1. PRICES, TAXES, ETC. Unless specified, prices do not include special artwork or preparation or modification of graphics files supplied by Buyer that may be necessary to make such files print ready. If any tax, public charge, duty or tariff, or increase therein, is or shall be assessed or imposed on this transaction, on the goods, on any sale, delivery or other action taken hereunder, or on the export or import of said goods or the raw materials therein, each such charge or change also shall be paid by Buyer.
2. PAYMENT TERMS, COSTS OF COLLECTION, ETC. Payment terms are subject to the approval of Seller’s Credit Department. Buyer by its order represents that it is not insolvent. A late payment charge of 1½% per month, or the highest rate permitted by applicable law, whichever is less, will be imposed from the due date. Buyer agrees that if in the judgment of Seller the financial condition of Buyer or other conditions so warrant, Seller may require full or partial payment in advance. If Buyer fails to make a payment when due, or if the financial responsibility of Buyer becomes impaired or reasonably unsatisfactory to Seller, Seller may defer or discontinue further shipments without prejudice to any other lawful remedy until past due payments or assurances satisfactory to Seller of Buyer’s credit are received or Seller may terminate Buyer’s order without liability to Buyer. In the event of such termination, Buyer shall compensate Seller for any commitments, obligations, expenditures, expenses and costs Seller has incurred in connection with the Order. Each delivery by Seller shall be considered a separate transaction and be paid for separately in accordance with the invoice therefor. Except where specifically prohibited by applicable law, Buyer agrees to pay Seller’s cost of collecting all amounts due, including court costs and reasonable attorneys’ fees, whether or not court action is commenced. In the event of a breach by Buyer, Seller shall have the right to pursue all remedies provided by the Uniform Commercial Code and by law generally.
3. DELIVERY; RISK OF LOSS. Delivery terms shall be specified on the face of the invoice. On sales made F.O.B. delivered basis, no allowance for shortage or damage shall be made by Seller unless Buyer furnishes acknowledgment from the carrier that same occurred in transit. On sales made F.O.B. Seller’s plant or warehouse, Buyer will, in the event of loss or damage in transit, file its own claim with the carrier. Seller shall have the right to make delivery in installments. Estimates of shipment are approximate and failure to effect shipment as estimated will not be considered sufficient reason for cancellation. Risk of loss to the goods purchased shall pass to Buyer at the earlier of the time they are duly delivered to a carrier or are duly tendered to Buyer for delivery.
4. WARRANTIES AND REMEDIES. Seller warrants that the title to the goods purchased shall be free of any encumbrances and also warrants that such goods shall conform to the description on the face of the invoice therefor and be of Seller’s standard quality. Deliveries are subject to standard tolerances for the industry. Seller’s liability and Buyer’s exclusive remedy for defective goods shall be limited solely to replacement or repair of such goods or refund or allowance as Seller may elect. Seller shall be given notice of any claimed defect in such goods within 10 days after receipt thereof by Buyer. If Buyer rightfully rejects the goods, or justifiably revokes acceptance of the goods, Buyer’s sole remedy shall be the return of any part of the purchase price therefor paid upon return of the goods to Seller. Any warranties contained herein are given only to the original Buyer purchasing the goods from Seller and not to any other person or entity.
5. EXCLUSION OF OTHER WARRANTIES AND REMEDIES. Except where such disclaimers and exclusions are specifically prohibited by applicable law, THE FOREGOING SECTION 4 SETS FORTH THE ONLY GUARANTEES OR WARRANTIES APPLICABLE TO BUYER’S ORDER AND SUCH WARRANTIES ARE GIVEN EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE and ALL WARRANTIES WHICH EXCEED OR DIFFER FROM THE WARRANTIES SET FORTH IN SECTION 4 ARE DISCLAIMED BY SELLER. FURTHER, SELLER SHALL NOT BE RESPONSIBLE FOR ERRORS OR OMISSIONS IN THE TEXT OR GRAPHICS OF PRINTED PRODUCTS. Upon request by Buyer, printing proofs will be provided for review and approval. Buyer agrees that oral statements about goods ordered made by Seller’s representatives or statements contained in Seller’s general advertising, pamphlets, brochures, or other printed matter, do not constitute warranties and that its order is not placed in reliance upon them. Buyer further agrees that except where such limitations and exclusions are specifically prohibited by applicable law. BUYER’S SOLE AND EXCLUSIVE REMEDY AGAINST SELLER SHALL BE THE APPLICABLE REMEDY SET FORTH IN SECTION 4, and that no other remedy (including but not limited to the recovery of direct, incidental, special, indirect or consequential damages for lost profits, lost sales, injury to person or property; wasted materials, or any other loss) shall be available to it, whether by direct action, claim for contribution or indemnity, or otherwise, or whether based on contract, tort or other legal theory. This exclusive remedy shall not be deemed to have failed of its essential purpose as long as Seller is willing and able to carry out the terms of the warranties and remedy set forth in Section 4.
