PAPER EXPRESS, INC.
DBA AMBROSE PACKAGING SOLUTIONS
STANDARD TERMS AND CONDITIONS OF SALE
These terms and conditions of sale (Agreement) are applicable to any order placed with and accepted by Paper Express, Inc. DBA Ambrose Packaging Solutions (Supplier).
- SCOPE OF AGREEMENT.This Agreement is expressly made on Buyers assent to all the terms and conditions hereof or acceptance by Buyer of the goods or services described on the face of the Purchase Order (the Order) shall be deemed an assent to all of such terms and conditions of this Agreement notwithstanding (1) the inclusions of different or additional terms and conditions on the Order which Buyer may have sent to Supplier; (2) Suppliers shipment of the products described in the Order to Buyer; and/or (3) Suppliers acceptance of the purchase price for such products, In any event, if there is any inconsistency or conflict between this Agreement and the Order, the provisions of this Agreement shall govern and control. Supplier, upon acceptance of an Order placed by Buyer, will supply the Goods or Services specified in the Order to Buyer, pursuant to the terms and conditions of this Agreement. The details of the Order (e.g. quantity, price, and product specifications) shall be set forth on the face of the Order.
- PRICE AND TERMS.Buyers financial responsibility is at all times subject to approval of Supplier and Supplier may at any time require payment in advance or satisfactory security or guaranty that invoices will be promptly paid when due. Upon reasonable request by the Supplier, Buyer shall provide copies of its most recent audited financial statements or other reasonable evidence of its financial capacity and such other information as Supplier reasonable requests to determine credit status or credits limits.
(a) The prices payable by Buyer for the goods and services to be supplied by Supplier under this Agreement (Goods or Services) will be specified in the applicable Order. Pricing schedules (whether attached to this Agreement or an Order) are subject to change upon a change in the price of applicable raw materials (as reflected on a recognized trade or commodity pricing tracker) in excess of five percent (5%) from the date of such schedule. Unless otherwise expressly stated in an Order, all prices exclude shipping and taxes. Unless otherwise specified in the Order, Goods or Services will be delivered FOB Suppliers manufacturing facility and will be shipped to Buyer via carriers selected by Supplier. To the extent legally permissible, all present and future taxes imposed by any federal, state, foreign or local authority, which Supplier may be required to pay or collect upon or with reference to the sale, purchase, storage, transportation, delivery use or consumption of the Goods or Services described in the Order (except income taxes) shall be added to the purchase price on the Order and shall be paid by Buyer to Supplier.
(b) Unless otherwise noted, payment is due thirty (30) calendar days from the date of the invoice. If Buyer does not pay an invoiced amount when due, Buyer shall pay a per-diem late fee in the amount of one and one-half percent (1.5%) per month on the late balanceand Supplier reserves the right to (1) withhold shipment of goods until full payment is made, (2) revoke any credit extended to Buyer, and (3) terminate the Order and this Agreement, in which event any unpaid amount shall immediately become due. In the event that Buyers account is more than ninety (90) days in arrears, Buyer shall reimburse Supplier for the reasonable costs, includingattorneysfees, of collecting such amounts from Buyer.In the event of any dispute regarding an invoice, no late fees will apply in the event that Buyer provides written notice of the dispute prior to the due date for such payment.
(c) Buyer shall provide notice within five (5) business days of the occurrence of any event which materially affects Buyers ability to perform its obligations under this Agreement including but not
limited to: (i) the material default of any supplier or sub-contractor; (ii) labor strike or dispute; or (iii) material uncured default with respect to any debt obligations of Buyer.
(d) Supplier shall not in any event be liable or responsible for any taxes, assessments, or other governmental charges which may be imposed upon, levied against or claimed to be due from Buyer, which are or are asserted or claimed by Buyer to be attributable in any manner or to the extent to the failure, neglect or refusal, or to the claimed or alleged failure, neglect or refusal of Supplier to ship or deliver the subject matter of this Agreement at the time or times in the quantity or quantities and/or in the manner specified in this Agreement.
- CANCELLATION BUYERS LIABILITY. Buyer may not cancel this Agreement or an Order except in writing. Buyer shall be liable for any loss suffered by Supplier by reason of Buyers cancellation. If Buyer fails or refuses to accept the goods manufactured by Supplier either before or after delivery to carrier, Supplier without written notice may retain or repossess said goods and Buyer shall be liable for the full purchase price less an allowance for the then current value after deducting freight, storage, handling and other costs.
