These Terms and Conditions of Sale (“Terms”) apply to and govern all sales by Paper i (“Seller”) to its Customers (each, a “Customer”). There are separate sections that include additional provisions relating to paper goods or services sold by Seller. If there is a conflict between the general provisions and those separate sections, the provisions of those separate sections will take precedence.
GENERAL
All Customer orders are expressly subject to these Terms. By placing an order with Seller, Customer consents to the applicability of these Terms. Seller objects to any terms proposed in Customer’s proposal, purchase order, acknowledgment or other document which add to, vary from, or conflict with the Terms, and acceptance of customer’s order is expressly made conditional on its assent to the terms and conditions stated herein. Any such proposed terms shall be void and these Terms constitute the complete and exclusive agreement and statement of the terms and conditions between Customer and Seller. There are no understandings, agreements or representations, express or implied, not specified herein. Subject to the express provisions of these terms, the customs of the American paper trade relating to merchandise of the type and quality provided for herein shall apply.
Price: Payments shall be in United States currency. In the case of sales arranged through cooperatives, purchasing group, print management company, or affiliated entities Seller may pay a rebate to the cooperative, purchasing group, print management company or affiliated entity in connection with such sale. The Seller may impose a small order charge set by Seller from time to time for any order that does not meet the minimum order value. Such value is determined by the Seller from time to time and can vary from region to region. The price for the sale of any merchandise shall be Seller’s price prevailing at time of shipment. Any such agreement as to pricing or price protection is based on manufacturer’s then current price and price protection guidelines, which are subject to change. Notwithstanding any such agreement any increase in the cost to Seller of the purchase and delivery of the merchandise, whether by way of a change in manufacturer’s price, imposition of surcharge, change in freight policies or costs, tariffs, duties or otherwise, including with respect to orders previously placed and accepted, will result in a correlative increase in the price payable by Customer.
Taxes and Additional Charges: All federal, state, local and other governmental taxes or other charges imposed upon the manufacture, sale, transportation, delivery and/or use of any merchandise sold to Customer by Seller in the present or future, and any increase in any such items, or in freight or insurance, whether or not included in the price under the Acknowledgement relating thereto, and shall be paid by, Customer or reimbursed to Seller by Customer.
Terms of Payment: Terms of payment are as specified in the invoice and run from date of invoice, not date of shipment or delivery. A one and one half percent per month service charge (18 percent per annum) or the highest permissible rate under applicable law, whichever is less, shall be assessed on late payments. Payments are to be made at the direction and to the location specified by Seller. If at any time and for any reason, including but not limited to refusal or failure to adequately respond to requests for financial information, the financial condition of Customer shall become unsatisfactory to Seller, Seller may require cash or satisfactory security on shipments or deliveries or prior to placing any mill order or prior to the last date to change any mill order or otherwise change any previous payment terms, without impairing the obligation of Customer to take and pay for the quantity of goods ordered. Seller may accept credit or debit cards in its discretion, but no prompt payment or other discounts or rebates shall apply to any payments made using any credit or debit card. To secure payment for all sums due hereunder or otherwise, Seller shall retain a security interest in all goods and equipment delivered hereunder and these terms and conditions shall be deemed a security agreement under the Uniform Commercial Code. Customer authorizes Seller to execute and file on Customer’s behalf all documents Seller deems necessary to perfect such security interest. Customer’s failure to accept delivery of any installment of shipment of merchandise in the qualities and on the terms specified or to fulfill any other agreement shall constitute a material breach of the entire transaction, in response to which, in addition to any other remedies hereunder or at law, Seller may in its discretion by written notice to Customer declare the entire transaction terminated as of the date of the breach, or reduce the installments during the remainder of the term hereof to that quantity last ordered by Customer.
