1. DEFINITIONS. As used herein, “Buyer” or “Americraft” means Americraft Carton, Inc., a Missouri corporation, and “Seller” means the party identified as the seller, vendor or similar term for this Order. “Supplies” means all goods, articles, materials, products, work and/or services to be furnished by Seller pursuant to Americraft’s Purchase Order, which may be in electronic form (the “Order”).
2. ACCEPTANCE BY SELLER; BUYER FORM CONTROLS; CONFLICTING TERMS. This Order is an offer to purchase by Americraft and, when accepted by Seller, becomes the exclusive agreement between the parties relating to the Supplies. Any of the following shall constitute Seller’s unqualified acceptance of this Order: (i) written acknowledgement of this Order; (ii) furnishing by Seller of any Supplies pursuant to this Order; (iii) acceptance of any payment by Seller for Supplies, or (iv) commencement of performance by Seller pursuant to this Order. Notwithstanding the foregoing, this Order shall not operate as a rejection of any offer, quote or proposal by Seller with respect to the Supplies (but merely of any contrary or conflicting terms and conditions contained within such offer, quote or proposal) unless such offer, quote or proposal contains variances in the description, quantity, price or delivery schedule of the Supplies.
3. INSPECTION. All Supplies shall be received subject to Buyer’s right of inspection and rejection. Defective Supplies or Supplies not in strict conformance with this Order or Buyer’s or Seller’s description or specifications, will be held for receipt of instructions, at Seller’s risk, and if Seller so directs, will be returned, at Seller’s expense. If Buyer does not receive such written instruction within forty-five (45) days after Buyer’s request therefor, Buyer may, without liability to Seller, dispose of the Supplies in question, as it deems appropriate, in its sole discretion. Buyer may, by written notice to Seller and in addition to other rights and remedies provided by law, require replacement or correction of rejected Supplies. Payment for Supplies on this Order prior to inspection shall not constitute acceptance thereof or a waiver of a breach of warranty by Buyer and is without prejudice to any claim(s) of Buyer. Seller shall inspect all Supplies prior to shipment to ensure conformance with all requirements of this Order. Buyer may require in-process inspection or audit of the process or supplies at Seller’s place of manufacture; however, acceptance of Supplies remains at receipt inspection.
4. PACKING AND SHIPPING. All items shall be packaged, marked and otherwise prepared in accordance with industry standards and good commercial practices and Buyer’s instructions, if any. Each package or container must be numbered and labeled with Buyer’s purchase order number, stock number (if applicable), contents, and weight (if applicable). An itemized packing list shall be included in each shipment and the package containing the packing list must be clearly marked as such. Each packing list shall bear the Buyer’s purchase order number and an accurate description of the Supplies and quantities in the shipment. Supplies shipped in excess of Buyer’s Order may be returned at Seller’s expense. Buyer will not be responsible for any Supplies furnished without a written Order.
5. DELIVERY. Delivery of Supplies shall be F.O.B. Buyer’s location and shall not be complete until the Supplies have actually been received and accepted by Buyer. Notwithstanding any agreement to pay freight, the risk of loss or damage in transit shall be upon Seller.
6. TAXES. Buyer shall pay sales or use tax, if any is due, of the state to which Buyer directs the Supplies to be delivered. Seller shall pay any other federal, state, local or foreign taxes or other governmental charges or fees upon the production, transportation or sale of the Supplies. Unless otherwise stated, the prices do not include sales or use taxes applicable to the Supplies. All such taxes and charges shall be shown separately on Seller’s invoice.
7. SELLER WARRANTIES; BUYER REMEDIES. Seller warrants that all Supplies (i) shall be in conformity with industry standards and of good quality and workmanship and free from defects, latent or patent, in material or workmanship, (ii) shall conform in all respects to all applicable specifications, performance standards, drawings, samples or descriptions of Seller and Buyer, (iii) fit for Buyer’s particular purpose of which Seller is reasonably aware, and (iv) shall be free of any lien or claim of any third party. These warranties are in addition to all other express warranties, and any implied by law, and shall run to the benefit of Buyer and any Buyer customers, if applicable. No remedy available to Buyer for the breach of any warranties hereunder shall be deemed waived or limited except to the extent and in the manner expressly agreed upon by Buyer in an executed document which specifies such limitation. Buyer’s approval of any sample or acceptance of any Supplies shall not relieve Seller from responsibility to deliver goods and/or to perform services conforming, in all respects, to the sample. These warranties shall not be deemed waived either by reason of Buyer’s acceptance of Supplies or by payment for them and shall survive delivery. In the event of a breach of warranty, Buyer may return such Supplies, at Seller’s expense, for correction, replacement or credit as Buyer may direct. This warranty also shall apply to replacement Supplies. Seller shall effectuate all such corrections or replacements within 10 business days of receipt of returned Supplies.
