PACIFIC BAG, INC.
ORDER AND PURCHASE TERMS & CONDITIONS
- Orders. These Order and Purchase Terms & Conditions (“Terms”) govern and control your (the “Customer”) purchase of products (“Products”) and services (“Services”) from Pacific Bag, Inc. (“PBi”) (“Order(s)”). PBi has no obligation with respect to any Order submitted by Customer until accepted or confirmed by PBi in writing, which may be done through electronic communication. Unless otherwise agreed to and accepted in writing, these Terms set out the sole conditions of purchase of PBi’s Products and Services. These Terms supersede any conflicting terms in Customer’s standard business forms or other communications for ordering Products and Services. Such Customer provided documentation is for convenience only and does not alter these Terms. Once accepted by PBi, your Order (for Stock and/or Custom and/or Valve Products) may not be canceled, modified or deferred in delivery without PBi’s prior written consent. These Terms may be updated, amended or expanded at any time for subsequent Orders and such Terms will be updated and available on PBi’s website www.pacificbag.com.
- Confidentiality. The pricing and all information obtained from PBi in connection with these Terms, is the confidential and proprietary information of PBi and may not be disclosed or used for any other purpose.
- Custom Preparatory Work. On Flexographic or Rotogravure Custom print Orders, all preparatory work, engravings and plates are, and remain, PBi’s property and any charge is solely for their use in the production of such Order. PBi will have the right without liability to destroy such items if not used for one year.
- Shipments. All accepted Orders will be shipped upon completion unless other special arrangements, including possibly storage and invoicing, have been approved in writing by PBi. Products kept in storage by special order shall be delivered according to a predetermined schedule. Any Products remaining at the end of that period will be delivered and invoiced when shipped, and may also be subject to additional storage charges of $25 per full or partial pallet per month. PBi will use reasonable efforts to meet the stated delivery and/or shipping dates for each Order; provided that it is understood and agreed that such dates are approximate only. PBi will notify you in the event of any anticipated significant delay in such dates.
- Content. With respect to any images, trademarks, trade names, or other content (“Content”) that you provide to PBi for use with ordered Products or Services, you hereby grant to PBi a non-exclusive, worldwide, perpetual, irrevocable and royalty-free license to use, excerpt, reformat, adapt or create other derivative works of the Content as necessary to complete the Order. Unless otherwise agreed in writing, PBi will have the right to imprint its trademark in a suitable inconspicuous place on any Products.
- Payment. If your Order is accepted under payment credit terms, any deposits, partial, pre-shipment, final payments and due dates will be specified therein. In the absence of any alternative payment terms and due dates, payment is due within 30 days of the invoice date without discount, adjustment or setoff. Deposits shall be applied to shipment or multi-shipment invoices on a pro rata basis or as otherwise specified in the Order. Notwithstanding any provision to the contrary in these Terms, PBi may, in its sole discretion, terminate the extension of credit to you at any time for any reason. If you fail to pay an invoice when due, then in addition to any other right or remedy available to PBi at law or equity, PBi may at its option: (a) charge a late fee of 1.5% per full or partial month (or the maximum rate allowed by law if less) on the past due amount from the date due until paid, (b) terminate or change your credit arrangements, (c) cancel any unfilled Orders, and/or (d) discontinue deliveries until your account is brought current and PBi is assured of your ability to remain current on your accounts.
- Returns and Rejected Goods. In no event will PBi accept Product returns without its written approval. You agree to notify PBi in writing within thirty (30) business days of receipt of the Products if there are any defects, overstock, damaged, or non-conforming goods (“Rejected Goods”). You agree to save the Rejected Goods for inspection by PBi. In no event will any claim for Rejected Goods, regardless of the cause or circumstance, be allowed later than ninety (90) days from the actual date of shipment or ninety (90) days from the first shipment or have-ready date specified in the Order, whichever date is earlier. If Product is stored by PBi at Customer’s request beyond the first shipment date or haveready date specified, the ninety (90) day period shall commence on the first day of storage. Your sole and exclusive remedy with respect to any Rejected Goods is the reworking of the Rejected Goods, the replacement of Rejected Goods, or the refund of payments for such Rejected Goods, as determined by PBi in its sole and absolute discretion. With respect to Rejected Goods where you provided the materials and PBi provided Services only, the parties agree that PBi will perform only the Services free of defects in workmanship, and that PBi is not responsible for any materials supplied by you or on your behalf, except in the event of damage or destruction of such materials by PBi’s negligent acts or willful misconduct.
