General Conditions of Sale and Delivery

• Definitions

PHOENIX PLASTICS, a Texas LP, is the “Seller” for all transactions referenced herein. Any person or entity purchasing or offering to purchase Products from Seller is herein referred to as the “Purchaser”. The products and services delivered or to be delivered by Seller to Purchaser, including spare parts, are herein referred to as the “Products”.

• Acceptance of Terms

1. The terms and conditions of sale and delivery herein set forth (the “Terms and Conditions“) shall constitute the sole and exclusive agreement between Seller and Purchaser with respect to any transaction between Seller and Purchaser.
2. Mere issuance of Purchaser’s form containing different or additional provisions shall not constitute a specific objection.
3. Each order shall not be effective until Seller shall have accepted it in writing.
4. Seller’s acceptance of Purchaser’s order shall not constitute an acceptance of printed provisions on any form supplied by Purchaser which are different from or additional to any term hereof, unless specifically accepted in writing by an authorized officer of Seller, and such different or additional provisions are hereby expressly rejected.
5. Seller reserves the right to correct clerical and typographical errors at any time.

• Prices and Payment Conditions

1. All prices listed in any catalogues, advertisements, price lists or other materials furnished to Purchaser by Seller are subject to modification by Seller and are not binding unless so stated in writing by Seller.
2. Unless otherwise agreed in writing by Seller, freight, insurance, packaging and any such other costs incurred in respect of the Products, as well as any sales, use, value added or similar taxes that are assessed against the Products or in connection with the sale or use of the Products, are not included in the price.
3. Unless Seller has so specified in writing, price quotes are subject to change at any time prior to shipment of the Products. Seller reserves the right to change prices, after shipment of the Products and before full payment is received, to reflect changes in the cost of raw materials, import and export duties, insurance premiums, freight charges, currency exchange rates or governmental actions which affect Seller’s total cost of the Products. Prices quoted in U.S. Dollars shall, at Seller’s option, be subject to modification in the event of any increase or decrease of value of the Euro against the U.S. Dollar in excess of three percent (3%).
4. Unless Seller otherwise states in writing, all prices are EXW (incoterms 2000) Seller’s warehouse, store or such other location as Seller may identify from time to time.
5. The Purchaser shall remit the sales price as agreed on for each individual order either by check with the order or by wire transfer in immediately available funds (all banking and related charges being payable by Purchaser) without offset or reduction to an account identified by Seller no later than fourteen (14) days from the invoice date.
6. Late payments shall be subject to a late charge of $25 and an interest charge equal to the prime rate (as reported by the Wall Street Journal from time to time), plus eight percent (8%) or the maximum permissible interest rate, whichever is lower. In addition, Purchaser shall reimburse Seller for any costs and expenses incurred as a result of Purchaser’s failure to make a timely payment, including without limitation attorneys’ fees and expenses incurred in connection with the collection of such amounts.
   • In the event of Purchaser’s bankruptcy, insolvency or failure to make one or more timely payments to Seller, Seller may suspend or terminate any pending orders and/or may refuse to accept any future orders and/or may require advance payment for future orders and/or may require security for any future payment. Upon Seller’s request, Purchaser shall provide evidence satisfactory to Seller of Purchaser’s solvency and financial wherewithal.
   • Upon Purchaser’s failure timely and fully to pay any invoice in accordance with its terms, Seller may declare all other pending invoices of Seller to Purchaser immediately due and payable.
   • The receipt and acceptance by Seller of any partial payment shall not constitute a waiver of any of Seller’s rights set forth herein or provided by law.

• Specifications & Products

1. Purchaser shall review all specifications, drawings and descriptions regarding any Product prepared by Seller. If any modifications to specifications shall be necessary, Purchaser shall, within fourteen (14) days after the delivery of such specifications, drawing and/or description, request any modification in writing of Seller, describing in sufficient detail any such required modification. Upon Seller’s request, Purchaser shall sign and submit the final specifications, drawings and/or description to Seller.
2. All specifications, drawings and descriptions set forth in catalogues, proposals, websites or other materials furnished to Purchaser by Seller are subject to modification by Seller and are not binding unless so stated in writing by Seller.
3. Seller reserves the right to modify, improve or discontinue Products, or to change specifications, at any time, without notice.

