MEADWESTVACO CORPORATION
TERMS AND CONDITIONS OF SALE OF SURPLUS ASSETS
DEFINITIONS
Seller: The MeadWestvaco Corporation.
Buyer: Any party whose offer to purchase Surplus Items is accepted by Seller in writing.
Surplus Assets: All property listed for sale by Seller in Seller's Offering to which these Terms and Conditions are attached.
Buyer's Surplus Items: All Surplus Assets which Buyer purchases from Seller under the terms of Seller's Offering to which these Terms and Conditions are attached.
Seller's Offering: The document describing all property being sold by Seller to which document these Terms and Conditions are attached and of which they are a part.
DESCRIPTION OF SURPLUS ASSETS
Buyer understands and agrees that all statements of conditions, quantity, quality, age, size, capacity or any other specifications or terms describing the Surplus Assets are not representations or warranties, and they may be relied upon only for the purpose of identifying the items. Buyer also understands and agrees that Seller makes no warranty or representation as to the condition or usability of, as to the existence of permits from pertinent government authorities for the operation of, as to the compliance with regulations and/or orders of regulatory or governmental agencies or as to the non-existence of hidden defects in the Surplus Assets. Buyer aknowledges that it has inspected all of the Buyer's Surplus Items prior to its purchase, but that there may be hidden conditions which would not be revealed by such inspection. Seller shall have no responsibility, obligation or liability of any kind with respect to any patent or latent defects in any Surplus Assets. Buyer is solely responsible for the selection of the Buyer's Surplus Items, and neither Seller nor any of its employees, sales personnel, representatives, agents or brokers has made any representation or warranty with respect to any of the Buyer's Surplus Items. Buyer has been given full opportunity to inspect all of Buyer's Surplus Items prior to submitting its offer to Seller, and Buyer either has completed such inspection or has waived such opportunity.
WARRANTY AND DISCLAIMER
Seller warrants only that it is the owner of the Surplus Assets and that it has the right to sell them. Buyer understands and agrees that all Surplus Assets are sold "AS IS" AND "WHERE IS" WITH ALL FAULTS AND DEFECTS THAT MAY EXIST WITH RESPECT TO ANY SURPLUS ASSETS. OTHER THAN AS EXPRESSLY STATED IN THE FIRST SENTENCE OF THIS PARAGRAPH, SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, WITH RESPECT TO ANY SURPLUS ASSET BEING SOLD, OR WITH RESPECT TO ITS DESCRIPTION OR CONDITION. SELLER HEREBY DISCLAIMS ALL SUCH WARRANTIES AND REPRESENTATIONS INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Seller shall not be liable for any damage, whether direct or indirect, incidental, consequential or special, resulting from the use or inability to use the Surplus Assets sold or caused directly or indirectly by any deffect, failure, malfunction or other condition, whether such damage is based upon a claim of warranty (except as expressly stated in the first sentence of this section 3), contract, negligence or otherwise.
POSSESSION, REMOVAL AND SHIPMENT TERMS
Buyer shall take possession of and shall assume all risks with respect to Buyer's Surplus Items at the point where such items are located on the date of sale immediately after completing the final payment hereafter described. Buyer shall provide all equipment, labor, transportation and/or other services necessary to dismantle, remove, pack, prepare for shipment, load and ship Buyer's Surplus Items entirely at Buyer's risk and expense. Buyer shall remove all of Buyer's Surplus Items from the location of the sale no more than ___ days after the final payment for such items by Buyer to Seller. Prior to removal of Buyer's Surplus Items from their location on date of sale, Buyer shall remove all labels, trademarks, designs, signs, nameplates and/or other distinctive markings from all of Buyer's Surplus Items and/or from their packaging or shipping containers that in any way identify any of Buyer's Surplus Items as having been owned or used by Seller.
PAYMENT
Buyer shall pay 10% of the sales price for Buyer's Surplus Items to Seller in cash or by certified check on the date when Buyer receives Seller's written acceptance of Buyer's offer. The balance of the purchase price for Buyer's Surplus Items shall be paid in cash or by certified check to Seller not more than 30 days after the date of Seller's acceptance. Buyer shall pay all applicable sales, use and/or other taxes, charges or fees required to be paid or collected by reason of this sale. If Buyer is not subject to a tax on this sale, Buyer shall provide Seller with a valid exemption certificate on or before the date of final payment.
