2. TERMINATION: RR Donnelley may terminate for convenience at any time by written notice any Order, or its obligation to purchase any products or services from Supplier. If an Order is terminated for convenience, then the termination date shall be not less than 10 days from the date of notice, unless otherwise mutually agreed to by the parties, except that if RR Donnelley has reasonable cause to believe that Supplier failed to comply with any Anticorruption Laws (see Section 24), RR Donnelley may in its sole discretion terminate this Agreement with immediate effect upon written notice to Supplier. RR Donnelley shall pay for any products delivered or services performed prior to the date that termination becomes effective (on a pro rata basis if RR Donnelley has paid in advance any fees covering a fixed period of Services). Unless RR Donnelley has requested and received a refund in respect of any undelivered product(s) or terminated services, it shall be entitled to the delivery of all product(s) and completion of all services for which it has paid prior to the effective date of the termination. In addition to any other remedy provided at law or equity, either party shall have the right to terminate or cancel an Order, and any obligation to purchase, sell or provide a product or service, in the event the other party (a) fails to comply with any condition of the Order or any related Agreement, and such failure is not remedied within thirty (30) days after written notice thereof has been given to such other party; (b) becomes insolvent, makes an assignment for the benefit of creditors, suffers or permits the appointment of a receiver, trustee in bankruptcy or similar officer for all or parts of its business or assets; or (c) avails itself of or becomes subject to any bankruptcy proceeding under the laws or any jurisdiction relating to insolvency or the protection of rights of creditors.
3. CONFIDENTIALITY: All specifications, documents, artwork, or drawings delivered to Supplier by RR Donnelley, and any other non-public information RR Donnelley discloses to Supplier, remains RR Donnelley's property. The information is provided to Supplier solely for the purpose of Supplier's performance of the Order and on the express condition that neither the Order nor the information contained therein or provided in connection therewith shall be disclosed to others nor used for any purpose other than in connection with the Order without RR Donnelley's prior express written consent. RR Donnelley reserves the right to request that Supplier return all such information to RR Donnelley or destroy it. Supplier's obligations under this paragraph shall survive the cancellation, termination or other completion of the Order.
4. WARRANTY: Supplier expressly warrants that all products and services supplied to RR Donnelley by Supplier as a result of an Order shall conform to the specifications, drawings or other description upon which the Order is based, shall be fit and sufficient for the purpose intended, merchantable, of good material and workmanship, free from defects and free and clear of all liens or encumbrances. Inspection, testing, acceptance or use of the goods by RR Donnelley shall not affect Supplier's obligations under this warranty, and such warranty shall survive inspection, testing, acceptance and use. Supplier agrees to replace or correct promptly defects of any goods or services not conforming to the foregoing warranty without expense to RR Donnelley, when notified of such non-conformity by RR Donnelley. If Supplier fails to correct defects in or replace non-conforming goods or services promptly, RR Donnelley may, after reasonable notice to Supplier, make such corrections or effect cover at Supplier's expense.
5. PRICE: An Order must not be filled at a higher price than shown on the Order. Unless another currency is specified on the order, all monetary amounts are deemed to be expressed in Canadian dollars. If no price is shown, Supplier must notify the RR Donnelley Buyer who issued the Order of the price and his/her acceptance must be obtained in writing before filling the Order. The price shall not in any event be higher than the lowest price Supplier provides to any of Supplier's other customers ordering similar quantities, after taking into consideration all rebates, discounts and allowances. Unless otherwise provided on the Order, delivery of Goods shall be f.o.b. destination and Supplier will not charge for boxing, packing, crating or other charges. Supplier's prices include any and all related customs duty. If Supplier sells products to RR Donnelley, or if the services include provision to RR Donnelley of any deliverables, subject to any customs duty, Supplier's prices include any and all related customs duty.
