1. Entire Agreement
The “Order” consists of the terms listed on the front of the Purchase Order, these Purchase Order Terms and Conditions (the “Terms”) and all documents incorporated by reference. This Order is an offer by Printpack, Inc. or the Printpack affiliate listed on the first page (“Buyer”) to purchase the goods (the “Goods”) and the services (the “Services”) specified in this Order from the party to whom the Order is addressed (“Seller”), subject to the terms of the Order, including these Terms. Seller accepts this Order when Seller acknowledges it, begins working on the Goods or performing the Services, or ships the Goods, whichever occurs first. This Order expressly limits Seller’s acceptance to the terms of the Order, including these Terms. If this Order is deemed an acceptance of a prior offer by Seller, such acceptance is limited to the terms of the Order, including these Terms. Any additional or different terms and conditions are material alterations, and Buyer objects to and rejects them. These Terms expressly exclude Seller’s sales terms and conditions and will prevail over any additional or different terms and conditions in Seller’s quote, proposal, acknowledgment, invoice or any other document, even if such document or terms and conditions are referenced in or attached to this Order. This Order is the sole and entire agreement of the parties with respect to the subject matter of the Order and supersedes all prior and contemporaneous agreements, negotiations, representations and communications, written and oral, about such subject matter; provided that, if this Order is issued pursuant to, and as part of, a written agreement signed by Buyer and Seller, then that agreement will prevail over this Order. Buyer is not subject to any minimum, future or exclusive purchase obligations.
Buyer is not bound by any substitution or other change to this Order unless it is confirmed in a writing signed by Buyer specifically referencing this Order. Seller may deliver a greater or lesser quantity of Goods than ordered only if allowed by standard industry practices. Otherwise, Buyer is not obligated to accept a different quantity of Goods than ordered, and if Buyer accepts a lesser quantity, Seller must deliver the balance ordered pursuant to the Order. Buyer at any time may change drawings, designs, specifications, materials, packaging, time and place of delivery and transportation method. If such changes increase or decrease the costs or time required for performance, an equitable adjustment will be made and this Order will be modified in writing accordingly. Seller will accept any such changes subject to this Section.
Seller will not assign or subcontract this Order or any part of it, including payment rights, without Buyer’s prior written consent.
All invoices will include Buyer’s Order number and meet Buyer’s other requirements. Buyer will pay undisputed invoices net 30 days, unless different payment terms are stated on the front of the Order or otherwise agreed to in writing by both parties. Labor, design and materials costs will be itemized separately on Services invoices. A separate invoice is required for each Goods delivery unless Buyer agrees in writing to accept monthly summary invoices. Goods not covered by invoice will be held at Seller’s risk and expense. Buyer may select the payment method, including check, ACH or credit card. Buyer may deduct any damages or other amounts owed by Seller or its affiliates from any amounts payable by Buyer or its affiliates. Cash discounts and payment due dates will be calculated from the later of Buyer’s receipt of the invoice, Buyer’s receipt of the Goods, or Seller’s completion of the Services.
The price for the Goods and the Services is the price stated in the Order. If no price is included, the price is the lower of the last price charged or quoted to Buyer. All prices are in US Dollars, unless otherwise stated on the front of the Order. Any price reduction made before the Goods are delivered or the Services are completed will apply to this Order. Any price increase requires Buyer’s prior written consent. Unless the Order specifically states otherwise, the price includes all packaging, shipping, insurance, customs duties, hazardous waste, disposal, restocking and other costs, fees and taxes. Seller warrants that the price for the Goods is the lowest price charged by Seller to any of its customers for similar volumes of similar Goods, taking into account all allowances, discounts, rebates, bonuses and free products and services made available to other customers. If Seller charges another such customer a lower price, Seller will apply that price to all Goods under this Order.
Buyer will pay any applicable sales tax or VAT that is itemized on the invoice or provide an exemption certificate. US Treasury regulations may require Buyer to withhold taxes from payments made to Seller unless Seller provides an IRS Form W-8BEN or similar forms. Seller must provide the forms requested by Buyer before Buyer remits any payment under this Order. If Buyer withholds any required taxes, then the withheld amounts will be remitted to the US Treasury on Seller’s behalf and will constitute payment made to Seller under this Order.
