Imperial Dade Terms And Conditions Of Purchase

These Terms and Conditions of Purchase (“Terms”) apply to all purchases from Imperial Bag & Paper Co. LLC and its affiliates, divisions, and locations operating in the United States and Puerto Rico (collectively, “Imperial Dade”) by the purchaser of products or goods (“Customer”) hereunder (Imperial Dade and Customer each a “Party” and, together, the “Parties”). All goods purchased from Imperial Dade by the Customer are the “Products” and are subject to these Terms. Imperial Dade agrees to procure and deliver the Products to Customer in accordance with the terms and conditions set forth herein and in the applicable PO(s), as defined below (the “Services”). To order Products, Customer will issue a purchase order to Imperial Dade or complete an Imperial Dade purchase order. In either case, such purchase order shall set forth the mutually agreed upon list of Products, pricing, and terms of delivery (the “PO”). Notwithstanding the foregoing, in all cases, Products shall be delivered FOB destination. Customer’s acceptance of these Terms hereunder shall occur either through issuing or acknowledgment of the PO, including by signature, or through Customer accepting delivery of any Product(s). By accepting these Terms, Customer waives all terms and conditions contained in its quotation, acknowledgment, or other documents, including any pre-printed terms in a Customer form purchase order or on Customer’s website, which are different from or additional to those contained herein and all such different or additional terms and conditions shall be null and void. These terms supersede all other prior and contemporaneous understandings of the Parties as to the subject matter herein, except where Imperial Dade and Customer have a signed written contract for Customer’s purchase of Products from Imperial Dade. No course of prior dealing or usage of trade may modify or supplement any terms herein. No addition to, waiver or modification of, any of the provisions herein contained shall be of any force or effect unless made in writing and executed by an authorized representative of each Party. In the event of a conflict between these Terms and any PO, these Terms shall control. If Imperial Dade agrees to stock any Products for Customer at Imperial Dade’s above-standard inventory levels and for all items specifically created, manufactured, or customized for Customer, including all printed and branded products (collectively, “Stocked Products”), Customer agrees to the terms and conditions set forth in Exhibit A to these Terms and, only for such Stocked Products, will take precedence over any other terms herein.

Either Party, by written notice to the other Party, may terminate a PO, in whole or in part, upon thirty (30) days’ prior written notice. Any PO may be terminated by either Party, upon the filing by the other Party of a voluntary petition or an answer, or the filing against it of an involuntary petition that is not dismissed within sixty (60) days seeking reorganization, arrangement, readjustment of its debts or any other relief under the United States Bankruptcy Code, as amended, or under any other insolvency act or law, state or federal, now or hereafter existing, or any other action of a Party to these Terms indicating its consent to, approval of, or acquiescence in any such petition or proceeding.

(a) Customer shall pay Imperial Dade in accordance with the pricing set forth in the applicable POs. Unless otherwise set forth in the applicable PO, Imperial Dade shall invoice Customer following delivery of Products. Customer shall pay all invoices via ACH within thirty (30) days following the date of the invoice. (b) Upon Imperial Dade’s request, Customer shall submit a credit application to Imperial Dade to demonstrate creditworthiness. Customer acknowledges and agrees that Imperial Dade may refuse to deliver product to Customer without such demonstration of creditworthiness, and such refusal shall not result in any liability for Imperial Dade. (c) In order to comply with applicable federal, state, and local sales tax law requirements, Customer will deliver to Imperial Dade, on or before deliver of the applicable Products, the exemption forms for any claimed tax exemptions (resale, export, manufacturing, governmental, or any other) that are valid in each jurisdiction to which Customer requests Imperial Dade to ship Products and not charge tax on such Products. If at any time Customer claims a new or additional sales tax exemption, Customer must provide, in advance of the first delivery of the relevant Products, the applicable exemption forms valid in each jurisdiction which Customer requests Imperial Dade to ship Products and not charge tax on such Products. Customer will indemnify Imperial Dade for any costs incurred by Imperial Dade due to Customer’s failure to provide (or delay in providing) exemption forms for any tax exemptions claimed by Customer. (d) Notwithstanding any other provision herein or any PO, upon termination or expiration of the applicable PO for any reason by either Party, Customer shall pay Imperial Dade for all Services, Products and deliverables provided under the PO prior to the termination or expiration date.

