Terms & Conditions
GIGANTIC BAG TERMS AND CONDITIONS
All orders and sales transactions by Gigantic Bag together with its direct and indirect subsidiaries and affiliates (collectively referred to herein as “Gigantic”), to the customer receiving these Terms and Conditions (“Customer”) are expressly subject to the following terms and conditions of sale (the “Terms and Conditions”). Both parties may be individually referred to as a “Party” or collectively as the “Parties.” Any written quotation from Gigantic and these Terms and Conditions shall constitute the entire agreement between Gigantic and Customer, unless Gigantic and Customer have executed a written agreement which includes additional and/or different terms, in which case such written agreement executed by the Parties shall prevail over these terms.
GIGANTIC’S ACCEPTANCE OF CUSTOMER’S OFFER TO PURCHASE PRODUCTS OR SERVICES IS EXPRESSLY CONDITIONED ON CUSTOMER’S ASSENT TO THESE TERMS AND CONDITIONS. If these Terms and Conditions are construed as an offer, acceptance hereof is EXPRESSLY LIMITED TO THE TERMS AND CONDITIONS CONTAINED HEREIN. In any event, Customer’s acceptance of the products shall manifest Customer’s assent to these Terms and Conditions. These Terms and Conditions may not be waived, amended, or modifed except by a written instrument signed by both Customer and Gigantic. The word “products” as used herein shall mean all goods sold by Gigantic to Customer. Any and all prior proposals, negotiations and representations are merged herein. Any terms in Customer’s order or confrmation which are inconsistent herewith are expressly rejected and shall not be binding on Gigantic. Any failure of Gigantic to raise objections to any inconsistent or additional terms shall not constitute a waiver of these Terms and Conditions.
GENERAL INFORMATION:
• Gigantic welcomes orders by USPS, priority mail, email, or inquires by phone followed by a written confirmation.
• Customer’s offer to purchase will be considered as accepted when Gigantic provides written confirmation by email or mail (USPS or priority mail).
• Higher minimums and cash with order terms may apply to products specially ordered.
• Gigantic will consider blanket orders, yearly contracts and multi-year contracts with its customers.
• All orders received and accepted are considered binding legal obligations subject to these Terms and Conditions.
• Unless otherwise agreed by Customer and Gigantic, delivery shall be FOB Gigantic’s manufacturing plant. Title and risk of loss shall pass to Customer at Gigantic’s manufacturing plant.
• If seeking credit terms, please request Gigantic’s New Customer and Credit Application. Completion and a signature is
required.
QUOTATIONS AND PUBLISHED PRICES:
Quotations automatically expire 30 calendar days from the date issued, unless otherwise stated in the quotation, and are subject to withdrawal by written notice within that time period. Prices shown on any published price lists and/or other published literature issued by Gigantic are not unconditional offers to sell and are subject to change without notice. Prices shall be subject to adjustment to those in effect at the time of shipment.
PAYMENT TERMS:
Any and all credit terms offered to the Customer are subject to written credit approval by Gigantic, which may be revoked upon written or verbal notice. Past due amounts may be assessed an accrued interest charge of one and one half percent (1 1/2%) per month (or fraction
thereof) or the highest rate permitted by law. Any credit terms offered by Gigantic are available only so long as Customer fulfills all
obligations under the terms and conditions herein including, but not limited to, timely payment of invoices within stated terms. Gigantic
reserves the right in its sole judgment to require satisfactory security before shipment of products to Customer. Customer grants to Gigantic a security interest in all products and in all proceeds thereof until the complete purchase price and all additional costs are paid by Customer.
Gigantic may, at its option, file documents reasonably required to protect Gigantic’s security interests in the products and Customer agrees to cooperate with Gigantic in taking such actions. If Customer defaults in payments under any order, Gigantic, at its option, may defer further
shipment under any order from Customer until Customer re-establishes satisfactory credit, or Gigantic may cancel the unshipped portion of
any order without any liability on the part of Gigantic for failure to ship. Customer shall not be entitled to deduct from the price invoiced by Gigantic any claim by Customer against Gigantic. If Gigantic finds it necessary to employ an attorney or third party agent to collect any past due amounts owed, it may collect, in addition to any other sum owed, its reasonable fees expended for such collection services.
