Imperial Brady Customer Terms And Conditions Of Sale

(a) These Terms and Conditions of Purchase (the “Terms”) apply to all purchases from Imperial Bag & Paper Co. LLC, Brady Industries, LLC, and their Affiliates, divisions and locations operating in the US, with principal offices located at 255 Rt. 1 & 9, Jersey City, NJ 07306 (collectively, “Imperial Brady” or “IB”) by the purchaser of products or goods (“Customer”)(such products or goods contemplated by these Terms or the applicable PO being referred to hereinafter as the “Products”). Customer and IB shall each be referred to as “Party” and together, as “Parties.” (For purposes of these Terms, “Affiliate” means any entity that directly or indirectly controls, is controlled by or is under common control with the subject entity. “Control” for purposes of this definition shall mean direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.) To order Products, Customer will issue a purchase order to IB, which purchase order shall set forth the mutually agreed upon list of Products, applicable pricing, and terms of delivery (the “PO”). Notwithstanding the foregoing, in all cases, Products shall be delivered FOB destination, freight collect, if applicable.

(b) For any Products that IB agrees to stock for Customer at IB’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 provided in Exhibit A.

(c) By accepting these Terms, Customer waives all terms and conditions contained in its quotation, acknowledgment, or other documents, including any preprinted terms in a Customer form purchase order or on Customer’s website, which are different from or additional to those contained herein; all such different or additional terms and conditions shall be null and void. These Terms constitute the entire understanding between the Parties as to the subject matter hereof and supersede all other prior and contemporaneous understandings of the Parties as to such subject matter, including any pre-printed or linked terms in a PO and any “clickwrap” or “clickthrough” agreements or terms linked by either Party, except where IB and Customer have a signed written contract for Customer’s purchase of Products from IB in which case, such signed written contract takes precedence over these terms in the event of a conflict. 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.

(a) Either Party, for convenience and without cause, may terminate a PO, in whole or in part, upon 60 days’ prior written notice.

(b) The non-defaulting Party, upon (i) a material breach of these Terms by the breaching Party and (ii) the breaching Party’s failure to cure within thirty (30) days’ following the non-defaulting Party’s written notice describing such breach, may terminate a PO, in whole or in part.

(c) 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 U.S. Bankruptcy Code, 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, may terminate a PO, in whole or in part.

(a) Customer shall pay IB in accordance with the pricing set forth in the applicable POs. Unless otherwise set forth in the applicable PO, IB 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 IB’s request, Customer shall submit a credit application to IB to demonstrate creditworthiness. Customer acknowledges and agrees that IB may refuse to deliver product to Customer without such demonstration of creditworthiness, and such refusal shall not result in any liability for IB.

(c) In order to comply with applicable federal, state, and local sales tax law requirements, Customer will deliver to IB, on or before the effective date of the applicable PO, 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 IB 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 IB to ship Products and not charge tax on such Products. Customer will indemnify IB for any costs incurred by IB due to Customer’s failure to provide (or delay in providing) exemption forms for any tax exemptions claimed by Customer. In the event Customer disputes any portion of an invoice—including but not limited to billing mistakes, mathematical errors, or misapplied taxes—Customer must provide IB with detailed written notice of the dispute within thirty (30) days of the invoice date. If Customer fails to notify IB within this 30-day period, the invoice shall be deemed true, accurate, and accepted in full and any future disputes regarding such invoice are waived.

(d) Notwithstanding any other provision in these Terms or any PO, upon termination or expiration of the applicable PO for any reason by either Party, Customer shall pay IB for all services, Products and deliverables provided under such applicable PO prior to the termination or expiration date.

(a) Products will be delivered within a reasonable time after IB’s receipt of a PO or as otherwise agreed upon in the PO. Overtime and other direct costs incurred to expedite delivery of Products at Customer’s request shall be added to the stated prices and paid by Customer. Unless otherwise agreed in writing by the parties, IB shall deliver the Products to Customer using IB's standard methods for packaging and shipping such Products. Customer shall provide equipment and labor reasonably suited for receipt of the Products and shall bear costs of same. Shipment of Products ready for delivery can be deferred beyond date for delivery only with IB’s consent and upon full payment of IB’s invoice for same, plus storage costs.

(b) Inspection.

