Ball Co., Inc.
Conditions of Sale
All sales of
products (“Goods”) by Salem Specialty Ball Co., Inc. (“Seller”) are subject to the terms and
conditions of sale set forth here (the “Terms”). References to “Contract”
in these Terms includes any Purchase Order received by Seller from the buyer of
the Goods (the “Buyer”), the Invoice for such Goods issued by Seller, any other
express written contract relating to the Goods signed by the Buyer and Seller
and these Terms. Any attempt by Buyer to
insert additional or different terms and conditions into its order is rejected
PRICES: All prices are F.O.B. Seller’s plant and exclusive of any
federal, state or local sales, use or excise taxes and/or duties.
Wherever applicable, any tax will be added to the invoice as a separate charge
to be paid by Buyer. All quotations by Seller automatically expire 30
calendar days from date of issue. The price of any Goods scheduled for
shipment on a date beyond a period of 120 days from Seller’s order confirmation
is subject to increase by Seller unless otherwise stated on the Contract.
PAYMENT: Payment shall be due to Seller in full net 30 days from the
date of invoice.
LATE PAYMENT: Any amount not paid to Seller when due shall bear interest at
the rate of the lower of 18% per annum or the maximum interest rate permitted
by law, calculated from the due date for payment. If Buyer fails to make
timely payment or if, in Seller’s opinion, the financial condition of Buyer or
other grounds of insecurity warrant such action, Seller may, without limiting
its other remedies, (i) suspend shipments pending receipt of payment in advance
or other security satisfactory to Seller; (ii) accelerate the payment terms;
(iii) cancel orders; and/or (iv) terminate the Contract. Buyer shall
remain liable for all unpaid amounts and 150% of the actual cost of
material/work in progress and direct labor expended by Seller in reasonable
anticipation of its fulfillment of the Contract. If Buyer fails to make
timely payments, Seller shall be entitled to recover from the Buyer all
reasonable costs of collection incurred by it, including attorneys’ fees.
Seller may sell all or any part of the undelivered Goods with or without notice
at public or private sale, and Buyer shall be responsible for any loss or
expenses incurred by Seller in connection therewith.
CREDIT LINE: If Seller elects, in its sole discretion, to extend credit to
Buyer, Seller may (at any time) modify, limit, or cancel the credit of Buyer as
to time and/or amount, and may thereafter refuse to deliver any part of the
Goods, except against payment in cash at or prior to
CHANGES: Should Seller make any changes at the request of Buyer, the
parties shall re-negotiate the price and the time schedules quoted herein to
reflect cost or schedule adjustments caused by the changes. Seller shall
not be obligated to perform work on any changes without written agreement from
CANCELLATION: Partial or total cancellation of, or revision to, an order may
be made only by Buyer’s written request that is accepted by Seller’s written
consent and then only on the condition that Buyer reimburse Seller for all
losses and damages resulting from the cancellation or revisions, including
cancellation charges imposed by Seller. If the order calls for special
sizes or requires special materials or tooling, cancellation charges will be
made on the basis of costs incurred and time expended.
DELAYS: In the event Buyer causes Seller to delay engineering,
manufacturing, shipping, installation, or startup of production under the
Contract, any additional costs incurred by Seller shall be reimbursed by Buyer.
Should Buyer require Seller to delay engineering, manufacturing, shipping, or
startup by more than 30 days, then Seller shall invoice Buyer for a total of
100% of the value of all work completed, and the invoice shall be due and
payable net 15 days.
COMPLETE ORDERS: Seller reserves the right to call any order for standard Goods
complete if the final shipment is within 10% of the total due. On Goods
that are of a special size or require special materials or tooling, Seller
reserves the right to call the order complete if the final shipment plus or
minus 10% of the total order.
SHIPPING: Goods are shipped F.O.B. Seller’s plant and will be
suitably packed for domestic shipment, in an ambient environment suitable for
long-term storage not to exceed six months. Shipment or delivery within
the time specified under the Contract shall be subject to changes due to Events
of Force Majeure. Other terms and conditions may apply to Goods shipped
outside the contiguous
. Any extra charges incurred for
additional services, such as Buyer’s carrier or special handling by a carrier,
must be paid by Buyer. In case of shipment or delivery in installments,
each shipment or delivery shall be regarded as a separate and independent
contract. Goods held by Seller beyond scheduled delivery date for
convenience of Buyer may, in Seller’s discretion, be invoiced on date of
completion. Such Goods may, in Seller’s discretion, be subject to charges
for warehousing and other expenses incident to such delay.
