Silgan Closures Terms and Conditions of Sale

1. Orders. Any orders submitted by Customer are subject to acceptance by Silgan, and no order by Customer shall be binding upon Silgan until accepted. The terms set forth herein shall govern the sale by Silgan and the purchase by Customer of products and services, and, except as to quantity and specifications, the terms of any purchase order delivered by Customer shall not apply. Price shall be established by Silgan’s price quote to Customer.

2. Payments. All invoices shall be due and payable in full in accordance with the terms set forth on Silgan’s invoice. If any payment is not received within terms, (i) Customer shall pay interest at a rate of one percent (1%) over Bank of America Prime on any past due indebtedness, or the maximum amount permitted by law, if less, and (ii) Silgan shall have the right to require payment in advance for subsequent deliveries or services, even though part of an accepted order. Customer shall deliver to Silgan such financial information as Silgan may request from time to time. Should Customer at any time not satisfy Silgan’s credit requirements, Silgan shall have the right to request adequate assurances of payment prior to manufacture and at any time thereafter and/or to require payment in advance.

3. Delivery; Title; Freight. Deliveries of products by Silgan shall be made F.O.B. Silgan’s facility of manufacture. Title and risk of loss shall pass to Customer upon delivery. Customer shall be responsible for all freight charges, and any applicable customs, duties, or other taxes or charges.

4. Warranty; Limitation of Liability and Remedies.
(a)Silgan’s sole and exclusive warranty hereunder is that products delivered shall conform to any specifications agreed to in writing by Silgan and Customer. Silgan’s sole and exclusive warranty for services delivered hereunder is that they will be provided in a good and workmanlike manner and in accord with industry practices.
(b)THE WARRANTIES GIVEN IN PARAGRAPH ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. SILGAN EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE AND EXPRESSLY DISCLAIMS ANY WARRANTY OF ANY SPECIFIC SHELF LIFE.
(c)Any claim made by Customer against Silgan with respect to any products or services supplied by Silgan shall be in writing, setting forth in detail the amount of the claim. Notice of said claim shall be delivered to Silgan promptly after such claim is known, together with (1) copies of all relevant documents and (2) if applicable, a number of samples of the products on which the alleged failure claim is based, sufficient to permit Silgan to make a competent analysis. Customer shall provide Silgan all reasonable access to the products and Customer’s facilities in order to permit Silgan to investigate the claim.

5. Security Interest. Customer hereby grants Silgan a purchase money security interest in the proceeds and products delivered to Customer including all accessions and replacements, and the proceeds thereof, to secure the payment of the purchase price of products and all other amounts owing to Silgan. Customer authorizes Silgan to file one or more financing statements to reflect the security interest granted by Customer, and agrees to execute any additional documents, instruments and filings as may be reasonably requested by Silgan to reflect or maintain such security interest.

6. Regulatory Requirements. Should any applicable governmental regulation establish requirements more stringent, exacting or demanding than the specifications contained in Customer’s order or the industry standard as of the date of such order, such specifications shall be amended and/or supplemented to be in accord with such more stringent, exacting or demanding requirements, and Silgan shall have the right to increase the price to Customer to reflect increased costs related thereto. In the event Silgan is unable to meet such requirements, it shall have the right to terminate any outstanding supply obligation that may be affected thereby.

7. Force Majeure. Except for the payment for products delivered to or services performed for buyer, a party shall be excused if (and for so long as) it is unable to perform as a result of acts of God or other such events outside the control of such party, provided it gives prompt notice thereof to the other party.

8. Nonconforming Deliveries. Customer shall notify Silgan within five (5) business days of any nonconforming deliveries, and provide Silgan the opportunity to supply replacement conforming products.

9. Default; Effect of Default. The material breach of any obligation pursuant to these terms and condition shall constitute an event of default. If either party commits an event of default, the other party may thirty (30) days after notice and failure to cure (or such longer period if such failure cannot be reasonable cured within thirty (30) days, provided the defaulting party diligently attempts to cure) terminate this agreement upon notice to the other party. In the event of termination, Customer shall immediately purchase any inventories of product, work-in-process, specially coated steel, and all lithographed or special designed products and components produced or ordered by Silgan for Customer prior to the effective date of termination.

10. Disputes. Any dispute, claim or controversy, other than a failure by Customer to pay for products or services delivered and not subject to any claim of defect (a “Credit Claim”) or a matter for which extraordinary relief may be available, arising out of or relating to this Agreement or breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, shall be determined by arbitration in DuPage County, IL, before a sole arbitrator, in accordance with the laws of the State of Illinois, for agreements made in and to be performed in that State. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. The arbitrator shall, in the Award, allocate all of the costs of the arbitration (and the mediation, if applicable), including the fees of the arbitrator and the reasonable attorneys’ fees of the prevailing party, against the party who did not prevail. The parties agree that in the case of any Credit Claim, or any dispute in which extraordinary relief may be available, that the courts of DuPage County, IL shall have exclusive jurisdiction over such matter, and the arbitration provisions of this Section shall not be applicable. Customer agrees to submit to the jurisdiction of the courts, state and federal, as provided herein, and to waive any right to challenge or change venue. This agreement and all issues arising hereunder shall be governed by the substantive laws of Illinois, including the Uniform Commercial Code . The terms hereof shall be construed in accordance with their plain meaning, and not against either party as the drafting party.

11. Attorneys’ Fees. In the event of the bringing of any proceeding, by a party hereto against the other party in whose favor the final judgment decision shall be entered shall be entitled to have and recover from the other party or parties all costs and expenses of suit, including reasonable attorneys’ fees.

12. Limitation of Liability. IN NO EVENT SHALL SILGAN’S LIABILITY ARISING IN CONNECTION WITH OR UNDER THIS CONTRACT, TORT, MISREPRESENTATION, FRAUD, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY OF LAW EXCEED THE PURCHASE PRICE OF THE GOODS AND/OR SERVICES.

13. Limitation of Damages. IN NO CASE SHALL SILGAN BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OR FOR ANY INTERRUPTION OF BUSINESS OR LOSS OF PROFITS, EVEN IF SILGAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

14. Other Provision. This agreement or any of the obligations hereunder may not be assigned by Customer without the prior written consent of Silgan. The terms hereof may only be modified in writing signed or accepted by the party to be charged. No waiver of any term or any breach of any obligation hereunder shall be deemed to be a waiver of any other term or subsequent breach. Any term held by a court of competent jurisdiction to be invalid or unenforceable shall be limited as necessary to render it valid and enforceable, without any effect on the remaining terms and conditions. Notices given hereunder shall be in writing addressed to Customer at its business address and to Silgan at its offices at 1140 31st Street, Downers Grove, IL. 60515 (attn. Vice President – Sales), or as otherwise designated by a party in accordance with this provision, and shall be deemed given upon receipt by personal or overnight delivery, or certified US mail, postage prepaid. Upon termination of the supply relationship between the parties, Customer agrees to purchase at the price in effect at the time, the existing inventory of products produced for Customer and work-in –process and materials purchased by Silgan to produce such products not otherwise usable by Silgan, at Silgan’s cost.

Except as otherwise provided herein: Any contrary or additional term set forth in customer’s purchase order or other documents are hereby Objected to and REJECTED.