INDEMNITY
Buyer assumes all liability for, and hereby agrees to indemnify, defend and hold Seller, its employees, officers, directors, agents, representatives, successors and assigns harmless from and against any and all liability for losses, costs, expenses, damages, demands, penalties, claims or judgment in connection with or arising out of any injury or alleged injury (including death) to any person or persons or damage, or alleged damage to property sustained or alleged to have been sustained in connection with, resulting from or arising out of the sale, dismantling, preparation for shipment, loading, packing, shipping, transportation, possession, use, operation, ownership, maintenance, repair or disposal of the Buyer's Surplus Items, whether or not caused or contributed to by the negligent act or omission of Seller, its employees or agents. Buyer hereby agrees to obtain the above indemnification in favor of Seller from any party who subsequently purchases Buyer's Surplus Items and to require any such purchaser to include the above indemnification provisions in any other sale of Buyer's Surplus Items. Buyer hereby agrees to assume, indemnify and hold Seller, its employees, agents and/or representatives harmless from and against any and all risks, costs, losses, claims, demands, expenses and/or judgments incurred by Seller or any of such indemnified parties as a direct or indirect result of Buyer's failure to secure the above indemnifications from subsequent purchasers.
HAZARDOUS CHEMICALS, HAZARDOUS WASTES AND OTHER HAZARDOUS CONDITIONS
BUYER IS HEREBY WARNED AND BUYER ACKNOWLEDGES THAT IT IS AWARE THAT THE BUYER'S SURPLUS ITEMS MAY INCLUDE ARTICLES WHICH CAN BE HAZARDOUS IN OPERATION OR WHICH MAY BEAR OR CONTAIN HAZARDOUS CHEMICALS OR OTHER HAZARDOUS MATERIALS WHICH MAY BE, OR MAY BECOME BY CHEMICAL REACTION OR OTHERWISE, DIRECTLY OR INDIRECTLY, HAZARDOUS TO LIFE, HEALTH OR PROPERTY BY REASON OF TOXICITY, FLAMMABILITY, EXPLOSIVENESS OR OTHER REASONS DURING DISMANTLING, PACKING, PREPARATION FOR SHIPMENT, LOADING, SHIPMENT, USE, HANDLING, OPERATION, CLEANING, MAINTENANCE, REPAIR, RECONDITIONING, DISPOSAL OR AT ANY OTHER TIME. BUYER'S SURPLUS ITEMS MAY ALSO LACK INSTRUCTIONS, MANUALS, NECESSARY SAFETY DEVICES AND/OR ELECTRICAL PROTECTION WHICH COULD CREATE, LEAD TO OR CONTRIBUTE TO ANY OR ALL OF THE FOREGOING OR OTHER HAZARDOUS CONDITIONS. BUYER IS HEREBY ADVISED THAT IT SHOULD WARN ANY PERSONS WHO MAY BE EXPOSED TO ANY OF THE FOREGOING HAZARDS OR OTHER HAZARDS AND THAT IT SHOULD INSTALL ANY AND ALL SAFETY DEVICES OR OTHER TYPES OF PROTECTION WHICH MAY BE NECESSARY OR APPROPRIATE BEFORE MAKING ANY USE OF BUYER'S SURPLUS ITEMS. BUYER HEREBY RELEASES AND DISCHARGES SELLER FROM ANY AND ALL LIABILITY DIRECTLY OR INDIRECTLY RESULTING FROM THE PRESENCE OF ANY OF THE ABOVE-DESCRIBED CHEMICALS, WASTES OR OTHER HAZARDOUS CONDITIONS RESULTING FROM SELLER'S FAILURE TO GIVE MORE SPECIFIC OR DETAILED WARNING AND/OR FROM THE INADEQUACY OF ANY SUCH WARNING. BUYER SHALL BE CONSIDERED THE SOLE GENERATOR OF ANY WASTE RESULTING FROM THE DISMANTLING, REMOVAL, PREPARATION FOR SHIPMENT, PACKING, LOADING, TRANSPORTATION, INSTALLATION, USE, POSSESSION, OPERATION, MAINTENANCE, REPAIR, REPLACEMENT, SALE AND/OR DISPOSITION OF BUYER'S SURPLUS ITEMS.
