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BUYER'S ACCEPTANCE OF SELLER'S TERMS AND CONDITIONS
Any order accepted by Seller is accepted with the understanding that Buyer assents to the
terms and conditions set forth in this Quotation, regardless of the form or terms of Buyer's
order. This document constitutes the terms of agreement in their entirety between Buyer and
Seller with respect to any order Buyer places with Seller. Any additional or different terms stated
in any purchase order or other document which Buyer presents to Seller shall be considered material
alterations, will be of no binding effect and are hereby objected to and rejected. No course
of dealing, usage of trade or course of performance will be relevant to, supplement or explain any
terms used herein.
PRICES; TERMS
Unless otherwise stated, quoted prices are those in effect at the time of quotation and are
based on delivery in a single lot. The Goods shall be invoiced at Seller's prices in effect
at date of shipment unless otherwise stated in a written quotation or proposal. All prices
are subject to increases equal to any additional costs incurred by Seller as a result of any
changes in laws, regulations or orders or raw material price increases. Terms are as stated
on the other side of this document. Required press proofs will be charged at Seller's current
rate for press work.
DELIVERY DATE
Lead times and delivery dates may vary depending on many circumstances. Stated delivery
dates are Seller's estimate of the time required to produce Buyer's order. Seller reserves
the right to re-adjust shipment schedules. Acceptance by Buyer of the Goods when received
waives any claim resulting from a delay. If shipment is delayed by Buyer, Buyer shall pay any
costs incurred by Seller for handling, storage and timely processing of Buyer's order as well as
demurrage and similar charges, if any.
PRODUCT SPECIFICATIONS AND QUALITY
Prices and delivery schedules are based upon Seller's standard specifications or
upon product specifications and quality requirements submitted by Buyer. Any changes to those
specifications or requirements will require review and possible adjustment of price and/or delivery
schedules, and may result in additional charges for artwork, tooling and other services or items
needed to produce the finished product. Any changes in product specifications or quality
requirements, and any consequent price changes which are mutually agreed to in writing by Seller
and Buyer, shall become part of the contract between the parties and are incorporated herein by
this reference.
SHIPPING QUANTITIES
Seller reserves the right to make partial shipments when necessary. Overruns and
underruns may occur. Payment shall be due for quantities actually shipped. Buyer must
notify Seller of any shortages within 30 days of delivery or be barred from any recovery for
shortages.
SHIPPING CONTAINERS
All containers made for freight or express shipments shall conform to the I.C.C. Traffic
Regulations in effect at the time of manufacture and Seller shall not be liable for any loss
resulting from any violation of any requirements of any common carrier or for failure of Buyer to
properly pack or seal containers or otherwise conform to such requirements.
TAXES
The prices of the Goods and related services do not include any sales, use, excise or other
tax, duty or charge now or hereafter imposed by any Federal, state or local governmental
authority. Buyer agrees to pay or reimburse Seller for the full amount of any such taxes or
other charges which Seller is required to pay, with the exception of sales or use taxes where Buyer
provides Seller with a valid tax exemption certificate for such Goods.
LATE CHARGE FOR DELAYED PAYMENT
Seller's invoices are due and payable in one installment according to the terms
printed on the invoice. If payment in full of any invoice is not made by or before the net
due date, Buyer agrees to pay a service charge on the unpaid balance at the lower of one and
one-half percent (1½%) per month (i.e. 18% per annum), or the maximum rate permitted by law, from
the due date until the invoice and all service charges thereon have been paid in full. If
allowed by applicable law, Buyer shall also pay on demand any costs incurred by Seller (including
reasonable attorneys' fees and legal expenses) in connection with the collection of any amounts due
from Buyer to Seller which are not paid as agreed herein.
ARTWORK, TOOLING
Buyer shall be charged for artwork, printing plates, dies and tooling. All
such charges shall be invoiced with the first shipment unless otherwise agreed. Artwork,
printing plates, dies and tooling shall remain Seller's property until paid for by Buyer and will
be retained for a minimum of two years following the date of shipment of Buyer's latest order
requiring the use of that artwork, etc.
EXPERIMENTAL WORK
Experimental work performed at Buyer's request, including but not limited to
sketches, drawings, models and engineering, shall be charged at Seller's current rates.
FREIGHT, RISK OF LOSS
Except as otherwise stated herein, delivery of all Goods shall be F.O.B. Seller's plant, with
freight charges paid by Buyer. Buyer assumes all risk of loss to the Goods from the time they
are delivered to a carrier. Any claim for loss or damage in transit shall be against the
carrier only. Method and route of shipment are at the discretion of Seller unless Buyer
specifies otherwise. Buyer's right to any freight deductions is conditioned on the surrender
of original paid freight bills.
