Independent Can Terms and Conditions

The terms below will apply to all customer orders. Please let us know if you have any questions or need more information.

INDEPENDENT CAN COMPANY – GENERAL TERMS AND CONDITIONS

These General Terms and Conditions (these “Terms” or this “Agreement”) apply to you (“Customer” or “Buyer”) in connection with your business relationship with Independent Can Company (“ICC” or “Seller”).

CONDITIONS OF SALE:

Minimum Order: 1 pallet per single SKU or $1,000 for stock specialty and seamless.

Terms: Net 30 days subject to credit approval. Credit approval is subject to the timely responses from Customer’s bank and vendor references, Seller’s review of such references, and Seller’s review of applicant’s business credit application.

Fees: 1-1/2% monthly service charges will be applied to invoices that are over terms. 

Shipping Damage: Seller is not responsible for damage incurred after merchandise has left our plant. Freight companies sign for loads in undamaged condition and are responsible to deliver freight in the same undamaged manner. All damages should be noted on the bill of lading at the time of delivery and claims must be handled directly with the freight carrier. A $15.00 processing fee will be added to Federal Express & UPS shipments without the customer’s FedEx or UPS account number, which account number must be provided by Customer to Seller upon Seller’s request. Our packaging is not UPS or FedEx approved. Any damages are the customer’s responsibility.

Lead Time: Standard lead time for stock is 2-3 weeks from receipt of order, subject to material availability, Seller’s flow of business and Customer’s compliance with these Terms. Lead time for custom appears on the face Seller’s quote. Change orders and credit terms will affect lead time. Seller sends a confirmation on all orders. Date promised on the order is approximate ship date. Customer is responsible for freight charges on back orders.

Claims for defective material must be made in writing within 30 days of receipt of merchandise. LIABILITY IS LIMITED TO THE REPLACEMENT VALUE OF THE DEFECTIVE MERCHANDISE PURCHASED FROM SELLER.

Returns: Returned merchandise will not be accepted.

Check your confirmation copy for accuracy. Prices are subject to change without notice.

ORDERS

A. All orders are governed by and subject to these Terms, which shall apply to any and all products supplied.

B. These Terms supersede and replace any and all prior agreements, whether written or oral, between the parties with respect to the subject matter of this document. This document is intended by the parties to be the final, complete and the exclusive statement of all terms and conditions associated with a purchase order.

C. Acceptance of an order by Seller does not constitute acceptance of any of the terms and conditions of those orders except as to the identification and quantity of the product ordered.

D. The order shall be binding on the Customer at the time it is received by Seller. The order shall be considered accepted by the Seller and binding on it if and when the Seller expressly accepts it by sending its written order confirmation to the Buyer, or should the Seller indicate modifications to the order within five working days from the receipt of order and/or artwork pertaining to the order.

E. The products are manufactured or supplied by the Seller in compliance with the confirmed purchase order and/or in compliance with the technical sheets supplied by the Seller. It is the responsibility of the Buyer before placing an order to ensure that the products are suitable for their specific purpose and/or intended use, and that the products are compliant with any applicable regulation or legislation.

F. It is the responsibility of the Buyer before submission of the order to ascertain that the graphics supplied are suitable for the Customer's specific purpose and scope.

PRICES AND PRICE CHANGES

A. Published quotations are valid for 30 days from the date offered, and may be modified by Seller at any time after 30 days.

B. Verbal offers or quotations are not to be taken as valid proposals.

C. The Seller reserves the right to change prices for orders of products for which delivery has been deferred, in whole or in part, for a period longer than 120 days from the original purchase order date, in the event of an increase in raw materials costs or other costs related to production.

ORDER QUANTITY TOLERANCES

A. All product orders are subject to a quantity-tolerance factor for each packaged component as listed or the Buyer's quote, unless otherwise agreed between the parties in writing.

B. Should an order tolerance fail to be listed on a quote or in any other written correspondence the order-quantity tolerance is accepted to be +/- 10% for each packaged component.

TERMS OF PAYMENT: Net 30 days from the date of invoice, unless otherwise agreed between the parties in writing. All payments shall be made by Buyer by as required by Seller. After the Buyer has made more than two (2) untimely payments, Seller may require Buyer to make payments by ACH.

Payment by Discover, MasterCard, Visa and American Express is permitted but subject to a 3% convenience fee paid by Customer.

