SMURFIT KAPPA NORTH AMERICA LLC
Purchase Order Terms & Conditions
ENTIRE AGREEMENT: The supplier of Goods and/or services (as hereinafter defined) under this transaction (the “Purchase Order”) is herein referred to as “Seller”, and Smurfit Kappa North America LLC is herein referred to as “Buyer.” The terms and conditions herein along with the business terms of the Purchase Order (the “Business Terms”) constitute a complete and exclusive statement of all terms and conditions that shall apply to this Purchase Order. , and no prior agreement or oral agreement shall in any way modify, change, or add to the terms and conditions hereof. ANY TERMS OR CONDITIONS IN SELLER’S QUOTES, PROPOSALS, ACKNOWLEDGEMENTS OR OTHER WRITINGS THAT ARE DIFFERENT FROM, INCONSISTENT WITH OR IN ADDITION TO THOSE CONTAINED HEREIN SHALL BE DEEMED MATERIAL ALTERATIONS TO THIS PURCHASE ORDER AND ARE HEREBY REJECTED. IF THESE TERMS AND CONDITIONS ARE NOT ACCEPTABLE, SELLER SHALL IMMEDIATELY ADVISE THE BUYER IN WRITING UPON RECEIPT OF THE PURCHASE ORDER AND WITHHOLD SHIPMENT AND SERVICES UNTIL THE MATTER IS RESOLVED. NOTWITHSTANDING ANY CUSTOM, PRACTICE OR COURSE OF DEALING, BUYER MAY INSIST ON STRICT ADHERENCE TO THIS PURCHASE ORDER.
ACCEPTANCE: This Purchase Order may be accepted by a written (or electronic) expression of acceptance or by the beginning of performance hereunder. The acceptance of this offer to purchase Seller’s goods and/or services (the “Goods or Services”) is expressly limited to the terms herein. Payment for Goods or Services delivered hereunder shall not constitute acceptance of such Goods or Services. All Goods shall be received subject to Buyer’s inspection and acceptance or rejection after receipt at Buyer’s premises and to all of Buyer’s rights and remedies under this Purchase Order or under law.
FORCE MAJEURE: Neither Buyer nor Seller shall be liable for delay or default in the fulfillment of this Purchase Order due to matters beyond the reasonable control of the party charged with performance, including Acts of God, accident, riot, strike, war, terrorism, embargo or government interference. During any such delay or default by Seller, Buyer may elect to purchase the described Goods or Services elsewhere and, at Buyer’s sole option, apply such purchases to reduce the quantity of Goods or Services deliverable hereunder. Alternatively, during any such delay or default by Seller, Buyer may elect to terminate this Purchase Order.
PRESENCE ON BUYER’S PREMISES: If Seller’s performance hereunder requires the presence of Seller, its agents, employees or subcontractors upon the premises of Buyer; Seller agrees that all work shall be done as an independent contractor and that the persons doing such work shall not be considered employees of the Buyer. Seller shall comply with the Federal Occupation Safety and Health Act, the Fair Labor Standards Act, as amended, and all regulations issued thereunder and otherwise shall take all necessary precautions to prevent the occurrence of any injury to person or damage to real or personal property (both tangible and intangible) during the progress of such work. Except to the extent that any such injury (including death) is due solely and directly to Buyer’s negligence, Seller shall pay, reimburse and indemnify Buyer for any loss which may result in any way from any act or omission of Seller, its agents, employees or subcontractors in the performance of its obligations hereunder
WARRANTY: Seller warrants that: (1) all Goods delivered and Services performed hereunder shall conform substantially to the description set forth in the Business Terms and to Buyer’s specifications, designs, operating capacities, and drawings, if any; be free and clear of all liens, encumbrances and security interests; be free from all defects in materials and workmanship; be merchantable and of highest quality commensurate with the grade and quality specified hereunder; and be fit and sufficient in all respects for their intended purposes, which purposes Seller acknowledges; (2) the Goods furnished hereunder do not infringe any patent, design, copyright or trademark rights; (3) Seller will be prepared to provide statistical data, as requested by Buyer, to assure that all incoming materials meet the requirements established by the specifications; and (4) all Goods or Services furnished hereunder shall be produced and furnished in compliance with all applicable federal, state and local laws, orders and regulations including, but not limited to, those applicable to the requirements of the Federal Food, Drug and Cosmetic Act and to the hiring of aliens and those dealing with equal opportunity and discrimination.