- 4. FORCE MAJEURE. Any delay or failure of Supplier to perform its obligations hereunder shall be excused if, and to the extent, that it is caused by an event or occurrence beyond the reasonable control of the parties, including, acts of God, terrorism, restrictions, prohibitions, priorities or allocations imposed by or actions taken by any governmental authority (whether valid or invalid), floods, fires, embargoes, riots, war, or labor strikes. Written notice of such delay (including the anticipated duration of the delay) must be given to Buyer as soon as possible after the occurrence of the event, but not more than ten (10) days after. During the delay or failure to perform by Supplier, Supplier shall not be liable to Buyer. Provided however, if the delay shall continue for more than sixty (60) days after notice, Buyer may at its option purchase goods and/or services from other sources and reduce its Order to Supplier by such quantities. Notwithstanding the foregoing, Supplier shall deliver to Buyer at Buyers expense all finished goods produced under this Order, prior to the event of delay.
- INTELLECTUAL PROPERTY.
(a) Any and all inventions, discoveries, patent applications, patents, copyrights, trademarks and trade names, commercial symbols, trade secrets, work product and information embodying proprietary data existing and owned by Buyer as of the date of the Order or made or conceived by employees of Buyer during the term of the Order shall be and remain the sole and exclusive property of Buyer provided thatBuyer grants to Supplier a license to use, display and distribute (and to sub-license its affiliates and sub-contractors to use, display and distribute) any intellectual property rights delivered to Supplier as reasonably necessary to perform any Order.
(b) Any and all inventions, discoveries, patent applications, patents, copyrights, trademarks and trade names, commercial symbols, trade secrets, work product and information embodying proprietary data existing and owned by Supplier as of the date of the Order or made or conceived by employees, consultants, representatives or agents of Supplier during the term of this Agreement shall be and remain the sole and exclusive property of Supplier. Without limiting the generality of the foregoing, the parties agree that Supplier will own systems (including all web source code) related to the Goods or Services provided hereunder, including all modifications, upgrades and enhancements thereto made during the term of the Order. Without limiting the generality of the foregoing, Supplier shall have the right to provide to third parties services which are the same or similar to the services provided herein and to use or otherwise exploit any Supplier materials in providing such services.
- BUYER MATERIALS AND DATA. Buyer represents and warrants that any matter it furnishes for performance of services by Supplier (i) does not infringe any copyright or trademark or other Intellectual Property Rights of any third party; (ii) is not libelous or obscene; (iii) does not invade any persons right to privacy; and (iv) does not otherwise violate any laws or infringe the rights of any third party. Buyer warrants that it has the right to use and to have Supplier use on behalf of Buyer any data provided to Supplier or its Affiliates by Buyer including specifically customer names, identifying information, addresses and other contact information and related personal information (Data). Buyer further warrants that it will designate on the applicable Order if Data provided pursuant to that Order is subject to HIPAA, Gramm-Leach-Bliley or other statutes providing enhanced data protection or requiring enhanced data security procedures. Buyer agrees to indemnify, defend and hold harmless Supplier from all damages, claims or liabilities and expenses (including attorney fees) arising from any third party claim related to this Paragraph 6.
- CONFIDENTIAL INFORMATION.Any information that the parties receive or otherwise have access to incidental to or in connection with this Agreement (collectively, the Confidential Information), shall be and remain the property of the disclosing party. Confidential Information shall not include information which: (i) was in the possession of the receiving party at the time it was first disclosed by the disclosing party; (ii) was in the public domain at the time it was disclosed to the receiving party; (iii) enters the public domain through sources independent of the receiving party and through no breach of this provision by the receiving party; (iv) is made available by the disclosing party to a third party on an unrestricted, non-confidential basis; (v) was lawfully obtained by the receiving party from a third party not known by the receiving party to be under an obligation of confidentiality to the disclosing party; or (vi) was at any time developed by the receiving party independently of any disclosure by the disclosing party. Confidential Information may be used to the extent necessary to perform this Agreement and the parties shall not disclose Confidential Information to any third party, except to its agents (who have executed confidentiality agreements containing terms substantially similar to the terms) as necessary to provide the Goods or Services hereunder.In no event shall Buyer acquire any right, title or interest in and to any product or process information, including related know how, either existing or developed during the course of the business relationship with Supplier andBuyer, and in no event shall Supplier acquire and right, title, or interest in and to any materials or information provided to it by Buyer.
- INDEMNIFICATION.Buyer, as Indemnitor, shall indemnify, defend and hold harmless Supplier, as Indemnitee, its officers, directors, employees, agents, subsidiaries, and other affiliates from and against any and all claims, damages, liabilities, and expenses (including attorney fees) arising from any third-party claim based on Indemnitors (or its agents) breach of any representation, warranty, covenant, agreement, or obligation under the Order or this Agreement, or Indemnitors (or its agents) grossly negligent and/or willful acts in carrying out its obligations under the Order or the Agreement. Buyer will not be responsible for indemnifying Supplier where the basis of the indemnity claim arises out of Suppliers own negligence or willful misconduct. In order to avail itself of this indemnity provision, Indemnitee shall promptly provide notice to Indemnitor of any such claim, tender the defense of the claim to Indemnitor, and cooperate with Indemnitor in the defense of the claim. Indemnitor shall not be liable for any cost, expense, or compromise incurred or made by Indemnitee in any legal action without the Indemnitors prior written consent.