SHIP QUANTITY:
Gigantic ships quantities in accordance with Customer requests and subject to Gigantic’s standard tolerances and variations. For custom orders, the quantity shipped may vary +/-10% from quantity ordered. For exact quantity requirement requests, please discuss specifcations with a Gigantic Customer Service or Sales Representative.
SHIPMENT AND DELIVERY:
(a) Unless otherwise agreed by Customer and Gigantic, delivery shall be FOB Gigantic’s manufacturing plant. Title and risk of loss shall pass to Customer at Gigantic’s manufacturing plant. Selection of carrier is reserved by Gigantic. Any increase in delivery costs resulting from Customer’s instructions to the carrier or from receiving delays caused by Customer shall be charged to Customer’s account. Commercially reasonable efforts shall be made to deliver goods at the desired time, however delivery dates are not guaranteed. (b) Production and delivery of products are subject to restrictions, labor diffculties, civil disturbances, accidents, fres, food, windstorm, government regulations, delays of carriers including but not limited to railcar shortages, shortage of raw materials, energy, pandemic, or acts of God, and any other cause (whether or not similar to causes listed above) beyond Gigantic’s reasonable control (“Force Majeure Event”). During any such Force Majeure Event, Gigantic shall be excused and not liable for delay in delivery, inability to deliver or failure to deliver or perform its obligations hereunder, and Gigantic shall have the right to allocate its available supply among its customers in its sole discretion.(c) Delivery dates indicated in documentation, if any, are approximate and are based on prompt receipt of all necessary information regarding the goods and/or services covered by the order or contract. Gigantic will make reasonable efforts to meet any indicated delivery dates but cannot be held responsible for failure to do so.
INTELLECTUAL PROPERTY:
The sale and delivery of goods to Customer shall in no way transfer to Customer any right of ownership in patents, copyrights, trademarks, technologies, designs, specifcations, drawings, or other intellectual property Gigantic (or its suppliers) incorporated into the goods delivered hereunder.
WARRANTY:
The liability of Gigantic for any defective or nonconforming goods shall be limited to either, at the sole discretion of Gigantic, (1) the repair of any defective or nonconforming goods, (2) replacement of defective or nonconforming goods, or (3) cancellation of the invoice and return of the purchase price. In no event shall Gigantic be liable for Customer’s anticipated profts, or incidental, special, or consequential damages.
SHIP QUANTITY:
Gigantic ships quantities in accordance with Customer requests and subject to Gigantic’s standard tolerances and variations. For custom orders, the quantity shipped may vary +/-10% from quantity ordered. For exact quantity requirement requests, please discuss specifcations with a Gigantic Customer Service or Sales Representative.
GIGANTIC MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND ALL OTHER WARRANTIES INCLUDING ANY IMPLIED BY OPERATION OF LAW, AND ANY AND ALL WARRANTIES OF MERCHANTABILITY OR WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED. GIGANTIC’S LIABILITY PURSUANT TO ANY WARRANTY SHALL BE LIMITED TO THE REPAIR OR REPLACEMENT OF THE MATERIAL SOLD OR REPAYMENT OF THE PURCHASE PRICE. UNDER NO CIRCUMSTANCES SHALL GIGANTIC BE LIABLE FOR PERSONAL INJURY, SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR DAMAGE TO OTHER PROPERTY WHETHER SUCH DAMAGES ARISE FROM OR ARE A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. GIGANTIC SHALL HAVE NO LIABILITY FOR LOSS OF BUSINESS, BUSINESS INTERRUPTIONS, LOST GOODWILL, OR LOST PROFITS. IN NO EVENT SHALL GIGANTIC’S LIABILITY ON ANY WARRANTY OR CLAIM WHATSOEVER EXCEED THE COST OF THE MATERIALS SOLD.
