Following are the terms and conditions of sale for Plascom Industries, Inc. (hereinafter “Plascom”), a manufacturer of plastic cosmetic packaging products and related services (hereinafter Cosmetic Components):
The terms and conditions of sale contained herein apply to all quotations made and all purchase orders entered into by Plascom and acceptance by Plascom of any order by confirmation or commencement of performance shall be on the basis of these terms and conditions of sale, even though no reference is made thereto at the time of acceptance. Plascom’s failure to object to provisions contained in any communication from Buyer shall not be deemed a waiver of these terms and conditions of sale. Buyer’s assent to these terms and conditions of sale shall be deemed to be given by implication unless Buyer gives written notice of objection to Plascom promptly under receipt of this document. Any changes in the terms and conditions of sale contained herein must specifically be agreed to in writing by an Officer of Plascom before becoming binding on Plascom.
2. ACCEPTANCE OF QUOTATION
Plascom will issue Quotations and /or Proforma Invoices to confer pricing information to Buyer. By signing the quotation, issuing a purchase order against said quotation and /or proforma Invoices, and / or issuing any type of monetary deposit against said quotation and /or proforma Invoices, the Buyer agrees to all terms and conditions set forth in this document and the terms and conditions found within quotations and / or proforma invoices issued by Plascom.
3. ACCEPTANCE OF ORDERS
All orders from Buyer are subject to acceptance by Plascom, and Plascom reserves the right to accept or reject any orders in whole or in part. Any quotation or proposal is subject to change or cancellation by Plascom at any time without notice and in any event expires 30 days from its date, unless otherwise indicated therein or extended in writing by Plascom. Plascom’s quotation or proposal does not constitute an offer by Plascom, and any order or orders placed thereon are not binding on Plascom until Plascom’s acceptance in writing has been sent to the Buyer.
4. ALL ORDERS FINAL AS PLACED
Once confirmed by the Buyer, either through verbal authorization, in writing or by electronic transmission, all orders as submitted and processed via the email, fax or mail are final. Any changes requested to be made to an order after confirmation is received may be charged a $50 change order fee, and most likely will require a change to be made to the schedule and completion dates for production.
Once confirmed, any errors, inaccuracies or omissions made during the placement and/or production of an order shall be the sole responsibility of the Buyer.
No cancellations of orders will be accepted after receipt of confirmation, except with the express written consent of Plascom. For further details, please see provision 18.
Prices quoted or acknowledged by Plascom are firm for the quantities and the shipping schedules set forth in the quotation or order acknowledgement, but are subject to revision if quantities and/or shipping schedules are changed by Buyer. All Prices are in United States dollars.
Unless otherwise specifically provided for in quotation or order acknowledgement, the amount of any present or future sales, revenue, excise or other tax applicable to the products covered by this quotation or order or the manufacture or sale thereof, shall be added to the purchase price and shall be paid by Buyer, or in lieu thereof Buyer shall provide Plascom with a tax exemption certificate acceptable to the taxing authorities.
All sales are made F.O.B. shipping point. Plascom’s title passes to Buyer upon making delivery of material purchased hereunder to carrier at shipping point in good condition. All Products are shipped at Buyer’s sole risk and expense. All claims for loss or damage must be filed by Buyer with the carrier. Unless specific instructions are given by Buyer, Plascom reserves the right to select carrier and routing.
Freight charges are included in the unit price quoted by Plascom to the Buyer and based on ocean freight, unless otherwise noted or agreed upon in writing. Should the Buyer request a faster mode of transportation than that originally included in the unit price, the Buyer agrees to compensate the Plascom for the additional cost thereof.
Products shall be delivered in a packaging complying with usual customs and standards. Plascom shall not be liable for any damage caused by inadequate packaging if such packaging has been requested or accepted by the customer or if the customer has not provided specific transportation instructions to Plascom in writing.
Shipping dates are approximate and are based on prompt receipt from Buyer of all necessary information. Plascom shall not be liable for any delay, non-delivery or failure to perform due to causes beyond its reasonable control and without its fault or negligence.