• Terms of Delivery

1. Any delivery dates furnished by Seller to Purchaser are estimates only and do not bind Seller to ship or deliver the Products on the dates indicated unless specifically so stated by Seller in writing to be binding.
2. Purchaser acknowledges that its failure to submit relevant data and materials to Seller or to meet certain pre-shipping requirement (e.g., failure to obtain an approval or permit, a required letter of credit, an import or export license or customs certificate, insurance coverage or to make an advance payment), in a timely fashion may lead to a late delivery, for which Seller shall not be subject to any liability.
3. Seller reserves the right to make partial shipments and to submit separate invoices to Purchaser for each such partial shipment.
4. If Purchaser defaults in its obligations in regard to any partial shipment, Seller may suspend any additional shipments unless and until Purchaser cures such default.
5. Binding delivery dates are subject to change for any cause which interferes with Seller’s or Seller’s supplier’s production, supply or transportation of the Products.
6. If Seller fails to comply with any binding or non-binding delivery dates, makes a partial shipment, or fails to perform its obligations in accordance with any other agreed upon time limits, Seller shall not incur any liability whatsoever for any direct, indirect, consequential, incidental, special, exemplary or punitive damages (including claims for loss of profits or Purchaser’s  customers’  claims  arising out  of or
7. Relating to any change in any delivery date, any partial shipment or untimely performance) which may be incurred by Purchaser or any other person or party.
8. Title to the Products sold hereunder shall pass from Seller to Purchaser simultaneously with the passing of the risk of loss under the applicable shipping term.
9. As a result of operational circumstances, Seller may ship, and Purchaser hereby agrees to accept, up ten percent (10%) more or fewer Products than set forth in the relevant order and the purchase price shall be adjusted accordingly.
10. If a  shipment  of Products is delayed  other than due to  a Force  Majeure  Event  or  due  to  any  action  or  omission of Purchaser for  more  than  fourteen  (14)  days  beyond  any binding delivery date, Purchaser may, upon written notice to Seller delivered prior to the delivery of such Products, refuse acceptance of such order. The right to terminate set forth in the  foregoing  sentence  shall  be Seller’s sole and exclusive remedy for any such delay. Upon delivery to Purchaser of any Products refused by Purchaser  in accordance  with  this Section,  Purchaser  shall  notify Seller  and  shall  deliver,  at Seller’s expense, such Products to any location and by such means as identified by Seller.
11. Should the shipment or transport of the Products be delayed for any reason for which the Purchaser is responsible, Seller shall be entitled to store the Products at Purchaser’s cost and risk and to take all other measures which in Seller’s judgment are suitable to safeguard the Products and to invoice the Products as if delivered.
12. Purchaser shall be responsible for the costs of packaging the Products and for disposing packaging materials in compliance with applicable laws, rules and regulations
13. Purchaser would be responsible for any Re-Stocking fee and freight of returned product that are aceepted upon  mutual agreement between Seller and Purchaser.

• Force Majeure

1. If for any cause beyond Seller’s control (e.g., war, riot, labor dispute, strike, energy shortage, storm or other natural disaster, accident or extraordinary governmental action) (each a “Force Majeure Event”), Seller shall be unable to manufacture or have manufactured or deliver any Product to Purchaser, then Seller shall be relieved of its obligations under any pending orders, and such inability to perform shall not create any liability on Seller’s part.
2. Upon the occurrence of any Force Majeure Event, Seller shall notify Purchaser thereof.
3. Purchaser, upon written notice to Seller, may cancel any pending order for Products by written notice to Purchaser if, due to any Force Majeure Event, Seller shall have failed to deliver such Products within fourteen (14) days after any binding delivery date.