6. TAXES: RR Donnelley will not be liable for any taxes with respect to an Order, except for sales, use, retailers occupation, service occupation, excise, ad valorem, value added, or consumption taxes imposed by any governmental authority for the purchase of the products Supplier supplies, which Supplier is required by law to collect from RR Donnelley. Supplier shall not collect or remit, and RR Donnelley shall not be liable for, any such taxes if RR Donnelley has provided Supplier with a tax exemption certificate. RR Donnelley also will not be liable for any taxes of any nature based on the income of Supplier. If RR Donnelley is required by the law of any jurisdiction to withhold any taxes, duties, fees, levies, or charges ("Withholding Taxes") from any fees or other charges (including reimbursement of expenses) paid to Supplier, RR Donnelley will be entitled to deduct the amount of such Withholding Taxes from the amount of such fees or other charges (including reimbursement of expenses). If Supplier is either exempt from withholding or entitled to a reduced rate of withholding pursuant to a tax treaty or other applicable law, and provides RR Donnelley with adequate documentation of such exemption from or reduced rate of withholding, RR Donnelley will be entitled to withhold only such Withholding Taxes from which Supplier is not exempt. In case of doubt by RR Donnelley as to RR Donnelley's liability for any such tax, Supplier shall allow RR Donnelley, at RR Donnelley's expense, to assume control of any litigation or proceeding relating to the determination and settlement of such tax. RR Donnelley shall, upon final settlement of such litigation and proceeding, reimburse Supplier for any tax owing including in the amount to be reimbursed, any interest charges and penalties accruing thereon
7. INVOICES: Supplier agrees to issue invoices referencing the Order number, line number (where applicable), release number (where applicable), item number, description of items, sizes, quantities, unit prices and extended totals. If an Order contains more than one item, Supplier's invoice will make the proper reference. Taxes, if any that are to be collected by Supplier shall be stated separately and shall be remitted by Supplier to the appropriate taxing authority. All invoices shall comply with the requirements of each relevant taxing authority and shall contain data and registration numbers that will enable RR Donnelley to obtain appropriate credit for any Taxes charged. All invoices shall be sent to the email or street address on the Order. Failure to comply with the above may result in delayed payment or returned invoices.
8. PAYMENT: As full consideration for Supplier's satisfactory provision of the products or performance of the services, RR Donnelley will pay Supplier's invoice not later than seventy-five (75) days following RR Donnelley's receipt of said invoice. RR Donnelley's payment of any such invoice shall constitute full and complete satisfaction of any and all actual and potential fees for the billing period covered by the invoice. Partial payments will not be made, unless RR Donnelley agrees otherwise in writing. All payment terms will be calculated based upon date of invoice and payment terms will be considered satisfied based upon date of postmark of payment, or if EFT payment, date of transmission. RR Donnelley shall receive invoices within three (3) business days of invoice date.
9. PRESUMPTIONS: Supplier shall be conclusively presumed to have waived Supplier's right to receive payment for products or services covered by any Order if Supplier has not submitted an invoice for the products or services within one (1) year of the date of the Order. Supplier's submission of an invoice shall give rise to a presumption that the charges are the full amount Supplier is due for the products or services listed on or referred to in the invoice for the purpose of determining the existence of any underpayment. Supplier may submit supplemental invoices only if accompanied by a photocopy of the original invoice and documentation acceptable to RR Donnelley that establishes the validity of Supplier's claim for underpayment. Supplier waives any claim for underpayment if a supplemental invoice and supporting documentation have not been furnished within the earlier of (i) one (1) year after the Delivery Date or performance of the services covered by the supplemental invoice, or (ii) three (3) months after the date of submission of the original invoice.
10. FORCE MAJEURE: Neither party shall be liable for a delay in performance of its obligations and responsibilities under this Order due to causes beyond its control, and without its fault or negligence, such as but not limited to war, embargo, national emergency, insurrection or riot, acts of the public enemy, fire, flood or other natural disaster, provided that said party has taken reasonable measures to notify the other promptly in writing, of delay (but in any event, within 72 hours of the force majeure event). Time is of the essence of this Agreement, and should Supplier fail to comply with RR Donnelley's delivery schedule or otherwise fail to comply with its obligations hereunder, RR Donnelley may terminate this Order without liability. Failure of subcontractors or inability to obtain materials shall not be considered as a force majeure delay.
11. INTELLECTUAL PROPERTY: If Supplier provides to RR Donnelley any development, consulting, analysis, design, computer programming, installation, testing, conversion, implementation, training, technical writing and any other services resulting in the creation or modification of any computer programs, firmware, schematics, flowcharts, drawings, specifications, documentation, reports, recommendations or other writings, information or material embodied in a tangible medium, the terms and conditions of RR Donnelley's Specifications D-1 (Terms for Development and Professional Services) shall apply to that Order. RR Donnelley shall retain a copy of the version of Specifications D-1 that was in effect at the time each Order was placed and records showing the effective dates of each version.