Plascom reserves the right to make partial shipments. All stock components are shipped in full case loads only. For Cosmetic Components custom made to Buyer’s specifications, Plascom reserves the right to deliver up to 5% more than the exact quantity ordered, and Buyer is obligated to pay for the full quantity shipped.
9. PAYMENT TERMS
Buyer agrees to pay for the products according to the Seller’s payment terms. Plascom may invoice parts of an order separately. In the event Buyer fails to make any payment to Seller when due, Buyer’s entire account(s) with Seller shall become immediately due and payable without notice or demand.
Credit facilities are only available to Buyers who have had their application forms approved by Plascom’s credit department. Payment is due within five days from the date of invoice, unless a different term is decided by Plascom’s credit department.
All payments (checks) should be sent to:
Plascom Industries, Inc.
C/O: Accounts Receivable
2540 Corporate Place, #B100
Monterey Park CA 91754
If the Buyer wrongfully rejects or revokes acceptance of the Cosmetic Components and/or services covered hereby, or fails to pay in full the price for the Cosmetic Components when due, or repudiates this order, Plascom, shall have all the rights and remedies provided by law and, without limitation of the foregoing, may recover as damages, where permitted by applicable law, the price including a late payment and/or interest charge from due date at three percent (3%) per month on the unpaid balance, but not to exceed the maximum rate of interest permitted by law, and any costs of collections, including reasonable attorneys’ fees. As to all partially manufactured products, Plascom may, at its option, complete their manufacture, and hold Buyer responsible for their price. Upon recovery of the price, the Cosmetic Components shall become the property of Buyer.
11. PROPERTY and RETENTION OF TITLE
References in this clause to the Buyer include the Buyer and any successors or assigns of the Buyer. Property in or title to the Cosmetic Components will not pass to the Buyer until the purchase price has been paid in full. Until such payment the Buyer must:
- act in a fiduciary capacity in its relationship with Plascom;
- hold the goods as a bailee for Plascom.
- Until the purchase price is paid in full, Plascom may, at any time after the purchase price is due to be paid in accordance with these terms and conditions, enter the Buyer’s premises to retake possession of the Cosmetic Components and the Buyer hereby irrevocably licenses Plascom to do so.
If, despite (a), the Cosmetic Components are sold by the Buyer to any person before the purchase price for those Cosmetic Components is paid in full, without prejudice to any rights Plascom may have against any person, the Buyer shall (only for the purposes of protecting Plascom’s interests under this clause) be deemed to be acting as agent of Plascom in selling the goods, and the Buyer must:
- keep the proceeds of sale of the Cosmetic Components separate from any other assets of the Buyer;
- hold those proceeds for the benefit of any rights the Buyer may have against any person who purchases the Cosmetic Components with respect to that purchase including but not limited to the right to receive all moneys due by that person to the Buyer on any account, as trustee for Plascom; and
- if called upon by Plascom to do so, immediately pay those proceeds to Plascom or as Plascom directs.
- Any item which is added to or combined with the Cosmetic Components by the Buyer or any person at the direction or request of the Buyer becomes and remains the property of Plascom until property in the Cosmetic Components passes to the Buyer in accordance with this clause.
If any of the following occur:
- an administrator, receiver or manager is appointed for the Buyer;
- the Buyer is served with a statutory demand;
- the Buyer resolves, or is served with any application for orders to wind up the Buyer;
- the Buyer proposes to enter into an arrangement with its creditors;
- if an individual, the Buyer commits an act of bankruptcy;
- the Buyer proposes to cease to carry on business.
The Buyer must immediately give Plascom written notice of same.
If Plascom receives notice or otherwise becomes aware of any of the events described in (e), notwithstanding any credit terms which may apply to the goods (or any of them) any right of the Buyer (or any person exercising the rights of the Buyer, to dispose of use or otherwise deal with the Cosmetic Components in the ordinary course of business or otherwise, terminates and;
- the Buyer must immediately return the Cosmetic Components to Plascom; or
- (at the discretion of Plascom); Plascom may enter the premises of the Buyer and retake possession of the Cosmetic Components.
- To the extent permitted by any law, the Buyer shall indemnify Plascom and hold Plascom harmless against any loss, damage, costs, expenses, penalties, fines or claims suffered by Plascom arising from the exercise of the rights of Plascom under this clause.
