Terms of Sale

Terms and Conditions of Sale

Last Updated: July 31, 2025

1. General.

1.1 These terms and conditions (“Terms and Conditions”) shall apply to any contract (“Contract”) for the sale of goods (“Goods”), services (“Services”) or a combination of both Goods and Services by Packaging Exchange Inc. or any direct and indirect subsidiaries, joint ventures and/or any other affiliated entities of Packaging Exchange Inc. (collectively and individually, “Seller”). These Terms and Conditions shall be incorporated in and deemed a material part of the following documents: (a) any bid, quote, response to a request for quote, letter, proposal, or any other form of offer for the sale of Goods or Services (each, a “Proposal”) by Seller to a buyer (“Buyer” and together with Seller, the “Parties” and each individually, a “Party”); (b) any form of order acknowledgment by Seller to Buyer for Goods or Services (“Order Acknowledgment”); and (c) any invoice or similar document submitted by Seller for the sale of Goods or Services (“Invoice”). As used herein, “Contract” shall include any Seller document reflecting the business terms applicable to Buyer's purchase of Goods or Services from Seller, including without limitation, a Proposal, purchase order, other sales document, Order Acknowledgment or Invoice.

1.2 These Terms and Conditions shall supersede, replace, and prevail over, any terms and conditions offered by Buyer and shall be the only terms and conditions applicable to Buyer's purchase of Goods or Services pursuant to the terms appearing on the Contract. Seller specifically and expressly objects to and rejects any terms and conditions or other provisions in Buyer's purchase orders, printed forms, correspondence or any other writings or oral representations which are different from, inconsistent with or in addition to these Terms and Conditions. Buyer's efforts to change these Terms and Conditions or the terms set forth on any Contract shall constitute a material alteration of Seller's offer and shall not be binding on Seller. Receipt of Buyer's purchase order for Seller's Goods or Services or Seller's initiation of any work to manufacture and supply the Goods or Services shall constitute acceptance by Buyer of these Terms and Conditions. Notwithstanding any prior custom, practice or course of dealing between Buyer and Seller or generally within the industry, Seller may insist on strict adherence to these Terms and Conditions. Notwithstanding anything herein to the contrary, if a written contract signed by Seller and a Buyer is in existence covering the sale of the Goods and Services covered hereby, the terms and conditions of said Contract shall prevail to the extent they are inconsistent with these Terms and Conditions.

1.3 Seller reserves the right to update or modify these Terms and Conditions at any time, without prior notice, by posting the revised version of these Terms and Conditions behind the applicable link marked “Terms and Conditions of Sale” on Seller's website. All Contract (which includes a purchase order) issued by Buyer to Seller after Seller has posted the revised Terms and Conditions constitutes Buyer's agreement to be bound by the revised Terms and Conditions. Buyer may access the current version of these Terms and Conditions of Sale at any time by clicking the link marked “Terms and Conditions of Sale” on the Seller website.

2. Price. The Goods or Services and other items covered by any Contract shall be sold and invoiced at the price or prices on the Contract. Unless otherwise specified in writing, prices are subject to change upon at least thirty (30) calendar days prior written notice from Seller. The prices set forth in Seller's Proposal shall expire, at Seller's option, thirty (30) calendar days from the date on the Proposal or issuance of Seller's offer. If Buyer has not accepted Seller's Proposal or offer at the stated prices within such thirty (30) day period, Seller reserves the right to adjust its prices for such Goods or Services. Notwithstanding the foregoing, if Seller determines in its reasonable discretion that a price increase is necessary as a result of a tariff or similar import or export cost, Seller shall be entitled to enact such price increase immediately upon written notice (which may be by electronic mail) to Buyer. Unless otherwise specified in writing, prices do not include federal, state, provincial, municipal or local sales, value-added, goods and services, excise, use or other taxes now in effect or hereafter levied by reason of a Contract. All such taxes shall be paid by Buyer. If Seller pays any such taxes or assessments, Buyer shall, upon demand, reimburse Seller for such amounts. Unless otherwise agreed in writing by the Parties, Buyer shall be responsible for all tooling costs.

3. Quantity Variations; Tolerances. With respect to corrugated Goods only, if Seller delivers to Buyer a quantity of corrugated Goods of up to ten percent (10%) more or less than the quantity set forth in the Contract, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods the price set forth in the Contract adjusted pro rata. With respect to all non-corrugated Goods, over-runs and under-runs shall be accepted by Buyer in accordance with the specific policies of the manufacturer of the merchandise, and in the absence of any specific policy, usage of trade shall control.

4. Payment Terms.

4.1 Unless otherwise agreed to in writing by the Parties: (a) payment terms are net thirty (30) calendar days from the date of shipment of the Goods or performance of the Services, and (b) all payments shall be made in United States currency.

