TERMS & CONDITIONS
All acknowledgments of orders, sales acknowledgements, invoices and other documents issued by Midland Paper Company, d/b/a MIDLAND (“Midland”) are subject to the Terms & Conditions (“Terms”) stated herein, which we may update from time to time. Please read these Terms carefully before purchasing products from 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 taxes that Midland may be required to pay or collect under any existing or future law upon or with respect to the sale, purchase, lease, delivery, storage, processing, use, consumption or transportation of any of the Goods or material purchased by you and covered hereby, including taxes upon or measured by the receipts from the sale thereof, shall be for your account.
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 fire, floods, accidents, pandemics, civil unrest, acts of God, war, governmental interference or embargos, strikes labor difficulties, shortage of labor, fuel power, materials or supplies, transportation delays, or any other cause or causes (whether or not similar in nature to any of these hereinbefore 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.
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. 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.
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