12. INDEMNITY: Supplier shall, at Supplier's sole cost and expense, release, defend indemnify and hold RR Donnelley, its Affiliates, directors, officers, agents, employees, and shareholders harmless from and against all claims, demands, disputes, complaints, causes of action, suits, losses and damages (including attorneys' fees) of any kind to the extent they in any way relate to or arise, in whole or in part, due to (a) the acts or omissions of Supplier, its subcontractors, or agents or the employees of any thereof, in the performance of this Order or any breach or default hereunder or (b) a claim that the goods or services Supplier provides are dangerously defective, or (c) a claim that Supplier's products or services, or any part thereof, infringes a patent, copyright, trademark, trade secret or other intellectual or proprietary right of a third party.
13. INSURANCE: Supplier shall maintain and could be requested to provide certificates of insurance from companies meeting an A.M. Best rating of at least A- VII showing that Supplier is covered by A) Workers' Compensation Insurance or Workplace Safety & Insurance coverage with the applicable Provincial or Territorial Workplace Safety & Insurance Board ; B)Employers Liability and Occupational Disease insurance with limits of $500,000 per occurrence; C) Commercial General Liability, including Products and Completed Operations, with limits of not less than $2,000,000 per occurrence for bodily injury and property damage; D) Auto Liability covering all autos with a limit of $1,000,000; and E) Professional Liability with a limit of $2,000,000 per claim. The Commercial General Liability policy shall name RR Donnelley as an additional insured as its interest may appear, contain a cross liability (severability of interests) provision and be primary and non-contributory to any insurance available or maintained by RR Donnelley. Additional insurance requirements may apply under the RR Donnelley G-1 Specifications. No exceptions to these coverages may be made unless approved in writing by RR Donnelley. If requested, properly endorsed Certificates of Insurance may be sent to the following address:
R. R. Donnelley & Sons Company
Risk Management Department
35 West Wacker Drive
Chicago, Illinois 60601
RR Donnelley shall not, because of accepting, rejecting, approving or receiving any certificate of insurance required hereunder, incur any liability for the existence, non-existence, form or legal sufficiency of the insurance described on such certificate; the solvency of any insurer; or the payment of losses. No provision under this section shall be construed or deemed to limit Supplier's obligations under this Agreement to pay damages or other costs and expenses.
14. LIMITATION OF LIABILITY. IN NO EVENT WILL RR Donnelley BE LIABLE TO SUPPLIER OR ANY THIRD PARTY, IN CONTRACT, TORT OR OTHERWISE, FOR ANY LOSS OF PROFIT OR BUSINESS, OR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, ARISING FROM OR AS A RESULT OF THESE CONTRACT TERMS, ANY ORDER OR ANY AGREEMENT BETWEEN THE PARTIES RELATING TO THE PRODUCTS, SERVICES OR DELIVERABLES SUPPLIER PROVIDES, EVEN IF RR Donnelley HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15. CHANGES: RR Donnelley reserves the right to make changes in drawings, designs, specifications, scope of work to be performed, time and place of delivery and method of transportation. If such change is to be made, it will be evidenced in writing by RR Donnelley in the form of a change Order. If any such change has an effect on the price, warranty, delivery date or indemnification provisions of the Order, an equitable written acknowledgement of the effect on the changed provisions shall be indicated on the change Order. Supplier may not make any change in drawings, design specifications, scope of work to be performed, time and place of delivery and method of transportation without RR Donnelley's written Change Order acknowledging the change. Any such Change Orders accepted by Supplier shall be incorporated in and amend the Order.
16. PACKAGING: Unless otherwise specified, the products Supplier sells to RR Donnelley shall be (a) packed, packaged, marked and otherwise prepared for shipment in a manner which is in accordance with good commercial practice, (b) acceptable to common carriers for shipment at the lowest rate for the particular goods and in accordance with applicable regulations, and (c) adequate to insure safe arrival at the named destination. Supplier agrees to mark all containers with necessary lifting, handling, and shipping information and also Order numbers, date or dates. A packing list must be enclosed in all shipments showing the Order number and exact quantity and description of the goods shipped.
17. RISK OF LOSS: Regardless of the method of shipment used, Supplier agrees to deliver all product specified on the Order to the location(s) specified on the Order at Supplier's own risk. Supplier shall bear the risk of loss, destruction or damage until the items are accepted by RR Donnelley.
