Terms and Conditions for Proprietary

Terms and Conditions 2016

  1. All sales of goods by Confer Plastics, Inc. (“Confer”) to Buyer are made pursuant to the terms set forth herein, which terms shall supersede any and all terms that might appear on Buyer’s order form. Any other or additional terms (whether inconsistent with, different from or in addition to these terms) are expressly rejected.
  2. Contracts or orders are subject to approval of Confer’s credit department and executive office. Confer shall have the right to modify, change or withdraw credit terms at any time, without notice, and to request guarantees, security or payment in advance of the amount of credit involved.
  3. Delivery of the goods shall be FOB Confer’s manufacturing facility. Title to all goods and all risk of loss or damage with respect thereto will be passed to Buyer upon delivery of the goods to the carrier.
  4. Buyer agrees to defend, indemnify and hold harmless Confer, its affiliates, and their respective directors, officers, employees, shareholders and agents (collectively, the “Confer Indemnitees”) with respect to the aggregate of all Damages incurred or suffered by any Confer Indemnitee arising out of or relating to: (a) any breach of, or default in the observance or performance of any obligation owed by Buyer to Confer; (b) any breach of or false or fraudulent, representation or warranty made by Buyer to Confer; (c) any improper handling, installation, maintenance or care, improper use, use for any purpose or application for which the goods were not designed or intended, abuse or neglect of the goods by Buyer or any other person (other than Confer or Confer authorized personnel); (d) any removal of any necessary safety equipment, device or guard or any warning/safety label or notice from the goods by Buyer or any other person (other than Confer or Confer authorized personnel); (e) any alteration, modification, connection or repair of the goods by Buyer or any other person (other than Confer or Confer authorized personnel); (f) any addition of any part, component or accessory to the goods (or any use thereof) that is: (1) added by Buyer or any other person (other than Confer or Confer authorized personnel); or (2) not supplied or approved in writing by Confer; (g) any use or operation of the goods by Buyer or any other person (other than Confer or Confer authorized personnel) not in accordance with any storage, operation, maintenance or repair instructions for the goods furnished by Confer, any warning/safety label or any generally accepted practice; (h) Buyer’s failure to adequately train its staff in the use and/or maintenance of the goods; and/or (i) any negligent act or omission by Buyer or any other person (other than Confer or Confer authorized personnel) with respect to the use or maintenance of the goods. (For purposes of this paragraph 4, “Damages” means the aggregate of any and all claims, losses, costs, judgments, deficiencies, penalties, obligations, liabilities, damages, fines and expenses of any kind (including, without limitation, any special, incidental, consequential, punitive or any other indirect damages, and all reasonable attorneys’ fees and disbursements).)
  5. Confer shall not be liable for damages arising from its failure to make or delay in making delivery of any goods because of fire, flood, strikes, riots, accidents, lockouts, breakdown of machinery, loss or damage of goods in transit, delay of carriers, act of civil or military authorities, acts of God, or any circumstances or other unavoidable cause beyond Confer’s control, except for its own gross negligence. Confer will be excused from such performance to the extent that it is necessarily prevented, hindered or delayed thereby, and during the continuance of any such happening or event, this agreement will be deemed suspended so long as and to the extent that any such cause prevents or delays Confer’s performance.
  6. Buyer acknowledges that ten (10) days after receipt of the goods will provide Buyer with a reasonable amount of time to inspect the goods. Therefore, the goods shall be subject to final inspection and acceptance by Buyer within ten (10) days after receipt by Buyer. Buyer’s failure to inspect within said time shall constitute a waiver of Buyer’s rights of inspection and rejection (including any claims for shortages), and such goods shall be deemed accepted by Buyer.
  7. Except as otherwise provided in Paragraph 11, Confer warrants that, for a period of one (1) year from the date of its delivery of the goods to the carrier, the goods will be free from defects in workmanship and materials. IN THE EVENT OF ANY BREACH OF SUCH WARRANTY, CONFER’S SOLE OBLIGATION SHALL BE EXCLUSIVELY LIMITED TO, AT THE OPTION OF CONFER, REPAIR OR REPLACEMENT, F.O.B. CONFER’S FACILITY, OF THE DEFECTIVE GOODS OR TO A REFUND OF THE PURCHASE PRICE UPON RETURN OF THE GOODS TO CONFER. NO CLAIM AGAINST CONFER FOR ANY BREACH OF SUCH WARRANTY SHALL BE VALID OR ENFORCEABLE UNLESS BUYER’S WRITTEN NOTICE THEREOF IS RECEIVED BY CONFER WITHIN ONE (1) YEAR FROM THE DATE OF CONFER’S DELIVERY TO THE CARRIER. EXCEPT FOR THE WARRANTY SET FORTH ABOVE, CONFER MAKES NO OTHER WARRANTIES WITH RESPECT TO THE GOODS, WHETHER EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED.
  8. IN NO EVENT SHALL CONFER BE LIABLE TO BUYER OR ANY THIRD PARTY, WHETHER IN CONTRACT, NEGLIGENCE, TORT OR OTHER THEORY OF LAW, FOR LOSS OF PROFITS OR LOSS OF USE, OR FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, DIRECT OR INDIRECT DAMAGES, HOWSOEVER CAUSED. CONFER’S MAXIMUM LIABILITY TO BUYER SHALL IN NO EVENT EXCEED THE PRICE PAID BY BUYER FOR THE GOODS THAT ARE THE SUBJECT OF THE APPLICABLE CLAIM. Confer shall not be liable for any damage, injury or loss arising out of the use of the goods if, prior to such damage, injury or loss, such goods are: (a) altered, changed, modified damaged or misused following Confer’s delivery to the carrier; or (b) not maintained, inspected, or used in compliance with applicable law or with generally accepted practices.
  9. Confer’s employees, contractors and/or agents may have made oral or written statements or representations about the goods. ANY SUCH ORAL OR WRITTEN STATEMENTS OR REPRESENTATIONS, INFORMATION OR ADVICE: (A) SHALL NOT CONSTITUTE A CONFER REPRESENTATION OR WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF CONFER’S WARRANTY; (B) SHALL NOT BE RELIED UPON BY BUYER OR ANY OTHER
  10. PERSON; AND (C) IS NOT A PART OF THE WARRANTY. Buyer expressly disclaims any reliance on such statements or representations as a basis for entering into this contract.