4.2 Buyer shall pay interest on all late payments at the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under these Terms and Conditions or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods or performance of any Services and stop Goods in transit if Buyer fails to pay any amounts when due hereunder.

4.3 Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller's breach, bankruptcy, or otherwise.

4.4 Whenever reasonable grounds for insecurity arise with respect to full and timely performance by Buyer, Seller may demand terms of payment different from those specified herein and may demand assurance of Buyer's full and timely performance. Seller may, upon making such demand, suspend manufacture, production, performance, shipment and/or deliveries. If, within the period stated in such demand, Buyer fails or refuses to agree to such different terms of payment and/or fails or refuses to give adequate assurance of full and timely performance (as determined by Seller), Seller may: (a) by notice to Buyer, treat such failure or refusal as a repudiation by Buyer of the portion of the transaction not then fully performed, whereupon Seller may cancel all further manufacture, production, performance, shipment and/or deliveries and any amounts unpaid hereunder shall immediately become due and payable, or (b) produce, perform or make shipments or deliveries under reservation of a security interest and demand pre-payment against tender of the Goods or the Services.

5. Delivery and Shipping; Provision of Services.

5.1 Subject to the availability of finished Goods, Seller shall use reasonable efforts to deliver the Goods to Buyer on the date(s) indicated in the Contract. If Seller anticipates that it will not deliver the Goods on the date(s) indicated, then Seller shall use reasonable efforts to notify Buyer of the anticipated delay and the anticipated delivery date(s). Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer's Contract.

5.2 Unless otherwise agreed in writing by the Parties, all Goods shall be delivered FOB for U.S. domestic shipments, and DDP (Incoterms) for international shipments, to the destination designated by Buyer in the Contract (the “Delivery Point”).

5.3 Title and risk of loss pass to Buyer (or its designated consignee or agent) upon delivery of the Goods at the Delivery Point regardless whether Buyer has made prior payment for such Goods. When and if required, Seller shall provide bills of lading and shipping notices directly to the Delivery Point on the day of shipment.

5.4 If for any reason Buyer fails to accept delivery of any of the Goods at the Delivery Point on the date(s) indicated in the Contract or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (a) risk of loss to the Goods shall pass to Buyer, (b) the Goods shall be deemed to have been delivered, and (c) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage, and insurance).

5.5 With respect to any Services, (a) Seller shall use reasonable efforts to meet any performance dates to render the Services specified in the Contract, and any such dates shall be estimates only, and (b) Buyer shall (i) cooperate with Seller in all matters relating to the Services and provide such access to Buyer's premises, and such office accommodation and other facilities as may reasonably be requested by Seller, for the purposes of performing the Services, (ii) respond promptly to any Seller request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Seller to perform Services in accordance with the requirements of the Contract and these Terms and Conditions, (iii) provide such customer materials or information as Seller may request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects, and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.

5.6 The quantity of any installment of Goods as recorded by Seller on dispatch from Seller's place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary. Seller shall not be liable for any non-delivery of Goods (even if caused by Seller's negligence) unless Buyer gives written notice to Seller of the non-delivery within three (3) calendar days of the date when the Goods would in the ordinary course of events have arrived at the Delivery Point. Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered. Buyer acknowledges and agrees that the remedies set forth in this Section 5.6 are Buyer's exclusive remedies for any non-delivery of Goods.

6. Inspection and Rejection of Nonconforming Goods.

6.1 Buyer shall inspect the Goods within ten (10) calendar days of their arrival at the designated delivery destination (the “Goods Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Goods Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods” means only the following: (a) Goods shipped are different than identified in Buyer's Contract, or (b) the Good's label or packaging incorrectly identifies its contents.

6.2 If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (a) replace such Nonconforming Goods with conforming Goods, or (b) credit or refund the price for such Nonconforming Goods. Buyer shall ship, at Seller's expense and risk of loss, the Nonconforming Goods to the facility provided by Seller. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer's shipment of Nonconforming Goods, ship to Buyer, at Seller's expense and risk of loss, the replaced Goods to original designated delivery destination.

6.3 Buyer acknowledges and agrees that the remedies set forth in Section 6.2 are Buyer's exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 6.2, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased to Seller.

7. Inspection and Rejection of Services.

7.1 Buyer shall review and inspect the Services provided by Seller within ten (10) calendar days of the performance of the Services at the place of performance (the “Services Inspection Period”). Buyer will be deemed to have accepted the Services unless it notifies Buyer in writing of any Nonconforming Services during the Services Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Services” means only Services that are materially different than those set forth in Buyer's Contract and which were not provided in accordance with industry standard.

7.2 If Buyer timely notifies Seller of any Nonconforming Services, Seller shall, in its sole discretion, (a) perform the Nonconforming Services again (or the portion thereof that was Nonconforming Services), or (b) credit or refund the price for such Nonconforming Services.

