TERAPAQ’S TERMS & CONDITIONS

THE FOLLOWING TERMS & CONDITIONS APPLY TO EVERY ORDER PLACED BY A CUSTOMER (“CUSTOMER”) WITH TERAPAQ FOR PACKAGING, LABELING AND OTHER RELATED PRODUCTS AND SERVICES.

Section 1.  Description of Products and Services –

(a) TERAPAQ will provide labels, packaging and other products identified on the Acknowledgment form (acceptance of order placed) sent from TERAPAQ to Customer, including pricing, subject to these Terms & Conditions.  However, Customer shall be solely and exclusively responsible for all art/design and art/design proofing.

(b) Any change requested by Customer which causes or results in any change in labeling, design or packaging shall be at Customer’s sole cost and expense.

Section 2. Customer’s Warranties and Representations; Customer’s Indemnification of TERAPAQ

Customer  warrants and represents to TERAPAQ that: (a) Customer has full right, title, license and authority  to use, provide and transfer to TERAPAQ any and all drawings, specifications, plans, designs and data in connection with the Packaging and the Products (collectively “the Specifications”), (b) Customer is the legal and equitable owner of the Packaging, the Specifications and the Products, and it has full right, title and authority to deliver the Packaging to TERAPAQ, and (c) no other person or entity has any right, title or interest in, or lien or encumbrance against, the Packaging, Specifications and/or the Products.  Under no circumstances shall TERAPAQ be liable for any loss, damage, costs, fees or expenses arising out of, relating to or connected with any claim for patent or copyright infringement, or otherwise pertaining or relating to the Packaging, the Specifications and/or the Products so long as processed and shipped in accordance with Customer’s Specifications. Provided further, Customer shall indemnify and hold TERAPAQ harmless from and against any and all causes of action, claims, damages, losses, costs, fees and expenses (including but not limited to attorneys’ fees, expert witness fees, and litigation-related costs and expenses) (“the Third Party Claims”) arising out of, relating to or connected with any breach of these Terms and Conditions by Customer, including the defense of any Third Party Claims, and upon TERAPAQ’s request, Customer shall undertake, at its sole cost and expense, to defend any such action which may be brought against TERAPAQ, and to pay any and all fees, costs, expenses and damages associated therewith.

Section 3. Acceptance of Order.  

(a) TERAPAQ’s acceptance of Customer’s order is expressly subject to the terms and conditions of this document, and shall become effective upon either (i) Customer signing TERAPAQ’s Acknowledgement form and sending it back to TERAPAQ, or (ii) Customer accepting the Products provided.  All orders are accepted by TERAPAQ with the understanding that they are subject to: (i) TERAPAQ’s ability to obtain the necessary raw materials, and (ii) TERAPAQ’s current manufacturing schedules, as well as government regulations, orders, directives or restrictions in effect from time to time.   

(b) No order shall be changed, modified or canceled unless written notice of such change, modification or cancellation is made, and there has been written acceptance by TERAPAQ at least seven (7) days before processing has been scheduled to start.  If notice is given and accepted later than seven (7) days before such scheduling has occurred, Customer will be charged for any costs incurred as a result thereof, including but not limited to being billed for Packaging made, as well as for all costs of Packaging discarded because of such changes.

Section 4.  At-Will Business Relationship – In addition to immediate termination for any breach or default by either party of any of these Terms and Conditions, it is acknowledged and agreed that the business relationship between the parties is on an at-will basis, meaning either party can at any time cease transacting business with the other, except for completion of orders previously placed and payment of monies owed to TERAPAQ.  

Section 5.  Estimated Lead and Production Times – Estimated lead times are three to four weeks from final approval of art design on digital flexible packaging, two to three weeks from final art approval for labels and folding cartons, and six to twelve weeks from final art approval on flexo or retrogravure jobs.  These time frames are estimates only though, and TERAPAQ shall have no liability or responsibility if these times extend longer than estimated, particularly if any such extension results from facts, events or circumstances beyond TERAPAQ’s control.

