These terms and conditions apply to all TPI subsidiaries, affiliates and locations. All references herein to TPI shall also include TPI subsidiaries and affiliates.
Customer Notice
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
THERE ARE NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY REGARDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EXCEPT AS MAY BE EXPLICITLY STATED ON TOTAL PLASTICS, INT’L ACKNOWLEDGMENT.
LIABILITY FOR THE BREACH OF ANY WARRANTY IS LIMITED TO REPAIR OR REPLACEMENT OF DEFECTIVE OR NONCONFORMING GOODS OR TO THE REFUND OF THE PURCHASE PRICE UPON RETURN OF THE GOODS TO TOTAL PLASTICS, INT’L (“TPI”) AT THE OPTION OF TPI. TPI IS NOT LIABLE FOR ANY OTHER DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, REVENUE, OR DATA, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF TPI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUSTOMER ASSUMES ALL RISKS AND LIABILITY FOR LOSS, DAMAGE, OR INJURY TO PERSONS OR PROPERTY OF CUSTOMER OR OTHERS ARISING OUT OF THE USE OR POSSESSION OF THE GOODS.
LIMITED WARRANTY: TPI WARRANTS ONLY THAT THE GOODS SUPPLIED TO YOU UNDER THIS SALES AGREEMENT CONFORM TO THE SPECIFICATIONS AND DESCRIPTION OF THE TYPE AND QUALITY SPECIFIED IN THE ACKNOWLEDGMENT AT THE TIME OF DELIVERY, SUBJECT TO TOLERANCES AND VARIATIONS CONSISTENT WITH THE USUAL TRADE PRACTICES. ALTHOUGH EMPLOYEES OF TPI ARE AVAILABLE FOR CONSULTATION CONCERNING THE SELECTION OF GOODS AND REQUIRED SPECIFICATIONS, THEY ARE NOT AUTHORIZED TO WARRANT THE SUITABILITY OF ANY GOODS FOR ANY PARTICULAR USE OR APPLICATION. FINAL DETERMINATION OF THE SUITABILITY OF THE GOODS FOR THE USE CONTEMPLATED BY YOU, TPI’S CUSTOMER, IS YOUR SOLE RESPONSIBILITY, AND TPI HAS NO RESPONSIBILITY AND MAKES NO WARRANTY OR REPRESENTATION IN CONNECTION WITH THAT DETERMINATION. IN CASES OF GOODS MANUFACTURED BY COMPANIES WITH WARRANTY POLICIES DIFFERING FROM TPI’S, THE APPLICABLE WARRANTY OF THE ORIGINAL MANUFACTURER WILL APPLY. THIS WARRANTY GIVES YOU, OUR CUSTOMER, SPECIFIC RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH MAY VARY FROM STATE TO STATE.
ADDITIONAL LIMITATIONS: EXCEPT FOR PERSONAL INJURY CAUSED BY TPI’S SOLE NEGLIGENCE, TPI’S CUMULATIVE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNT PAID TO TPI UNDER THIS AGREEMENT, EVEN IF A TERM OF THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. THE REMEDIES OF YOU, OUR CUSTOMER, SPECIFICALLY STATED IN THIS AGREEMENT CONSTITUTE YOUR EXCLUSIVE REMEDIES FOR BREACHES BY TPI TO WHICH THEY RELATE.
RIGHT OF INSPECTION: Should any of the goods supplied fail to conform to the specifications and the description stated on the Acknowledgment , TPI’s ONLY LIABILITY will be to make replacement or repair or to refund the purchase price, at TPI’s sole option, provided that (a) you, our customer, notify TPI in writing within ten (10) days from receipt of the goods, (b) TPI’s inspectors determine that the goods do not conform to the specification or description, (c) upon TPI’s request, you, our customer, return the goods to TPI’s facility within ten (10) days after being requested to do so, and (d) terms of payment have been fully met. Your failure to comply with the terms of this paragraph and as otherwise provided in this document shall constitute an irrevocable acceptance of the goods as conforming to the type and quality specified and bind you, our customer, to pay the contract price for the goods. All claims must be made prior to the installation or other use of the goods. If you have accepted the goods tendered under this document in any manner provided in the Uniform Commercial Code, you, our customer, shall have no right to revoke its acceptance.
