a. “Buyer” means the entity issuing the Purchase Order (“PO”), and any affiliates, subsidiaries, successors or assigns thereof. “Seller” means Polar Plastics, LLC (“Polar”) and its affiliates, parents, subsidiaries, agents, and assigns to whom the PO is addressed. “Materials” means all the products and/or services to be supplied by Polar under the PO. PO means the purchase order issued by Buyer for the supply of Materials, which may be an oral communication, a written or electronic document, and may also include terms regarding shipping instructions and/or other specifications required by Buyer for the Materials.
b. These terms and conditions, together with the PO, constitute an offer by Buyer to purchase the Materials from Polar pursuant to the terms and conditions described herein. No other additional or different terms and conditions shall become a basis of the agreement between the parties unless agreed by both Polar and Buyer. This offer is not an acceptance or a confirmation of any previous offer or proposal, and this offer shall be deemed to be a rejection and counteroffer with respect to any previous offer or proposal. A shipment of the Materials shall not be construed as an acceptance of any such offer, any previous offer or proposal or an acceptance of any different or additional terms proposed by Polar.
c. This offer shall become an “Agreement” upon acceptance by Polar. Polar shall be deemed to have accepted this offer by commencement of performance called for in the PO, by delivery of the Materials to Buyer, by written acceptance or confirmation of this Agreement, or by any other act or communication constituting legal acceptance, whether or not any such acceptance or confirmation purports to state terms additional to or different from those stated herein. Polar hereby expressly objects to and rejects any such additional or different provisions that may appear in Buyer’s PO or any other document presented by Buyer, and none of such provisions shall be deemed to be a part of this Agreement unless specifically agreed to in writing by Polar.
2. SALE OF MATERIALS
a. Polar agrees to sell, transfer and deliver the Materials to Buyer for the purchase price set forth in the PO, subject to all the covenants, terms and conditions hereof.
b. Buyer agrees to purchase the Materials, subject to all the covenants, terms and conditions hereof, and to pay Polar the purchase price set forth in the PO. Typographical and other clerical errors in the PO are subject to correction by mutual written agreement of the parties. At the discretion of Polar, Buyer may request to modify the PO upon written notice to Polar. Upon such written notice, Buyer and Polar shall use good faith best efforts to negotiate an equitable adjustment in price and/or time of performance.
c. Polar agrees to obtain from Buyer a purchase PO number for any and all purchase orders of goods and/or services. Polar further agrees it will reference the purchase order number on the applicable invoice(s).
3. PURCHASE PRICE AND TERMS OF PAYMENT
a. Materials shipped against this Agreement shall be invoiced at the price set forth in the PO. Unless otherwise specified on the invoice, payment of the purchase price and any additional charges identified in the PO shall be due thirty (30) days after invoice date.
Polar may charge interest to Buyer for balances not paid within terms. In addition, Buyer agrees to pay any fees or charges for collection of outstanding balances over 30 days.
b. Buyer shall pay for any taxes that it is statutorily required to pay.
c. Buyer may not set off any amount owing at any time from Polar to Buyer or any of its affiliates against any amount payable at any time to Buyer.
4. SHIPMENT, DELIVERY AND RISK OF LOSS
a. Polar shall deliver the Materials F.O.B. Polar’s plant or other shipping point designated for shipment by Buyer in the PO. Polar shall follow any shipping instructions provided by Buyer and shall use its good faith best efforts in packaging the Materials for shipment.
b. All items shipped shall be properly identified with Buyer’s purchase order number and any purchase order item number or other identification number shown. Unless the indicated shipping date is expressly guaranteed, advance information as to the date of shipment is an approximation only, based upon Polar’s best judgment at the time the PO is accepted.
5. WARRANTY PROVISIONS
a. Polar Plastics (Polar), and its affiliates, parents, subsidiaries, agents, and assigns, warrants, for a period of 180 days from the date of shipment, products sold by Polar shall be free from defects in material. During this 180-day period, Polar will replace defective material at no additional charge to the purchaser. The liability of Polar shall in no event exceed the replacement cost of the product sold to the purchaser.
b. This warranty expressly set forth in this Section are Polar’s sole warranties with respect to purchased items. POLAR MAKES NO OTHER WARRANTY OF ANY KIND WHATSOEVER, EXPRESSED OR IMPLIED; AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WHICH EXCEED THE AFOREMENTIONED OBLIGATION ARE THEREBY DISCLAIMED BY POLAR AND EXCLUDED FROM THIS AGREEMENT.
c. Buyer agrees to defend, indemnify and hold harmless Polar and its respective affiliates, officers, directors, employees, members and agents, from and against all claims, losses, costs, expenses, damages, suits or liabilities of any nature incurred as a result of personal injury or property damage arising out of Buyer’s acts or omissions, negligence, willful misconduct or caused by Buyer’s property or property under the responsibility of Buyer.
d. UNDER NO CIRCUMSTANCES AND UNDER NO THEORY OF LAW OR EQUITY SHALL POLAR BE LIABLE TO BUYER FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUE, LOST PROFIT AND / OR LOST OPPORTUNITY. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE TOTAL LIABILITY OF POLAR FOR ANY DAMAGES OR LIABILITY UNDER OR RELATED TO THESE TERMS OR ANY PRODUCT FOR ANY REASON OR CAUSE WHATSOEVER SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY BUYER TO POLAR PURSUANT TO THESE TERMS.
6. GENERAL PROVISIONS
a. This Agreement shall constitute the complete understanding and contract between Polar and Buyer with respect to the subject matter hereof and supersedes any prior written or oral understandings with regard thereto. No purported amendment, modification or waiver of any provision of the Agreement shall be binding on Buyer and Polar unless set forth in a written document signed by an authorized representative of Buyer and Polar. Any waiver shall be limited to the circumstance or event specifically referenced in the written waiver document and shall not be deemed a waiver of any other term of the Agreement between Polar and Buyer or of the same circumstance or event upon any recurrence thereof.
b. If any provision hereof is held to be unenforceable by the final order of any court of competent jurisdiction, such provision shall be severed here from and shall not affect the interpretation or enforceability of remaining provisions hereof.
c. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Minnesota, without reference to any conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Polar and Buyer hereby consent to the exclusive jurisdiction and venue of the Federal and state courts located in the state of Minnesota, county of Hennepin, as the exclusive forum for the resolution of disputes.
d. Buyer and Polar acknowledge that they are each independent parties and neither shall be deemed an agent or representative of the other or have authority to bind the other in any manner whatsoever.
e. Polar shall not be liable in any manner when performance under this Agreement is delayed or prevented by “Force Majeure,” i.e., by fire, explosion, war, terrorism, governmental order, labor disputes, failure of carriers to transport or to furnish facilities for transportation, perils of navigation, or when such delay or failure would be due to any unpredictable cause whatsoever which is reasonably beyond Polar’s control.