Terms
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Plastic Oddities (a division of Diverse Corporate Technologies)
Terms and Conditions of Sale
PRICES, SHIPPING, INSURANCE AND RISK OF LOSS: Full Freight Allowance determined by your region on the map displayed above. Except as expressly stated otherwise in writing by Plastic Oddities, all prices quoted for Plastic Oddities’ products shall be F.O.B. Plastic Oddities’ warehouse in Forest City, North Carolina, U.S.A. Except as otherwise agreed in writing by Plastic Oddities, Plastic Oddities’ quoted prices shall not include: (a) charges for freight, insurance or other costs incurred in connection with shipment of Products or (b) any sales, use, excise, gross receipts or similar taxes, all of which shall be paid by Buyer. All risk of loss or damage to Plastic Oddities’ products shall pass to Buyer upon transfer of Plastic Oddities’ products to the carrier at the F.O.B. point, but title to the products shall pass only upon acceptance thereof by the Buyer at its premises. Plastic Oddities may change the prices applicable to its products at any time. Except as otherwise agreed in writing by Plastic Oddities, each sale of any Plastic Oddities product shall be at Plastic Oddities’ list price in effect on the date of shipment.
PURCHASE ORDERS: All purchase orders placed on behalf of Buyer shall constitute the Buyer’s Irrevocable commitment and obligation to purchase the products identified thereon in the indicated Quantities at Plastic Oddities’ prices then in effect in accordance with these Terms and Conditions, subject To acceptance or non acceptance by Plastic Oddities, in its sole and absolute discretion, in whole or in part. No terms, stipulations or conditions set forth in a Buyer’s purchase order or other document furnished by Buyer shall be binding on Plastic Oddities unless expressly and specifically accepted by Plastic Oddities in writing. Any terms, stipulations or conditions set forth in a purchase order or other document furnished by Buyer that are different from, or in addition to, any of the terms, stipulations or conditions set forth in these Terms and Conditions are hereby objected to by Plastic Oddities, and all such different and additional terms, stipulations or conditions shall be null, void ab initio and of no effect unless expressly and specifically agreed to in writing by Plastic Oddities.
PLASTIC ODDITIES’ ACCEPTANCE OR NONACCEPTANCE: All purchase orders placed by buyer shall be subject to acceptance or non acceptance by Plastic Oddities, in its sole and absolute discretion, at its office in Forest City, North Carolina, U.S.A. Without limitation of the foregoing, Plastic Oddities has no obligation to accept, and may cancel, without liability, any purchase orders from Buyer at any time that Plastic Oddities shall deem itself insecure with respect to Buyer’s account or financial standing or Buyer’s relationship with Plastic Oddities generally. Plastic Oddities reserves the right to terminate or cancel, in whole or in part, any purchase order at any time prior to shipment of the products covered by such purchase order. Buyer shall comply with any requirements established by Plastic Oddities from time to time concerning the minimum volume of products that may be covered by any purchase order. A minimum order of $50.00 is required for shipment.
ALLOCATIONS: Plastic Oddities reserves the right to allocate its inventory of products in such a manner as it may from time to time, in its sole and absolute discretion, determine, and Plastic Oddities will not be liable for any delay in filling, or any failure to fill, any purchase order due to shortage of any products or allocation of Plastic Oddities’ products among purchasers. Without limitation of the foregoing rights of Plastic Oddities, Plastic Oddities shall have the right to refuse any purchase order, in whole or in part, at any time buyer has failed to pay when due any amounts payable under a Plastic Oddities invoice.
FORCE MAJEURE: Plastic Oddities shall not be responsible or liable for any failure to perform, or any delay in supplying if occasioned in whole or in part by act of God or the public enemy, fire, explosion, perils of the sea, flood, drought, war, riots, civil insurrection, sabotage, accident, embargo, governmental priority, requisition or allocation or any action of any government authority (or any refusal of such governmental authority to provide necessary authorization), or shortage or failure of supply, materials, fuel, transportation or labor, or strikes or other labor trouble, or any occurrence, act, cause or thing beyond the reasonable control of Plastic Oddities, all of which shall excuse any failure or delay on the part of Plastic Oddities, and Plastic Oddities shall have no obligation or liability whatsoever arising out of or in connection with any such failure or delay.
