Essendant Terms of Sale - Azerty (“Terms of Sale”)

Credit Applications

Essendant reserves the right to extend or withhold lines of open account credit based on the customer’s (“Customer’s”) payment history, record of trade payments, financial condition, amount of credit needed, and such other factors as Essendant in its sole discretion deems appropriate. Essendant may require Customer to provide financial, credit and other similar information (e.g., Dun & Bradstreet or Business Products Credit Association) for the establishment or continuation of credit. Essendant may also require personal guarantees and/or other security interests. All orders are subject to credit approval by Essendant. Unless otherwise agreed in writing by Essendant, Essendant may in its sole discretion at any time, change the terms of Customer’s credit, require payment in cash, wire transfer or official bank check and/or require payment of any or all amounts due or to become due for Customer’s order at or before shipment of any or all ordered products.

Inquiries about credit requirements should be addressed to Essendant Co., One Parkway North Blvd., Suite 100, Deerfield, IL 60015-2559.

Resale Certificates

In order to comply with state and local sales tax law requirements, Customer must provide to Essendant properly executed resale certificate exemption form(s) for all states where Customer is registered for sales tax purposes. If any tax free purchase under Customer’s resale certificate(s) is used in any manner that would not exempt the sale from tax, Customer will be responsible for either paying the tax due directly to the proper taxing authority when the applicable state law so provides or informing Essendant for added tax billing. Resellers withdrawing items from stock for personal consumption are responsible for self-assessing use tax in accordance with applicable state law.

Separate resale certificate exemption form(s) must be provided for each of Customer’s legal entities that does business with Essendant. The forms must identify Customer’s legal entity information as registered for tax purposes, Customer’s federal employer identification number, and any names utilized as “doing business as” (DBA) names. Customer’s state resale registration number(s) should be listed for every state in which Customer is registered for sales tax purposes. The form must have an authorized signature and be dated to be effective. Essendant will set up separate bill-to account numbers on its system for purchases by each of Customer’s legal entities.

Past Due Accounts

1. If Essendant believes in good faith that Customer’s ability to make payments may be impaired or if Customer fails to pay any invoice when due, Essendant may suspend delivery of any order or any remaining balance thereof until such payment is made or may cancel any order or any remaining balance thereof, and Customer will remain liable to pay for any products already shipped or any “not listed” or other products specially ordered by Essendant for Customer.
2. Essendant will charge Customer interest up to the maximum permitted by law on all past due amounts until paid in full.
3. If Customer fails to make payment when due, Essendant may pursue any legal or equitable remedies, and Essendant will be entitled to reimbursement from Customer for all collection costs, including reasonable attorneys’ fees and costs, incurred by Essendant. Essendant will assess a service charge of $50.00 on any returned checks.

Pricing

1. Essendant may adjust its prices at any time in light of supplier price increases, changes in transportation, administration, warehousing or other expenses. or other market factors. Essendant recommends that Customer confirm Essendant’s current pricing via Azerty.com, Empower Central, ICAPS, price file downloads or Customer’s Essendant Sales Representative before ordering, particularly for orders of products such as paper, computer hardware and electronics that have historically been subject to significant price fluctuations.
2. Essendant reserves the right to correct errors in price and quantity appearing in any document or electronic transmission with respect to any products.
3. Essendant reserves the right to change the terms of its price plans at any time without notice, including, without limitation, changing the identity and number of Products within any price plan, the units of measure in which Products are available for sale thereunder, the Product order quantities at which volume-based unit price reductions are available or other pricing terms and conditions applicable to any Products.
4. In order to qualify for any Volume Cash Discount/Customer Buying Plan, freight and pricing programs offered by Essendant, Customer must maintain its account on a current basis and must comply with the other program terms Essendant establishes from time to time.
5. All prices are exclusive of sales, use, excise and value-added taxes, any license fees, document fees or import duties and similar taxes, charges or assessments with respect to the sale, handling and delivery of the products, and Customer will be responsible for paying all such taxes, assessments and charges.

Drop Shipments

Essendant offers drop shipment service. Customer may request drop ship service at time of ordering. Essendant will fill and pack Customer’s order and ship it to Customer’s customer. Shipment can be specified to be made from any of Essendant’s distribution points. Only Customer’s name appears on its customer’s label and packing list—Essendant’s name does not appear anywhere on the shipment.

