STANDARD TERMS AND CONDITIONS OF SALE OF GOODS OR SERVICES BY SOPAKCO 

 

Unless otherwise specifically detailed in writing and signed by an authorized representative of SO-PAK-CO, INC. (“SOPAKCO“) and the other contracting parties, the following Standard Terms and Conditions of Sale of Goods or Services by SO-PAK-CO, Inc. d/b/a SOPAKCO (“Terms of Sale“) apply to all contracts, agreements, Purchase Orders, standards of work, change orders, recalls and related business relations of any kind between SOPAKCO (including its Affiliates) and any individual or entity to whom or on whose behalf SOPAKCO furnishes, sells or provides any product or service.

 

1. ACCEPTANCE.SOPAKCO is in the business of selling certain products (“Products“) and/or services (“Services“) to third parties (each a “Purchaser“). Any quotation, acknowledgment or invoice, and all documents incorporated by specific reference herein or therein (the “Sales Documents“), which have been reduced to writing and signed by an authorized representative of SOPAKCO, together with these Terms of Sale (collectively, the “Agreement“), shall constitute the complete Agreement governing the sale of Products and Services to a Purchaser.SOPAKCO HEREBY REJECTS ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PROPOSED BY PURCHASER, WHETHER OR NOT CONTAINED IN OR REFERENCED IN ANY OF PURCHASER’S FORMS OR ON PURCHASER’S WEBSITE, AND SUCH ADDITIONAL OR DIFFERENT TERMS WILL BE OF NO EFFECT. No site usage agreement or any other click through agreement on a website will have any binding effect on SOPAKCO, whether or not SOPAKCO clicks on or selects “ok,” “I accept,” or similar acknowledgment. Commencement of any work by SOPAKCO or Purchaser’s acceptance of delivery of any Products and/or Services will manifest and confirm Purchaser’s assent to the Agreement. Additional or different terms applicable to a particular sale may be set forth in the body of the Sales Documents or agreed to in writing by the parties. In the event of a conflict of terms concerning a particular sale or transaction, the following order of precedence will apply: (a) terms agreed to in writing and executed by an authorized representative of SOPAKCO; (b) Sales Documents; (c) these Terms of Sale.
2. QUOTATIONS/ORDERS. Sales price quotations for Products or Services (“Quotations“) are only valid once reduced to writing and for 30 days from the date of issuance. All Quotations are subject to change or withdrawal without prior notice to Purchaser. Quotations are made subject to approval of Purchaser’s credit. SOPAKCO may refuse any orders from a Purchaser, and has no obligation to supply any Products or Services to a Purchaser, unless and until SOPAKCO has issued a written order acknowledgement (“Acknowledgement“) signed by an authorized representative of SOPAKCO, or upon the shipment of the Products or commencement of Services covered by an order. Each accepted order (“Order“) will be interpreted as a single agreement, independent of any other Orders. Each Order must reference SOPAKCO’s Quotation (if any), the requested Products and Services, and any other information requested by SOPAKCO. If requested by SOPAKCO, you shall submit Orders on SOPAKCO designated order form(s).
3. PRICE AND PAYMENT TERMS.Prices are in U.S. Dollars and are subject to change without notice. All Orders are accepted subject to SOPAKCO’s price in effect at time of placement of the Order. Prices do not include any sales, use, value-added or other taxes, duties, levies, license fees or like charges (“Fees“) related to the sale, including, but not limited to Fees associated with importation or use of Products or Services. Purchaser is responsible for all Fees. Purchaser will defend and indemnify SOPAKCO from and against any claims, damages, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to Purchaser’s failure to pay any Fees, including from any third-party claim or action relating to tax liabilities that are Purchaser’s responsibility. Invoices (“Invoice“) issued by SOPAKCO are due and payable within the time period noted on the Invoice, or if not noted, then within thirty (30) days measured form the date of the Invoice. SOPAKCO reserves the right to change the method of delivery of any documents, including Invoices. Timely payment is of the essence. Overdue Invoices will incur interest at the rate of 1.5% per month (18% per annum), or at the maximum rate allowable by governing law, whichever is lower. In addition, SOPAKCO may, without waiving any other rights or remedies to which it may be entitled, take any one or more of the following actions: (a) not accept additional Orders from Purchaser; (b) suspend performance under or terminate any Agreement with the Purchaser; and (c) seek collection of all amounts due from the Purchaser, and expenses and costs of collection, including reasonable attorney or legal fees. SOPAKCO will have no liability to Purchaser or to any third party for any such suspension or termination or for any refusal of additional Orders. Purchaser’s inspection rights herein will not affect the payment terms hereunder. Under no circumstances will Purchaser have a right to apply a credit or set-off against any amounts owed to SOPAKCO under any Invoice or otherwise.
