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Supplier Terms and Conditions

Terms and Conditions

Effective December 1, 2009

PARTIES – Onyx Specialty Papers, Inc shall be referred to as “BUYER” and the person or company providing materials or services shall be referred to as “SUPPLIER”.

1. DEFINITIONS - Agreement means a paper or electronic agreement between BUYER and SUPPLIER duly executed by authorized representatives of both parties to sell or provide and to buy or use goods or services pursuant to which a Purchase Order is issued by the BUYER.Contract means the Agreement, if any, Purchase Order, all paper or electronic documents incorporated by reference under the Agreement and the Purchase Order, these terms and conditions themselves and any confidentiality or secrecy agreement executed by BUYER and SUPPLIER, and all exhibits and amendments to all such documents. Items mean any goods or services to be provided or performed by SUPPLIER under the Contract. Price means the amount to be paid by BUYER to SUPPLIER under the Contract for the Items.

2. ACCEPTANCE - SUPPLIER’S acceptance of any Purchase Order shall be expressly limited to the terms of the Contract, and BUYER objects to any contrary term contained in any quotation, order, acknowledgment, invoice or other document originating with SUPPLIER. Any terms and conditions in any Purchase Order, any release order, acknowledgement, invoice or other paper or electronic document, other than the Agreement, issued by either SUPPLIER or BUYER are superseded by these terms and conditions. By shipping goods or performing services after receipt of a Purchase Order, SUPPLIER shall conclusively be deemed to be bound by these terms and conditions and all other provisions of the Contract.

3. BLANKET ORDER - If the Purchase Order is designated by BUYER as a blanket order, BUYER shall be obligated to purchase only those quantities of Items which it specifically requests under separate subsequent release orders issued by BUYER to SUPPLIER.

4. PRICE - The Price shall be that stated in the Purchase Order unless such price exceeds the Price stated in the Agreement, if any, or the lowest price at which SUPPLIER is selling Items or similar items to its other customers as of the date of delivery to BUYER, in which case the lower price shall control. If there is no price stated in the Purchase Order or Agreement, the Price shall not be higher than that last charged or quoted BUYER for such Items by SUPPLIER. If prior to delivery of the Items, BUYER is able to purchase a portion or all of the Items, or similar items of like quality, at a price which is less than the Price, BUYER shall notify SUPPLIER. Should SUPPLIER fail to meet such lower price within 3 days , BUYER may, at its option, purchase from the other source at the lower price, in which event BUYER and SUPPLIER shall be released of their obligations under the Contract in respect of that portion of the Items or similar items purchased from the other source.

5. DRAWINGS AND SPECIFICATIONS - Any specifications, drawings, notes, instructions, engineering information, or technical data furnished by either BUYER or SUPPLIER to the other, or referred to in the Contract shall be incorporated herein by reference. SUPPLIER shall be fully and solely responsible for obtaining product data adequate to design, manufacture, fabricate, construct and deliver the Items in compliance with all requirements of the Contract. BUYER shall retain title to all such documents which it provides or causes to be given to SUPPLIER, and SUPPLIER shall not use any of such documents or the information contained therein for any purpose other than in performance of the Contract. SUPPLIER shall not disclose such documents or information to any party other than BUYER or a party duly authorized by BUYER. Upon BUYER’s request, SUPPLIER shall promptly return to BUYER all such documents and copies thereof.

6. DELIVERY - The SUPPLIER shall deliver the Items to BUYER on the date(s) indicated in the Purchase Order. If SUPPLIER anticipates that it will not deliver the Items on the date(s) indicated, SUPPLIER shall immediately notify BUYER by the fastest available means of the anticipated failure and the anticipated actual delivery date. If SUPPLIER fails to make delivery of any part of the Items on the date(s) indicated in the Purchase Order, the BUYER may terminate the Contract and pursue other remedies. All shipments shall be delivered F.O.B. to the destination designated by BUYER in the Purchase Order, and title and risk of loss shall remain with SUPPLIER until the Items in a completed state are received by BUYER, its agent or consignee regardless of whether or not BUYER has made full payment for the Items. SUPPLIER will mail Bills of Lading and Shipping Notices directly to the F.O.B. destination on the day of shipment. Bills of Lading shall indicate the relevant purchase order number. BUYER may require adherence to its routing instructions, and any savings resulting from adherence to such instructions shall be for the benefit of BUYER. SUPPLIER, or the carrier it uses to deliver Items, whichever is applicable, shall (a) maintain a “satisfactory” safety rating from the U.S. Department of Transportation and shall provide BUYER with written proof of such rating on request if the carrier is a motor carrier, and (b) shall maintain comprehensive general liability, bodily injury and property damage insurance in not less than the amount required by the Insurance Section, unless a larger amount is required by any federal, state, or local regulatory agency, in which event such larger amount shall be maintained.