GIGANTIC SHALL HAVE NO LIABILITY FOR PATENTS, TRADEMARKS, TRADE DRESS, OR COPYRIGHT INFRINGEMENT OR MISAPPROPRIATION OF TRADE SECRETS WITH RESPECT TO ANY GOODS DELIVERED.
PERMITTED VARIATIONS:
Without notice to Customer, Gigantic may at any time make any change or variation in the products or the execution of the order which, in Gigantic’s opinion:
(a) does not affect the general characteristics or properties or bring about a material impairment of quality or function of the products, or
(b) is required to comply with any requirement imposed by law or public authority
PERMITTED VARIATIONS:
PRODUCT SAFETY AND INFORMATION:
Customer agrees to comply with all OSHA and other safety-related laws, regulations, standards and requirements which are applicable to the products. Customer acknowledges that products are to be used in accordance with Gigantic’s labeling and literature concerning the products.
PERMITTED VARIATIONS:
LIMITATIONS OF ACTIONS:
Customer may not bring any action or claim against Gigantic, on any theory whatsoever, related to the Terms and Conditions or products more than six months following the accrual of the action or claim
PERMITTED VARIATIONS:
Customer understands that its relationship with Gigantic under the Terms and Conditions and in connection with the purchase of any products from Gigantic hereunder is only that of a buyer and seller of goods. Under no circumstances whatsoever shall any type of franchisee, dealership, or distributorship arrangement or obligation be created in connection herewith, unless established in a formal written agreement signed by both Customer and Gigantic. Gigantic assumes no obligation or liability for any technical data or advice furnished by Gigantic with respect to the products and use of the products.
SALES TAX:
Any sales, use or other taxes which Gigantic may be required to pay or collect with respect to the sale, manufacture, delivery, storage, use or shipment of any products or services sold to Customer shall be paid by Customer. Gigantic is required to charge state and local tax when a valid sales tax exemption certifcation has not been provided to Gigantic. When ordering, Customer is required to clearly indicate if any item is tax exempt and provide to Gigantic a valid and current exemption certifcation.
CANCELLATIONS; TERMINATION BY GIGANTIC:
Gigantic may terminate an orderfrom Customerimmediately by written notice to Customer withoutliability orfurther obligation hereunderif Customer fails or refuses to furnish Gigantic with such information and assurances as Gigantic may request about Customer’s fnancial and operating conditions as affecting Customer’s ability to purchase products and, to the extent permitted by law, in the event of Customer’s insolvency, the fling of a voluntary or involuntary petition in bankruptcy by or against Customer, the appointment of a receiver or trustee for Customer, Customer’s execution of an assignment for the beneft of creditors, or a comparable event. Undelivered parts of any order may be canceled by the Customer only with the written approval of Gigantic. In the event of cancellation of orders for special or custom orders, the Customer shall pay to Gigantic, all reasonable costs and expenses that have been incurred prior to cancellation, including the cost of raw materials ordered, plus the usual rate of proft for similar work. The minimum cancellation charge shall be 15% of the contract price.
CLAIMS:
Customer is responsible for inspecting all goods upon arrival. Gigantic is not responsible for any goods that are received and accepted by Customer free and clear without written indication from Customer of any discrepancy, non-conformance, or damage. Claims for any reason, must be made within 5 (fve) days of receipt of shipment. Failure to give notice of any discrepancies, non-conformance, or damage to goods in writing within 5 (fve) days of receipt of shipment shall constitute a waiver by Customer of all claims in respect to the goods received. No claim will be allowed unless approved by an authorized representative of Gigantic. Customers are responsible for their own finish good testing. Gigantic Bag makes no representation or warranties on any applications.