CANCELLATION
Except for a cancellation resulting from a default by Seller, Buyer may not cancel
any order without Seller's prior written consent. In such event, Buyer shall pay Seller the
contract price for all Goods which have been completed by Seller prior to termination and shall
reimburse Seller for Seller's expenses for labor, material, unamortized tooling, overhead and any
other commitments made and expenses incurred by Seller to date of cancellation for Goods not yet
produced, in accordance with Seller's standard charges therefor. Split deliveries may not be
cancelled if Seller has already produced the Goods and they are awaiting delivery. No
cancellation by Buyer for a default by Seller shall be effective until Seller has failed for 30
days from the date it receives written notice of a default to cure such default to Buyer's
reasonable satisfaction.
Seller may cancel any order in whole or in part if: (i) Buyer breaches any term or condition
herein; (ii) any material representation made by Buyer to Seller proves to be false or misleading;
(iii) Buyer is insolvent; (iv) a case naming Buyer as "debtor" is commenced under any chapter of
the United States Bankruptcy Code; (v) Buyer makes an assignment for the benefit of creditors; (vi)
a receiver or trustee is appointed for Buyer's property; or (vii) a formal or informal proceeding
for the dissolution, liquidation or winding up of affairs of Buyer is commenced. In the event
of any cancellation by Seller for any of the foregoing reasons, Seller shall have the rights, in
addition to its other rights, to (a) refuse to deliver Goods and/or perform hereunder, and (b) be
reimbursed by Buyer for Seller's expenses for labor, material and overhead incurred by Seller to
date of cancellation, in accordance with Seller's standard charges therefor.
BUYER'S CREDIT STATUS
All deliveries are subject to continuing approval of Seller's Credit
Department. Notwithstanding any provision herein to the contrary, Seller may, in its sole
discretion, determine that Buyer's financial condition warrants that Buyer pay for any Goods, in
whole or in part, in advance, or at time of delivery on a C.O.D. basis, or in any other manner or
with such additional security as Seller believes necessary to assure payment. Notice of such
determination will be given to Buyer by Seller prior to delivery.
FORCE MAJEURE
Seller shall have no liability hereunder to Buyer or to anyone presenting claims
through Buyer for any delays in delivery or any breach, failure or omission on the part of Seller
if caused by any law, rule, regulation, order or ruling of any Federal, state, or local
governmental authority; any labor disturbances, riot, fire, flood, accident, delay of common
carrier, or act of God; Seller's inability to obtain supplies, raw materials, component parts or
services through its regular and usual sources of supply; delays in shipments or deliveries caused
by Seller's manufacturers and suppliers; or any other cause beyond Seller's control. Where
delivery is to be in installments, delay in delivery of any installment shall not relieve Buyer of
its obligations to accept subsequent deliveries.
IN NO CASE SHALL SELLER BE LIABLE TO BUYER, OR TO ANYONE PRESENTING CLAIMS THROUGH BUYER, FOR
ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES ARISING FROM ANY DELAY IN DELIVERY, OR ANY OTHER
BREACH, FAILURE OR OMISSION BY SELLER, REGARDLESS OF THE CAUSE OR NATURE OF SUCH DELAY, BREACH,
FAILURE OR OMISSION, AND SELLER'S LIABILITY IN ANY SUCH EVENT SHALL IN NO CASE EXCEED THE PURCHASE
PRICE OF THE GOODS SOLD BY SELLER TO BUYER WITH RESPECT TO WHICH ANY DAMAGES ARE CLAIMED.
LIMITED WARRANTY
Seller warrants that the Goods will be free from defects in manufacturing and
materials at the time of shipment. Should Buyer feel that any Goods fail to conform to this
warranty Buyer must give written notice and a specific description of such nonconformity to
Seller's customer service representative within twenty (20) days of delivery or it shall be deemed
to have been waived. Seller must be given the opportunity to inspect the Goods alleged to be
defective. Seller will, at its option, remedy any nonconformity by reworking any defective
Goods, making available reworked or replacement Goods, or by the issuance of a credit for the
defective Goods. Replacement of nonconforming Goods means delivering to Buyer conforming
Goods. It does not mean or include replacement of any product for which the Goods are a
packaging material, and does not include any cost or liability for replacing the replacement Goods
in or on any product. THE FOREGOING WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. Seller's products are sold with the understanding that Buyer will test them under
actual conditions of use and be solely responsible to determine the suitability of the product for
its intended use. Colors will be duplicated as nearly as possible, but exact duplication is
not guaranteed.