4. CREDIT APPROVAL.All Orders are subject to credit approval by SOPAKCO. SOPAKCO may elect to invoice Purchaser and recover for each shipment as a separate transaction. If, in SOPAKCO’s sole judgment, Purchaser’s financial condition is or becomes unsatisfactory, then SOPAKCO may, without prejudice to any of its other remedies: (a) defer or decline to make any shipments of Products or to perform any Services except upon receipt of satisfactory security or cash payments in advance; and/or (b) terminate or cancel any or all of Purchaser’s Orders.
5. CANCELLATION OR MODIFICATION.Once SOPAKCO has accepted an Order or begun taking actions with respect any Order, Purchaser cannot cancel or modify that Order except with SOPAKCO’s prior written consent. In such event, Purchaser will be liable for cancellation or modification charges and all costs incurred for any cancelled Order or in connection with the modification of any Order.
6. INSPECTION/NON-CONFORMING SHIPMENTS.Purchaser may inspect Products or Services for a period of 15 business days after delivery or completion (“Inspection Period“). Purchaser must notify SOPAKCO in writing of any nonconforming Products or Services within the Inspection Period and afford SOPAKCO a reasonable opportunity to inspect such Products or Services and to cure any nonconformity. If Purchaser fails to provide SOPAKCO with such written notice within the Inspection Period, Purchaser will be deemed to have accepted the Products and Services. All sales are final, and Purchaser may not return any Product or reject any Service without SOPAKCO’s prior written authorization. Any return authorized by SOPAKCO must be made in accordance with SOPAKCO’s return policies. Purchaser will be responsible for all costs associated with returns of Products and will bear the risk of loss, unless SOPAKCO’s authorized representative agrees otherwise in writing. Any variation in quantities of Products shipped by SOPAKCO over or under those ordered by Purchaser (not to exceed 10%) will constitute compliance with Purchaser’s Order, and the stated price per item will continue to apply.
7. DELIVERY.SOPAKCO anticipates use of common carriers for shipment of Products. Unless otherwise agreed upon by the parties in writing, all Products will be shipped F.O.B. SOPAKCO’s facility. No liability shall attach to SOPAKCO for assisting Purchaser with choice of carrier or details regarding any shipment. Shipping dates are approximate and are based upon prompt receipt of all necessary information by SOPAKCO from Purchaser. SOPAKCO may ship Products in a single shipment or in multiple shipments. Title to the Products and risk of loss shall pass to Purchaser upon shipment. Purchaser assumes all risk and liability for loss and use or misuse by third parties who acquire or use the Products illicitly after shipment. Purchaser must notify SOPAKCO and the delivering carrier within 5 days business days from date of receipt of Products, of any damage or shortage, and afford SOPAKCO a reasonable opportunity to inspect the Products. Any loss occasioned by loss, damage or shrinkage in transit will be for Purchaser’s account and claims for such loss must be made solely against the carrier.
8. WARRANTY.SOPAKCO warrants that its Products and Services shall conform to any mutually agreed upon specifications or statements of work. With respect to any non-conforming Products, Purchaser’s sole remedies, and SOPAKCO’s sole liabilities, for a breach of the foregoing warranty, is for SOPAKCO, at SOPAKCO’s sole option: (a) to repair or replace the non-conforming Products; or (b) to credit Purchaser’s account the purchase price of the non-conforming Products (if Purchaser has paid for the Products). With respect to any non-conforming Services, Purchaser’s sole remedy, and SOPAKCO’s sole liability, is for SOPAKCO, at its option: (a) to re-perform the Services; or (b) to credit Purchaser’s account for such non-conforming Services (if Purchaser has paid for the Services). EXCEPT AS EXPRESSLY SET FORTH HEREIN, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, SOPAKCO, ON BEHALF OF ITSELF AND ITS LICENSORS, SUPPLIERS AND AFFILIATES, DISCLAIMS ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES AND CONDITIONS WITH RESPECT TO PRODUCTS AND SERVICES, INCLUDING IMPLIED WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
9. LIMITATION OF LIABILITY AND REMEDIES.SOPAKCO WILL NOT BE LIABLE, AND PURCHASER WAIVES ALL CLAIMS AGAINST SOPAKCO, FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, DOWN TIME, LOST PROFITS (PAST AND FUTURE) OR COMMERCIAL LOSSES, WHETHER OR NOT BASED UPON SOPAKCO’S NEGLIGENCE OR BREACH OF WARRANTY OR STRICT LIABILITY IN TORT OR ANY OTHER CAUSE OF ACTION. IN NO EVENT WILL SOPAKCO’S LIABILITY IN CONNECTION WITH THE AGREEMENT OR SALE OF SOPAKCO’S PRODUCTS OR SERVICES EXCEED THE PURCHASE PRICE OF THE SPECIFIC PRODUCTS OR SERVICES AS TO WHICH THE CLAIM IS MADE.
