ADVENT PACKAGING
TERMS AND CONDITIONS OF
1. Offer, Governing Provisions
and Cancellation. This document
is an offer or counter-offer by Advent Packaging ("Seller") to sell the goods
and/or services described in it to Buyer in accordance with these terms and
conditions, is not an acceptance of any offer made by Buyer, and is expressly
conditioned upon Buyer’s assent to these Terms and Conditions of Sale.
Seller objects to any additional or different terms contained in any
purchase order or other communication previously or hereafter provided by Buyer
to Seller. No such additional or
different terms or conditions will be of any force or effect.
The terms contained in or incorporated into this document will be the
entire agreement between Seller and Buyer on the subject of the transactions
described herein; and there are no conditions to that agreement that are not so
contained or incorporated. THIS
OFFER AND THAT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE
LAWS OF THE STATE OF CALIFORNIA (WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF
LAWS). THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL NOT BE GOVERNED BY THE 1980 U.N. CONVENTION ON
CONTRACTS FOR THE INTERNATIONAL
2. Credit Approval; Payment
Terms. Payment terms are Net
30, subject to Seller's approval of Buyer's credit from time to time, in
Seller's discretion. If such
approval is withheld or withdrawn, payment shall be due in advance of Seller’s
performance. Interest will be
charged at the lesser of (i) 18% per annum, or (ii) the highest rate permitted
by applicable law, on accounts more than 10 calendar days past due.
3. Taxes and Other Charges.
Any manufacturer's tax, occupation tax, use tax, sales tax, excise tax,
value added tax, duty, custom, inspection or testing fee, or any other tax, fee,
interest or charge of any nature whatsoever imposed by any governmental
authority on or measured by the transactions between Seller and Buyer shall be
paid by Buyer in addition to the prices quoted or invoiced.
In the event Seller is required to pay any such taxes or other charges,
Buyer shall reimburse Seller therefore on demand.
4. Delivery, Claims and Force
Majeure. Unless otherwise
provided on the face of this document, goods shall be delivered to Buyer F.O.B.
Seller's loading dock. Delivery of
products to the carrier shall constitute delivery to Buyer; and regardless of
shipping terms or freight payment, Buyer shall bear all risk of loss or damage
in transit. Seller reserves the
right to make delivery in installments, unless otherwise expressly stipulated
herein; all such installments to be separately invoiced and paid for when due
per invoice, without regard to subsequent deliveries.
Delay in delivery of any installment shall not relieve Buyer of its
obligations to accept remaining deliveries.
Claims for shortages or other errors in delivery must be made in writing
to Seller within 10 calendar days after receipt of shipment; and failure to give
such notice shall constitute unqualified acceptance and a waiver of all such
claims by Buyer. Claims for loss of
or damage to goods in transit must be made to the carrier, and not to Seller.
All delivery dates are approximate.
Seller shall not be liable for any losses or damages as a result of any
delay or failure to deliver due to any cause beyond Seller's reasonable control,
including but not limited to any act of God, act of Buyer, embargo or other
governmental act, regulation or request, fire, flood, accident, strike,
slowdown, war, act of terrorism, riot, delay in transportation, equipment
failure, or inability to obtain necessary labor, materials or manufacturing
facilities. In the event of any
such delay, the date of delivery shall be extended for a period equal to the
time lost because of the delay.
Buyer's exclusive remedy for other delays and for Seller's inability to deliver
for any reason shall be rescission of its agreement to purchase.
5. Changes.
Seller may at any time make such changes in design and construction of
products as Seller deems appropriate, without notice to Buyer.
Seller may furnish suitable substitutes for materials unobtainable
because of priorities or regulations established by governmental authority or no
availability of materials from suppliers.
6. Warranty; Disclaimers.
Seller warrants that the goods or services provided hereunder shall be in
accordance with the applicable specifications at the time of delivery to Buyer.
This warranty shall expire with respect to each shipment 20 calendar days
after the date that shipment was delivered to Buyer.
If within such warranty period Buyer notifies Seller of any alleged
non-compliance, and any such goods or services shall be proved to Seller's
satisfaction to have been non-compliant with the specifications at the time of
delivery, the non-compliant goods will be replaced by Seller free of charge, the
non-compliant services will be reperformed by Seller free of charge, or Seller
will make a fair allowance for said noncompliance.
Such replacement, reperformance or allowance (whichever Seller
determines, in its discretion, to provide) shall be Seller's sole obligation and
Buyer's exclusive remedy for any noncompliance or deficiency in goods or
services furnished hereunder, and shall be conditioned upon Buyer’s return of
such goods to Seller, F.O.B. Seller’s loading dock, if Seller requires same to
confirm noncompliance. Any goods
replaced or services reperformed under this warranty are warranted only for the
balance of the original warranty period.
THE ABOVE WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER
REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED; AND SELLER EXPRESSLY
DISCLAIMS AND EXCLUDES ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR
ANY PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR
USAGE OF TRADE.
7. Infringement.
Seller will, at its own expense, defend any suits that may be instituted
by anyone against Buyer for alleged infringement of any United States patent
relating to goods provided by Seller, and pay any final damage award therein,
provided Buyer shall have made all payments then due hereunder, shall give
Seller immediate notice in writing of any such suit, shall transmit to Seller
immediately upon receipt all processes and papers served upon Buyer, and shall
permit Seller, through its counsel, to defend or settle the same either in the
name of Buyer or in the name of Seller, giving Seller all needed information,
assistance and authority to enable Seller to do so.
Further, if the result of any such suit is a determination or
acknowledgement of infringement, Seller shall, at Seller's option (a) obtain for
Buyer the right to continue to use the goods purchased from Seller, or (b)
replace the same with non-infringing goods, or (c) modify such goods so that
they are non-infringing, or (d) remove such goods and refund to Buyer the
undepreciated portion of the purchase price.