(a) Each Party acknowledges and agrees that in the course of performance under these Terms or a PO, it may have access to certain confidential information belonging to the other Party and its affiliates, including but not limited to, the terms and existence of the PO, trade secrets, policies, procedures, operating manuals, utilization and quality assurance programs, software, marketing techniques, contractual arrangements, employee information, price lists, pricing policies, reports, and other business and financial information (collectively, “Confidential Information”). The Party disclosing the Confidential Information is hereinafter referred to as the “Disclosing Party” and the Party that receives the Confidential Information is hereinafter referred to as “Receiving Party.” (b) The Receiving Party and its affiliates shall maintain the confidentiality of all such Confidential Information of the Disclosing Party and shall not divulge such information to any third parties, except as otherwise provided for herein and under applicable law. The Receiving Party shall use any Confidential Information of the Disclosing Party only for purposes related to carrying out the Receiving Party’s obligations under these Terms or the applicable PO. The Receiving Party shall take reasonable precautions against disclosure of any of the Confidential Information of the Disclosing Party to unauthorized persons by any of its officers, directors, employees, or agents. Upon termination of a PO for any reason, each Party shall cease all use of the Confidential Information of the other Party and shall return or destroy to the Disclosing Party any copies thereof. This obligation to return or destroy the Confidential Information does not extend to any automatically generated computer back-up or archival copies of Confidential Information generated in the ordinary course of the Receiving Party’s business, provided that except as otherwise permitted herein, the Confidential Information remains subject to the non-disclosure obligations set forth herein. (c) Notwithstanding the foregoing, “Confidential Information” shall not include (1) information which is public knowledge or that becomes a matter of public knowledge after the date of the applicable PO, other than as a result of an unauthorized disclosure by the Receiving Party; (2) information that: (i) is, and can be proven through trustworthy written records to have been: (i) known to the Receiving Party prior to the Disclosing Party’s disclosure of such information to Vendor; (ii) is received by the Receiving Party from a third party who obtained such information without restrictions and without any obligation of confidentiality to the Disclosing Party; or (iii) is independently developed by the Receiving Party; or (3) information that is approved for release by written authorization from an officer of the Disclosing Party. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information if required pursuant to a requirement of law, legal process, or court order, provided that: the Receiving Party has given the Disclosing Party prior written notice of such disclosure, as is practical and as allowed by law, to permit intervention at the Disclosing Party’s option, and shall limit the disclosure to only the Confidential Information that is strictly required to comply with such law, legal process, or court order, in the opinion of the Receiving Party’s counsel.

As between the Parties, each Party is and shall remain the owner of any and all inventions, copyrightable materials, trade secrets or other intellectual property that it owns or controls as of the date of the applicable PO or that it develops or acquires thereafter without the use or employment of the other Party’s Confidential Information.

Each Party hereby warrants to the other that it is in compliance and will comply with all applicable law, including but not limited to, applicable law pertaining to the rendering, sale, pricing, discounts, delivery, processing, manufacturing, packaging and labeling of the products and the performance of its obligations under these Terms and the applicable PO(s).

EXCEPT FOR EXPRESS WARRANTIES SET FORTH HEREIN, IMPERIAL DADE MAKES NO REPRESENTATIONS AND GRANTS NO WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, AND IMPERIAL DADE DISCLAIMS ANY OTHER WARRANTIES, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE, OR WARRANTY AS TO THE VALIDITY OF ANY PATENTS OR THE NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES.

(a) Each Party and its subsidiaries and affiliates, together with its respective officers, directors, employees, agents and contractors (the “Indemnifying Party”) shall indemnify, hold harmless, and defend the other Party and its subsidiaries and affiliates, together with its respective officers, directors, employees, agents and contractors (collectively, the “Indemnified Party”), from and against any and all losses, expenses, actions, claims, demands, suits, judgments, awards, damages, liabilities, costs, and reasonable attorneys’ fees the Indemnified Party may incur or suffer as a result of third-party claims caused by Indemnifying Party’s breach of these Terms or the applicable PO(s) or the gross negligence or more culpable acts or omissions of Indemnifying Party. Each Party shall have the right to be represented by counsel of its choice. (b) If either Party believes that indemnification is warranted under this Section, it must give prompt notice to the other Party and reasonably cooperate with the Indemnifying Party in the defense of the claims.

TO THE EXTENT ALLOWED UNDER APPLICABLE LAW, IMPERIAL DADE WILL NOT BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) OF ANY KIND, WHETHER ARISING IN TORT, CONTRACT, IMPOSED BY OPERATION OF LAW, STATUTE OR OTHERWISE, EVEN IF Imperial Dade KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, IMPERIAL DADE’S AGGREGATE LIABILITY HEREUNDER SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO IMPERIAL DADE UNDER THE PO GIVING RISE TO THE APPLICABLE CLAIM.

All disputes arising out of these Terms or the applicable PO shall be determined pursuant to the laws of the State of New Jersey, without giving effect to its principles of conflicts of laws. For purposes of determining such disputes, each Party may bring a legal action or proceeding exclusively in and irrevocably submits to the exclusive jurisdiction of (i) the Courts of the State of New Jersey (the “State Courts”) and (ii) if federal jurisdiction exists, the United States District Court for the District of New Jersey (the “Federal Court”), it being understood, however, that judgments, orders or decrees by or from the State Courts or the Federal Court may be appealed to or enforced in any competent court.

Imperial Dade shall not be liable to Customer for any default or delay in the performance of its obligations under these Terms or the applicable PO(s) if and to the extent such default or delay is the direct result of any cause or occurrence beyond the reasonable control of Imperial Dade (“Force Majeure”). In such event, Imperial Dade shall be excused from further performance of the obligation(s) so affected for as long as such circumstances prevail, and Imperial Dade continues to use commercially reasonable efforts to recommence performance whenever and to whatever extent possible.