10. PRODUCT USE.Purchaser is solely responsible for determining if a Product is fit for a particular purpose and suitable for Purchaser’s method of application. Accordingly, and due to the nature and manner of use of SOPAKCO’S Products, SOPAKCO is not responsible for the results or consequences of use, misuse or application of its Products. All physical properties, statements and recommendations are either based on the tests or experience that SOPAKCO believes to be reliable, but they are not guaranteed.
11. OWNERSHIP OF INTELLECTUAL PROPERTY.All drawings, know-how, designs, specifications, inventions, devices, developments, processes, copyrights and other information or intellectual property disclosed or otherwise provided to Purchaser by SOPAKCO and all rights therein (collectively, “Intellectual Property“) will remain the property of SOPAKCO and will be kept confidential by Purchaser in accordance with these Terms. Purchaser has no claim to, nor ownership interest in, any Intellectual Property, and such information, in whatever form and any copies thereof, shall be promptly returned to SOPAKCO upon request from SOPAKCO. Purchaser acknowledges that no license or rights of any sort are granted to Purchaser hereunder in respect of any Intellectual Property, other than the limited right to purchase SOPAKCO’s Products or receive the Services purchased from SOPAKCO.
12. USE OF TRADEMARKS AND TRADE NAMES.Purchaser shall not use, directly or indirectly, in whole or in part, SOPAKCO’s name, or any other trademark or trade name that is now or may hereafter be owned by SOPAKCO (collectively the “Trademarks“), as part of Purchaser’s corporate or business name, or in any way in connection with Purchaser’s business, except in a manner and to the extent authorized herein or otherwise approved by SOPAKCO in writing. Purchaser hereby acknowledges SOPAKCO’s ownership of the Trademarks and the goodwill associated therewith. Purchaser shall not infringe upon, harm or contest the validity of any Trademarks. Purchaser shall be entitled to use the Trademarks only in connection with the promotion or sale of authorized Products pursuant to the terms of the Agreement. Purchaser shall reproduce the Trademarks exactly as specified by SOPAKCO. Purchaser shall not use the Trademarks in combination with any other trademarks or names. Purchaser agrees that it will not register or attempt to register any Trademark or any colorable imitation thereof (including any non-English language variation thereof), or use such Trademarks for any products or for any purposes other than those set forth in the Agreement. Purchaser shall not at any time during or after termination of the Agreement use in its business any other trademark that is similar to or in any way resembles the Trademarks so as to be likely to cause deception or confusion with the Trademarks. Purchaser shall provide reasonable cooperation to SOPAKCO with respect to any efforts of SOPAKCO to protect, defend or enforce its rights to the Trademarks. Should Purchaser cease being an authorized customer of SOPAKCO for any reason, Purchaser shall immediately discontinue any formerly permitted use of SOPAKCO’s name or the Trademarks.
13. CONFIDENTIAL INFORMATION.All information furnished or made available by SOPAKCO to Purchaser which SOPAKCO considers to be confidential (“Confidential Information“) shall be held in confidence by Purchaser. Purchaser agrees not to use (directly or indirectly), or disclose to others, any Confidential Information without SOPAKCO’s prior written consent. The obligations in this section will not apply to any Confidential Information that: (a) at the time of disclosure was or thereafter becomes generally available to the public by publication or otherwise through no breach by Purchaser of any obligation herein; (b) Purchaser can show by written records was in Purchaser’s possession prior to disclosure by SOPAKCO; or (c) is legally made available to Purchaser by or through a third party having no direct or indirect confidentiality obligation to SOPAKCO with respect to such information.
14. AUDIT.Unless agreed to in writing by an officer of SOPAKCO, neither Purchaser nor any Purchaser representative, may examine or audit SOPAKCO’s cost accounts, books or records of any kind or any matter, or any other data that SOPAKCO, in its sole discretion, considers confidential or proprietary.
15. INFRINGEMENT AND INDEMNIFICATION.Purchaser agrees to defend, indemnify and hold SOPAKCO harmless against any claims, costs, damages, liability and expenses resulting from actual patent, trademark or copyright infringement, misappropriation of confidential information, or violation of any other Intellectual Property right, domestic or foreign that may arise from SOPAKCO’s use of Purchaser’s recipes, specifications, designs, artwork, and other Purchaser’s confidential information relating to the Product (each, a “Claim“); SOPAKCO shall have no liability or duty to defend and indemnify Purchaser against any Claim relating to: (a) the use of any Product, (b) the combination of any Product with any other part or product not supplied by SOPAKCO, or (c) any Product or process that is designed or specified by Purchaser.