• Limited Warranty

1. Seller warrants that the Products shall substantially conform to the design specifications established by Seller in regard to the Products under normal use and service, in line with generally accepted industry standards and the relevant state of the art, unless otherwise agreed by Seller and Purchaser.
2. If any failure to conform to the warranty is reported to Seller in writing within five (5) days after the date of delivery of the Product to Purchaser and to the extent that any material non-conformance cannot be detected by a reasonable and customary inspection, such report shall be made on or before the first anniversary of the delivery of the Product to Purchaser. Purchaser shall grant Seller and its representatives an opportunity to inspect the allegedly defective Products. Seller, upon being satisfied of the existence of such non-conformity, shall, within thirty (30) days of such determination, correct the same by delivering to Purchaser replacement of such quantity of the Product as shall be subject to such non-conformity. To the extent feasible, Purchaser shall separate non-conforming Products from conforming Products, and Purchaser shall be deemed to have accepted the conforming Products. If Seller is unable to correct such non-conformity by delivering replacement Product, whether due to the nature of such non- conformity, the use made by the Purchaser of the Product, or for any other reason, Seller shall return to Purchaser the purchase price thereof, or, where appropriate, the unit price for such number or quantity of the Products as shall have such non-conformity which Seller is unable to correct.
3. The warranty set forth in this Section VII shall apply not only to the Products but also to any replacement Products.
4. This warranty does not cover damage or defects caused by or resulting from (i) unauthorized alterations or modifications to the Products, (ii) negligence, accident, abuse, misuse, improper, unsuitable or abnormal usage, repair or storage of the Products, (iii) failure to conform strictly to Seller’s specifications and instructions in connection with the processing, use, storage or alteration of the Products, (iv) defects due to specifications supplied by Purchaser, (v) exposure of the original Product (or processed or converted semi-finished or finished products) to unreasonable temperatures or other environmental conditions, or (vi) storage and usage past specified Product life*). Ordinary wear and tear as well as aging shall not be considered a defect in workmanship or materials. (*if not specified otherwise specified Product life is (6) six months after shipment from Sellers warehouse if product is in its original packaging and stored under dry and normal room temperature or, if necessary, using air conditioning).
5. The remedies set forth in this Section VII shall be Purchaser’s sole and exclusive remedies, and the liability of Seller hereunder is expressly limited to, at Seller’s discretion, repair or replacement of nonconforming Products or the repayment of the purchase price.
6. Seller represents and warrants that it is a merchant within the meaning of the Uniform Commercial Code.
7. Any claim by Purchaser shall be made in writing, shall describe all relevant facts in sufficient detail, shall be accompanied by all relevant documents and shall be delivered to Seller no later than one (1) day after the relevant event resulting in any warranty claim.
8. SELLER SHALL NOT BE LIABLE TO PURCHASER OR ANY OTHER PERSON WITH RESPECT TO ANY PRODUCT DELIVERED HEREUNDER FOR DAMAGES IN EXCESS OF THE PURCHASE PRICE RECEIVED BY SELLER FOR SUCH PRODUCT, OR FOR SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER ARISING FROM DEFECTIVE WORKMANSHIP, MATERIALS OR DESIGN, BREACH OF WARRANTY, INDEMNIFICATION, CONTRIBUTION, DELAYS IN DELIVERY OR FROM ANY OTHER CAUSE WHATSOEVER, INCLUDING THE NEGLIGENCE OF SELLER, ANY ENTITIES CONTROLLING, CONTROLLED BY OR UNDER COMMON CONTROL WITH SELLER OR ANY SUPPLIER OR PARTNER OF SELLER. THIS WARRANTY SHALL BE IN LIEU OF ALL OTHER WARRANTIES, AND THE WARRANTIES OR MERCHANTABILITY OR FITNESS FOR PURPOSE OR OTHERWISE, EXPRESS OR IMPLIED, ARE EXCLUDED.
9. No Products shall be returned without Seller’s prior written consent. The Products which Seller consents to have returned shall be shipped by Purchaser at Purchaser’s risk and expense, freight prepaid, to Seller’s manufacturing plant or such other location as Seller may designate.

• Export Certificate

1. If necessary, Purchaser shall provide Seller with proof of export and such other documents as shall be requested by Seller for tax and other purposes. Should this proof not be provided, Purchaser shall be responsible to remit any sales turnover tax on the amount of the invoice to the extent such tax shall be imposed under the laws of the State of  Texas.

• Compliance with Laws

1. 1. Purchaser shall at all times be in compliance with all laws, rules and regulations and guidelines issued and promulgated by governmental and non-governmental agencies applicable to the experimentation with, modification of, testing, manufacturing, marketing, promotion, advertising, sale distribution or other commercial exploitation of any Product and/or related packaging.
   2. Seller assumes no liability for, and Purchaser shall be solely and exclusively responsible and liable for, any promotion, advertising or other marketing, endorsement or any other label or claim (including without limitation “green washing”) used by or on behalf of Purchaser in connection with marketing, promotion, advertising, sale, distribution or other commercial exploitation of any Product and/or related packaging and in particular, for the compliance with any local, state or federal laws pertaining to labels or marketing claims applicable to any Product and related packaging and therefore shall only make such statements, endorsements and/or claims, or use labels, for which Purchaser can and will meet such substantiation requirements.
   3. All statements, endorsements and/or claims made by or on behalf of Purchaser in connection with offer, marketing, promotion, sale, distribution or other commercial exploitation of any Product and related packaging shall be based on accepted test standards, including without limitation DIN, EN, ASTM, OK Compost and others. Purchaser acknowledges that Purchaser may be required by the Food and Drug Administration, the Federal Trade Commission and/or other federal, state or local governmental authorities and agencies to produce documentation and independent scientific evidence sufficient to substantiate any environmental or other claims, endorsement and other statements, whether explicit or implicit, made with respect to any Product and related packaging.
   4. Purchaser shall not deceive or mislead, or cause or permit third parties to deceive or mislead purchasers, consumers or any other person or entity or governmental authority or agency about the environmental features of any Product or related packaging; without limiting the generality of the foregoing, Purchaser shall not use any misleading reference to an irrelevant standard, study or testing method.
   5. Purchaser confirms and agrees that it has conducted and/or shall conduct, and shall rely solely upon, its own studies or studies undertaken on its behalf regarding any marketing methods or any claim, endorsement, or other statement regarding any Product.
   6. Purchaser acknowledges that finished Products such as films or injection molded parts are not automatically certified according to standards like EN 13432 or ASTM D6400 and that finished Products require the consideration and testing for further criteria, such as material thickness, additives, printing inks and the like.
   7. If Purchaser wishes to use a certified statement, such as the compostability mark in connection with offer, marketing, promotion, sale, distribution or other exploitation of any Product and related packaging, Purchaser shall apply for certification of its own finished products, such as films or parts at established and accepted organizations, such as DIN Certco or AIB-Vinçotte (for EN 13432) or BPI (for ASTM D6400). Any certificates provided by Seller may be used as a reference only.

