1. AGREEMENT
The following terms and conditions (the “Terms”) shall apply when Acme Corrugated Box Co., Inc. (“Buyer”) is purchasing goods and/or services (“Goods”) from a seller (“Seller”) pursuant to a purchase order (“Order”) issued by Buyer to the Seller. Upon acceptance of this Order as set forth in Section 2, Seller shall be bound by these Terms. All purchases made by Buyer will be made pursuant to these Terms, and all Orders will be governed exclusively by these Terms.
2. ACCEPTANCE
The Order constitutes Buyer’s acceptance of Seller’s offer to sell the Goods to Buyer in accordance with these Terms, which shall constitute a binding contract between the parties. These Terms, together with the Order, shall supersede all prior or contemporaneous understandings, agreements, negotiations, representations, warranties, communications, both written and oral, with respect to the Goods that are the subject matter of the Order. Any terms or conditions proposed by Seller in any document which are different from, conflict with or add to these Terms shall be deemed to materially alter the Order and are hereby objected to and rejected by Buyer. The Order and these Terms shall be deemed accepted by Seller upon the earliest to occur of: (i) written or oral acknowledgment by Seller of receipt of the Order with the intent, expressed or implied, that Seller will provide the Goods; (ii) written or oral acknowledgment by Seller that Seller has commenced performance or that Seller intends to ship or deliver the Goods; or (iii) receipt by Buyer of the Goods. The Order expressly limits Seller’s acceptance to these Terms. These Terms shall prevail over any of Seller’s general terms and conditions regardless of whether or when Seller has submitted its sales confirmation or such terms.
3. TAXES
The prices for the Goods sold under the Order include all foreign, federal, state and local taxes imposed upon or on account of such sale, unless otherwise indicated in the Order.
4. INVOICES
Individual invoices must be issued for each shipment under the Order. Invoices shall be payable within thirty (30) calendar days after receipt, inspection and acceptance of the Goods by Buyer unless a later payment date is provided for in the Order or in Seller’s invoice, in which case the later date shall control. Discount privileges will apply from the date of receipt, inspection and acceptance of the Goods or the date of receipt of the invoice, whichever date is later.
5. PRICING
The price of the Goods is the price stated in the Order (the “Price“). If no price is included in the Order, the Price shall be the price set out in Seller’s published price list in force as of the date of the Order. No increase in the Price is effective, whether due to increased material, labor, tariffs, or transportation costs or otherwise, without the prior written consent of Buyer.
6. CHANGES
No change shall be undertaken except upon written authorization of Buyer. Buyer may, at any time by written notice, make changes within the general scope of the Order in the drawings, specifications, designs, methods of shipment or packing, quantities of articles to be furnished, place of delivery or delivery schedule(s). If any such change causes any increase or decrease in the cost of, or the item(s) required for the performance of any part of, the work under this Order, an equitable adjustment shall be made in writing to the Price and/or delivery schedule. Any claim by Seller for adjustment under this clause must be asserted in writing within thirty (30) days from the date of receipt by Seller of the notification of change. Any claim by Buyer for adjustment under this clause may be asserted in writing at any time prior to final payment under this Order. Nothing herein shall excuse Seller from proceeding with the changed Order.
7. SHIPPING AND DELIVERY
Title passes to Buyer upon delivery of the Goods to the delivery address specified by Buyer (the “Delivery Point”). Seller bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Point. Seller shall be responsible for arranging the shipping of the Goods to Buyer according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are timely delivered in undamaged condition and in compliance with the Terms, industry standards, and applicable law. Unless otherwise specified in the Order, the Price includes all insurance, customs, duties, packaging, and transportation costs to the Delivery Point. TIME OF DELIVERY IS OF THE ESSENCE. IF A TENDER OF CONFORMING GOODS IS NOT MADE BY THE SCHEDULED DELIVERY DATE, SELLER SHALL HAVE NO RIGHT TO MAKE A LATER CONFORMING TENDER. Seller shall be liable for all resulting damages to Buyer and any customers of Buyer occasioned by delay in delivery. Delivery shall not be deemed to be complete until the Goods have been received and accepted by Buyer. Seller shall bear the risk of loss to the Goods until received and accepted by Buyer.
8. INSPECTION
Buyer shall have the right to inspect Goods on or after delivery of the Goods to the Delivery Point. Buyer may reject or revoke its acceptance of any Goods which do not strictly conform with Buyer’s specifications and Seller’s obligations under the Order and, in such event, Buyer shall be entitled to exercise all or any of its remedies. Buyer’s inspection, discovery of any breach of warranty, failure to inspect or failure to discover any breach of warranty shall not constitute a waiver of any of Buyer’s rights or remedies.
9. CERTIFICATIONS
Any required testing shall be by U.S. Government approved sources if this Order, or the related drawings and/or specification(s), specify certain affidavits, test reports or certifications attesting to the type, quality or processing as a requirement of the work to be performed. All such certifications must accompany parts when shipped. Payment of invoices will not be made without required certifications.
10. WARRANTIES
Seller expressly warrants that all Goods purchased and delivered: (a) shall strictly conform in all respects with Buyer’s descriptions, drawings, sample or specifications; (b) shall strictly conform in all respects to any samples, drawings, specifications or other written documents presented to Buyer in connection with the sale of such Goods to Buyer; (c) shall be merchantable, of new and best material and fit for the purpose for which such Goods are intended; and (d) shall be free from all defects in workmanship, material and design. In addition to the foregoing express warranties, the Goods purchased shall be subject to all warranties arising by operation of law. These warranties shall survive inspection, delivery, acceptance and payment, shall run to Buyer, its officers, agents, employees, successors, assigns, customers and users of the Goods and shall not be deemed to be exclusive.
11. CANCELLATION
Buyer may terminate the Order, in whole or in part, at any time with or without cause for undelivered Goods on five (5) days’ prior written notice to Seller. In addition, Buyer may, by written notice to Seller, cancel the Order, or any portion of it, upon the occurrence of any of the following events (“Events of Default”): (a) Seller fails fully to perform any of its obligations under the Order or these Terms as and when due; or (b) Buyer in its reasonable opinion believes that Seller’s ability to perform the Order is in danger or impaired. Buyer’s sole liability to Seller shall be payment for conforming Goods completed and delivered to Buyer in accordance with the Order. Buyer shall have the right to demand of Seller adequate assurance of due performance, and Buyer shall be the sole judge of the adequacy of the assurance given by Seller.
12. RIGHTS AND REMEDIES
If an Event of Default occurs, Buyer shall, in addition to the right of cancellation, be entitled to all remedies for a breach of contract set forth in the UCC and all other remedies available at law or in equity. Additionally, Buyer may, at its option: (a) refuse to accept delivery of the Goods; (b) refuse to accept a substantial tender of substitute, conforming Goods; (c) return nonconforming Goods to Seller at Seller’s expense for a full credit and, at Buyer’s option, obtain replacement Goods on an expedited basis; (d) return late delivered Goods to Seller at Seller’s expense for a full credit;(e) recover any advance payments from Seller for undelivered Goods; (f) rework the Goods to make the Goods conform to the warranties and charge Seller for all expenses related thereto; (g) use the Goods for a purpose other than the purpose originally intended and charge Seller for the amount by which the Price exceeds the price of Goods normally required for such alternative purposes; (h) have Seller repair or replace defective Goods at Seller’s expense and on an expedited basis; or (i) if defective Goods are repaired or replaced by Buyer or Seller, charge Seller for all costs and expenses of repairing or restoring non-defective work or Goods disturbed as a consequence of repairing or replacing defective Goods. Buyer shall be entitled to exercise any or all of the remedies specified above or each of such remedies in part. NONE OF THE REMEDIES AVAILABLE TO BUYER HEREUNDER MAY BE LIMITED.
