfactorily accounted for. Unless otherwise agreed, Seller, at its expense, shall insure all such items for the reasonable value thereof against loss or damage of any kind.

Any and all patterns, drawings, specifications, compilations, formulas, samples, and information provided to Seller by Buyer shall at all times remain the confidential, proprietary, and trade secret property of Buyer or Buyer’s customer, and shall not be published, disclosed, disseminated, and/or used by Seller in any manner whatsoever except for and in the best interests of Buyer.

Unless otherwise stated, all special drawings, patterns, tools, dies, jigs, machinery and equipment needed by Seller for the performance of the Order shall be attained by Seller at its own expense and shall be the property of the Seller.