8. PROTECTION OF BUYER CONFIDENTIAL INFORMATION. Seller agrees to keep secret and confidential (except as required by law or court order) any applicable confidential, proprietary or non-public information of Buyer and the existence, terms and conditions of this Order (the “Confidential Information”). In addition, Seller agrees to (i) disclose the Confidential Information only to its employees who need to know for purposes of fulfilling this Order and (ii) use the Confidential Information only for the purpose of fulfilling this Order. It is understood that no license, either expressed or implied, is hereby granted to Seller by Buyer with respect to any Confidential Information.
9. NOTIFICATION REQUIREMENT; TIME IS OF THE ESSENCE. If for any reason, at any time, Seller shall refuse or be unable, or should reasonably anticipate being unable to deliver any part or all of the Supplies in accordance with the terms of the Order, Seller shall notify Buyer of such refusal or inability at the earliest possible time and by the most practical means under the circumstances. Such notification shall not be deemed to operate as a release of Seller from its obligations under this Order. Buyer shall have the right to replace, modify and/or cancel any delayed open Orders, or any part thereof, without any liability to Seller. In the event of such a replacement or modification, Seller shall pay to Buyer (or at Buyer’s option, it may offset such amount from any amount owed to Seller) promptly upon demand thereof, an amount equal to the cost of such replacement or modification, less the amount which would have been payable to Seller for an equal quantity and quality of Supplies, plus any amount incurred by Buyer to effectuate such replacement or modification. Such amount is agreed to be damages for Seller’s non-performance and shall not, in any event, be construed to be a penalty.
10. INDEMNIFICATION AND INSURANCE. Seller shall defend, indemnify, and hold harmless Buyer, and its officers, employees, agents, representatives, customers or affiliates (“Buyer’s Affiliates”) from any claim, suit, loss, cost, damage, expense to any person of whatsoever nature of kind arising out of, as a result of, or in connection with (i) Seller’s performance of this Order, (ii) omissions or negligent or wrongful acts of Seller or its officers, employees, agents, representatives, affiliates or subcontractors, or (iii) defective Supplies. Without in any way limiting the foregoing, Seller and any person or entity performing work for, or on behalf of, Seller under or in connection with this Order shall maintain liability and property damage insurance covering Seller’s and/or such person’s obligations with respect to the Supplies or components thereof in conformity with industry standards and shall maintain, in accordance with applicable law, workers’ compensation insurance covering all employees performing work with respect to this Order. This provision shall survive expiration or termination of this Order.
11. SELLER INTELLECTUAL PROPERTY. Seller hereby grants Buyer a perpetual license relating to any software or other embodiment of intellectual property embedded in the Supplies, as necessary for Buyer’s purchase, use, maintenance and/or sale of the Supplies. Seller shall hold Buyer and Buyer’s Affiliates harmless from any claim, suit, loss, cost, damage or expense (including, without limitation, the costs and expense incurred in the defense of suits or actions alleging such liability) of whatsoever nature or kind arising out of, as a result of or in connection with a claim by third parties claiming infringement of rights in, to or under their patents, trademarks, copyrights or other intellectual property rights relating to manufacture, design, use, maintenance, support or sale of any Supplies or manufacture or sale of Buyer’s products containing any part of the Supplies. This provision shall survive termination or expiration of this Order.
12. TERMINATION. Buyer shall have the right, without liability to Seller, to cancel any unshipped portion of an Order (i) a portion of which is not in strict conformance with this Order or Buyer’s or Seller’s description or specifications, (ii) in the event Seller has breached this Order, any warranty or its obligations to Buyer, (iii) in the event that Buyer’s business is interrupted because of strikes, labor disturbances, riot, fire or Acts of God or any other cause beyond the control of Buyer, or (iv) if Seller makes an assignment for the benefit of creditors, a receiver or trustee is appointed with respect to Seller’s business, Seller is adjudicated insolvent or if Seller files or there is filed against Seller a petition for bankruptcy or other relief under the Bankruptcy Code or any successor statute or similar state law. Buyer also shall have the right to cancel any unshipped portion of an Order, in whole or in part, at any time, for a reason other than that set forth above, in which event Buyer shall be liable to Seller for the actual amount of Seller’s costs reasonably incurred in contemplation of performance of the canceled portion, less any amount saved by Seller as a result of such cancellation and less any amounts which could have reasonably been mitigated by Seller. Seller is cautioned not to ship, fabricate or build inventories of raw or finished stock at a rate faster than is required to meet delivery requirements of this Order.
