TERMS AND CONDITIONS OF SALE
SWISS PAC USA
TERMS AND CONDITIONS OF SALE
The following Terms and Conditions of Sale (“Terms and Conditions”) shall govern the sale and purchase of Products (as defined below) by and between Swiss Pac USA (“Seller”) and any purchaser of Products from Swiss Pac USA (“Customer”). These Terms and Conditions are incorporated in their entirety into all invoices, sales orders, purchase orders, telephone orders, custom orders, e-mail orders, e-commerce or website orders, and any other transaction (“Orders”) between Seller and Customer. Seller and Customer may individually be referred to as “Party” or collectively as the “Parties”.
1. PRICES, TRADE TERMS, INTEREST, TAXES. The Customer acknowledges that all prices on products provided by Seller, including, but not limited to, pouches, labels, glass and/or plastic bottles, corrugated boxes, or any other packaging product (collectively “Products” and/or “Goods”) are in the currency of the United States of America. Customer further acknowledges that all Product prices, whether, they appear on the Seller’s website, on a price list, or in any other form or medium are only effective for orders shipped on the date that they appear, Seller reserves the right to change prices at any time without notice due to sudden severe increase in the cost of materials or other costs.
- Surcharges. Customer agrees to accept that any temporary surcharge imposed by Seller’s suppliers will be passed on to Customer during the period of time for which such surcharge is in effect.
- Delivery Charges. All transportation, insurance, brokerage, and other charges for delivery from Seller to Customer represent estimated charges. If actual charges at the time(s) of shipment are greater than estimated, then Customer shall pay any increase on or before the due date set forth on the invoice for the Products sent by Seller to Customer.
- Additional Charges. The following charges are (unless otherwise specified herein or in a separate purchase or sales order) not included in the prices for Products and Seller reserves the right to separately charge Customer for them: (i) shipping, taxes, customs and export and import duties; (ii) all miscellaneous charges such as weighing and inspection charges, and charges for consular invoices and certificates of origin; (iii) charges in effect at the time(s) of shipment which are not in effect on the date hereof or which Seller could not reasonably know were in effect; and (iv) a special handling charge at a minimum cost of $25 to be assessed pursuant to Customer’s request for special handling on a case-bycase basis per order.
2. Payment. Payment for Products and/or Goods under all non-credit accounts are due in full in advance of delivery, unless, Seller grants credit terms. If Customer fails to make any payment when due, Seller has the right to terminate a sale, to stop Products in transit, and to suspend further performance under these Terms and Conditions and/or other agreements with Customer. In the event Seller is required to retain the services of an attorney, the Customer agrees to pay Seller’s attorneys’ fees and expenses associated with collection or other enforcement efforts.
- Terms of Credit. It is at Seller’s sole discretion to grant a purchase of Productsthrough a line of credit. Seller is not bound to extend credit prior to Customer’s compliance with credit requirements, including, but not limited to Seller’s approval of a signed credit application. When granted Customer shall pay the full invoice within thirty (30) days or less after the date of Seller’s invoice, unless a different payment time is agreed to by Seller in writing. If the financial situation of Customer does not justify continuation of production or shipment on credit terms or payment is past due, Seller has the discretion to cancel any unfilled orders from Customer or parts thereof and/or may require immediate payment for all Products delivered and/or full or partial payment in advance for all Products not delivered. In the event that payment is past due, Seller may impose a service charge of the lesser of the maximum amount allowed by applicable law or 1 – 1 1/2% per month rate of interest will apply to all outstanding balances exceeding payment terms.
- Payment on Custom Orders. Notwithstanding the foregoing, custom ordered Products require payment in FULL prior to shipping, are final sale, and cannot be returned, unless (i) such Products are defective and/or non-conforming, as determined in the sole discretion of the Seller; and (ii) the Customer adheres to the express provisions of Section 6 of these Terms and Conditions.
- Payment via Credit Card. If Customer pays for the Products and/or Goods using a credit card, Customer agrees to pay the credit card bill according to the terms and conditions of Customer’s agreement with its credit card company. Any amount charged to Customer’s credit card are subject to a 3% convenience fee. Customer shall not dispute any credit card charge, unless Customer has fully adhered to the express provisions of Section 6 of these Terms and Conditions, in which case Customer shall only be entitled to receive a credit or reimbursement for the value of the Products or Goods, minus the cost of the damaged goods and any applicable charges, including, without limitation, restocking charges and/or shipping costs.