  11. Any action against Confer for breach of contract, negligence, tort or otherwise must be commenced by Buyer within one (1) year after: (a) the date any alleged claim accrues; or (b) the date of delivery of the goods to Buyer, whichever is earlier.
  12. All payment terms are set forth in Confer’s quotation. Unless otherwise stated, all payments shall be in U.S. Dollars. Notwithstanding anything to the contrary contained herein, if Buyer fails to comply with any payment term, Confer’s warranty shall be null and void, and the goods shall be deemed to have been purchased “AS IS”.
  13. Any sales, use, excise and/or other taxes applicable to this transaction and the goods furnished by Confer are not included in the price and shall be paid by Buyer when due. If Confer pays any such taxes, Buyer shall reimburse Confer upon demand.
  14. This instrument constitutes the entire agreement between Confer and Buyer, superseding all previous understandings and writings regarding this transaction. Any amendment or modification of this agreement shall be void unless in writing and signed by Confer. This agreement shall be governed by, and interpreted and construed in accordance with, the laws of the State of New York, without regard to principles of conflict of laws. Any disputes and all legal claims related to this agreement shall be subject to the exclusive jurisdiction of and shall be finally settled in an action commenced or maintained in any state or federal court sitting in Erie County, New York. Confer and Buyer hereby consent and submit to the exclusive personal jurisdiction of such courts and agree not to challenge or assert any defense to the jurisdiction of such courts, including, without limitation, forum non convieniens. In any action or proceeding brought to enforce any provision of this agreement, the prevailing party is entitled to be reimbursed by the nonprevailing party for all of its reasonable costs in such action or proceeding, including, without limitation, reasonable attorneys’ fees.