As a general rule, the laws of the states where shipments are delivered determine whether sales tax will be due on a drop shipment transaction. In certain states Essendant is required by law to collect sales tax for drop shipments into that state if Customer is not registered there, and the applicable sales tax law provides that Customer’s out-of-state resale certificate(s) is not sufficient to exempt the transaction from sales tax.

ADOT and DOT Orders (Automatic Dealer Order Transfer)

When placing merchandise orders from the Regional Distribution Center that services Customer’s account, Customer may elect to have any out-of-stock items transferred from another Regional Distribution Center without having to reorder them.

Regionally Stocked Merchandise Not Shown in Essendant’s Catalog

Because of regional demand, some items that are not listed in Essendant’s catalog may be stocked in one or more of Essendant’s Regional Distribution Centers. Customer may order such items by specifying to Essendant’s order taker or indicating as such on Customer’s purchase order.

Merchandise Shipped from Manufacturer (S.S. ITEMS)

Some items that Essendant does not stock will be shipped directly to Customer from the manufacturer. Such items will be indicated “SS” (shipped separately) on the packing list. Allow extra time for delivery. SS items are cannot be returned except in cases of error by Essendant or the manufacturer.

Not-Listed (N.L.) Special Order Merchandise

As an accommodation, Essendant will attempt to obtain merchandise that is not listed on Azerty.com, Empower Central, in ICAPS, price file downloads, through Customer’s Essendant Sales Representative or that is not stocked in any Essendant Distribution Centers, subject to the following provisions:

1. Not listed special order merchandise will be shipped separately. When manufacturer’s policy allows, shipments will be made directly from the manufacturer to the customer.
2. Customer’s order for N.L. merchandise must meet Essendant’s and the manufacturer’s minimum dollar and/or unit quantity requirements.
3. All orders will be invoiced once confirmation of shipment is received.
4. Such merchandise is not subject to return except in cases of Essendant’s error or that of the manufacturer.
5. Such merchandise is not subject to any other discounts or rebates.
6. For all furniture NL orders, contact Essendant’s customer service department. Furniture NL merchandise is FOB point of shipment.
7. For all non-furniture NL merchandise, call Essendant’s Special Order Services Department at 1-800-788-2266, option 2. Non-furniture NL merchandise is shipped freight prepaid.

Disposition of Out-of-Stock Merchandise Orders

1. Estimated Time of Arrival from Factory
   • On items known to be out of stock at the time Customer’s order is entered into Essendant’s computer, a 3-digit figure will be shown in the column headed “Estimated Time of Arrival From Factory” on the packing list. This is the date (expressed in terms of the Julian calendar) Essendant expects this item to return to stock based on latest factory shipping information. NOTE: The Julian date is usually found at the bottom of each page on desk calendar pads. Example: JAN. 1 is 001; FEB. 1 is 032, DEC. 1 is 335.
   • If the estimated time of arrival date is prior to Customer’s order date, the shipment is past due from the factory and Essendant is checking for a new arrival date.
   • Estimated time of arrival dates are subject to change based upon revised manufacturer’s shipping information.
2. Customer has the option to back order merchandise at Customer’s assigned shipping facility (or closest ADOT facility). As back ordered merchandise becomes available, it will be shipped with Customer’s next stock order.
3. On occasion Essendant experiences protracted shipping delays from manufacturers. In such cases, back orders over 120 days old automatically will be cancelled.
4. There will be no back orders on non-listed or drop shipped merchandise.
5. A back ordered item that is in stock at the time the next order is placed is immediately added to that order as soon as it is entered. Customers also have the option of canceling or holding these back orders at the end of their order.

Transportation

Essendant will use reasonable efforts to initiate shipment as close as possible to Customer’s requested ship dates. Any delivery date of products is approximate, is provided by Essendant for the convenience of Customer, and is not binding on Essendant. Unless otherwise agreed in writing by Essendant or otherwise specified in any Essendant price plans or catalog terms, all shipments by Essendant are F.O.B. point of origin. Product prices do not include freight and handling; for all orders, including drop ship and ADOT orders, Essendant will bill freight and handling in accordance with the freight plan for which Customer qualifies. Delivery of the products to the designated F.O.B. point of origin carrier will constitute delivery to Customer and risk of loss will thereupon pass to Customer. Essendant reserves the right to make deliveries in installments. Delay in delivery of one installment will not entitle Customer to cancel other installments.

