J.S. ELIEZER ASSOCIATES, INC.
U.S. Terms and Conditions of Purchase (Print)
These Terms and Conditions of Purchase (“Terms”) apply to and govern all orders for print and print related services (“Orders”) issued by J.S. Eliezer Associates and/or its affiliates (“JSEA”) to the supplier identified on each Order (“Supplier”) (each a “party”). All Orders are expressly subject to these terms and conditions and ACCEPTANCE OF AN ORDER BY SUPPLIER IS EXPRESSLY MADE CONDITIONAL ON ITS ASSENT TO THE TERMS AND CONDITIONS STATED HEREIN. JSEA objects to any terms proposed in Supplier’s proposal, sales note, acknowledgment or other document which add to, vary from, or conflict with the Terms. Any such proposed terms shall be void. These Terms, as supplemented by the agreed prices, specifications and delivery dates, shall constitute the entire agreement between JSEA and Supplier with respect to the subject of purchases by JSEA from Supplier.
Acceptance: All products and related work-in-progress will be subject to inspection and testing by JSEA and/or JSEA’s customer (the “Customer”) at any reasonable time and from time to time. Payment by JSEA for products shall not constitute acceptance. Inspection by JSEA or the Customer before, during, or after manufacture and delivery will not constitute a waiver of the right of subsequent rejection of products by reason of any undiscovered or latent defect.
Termination: JSEA reserves the right to terminate Order with reasonable written notice. In addition to any remedy provided at law or equity, JSEA shall have the right to terminate or cancel an Order, and any obligation to purchase, sell or provide a product or service, in the event Supplier (a) fails to comply with any condition of the Order or any related Agreement, and a cure or remedy acceptable to JSEA is not identified by Supplier and approved by JSEA within 3 business days of written notice thereof to Supplier and such failure is not cured or remedied accordingly; (b) becomes insolvent, makes an assignment for the benefit of creditors, suffers or permits the appointment of a receiver, trustee in bankruptcy or similar officer for all or parts of its business or assets; or (c) avails itself of or becomes subject to any bankruptcy proceeding under the laws or any jurisdiction relating to insolvency or the protection of rights of creditors.
Price: An Order must not be filled at a higher price than shown on the Order. Unless another currency is specified on the order, all monetary amounts are deemed to be expressed in U.S. dollars.
Changes in Specifications. JSEA may request changes in the specifications and scheduling of the Deliverables. If such changes result in a change in pricing or schedule, Supplier will notify JSEA of any such change as soon as practicable and Supplier will obtain JSEA’s approval before executing the change(s) to the Deliverables. If there is no change in pricing or schedule, Supplier will execute the change(s) to the Deliverables as soon as practicable.
Terms of Payment: Unless otherwise specifically set forth, JSEA shall pay invoices within forty-five (45) days from the date of the invoice. If JSEA pays an invoice within twenty (20) days from date of invoice, a two percent (2.0%) discount shall be applied (excluding freight costs). JSEA or any of its affiliates shall have the right to offset amounts owed by JSEA or any of its affiliates to Supplier against any amounts owed by Supplier to JSEA or any of its affiliates.
Title and Risk of Loss: Title and risk of loss to any work-in-progress and/or completed Deliverables will pass to JSEA upon the earlier of: (i) Supplier’s delivery to a carrier or the Postal Service F.O.B. Supplier’s shipping dock; or (ii) Supplier’s delivery into storage. Supplier will require its carriers to maintain at least $1,000,000 of cargo insurance. Supplier will assist JSEA in the processing of claims against such carriers for loss of or damage to goods in transit.
Confidentiality: All specifications, documents, artwork, or drawings delivered to Supplier by JSEA, and any other non-public information JSEA or Customer discloses to Supplier, remains the property of JSEA or Customer. The information is provided to Supplier solely for the purpose of Supplier’s performance of the Order and on the express condition that neither the Order nor the information contained therein or provided in connection therewith, including pricing, shall be disclosed to others nor used for any purpose other than in connection with the Order. JSEA reserves the right to request that Supplier return all such information to JSEA or destroy it. Supplier’s obligations under this paragraph shall survive the cancellation, termination or other completion of the Order.
Non-circumvent: Supplier will not transact business directly with Customer or any other JSEA end user for the services hereunder.
Consumption: Over-consumption and underconsumption of paper shall be reported to JSEA by Supplier. Ownership of any unconsumed portion of paper supplied by JSEA remains with JSEA. Supplier is responsible for excess consumption.
