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The following Terms and Conditions (these “Terms”) are applicable to Burch Bottle & Packaging, Inc.’s (“Seller”) manufacture, sourcing and/or sale of Products.  These Terms are in addition to any other agreement or arrangement as between Seller and the customer (“Buyer”) designated on a Seller Order Acknowledgement Form (an “Order Acknowledgement”).  These Terms constitute a contract (this “Contract” or the “Contract”) as between Seller and Buyer.  These Terms control over any inconsistent conditions set forth in any agreement or arrangement as between as between Seller and Buyer.

1.          DEFINITIONS

The terms “Product” or “Products” shall refer to the goods and items manufactured, sourced and/or sold by Seller and more particularly described on an Order Acknowledgement. Where applicable as documented in an Order Acknowledgement, “Services” may refer to Seller’s manufacturing and sourcing services.

2.         PRODUCTS AND SALE TERMS

Buyer agrees to purchase, and Seller agrees to manufacture, source and/or sell the Products more particularly specified in an Order Acknowledgement.  Any other terms or conditions asserted by Buyer as applicable to the Contract, in a purchase order, on a web site, or otherwise, are inapplicable and hereby rejected by Seller.  If for any reason Buyer should fail to accept these Terms, in writing, any conduct by Buyer which recognizes the existence of these Terms, including payment and/or acceptance of the Products, shall constitute an acceptance by Buyer of these Terms. 

3.         PRICES

Although it is Seller’s practice to provide as much advance notice as possible, prices are subject to change without notice and adjustment to Seller’s prices in effect at time of order placement.  Unless otherwise specified by Seller, prices are for the specific quantity stated and do not include taxes nor charges for transportation, insurance, special packaging or marking.  Prices for any undelivered Products or Services may be increased by Seller in the event of any increase in the cost to Seller of supplies, raw materials, labor or services or any increase in Seller’s cost resulting from any cause beyond Seller’s control. 

4.         PAYMENT

(a)       Payment will be made according to agreed upon terms: cash, credit card, wire transfer or check.

(b)       Checks are accepted subject to collection and the date of collection shall be deemed the date of payment.  Any check received from Buyer may be applied by Seller against any obligation owing by Buyer to Seller, under the Contract or any other arrangement, regardless of any statement appearing on or referring to such check, without discharging Buyer’s liability for any additional amounts owing by Buyer to Seller; and the acceptance by Seller of such check shall not constitute a waiver of Seller’s right to pursue the collection of any remaining balance.

(c)       Buyer agrees to pay the entire net amount of each invoice rendered by Seller pursuant to the terms of each such invoice without offset or deduction.     

5.         TERMS

(a)       Standard payment terms require receipt of cash in advance of performance for all new accounts. In the event that Seller extends credit to Buyer, the following additional terms (b)-(e)  are hereby agreed to be applicable. Application for credit may take up to thirty (30) days to process and is subject to approval by Seller in Seller’s sole discretion.

(b)       Buyer agrees to keep Buyer’s account current and Buyer agrees to pay each invoice according to its terms from the date of invoice. Buyer agrees to provide funds in advance if Buyer’s account has large disbursements that exceed the established credit limit. The amount of credit extended to Buyer is subject to periodic review and any decision to increase, decrease or revoke the amount of credit granted to the Buyer shall be in the sole discretion of Seller.

(c)       Seller reserves the right to require payment in advance or C.O.D. or otherwise modify credit terms either before or after shipment of any Products if, for any reason, Buyer’s credit is or becomes objectionable to Seller.  If Seller believes in good faith that Buyer’s ability to make the payment called for by the Contract is or may be impaired, Seller may cancel the Contract or any remaining balance thereof, without incurring any liability. Buyer remains liable to pay for any Products already shipped.

(d)       In the event that the Buyer fails to keep Buyer’s account current, all amounts owed by Buyer shall immediately become due and payable. Buyer shall also become indebted to Seller for costs of collection, including reasonable attorney fees, which arise if payment terms are not met. Said invoices not paid by maturity date will have a one and one half percent (1.5%) per month late payment charge assessed against any unpaid balance from the due date of the invoice until the date of payment.

(e)       If any indebtedness remains unpaid for thirty (30) days after the demand for payment, Seller may, in addition to any other rights it has under other agreements and/or applicable law, exercise any or all of the rights of a secured party including, without limitation, referring Buyer to collections.

6.         TAXES

Unless otherwise agreed in writing, Buyer shall be responsible for the payment of any and all Federal, state and local sales, use, and excise taxes and all other taxes and charges assessed in connection with the manufacture, sourcing and sale of Products under the Contract.

7.         SHIPMENT

All shipments will be made ExWorks Seller’s facility unless otherwise specified in an Order Acknowledgement.  In the absence of specific instructions, Seller will select the carrier.  Title to the Products shall pass to Buyer upon delivery thereof by Seller to the carrier; thereupon, Buyer shall be responsible for the Products.  Transportation from the ExWorks point designated in an Order Acknowledgement, handling and insurance are at the cost of Buyer.  All Products held for Buyer, or stored for Buyer, shall be at the risk and expense of Buyer. Claims against Seller for shortages must be made within ten (10) days after arrival of shipment.

