Silgan Equipment Terms and Conditions of Sale
Exhibit 1 to Price Quotation
Terms and Conditions of Sale and Technical Service
The quotation (”Quotation”) for the equipment, spare parts, and servicedescribed is subject to the following terms and conditions of sale:
1. Warranties. Provided Customer is in compliance with its obligations under this Agreement, Silgan warrants that:
- The equipment shall conform to the Features and Technical Data set forth in the Quotation.
- The equipment shall be free from defects in materials and workmanship for a period of twelve (12) months from installation, but not to exceed fifteen (15) months from shipment, except that all electrical parts and components are warranted for ninety (90) days from installation, and components or accessories manufactured or supplied by a third party, such as motors, gearboxes (excluding seals) are warranted as provided by the OEM.
- Spare Parts shall be free from defects in materials and workmanship for a period of ninety (90) days from shipment date. Exclusions: include seals, belts, wear parts. All parts are required to obtain an RMA number prior to return and will be subject to inspection prior to the release of a replacement part. Any parts determined to be damaged during customer installation or handling will be void of warranty
- Service workmanship is warranted for thirty (30) days from date of service. All parts used during the service visit will be warrantied as spare parts. All warrantied service will be subject to travel and expense costs to be reimbursedby the customer net 30 days from date of invoice.
- It is conveying good title, free from any security interest, lien or encumbrance for all equipment that is full paid for.
- The equipment as shipped does not infringe any third party owned United States patent covering the mechanical operation and construction of the equipment, but not otherwise.
- All services provided by Silgan, shall be performed by trained and appropriately skilled individuals in accordance with the professional standards applicable to the services performed.
2. Limitation on Warranties.
- EXCEPT AS SET FORTH IN THIS SECTION, SILGAN EXTENDS NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- The above warranties do not include normal wear parts, such as belts, drag rubbers or any other part that the closures or containers come into contact with.
3. Conditions and Remedies for Breach of Warranty.
- Any claim made by Customer against Silgan under the above warranty shall be in writing, setting forth in such detail as may be available the nature of the claim. Notice of such claim shall be delivered to Silgan promptly after such claim is known.
- Customer shall provide Silgan reasonable access to the equipment and Customer’s facilities in order to permit Silgan to investigate the claim.
- In the event the equipment fails to meet the above warranties, Customer’s sole and exclusive remedy shall be to require Silgan to replace any defective parts and to correct the nonconformity to meet the above warranties. At Silgan’s sole and exclusive option, Silgan may remove the equipment and refund the purchase price paid, following which it shall have no further obligations under this Agreement. In the event Silgan shall exercise its option to remove the equipment and refund the purchase price paid, Customer agrees to grant Silgan a reasonable means of ingress and egress for such purpose.
- In the event any service provided by Silgan fails to meet the above service warranty, Customer’s sole and exclusive remedy shall be to require Silgan to perform such service as required to comply withthe above warranties.
- The above remedies shall not apply in the event Customer is (i) in breach of its obligations under this Agreement, or (ii)the cause of the failure of the equipment or services to conform to the above warranties.
4. Limitation on Liabilities.
- IN NO CASE SHALL SILGAN BE LIABLE TO CUSTOMER FOR ANY LOST PROFITS OR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, OR ANY PRODUCT LOSS OR LINE DOWNTIME AS A RESULT OF ANY CLAIM.
- Silgan shall have no responsibility to Customer for any claim arising out of improper equipment installation, startup or maintenance unless such installation, startup or maintenance of the equipment is to be performed by Silgan under this Agreement.
5. Guards. Customer agrees to maintain all necessary guards and other safety features with respect to the equipment. Customer further agrees to supply any guard or other safety feature required for the safe operation of the equipment not required to be supplied by Silgan pursuant to this Agreement.
6. Confidential Information. Each party acknowledges that it may obtain information or materials which the disclosing party maintains as proprietary and confidential (“Confidential Information”), including the terms of this Agreement. Each party agrees that as the recipient of such information, it will consider and protect such information as Confidential Information of the disclosing party, and that it will not disclose or permit disclosure of such Confidential Information or use of it except for the benefit of the disclosing party. Confidential Information shall not include (a) information that is or becomes generally available to the public, other than as a result of a breach by a party hereunder; (b) information properly obtained from a completely independent source; or (c) information which the other party can demonstrate was independently developed without use of or access to the disclosing party’s Confidential Information. The duty of confidentiality provided herein shall not apply to information that a party is required to disclose by law, provided that such party gives prompt notice to the disclosing party and cooperates with the disclosing party to protect its Confidential Information, and provided that such disclosure is limited to such disclosure as may be required by law. This confidentiality provision shall not supersede but shall supplement any existing confidentiality agreement between the Parties.