7.3 Buyer acknowledges and agrees that the remedies set forth in Section 7.2 are Buyer's exclusive remedies for the delivery of Nonconforming Services. Except as provided under Section 7.2, all sales of Services to Buyer are final.

8. Security Interest in Goods. Buyer hereby grants Seller a security interest in all Goods purchased by Buyer from Seller (including Goods and Non-Conforming Goods), including all proceeds therefrom, to secure the prompt and full payment of the purchase price and any other amounts due under the Contract or these Terms and Conditions. Buyer agrees that Seller may file any financing statements or other documents necessary to perfect and maintain its security interest in the goods and proceeds. Buyer shall cooperate with Seller and execute any such documents as may be reasonably required to effectuate the foregoing. Upon default by Buyer in the payment of any amount due, Seller shall have all the rights and remedies of a secured party under applicable law, including but not limited to the Uniform Commercial Code (UCC), and may, without limitation, take possession of the goods without judicial process and sell or otherwise dispose of them in accordance with law. Regardless of when title and risk of loss to the Goods pass to Buyer under these Terms and Conditions or the Contract, Seller retains a security interest in the goods until full payment is received.

9. Buyer-Specific Inventory. In the event that Seller maintains inventory for Buyer that is considered a custom item or that Seller stocks for Buyer's benefit (“Custom Goods”), Buyer will be required to execute an inventory stocking agreement. In the event Buyer does not execute an inventory stocking agreement and Seller terminates its Contract or business relationship with Buyer, Buyer shall pay Seller for the amount of such Custom Goods and, at Buyer's sole cost and expense, take or arrange for delivery of all such Custom Goods within thirty (30) calendar days of its receipt of written notice from Seller. If Buyer fails to take delivery of the Custom Goods within that thirty (30) calendar day period, then Seller shall have to right, in its sole discretion, to dispose of the Custom Goods and Buyer shall be liable for the amount of such Custom Goods along with any disposal costs and shall promptly pay in full the amount thereof.

10. Buyer's Representation of Solvency. In connection with Buyer entering into any Contract for Goods or Services with Seller or upon delivery of Goods under the Contract and these Terms and Conditions, Buyer represents and warrants to Seller that: (a) Buyer is solvent and is not insolvent within the meaning of Section 1-201(b)(23) of the Uniform Commercial Code, (b) Buyer is paying its debts as they become due in the ordinary course of business, (c) the fair value of Buyer's assets exceeds the amount of its liabilities, including contingent liabilities, and (d) Buyer has not made any transfer or incurred any obligation with the intent to hinder, delay, or defraud any creditor. In the event that Buyer becomes insolvent before delivery of the Goods, Buyer shall notify Seller in writing. Any failure to notify Seller shall be construed as a reaffirmation of Buyer's solvency at the time of delivery of the Goods. Buyer acknowledges that Seller is relying upon this representation and warranty in extending credit and delivering Goods under the Contract. In the event that Buyer becomes insolvent prior to payment in full, Seller shall have all rights and remedies available under the Uniform Commercial Code, including the right to reclaim goods under Section 2-702 thereof.

11. Default/Termination by Seller. Buyer shall be in default if (each, a “Default”):

11.1 Buyer fails to pay any amount when due under its Contract with Seller or as provided in these Terms and Conditions;

11.2 Buyer breaches any representation, warranty or covenant of Buyer under its Contract with Seller or Buyer violates or breaches any provision of these Terms and Conditions, and either the breach cannot be cured or, if the breach can be cured, it is not cured by Buyer within ten (10) calendar days of the first to occur of (a) Seller providing Buyer with written notice of such breach or violation, or (b) Buyer first having knowledge of such breach or violation;

11.3 Buyer (a) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due, (b) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, (c) makes or seeks to make a general assignment for the benefit of its creditors, or (d) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or

11.4 Seller, in its reasonable judgment, determines that Buyer is (a) refusing or is unable to pay Seller in full on a timely basis for the Goods or Services as they become due, or (b) otherwise no longer able to meet Seller's credit requirements, as determined by Seller in its sole and absolute discretion.

In the event that Buyer is in Default under a particular Contract, Seller shall have the right to terminate or withdraw any and all Contracts by and between Buyer and its affiliates, on the one hand, and Seller, on the other hand.

12 Limited Warranty.

12.1 Seller warrants to Buyer that for a period of thirty (30) calendar days from the date of shipment of the Goods (the “Warranty Period”) that such Goods will be free from material defects in material and workmanship. Buyer may not assign this warranty to any subsequent buyer or user of the Goods.