12. MINIMUM ORDER VALUE
Plascom reserves the right to require minimum order quantities (hereinafter MOQ) and/or values.
13. INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT / PATENT
It is not the intention of Plascom to manufacture any products, which is an infringement of a patented article. Plascom makes parts strictly to the specifications furnished by the Buyer. Therefore, Plascom and its partners, vendors and assigns assumes no responsibility for researching or authenticating the rights held by any Buyer to any trademark, as it relates to any design or logo reproduced on behalf of a Buyer. Any and all liability for any act of trademark infringement rests with the Buyer. It is agreed that the Buyer shall defend and hold harmless Plascom from any and all expense involved in any claims for damages from infringements of letters of patent by the use or sale of parts made by Plascom, either as such, or as parts or units of complete entities.
14. PROPRIETARY RIGHTS.
The sale of Cosmetic Components hereunder to Buyer shall in no way be deemed to confer upon Buyer any right, interest or license in any patents or patent applications or design copyrights Plascom may have covering the Cosmetic Components. Plascom retains for itself all proprietary rights in and to all designs, engineering details, and other data and materials pertaining to any Cosmetic Components supplied by Plascom and to all discoveries, inventions, patents and other proprietary rights arising out of the work done by Plascom in connection with the Cosmetic Components or with any and all Cosmetic Components developed by Plascom as a result thereof, including the sole right to manufacture any and all such Cosmetic Components. Buyer warrants that it will not divulge, disclose, or in any way distribute or make use of such information, and that it will not manufacture or engage to have manufactured such Cosmetic Components.
Buyer covenants that it will not attempt to “reverse engineer” or otherwise discover Plascom’s intellectual property, patentable, patented or non-patented inventions, trade secrets, secret processes, or other confidential information embodied or contained in Plascom’s Cosmetic Components.
15. LIMITED WARRANTY
Plascom warrants merchandise sold by it to be free from defects in materials and workmanship, or in the case of custom made merchandise or prototypes, the specifications agreed on, under proper storage and use, for a period of six (6) months from the date of the original shipment. Buyer’s approval of prototype shall be proof that the design meets the agreed specification.
Plascom’s entire liability and obligation to Buyer under this warranty shall be expressly limited to the replacement or crediting, as Plascom may determine at its sole discretion, of any defective or nonconforming merchandise for which Buyer has first given written notice to Plascom of such defect or nonconformity in the manner as provided below. No claim under this warranty shall be valid unless within fifteen (15) days of its receipt of any merchandise hereunder, Buyer shall furnish Plascom in writing notice of any defect in materials and/or workmanship or any nonconformity with any applicable specifications, specifying in detail any such defect or non- conformity. Absent such timely notice, Buyer shall be deemed to have waived any such defect or nonconformity which could be determined based upon a reasonable inspection of such Plastic Components. With respect to orders contemplating a series of shipments of merchandise by Plascom, unless Buyer notifies Plascom in writing within fifteen (15) days of the initial shipment of any nonconformity with any applicable specifications, then Buyer shall be deemed to have waived such nonconformity with respect to subsequent shipments involving the same specifications. Other than with respect to the replacement, or crediting of defective merchandise by Plascom under the limited warranty as provided above, Plascom shall have no obligation to Buyer with respect to any monetary damages by reason of such nonconformity or defect, and in no event shall Plascom be liable to Buyer for any lost profits or consequential damages.
Plascom shall have the option, exercisable in its sole discretion, of requiring the return to it the defective merchandise, transportation prepaid, for inspection. No warranty claim will be allowed which, in the opinion of Plascom, resulted from merchandise being altered, or as a resulted from misuse, negligence or accident. In the event that some, but not all items of merchandise are defective within the terms of the limited warranty set forth above, replacement or crediting of defective merchandise at Plascom’s option shall apply only to such defective items falling within the terms of such limited warranty and Buyer shall have no right to return or seek credit for any items not so defective.