DELIVERY DATE: Any delivery date agreed to by Plastic Oddities shall be deemed to be an estimated delivery date only. Plastic Oddities shall not be liable for any loss or damages allegedly caused by failure to make any delivery of a purchase order (or portion thereof) when due. Without limitation of the foregoing, Plastic Oddities is not responsible for any delay in shipment or delivery of its products occurring after such products are transferred to the carrier.
RETURNS: All sales are final. The buyer may not return any product to Plastic Oddities without prior written authorization and a Return Authorization number from Plastic Oddities. All requests for Return Authorizations must be submitted within 10 days of shipment of merchandise and are subject to approval. Return Authorizations will expire 30 days after the date issued. Only clean, resalable merchandise will be accepted and the Buyer must prepay freight. After factory inspection, a 25% restocking fee will be assessed. All credits for returned merchandise will be credited to future purchases of equal or more value. No credits will be issued for past invoices. The buyer may not for any reason take unauthorized debits for invoiced merchandise.
REFUNDS: All sales are final, and no cash refund will be granted. If an official credit memorandum from Plastic oddities is authorized, then the amount of the credit can be applied to future purchases.
PAYMENT: Master Card and Visa are accepted. Except as otherwise agreed in writing by Plastic Oddities, all payments by Buyer to Plastic Oddities shall be made, without setoff or other reduction, by causing Plastic Oddities’ bank account to be credited for the full amount due in accordance with Plastic Oddities’ payment instructions. Buyer may make payments by draft only if Plastic Oddities gives its prior written consent to this method of payment. Payment shall be due by the date or dates specified by Plastic Oddities in connection with any purchase order. If Plastic Oddities agrees to ship any products prior to payment in full, Buyer shall pay at Plastic Oddities’ remittance location, in full any and all amounts owed with respect to such shipment of products within thirty (30) days of the invoice date. If payment is not received within thirty (30) days of the invoice date, interest shall accrue from the invoice date on the unpaid amount(s) at the monthly rate of one and one-half percent (1.5%), or at the maximum rate allowed by applicable law, whichever rate is less. Unearned cash discounts will be rebilled to the Buyer plus a $5.00 service charge.
NO OFFSET: Buyer agrees not to make any deductions of any kind from any payments coming due to Plastic Oddities unless Buyer shall have received an official credit memorandum from Plastic Oddities authorizing such deduction.
PURCHASE MONEY SECURITY INTEREST: Buyer hereby grants to Plastic Oddities a purchase money security interest in the Plastic Oddities products identified in any purchase order, and in all accessions and additions thereto, and in all products and proceeds thereof, as security for the full and prompt payment of all amounts at any time owed by Buyer to Plastic Oddities. Buyer shall cooperate with Plastic Oddities, at buyer’s expense, in perfecting the security interest granted in the foregoing sentence by, among other things, executing any and all UCC financing statements (and assisting in the filing thereof) as may be requested from time to time by Plastic Oddities. Upon default by Buyer in the timely payment of any and all amounts due with respect to any of Plastic Oddities’ products, Plastic Oddities shall be entitled to exercise all the remedies of a secured party under the Uniform Commercial Code. In addition thereto, Plastic Oddities shall have the right to enter the Buyer’s premises and remove such Plastic Oddities products there from, with or without judicial process.
