| |
|
SOLO CUP COMPANY
Standard Terms and Conditions of Purchase
| 1. |
All goods and services purchased hereunder are warranted by Vendor, as of the time of delivery and continuously thereafter during the normal useful life thereof, insofar as applicable to goods, services or both, as follows: |
| |
a. |
Goods shall conform to the description in this order or to the sample (if a purchase from sample); to have been professionally designed, engineered and constructed in a good and workmanlike manner and made of suitable high-quality material; to be capable of producing at the cycle time or speed of operation specified in this order or, to the extent not specified in this order, then as set forth in any manual, literature or other written sales promotion or other material provided by Vendor; and to produce on a sustained basis with normal maintenance and repair and free of abnormal breakdowns or interruptions of service;
|
| |
b. |
Goods shall be merchantable or to produce products of merchantable quality; |
| |
c. |
Goods shall be fit for the particular purpose of Solo as described in this order or otherwise previously specified in writing to the Vendor; |
| |
d. |
Vendor of services to be provided hereunder shall be legally authorized to perform the services, will have obtained all necessary permits and such services shall be of the best quality and free of any and all defects in material and workmanship; |
| |
e. |
As of time of delivery, title to all goods and the work created by any services purchased hereunder shall be good and the transfer thereof to Solo shall be free from any security interest or other lien or encumbrance, except as specifically agreed to in writing by Solo. Vendor expressly waives any lien rights that might attach to property of Solo as a result of any products delivered and installed upon, or services provided to, any property of Solo, subject to these terms and conditions; in the event any such lien is asserted, Vendor shall defend, hold harmless, and indemnify Solo against any such lien asserted; |
| |
f. |
That Vendor has complied with all federal, state and local laws applicable to the manufacture, sale and delivery of each of the items purchased hereunder, insofar as within the control of Vendor. With respect to items manufactured outside of the United States or where the manufacturer knows the items are to be used outside of the United States, that Seller has complied with all laws local to the place of manufacture, sale, delivery and use of each such item, insofar as within the control of Seller. |
| 2. |
All purchases hereunder shall be subject to: the terms hereof; the Illinois Uniform Commercial Code; and to any other rights conferred by law upon Solo. Additionally, in the event of any failure on the part of Vendor to comply with the terms and conditions contained in this purchase order, Solo reserves the right to: |
| |
a. |
Return invoices and compute discounts from the date a corrected invoice is received at its home office; |
| |
b. |
Hold Vendor responsible for: any loss or expense resulting from any errors in shipping, damages during shipping, or any violations of shipping instructions or non-compliance with railway or other carrier tariffs; transportation costs on rejected materials f.o.b. the plant of Solo from which the materials are rejected; |
| |
c. |
Cancel this order, in whole or in part, at Solo's option, in the event Vendor fails to deliver any item covered by this order within (7) days of the delivery date specified herein for such item; |
| |
d. |
Hold Vendor responsible for any and all incidental and consequential damages flowing from and resulting from Vendor's breach.
All remedies of Solo, whether provided by law or specified in this purchase order, shall be deemed cumulative, and acceptance by Solo of performance in any one instance, despite a breach by Vendor in connection therewith, shall not be deemed a waiver by Solo of Solo’s right as to any other or subsequent breach. No payment by Solo hereunder, including payments made as a result of pre-shipment and post-shipment testing, shall be deemed acceptance of the performance by Vendor, in whole or in part, or a waiver of any remedy of Solo of this purchase order by Vendor. |
| 3. |
None of the Conditions herein set forth shall be stricken or limited in any way by any Proposal, Acceptance, Acknowledgment or Confirmation of Vendor, written or oral. Any different or additional terms or conditions proposed by Vendor in any form, even to the extent that such form purports to modify the conditions hereof, shall be deemed material alterations of this Purchase Order and shall not alter or modify these Conditions by operations of any law or by custom unless specifically accepted in writing by Solo. Acceptance of delivery of goods or services shall not be considered an acceptance of any modification of these conditions. |
| 4. |
The goods or services covered by this order are not to be invoiced at a price higher than last quoted or charged Solo for similar goods or services, nor shall such price be increased or added to, by reason of any federal, state or local taxes imposed upon the Vendor, unless such price increase or additions is specified on the face hereof or approved by Solo in writing. In the event of a decline in price prior to the date of shipment, invoice to Solo shall be at the lowest price thenprevailing. |
| 5. |
Vendor shall protect, indemnify and save Solo harmless from all claims, losses, damages, fines, penalties, expenses and counsel fees and, at Vendor's expense, defend all suits which may be brought against Solo in law or equity for: |
| |
a. |
The infringement, or the like, of any United States or foreign patent, trademark or copyright; |
| |
b. |
the adulteration or misbranding within the meaning of the Federal Food, Drug, and Cosmetic Act, or for any failure of compliance with the provisions of the Federal Hazardous Substance Act, the Federal Fair Labor Standards Act, the Federal Truth-In Advertising Act, the regulations and orders issued pursuant to any of the foregoing acts and all other applicable federal, state and municipal laws, ordinances and regulations relating thereto; |