3. Shipments. Unless complete and specific shipping instructions are received, in writing and approved by Seller, from Customer within ten (10) days prior to the shipment date, then Seller may select the means of shipment. Seller reserves the right to make partial shipments and to invoice Customer therefor, such shipments and invoices to be governed by the Terms and Conditions contained herein. If shipment of any Product(s) are delayed by Customer, all Product(s) held by Seller shall be at Customer’s risk of loss and expense.
4. Delivery. Unless specifically agreed to in writing by the Parties, Seller shall select the method of delivery of the purchased Products and/or Goods. Seller reserves the right to ship Products freight collect and to select the means of transportation and routing, and may insure all Products shipped at 110% value and all freight and insurance costs shall be for Customer’s account. Delivery dates quoted are approximates only, are not guaranteed, and may be extended by Seller for a reasonable time. Products in transit are at Customer’s Risk. Customer shall be fully responsible to pay or to reimburse Seller for carrier detention charges incurred as a result of delays caused or allowed by Customer.
- International Deliveries. In the case of international sales, unless otherwise agreed, the Customer shall be fully responsible: (i) to provide Seller, prior to shipment and in writing, the ultimate destination and identity of the end-user; (ii) to pay all duties, taxes and other charges imposed by any government on Products or on the purchase, exportation or importation of Products; and (iii) for compliance with any applicable legal requirements for exportation and importation of Products.
- Exports. Customer will be responsible to comply with all applicable laws and regulations, including the export control laws in effect in the United States, Canada, and Europe, which may be issued from time to time concerning the exporting, importing, and re-exporting of Products. Customer acknowledges that shipments of Products are subject to the export laws of the United States, including, United States Department of State, and Department of Commerce regulations (including the U.S. Arms Export Control Act (22 U.S.C. 2778 et seq.), the International Traffic in Arms Regulations (22 CFR 120-130), the Export Administration Regulations (15 CFR 730-774), and the international Emergency Economic Powers Act (50 U.S.C 1701-1706) and that a license from the Department of State or the Department of Commerce may be required prior to export of Products. Customer agrees to comply with all applicable licensing requirements. Customer also agrees to comply with the United States Foreign Corrupt Practices Act, and shall indemnify Seller for any failure to comply or violation of such act. Customer shall, at its sole cost and expense, obtain and maintain in effect all permits, licenses, and other consents necessary to the conduct of activities under this agreement. Additionally, for U.S. export licensing purposes, Customer shall provide to Seller any and all documentation required to complete any and all applicable United States of America State Department or Commerce Department license applications. It will further be Customer’s responsibility to inform Seller of the applicability of and compliance with testing and legal requirements (including local laws) with respect to any purchase order.
5. Cancellation or Modification. No contract or purchase order between Seller and Customer is subject to termination, cancellation, modification, or amendment in any respect by Customer, unless, upon written request to Seller, is accepted in writing by an officer of Seller, and upon payment by Customer of all reasonable termination, cancellation, modification, or amendment charges determined by Seller in its sole discretion.
6. Claims and Returns. Subject to Customer’s full compliance with the Terms and Conditions set forth herein, all returns of other than nonconforming Products must be: (i) approved and authorized by Seller in advance; (ii) returned in its original packaging and form; (iii) made within five (5) days after the earlier of Customer’s receipt or access to the Products; (iv) shipped at the Customer’s expense; and (v) accompanied by or subject to a twenty percent (20%) restocking charge. Any return shipment, when authorized, will be examined upon receipt to ensure that the goods are in good condition, and only then will the Customer receive reimbursement. ONLY THE VALUE OF THE PRODUCTS ARE REIMBURSABLE. SHIPPING COSTS ARE NONREFUNDABLE IN ALL CIRMCUMSTANCES. No claim against Seller shall be made or allowed for Products returned without Seller’s prior written consent.
- Non-Conforming Products. Rejection of alleged non-conforming Products must be made in writing five (5) days after the earlier of Customer’s receipt or access to the Products. After the expiration of thirty (30) days after Customer has received Products, Products are to be deemed conforming and accepted and not subject to revocation of acceptance. Customer shall give Seller a reasonable opportunity to examine and test Products that are the basis for any claim of non-conformity.
- Loss During Transit. All claims for loss or damage during transit must be made against the carrier and by notation on freight bill or delivery receipt.