7. Force Majeure.
- Force Majeure Event. If the performance of this Agreement by either party hereto, other than the payment of money due hereunder, is delayed, interrupted, or prevented by reason of any strike, labor difficulty, lockout, shortage of materials, fire, explosion, mobilization, war (declared or undeclared), hostilities, riots, rebellion, revolution, blockade, act of any government or agency or subdivision thereof, acts of public enemies, or other acts of God or any other cause, whether or not of the nature or character specifically enumerated above, which is beyond the reasonable control of such party, (i) such party shall be excused from the performance of this Agreement (other than the payment of monies due hereunder) while and to the extent that such party is delayed, interrupted or prevented from so performing by one or more of such causes; and (ii) the performance of this Agreement shall be resumed as soon as practicable after such disability is removed.
- Force Majeure Notice. The disabled party shall give notice to the other within such reasonable time as may be practicable after the occurrence of an event of force majeure, and, insofar as known, the probable extent to which it will be unable to perform or will be delayed in performing its obligations hereunder. The disabled party shall give the other party prompt written notice when the cause or causes of delay, interruption or prevention of performance have been eliminated.
8. Disputes. Any dispute arising under this Agreement, except as expressly set forth in hereafter, shall be submitted to JAMS pursuant to its Comprehensive Arbitration Rules and Procedures, before a three independent arbitrators in Chicago, IL. The award rendered by arbitration shall be final and binding on the parties hereto, and judgment upon the award may be entered in any court of competent jurisdiction in the United States. The parties agree that any claim for non-payment of the purchase price ofthe equipment or any services performed under this Agreement, or for equitable relief shall not be subject to arbitration and shall be presented to a court of competent jurisdiction.
9. Governing Law; Jurisdiction. This Agreement shall be governed by, and construed and interpreted in accordance with, the laws of the State of Illinois, without respect to its rules on the conflict of laws. The federal and state courts in the State of Illinois shall have sole and exclusive jurisdiction over any claim arising under this Agreement. The parties agree to submit to the jurisdiction of such courts and waive any defense to such venue. Each party waives any right to a trial by jury with respect to any claim arising under this Agreement.
10. Assignment. This Agreement shall not be assigned or otherwise transferred in whole or in part, by either party, without the prior written consent of the other party hereto, which consent shall not be unreasonably withheld, delayed or conditioned. Any attempt to assign this agreement or any rights hereunder other than as provided above shall be null and void.
11. Modification; Waiver.
- These terms and conditions are an integral part of the quotation set forth above and may not be modified in any manner except by an instrument in writing signed by a duly authorized officer or representative of Silgan.
- The failure of either Party hereto to enforce at any time any of the provisions of this Agreement shall in no way be construed to be a waiver of such provisions nor in any way to affect the validity of this Agreement or any part thereof, nor the right of any Party thereafter to enforce each and every such provision. No waiver of any breach of this Agreement shall be held to be a waiver of any other or subsequent breach.
12. Independent Contractors. The parties acknowledge that the relationship established under this Agreement shall be that of independent contractors. Silgan and Customer shall not be deemed partners, joint venturers or agents for one another for any purpose whatsoever.
13. Corporate Authority. Each party warrants to the other that it has the corporate power and authority to enter into this Agreement and to carry out the transactions contemplated by this Agreement and that this Agreement has been duly executed and delivered on its behalf.
- Any notice herein required or permitted to be given shall be in writing and shall be personally delivered or sent by a recognized delivery service, or by certified mail, postage prepaid, return receipt requested, to, and shall be deemed to have been given when such writing is received by the intended recipient thereof. For the purposes hereof, the addresses of the parties hereto, until notice of a change thereof is given as provided in this provision, shall be as set in the Quotation. All notices to Silgan shall be to the attention of the General Manager, with a copy to Silgan’s General Counsel at 21800 Oxnard St., Suite 600, Woodland Hills, CA 91367.
- This Agreement, which includes the recitals hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof, and, other than any confidentiality agreements between the parties, supersedes any and all prior agreements, understandings and representations between the parties whether written or oral relating to the subject matter hereof. Form documents issued by either party shall serve only to identify equipment or services ordered, and shall not be deemed to alter or otherwise modify this Agreement in any manner whatsoever. Headings contained in this Agreement are for convenience only and are not a part of this Agreement and do not in any way interpret, limit or amplify the scope, extent or intent of this Agreement or any of the provisions hereof. Any terms or conditions of this Agreement which by their terms extend beyond termination or expiration of this Agreement or which by their nature should so extend shall survive and continue in full force and effect after any termination or expiration of this Agreement. If anyprovisionofthisAgreementisdeterminedbyacourtofcompetentjurisdictiontobenullandvoidorunenforceable,thatprovisionshallbedeemedtobesevered from the Agreement,and theremainingprovisionsofthisAgreementshallremaininfullforceandeffect. This Agreement may be executed in one or more counterparts and counterparts signed in the aggregate by the parties shall constitute a single original instrument. The parties agree that a facsimile or PDF copy of a signature of a party hereto shall have the same effect and validity as an original signature.