FREIGHT

A. All Goods are sold F.O.B. Seller's factory unless otherwise agreed between the parties in writing.

B. Title and risk of loss for the products shall transfer from the Seller to the Buyer at the time the products leave Seller's factory.

C. Claims for delivery damage are to be filed with the freight carrier, whether arranged by the Buyer or the Seller. All such damage claims are to be noted on the bill of lading at the time of delivery.

D. Products are packaged in accordance with best practices adopted by the Seller for the products in question. The Buyer is responsible for any additional packaging costs that it deems necessary.

ARTWORK AND LITHOGRAPHY

A. An “art and plate" charge will apply for the production of new or revised designs, to include any and all labor, proofs, plates, and tooling required to print the job. Estimates of art and plate charges are provided on the written quote, to be confirmed upon receipt of art, and after final proof approval.

B. Prior to the lithography process, the Seller will present to the Buyer flat proofs for approval representing four color process printing and art positioning either laminated on metal or on paper, unvarnished. Line prints will be represented via metal drawdowns for color match, either varnished or unvarnished.

C. Varnish can/will change color depending on the varnish specified, the artwork itself, and the climatic conditions during which lithography is performed.

D. Metal is a dark substrate and subject to specification variances of +8%, -5%. While the Seller strives to control the specifications of raw material, lithography may appear lighter or darker than the approved proof based on the specifications of the metal substrate.

E. The Buyer is welcome to attend the print run of their order, subject to charges payable by Buyer should the print run time be adversely impacted by the approval period required.

F. The Seller is entitled to label products with its company name or product trademark or patent protection on its products.

CONTINGENCIES BEYOND CONTROL OF PARTIES

A Seller shall not be liable to Buyer or any other person for any failure or delay in the performance of any obligation under this Agreement due to events beyond its reasonable control including, but not limited to: fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, sabotage, strikes, lockouts, epidemics, pandemics, labor shortages, transportation embargoes or delays, failure or shortage of materials, supplies or machinery, acts of God, acts of regulations or priorities of the Federal, State or local government or branches or agencies thereof, and government contracts or shipments to purchasers to fulfill government contracts.

B. Buyer shall not be liable for delay or failure to take containers as ordered due to any of such events, except that Buyer shall be liable for such delay or failure with respect to containers already in transit or specialty made or lithographed for Buyer which are not readily salable without loss to Seller.

C. Seller shall not be liable for delay or failure to perform due to Seller’s inability to perform due to any of the above-referenced events.

D. When the events operating to excuse performance by either party shall cease, these Terms shall continue in full force until all deliveries have been completed.

LIMITED WARRANTY

A. Seller makes no warranty, express, implied or statutory on the goods sold hereunder and sells them as is, except that Seller will be responsible, subject to the below limitation of liability, for faulty workmanship in manufacture and use of imperfect materials detectable by generally accepted can making production practices.

B. Delivery dates - Seller will use commercially reasonable efforts to deliver the product within the delivery period provided for on the confirmed customer order, in a single delivery or in partial deliveries. The delivery date shall always be considered approximate and not binding on the Seller. Except in the case of willful wrongdoing or gross negligence, Seller will not reimburse for any damages, either direct or indirect, suffered by the Customer as a result of delay in the delivery of products.

C. Seller shall not be liable for any damage to property caused by the product after it has been delivered and while it is in the possession of the Customer. Seller shall not be liable for any damage to products manufactured by the Customer or for Customer’s use of products manufactured by Seller.

D. Seller warrants to Buyer that the products sold to the Buyer under this Agreement will conform to Seller specifications for the products in effect at the time of shipment, and will be manufactured in accordance with Seller's published Operating Procedures Manual.

E. Seller’s specifications may be amended by Seller upon thirty (30) days prior written notice to the Buyer. Harry products are found not to conform to the applicable warranty, Buyer's exclusive remedy, at Seller's option, shall be the refund of the purchase price paid by Buyer for or replacement of the quantity of products found to be nonconforming within a reasonable time from the date of notice of the defect and, if requested by Supplier, return of the nonconforming product to Seller.

F. Notice of non-conformance must be received by Seller within thirty (30) days after discovery of the defect.

G. THE WARRANTY STATED IN SECTIONS A THROUGH F ABOVE IS MADE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTY ARISING OUT OF A COURSE OF DEALING, PERFORMANCE, CUSTOM, OR USAGE OR TRADE.

PRESENTMENT OF CLAIMS

Buyer waives all claims relating to the goods supplied hereunder unless such claims are received in writing by the Seller within thirty (30) days after delivery.

