KAUFMAN CONTAINER COMPANY'S TERMS AND CONDITIONS OF USE
Updated: January 2021
Kaufman Container Company (“Kaufman”, “us”, “we”, “our”) owns and operates www.kaufmancontainer.com (the “Site”). These Terms of Use, the Privacy Policy, and all policies posted on our sites set out the terms for the user (“you”) on which we offer you access to and use of our Site, applications and tools (collectively "Services"). All policies are incorporated into this user agreement. You agree to comply with all of the above when accessing or using our Services. PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY.
ACCEPTABLE USE
By using this Site, you are deemed to have agreed to use this Site only for lawful purposes and only for its intended purpose. The Site is made available for information purposes only and is controlled by Kaufman from its offices within the State of Ohio. Visitors who choose to visit this Site from this or other jurisdictions do so on their own initiative. Those visitors are solely responsible for compliance with all applicable federal, state, local and foreign laws, rules and regulations in connection with their use of this Site.
The Site is provided for your and others' personal, non-commercial interest only in the products, services and general business of Kaufman, subject to the terms of these terms and conditions of use and all modifications thereto, and the rules that may be published from time to time by Kaufman. You may not sell any Content (as defined in this section below) or other material from the Site for any other purpose. All such uses are strictly prohibited without the express prior written consent of Kaufman, which may be given or withheld in our discretion. You agree that you will not in any way modify, add to, delete from or tamper with any Content or feature of the Site or interfere in any way with its proper functioning.
This Site is intended to provide users with general information about the products, services and general business condition and operations of Kaufman. This Site may be used in the future to purchase products and services of Kaufman or sell to it your products and services. You and other users are invited to post appropriate knowledge or commentary on the Site. The posted information may be viewed by you and/or other users of the Site. By posting information, data, text, photographs, graphics, video, messages or other materials ("Content"), in or otherwise using any communications service, chat room, message board, newsgroup, software library, or other interactive service that may be available to you on or through this Site, you agree that you are solely responsible for the origination of such Content. This means that you, and not Kaufman, are entirely responsible for the accuracy, completeness and ownership of all Content that you upload, post, email or otherwise transmit via the Site.
Without limitation of the foregoing, you agree to not use the Site to:
Upload, post, email or otherwise transmit any Content that is unlawful, harmful, threatening, embarrassing, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, deceptive, fraudulent, invasive of another's privacy, or hateful;
Upload, post, email or otherwise transmit any Content that victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
Harm minors in any way;
Impersonate any person or entity, including, but not limited to, a Kaufman official, or falsely state or otherwise misrepresent your affiliation with a person or entity;
Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
Upload, post, email or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
Upload, post, email or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights ("Rights") of any party;
Upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation, except in those areas that are designated for such purpose, provided that even in those areas where advertising and promotional materials may be allowed, you shall not upload, post, email or otherwise transmit "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
Upload, post, email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or any other similarly destructive activity;
Disrupt the normal flow of dialogue, cause a screen to "scroll" faster than other users of the Service are able to type, or otherwise act in a manner that negatively affects other users' ability to engage in real time exchanges;
Interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or
Intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law.
You also agree that you will not collect or store information about the users of this Site or the Content posted by others on this site or use such information for any purpose inconsistent with the purpose of this Site or for the purpose of transmitting or facilitating transmission of unsolicited bulk electronic mail or communications. You acknowledge that Kaufman does not pre-screen, monitor, review or edit the Content posted by users. However, Kaufman and its designees have the right (but not the obligation) at their sole discretion to refuse or remove any Content, in whole or part, that, in Kaufman’s judgment, does not comply with these Terms and Conditions or is otherwise undesirable, inappropriate or inaccurate. Kaufman is not responsible for any failure, non-failure or delay in removing such Content. You acknowledge and agree that Kaufman may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms and Conditions; (c) respond to claims that any Content violates the rights of third-parties; or (d) protect the rights, property, or personal safety of Kaufman, its users and the public.
You understand that the technical processing and transmission of the Site, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. Kaufman assumes no responsibility for the deletion or failure to store postings or other information submitted by you or other users to Kaufman.
Any or all postings on the Site may be purged periodically in Kaufman’s sole discretion. You acknowledge and agree that Content you view or post is at your own discretion and risk, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by or submitted to Kaufman. You further acknowledge and agree that the views expressed by you and other Users do not necessarily reflect the views of Kaufman and Kaufman does not support or endorse any content or otherwise posted by you or any User.
