General Terms and Condition of Sale

LOOS PACK, LLC - GENERAL TERMS AND CONDITION OF SALE

The following Terms and Conditions are a part of this quotation and any resulting purchase order for the sale of certain goods and products (the “Products”) by Loos Pack, LLC (the “Seller”) to the purchaser identified on the accompanying quotation, confirmation or sale, or invoice (the “Buyer”).

1. ACCEPTANCE. These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the Products by the Seller to the Buyer identified (the “Sales Document”).  The accompanying Sales Document and these Terms comprise the entire agreement between the parties (the “Agreement”), and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.  Any terms contained in Buyer’s purchase order or any other form or communication received from Buyer which are in addition to or different from the terms and conditions contained herein are expressly objected to and shall be deemed rejected by Supplier.  If these Terms are issued by Seller subsequent to the issuance of and in response to or in acknowledgment of a purchase order by Buyer, acceptance by Seller of such purchase order is expressly conditional on assent by Buyer to all of the additional and different terms and conditions contained herein.  If Buyer accepts any performance by Seller hereunder, including, but not limited to, any delivery of products, Buyer shall be deemed to have waived any express condition in Buyer’s purchase order that acceptance of such purchase order was limited to the terms and conditions contained therein.
2. PURCHASE AND SALE. Seller hereby contracts to sell and Buyer hereby contracts to buy the Products identified on the Sales Document upon the terms and conditions of this Agreement.  This Agreement supersedes, takes precedence over and renders null and void any conflicting inconsistent or additional provisions of any other prior or contemporaneous documents, verbal agreements, industry practices or course of dealing relating to the subject.
3. CANCELLATION.  
   1. By Mutual Agreement. This Agreement may be terminated or canceled at any time by written mutual agreement of the parties.
   2. For Cause. Without prejudice to any other right or remedy either party may have under applicable law, either party (the ”Terminating Party”) may terminate and cancel this Agreement on no less than five (5) calendar days written notice to the other party (the “Terminated Party”) upon the occurrence of the following events;
      1. Subject to the provisions of Section 5, in the event of default or breach by the Terminated Party of the terms of this Agreement if said default or breach has not been cured to the reasonable satisfaction of the Terminated Party within thirty (30) days after the Terminating Party’s receipt of the Terminating Party’s written notice specifying the default or breach; o
      2. In the event the Terminated Party becomes insolvent, makes an assignment for the benefit of creditors of all or a substantial part of its assets, is placed in receivership, reconstruction, liquidation, bankruptcy (voluntary or involuntary), or if the Terminated Party has its operations or assets expropriated, confiscated, restricted or hypothecated, in whole or in part, by operation of any law, decree, ordinance or other governmental action; or
      3. In the event the management or ownership of the controlling interest in the Terminated Party is transferred to, or controlled in fact by, a competitor to the Terminating Party.

In the event of termination and cancellation by Buyer for cause under this Section 3, title to and right to possession of all goods and the materials solely related thereto, whether partly or wholly completed, and which have been paid for by the Buyer prior to the date of Buyer’s written notice, shall pass to Buyer upon the effective date of termination.