SURCHARGE: A material/energy surcharge may be applied if Buyer requests
that shipments occur over a period of time in excess of 120 days. In
addition, any increase in the price of the Goods caused by increases in raw
materials and/or energy costs from the date of the Contract to the date of
final shipment shall, result in a surcharge, and be shown as a separate line
item on Seller’s invoice to Buyer.
INSURANCE AND RISK OF LOSS: The Goods supplied by Seller shall at all times after delivery
to Buyer, Buyer’s agent or transportation company, whichever occurs first, be
the sole responsibility of Buyer, and all loss or damage to said Goods or any
part thereof shall be borne by Buyer (even if Seller has arranged for
transportation), unless otherwise agreed in writing.
DEFECTIVE GOODS: Claims for defective Goods or workmanship must be verified by
Seller or an authorized representative of Seller, before return of any
Goods. Further, shipping instructions and written authorization must be
obtained from Seller before Goods are returned. All claims for shortage
or defective Goods must be made within 30 days from the date of delivery.
ACCEPTANCE: The following shall be deemed to be acceptance of the Goods by
Buyer: (i) Payment of the purchase price for the Goods; (ii) use of
the Goods in a product manufactured by Buyer; or (iii) Buyer’s resale of the
Goods. On all Goods rejected for non-conformance or for which acceptance
is justifiably revoked by Buyer due to non-conformance, and all Goods delivered
in error (including Goods in excess of the quantity ordered by Buyer), Seller
shall retrieve such Goods upon written notice from Buyer and if it does not do
so within 30 days, Buyer reserves the right to return such goods by any
FORCE MAJEURE: Seller shall be excused for delays in the performance of its
obligations hereunder due to causes beyond its reasonable control, or the
control of its suppliers, including, but not limited to acts of God, acts of
war, terrorism, riots, civil disorders, rebellions, revolutions, strikes, labor
disputes, sabotage, accident or breakdown of machinery or plant, unavailability
of transportation, restraints affecting the delivery of material or credit, any
acts by a third party, any third party products or any other cause beyond the
reasonable control of Seller, including, but not limited to failures or
fluctuations in electrical power, heat, light, air conditioning, computer
hardware and/or software or telecommunications equipment (each, an “Event of
Force Majeure”). Upon the occurrence of an Event of Force Majeure, Seller
shall be excused for such non-performance, hindrance or delay, as applicable,
of those obligations affected by the Event of Force Majeure for as long as such
Event of Force Majeure continues and Seller continues to use commercially
reasonable efforts to recommence performance whenever and to whatever extent
possible without undue delay. If the Event of Force Majeure causes a
delay of 120 consecutive days or more from the original date of performance,
Buyer shall have the right to terminate the Contract by written notice to
Seller, it being understood that the right of termination shall be the sole and
exclusive remedy of Buyer.
CONFIDENTIALITY: Buyer shall keep all proprietary or non-public information or
data confidential of or regarding Seller or the Goods, including without
limitation all pricing, shipping and payment terms and other information
disclosed and/or supplied by Seller as part of, or in conjunction with, the
LIMITED WARRANTY: The Goods will be free from defects at the time of delivery and
will conform to Buyer’s specifications, provided, however, that the
specifications are submitted to Seller in writing prior to Seller’s
commencement of work to fulfill the order. This warranty is limited to
repair, replacement or issuing of credit, as Seller may elect, of such Goods as
shall appear and be determined by Seller, upon inspection and verification, to
have been defective in material or workmanship, but does not include any
installation, labor or transportation costs. All warranty requests
require Seller’s written authorization and a new Purchase Order. After
evaluation, if deemed to be covered under warranty, the new Purchase Order will
not be charged. No warranty is made with respect to items manufactured by
others. Misapplication, misuse, revision, or alteration (i.e.,
dimensional, characteristics, chemical properties, or metallurgical properties)
of the Goods, without written approval by Seller, will void the limited warranty.