- Loss or Damage. IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES. SELLER’S LIABILITY FOR DAMAGES SHALL NOT EXCEED THE PAYMENT, IF ANY, RECEIVED BY SELLER FOR THE PRODUCT FURNISHED OR TO BE FURNISHED, AS THE CASE MAY BE, WHICH IS THE SUBJECT OF CLAIM OR DISPUTE. SELLER SHALL NOT BE LIABLE FOR LOSS OR DAMAGE (WHETHER PERSONAL, PROPERTY OR OTHERWISE) IN EXCESS OF THE PURCHASE PRICE, RESULTING FROM OR ARISING OUT OF THE BREACH OF ANY TERM OR CONDITION (WHETHER EXPRESS OR IMPLIED) OF ANY CONTRACT RESULTING HEREFROM, OR OTHERWISE RESULTING FROM, OR ARISING OUT OF, THE MANUFACTURE, SALE, DELIVERY, INSTALLATION AND/OR SERVICING OF THE PRODUCTS OR THE PERFORMANCE OR NONPERFORMANCE OF ANY CONTRACT RESULTING HEREFROM.
7. Customer’s Warranty and Representation. Customer warrants and represents that any Product it purchases hereunder is suitable and appropriate for such Product’s intended use and application. Pursuant to and in addition to the indemnification obligations set forth below, Customer shall indemnify, defend, and hold Seller harmless against any damage, claim, expense or loss, including all costs and attorneys’ fees, resulting from claims due to any breach of Customer’s warranties and representations set forth herein.
8. Confidential Information. All non-public information conveyed by a party (“Disclosing Party”) to the other party (“Receiving Party”) regarding prices, costs, discounts, inventions, planned and existing products, including the Products, packaging, customers, distributors as well as information regarding a party’s business or finances and production methods, know-how and concepts used by a party, is proprietary and confidential (“Confidential Information”). Receiving Party agrees that it will not disclose any such Confidential Information to others and will advise its employees, officers, directors, consultants and legal and tax advisors, of the secrecy of such Confidential Information and take all other steps necessary to protect Confidential Information. Receiving party shall not copy, reverse compile, reverse engineer, or otherwise duplicate the Confidential Information or copy, misuse, or misappropriate any Confidential Information. The Parties hereto acknowledge that any breach of the provisions of this section would cause irreparable harm and therefore non-breaching party shall be entitled to all legal and equitable rights and remedies available under state and federal law and otherwise to protect its Confidential Information, trade secrets, and intellectual property of all kinds, including, but not limited to, injunctive relief available. Confidential Information shall not include information that: (i) is or becomes publicly available other than as a result of a disclosure by the Receiving Party; (ii) is or becomes available to the Receiving Party on a non-confidential basis from a source (other than the Disclosing Party) which is not prohibited from disclosing such information to the Receiving Party by legal, contractual, or fiduciary obligation; (iii) is developed by the Receiving Party independently of the confidential or proprietary information of Disclosing Party; or (iv) is information that was already known by the Receiving Party so long as the Receiving Party can demonstrate, by written records, that such information had been in the Receiving Party’s possession prior to such disclosure of information.
9. Patents. Seller makes no warranty as to patents, including but not limited to U.S. Patents, foreign patents, hidden patents (i.e. patents embedded within other patents), or that any other goods or parts thereof sold by Seller will be delivered to Customer free of the rightful claim of any third person by way of patent infringement. Seller assumes no responsibility for any patent violations resulting from an unusual or not contemplated application and/or use of the goods or parts thereof by Customer or others. The sale of goods by Seller does not convey any license or right (whether expressly, by implication, estoppel or otherwise) under any patent claim of Seller or of any other person, firm, corporation, or government.
Pursuant to and in addition to the indemnification obligations set forth below, customer shall indemnify, defend, and hold Seller harmless against any damage, claim, expense, or loss, including all costs and attorneys’ fees, resulting from claims of infringement of patens, trademarks, or copyrights arising from compliance with Customer’s design or specifications or instructions. Customer shall be exclusively responsible for designs or devices which the Customer may order incorporated in or imprinted or placed on the Products, notwithstanding that Seller may have been consulted thereon or performed artwork or other special services in connection therewith.
10. Warranty Disclaimer. TO THE FULLEST EXTENT PERMITTED BY LAW, SELLER EXPRESSLY DISCLAIMS ALL WARRANTIES EITHER EXPRESS OR IMPLED, WITH RESPECT TO THE PRODUCTS MANUFACTURED AND/OR SOLD BY IT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, USE OR APPLICATION, OR THAT ANY PRODUCTS ARE DELIVERED FREE OF CLAIMS OF THIRD PARTIES BY WAY OF INFRINGEMENT OR THE LIKE. EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN WRITING BY SELLER, ALL GOODS ARE SOLD “AS IS” AND “WITH ALL FAULTS”.