Section 6. Terms of Payment; Amounts Owed on Customer’s Failure to Pay

(a) Terms are net thirty (30) days from TERAPAQ’s invoice date, and any payments not made within that time period shall be subject to a finance charge of two (2%) percent per month, i.e. twenty-four (24%) percent annually.  Further, if Customer fails to perform in any way under these terms and Conditions, including but not limited to timely payment in full of TERAPAQ’s invoices, Customer shall be responsible to reimburse TERAPAQ for all of its attorneys’ fees and litigation costs and expenses incurred, the latter including but not limited to record court costs, expert witness fees, and all other out-of-pocket and internal costs and expenses incurred by TERAPAQ, and interest shall accrue on all sums outstanding at the two (2%) percent-per-month rate specified above, which rate of interest shall continue, survive and apply even after entry of any judgment, and until the time of payment, as shall TERAPAQ’s right to recover its attorneys’ fees and costs.  

(b)  Customer shall be responsible for any and all local, state, or federal excise taxes, including but not limited to taxes on sales, receipts, gross income, business privilege, occupation, use and similar taxes applicable to the transactions between TERAPAQ and Customer.  At TERAPAQ’s discretion, any such taxes shall be added to Customer’s invoice, and shall be promptly paid by Customer in the same manner as Customer is obligated to pay the actual amount owed for services and products provided.

Section 7.  TERAPAQ Warranties and Disclaimers. –

(a) Subject to the following provisions, TERAPAQ warrants and represents that the Packaging and Products provided to Customer in connection with any of its orders shall materially conform to the Customer’s Specifications; provided however, TERAPAQ’s liability and responsibility for any alleged breach of this warranty and representation shall be limited to the exclusive remedy and damage limitations specified in subsections (c) and (d) below.

(b) OTHER THAN ANY EXPRESS WARRANTIES SET FORTH IN SECTION 7(a) ABOVE, TERAPAQ DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, IN CONNECTION WITH ANY PRODUCTS OR SERVICES SOLD OR OTHERWISE PROVIDED TO CUSTOMER, UNDER, IN CONNECTION WITH OR RELATING TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND FOR CONFORMITY TO ANY REPRESENTATION, SAMPLE OR DESCRIPTION.

(c) TERAPAQ’s sole responsibility for any Packaging or Products which does not materially conform to specifications previously agreed upon by the parties in writing, shall be to provide replacement Packaging or Products.  Provided however, if Customer does not (i) provide written notification to TERAPAQ within ten (10) days after Product has been shipped to and received by Customer, and (ii) return any alleged defective Packaging or Product to TERAPAQ, or to such address as TERAPAQ may direct, within five (5) business days following the date on which TERAPAQ provides written direction to Customer to have those items shipped/returned, Customer shall be deemed to have irrevocably and unconditionally accepted the Packaging and Products, which acceptance shall be deemed conclusive, and shall constitute acceptance under Section 2-606 of the Uniform Commercial Code 13 Pa. C.S.A. Section 2606.  Provided further, Customer shall maintain and perform quality control procedures for the purposing of monitoring and inspecting Product received by Customer, designed to identify any defects and/or deficiencies in Packaging and/or Product.

(d) UNDER NO CIRCUMSTANCES SHALL TERAPAQ BE LIABLE OR RESPONSIBLE FOR INCIDENTIAL, CONSEQUENTIAL (SUCH AS LOST PROFITS OR LOST BUSINESS), PUNITIVE OR SPECIAL DAMAGES, OR FOR TRANSPORTATION, SHIPMENT OR OTHER EXPENSES ARISING OUT OF, RELATING TO OR CONNECTED WITH ANY PACKAGING AND/OR PRODUCTS, AND CUSTOMER’S SOLE REMEDY BEING TERAPAQ’S REPLACEMENT OF THE ALLEGEDLY DEFECTIVE PACKAGING OR PRODUCTS, AS SPECIFIED ABOVE.

Section 8.  Additional Limitation of TERAPAQ’s Liability; Additional Customer Indemnification of TERAPAQ.

