ANCHOR GLASS CONTAINER CORPORATION
TERMS AND CONDITIONS OF SALE OF GLASS CONTAINERS
TERMS. Customer shall pay to Anchor Glass Container Corporation (Seller) the full amount of the price for any goods ordered from Seller within 30 days from the date of Seller’s invoice. Customer shall receive a discount of 1% of such price, after the deduction of any freight charges, duties, insurance charges, taxes and similar charges, if Customer pays the total amount to Seller in cash within 10 days from the date of Seller’s invoice. All payments are to be made in cash or cash equivalents in U.S. Dollars. Customer shall pay to Seller on demand a late payment charge on any past due balance hereunder at the rate of 1% of such past due balance per 30 days outstanding calculated daily (but, in any event, not in excess of the applicable lawful maximum rate).
PRICES. Subject to the provisions of the succeeding paragraph, the price for the goods covered by this Agreement shall be Seller’s price in effect at the date of delivery plus any applicable taxes and energy and freight surcharges, which Seller may assess, unless a different price and/or price adjustment mechanism has been previously agreed upon by Customer and Seller in a pre-existing agreement between them. Except where Customer and Seller already have a different pricing agreement in place, Customer’s payment of this invoice constitutes an irrevocable acceptance by Customer of any energy and/or freight surcharges included in such invoice and Customer agrees that it will not hereafter seek recovery or reimbursement of any such surcharges. Prices are subject to correction for error and subject to increase at any time without advance notice. Unless otherwise agreed by Seller, all prices are f.o.b. Seller’s plant of manufacture.
DELIVERIES. ALL DELIVERY AND “READY BY” DATES GIVEN OR INDICATED ARE APPROXIMATE. Actual completion and delivery dates may vary and are therefore approximate. IN NO EVENT SHALL SELLER BE RESPONSIBLE FOR OR LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR DAMAGES OR LOSSES OF ANY KIND WHATSOEVER, WHETHER DIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHERWISE, SUSTAINED ON ACCOUNT OF SELLER’S FAILURE TO MEET DELIVERY OR “READY BY” DATES FOR ANY REASON. Seller shall also not be responsible for detention or demurrage charges. Customer shall pay to Seller a reasonable monthly storage charge for goods covered hereby located on Seller’s premises or in warehouses designated by Seller at the beginning of each calendar month following the expiration of the free storage time hereinafter described. “Free storage time” shall include the calendar month in which the manufacture of the goods is completed (or, in the case of goods not manufactured by Seller, the month in which Seller receives such goods in its designated warehouse) or the calendar month in which the “Ready By” date falls, whichever is later, and the following 90 days. Customer shall accept and pay for the quantity of goods actually delivered (excluding quantities in excess of 105% of the quantity ordered by Customer). Prior to delivery, for all purposes hereunder, an over or under of 5% or less of the quantity ordered by Customer shall be deemed to be in compliance with this Agreement and part of the quantity ordered.
Except as otherwise provided in the following sentence, all risk of loss with respect to the goods shall pass to Customer upon delivery of the goods to the agreed upon shipping destination. All risk of loss with respect to goods transported by Customer or delivered to a carrier or warehouse designated by Customer shall pass to Customer upon delivery of such goods to Customer or such carrier or warehouse (as applicable). With respect to goods delivered to a carrier or warehouse designated by Customer, unless requested in writing by Customer, no such shipment of goods shall be insured by Seller against damage or loss in transit or storage. If so requested, Seller will endeavor to place insurance on the goods as nearly as possible in accordance with Customer’s written instructions; however, in such case, Seller shall act only as the agent for Customer between Customer and the insurance company and Seller shall assume no obligation or liability whatsoever with respect to the procurement of such insurance. Customer agrees to take such actions as may be reasonably necessary to evidence and document, for Seller’s benefit, any in-transit loss claims against carriers engaged by Seller.
PALLETS. All pallets used by Seller in connection with the shipment of any goods hereunder are the sole property of Seller and ownership of the same shall continue to be vested in Seller regardless of the fact that such pallets may be located at Customer’s facilities. Customer shall return all such pallets to Seller’s plant or a warehouse designated by Seller in useable condition within a reasonable time but, in any event, by the time necessary to maintain a “float” of such pallets at Customer’s plant not in excess of one month’s average pallet usage in connection with Customer’s account; otherwise, Customer will pay to Seller the replacement value of such excess pallets promptly following receipt of an invoice for the same. Upon Customer discontinuing its business or upon the discontinuance of its business with Seller, Customer shall immediately return all such pallets in useable condition to Seller.