PRICES: All prices are quoted F.O.B. TPI’s shipping point unless otherwise stated. All prices are subject to adjustment to reflect TPI’s prices in effect at the time of shipment, including increases in packaging, storage, shipping charges, or taxes. Cash discounts, if any, are as allowed by TPI at the date of shipment and apply only to TPI’s selling price f.o.b. the shipping point exclusive of all packing, storage, shipping, insurance, or taxes. You are not entitled to any cash discount if you owe TPI any uncontested past due balances.
TERMS OF PAYMENT: Payment for all goods is due and shall be paid according to the terms appearing on the face of the invoice from TPI. The invoice amount cannot be paid in any other manner than in full when due. On any amount not paid within one (1) day of the date it is due, liquidated damages will accrue and be payable. Liquidated damages shall be interest on the amount due at the maximum rate allowed by law.
TAXES: The prices quoted do not include sales, use, value-added, excise or other taxes unless otherwise stated. These taxes and any other measured in whole or in part by gross receipts applicable to this transaction shall be paid by you, our customer, in addition to the quoted purchase price. If you, our customer, claim exemption from any of these taxes, you shall furnish satisfactory proof of such exemption.
PACKING AND SHIPPING: Unless you, our customer, have furnished shipping instructions to TPI prior to the time TPI has completed packaging or tagging the goods, all orders will be shipped by common carrier selected by TPI. Unless otherwise agreed in writing, signed by TPI, you shall pay freight charges from TPI’s shipping point. TPI shall also be entitled to make additional charges for special packaging if, in TPI’s discretion, special protection is necessary to insure safe delivery.
TITLE RISK OF LOSS OR DAMAGE: Title shall pass to you, our customer, upon delivery of the goods to the common carrier. Customer bears the risk of loss or damage to or the destruction of the goods from the time of their delivery by TPI to the common carrier. All claims for loss, damage, or destruction attributable to shipping should be made directly to the carrier. TPI shall not be responsible for any such loss, damage, or destruction. The common carrier, although selected by TPI, shall be deemed your agent.
CLAIMS AND CREDITS: TPI is not responsible for shortages or errors unless written claims are made to TPI within five (5) days of customer’s receipt of the goods. In any event, claims of shortages or damage should be noted immediately upon receipt of the goods on the bill of lading and/or delivery ticket. If there is a shortage or the goods have been damaged in transit, a notation to that effect must be made by you upon delivery on the carrier’s bill of lading and/or delivery ticket (receipt). Damaged goods should not be unloaded until they have been thoroughly inspected and all damages noted on the delivery ticket and/or bill of lading. TPI will not insure the goods unless specifically instructed to do so. All charges relating to insurance of goods will be made to the customer’s account and are due and payable upon receipt of TPI’s invoice unless they are billed directly to you by the insurance carrier.
DELAY IN DELIVERY: TPI assumes no responsibility for failure to ship on a particular date, and when an order is placed for shipment on a specific date, if, for any reason, you will not accept the ordered goods if shipment is made earlier or later than the date specified, TPI must be notified to that effect in writing when the order is placed. All orders are accepted subject to strikes, riots, wars, labor troubles, floods, fires, accidents, delays, contingencies of transportation, governmental acts, orders and regulations, and any other causes beyond the control of TPI, and if any such cause prevents or interferes with the delivery of the goods ordered, customer shall accept as full, and complete fulfillment of the order the portion of the goods covered by the order which TPI is able under the circumstances to procure and deliver in accordance with the order; and a time for delivery shall be extended for such time as shall be reasonably required.
RETURNS: No goods shall be accepted for return without the prior written authorization of TPI. There will be a twenty-five percent (25%) restocking charge on all returned goods (non-processed, original shipped condition) accepted by TPI. No returns will be accepted after thirty (30) days from the date of delivery to you, our customer. Goods which have been processed or fabricated may not be returned.
