Sunday, October 20, 2019
Standard PO Term and Conditions
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Terms and Conditions

1.TERMS AND CONDITIONS – These Terms and Conditions of Purchase (these “Terms”) constitute an initial offer under the Uniform Commercial Code (the “UCC”) §2-206(1)(a). All other terms and conditions referenced, incorporated or proposed in an offer to sell goods and/or services by any supplier (a “Seller”), regardless of when made by Seller, (a) are deemed to be in addition to, or a modification of, these Terms, under UCC §2-207, (b) are expressly rejected by Mac Papers, Inc., and its subsidiaries or affiliates (“Buyer”), and (c) will not be of any force or effect, it being understood and agreed by and between Seller and Buyer that these Terms will apply to all purchases by Buyer of any goods and/or services from Seller. Buyer’s placement of an order with Seller (an “Order”) will not constitute acceptance by Buyer, nor will Buyer be bound by, any other terms and conditions, all of which are expressly rejected by Buyer, unless such other terms and conditions are set forth in a separate writing, which separate writing has been executed by an authorized officer of Buyer.
2.ACCEPTANCE – Seller acknowledges that it has read these Terms and agrees to be bound by, them in their entirety. Seller’s acceptance of these Terms (a) constitutes a material condition by Buyer to purchase any such goods and/or services from any Seller and (b) is deemed to be conclusively evidenced by either Seller’s written acknowledgment of an Order or by commencement of performance with respect to any Order. By acknowledging or fulfilling an Order, Seller waives any and all rights to enforce all other terms and conditions contained in any quotation, acknowledgment, invoice, or other document provided by Seller to Buyer.
3.CHANGES TO ORDERS – Buyer will have the right at any time to make changes to an Order by written notice to Seller, and Seller will make commercially reasonable efforts to comply with such changes. If such changes cause a material increase or decrease in Seller’s costs or time of performance, Seller will notify Buyer promptly upon receipt of such change and mutually negotiate an adjustment adequately reflecting such increase or decrease.
4.PRICE – If an Order does not specify a price, Seller will fill the Order at prices equal to or less than those last quoted and charged to Buyer for the same goods/services. Charges for any boxing, crating, or packaging will not be paid by Buyer unless otherwise expressly stated in an Order. Goods are purchased on a delivered basis and all freight charges are to be paid by Seller, unless otherwise specified in an Order.
5.INVOICES – All invoices will clearly state Buyer’s Purchase Order Number and will be emailed, read receipt requested, to mpecaccpay@macpapers.com, or, if email is not feasible, invoices will be mailed to Buyer’s accounts payable office at P.O. Box 5369, Jacksonville, FL 32247. Invoices will be rendered for each Order or, if more than one shipment is made with respect to an Order, for each shipment.
6.PAYMENT DUE DATES AND DISCOUNTS – In determining payment due dates and in connection with any discount offered for prompt payment, time for making the payment or earning the discount will be computed from the later of: (a) the delivery at Buyer’s specified destination; or (b) receipt by Buyer of a correct invoice (in strict accordance with an Order and these Terms) in the accounts payable office of Buyer. For the purpose of paying by due date or earning any such discount, payment will be deemed to be made on the date of mailing of Buyer’s check or Buyer’s initiation of electronic payment. In case of errors on an invoice, the payment discount period will date from Buyer’s receipt of corrected invoices.
7.SHIPPING; TITLE; RISK OF LOSS – Unless otherwise specified in the Order, delivery will be FOB point of destination, and title and risk of loss will pass to Buyer upon delivery to Buyer’s specified destination. An itemized delivery ticket, bearing Buyer’s Purchase Order Number, will accompany the shipped goods. Time of shipment and other aspects of performance hereunder are of the essence. Delays in shipment will be reported by Seller to Buyer within one (1) day of Seller’s knowledge of any such delay.
8.RIGHT OF INSPECTION – Goods supplied by Seller will be received subject to Buyer’s inspection and approval within 5 business days after delivery, notwithstanding prior payment. If any specification, representation or warranty is not met, the nonconforming goods may be returned by Buyer at Seller’s expense.
9.SUBSTITUTE/DISCONTINUED PRODUCTS – In the event any good or service that was initially offered by Seller, and ordered by Buyer is not available or becomes discontinued, Seller shall promptly notify Buyer and Buyer will have the right to terminate the Order with regard to the unavailable or discontinued good or service. Seller shall not have the right to substitute any goods or services without the written consent of Buyer.
10.WARRANTY – In addition to all warranties provided by law, Seller represents and warrants that in furnishing any services and/or goods to Buyer:

(a) Seller and the goods furnished or the services provided to Buyer comply with and, if applicable, are manufactured and labeled, in strict compliance with all applicable federal, state, and local laws, rules and regulations;

(b) the services and/or goods comply with all applicable American standards (including, but not limited to, ANSI, ASME, ASTM, and NEMA) at the time of delivery, and when any goods are manufactured or produced outside the United States or its territories, Seller will furnish, at Buyer’s request, documents stating the names and addresses of the foreign manufacturers or producers;