| |
c. |
Any claims, costs, causes and actions and counsel fees incurred by reason of any such claims, etc. brought against Solo by employees, servants, agents or independent contractors engaged or provided by the Vendor or brought by any third person alleging liability of Solo by reason of the acts or omissions of such employees, servants, agents or independent contractors of the Vendor or the use or resale by Solo, or its agents or employees, of items supplied by Vendor. Before any representative or subcontractor of Vendor comes onto any premises owned or controlled by Solo, it will obtain insurance that names Solo as an additional insured in such insurance companies and with such limits as set forth in Attachment A attached hereto (certificates of insurance evidencing that the above stated obligations of Vendor have been underwritten will be supplied upon written request of Solo). The performance of Vendor is also subject to the applicable provisions of, and the implementing regulations promulgated under, The Hazardous Materials Transportation Act of 1974, 49 U.S.C. 1801, et. seq. Before or after any action is started (provided it is prior to final disposition of such claim or suit in Solo's favor), Solo may elect to rescind this purchase order as to any undelivered affected goods or services and as to any affected goods or services previously delivered, Vendor shall, at its expense, upon demand of Solo, promptly modify such items to avoid further violation or procure an unlimited royalty-free license for Solo with respect thereto, or repurchase from Solo the affected items at Solo's cost, including transportation and installation, if any. The provisions of this paragraph shall also inure to the benefit of Solo’s assigns. No warranty is made by Solo against infringements, or the like, arising out of the production, sale or use of items produced according to Solo’s specification. |
| 6. |
In the event fire, flood, strike, lockout, accident, war, or other cause beyond Solo’s control shall interfere with the delivery or use of the goods or services covered by this order, Solo shall have the right to require suspension of deliveries during the continuance of such conditions. |
| 7. |
a. |
In the event Solo furnishes to Vendor molds, dies, tools, or the like and in some instances, raw material ("Tooling@), required for the production of any items, Tooling shall remain the property of Solo and shall be used solely and exclusively for Solo or in accordance with Solo’s written direction. At its sole cost and expense, Vendor shall safely store Tooling, obtain and maintain adequate insurance, as determined by Solo, against damage or destruction of the Tooling, and repair and maintain the Tooling and keep the same in good working order as required by Solo. Upon written demand by Solo, Vendor shall surrender immediately the Tooling to Solo, at the destination designated by Solo, in the same condition as when it was delivered by Solo to Vendor, ordinary wear and tear excepted. Any expenses which Solo incurs to restore the Tooling to the condition in which it was delivered to Vendor, ordinary wear and tear excepted, shall be fully reimbursable by Vendor. |
| |
b. |
In the event Vendor obtains or manufactures the Tooling for or on behalf of Solo, such Tooling shall become immediately the property of Solo and shall be used solely and exclusively for Solo or in accordance with Solo’s written direction. All final plans, diagrams and blueprints of the Tooling shall be the property and shall be delivered immediately to Solo. Tooling shall be invoiced separately from any items to be produced by Vendor, and Solo’s obligation to pay for the Tooling shall be subject to the inspection and approval of the Tooling by Solo’s engineers. Vendor's invoices for Tooling shall be set forth in the agreed schedule of payment, if any. Other than as set forth in this subparagraph, all Tooling obtained or manufactured by Vendor, on behalf of Solo, shall be subject to the terms and conditions set forth in subparagraph 7(a) hereof. |
| 8. |
Prices are to be computed and paid in terms of United States dollars at the rate of exchange applicable thereto upon the date appearing on this order, unless expressly stated otherwise on this order. |
| 9. |
In the course of promoting its goods or services to Solo, Vendor will have access to or be provided with certain knowledge and information (collectively, the "Confidential Information") about Solo including, without limitation, the design, construction and operation of Solo’s plants, products, machines or certain aspects thereof; the material, methods, techniques, processes and knowhow used to manufacture Solo's products; inventions, improvements, patentable ideas, applications for patents, methods, processes, techniques, and devices that belong to Solo or in which it has an interest; and various trade and business secrets including specifically but not exclusively, customer lists, production and sales plans and volume, market studies and surveys, suppliers, pricing and discount practices, contracts, leases and financial information such as costs of production, profit margins, earnings and details as to assets and liabilities. As a condition to Solo’s purchases from Vendor and Vendor's past, present and future receipt of Confidential Information, Vendor hereby agrees that all such Confidential Information will be held confidential by Vendor and shall not be disclosed to any party whatsoever for a 20 year period after receipt of such Confidential Information. The Confidential Information made available to Vendor by Solo in written or machine readable form, in drawings, photographs, samples, or orally, with the substance of such oral disclosure being reduced to writing and transmitted to Vendor by Solo within 90 days of such disclosure, must be marked "Confidential".