Buyer at any time may terminate this Order for its own convenience in whole or in part by written notice, and Seller’s exclusive remedy will be limited to recovery of Seller’s reasonable direct costs and commitments properly incurred or made with respect to the Goods before notice of termination, minus salvage value, and payment for Services performed in compliance with the Order before notice of termination. Buyer may make a reasonable deduction for payments previously made under this Order. If Buyer terminates for convenience before Seller begins manufacturing the Goods or performing the Services, then termination will be at no cost to Buyer and Buyer will receive a full refund of all payments made to Seller. Buyer at any time may terminate this Order for cause in whole or in part by written notice if Seller breaches any term of this Order, or Buyer determines that Seller is or is about to become insolvent or bankrupt, or Seller fails to provide adequate assurance of performance when requested, or as provided in Sections 10(c), 15, 25 and 26. If Buyer terminates for cause, then Buyer: (a) will have no further liability to Seller; (b) will receive a full refund of all payments made to Seller (except payments for Goods and Services for which Buyer has not revoked its acceptance); and (c) may recover direct, incidental, consequential and other damages from Seller.
All Goods and Services are subject to Buyer’s inspection and rejection. Payment before inspection will not constitute acceptance. Buyer may reject or revoke acceptance of any Goods or Services that do not conform to the warranties or other requirements of this Order. Buyer may revoke its acceptance for latent defects discovered within 90 days after acceptance. If Buyer rejects or revokes acceptance of any Goods or Services, Section 10(c) will apply.
9. Legal Compliance
The Goods, the Services and Seller’s performance will conform to all applicable governmental laws, statutes, rules, regulations, executive orders, priorities, ordinances and restrictions (“Laws”), and all applicable industry and professional standards and codes, in effect at the time that the Goods are delivered and the Services are performed, including the Occupational Safety and Health Act, the OSHA Process Safety Management Standard (29 C.F.R. §1910.119) and Hazard Communication Standard (29 C.F.R. §1910.1200), the Toxic Substances Control Act, the US Bioterrorism Preparedness and Response Act of 2002, the US National Electric Code, the National Fire Protection Association Standards, and California’s Proposition 65 Laws. Where applicable, this contractor and subcontractor shall abide by the requirements of 41 CFR 60-1.4(a), 60-300.5(a) and 60-741.5(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, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability or veteran status. For purposes of this Order, “contractor” refers to Buyer and “subcontractor” refers to Seller.
10. Warranties: (a) Warranties
Seller warrants that: (i) the Goods will perform and conform in all respects to the specifications, descriptions, drawings, designs, performance guarantees and other requirements described in this Order or otherwise communicated by Buyer (“Specifications”); (ii) the Goods will be free from all defects in design, workmanship and materials; (iii) the Goods and all components will be new, merchantable and fit for Buyer’s particular purpose and intended use; (iv) the Goods when used as intended will be safe; (v) Seller will have and convey to Buyer good title to the Goods, free from all liens, encumbrances and claims of third parties; (vi) the Goods will conform to any samples approved by Buyer; (vii) the Goods and Services will not infringe any intellectual property or other rights of third parties; (viii) all Services will be performed in a professional, competent and workmanlike manner and will conform in all respects to the Specifications; and (ix) while performing Services, Seller will not introduce chemical, physical or microbiological hazards to Buyer’s Materials (defined in Section 13) or Buyer’s raw materials, work in process and finished products. Seller’s warranties for the Goods also will apply to the Deliverables (defined in Section 19) and other end products of the Services and all equipment, parts and materials installed at Buyer’s premises in connection with the Services.
(b) Additional Warranties
For Goods that will be used as direct inputs into Buyer’s products and Goods that Buyer purchases for resale, Seller further warrants that: (i) the Goods and Seller will comply with Buyer’s Corporate Supplier Specifications; (ii) the Goods comprising each shipment or other delivery hereafter made by Seller to or on the order of Buyer are, as of the date of such shipment, not adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act as amended (the “Act”) or any similar Law, and are not articles which may not, under the provisions of said Act, be introduced into interstate commerce; and (iii) the Goods comply with the Act and all applicable food additive regulations (including use of good manufacturing practice) promulgated under the Act. Within 10 days of Buyer’s request, Seller will deliver a signed continuing guaranty acceptable to Buyer.