SUSPENSION OF PERFORMANCE: If you, our customer, fail to pay any amount owing to TPI, or, if in TPI’s judgment there is reasonable doubt concerning your financial responsibility, TPI may suspend performance or terminate this contract without liability and without prejudice to other remedies, as to further delivery and work, and no forbearance or course of dealing affects this right of TPI. Notwithstanding any previous shipment on credit TPI may, at any time, demand payment on delivery, require payment in advance or upon tender of shipping documents.
RIGHT OF RESALE: If you, our customer, breach or repudiate a provision of this contract or fail to comply with this contract, TPI may resell the goods which have not already been delivered to you, together with any goods reclaimed by TPI or to which TPI may agree to accept return. The sale may be public or private, wholesale or retail, and TPI may hold more than one (1) sale. In addition, you, our customer, shall pay TPI the amount by which the price established in this contract exceeds the amount received from the public or private sale, together with all incidental damages occasioned by your default. You, our customer, and TPI agree that five (5) days written notice of resale at public sale or private sale which TPI conducts as a result of your default is reasonable notice to you of the sale.
VERBAL ORDERS: TPI telephone desks are maintained and staffed for immediate service. If shipment of your order is made before written confirmation from you is received, such orders must be considered as accurate as recorded by TPI’s inside sales personnel. To avoid duplication of verbal orders please mark confirming orders prominently and clearly “confirmation”. Otherwise, duplications will result, and the charges involved will be at your expense. Acceptance of all verbal orders is expressly limited to these terms and conditions as stated herein. A minimum order amount is Fifty Dollars ($50.00) on standard products, it may be higher on certain items or special products.
CHANGES OR CANCELLATIONS: Should you, our customer, find it necessary to change the specifications of your order while work is in progress, TPI will make every effort to accommodate you. However, it will be necessary for TPI to charge you, our customer, and you agree to pay for any services, labor, or material which are discarded or unusable because of such changes requested by you. Should you, our customer, for any reason, desire to cancel an order, you agree to reimburse TPI for any and, all costs and expenses which TPI may have incurred as a result of its performance under the order prior to your notification of cancellation. You also agree to pay for any material which has been cut or fabricated to your order and which is unusable. TPI agrees to credit you with the value of the scrap value of the material which is discarded.
INDEMNIFICATION: Customer shall indemnify, defend, and hold TPI, its officers, and agents harmless from and against all loss, liability, cost, damage, or expense whatsoever incident to any claim, action, or proceeding against TPI (i) arising out of (a) the negligent design of goods furnished per your, our customer’s, specifications, (b) installation, (c) maintenance, (d) use, (e) fabrication, and (f) operation of the goods by you, our customer, or on your behalf; or (ii) based on the allegation that any of the goods or any part thereof sold hereunder pursuant to your, or your customer’s design or specification infringe any patents applied for or issued as of the date of this order.
ATTORNEYS’ FEES: In the event it becomes necessary for TPI to retain legal counsel, or to utilize its in-house counsel to implement collection procedures, or to undertake litigation, or to otherwise protect TPI’s rights under this Agreement, or to defend itself against claims which are your responsibility, you, our customer, shall pay TPI a reasonable sum for the attorneys’ fees and related costs, whether or not such litigation proceeds to final judgment.
WAIVER: No waiver of any breach or default of yours, under these terms and conditions, operates as a waiver of any future default, whether of a like or different character, except as otherwise provided in these terms and conditions.
SEVERABILITY: If any provision of these terms and conditions as applied to any party or to any circumstance shall be found by a court to be void, invalid, or unenforceable, it shall not affect any other provision of these items and conditions, the application of any such provision in any other circumstance, or the validity of enforceability of those terms and conditions.
ENTIRE AGREEMENT: The terms and conditions set forth here constitute the entire agreement between TPI and you, our customer, the parties relating to the sale of the goods, and this Agreement prevails over any and all terms contained in your, our customers’, purchase order or acknowledgments unless explicitly stated to the contrary in a writing executed by both you and TPI. This agreement cannot be modified except by a writing signed by both of us.
LAW: Any sale of goods or services by TPI shall be governed by and construed in accordance with the laws of the State of Michigan without regard to Michigan’s conflict of law provisions.
