All purchases or other transactions for the sale of goods or services (“Goods”) are governed by these terms of sale (“Terms of Sale”). These Terms of Sale are the only terms which govern the sale of Goods by Blue Label Packaging Company (“Company”, “We” or “Blue Label”) to you. Notwithstanding anything herein to the contrary, if a separate written contract signed by Blue Label and you is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms of Sale. Any accompanying quotation, confirmation of sale, invoice, purchase order or similar document and these Terms of Sale (collectively, this “Agreement”) comprise the entire agreement between Blue Label and you with respect to the sale of Goods, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. Without limiting the foregoing, any additional, contrary or different terms contained in your general terms and conditions of purchase (regardless of whether or when you have submitted your purchase order or such terms) or any other documents or communications, and any other attempt to modify, supersede, supplement or otherwise alter this Agreement, are deemed rejected by Blue Label and will not modify this Agreement or be binding on the parties unless such terms have been fully approved in a signed writing by the parties. Fulfillment of your order does not constitute acceptance of any of your terms and conditions and does not serve to modify or amend these Terms of Sale.
All orders must be accepted by us or we will not be obligated to sell the Goods to you. We may choose not to accept any orders in our sole discretion. After having received your order, we may accept such order by sending you an order acknowledgment with additional pricing details (if any) regarding the Goods you have ordered. You may accept or reject such order acknowledgement in writing.
Blue Label shall not be liable for any delays, loss or damage in transit. Unless otherwise agreed in writing by the parties, Blue Label shall use Blue Label’s standard methods for packaging and shipping such Goods and shipment shall be in accordance with Blue Label’s then current shipment methods. IN NO EVENT SHALL BLUE LABEL BE LIABLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR FAILURE TO COMPLY WITH BLUE LABEL’S RECOMMENDED PACKAGING AND SHIPPING METHODS. Title and risk of loss shall pass to you upon our transfer of the Goods to the carrier.
Blue Label may, in its sole discretion, without liability or penalty, make partial shipments of Goods to you. Each shipment will constitute a separate sale, and you shall pay for the units shipped whether such shipment is in whole or partial fulfillment of your order. Shipping and delivery dates are estimates only and are not guaranteed by Blue Label. We are not liable for any delays in shipments.
These Terms of Sale may only be amended or modified in a writing which specifically states that it amends these Terms of Sale and is signed by an authorized representative of each of you and Blue Label.
You shall inspect the Goods upon receipt. You will be deemed to have accepted the Goods unless you notify Blue Label in writing of any Nonconforming Goods within five business days of receipt and furnish such written evidence or other documentation as required by Blue Label. “Nonconforming Goods” means only that the product shipped is different than identified in your purchase order. If you timely notify Blue Label of any Nonconforming Goods, Blue Label shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods or (ii) credit or refund the Price for such Nonconforming Goods. If requested by Blue Label, you shall ship, at your expense and risk of loss, the Nonconforming Goods to Blue Label. If we exercise our option to replace the Nonconforming Goods, we will, at your expense and risk of loss, ship the replaced Goods per these Terms of Sale. You acknowledge and agree that the remedies set forth in this paragraph are your exclusive remedies for the delivery of Nonconforming Goods. Except as provided in this paragraph, all sales of Goods to you are made on a one-way basis and you have no right to return Goods purchased under this Agreement to Blue Label.
You shall purchase the Goods from Blue Label at the price(s) (the “Price(s)”) set forth by Blue Label from time to time (whether set forth on a quotation, confirmation of sale, invoice, purchase order or otherwise), in its sole discretion, or as otherwise agreed to in writing by you and Blue Label. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by you. You shall be responsible for all such charges (including shipping and handling), costs and taxes; provided, that, you shall not be responsible for any taxes imposed on, or with respect to, Blue Label’s income, revenues, gross receipts, personnel or real or personal property or other assets. You shall pay all amounts due to Blue Label prior to shipment of any Goods in accordance with Blue Label’s payment instructions and in U.S. dollars. In addition to all other remedies available under these Terms of Sale or at law (which Blue Label does not waive by the exercise of any rights hereunder), Blue Label shall be entitled to suspend the delivery of any Goods, if you fail to pay any amounts when due hereunder. You shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Blue Label, whether relating to Blue Label’s breach, bankruptcy or otherwise.