18. DELIVERY: Time is of the essence. Supplier agrees to comply with RR Donnelley's shipping, delivery, installation or startup schedules (as applicable) without any delay and without anticipating RR Donnelley's requirements, and shall comply with the provisions and follow the procedures outlined in the RR Donnelley Inbound Routing Guide that has been provided separately to Supplier or is available upon request. Shipments must equal the exact amounts identified in the Order and no partial shipments or runt cartons, changes or substitutions in specifications may be made without RR Donnelley's prior written consent. RR Donnelley's acceptance of late shipments or partial shipments shall not constitute a waiver of any of RR Donnelley's rights to collect damages for goods not delivered or for late delivery. Supplier shall report to RR Donnelley any delays in a schedule immediately as they become known to Supplier. RR Donnelley reserve the right to cancel the Order and effect cover if Supplier cannot comply with the schedule(s) indicated on the Order. If dates are not specified on the Order, Supplier shall procure materials, fabricate, assemble and ship goods or provide services only as authorized by shipment releases RR Donnelley issues to Supplier. RR Donnelley may return overshipments to Supplier at Supplier's expense for all packing, handling, sorting and transportation. RR Donnelley may from time to time, and with reasonable notice, suspend schedules specified in the Order or such shipment releases. If it becomes necessary for Supplier to ship by a more expensive mode than specified on the Order in order to meet a schedule, Supplier shall pay any resulting premium transportation cost unless Supplier can establish to RR Donnelley's satisfaction that the necessity for the change in routing is occasioned by force majeure events.
19. ACCEPTANCE: Payment by RR Donnelley for the products or services delivered hereunder shall not constitute RR Donnelley's acceptance. RR Donnelley retains the right to inspect the products or services performed and to reject any or all of the products or services performed which are in RR Donnelley's judgment defective, as well as the right to inspect Supplier's manufacturing operations, handling and storage of products and raw material, including the equipment used to manufacture the products. RR Donnelley will give Supplier reasonable notice of any planned Supplier site visit. No inspection or test made prior to final acceptance shall relieve Supplier for defects or other failure to meet the requirements of this Agreement. Products rejected by RR Donnelley and products supplied in excess of quantities called for herein may be returned to Supplier at Supplier's expense. In addition to RR Donnelley's other rights, RR Donnelley may charge Supplier all expenses of unpacking, examining, repacking, and reshipping such goods. In the event RR Donnelley receive goods whose defects or nonconformity is not apparent on examination, resulting in deterioration of RR Donnelley's finished product, RR Donnelley reserves the right to require the replacement, as well as payment of any resulting damages. When a shipment is rejected based upon RR Donnelley's inspection, and such rejection increases the risk of jeopardizing RR Donnelley's production schedules by reason of the fact that at least some of the products are necessary to meet such production schedules, then RR Donnelley, at its option, may charge Supplier for the reasonable costs of an increased level of inspection up to and including inspection of each of the products comprising such shipment.
20. RR DONNELLEY PROPERTY: Any material or parts furnished by RR Donnelley intended for use by Supplier in Supplier's execution of Supplier's duties as required by this Order are held by Supplier on consignment. All such materials or parts not used by Supplier in connection with this Order shall be returned to RR Donnelley at RR Donnelley's expense unless Supplier is otherwise directed in writing. If not accounted for or not returned to RR Donnelley, Supplier shall pay or reimburse RR Donnelley for such materials or parts. All such materials or parts will be kept insured by Supplier at Supplier's expense in an amount equal to the replacement cost with a loss payable to RR Donnelley.
21. ASSIGNMENT/DELEGATION/SUBCONTRACTING: Supplier may not assign, delegate, subcontract or transfer any Order, the work required to be done or any payments to be made hereunder without RR Donnelley's prior written approval. In the event of agreed delegation or subcontracting, Supplier shall continue to be liable with respect to all of the obligations or liabilities assumed by it hereunder and hereby guarantees satisfactory performance of the Agreement, if any, by its delegate or subcontractor. Supplier shall enter into a written agreement with any permitted subcontractor, which, at a minimum, meets the insurance requirements of these Contract Terms and includes provisions protecting RR Donnelley's Confidential Information in a manner consistent with the terms of this Agreement. All claims for monies due or to become due from RR Donnelley shall be subject to deduction by RR Donnelley for any setoff or counterclaim arising out of this or any other Orders with Supplier whether such setoff or counterclaim arise before or after such assignment, delegation. subcontracting or transfer by Supplier.
22. EXPORT/IMPORT: Any export credits belong to RR Donnelley, and Supplier shall furnish all documents required for international shipments, and upon request, all documents required by RR Donnelley to obtain export credits and customs drawback and remission. Supplier shall include a priced invoice with the master packing slip for international shipments. Upon RR Donnelley's request, Supplier shall furnish certificates that identify the country of origin of the materials used in the goods RR Donnelley purchase from Supplier and the value added thereto in each country.