4. DELIVERY – Delivery dates are approximate only. Seller shall attempt to make shipment within the time specified after the receipt of full data from Buyer, including approved certified prints. Partial shipments may be made and invoiced upon completion of manufacture. Delivery is Ex Works Seller’s facility. Risk of loss passes to Buyer upon delivery to the carrier. Buyer shall be responsible for all shipping costs including but not limited to insurance. Partial shipments may be made by Seller at Buyer’s cost.  Buyer shall have no right to return goods to Seller without Seller’s written authorization to do so and shipping instructions.
5. FORCE MAJEURE – Neither party will be liable for delays in or suspension of performance (other than the obligation to pay for services rendered and goods sold and delivered) caused by acts of God or governmental authority, strikes or labor disputes, accident, flood, fires or other loss of manufacturing facilities, lack of adequate fuel, power, raw materials, labor, or transportation facilities, breach by suppliers of supply agreements, or any other cause, whether similar or dissimilar, beyond the reasonable control of that party.
6. ERRORS – Seller reserves the right to correct stenographic or clerical errors that may be present in pricing or specifications in this quotation and/or order.
7. PRICES - Unless otherwise specified in writing, all written quotations expire thirty (30) days after date thereof provided. Quotations may be terminated earlier by notice and constitute only solicitations for offers to purchase. Until signed by Buyer and Seller, prices are subject to adjustment to account for changes in the price of raw materials. If Buyer’s order is not accepted, Seller’s sole obligation shall be to promptly refund the advanced payment made by Buyer, if any. Notwithstanding anything to the contrary, Seller reserves the right to refuse to accept any order or to delay production until receipt of an advance payment at any time Seller reasonably determines its ability to be paid may be in jeopardy. As collateral security for the payment of the purchase price of the Products, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest.  Buyer shall promptly execute any documents requested by Purchaser to further Seller’s interest.  Prices do not include customs duties or sales, use, excise, occupation and/or other similar taxes payable by reason of this transaction and Buyer shall be responsible for the payment of all such duties and taxes unless Buyer provides Seller with a tax exemption certificate acceptable to the applicable taxing authorities. Buyer shall promptly reimburse Seller for any duties and taxes and any associated expenses, including interest and penalties thereon, as may be paid by Seller.
8. TERMS OF PAYMENT - Terms are net 15 except as otherwise provided for in any attached payment schedules. Advanced payments or deposits received with the order shall be credited to Buyer upon acceptance by Seller. Payments not received when due are subject to a service and carrying charge of one and one-half (1-1/2) percent per month on the outstanding balance or the maximum amount allowed by law, whichever is less. In no event will Seller be entitled to collect more than the maximum amount allowed by law. Amounts placed for collection will also be subject to collection fees, attorney’s fees, or both of them.
9. RESCHEDULES - If shipment of the Products is delayed beyond the scheduled shipping date for any reason outside of Seller’s control, including Buyer’s request for deferment, Seller reserves the right to adjust prices to those prevailing at the time of the new specified shipping date and to assess additional handling and storage charges as a result of such delay.
10. LIMITED WARRANTY –
    1. Seller warrants to Buyer that upon shipment the Products shall meet any specifications contained in the Agreement, in all material respects.
    2. Seller warrants to Buyer that Buyer, upon payment in full to Seller, shall receive the Products free and clear of all liens and encumbrances.
    3. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 10.a. AND 10.b., SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS , 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.
    4. The Seller shall not be liable for a breach of the warranties set forth in Sections 10.a. and 10.b. unless: (i) Buyer gives written notice of the defective Products to Seller within ten (10) days of the time when Buyer discovers or ought to have discovered the defect; (ii) if applicable, Seller is given a reasonable opportunity after receiving the notice of breach of the warranty set forth in Section 10.a. to examine such Products and Buyer (if requested to do so by Seller) returns such Products to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Products are defective.
    5. The Seller shall not be liable for a breach of the warranty set forth in Sections 10.a. and 10.b. if: (i) Buyer makes any further use of such Products after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the Products; or (iii) Buyer alters or repairs such Products without the prior written consent of Seller.
    6. Subject to Sections 10.d. and 10.e. above, with respect to any such Products, Seller shall, in its sole discretion, either: (i) replace such Products or (ii) credit or refund the price of such Products paid by Buyer.
    7. THE REMEDIES SET FORTH IN THIS SECTION 10 SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTIONS 10.a. AND 10.b., RESPECTIVELY.
11. LIMITATION OF LIABILITY – IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER 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 SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCTS SOLD HEREUNDER.
12. OWNERSHIP OF INTELLECTUAL PROPERTY – All intellectual and proprietary design drawings, design details, specifications, dimensions, and other intellectual property associated with any Products sold to Buyer or otherwise developed by Seller or its employees or agents shall remain the sole property of Seller. All information, design details, and dimensions contained therein are confidential and proprietary and must not be reproduced, disclosed to others, or used in the production of parts, unless authorized in writing by Seller, including without limitation, providing such information to a third party to manufacture any goods. 
13. CONFIDENTIAL INFORMATION - Seller may disclose to Buyer information in connection with this Agreement, which information Seller desires to remain confidential and to be used solely in furtherance of this Agreement. “Confidential Information” shall mean any proprietary or confidential information of Seller, including, without limitation, any oral, written or computer based information, any knowledge gained through observation of the facilities, products and/or books and records of Seller and any materials derived from or based upon the Confidential Information.  The Confidential Information is proprietary and confidential to Seller and Seller would suffer great loss and irreparable harm if Buyer improperly uses or discloses the Confidential Information.  Buyer will keep confidential all Confidential Information.  Without the prior written consent of Seller, Buyer will not use or disclose to any third party any Confidential Information.  The obligations of this Section 13 shall in no event survive the lapse of a period of seven (7) years from the last date of shipment of the Products hereunder.  Buyer acknowledges and agrees that Seller is the sole and exclusive owner of any Confidential Information.  Buyer shall be responsible for any breach of the provisions of this Agreement by individuals or entities within its reasonable control. The restrictions contained in this Agreement shall not apply to any information or material which Buyer can demonstrate:  (a) becomes generally available to the public other than as a result of disclosure by Buyer or Buyer’s representatives; (b) was available, as indicated by Buyer’s contemporaneous written records, to Buyer on a non-confidential basis prior to its disclosure by Seller or Seller’s representatives; or (c) becomes available to Buyer on a non-confidential basis from a source other than Seller or Seller’s representatives, to the extent such source was not itself bound by a confidentiality or similar agreement with Seller or Seller’s representatives.  If Confidential Information must be disclosed pursuant to law, Buyer shall promptly, and if possible prior to such disclosure, notify Seller to enable Seller to seek a protective order.
14. GOVERNING LAW – This Agreement shall be governed and construed according to the internal laws of the State of Wisconsin without regard to conflict of laws principles and shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Seller and Buyer hereby agree that the Circuit Court of Marathon County, Wisconsin, shall have sole and exclusive jurisdiction in any action arising under this agreement and agree to submit to that jurisdiction. If, contrary to the provisions of this Section 14, Seller commences any legal action involving the Agreement or the Products sold hereunder in any forum other than that specified above, Buyer shall be entitled to the dismissal of such action based upon the agreement of the parties contained in this Section 14.