GENERAL: These “Terms and Conditions” will apply to the purchase of the Goods and all other Customer orders. In the case that a separate manufacturing agreement has been signed by the Parties, that agreement will prevail in the event of a conflict or inconsistency between the agreement and these Terms and Conditions.
DEFINITIONS: “DreamPak” means DreamPak LLC. “Customer” means the person or entity submitting a Purchase Order to DreamPak for its services, (each a “Party” and collectively the “Parties”). “Goods” means the goods and / or services ordered by Customer under the Purchase Order. “Purchase Order” or “PO” means the purchase order used by Customer to place an order for Goods with DreamPak.
PO ACCEPTANCE: Customer shall submit a PO to DreamPak, which specifies the product name, order quantity, payment amount, and requested completion date. The PO is deemed to be accepted by DreamPak once DreamPak sends a PO Acknowledgement to Customer. By accepting the PO, DreamPak waives all terms and conditions contained in Customer’s PO or other documents which are different from or additional to those contained herein (whether or not Customer sends its documents before or after DreamPak sends its acceptance), and all such different or additional terms and conditions shall be void and of no effect.
PO CANCELLATION / MODIFICATION: Once DreamPak sends a PO Acknowledgement to Customer, POs are non-cancellable and non-refundable. Customer will be invoiced and required to pay the full PO amount immediately. Customers may not make modifications to POs unless DreamPak agrees in writing.
LEAD TIMES: DreamPak will use best efforts to ensure that Customer’s requested product release dates are satisfied, however, Customer understands that lead times and ship dates are not guaranteed. DreamPak requests that all necessary documentation and artwork are shared with DreamPak at the same time as the PO, or ahead of time if possible. Any delays in acquiring the necessary information from Customer may result in a revision to the requested completion date on the PO.
ADDITIONAL SERVICES: Customer understands that certain additional services will incur additional fees as per DreamPak’s Additional Price List.
PAYMENT TERMS: Payment is due and payable in full prior to release of Goods unless payment terms are modified subject to credit approval from DreamPak.
QUALITY AGREEMENT: DreamPak holds the following third party quality certifications: SQF3, NSF and QAI. Prior to production, Customer will review and sign DreamPak’s Quality Agreement which covers and assigns the major quality responsibilities related to the Goods. Any revisions to the Quality Agreement must be made in writing. In the case that Customer is providing to DreamPak the formula for the Goods, or providing liquid bulk for filling, DreamPak is not responsible for the stability or integrity of the Goods, provided that DreamPak is in compliance with good manufacturing practices and applicable laws. Customer takes full responsibility for any materials that are provided by Customer for which Customer has not provided required documentation to DreamPak.
MASTER MANUFACTURING AGREEMENT (MMR): Prior to production, Customer will sign the MMR which sets out all information needed for manufacturing the Goods. DreamPak is not responsible for any Customer requirements related to the manufacturing of the product which are not expressly stated in the MMR.
PRODUCTION QUANTITIES: DreamPak will use best efforts to ensure that Customer receives the ordered quantity, however, Customer will accept Goods within 10% of the specified quantity.
SHIPPING: All shipping will be F.O.B. DreamPak’s New Berlin, WI facility unless otherwise specified in writing. Customer is responsible for arranging delivery of the Goods. Goods must be picked up from DreamPak’s facility within one week of the Goods release date or Customer will incur storage fees as per the Additional Price List. DreamPak reserves the right to reject any carrier due to food safety regulations. The bill of lading will be included with the shipment. Any special requirements for the bill of lading must be in writing.
TITLE AND RISK OF LOSS: Title and risk of loss of the Goods will transfer to Customer upon release of the Goods from DreamPak’s facility, provided Customer has paid in accordance with its payment terms.
INSPECTION OF GOODS: Customer must inspect the Goods immediately on delivery or collection. If Customer identifies any damages, defects or shortages that occurred before the Goods were released from DreamPak’s facility, Customer must inform DreamPak within 7 days of Customer’s receipt of Goods. DreamPak will only accept exchange of the Goods if the Customer demonstrates that DreamPak has not followed good manufacturing practices, applicable laws or agreed Goods specifications.
WARRANTY: DreamPak warrants that its manufacturing processes, practices and procedures will be in compliance with good manufacturing practices and applicable laws, and that the Goods will be of good and merchantable quality at the time of release from DreamPak’s facility. If Customer promptly notifies DreamPak in writing within 30 days of Goods release date of any breach of such warranty, DreamPak shall thereupon, at Customer’s option, re-perform services, repair or replace any defective goods. The foregoing shall constitute the sole and exclusive remedy of Customer and the full liability of DreamPak for any breach of warranty.
LIMITATION OF LIABILITY: DreamPak’s liability on any claim of any kind, including, without limitation, negligence, with respect to goods or services shall in no case exceed the purchase price of the good or service or part thereof which gives rise to the claim. In no event shall DreamPak be liable for any special, incidental, consequential, punitive or exemplary damages or similar damages (including without limitation, lost profits or economic damages) or for damages in the nature of penalties.