(1) Customer shall inspect the Products within seven (7) days following receipt of the Products by Customer (the “Inspection Period”). Customer will be deemed to have accepted the Products unless it notifies IB in writing of any Products which do not conform to the Specifications (as defined in the applicable PO) within the Inspection Period and furnishes such written evidence or other documentation as reasonably required by IB. a) If Customer timely notifies IB of any nonconforming Products, IB shall, in its sole discretion, (i) replace such nonconforming Products with conforming Products, or (ii) credit or refund the price for such nonconforming Products, together with any reasonable shipping and handling expenses incurred by Customer in connection therewith. Customer shall ship, at its expense and risk of loss, the nonconforming Products to the location specified by IB. If IB exercises its option to replace nonconforming Products, IB shall, after receiving Customer's shipment of nonconforming Products, ship to Customer, at Customer's expense and risk of loss, the replaced Products to the Delivery Point (as defined in the applicable PO).

(2) Customer acknowledges and agrees that the remedies set forth in this Section 4 are Customer's exclusive remedies for the delivery of nonconforming Products. Except as provided under Section 4(b), all sales of Products to Customer are made on a one-way basis and Customer has no right to return Products purchased under the applicable PO to IB.

(c) Returns. Products may not be returned to IB for repair or replacement or credit, or otherwise, without IB’s prior written authorization and IB will/shall not accept any responsibility for Products returned without such authorization. All transportation costs incident to the shipment of any material to or from IB under these Terms shall be charged to the Customer, unless the subject Products are determined to have been defective. Customer shall bear the risk of loss for all Products returned to IB.

(a) Each Party acknowledges and agrees that in the course of performance under these Terms, 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 these Terms, 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 under these Terms 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 an 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 these Terms 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 effective 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 Receiving Party; (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 effective date of these Terms or 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 sale, pricing, discounts, and delivery of the products and the performance of its obligations under these Terms.

EXCEPT FOR EXPRESS WARRANTIES SET FORTH IN THESE TERMS, IB MAKES NO REPRESENTATIONS AND GRANTS NO WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, AND IB 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 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, IB 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 IB KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, IB’S AGGREGATE LIABILITY UNDER THESE TERMS SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO IB UNDER THE PURCHASE ORDER GIVING RISE TO THE APPLICABLE CLAIM.

All disputes arising out of these Terms 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.

EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THESE TERMS. FURTHERMORE, THE PARTIES AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION.

IB shall not be liable to Customer for any default or delay in the performance of its obligations under these Terms if and to the extent such default or delay is the result of any of the following (“Force Majeure”): fire, flood, earthquake, elements of nature or acts of God; riots, civil disorders, rebellions or revolutions in any country; pandemic; strikes or work stoppages; supply chain disruptions; government action, including but not limited to new or increased tariffs or duties; economic hardship, including hardship caused by government action or events impacting the market, such as a material increase in raw material costs; or any other similar or dissimilar cause or occurrence beyond the reasonable control of IB. In such event, IB shall be excused from further performance of the obligation(s) so affected for as long as such circumstances prevail, and IB continues to use commercially reasonable efforts to recommence performance whenever and to whatever extent possible.

Nothing in these Terms 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 without the other Party’s prior written consent; provided, however, that IB may assign these Terms 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 will be binding on applicable successors and assigns.

No waiver of any breach or default of the Terms hereof shall (i) be effective unless in writing and signed by the waiving Party, or (ii) constitute a waiver of any other or further breach or default hereof.

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 (in the case of IB, to Legal@imperialdade.com); (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 IB - 255 Rt. 1 & 9, Jersey City, NJ 07306 Attn: Legal Department, with a copy to Legal@imperialdade.com; if to Customer - at the address Customer provides to IB 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, 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, except as otherwise expressly provided herein.

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

• IB, at its sole discretion, determines if IB 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. IB 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 IB is relying on Customer’s commitment to order, take delivery of, and pay IB for Stocked Product in a timely manner, and that, at all times, Customer will purchase Stocked Product within ninety (90) days after IB’s receipt into inventory. If IB 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 IB 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, IB will discontinue ordering such Stocked Product (hereinafter, “Discontinued Products”) and Customer will immediately purchase all remaining Discontinued Products, including products remaining in IB inventory, products in transit, and products in production pursuant to orders issued by IB prior to receiving Customer’s notice.
• Further, immediately upon termination of the applicable 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 IB’s inventory, Stocked Product in transit, and Stocked Product in production pursuant to orders IB 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, IB is authorized by Customer to immediately invoice Customer for such Stocked Product at the pricing then in effect and, at IB’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.