• Indemnification

1. 1. 1. Purchaser shall indemnify, defend, reimburse and hold Seller and its respective direct and indirect shareholders, directors, officers, employees, advisors and other agents and representatives harmless from and against any actual or threatened claims, demands, actions, proceeding, damages, losses and liabilities, including attorneys’ and other professionals’ fees and expenses incurred in connection therewith, which arise as a result of or in connection with (i) any breach or violation of, or default under, any provision of these Terms and Conditions by Purchaser, or (ii) any negligent, reckless or intentional action or omission of Purchaser.

• Dispute Resolution

1. 1. These Terms and Conditions shall be governed by Incoterms 2000 and the law of the State of Texas, without reference to its conflicts of law principles; provided, however, that the parties hereto expressly exclude the application of the 1980 United Nations Convention on Contracts for the International Sales of Goods.
   2. Purchaser hereby irrevocably consents that (i) any  action, suit or other legal proceeding arising out of or relating to any transaction hereunder may be brought in any federal or state  court  located  within  the  County  of  Montgomery  in the City of Conroe in the State of Texas, (ii) consents to the exclusive jurisdiction of  such  courts  in  any  such  suit, action or proceeding, (iii) waives any objection which it may have to the laying of venue of such suit, action or legal proceeding in any such court and any claim that any such suit, action or proceeding has been brought in an inconvenient forum, (iv) consents that service of process may be accomplished using any of the methods described in Article XI (Notices), (v) any judgment may be enforced in any other jurisdiction by suit on the judgment or in any other manner provided by law and (vi) nothing in this Article IX shall affect the right of Seller to serve legal process in any other manner permitted by law or affect the right of Seller to bring any suit, action or proceeding against Purchaser or its property in any court of any jurisdiction.
   3. PURCHASER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO ANY TRANSACTION HEREUNDER.
   4. In connection with any controversy hereunder, each party shall be responsible for its attorneys’ fees and disbursements and all court and related costs and expenses, except that if Seller shall be the prevailing party in any such controversy Seller shall be entitled to reimbursement of attorneys’ fees and disbursements and all court and related costs and expenses from Purchaser.

• Confidentiality

1. Purchaser agrees that all specifications, data and other technical information furnished by Seller to Purchaser constitute the property of Seller, are furnished solely for the purpose of Seller’s performance hereunder, shall be held in strict confidence by Purchaser and may not be copied or made accessible to third parties without Seller’s prior written consent.
2. Purchaser shall promptly return such specifications, data and other  technical  information  and  all  copies thereof (in whatever format, including electronic, digital, hard copy or other medium) to Seller upon Seller’s request or, if such delivery is impossible, destroy such information and certify such destruction to Seller in writing. Such request may be made at any time prior to or after delivery of any Product. The obligations of Purchaser hereinabove set forth shall survive cancellation or completion of any order.
3. Notwithstanding any provision of these Terms and Conditions, Purchaser shall continue to be bound by the provisions of any confidentiality, non-disclosure or similar agreement executed by or on behalf of Purchaser for the benefit of Seller.

• Notices

1. Any notices given hereunder shall be in writing and shall be deemed given (a) if sent by express courier (e.g., UPS or Fedex) or (2) by certified mail, return receipt requested. All notices to Seller hereunder shall be given to:

   Phoenix Plastics LP
   5400 Jefferson Chemical Rd Conroe, TX 77301

   And all notices to Purchaser shall be given to such address as indicated in the relevant order acknowledgment. Seller’s and Purchaser’s address may be changed by like notice by the relevant party to the other party.

• Miscellaneous

1. The invalidity or unenforceability of any one or more of the terms and conditions of this form shall not affect the validity or enforceability of the remaining provisions hereof.
2. The failure or omission of Seller to insist upon strict performance of any term or condition hereof or to exercise any right hereunder shall not be deemed to be a modification of any term or condition hereof or a waiver or relinquishment of the future performance of any such term or condition, nor shall such failure or omission constitute a waiver of the right of Seller to insist upon future performance by Purchaser of any such term or condition.
3. This document may be amended from time to time by Seller upon notice to Purchaser, which shall be effective within ten (10) days from delivery.

Last Update: April 20, 2016.