DISCLAIMER OF WARRANTY: PLASTIC ODDITIES MAKES NO WARRANTIES WITH REGARD TO ITS PRODUCTS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OF FITNESS FOR ANY PURPOSE, OR ANY WARRANTY AGAINST INFRINGEMENT SUCH AS PROVIDED IN ARTICLE 2-312(3) OF THE UNIFORM COMMERCIAL CODE AND/OR ANY COMPARABLE STATUTE OR LAW THAT MAY GOVERN THE SALE OF GOODS. PLASTIC ODDITIES DOES NOT GUARANTEE, WARRANT OR OFFER ANY PATENT PROTECTION TO BUYER ON ANY OF PLASTIC ODDITIES’S PRODUCTS, AND PLASTIC ODDITIES SHALL NOT BE LIABLE OR IN ANY WAY RESPONSIBLE TO BUYER BECAUSE OF ANY ALLEGED INFRINGEMENTS OF PATENT RIGHTS IN CONNECTION WITH THE SALE OR USE OF ANY OF PLASTIC ODDITIES’S PRODUCTS. EXCLUSIVE REMEDY: THE SOLE AND EXCLUSIVE REMEDY AGAINST PLASTIC ODDITIES FOR ANY NONCONFORMING PRODUCT DELIVERED TO THE BUYER FOR SALE OR USE OF ANY OF PLASTIC ODDITIES’ PRODUCTS. EXCLUSIVE REMEDY: THE SOLE AND EXCLUSIVE REMEDY AGAINST PLASTIC ODDITIES FOR ANY NONCONFORMING PRODUCT DELIVERED TO BUYER SHALL BE, IN PLASTIC ODDITIES’ SOLE AND ABSOLUTE DISCRETION, EITHER REPAIR OF THE NONCOMFORMING PRODUCT, REPLACEMENT OF THE NONCONFORMING PRODUCT, OR RETURN OF SAME FOR REPAYMENT OF THE PURCHASE PRICE.
NO RESELLER WARRANTY: Buyer agrees not to make or extend any warranties or representations concerning the quality or capability of any of Plastic Oddities’ products to any person or entity except as authorized in the manufacturer’s written warranty (if any) accompanying the products in question. In no event shall Buyer indicate to any person or entity that Plastic Oddities offers any warranty with respite to the products. Buyer shall indemnify and hold Plastic Oddities harmless against all claims, suits, expenses, losses, costs and liability (including attorneys’ fees) incurred by Plastic Oddities arising out of or resulting from any breach of this paragraph.
LIMITATION OF LIABILITY: THE DAMAGES RECOVERABLE BY BUYER AGAINST PLASTIC ODDITIES FOR ANY CLAIM OF ANY KIND WHATSOEVER ARISING FROM OR IN ANY WAY CONNECTED TO ANY PLASTIC ODDITIES PRODUCTS, OR THE PURCHASE, SALE OR USE THEREOF, REGARDLESS OF THE LEGAL THEORY, SHALL NOT BE GREATER THAN THE ACTUAL PURCHASE PRICE OF THE PRODUCTS PAID BY BUYER WITH RESPECT TO WHICH SUCH CLAIM IS MADE. IN NO EVENT SHALL PLASTIC ODDITIES BE LIABLE FOR ANY SPECIAL, INDIRECT, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY DAMAGES WITH RESPECT TO LOSS OF INCOME, LOSS OF EXPECTED OR PROSPECTIVE PROFITS, ANY LOSS CAUSED BY DELAY, ANY EXPENDITURES, INVESTMENTS OR COMMITMENTS OF BUYER, ANY LOSS WITH RESPECT TO BUYER’S ESTABLISHMENT, DEVELOPMENT OR MAINTENANCE OF BUSINESS REPUTATION OR GOODWILL, ANY LOSS INCURRED BY BUYER IN OBTAINING SUBSTITUTE PRODUCTS, OR ANY LIABILITY, LOSS OR EXPENSE OF BUYER ARISING FROM THE CLAIMS OF THIRD PARTIES SUCH AS, BUT NOT LIMITED TO, CUSTOMERS OF BUYER.
MISUSE: Plastic Oddities shall have no liability or obligation to Buyer with respect to any of Plastic Oddities’ products which have been subject to abuse, misuse, improper use, negligence, accident, modification, alteration, tampering, failure to follow normal operating procedures, attempt to repair by unqualified personnel, any sale, use or operation of such products outside their normal environment, or any alteration of any literature with respect to such products.
CLAIMS: All claims of Buyer relating to a nonconformity or defect in the products delivered shall be deemed forever waived unless (i) Buyer provides Plastic Oddities with written notice and satisfactory proof of the nonconformity within ten (10) business days after receipt of same by the Buyer; and (ii) Plastic Oddities is afforded a reasonable and sufficient opportunity to verify any claim before the products are used by Buyer or removed from Buyer’s facility.
