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Terms and Conditions

Plastek Industries, Inc.
General Terms and Conditions
for the Supply of Goods and Services

 

  1. Contract Formation.
  • Offer. The proposal and/or quotation (collectively, the "Proposal") issued by Plastek Industries, Inc. (the "Supplier") to the Buyer constitutes an offer to furnish the services and/or goods described in the Proposal to the Buyer.  The Proposal includes and is subject to all of the terms and conditions set forth in these Terms and Conditions of Supply (the "Terms and Conditions").  As used in these Terms and Conditions:  (1) the term "Goods" refers to any tangible property to be delivered or furnished by Supplier to Buyer pursuant to the Proposal; and (2) the term "Services" means any services to be furnished by Supplier to Buyer pursuant to the Proposal, including (but not limited to) the installation of any Goods and/or the design, engineering, manufacturing, construction, or fabrication of any works or Goods. 

 

  • Acceptance. Any purchase order or other form of acceptance issued by the Buyer in response to a Proposal from Supplier shall result in a contract for the purchase of the Goods and/or Services at the price quoted in the Proposal and shall be subject to these Terms and Conditions.  Supplier does not accept any terms contained in any purchase order or other documents issued by Buyer which are different from, conflict with, modify, and/or add to these Terms and Conditions.  Supplier's execution of any document issued by the Buyer shall constitute only an acknowledgement of receipt thereof, and shall not be construed as an acceptance of any of the terms therein.  Unless Buyer shall have set forth each specific objection to these Terms and Conditions in a separate writing signed and dated by Buyer and delivered to Supplier contemporaneously with Buyer's purchase order or other acceptance document, Buyer shall be deemed to have accepted all of these Terms and Conditions.  Buyer's issuance of a purchase order or other document which purports to reject some or all of these Terms and Conditions by virtue of Buyer's standard form language, or otherwise, shall not be sufficient objection.  Where Buyer specifically objects to any of these Terms and Conditions, no contract shall be formed unless and until Supplier agrees to accept in writing Buyer's proposed modifications to these Terms and Conditions.

 

  • Entire Agreement. The Proposal and these Terms and Conditions shall constitute the entire understanding and agreement (the "Contract") between Buyer and Supplier, and shall supersede all prior negotiations, agreements or understandings of the parties with respect to the subject matter hereof.  Any representation or promise (whether oral or written), course of dealing, course of performance, custom, or trade usage will not be binding upon either party.  The Contract may not be amended or modified except by a writing executed by both parties. 

 

  1. Quotes. Quotations issued by Supplier are valid for a period of 45 days from the date of the quote, unless Supplier informs the Buyer within this period, but prior to placing an order, that the quote is void.  If a quote is voided, Supplier may, in its sole discretion, issue a revised quote or not.  Buyer must notify Supplier of any design changes after a quote is made, and Supplier reserves the right to amend any quote, accept the order as revised, or decline an order on the basis of such design changes.  Supplier's election to accept a revised order, re-quote, or decline an order must be expressly stated in writing and cannot be implied by any action or inaction of Supplier.  Any feature not conspicuously identified in Buyer's request for a quote, and not specifically stated in the quote, is not included in the quoted price.   

 

  1. Purchase and Sale of Goods; Furnishing of Services. Subject to these Terms and Conditions, Buyer agrees to buy from Supplier, and Supplier agrees to sell and/or furnish, the Goods and/or Services, for the consideration ("Consideration") specified in the Proposal.

 

  1. Tooling. Unless expressly agreed in writing otherwise by Supplier and Buyer, all tooling, molds, or dies used to manufacture the Goods are owned by Supplier (the "Tooling") and Buyer has no right, title, or interest in or to any of the Tooling.

 

  1. Taxes. Buyer shall be responsible for, and shall pay, any taxes (sales, excise, use, etc.) and any export or import duties which may be applicable to the sale, furnishing and/or delivery of the Goods and Services, and to the performance of any warranty work as may be required under Section 6, below.  Buyer shall defend, indemnify, and hold Supplier harmless from any claim, loss, damage, liability, or expense incurred with regard to the payment of any such taxes or duties.