13. INDEMNIFICATION
Seller assumes the entire responsibility and liability for and agrees to indemnify, defend and hold harmless Buyer, its officers, agents, employees, successors, assigns, customers and users of the Goods from and against any and all losses, expenses (including without limitation, attorneys’ and other professionals’ fees), costs, damages (including consequential and incidental damages), demands, liabilities, suits and claims in connection with or arising out of any actual or alleged personal injury (including death) or damage or destruction to property (including loss of use) by reason of (a) any act, error or omission, whether negligent or not, of Seller or its agents, employees, suppliers, subcontractors or consultants; or (b) any defect, whether latent or patent, in any product of Seller sold to Buyer; or (c) any failure of the Goods to comply with any warranty of Seller or applicable law; or (d) any breach of the Order or these Terms by Seller.
14. ENTIRE AGREEMENT
These Terms and the Order constitute the entire agreement between the parties and supersede any previous agreement or understanding between the parties relating to the Goods.
15. GOVERNING LAW
These Terms are made, entered into and performed in the Commonwealth of Pennsylvania and shall be in all respects governed by and construed in accordance with the laws of the United States and the Commonwealth of Pennsylvania, as if entirely performed in Pennsylvania and without regard to any conflict of law rules and without regard to any rules of construction or interpretation relating to which party prepared these Terms.
16. JURISDICTION
Seller consents to the exclusive jurisdiction and venue of the Montgomery County Court of Common Pleas of the Commonwealth of Pennsylvania and the United States District Court for the Eastern District of Pennsylvania with respect to the enforcement of these Terms, the collection of any related amounts due or any disputes arising under or with regard to the purchase of the Goods and waives any objections to such exclusive jurisdiction and venue, including objection as to an inconvenient forum.
17. NO ASSIGNMENT
The rights and obligations under this Order and these Terms may not be assigned by Seller without the prior written consent of Buyer. These Terms shall inure to the benefit of Buyer’s successors and assigns.
18. SEVERABILITY
Any provision of these Terms determined by a court to be unenforceable or invalid, shall be modified to the extent necessary to eliminate the invalidity or unenforceability, and any remaining unenforceability or invalidity shall have no effect on the other provisions hereof, which shall remain in full force and effect.
19. WAIVERS
Buyer’s failure to enforce strictly these Terms shall not be construed as a waiver or excuse Seller from future performance. No course of performance, conduct, or delay by Buyer shall modify these Terms or be deemed a waiver of any rights unless expressly agreed to in a written instrument signed by a duly authorized representative of Buyer.
20. FORCE MAJEURE
Buyer shall have the right to suspend shipments from Seller without penalty or liability to Buyer and shall not be liable to Seller for its failure to accept delivery of Goods in the event of war, terrorism, riot, flood, acts of God, fire, casualty, court order, strike, work stoppage, act of governmental authority, or other causes beyond Buyer’s control.
21. AMENDMENT
Buyer reserves the right to update or modify these Terms at any time by posting the revised version on its website. Any such modifications shall apply to Orders placed after the effective date of such update. Seller’s continued acceptance of Orders after such update constitutes agreement to the revised Terms. No amendment or modification proposed by Seller shall be binding on Buyer unless expressly agreed to in a signed writing by an authorized representative of Buyer.
22. ATTORNEYS’ FEES
In the event of a dispute between the parties regarding the interpretation or enforcement of the Terms or any Order that results in litigation, the prevailing party shall have its attorneys’ fees, professionals’ fees, and costs paid by the losing party, and such sum may be added to any judgment entered in the litigation. A party’s right to the foregoing shall not merge with but shall survive the entry of judgment and shall extend to appeals and collection.
23. CONFIDENTIAL INFORMATION
All non-public, confidential, or proprietary information of the Buyer, including, but not limited to, trade secrets, specifications, samples, patterns, designs, plans, drawings, documents, or data, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic, or other form or medium, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with the Order is confidential, may only be used for the purpose of performing the Order and may not be disclosed unless authorized by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Seller at the time of disclosure; or (c) rightfully obtained by the Seller on a non-confidential basis from a third party.
