1. Terms and Conditions

TERMS AND CONDITIONS

Hazmatpac

TERMS AND CONDITIONS OF SALE

 

  1. ENTIRE CONTRACT. The following Terms and Conditions of Sale (the “Terms”) are applicable to the sale of all products, accessories, and parts (collectively, “Goods”) by Hazmatpac or any of its affiliates or subsidiaries (“Hazmatpac”) to any purchaser thereof (“Buyer”).  All orders, quotations, and purchases are subject to these Terms to the exclusion of all other terms.  ANY ADDITIONAL OR DIFFERENT TERMS IN BUYER’S PURCHASE ORDER OR OTHER DOCUMENT ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS, AND NOTICE OF REJECTION OF SUCH TERMS IS HEREBY GIVEN.  No course of prior dealings between the parties or usage in the trade shall be relevant to supplement or explain any term hereof.
  2. The minimum order amount is $200.00, exclusive of shipping.  A twenty-five-dollar ($25.00) handling charge will be added to invoices for orders of less than the minimum amount.  Prices are subject to change without notice.  Prices billed will be those in effect at time of shipment.  If applicable, a tax exemption certificate must be provided to Hazmatpac prior to order shipment.  Custom orders are subject to 10% production overrun or 10% underrun.
  3. PAYMENT TERMS. Hazmatpac will invoice Buyer upon shipment of the Goods.  Payment is due within thirty (30) days of the date of Hazmatpac’s invoice.  Amounts remaining unpaid twenty (20) days after the due date will bear interest at the rate of one and a half percent (1.5%) per month until paid.  Buyer also shall pay Hazmatpac’s costs of collection (including without limitation attorney fees and court costs) of unpaid amounts.  Payment may be made by credit card (transaction charges may apply) or on open account.  Payment terms are subject to change based on Buyer’s payment history.  Hazmatpac reserves the right to decline to accept any order or make any shipment whenever, for any reason, it has doubt as to Buyer's financial responsibility, and Hazmatpac shall not in such event be liable for breach or non-performance of contract in whole or in part.
  4. ACCEPTANCE. Upon receipt, Buyer shall immediately inspect and test the Goods.  Unless Buyer provides Hazmatpac with written notice describing with particularity any defects or the amount of any claimed shortage within ten (10) days after delivery, the Goods shall be deemed accepted by Buyer, and any claims relating to the Goods shall be deemed waived.
  5. SHIPPING TERMS; TITLE; RISK OF LOSS. Delivery dates and charges are estimated and subject to change depending on carrier availability and carrier charges at the time of shipment.  Unless otherwise agreed, all shipments are FOB Origin (either a Hazmatpac warehouse or Hazmatpac’s supplier’s facility), and the Goods will be deemed to be delivered when loaded onto a carrier at Origin.  Title to and risk of loss of the Goods pass to Buyer upon delivery.  Buyer is responsible for filing claims for loss or damage directly with the carrier.  Pick-up orders require 24-hour advance notice.
  6. Product Compatibility. Consistent with Title 49 of the Code of Federal Regulations, product and container compatibility is the sole responsibility of Buyer.  Hazmatpac assumes no responsibility for testing procedures and makes no representations as to product and container compatibility upon sampling or sale.  Hazmatpac makes no representation or warranty and assumes no liability with respect to the compatibility of any Goods sold hereunder with the materials to be held or transported in such Goods.  Buyer represents that it has not relied upon Hazmatpac’s skill or judgment in selection of Goods suitable for Buyer’s intended use.  Buyer assumes sole responsibility with respect to the selection of Goods that are suitable and compatible to the material or product to be held or transported therein.