23. ON-SITE SERVICES. If Supplier performs any services at one of RR Donnelley's sites, RR Donnelley reserve the right to interview and accept or reject any personnel Supplier provide prior to assignment to RR Donnelley's facility. RR Donnelley may require any such personnel to pass a drug screening test that RR Donnelley administers. Supplier agrees to employ only competent and skilled personnel to perform the services and shall use all reasonable means to ensure the continued employment of personnel performing services pursuant to this Order. Upon RR Donnelley's request, Supplier will immediately remove from all facilities and replace any personnel who are unsatisfactory to RR Donnelley for any reason. Supplier warrants that all Supplier personnel assigned to the RR Donnelley facility shall have a prior satisfactory work record in a responsible capacity; have no job-related criminal convictions; and be legally authorized to work in the United States. Employment authorization shall be verified through E-verify. Supplier personnel will be capable of performing the essential functions of the job for which they are hired, with or without a reasonable accommodation. If Supplier is or becomes a party to any collective bargaining agreement regarding contracted personnel, no provision in that agreement shall be binding upon RR Donnelley, unless otherwise required by law. Supplier further agrees, while Supplier's personnel are on RR Donnelley's premises, that they will abide by RR Donnelley's normal rules of work. Supplier further agrees to comply with all environmental, health and safety provisions contained in RR Donnelley's Specifications 'RPM - Regulated Products and Materials' and G1. A Supplier representative shall participate in an initial and annual review of the RR Donnelley Contractor EHS Program and shall advise and cause all personnel and subcontractors who perform Services at the site to comply with the requirements of the program. The governing version shall be the version in effect as of the date of the Order or at the time of the annual review. RR Donnelley shall retain copies of all versions of the documents referenced above and records showing the effective dates of each version.
24. COMPLIANCE WITH LAWS.
25. REMEDIES: RR Donnelley's remedies shall be cumulative and shall include any remedies allowed by law. Waiver of any breach by RR Donnelley shall not constitute RR Donnelley's waiver of any other breach of the same or any other provision. Acceptance of any items or payments therefore shall not waive any breach.
26. GOVERNING LAW/SUBMISSION TO JURISDICTION: This agreement shall be construed in accordance with the laws governing contracts made and to be performed in the Province of Ontario exclusive of the U.N. Convention on the International Sale of Goods. Supplier hereby consents to the jurisdiction of any local, state, or federal court located within the Province of Ontario and waives any objection which Supplier may have based on improper venue or forum non conveniens to the conduct of any proceeding in any such court.
27. ENVIRONMENTAL, HEALTH AND SAFETY RULES:
For Services performed at an RR Donnelley site, Supplier shall conform to all EHS provisions contained in Specifications ‘RPM - Regulated Products and Materials’, G1 and the RR Donnelley Contractor EHS Program. A Supplier representative shall participate in an initial and annual review of the RR Donnelley Contractor EHS Program and shall advise and cause all personnel and subcontractors who perform Services at the site to comply with the requirements of the program. To the extent the Products sold by Supplier to RR Donnelley include any food, drug, cosmetic or medical device, or consumer product, the terms of Specifications C-1 shall apply to such purchases. The foregoing Specifications and RR Donnelley EHS Contractor Safety program are posted at Supplier Info. The version governing this Agreement shall be the version in effect as of the Effective Date or at the time of the annual review. RR Donnelley shall retain copies of all versions of the documents referenced above during the term of this Agreement and records showing the effective dates of each version.
28. LANGUAGE: The parties confirm that it is their wish that these Contract Terms, as well as any other documents relating hereto, including all Orders, notices, schedules, authorizations, attachments and amendments, have been and shall be drawn up in the English language only. Les parties confirment que c'est leur volente expresse que ce contrat et tous documents y etant relatif, y compris les bons de commande, les avis, les annexes, les autorisations, les pieces jointes et les amendements soient rediges en langue anglais seulement.
29. ENTIRE AGREEMENT: This Agreement and associated documents referenced herein constitute the entire agreement between the parties with respect to the subject matter hereof; all prior agreements, representations, statements, negotiations and undertakings, whether oral or written, are superseded hereby. In the event RR Donnelley acquires, is acquired by or merges with another company that has a written contract with Supplier, or otherwise assumes a contract between Supplier and the acquiring, acquired or merging company (each, a "Legacy Contract"), RR Donnelley may at its sole option terminate the Legacy Contract by written notice and elect to have this Agreement govern all transactions between Supplier and RR Donnelley and its Affiliates from and after the date given in the notice.
Phone: 1.312.326.8000 Fax: 1.312.326.8001
35 West Wacker Drive Chicago, Illinois 60601