 

  1. Payment; Security Interest.

 

  • Buyer shall pay the Consideration, all applicable taxes, freight charges, and all other applicable charges in full, in U.S. Dollars, without any deduction for claims, set-offs or recoupment on account of this Contract or any other matter between the parties within the time period set forth below in Section 6.2, as applicable.  Payment shall not be contingent upon buyer testing.  If payment is delayed beyond the date on which it is due, interest shall accrue and be payable by Buyer on the unpaid balance at a rate of one and one-half percent (1 1/2%) per month.

 

  • Payment.

 

  • Services. Unless otherwise specified by Supplier in the Proposal, the Buyer shall pay the entire Consideration within thirty (30) days from the date of receipt of invoice for Services rendered. 

 

  • Domestic Shipments Only. Unless otherwise specified by Supplier in the Proposal, the Buyer shall pay the entire Consideration within thirty (30) days from the date of delivery or the date of shipment of the Goods, whichever is the earlier.  If delivery or shipment is delayed by Buyer, payment shall be due thirty (30) days from the date Supplier notifies Buyer that the Goods are ready for delivery or shipment, whichever is the earlier.  This Section 2.2 shall apply to domestic shipments only.

 

  • International Shipments Only. Unless otherwise specified by Supplier in the Proposal, the Buyer shall pay a non-refundable deposit of fifty percent (50%) of the Consideration upon the execution of this Contract with the balance due and payable at least five (5) business days before the date of delivery or the date of shipment, whichever is the earlier.  The Proposal may specify that Buyer shall pay the Consideration and all applicable charges with an Irrevocable and Confirmed Letter of Credit or upon such other payment terms, as Supplier deems acceptable, in its sole discretion.  If shipment of the Goods is delayed by Buyer, payment of the balance of the Consideration shall be due within fifteen (15) business days from the date Supplier notifies Buyer that the Goods are ready for delivery or shipment, whichever is the earlier.  This Section 2.3 shall apply to international shipments only.

 

  • Security Interest in Goods. Buyer hereby grants to Supplier a security interest in the Goods until all monies due Supplier under this Contract are paid in full.  Supplier shall have the right to file financing statements and any other documents that may be necessary to evidence and perfect such a security interest in the Goods in any jurisdiction. 

 

  1. Delivery/Performance.

 

  • Date. Any delivery date stated in the Contract for the Goods, and/or any date stated in the contract for performance of the Services, is approximate only and shall not constitute any guarantee of delivery or performance on any particular date.  Time shall NOT be of the essence of the Contract with respect to the delivery of the Goods or the performance of the Services.

 

  • Delivery Terms. Unless otherwise specified by Supplier in the Proposal: (1) delivery of the Goods shall be CIP delivery location identified in the Purchase Order (Incoterms 2010); and (2) any delivery terms specified in the Proposal shall be construed in accordance with Incoterms 2010.

 

  • Risk of Loss; Title. Risk of loss with respect to the Goods shall pass from Supplier to the Buyer in accordance with the delivery terms applicable to this Contract, as specified in Section 2, above.  Title to the Goods shall pass from Supplier to the Buyer upon the passage of risk of loss from Supplier to the Buyer. 

 

  • Delay. Supplier shall not be responsible to Buyer or any third party for any damages resulting from any failure or delay in manufacturing, shipping or performance due to any cause beyond Supplier's reasonable control, including, but not limited to:  (1) intervening legal requirements or governmental directives; (2) acts of God; (3) force majeure; (4) labor disputes; (5) delays caused by Supplier's suppliers or vendors; (6) pandemics or spread of disease; or (7) war, terrorism, or similar disruptions.  If shipment of the Goods is delayed by Buyer, Supplier shall arrange for storage at Buyer's sole expense.  In such event, risk of loss to the Goods shall pass to Buyer upon placing the Goods in storage, unless risk of loss has already passed to the Buyer pursuant to the delivery terms applicable to this Contract, as specified in Section 3, above, in which case risk of loss shall remain with the Buyer. 

