TERMS & CONDITIONS
Your access of the websites on which these terms reside (collectively, the “Site”), the acknowledgments of orders, sales acknowledgements, invoices and other documents issued by Midland that refer to these Terms & Conditions (“Terms”), and the features at this Site are all subject to these Terms, which we may update from time to time. Please read these Terms carefully before using this Site or purchasing products from Midland Paper Company, also doing business as Midland Paper Packaging & Supplies (“Midland”).
Goods and Transactions
All transactions for the sale of goods (the “Goods”) by Midland through any method, whether by telephone, mail, e-mail, text, fax or over the internet, are subject to these Terms. Midland warrants that the goods sold as identified on any Sales Invoice shall conform to the description of them as included on the Sales Invoice and that the Goods shall be of Midland’s standard quality thereof. THIS WARRANTY IS IN LIEU OF, AND MIDLAND HEREBY DISCLAIMS, ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE GOODS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, WARRANTIES ARISING FROM COURSE OF DEALING OF TRADE USAGE, OR ANY OTHER MATTER. Your exclusive remedy for claims arising hereunder shall be for damages in the form of return of all or a portion of the purchase price, as appropriate. Midland’s liability for any and all losses and damages to you resulting from any cause whatsoever, including but not limited to, Midland’s negligence, alleged damage or defective goods irrespective of whether such defects are discoverable or latent, shall in no event exceed the invoice price of the Goods as stated on the Sales Invoice with respect to which losses or damages are claimed, or, at the election of the Midland, the reworking, repair or replacement, FOB. Midland’s factory, of the Goods shown in the judgment of Midland to be defective, provided that the Goods are returned to Midland’s factory by you, transportation prepaid. Midland shall not be liable for any reworking, repairs or replacements performed or promised without the prior written consent of Midland. IN NO EVENT SHALL MIDLAND BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR COST OF COVER, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE, AND EVEN IF MIDLAND IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. No claim arising hereunder shall be considered by Midland, and Midland shall have no liability therefor, unless you send written notice to Midland of any such claim within thirty (30) days from the date of shipment and before the Goods have been further processed or otherwise altered or modified by you in any way. Any such claims for loss or damage to the Goods must be specifically noted in writing to Midland by the warehouseman or representative at the customer’s location on the packing slip or bill of lading and received by Midland within 30 days after the Goods have left Midland’s custody. In the event that this order evidences a joblot or oddlot sale of damaged and/or salvaged goods, such goods are purchased, “AS IS,” “WHERE IS,” AND WITHOUT ANY, AND MIDLAND HEREBY DISCLAIMS ALL, REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH GOODS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, WARRANTIES ARISING FROM COURSE OF DEALING OR TRADE USAGE, OR ANY OTHER MATTER.
Midland reserves the right at all times to invoice the Goods at the prices in effect at the time of shipment. Pro rata payments shall be made as shipments are made. Cancellations will be accepted only at Midland’s option, and any acceptance by Midland shall be in writing and subject to payment by you of cancelation charges as determined by Midland in its sole discretion.
No claim for alleged price overcharge, shortages or other errors shall be considered by Midland, and Midland shall have no liability therefor, unless you send written notice to Midland of any such claim within twenty- four (24) hours after tender of delivery of the Goods sold hereunder.
Any use tax, sales tax, excise tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever imposed by any governmental authority, on or measured on the sale, purchase, lease, delivery, storage, processing, use, consumption or transportation of any of the Goods purchased by you and covered hereby shall be your responsibility and paid by you. In the event Midland is required to pay any such tax, fee or charge, you shall reimburse Midland therefore or, in lieu of such payment, you shall provide Midland prior to the time the Goods are purchased an exemption certificate or other document acceptable to the authority imposing the tax, fee or charge. However, if such exemption certificate or other documentation that you provide to Midland is subsequently determined to be invalid or nonapplicable by the federal, state or local authority imposing the tax, fee or charge then you will indemnify and reimburse Midland for any tax, fee or charge, including any interest and penalty, assessed as a result thereof.