Delivery, Title and Contingencies: Except as otherwise agreed shipments of merchandise from mill of manufacturer shall be delivered to Customer f.o.b. mill, less prevailing freight allowance, if any, accorded to Seller by manufacturer, and title to merchandise from any such mill and all risk of loss or damage shall thereupon pass to Customer. Shipments of merchandise from Seller’s warehouses shall be subject to imposition by Seller of delivery and related charges (including fuel surcharges), and title to merchandise from any such warehouse and all risk of loss or damage shall pass to Customer upon delivery to it at such location as Seller and Customer may agree. Any date for shipment or delivery specified is only an estimated date, and delivery by Seller shall be timely if made within ten (10) days thereof, or, if Seller orally or in writing notifies Customer prior to the end of said ten day period of a delay in shipment from the mill, delivery shall then be deemed timely if made within ten (10) days after the date of shipment from the mill. Customer agrees to accept partial or pro rata deliveries as full performance in the event Seller cannot fulfill an entire order. Seller shall not be liable to Customer or to any other person for loss or damage of any kind if it fails to make or arrange timely delivery of merchandise, or if performance by Seller is rendered impracticable or commercially unreasonable (including as a result of increased expense), as a result of failure of Seller’s suppliers to make adequate or timely delivery of the merchandise; strikes, lockouts or other labor disputes; war (whether declared or not), hostilities, military mobilization, riot, armed conflict, insurrection, embargo or blockade; imposition of duties, tariffs, quotas, sanctions or other import, export or other restrictions(including restrictions on payment channels); plague, epidemic, pandemic, widespread infectious disease or public health or other emergency, statute, regulation, order or any other action of any governmental authority; transportation breakdown or delay, rejected mill runs; acts of God or natural disaster such as but not limited to storm, cyclone, typhoon, hurricane, tornado, blizzard, earthquake, volcanic activity, landslide, tidal wave, tsunami, flood, damage or destruction by lightning, drought, explosion, fire; destruction of machines, equipment factories and any kind of installation; prolonged breakdown of telecommunication or electric current; accidents; shortage or inability to obtain material or supplies or any other circumstance beyond Seller’s control whether or not foreseeable or abatable or subject to mitigation by Seller. Quantities so affected may be eliminated from the amount ordered at the discretion of the party affected without liability and Seller may allocate its available supply among its purchasers, but the order shall remain otherwise unaffected.
Tolerances: Over-runs and under-runs shall be accepted by Customer in accordance with the specific policies of the manufacturer of the merchandise, and in the absence of any specific policy, usage of trade shall control.
SELLER MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, EXCEPT THAT (I) ANY MERCHANDISE DELIVERED SHALL BE OF THE MANUFACTURER’S STANDARD QUALITY FOR MERCHANDISE OF SUCH KIND, AND (II) ANY SERVICES SHALL BE PERFORMED BY SELLER AT THE REQUEST OF THE CUSTOMER IN A REASONABLE MANNER CONSISTENT WITH BEST PROFESSIONAL PRACTICES.
THE FOREGOING WARRANTY IS EXCLUSIVE OF AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL OR IMPLIED, INCLUDING ANY WARRANTY OF PERFORMANCE, NON-INFRINGEMENT, MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE AND SUPERSEDES AND EXCLUDES ANY ORAL OR WRITTEN WARRANTIES OR REPRESENTATIONS, MADE OR IMPLIED IN ANY MANUAL, LITERATURE, ADVERTISING BROCHURE OR OTHER MATERIALS. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE FOREGOING AND SELLER’S SOLE RESPONSIBILITY HEREUNDER IS AS STATED. SELLER SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, LOSS OF VALUE OR LOSS OF USE), EVEN THOUGH SELLER MAY HAVE BEEN NEGLIGENT OR HAVE BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES, OR FOR ANY AMOUNT IN EXCESS OF THE PRICE FOR THE SHIPMENT INVOLVED, OR THE PRICE CHARGED FOR THE SERVICES, UNDER THE FOREGOING OR ANY OTHER PART OF THESE TERMS, OR ANY OTHER AGREEMENT BETWEEN SELLER AND CUSTOMER. ANY LEGAL ACTION AGAINST SELLER FOR BREACH OF THESE TERMS, OR SUCH ANY OTHER AGREEMENT INCLUDING ANY WARRANTIES HEREUNDER, MUST BE INSTITUTED WITHIN ONE YEAR AFTER DELIVERY.
Claims and Returns: All returns are at the sole discretion of Seller. No merchandise shall be accepted for return prior to inspection by Seller’s authorized representative, and in no event will a return of allegedly defective merchandise be acceptable for credit if the containers, wrappers, or labels are defaced, damaged, removed or covered, or if the merchandise is not in its original container. Credit will only be allowed on defective merchandise returned within 30 days of the date of delivery, and all returned merchandise is subject to inspection by Seller. No claim will be allowed by Seller after the merchandise either has been cut, printed or written upon, or otherwise altered from its original form. Buyer shall not be entitled to deduct from the price invoiced to it the amount of any claim asserted against Seller without Seller’s written consent.