THE REMEDIES SET FORTH ABOVE SHALL CONSTITUTE BUYER'S EXCLUSIVE REMEDIES FOR SELLER'S BREACH
OF ANY WARRANTY WITH RESPECT TO THE GOODS OR ANY OTHER LIABILITY OF SELLER TO BUYER (OTHER THAN
WARRANTIES RELATING TO TITLE AND INFRINGEMENT), INCLUDING ANY ARISING OUT OF THE NEGLIGENCE OF
SELLER, STRICT LIABILITY IN TORT OR ANY OTHER LEGAL THEORY. ANY WARRANTIES SPECIFICALLY SET
FORTH HEREIN, AND ANY LIABILITY OF SELLER FOR ANY BREACH OF WARRANTY, ARE CONDITIONED UPON PROPER
STORAGE AND USE OF THE GOODS. IMPROPER STORAGE, HANDLING, ALTERATION OR USE OF THE GOODS WILL VOID
ALL WARRANTIES CONTAINED HEREIN.
LIMITATION OF LIABILITY
SELLER'S LIABILITY FOR ANY CLAIMS, DAMAGES, LOSSES OR LIABILITIES ARISING OUT OF OR RELATING
TO ITS PERFORMANCE OF AN ORDER MADE HEREUNDER SHALL NOT EXCEED THE PURCHASE PRICE OF THE GOODS SOLD
PER SUCH ORDER. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR BUYER'S AFFILIATES, EMPLOYEES,
REPRESENTATIVES, CUSTOMERS OR AGENTS FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, LOSS OF REPUTATION OR LABOR COSTS,
RESULTING FROM THE USE OF INABILITY TO USE THE GOODS, FROM THE GOODS' INCORPORATION INTO OR
BECOMING A COMPONENT OF ANOTHER PRODUCT, FROM ANY BREACH OF THIS AGREEMENT OR FROM ANY OTHER CAUSE
WHATSOEVER, WHETHER BASED ON WARRANTY (EXPRESSED OR IMPLIED), CONTRACT, TORT (INCLUDING STRICT
LIABILITY) OR ANY OTHER THEORY OF LIABILITY AND REGARDLESS OF ANY ADVICE OR REPRESENTATION THAT MAY
HAVE BEEN RENDERED BY SELLER REGARDING THE GOODS OR SELLER'S PERFORMANCE HEREUNDER.
CONFIDENTIALITY
All information furnished by Seller and all information learned or observed about
Seller or its operations through the parties' performance hereunder is confidential, and Buyer
shall not disclose any such information to any other person or use such information for any purpose
other than the fulfillment of its obligations hereunder without Seller's prior written consent.
ACCEPTANCE OF MERCHANDISE
The Goods described herein constitute a single commercial unit. The Goods
shall be deemed accepted by Buyer when Buyer (i) notifies Seller of acceptance in writing, (ii)
uses the Goods or permits use by others, (iii) remits payment for the Goods to Seller, or (iv)
fails to notify Seller of rejection within 30 days after Buyer takes possession of the Goods.
Buyer may not revoke its acceptance, except as specifically permitted under the Uniform Commercial
Code. Any use by Buyer of any part or all of the Goods after any attempted rejection or
revocation or acceptance is wrongful against Seller and will constitute acceptance of all of the
Goods by Buyer. Goods may not be returned unless authorized by Seller. A return goods
authorization number must accompany the shipment. Returned Goods must be securely packed to
reach Seller without damage. Reasonable color variations between color of proofs and
delivered Goods shall not be grounds for rejection of Goods.
STORAGE
If any Goods are not shipped within 30 days after notification to Buyer that they are ready
for shipment, for any reason beyond Seller's reasonable control, including Buyer's failure to give
shipping instructions, Seller may store such Goods at Buyer's risk in a warehouse or yard or upon
Seller's premises and Buyer shall pay all handling, transportation and storage costs at the
prevailing commercial rates.
If Seller has agreed to store preprinted liner and this material is not withdrawn within 6
months after receipt by Seller, Seller shall have the right to dispose of said liner as it sees fit
or charge the Buyer for storage.
HAND HOLES
Buyer agrees to indemnify and hold Seller harmless from claims, suits, liability or damages,
including attorneys' fees and legal expenses, arising out of any accident, injury or death from the
use of container access holes or hand holes in lifting, carrying or otherwise moving the container
by any party, except to the extent any such accident, injury or death is caused by Seller's
negligence in design or manufacture.
MODIFICATION OF TERMS AND CONDITIONS
Except as otherwise expressly set forth herein this document is the final written expression
of all of the terms of the agreement between Buyer and Seller with respect to the sale of the
Goods. No terms or conditions other then those stated herein, and no written or oral
agreement or understanding which in any way purports to waive or modify these terms or conditions,
whether made by any agent, representative or salesperson of Seller or contained in Buyer's purchase
order, shipping release form or elsewhere, shall be binding on Seller unless agreed to in writing
by an authorized representative of Seller.