LIMITATION ON SELLER'S LIABILITY- BUYER'S EXCLUSIVE REMEDY

A. Buyer's exclusive remedy and Seller's sole liability on any claim whether founded in negligence or in any other tort or in contract or warranty shall not exceed the cost to the Buyer of the faulty goods. The Seller shall not incur any liability where the claimed defect in Seller's goods were not discovered prior to or in the normal course of Seller’s manufacturing operations or where the claimed damages resulted from deterioration occurring after receipt of containers by Buyer or from use by Buyer of inappropriate components or faulty closing machines. Buyer assumes full responsibility for damages incurred by any person resulting from leakage, spoilage or other performance failures occurring after ends are attached to containers. Except as limited above, Seller shall not be liable for any other or further damages of any kind whatsoever, whether direct, indirect or consequential.

B. In no event shall Seller be liable to Buyer or any third party for infringement of any copyright, patents, trade name, registration or any similar right or for failure to comply with any product codes or any federal, state or local requirements in connection with the labeling of cans supplied under this contract where the preparation and production of such labeled cans has been performed by Seller in compliance with the Buyer's specifications, requests or approvals. Buyer shall indemnify Seller and hold Seller and its officers, directors, stockholders, employees and agents harmless against any claims or actions of third parties arising out of the labeling of cans in accordance with Buyer's express directions or approvals and for Buyer’s use of unauthorized use of any intellectual property, confidential information or proprietary information of a third-party or Buyer’s use of any other products or services of a third-party; such indemnification to include all reasonable out-of-pocket costs incurred by Seller in connection with such claims or actions, including, but not limited to, attorney's fees and court costs.

SPECIALLY MADE OR LABELED GOODS

A. Insofar as the goods purchased pursuant to this Agreement are specialty manufactured and/or specially lithographed for the Buyer, the Buyer agrees that should it fail to give the Seller shipping instructions for the entire quantity of goods ordered within a period of one hundred twenty (120) days from the date of first availability, Seller may, at its option, ship and/or invoice Buyer for any specialty manufactured and/or lithographed goods which are still on hand, at the Seller's price in effect on the date of such shipment or invoice. "Date of First Availability" shall mean the date of first shipment or the date Seller informs Buyer that goods ordered are ready for shipment, whichever date is earlier.

B. Upon expiration or prior termination of these Terms in whole or in part for any reason, Buyer shall (i) pay for and accept prompt delivery of all completed, specially made or lithographed goods previously ordered at Seller's price in effect at the date of shipment (ii) pay for and accept prompt delivery of all specialty made and lithographed goods in process which Seller at its option completes at Seller's price in effect on the date of shipment, and (iii) reimburse Seller for any loss on uncompleted orders which Seller at its option does not complete, including but not restricted to materials produced or purchased by Seller to complete such orders.

C. Buyer agrees to timely reimburse Seller for its costs and expenses for producing the art and plate work necessary to lithograph the Buyer's special design. Plates shall remain Seller’s property and in Seller’s possession.

D. Custom decorated material or special parts which are held for release for more than 120 days will be invoiced and paid by Buyer within thirty days. Material held in any state of manufacture which is not released by the Buyer within a twelve (12) month period may be scrapped by the Seller with notification to the Buyer and without liability to Seller.

MISCELLANEOUS

A. No Waiver. Any failure or delay by either party in exercising any right or remedy provided by or related to this Agreement in one or more instances does not constitute a waiver and will not prohibit a party from exercising such a right or remedy at a later time or from exercising any other right or remedy available.

B. Severability. If any provision of this Agreement, for any reason, shall be held invalid, illegal, or unenforceable by a court of competent jurisdiction, this Agreement or the Exhibit shall be deemed severable and such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement which shall be enforced in accordance with the intent of this Agreement.

C. Choice of Law. This Agreement shall be governed by the laws of the State of Maryland. Any lawsuit arising under this Agreement shall be commenced in a state or federal court of competent jurisdiction in Baltimore or Harford Counties, Maryland, and the parties’ consent to the personal jurisdiction of the courts specified as appropriate.

D. Modification. Except as otherwise provided in this Agreement, no part of this Agreement may be waived, modified, or supplemented in any manner whatsoever (including a course of dealing or of performance or usage of trade) except in writing signed by authorized representatives of Seller and Buyer.

E. Assignment. These Terms are not assignable by the Buyer without Seller’s prior written consent.