IMPERMISSABLE USE
The content on this Site is intended for informational purposes only. Except as expressly permitted, you may not modify, copy, publish, display, transmit, adapt or in any way exploit the content of the Site. Only if you obtain prior written consent from us -- and from all other entities with an interest in the relevant intellectual property -- may you publish, display or commercially exploit any material from the Site, such consent may be given or withheld in our discretion. To seek our permission, you may write to Kaufman Company, 1000 Keystone Parkway, Suite 100, Cleveland, OH 44135 or to sales@kaufmancontainer.com. If permission is granted by us and by all other entities with an interest in the relevant intellectual property, you may not change or delete any author attribution, trademark, legend or copyright notice. You must abide by all additional copyright notices or other restrictions contained on the Site.
By accessing and using the Site, you agree not to:
disrupt this Site;
interfere with or compromise the security of this Site, or any computer, server, account, network, data, software and/or hardware associated with this Site;
disrupt or interfere with any other visitor's use of this Site;
attempt to obtain access to any portion of this Site, any computer, server, account, network, software and/or hardware associated with the Site, from which you are restricted;
use, or encourage, promote, facilitate or instruct others to use, the Site for any illegal, harmful, fraudulent, infringing or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, fraudulent, infringing or offensive;
breach or circumvent any laws, third-party rights or Kaufman policies;
circumvent any technical measures we use to provide the Site;
infringe the copyright, trademark, patent, publicity, moral, database, and/or other intellectual property rights (collectively, "Intellectual Property Rights") that belong to or are licensed to Kaufman; and
infringe any Intellectual Property Rights that belong to third parties affected by User’s use of the Online Service.
PRIVACY
Your privacy and data protection are important to us. Kaufman undertakes to respect the statutory conditions on data protection. Please review our Privacy Policy, to understand our practices.
UNSOLICITED MATERIALS
In operating this site, Kaufman is seeking Content that originates with you and other Site users. Kaufman does not solicit nor does it wish to receive any confidential, secret or proprietary information or other material from you through the Site or Kaufman’s email addresses, or in any other way. Any information or material submitted or sent to Kaufman by any means will be deemed not to be confidential or secret. By submitting or sending information or other material to Kaufman you represent and warrant that the information is original to you and that no other party has any rights to the material.
USER'S GRANT OF LIMITED LICENSE
By submitting or sending information or other material to Kaufman you grant Kaufman the royalty-free, unrestricted, world-wide, perpetual, irrevocable, non-exclusive and fully sub-licensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such Content (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed.
You also warrant that any "moral rights" in posted materials have been waived.
INTELLECTUAL PROPERTY
All information, content and material made available by Kaufman through this Site, including, without limitation, any computer code, design, text, drawings, photographs, graphics, sound recordings and video recordings as well as any copyrights, trademarks, patents or other intellectual property or proprietary rights comprising the Site or any component or element of the Site is owned by or licensed to Kaufman. The compilation of the Content on this Site is the exclusive property of Kaufman and its licensors and is protected by U.S. and international copyright law. Kaufman and its licensors retain all rights in the Content of this Site.
The Content may not be used in connection with any service or information that is not Kaufman's or in any manner that is likely to cause confusion among consumers or that disparages Kaufman. The rights granted herein terminate automatically if you breach these Terms of Use. Upon termination of these rights, you must immediately destroy any Content you displayed or printed.
Kaufman Container and all derivations thereof are trademarks of Kaufman. Other marks used on the Site are either registered trademarks, trademarks, trade names, service marks, or otherwise protected property of Kaufman and may not be used, copied or imitated without the prior written consent of Kaufman.
DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA)
Kaufman respects the intellectual property rights of others and is committed to complying with U.S. copyright and related laws and requires our users do the same.
If you are a copyright owner or an agent of a copyright owner and believe, in good faith, that any materials provided on the Site infringe your rights, contact Kaufman at sales@kaufmancontainer.com and provide the following information:
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
A description of the copyrighted work that you claim has been infringed, including the URL (i.e., web page address) of the location where the copyrighted work exists or a copy of the copyrighted work;
Identification of the URL or other specific location on Kaufman's Site where the material that you claim is infringing is located;
Your address, telephone number and e-mail address;
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
A statement by you made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf.