In addition to its other remedies, Buyer, at its option, may exercise any one or more of the following remedies if Buyer rejects or revokes acceptance of nonconforming Goods or Services, or if Seller breaches any warranty or other term of this Order: (i) terminate the Order for cause pursuant to Section 7; (ii) receive a full refund or invoice credit equal to the price paid for the nonconforming Goods or Services; (iii) accept the nonconforming Goods or Services at a reasonably reduced price; (iv) require Seller to repair or replace nonconforming Goods, and re-perform or otherwise correct nonconforming Services, at Seller’s expense; or (v) buy substitute Goods from another source at Seller’s expense. Seller will pay all costs for warranty work, including freight, parts, materials, labor and travel. Seller also will reimburse Buyer for direct, incidental, consequential and other damages and costs incurred by Buyer with respect to nonconforming Goods or Services or Seller’s breach of any term of this Order, including freight, downtime, waste, lost sales and profits. Nonconforming Goods will be returned at Seller’s expense and will not be replaced without Buyer’s written approval. Seller will perform warranty work at Buyer’s premises, and all replacement Goods, parts and materials will be new, unless Buyer agrees otherwise in writing. If Seller fails to promptly take any corrective action described herein, then Buyer may do so and charge Seller for all costs and damages incurred by Buyer.
Seller’s warranties will survive delivery, inspection, acceptance, payment or use of the Goods or Services. Seller’s warranties for the Goods will survive for 18 months after Buyer accepts the Goods or any longer warranty period stated in this Order. Repaired or replacement Goods and parts will be warranted for the remainder of the original warranty period. Seller’s warranties for the Services will survive for 12 months after Buyer accepts the Services or any longer warranty period stated in this Order. Seller’s warranties are cumulative and in addition to all warranties provided by law or equity and run to Buyer, its affiliates and its and their successors and assigns.
11. Indemnification and Infringement: (a) Definitions
“Claims” means any demands, claims, suits, actions or other proceedings. “Losses” means damages (including direct, indirect, incidental, consequential, punitive and other damages), liabilities, losses, judgments, settlements, interest, awards, penalties, fines, costs and expenses, including reasonable attorneys’ and experts’ fees and expenses. “Indemnified Parties” means Buyer, its successors and assigns, and their affiliates, agents, employees, officers, directors and owners. “Seller Personnel” means Seller’s employees, agents, independent contractors, subcontractors and other personnel.
Seller will defend, indemnify and hold harmless the Indemnified Parties from and against all Claims, and all Losses incurred by or awarded against an Indemnified Party in connection with any such Claim, arising out of or resulting from: (i) any breach by Seller or Seller Personnel of any warranty, covenant or other provision of this Order; (ii) the negligence, gross negligence or wilful misconduct of Seller or Seller Personnel; or (iii) the personal injury or death of any person or damage to any property caused by the Goods, the Services or any action or inaction of Seller or Seller Personnel.
Seller will defend, indemnify and hold harmless the Indemnified Parties from and against all Claims, and all Losses incurred by or awarded against an Indemnified Party in connection with any such Claim, related to any recall, repair, replacement or refund of the price of any Goods or any product incorporating the Goods (a “Recall”), provided that such Recall is based upon a defect, whether of warning, design or manufacture, in such Goods, or the failure of such Goods to conform to any standard to which such Goods are required by law to conform, or the failure of such Goods to conform to any warranty, Specification or standard set forth herein. If the Goods are not the sole cause of the Recall, then Buyer will apportion its Losses in a reasonable manner as determined by Buyer.