PRICE WARRANTY AND PAYMENT: Prices reflected in the Purchase Order are complete, and no additional charges of any type shall be added without Buyer’s express consent. Unless otherwise agreed to in writing, all shipments shall be F.O.B. Destination. A complete packing list must accompany each shipment. Unless otherwise agreed by Buyer, payment terms are net 30 days after receipt of Seller’s correct invoice. The time period for payment shall commence upon receipt of Seller’s invoice or upon receipt of the Goods or Services, whichever is later. In the event Buyer makes progress payments to Seller, Buyer shall have title to the Goods to the extent of the progress payments made. Any invoice subject to a cash discount shall be mailed by Seller on the date it is dated. If not so mailed, the discount period shall begin on the day the invoice is received by Buyer. If the Goods or Services are purchased over a period of time, Buyer hereunder reserves the right to obtain more competitive prices for comparable goods or services. If Buyer is able to obtain such lower competitive price, then Buyer shall have the right to demand that Seller meet such lower price within thirty (30) days of Buyer’s written notice to Seller. If Seller fails to meet such lower price, then Buyer shall have the right to terminate the Purchase Order with no liability and to purchase the goods or services from such other competitive vendor.
TAXES AND PERMITS: Unless otherwise agreed to in writing, Seller agrees to pay and comply with and hold Buyer harmless against the payment of all federal, state and local contributions, taxes, duties or premiums arising out of the performance of this Purchase Order, and all sales, use or other duties or taxes of whatever nature levied or assessed against Buyer or Seller arising out of this Purchase Order, including any interest or penalties. Seller shall obtain and pay for all permits, licenses, fees and certificates of inspection necessary for the prosecution and completion of Seller’s work hereunder.
PROPRIETARY MATERIALS: Unless otherwise agreed in writing, any confidential or proprietary information, designs, artwork, blueprints, drawings, specifications, special dies, molds, patterns, fixtures and any other property furnished or paid for by Buyer for use in the performance hereunder shall be and remain the property of Buyer; shall not be reproduced, used for the benefit of or disclosed by Seller to others without Buyer’s prior written consent; shall be subject to removal upon Buyer’s instructions; shall be used only in filling orders from Buyer; shall be held at Seller’s risk; and shall be kept insured by Seller at Seller’s expense while in its custody or control in an amount equal to the replacement cost thereof with loss payable to Buyer. Certificates of such insurance will be furnished to Buyer on demand. Upon completion of the Purchase Order or its termination, any such proprietary or confidential materials shall be delivered to Buyer unless Seller is advised to the contrary in writing.
DELIVERY, TIME OF ESSENCE: TIME IS OF THE ESSENCE FOR THIS . Failure to deliver Goods or render Services within the time specified in the business terms of the Purchase Order or as otherwise specified shall constitute a default. If delivery of Goods or rendering of Services is not completed by the time agreed, Buyer reserves the right without liability, in addition to its other rights and remedies hereunder or under law, to terminate this Purchase Orderby notice effective when received by Seller or, in the alternative, to purchase the comparable goods or services from a vendor of Buyer’s choice and charge Seller with all loss or damage occasioned thereby, unless deferred shipment of Goods or performance of Services have been authorized in writing by Buyer’s duly authorized representative. Any provisions herein for delivery of Goods or the rendering of Services by installment shall not be construed as making the obligations of Seller severable. Unless otherwise agreed to in writing, all Goods are sold F.O.B. Destination, and risk of loss shall not transfer to Buyer until delivery. Seller’s timely performance is conditioned upon, among other things, timely receipt from Buyer of all “deliverables,” including but not limited to, Buyer’s Purchase Order, approved graphics, approved structures, approved specifications, approved bill of materials, etc.