(c) the goods, when shipped, or services, when provided, will conform to written specifications, drawings, samples or other descriptions furnished by Seller or specified by Buyer, and will be free from defects in material, design and workmanship, and notwithstanding the foregoing or anything in these Terms to the contrary, Buyer’s approval of specifications, drawings, samples and/or other descriptions furnished by Seller will not relieve Seller of its obligations under these Terms. Without limiting its remedies under law or equity, Buyer, at its option, may require Seller either to replace defective goods at no increase in price (Seller must pay all repacking, transportation and handling charges both ways) or to refund the purchase price and any charges in connection therewith;

(d) the goods do not infringe on any trademark or patent right of any party;

(e) Seller possesses all licenses and permits required by law in order to sell the goods or provide the services;

(f) upon delivery to Buyer, Buyer will have good title to all goods sold to Buyer free and clear of all liens, claims and encumbrances, other than those created by Buyer;

(g) the goods do not and will not contain any “conflict minerals” (such as columbite-tantalite (coltan), cassiterite, gold or wolframite, or their derivatives, tantalum, tin and tungsten) as defined in the 2010 Wall Street Reform and Consumer Protection Act, also known as the Dodd-Frank Act, and that no conflict minerals are necessary to the functionality or production of any of the goods sold by Seller to Buyer; and

(h) while on Buyer’s premises, Seller and its subcontractors will comply with Buyer’s site-specific regulations and will ensure that all of its employees, subcontractors, and agents have a safe work environment. Seller is solely responsible for the safety of the employees of Seller and its subcontractors and the means and methods utilized by it or its subcontractors’ employees in performing the services contemplated herein, and Seller agrees that Buyer will have no such responsibility. In the event an employee of Seller or one of its subcontractors is injured while on Buyer’s premises, Seller will immediately notify Buyer of the time, nature, and severity of the injury, cooperate with Buyer, and provide Buyer with information applicable to any investigation of such injury.
11.INDEMNITY – Seller will indemnify, defend, and hold harmless Buyer, its agents, and employees from and against any and all expenses, claims, demands, losses, damages, actions, or liability of any kind, including reasonable attorney’s fees incurred for any and all damage or injury of any kind or nature whatsoever (including death) to all persons, (including those employed by Seller) or property which is caused by, arises out of, on account of, or as a result of:

(a) use of the goods or services provided hereunder;

(b) breach by Seller of any of its representations, warranties, covenants, and/or any agreements set forth in these Terms; and

(c) any act or omission of Seller, its agents, employees, representatives or subcontractors or failure to comply with these Terms.

Upon demand, Seller agrees to assume on behalf of the Buyer the defense of any action, at law or in equity, which may be brought against the Buyer upon any such claim and to pay on behalf of the Buyer the amount of any judgment that may be entered against the Buyer in any such action. Seller hereby expressly waives any immunity from suit by Buyer, which may be conferred by the workers’ compensation laws, or any other law of any state that would preclude enforcement of the indemnification clause of these Terms by Buyer. Seller further agrees to pay any reasonable attorney’s fees incurred by the Buyer in securing compliance with the provisions of this section. Seller agrees that its obligations to indemnify under this section are distinct from, independent of, and not intended to be coextensive with its duty to procure insurance required herein. In addition, if any of the goods or services, or any part thereof, provided pursuant to these Terms constitutes infringement of any trademark or patent right of any party and its use is enjoined, Seller will, at its own expense, either procure for Buyer, its successors, assigns, and customers the right to continue using such goods or services or part thereof or replace them with a substantially equivalent non-infringing good or service, at no cost to Buyer, its successors, assigns, and customers.
12.INSURANCE – Seller represents and warrants that it has and maintains the following minimum insurance coverage:

(a) Commercial General Liability insurance, including contractual liability, premises, legal liability, fire, completed operations, independent contractors, personal injury, and product liability coverage, with limits not less than $2,000,000 per occurrence and $4,000,000 aggregate;

(b) Commercial Auto insuring all vehicles used by Seller (including all owned, hired and non-owned vehicles) with limits not less than $1,000,000 per occurrence; and

(c) Worker’s Compensation with statutory limits and Employer’s Liability with limits not less than $500,000 each accident and $500,000 by Disease – Each Employee.

All such insurance must be purchased from insurers with a Best’s Key Guide rating of at least A-VII or equivalent. If requested by Buyer:

(a) Seller’s required insurance will bear endorsements evidencing a waiver of the right of subrogation against Buyer (except for Worker’s Compensation where such waiver is not permitted under applicable law) and an assignment of statutory lien; and

(b) Seller will cause Buyer to be named an “Additional Insured” under all such policies, except Workers’ Compensation, and provide Buyer with a certificate of insurance, together with policy endorsements evidencing Buyer’s status as an additional insured and all coverage required under these Terms and stating that the insurance will not be reduced in coverage, non-renewed or cancelled while these Terms are in effect without thirty (30) days prior written notice to Buyer.

