Terms & Conditions

POLYMER PACKAGING, INC. (PPI) - TERMS AND CONDITIONS

 

  1. ACCEPTANCE. Customer has read and understands these terms and conditions and agrees that Customer has accepted any and all terms and conditions contained herein or an attachment hereto. Any additional or contradictory terms or conditions contained in any acknowledgment, invoice, purchase order, change or other communication, oral or written, heretofore or hereafter furnished by Customer is hereby objected to by PPI, and shall be of no force or effect.
  2. SCOPE. PPI agrees to sell, and the Customer agrees to purchase, the products and services set forth on the quotation, sales order and/or invoice in accordance with the specifications set forth therein.
  3. CHANGES. No changes in the products or services shall be made unless evidenced by a written agreement signed by both parties hereto.  Except for such written agreement, no oral, verbal, or written modifications, including subsequent purchase orders or change orders, shall bind either party hereto.
  4. PRICES. PPI shall invoice the Customer for the prices contained on the sales order, and such payments shall be made based on the schedule set forth in the sales order. All prices are F.O.B. shipping point unless otherwise provided in the sales order and/or invoice.  In the event payment is not made within stated payment terms, there shall be a one percent (1%) monthly service charge on any balance over the stated payment terms.
  5. TAXES. Prices on the specified equipment or parts are exclusive of all city, state and federal excise taxes including, without limitation, taxes on manufacture, sales, receipts, gross income, occupation, use and similar taxes.  Wherever applicable, any tax or taxes will be added to the invoice as a separate charge to be paid by the Customer.  Out-of-state customers receiving products or services must pay state and local taxes where applicable.
  6. CLAIMS. Claims for corrections from Customer must be made in writing to PPI within ten (10) days of receipt of the product, and if a claim is not made within said time period, the products shall be deemed accepted.
  7. CANCELLATION. Orders are not subject to cancellation or hold-up on delivery except with PPI’s written consent, and only upon such terms that will compensate PPI for its loss from such cancellation or hold-up on delivery.
  8. INSPECTION AND ACCEPTANCE. Within five (5) days of the receipt of shipment of products, Customer shall inspect the products with regard to the defects, quantity, and identity.  In case defects, shortages or excess quantities are found during such inspection, Customer shall notify PPI immediately but not later than ten (10) days after receipt of the products.  The failure to provide said notice within the ten (10) day period shall be deemed acceptance of the products by Customer.  Upon receipt of notice, PPI shall have the right to inspect and investigate to determine the validity of the defect, shortage or excess.  To the extent PPI determines that there is a defect, shortage or excess for which PPI is responsible hereunder, then in such case PPI may correct or replace the products to conform with the Specifications at the expense of PPI, or correct the shortages or excess as further defined below.  In such case, PPI agrees to arrange for transportation and sufficient insurance to protect the products in transit, as well as the transportation of the repaired or replaced products from PPI’s facility, and such reasonable costs of such shorting, rework or return including a return for analysis of the products shall be borne by PPI.
  9. DELIVERY. Delivery of the product shall be F.O.B. shipping point at PPI’s designated facility unless otherwise set forth in the sales order and/or invoice, and Customer shall be responsible for goods lost, damaged or delayed in transit, as well as all delivery and transit costs and expenses.  Failure of risk of damage or loss for whatever reason shall be upon Customer, and Customer assumes any and all liabilities, expenses and obligations regarding transportation, insurance, or any damage or loss to the products in transit.  PPI will use reasonable efforts to deliver within stated delivery dates, but PPI makes no representation or guarantee that such delivery dates will be satisfied.  PPI shall not be responsible for any failure or delay in performance of any of its obligations, including, but not limited to delivery within stated delivery dates.
  10. NO WARRANTY. NO REPRESENTATIONS, GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE MADE BY PPI IN CONNECTION WITH ANY PRODUCT OR SERVICES.