To the extent that any goods that Seller furnishes to Buyer are
manufactured in accordance with drawings, designs or specifications proposed or
furnished by Buyer, or contain markings, trademarks or logos specified by Buyer,
Seller shall not be liable, and Buyer shall indemnify and hold harmless Seller
from and against any and all losses, liabilities, damages, claims and expenses
(including but not limited to Seller's attorneys' fees and other costs of
defense) incurred by Seller as a result of any claim of patent, trademark,
copyright or trade secret infringement, or infringement or any other proprietary
rights of third parties.
8. Consequential
Damages and Other Liability.
Seller's liability with respect to the goods or services sold hereunder shall be
limited to the warranty and indemnity provided in sections 6 and 7 of these
Terms and Conditions of Sale and, with respect to any breaches of its contract
with Buyer, shall be limited to the contract price of the goods or services that
are the subject of the breach.
SELLER SHALL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES, WHETHER
ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND
STRICT LIABILITY) OR UNDER OTHER THEORIES OF LAW OR EQUITY, WITH RESPECT TO
GOODS OR SERVICES SOLD BY SELLER, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS
RELATING THERETO. Without
limiting the generality of the foregoing, Seller specifically disclaims any
liability for property damage, penalties, special or punitive damages, damages
for lost profits or revenues, down-time, lost good will, cost of capital, cost
of substitute goods or services, or for any other types of economic loss, or for
claims of Buyer's customers or any third party for any such damages, costs or
losses. Notwithstanding anything to
the contrary herein, SELLER SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL,
INCIDENTAL, INDIRECT OR CONTINGENT DAMAGES WHATSOEVER.
9. Technical Information.
Any sketches, models or samples submitted by Seller shall remain the
property of Seller, and shall be treated as confidential information by Buyer
unless Seller has in writing indicated a contrary intent.
No use or disclosure of such sketches, models or samples, or any design
or production techniques revealed thereby, shall be made by Buyer without the
express, prior written consent of Seller.
10. Tools.
Any dies, jigs or tools that Seller manufactures or acquires in
connection with its performance hereunder shall remain the property of Seller,
notwithstanding any charges to Buyer therefor.
Any such charges convey to Buyer the right to have the tools, dies or
jigs used by Seller for performance hereunder, but do not convey title or right
of possession or any other right.
11. Storage. Storage of
completed product, work in process or raw materials may be available and, if so,
the terms thereof shall be resolved as part of the original terms. If storage
has been agreed upon, but the time for such storage has expired, then, unless
the parties have agreed otherwise, Seller may (a) invoice the Buyer for the
purchase price of all finished goods and Seller’s cost for all work in
process (including labor and overhead) and raw materials and (b) charge for
further storage at its standard rates.
If Buyer has not requested shipment within six months after (a) date that the
goods were available for shipment or (b), if later, the last date of the storage
period, then, unless the Buyer has directed Seller to ship the goods and paid
the cost of shipment, Seller may, at Seller's option, ship the goods or destroy
them, in each case, at Buyer’s expense.
12. Returns
Personalized Items are not
returnable. (NON Resaleable Conditions)
Replacement merchandise the customer receives for defective/damaged merchandise
is not returnable.
Due to administrative costs, we do not accept returns for less than
$20.00 worth of merchandise.
In the event of a return, the customer is responsible for the return shipping
charges.
Returned merchandise is the customer's responsibility, therefore it is in your
best interest to insure the returned package. Advent Packaging cannot
guarantee a replacement or refund if the merchandise returned is loss or
damaged.
To return merchandise, a Return Authorization Number is required. The Return
Authorization Number is acquired by filling a Return/Claim Form. Please do NOT
return any items without first filing a Return/Claim Form, AND having received a
Return Authorization Number! Any merchandise returned without a Return
Authorization Number becomes the property of Advent Packaging and will not
be returned to customer, and no refunds or credits will be issued in this
case.
Advent Packaging enforces this return policy with no exceptions. Due to the high
volume of orders received daily, if you ship something back to us without the
required Return Authorization Number, then we have no way of knowing that the
returned merchandise was in your property originally.
Every order from us is handled with care and personal attention. If you are not
completely satisfied, returns are accepted within 30 days of purchase. The
merchandise must be in the resaleable unopened condition and unused with all
paperwork. Initial shipping charges and handling fees are non refundable.
We will issue a full refund of the merchandise less 15% restocking fee.
If the shipping was not charged initially, we will issue a full refund less a
15% restocking fee and $7.95 to recover our initial shipping costs.
Claims: All claims for
shortages, damages or lost goods must be reported to Advent Packaging within
24 Hours of the delivery date. Replacements for defective/damaged
merchandise will be shipped via UPS Ground.
Exchanges:
We do not accept exchanges. (Please follow return procedure and repurchase new
items separately)
Cancellation:
No changes or cancellations are accepted for orders which have already been
processed for shipping.
For custom printed orders: if a proof has been created, a $75
cancellation fee is retained to cover typesetting labor costs. Orders may not be
canceled or changed if the order is approved and printed.
Return and Claim Form:
We will contact you within one (1) business day upon receiving your return/claim
request.
Chargeback:
If you issue a chargeback to your financial institution to avoid payment either
by mistake or fraud, our merchant account imposes a $20 processing fee to Advent
Packaging. We will then assess a $20 processing fee for each individual
chargeback to you, with no exceptions. We will notify you both by mail and email
for you to remit the $20 fee plus the original purchase amount. If we do not
receive the payment within 30 days from the date we notify you, we will assess
an additional $10 administration fee for a total of $30 plus the original
purchase amount. The case will then be turned over to collections.