RETURNS:
Customer may not return products without first obtaining Gigantic’s prior written consent. Special or custom orders are not returnable or refundable. Standard materials may be subject to restocking and repackaging charges. Gigantic is not responsible for any direct or indirect loss which may result from material failure, improper storage, neglect or misapplication of the product. Prepaid freight for return shipments may be required. Gigantic does not accept charge backs or penalties for disputed orders.
REMEDIES OF GIGANTIC:
Customer agrees that any of the following shall constitute an event of default, which shall enable Gigantic at its sole option, to cancel any unexecuted portion of any order, or to exercise any right or remedy which it may have by law: (1) the failure of the Customer to perform any term or condition contained herein; (2) the insolvency of Customer or its failure to pay debts as they mature, an assignment by Customer for the benefit of its creditors, the appointment of a receiver for the Customer for the materials covered by this order or the filing of any petition to adjudicate the Customer bankrupt; (3) the death, incompetence, dissolution or termination of existence of Customer; (4) a failure by Customer to provide adequate assurance of performance within five (5) days from a justified demand by Gigantic; or (5) if Gigantic, in good faith, believes that Customer’s prospect of performance under these terms and conditions of sale is in doubt.
Upon default by Customer, Customer agrees to reimburse Gigantic, for all attorney fees and court costs incurred in connection with such default. All rights and remedies of Gigantic, herein are in addition to, and shall not exclude, any rights or remedies that Gigantic, may have under applicable law. In the event it becomes necessary to incur any expense for collection of any overdue account, reasonable collection charges, and reasonable attorney fees, will be added to the balance due from Customer.
INFORMATION AND RECOMMENDATIONS BY GIGANTIC:
All statements, technical information, and recommendations contained in this publication are presented in good faith, based upon tests believed to be reliable. Gigantic does not guarantee the accuracy or completeness of this information and it is the reader’s responsibility to determine the suitability of products in any given application.
All products discussed are sold without warranty, either expressed or implied, and Customer assumes all responsibility for loss or damage arising from the handling or use, whether done in accordance with directions or not. Statements concerning the possible use of products are not intended as recommendations to use any product in the infringement of any patent.
NON-WAIVER:
Any failure of Gigantic to insist upon strict compliance with any term or condition of sale herein shall not be deemed to be a waiver of any right or remedy of Gigantic, hereunder, nor of its right to insist upon strict compliance of the same or any other term or condition of sale in the future. No waiver nor any term or condition of sale shall be valid unless in writing and signed by an authorized representative of Gigantic.
GOVERNING LAW:
All issues concerning the performance or interpretation of any contract regarding the purchase of any product shall be governed by the laws of the State of Delaware, excluding its conflicts of laws principles, and the applicable laws of the United States of America. Any action arising out of these Terms and Conditions shall only be brought in a court of competent jurisdiction located in the State of Delaware, and the Parties hereby consent to proper jurisdiction and venue lying in such forum. The prevailing Party in any proceedings or dispute resolution procedures
in relation to these Terms and Conditions shall be entitled to recover against the non-prevailing Party the reasonable attorneys’ fees, court costs, and other expenses incurred by the prevailing Party incurred as a result of proceedings.
INTERPRETATION AND SEVERABILITY:
These terms and conditions of sale shall not be construed against the party preparing them, but as if all parties jointly prepared them. Should any term or provision contained herein be held to be invalid, illegal, or unenforceable under any present or future laws, such term or provision shall be fully severable, and the terms and conditions of sale shall be construed and enforced as if such invalid, illegal, or unenforceable term(s) had never been made a part hereof.
ENTIRE AGREEMENT:
This document, along with the purchase order and all attachments thereto, shall constitute the entire, complete, and exclusive agreement of the parties with respect to the sale of goods. No course of dealing or usage of the trade are applicable unless expressly incorporated herein.
No additional or different terms and conditions appearing on the face or reverse side of any purchase order used or supplied by the Customer shall become a part of the terms and conditions of the agreement. All other prior or contemporaneous representations, warranties, covenants, or agreements with respect to the subject matter are hereby superseded.
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