  7. Hazmatpac warrants that as of the date of delivery the Goods will conform to agreed-upon specifications.  If any of the Goods are alleged by Buyer not to conform to the foregoing warranty, Buyer must promptly notify Hazmatpac in writing and provide such details, samples, photographs, and other supporting information that Hazmatpac may reasonably require to evaluate Buyer’s claim.  Upon Hazmatpac’s determination that the Goods do not conform to the agreed-upon specifications, Hazmatpac shall, at its option, either replace the non-conforming Goods at Hazmatpac’s cost or issue a refund to Buyer of the amounts paid for such non-conforming Goods.  The parties hereto expressly agree that Buyer's sole and exclusive remedy and Hazmatpac’s sole obligation for any breach of the foregoing warranty shall be for Hazmatpac to replace or refund the amounts paid by Buyer for the non-conforming Goods.  This exclusive remedy shall not be deemed to have failed of its essential purpose so long as Hazmatpac is willing and able to replace non-conforming Goods.  THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  Hazmatpac’s warranty does not extend to any losses or damages due to misuse, accident, abuse, neglect, normal wear and tear, unauthorized modification or alteration, use beyond rated capacity, or any other cause not the fault of Hazmatpac.  No affirmation of Hazmatpac by words or action, other than as set forth in this Section 7, including without limitation, any technical advice or information regarding the Goods, whether given verbally, in writing, as test results, or otherwise, shall constitute a warranty, either expressed or implied.  At Hazmatpac's request, Buyer will send, at Buyer's sole expense, any allegedly defective Goods to a location specified by Hazmatpac.  Hazmatpac’s warranty extends only to Buyer.  Any claim relating to the Goods sold hereunder shall be deemed waived by Buyer unless submitted in writing to Hazmatpac within ten (10) days following the date Buyer discovered or by reasonable inspection should have discovered any claimed breach of the foregoing warranty.
  8. LIMITATION ON DAMAGES; INDEMNITY. IN NO EVENT SHALL Hazmatpac BE LIABLE FOR INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR ANY ORDER OR QUOTE TO WHICH THEY APPLY.  BUYER SHALL INDEMNIFY Hazmatpac FOR ALL CLAIMS, DEMANDS, LIABILITY, COST, OR EXPENSE (INCLUDING ATTORNEY FEES) SUSTAINED OR INCURRED BY Hazmatpac TO THE EXTENT ARISING OUT OF BUYER’S ACTS, OMISSIONS, NEGLIGENCE, OR BREACH OF THESE TERMS.
  9. DELAYS. All shipping dates are contingent upon current availability of Goods, present production schedules, and prompt receipt of all necessary information from Buyer.  Hazmatpac will not be liable for any damage, loss, cost, or expense arising out of Hazmatpac’s delayed performance or nonperformance if caused by: (a) strikes, fires, flood, natural disasters, epidemics, riots, or acts of God, (b) acts or omissions of Buyer, (c) shortages of labor, fuel, power, materials, supplies, transportation, or manufacturing facilities, (d) governmental action, (e) subcontractor delay, or (f) any other cause or condition beyond Hazmatpac's reasonable control, whether of the class of causes enumerated or otherwise (any of the foregoing, a “Force Majeure”).  In the event of a Force Majeure, Hazmatpac shall be excused from performance and may, at its option and without liability, exercise any one or more of the following: (i) cancel or suspend all or any portion of an Order or this Agreement, (ii) extend any date upon which any performance is due, or (iii) allocate and apportion Goods among its customers in any manner that Hazmatpac deems appropriate.
  10. No returns will be accepted without Hazmatpac’s prior written approval. All requests for return must be submitted within thirty (30) days of delivery of the Goods.  Prior to returning any Goods, Buyer must obtain approval and a Return Material Authorization (RMA) from Hazmatpac to accompany the return.  The following are not eligible for return, and any request for return of any of the following are hereby rejected by Hazmatpac: specially ordered, manufactured, or otherwise custom Goods, Litho Goods, Goods that have been installed or used in any way, Goods that have been altered in any way, and any open pallets/cases/cartons.  Returned Goods are subject to Hazmatpac's inspection and will not be accepted for credit unless they are in “like new” condition as determined by Hazmatpac in its sole discretion and packaged as shipped by Hazmatpac.  For authorized returns that conform to the foregoing requirements, Hazmatpac will issue a credit to Buyer less a restocking fee of twenty-five percent (25%) of the original value of the Goods.  All transportation charges for returned Goods are the sole responsibility of Buyer and must be prepaid.
