Within 24 hours after receipt of a Boxout, LLC ("Boxout") purchase order ("PO"), Supplier must notify Boxout of acceptance of the PO via email or fax as provided on the PO. If Supplier neither accepts nor rejects an Boxout PO in 24 hours, any conduct by Supplier that recognizes the existence of the terms pertaining to the Boxout PO shall constitute an acceptance by Supplier of the PO. If this PO has been issued by Boxout in response to an offer by a Supplier to sell Products to Boxout and if any of these Terms and Conditions are additional to or different from any of the terms of that offer, then the issuance of this PO by Boxout shall constitute an acceptance of the offer subject to the express condition that a Supplier agrees to these additional and different Terms and Conditions and Supplier shall be deemed to have so consented unless Supplier notifies Boxout to the contrary in writing within 24 hours of receipt of this PO.
POs are not subject to cancellation or modification by Supplier after acceptance. PRICES: The prices set forth on the face of this PO are not subject to increase.
Invoices and Terms of Payment
All invoices shall be submitted in duplicate and be accompanied by a copy of the bill of lading if on collect freight shipments or if otherwise required by law and by a prepaid freight bill if all or any part of the freight is included on the face of the invoice. Invoices and packing slips shall also contain the following information: PO number, item number, description of Products, sizes, quantities, weight, unit prices and extended totals. Boxout shall make payment in U.S. funds for goods and services within 60 days after receipt of invoice and delivery and acceptance of the Products, unless different terms have been stated on the face of this PO. Payment of an invoice shall not constitute acceptance of the Products and shall be subject to adjustment for errors, shortages, defects in the Products, damage to Boxout for which Supplier is partially or wholly responsible, or other failure of Supplier to meet the requirement of this PO.
The Products must be received on the dates and at the destinations set forth on the face of this PO. Time is of the essence. If Supplier fails to meet any designated delivery date, Boxout may without limiting its other rights and remedies direct expedited routing, charge excess costs incurred thereby to Supplier or cancel all or any part of this PO.
Title and Risk of Loss
Supplier shall be responsible for freight and delivery to the destinations specified on the face of this PO unless otherwise set forth on the PO. All freight and delivery charges will be paid by Supplier. Supplier shall also bear all risk of loss and damage to the Products until final acceptance by Boxout at Boxout’s "ship to" destination specified on the PO.
All Products shipped in accordance with these Terms and Conditions shall be subject to final inspection by Boxout within a reasonable time after receipt at the destination. If any of the Products do not meet all requirements of the PO, Boxout shall have the right to reject the Products and return them to Supplier at Supplier’s expense. If only a portion of the Products ordered are nonconforming, Boxout shall have the right to reject the entire shipment.
Supplier warrants that all Products furnished hereunder shall (i) be free from defects and workmanship, material manufacturer and design (unless Boxout has specified a design); (ii) comply with the requirements of this PO, including all specifications incorporated herein; (iii) be merchantable and safe for consumer use and fit and sufficient for the use intended by Boxout; (iv) be free and clear of any liens, security interest or other adverse claim against title; (v) comply with all the laws of the states and of the United States governing weights, measures and sizes; (vi) not be adulterated or misbranded within the meaning of any state food and drug laws or the federal Food, Drug and Cosmetic Act and not be an article that may not under the provisions of Section 404 or 405 of the federal act or any other applicable federal, state or local laws be sold, legally transported or introduced into interstate commerce; and (vii) not infringed any United States or foreign patents, trademarks, trade secrets, copyrights or proprietary rights of any third party. The foregoing warranties are in addition to all other warranties, express or implied, and shall survive any delivery, inspection, acceptance and payment by Boxout. Boxout shall also have the right to pass the Supplier’s warranties on to its customers. Supplier warrants that all products will be manufactured in compliance with all applicable federal, state and local laws, rules and regulations.
Remedies for Breach of Warranty
If any Products furnished hereunder do not meet the warranties specified, Boxout may at its option (i) require Supplier to correct at no cost to Boxout any defective or nonconforming Products by repair or replacement within seven (7) days of notice to Supplier; or (ii) return the defective or nonconforming Product at Supplier’s expense to Supplier and recover from Supplier the price thereof; (iii) correct the defect or nonconforming Products and charge Supplier with the cost of correction; or (iv) accept the defective or nonconforming Products at a reduced price.
