Updated Sept 4, 2020
These terms and conditions (“Terms”) are an integral party of the offer from ABS Packaging, LLC, a Utah limited liability company (“Company”) and form the basis of any agreement (the “Agreement”) entered into between ABS and Customer. THESE TERMS ARE SUBJECT TO PERIODIC CHANGE OR AMENDMENT. Capitalized terms used but not otherwise defined herein shall have the meanings given to such terms in the Agreement.
ABS will invoice Customer for the Products shipped to Customer pursuant to Customer’s request. Customer agrees to pay all invoiced amounts within seven (7) days of the invoice date. Customer understands and agrees that all payments will be applied to the oldest outstanding invoice(s) first. Customer understands and agrees that interest shall accrue on all unpaid invoices older than thirty (30) days at the compounding rate of 1.5% per month. If ABS has to take any action to collect unpaid invoices, whether informally or by legal action, Customer agrees to pay to ABS all costs of collection, including but not limited to attorneys’ fees and court costs incurred by ABS. Payment shall be made by Customer in accordance with ABS’s invoice terms. All performance by ABS under the Agreement may be suspended if Customer fails to promptly pay invoices as provided in this Section.
Customer agrees that any Product(s), up to the Max Quantity specified in the Agreement, not purchased within sixty (60) days after receipt by ABS will be either (a) shipped and billed to Customer, at Customer’s expense, or (b) disposed of by ABS in a commercially reasonable manner, at Customer’s cost and expense.
In the event that Customer changes specifications for the Products listed in the Agreement, all Products currently stocked in, or en route to ABS’s facility, up to the Max Quantity, must be shipped and billed to Customer within thirty (30) days of such specification change.
In addition to the other provisions of this Agreement, Customer agrees to purchase all Products that remain stocked at ABS’s facility on the expiration date of the Agreement or upon earlier termination. Upon termination or expiration of the Agreement, at Customer’s election, cost and expense, the Products will be invoiced and either (a) shipped to Customer, or (b) disposed of by ABS in a commercially reasonable manner.
Customer will promptly notify ABS of any changes, increase or decrease, in usage. Upon receipt of Customer’s written instruction, ABS agrees to discontinue ordering and stocking a specific product. Customer will be invoiced for all discontinued product up to the Max Quantity, that is (a) in ABS’s facility, or (b) en route to ABS’s facility on the date ABS receives such instruction.
Each of the following constitutes a breach by Customer and shall give ABS the right, without an election of remedies, to suspend performance or terminate the Agreement by delivery of written notice declaring termination. Upon termination, Customer shall be liable to ABS for all Products furnished to date and all damages sustained by ABS: (a) any failure by Customer to pay amounts when due; (b) any general assignment by Customer for the benefit of its creditors, Customer’s bankruptcy, insolvency or receivership; (c) any representation or warranty furnished by Customer in connection with the Agreement or these Terms is false or misleading in any material respect when made; or (d) any failure by Customer to perform or comply with any material provision of the Agreement or these Terms.
To the maximum extent permitted by law, ABS and Customer shall indemnify and hold harmless each other from any and all claims, actions, costs, expenses, damages and liabilities, including reasonable attorneys’ fees, resulting from death or bodily injury or damage to real or personal property, to the extent caused by the negligence or misconduct of the indemnifying party, and/or its respective employees or other authorized agents in connection with their activities within the scope of the Agreement. Neither party shall indemnify the other against claims, damages, expenses or liabilities to the extent attributable to the acts or omissions of the other party or third parties. If the parties are both at fault, the obligation to indemnify shall be proportional to their relative fault. The duty to indemnify and hold harmless will continue in full force and effect, notwithstanding the expiration or early termination of the Agreement, with respect to any claims based on facts or conditions that occurred prior to the expiration or termination of the Agreement.
IN NO EVENT SHALL ABS BE LIABLE TO CUSTOMER IN LAW OR IN EQUITY, FOR INDIRECT, CONSEQUENTIAL, PUNITIVE, OR INCIDENTAL DAMAGES OF ANY KIND RELATED TO THE AGREEMENT.
Neither party shall be liable to the other for any delay or failure of performance under the Agreement where the delay, or failure is caused by labor troubles, strikes, lockouts, war, riots, insurrection, civil commotion, failure of supplies from ordinary sources, fire, flood, storm, accident, any act of God, or any other cause beyond the control of the party. The party claiming the benefit of this provision shall use its best efforts to remove any such causes and to resume performance under the Agreement as soon as is feasible. Performance by the other party shall be suspended and excused during any such delay or failure.
The Agreement shall be deemed to have been negotiated and entered into within the State of Utah. Accordingly, except to the extent that they are preempted by federal law, the laws of the State of Utah shall govern the construction and interpretation of the Agreement. Customer expressly submits to the exclusive jurisdiction of the courts of the State of Utah and United States District Court for the District of Utah and agrees that jurisdiction and venue shall be proper in such courts and Customer waives any claim or defense that such courts will be an inconvenient forum.
The Agreement may be assigned by Customer only with ABS’s prior written consent. Subject to the foregoing, the Agreement shall be binding upon and inure to the benefit of Customer and its successors and assigns.