  11. Buyer acknowledges that it may obtain from Hazmatpac non-public information, in whatever form, that is of a confidential or proprietary nature, whether such information is marked as confidential or reasonably should be understood to be confidential given its nature and the circumstances of its disclosure (“Confidential Information”). Buyer shall not disclose Hazmatpac’s Confidential Information without Hazmatpac’s prior written consent, except that Buyer may disclose Confidential Information to its officers, directors, employees, agents, and contractors who have a need to know such Confidential Information for purposes of fulfilling its obligations under these Terms and who agree to be bound to the confidentiality and nondisclosure obligations hereof.  Notwithstanding anything to the contrary herein, Buyer may disclose Hazmatpac’s Confidential Information without breaching these Terms if compelled to do so by a valid order of a government agency or court of competent jurisdiction provided that, prior to disclosure, Buyer promptly notifies Hazmatpac of the terms of such order and cooperates with Hazmatpac in taking lawful steps to resist, narrow, or eliminate the need for the ordered disclosure.  At any time upon Hazmatpac’s request, Buyer will either return to Hazmatpac all Confidential Information received, including all copies or extracts thereof or based thereon, or destroy all such Confidential Information and provide written certification thereof to Hazmatpac.  This Section 11 shall survive completion, expiration, or termination of the order or transaction to which these Terms apply.
  • PROPRIETARY RIGHTS. Each party shall retain all right, title, and interest in and to any patents, trademarks, service marks, copyrights, product formulations, logos, proprietary marks or designs, and other intellectual property owned by or licensed to such party (“Intellectual Property”). Buyer hereby grants to Hazmatpac a limited license to use, copy, and reproduce Buyer’s Intellectual Property in connection with Hazmatpac’s procurement, production, packaging, and delivery of the Goods.  Nothing in these Terms shall operate to transfer or convey in whole or in part the ownership of one party’s Intellectual Property to the other or a third party except as expressly set forth herein.
  • GENERAL TERMS. No agent, salesperson, or other party is authorized to bind Hazmatpac by any agreement, warranty, promise, or understanding not herein expressed. These Terms shall be governed by the laws of the State of Texas, without giving effect to the conflict of laws provisions thereof.  Any claim or dispute arising out of or relating to these Terms or the Goods shall be brought exclusively in the federal or state courts located in Houston, Texas.  Each of the parties hereto expressly submits to the exclusive jurisdiction of such courts and waives any objection based on improper venue or inconvenient forum.  If Buyer breaches any of these Terms or any other contract with Hazmatpac, Hazmatpac shall have the right to suspend performance or terminate the order to which these Terms apply, without liability.  The remedies herein reserved by Hazmatpac shall be cumulative and additional to any other or future remedies provided at law or in equity.  The failure or delay of Hazmatpac at any time to enforce any provision of these Terms, to exercise its rights under any provision hereof, or to require performance of any provision hereof, shall in no way be construed as a waiver of such provision nor in any way affect the right of Hazmatpac thereafter to enforce each and every provision hereof.  No waiver of any term, condition, or provision of this Agreement will be binding unless made in writing and signed by the party making the waiver.  If any provision in these Terms is finally determined to be invalid or unenforceable, it shall be modified to the minimum extent required to bring it into conformity with applicable law or severed from these Terms, and all other terms shall remain in full force and effect.  Buyer may not assign or transfer these Terms, in whole or in part, except upon the prior written consent of Hazmatpac.

Hazmatpac Terms and Conditions of Sale (Proprietary and Confidential)
18246349.1