LINKED SITES
Consistent with the goal of Kaufman, you may be able to link to third parties' Sites ("Linked Sites") from the Site. Linked Sites are not, however, reviewed, controlled or examined by Kaufman in any way and Kaufman is not responsible for the content, availability, advertising, products or other materials of any such Linked Sites, or any additional links contained therein. These links do not imply Kaufman’s endorsement of or association with the Linked Sites. It is your sole responsibility to comply with the appropriate terms of service of the Linked Sites as well as with any other obligation under copyright, secrecy, defamation, decency, privacy, security and export laws related to the use of such Linked Sites and any content contained thereon. In no event shall Kaufman be liable, directly or indirectly, to anyone for any loss or damage arising from or occasioned by the creation or use of the Linked Sites or the information or material accessed-through these Linked Sites. You should direct any concerns to that site's administrator or webmaster. Kaufman reserves the exclusive right, at its sole discretion, to add, change, decline or remove, without notice, any feature or link to any of the Linked Sites from the Site and/or introduce different features or links to different users.
KAUFMAN, ITS AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS AND ANY SUCH SIMILARLY SITUATED PERSONS OR ENTITIES DO NOT GUARANTEE THE ACCURACY, COMPLETENESS, USEFULNESS OR EXISTENCE OF ANY CONTENT SUPPLIED BY VISITORS OR THIRD PARTIES. WE DO NOT WARRANT THE MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY CONTENT SUPPLIED BY VISITORS OR THIRD PARTIES.
WE SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR ANY LOSS, DAMAGE OR HARM TO PROPERTY OR PERSON CAUSED BY YOUR OR ANYONE ELSE'S RELIANCE ON CONTENT AVAILABLE ON THIS WEBSITE THAT IS THE PROPERTY OF VISITORS OR THIRD PARTIES. YOU ARE SOLELY RESPONSIBLE FOR EVALUATING AND ACTING ON ANY CONTENT AVAILABLE ON THIS WEBSITE.
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
THE SITE AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS AND OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SITE ARE PROVIDED BY KAUFMAN ON AN "AS IS" AND "AS AVAILABLE" BASIS. KAUFMAN MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, CONCERNING THE OPERATION OF THE SITE, OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SITE. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK.
KAUFMAN DOES NOT GUARANTEE THE ACCURACY, ADEQUACY OR COMPLETENESS OF ANY INFORMATION PROVIDED AT OR THROUGH THIS WEBSITE (BY LINK OR OTHERWISE) AND IS NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS, OR FOR THE RESULTS OBTAINED FROM USE OF SUCH INFORMATION.
KAUFMAN MAY TEMPORARILY OR PERMANENTLY SUSPEND ACCESS TO OR DISCONTINUE THIS WEBSITE OR ANY PAGE OF THIS WEBSITE AT ITS DISCRETION, AT ANY TIME, WITHOUT NOTICE. WE DO NOT WARRANT THAT THIS WEBSITE WILL BE AVAILABLE AT ALL TIMES OR THAT A VISITOR’S USE WILL BE CONTINUOUS AND/OR ERROR FREE. WE DO NOT MAKE ANY WARRANTIES THAT THE CONTENT, INFORMATION AND/OR SERVICES AVAILABLE THROUGH THIS WEBSITE ARE ACCURATE, RELIABLE, OR CURRENT.
YOU AGREE THAT KAUFMAN IS NOT RESPONSIBLE FOR AND CANNOT GUARANTEE AGAINST THE INTRODUCTION OF VIRUSES OR WORMS, OR UNAUTHORIZED USERS ATTEMPTING TO ACCESS, OR OBTAINING ACCESS TO THIS WEBSITE OR YOUR COMPUTER OR OTHER SYSTEMS FROM OR THROUGH THIS WEBSITE.
TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, KAUFMAN DISCLAIMS, TO THE MAXIMUM EXTENT PERMISSIBLE, ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT IN RELATION TO THE CONTENT, INFORMATION, SERVICE OR PRODUCTS PROVIDED AT, THROUGH OR IN CONNECTION WITH THIS WEBSITE.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
IN NO EVENT WILL KAUFMAN, ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, SUBSIDIARIES AFFILIATES, SUCCESSORS OR ASSIGNS, BE LIABLE TO ANY PARTY (i) FOR ANY INDIRECT, DIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR INFORMATION, AND THE LIKE), OR ANY OTHER DAMAGES ARISING IN ANY WAY OUT OF THE AVAILABILITY, USE, RELIANCE ON, OR INABILITY TO USE THE WEB SITE, EVEN IF KAUFMAN CONTAINER SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE; OR (ii) FOR ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN, OR DESTRUCTIVE PROPERTIES OF THE WEB SITE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, KAUFMAN’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
INDEMNIFICATION
By agreeing to use the Site, you agree to defend, indemnify and hold Kaufman, its affiliates, parents, subsidiaries officers, directors and employees harmless from and against any claims, causes of action, damages, liabilities, losses, costs, or expenses (collectively, "Losses"), including reasonable legal fees, made by any third party due to or arising in connection with: (i) your breach of these Terms of Use; (ii) your use of this Site or your use of the Content; (iii) personal injury or tangible and intangible property damage, casualty or loss suffered or incurred in connection with your use of the Site (including loss of data) or Content or other information services available by or through your use of the Site or Content (including damage, casualty or loss arising from the malicious acts of third parties which could have been prevented or avoided by you using reasonable protective means); and (iv) your acts and omissions in connection with your use of the Site or Content. You also agree to indemnify, defend and hold harmless Kaufman from and against any Losses that Kaufman incurs or may incur arising from, resulting from, or arising in connection with your providing to Kaufman inaccurate or untruthful information via the Site whether to gain access to the products or services provided through this Site or otherwise.
FORWARD-LOOKING STATEMENTS
This Site contains information and press releases about which disclaims any duty or obligation to update such information. Certain statements included in such information and press releases which are not historical facts are “forward-looking statement: made pursuant to the safe harbor provisions of the Securities Exchange Act of 1934. Such forward-looking statements are made based upon management’s expectations and beliefs concerning future events impacting Kaufman, and therefore involve a number or uncertainties and risks, including, but not limited to, those described in Kaufman’s latest Annual Report and Kaufman Container’s other filings with the Securities and Exchange Commission. As a result, the actual results of operations or financial condition of Kaufman could differ materially from those expressed or implied in such forward-looking statements.
MODIFICATION
We may make changes to these Terms of Use and any Site-related policies, rules or guidelines at any time in our sole and absolute discretion. The Site and the products, services and programs described in the Site may be changed, eliminated or updated without prior notice. Revised terms will be effective when posted to the Site unless otherwise provided by us in the revision. We will provide notice of any changes on the Site or by contacting you. Your continued access or use of our Services constitutes your acceptance of the amended terms.
HEADINGS
The section headings used in these Terms of Use are for reference and the convenience of the readers and shall not constitute part of the Terms of Use for interpretation purposes.
SEVERABILITY
If any provision of these Terms of Use is held invalid or unenforceable in whole or in part in any jurisdiction, that provision shall be ineffective in that jurisdiction without affecting the validity of enforceability of the remaining provisions of these Terms of Use.
INTEGRATION CLAUSE
The Terms of Use, the Privacy Policy, and all policies posted through our Site set forth the entire understanding and agreement between you and Kaufman concerning your use of the Site, the Content, and all other information and services available on this Site.
Financial TERMS AND CONDITIONS
1. Delivery. Seller assumes no responsibility for its inability to supply all or any part of the goods ordered by reason of Acts of God, war, riots, labor disputes or shortages, material shortages, breakage of machinery, molds or apparatus, court orders or decrees and any other cause beyond the control of Seller. Seller reserves the right, in its sole and absolute discretion, to allocate goods or materials in short supply to its inventory or among its customer (regular or new), or both, as it determines without any liability for failure to make delivery in accordance with any accepted order. Purchaser agrees to accept delivery as soon as reasonably possible after the cause of such delay is removed.
2. Credit. All sales are made on the basis of immediate cash payment unless expressly stated to the contrary on the face hereof. Seller reserves the right at any time and from time to time to extend and revoke, as to any Purchaser and as to any order, such credit terms as it determines, including the right to require that payment be made in full or in part prior to the shipment of all or any part of an order. Seller reserves the right to assess a 1 ½% service charge, per month, for invoices which remain unpaid, in full or in part, for more than 30 days after receipt of goods
3. Shipping Terms. Unless explicit shipping instructions have been given Seller by Purchaser, Seller shall use commercially reasonable judgment shipping the goods to Purchaser. In the event pallets or any containers owned by Seller are shipped with the goods, Seller may make a reasonable deposit charge therefor, to be refunded or credited upon the return of such pallets or other container in good condition, ordinary wear and tear excepted. To the extent that Purchaser has given Seller specific shipping instructions, Seller will comply with those instructions to the extent practicable; provided, however, that Seller assumes no liability for its failure to comply. Seller reserves the right (a) to invoice Purchaser for, and/or to ship, any products at any time on or after date of manufacture or Purchaser's initial requested shipping date as shown on the face hereof, whichever is the later, (b) to transfer to its general stock any products ordered by Purchaser for which Seller shall have been given no instructions for shipment to be made within four (4) weeks following date of manufacture or Purchaser's initial requested shipping date as shown on the face hereof, whichever is the later; or (c) to resell for any prices and on any terms Seller may choose, or to scrap, any products for which Purchaser shall not have requested that shipment be made within six (6) months following Purchaser's initial requested shipping date or date of manufacture, whichever date shall last occur, and to invoice Purchaser for such products according to Seller's then current price list less net proceeds from any resale or any net scrap value.