The Goods sold hereunder shall be at your own risk from the time they are duly delivered to the carrier at the point of shipment.
Midland shall not be liable for any failure of or delay in performance, or for any damages suffered by you by reason or such failure or delay, when such failure or delay is, directly or indirectly, caused by, or in any manner arises from strikes, lockouts, fires, riots, floods, pandemics, accidents, inability to secure transportation, acts of God, war conditions, governmental interference or embargos, acts of terrorism, including but not limited to cyber security or malicious computer system breaches or any other causes of delay beyond our control which are often referred to as force major events or any other cause or causes (whether or not similar in nature to any of these herein before specified) beyond Midland’s control.
The order as stated on an applicable Acknowledgement of Order or Sales Invoice is accepted with the understanding that it is subject to Midland’s ability to obtain the necessary raw materials, as well as subject to Midland’s current manufacturing schedules and government regulations, orders, directives and restrictions, that may be in effect from time to time.
Midland shall have the right, in addition to all other rights and remedies it may possess under applicable law, at any time, for credit reasons or because of your default or defaults, to withhold shipments in whole or in part, and to recall goods in transit, retake same, and repossess all of the Goods which may be stored with Midland for your account, without the necessity of taking any other proceedings and your consents that all of the Goods so recalled, retaken or repossessed shall become the absolute property of Midland, provided that you are given full credit thereunder.
In addition to any applicable late charges provided in any invoice relating hereto, you shall further pay all costs and expenses, including, but not limited to, reasonable attorney’s fees, court costs and collection costs, that Midland may incur in connection with the enforcement by Midland of any available remedy, including, but not limited to, any action by Midland for all or any portion of the price of the goods sold hereunder, all or any portion of any other sum due by you hereunder, or recovery by Midland of any products sold to you by Midland.
You may not assign your rights hereunder without the prior written consent of Midland. In the absence of such written consent, no such assignment shall be effective, and at Midland’s option, shall effect a cancellation of all Midland’s obligations hereunder. This order shall be binding on, and inure to the benefit of, the parties and their successors and assigns.
No prior purchase order or other form of written document from you, and no subsequent acceptance or acknowledgment hereof by you, shall be effective to the extent any such prior purchase order, other form of written document or subsequent acceptance or acknowledgment varies the terms hereof or proposes additional terms of any nature whatsoever, and Midland hereby rejects the terms of any such prior purchase order or other form or written document or acknowledgement. Midland’s obligations hereunder and otherwise to you are hereby expressly conditioned upon your consent to all of the terms, provisions, covenants and conditions contained on the front and reverse sides of this order, including these Terms. Your order, Midland’s Acknowledgment of Order (if issued), and any invoice relating thereto constitute the entire contract between the parties, and no termination, modification or amendment thereof shall be valid unless the same shall be in writing and signed by Midland. In the event any terms of any Sales Invoice, Acknowledgment of Order, Sales Confirmation, or Sales Packing Slip may contradict any Terms stated herein, the Terms hereof shall control.
The validity, interpretation and legal effect on this order and any invoice relating hereto shall be governed by, and the rights and liabilities of the parties hereto and thereto shall be determined in accordance with, the laws of the State of Illinois, without regard to conflicts of law principles.
ANY GOODS OR SERVICES DESCRIBED ON THE SITE ARE OFFERED ONLY IN JURISDICTIONS WHERE THEY MAY BE LEGALLY OFFERED FOR SALE. THE INFORMATION ON THE SITE IS NOT AN OFFER OR SOLICITATION BY ANYONE IN ANY JURISDICTION IN WHICH AN OFFER OR SOLICITATION CANNOT LEGALLY BE MADE, OR ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE A SOLICITATION.