  11. DISCLAIMER. PPI shall not be responsible for any damage or injury resulting to or caused by any products or services for any reason, including without limitation, by reason of installation by Customer, improper storage, unauthorized service, alteration of the product or services, neglect or abuse or the use of the product in a manner inconsistent with its design.  PPI shall not be liable for any delays or losses caused by PPI’s error, unless such delays and losses are caused by willful misconduct of PPI.  The Customer acknowledges and agrees that if the Customer identifies specific applications for the use of PPI’s products or services, PPI shall not be responsible for any deviations from the applications or nondisclosure of Customer of any additional information, including, but not limited to Customer’s failure to properly install the products.  If design and specifications are specified by the Customer, the parties agree that Customer is exclusively responsible for design and specification plans.  PPI shall not be responsible for the correctness or adequacy of any design details, plans, or material not furnished by PPI.  The parties further agree that PPI shall not be responsible for any products which have been modified or integrated with other products not designed or selected by PPI.
  12. LIMITATION OF LIABILITY. IN NO EVENT SHALL PPI BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS OR PROFITS, EVEN IF PPI IS ADVISED, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS.  THE LIABILITY OF PPI, WHETHER IN CONTRACT, TORT, OR OTHERWISE, AND ANY AND ALL DAMAGES IMPOSED UPON PPI SHALL IN NO EVENT EXCEED THE AMOUNT CUSTOMER HAS PAID TO PPI.  FURTHERMORE, IN THE EVENT THAT ANY PRODUCT SHALL BE MANUFACTURED AND/OR SOLD BY PPI TO MEET CUSTOMER’S PARTICULAR SPECIFICATIONS OR REQUIREMENTS, PPI SHALL NOT BE LIABLE FOR ANY FAILURE TO MEET PARTICULAR SPECIFICATIONS OR REQUIREMENTS, OR ANY CLAIM FOR INFRINGEMENT OF ANY PATENT, ARISING FROM THE CUSTOMER’S PARTICULAR SPECIFICATIONS OR REQUIREMENTS FOR THE PRODUCT. THE REMEDIES OF CUSTOMER SET FORTH HEREIN ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER REMEDIES.
  13. INDEMNIFICATION. Customer shall indemnify and hold PPI, its officers, employees, directors, representatives, shareholders, agents, successors and assigns harmless against any and all losses, claims, damages, judgments, liabilities, or expenses, including, without limitation, reasonable attorney fees and expenses, incurred by PPI as a result of or arising out of Customer’s breach of these terms or any obligation to PPI; any claim by any third party against PPI for any errors, omissions, defects, or any and all claims regarding the product and services sold to Customer; actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark, or copyright by reason of the design, manufacture, construction or use of the product or services being sold hereunder, including infringement arising from compliance with the specifications of the products or services, or for actual or alleged misuse or misappropriation of a trade secret resulting directly or indirectly from Customer’s action; any act or omission of Customer or its agents, employees, representatives or subcontractors, including without limitation, any act of Customer described in Section 11  Customer shall promptly notify PPI of any suit filed against it or its customers on account of any such indemnification obligation of Customer hereunder, and at PPI’s option, Customer may assume the sole responsibility for the defense of such action at Customer’s sole expense.  PPI may be represented by their own counsel in any such suit at the expense of Customer, however, no settlement shall be entered into on behalf of PPI without PPI’s prior consent in its sole discretion.
  14. ACKNOWLEDGMENT OF CUSTOMER. Customer hereby acknowledges and covenants that it has all trademark, trade name and all intellectual property rights with respect to the products, Specifications, or any other items or materials being provided to Seller hereunder.  Furthermore, Customer shall pay all royalties and license fees necessary for the enjoyment of rights to any inventions, machines, processes, or devices which may be applied to or incorporated in any products being sold hereunder, either in the construction or use after completion.
  15. DEFAULT. In the event that Customer fails to pay any amount due to PPI, or otherwise breaches any obligation or covenant contained to PPI, PPI may, in its discretion, in addition to other remedies to which PPI may be entitled without affecting an election of remedies, cancel or terminate all obligations to Customer upon notice to Customer, or suspend performance by PPI until Customer pays for such charges or amounts.  Furthermore, in the event of a cancellation or termination by PPI, PPI shall be entitled to any and all damages under the Uniform Commercial Code, including without limitation Sections 2-708, 2-710, and 2-711, including, without limitation, lost profits, and all other expenses and losses incurred by PPI.