The term "Confidential Information" does not include information that becomes generally available to the public as part of the public knowledge or literature other than as a result of Solo's disclosure to Vendor. Information which is independently developed by an officer of, employee of or consultant of Vendor who has not had access to the Confidential Information of Solo shall not be subject to the obligations of this Agreement. Information which shall become available to Vendor legitimately and lawfully from a third party (who is not known to be under any confidentiality agreement) shall be released from the provisions of this Agreement to the extent necessary to permit such use and disclosure as are permitted by such third party. References herein to "Vendor" shall include its shareholders, officers, directors, employees, agents and advisors. Vendor hereby agrees that the Confidential Information will be used solely for the purpose outlined above, and that Vendor shall inform all parties to whom Vendor discloses Confidential Information (as allowed herein), of the confidential and proprietary nature of such information and they shall be directed by Vendor to treat such information as confidential. In addition, without Solo's prior written consent, Vendor shall not disclose to any person the fact that Solo is considering, evaluating or using (or has considered, evaluated or used) any goods or services of Vendor, or any component thereof.
Vendor hereby assumes liability for damages that arise from any breach of this obligation of confidentiality including, without limitation, unauthorized use of the Confidential Information. Vendor further recognizes and acknowledges that any such breach may result in irreparable injury to Solo for which monetary damages may be an inadequate remedy and agrees: (i) to take all reasonable measures including, without limitation, court proceedings, at Vendor's expense, to restrain any party to whom Vendor has disclosed Confidential Information from any such breach; and (ii) that Solo shall be entitled (without proving monetary damages) to temporary and permanent injunctions restraining such breach. |
| 10. |
During the performance of this order, Vendor will not discriminate against any employee or applicant for employment because of race, religion, color, age, disability, veteran status, sex, national origin or any other classification protected under state or federal law. Vendor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, religion, color, disability, veteran status, age, sex, national origin or any other classification protected under state or federal law. Such action shall include, but not be limited to, the employment, upgrading, demotion, or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. Vendor agrees to post in conspicuous places, available to employees and applicants for employment, appropriate notices setting forth the provisions of this nondiscrimination clause and provide Solo written certification of compliance if requested. In the event of the Vendor's noncompliance with the nondiscrimination clauses of this contract or with any of such rules, regulations or orders, any contract with Vendor may be canceled, terminated or suspended, in whole or in part, and the Vendor may be declared ineligible for further contracts with Solo. |
| 11. |
Vendor shall not use the name of Solo nor the fact of any purchase by Solo in any advertising or other publications of Vendor without the prior written consent of Solo. |
| 12. |
Solo and Vendor may electronically transmit to or receive from the other party the Purchase Order and any documents referred to in the Purchase Order or Terms and Conditions of Purchase (collectively "Documents"). Any transmission of data which is not a Document shall have no force or effect between the parties unless performance in accordance with the transmission is accepted by the receiving party.
Each party, at its own expense, shall provide and maintain the equipment, software, services and testing necessary to effectively and reliably transmit and receive Documents.
Each party shall properly use those security procedures, which are reasonably sufficient to ensure that all transmission of Documents are authorized and to protect its business records and data from improper access and disclosure.
Each party shall adopt as its signature an electronic identification consisting of symbol(s) or code(s) which are to be affixed to or contained in each Document transmitted by such party ("Signatures"). Each party agrees that any Signature of such party affixed to or contained in any transmitted Document shall be sufficient to verify such party originated such Document. Neither party shall during the term hereof or thereafter disclose to any unauthorized person the Signatures of the other party. For purposes of the foregoing, "Unauthorized Person" shall mean anyone other than those individuals employed by one of the parties hereto who has a need to know the Signatures.
Documents shall not be deemed to have been properly received, and no Document shall give rise to any obligation, until complete and accessible to the receiving party at such party's Computer.
Upon proper receipt of any Document, the receiving party shall promptly and properly transmit a functional acknowledgment in return. It is understood that verification does not constitute acceptance of the content of any Document. However, a functional acknowledgment shall constitute conclusive evidence a Document has been properly received. If a functional acknowledgment is not received by the transmitting party within seventy-two (72) hours of transmission, the transmitting party will attempt to confirm receipt of its transmission by telephone or by facsimile. If at the time the transmitting party attempts such telephonic or facsimile confirmation, it is determined that the receiving party has in fact received the transmission, but has not previously acknowledged receipt, the receiving party must immediately confirm receipt in writing or electronically pursuant to the terms of this agreement.
If any properly transmitted Document is received in an unintelligible or garbled form, the receiving party shall promptly notify the originating party (if identifiable from the received Document) in a reasonable manner. In the absence of such a notice, the originating party's records of the contents of such Document shall control.
I have read and accept the above stated terms of conditions of purchase.
Print Name____________________________Title______________________
Signature_____________________________ Date_____________________ |
|
| |
|