7. WARRANTY - SUPPLIER warrants that the Items will (a) be of merchantable quality; (b) be fit for the BUYER’s particular purposes; (c) be of high quality and be free from defects in material and workmanship; (d) comply with the most stringent of BUYER’s or SUPPLIER’S specifications, performance guarantees and requirements; and (e) comply with all nationally recognized codes and established industry standards. All Items shall be sold by SUPPLIER to BUYER free and clear of any liens and encumbrances. SUPPLIER’S warranties and guarantees shall survive inspection, delivery and acceptance of the Items and/or payment by BUYER. If the Items do not conform to any of these warranties, then, at BUYER’s option, SUPPLIER shall repair or replace the defective Items, F.O.B. BUYER’s designated site at SUPPLIER’S expense, or in the case of services, re-perform the services at SUPPLIER’S expense. In the event that, in the reasonable opinion of BUYER, SUPPLIER cannot repair or replace the Items, or re-perform the services, within a reasonable time, then BUYER may take all steps necessary to have the breach of warranty cured and/or may terminate the Purchase Order and/or the Contract. In any event, SUPPLIER shall be responsible for all expenses and damages which BUYER incurs because of the breach of warranty. The foregoing warranties and obligations shall also apply to the Items supplied by SUPPLIER in such repair, replacement or re-performance. Disclaimers of express or implied warranties and limitations of liability in any SUPPLIER document will be of no effect unless specifically agreed to in writing by BUYER, and even then shall not apply in the event of bad faith by the SUPPLIER in the performance of the Contract.

8. CHANGES - BUYER shall have the right to make changes (including additions and/or omissions) from time to time in the Items, any specifications and/or drawings which are a part of the Contract, method of shipment or packing and/or the time and/or place of delivery. BUYER shall give SUPPLIER written notice of any such change which notice may include any increase or decrease in the cost of or the time required for performance of the Contract determined by BUYER to be appropriate. If SUPPLIER does not agree with such adjustments, or if the notice does not contain any such adjustments, SUPPLIER shall still be obligated to proceed immediately with all of the changes directed by BUYER without waiting to reach an agreement on any such adjustments. Any claims by SUPPLIER for adjustments after its receipt of BUYER’s change order must be asserted in writing to BUYER not more than ten (10) days after such receipt by SUPPLIER or such claim shall be null and void.

9. PAYMENTS AND INVOICES - The specific terms of payment for all Items are stated in the Purchase Order or Agreement. Unless otherwise specified there or in a separate written instrument signed by BUYER, no invoice shall be issued by the SUPPLIER prior to the shipment or performance of the Items covered thereby, and no payment shall be made prior to receipt of such Items and of a proper invoice for such Items. SUPPLIER shall indicate the appropriate BUYER purchase order number on the invoice and shall deliver it to the address specified by BUYER from time to time. All claims for money due or to become due from BUYER shall be subject to set-off by BUYER by reason of any counterclaim arising out of this Contract or any other transaction with SUPPLIER.

10. INSPECTION – BUYER may inspect any Items ordered hereunder during their manufacture, construction or preparation at reasonable times and shall have the right to inspect such Items at the time of their delivery and/or completion. Items furnished hereunder may at any time be rejected for defects revealed by inspection or analysis even though such Items may have previously been inspected and accepted. Such rejected Items may, at BUYER’s option, be returned to SUPPLIER for full refund to BUYER, including removal, shipping and transportation charges.