COMPLIANCE WITH LAW AND OTHER REQUIREMENTS
Buyer, Buyer's contractors, subcontractors and/or any other parties acting for or on behalf of Buyer shall comply with all applicable Federal, state and local laws and regulations relating to or affecting Buyer's dismantling, removal, preparation for shipment, packing, loading and/or transporting of Buyer's Surplus Items. Buyer also shall comply with: (a) all of Seller's safety requirements, rules and regulations applicable at the site where Buyer's Surplus Items are located; (b) all applicable requirements of the Fair Labor Standards Act; (c) the Occupational Safety and Health Act of 1970 and all standards, rules and regulations thereunder; (d) the Federal Hazardous Substances Act; (e) the Toxic Substances Control Act; (f) the Hazardous Materials Transportation Act; (g) the Resource Conservation and Recovery Act; (h) the Clean Air Act; (i) the Clean Water Act; (j) the Comprehensive Environmental Response, Compensation and Liability Act of 1980 and/or of any other state and/or Federal laws, standards, rules, regulations, requirements or orders relating to the environment. Before taking possession of Buyer's Surplus Items, Buyer shall procure and provide to Seller evidence satisfactory to Seller that Buyer and all parties acting for or on behalf of Buyer who will be on Seller's property in connection with removal of Buyer's Surplus Items are in full compliance with all Worker's Compensation and employer's liability insurance requirements of the state in which the work is to be performed, together with certification of all general liability and automobile insurance reasonably required by Seller. Buyer's Surplus Items may not be removed from Seller's property by any party other than Buyer without Seller's prior written approval.
RIGHT TO REJECT OFFERS
Seller hereby reserves the right to reject any and all offers for any Surplus Assets submitted by Buyer or by any other party. Unless otherwise specified by Seller, Seller shall have the right to sell any one Surplus Asset or group of Surplus Assets contained in any offer apart from the other portions of the offer if Seller determines that such sale is in Seller's best interests.
DEFAULT
If Buyer fails to pay for Buyer's Surplus Items as required and within the time provided in Section 5 above, or fails to remove all of Buyer's Surplus Items by the date required in Section 4 above, or defaults in the performance of any of its other obligations hereunder, Buyer shall immediately lose all right, title and interest in and to all of Buyer's Surplus Items, and Seller shall be entitled to retain all payments made prior to the date of termination by Buyer, in addition to any other remedies which Seller may have under these Terms and Conditions, or at law, or in equity. Seller also shall have the right to place all of Buyer's Surplus Items in public or private storage at Buyer's expense and/or to sell all of Buyer's Surplus Items to any other party upon any terms deemed appropriate by Seller.
FORCE MAJEURE
Neither Seller nor Buyer shall be liable for its failure to perform hereunder when such failure is due to any cause completely beyond its reasonable control, including acts of God, fires, floods, strikes, other labor disturbances, acts of civil or military authority, war, riot, or inability to obtain equipment or transportation. None of the foregoing shall be grounds for relief from liability under this Section 11 if, at the time Seller issued its written acceptance of Buyer's offer for the purchase of Buyer's Surplus Items, the party seeking such relief knew, or with the exercise of reasonable diligence could have known of the existence then or probable existence in the future of any of such causes. In any of the foregoing circumstances where failure to perform is excused, the sole remedy for the party whose performance is excused shall be an extension of the time for performance equal to the number of days of delay caused by such circumstance.
ASSIGNMENT
Buyer may not assign this Agreement or any of its rights or obligations hereunder, in whole or in part, to any other party without the prior written consent of Seller.
SEVERABILITY
In the event that any word, phrase, clause, sentence or other provision hereof 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 hereof.
TIME LIMITATION ON CLAIMS
Any claim against Seller arising out of or in any way related to the sale of Surplus Assets shall be null and void unless it is filed with Seller in writing not more than 60 days after the date of Seller's written acceptance of Buyer's offer. Any such claim also shall be null and void unless suit is initiated thereon not more than 12 months after the date of Seller's written acceptance of Buyer's offer.
COMPLETE AGREEMENT AND MODIFICATION
Buyer's written offer, Seller's written acceptance and these Terms and Conditions represent the entire agreement between Buyer and Seller with respect to the sale of Buyer's Surplus Items, and they supersede any and all oral or other written statements pertaining to such sale. No modification or waiver of any of the terms of this Agreement shall be effective unless made in a writing executed by authorized representatives of Buyer and Seller. No acknowledgement or acceptance of any oral or written statement by Seller from Buyer which conflicts in any way with Buyer's written offer, Seller's written acceptance and/or these Terms and Conditions shall constitute any modification or waiver of any provision in any of such documents and shall have no validity.
APPLICABLE LAW
The provisions of Buyer's written offer, Seller's written acceptance and these Terms and Conditions shall be governed by and construed in accordance with the laws of the State in which the Surplus Assets are located on the date of Seller's written acceptance of Buyer's written offer.
For more information, go to www.mwv.com, or call us at +1 (804) 444-1000.