- Warranties. Subject to Section 9 below, PBi warrants that the Products will conform to the agreed upon specifications. Prior to placing an Order for Products, it is your responsibility to determine the suitability of the Products for your intended use and you expressly assume ALL risk and liability for making that determination. EXCEPT AS EXPRESSLY SET FORTH IN THIS PARAGRAPH, PBI MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THE PRODUCTS AND SERVICES, EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT).
- Limitations on Damages. PBI WILL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR SPECIAL, CONSEQUENTIAL (INCLUDING BUT NOT LIMITED TO LOST OPPORTUNITIES OR PROFITS), INCIDENTAL OR PUNITIVE DAMAGES, REGARDLESS OF THE THEORY OF LIABILITY UNDER WHICH SUCH DAMAGES ARE SOUGHT, AND REGARDLESS OF WHETHER PBI KNEW OR HAD REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES. If the final Product carries warnings as to allergens, not for human consumption, and similar alerts, in no event will PBi be liable for claims relating to such warnings or incidents arising from such Product contents. Your exclusive remedy for any claim for losses or damages of any kind or nature due to failure to deliver any portion of the Products or losses or damages of any kind relating to or arising out of your purchase, handling or use of the Products, including but not limited to those arising from breach of warranty or contract, negligence or other tort, strict liability, infringement or otherwise,will not exceed the purchase price of the portion of the Products in respect of which such claim is made and proved. The disclaimers and limitations set forth in these Terms shall apply notwithstanding the failure or alleged failure of any essential purpose.
- Indemnification. You agree to indemnify, defend and hold harmless PBi, its affiliates, successors and assigns, and the officers, directors, employees, representatives and agents of the foregoing, for, from and against any and all loss, damage, settlement, cost, expense, penalty and any other liability (including but not limited to reasonable attorneys’ fees and expenses and costs of investigation) in connection with any claims (actual or alleged), proceedings, actions, arbitrations, audits, hearings, investigations and suits, whether civil, criminal, administrative, investigative or informal, commenced, brought, conducted or heard by or before, or otherwise involving, any court, administrative agency, or other governmental body, or any arbitrator, to the extent arising from or relating to: (a) any claim (actual or alleged) of unfair competition or infringement or misappropriation of any patent, trademark, trade name, trade dress, copyright, trade secret, or other proprietary right as a result of PBi’s: (i) use of the materials you provide, (ii) use of designs or other Content provided by or for you, or (iii) use of, or compliance with, specifications or instructions provided by, or for you, in completing the Products or Services, (b) any claims (actual or alleged) that may arise from matters addressed in Section 8 above, or (c) any claims (actual or alleged) that may arise from matters addressed in Section 11 below, including without limitation, any Product Claims and/or any breach by you of your obligations and responsibilities set forth therein.
- Legal Compliance and Marketing Claims. In the event you provide Content to PBi that includes marketing claims or other product claims for use by PBi in providing the Products or Services (“Product Claims”), PBi may, but is not obligated to, provide certain feedback as to such Product Claims, including without limitation, feedback as to the validity and/or legality of such Product Claims under applicable law. Notwithstanding the preceding sentence, any such feedback is informational in nature only and does not constitute legal advice. You agree that PBi does not provide legal advice, and that you will not rely on any such feedback as legal advice. Rather, you agree to exercise your own independent business judgment in making Product Claims and in the consideration of any such feedback, including without limitation, whether or not to have such Product Claims or feedback evaluated by legal counsel of your choosing. All risk in connection with any Product Claims is with you, and PBi shall not be responsible for, nor have any liability to you or to any third party in connection with, any such Product Claims, whether or not PBi provided feedback in connection therewith. You further agree not to make, whether in any Product Claims, on your website or other marketing materials, as part of any modifications or alterations to the Products following their delivery by PBi, or in any other third party or consumer communications, any guarantees, warranties, or other statements regarding the use, characteristics, qualities, efficacies, functionality or features of the Products (including without limitation, as to the environmental sustainability or environmental benefits of the Products), other than those guarantees, warranties or other statements that PBi has expressly approved in writing.