Terms of Purchase
1. Contract. Seller and Total Plastics Inc. (“Buyer”) agree that this Purchase Order shall become a legally binding contract on the terms and conditions set forth herein when it is accepted by Seller either by written or other acknowledgment or by Seller’s commencement of performance hereof. Buyer hereby rejects any and all conditions which Seller may attach to its acceptance of this Purchase Order, and Seller hereby acknowledges the foregoing rejection of Buyer. Furthermore, Seller and Buyer agree that if Seller commences performance of this Purchase Order, the terms and conditions of the contract between Buyer and Seller shall include only the terms and conditions set forth in this Purchase Order. In the event that this Purchase Order operates as an acceptance, acceptance is expressly limited to acceptance of the terms and conditions hereof.
2. Pricing. This Purchase Order can be accepted only at prices specified herein. If prices are not stated herein, goods and/or services shall not be billed at any higher price than previously paid by Buyer to Seller. If Seller shall sell any goods and/or services of the kind and specifications covered by this Purchase Order to any other customer at a price which is lower for the same or a lesser quantity of goods and/or services than the price then in effect hereunder, the corresponding price hereunder shall be reduced to such lower price.
3. Shipment, Delivery and Performance. Time is of the essence. Deliveries are to be made only in quantities and at times specified by Buyer. Buyer may change or suspend delivery schedules. All goods shall be suitably packed, marked and shipped in accordance with Buyer’s instructions, or absent such instructions, in accordance with the requirements of common carriers in a manner to secure the lowest transportation costs, and no additional charge shall be made to the Buyer unless otherwise stated herein. Unless otherwise stated herein, all goods shall be shipped F.O.B. destination, freight prepaid, and no charge shall be made by Seller for transportation or storage. The risk of loss shall remain with Seller until the goods have been unloaded and are in the full possession and control of Buyer at its business location. Packing slips shall accompany each shipment. Seller’s failure to deliver goods or perform services of the quality and quantity and within the time or times specified shall, at the option of the Buyer, immediately relieve Buyer of any obligation to accept and pay for such goods, as well as undelivered installments, if any.
4. Cancellation. Buyer shall have the right to cancel all or any part of this Purchase Order without liability if (i) Seller does not make deliveries as specified, (ii) Seller’s lack of progress endangers timely performance, (iii) Seller breaches any of the terms hereof, (iv) Buyer’s business purpose is substantially frustrated through events such as, but not limited to, interruption of transportation, government regulation, labor disputes, strikes, riots, insurrection, war, civil commotion, fire, flood, accident, storm, any act of God or any other cause beyond Buyer’s control which makes it impracticable for Buyer to accept such goods, or (v) Seller becomes insolvent or any insolvency proceeding is filed by or against Seller.
5. Inspection. Notwithstanding any payment that may be made all goods shall be received subject to Buyer’s inspection. If it is determined in the sole discretion of Buyer that any such goods do not conform to the specifications of this order or are otherwise defective, such defective or nonconforming goods shall be held at Seller’s expense and risk and, if Seller so directs, shall be returned at Seller’s expense. Buyer shall have neither liability nor obligation whatsoever with respect to any goods held in its possession for Seller’s account or returned to Seller. In no event shall Seller have more than ten (10) calendar days from receipt of Buyer’s notice of the non-conformity or defect to replace the non-conforming goods.
6. Billing. The original bill of lading, or other shipping receipt, for each shipment shall be promptly forwarded by Seller with the invoice for this Purchase Order, Seller shall describe goods on the bill of lading or other shipping receipt and shall route each shipment in accordance with Buyer’s instructions. Seller shall prepare a separate detailed invoice (in duplicate) for this Purchase Order, and such invoice shall not conflict in any way with the terms and conditions set forth in this Purchase Order. No interest, finance or service charge shall be payable. When invoices are subject to discount for prompt payment, the time for determining whether the discount is applicable shall begin on date the invoices are received by Buyer.