SAMPLES OR MODELS PROVIDED BY SELLER TO CUSTOMER AND/OR SELLER BY CUSTOMER SHALL NOT BE DEEMED TO BE PART OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES AND SHALL NOT CREATE ANY WARRANTIES, EXPRESS OR IMPLIED, THAT THE WHOLE OF THE PRODUCTS SHALL CONFORM TO THE SAMPLE OR MODEL.
11. Indemnification. Customer shall indemnify, defend and hold harmless Seller, its directors, officers, agents, employees, members, subsidiaries, and successors in interest from any claim, action, proceeding, liability, loos, damage, cost, or expense, including, without limitation, reasonable attorneys’ fees and costs to the extent arising out of in connection with, resulting from, or related to these Terms and Conditions, any agreement between the Parties, and/or any agreement made subject to these Terms and Conditions. Seller shall give Customer through email, fax, or voicemail (hereinafter “Written”) notice of any charge, suit, action, proceeding or claim that may be subject to the indemnification obligations set forth above and allow Customer reasonable opportunity to investigate such charge, suit, action, proceeding or claim. In connection with any charge, suit, action, proceeding or claim brought against Seller by a third-party, Seller shall have the option, in its sole discretion, to participate in the defense at Customer’s expense. The indemnification obligations set forth in these Terms and Conditions shall survive the termination (or expiration) of these Terms and Conditions, any agreement between the Parties, and/or any agreement made subject to these Terms and Conditions.
12. Force Majeure. If Seller is prevented from or delayed in performing by a force majeure event, it shall not be liable or responsible for its failure to timely perform, but shall perform as soon as possible after the force majeure event ceases. References to force majeure shall refer to circumstances that are beyond a party’s control and that affect production or transportation, including acts of God or of the public enemy, fire, flood, strike, epidemic or pandemic, accident, work force issues, riot, war, severe weather, lack of or inadequate transportation facilities, delays in transportation, delays in delivery of material or services by supplier, delays or failure in procuring any export or import licenses or other documents or authorizations deemed necessary or desirable by Seller, by or from shortages of labor, fuel, material or supplies, by or from regulations, priorities, orders or embargoes imposed by any civil or military governmental authority in either its sovereign or contractual capacity, or by or from any other cause or causes (whether or not similar in nature to any of those hereinbefore specified) beyond the reasonable control of Seller.
13. General Conditions.
- No modification, amendment, recission, discharge, abandonment, or waiver of these terms and conditions of sale shall be binding upon Seller unless set forth in writing and signed by Seller.
- No modification or amendment of any order resulting herefrom shall be binding upon Seller unless set forth in writing and signed by Seller.
- No delay or failure on the part of Seller in exercising any right or remedy under any contract between Customer and Seller, and no partial or single exercise thereof, shall constitute a waiver of such other right or remedy.
- If any term of any contract between Customer and Seller or the application thereof shall be illegal, such illegality shall not affect any other term or condition hereof and such other Terms and Conditions shall continue in full force and effect.
- Paragraph headings are inserted for convenience only and do not form a part of any contract.
- Seller shall not be obligated to perform any term or condition if such performance might, in the opinion of Seller’s legal counsel, violate any governmental law, regulation or ordinance (foreign or domestic), and Seller shall not be liable for damages or loss as a result of such nonperformance.
- Seller reserves the right to make changes in design and/or to add improvements in the Products it manufactures or sells at any time without incurring any obligation to replace Products previously sold.
- The Terms and Conditions contained herein represent the entire understanding of the Parties with respect to the subject matter hereof. All stenographic or clerical errors or omissions, however, are subject to correction.
- The contract between Seller and Customer shall be construed in accordance with and governed by the laws of the State of Florida, U.S.A. Customer consents to the exclusive jurisdiction of the Courts of Miami-Dade County, Florida and/or the U.S. District Court for the Southern District of Florida in any action brought to collect monies owed by Customer by Seller, and in any action arising under these Terms and Conditions, any agreement between the Parties, and/or any agreement made subject to these Terms and Conditions.
- On all orders, Seller will consider the order completed if the overruns or under runs exceed what was stated on the quotation. Seller reserves the right to ship and invoice (at the rate of the quantity specified on the order) overruns in accordance with the above and Seller likewise deems any under runs within the same range as constituting the complete fulfillment of such orders.
- Seller assumes no responsibility that the Products will conform to any City, State or Federal law regulating labeling, construction, material, thickness, or use, or will not infringe any trademark, copyright or patent. Customer assumes the responsibility to notify Seller of any City, State or Federal law regulating labeling, construction, material, thickness, or use of Products being delivered by Seller in accordance with any purchase order.