  16. GOVERNING LAW/VENUE. In all respects, the parties agree that they shall be subject to, and governed by, the laws of the State of Ohio.  In the event that any legal proceeding is commenced or arises, said legal action shall be commenced and filed in Stark County, Ohio, or the federal court with jurisdiction over Stark County, Ohio.  Customer hereby knowingly and irrevocably waives any objection on the grounds that improper jurisdiction or venue to an action in said courts, and agrees that effective service of process may be made upon Customer by mail at the last known address of the Customer.
  17. CONFIDENTIALITY. The Customer acknowledges that PPI possesses certain confidential or proprietary information of PPI, and of PPI’s customers, including, without limitation, designs, data, ideas, drawings, specifications, trade secrets, formula, technical experience, financial data, financial information, and other valuable, confidential and proprietary information, which may be disclosed to Customer or for which Customer may have access, for Customer’s performance for PPI. At all times thereafter, Customer agrees not to disclose to any person, firm, or entity any Confidential Information.  Furthermore, PPI retains exclusive ownership of all of its Confidential Information, and Customer obtains no license or other rights thereto.  PPI shall also have exclusive rights to any improvements, modifications, or variations of its products or services, including, without limitation, any and all patent, copyright, trademark, trade name, or other intellectual property rights.  The Customer hereby agrees that if Customer breaches this section, PPI shall incur irreparable injury and harm and money damages would be an insufficient remedy, and as such, and in addition to all other remedies, PPI shall be entitled to seek injunctive relief restraining Customer from further breach of this section.
  18. NON-ASSIGNMENT. Customer may not assign or delegate its obligations under this order without PPI's prior written consent, however, PPI may assign or subcontract its obligations hereunder without Customer’s consent.
  19. MODIFICATION/WAIVER. These terms may not be changed or modified orally, but may be amended in writing only by the duly authorized officers of both PPI and Customer.  A party’s failure to insist on compliance or enforcement of any provision herein shall not affect the validity or enforceability or constitute a waiver of future enforcement of that provision or of any other provision herein by that party or any other party.
  20. Any legally invalid provision herein shall be considered severable, and the invalidation of any such provision shall not impair the obligations of the parties to comply with all other unaffected provisions hereof.
  21. PARAGRAPH HEADINGS. Paragraph headings have been inserted herein for convenience of reference only.  If there is any conflict between such headings and the text herein, the text shall control.
  22. FORCE MAJEURE. PPI shall not be responsible for any acts or omissions, nor for events beyond its reasonable control (hereinafter referred to as “Force Majeure”), including but not limited to Acts of God, changes of laws or regulations or other acts of government, labor disputes, strikes, riots, mobs, fires, floods, wars, embargoes, impossibility to obtain necessary material, labor, machinery, or transportation.

POLYMER FILM & BAG, LLC (PF&B) - TERMS AND CONDITIONS

 

  1. ACCEPTANCE. Customer has read and understands these terms and conditions and agrees that Customer has accepted any and all terms and conditions contained herein or an attachment hereto. Any additional or contradictory terms or conditions contained in any acknowledgment, invoice, purchase order, change or other communication, oral or written, heretofore or hereafter furnished by Customer is hereby objected to by PF&B, and shall be of no force or effect.
  2. SCOPE. PF&B agrees to sell, and the Customer agrees to purchase, the products and services set forth on the quotation, sales order and/or invoice in accordance with the specifications set forth therein.
  3. CHANGES. No changes in the products or services shall be made unless evidenced by a written agreement signed by both parties hereto.  Except for such written agreement, no oral, verbal, or written modifications, including subsequent purchase orders or change orders, shall bind either party hereto.
  4. PRICES. PF&B shall invoice the Customer for the prices contained on the sales order, and such payments shall be made based on the schedule set forth in the sales order. All prices are F.O.B. shipping point unless otherwise provided in the sales order and/or invoice.  In the event payment is not made within stated payment terms, there shall be a one percent (1%) monthly service charge on any balance over the stated payment terms.
  5. TAXES. Prices on the specified equipment or parts are exclusive of all city, state and federal excise taxes including, without limitation, taxes on manufacture, sales, receipts, gross income, occupation, use and similar taxes.  Wherever applicable, any tax or taxes will be added to the invoice as a separate charge to be paid by the Customer.  Out-of-state customers receiving products or services must pay state and local taxes where applicable.