LIMITED WARRANTY: Blue Label warrants to you that for a period of one year from the date of shipment of the Goods (“Warranty Period”), that such Goods will materially conform to Blue Label’s published specifications (if any) in effect as of the date of shipment and will be free from material defects in material and workmanship. EXCEPT FOR THE WARRANTY SET FORTH IN THIS PARAGRAPH, BLUE LABEL MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. Products manufactured by a third party (“Third Party Products”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are not covered by the warranty set forth in this paragraph. For the avoidance of doubt, BLUE LABEL MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (iii) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. Blue Label shall not be liable for a breach of the warranty set forth in this paragraph unless: (a) you give written notice of the defect, reasonably described, to Blue Label within 15 days of the time when you discover or ought to have discovered the defect; (b) Blue Label is given a reasonable opportunity after receiving the notice to examine such Goods and, if requested by Blue Label, you return such Goods to Blue Label at Blue Label’s cost for the examination to take place there; and (c) Blue Label reasonably verifies your claim that the Goods are defective. Blue Label shall not be liable for a breach of the warranty set forth in this paragraph if: (w) the defect arises because you failed to comply with Blue Label’s recommended packaging or shipping methods, including temperature controlled transportation, if applicable; (x) you make any further use of such Goods after giving such notice; (y) the defect arises because you failed to follow Blue Label’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (z) you alter or repair such Goods. Subject to the preceding two sentences, with respect to any such Goods during the Warranty Period, Blue Label shall, in its sole discretion, either: (1) repair or replace such Goods (or the defective part) or (2) credit or refund the Price of such Goods at the pro rata contract rate provided that, if Blue Label so requests, you shall, at Blue Label’s expense, return such Goods to Blue Label. THE REMEDIES SET FORTH IN THIS PARAGRAPH SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY AND BLUE LABEL’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN THIS PARAGRAPH.
IN NO EVENT SHALL BLUE LABEL BE LIABLE FOR ANY LOSS OF USE, REVENUE OR PROFIT, LOSS OF DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF OR RELATING TO ANY BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT BLUE LABEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL BLUE LABEL’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR TO ANY GOOD, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO BLUE LABEL FOR SUCH GOODS SOLD HEREUNDER.
The limited warranty provided by Blue Label extends only to the original purchaser, you, of Goods from the Website. It does not extend to any subsequent or other owner, transferee or beneficiary of the Goods.
You shall comply with all applicable laws, regulations and ordinances.
You shall indemnify Blue Label from, and defend and hold Blue Label harmless from and against, any losses suffered, incurred or sustained by Blue Label or to which Blue Label becomes subject, resulting from, arising out of or relating to any claim: (i) that the Goods infringe upon the proprietary or other rights of any third party (except as may have been caused by a modification by Blue Label); and (ii) of loss or damage resulting from the Goods and the use thereof.
In addition to any remedies that may be provided under these Terms of Sale, Blue Label may terminate this Agreement with immediate effect upon written notice to you, if you: (i) fail to pay any amount when due under this Agreement; (ii) have not otherwise performed or complied with any of these Terms of Sale, in whole or in part; or (iii) become insolvent, file a petition for bankruptcy or commence or has commenced against you proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
No waiver by Blue Label of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Blue Label. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
All non-public, confidential or proprietary information of Blue Label, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Blue Label to you, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Blue Label in writing. Upon Blue Label’s request, you shall promptly return all documents and other materials received from Blue Label. Blue Label shall be entitled to injunctive relief for any violation of this paragraph. This paragraph does not apply to information that is: (a) in the public domain; (b) known to you at the time of disclosure; or (c) rightfully obtained by you on a non-confidential basis from a third party.
Blue Label shall not be liable or responsible to you, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Blue Label including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
You shall not assign any of your rights or delegate any of your obligations under this Agreement without the prior written consent of Blue Label. Any purported assignment or delegation in violation of this paragraph is null and void. No assignment or delegation relieves you of any of your obligations under this Agreement.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms of Sale.
All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Ohio.
Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Ohio in each case located in the City of Columbus and County of Franklin, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses provided to each party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), e-mail, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (i) upon receipt of the receiving party, and (ii) if the party giving the Notice has complied with the requirements of this paragraph.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of these Terms of Sale which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement.