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BILL AS SHIP AGREEMENTTHIS BILL AS SHIP AGREEMENT (the "Agreement") is made and entered into this _______ day of February, 1997, by and between DISTRIBUTOR COMPANY., a ____ Corporation (herein referred to as "Seller") and CLIENT COMPANY, a _____ Limited Partnership (herein referred to as "Buyer").
W I T N E S S E T H T H A T:
WHEREAS, Buyer needs various printed specialized form documents for its business purposes (the "Forms"); and
WHEREAS, Seller is in the business of designing, formatting and printing form documents; and
WHEREAS, Buyer from time to time orders its Forms from Seller in quantities large enough to fulfill its long term needs; and
WHEREAS, Seller will store the Forms at its warehouse facilities and invoice Buyer for the documents as Buyer needs them shipped to its different facilities; and
WHEREAS, the parties wish to have a definitive agreement defining their rights and responsibilities as to the ordering of the Forms, the storage of the Forms, invoicing for the Forms, and when an order must be paid in full.
NOW, THEREFORE, the parties hereto agree as follows:
1. Contract to Purchase Whole Order. Seller's commencement of work on Buyer's Forms shall bind the parties hereto to an enforceable contract for the purchase and sale of the entire order of Forms regardless of when Buyer receives the Forms. The date of Buyer's purchase order shall be considered the "Order Date" for each set of Buyer's Forms. Buyer acknowledges that it is obligated to pay for all Forms ordered on any of its purchase orders accepted by Seller within one (1) year of the Order Date.
2. Approval of Proofs. On all orders of new Forms, Buyer shall be provided with a proof, Seller shall not begin its production run of the Forms until the proof has been approved and signed off on by Buyer. Once the proof is signed off by Buyer, Buyer agrees to accept the Forms so long as the document conforms to the proof. On orders where the Buyer requests an exact repeat of a previously manufactured document, then no proof shall be provided and Seller shall run the Form in substantially the same format as the previously manufactured document. Buyer agrees to accept exact repeat Forms that conform with the previously manufactured document.
3. Storage by Seller. Seller agrees to store Buyer's Forms at its warehouse facilities as an accommodation to Buyer. Seller will invoice Buyer for its Forms as they are shipped from Seller's warehouse facilities. The price for the Forms shall be as set forth in Buyer's purchase order or in Seller's acceptance, whichever is higher. Buyer agrees to pay for all delivered Forms net thirty (30) days from receipt at Buyer's place of business. Provided, however, that in the event any Forms remain in storage with Seller one (1) year after the Forms' Order Date, then Seller shall be entitled to invoice Buyer for the entire remaining stock of Forms from the order, and Buyer shall pay for the Forms net thirty (30) days from Seller's invoice date. Seller shall hold the Forms until shipping instructions are given by Buyer, however, Seller shall not be responsible for any Forms stored with Seller for more than three (3) years after their Order Date.
4. Deliveries. Deliveries of Forms shall be made by Seller out of Buyer's stock in Seller's warehouse facilities. Deliveries shall be made to locations within _____ County, ______ within five (5) days of Seller's receipt of written shipping instructions from Buyer. Deliveries by Seller to ______County locations shall be at no cost to Buyer. Freight from printing plants to Seller's warehouse facilities or for deliveries outside of ______ County shall be at Buyer's sole cost. A breach or default by Seller in any one (1) shipment shall not impair the value of an order, nor shall the breach or default be deemed a breach of the entire purchase agreement. 5. Destruction of Buyer's Forms. Should Buyer's Forms be destroyed because of any casualty or accident at Seller's warehouse facilities, then Buyer shall be released from its obligation to purchase the destroyed Forms, and Seller shall have no liability whatsoever for its failure to deliver the destroyed documents including any direct, incidental or consequential damages that might arise from Buyer's inability to have the Forms as and when needed.
6. Other Agreements. The terms and conditions of this Agreement shall supersede any contrary terms or conditions in Buyer's offer to purchase the Forms and in Seller's acceptance or counteroffer to sell the Forms. All terms and conditions, including price, warranties, representations and quantity of Forms shall be governed by Buyer and Seller's other agreements regarding the sale of the Forms.
7. Buyer's Duty to Inspect. Buyer shall inspect the Forms within five (5) days of their arrival and give immediate written notice to Seller of any claim that the Forms do not conform with the approved proof or with the previously manufactured document, whichever the case may be, or of any discrepancy in the quantity shipped. If Buyer shall fail to give such notice, the Forms shall be deemed to conform with the terms of the parties agreement, and Buyer shall be bound to accept and pay for the Forms in accordance with the terms of that agreement. Buyer expressly waives any rights Buyer may have to revoke acceptance after such five (5) day period.
8. No Right to Set Off. All amounts owed by Buyer hereunder shall be unconditional. Buyer expressly waives any set off rights it may have to sums due under this Agreement.
9. Binding Effects and Benefits. This Agreement shall be binding upon, and shall inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and assigns. 10. Authority. The parties executing this Agreement represent that they have the full authority to bind their respective corporations thereby, and all appropriate and necessary corporate action has been taken in order to authorize the transactions contemplated by this Agreement.
11. Amendments. This Agreement may not be altered, amended or modified except pursuant to a written instrument executed by all the parties hereto.
12. Attorney Fees. If legal actions or other proceedings, including arbitration proceedings, are brought for the enforcement of this Agreement or because of an alleged breach, default, or misrepresentation in connection with the provisions hereof, the prevailing party shall be entitled to recover its reasonable attorneys' fees and other costs incurred in such action or proceeding from the unsuccessful party in addition to any other relief to which it may be entitled, and the unsuccessful party covenants and agrees to pay to the prevailing party the same.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above written.
DISTRIBUTOR COMPANY
a ____ Corporation
By__________________________________________
_________, Vice President
"Seller"
CLIENT COMPANY
By__________________________________________
Name:____________________________________
Title:____________________________________
"Buyer"