Inspection, Acceptance and Return of Products

Customer is responsible for inspecting and accepting products. Customer can reject and return any portion of an order that is damaged, defective or otherwise fails to conform to the goods specified in the Customer’s order, subject to the following requirements:

• Customer must send all returns accompanied by a Essendant issued Return Authorization
• All returned products must be received in resalable condition (including no markings or labels attached to the cartons) and in the original manufacturers’ shipping cartons, complete with all packing and associated materials.
• Essendant will not accept any returns from Customer for product that is designated as “Non-Returnable Item”. A complete listing of non-returnable items can be found in ICAPS, which you can access through Azerty.com or Solutions Central.
• Customer must request a Return Authorization and return the merchandise to Essendant within the following time frames:
  • 30 days from date of invoice for returns due to customer error (such as ordering the wrong item); merchandise must be returned in re-saleable condition.
  • 30 days from date of invoice for any defective merchandise.
  • 10 days from date of invoice for any concealed damage or concealed warehouse errors (such as shipping the wrong product or shortages).
  • 5 days from date of invoice for all visible damage and visible warehouse errors.
• Merchandise must be returned in the same unit of measure as purchased from Essendant.
• The following categories (“Ineligible Categories”) are not eligible for return: food products, pharmaceuticals, Machine/Floor Equipment, discontinued or expired products, special order products, closeout merchandise, and skus for any lines Customer purchases direct from the manufacturer.
• Essendant will not accept returns of any sku in excess of the quantity of that sku Customer purchased from Essendant in the 30 days prior to the date Essendant receives the return.
• Essendant reserves the right to refuse returns that do not comply with these terms. Essendant will assess a 15% restocking charge for any returns Essendant accepts that do not comply with these terms.

During issuance of a Return Authorization all returns quantities will be verified against all purchase history from Essendant. Products not eligible for return will be returned to Customer, freight collect. Any requests for proof of delivery must be made within 60 days after the invoice is received; after 60 days no proof of delivery will be supplied.

Product Orders

Customer may use its purchase order or any other form (written or electronic transmission) for placing orders for the purchase of products, but the terms and conditions of any such document or form, except as to the identity and quantity of products ordered and the identity of the desired shipping destination, will not apply to or become part of any purchase of products from Essendant. All product orders Customer sends to Essendant will be deemed to incorporate these Terms of Sale, whether or not they are attached to any order, acknowledgement or confirmation. No different or additional terms included in any purchase order or other document submitted to Essendant by Customer will be part of the contract for sale, and Essendant objects to any such different or additional terms. Orders are subject to written or electronic acceptance by Essendant.

Disclaimer of Warranties; Transferable Rights

Customer acknowledges that Essendant is not a manufacturer of any of the products it sells. Essendant will transfer to Customer whatever transferable warranties and indemnities Essendant receives from the manufacturers of the products, including any transferable warranties and indemnities regarding intellectual property infringement. In addition, Essendant authorizes Customer, at its sole expense, to assert to the maximum extent permitted by law and for its account, all rights and powers of Essendant under any applicable manufacturer's warranty on any product.

Essendant represents and warrants that it has the right to convey good title to the products and will pass good title in and to the products to Customer. Except for the foregoing warranty of title, Essendant makes no warranties of any kind, express or implied, with respect to the products and disclaims all other warranties of any kind or nature, including any and all implied warranties. In particular, Essendant makes no warranty or representation, express or implied, direct or indirect, as to the merchantability of any products, their suitability or fitness for a particular purpose or use, their quality, design, condition, capacity or performance, their material or workmanship or their non-infringement, or that the products will satisfy the requirements of any law, rule or Customer specification. If Essendant offers any statements or advice, technical or otherwise, as to any products, such statements or advice will be deemed to be given without charge and solely as an accommodation to Customer, and Essendant will not have any responsibility or liability for the content or use thereof.

Limitation of Liability

In no event will Customer be entitled to, or Essendant liable to Customer or any other party, for any incidental, indirect, special, punitive, tort or consequential damages or losses of any nature, including, without limitation, any damages for business interruption costs, loss of revenues, profits or reinstallation costs, overhead or injury to reputation or loss of customers, or for any claims asserted against Customer by a third party arising directly or indirectly out of or in connection with the manufacture, delivery, sale, use, or defect of products sold by Essendant to Customer, even if Essendant has been advised of the possibility of such damages or losses. In no event will Essendant be liable for any personal injuries or death arising directly or indirectly out of or in connection with the manufacture, use, or defect of any such products. Customer’s recovery from Essendant for any claim will not exceed Customer’s purchase price for the product giving rise to such claim, irrespective of the nature of the claim, whether in contract, tort, warranty or otherwise.