11. PATENTS - The SUPPLIER shall indemnify and hold harmless the BUYER, its customers, contractors and agents from any and all claims for infringement of any patent, copyright or trademark by reason of the design, manufacture, purchase, use or sale of the Items and shall indemnify the BUYER for all costs, expenses, judgments, liability and damages, including attorneys’ fees, which the BUYER may incur or have rendered against it by reason of any alleged infringement. BUYER reserves the right to be represented in any infringement proceeding. In the event an injunction is obtained against use of the Items, SUPPLIER shall do any of the following requested by BUYER: (a) procure for BUYER the right to continue using the Items; (b) replace the Items with equivalent or better non-infringing Items; (c) modify the Items, so that they become non-infringing, provided they perform in an equivalent or better manner.

12. COMPLIANCE WITH LAWS AND REGULATIONS - SUPPLIER warrants that neither any of the Items provided to BUYER nor their manufacture, fabrication, construction, transportation or use shall violate or cause BUYER to be in violation of any federal, state or local law, code, ordinance, regulation, standard, rule, requirement or order. In the event of any conflict between the provisions of any laws, codes, ordinances, regulations, standards, rules, requirements or orders described in this Section, the more or most stringent provisions shall apply. SUPPLIER shall promptly take, at its expense, all action necessary to make all Items comply with the applicable Federal, State or local laws, codes, ordinances, regulations, rules, standards, requirements or orders after SUPPLIER receives either from the applicable agency or from BUYER a notice that some violation exists with respect to the Items. If SUPPLIER fails to promptly take such action, BUYER may take all such action at SUPPLIER’S expense. SUPPLIER shall also be liable for the payment of any penalties and/or fines imposed as a result of the failure of any Item provided by or for SUPPLIER hereunder to comply with all of the above requirements.

13. EQUAL EMPLOYMENT OPPORTUNITY AND OTHER NONDISCRIMINATION CLAUSES - This provision applies only in the event that the Items are to be used in whole or in part for the performance of United States government contracts and where the dollar amount exceeds, or may in any one year exceed, $10,000, or when required by the Federal Acquisition Regulations. SUPPLIER hereby agrees that the provisions of the Equal Opportunity Clause, as promulgated by Executive Order 11246 dated September 24, 1965, as amended; the Vietnam Era Veterans Readjustment Assistance Act of 1974, Section 503 of the Rehabilitation Act of 1973; and the implementing regulations found at 41 C.F.R. 60-1 and 2, 41 C.F.R. 60-250, and 41 C.F.R. 60-741; as well as 48 C.F.R. 52.219-8, Utilization of Small, Small Disadvantaged and Women-Owned Business Concerns (June 1997); 48 C.F.R. 52.219.9, Small, Small Disadvantaged and Women-Owned Business Subcontracting Plan (August 1998); 48 C.F.R. 52.222-35, Affirmative Action for Special Disabled and Vietnam Era Veterans (April 1984); 48 C.F.R. 52.222-37, Employment Reports on Special Disabled Veterans and Veterans of the Vietnam Era (January 1988); and 48 C.F.R. 52.222- 36, Affirmative Action for Handicapped Workers (April 1984), are hereby incorporated by reference into the Contract, with the same force and effect as if they were given in full text. The full text is available upon request. SUPPLIER shall execute and deliver to BUYER a completed Certificate of Compliance using BUYER’s form of Certificate before starting to perform under the Contract.

14. ONYX SPECIALTY PAPERS, INC. PRINCIPLES OF CONDUCT – Onyx Specialty Papers, Inc. is committed to conducting its business with the highest ethical standards in compliance with applicable federal, state, and local laws in the countries in which it conducts business.

Onyx Specialty Papers, Inc.  requires that its SUPPLIERS comply with all applicable laws, legal requirements, and regulations of the country in which the SUPPLIER does business. SUPPLIERS are also required to comply with the following Principles of Conduct.

Compensation (Wages and Benefits) – Onyx Specialty Papers, Inc. requires that SUPPLIERS comply with all applicable wage and hour laws, including laws and regulations as they relate to minimum wages, overtime, piece work, maximum days/hours worked per week and compensation which is legally mandated as well as applicable employee benefits.