  6. CLAIMS. Claims for corrections from Customer must be made in writing to PF&B within ten (10) days of receipt of the product, and if a claim is not made within said time period, the products shall be deemed accepted.
  7. CANCELLATION. Orders are not subject to cancellation or hold-up on delivery except with PF&B’s written consent, and only upon such terms that will compensate PF&B for its loss from such cancellation or hold-up on delivery.
  8. INSPECTION AND ACCEPTANCE. Within five (5) days of the receipt of shipment of products, Customer shall inspect the products with regard to the defects, quantity, and identity.  In case defects, shortages or excess quantities are found during such inspection, Customer shall notify PF&B immediately but not later than ten (10) days after receipt of the products.  The failure to provide said notice within the ten (10) day period shall be deemed acceptance of the products by Customer.  Upon receipt of notice, PF&B shall have the right to inspect and investigate to determine the validity of the defect, shortage or excess.  To the extent PF&B determines that there is a defect, shortage or excess for which PF&B is responsible hereunder, then in such case PF&B may correct or replace the products to conform with the Specifications at the expense of PF&B, or correct the shortages or excess as further defined below.  In such case, PF&B agrees to arrange for transportation and sufficient insurance to protect the products in transit, as well as the transportation of the repaired or replaced products from PF&B’s facility, and such reasonable costs of such shorting, rework or return including a return for analysis of the products shall be borne by PF&B.
  9. DELIVERY. Delivery of the product shall be F.O.B. shipping point at PF&B’s designated facility unless otherwise set forth in the sales order and/or invoice, and Customer shall be responsible for goods lost, damaged or delayed in transit, as well as all delivery and transit costs and expenses.  Failure of risk of damage or loss for whatever reason shall be upon Customer, and Customer assumes any and all liabilities, expenses and obligations regarding transportation, insurance, or any damage or loss to the products in transit.  PF&B will use reasonable efforts to deliver within stated delivery dates, but PF&B makes no representation or guarantee that such delivery dates will be satisfied.  PF&B shall not be responsible for any failure or delay in performance of any of its obligations, including, but not limited to delivery within stated delivery dates.
  10. NO WARRANTY. NO REPRESENTATIONS, GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE MADE BY PF&B IN CONNECTION WITH ANY PRODUCT OR SERVICES.
  11. DISCLAIMER. PF&B shall not be responsible for any damage or injury resulting to or caused by any products or services for any reason, including without limitation, by reason of installation by Customer, improper storage, unauthorized service, alteration of the product or services, neglect or abuse or the use of the product in a manner inconsistent with its design.  PF&B shall not be liable for any delays or losses caused by PF&B’s error, unless such delays and losses are caused by willful misconduct of PF&B.  The Customer acknowledges and agrees that if the Customer identifies specific applications for the use of PF&B’s products or services, PF&B shall not be responsible for any deviations from the applications or nondisclosure of Customer of any additional information, including, but not limited to Customer’s failure to properly install the products.  If design and specifications are specified by the Customer, the parties agree that Customer is exclusively responsible for design and specification plans.  PF&B shall not be responsible for the correctness or adequacy of any design details, plans, or material not furnished by PF&B.  The parties further agree that PF&B shall not be responsible for any products which have been modified or integrated with other products not designed or selected by PF&B.
  12. LIMITATION OF LIABILITY. IN NO EVENT SHALL PF&B BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS OR PROFITS, EVEN IF PF&B IS ADVISED, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS.  THE LIABILITY OF PF&B, WHETHER IN CONTRACT, TORT, OR OTHERWISE, AND ANY AND ALL DAMAGES IMPOSED UPON PF&B SHALL IN NO EVENT EXCEED THE AMOUNT CUSTOMER HAS PAID TO PF&B.  FURTHERMORE, IN THE EVENT THAT ANY PRODUCT SHALL BE MANUFACTURED AND/OR SOLD BY PF&B TO MEET CUSTOMER’S PARTICULAR SPECIFICATIONS OR REQUIREMENTS, PF&B SHALL NOT BE LIABLE FOR ANY FAILURE TO MEET PARTICULAR SPECIFICATIONS OR REQUIREMENTS, OR ANY CLAIM FOR INFRINGEMENT OF ANY PATENT, ARISING FROM THE CUSTOMER’S PARTICULAR SPECIFICATIONS OR REQUIREMENTS FOR THE PRODUCT. THE REMEDIES OF CUSTOMER SET FORTH HEREIN ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER REMEDIES.