12.2 EXCEPT FOR THE PRODUCT WARRANTIES SET FORTH IN SECTION 12.1, SELLER MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY, (b) WARRANTY OF PERFORMANCE, (c) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE AND EXCLUDES ANY ORAL WARRANTIES OR REPRESENTATIONS, OR WRITTEN WARRANTIES OR REPRESENTATIONS MADE OR IMPLIED INCLUDING, WITHOUT LIMITATION, IN ANY MANUAL, LITERATURE, ADVERTISING BROCHURE OR ANY OTHER MATERIALS OR BASED ON CUSTOM OR OTHERWISE. BUYER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF THE GOODS IN THE PRACTICE OF ANY PROCESS, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY SELLER, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE GOODS.

12.3 Seller warrants to Buyer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services. Buyer may not assign this warranty to any subsequent buyer or user of the Services.

12.4 EXCEPT FOR THE SERVICES WARRANTIES SET FORTH IN SECTION 12.3, SELLER MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO THE SERVICES; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE AND EXCLUDES ANY ORAL WARRANTIES OR REPRESENTATIONS, OR WRITTEN WARRANTIES OR REPRESENTATIONS MADE OR IMPLIED INCLUDING, WITHOUT LIMITATION, IN ANY MANUAL, LITERATURE, ADVERTISING BROCHURE OR ANY OTHER MATERIALS OR BASED ON CUSTOM OR OTHERWISE. BUYER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF THE SERVICES IN THE PRACTICE OF ANY PROCESS, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY SELLER, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE SERVICES.

12.5 Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Goods. Third Party Products are not covered by the warranty in Section 12.1. For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY, (b) WARRANTY OF PERFORMANCE, (c) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (d) WARRANTY OF TITLE, OR (e) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

12.6 Seller shall not be liable for a breach of the warranties set forth in Section 12.1 or Section 12.3 unless: (a) Buyer gives written notice of the defective Goods or Services, as the case may be, reasonably described, to Seller within ten (10) calendar days of the time when Buyer discovers or ought to have discovered the defect, (b) if applicable, Seller is given a reasonable opportunity after receiving the notice of breach of the warranty set forth in Section 12.1 to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller's place of business at Seller's cost for the examination to take place there, and (c) Seller reasonably verifies Buyer's claim that the Goods or Services are defective.

12.7 Seller shall not be liable for a breach of the warranty set forth in Section 12.1 if: (a) Buyer makes any further use of such Goods after giving such notice, (b) the defect arises because Buyer failed to follow Seller's oral or written instructions as to the storage, use, or maintenance of the Goods, or (c) Buyer alters or repairs such Goods without the prior written consent of Seller.

12.8 Subject to Section 12.6 and Section 12.7 above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (a) repair or replace such Goods (or the defective part), or (b) credit or refund the price of such Goods at the pro rata contract rate; provided that, if Seller so requests, Buyer shall, at Seller's expense, return such Goods to Seller.

12.9 Subject to Section 12.6 above, with respect to any Services subject to a claim under the warranty set forth in Section 12.3, Seller shall, in its sole discretion, (a) repair or re-perform the applicable Services, or (b) credit or refund the price of such Services at the pro rata contract rate.

12.10 THE REMEDIES SET FORTH IN Section 12.8 AND Section 12.9 ARE BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN Section 12.1 AND Section 12.3, RESPECTIVELY.

12.11 The provisions of Section 14 and not this Section 12 shall apply to Can and Can Ends (as defined in Section 14.1 below).

13. Limitation of Liability for Goods and Services.

13.1 IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR LOSS OF BUSINESS OPPORTUNITY OR DAMAGE TO BUYER'S GOODWILL OR REPUTATION, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

13.2 IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO A CONTRACT, THESE TERMS AND CONDITIONS, ANY SALE OF GOODS, OR ANY PROVISION OF SERVICES, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS AND SERVICES UNDER A PARTICULAR CONTRACT OR TEN THOUSAND DOLLARS ($10,000), WHICHEVER IS LESS.

13.3 No legal action shall be brought by Buyer against Seller for any claim with respect to any Goods or Services sold by Seller to Buyer more than one (1) year after the performance of such Services or delivery of such Goods to Buyer. It is agreed that any cause of action with respect to such Goods will accrue on the date of delivery of such Goods and with respect to such Services will accrue on the date that the work product resulting from the Services is delivered to Buyer.

13.4 The provisions of Section 14 and not this Section 13 shall apply to Can and Can Ends (as defined in Section 14.1 below).

14. Can and Can Ends.

14.1 The provisions of this Section 14 relate to sales by Seller of aluminum and other beverage cans and can ends (“Can and Can Ends”) to Buyer for Buyer to use to package one or more beverages, drinks or other fluids (“Fluid”).