 

  • Buyer’s Acts or Omissions. If Seller’s performance of its obligations under this Contract is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Seller shall not be deemed in breach of its obligations under this Contract or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.

 

  1. Specifications. The material specifications, quality requirements, or any other aspect of the Goods or their manufacture, and Services provided under the Contract, (the “Specifications”) is governed by the terms of any applicable Proposal by Supplier, including these Terms and Conditions, and acceptance thereof by the Buyer.  If the Specifications in the Proposal materially differs from the acceptance, Supplier may, in its sole discretion, require a written acknowledgment by Buyer of the applicable Specifications.  Buyer is not entitled to change the Specifications without the express written consent of Supplier.  Supplier may refuse to comply with a change to the Specifications.  If Supplier agrees to Specifications different than those in the Proposal, Supplier may condition its consent on price adjustments reflecting the changed Specifications.  All Specifications are subject to Section 10, below.

 

  1. Inspection; Buyer's Remedies. Buyer shall have ten days following the date of shipment or Delivery, whichever is later, to inspect Good for conformance with the applicable Specifications.  If Buyer fails to give written notice of acceptance or non-conformance within such 10-day inspection period, the Goods shall be deemed accepted.  If Buyer gives timely written notice of non-conformance, subject to Sections 8 and 10, Supplier shall inspect the Goods.  If Seller agrees that the Goods do not materially conform with the Specifications, subject to Sections 8 and 10 herein, Seller may, at its sole discretion, rework, replace, or provide a pro-rate refund or credit.  Buyer shall ship, at its expense and risk of loss, the nonconforming Goods to Seller.  Buyer acknowledges and agrees that the remedies set forth herein, as elected by Seller, are Buyer’s exclusive remedies for the delivery of nonconforming Goods.  Except as provided herein, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Contract to Supplier.

 

  1. Quality of Work. Due to the nature of the Suppliers processes (including but not limited to: injection molding; blow molding; plastic packaging assembly via hot glue and sonic welding;  decoration, including various labeling, printing, and stamping processes; and cell manufacturing) and the physical properties of materials used (including but not limited to: plastics, glues, and inks), part tolerance accuracies will be attempted, but are not guaranteed.  Supplier will manufacture the Goods consistent with industry standards.  Tighter tolerances may be requested by Buyer, however tolerances in excess of industry standards do not apply unless expressly agreed to in writing by Supplier.  In the event Buyer requires tighter tolerances than industry standards, additional charges may apply.  Buyer acknowledges that, even after employing industry standard techniques and methods, there are variables which impact the production processes.  To this end, unless otherwise expressly agreed to in writing, Buyer agrees to accept all Goods manufactured in accordance with applicable Specifications provided by Buyer or in accordance with industry standards.  Notwithstanding any other provision here, Supplier shall not be liable for non-conformance of any Goods manufactured according to applicable Specifications or manufactured employing industry standard processes and tolerances.  Supplier makes no claims or warranties regarding the end result or quality of any Goods or Services.  Supplier shall not be responsible or liable for any damage or non-conformance to Goods occurring during the manufacturing process, except for damages caused by gross negligence on Supplier's part.  Supplier may, at its sole discretion, rework, replace, or provide a pro-rata refund, if Supplier agrees that results achieved by its manufacturing process are below industry standards and the Goods created are not within industry standard tolerances. 

 

  1. Part Performance. The technical performance of the Goods or materials used to produce the Goods is the responsibility of the Buyer.  Buyer assumes all liabilities associated with the use of the Goods.  Buyer is responsible for all testing and approval regarding any particular use of the Goods prior to use of the Goods, whether by Buyer or a third party.  Any post-molding distortion to the Goods after acceptance or deemed acceptance are the responsibility of the Buyer to correct. 