  13. INDEMNIFICATION. Customer shall indemnify and hold PF&B, its officers, employees, directors, representatives, shareholders, agents, successors and assigns harmless against any and all losses, claims, damages, judgments, liabilities, or expenses, including, without limitation, reasonable attorney fees and expenses, incurred by PF&B as a result of or arising out of Customer’s breach of these terms or any obligation to PF&B; any claim by any third party against PF&B for any errors, omissions, defects, or any and all claims regarding the product and services sold to Customer; actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark, or copyright by reason of the design, manufacture, construction or use of the product or services being sold hereunder, including infringement arising from compliance with the specifications of the products or services, or for actual or alleged misuse or misappropriation of a trade secret resulting directly or indirectly from Customer’s action; any act or omission of Customer or its agents, employees, representatives or subcontractors, including without limitation, any act of Customer described in Section 11  Customer shall promptly notify PF&B of any suit filed against it or its customers on account of any such indemnification obligation of Customer hereunder, and at PF&B’s option, Customer may assume the sole responsibility for the defense of such action at Customer’s sole expense.  PF&B may be represented by their own counsel in any such suit at the expense of Customer, however, no settlement shall be entered into on behalf of PF&B without PF&B’s prior consent in its sole discretion.
  14. ACKNOWLEDGMENT OF CUSTOMER. Customer hereby acknowledges and covenants that it has all trademark, trade name and all intellectual property rights with respect to the products, Specifications, or any other items or materials being provided to Seller hereunder.  Furthermore, Customer shall pay all royalties and license fees necessary for the enjoyment of rights to any inventions, machines, processes, or devices which may be applied to or incorporated in any products being sold hereunder, either in the construction or use after completion.
  15. DEFAULT. In the event that Customer fails to pay any amount due to PF&B, or otherwise breaches any obligation or covenant contained to PF&B, PF&B may, in its discretion, in addition to other remedies to which PF&B may be entitled without affecting an election of remedies, cancel or terminate all obligations to Customer upon notice to Customer, or suspend performance by PF&B until Customer pays for such charges or amounts.  Furthermore, in the event of a cancellation or termination by PF&B, PF&B shall be entitled to any and all damages under the Uniform Commercial Code, including without limitation Sections 2-708, 2-710, and 2-711, including, without limitation, lost profits, and all other expenses and losses incurred by PF&B.
  16. GOVERNING LAW/VENUE. In all respects, the parties agree that they shall be subject to, and governed by, the laws of the State of Ohio.  In the event that any legal proceeding is commenced or arises, said legal action shall be commenced and filed in Stark County, Ohio, or the federal court with jurisdiction over Stark County, Ohio.  Customer hereby knowingly and irrevocably waives any objection on the grounds that improper jurisdiction or venue to an action in said courts, and agrees that effective service of process may be made upon Customer by mail at the last known address of the Customer.
  17. CONFIDENTIALITY. The Customer acknowledges that PF&B possesses certain confidential or proprietary information of PF&B, and of PF&B’s customers, including, without limitation, designs, data, ideas, drawings, specifications, trade secrets, formula, technical experience, financial data, financial information, and other valuable, confidential and proprietary information, which may be disclosed to Customer or for which Customer may have access, for Customer’s performance for PF&B. At all times thereafter, Customer agrees not to disclose to any person, firm, or entity any Confidential Information.  Furthermore, PF&B retains exclusive ownership of all of its Confidential Information, and Customer obtains no license or other rights thereto.  PF&B shall also have exclusive rights to any improvements, modifications, or variations of its products or services, including, without limitation, any and all patent, copyright, trademark, trade name, or other intellectual property rights.  The Customer hereby agrees that if Customer breaches this section, PF&B shall incur irreparable injury and harm and money damages would be an insufficient remedy, and as such, and in addition to all other remedies, PF&B shall be entitled to seek injunctive relief restraining Customer from further breach of this section.