WARRANTY EXCLUSION: Except for the Limited Warranty set forth in Section 16, SELLER
PROVIDES THE GOODS “AS IS” AND MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES,
WRITTEN OR ORAL, AND ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING,
BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY OTHER WARRANTY ARISING
BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF
LIMITATION OF LIABILITY: SELLER’S TOTAL LIABILITY AND BUYER’S OR
ANY THIRD PARTY’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY TYPE
WHATSOEVER, REGARDLESS OF THE FORM OF ACTION AND ON ANY THEORY OF LIABILITY,
INCLUDING CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER TORT, ARISING FROM OR
IN CONNECTION WITH THE CONTRACT OR USE OF SELLER’S GOODS, SHALL BE LIMITED TO
PROVEN DIRECT DAMAGES ARISING FROM SELLER’S NEGLIGENCE OR BREACH OF ITS
OBLIGATIONS HEREUNDER IN AN AMOUNT NOT TO EXCEED IN THE AGGREGATE THE AMOUNTS
ACTUALLY PAID BY BUYER TO SELLER UNDER THE CONTRACT.
EXCLUSION OF DAMAGES: IN NO EVENT SHALL SELLER HAVE ANY LIABILITY, REGARDLESS OF THE
FORM OF ACTION AND ON ANY THEORY OF LIABILITY, INCLUDING CONTRACT, STRICT
LIABILITY, NEGLIGENCE OR OTHER TORT, FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY,
INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS
OF INTEREST, PROFITS, REVENUES, OR USE) SUFFERED BY BUYER, ARISING FROM OR
RELATED TO THE CONTRACT OR OTHERWISE. SELLER ALSO EXPRESSLY DISCLAIMS ANY LIABILITY
RELATED TO MISUSE OF THE GOODS, IMPROPER GOODS SELECTION, GOODS RECOMMENDATION,
OR MISAPPLICATION OF THE GOODS.
INDEMNIFICATION: Buyer shall indemnify and hold Seller, and its officers,
directors, employees and agents harmless against any and all losses, claims,
damages, judgments, liabilities, costs and expenses (including attorneys’ fees
and expenses) arising out of or in any way related to (i) Buyer’s obligations
under the Contract; (ii) Buyer’s use of or changes to the Goods; (iii) defects
in the Goods due to the specifications furnished by Buyer to Seller; and (iv)
amounts, including taxes, interest and penalties which are obligations of
TRADE TERMS; GOVERNING LAW; VENUE: The Contract shall be
governed by the laws of the State of Connecticut, excluding its conflict of
laws rules. Any and all disputes, claims, or causes of action arising out
of or in any way relating to the Contract must be brought in solely and
exclusively in the Superior Court for the State of Connecticut. Each party irrevocably accepts and submits to
the sole and exclusive jurisdiction of the aforesaid court, in personam, generally and unconditionally
with respect to any action, suit or proceeding brought by it or against it by
the other party.
SEVERABILITY AND WAIVER: If any provision hereof shall be held illegal or unenforceable
by any regulatory body or court of competent jurisdiction, such provision(s)
shall be deemed null and void and separable from, and shall in no way affect or
impair the validity or enforceability of, the remaining provisions. No
delay or omission by Seller to exercise any right or power it has under the
Contract shall impair or be construed as a waiver of such right or power.
A waiver by Seller of any breach or covenant shall not be construed to be a
waiver of any succeeding breach or any other covenant.
ASSIGNMENT: Buyer shall not assign, without the prior written consent of
Seller, any right or interest under the Contract. Any actual or attempted
assignment without Seller’s consent prior written consent shall entitle Seller
to terminate the Contract upon notice to Buyer.
AMENDMENTS: No amendment to, or change, waiver or discharge of, any
provision of the Contract shall be valid unless in writing and signed by an
authorized representative of each of Buyer and Seller.
GENERAL: The Terms set forth here supersede and take precedence over any
and all terms, including, but not limited to, any contrary terms, in any
documents (such as proposals, invoices, shipping documents, purchase orders or
other writings, whether or not preprinted or signed by Seller’s or Buyer’s
agent, employee, or representative) submitted by Buyer to Seller. If
there is a conflict or inconsistency between the Terms and the terms and
conditions of any subsequent purchase order or delivery document, these Terms
shall control. The headings in the Contract are for convenience of
reference only and shall not affect its interpretation or construction.
The provisions of the Contract which by their nature are intended to survive
the termination, cancellation, completion or expiration of the Contract,
including the payment, indemnification, limitation of liability, exclusion of
damages, confidentiality, and this Section 25 shall continue as valid and
enforceable obligations of the parties notwithstanding any such termination,
cancellation, completion or expiration. Buyer represents that it is not
insolvent, and in the event that Buyer becomes insolvent before the delivery of
the Goods, it will notify Seller in writing.