8.         DELIVERY

All delivery dates are approximate.  Seller will use commercially reasonable efforts to fill orders according to the delivery dates acknowledged by Seller.  Delivery may be made in installments.  Default or delay by Seller in shipping or delivering the whole or any part or installment of the Products or Services under the Contract shall not affect any other portion thereof.   

9.         INSPECTION

Unless Buyer notifies Seller in writing within ten (10) calendar days from the date of shipment of any Products or Services that said Products or Services are rejected, they will be deemed to have been accepted by Buyer.  In order for the notice of rejection to be effective, it must also specify the reason(s) why the Products or Services are being rejected.

10.       SELLER’S LIMITED WARRANTY AND LIMITATION OF LIABILITIES

(a)       Seller warrants that at the time of shipment the Products will be free from defects in material and workmanship and will conform to Seller’s applicable specifications, or if appropriate, to other specifications accepted by Seller in writing.

(b)       If any defect within this warranty appears within one (1) year from the date of shipment by Seller, Buyer shall notify Seller immediately.  Seller agrees, at its election and as Buyer’s sole remedy, to repair, replace with the same or functionally equivalent products, or issue a credit in the amount of the unit price for any Products which upon test and examination by Seller, do not comply with the above warranty.  Any repair or replacement shall not extend the warranty period.  No Products will be accepted for return or replacement without the written authorization of Seller with a designated “Return Authorization.”  Upon such authorization, and in accordance with instructions by Seller, the Products will be returned shipping charges prepaid by Buyer per industry standard unless otherwise authorized.

(c)       The warranty does not extend to any Products which have been subjected to misuse, neglect, accident, improper testing or installation, unauthorized repair or alteration, whether by Buyer or others.  This warranty shall not be expanded, and no obligation or liability will arise, due to technical advice or assistance, qualification or testing data or service Seller may furnish.

(d)       THIS WARRANTY IS EXTENDED TO BUYER ONLY AND IS NOT TRANSFERABLE TO SUBSEQUENT PURCHASERS OR USERS OF PRODUCTS.  THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR OTHERWISE.  ALL OTHER WARRANTIES ARE EXPRESSLY DISCLAIMED TO THE FULL EXTENT SUCH MAY BE DISCLAIMED BY LAW.    The remedies of Buyer shall be limited to those provided herein.  No agreement varying or extending the foregoing warranty, remedies or this limitation will be binding upon Seller unless in writing, signed by a duly authorized officer of Seller.

(e)  IN NO EVENT SHALL SELLER’S TOTAL LIABILITY TO BUYER, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, EXCEED THE PRICE OF THE PARTICULAR PRODUCTS SOLD HEREUNDER WITH RESPECT TO WHICH LOSSES OR DAMAGES ARE CLAIMED.   IN NO EVENT WILL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES.

(f) All Products and Services are furnished “AS IS.” Development products, including without limitation prototypes and pre-production samples and any Services (whether or not paid for by Buyer) are furnished “AS IS” without warranty of any kind.

11.       PROPERTY AND OWNERSHIP RIGHTS

Unless otherwise mutually agreed in writing, the design, development or manufacture by Seller of Products shall not be deemed to produce a work made for hire and shall not give to Buyer any patent, trademark, copyright or any other intellectual property right interest in the Products, or any portion thereof.  All such rights shall remain the property of Seller.  Unless otherwise agreed in writing, all tooling, fixtures, test equipment, models, patterns, molds, processing software and technology, and proprietary information of Seller, whether or not made for, obtained or developed by Seller for the performance of the Contract, shall remain the sole property of Seller;  and the payment by Buyer of any costs or expenses relating to any of the foregoing (including non?recurring expenses), shall not be deemed to grant Buyer any ownership interests therein.

12.       CHANGES

Unless otherwise provided in writing, Seller reserves the right to change specifications of Products ordered by Buyer herein, provided that the changes will not materially affect form, fit or function.

13.       EXCUSABLE DELAYS

In addition to any excuse provided by applicable law, Seller shall not be charged with any liability for delay, non-delivery or failure to perform any of its obligations herein arising from any event beyond Seller's control, whether or not foreseeable by either party, including but not limited to, delays of suppliers, labor disturbance or strike, war, fire, accident, adverse weather, inability to secure transportation, governmental act or regulation, inability of Seller to obtain materials, shortages of materials, and other causes or events beyond Seller's control, whether or not similar to those enumerated above.

15.       ORDERS

(a)       Each order for Products and Order Acknowledgment is subject to acceptance in writing by Seller.  No order will vary these Terms.

(b)       Buyer is liable for the costs of any changes to the Products, Services, delivery schedule or specifications requested by Buyer and agreed to by Seller including, but not limited to, cancellation or restocking charges, non?recurring engineering costs and other expenses, tooling and fixture charges, re?certification charges, re?work, wastage, and disassembly labor costs.