  18. NON-ASSIGNMENT. Customer may not assign or delegate its obligations under this order without PF&B's prior written consent, however, PF&B may assign or subcontract its obligations hereunder without Customer’s consent.
  19. MODIFICATION/WAIVER. These terms may not be changed or modified orally, but may be amended in writing only by the duly authorized officers of both PF&B and Customer.  A party’s failure to insist on compliance or enforcement of any provision herein shall not affect the validity or enforceability or constitute a waiver of future enforcement of that provision or of any other provision herein by that party or any other party.
  20. Any legally invalid provision herein shall be considered severable, and the invalidation of any such provision shall not impair the obligations of the parties to comply with all other unaffected provisions hereof.
  21. PARAGRAPH HEADINGS. Paragraph headings have been inserted herein for convenience of reference only.  If there is any conflict between such headings and the text herein, the text shall control.
  22. FORCE MAJEURE. PF&B shall not be responsible for any acts or omissions, nor for events beyond its reasonable control (hereinafter referred to as “Force Majeure”), including but not limited to Acts of God, changes of laws or regulations or other acts of government, labor disputes, strikes, riots, mobs, fires, floods, wars, embargoes, impossibility to obtain necessary material, labor, machinery, or transportation.

POLYMER PROTECTIVE PACKAGING, LLC (PPP) - TERMS AND CONDITIONS

 

  1. ACCEPTANCE. Customer has read and understands these terms and conditions and agrees that Customer has accepted any and all terms and conditions contained herein or an attachment hereto. Any additional or contradictory terms or conditions contained in any acknowledgment, invoice, purchase order, change or other communication, oral or written, heretofore or hereafter furnished by Customer is hereby objected to by PPP, and shall be of no force or effect.
  2. SCOPE. PPP agrees to sell, and the Customer agrees to purchase, the products and services set forth on the quotation, sales order and/or invoice in accordance with the specifications set forth therein.
  3. CHANGES. No changes in the products or services shall be made unless evidenced by a written agreement signed by both parties hereto.  Except for such written agreement, no oral, verbal, or written modifications, including subsequent purchase orders or change orders, shall bind either party hereto.
  4. PRICES. PPP shall invoice the Customer for the prices contained on the sales order, and such payments shall be made based on the schedule set forth in the sales order. All prices are F.O.B. shipping point unless otherwise provided in the sales order and/or invoice.  In the event payment is not made within stated payment terms, there shall be a one percent (1%) monthly service charge on any balance over the stated payment terms.
  5. TAXES. Prices on the specified equipment or parts are exclusive of all city, state and federal excise taxes including, without limitation, taxes on manufacture, sales, receipts, gross income, occupation, use and similar taxes.  Wherever applicable, any tax or taxes will be added to the invoice as a separate charge to be paid by the Customer.  Out-of-state customers receiving products or services must pay state and local taxes where applicable.
  6. CLAIMS. Claims for corrections from Customer must be made in writing to PPP within ten (10) days of receipt of the product, and if a claim is not made within said time period, the products shall be deemed accepted.
  7. CANCELLATION. Orders are not subject to cancellation or hold-up on delivery except with PPP’s written consent, and only upon such terms that will compensate PPP for its loss from such cancellation or hold-up on delivery.
  8. INSPECTION AND ACCEPTANCE. Within five (5) days of the receipt of shipment of products, Customer shall inspect the products with regard to the defects, quantity, and identity.  In case defects, shortages or excess quantities are found during such inspection, Customer shall notify PPP immediately but not later than ten (10) days after receipt of the products.  The failure to provide said notice within the ten (10) day period shall be deemed acceptance of the products by Customer.  Upon receipt of notice, PPP shall have the right to inspect and investigate to determine the validity of the defect, shortage or excess.  To the extent PPP determines that there is a defect, shortage or excess for which PPP is responsible hereunder, then in such case PPP may correct or replace the products to conform with the Specifications at the expense of PPP, or correct the shortages or excess as further defined below.  In such case, PPP agrees to arrange for transportation and sufficient insurance to protect the products in transit, as well as the transportation of the repaired or replaced products from PPP’s facility, and such reasonable costs of such shorting, rework or return including a return for analysis of the products shall be borne by PPP.