Warranties: Supplier warrants to JSEA and Customer that: (1) it will convey to JSEA good and marketable title to the products, free and clear of all liens and encumbrances; (2) the products and services will be free from any defects (latent or otherwise), will be of good and merchantable quality, will conform to JSEA specifications or the sample approved by JSEA, will conform with the quality standards of the industry, will conform with written representations or specifications previously made by Supplier, to the extent applicable; (3) Supplier’s employees are fully licensed, certified and bonded by Supplier as customary or required by law or industry practice; (4) Supplier will not violate or infringe or contribute to any infringement of any intellectual property rights, and (5) the products and services comply with and have been produced, delivered and sold in conformity with all applicable laws and regulations and Supplier has obtained all applicable licenses and permits. Supplier assigns to JSEA and Customer all warranties of third parties relating to the products and services. These warranties will survive inspection, delivery and payment and will run in favor of JSEA and Customer. If the products or services do not conform to the above warranties, JSEA may, in addition to its other remedies, retain such products or services at an adjusted price, return the products to Supplier for replacement, require reperformance of services, credit or refund. Supplier will reimburse JSEA for all costs and expenses incurred by JSEA or Customer in connection with the defective or otherwise nonconforming products and services (including return delivery of the products), and Supplier will assume all risk of loss or damage in transit to products returned by JSEA.
Taxes: The parties agree that the Deliverables produced in connection with each Order will be treated as “goods” for purposes of Article 2 of the Uniform Commercial Code of such state. Except to the extent that JSEA has provided an exemption certificate, direct pay permit or other such appropriate documentation, and if and as applicable, Supplier shall add to each invoice any applicable sales, use, excise, ad valorem, value added, or consumption or similar taxes imposed by any governmental authority for the purchase of the products and services provided by Supplier which Supplier is required by law to collect from JSEA. JSEA will not be liable for any taxes of any nature based on the income of Supplier.
Regulatory Compliance. Supplier will comply with all laws applicable in any jurisdiction in which any products or services are produced for, or delivered or provided to JSEA. JSEA and its agents will have the right to audit all aspects of the goods and services provided by Supplier, including, but not limited to, legal and regulatory compliance related to any operation where FSC, SFI or PEFC certified materials are manufactured, used, modified, labeled, re-labeled, packaged or re-packaged. If applicable, Supplier and any subcontractor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin.
Indemnity. Supplier will, at Supplier’s sole cost and expense, release, defend, indemnify and hold JSEA, Customer, their affiliates, directors, officers, agents, employees, and shareholders harmless from and against all claims, demands, disputes, complaints, causes of action, suits, losses and damages (including attorneys’ fees) of any kind to the extent they in any way relate to or arise, in whole or in part, due to (a) the acts or omissions of Supplier, its subcontractors, or agents or the employees of any thereof, in the performance of this Order or any breach or default hereunder, (b) a claim that the products or services Supplier provides are defective, (c) a claim that Supplier’s products or services, or any part thereof, infringes a patent, copyright, trademark, trade secret or other intellectual or proprietary right of a third party, or (d) any claim in connection to negligent or unauthorized use or release of any JSEA or Customer personally identifiable information or other obligation under HIPAA, CCPA, GDPR, GLB or any other statute or regulatory regime regulating personally identifiable information.
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY IN CONTRACT, TORT OR OTHERWISE, FOR ANY LOSS OF PROFITS OR BUSINESS, OR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, ARISING FROM OR AS A RESULT OF THESE TERMS, ANY ORDER OR ANY AGREEMENT BETWEEN THE PARTIES RELATING TO THE PRODUCTS, SERVICES OR DELIVERABLES SUPPLIER PROVIDES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Insurance: Supplier shall maintain and could be requested to provide certificates of insurance from companies meeting an A.M. Best rating of at least A- VII showing that Supplier and Customer are covered by A) Workers’ Compensation as required by law, including a waiver of subrogation in favor of JSEA; B)Employers Liability and Occupational Disease insurance with limits of $500,000 per occurrence; C) Commercial General Liability, including Products and Completed Operations, with limits of not less than $2,000,000 per occurrence for bodily injury and property damage; D) Auto Liability covering all autos with a limit of $1,000,000; and E) Professional Liability with a limit of $2,000,000 per claim. F) Property coverage insuring the replacement value of the Work and JSEA or Customer-furnished materials held at Supplier facilities. The Commercial General Liability policy shall name JSEA and Customer as an additional insured as its interest may appear, contain a cross liability (severability of interests) provision and be primary and non-contributory to any insurance available or maintained by JSEA. No exceptions to these coverages may be made unless approved in writing by JSEA. If requested, properly endorsed Certificates of Insurance may be sent to the following address: J.S. Eliezer Associates, Inc., 3 Manhattanville Road, Purchase, NY 10577. No provision under this section shall be construed or deemed to limit Supplier’s obligations under this Agreement to pay damages or other costs and expenses.