(c)       All Products manufactured for Buyer, including all special materials and supplies necessary to perform the work specified, are non?cancelable and non?returnable.

16.       TERMINATION

Except as otherwise agreed in writing, Buyer shall not have the right to terminate or reschedule all or any portion or installment of the Products or Services covered by this Contract without the written consent of Seller.

17.       BUYER’S DEFAULT

Payment as required by the terms of this Contract must be made when due regardless of any claim by Buyer.  Failure by Buyer to pay the purchase price when due, or otherwise to perform under this Contract, shall give Seller the unlimited right, without liability, to take possession of the Products, with or without notice, and to have all of the remedies of a secured party under the Uniform Commercial Code of the State of New York.  In addition, Seller, at its option by giving written notice to Buyer of its election to do so, may, cancel any undelivered portions thereof and/or demand immediate payment of all outstanding bills of Buyer.  All rights and remedies of Seller shall be cumulative and may be exercised successively or concurrently without impairing Seller's security interest in the Products.  Buyer agrees to pay Seller reasonable attorneys’ fees and legal expenses incurred by Seller in exercising any of its rights and remedies upon default in such amount as is permissible under law.  All the foregoing is without limitation or waiver of any other rights or remedies available to Seller according to law or otherwise.

18.       DISCLAIMER FOR CRITICAL APPLICATIONS

Products are not intended or authorized for use in products surgically implanted into the body, for life support products or for other products for which a Product failure could cause personal injury or death.  If Buyer or Buyer’s customers use or permit the use of Products for such unintended or unauthorized uses, Buyer agrees to fully indemnify Seller, its officers, employees and distributors, from all liability related to such use, including attorneys’ fees and costs.

19.       LIMITATION ON ACTIONS

No action, regardless of form, arising out of this Contract may be brought by either party more than one (1) year after the cause of action arose, or in the case of non?payment, not more than two (2) years from the date of last payment.

20.       GOVERNING LAW AND VENUE

This Contract shall be construed and interpreted in accordance with and governed by the laws of the State of New York without regard to its conflicts of laws provisions.  The parties agree that the state courts with jurisdiction over disputes arising in Saratoga County, New York or the and federal courts in Albany County, New York will have exclusive jurisdiction over any matter arising under the Contract.  Notwithstanding the foregoing, Seller may, in its sole discretion, bring suit to enforce its rights under this Contract in the venue and under the governing law of any jurisdiction in which action or inaction of a supplier is sought or in which Seller-owned assets are located.

21.       GENERAL

(a)       The Contract supersedes any prior or contemporaneous oral or written agreements or communications between them relating the subject matter thereof.

(b)       Buyer agrees to comply with all applicable export laws, regulations and orders.  Specifically, but without limitation, Buyer agrees that it will not resell, re-export or ship, directly or indirectly, any Products or technical data in any form without obtaining appropriate export or re-export licenses.  Buyer acknowledges that the applicable export laws, regulations and orders may differ from item to item and/or from time to time.   

(c)       The Contract may not be assigned, modified, or terminated without Seller’s prior written consent, and any attempt to assign, modify or terminate without such consent shall be absolutely void.  Seller may assign the Contract.

(d)       No delay or omission to exercise any right, power or remedy accruing to Seller upon breach or default by Buyer under this Contract shall impair any such right, power or remedy of Seller, or shall be construed as a waiver of any such breach or default, or any similar breach or default thereafter occurring; nor shall any waiver of a single breach or default be deemed a waiver of any subsequent breach or default.  All waivers must be in writing.

(e)       No amendments to or modifications of the provisions of this Contract will be valid and binding upon Seller unless in writing and signed by an authorized representative of Seller.

(f)        If either party brings an action or proceeding arising out of the Contract, or on account of any breach or default thereof, the prevailing party will be entitled to receive from the other party its reasonable attorneys’ fees, expert witness fees, investigation fees and other related fees, costs and expenses incurred in connection with the proceeding.

(g)        Buyer agrees, to the fullest extent permitted by law, to indemnify, defend, protect and hold harmless Seller (and its agents, shareholders, directors, officers, employees, and subcontractors, and any of them) from and against any and all claims, damages, loss, liability or expense of any kind, which is in any way connected with the Products and/or the Services, including payment for the Products or the Services by credit card and any breach of these Terms, except to the extent such arises or results from any negligent act, omission, breach of any duty or obligation, on the part of Seller.  Buyer’s indemnification obligations shall survive the termination or expiration of the Contract and/or the delivery of the Products and Services.

(h)        If any part of the Contract becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, the Contract shall continue in full force and effect without such provision, and the Contract shall be construed to the fullest extent possible as to give effect to the intentions of the provision found to be unenforceable or invalid.

(i)         Failure of either party to insist upon strict performance of the Contract, or to exercise any option herein, will not be construed as a modification or waiver of any provision, right, or obligation under the Contract.

(j)         Nothing in the Contract alters the independent nature of Buyer and Seller.  Buyer and Seller are not affiliates, partners or joint venturers.  Neither party shall make any representations inconsistent herewith.

Latest Revision Date: 4-17-2019