  9. DELIVERY. Delivery of the product shall be F.O.B. shipping point at PPP’s designated facility unless otherwise set forth in the sales order and/or invoice, and Customer shall be responsible for goods lost, damaged or delayed in transit, as well as all delivery and transit costs and expenses.  Failure of risk of damage or loss for whatever reason shall be upon Customer, and Customer assumes any and all liabilities, expenses and obligations regarding transportation, insurance, or any damage or loss to the products in transit.  PPP will use reasonable efforts to deliver within stated delivery dates, but PPP makes no representation or guarantee that such delivery dates will be satisfied.  PPP shall not be responsible for any failure or delay in performance of any of its obligations, including, but not limited to delivery within stated delivery dates.
  10. NO WARRANTY. NO REPRESENTATIONS, GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE MADE BY PPP IN CONNECTION WITH ANY PRODUCT OR SERVICES.
  11. DISCLAIMER. PPP shall not be responsible for any damage or injury resulting to or caused by any products or services for any reason, including without limitation, by reason of installation by Customer, improper storage, unauthorized service, alteration of the product or services, neglect or abuse or the use of the product in a manner inconsistent with its design.  PPP shall not be liable for any delays or losses caused by PPP’s error, unless such delays and losses are caused by willful misconduct of PPP.  The Customer acknowledges and agrees that if the Customer identifies specific applications for the use of PPP’s products or services, PPP shall not be responsible for any deviations from the applications or nondisclosure of Customer of any additional information, including, but not limited to Customer’s failure to properly install the products.  If design and specifications are specified by the Customer, the parties agree that Customer is exclusively responsible for design and specification plans.  PPP shall not be responsible for the correctness or adequacy of any design details, plans, or material not furnished by PPP.  The parties further agree that PPP shall not be responsible for any products which have been modified or integrated with other products not designed or selected by PPP.
  12. LIMITATION OF LIABILITY. IN NO EVENT SHALL PPP BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS OR PROFITS, EVEN IF PPP IS ADVISED, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS.  THE LIABILITY OF PPP, WHETHER IN CONTRACT, TORT, OR OTHERWISE, AND ANY AND ALL DAMAGES IMPOSED UPON PPP SHALL IN NO EVENT EXCEED THE AMOUNT CUSTOMER HAS PAID TO PPP.  FURTHERMORE, IN THE EVENT THAT ANY PRODUCT SHALL BE MANUFACTURED AND/OR SOLD BY PPP TO MEET CUSTOMER’S PARTICULAR SPECIFICATIONS OR REQUIREMENTS, PPP SHALL NOT BE LIABLE FOR ANY FAILURE TO MEET PARTICULAR SPECIFICATIONS OR REQUIREMENTS, OR ANY CLAIM FOR INFRINGEMENT OF ANY PATENT, ARISING FROM THE CUSTOMER’S PARTICULAR SPECIFICATIONS OR REQUIREMENTS FOR THE PRODUCT. THE REMEDIES OF CUSTOMER SET FORTH HEREIN ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER REMEDIES.
  13. INDEMNIFICATION. Customer shall indemnify and hold PPP, its officers, employees, directors, representatives, shareholders, agents, successors and assigns harmless against any and all losses, claims, damages, judgments, liabilities, or expenses, including, without limitation, reasonable attorney fees and expenses, incurred by PPP as a result of or arising out of Customer’s breach of these terms or any obligation to PPP; any claim by any third party against PPP for any errors, omissions, defects, or any and all claims regarding the product and services sold to Customer; actual or alleged direct or contributory infringement of, or inducement to infringe, any United States or foreign patent, trademark, or copyright by reason of the design, manufacture, construction or use of the product or services being sold hereunder, including infringement arising from compliance with the specifications of the products or services, or for actual or alleged misuse or misappropriation of a trade secret resulting directly or indirectly from Customer’s action; any act or omission of Customer or its agents, employees, representatives or subcontractors, including without limitation, any act of Customer described in Section 11  Customer shall promptly notify PPP of any suit filed against it or its customers on account of any such indemnification obligation of Customer hereunder, and at PPP’s option, Customer may assume the sole responsibility for the defense of such action at Customer’s sole expense.  PPP may be represented by their own counsel in any such suit at the expense of Customer, however, no settlement shall be entered into on behalf of PPP without PPP’s prior consent in its sole discretion.