16. SOPAKCO EMPLOYEES. SOPAKCO sales and service employees do not have the training or authority to make legal representations or enter into any agreements or execute any documents affecting legal responsibilities or waiving legal rights, including those regarding the transfer of intellectual property rights or related to privacy laws. Any such representations, agreements or documents will not be binding on SOPAKCO or such SOPAKCO employees.
17. COMPLIANCE.Purchaser agrees to comply with all federal, state, local and foreign rules, regulations, ordinances and laws applicable to Purchaser’s obligations under any Agreement, and Purchaser’s use of the Products and Services, including import/export laws, labor laws and anti-corruption laws.
18. RELATIONSHIP OF THE PARTIES. Nothing in the Agreement or the course of dealing of the parties may be construed to create a partnership or joint venture among the parties, for the parties to be considered agents of one another, or as authorizing either party to obligate the other in any manner.
19. FORCE MAJEURE.SOPAKCO will not be responsible for failure to perform in a timely manner under the Agreement when its failure results from events beyond its reasonable control (an event of “Force Majeure“), including but not limited to acts of God, epidemics, acts of war whether declared or undeclared, blockades, labor disputes (whether of SOPAKCO’s employees or the employees of others), raw material shortages, or material increases in costs of raw materials. In the event of Force Majeure, the time for performance will extend for such time as reasonably necessary to enable SOPAKCO to perform.
20. ASSIGNMENT; BINDING EFFECT. No assignment of any rights or interest or delegation of any obligation of Purchaser under any Agreement or Purchaser’s Order may be made without SOPAKCO’s prior written consent. Any attempted assignment will be void. SOPAKCO may, at its sole discretion, assign the Agreement or otherwise transfer its rights and/or obligations under the Agreement. The Agreement will inure to the benefit of and be binding upon the parties and their respective permitted successors and assigns.
21. WAIVER.In the event of any default by Purchaser, SOPAKCO may decline to ship Products or provide Services. If SOPAKCO elects to continue shipping or otherwise fails to insist upon strict compliance with the Agreement, SOPAKCO’s actions will not constitute a waiver of Purchaser’s default or any other existing or future default, or affect SOPAKCO’s legal remedies.
22. BANKRUPTCY. If either party becomes insolvent, is unable to pay its debts when due, files for or is the subject of involuntary bankruptcy, has a receiver appointed or has its assets assigned, the other party may cancel any unfulfilled obligations under any Agreement.
23. JURISDICTION/VENUE/CHOICE OF LAW/LITIGATION COSTS. Any dispute arising out of or related to the Agreement shall be governed by and construed according to the laws of the state of South Carolina and litigated solely and exclusively in a state court located in Marion County, South Carolina or a federal court located in Florence, South Carolina. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement. Should any party bring suit for the breach of a promise, covenant, warranty, or representation under any Agreement, it is agreed that the prevailing party shall be entitled, in addition to recovering any damages sustained thereby, to recover such party’s expenses, including court costs and reasonable attorneys’ fees from the non-prevailing party.
24. SURVIVAL. Any provisions in the Agreement which, by their nature, extend beyond the termination or expiration of any sale of Products or Services, will remain in effect until fulfilled.
25. NON-EXCLUSIVE.This Agreement is not exclusive. SOPAKCO may enter into agreements and do business with third parties (including those who may compete with you) to sell or market products and services to anyone. SOPAKCO may sell or market (whether directly or indirectly through a third party) products and services at any price SOPAKCO chooses without any obligation or liability to you.
26. SECURITY INTEREST.Purchaser hereby grants SOPAKCO, and SOPAKCO hereby retains, a first priority security interest and lien on any and all of Purchaser’s rights, title, and interest in Products, wherever located, and all replacements or proceeds of the Products, until the Invoice for the applicable Products is paid in full, including any late payment fees and costs of collection. Purchaser agrees that SOPAKCO may file any financing statements or related filings for protecting this security interest as SOPAKCO reasonably deems necessary or appropriate.
27. SEVERABILITY. If any provision in these Terms of Sale is held to be unlawful or unenforceable, the remaining provisions herein will remain in effect.
28. INTEGRATION AND MODIFICATION. The Agreement constitutes the entire agreement between SOPAKCO and Purchaser with respect to the Products and Services covered by the Agreement, and supersedes any prior agreements, understandings, representations and quotations with respect thereto. No modification hereof will be of any effect unless in writing and signed by an authorized representative of the party to be bound thereby