LEGAL

TERMS AND CONDITIONS OF SALE

 
ANY PREPRINTED TERMS, AS WELL AS ANY TERMS THAT ARE DIFFERENT, IN CONFLICT OR SUPPLEMENTAL TO THESE TERMS AND CONDITIONS OF SALE, SET FORTH IN ANY CUSTOMER DOCUMENT PRESENTED TO MAGIC PLASTICS, INC. (“SELLER”) ARE HEREBY DEEMED NULL AND VOID AND OF NO EFFECT. IN ALL EVENTS, THESE TERMS AND CONDITIONS OF SALE SHALL CONTROL. SELLER RESERVES THE RIGHT TO CHANGE THE TERMS AND CONDITIONS OF SALE AT ANY TIME, WITHOUT ADVANCE NOTICE.
 
CUSTOMER POLICY– Products manufactured by Seller are sold through authorized original equipment manufacturers and distributors. Seller reserves the right to sell directly to other entities at its sole discretion.

ORDER ACCEPTANCE– Seller reserves the right to accept or reject any order. Possession of a Price List or other printed materials shall not be construed as an offer to sell the products listed. All orders accepted for shipment are subject to the approval of the Credit Department.

CURRENT PRICES– Prices of products shall be those in effect at the time the order is shipped unless otherwise specified. Prices, discounts and terms of sale are subject to change without advance notice.

MINIMUM BILLING– $50.00 Net (Case Quantity Only)

FREIGHT– All custom orders are FOB, point of shipment. Unless otherwise set forth on the invoice, all orders of Seller’s standard products are FOB, point of shipment.

TERMS OF PAYMENT– All new Customer accounts will be on a Cash in Advance or COD basis until sufficient credit information and documentation is received and approved for an open account. Payment terms for open accounts are Net 30 or as otherwise specified by Seller.
1. Seller reserves the right to levy a service charge on any past due balances at the rate of 1.5% per month or, if less, the highest rate permitted by law. Customer agrees to pay all cost of collection incurred by Seller including attorney fees, regardless of whether formal legal action is instituted in the collection of past due balances.
2. Customer agrees to honor and pay all invoices billed, according to the terms of payment contained herein. Furthermore, Customer agrees not to debit or offset against any invoices billed to it by Seller on account of any claim or defense that Customer has or may have in the future against Seller. In the event that Customer’s account is assigned to a collection agency or commercial lender, customer also agrees not to assert any such claims or defenses against its account with said collection agency or commercial lender.
3. Accounts not paying within terms may, in the sole discretion of Seller, have credit lines reduced or suspended, or be placed on Cash in Advance or COD basis.

CUSTOM ORDERS– Orders for custom injection molded products or special runs of standard products (i.e., using non-ordinary course materials and/ or manufacturing processes) are accepted by Seller as “Custom Orders.” Custom Orders cannot be cancelled by Customer once the order has been placed, whether verbally or in writing.

ERRORS AND CLAIMS– Title to products and risk of damage or loss shall pass to Customer on delivery to carrier. Seller will not be liable for damage or loss caused to a shipment by a carrier. Claims for damaged products, suspected damages, container shortages or pilferage within the container on delivery must be noted on the carrier’s delivery documentation. The carrier’s Claims Representative should then be notified immediately.

PRODUCT CHANGES– Seller reserves the right to alter, modify or redesign its products without notice and without obligation to replace customer stocks or products obsoleted by such changes.

RETURNED GOODS– Written authorization must be obtained from Seller before any products can be returned to Seller for credit. Seller reserves the right to levy a minimum 30% handling and restocking charge on all returns which are Customer’s responsibility. If returned goods and packaging is not returned in a resalable condition, Seller reserves the right to levy additional charges above the 30% handling and restocking charge or to reject the return.

FORCE MAJEURE– Any delay or failure of a party hereto to perform its obligations hereunder (other than the payment of money) will be excused if and to the extent that it was caused by an event or occurrence beyond such party’s reasonable control and without its fault or negligence (“Force Majeure”). Force Majeure includes without limitation acts of God, acts of the other party, actions by any government authority, fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage, acts of terrorism, or court injunction or order. A party claiming Force Majeure shall promptly notify the other party of such event (including its anticipated duration).

GOVERNING LAW– This contract shall be governed by the laws of the State of California without regard to its conflict of law rules. Customer and Seller consent to the jurisdiction of and to venue any dispute involving this Agreement in the state courts for the State of California or the Federal District Court for the Central District of California.

INDEPENDENT CONTRACTOR– The relationship of the parties hereunder is that of independent contractors, and nothing herein shall create, or be deemed to create, a partnership, agency, or the relationship of employer and employee between the parties. Neither party shall have the power or authority to bind the other.

LIMITED WARRANTY FOR STANDARD PRODUCTS– Seller warrants all Seller products (other than Custom Orders) to be free from defects in materials and workmanship in normal use for a period of one (1) year from the date of invoice. This warranty extends to the original Customer only; it is not transferable to anyone who subsequently purchases any Seller product from the original Customer. If Customer receives defective goods or parts, Customer may send such defective goods or parts prepaid to Seller in Valencia, California accompanied by a letter stating the nature of the defect. After examination, if there is determined to be a defect in materials or workmanship, Seller shall, at its sole option and discretion, either rework, repair or replace the defective goods or parts, or reimburse Customer for the cost of the goods or parts. All shipping costs for return of defective goods and replacements are the responsibility of Customer. Customer agrees that Seller will not be held responsible for parts or labor (other than Seller’s parts and labor) in connection with reworking, repairing or replacing of such goods or parts. THE WARRANTY STATED ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS OR OTHER TERMS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TERMS AS TO QUALITY, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR OTHERWISE, WHETHER IMPLIED BY CUSTOM OR LAW.

CUSTOM ORDERS – NO WARRANTY- BUYER ACKNOWLEDGES AND AGREES THAT ALL CUSTOM ORDERS ARE PROVIDED “AS IS” AND SELLER MAKES NO WARRANTIES WITH RESPECT TO SUCH PRODUCTS, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF TERMS AS TO QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, WHETHER IMPLIED BY CUSTOM OR LAW. To the extent that Seller’s personnel suggest design modifications or provide design analysis or advice to Customer, they do so solely to help meet the requirements of Seller’s own manufacturing process. Customer retains sole control of, and legal responsibility for, the design specifications, raw material selections and performance of the goods that are the subject of any Custom Order.

LIMITATION OF DAMAGES– IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE ARISING OUT OF OR RELATING TO THE TRANSACTION CONTEMPLATED HEREBY OR TO THE MANUFACTURE, SALE, DELIVERY, RESALE, REWORK, REPAIR, REPLACEMENT, OR USE OF ANY PRODUCTS, WHETHER SUCH LIABILITY IS BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF SELLER HAD BEEN WARNED OF THE POSSIBILITY OF ANY SUCH DAMAGES.

THE WARRANTIES AND DISCLAIMERS OF WARRANTIES SET FORTH HEREIN MAY NOT BE EXTENDED, ALTERED OR OTHERWISE MODIFIED EXCEPT BY WRITTEN INSTRUMENT SIGNED BY SELLER.

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