Intellectual Property

If an order covers products that include any software or other intellectual property, such software or other intellectual property is provided by Essendant to Customer subject to all copyright, patent, user license terms and conditions and/or other intellectual property rights applicable to such products. Nothing in these Terms of Sale will be deemed to grant any rights or license to use any software or other intellectual property in any manner or for any purpose not expressly permitted by the owner, developer, manufacturer or producer thereof.

Exclusive Remedies

With respect to any products that do not conform to the goods specified in Customer’s product order or do not meet any applicable manufacturer’s specifications, Essendant’s sole obligation and liability to Customer and Customer’s sole and exclusive remedy is limited, at Essendant’s election, to: refund of Customer’s purchase price for such products (without interest); replacement of such products; or, to the extent offered by the respective product manufacturer, repair of such products; provided in any such case, however, that Customer has complied with Essendant’s then applicable return policies and procedures.

Confidentiality

Each of Customer and Essendant will keep confidential, and not disclose to any person, any and all non-public information and data relating to the other party, including, but not limited to, information about such other party’s transactions, carriers, contracts, pricing and rebate terms, cost information, individual customer identities, products or plans. Each party agrees that it will not use any such information for any purpose other than to fulfill its obligations hereunder or under any other applicable agreement into which these Terms of Sale may be incorporated.

Force Majeure

Essendant will not be liable for any delay in or impairment in its performance resulting in whole or in part from factors beyond Essendant’s control in the conduct of its business, including without limitation, shortages, inability to procure products or supplies through Essendant’s regular sources, or strikes, slowdowns or other labor disputes or disruptions. Essendant’s time for performance of any such obligation shall be extended for the time period of such delay or Essendant may, at its option, cancel any order or remaining part thereof without liability by giving notice of such cancellation to Customer.

Miscellaneous

Independent Contractors. Customer and Essendant are and at all times will remain independent contractors and not agents, partners or joint venturers of the other for any purpose whatsoever.

No Implied Rights or Remedies. Except as otherwise expressly provided herein, nothing herein express or implied is intended or shall be construed to confer upon or to give any person, firm, corporation or any third party, other than Customer and Essendant, any rights or remedies under or by reason hereof.

Rights and Remedies. The failure or delay of Essendant or Customer to insist on the strict performance of any of these Terms of Sale or to exercise any right or remedy contained or permitted hereunder will not constitute or be construed as a waiver of any future term, condition, right or remedy. All rights and remedies of Essendant or Customer specified herein or at law, in equity or otherwise, are distinct and separate, whether or not exercised by Essendant or Customer and, except as otherwise agreed in writing by Essendant and Customer, will not be deemed to be an exclusion of any other right or remedy.

Governing Law. These Terms of Sale will be construed and enforced in accordance with the internal laws of the State of Illinois, without regard to its conflict of law principles. The United Nations Convention for the International Sale of Goods will not apply.

Severability. Any provisions of these Terms of Sale or of any agreement into which they may be incorporated which are held to be invalid, void or illegal in any jurisdiction will in no way affect, impair or invalidate or any other provision herein or therein in such jurisdiction or any provisions herein or therein in any other jurisdiction, and such remaining provisions will remain in full force and effect.

Costs. Except as otherwise expressly agreed in writing, each party will be responsible for the costs and expenses it incurs in performing its obligations under these Terms of Sale or any agreement into which they may be incorporated.

Revisions. Essendant reserves the right to update or modify these Terms of Sale at any time, without prior notice, by posting the revised version of these Terms of Sale behind the link marked “Terms of Sale” in the universal footer on Azerty.com. Purchase orders issued by you to Essendant after we have posted the revised Terms of Sale constitute your agreement to be bound by the revised Terms of Sale. You may access the current version of these Terms of Sale at any time by clicking the link marked “Terms of Sale” in the universal footer on Azerty.com.

These Terms of Sale govern the sale of all products by Essendant and apply notwithstanding any conflicting, contrary or additional terms and conditions in any purchase order or other document or communication (“Purchase Order”) from Customer. These Terms and Conditions may be waived or modified only in a written agreement signed by an authorized representative of Essendant. Neither Essendant’s acknowledgement of a Purchase Order nor Essendant’s failure to object (including through Azerty.com) to conflicting, contrary or additional Terms and Conditions of a Purchase Order shall be deemed an acceptance of such Terms and Conditions or a waiver of the provisions hereof.

Revision date 12/6/18