Seller will defend, indemnify and hold harmless the Indemnified Parties and their customers from and against all Claims for actual or alleged infringement or misappropriation of any United States or foreign patent, copyright, trade secret, trademark or other intellectual property right based upon the purchase, possession, use or sale of the Goods, or products incorporating the Goods, or any part thereof, and all Losses incurred by or awarded against the Indemnified Parties and their customers in connection with any such Claim. If an injunction against Buyer’s use, sale or distribution of the Goods, or products incorporating the Goods, or any part thereof, results or is likely to result from such a Claim, Seller, at its expense and in addition to its other obligations hereunder, will obtain for Buyer the right to continue using, selling or distributing the Goods or provide non-infringing but functionally equivalent Goods. This indemnity will not apply if the infringement is solely a direct result of Seller’s compliance with unique Specifications provided by Buyer or Buyer’s combination of the Goods with goods or materials not supplied or recommended by Seller. This defense and indemnification obligation will extend to Claims resulting from use of Seller’s proprietary designs or other information furnished by Seller and incorporated in any Services or Deliverables.
To the fullest extent permitted by law, Seller’s defense and indemnification obligations will apply to any and all Claims and Losses, including Claims and Losses that are caused or alleged to be caused by the negligence or fault of an Indemnified Party, but will exclude Claims and Losses that are caused by the sole negligence or fault of an Indemnified Party. Seller expressly waives any bar or defense from suit with respect to injuries to Seller’s employees which may extend to Seller as a result of any payments made by Seller to its employees or under any applicable workers’ compensation statute or similar Laws or judicial decisions. All of Seller’s defense and indemnification obligations will survive completion or termination of this Order and delivery, inspection, acceptance, payment or use of the Goods or Services, and are in addition to Seller’s warranty obligations and Buyer’s other remedies.
Seller will perform the Services strictly as an independent contractor and not as Buyer’s employee, agent or partner. Seller will control the time (consistent with Buyer’s operations), method and manner of performing the Services. Seller will have sole liability for all federal, state and local social security, unemployment, workers compensation, payroll and other taxes and contributions payable with respect to the employment of Seller Personnel. Seller will defend and indemnify Buyer against any Claims and Losses that may result from Seller’s failure to pay such taxes and contributions. All Services will be performed in a manner that guarantees the safety of persons and property. Seller will obtain all permits, licenses, inspections, certificates and other government approvals required for the Services. Before paying for Services, Buyer may demand mechanics’ lien affidavits or waivers. Seller will verify that Seller Personnel who enter Buyer’s premises are legally eligible to work in the USA; will complete, execute and maintain a federal Form I-9 for all such Seller Personnel before they enter Buyer’s premises; and will not knowingly or intentionally direct or allow any Seller Personnel to enter Buyer’s premises who are not legally eligible to work in the USA. When required by federal, state or local Laws, Seller also will use the US Department of Homeland Security’s E-Verify system to verify the employment eligibility of Seller Personnel. Buyer may audit the federal Forms I-9 of Seller Personnel. Seller is liable for any failure by Seller Personnel to comply with this Order.
13. Buyer’s Property
Seller will promptly repair and remediate at its expense any damage to property or the environment that is caused by nonconforming Goods; nonconforming Services; activities of Seller or Seller Personnel while on Buyer’s premises; or improper handling, transport or disposal of wastes or rubbish that Seller or Seller Personnel remove from Buyer’s premises. Buyer retains sole ownership of all film, materials, equipment and other items furnished to Seller on a no charge basis (“Buyer’s Materials”), including Buyer’s Materials that have been further processed for Buyer’s account or incorporated into Goods for sale to Buyer. Seller will not take any action that adversely impacts Buyer’s ownership of or title to Buyer’s Materials. Seller will properly use, insure and satisfactorily account for, and will be responsible for any loss, contamination or damage to, Buyer’s Materials. Buyer may enter Seller’s premises to inspect or remove Buyer’s Materials. BUYER’S MATERIALS ARE PROVIDED “AS IS.” BUYER DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES WITH RESPECT TO BUYER’S MATERIALS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Seller will pay and reimburse Buyer for all costs and damages resulting from its failure to comply with the following requirements. (a) Freight. If no delivery or freight term is stated on the front of this Order, Seller will