Indemnification: To the maximum extent allowed by law, Customer must defend and indemnify Seller, its employees, officers, directors and agents against all sums, costs, liabilities, losses, obligations, suits, actions, damages, penalties, fines, interest and other expenses (including investigation expenses and attorneys’ fees) that Seller, its agents, officers, directors or employees may incur or be obligated to pay as a result of (i) Customer’s negligence or willful misconduct; (ii) Customer’s use, ownership, modification, maintenance, transfer, transportation or disposal of the goods; (iii) any infringement or alleged infringement of the intellectual property rights of others arising from Customer’s plans, specifications (including Customer’s trademarks and brand names) or production of the goods ordered by Customer; and (iv) Customer’s violation or alleged violation of any federal, state, county or local laws or regulation, including without limitation, the laws and regulations governing product safety, labeling, packaging and labor practices. Customer hereby waives and releases Seller from all rights of contribution or indemnity to which it may otherwise be entitled.
Miscellaneous: No provision hereof or any other agreement may be modified, amended or rescinded unless by a written instrument executed by Seller and Customer. The failure of either party to insist in any one or more instances upon strict performance of any of the provisions of these Terms or any other agreement, or to take advantage of any of its rights, shall not operate as a continuing waiver of such rights. If Customer breaches any of the terms herein, including failure to timely pay for any goods ordered, necessitating any collection efforts or legal action by Seller, the Customer agrees that Seller shall be entitled to recover its reasonable costs incurred including, but not limited to, reasonable attorneys’ fees and costs. Seller shall have the right to assign any and all accounts receivable from, and any rights against, Customer to any person. Customer shall not have the right to offset any amounts owed to it by Seller or any of its affiliates against amounts owed by Customer to Seller. This transaction shall be governed by the laws of the State of New York, without reference to choice of law rules, and the Convention on Contracts for the International Sale of Goods shall not be applicable. Any legal action or proceeding concerning the validity, interpretation and enforcement of these terms or any sale of goods by Seller, matters arising out of or related to these terms or any sale of goods by Seller or its making, performance or breach, or related matters shall be brought exclusively in the courts of the State of New York in the County of New York or of the United States of America for the Southern District of New York, and all parties consent to the exclusive jurisdiction of those courts, waiving any objection to the propriety or convenience of such venues and THE PARTIES WAIVE TRIAL BY JURY IN ANY SUCH ACTION OR PROCEEDING. Process in any such action may be served by registered or certified mail addressed to a party at its last known address.
CONSULTING SERVICES
No Agency, Commitments or Expenditures: The parties expressly intend and agree that Seller shall have no authority to bind Customer to any agreement or obligation, express or implied. Seller may not enter into any contracts or make any commitments to third parties on behalf of Customer, either orally or in writing, without the prior, written consent of Customer. In addition, Seller may not commit to expenditures on behalf of Customer without prior written approval of Customer.
Independent Contractor: Customer and Seller expressly intend and agree that, in performing the services, Seller is acting as an independent contractor and not as an employee, affiliate, subsidiary, or agent of Customer. This Agreement shall not be construed as creating a partnership, joint venture, agency or employment relationship. Seller retains sole and absolute discretion, control, and judgment in the manner and means of performing the Services hereunder. Seller remains solely responsible to pay or withhold any sums customarily paid or withheld for or on behalf of Seller’s employees for income tax, unemployment insurance, social security, workers’ compensation or any other employment-related tax or payment pursuant to any law or governmental requirement.
Intellectual Property: As used herein, “Intellectual Property” means inventions, discoveries, concepts, ideas, techniques, tools, methods, trademarks, trade names, logos, identities, web site design, works, and confidential business information, which includes but is not limited to names, addresses, contact persons, purchasing histories and prices, credit standing and other information relating to clients or prospective clients, sources, and their current, past, potential or prospective prices, costs, profits, markets, products, and innovations, whether or not subject to patent, copyright, trademark or trade secret protection, conceived, designed, developed and/or acquired by a party to this Agreement.
Subject to the terms of this Agreement, any Intellectual Property made or conceived by Seller during the term of this Agreement is the exclusive property of Seller, regardless of whether it i) is based on or related to Intellectual Property of, or ii) results from work performed by Seller for Customer.
Terms Paper I rev 5-13-22v2