- BREACH.In addition to all other rights to which a party is entitled under this Agreement, if either party breaches any term of the Order or the Agreement, the non-breaching party shall have the right to: (a) terminate the Order immediately upon written notice to the other party; and (b) seek to obtain
injunctive relief to prevent such breach or to otherwise enforce the terms of this Agreement. In no event, however, shall Supplier be responsible for any claims arising out of its compliance with instructions, requirements, or specifications provided by or required by Buyer (including the use of information, artwork, logos, and/or trademarks provided by Buyer). Failure to properly demand compliance or performance of any term of the Order or this Agreement shall not constitute a waiver of Suppliers rights hereunder and prior to any claim for damages being made for non-conformance or breach, Buyer shall provide Supplier withreasonable notice of any alleged deficiencies in the Goods or Services or performance under the Order or this Agreement and Supplier shall have a reasonable opportunity to cure any such alleged non-conformance or breach.
- WARRANTY.Supplier warrants that the Goods or Services provided hereunder shall reasonably conform to specifications in all material respects. If applicable and at Suppliers option, Supplier may provide Buyer with an on-line printing proof for Buyers approval. If a proof has been provided, once Buyer approves said proof, Buyer will be liable for all fees associated therewith, as specified in the Order. If Buyer supplies Supplier stock or items for imprinting as part of the Order, Supplier is not responsible for any issues related to the quality of the stock or items for imprinting. Supplier will not provide refunds for any Goods or Services that conform to Buyers specifications in all material respects.Other than the warranties set forth in this section,Supplier makes no warranty of any kind, expressed or implied or otherwise whatsoever, that the services performed or any items produced will be merchantable or fit for any particular purpose or use. In the event of any breach of any warranty specified in this provision, Buyers exclusive remedy shall be that Supplier shall, at its option, repair or replace any defective goods at no cost to Buyer or refund any purchase price paid for such Work.
- RISK OF LOSS. Upon delivery of the goods described in the order FOB carrier, at Suppliers plant or shipping point, all risk of loss, damage and other incidents of ownership shall immediately pass to Buyer, but title to such goods will be retained by Supplier as security for Buyers performance until payment is received in full.
- LIMITATION OF LIABILITY.IN NO EVENT SHALL SUPPLIER BE LIABLE HEREUNDER FOR INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY FOR SUCH DAMAGES AND SUPPLIERS TOTAL LIABILITY FOR DAMAGES UNDER THIS AGREEMENT AND THE ORDER SHALL BE LIMITED TO THE TOTAL FEES DUE HEREUNDER FOR THE INVOICE UPON WHICH A CLAIM IS BASED.
- ARBITRATION. An controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgement on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
- NOTICE.Any notice sent pursuant to the Order or this Agreement shall be sent by certified mail, return receipt requested, or by overnight mail to the addresses on the Order or to such address as either party may in the future designate. Notices shall be effective upon receipt.
- ASSIGNMENT.Except as otherwise provided, the Order and this Agreement shall be binding upon and inure to the benefit of the parties successors and lawful assigns. Supplier may assign or delegate its obligations hereunder without the consent of Buyer.
- STATUS.Buyer and Supplier are separate entities. Nothing in the Order or this Agreement shall be construed as creating an employer-employee or joint venture relationship. This Agreement does not grant either party any authority to assume or to create any obligation on behalf of or in the name of the other.
- COMPLIANCE WITH LAW.Each party shall comply with all state, federal and local laws and regulations applicable to its performance hereunder.
- GOVERNING LAW.The Order and this Agreement shall be governed by the laws of the State of Michigan without reference to conflicts of law principles. Any legal suit, action or proceeding arising out of or relating to the Order or these this Agreement shall be commenced in a federal court in Michigan or in state court in the County of Oakland, Michigan, and the appellate courts thereof, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding. With respect to any litigation arising out of the Order or this Agreement, the parties expressly waive any right they may have to a jury trial and agree that any such litigation shall be tried by a judge without a jury and the prevailing party shall be entitled to recover its expenses, including reasonable attorneys fees, from the other party.
- SURVIVAL.In the event any provision of the Order or this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of the Order or this Agreement will remain in full force and effect. The obligations of the parties herein shall survive the termination of an Order or this Agreement, except as otherwise provided in this Agreement.