Nothing in these Terms or any PO shall be deemed or construed by the Parties or by any third parties as creating a relationship of principal and agent, partnership, or joint venture between the parties, it being understood and agreed that no provision contained herein or act of the parties shall be deemed to create any relationship between the parties other than that of independent contractors.

Neither Party may assign these Terms or any PO without the other Party’s prior written consent; provided, however, that Imperial Dade may assign these Terms and any PO to an affiliate, subsidiary, parent, or a successor-in-interest through a merger or sale of all or substantially all of its assets or ownership interests. Any purported assignment in violation of this clause is void. These Terms and the PO(s) will be binding on applicable successors and assigns.

All notices under these Terms or any PO, other than routine communications, shall be in writing and shall be deemed to have been duly given (i) when personally delivered; (ii) when transmitted by email to the appropriate notice address; (iii) one business day after being duly tendered to an internationally-recognized overnight courier service for next business day delivery, delivery fee prepaid or charged to sender; or (iv) three business days after the day of mailing when mailed by certified mail, return receipt requested, postage prepaid—in each case to the following Party notice addresses: if to Imperial Dade - 255 Rt. 1 & 9, Jersey City, NJ 07306 Attn: VP Procurement/Purchasing, with a copy to Legal@imperialdade.com; if to Customer - at the address Customer provides to Imperial Dade for such notices or, if none, the publicly available address of Customer’s business headquarters. Each Party may change its notice address by giving the other Party ten (10) days’ prior written notice of such change.

The language used in these Terms shall be deemed to be the language chosen by the Parties to express their mutual intent. In the event that an ambiguity or question of intent or interpretation arises, these Terms shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any person or entity by virtue of the authorship of any of the provisions of these Terms.

Nothing in these Terms or any PO, express or implied, is intended to confer upon any other person any rights or remedies of any nature whatsoever under or by reason of these Terms or any PO, except as otherwise expressly provided herein.

All Product information and descriptions included on Imperial Dade’s website, Customer Portal, or mobile app (our “Platforms”) are provided or published by the manufacturer of the Product, including technical information, specifications, recyclability information, sustainability information, descriptions, recommendations, literature, and other materials (collectively, “Product Information”). This Product Information is included by Imperial Dade only for Customer’s convenience in Customer’s selection of Products from our Platforms. The accuracy or completeness of Product Information is not guaranteed and is subject to change without notice. Customer is solely responsible for evaluating and selecting Products and determining whether each Product is fit for a particular purpose, suitable for Customer’s use and method of application, and, where applicable, is recyclable in Customer’s specific geographic area or otherwise meets any sustainability requirements or goals applicable to Customer. Always check with your local recycling facility to confirm whether a Product is recyclable in your area. Products are not manufactured to any Customer requirements, requests, or specifications unless expressly agreed to in writing by Imperial Dade. No license under any Imperial Dade or third-party intellectual property rights is granted or implied with this Product Information. All products and items listed on our Platforms are referred to herein as 'Products'.

For any Stocked Products, as defined in the Terms, Customer agrees to the following terms and conditions:

• Imperial Dade, at its sole discretion, determines if Imperial Dade is willing to add any Stocked Product, the level at which a Stocked Product will be stocked, and the facility/facilities in which a Stocked Product will be stocked. Imperial Dade does not guarantee availability of any Stocked Product. Orders will be filled in the order in which they are received.
• Customer acknowledges and agrees that Imperial Dade is relying on Customer’s commitment to order, take delivery of, and pay Imperial Dade for Stocked Product in a timely manner, and that, at all times, Customer will purchase Stocked Product within ninety (90) days after Imperial Dade’s receipt into inventory. If Imperial Dade notifies Customer (which notification may be by email or phone call) of any Stocked Product that is in inventory for more than ninety (90) days, Customer will order, take delivery of, and pay for such Stocked Product within five (5) business days.
• Customer also agrees to promptly notify Imperial Dade of any Stocked Product discontinuation, change in usage, or change in Stocked Product requirements. Upon receipt of Customer’s notice of discontinuation or change in requirements, Imperial Dade will discontinue ordering such Stocked Product (hereinafter, “Discontinued Product”) and Customer will immediately purchase all remaining Discontinued Products, including products remaining in Imperial Dade inventory, products in transit, and products in production pursuant to orders issued by Imperial Dade prior to receiving Customer’s notice.
• Further, immediately upon termination of a PO for any reason, Customer shall order, take delivery of, and pay for all remaining Stocked Product. For the sake of clarity, remaining Stocked Product includes Stocked Product in Imperial Dade’s inventory, Stocked Product in transit, and Stocked Product in production pursuant to orders Imperial Dade issued prior to the date on which the notice to terminate the applicable PO was given.
• Customer agrees that for any Stocked Product not purchased as required herein, Imperial Dade is authorized by Customer to immediately invoice Customer for such Stocked Product at the pricing then in effect and, at Imperial Dade's choice, either: (i) ship such Stocked Products to Customer; or (ii) dispose of such Stocked Product in a commercially reasonable manner at Customer's cost and expense.