REMEDIES: In the event Buyer shall notify Seller of receipt of non-conforming or defective Goods or Services, or if such Goods or Services fail to conform to any warranty hereunder, Seller shall, at Buyer’s election (1) repair or replace defective or nonconforming Goods by delivering and installing such replacements or, in the case of Services, re-perform the Services (both of which shall be at Seller’s sole cost and expense) along with all incidental costs incurred by Buyer with respect to the defective or non-conforming Goods or Services (including, but not limited to, all costs and expenses of identifying, packing or unpacking, storing, setting aside and shipping such Goods and, in the case of Services, all costs and expenses of identifying the non-conforming or defective Services and of any accommodations or changes taken by Buyer as a result of such non-conforming and defective Services) (collectively, the “Incidental Costs”); (2) give Buyer full credit or, if requested, a full cash refund plus shipping costs incurred by Buyer along with all Incidental Costs; or (3) reimburse Buyer for all costs and expenses incurred by Buyer in repairing or replacing such defective or non-conforming Goods or Services along with all Incidental Costs. All claims for moneys due or to become due from Buyer shall be subject to deduction by Buyer for any setoff or counterclaim arising out of this or any other of the Buyer’s Purchase Orders with Seller, whether such setoff or counterclaim arose before or after any such set-off claim by Seller. Each of Buyer’s rights and remedies specified in this Purchase Order shall be cumulative and additional to any other or further remedies provided in law or equity
INDEMNITY: Seller shall save and hold Buyer harmless and indemnify Buyer from and against all liability, loss, injury, damages, actions, judgments, costs, attorneys’ fees and expenses arising from or incurred by Buyer or in any manner connected with: (1) any claim of injury to or death of any person, or damage to any property belonging to any person or entity caused in whole or in part by any act or omission of Seller, its employees, agents or subcontractors in the manufacturing and furnishing of Goods or in the performance of Services or making delivery under this Purchase Order; (2) any claim with respect to or arising out of the use of any of the Goods or Services called for by this Purchase Order, or for infringement of any patent, copyright, trademark, trade name, brand or slogan, or unfair competition or any adverse claim of statutory or non-statutory rights associated in any way with the purchase, use or sale of Goods and Services.
INSURANCE COVERAGE: Seller shall procure and maintain insurance coverage and applicable certificates and endorsements including: (1) Commercial General Liability Insurance that includes coverage for products and completed operations and contractual liability with a combined single limit of not less than: $2,000,000 per occurrence. Buyer shall be included as an insured under an additional insured endorsement. This insurance shall apply as primary and non-contributory insurance with respect to any other insurance or self-insurance programs afforded to Buyer. (2) Workers’ Compensation and Employers’ Liability Insurance for all states where work is to be performed with limits that comply with statutory requirements. Employers’ Liability Insurance must be carried with limits as follows: (a) Bodily injury by accident - $1,000,000 each accident; (b) Bodily injury by disease - $1,000,000 each employee. Seller waives all rights against Buyer for recovery of damages to the extent these damages are covered by the workers’ compensation and employers’ liability insurance obtained by Seller; (c) Auto Liability Insurance and, if necessary, commercial umbrella insurance, which covers “any auto” used by the Seller with a limit of not less than: $1,000,000 per accident. Seller shall be responsible for its subcontractors’ compliance with and obtaining the required insurance. Seller waives all rights against Buyer for recovery of damages to the extent these damages are covered by the auto liability insurance obtained by Seller. (3) Insurance Other: (a) If the insurance policies require a deductible or self-insured retention, Seller is responsible for payment of all such deductibles or self-insured retentions. (b) All certificates shall provide for 30 days' written notice to Buyer prior to the cancellation or material change of any insurance referred to above. (c) A current certificate of insurance meeting the above requirements shall be furnished to Buyer with renewal dates.
DEFAULT: Seller shall be in default if: (1) Seller is in violation of any of the terms of this Purchase Order including, but not limited to, Seller’s breach of its warranties, covenants, obligations or promises hereunder; (b) Seller refuses or fails to provide sufficient and properly skilled workers, adequate supervision or material of the proper quality; (c) Seller is insolvent or unable to meet its obligations as they become due; (d) a voluntary or involuntary petition of bankruptcy is filed by or against Seller, and such proceeding is not dismissed within 60 days after the date of filing; (e) creditors or stockholders of Seller institute any legal proceedings against Seller; (f) a court of competent jurisdiction appoints a receiver for Seller; (g) Seller initiates an assignment for the benefit of creditors; or (h) any representation made by the Seller to Buyer pursuant to this Purchase Order is false or misleading. Upon the happening of any one or more of the above enumerated events, Buyer shall forthwith have the unrestricted right to cancel and terminate this Purchase Order without cost or liability to the Buyer. The acceptance of Goods or performance of Services after the occurrence of any of the events above enumerated shall not affect the right of the Buyer to cancel its additional obligations. Buyer’s failure to inspect at destination will not affect any express or implied warranties.