 

  1. Use of Goods. Buyer is responsible for complying with all applicable laws, regulations, or rules of any applicable jurisdiction regarding the direct or indirect use of the Goods.  Buyer represents and warrants that the Specifications or other data being provided to Supplier will not produce products that violate any laws, rules, or regulations of the United States of America, Commonwealth of Pennsylvania, or other applicable jurisdiction.  Supplier shall not be liable for violations of United States, Pennsylvania, or other applicable laws, regulations, or other rules that are a result of the manufacturing, delivery, or use of any Goods that were produced on the basis of Specifications, designs, or other data provided by the Buyer. 

 

  1. Warranties.

 

  • Limited Warranties. Subject to the remaining provisions of this Section 13, Supplier makes and gives the following limited warranties, as applicable:

 

  • As to the Goods. For the benefit of the Buyer only, Supplier warrants that all new Goods manufactured by Supplier shall be free from defects in material and workmanship for the periods specified in Section 2.1, below.  Supplier's obligations under this limited warranty are conditioned upon Supplier receiving written notice of any defects no later than the expiration of the applicable warranty period. 

 

  • As to Services. For the benefit of the Buyer only, Supplier warrants that all Services furnished by Supplier shall be free from defects in workmanship for the periods specified in Section 2.2, below.  Supplier's obligations under this limited warranty are conditioned upon Supplier receiving written notice of any defects no later than the expiration of the applicable warranty period. 

 

  • Length.

 

  • As to the Goods. Unless otherwise specified in the Proposal, the limited warranty set forth in Section 1.1, above, begins on the date that risk of loss to the Goods passes to the Buyer and extends for one (1) year.
  • As to Services. Unless otherwise specified in the Proposal, the limited warranty set forth in Section 1.2, above, begins on the earlier of (a) the date on which the Services were last performed, or (b) the date on which the Services and/or the Goods with respect to which the Services were performed were accepted by Buyer.  Such warranty extends for one (1) year.
  • Alteration/Abuse. The limited warranties set forth in this Section 13 shall be void with respect to Goods, and any of Buyer's property or equipment to which Supplier has performed Services, which have been:  (1) altered by Buyer or any third party; (2) repaired by other than Supplier's personnel or a Supplier approved Supplier; (3) subjected to misuse, abuse, neglect or accident; or (4) damaged by improper installation or application.

 

  • Exclusions.

 

  • Buyer-Designed Goods. Supplier assumes no responsibility and makes no warranty with respect to Goods produced by Supplier on the basis of designs, Specifications, or other data provided by Buyer.  All such Goods manufactured on the basis of designs, Specifications, or data provided by Buyer to Supplier are "Buyer-Designed Goods" whether they are designed by Buyer directly or designed by a third party and approved by Buyer.  Supplier makes no representation or warranty with respect to any specific use of Buyer-Designed Goods, nor with respect to the non-infringement of Buyer-Designed Goods. 

 

  • Third Party Products. Products manufactured by a third party (“Third Party Products”) 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 set forth in Section 1.  SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. 

 

  • Medical Use. Notwithstanding the limitations of warranty provided elsewhere herein, Suppliers specifically disclaims any warranty regards the utilization of the Goods for any medical use.  This disclaimer includes, but is not limited to, the following disclaimers (1) that, to the extent the Goods are used by the Buyer as a component part of a product that will be used for a medical use, Supplier specifically disclaims any duty to analyze the use by Buyer of the Goods in Buyer’s product or the design of Buyer’s product or integration of the Goods therein; and (2) if the Buyer is a manufacturer of a product to be used for a medical use, Supplier, as a supplier of Buyer, disclaims any and all warranties with respect to Buyer’s product or the use thereof. 