4. Patents – Trademarks. Purchaser agrees to indemnify and save Seller harmless of and from all claims for the infringement of any Letters Patent, Trademark, for unfair competition or otherwise arising out of the Purchaser's design or specifications or Seller's compliance with Purchaser's instructions ; and Purchaser agrees to promptly pay or secure any judgment and comply with any and all court orders entered in connection with such claims and to pay Seller's expenses (including a reasonable attorneys' fee) in defending any such claim, action or proceeding. To the extent that Purchaser has given no instructions to Seller with respect to the design or specifications of the product, Seller's sole liability hereunder shall be for the cost of the goods sold hereunder; provided, however, Purchaser must notify Seller within fifteen (15) days after the commencement of any claim or suit involving Purchaser in which any infringement is alleged, and if Seller is affected, Purchaser shall permit Seller to completely control the Defense or compromise of any allegation of infringement.
5. NO WARRANTY. SELLER MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS COVERED HEREBY UNLESS EXPRESSLY SO STATED ON THE FACE HEREOF. NOTWITHSTANDING ANY TECHNICAL HELP WHICH SELLER HAS OFFERED OR PURCHASER HAS REQUESTED OF SELLER, PURCHASER AFFIRMS THAT NO SUCH WARRANTIES HAVE BEEN MADE AND PURCHASER HAS NOT RELIED UPON SELLER'S SKILL OR JUDGMENT IN FURNISHING OR SELECTING GOODS SUITABLE FOR ANY PARTICULAR PURPOSE, AND PURCHASER IS CAUTIONED TO SATISFY HIMSELF OR ITSELF THAT THE GOODS ARE FIT FOR THE USE TO WHICH PURCHASER INTENDED TO PUT THE SAME. PURCHASER ASSUMES THE RESPONSIBILITY FOR UNDERTAKING ALL TESTING NECESSARY TO DETERMINE FITNESS FOR EACH CONTEMPLATED USE. SELLER DISCLAIMS ALL LIABILITY FOR LOSS OCCASIONED BY INJURY OR DAMAGE TO PERSONS OR PROPERTY ARISING OUT OF THE USE, HANDLING OR POSSESSION OF SUCH GOODS.
6. Loss, Defect or Damage. Seller shall recognize no claim for shortages, defects or damage to merchandise unless the same is noted by the Purchaser on the delivery receipt at the time of delivery and return to the Seller within five (5) days alter delivery. Nothing herein shall be construed to require Seller to replace damaged or defective goods or to make up shortages when such damage, defect or shortage would not otherwise be its responsibility. Notwithstanding the foregoing, or any agreement to pay freight or other transportation charges. Seller shall have no liability for loss or damage to goods occurring once such goods are no longer under Seller's direct control.
7. Quantity. Unless expressly stated on the face hereof to the contrary, delivery of not less than ninety (90%) percent of any order will be considered a complete fulfillment of the order. In case of an over-run, Seller may deliver and Purchaser will accept any such excess of up to ten (10%) percent of the order and Purchaser agrees to pay for such permitted excess.
8. Tools and Molds. Unless specifically noted on the face hereof to the contrary, Purchaser agrees that such tools and molds as are ordered hereunder, shall remain the property of Seller, to be used exclusively for the production of goods for the Purchaser. Seller agrees to retain said tools and molds for a period not to exceed two (2) years following the completion of the most recent production order and, during such time and at its own expense, to perform nominal repair and maintenance of such tools and molds. Thereafter, Seller reserves the right to destroy or dispose of any such tools and molds in any manner as it deems fit. All changes in tools and molds requested by Purchaser are made at Purchaser's risk and expense.