LIMITATION PERIOD: Buyer must give Plastic Oddities a written demand to arbitrate any claim or cause of action related to the parties’ business relationship or otherwise with respite to the sale, purchase or use of Plastic Oddities products within six (6) months from the date when such claim or cause of action arises. The failure by Buyer to initiate arbitration in accordance with the
preceding sentence shall constitute an absolute bar to such claim or cause of action.
ATTORNEYS’ FEES AND INDEMNIFICATION: Buyer shall pay, reimburse, indemnify and hold Plastic Oddities harmless from and against any and all liabilities, losses, damages, penalties, costs or expenses (including but not limited to attorneys’ fees, expert witness fees, court costs and arbitral fees) incurred by Plastic Oddities arising out of or relating to (a) any breach of these Terms and Conditions by Buyer; (b) Plastic Oddities’ cost of collection incurred with respect to any sums payable by Buyer; (c) any acts or omissions of Buyer, its agents or employees resulting in any claim or suit against Plastic Oddities, including without limitation claims relating to warranties regarding Plastic Oddities’ products which have not been expressly authorized in writing by Plastic Oddities; (d) any action, claim or suit brought by Buyer against Plastic Oddities that is inconsistent or in conflict with the provisions of these Terms and Conditions; or (e) Plastic Oddities’ enforcement of its rights and remedies, whether or not arising under these Terms and Conditions, and whether such enforcement action is necessitated by (i) the Buyer’s breach or no fulfillment of any of the provisions of these Terms and Conditions or (ii) the Buyer bringing any suit, action, demand or claim against Plastic Oddities that is inconsistent or in conflict with the provisions of these Terms and Conditions.
DISPUTE RESOLUTION: All disputes, controversies, claims or differences between the parties
arising out of or relating to the purchase, sale or use of Plastic Oddities’ products and/or these
Terms and Conditions shall be finally and solely determined and settled by binding arbitration in
North Carolina in accordance with the Rules for Non-Administered Arbitration of the CPR Institute
for Dispute Resolution. The arbitration shall be conducted by a sole arbitrator. The arbitrator need
not be a member of any of the CPR Panels of Distinguished Neutrals. The arbitrator is hereby
instructed, directed and commanded to assume case management initiative and to initiate early
scheduling of all events and proceedings so as to resolve any dispute as expeditiously as possible. In rendering the award, the arbitrator shall determine the rights, remedies, liabilities and obligations of the parties according to the laws of the state of North Carolina including, without limitation, the provisions thereof with respect to evidence. The arbitrator shall have no power to make awards or issue orders of any kind inconsistent with the provisions of these Terms and Conditions. The award, which shall be made not later than thirty (30) days after the conclusion of the arbitration, shall state the reasons upon which the award is based. Judgment upon any arbitration award may be entered and enforced in any court of competent jurisdiction. The Buyer shall be irrevocably deemed to waive, to the fullest extent permitted by law, any claim for punitive, treble or other exemplary damages against Plastic Oddities in any suit, action, arbitration or other proceeding arising out of or relating to the purchase, sale or use of Plastic Oddities products. Notwithstanding anything herein to the contrary, Plastic Oddities shall in its discretion be entitled to bring suit in a court of competent jurisdiction against Buyer in order to (a) recover any sums payable by Buyer to Plastic Oddities or (b) obtain injunctive relief or other equitable remedies or interim measures to prevent, mitigate or stop irreparable harm to Plastic Oddities’ rights. Buyer hereby irrevocably submits to the personal jurisdiction and venue of the courts of the state of North Carolina, with respect to any action brought by Plastic Oddities (i) to enforce the agreement herein to arbitrate, (ii) to enforce the arbitrator’s award, (iii) seeking injunctive relief or other equitable remedies or interim measures, or (iv) claiming any amounts owed by Buyer. Plastic Oddities shall be entitled to recover its attorneys’ fees and other expenses incurred in the enforcement of defense of its rights and remedies.
GOVERNING LAW: These Terms and Conditions, together with the purchase, sale and use of Plastic Oddities’ products, and all other aspects of the relationship between Plastic Oddities and Buyer shall be governed by and construed in accordance with the internal laws of the state of North Carolina, U.S.A. without giving effect to any choice of law rules that could result in the application of the laws of any other jurisdiction.