deliver the Goods DDP (Incoterms 2010) to Buyer’s specified delivery location. If the stated delivery term is FOB Destination or FOB Delivered, it is equivalent to DDP. Deliveries will be made during Buyer’s normal business hours unless Buyer instructs otherwise in writing. Goods will be packed, marked, loaded and shipped to ensure no damage during transit and as required by Buyer and the transporting carrier. Goods will be shipped so that the lowest transportation rates apply. Seller will use Buyer’s approved carrier or freight forwarder if Buyer pays freight costs. If all or any portion of a shipment is by water, Seller will not ship under an On Deck bill of lading. (b) Title and Risk of Loss. Risk of loss and damage to the Goods will pass to Buyer according to the applicable delivery term, and title to the Goods will pass to Buyer concurrently with risk of loss. (c) Imports. Notwithstanding the applicable delivery term, Seller will obtain all required export licenses, be responsible for export customs clearance, and be listed as the exporter of record on all customs documents. For all shipments where the delivery term is DDP or equivalent, Seller will designate the customs broker and will obtain all required import licenses, be responsible for import customs clearance, and be listed as the importer of record on all customs documents. For all other shipments, Buyer will designate the customs broker and will obtain all required import licenses, be responsible for import customs clearance, and be listed as the importer of record on all customs documents. Seller will provide on a timely basis advance shipping notification and a commercial invoice, air waybill/bill of lading, certificate of origin and other documents requested by Buyer. (d) Blanket/Annual Orders. If this Order is a blanket/annual order, then Seller will not procure raw materials or produce or ship any Goods, except as authorized in Buyer’s written instructions or as necessary to meet specific delivery dates stated in this Order. Buyer is not responsible for unauthorized shipments and may return them at Seller’s expense. Buyer at any time without liability may change shipping schedules or require temporary suspension of scheduled shipments.
15. Delays and Force Majeure
(a) Delays. Time is of the essence and Seller will deliver the Goods and perform the Services strictly in compliance with the deadlines specified in this Order. Seller will promptly advise Buyer of any delay or anticipated delay in delivery or performance. Seller acknowledges that any Seller-caused delay that impacts Buyer’s business could result in direct, incidental, consequential and other damages, including damages for lost sales and profits. To compensate Buyer for losses incurred as a result of a Seller-caused delay in delivering the Goods or completing the Services, Seller will pay to Buyer as liquidated damages, and not as a penalty, a sum equal to 1% of the total price for this Order for each week of delay. If Seller for any reason, including a Force Majeure Event, cannot meet the deadlines specified in this Order, then Buyer may terminate this Order or cancel any shipments or Services without further liability to Seller. (b) Force Majeure. A party is not in default under this Order to the extent and for the period of time that performance is prevented, interrupted or delayed by an event that is beyond such party’s reasonable control, without such party’s fault or negligence, and which by its nature was unforeseeable or unavoidable (a “Force Majeure Event”). Force Majeure Events include acts of God or the public enemy, government restrictions, flood, fire, earthquake, explosion, epidemic, war, invasion, terrorist acts, riots, strikes and embargoes. Seller’s economic hardship or changes in Seller’s market conditions are not Force Majeure Events. Seller will use its best efforts to mitigate the effects of any Force Majeure Event and resume performance under the Order. Seller will supply as much of Buyer’s total requirements of Goods as possible but in no event less than a pro rata share of Seller’s remaining capacity allocated among similarly situated customers based on the Goods they purchased from Seller during the prior six months.
“Software” means all software listed on the front of this Order; all software that is embedded in the Goods or used to operate or control the Goods; all software that Seller provides for Buyer to use in connection with the Services; all updates and revisions to the Software supplied by the licensor; all Software documentation; and all permitted copies of the foregoing. The price includes a fully paid up, irrevocable, non-exclusive, transferable and perpetual right and license for Buyer and its affiliates and contractors to use, read, modify and make backup copies of the Software for all purposes relating to the use of the Software, the Services and the Goods. Seller will deliver the Software in source code form if specifically required by this Order. References to the Goods include the Software. These Terms will prevail over any additional or different terms and conditions in any end user, shrink-wrap or click-thru license agreement or similar document, even if Buyer must accept such terms and conditions to install or use the Software.