NO WAIVER
Seller's failure to insist upon performance of any of the terms and conditions set forth
herein or to exercise any right hereunder on any one or more occasions shall not be deemed to be a
waiver of such terms, conditions or rights, nor shall it be deemed to be a waiver of any other
term, condition or right set forth herein.
APPLICABLE LAW; SEVERABILITY
This transaction shall be governed by, and these terms shall be construed and enforced in
accordance with, the internal laws of the State of Wisconsin, without regard to its conflicts of
laws principles. Seller hereby consents to the jurisdiction and venue of the courts located
in Wisconsin. All of the provisions of this contract are deemed to be separate and
severable. If any provision of this contract is held to be invalid or unenforceable, such
invalidity or unenforceability shall not affect the validity or enforceability of the other
provisions hereof.
PARTIES, ASSIGNMENT
As used herein, "Buyer" and "Seller" include their respective heirs, executors, personal
representatives, successors and assigns. No right or interest arising under this document
shall be assigned by Buyer and no delegation of any obligation owed by Buyer shall be made without
the prior written permission of Seller.
SUBSEQUENT ORDERS FROM BUYER
If Buyer should submit subsequent orders (whether oral or written) for additional quantities
of the products described herein (and whether such additional orders are at the same or a different
price), such additional orders shall be subject to the terms and conditions contained herein.
THE TERMS AND CONDITIONS SET FORTH HEREIN WILL GOVERN ALL REORDERS AND ADDITIONAL ORDERS FOR GOODS
OF THE KIND DESCRIBED HEREIN. ANY TERMS OR CONDITIONS CONTAINED IN ANY REORDER OR ADDITIONAL ORDER
WHICH ARE DIFFERENT FROM OR ADDITIONAL TO THESE TERMS AND CONDITIONS WILL BE OF NO BINDING EFFECT
AND ARE HEREBY REJECTED. Seller reserves the right to make changes in the design or
specifications of any of its standard products at any time without notice to Buyer.
DISPUTES
It is the policy of Seller to attempt to settle all disputes through alternative dispute
resolution techniques and to use litigation only as a last resort to settle any dispute, except in
the case of collection of past-due accounts or when other circumstances dictate that litigation is
advisable. Seller has subscribed to the ADR policy statement of the Center for Public
Resources. Buyer agrees to make a good faith attempt to make use of alternative dispute
resolution before instituting any litigation against Seller which arises out of Buyer's purchase of
the Goods.
INFRINGEMENT
Seller will, at its own expense, defend or settle any suits instituted by anyone against
Buyer for alleged infringement of any United States patent relating to products furnished by
Seller. In the case of a final award of costs and damages in such a suit, Seller will pay
such award, and if the use of Seller's product by Buyer shall be enjoined in such a suit, Seller
shall, at its discretion and at its own expense, (a) procure for Buyer the right to use said
product, (b) replace the product with a nonfringing product, or (c) refund the purchase price of
the product upon return of the product to Seller. Seller will not be responsible for any
compromise or settlement made without its written consent.
The foregoing states the entire and exclusive liability of Seller for alleged patent
infringement and is in lieu of any statutory warranty relating to infringement. Seller have no
obligation whatsoever with respect to patent infringement: (1) if Buyer has modified the allegedly
infringing Goods, (2) if the allegedly infringing Goods were not manufactured by Seller, (3) if the
allegedly infringing products shall have been made to the specifications of the Buyer or a third
party, (4) if such alleged infringement shall consist of the use of Seller's products for purposes
other than those for which the same shall have been sold by Seller, or (5) unless the Buyer shall
have made all payments then due under this contract for sale, shall have given Seller immediate
written notice of the institution of any such suit, shall have transmitted to Seller immediately
upon receipt all processes and papers served upon Buyer, shall have permitted Seller through its
own counsel, either in the name of Buyer or in the name of Seller, to defend the same, and shall
have given all needed information, assistance and authority to enable Seller to do so effectively.
Buyer shall indemnify and hold Seller harmless from and against all claims arising out of
alleged infringement of patents, designs, trade secrets, copyrights or trademarks or failure of
Goods to conform to any applicable laws with respect to any Goods manufactured or modified to
Buyer's specifications.
TRADE DESIGNATIONS AND COPYRIGHTS
Buyer warrants that any trademark, service mark or other trade designation or copyrighted
materials Buyer requests Seller to affix to any Goods is owned by Buyer or used with the consent of
and according to the requirements of the owner.
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