14.2 Buyer acknowledges that Seller has not tested the Fluid with the Cans and Can Ends and that Seller has not performed any testing on the suitability of the Cans and Can Ends for packaging any Fluid. Buyer has evaluated any perceived risk and expressly assumes all risk and liability for any non-performance of the Cans and Can Ends, such as resulting in leakages or recalls, and for any resulting damages or bodily injury to Buyer, its employees, purchasers from Buyer, or any third parties or other persons arising from the handling, filling and/or use of the Cans and Can Ends (“Filled Cans”) filled with Fluid or from ingestion of the contents of the Filled Cans, and agrees that Seller will have no responsibility and no liability for any such damage or bodily injury to Buyer, its employees, purchasers from Buyer or any third parties or other persons.

14.3 SELLER MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO THE CAN AND CAN ENDS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY, (b) WARRANTY OF PERFORMANCE, (c) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE AND EXCLUDES ANY ORAL WARRANTIES OR REPRESENTATIONS, OR WRITTEN WARRANTIES OR REPRESENTATIONS MADE OR IMPLIED INCLUDING, WITHOUT LIMITATION, IN ANY MANUAL, LITERATURE, ADVERTISING BROCHURE OR ANY OTHER MATERIALS OR BASED ON CUSTOM OR OTHERWISE. BUYER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF THE CANS AND CAN ENDS IN THE PRACTICE OF ANY PROCESS, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY SELLER, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE CANS AND CAN ENDS.

14.4 IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR LOSS OF BUSINESS OPPORTUNITY OR DAMAGE TO BUYER'S GOODWILL OR REPUTATION, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

14.5 IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO A CONTRACT, THESE TERMS AND CONDITIONS, OR ANY SALE OF CANS AND CAN ENDS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNT PAID FOR THE SHIPMENT INVOLVED OR TEN THOUSAND DOLLARS ($10,000), WHICHEVER IS LESS.

14.6 SELLER SHALL HAVE NO LIABILITY TO ANY PERSON TO WHOM BUYER RESELLS ANY CAN AND CAN ENDS OR SELLS ANY FILLED CANS. BUYER IS RESPONSIBLE FOR INSURING THAT THE CAN AND CAN ENDS DELIVERED BY SELLER ARE SUITABLE FOR CANNING THE PRODUCT IN QUESTION. BUYER AGREES TO PROTECT, DEFEND, INDEMNIFY, SAVE AND HOLD HARMLESS SELLER AND ITS AFFILIATES AND EACH OF THEIR RESPECTIVE STOCKHOLDERS, MEMBERS, PARTNERS, DIRECTORS, MANAGERS, OFFICERS, EMPLOYEES, CONSULTANTS, REPRESENTATIVES, ADVISORS, INSURERS, AGENTS, AND SUCCESSORS AND ASSIGNS (EACH, A “SELLER INDEMNIFIED PARTY”) FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, EXPENSE, AND LIABILITY ARISING OUT OF INJURY OR DEATH TO ANY PERSON OR THE DAMAGE, LOSS OR DESTRUCTION OF ANY PROPERTY WHICH MAY OCCUR OR IN ANY WAY GROW OUT OF THE USE OR SALE OF THE CANS AND CAN ENDS OR FILLED CANS BY BUYER OR ANY PERSON TO WHOM BUYER SELLS THE CAN AND CAN ENDS OR FILLED CANS, AND ANY AND ALL COSTS, EXPENSES AND/OR ATTORNEY FEES INCURRED BY SELLER AS A RESULT OF ANY CLAIMS, DEMANDS, AND/OR CAUSES OF ACTION. BUYER AGREES TO INVESTIGATE, HANDLE, RESPOND TO, PROVIDE DEFENSE FOR AND DEFEND ANY SUCH CLAIMS, DEMANDS, RECALLS OR SUITS (COLLECTIVELY, THE “CAN CLAIMS”) AT ITS SOLE COST AND EXPENSE AND AGREES TO BEAR ALL OTHER COSTS AND EXPENSES RELATED THERETO, EVEN IF THE CLAIMS ARE GROUNDLESS, FALSE OR FRAUDULENT. BUYER AGREES TO OBTAIN INSURANCE SUFFICIENT TO COVER ITS OBLIGATIONS UNDER EACH CONTRACT AND THESE TERMS AND CONDITIONS. NO LEGAL ACTION SHALL BE BROUGHT BY BUYER AGAINST SELLER FOR ANY CAN CLAIM MORE THAN ONE (1) YEAR AFTER THE SHIPMENT OF THE CAN AND CAN ENDS GIVING RISE TO SUCH CAN CLAIM.