 

  • Exclusive Warranty. THE WARRANTY SET FORTH IN SECTION 14, BELOW, WITH RESPECT TO PATENT INFRINGEMENT, AND THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 13, ARE THE EXCLUSIVE WARRANTIES GIVEN BY SUPPLIER WITH RESPECT TO THE GOODS AND SERVICES AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED. 

 

  • Limitation of Remedies for Breach of Warranty. In the event of a breach of the limited warranties set forth in this Section 13, Buyer's sole remedy, and Supplier's  sole obligation, is limited to the repair or replacement of the Goods or the re-performance of the Services by Supplier, or credit or refund of the pro rata price of such Goods or Services, at Supplier's option.  Such limitation shall apply regardless of whether the claim is characterized as arising out of breach of warranty, contract, tort, strict liability, statutory liability, indemnity, or otherwise.  The expense of freight for the Goods and/or replacement parts to and from the repair site shall be the sole responsibility of Buyer.  If the repair site is other than a Supplier factory or a location designated by Supplier, reasonable out of pocket expenses, including, but not limited to, travel and lodging for Supplier's service personnel shall be the sole responsibility of the Buyer.  Buyer shall be solely responsible for any costs associated with making the Goods accessible or otherwise available to Supplier for the performance of repair work on, or the replacement of, the Goods, or the re-performance of Services.  Unless otherwise agreed in writing by Buyer and Supplier, Supplier shall not be responsible for any back charges of any nature whatsoever.

 

  1. Patent Infringement.

 

  • Warranty. Subject to the remaining provisions of this Section 14, Supplier warrants that the Goods, and any part of the Goods which are manufactured to Supplier's design, shall be delivered free of any rightful claim of infringement of any United States patent. 

 

  • Obligation to Defend. Upon prompt written notification by Buyer of any claim of patent infringement, Supplier shall defend or settle any claim of patent infringement at Supplier's sole cost and expense.  Buyer shall provide any information and assistance requested by Supplier in providing such defense.

 

  • Remedies. Supplier shall pay all damages and costs awarded against Buyer incurred as a result of a breach of the warranty contained in this Section 14.  In the event that the use of the Goods or parts is enjoined or in the event Supplier decides to defend or settle a claim of patent infringement, Supplier shall at its sole expense and option, either:  (1) procure for Buyer the right to continue using such Goods or parts; (2) replace the Goods or parts so that they are non-infringing; or (3) remove the Goods or parts and refund the purchase price, less reasonable depreciation for any period of use.  The remedies set forth in this Section 3 shall constitute the sole and exclusive remedies of the Buyer in the event of a breach of the warranties contained in this Section 14.

 

  • Exclusions. The warranty set forth in this Section 14 shall not apply to:  (1) any Goods or parts specified by Buyer or manufactured to Buyer's design; (2) any Goods or parts altered or modified by Buyer; or (3) the use of any Goods in conjunction with any other product, not manufactured by Supplier.  With respect to the Goods described in this Section 4, Supplier assumes no liability for patent infringement and Buyer shall defend, indemnify and hold Supplier harmless from any claims, liability, damages or expenses, including reasonable attorneys' fees, as a result of any patent infringement claims arising therefrom.

 

  1. Limitation of Damages.

 

  • Exclusion of Certain Damages. In no event shall Supplier or Supplier's employees, officers, directors, representatives, affiliates and/or agents be liable for consequential, incidental, special, exemplary, or punitive damages incurred by Buyer or any third party in connection with any matter arising out of or relating to this Contract, or the breach thereof, regardless of whether such damages are foreseeable or are characterized as arising out of breach of warranty, tort, contract, strict liability, statutory liability, indemnity or otherwise. Such limitations shall apply regardless of whether Supplier has been advised or has otherwise been made aware of the possibility of such damages arising.  For purposes of this Section 15, consequential damages include, but are not limited to:  (1) Buyer's lost production, sales and/or profits; (2) Buyer's loss of use of the Goods and/or any other equipment; (3) Buyer's cost of capital; or (4) any claims of customers of the Buyer against Buyer or Supplier.