Supplier shall keep in strict confidence all Proprietary Information that is disclosed to the Supplier by Boxout, which Supplier acquires or to which Supplier has access, whether or not the information is marked as confidential or proprietary. Proprietary Information shall mean trade secrets as defined in any state laws, data, reports, business plans, specifications, drawings, designs or information transmitted by Boxout to Supplier in connection with this PO and any other information that is of value to its owner and is treated as confidential, including the facts and circumstances concerning this PO. This PO shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Neither this PO nor any interest in it shall be assigned, delegated or otherwise transferred by Supplier except upon the prior written consent of Boxout, and any assignment of transfer without that consent shall be void and of no effect. Boxout may assign its rights or obligations under this PO to any Boxout affiliate or successor without Supplier’s consent.
Indemnity and Insurance
Supplier shall defend, indemnify and hold Boxout, its affiliated companies and their respective shareholders, officers, directors, employees, agents, successors and assigns, harmless from and against any and all claims, suits, actions, liabilities, losses, costs, reasonable attorneys’ fees, expenses, judgments or damages, whether ordinary, special or consequential arising directly or indirectly from or in connection with the acts, negligence, omission or willful misconduct of Supplier, the Products supplied hereunder, a breach of any of the Supplier’s warranties or any other terms or conditions of this PO, Supplier’s negligent, unauthorized or wrongful acts or omissions with regard to the transportation, use, handling, disposal, processing or installation of hazardous materials, a claim that any goods or services furnished hereunder infringe upon or misappropriate any patent, copyright, trademark, trade secret or other intellectual property interest of another, or a claim of any lien, security interest or other encumbrance made by a third party or a violation of federal or state law, regulation, statute or ordinance or a failure to comply with the confidential obligations set forth above. Supplier shall maintain insurance coverage satisfactory to Boxout to cover its obligations under this PO and upon request shall submit to Boxout certificates of insurance showing proof of coverage. All policies shall name Boxout as an additional insured.
Boxout may, at any time, terminate this PO, in whole or part, without cause, upon written notice to Supplier. Upon a termination, Supplier shall, to the extent specified by Boxout, stop all work on this PO and cause any subcontractors to stop work. Charges to Boxout for any termination of this PO shall be limited to actual, non-recoverable costs incurred by Supplier that Supplier can demonstrate were incurred directly in connection with fulfilling this PO prior to the date of termination. In no event will Boxout reimburse Supplier for costs in excess of those required to reasonably meet Boxout's requested delivery schedule for product actually ordered under this PO (as opposed to any product forecast that may have been given by Boxout, which in no event shall be binding or be taken into consideration in determining any reimbursement under this paragraph). In no event shall reimbursement include anticipated or lost profits or revenue or other economic loss for undelivered products. Boxout may also terminate this PO, whole or part, if Supplier fails to make delivery of the products within the time specified on the PO or fails to replace or correct defective goods in accordance with the provisions of this PO or fails to perform any provisions of this PO or fails to make progress to endanger performance in accordance with its terms or becomes insolvent, files or has filed against it a petition in bankruptcy or makes an assignment for the benefit of creditors. Any termination shall not release Supplier from any liability under the terms of this PO.
Limitation of Liability
In no event shall Boxout be liable for special, incidental or consequential damages or lost profits. Any action resulting from any breach on the part of Boxout must be commenced within one year (1) after the cause of action has occurred.
Marketing and Publicity
Supplier shall not issue or make, or cause to have issued or made, any public release, announcement, advertisement or marketing materials, concerning its agreement with Boxout or any of the transactions contemplated by this PO without the advance approval in writing of the form and substance thereof by the President and Chief Executive Officer of Boxout.
Governing Law; Jurisdiction
Any dispute that arises between Supplier and Boxout concerning these terms and conditions or any other aspect of their relationship shall be interpreted and construed in accordance with the laws of the State of Ohio without regard to conflict of laws or provisions applying the laws of other jurisdictions. In addition, both Supplier and Boxout hereby irrevocably consent to the exercise of personal jurisdiction by the U.S. District Court for the Northern District of Ohio, the Common Pleas Court of Summit County, Ohio, or the Municipal Court of Cuyahoga Falls, Ohio and agree that any lawsuit arising from or any matter connected to any dispute between the parties of the interpretation or enforcement of these terms and conditions shall only be prosecuted in one of those Courts.
*Please note, that where appropriate, a contract can supersede the PO terms.