15. Can Dunnage. Unless otherwise provided a Contract executed by the Parties, Can and Can Ends shall be packed according to Seller's technical specification and/or standards. All packaging materials, including, but not limited to, pallets, top frames, separator sheets, and layer pads (collectively, “Dunnage”) in connection with the supply of Can and Can Ends shall remain the sole property of Seller. Buyer is responsible for the return of Dunnage in good condition within sixty (60) calendar days of delivery. Buyer must arrange for pickup by Seller or by arranging return shipment with a third-party carrier at Buyer's own cost. All costs of Dunnage shall be memo billed to Buyer and must be rectified on a quarterly basis. If Buyer fails to return Dunnage within this timeframe, Buyer shall be invoiced for such Dunnage at their replacement cost (plus applicable taxes and charges, if any). In the event of loss, damage, or contamination of the Dunnage beyond normal wear and tear, Seller shall invoice Buyer for replacement of such Dunnage (plus applicable taxes and charges, if any). Buyer shall pay any Dunnage invoices according to the customary payment terms for Goods. Buyer shall cooperate fully with Seller in any Dunnage reconciliation efforts, including providing access to records, conducting monthly inventory counts, and permitting physical inspection of storage locations. All Dunnage must be returned to Seller in substantially the same condition as delivered, subject to normal wear and tear.

16 Cancellation. Buyer may cancel Purchase Orders only upon reasonable advance notice and upon payment to Seller of Seller's cancellation charges which include, among other things, all costs and expenses incurred, and to cover commitments made by the seller and a reasonable profit thereon. Seller's determination of such cancellation charges shall be conclusive.

17. Tooling. Dies, molds, tools, printing plates, negatives, blocks and engravings provided by Seller or the manufacturer of the Goods (“Tooling”) covered by a Contract or otherwise shall remain the property of Seller; provided that, if (a) Buyer has paid Seller for the cost of the Tooling or reimbursed Seller for the cost of the Tooling, and (b) Buyer is not in Default under these Terms and Conditions or is not in breach or default under any Contract, Buyer shall be the owner of such Tooling; provided further that, upon the request of Seller, Buyer shall arrange for the transportation of Tooling from either Seller's location or that of the manufacturer at its sole cost and expense within ninety (90) days of Seller making such request.  In the event that Buyer does not arrange for transportation of Tooling with the ninety (90) day period, Buyer shall have to right, in its sole discretion, to dispose of said Tooling. Seller shall advise Buyer of when normal wear and tear has made major maintenance or replacement of Tooling necessary for continued satisfactory production. Seller shall have the right to charge Buyer for such maintenance of replacement of Tooling.

18. Seller's Proprietary Rights. Seller shall be the sole owner of all drawings, inventions, tooling and improvements made by or for Seller in connection with (a) the performance of any Contract, (b) the manufacture or sale of Goods, (c) the sale of Can and Can Ends, or (d) the performance of Services. Buyer shall not use or disclose any of Seller's trade secrets or confidential information, whether or not designated as such, without the prior written consent of Seller, which may be granted or withheld in Seller's sole and absolute discretion.

19. Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with a Contract or the sale of Goods or performance of Services is confidential, solely for the use of performing under such Contract in connection with these Terms and Conditions and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain, (b) known to Buyer at the time of disclosure, or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.

20. Force Majeure. Seller shall not be liable to Buyer for any delay or failure in the performance of any of its obligations under a Contract or these Terms and Conditions to the extent such delay or failure was due to events beyond Seller's reasonable control and could not have been predicted at the time of (a) entering into a Contract for the given purchase order or sale, or (b) Buyer purchasing Goods, Services, or Can and Can Ends from Seller, including, but not limited to, fire, storm, flood, earthquake, explosion, acts of the public enemy, wars, terrorism, riots and public disorders, sabotage, strikes, labor disputes, failures or delays of energy, transportation embargoes or delays, inability to obtain materials, increases in tariffs, pandemics, acts of God, acts or regulations or priorities of federal, state or local governments or branches of agencies thereof (each a “Force Majeure Event”). Seller shall give written notice within ten (10) calendar days of the Force Majeure Event to Buyer, stating the period of time the occurrence is expected to continue. Seller shall use reasonable efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. Seller shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that Seller's Force Majeure Event continues for a period of thirty (30) consecutive calendar days following its delivery of written notice under this Section 20, Seller may thereafter terminate the Contract, purchase order, or sale upon five (5) calendar days' written notice to Buyer. Notwithstanding the foregoing, a Force Majeure Event shall not relieve Buyer of its obligations to pay for Goods or Services in full and on time.

21. Compliance with Laws. Buyer shall at all times comply with all laws applicable to these Terms and Conditions, Buyer's performance of its obligations hereunder and Buyer's use or sale of the Goods and/or work product resulting from any Services.  Without limiting the generality of the foregoing, Buyer shall (a) at its own expense, maintain all certifications, credentials, licenses and permits necessary to conduct its business relating to the purchase or use of the Goods and/or work product resulting from any Services, and (b) not engage in any activity or transaction involving the Goods and/or work product resulting from any Services, by way of shipment, use or otherwise that violates any law.