 

  • Limitation on Amount. Notwithstanding any other provision of this Contract, the total liability, in the aggregate, of Supplier and Supplier's employees, officers, directors, representatives, affiliates and agents to Buyer or any third party claiming through or under Buyer for any claims, losses, damages, or costs arising out of or relating to this Contract, or the breach thereof, shall not exceed the total Consideration received by Supplier from Buyer under this Contract.  This Section 2 shall apply regardless of whether the claim is characterized as arising out of breach of warranty, contract, tort, strict liability, statutory liability, indemnity or otherwise. 

 

  1. Buyer Indemnity. Buyer agrees to indemnify, defend, and hold harmless Supplier and Supplier’s employees, officers, directors, representatives, affiliates, agents, successors and assigns from and against any and all damages, losses, expenses, costs (including, but not limited to, reasonable attorney’s fees), claims, suits, actions, judgments, or other liabilities asserted against or incurred by Supplier arising out of, relating to, or resulting from: (1) Buyer’s breach of its obligations under this Contract; (2) Buyer’s negligence or other misconduct; (3) Buyer’s (or its employees’, agents’, or customers’) use or misuse of the Goods or Services; or (4) damages to the Goods or Services caused by Buyer or Buyer’s employees, agents, or customers. 

 

  1. Default by Buyer.

 

  • Termination of Contract. Supplier may terminate this Contract if Buyer has committed an event of default under this Contract.  For purposes of this Contract, an event of default by Buyer includes, but is not limited to:  (1) Buyer becomes insolvent; (2) Buyer is unable to meet its obligations as they become due or admits such in writing; (3) Buyer enters bankruptcy or has a receiver or trustee appointed for it; (4) Buyer fails to timely make payments under this Contract or under any other obligation of Buyer to Supplier; or (5) Buyer fails to provide Supplier with adequate assurance of due performance within fifteen (15) days of Buyer's receipt of Supplier's written demand therefor.  In the case of such a termination, Buyer shall be considered to have defaulted under this Contract and Supplier shall have such remedies as are available to it under this Contract and/or at law. 

 

  • Delay of Performance.

 

  • As to Goods. Supplier shall be entitled to delay delivery and/or shipment of the Goods in the event that Buyer has committed an event of default under this Contract, as described in Section 1, above.  The period of delay shall be for such period of time that Buyer is in default plus such additional time as Supplier may reasonably require to re-mobilize and to otherwise place itself in a position to resume performance.  Supplier shall not be obligated to make delivery and/or shipment of the Goods so long as Buyer is in default under this Contract.  Supplier's obligation to make delivery and/or shipment of the Goods shall terminate upon Supplier's termination of this Contract in accordance with Section 17.1, above.

 

  • As to Services. Supplier shall be entitled to delay the performance of any Services in the event that Buyer has committed an event of default under this Contract, as described in Section 1, above.  The period of delay shall be for such period of time that Buyer is in default plus such additional time as Supplier may reasonably require to re-mobilize and to otherwise place itself in a position to resume performance.  Supplier shall not be obligated to perform any Services so long as Buyer is in default under this Contract.  Supplier's obligation to perform the Services shall terminate upon Supplier's termination of this Contract in accordance with Section 17.1, above. 

 

  • Remedies Not Exclusive. The remedies specified in this Section 17 are not exclusive.  In the event of a breach of this Contract by Buyer, Supplier shall be entitled to exercise any remedy it may have under this Contract and/or applicable law.  The exercise of any remedy shall not be deemed to be an election of remedies or an exhaustion of remedies.  All remedies available to Supplier shall be considered cumulative and may be exercised by Supplier as often as Supplier may deem necessary and appropriate to preserve and enforce any and all rights which Supplier may have under this Contract and/or applicable law.