Force Majeure. Neither party will be liable for any delay or failure to perform hereunder if such delay or failure to perform arises out of a Force Majeure Event. “Force Majeure” is an event or circumstance that is beyond the reasonable control of a party and which renders performance hereunder partially or entirely impracticable or unreasonable (including as a result of increased expense). Force Majeure events include but are not limited to: fire, explosion, flood, tornado, hurricane or storm; plague, epidemic, pandemic, widespread infectious disease or public health emergency, acts of God, civil disturbance, war (declared or not), riots, sabotage, terrorism; restraints or injunctions issued by a court or other governmental entity, government acts or regulations; trade actions, imposition of duties, tariffs, quotas, anti-dumping actions; actions taken for reasons of national security, shortage or interruption of transportation, complete or partial manufacturer shutdown, general labor disturbance such as but not limited to strikes, lockouts or labor disputes or any other circumstance beyond a party’s reasonable control whether or not foreseeable or abatable or subject to mitigation, in each case whether affecting JSEA, Customer, Supplier or any logistics or other service provider in connection with the Services. Supplier’s economic hardship or changes in market conditions, or circumstances arising from Supplier’s use of an unapproved subcontractor are not considered Force Majeure events. Prompt notice of a Force Majeure Event shall be provided by the affected party to the other party.
Raw Materials Furnished by JSEA. Raw materials furnished by JSEA will comply with Supplier’s specifications, packing requirements and quality and manufacturing standards, if any. Additional costs due to failure to meet such standards will be charged to JSEA at Supplier’s standard rates. Semi-finished materials furnished by JSEA will include a manufacturing waste allowance specified by Supplier.
Production Schedules. Supplier will produce the Deliverables in accordance with mutually agreed upon schedules, subject to the timely receipt of production inputs and other materials from JSEA, Customer, and other third parties. Changes to existing schedules must be mutually agreed upon by the parties.
Mailing Services. For each mail piece requiring ink-jet printing of names and addresses for delivery through the United States Postal Service, JSEA shall furnish or caused to be furnished ink-jet formatted data compatible and in accordance with instructions and specifications provided by Supplier. If Supplier is required to provide data processing services to JSEA, it will do so in accordance with USPS regulations. Supplier will use such files to print names and addresses on each mail piece. Any reformatting, coding, combining of lists or other work necessary for Supplier’s use of JSEA’s or JSEA’s Customer data will be charged an additional amount if JSEA approves Supplier’s performance of such work.
Assignment. This Agreement binds and benefits the parties and their respective successors and permitted assigns and Customer is an express third party beneficiary of the provisions hereof. Except as provided below, neither party may assign any rights or delegate any responsibilities under this Agreement or use any subcontractor without the prior written consent of the other party which shall not be unreasonably delayed or withheld and any attempt to do so in violation of this Section is void.
Miscellaneous: No provision hereof or of any Acknowledgment may be modified, amended or rescinded unless by a written instrument executed by JSEA and Supplier. The failure of either party to insist in any one or more instances upon strict performance of any of the provisions of these Terms or to take advantage of any of its rights, shall not operate as a continuing waiver of such rights. This transaction shall be governed by the laws of the State of New York, without reference to the choice of law rules, and the Convention on Contracts for the International Sale of Goods shall not be applicable. Any legal action or proceeding concerning the validity, interpretation and enforcement of these Terms or any purchase of products by JSEA, matters arising out of or related to these Terms or any purchase of products by JSEA or related matters shall be brought exclusively in the courts of the State of New York in the County of New York or of the United States of America for the Southern District of New York, and all parties consent to the exclusive jurisdiction of those courts, waiving any objection to the propriety or convenience of such venues and THE PARTIES WAIVE TRIAL BY JURY IN ANY SUCH ACTION OR PROCEEDING. Process in any such action may be served by registered or certified mail addressed to a party at its last known address.