22. Sanctions; Anti-Corruption.

22.1 Buyer acknowledges that actions involving Goods (e.g., sale, transfer, export, or processing) may be subject to export control and sanctions laws enforced by the United States, United Kingdon, European Union, United Nations Security Council or other authorities (“Sanctions Authorities”). Buyer agrees not to transfer, export, or re-export Goods to sanctioned persons or countries without obtaining necessary licenses. Buyer will not transfer Goods to: (a) persons requiring but lacking an export license, (b) persons subject to government sanctions, or (c) persons from sanctioned or embargoed countries. Buyer will comply with all export control laws and secure any required licenses before transferring Goods. Buyer certifies it has not been convicted of violating criminal statutes, debarred, indicted, or declared ineligible by any Sanctions Authorities, nor listed as a sanctioned party (“SDN”). Buyer certifies it is not owned or controlled (50% or more) by SDNs and will notify Seller of any ownership changes that result in SDN status. SDN status triggers Seller's right to immediately terminate the Contract without liability to Buyer. Buyer will not subcontract to any SDNs or restricted parties, including transporters, brokers, or financial institutions. If new sanctions affect Goods, Seller may immediately cease supplies and terminate any Contract or sale without liability to Buyer.

22.2 Buyer agrees to comply with all applicable anti-corruption and anti-bribery laws, rules, and regulations, as in effect from time to time, including, but not limited to, the United States Foreign Corrupt Practices Act of 1977 (collectively, “Anti-Corruption Laws”). Without limiting the generality of the foregoing, Buyer agrees not to make, authorize, offer, or promise to make or give any money or any other thing of value, directly or indirectly, to any current or former government official or employee (including employees of a state-owned or controlled enterprise or of a public international organization), candidate for political office, or an official of a political party, or any employee, director or consultant of a non-government client or potential client, for the purpose of securing any improper or unfair advantage or obtaining or retaining business in connection with the activities contemplated hereunder or for the purpose of improperly inducing or rewarding favorable treatment or advantage in connection with the Agreement. Buyer agrees to immediately notify Seller of any request that Buyer receives to take any action that might constitute, or be construed as, a violation of the Anti-Corruption Laws.

23. Indemnification. TO THE MAXIMUM EXTENT ALLOWED BY LAW, BUYER AGREES TO PROTECT, DEFEND, INDEMNIFY, SAVE AND HOLD HARMLESS EACH SELLER INDEMNIFIED PARTY FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, EXPENSE, AND LIABILITY ARISING OUT OF INJURY OR DEATH TO ANY PERSON OR THE DAMAGE, LOSS OR DESTRUCTION OF ANY PROPERTY WHICH MAY OCCUR OR IN ANY WAY GROW OUT OF (A) BUYER'S PURCHASE, USE, SALE, RESALE, USE, OWNERSHIP, MODIFICATION, MAINTENANCE, TRANSFER, TRANSPORTATION OR DISPOSAL OF THE GOODS, (B) BUYER'S USE OF THE SERVICES, (C) BUYER'S PURCHASE, USE, SALE, RESALE, USE, OWNERSHIP, MODIFICATION, MAINTENANCE, TRANSFER, TRANSPORTATION OR DISPOSAL OF CANS AND CAN ENDS OR FILLED CANS BY BUYER OR ANY PERSON TO WHOM BUYER SELLS THE CAN AND CAN ENDS OR FILLED CANS, (D) BUYER'S NEGLIGENCE OR WILLFUL MISCONDUCT, (E) ANY INFRINGEMENT OR ALLEGED INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS ARISING FROM BUYER'S PLANS, SPECIFICATIONS (INCLUDING BUYER'S TRADEMARKS AND BRAND NAMES) OR PRODUCTION OF THE GOODS, THE SERVICES, OR THE CAN AND CAN ENDS ORDERED BY BUYER; AND (F) BUYER'S VIOLATION OR ALLEGED VIOLATION OF ANY FEDERAL, STATE, COUNTY OR LOCAL LAWS OR REGULATION, INCLUDING WITHOUT LIMITATION, THE LAWS AND REGULATIONS GOVERNING PRODUCT SAFETY, LABELING, PACKAGING AND LABOR PRACTICES. BUYER HEREBY WAIVES AND RELEASES SELLER FROM ALL RIGHTS OF CONTRIBUTION OR INDEMNITY TO WHICH IT MAY OTHERWISE BE ENTITLED.