7. Warranty and Related Matters. Seller expressly warrants that all goods and services covered by this Purchase Order shall (i) conform to the drawings, specifications, samples and other descriptions furnished by Buyer, (ii) be merchantable, (iii) be of good material and workmanship and (iv) be free from defects. This warranty, and all other terms and conditions set forth in this Purchase Order, shall benefit Buyer, Buyer’s successors, assigns and customers, and users of the goods and services covered by this Purchase Order. In addition to any other remedies Buyer may have, Buyer may reject goods not conforming to the warranties set forth in this Section 7. Any payments made on such rejected goods shall be immediately refunded to Buyer.
8. Patents, Copyrights and Trademarks. Seller warrants that the goods and services covered by this Purchase Order and the use or sale thereof will not infringe any United States or foreign patent, copyright, trademark or other proprietary right. If the goods or services covered by this Purchase Order or the use or sale thereof are held to infringe any such rights, Seller shall at its expense either procure for Buyer, its successors, assigns and customers, and users of the goods and services the right to continue using or selling such goods or services or replace them with non-¬infringing goods or services.
9. Authorization. Only duly authorized personnel of Buyer may execute this Purchase Order or make any modification hereof. Only modifications made in writing shall be binding upon Buyer. Buyer may waive Seller’s performance or compliance with any terms or conditions hereof, but any such waiver shall be effective only if given in writing and only with respect to the specific circumstances for which it is given.
10. Compliance With Laws. Seller warrants and certifies that it has complied with any and all applicable foreign, federal, state and local laws, rules, regulations and orders, including, without limitation, the Fair Labor Standards Act, the Equal Employment Opportunity Act, and the Occupational Safety and Health Act. Seller’s acceptance and performance of this Purchase Order shall constitute certification by Seller of such compliance. Seller shall furnish additional certificates and other evidence of compliance upon Buyer’s request.
11. Indemnification and Waiver. Seller shall defend, protect, indemnify and save Buyer, its successors, assigns and customers, and users of the goods and services covered by this Purchase Order harmless from any and all damages, liabilities, claims, costs, or expenses (including but not limited to attorneys’ fees) which may be asserted against them, including but not limited to, those resulting from injuries to any person or damage or loss of any property, that arise, directly or indirectly, in whole or in part, out of (i) any breach of warranty by Seller, (ii) any other act or omission of Seller, its agents, employees or subcontractors with respect to the goods or services covered hereunder, (iii) Seller’s failure to comply, in whole or in part, with any applicable legal requirement, (iv) any breach of the terms and conditions of this Purchase Order by Seller, (v) product defect, or (vi) the assertion of any patent, copyright, trademark or other proprietary right by any person with respect to the goods or services covered hereby, whether or not such person asserts such right directly against Buyer, its successor, assigns or customers, or users of the goods or services covered hereby, or under or through Seller. Seller waives and releases Buyer from all rights of contribution or indemnity to which it may otherwise be entitled. As used in this paragraph, the term Buyer means the Buyer, its officers, directors, agents, employees, subcontractors, parent, subsidiaries, divisions and affiliates.
12. Attorneys’ Fees. In the event Buyer must institute litigation in order to enforce its rights under this Purchase Order, Buyer shall be entitled, in addition to any and all legal and equitable remedies, to recover from the Seller its reasonable attorneys’ fees, expert witness costs and court costs.
13. Waiver. Failure on the part of Buyer to enforce at any time, or for any period of time, any of the provisions of this Agreement shall not be deemed or construed to be a waiver of such provision or of the right of Buyer to thereafter enforce each and every such provision.
14. Remedies. Seller shall be liable for all damages, direct and indirect, resulting from its breach of any of the terms and conditions hereof. Buyer’s rights and remedies hereunder shall survive acceptance or payment and shall be in addition to those provided at law or in equity. In the event Seller is entitled to recover damages related to this Purchase Order, such damages shall not include any incidental or consequential damages.
15. Miscellaneous. This Purchase Order may not be assigned without the prior written consent of Buyer. This Purchase Order and the legally binding contract resulting here from constitute the entire agreement between the parties with regard to the goods or services that are the subject hereof, and shall be governed by the laws of the state of Texas without regard to its conflict of laws provisions.