Plascom shall not bear any responsibility or liability for any product not delivered by Plascom, such as, but not limited to, other components used by the customer. Specifically, Plascom shall not be liable when the failure of one of its Products is caused by other components with which the said Products are combined by the customer or associated parties.
THE FOREGOING WARRANTIES AND REMEDIES ARE EXCLUSIVE, AND PLASCOM SHALL HAVE NO FURTHER OR ADDITIONAL OBLIGATION WITH RESPECT TO ANY COSMETIC COMPONENTS SOLD TO BUYER. ALL IMPLIED WARRANTIES, INCLUDING MERCHANTABILITY AND FITNESS FOR PURPOSE, ARE DISCLAIMED.
16. LIMITATION OF LIABILITY
Plascom’s sole liability and Buyer’s exclusive remedy for damages from any cause whatsoever (and regardless of the form of action) shall be limited to the replacement or crediting, at Plascom’s sole option pursuant to the limited warranty set forth above, of the specific Cosmetic Components that caused the damages or are the subject matter of, or directly related to the cause of action. In no event shall Plascom be liable for damages caused by Buyer’s negligence of for any lost profits, or other incidental or consequential damages, including loss to other machinery or equipment of which a product of Plascom is a part, even if Plascom has been advised of the possibility of such damages.
17. NO OTHER WARRANTIES
No employee or agent of Plascom is authorized to make warranties about the Cosmetic Components described in this agreement. ORAL OR WRITTEN STATEMENT BY PLASCOM’S EMPLOYEES OR AGENTS, INCLUDING VIA EMAIL, DO NOT CONSTITUTE WARRANTIES and shall not be relied upon by Buyer, and are not part of the agreement of sale. The entire agreement of the parties is embodied in this writing and NO OTHER WARRANTIES are given beyond those set forth herein. Buyer hereby acknowledges that it has not entered into this agreement in reliance upon any warranty or representation by any person or entity except for the warranties or representations specifically set forth herein.
The customer, having accepted the Products’ technical specifications, acknowledges having full knowledge of the design and properties of such Products and of the potential dangers associated with the Products. The customer is solely responsible in performing all necessary controls and tests on the Products.
19. FORCE MAJEURE
Plascom shall not be liable for any failure or delay in manufacture or delivery resulting from any cause beyond the reasonable control of Plascom, including by way of illustration and not by way of limitation, compliance by Plascom with any Government or military regulation, or from acts of God, fires, flood, explosion, or other casualty or accident, theft, climatic conditions, strikes, lockouts, factory shutdowns, or alterations, embargoes, outbreak of hostilities (whether or not war is declared), riots or other disorders, delays or shortages in transportation, or inability to obtain sufficient quantity of fuel, power, labor, manufacturing facilities of materials or other supplies from the usual sources of Plascom.
Neither shall Plascom be held to the price of the product in his quotation and/or order acknowledgement, in the event cost of materials needed for Plascom’s manufacturing process of the product, as the result of events listed in this paragraph, and being beyond the reasonable control of Plascom, would increase beyond what can normally be expected during the life of the contract. Should such cost increases occur, Plascom and the Buyer agree to re-negotiate the price for the Cosmetic Product based on the actual cost increases to Plascom for the Buyer’s Cosmetic Product as a result of said price increases of materials used in the manufacturing of the product in question.
Delays due to the act of God or other circumstances over which Plascom has no control do not make Plascom responsible for airfreight charges or other faster modes of transportation that the Buyer may request to make up for any delay caused by circumstances as described above.
The cancellation or termination of all or part of any order shall be subject to Plascom’s prior written consent. Cancellation of orders will be subject to a Cancellation Charge equal to 20% of the Purchase Order Value, or the value of material and work performed on the cancelled Cosmetic Product at the time of cancellation, whichever is greater.
21. INSPECTION OF PRODUCTS
Cosmetic Components shall be inspected by Buyer upon delivery and services, upon performance. Notice of rejection or claim for shortages, damaged product or other non-conformity must be submitted by the Buyer to Plascom in writing within 14 days of shipment or performance, and must specify the particular respects in which the delivery, products, or services, as applicable, are non-conforming. The Buyer shall have no right to exercise remedial rights until notice of non-conformity has been given to Plascom and Plascom afforded a reasonable opportunity to cure such non-conformity, if appropriate.