TERMINATION: Buyer reserves the right, without liability to Seller, to terminate all or any part of this Purchase Order in the event that Seller fails or is unable to comply with any of the terms and conditions hereof. Such termination shall not constitute a waiver of any other right or remedy Buyer may have against Seller: (a) for breach of contract or warranty resulting from acceptance of this Purchase Order or (b) under law. In event of such termination otherwise than for default of Seller, Buyer may, at its option either: (1) require delivery of all or part of completed Goods or Services and make payment therefor at the contract price; (2) require Seller to complete and deliver all or part of raw or semi-processed or partially completed Goods or Services at the contract price, or pay to Seller with respect to such raw or semi-processed or partially completed Goods or Services such proportion of the contract price based on the stage of completion of the Goods or Services but limited by the value of the Goods or Services of such stage of completion. Inventories of, and commitments for, raw or semi-processed or partially completed materials for use in fulfilling uncompleted portions of this Purchase Order shall be determined by allocating on a pro rata basis the total quantity of such material which Seller has in stock or on firm order to all of Seller’s outstanding and uncompleted orders in the completion of performance of which such materials would be required, subject, however, to the limitation that the amount so allocated to this Purchase Order shall not exceed the amount necessary to perform the uncompleted portion of this Purchase Order. Except as herein provided, the Buyer expressly disclaims any other obligations toward Seller, whether express, implied or statutory.
LIMITATION ON BUYER’S LIABILITY: In no event shall Buyer be liable for loss of use damages or loss of anticipated profits or for any incidental, indirect, special, punitive, exemplary or consequential damages of any nature whatsoever.
APPLICABLE LAW, ARBITRATION: The validity, construction and performance of this Purchase Order shall be governed by the Uniform Commercial Code as enacted by the state in which Buyer intends to use or receive the Goods or Services and as supplemented by the common law of such state. The parties agree that the terms of the U. N. Convention on Contracts for the International Sale of Goods (CISG) shall not apply to this Purchase Order. Any controversy or claim arising out of or relating to this Purchase Order, for the breach, default, validity or legality thereof, shall, be settled by arbitration held in in accordance with the rules of the American Arbitration Association, and judgment upon any award thereon may be entered in any court having jurisdiction thereof.
ASSIGNMENT: Seller shall not assign its rights or obligations under this Purchase Order without the prior written consent of Buyer and any such attempted assignment shall be void. Seller’s subcontracts are subject to the provisions of this Purchase Order and Seller shall insert in Seller’s subcontracts all provisions necessary to enable Seller to comply with the terms hereof. Subcontracting by Seller shall not relieve Seller of any obligation under this Purchase Order.
CHANGES: By written instruction to Seller, Buyer may from time to time require changes in any of the specifications for Goods or Services or work ordered hereunder, or require additional Goods or Services, and Seller shall notify Buyer in a timely manner of any increases or decreases in costs caused by such changes and an equitable adjustment of prices or other terms hereof shall be agreed upon in a written amendment to this Purchase Order. Seller’s failure to notify Buyer in writing within seven days after receipt of Buyer’s change order shall constitute Seller’s agreement to conform to such change without an increase in price or extension of the time for performance.
WAIVER: The waiver by Buyer of any of its rights under this Purchase Order in any one or more instances shall not constitute a waiver by Buyer of any other rights hereunder or of such rights on a future occasion. No waiver of rights shall be binding upon Buyer unless in writing.
CREDIT HISTORY: As part of this transaction, Buyer may investigate Seller’s credit history. Buyer reserves the right to cancel and terminate this Purchase Order if it reasonably believes that it could be insecure with respect to any payments made by Buyer prior to delivery of the Goods or performance of the Services.
ATTORNEYS FEES: In the event of any action, including arbitration to enforce rights under this , the prevailing party shall be entitled to its costs and expenses, including reasonable attorney’s fees, incurred in connection with such action.