If any provision of your order proves to be or becomes invalid or unenforceable under any applicable law, then such provision shall be modified to the extent necessary in order to render such provision valid and enforceable; if such provision may not be so saved, then it shall be severed, and the remainder of this order shall remain in full force and effect. No waiver of any breach of any provision of an order shall constitute a waiver of any other breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
All the terms, provisions, covenants and conditions contained in the applicable Sales Invoice and/or Acknowledgment of Order shall be deemed to be accepted and agreeable by you unless Midland receives written notice from you, within ten (10) days after the date of mailing of the Acknowledgement of Order, but before delivery of the Goods, that same are unacceptable.
Both you and Midland acknowledge and agree that no partnership is formed and neither of you nor Midland has the power or the authority to obligate or bind the other.
These Terms will be governed by and construed in accordance with the laws of Illinois without regard to conflicts of laws principles. By purchasing the Goods from Midland, you hereby agree that any and all disputes arising out of or under the relationship between you and Midland, including these Terms, will be litigated in the applicable state or federal courts located in Cook County, Illinois. YOU AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL DISPUTES, CLAIMS, AND CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH YOUR RELATIONSHIP WITH MIDLAND AND/OR THESE TERMS, WILL BE RESOLVED INDIVIDUALLY, WITHOUT RESORT TO ANY FORM OF CLASS ACTION. These Terms operate to the fullest extent permissible by law.
The failure of Midland to comply with these Terms because of an act of God, war, fire, riot, terrorism, earthquake, actions of federal, state or local governmental authorities or for any other reason beyond the reasonable control of Midland, shall not be deemed a breach of these Terms.
If Midland fails to act with respect to your breach or anyone else’s breach on any occasion, Midland is not waiving its right to act with respect to future or similar breaches.
These Terms constitute a binding agreement between you and Midland, and is accepted by you upon your purchase of the Goods from Midland or use of the Site. These Terms constitute the entire agreement between you and Midland regarding all transactions for the Goods.. You represent that you are capable of entering into a binding agreement, and that you agree to be bound by these Terms.
The Site is owned or controlled by Midland. The Site is intended for and applicable only for residents of the United States, age eighteen (18) or older. If you are from another jurisdiction or under eighteen (18) years of age, you may not use the Site. By accessing the Site in any way, including, without limitation, browsing the Site, using any information, and/or submitting information to Midland, you agree to and are bound by the Terms, including, but not limited to, conducting this transaction electronically, disclaimers of warranties, damage and remedy exclusions and limitations, and a choice of Illinois law.
From time to time we may update the Site and the Terms. Your use of the Site after we post any changes to the Terms constitutes your agreement to those changes. You agree to review the Terms periodically to ensure that you are familiar with the most recent version. Midland may, in its sole discretion, and at any time, discontinue the Site or any part thereof, with or without notice, or may prevent your use of the Site with or without notice to you. You agree that you do not have any rights in the Site and that Midland will have no liability to you if the Site is discontinued or your ability to access the Site or any content you may have posted on the Site is terminated.
Content on the Site that is provided by Midland or its licensors, including certain graphics, photographs, images, screen shots, text, digitally downloadable files, trademarks, logos, product and program names, slogans, and the compilation of the foregoing (“Midland Content”) is the property of Midland and its licensors, and is protected in the United States and internationally under trademark, copyright, and other intellectual property laws.
You agree not to download, display or use any Midland Content located on the Site for use in any publications, in public performances, on websites other than the Site for any other commercial purpose, in connection with products or services that are not those of Midland, in any other manner that is likely to cause confusion among consumers, that disparages or discredits Midland and/or its licensors, that dilutes the strength of Midland’s or its licensor’s property, or that otherwise infringes Midland’s or its licensors’ intellectual property rights. You further agree to in no other way misuse any Midland Content or third party content that appears on the Site.
Use of the Site
The following requirements apply to your use the Site: (a) you will not use any electronic communication feature of the Site for any purpose that is unlawful, tortious, abusive, intrusive on another’s privacy, harassing, libelous, defamatory, embarrassing, obscene, threatening, or hateful; (b) you will not upload, post, reproduce, or distribute any information, software, or other material protected by copyright or any other intellectual property right (as well as rights of publicity and privacy) without first obtaining the permission of the owner of such rights; (c) you will not collect or store personal data about other users; (d) you will not use the Site for any commercial purpose not expressly approved by Midland in writing; (e) you will not upload, post, email, or otherwise transmit any advertising or promotional materials or any other form of solicitation or unauthorized communication; and (f) you will not upload, post, email, or otherwise transmit any material that contains viruses or any other computer code, files, or programs which might interrupt, limit, or interfere with the functionality of any computer software or hardware or telecommunications equipment.