Seller’s insurer will act and respond to all claims on a primary and non-contributory basis. Nothing contained in these insurance requirements is to be construed as limiting the extent of Seller’s responsibility for payment of damages resulting from Seller’s sale of goods or performance of services under these Terms or otherwise. Seller will provide for or require any subcontractor to maintain similar coverage for the subcontractor’s employees employed in connection with this Order.
13.GOVERNMENT CONTRACT REQUIREMENTS – Buyer is subject to various government contract requirements, and Seller may be deemed a federal subcontractor. If applicable, Seller agrees to be subject to all laws and regulations applicable to federal subcontractors. Unless exempt, this contractor and subcontractor will abide by the requirements of 41 C.F.R. §§ 60-1.4(a), 60-300.5(a), and 60­741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment qualified individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability. If applicable, the Seller and any subcontractor will also abide by the requirements of 41 C.F.R. § 61-300.10 regarding veterans’ employment reports and 29 C.F.R. Part 471, Appendix A to Subpart A regarding posting a notice of employee rights.
14.SAFETY DATA SHEET COMPLIANCE – Seller certifies that safety data sheets (“SDS”) for hazardous materials or dangerous goods furnished in accordance with all applicable regulations strictly conform to OSHA requirements and agrees such SDS will promptly be provided to Buyer pursuant to all federal, state, or local laws and regulations prior to the first shipment of hazardous materials or dangerous goods and whenever there is an update to the SDS. Seller’s failure to supply such SDS will be deemed to constitute Seller’s warranty and representation that each of such goods sold hereunder is exempt from such requirements.
15.CONFIDENTIALITY – All specifications, data, and other information furnished by Buyer, or its agents, to Seller in connection with any Order remain the exclusive intellectual property of Buyer and will be treated by the Seller as proprietary to Buyer and will not be disclosed or used, except as necessary to fulfill its obligations hereunder, without prior written approval of Buyer. In addition, the purchase of the Seller’s goods or services does not authorize the Seller to use the name of or make reference to Buyer for any purpose in any releases for public or private dissemination, nor will the Seller divulge or use in any advertisement or publication any specifications, data, or other information pertaining to or relating to this usage without prior written approval of Buyer.
16.MODIFICATION OF THESE TERMS – Buyer may amend, modify or terminate these Terms, in whole or in part, which amendment, modification or terminations shall be effective, without notice to any party, on the 30th day following Buyer’s publishing the text of such amendment, modification or termination, or the republication of these Terms, as so amended, modified, or terminated, in their entirety on Buyer’s website.
17.CANCELLATION OF AN ORDER – Buyer, by written notice to Seller, may cancel an Order, in whole or in part on two (2) business days’ prior written notice. If an Order is cancelled by Buyer, Seller will be compensated to the extent that items have been accepted by Buyer prior to the effective date of cancellation, except in the case of custom goods. In the case of custom goods, Seller will be compensated for all costs incurred through the date of cancellation that cannot be recovered from another party plus a pro-rata share of the anticipated profit on the Order. In no event, will the amount of compensation exceed the original Order price. Other than to this extent, Buyer will not be liable to Seller for any damages on account of its failure to accept all of goods or services provided pursuant to an Order. Seller may not transfer or assign any Order, any interest therein or any claim arising hereunder without the prior written consent of Buyer. Notwithstanding the foregoing, in the event any Order is cancelled as a result of Seller’s default, the Seller will be liable for all damages allowed in law or equity, including the excess cost of procuring similar items.
18.ASSIGNMENT OF BENEFITS – Buyer may transfer or assign the benefits of these Terms or any Order, in whole or in part, including without limitation Seller’s warranties, without the approval of Seller.
19.NOTICES – All notices to or from Buyer will be given in writing and will be delivered by hand, by commercial courier or by registered or certified mail, return receipt requested, postage prepaid, to the intended party to receive the same at such party’s address as provided to the other party. The notice will be effective upon actual receipt or refusal by a party.
20.ATTORNEY’S FEES – In the event of litigation relating to these Terms, the prevailing party will be entitled to receive from the other party its reasonable attorneys’ fees and costs.
21.COURSE OF CONDUCT – Buyer’s course of conduct may vary; however Buyer shall only be bound with respect to the specific variance and shall never be bound as to any future action by any such variance.
22.MISCELLANEOUS – These Terms:

(a) constitute the entire agreement with respect to the subject matter described herein, and any prior understandings will not be binding;

(b) will be governed by the laws of the State of Florida, without giving effect to its choice of laws rules and Seller agrees to subject itself to the courts of Florida and such venue will be exclusive regarding disputes arising out of these Terms;

(c) will be construed so as to be valid, legal, binding and enforceable to the fullest extent permitted by law; and

(d) to the extent any specific provision by its nature is intended to survive termination or expiration of these Terms, will so survive, including, but not limited to, warranties, indemnities, and confidentiality.
  
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