ENVIRONMENT, HEALTH, SAFETY (EHS): Seller must comply itself, and must cause its suppliers and its representatives, if any, to comply with all environmental, health and safety (“EHS”) directives, laws, and regulations and company policies (“EHS Requirements”) that are applicable to the items or services delivered under this order, as a result of the place the items or services are created or delivered to Buyer, or the ultimate place Buyer’s own products or its customers’ products are sold or used. Seller will also cooperate with Buyer’s efforts to address EHS Requirements. (a) EHS Requirements include, but are not limited to the following, referred to as “Regulated Substances and Materials”: (1) All applicable standards, laws, and regulations concerning product content, hazardous substances and materials, recycling, and product end-of-life, including, but not limited to the International Material Data System (IMDS) system. (2) All applicable standards, laws, and regulations concerning product design for safety and energy efficiency, including associated product marking and labeling requirements; (3) All applicable standards, laws and regulations concerning product packaging and transportation, including but not limited to: regulations of the U.S. Department of Transportation concerning transportation of hazardous materials, including, but not limited to, training of personnel, packaging, marking, labeling, documenting, placarding, and responding to emergencies , the International Maritime Organization and the International Air Transport Association and their respective revisions, amendments or successor systems, and their equivalents in other jurisdictions that are applicable to the items or services delivered under this order as a result of the place the items or services are packed or transported to Buyer; and (4) Any requirement of Buyer or Buyer’s customer(s) concerning the chemical content or design of any item provided to Buyer by Seller under this order, including but not limited to use restrictions or bans on certain substances. (b) Compliance and cooperation includes, but is not limited to, Seller doing each of the following, if required by any of the EHS Requirements: (1) Identifying the chemical content of each item provided to Buyer by Seller including the chemical names and quantities contained in the item. (2) Immediately giving written notice to Buyer, of the identity and quantity of any substance included in the items provided to Buyer under this order together with sufficient information to allow safe use of the items, (3) Eliminating certain regulated substances used in, with, or in connection with the items provided under this order, (4) Pre-registering, registering with, or notifying the regulatory agencies with respect to the chemical content of the items provided by Seller under this order; and (5) Providing to Buyer documentation in the format required by Buyer, specifying the identity and quantity of the chemical content of the items provided by Seller under this order, along with all relevant safety data sheets. (c) If requested by Buyer, Seller must certify that the items provided to Buyer under this order comply with the Regulated Substance. Seller must indemnify and hold Buyer harmless, in accordance with Article 13 of this order, from any Claims incurred by Buyer due to Seller’s inaccuracy or omission in its warranty regarding the Regulated Substance. (d) If any EHS Requirements prohibit the delivery to Buyer of the items to be provided under this order, Seller must immediately inform Buyer and must propose an alternate solution to ensure the continuity of supply to Buyer in compliance with the Regulated Substance and this order. (e) Seller must cooperate and reasonably support Buyer in Buyer’s EHS efforts, as applicable to Seller’s performance of this order. This includes: (i) Seller’s support of worker safety, waste minimization, recycling, water conservation, energy conservation, greenhouse gas reduction, and other Buyer sustainability initiatives; and (ii) to the extent that new items will be designed under this Order, Seller will cooperate with Buyer in evaluating the item’s environmental aspects and impacts (e.g., water, ground, air, noise, smell, sight and health) throughout its life-cycle, including its repair, maintenance and end-of-life disposal. Upon Buyer’s reasonable request, Seller will provide Buyer with data, information and documents evidencing Seller’s support of the foregoing efforts and, to the extent not otherwise business confidential, the parties will share associated life-cycle data and analyses.
Support of worker safety, waste minimization, recycling, water conservation, energy conservation, greenhouse gas reduction, and other Buyer sustainability initiatives; and (ii) to the extent that new items will be designed under this Order, Seller will cooperate with Buyer in evaluating the item’s environmental aspects and impacts (e.g., water, ground, air, noise, smell, sight and health) throughout its life-cycle, including its repair, maintenance and end-of-life disposal. Upon Buyer’s reasonable request, Seller will provide Buyer with data, information and documents evidencing Seller’s support of the foregoing efforts and, to the extent not otherwise business confidential, the parties will share associated life-cycle data and analyses.
Seller agrees to take such safety protective measures and precautions as are required by law, ordinances, industrial code, applicable municipal, state and federal safety regulations, and to cooperate fully with Buyer, and any insurance carrier to comply with their recommendations so that the work will be completed and the Goods will be produced and delivered with the greatest degree of safety. Services performed at Buyer’s site must comply with Buyer’s Contractor Safety Declaration.
BUYER’S POLICIES/PROGRAMS: Seller must use Buyer’s e-commerce site if applicable. Seller must comply with Buyer’s Supplier Sustainability Policy Statement.