(a)  TERAPAQ shall not be liable for any damages, losses, costs, fees or expenses arising out of, relating to or connected with reasonable or Excusable Delays in deliveries, nor shall Customer refuse to accept deliveries, and pay for Products and/or Packaging, because of any such delays.  Excusable delays include, but is not limited to, delays caused by fires, floods, riots, strikes, unavailability of labor or materials, equipment failure, freight embargoes or transportation delays, delays or defaults by suppliers of materials or services, acts of God or of the public enemy, acts of terrorism or civil unrest, acts or regulations of any governmental agency, or any similar or related cause beyond TERAPAQ’s reasonable control.  

(B)  Customer shall indemnify and hold TERAPAQ harmless from and against any cause of action, claims, losses, costs, fees, expenses (including but not limited to reasonable attorney’s fees, expert witness fee, and out-of-pocket costs and expenses), arising out of, resulting from or connected with any matter or thing for which Customer has accepted and assumed liability and responsibility under these Terms and Conditions.

Section 9.  Non-Solicitation and Non-Circumvention – TERAPAQ acknowledges that Customer has business relationships with its customers and others with whom it does business, and Customer acknowledges that TERAPAQ has vendors and others with whom it transacts business.  As a material condition of this Agreement, each party agrees that it will not circumvent the other in an attempt to and/or in any way having the effect of circumventing, or going around, the other in an attempt to interfere in any way with the other’s business relationships with those third parties, and in particular, in order to eliminate, or reduce in any way each party’s business relationships with third parties.  Further, each party agrees that it will at no time solicit or enter into business relationships with customers or vendors of the other, with for the intent, or having the effect, of decreasing the other party’s business relationships with those vendors and/or customers, respectively.

Section 10. TERAPAQ’s Terms and Conditions to Control.

These Terms and Conditions shall, at all times, control and constitute the contract between the parties.  Notwithstanding the foregoing or anything to the contrary, by statute, agreement or otherwise, it is agreed and understood that if Customer submits any document to TERAPAQ attempting to modify, change, eliminate or alter these Terms and Conditions, either by containing terms and/or conditions inconsistent with these Terms and Conditions, such additional and/or inconsistent terms and/or alterations to the contract are specifically refused and rejected by TERAPAQ, and such terms, conditions, alterations and/or modifications shall not be binding upon TERAPAQ and shall not be considered applicable to the Packaging and/or the Products which are the subject of each Acknowledgement issued by TERAPAQ for any Customer Order, and/or to any other business transactions or dealings between TERAPAQ and Customer.  ANY ACTUAL OR ATTEMPTED ALTERATION OF THE TERMS HEREUNDER SHALL BE NULL AND VOID AND SHALL BE DEEMED NOT ACCEPTED BY TERAPAQ.

The shipment to Customer of any Packaging and Products which are the subject of this Agreement shall be conclusively controlled by and subject to these Terms and Conditions, which shall supersede any provisions, terms and conditions contained in Customer’s purchase order or any other written communication from Customer to TERAPAQ.  TERAPAQ’s performance is expressly conditioned upon Customer’s acceptance of these terms and conditions without modification.

Section 11.  Miscellaneous Provisions.

(a)  Descriptive Headings.  The descriptive headings in these Terms and Conditions are for convenience of reference only and in no way affect these Terms and Conditions.

(b)  Entire Agreement; Merger Clause; No Oral Modifications.  These Terms and Conditions constitute the complete, final and exclusive agreement of the parties hereto and supersede any prior understandings or written or oral agreements between the parties in connection with this subject matter, including any and all previous versions of this document.  These Terms and Conditions may not be modified except by a writing and signed by all parties hereto, and each party agrees not to ever offer evidence, argue or contend that the other party has waived this requirement of a signed writing to effect any such modification or change.

(c)  Choice of Law; Exclusive Jurisdiction and Venue.  This Agreement shall be governed and construed in accordance with the substantive laws of the Commonwealth of Pennsylvania, excluding its conflicts-of-laws principles.  Customer agrees and consents to the exclusive jurisdiction and venue of the Lehigh County Court of Common Pleas (or the United States District Court for the Eastern District of Pennsylvania (if federal court subject matter jurisdiction is satisfied), in connection with any and all disputes, claims, causes of action or other matters arising out of, relating to or connected with this Agreement, the Packaging or any other matter which is the subject of this Agreement.