 

  1. Other Provisions.
    • Dispute Resolution. Any dispute, controversy or claim arising out of or relating to this Contract, or the breach thereof, shall be settled in the Pennsylvania State Court located in Meadville, Pennsylvania, or the Federal Court located in Erie, Pennsylvania, as the case may be.  Supplier and Buyer irrevocably consent to sole and exclusive jurisdiction in the foregoing courts. 
    • Limitation of Actions by Buyer. Any actions against Supplier with respect to any matter arising out of or relating to this Contract must be brought by Buyer, or anyone claiming through or under Buyer, within the earlier of:  (a) one (1) year from the date that the claim in question accrued; or (b) the expiration of any applicable statute of limitations.
    • Limitations are Independent Covenants. The limitations set forth in this Contract, including, but not limited no, limitations of remedies, exclusion of damages, limitation on amount of damages, and limitations on claims, are each independent covenants and not dependent on any other covenant or term herein. 

 

  • Governing Law. This Contract shall be construed in accordance with the laws of the Commonwealth of Pennsylvania, without reference to any applicable principles of conflicts of law which would direct the application of the laws of another jurisdiction.
  • The waiver of any right or default in any one instance shall not be deemed a waiver of any future right to enforce this Contract.  No waiver by Seller of any of the provisions of this Contract is effective unless explicitly set forth in writing and signed by Seller.  No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Contract operates, or may be construed, as a waiver thereof. 
  • Relationship of Parties. Nothing in this Contract shall be construed as creating an agency, partnership, joint venture, or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have the authority to contract for or bind the other party in any manner whatsoever.  The relationship between the parties is that of independent contractors.
  • This Contract may not be assigned by Buyer without the written consent of Supplier.
  • If any provision of this Contract is held to be invalid or unenforceable for any reason, the remaining provisions shall remain in full force and effect.
  • Buyer Disclosures. Unless otherwise agreed to in writing by Supplier, any information or ideas transmitted by Buyer to Supplier in connection with this Contract shall not be regarded as a trade secret of, or submitted in confidence by, the Buyer.
  • 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 this Contract is confidential, solely for the use of performing this Contract 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.
  • No License or Sale of Intellectual Property. The sale of the Goods to the Buyer does not grant to, convey to or confer upon Buyer a license or any other rights, express or implied, under any patent, copyright or other intellectual property right of Supplier encompassed within, covering or relating to the Goods or used by Supplier in performing.  All such intellectual property rights shall remain the sole property of Supplier.  To the extent that any such intellectual property rights are encompassed within the Goods, Buyer may make use of such intellectual property solely for the purpose of properly operating and maintaining the Goods, and for no other purpose (including, without limitation, reproducing the Goods or any components thereof).
  • Recovery of Expenses. Supplier shall be entitled to recover from Buyer all costs and expenses (including, but not limited to, reasonable attorney's fees) which are incurred by Supplier in enforcing its rights under this Contract, including, but not limited to, the recovery of any amounts owed by Buyer to Supplier under this Contract.
  • Force Majeure. The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Contract, for any failure or delay in fulfilling or performing any term of this Contract when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic or pandemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of ninety (90) days, Buyer shall be entitled to give notice in writing to Seller to terminate this Agreement.
  • No Third Party Beneficiaries. There are no third party beneficiaries with respect to this Contract between the Buyer and Supplier, including (but not limited to) any customers of the Buyer or any affiliates of the Buyer.
  • Any notice or invoice sent in connection with the provision of any Goods or Services must be in writing and shall be deemed received three calendar days after it is sent. 
  • Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Contract including, but not limited to, the following provisions: Confidential Information, Governing Law, Dispute Resolution, and Survival.
  • Amendment and Modification. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.
  • Section headings herein are for convenience only and shall not impact the meaning or interpretation of these Terms.
  • Further Assurances. Buyer and Supplier, at their own cost and expense, shall execute and deliver such documents and instruments, and take such actions, as may be reasonably required and appropriate to carry out the intent of these Terms and the Contract.