APPLICABLE LAW. The Agreement formed hereby is made under, and shall be construed and interpreted in accordance with, the substantive laws of the State of Florida without regard to the conflict of laws rules or principals of such state.
WARRANTIES; WARRANTY LIMITATIONS. Seller warrants that it has title to the goods sold hereunder and that such goods, when delivered to Customer, will be free from defects in materials and workmanship and will conform to the specifications submitted by Customer to, and accepted by, Seller; provided, however, that, to the extent that the goods are manufactured or ordered in accordance with designs, specifications or instructions provided by Customer to Seller, Seller does not warrant that the goods will be free from infringement of any United States or foreign patent; and Customer hereby agrees to indemnify, defend and hold harmless Seller from and against any claim of infringement of any United States or foreign patent, trademark or other propriety interest on account of Seller’s use or application of such designs, specifications and/or instructions provided by Customer to Seller. Seller’s liability to Customer under the foregoing warranty shall in any event be limited to Customer’s actual cost of defective containers, and the reasonable cost of recovery and disposition of such defective containers (but, as to such recovery and disposition costs, only to the extent reasonably required). OTHER THAN THE EXPRESS WARRANTIES SET FORTH ABOVE, SELLER MAKES NO EXPRESS WARRANTIES WITH RESPECT TO THE GOODS. ALL IMPLIED WARRANTIES EXISTING UNDER THE LAW WITH RESPECT TO THE SALE OF CONTAINERS FROM SELLER TO CUSTOMER ARE EXPRESSLY DISCLAIMED INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
INSPECTION, REJECTION AND ACCEPTANCE. Customer shall, at its expense, inspect the goods by the earlier to occur of 48 hours following the first washing, sterilization and filling of any portion of the goods or 10 days following the date of delivery of the goods to the agreed shipping destination. If Customer refuses or fails to actually inspect the goods as required in the preceding sentence, Customer shall nevertheless be deemed to have inspected the goods. Customer shall have the right to reject, within the time limits set forth herein, any containers that do not conform (in any material respect) to the final version of the written specifications for such containers previously submitted by Customer to and accepted by Seller. Any such rejection must be evidenced by a written notice given to Seller by the earlier to occur of the 48 hour period referenced above or such 10 day period, which notice shall contain a detailed description of the reasons for Customer’s rejection of the specified goods. Customer agrees that, once the goods are accepted, there may be no revocation of acceptance. If Customer refuses to receive the goods from Seller or the transportation carrier, then Customer will be deemed to have wrongfully refused to take delivery of the goods and to have repudiated and breached this Agreement.
ALLOWANCES. If, after the exercise of reasonable care, Customer incurs excessive breakage or discovers any nonconformities in respect of the goods during the first washing, sterilization and filling of the goods, Customer shall notify Seller of the same within the 48 hour period stated above, which notice shall contain a detailed description of the type of breakage incurred and nonconformities discovered and the quantity of goods affected thereby. Customer shall also provide Seller with conforming samples from the same lot as the non-conforming (or broken) bottles. In no event shall Customer have any right or remedy against Seller with respect to any such breakage or nonconformities if a written claim therefore is not delivered within 60 days after the date of the delivery of the goods to Customer. Delivery to Seller of such written claim within the aforesaid 60 day period (along with appropriate samples, as specified above) is an absolute condition precedent to Customer’s right to institute any action or proceeding for such breakage or nonconformities. All claims hereunder are subject to Seller’s verification and Seller shall be given the opportunity to conduct, at its option, an investigation of all such claims, either by inspection at Customer’s place of business or by having the goods returned to Seller’s plant. No goods may be returned without Seller’s prior written consent.
REMEDIES. THE REMEDIES PROVIDED HEREIN SHALL BE THE SOLE AND EXCLUSIVE REMEDIES OF CUSTOMER FOR ANY BREAKAGE, NONCONFORMITIES OR DEFECTS IN RESPECT OF THE GOODS OR FOR ANY BREACH OF ANY CONTRACTUAL OR LEGAL DUTY ARISING
OUT OF THE SALE OF THE GOODS TO CUSTOMER. In no event shall Seller be responsible or liable to Customer or to any user or to any third party for any economic loss, incidental, consequential or special damages (including, without limitation, downtime, loss of profits and/or of business opportunities) arising from any breakage, nonconformity or defect in respect of the goods.