9. Limit of Liability. In the event of shortages, damaged or defective goods for which Seller shall otherwise be responsible, Seller's liability whether based in contract, tort, strict liability, negligence or other shall not exceed the purchase price of such goods or, at the election of Seller, the repair and replacement of such defective, damaged or undelivered goods. In no event shall Seller be responsible for incidental, consequential or special damages as a result of defects, damages or short ages, including, but not limited to, losses arising from Purchaser's failure to cease filling defective containers after such defect has been discovered. Transportation charges for all goods returned shall be the responsibility of the Purchaser unless expressly agreed to the contrary in writing by the Seller. For purposes of these terms and conditions, goods shall be deemed defective only in the event Purchaser has performed and completed an inspection made in strict compliance with Military Specification 1 05D (as the same shall be in force and in effect on the date of shipment) and delivered the report of inspection to Seller within 5 days after the delivery of any shipment
10. Storage. Seller reserves the right to assess storage charges on all merchandise held in storage by Seller in excess of thirty (30) days following completion of the order or thirty (30) days after the Purchaser's requested availability date, whichever is later. Except as stated herein to the contrary, no merchandise may be returned without the written authorization of the Seller, and Seller reserves the right to impose a reasonable restocking charge for any merchandise which Seller accepts for return when not otherwise required to do so.
11. Substitutions. Unless expressly stated in writing to the contrary, Seller reserves the right to select its source of raw materials, suppliers or producers for the Purchaser's goods.
12. Purchaser’s Breach. In the event of any breach of any provision of this contract by Purchaser, Seller, at its option without prejudice -to any other remedy or remedies which Seller may have against Purchaser for such breach, may (a) without affecting in any way the obligation of either party in respect of further shipments hereunder, regard each shipment as a separate and independent sale on the terms and conditions applicable hereunder, or (b) terminate this contract as regards further shipments and declare the obligations of Purchaser for all shipments made due forthwith, but Purchaser shall remain liable to Seller for all loss and damage sustained by reason of any such breach. Seller's right to require performance of Purchaser's obligations hereunder shall not be affected in any way by any previous waiver, forbearance or course of dealing.
13. Governing Law. The laws of the state of Ohio applicable to contracts made and performed in the state of Ohio shall govern in any dispute arising hereunder. Any dispute arising out of this Agreement shall first be submitted, within thirty days of the date the dispute arises, to mediation pursuant to the Commercial Dispute Resolution Procedures ("Procedures") of the American Arbitration Association in Cleveland, Ohio. Any agreement regarding settlement reached at the mediation shall be reduced to writing and signed by the parties, no later than seven days after the conclusion of the mediation. If the mediation is unsuccessful, then the dispute shall be submitted, no later than fourteen days after the mediation, to arbitration before a single Arbitrator, which shall be conducted pursuant to the same Procedures and shall occur no later than forty-five days after the Demand for Arbitration is filed with the American Arbitration Association. The parties shall share equally the fees of the Mediator and, if applicable, the fees of the Arbitrator. The award rendered by the Arbitrator shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. Any dispute resulting in litigation shall be tried in a court in Northeast Ohio.
14. Benefit. The terms of these conditions shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns. Anything herein to the contrary notwithstanding, this contract is not assignable by Purchaser, except with the written consent of the Seller, and the same shall terminate at the option of the Seller in the event of any voluntary or involuntary bankruptcy, receivership, insolvency, or reorganization proceedings of, by or against Purchaser, but without thereby waiving any claim for damages which Seller may have against Purchaser.
15. Miscellaneous. These terms and conditions constitute the entire agreement and understanding of the parties, and all prior negotiations, undertakings, warranties and representations, whether written or oral are merged herein.
16. Taxes. If any tax is now or shall hereafter be imposed or increased by any federal, state or municipal taxing authority, upon the manufacture, sale, transportation or delivery of any items covered hereby, which tax or increase Seller is required to collect or pay, the price to be paid by Purchaser hereunder shall be increased by the amount of any such tax or increase in tax.
17. These goods have been produced to comply with all provisions of the Fair Labor Standards Act of 1938, as amended.
18. CUSTOMER PURCHASE ORDER SHALL BECOME EFFECTIVE UPON FINAL APPROVAL AND EXECUTION BY SELLER IN CLEVELAND, OHIO AND EXPRESSLY CONDITIONED UPON PURCHASERS ASSENT TO SELLERS TERMS AND CONDITIONS CONTAINED HEREIN.
CONTACT US
For any questions or inquiries related to these Terms of Use, the Privacy Policy, and all policies posted on our Site, please contact us at sales@kaufmancontainer.com.