Forced, Prison, Involuntary Labor – Onyx Specialty Papers, Inc. will not tolerate, in the production of its products, the use of forced labor in any form including slave, prison, indentured or bonded labor.

Child Labor – Onyx Specialty Papers, Inc. will not tolerate the exploitation or use of children as workers. Onyx Specialty Papers, Inc. shall not contract with any company which employs individuals at an age younger than 15 years of age. However, in no event shall any personal under the legal employment minimum age be employed.

Discrimination – Onyx Specialty Papers, Inc will not tolerate discrimination on the basis of race, color, religion, disability, gender, social and ethnic origins, age, material status, political beliefs, sexual orientation or military status.

Harassment – Onyx Specialty Papers, Inc. is committed to providing a work environment that is free from harassment including verbal, physical, or sexual harassment. Threats or acts of retaliation against workers will not be tolerated. At all times, workers will be treated with respect and dignity.

Workplace Safety – Onyx Specialty Papers, Inc. is committed to providing a safe work environment for workers. Workers are expected to adhere to the applicable laws, regulations, and company policies in order to ensure safe working conditions.

Environment – Onyx Specialty Papers, Inc. is committed to maintaining environmental standards that meet or exceed those established by federal and local laws and regulations.

Freedom of Association – Onyx Specialty Papers, Inc. recognizes and respects the rights of workers to freely associate, including the right to join labor union organizations, and raise concerns related to employment issues.

Product Safety/Product Quality – Onyx Specialty Papers, Inc. is committed to providing quality products which meet established product safety standards in order to satisfy the needs of its customers.

Publication – SUPPLIERS will ensure that appropriate actions are taken to timely communicate these Principles of Conduct to all workers. This includes posting these Principles of Conduct in the language of the workers as well as English in areas where workers may regularly view these Principles. In addition, managers and supervisors shall receive an individual copy of these Principles of Conduct and training on its provisions.

Any worker with any knowledge of violation of these Principles may contact Onyx Specialty Papers, Inc.

15. LIENS - If at any time there shall be evidence of the existence of any such lien or claim for work done or materials, services or equipment furnished by SUPPLIER or any other party in connection with the Contract, the BUYER may use money then due or to become due under the Contract to discharge such lien or satisfy such claim and may credit such amounts against the amounts due or to become due to the SUPPLIER.

16. INDEMNIFICATION a. Indemnity. SUPPLIER agrees to defend, indemnify, protect, and hold harmless Onyx Specialty Papers, Inc.  and Onyx Specialty Papers, Inc.’s customers, affiliates, employees, agents, servants, and representatives from and against any and all claims, damages, losses, liabilities, and expenses, including reasonable attorney’s fees and costs, of whatever nature, arising out of or relating to: (i) the breach by SUPPLIER of any covenant, representation, or warranty contained in this Agreement; (ii) the breach by SUPPLIER of any covenant, representation, or warranty contained in any Attachment or Addendum forming a part heretoor (iii) any negligent act or omission, or willful misconduct of SUPPLIER or its agents, employees, or subcontractors. Onyx Specialty Papers, Inc.  shall notify SUPPLIER of any such claim,-suit, or proceeding, and will assist (at SUPPLIER’S expense) in the defense of the same. b. Intellectual Property Indemnity. SUPPLIER agrees to defend, indemnify, protect, and hold harmless Onyx Specialty Papers, Inc., and Onyx Specialty Papers, Inc.’s customers, affiliates, employees, agents, servants, and representatives from and against any and all claims, damages, losses, liabilities, and expenses, including reasonable attorney’s fees and costs, of whatever nature, resulting from a claim or allegation that the use or sale of a Product infringes or otherwise violates an intellectual property right of any third party. If Onyx Specialty Papers, Inc. has reason to believe that the use or sale of a Product or any part thereof is likely to be enjoined by a court, SUPPLIER will use best efforts to either procure for Onyx Specialty Papers, Inc.  the right to continue using the Product, or replace the Product with an equivalent non-infringing product. If after using best efforts, the first two options are not commercially reasonable, SUPPLIER may remove the Product, and refund to Onyx Specialty Papers, Inc. the purchase price of the Product and reimburse Onyx Specialty Papers, Inc. for any related costs.