 

1653581.4

 

  1. FDA/EUA NOTICES. Due to the shortage in personal protective equipment (“PPE”), Plastek has shifted manufacturing to production of face shields pursuant to an FDA Emergency Use Authorization (“EUA”).  We are required to disclose that:
    • The Product has not been FDA cleared or approved;
    • The Product has been authorized by the FDA under an EUA for use by healthcare providers as PPE; and
    • The Product is only authorized for the duration of the declaration that circumstances justifying the authorization of emergency use under Section 564(b)(1) of the Act, 21 USC 360bbb-3(b)(1)) unless the authorization is terminated or revoked sooner. The EUA for the Product is available at https://www.fda.gov/media/136842/download.
  2. PRODUCT USE.
    • NATURE OF PRODUCT. The product is a full-face shield with stretch head band (the “Product”) designed, manufactured, and distributed pursuant to an EUA.  The Product is a single-use, single-user, disposable standalone face shield.  The Product is not designed for multiple uses, or for use by multiple users.  The Product does not contain antimicrobial or antiviral protective properties.  The Product does not protect against infection.  The Product does not protect against radiation.   The product is not effective for the prevention of COVID-19 or treatment of COVID-19 patients.  
    • DIRECTIONS FOR USE. The Product is intended and designed for use only as a shield of the face to avoid splattering or splashing liquid.  Dispose of appropriately after one use.  When the Product is dirty or damaged it should be replaced.  This Product is for individual use and should not be shared with others.  This Product is “one size fits most.”  Do not use the Product if it does not fit you because it may not perform as designed.  Do not use the Product if it impairs your vision or its use otherwise creates unsafe circumstances. 
    • PROHIBITED USE. DO NOT USE the Product as protection against impact from solid objects; while engaging in any activities involving the use of flame or heat-producing equipment; as protection against a strong light source, vapors or gases, sparks, radiation or ultraviolet rays; as a shield against substances capable of burning, corroding, or dissolving materials, such as acids or other caustic substances; or while smoking.  Do not use the Product in the presence of a high intensity heat source or flammable gas. 
    • PRODUCT MATERIALS. The Product has three components, a frame, a band, and a shield.  The components are made out of the following materials: frame material—ABS (acrylonitrile butadiene styrene); band material—TPE (thermoplastic elastomer); and shield material—APET (amorphous-polyethylene terephthalate).  None of the materials include any drugs or biologics. 
  3. LIMITED WARRANTY.
    • LIMITED WARRANTY. Plastek warrants that the Product shall be free from material defects in material and workmanship for a period of one year from delivery, normal wear and tear excepted (the “Limited Warranty”).
    • EXCLUSIONS. Any misuse or negligence by Buyer of the Product shall void the Limited Warranty.  Buyer’s willful damage; unauthorized repair or alteration to the Product; negligence; or abnormal storage, use, or working conditions shall void the Limited Warranty.  Buyer’s use of the Product after discovery of a material defect shall void the Limited Warranty.
    • DISCLAIMER OF WARRANTIES. The Limited Warranty is the sole and exclusive warranty of Plastek with respect to the Product.  Plastek specifically disclaims all other warranties, whether express or implied, without exception, including but not limited to the warranty of merchantability and warranty of fitness for a particular purpose. 
    • NOTICE. Buyer must provide Plastek with written notice of any material defect of the Product within a reasonable time after discovering any material defect(s) with respect to the Product(s). 
    • REMEDY. Buyer’s sole remedy with respect to breach of the Limited Warranty, shall be repair of the Product, replacement of the Product, or refund, with the choice of remedy being at the sole discretion of Plastek.
  4. NO RETURNS. Due to the ongoing COVID-19 pandemic and the nature the face shields as single-use and single-user PPE, Plastek is not offering refunds, accepting returns, or offering exchanges of face shields.  All sales are final.  There are no refunds, returns, or exchanges, without exception (outside of Plastek’s election of remedy after breach of the Limited Warranty).

 

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