24. Relationship of the Parties. Neither any Contract for the sale of Goods, Services, or Can and Can Ends nor these Terms and Conditions are intended to create, nor should it be construed as creating, an agency, joint venture, partnership or similar relationship between the Parties. Each Party will act solely as an independent contractor and neither Party will have the right to act for or bind the other Party in any way or to represent that the other Party is in any way responsible for any acts or omissions of such Party. It is understood and agreed that each Party shall be solely responsible for the wages and benefits of its employees.

25. Assignment. Buyer may not assign any of its rights or delegate any of its obligations under any Contract or these Terms and Conditions without the prior written consent of Seller, which consent may be granted or withheld in Seller's sole discretion. Seller may freely assign any of its rights or delegate any of its obligations under any Contract or these Terms and Conditions to any of its lenders for collateral purposes or to any person or entity acquiring all or substantially all of Seller's assets or capital stock. Any purported assignment or delegation in violation of these Terms and Conditions is null and void. No assignment or delegation relieves the assigning or delegating Party of any of its obligations under any Contract or these Terms and Conditions.

26. No Third- Party Beneficiaries. These Terms and Conditions and any Contract benefits solely the Parties and their respective permitted successors and assigns and nothing in these Terms and Conditions or any Contract, express or implied, confers on any other person or entity any legal or equitable right, benefit, remedy of any nature whatsoever under or by reason of these Terms and Conditions and or such Contact; provided that; each Seller Indemnified Party shall be an express third party beneficiary of the provisions of Section 14.6 and Section 23 of these Terms and Conditions and shall have the right to enforce such provisions against Buyer.

27. Governing Law. Each Contract and these Terms and Conditions shall be governed, construed, interpreted and enforced in accordance with its express terms, and otherwise in accordance with the substantive laws of the State of New York without reference to the principles of conflicts of law of the State of New York or any other jurisdiction, and where applicable, the laws of the United States.

28. Venue; Waiver of Jury Trial. Any legal suit, action, or proceeding arising out of or related to any Contract or these Terms and Conditions shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in New York County, New York, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding and waives any objection based on improper venue or forum non conveniens. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER ANY CONTRACT OR THESE TERMS AND CONDITIONS IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO ANY CONTRACT OR THESE TERMS AND CONDITIONS. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO ANY CONTRACT OR ARRANGEMENT FOR THE PURCHASE AND SALE OF GOODS, SERVICES, OR CAN AND CAN ENDS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

29. Attorney's Fees. If Seller pursues any legal action to enforce any of its rights under any Contract or these Terms and Conditions, Seller shall be entitled to recover from Buyer all reasonable attorneys' fees and all other costs and expenses incurred by Seller in connection with such action.

30. Severability. If any provision of any Contract or these Terms and Conditions is held to be invalid, illegal, or unenforceable under present or future laws (a) such provision shall be fully severable, (b) the Contract and these Terms and Conditions shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a portion of such Contract or these Terms and Conditions, and (c) the remaining provisions of the Contract and these Terms and Conditions shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance from such Contract or these Terms and Conditions. In addition, upon a determination that any term or provision is invalid, illegal, or unenforceable, the court may modify the Contract or these Terms and Conditions to give effect to the original intent of the Parties as closely as possible in order that the transactions contemplated by such Contract or these Terms and Conditions be consummated as originally contemplated to the greatest extent possible.

31. Entire Agreement; Amendment; Waiver. The Contract, together with these Terms and Conditions, or these Terms and Conditions in the event that there is no Contract, constitutes the entire contract between the Parties relating to the purchase and sale of Goods, Services, and Can and Can Ends. No amendments or modifications of any Contract or these Terms and Conditions shall be binding on either Party unless such Party agrees to such amendment or modification in writing and in the case of Seller, such writing is executed by an officer of Seller. Other than as provided in the last sentence of Section 3 of these Terms and Conditions, trade usage shall neither be applicable nor relevant to any Contract or these Terms and Conditions, nor be used in any manner whatsoever to explain, qualify or supplement any of provision of any Contract or these Terms and Conditions. No waiver of provision of any Contract or these Terms and Conditions shall be effective unless such waiver is executed by the Party against whom enforcement is sought. No waiver by either Party of a breach of a Contract or these Terms and Conditions shall be deemed a waiver of any subsequent breach. Any waiver authorized on one occasion is effective only in that instance and only for the purpose(s) stated and does not operate as a waiver on any future occasion. Neither of the following constitutes a waiver or estoppel of any right, remedy, power, privilege or condition arising from any Contract or these Terms and Conditions: (a) any failure or delay in exercising any right, remedy, power or privilege or in enforcing any provision of any Contract or these Terms and Conditions, or (b) any act, omission or course of dealing between the Parties. Unless superseded by modified terms and conditions by and between Buyer and Seller or otherwise expressly set forth in a Contract, the terms set forth in these Terms and Conditions shall apply to all purchases and sales of Goods, Services, and Can and Can Ends.