17. INSURANCE SUPPLIER shall take out and maintain with a carrier or carriers acceptable to BUYER the following minimum insurance at its expense for the duration of the Contract (including all warranty periods thereunder) covering all of SUPPLIER’S obligations under the Contract:: (a) Workers’ Compensation – Statutory; (b) Employer’s Liability – Bodily Injury by Accident – $1,000,000 each accident; Bodily Injury by Disease – $1,000,000 each employee; Bodily Injury by Disease – $1,000,000 policy limit; (c) Commercial General Liability (Bodily Injury and Property Damage, including premises, contractual, products liability or completed operations coverage) $1,000,000 in the aggregate; $1,000,000 each occurrence in the aggregate with a single excess umbrella coverage of not less than $5,000,000 for combined bodily injury and property damage; (d) Business Automobile Liability – Bodily and Property Damage, $1,000,000 combined single injury limit and each occurrence None of the above insurance coverage shall be cancelable except upon thirty (30) days prior written notice to the BUYER and to all other insured parties, and SUPPLIER shall provide BUYER with a copy of any such cancellation notice immediately after SUPPLIER’S receipt of it. SUPPLIER shall include BUYER as an additional insured on all liability insurance. In addition to the provisions of the Indemnity Section above, in the event of a lawsuit or claim by an employee of SUPPLIER or of any of its subcontractors against BUYER, or any of BUYER’s agents, officers, directors, or employees for any injury (including, but not limited to death) or disease arising out of, related to, or claimed to have arisen out of or to have been related to the employee’s employment in the performance of the Contract, SUPPLIER, on behalf of itself and its Workers’ Compensation carrier, hereby transfers and assigns to BUYER and shall cause each of its subcontractors to transfer and assign to BUYER any and all liens or subrogation rights that it, they or its or their insurers may have for Workers’ Compensation benefits paid to the employee. SUPPLIER also waives, for itself and its insurers, all rights of recovery against BUYER and its employees which SUPPLIER or its insurers may have for any loss related to the Items that is insured against herein. On BUYER’s request, SUPPLIER shall provide certificates of insurance and renewals evidencing such insurance coverage.

For all on-site service providers, a copy of the SUPPLIER’S Workers Compensation Policy must be on file with the Procurement Group of the BUYER.

18. TERMINATION, SUSPENSION OR DELAY - BUYER shall have the right at any time to terminate, suspend, or delay the Contract in whole or in part by prior written notice to SUPPLIER. In the case of termination of the Contract, SUPPLIER shall then transfer to BUYER, in accordance with BUYER’s directions, all materials and all information accumulated, specifically prepared or acquired by SUPPLIER for use in the performance of this Contract. The SUPPLIER shall, if directed by the BUYER and to the extent stated in the notice of termination, suspension or delay, make all efforts necessary to preserve the work in progress and to protect the Items whether still at SUPPLIER’S manufacturing facilities or in transit to BUYER’s facilities. If SUPPLIER is not then in default in the performance of any of its obligations hereunder, and if SUPPLIER has taken reasonable steps to mitigate its damages resulting from such termination, BUYER shall pay to SUPPLIER, as SUPPLIER’S sole and exclusive remedy for termination under this Section, to the extent not already paid to SUPPLIER, an amount equal to: (a) the reasonable and documented costs incurred by SUPPLIER in accordance with the Contract prior to SUPPLIERS’ receipt of notice of termination, plus, (b) the reasonable and documented costs and charges incurred by SUPPLIER in winding up its activities under the Contract prior to the effective termination date, provided, however, that the amounts listed in (a) and (b) of this Section plus prior payments to SUPPLIER shall in no event exceed the Price. Before BUYER resumes performance under the Contract following such suspension or delay, SUPPLIER and BUYER shall negotiate in good faith on the adjustments, if any, which may be required in payments to SUPPLIER or in the Price to avoid inequities either to SUPPLIER or BUYER.