6. SECURITY INTEREST. Buyer hereby grants Seller a purchase money security interest in the goods until the entire purchase price is paid in full and upon request Buyer shall perform, or Seller is authorized to perform, all standard acts, including the filing of a financing statement solely on the goods, which may be necessary to perfect and assure retention of such security interest in Seller. If Buyer fails to make any payment of or on account of the purchase price when due, Seller may, at its option, take exclusive possession of the goods whenever found and remove them without legal process, and Seller shall have all rights and remedies of a secured party under the Uniform Commercial Code.
7. INDEMNIFICATION BY BUYER. Buyer shall indemnify Seller and hold it harmless against any and all claims (including without limitation any for infringement of a patent, copyright, trademark or similar right or for any misrepresentation as to approval by any authority or similar organizations) and liability for damages to any property or person incurred or arising in connection with the sale, delivery, or use of the goods except such thereof as shall be caused by or result from Seller’s fault or negligence. Buyer shall bear the burden of proving that any such damages were caused by or resulted from Seller’s fault or negligence.
8. DELAY, ETC. Seller shall not be liable for any loss or damage arising directly or indirectly through or as a consequence of any delay in the fulfillment of or failure to fulfill an order for any cause beyond Seller’s reasonable control including, without limitation to causes of similar type, any act of Nature, governmental regulation or order, inability to obtain from or curtailment of Seller’s then existing sources of supply of energy, raw materials or components, water shortage, explosion, fire, flood, civil commotion, terrorist act, war (whether or not declared), inability to obtain labor, lockout, strike or other labor trouble. In any such event, Seller may terminate Buyer’s order in whole or in part or delay performance thereunder and shall give Buyer notice of such election.
9. CANCELLATIONS AND RETURNS. Any request by Buyer for cancellation or return of an order or any part thereof must be made within 30 days of receipt of an item by Buyer, and to be binding upon Seller must be accepted by Seller in writing, and at Seller’s option, will be subject to fair charges for expenses incurred and work executed by Seller or Seller’s suppliers up to the time of acceptance by Seller of such request and subject to Seller’s standard restocking charges.
10. RIGHT TO VARY SHIPMENTS. Unless otherwise specified by Buyer in writing, Seller reserves the right to under-ship or over-ship 10% of the order quantity of any item on any order.
11. GENERAL. Buyer shall make any claims for shortage or error in filling this order within 10 days after receipt of shipment. Buyer agrees to perform any further acts and deliver any additional documents that may be reasonably requested by Seller in connection with this order including, without limitation, proof of the authorization for Buyer to enter into this transaction. Any indulgences granted to Buyer shall not constitute a waiver of any of Seller’s rights hereunder. Should any part, term, or provision herein be declared illegal or in conflict with any law, rule, or regulation, the validity of the remaining portion, terms or provisions shall not be affected thereby. The terms and conditions contained herein shall constitute the entire agreement of the parties relating to the sale of the goods hereunder. RECEIPT BY SELLER OF BUYER’S PURCHASE ORDER OR OTHER CONFIRMATION SHALL NOT, INSOFAR AS INCONSISTENT HEREWITH OR CONTAINING ADDITIONAL TERMS HERETO, ALTER, VARY OR ADD TO THE TERMS AND CONDITIONS SET OUT HEREIN WHICH SHALL CONTROL AND ANY OTHER SUCH INCONSISTENT OR ADDITIONAL TERMS AND CONDITIONS ARE HEREBY DEEMED REJECTED UNLESS EXPRESSLY APPROVED BY SELLER IN WRITING. The agreement between Buyer and Seller shall be binding upon and inure to the benefit of Buyer and its heirs, successors or assigns, as the case may be, and Seller and its successors and assigns but Buyer may not assign its rights without Seller’s prior written consent. This transaction shall be governed by and construed under the laws of the State where Seller is located. The captions at the beginning of sections are used for convenience only and are not to be considered in attempting to construe any part of the agreement between Buyer and Seller. The parties agree that the transaction described herein may be conducted by electronic means and that this order and other records relating to this order may be stored electronically.