13. COMPLIANCE WITH LAW. Seller warrants and represents that the Supplies, including all packaging thereof, shipped pursuant to this Order shall have been produced in compliance with and meet the minimum standards of all applicable federal, state and local laws, regulations, rules, guides, ordinances and/or standards in effect as of the date on which such Supplies are accepted by Buyer and that the sale by Seller or purchase and/or use or resale by Buyer of such Supplies for use in the ordinary course of Buyer’s present business of which Seller is reasonably aware does not violate any such laws, regulations, rules, guides, ordinances and/or standards. Upon request by Buyer, Seller shall furnish Buyer with a certificate of compliance by Seller with any such laws, regulations, rules, guides, ordinances and/or standards, including any applicable Country of Origin or Free Trade Agreement (FTA) or North American Free Trade Agreement (NAFTA) certificates. Seller shall appropriately label containers of all Supplies which are known to constitute a health, poison, fire, environmental, safety or explosion hazard and shall provide Buyer any and all material required for Buyer to comply with all laws, regulations, rules, guides, ordinances and/or standards, including, without limitation, Material Safety Data Sheets (MSDS).
14. EQUAL OPPORTUNITY. The Equal Opportunity clause in Section 202 of Executive Order (E.O.) 11246, as amended, Section 503 of the Rehabilitation Act of 1973 (Handicap) and the Vietnam Era Veterans Readjustment Assistance Act of 1974 (38 U.S.C. 2012), and the implementing rules and regulations in Title 41, GFR, Part 60 are incorporated herein by reference unless this Order is exempted by rules, regulations, or orders of the U.S. Secretary of Labor issued pursuant to Section 204 of E.O. 11246 or provisions of any superseding E.O. As used in said clause, “Contractor” means Seller. Seller agrees to provide Buyer with an executed Equal Employment Opportunity certificate indicating Seller’s compliance or exempt status, annually upon written request of Buyer. In the event Seller has a current certificate on file with Buyer, it is incorporated herein by reference, and shall apply until a proper replacement certificate is delivered to Buyer.
15. ASSIGNMENT BY SELLER. Seller agrees that Seller will neither assign its rights nor delegate its duties for this Order without the prior written consent of Buyer. Any attempted assignment which violates this Section shall be VOID.
16. INTERPRETATION OF ORDER. Irrespective of the place of performance of this Order, this Order shall be interpreted in accordance with the laws of the State of Missouri without reference to its conflict of law provisions. When accepted by Seller, this Order shall constitute a valid and binding contract. The terms and conditions contained in this Order (including any documents referenced) constitute the entire agreement of the parties relating to this Order. Should any part, term or provision of this Order be declared illegal or in conflict with any applicable law, rule or regulation, the validity of the remaining portion, terms and conditions shall not be affected thereby. The captions at the beginning of Sections of this Order are used for convenience of reference only and are not to be used in attempting to construct any part of this Order, nor shall any relevance be given to which party was the draftsperson, or primary draftsperson, for any part of this Order.
17. AMENDMENT, MODIFICATION, WAIVER AND REMEDIES. Performance by Seller of this Order must be strictly in accordance with its stated terms and conditions and no change, modification, revision, alteration or waiver shall be binding unless executed by Buyer in writing. No waiver by Buyer of and/or failure by Seller to perform any or all of the terms or conditions hereof shall constitute a waiver of or an excuse for non-performance as to any other part of this or any other Order. No rights or remedy herein provided shall be deemed exclusive of any other rights or remedies allowed by law or in equity. Under no circumstances shall Buyer be obligated for any consequential incidental or special damages, loss of revenue or profit, or any amount in excess of the total dollars owed for this Order. Seller shall bear all expenses, including reasonable attorneys’ fees, Buyer incurs to enforce its rights and remedies under this Order because of a Seller default.
18. ELECTRONIC TRANSACTIONS. The parties agree that the transactions for the Order may be conducted and the Order and related documents may be stored by electronic means. Copies, telecopies, facsimiles, electronic files and other reproductions of original executed documents shall be deemed to be authentic and valid counterparts of such original documents for all purposes, including the filing of any claim, action or suit in the appropriate court of law.
19. OTHER GENERAL TERMS. Seller agrees to perform any further acts and deliver any additional documents that may be reasonably requested by Buyer in connection with this Order so long as Buyer pays any reasonable additional Seller costs and expenses therefor. In addition to those provisions expressly stated to survive expiration or termination of this Order, any provisions which by their nature contemplate obligations by a party after such expiration or termination (and the corresponding enforcement rights by the other party) shall also survive. All claims for money due from Buyer to Seller shall be subject to deduction or setoff by Buyer by reason of any reasonable claim or counterclaim by Buyer against Seller arising out of this Order or any other transaction between Buyer and Seller.