- The giving of or failure to give advice or recommendations of any character by Seller shall not impose any liability upon Seller. No chare is being made for any technical advice furnished, and Seller assumes no obligation or liability for the results obtained or conclusion reached, all such advice being accepted at Customer’s risk, and further investigated by Customer should it feel further inquiry is necessary.
- Drawings, sketches, dummies, samples, plans, and/or modes furnished by Seller shall remain Seller’s property and no use of same shall be made, or any idea obtained therefrom be used, except upon compensation to be determined by Seller. ALL SUCH SKETCHES, DUMMIES, SAMPLES, PLANS, AND/OR MODELS ARE SUBJECT TO THE WARRANTY DISCLAIMER SET FORTH IN SECTION 10 ABOVE.
- Drawings and plans made and manipulated by Seller as well as plates or molds made from Seller’s original designs and the necessary electrotypes or plates used in the printing of the order, remain Seller’s exclusive property, unless otherwise agreed upon in writing, or unless paid by Customer.
- Seller shall store artwork, plates, molds, and dies without charge. However, Seller shall have the right without liability, to destroy them if not used for two (2) years following the acceptance of these Terms and Conditions and any agreement or contract between the Parties.
- Seller shall have the right to imprint its trademark and/or its quality control codes in a suitable inconspicuous locality on any Products furnished by Seller for traceability purposes.
- If shipment is deferred in whole or in part at Customer’s request, beyond the shipping date originally specified, Seller reserves the right to immediately bill Customer for such unfinished portion and for expenses incurred for storage, it being understood that such unshipped Products are Customer’s property, and the liability of Seller is that of warehouseman only.
14. Dispute Resolution.
- Mediation. Notwithstanding anything else contained herein, Seller and Customer acknowledge and agree that mediation shall be a condition precedent to the filing of any action against any Party arising from, related to, or in connection with any agreement between the Parties, these Terms and Conditions, and any agreement made subject to these Terms and Conditions. Any Party may invoke mandatory mediation of the dispute utilizing the services of an independent mediator, who shall be selected by mutual agreement of the Parties involved in the dispute, and such Parties shall endeavor to schedule such mediation within thirty (30) days after mediation is invoked, which period may be extended upon agreement of the Parties to accommodate their schedules. The costs of the mediator shall be shared equally between the Parties. Mediation shall be conducted in Miami-Dade County, Florida, and the Parties shall personally participate in the mediation proceedings contemplated herein, and shall endeavor to achieve a resolution of the dispute through mutual agreement.
- Jurisdiction and Venue. If Mediation does not resolve any such dispute between the Parties, then the exclusive jurisdiction and venue to resolve any controversy or claim arising out of, or relating to, the contract between Seller and Customer, shall be any federal or state court in Miami-Dade County, Florida, and the Parties expressly consent to such jurisdiction and venue. The Parties agree that any dispute, controversy, or claim arising out of, or relating, the contract between Seller and Customer shall be heard and determined by a Judge, and the Parties hereby waive any right to a trial by Jury.
- Attorneys’ Fees. The prevailing party in any action brought pursuant to these Terms and Conditions and/or any agreement entered into between the Parties hereunder shall be entitled to prevailing party attorney fees, costs, and expenses, through and including all appellate litigation and post-judgment collection.
- Seller hereby notifies Customer of its objection to all Terms and Conditions in any purchase order or any other communications from Customer which are additional to, different from, or conflicting with the Terms and Conditions contained herein and hereon. Neither the failure by Seller to object to a purchase order or any other communication from Customer, nor any shipment of the Products described hereon, shall be deemed an acceptance of any terms or conditions which are additional to, different from, or conflicting with the Terms and Conditions contained herein.
- All Terms and Conditions hereof (and no other) shall be deemed accepted if Customer agrees to the quantity, description and price of the Products, whether such confirmation or acceptance be via invoice, sales order, purchase order, telephone order, custom order, e-mail order, e-commerce or website order, or any other transaction between Seller and Customer for sale and purchase of the Products. Such confirmation or acceptance shall be deemed an acceptance of all Terms and Conditions herein and not a counteroffer, regardless of whether it contains terms or conditions which are additional to, different from or conflicting with the Terms and Conditions contained herein. In any event, Customer shall be deemed to have accepted all the Terms and Conditions contained herein (and no other) upon Customer’s acceptance or use of the Products provided by Seller.
- In the event, that Seller delivers a copy of these Terms and Conditions along with a quotation, sale order, or proforma, and Customer issues a Purchase Order in response, then Customer acknowledges and agrees that these Terms and Conditions have been accepted and are binding upon the Parties, even if Customer fails to return a signed copy of these Terms and Conditions to Seller.