17. Governing Law
This Order will be governed by the Laws of the State of Georgia, USA, without regard to any conflicts of laws principles. Notwithstanding any other term of this Order, no party will be required to take or refrain from taking any action inconsistent with or penalized under the Laws of the USA or any applicable foreign jurisdiction, including the antiboycott Laws administered by the US Commerce and Treasury Departments. Seller is in compliance with the International Emergency Economic Powers Act (50 U.S.C. § 1701) and all other Laws administered by the Office of Foreign Assets Control of the US Treasury Department or any other federal, state, local or foreign government imposing economic sanctions and trade embargoes (“Economic Sanctions Laws”) against countries and persons designated in such Laws (collectively, “Embargoed Targets”). Buyer is not an Embargoed Target or otherwise subject to any Economic Sanctions Law. The parties consent to the jurisdiction of and venue in the state and federal courts sitting in Atlanta, Fulton County, Georgia for all litigation relating to this Order. The prevailing party will be entitled to recover reasonable attorneys’ fees, expenses and other costs incurred in conducting the litigation. Each party to the fullest extent permitted by law irrevocably and unconditionally waives any right to a jury trial in any litigation related to this Order. Usage of trade and course of dealing are not binding on Buyer unless Buyer specifically agrees otherwise in writing. THE PARTIES EXPRESSLY AGREE THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (1980) AND ANY SUCCESSOR THERETO WILL NOT APPLY TO THIS ORDER.
Any dispute related to this Order will be subjected to mandatory non-binding mediation in Atlanta, Georgia under the then current CPR Mediation Procedure. The parties will select a mediator from the CPR Panels of Distinguished Neutrals. All negotiations and communications related to the mediation will be in English, confidential and deemed compromise and settlement negotiations for evidentiary purposes. Each party will pay its own attorneys’ fees and other expenses. The mediator’s fees and expenses will be shared equally. Either party may resort to litigation if the dispute is not resolved within 45 days after mediation proceedings begin. Neither party is prohibited from initiating litigation to seek injunctive relief or toll the statute of limitations.
Seller agrees that all data, models, reports, programs, plans, drawings, deliverables and original works of authorship prepared by Seller under this Order (“Deliverables”) will be deemed to have been prepared for Buyer and will be considered a “work made for hire” and all rights and the copyright thereto will be owned by Buyer. Seller assigns to Buyer all right, title and interest in and to said Deliverables and any copyright thereto in the USA and worldwide, including all rights to registration, publication, rights to create derivative works, and all other rights incident to copyright ownership. If a court holds that any Deliverables are not works made for hire, Seller will transfer and assign such Deliverables to Buyer at Buyer’s request in consideration for the compensation paid to Seller for this Order. Seller will disclose promptly and in writing to Buyer all inventions, discoveries, improvements or designs (“Inventions”) conceived, made or reduced to practice by Seller based upon: (a) information to which Seller has access as a result of visits to Buyer facilities or discussions with Buyer personnel; or (b) any drawings or Specifications for the Goods furnished by Buyer. Seller agrees that such Inventions will be Buyer’s exclusive property, whether or not patent applications are filed thereon. Seller assigns to Buyer all right, title and interest in and to such Inventions and will cooperate with Buyer to execute all documents and perform such acts as may be necessary or convenient to secure or enforce for Buyer worldwide statutory protection, including patent, trademark, trade secret or copyright protection, for all Inventions assigned to Buyer pursuant to this Section.
While performing this Order and for 5 years thereafter, Seller will not disclose to or use for the benefit of anyone except Buyer any information about the products, product composition, performance standards, technical information, business, properties, operations, plans, activities, strategies, prices or opportunities of Buyer, its affiliates or their respective suppliers or customers, which Seller learns or becomes informed of in the course of performing this Order and which is not generally known to the public. These obligations will apply to trade secrets so long as they remain trade secrets. Seller acquires no intellectual property rights in or licenses to use Buyer’s, its affiliates’ or their respective suppliers’ or customers’ confidential or proprietary information or intellectual property. Sections 19 and 20 will supplement and not supersede the terms of any separate agreement signed by Buyer and Seller relating to confidentiality or ownership of inventions.