FORCE MAJEURE: DreamPak shall not be liable for any failure to perform or any delays in performance due to causes beyond its reasonable control including without limitation acts of God, acts of Customer, failure of suppliers, acts of military or civil authorities, fire or other casualty, natural disasters, strikes, lockouts, weather, epidemic, disease, war (whether or not declared), acts of terrorism, riot, delays in transportation or car shortages, inability to obtain necessary labor, materials, components, equipment, services, energy or utilities through DreamPak’s usual and regular sources at usual and regular prices or failure or inability of the manufacturer of the goods to perform. In any such event, DreamPak may, with notice to Customer, at any time and from time to time without further liability to Customer (a) postpone its performance, (b) make partial performance or cancel all or any portion of this contract or (c) allocate available quantities among its customers in any manner which DreamPak deems reasonable. Cancellation of any part of this contract shall not affect DreamPak’s right to payment for performance of any other part hereof.
INDEMNIFICATION & WAIVER: Customer shall defend, indemnify and hold DreamPak and its affiliates and their respective officers, directors, employees and agents harmless from and against any and all cost, loss or damage suffered, incurred or sustained by any of them or to which any of them becomes subject at any time arising in whole or in part out of (a) failure of Customer, its agents, employees or customers to follow specifications, instructions, warnings or recommendations furnished by DreamPak, (b) failure of Customer, its agents, employees or customers to comply with all applicable laws and regulations, including, but not limited to any applicable federal, state and local laws and regulations governing hazardous materials or safety, all as they may be amended or supplemented from time to time, (c) misuse of the goods by Customer, its agents, employees or customers including use of Goods with any substance that causes injury to person or property, (d) misrepresentation by Customer, its agents, employees or customers, (e) the sole or contributing negligence of Customer, its agents, employees or customers, (f) alleged infringement of any patent, trademark or copyright as a result of DreamPak’s performance in accordance with Customer’s designs, plans, specifications or directions, or (g) any and all lawsuits, liabilities, damages, injuries, claims, demands and expenses (including attorneys’ fees and legal expenses) of whatever kind and nature arising on account of the manufacture, use, storage, maintenance or repair of any of DreamPak’s goods regardless of by whomever manufactured, used, operated, maintained or stored and/or arising as a result of claims based upon strict liability imposed upon Customer except for claims directly resulting from DreamPak’s gross negligence. Customer hereby waives and releases DreamPak from all rights of contribution or indemnity to which it may otherwise be entitled. As used in this paragraph, the term “Customer” shall mean the Customer, its officers, directors, employees, parent, subsidiaries, divisions, affiliates, successors and assigns. This Indemnity shall continue in full force and effect notwithstanding the termination of any order or contract.
MISCELLANEOUS: These terms and conditions binds and benefits the Parties hereto and their respective successors and permitted assigns. Any change in the control of Customer will be deemed an assignment under this Purchase Order. The Parties are and will remain independent contractors with respect to each other. If a court of competent jurisdiction determines that any provision of these terms is invalid, such determination will in no way affect the validity or enforceability of any other provision hereof. Neither the expiration nor termination of these terms will affect the provisions of these terms that expressly provide that they operate after any such expiration or termination or which of necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.
ENTIRE AGREEMENT: These terms and conditions between the Parties related to the subject matter hereof constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersede all prior and contemporaneous representations, proposals, discussions, and communications, whether oral or in writing. Neither DreamPak’s lack of objection to any terms contained in Customer’s purchase order or other documents, nor fulfilment of the Goods, will constitute agreement by DreamPak to any terms proposed by Customer. The Parties may modify or supplement these terms only by means of a written amendment duly executed by the authorized representatives of both Parties. Neither the terms of any invoice or purchase order, or any other instrument documenting a payment or transaction that is issued by Customer in connection with these terms, nor any other act, document, usage, custom, or course of dealing can modify these terms.
GOVERNING LAW & JURISDICTION: These terms shall be governed by and shall be construed in accordance with the laws of the State of Wisconsin, USA, without regard to its conflicts of law principles and without regard to the United Nations Convention on Contracts for the International Sale of Goods (“CISG”). The Parties expressly waive the CISG. Customer (i) agrees that any litigation arising out of these terms may be brought only in the state or federal courts whose jurisdiction includes Wisconsin, (ii) consents to the jurisdiction of such courts, and (iii) waives any argument that any such court is an inconvenient forum. The Parties agree that they irrevocably waive and agree to cause their respective subsidiaries to waive the right to trial by jury in any action to enforce or interpret the provisions of this agreement. If DreamPak pursues any legal action to enforce any of its rights, DreamPak shall be entitled to recover from Customer all reasonable attorneys’ fees and all other costs and expenses incurred by DreamPak in connection with such action.