  14. ACKNOWLEDGMENT OF CUSTOMER. Customer hereby acknowledges and covenants that it has all trademark, trade name and all intellectual property rights with respect to the products, Specifications, or any other items or materials being provided to Seller hereunder.  Furthermore, Customer shall pay all royalties and license fees necessary for the enjoyment of rights to any inventions, machines, processes, or devices which may be applied to or incorporated in any products being sold hereunder, either in the construction or use after completion.
  15. DEFAULT. In the event that Customer fails to pay any amount due to PPP, or otherwise breaches any obligation or covenant contained to PPP, PPP may, in its discretion, in addition to other remedies to which PPP may be entitled without affecting an election of remedies, cancel or terminate all obligations to Customer upon notice to Customer, or suspend performance by PPP until Customer pays for such charges or amounts.  Furthermore, in the event of a cancellation or termination by PPP, PPP shall be entitled to any and all damages under the Uniform Commercial Code, including without limitation Sections 2-708, 2-710, and 2-711, including, without limitation, lost profits, and all other expenses and losses incurred by PPP.
  16. GOVERNING LAW/VENUE. In all respects, the parties agree that they shall be subject to, and governed by, the laws of the State of Ohio.  In the event that any legal proceeding is commenced or arises, said legal action shall be commenced and filed in Stark County, Ohio, or the federal court with jurisdiction over Stark County, Ohio.  Customer hereby knowingly and irrevocably waives any objection on the grounds that improper jurisdiction or venue to an action in said courts, and agrees that effective service of process may be made upon Customer by mail at the last known address of the Customer.
  17. CONFIDENTIALITY. The Customer acknowledges that PPP possesses certain confidential or proprietary information of PPP, and of PPP’s customers, including, without limitation, designs, data, ideas, drawings, specifications, trade secrets, formula, technical experience, financial data, financial information, and other valuable, confidential and proprietary information, which may be disclosed to Customer or for which Customer may have access, for Customer’s performance for PPP. At all times thereafter, Customer agrees not to disclose to any person, firm, or entity any Confidential Information.  Furthermore, PPP retains exclusive ownership of all of its Confidential Information, and Customer obtains no license or other rights thereto.  PPP shall also have exclusive rights to any improvements, modifications, or variations of its products or services, including, without limitation, any and all patent, copyright, trademark, trade name, or other intellectual property rights.  The Customer hereby agrees that if Customer breaches this section, PPP shall incur irreparable injury and harm and money damages would be an insufficient remedy, and as such, and in addition to all other remedies, PPP shall be entitled to seek injunctive relief restraining Customer from further breach of this section.
  18. NON-ASSIGNMENT. Customer may not assign or delegate its obligations under this order without PPP's prior written consent, however, PPP may assign or subcontract its obligations hereunder without Customer’s consent.
  19. MODIFICATION/WAIVER. These terms may not be changed or modified orally, but may be amended in writing only by the duly authorized officers of both PPP and Customer.  A party’s failure to insist on compliance or enforcement of any provision herein shall not affect the validity or enforceability or constitute a waiver of future enforcement of that provision or of any other provision herein by that party or any other party.
  20. Any legally invalid provision herein shall be considered severable, and the invalidation of any such provision shall not impair the obligations of the parties to comply with all other unaffected provisions hereof.
  21. PARAGRAPH HEADINGS. Paragraph headings have been inserted herein for convenience of reference only.  If there is any conflict between such headings and the text herein, the text shall control.
  22. FORCE MAJEURE. PPP shall not be responsible for any acts or omissions, nor for events beyond its reasonable control (hereinafter referred to as “Force Majeure”), including but not limited to Acts of God, changes of laws or regulations or other acts of government, labor disputes, strikes, riots, mobs, fires, floods, wars, embargoes, impossibility to obtain necessary material, labor, machinery, or transportation.