Seller will not disclose that Buyer has contracted with Seller or use Buyer’s or its affiliates’ company names or trademarks in Seller’s advertising, websites or sales materials without Buyer’s prior written consent.
22. Statue of Limitations
Seller must commence any action resulting from Buyer’s breach of this Order within 1 year after the cause of action has accrued. If Buyer wrongfully rejects or revokes acceptance of the Goods, Seller’s exclusive remedy against Buyer is limited to recovery of the invoice price of such Goods, or resale, in a commercially reasonable manner, of such Goods and recovery of any difference between the invoice price and the resale price, less any expenses saved. In no event will Buyer be liable for any consequential, indirect, incidental, punitive or special damages, including any profits, anticipatory or otherwise, lost by Seller or its suppliers.
Each term of this Order is severable. Whole or partial invalidity of one term will not affect the validity of this Order or any other term. Remedies are cumulative and do not exclude any other remedies available to Buyer under this Order, at law or in equity. Failure to require strict performance does not waive a party’s right to later require strict performance. Terms of this Order which are continuing in nature will survive completion or termination of this Order and delivery, inspection, acceptance, payment and use of the Goods and Services, including Sections 7 through 23. “Including” and similar words mean “including, but not limited to.”
While performing this Order, Seller will have and maintain workers compensation, employers liability, commercial general liability and other insurance coverage with minimum insurance limits as required by Buyer, with Buyer named as an additional insured on all policies except workers compensation. Seller also will have and maintain suitable inland marine, cargo and commercial property insurance coverage, including fire, sprinkler leakage and extended coverage insurance, equal to the replacement value of all materials, work-in-process and furnished items which comprise or will comprise the Goods or be installed as part of the Services, with Buyer named as loss payee to the extent of all payments made to Seller. Seller and its insurers will waive all rights of subrogation against Buyer. Seller’s insurance will be primary and non-contributory to Buyer’s insurance. Seller will pay all policy premiums, deductibles and self-insured retentions. Seller’s agents and subcontractors who enter Buyer’s premises will have the same coverage required of Seller. Having or not having the required insurance will not in any way limit Seller’s liability to Buyer. Upon request, Seller will provide certificates of insurance acceptable to Buyer.
25. Printpack Supplier’s Code of Conduct
Seller, after due inquiry, represents and warrants that Seller does not engage in or support human trafficking or use or support slavery or slave labor in its supply chain. Seller will comply with Printpack’s Supplier Code of Conduct, as published in the “Vendor Relations” section of “Who We Are” on the Printpack website at www.printpack.com. Seller will not violate the Code directly or indirectly through the use of subcontractors or other intermediaries. Buyer, directly or through third party auditors, may verify Seller’s compliance with the Code, and, upon request, Seller will certify its compliance in writing. Seller’s failure to comply with the Code or a certification request may result in immediate termination of this Order and Seller’s relationship with Buyer.
26. Printpack’s Policy Against Corruption
Seller and Buyer each agrees that: (a) it will not (i) offer, promise, pay, provide or give, directly or indirectly, any money, bribe, or financial or other advantage to any officer, director, or employee of the other party, or anyone acting on its or their behalf, for an illegal purpose (a “Bribe”); or (ii) offer, promise, pay, provide or give, directly or indirectly, any money, bribe, or financial or other advantage, or anything of value in connection with its dealings with the other party (collectively, a “Consideration”) to a Public Official; and (b) it will not respond to, and will immediately report to the other party, as outlined below, any request for or offer of a Bribe that such party receives from an officer, director or employee of the other party or anyone acting on its or their behalf, or any request for or offer of a Consideration by or from a Public Official. A “Public Official” includes any person who holds a legislative, administrative, regulatory, governmental or judicial position of any kind, whether employed, appointed or elected, or who exercises a public function, or is an official or agent of a government-owned enterprise, public organization or political party, or any other person acting in an official capacity for or on behalf of a government entity, public organization, political party or state-owned enterprise. Reports will be made to the Director of Corporate Ethics & Compliance or General Counsel for Seller and Buyer, as the case may be. Either party may terminate this Order immediately upon written notice if it reasonably concludes that the other party has breached this Section.