22. RETURN POLICY
NO RETURNS ARE ALLOWED ON ANY CUSTOMIZED OR DECORATED COSMETIC COMPONENTS. Returns are allowed only on Stock Cosmetic Components (Stock Cosmetic Components are Cosmetic Components with no additional Silk Screening, Pad Printing, Anodizing, Frosting, Soft-Touch Painting, or any other additional decoration) only upon approval from Plascom.
NO UNAUTHORIZED RETURNS WILL BE ACCEPTED. For Stock Cosmetic Components, Buyer must obtain a Return Material Authorization (RMA) Number from Plascom prior to shipping any Stock Cosmetic Product back to Plascom. All Returns to be sent prepaid by Buyer. At the discretion of Plascom, unused and undamaged Stock Cosmetic Components may, under certain circumstances, be accepted back for credit or exchange. A restocking charge of 20% may apply. Please consult Plascom.
23. CHARGE-BACK FEES
Buyer understands and agrees that all products purchased, produced and shipped are considered a final sale for which no refunds will be given or provided except as expressly provided herein. As such, Buyer agrees and acknowledges that by purchasing any Cosmetic Product from Plascom, Buyer shall be solely responsible for and shall bear (and/or reimburse) Plascom for any charge-backs or fees issued to Plascom from any credit card company, merchant bank or other source of payment that is issued at the request of the Buyer outside of the expressly provided methods of return. Stated another way, should Buyer request a refund or charge cancellation from any credit card company, merchant bank or other source of payment processing against the purchase of Plascom Cosmetic Components, and should said card company, merchant bank or other source thereafter impose any fee or direct any charge back fee or amount to Plascom at the request of said Buyer, Buyer shall reimburse Plascom for the amount of said charge back fee and the initial purchase amount (the “total amount”). By purchasing any Cosmetic Product from Plascom, Buyer expressly authorizes Plascom to direct the stipulated payment/charge to be made to Buyer’s credit card account (the same being the credit card account used in the initial purchase of said Cosmetic Product) in the amount of said “total amount” to Plascom for such reimbursement, plus a twenty-five percent (25%) administrative fee to cover the costs and time involved with this process. Buyer acknowledges and agrees that the policy set forth in this paragraph provides for reimbursement to Plascom for fees incurred, is fair and reasonable and is not a penalty clause or provision.
This Agreement shall in all respects be governed by the laws of the State of California. The California state courts of Los Angeles County, California (or if there is exclusive federal jurisdiction, the United States District Court for the Southern District of California) will have exclusive jurisdiction and venue over any dispute arising out of this agreement, and Buyer hereby consents to the jurisdiction of such courts. Disputes between the parties may be settled by arbitration according to the Rules of the American Arbitration Association with three arbitrators.
No addition to, deletion from, or modification of any of the provisions of these Terms and Conditions of Sale shall be binding upon Plascom, unless made in writing and signed by a duly authorized officer or employee of Plascom. Oral statements, warranties, or representations made by any agent or employee or representative of Plascom are not authorized by Plascom and shall be of no force or effect. These Terms and Conditions of Sale are the final, complete and exclusive statement of the terms of the agreement between Plascom and Buyer. ANY DIFFERENT OR ADDITIONAL TERMS PROPOSED BY BUYER ARE OBJECTED TO AND HEREBY REJECTED.
A waiver by Plascom of any default by Buyer or of any of these Terms and Conditions of Sale shall not be deemed to be a continuing waiver or a waiver of any other default or of any other of these Terms and Conditions of Sale, but shall apply solely to the instance in which the waiver is directed.
This agreement may not be assigned by Buyer without Plascom’s written consent.
The headings contained in this agreement are for convenience of reference only and shall in no way define or limit the provisions hereof.
If any provision of these terms and conditions are deemed unenforceable, such provision shall be severed and in no way should affect the remaining provisions, which will remain in full force and effect.
28. BUYER’S UNDERSTANDING
Buyer represents and warrants: (A) that it has read and understood these terms and conditions, and (B) that these terms and conditions are fair and reasonable to Buyer.