TOTAL PLASTICS INT'L — SUPPLIER TERMS AND CONDITIONS
Incorporated by reference into every Purchase Order issued by Total Plastics Int'l
1 Acceptance. Acceptance of this Purchase Order (“PO”), or commencement of performance, constitutes Supplier's agreement to these Terms and
Conditions in full. These Terms and Conditions govern all products, materials, and services supplied to the Company unless expressly superseded by a
term stated on the face of the PO.
2 Technical requirements. Product shall conform to the specification, grade, dimensions, and revision level identified on this PO. Supplier shall not
substitute material, additive package, or process without the Company's prior written approval.
3 Approvals. Where required by the PO or specification, Supplier shall obtain the Company's prior written approval before shipment for: first
article/lot approval, special processes, and any change to manufacturing method, equipment, or tooling affecting form, fit, function, or material
properties.
4 Personnel competence. Supplier shall ensure personnel performing work affecting conformity are competent by education, training, or experience,
and hold any certification required by the applicable specification (e.g., NADCAP for special processes).
5 Communication & performance monitoring. Supplier shall designate a quality/commercial point of contact and respond to the Company within 5
business days unless the PO states otherwise. Supplier shall cooperate with the Company's monitoring of on-time delivery and conformance
performance.
6 Right of access. Supplier shall grant the Company, the Company's customers, and applicable regulatory authorities access to relevant facilities and
documented information, at any level of the supply chain, to verify conformance.
7 Test, inspection & statistical sampling. Supplier shall perform all testing/inspection required by the governing specification, using specificationdefined
test methods, and retain raw data. Any sampling plan used for lot acceptance shall be based on recognized statistical principles (e.g.,
ANSI/ASQ Z1.4) and provided on request.
8 Quality management system. Supplier shall maintain a documented quality management system appropriate to its scope of work (ISO
9001/AS9100/AS9120 certification preferred; may be required by specific POs).
9 Approved sources & flow-down. Supplier shall use only customer-designated or approved sub-tier suppliers and special process sources where
identified by the Company, and shall flow down all applicable requirements of these Terms and Conditions, the PO, and any identified
customer/regulatory requirements to its own sub-tier suppliers, retaining full responsibility for conformity.
10 Nonconforming product. Supplier shall not ship known nonconforming or discrepant product without the Company's prior written disposition.
Nonconformances discovered post-shipment shall be reported to the Company within 2 business days of discovery. Corrective action (root cause,
containment, verification of effectiveness) shall be provided within the timeframe specified by the Company.
11 Counterfeit & suspected unapproved parts. Supplier shall maintain traceability to the original manufacturer or an approved source and shall
immediately notify the Company in writing of any known or suspected counterfeit, suspect counterfeit, unapproved, or suspected unapproved
material. Supplier shall implement processes to prevent such material from entering product supplied to the Company.
12 Change notification. Supplier shall notify the Company in writing and obtain approval before implementing any change to material formulation,
manufacturing location, sub-tier/special process sources, or test/acceptance methods affecting product on an active PO.
13 Certifications & records retention. Each shipment shall include a Certificate of Conformance (or Authorized Release Certificate, where applicable)
and lot/batch test reports traceable to the shipped lot. AS9100/AS9120 (clause 7.5.3.2) requires that retention and disposition of documented
information be defined by the organization; the Company's requirement is that Supplier retain all documented information supporting conformance to
this PO — including test reports, certificates, inspection records, and traceability records — for a minimum of ten (10) years from the date of shipment,
or such longer period as may be separately specified by the Company, the applicable specification, or the Company's customer contract, and make
such records available to the Company upon request.
14 Personnel awareness. Supplier shall ensure its personnel are aware of their contribution to product conformity, product safety, and the
importance of ethical behavior.
15 Precedence. Where these Terms and Conditions conflict with an express term on the face of the PO, the PO term governs for that transaction; the
more stringent quality requirement governs in all other conflicts.
Questions regarding these Terms and Conditions may be directed to the buyer identified on the Purchase Order.
For all Total Plastics Locations certifications, click here.