- Over- and Under-Runs. With respect to Orders for custom Products, you understand and agree that an over-run or under-run in the percentage of the original amount ordered is possible and likely. As part of the Order documentation, PBi will provide an over/under-run allowance based on the amount of material required to complete the Order. You agree that an over/under-run within the limits specified shall constitute proper fulfillment of the Order and the amount of completed and shipped Products will be invoiced and be paid for at the unit price specified in the Order. If the Order includes more than one item, the allowable percentage shall apply to each item.
- Taxes. You agree to pay all sales, use, excise or similar value added taxes and other assessments that may be imposed or levied upon the sale, production and transportation of the Products and/or provided Services. You agree to provide any tax exemption certificates or similar documentation upon request by PBi.
- Materials. Where materials are specified by supplier designation, PBi reserves the right to substitute substantially equivalent materials by other suppliers.
- Law/Venue. These Terms are governed by the state of Washington law, excluding its conflicts of law rules. The parties irrevocably submit to venue and exclusive personal jurisdiction in the federal and state courts in Seattle, King County, Washington, USA for any dispute arising out of these Terms, and waive all objections to jurisdiction and venue of such courts.
- Invalidity. If any part of these Terms are found invalid or unenforceable, that part will be enforced to the maximum extent permitted by law andthe remainder shall remain in full force. A party does not waive any rights by failing to insist on compliance with any of the provisions of theseTerms or by failing to exercise any right hereunder. Any waivers granted hereunder are effective only if recorded in a writing signed by the party granting such waiver.
- Cumulative Rights. The rights and remedies of the parties hereunder are cumulative, and either party may enforce any of its express rights or remedies or other rights and remedies available to it at law or in equity. The Section headings are for convenience only and have no interpretive value.
- Force Majeure. Neither party shall be responsible or liable in any way for failure or delay in carrying out the obligations herein resulting from any cause or circumstances beyond its reasonable control, including but not limited to, fire, flood, war, labor difficulties, interruption of transit, inability to obtain materials or supplies, accident, explosion, civil commotion, and acts of any governmental authority.
- Entirety. These Terms, together with PBi invoices, submitted credit applications and purchase orders constitute the complete and final agreement of the parties and supersede the parties’ prior agreements, understandings and discussions relating to the purchase of PBi Products and Services. Except as expressly provided herein, no modification of these Terms with respect to a specific Order is binding unless it is in writing and signed by Customer and PBi.
- No Assignment. Except as provided below, neither party may assign its rights or delegate its obligations hereunder without the prior consent of the other party, such consent not to be unreasonably withheld. Any such purported assignment or delegation, in the absence of such consent, will be void and without effect. A change in your form or organization, combination or merger with another entity, or the sale of all or a substantial portion of assets by you, shall be deemed an assignment requiring PBi’s prior written approval. PBi may assign an Order (or any of its rights and obligations under these Terms or any Order): (a) to any of its affiliates, or (b) in connection with any merger, consolidation, reorganization, sale of all or substantially all of its assets or any similar transaction.
- Survival. All provisions that by their nature are intended to survive completion of the Order shall survive.
- Notice. Notices required under these Terms are sufficient if given by nationally recognized overnight courier service, certified mail (return receipt requested), and facsimile with electronic confirmation or personal delivery to the other party at the address provided in the submitted purchase order and/or confirmation. Notice is effective: (a) when delivered personally, (b) three business days after sending by certified mail, (c) on the business day after sending by a nationally recognized courier service, or (d) on the business day after sending by facsimile with electronic confirmation to the sender. A party may change its notice address by giving notice in accordance with this Section.