19. DEFAULT - If the SUPPLIER: (a) becomes insolvent; (b) has a petition under any chapter of the bankruptcy laws filed by or against it; (c) makes a general assignment for the benefit of its creditors; (d) has a receiver requested for or appointed to it; (e) fails to comply with any of its obligations under the Contract then BUYER may, in addition to its rights under the Warranty Section above, at its option either cure the default at SUPPLIER’S expense or terminate the Contract after first giving SUPPLIER ten (10) days written notice to cure such default, if SUPPLIER has failed to cure such default within such ten (10) day period. Immediately after such termination, BUYER may: (i) take possession of the Items wherever they may be located and in whatever state of completion they may be together with all drawings and other information necessary to enable BUYER to have the Items completed, installed, operated, maintained and/or repaired; (ii) pay to SUPPLIER any amount then due under the Contract after taking full credit for any offsets to which BUYER may be entitled; (iii) contract with or employ any other party to finish the Items; and (iv) collect from the SUPPLIER any additional expense, losses or damage which BUYER may suffer.

20. BUYER’S RIGHTS AND REMEDIES - Any rights or remedies granted to BUYER in any part of the Contract shall not be exclusive of, but shall be in addition to, any other rights or remedies granted in any other part of the Contract and to any other rights or remedies that BUYER may have at law or in equity.

21. PACKING AND MARKING – All goods shall be packed, crated and braced to prevent damage or deterioration and in accordance with Uniform Freight Classification Rules and Regulations, and Carrier Tariffs with no charges being paid by BUYER for packing, crating or bracing. The contents of each shipping container shall be clearly identified on the outside of the container, and the applicable Purchase Order number for the contents shall be clearly stated on the outside of each such container.

22. CONFIDENTIAL TREATMENT – SUPPLIER shall not disclose in any advertisement or promotional material or in any other manner, without the prior written consent of BUYER in each instance that BUYER has purchased or contracted to purchase the goods or services ordered.

23. ASSIGNMENT - SUPPLIER may not assign the Contract or any right thereunder without the prior written consent of BUYER. BUYER may assign the Contract to any of its affiliated companies or any third party who acquires the BUYER’s business to which the Contract pertains.

24. WAIVER - The failure of either party hereto to require strict compliance with or complete performance of any obligation of the other party hereto by such other party shall not be construed as a waiver of any subsequent breach by such other party.

25. ENTIRE AGREEMENT - The Contract sets forth the entire agreement between SUPPLIER and BUYER on the subjects covered herein, and, except as otherwise provided above in the Changes Section, no terms, conditions, understanding or agreement purporting to modify or vary the terms of the Contract shall be binding unless made in writing and signed by SUPPLIER and BUYER. In the event of any conflict between any provision of these Terms and Conditions and any other provisions of the Contract, these Terms and Conditions shall prevail or control unless (a) the conflicting provision in such other document expressly states that it supersedes these Terms and Conditions or (b) the conflicting provision is in a paper or electronic Purchase Order issued by BUYER or an Agreement, in which event such conflicting provision shall prevail or control over these Terms and Conditions and over any conflicting provision in any other part of the Contract. No course of prior dealings between the parties or any trade usage shall be relevant to supplement or explain any term used herein.

26. SEVERABILITY - In the event that any words, phrase, clause, sentence or other provision of the Contract shall violate any applicable statute, ordinance or rule of law in any jurisdiction in which it is used, such provision shall be ineffective to the extent of such violation without invalidating any other provision of the Contract.

27. GOVERNING LAW - This Agreement shall be governed and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to principles of conflicts of laws. The United Nations Convention on Contracts for International Sales of Goods shall not apply to this Agreement.

Contractors are expected to report to work with all the tools and equipment necessary to complete the planned work and any related task or tasks normally performed by their trades. Contractor use of Onyx tools and equipment is to be by exception, not the rule, and will be dealt with on a case by case basis. Any borrowed equipment must be done with the notification and permission of the contractor’s Onyx contact and only if the contractor takes complete responsibility for the equipment’s condition and accepts all liability for any loss,damage or harm which may occur through the contractor’s use of the equipment. Onyx makes no representations or statement as to the character, fitness for a particular purpose, condition, quality, or characteristics about the equipment and Onyx is not a merchant of the equipment as defined in Article 2.104(1) of the uniform commercial code. If using the equipment, the contractor agrees that its use of the equipment is at the contractor’s sole risk.