In addition to the foregoing limitations, Seller shall have no liability of any nature to Customer, whether or not based on breach of warranty, for any loss or damage to the extent resulting from a) Customer’s or its agent’s faulty closure of containers; b) Customer’s use of defective closures manufactured by others unless Customer establishes that the damage was caused solely by a defect in the container; c) packing, handling, storing, using or distributing empty or filled containers other than in accordance with the customary good commercial and/or manufacturing practices of the trade; d) damage to containers occurring after Customer’s receipt unless such damage was directly caused by a container defect; or e) failure of containers which are resold by Customer prior to being filled unless Seller has given its written consent to the resale. Seller shall not be liable under the foregoing warranties unless notice in writing of the claim, together with representative samples (or other appropriate proof) of any claimed unsatisfactory goods, are received by Seller within the time limits provided for above. If Customer does not initiate legal action against Seller within two (2) years after a claim arises, such claim shall be barred notwithstanding any statutory limitation period to the contrary. All claims for shortages of containers, pallets or other materials sold to Customer must be presented to Seller within seven (7) days after receipt by Customer.
GENERAL. This document sets forth the entire agreement and understanding between Seller and Customer with respect to the transaction(s) contemplated hereby and supersedes all prior written or oral understandings, agreements, statements, representations or warranties relating to such transaction(s). Neither this Agreement nor any provision hereof shall be amended, modified, released or waived except by a written instrument executed by each of the parties hereto.
Seller’s agreement to sell goods to Customer is expressly made conditional on Customer’s assent to all of the terms and conditions set forth herein. No other terms and conditions shall apply unless specifically accepted by Seller in writing or unless the parties have previously entered into an agreement covering Seller’s sale of containers to Customer. Customer’s assent to be bound by these terms is conclusively established by Customer’s acceptance of any goods shipped after Customer’s receipt of a copy of these terms. In the event Customer offers to purchase goods from Seller on terms additional to or different from those contained in this document, Seller’s acceptance is expressly made conditional on Customer’s agreement that the terms contained herein shall govern and supersede any additional or different terms proposed by Customer.
Failure of Seller to insist on compliance with any provision of this Agreement shall not be considered as a waiver by Seller of subsequent compliance with the same or any other provision hereof. The invalidity of any of the provisions hereof shall not serve to invalidate the remaining provisions of this Agreement.
The rights and remedies herein reserved to Seller shall be cumulative and in addition to any other rights and remedies provided by law.
Customer’s rights and obligations under this Agreement may not be assigned or transferred to any third party, whether by operation of law or otherwise, without the express written consent of Seller.
Any part of the goods covered hereby, which consist of conventional bare glass beverage bottles (i) with a capacity of up to and including 36 fluid ounces, are intended for use, and Customer shall only use the same, in the packaging of soft drinks carbonated to a maximum of 5 volumes; or (ii) with a capacity in excess of 36 fluid ounces, but not in excess of 68 fluid ounces, are intended for use, and Customer shall only use the same, in the packaging of soft drinks carbonated to a maximum of 4 volumes. Customer further agrees that beer bottles will be filled only with a malted beverage, such as beer or ale, with 3 or less gas volumes.
All single trip and no deposit, no-return or one-way beer and beverage bottles are designed and manufactured for single trip use, and Customer agrees that it will use and permit the use of such containers for original filling only and that it will not refill or resell such containers or permit the same to occur (other than for use as cullet) without the prior written permission of Seller, and Customer will not accept or arrange for the return of such containers from the trade or reuse them.
MISCELLANEOUS. a) The nondiscrimination clauses contained in Section 202 of Executive Order 11246, as amended by Executive Order 11375, and the rules and regulations prescribed by the U.S. Secretary of Labor implementing such orders are hereby incorporated herein; b) Seller represents to Customer that it has fully complied with Section 12(a) of the Fair Labor Standards Act of 1938, as amended, in the production of the containers covered by this Agreement; c) Seller’s acceptance of Customer’s purchase order or offer to purchase is expressly conditioned upon Customer’s acknowledgment and agreement that Seller assumes no responsibility whatsoever for compliance with any of the packaging or other specifications and requirements of the Transportation Safety Act of 1974, or amendments thereto, of regulations issued there under, or of any other federal or state laws regarding transportation of hazardous materials or substances, responsibility for compliance with such laws or regulations being expressly assumed entirely by Customer; d) Goods returned without Seller’s authority are shipped at Customer’s risk; e) Any credit or cash terms of sale extended to Customer may be withdrawn by Seller at any time in Seller’s sole reasonable discretion; f) Goods may be shipped by any means deemed suitable by Seller unless Customer specifically directs Seller otherwise; all transportation charges shall be Customer’s responsibility unless otherwise agreed in writing; g) Seller and Customer shall be excused for non-performance due to causes beyond their reasonable control which render performance impracticable.
Notwithstanding anything to the contrary, in the absence of any other existing contract between Customer and Seller, these Terms and Conditions of Sale represent the entire agreement between the parties regarding the subject matter hereof.