You agree to indemnify and hold Midland, its parents, subsidiaries, officers, employees, and website contractors and each of their officers, employees and agents harmless from any claims, damages and expenses, including reasonable attorneys’ fees and costs, related to your violation of the Terms or any violations thereof by your dependents.
Using the Site and Your Account
Certain areas of the Site, including the Customer Portal, may require registration or may otherwise ask you to provide information to participate in certain features or access certain content. If you elect not to provide such information, you may not be able to access certain content or participate in certain features of the Site or any features at all. If the Site requires you to create an account or otherwise submit information, you agree that you will provide accurate and complete information for your user account; that you will not impersonate a third party in your communications with Midland; that you will submit information only about yourself or those for whom you are authorized to submit information, including your employees; and that you will otherwise comply with the Terms. It is your responsibility to maintain the currency, completeness, and accuracy of your registration data, and any loss caused by your failure to do so is your responsibility. You may not authorize any other person or entity to use your account or to access restricted or protected content or features available at the site.
You are solely responsible for the activity that occurs on your account, including all transactions and other activities undertaken with your device, whether authorized or unauthorized. You must keep your user account, username, and password secure. You must notify Midland immediately of any breach of security or unauthorized use of your account. You further agree not to email, post, or otherwise disseminate any user ID, password, or other information which provides you access to the Site. Midland is not liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. Midland shall not be responsible for any losses arising out of the loss or theft of user information transmitted from or stored on a computer or device or from unauthorized or fraudulent transactions associated with the Site.
You understand that you have no ownership rights in your account or other access to the Site or features therein. Midland may terminate your access to the Site, cancel your account and/or delete all information associated with your account, including any materials you may have submitted to Midland, at any time, and without notice, for any reason, including if Midland deems that you have violated the Terms, the law, or for any other reason. Midland assumes no liability for any information removed from the Site, and it reserves the right to permanently restrict access to the Site or a user account.
You agree that Midland and Midland’s third-party vendors may collect and use technical and usage data and related information, including, but not limited to, technical information about your device, date and time of Site access, system and application software, and peripherals, that is gathered periodically to, among other things, facilitate the provision of software updates, product support, and other services to you (if any) related to the Site. You grant Midland the permission to use this information to improve its products or to provide services to you.
Representations, and Limitations of Liability
Midland makes no representations about the reliability of the features of th Site, the Content, or any other feature of the Site, and disclaims all liability in the event of any service failure. You acknowledge that any reliance on such material or systems will be at your own risk. Midland makes no representations regarding the amount of time that any Content will be preserved.
THE SITE IS PROVIDED ON AN “AS IS, AS AVAILABLE” BASIS. NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE MADE WITH RESPECT TO THE SITE OR ANY INFORMATION OR SOFTWARE THEREIN. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL MIDLAND BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SITE, NOR SHALL MIDLAND BE RESPONSIBLE FOR ANY DAMAGES WHATSOEVER THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE WHETHER OR NOT CAUSED BY EVENTS BEYOND MIDLAND’S REASONABLE CONTROL, INCLUDING, BUT NOT LIMITED TO, ACTS OF GOD, COMMUNICATIONS LINE FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO THIS SITE’S RECORDS, PROGRAMS, OR SERVICES. UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO A NEGLIGENT ACT, WILL MIDLAND OR ITS AFFILIATES OR AGENTS BE LIABLE FOR ANY DAMAGE OF ANY KIND THAT RESULTS FROM THE USE OF, OR THE INABILITY TO USE, THE SITE, EVEN IF MIDLAND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; AS A RESULT, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
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