These terms and conditions of sale (“Terms”) for the purchase of goods and services (the “Product”) apply to orders placed with Source One Packaging LLC (the “Company”) by the customer (“Customer”). These Terms set forth general business terms and conditions relating to the purchase of the Product by the Customer from the Company. Please note that all orders are subject to the Terms outlined below. Whether Customer is tendering a deposit payment, partial payment on account, full payment, or electing to use credit terms, Customer acknowledges, agrees to, and accepts the Terms, whether or not Customer sign and returns the acknowledgement below. All sales are subject to these Terms and are final.
1. Order Requirements. Customer is to provide Company with all information necessary to fulfill Customer’s order (“Order”). If Customer requests a quote (“Quote”) prior to placing an Order, the Quote provided by the Company is not binding and is subject to the confirmation process set forth herein.
Company will provide Customer with written confirmation (“Order Confirmation”) of the Order as received from Customer and agreed to by Company. Customer is responsible for reviewing the terms of the Order Confirmation to ensure accuracy. Except in the case of expedited Orders, the terms of all Orders as set forth in the Order Confirmation will be deemed accurate and confirmed within 24 hours of transmission of the Order Confirmation unless any changes or corrections are made by Customer within that time and included in a new Order Confirmation prepared by Company. In the case of expedited Orders, Customers must make any changes or corrections immediately upon transmission of the Order Confirmation.
Once the Order terms are confirmed, Customer is solely responsible for any costs associated with changes or modifications to the Order. Customer may cancel Orders only if expressly agreed in writing between the Company and the Customer. Customer’s request for cancellation of the Order may be granted in the sole discretion of the Company, subject to any costs or charges incurred by the Company prior to cancellation. The Company’s determination of such cancellation charges shall be conclusive. No refunds are available once production has started.
Customer-supplied artwork must be delivered in “print ready” form to the Company prior to commencement of work on the Product. Failure of Customer to provide “print ready” artwork will result in their order losing production priority and possible delay. The Company will not be responsible for any delays resulting from the Customer’s failure to provide “print ready” artwork.
Production schedules or lead times are estimates and are not guaranteed, although the Company will use reasonable efforts to meet such estimated production schedules or lead times. Production schedules or lead times begin upon the later of: (a) acceptance of the order by the Company or (b) Customer’s approval of the proof, and end upon shipment from the Company’s facilities.
Customer is responsible for all the accuracy of all copy, directions, warnings, or any additional information appearing on the artwork and compliance with any laws, rules, or regulations relating to the Product.
Customer’s signature, initialing and/or electronic approval of a layout or Customer’s acceptance or confirmation of an Order after a layout is presented to the Customer, shall signify Customer’s approval of Product size, shape, color, design, address information, telephone number, spelling, etc., as shown in the layout. If subsequent proofs are necessary, the Customer must review and approve the entire proof again, not just the corrected or altered portions. The Company attempts to accurately match Customer color samples or requirements, but due to the differences in printing processes and unknown color quality control parameters of previous vendors, the Company does not guarantee 100% color matching. If a Customer deems its order to be “color critical,” Customer shall be fully responsible to request, examine and approve a press proof before production run. All orders for Products shall in addition be subject to the Company color standards which shall be provided to Customer upon request.
Customer represents that all materials to be printed on or otherwise incorporated into Product, including, but not limited to, trademarks and copyrighted works, are owned by Customer or Customer has obtained a license from the owner of such materials. Upon request, Customer will provide evidence of such ownership or license. Customer agrees to indemnify the Company and its related companies for any damages, losses, or expenses as a result of the printing of such materials.
2. Payment Terms. When credit terms are granted by the Company to a Customer, and unless otherwise specified by the Company, terms are net thirty (30) days from the date of the Company’s invoice payable in U.S. currency. The Company has the right, among other remedies, either to terminate an Order or to suspend further performance with the Customer in the event the Customer fails to make any payment when due. Customer shall be liable for all expenses, including attorneys’ fees, relating to the collection of past-due amounts. Company may place a Customer’s account on credit hold for balances that are past due. If the Company deems itself to be insecure with respect to Customer’s financial condition, the Company may require prepayments or other assurances for future deliveries. Customers required to or electing to pay by credit card will be charged a credit card processing fee of 3%.
3. Prices; Ownership of Tooling (Plates); No license; Taxes. Unless otherwise expressly agreed in writing between the Company and the Customer, all prices are subject to change without notice and the prices invoiced will be those in effect at the time of shipment. The price(s) set forth on the Order Confirmation are the price(s) for the Products reflected in such Order Confirmation and pricing for additional orders is subject to change without notice. Customer acknowledges that the Company may charge an additional fee for customized plates required to fulfill an Order and agrees that the Company will retain ownership of the plates at all times.
The purchase of Products from the Company itself confers no license, express or implied, under any patents, copyrights, or technology.
Any tax imposed by any taxing authority that is or becomes payable by reason of the sale, or delivery of Products sold to a Customer, will be payable by the Customer and, if paid by or levied or assessed against the Company, will either be added to the price of the Products or billed to the Customer separately, as the Company may elect.
Customer agrees to keep all pricing information provided by the Company to the Customer confidential.
4. Over/Under Run Allowance. Unless otherwise expressly agreed in writing between the Company and the Customer, all orders are subject to a 10% over/under run allowance in the quantity of Product delivered compared to the quantity of Product ordered and are invoiced accordingly (i.e., invoiced based on the quantity delivered). All orders delivered within the over/under run allowance will be considered acceptable for delivery.
5. Shipping. Unless otherwise expressly agreed in writing between the Company and the Customer, Customer shall be responsible for all shipping and transportation costs associated with the delivery of the Product to Customer. Customer will select the method of shipment and carrier for the delivery of Product from Company to Customer; provided, that such method and carrier is reasonably acceptable to Company. If Customer fails to designate the method of shipment and carrier, the Company shall select the method of shipment and the carrier. Risk of loss or damage and responsibility shall pass from the Company to Customer upon delivery to and receipt by a carrier. All Products shipped are shipped FOB Origin. Any damage to Products while in the possession of the Customer or a third-party carrier is the sole responsibility of the Customer. Customer has the option of electing to insure the Products while the Products are in the possession of a third-party carrier, the cost of such insurance will be borne by the Customer and such costs are in addition to the shipping costs. Company will provide a shipping estimate upon request, but the final shipping costs, including insurance, if any, will not be calculated until generation of the final invoice.
Storage charges are not included in any Order. A storage fee of $25/day will be charged for any orders not picked up or shipped within seven days after being notified by the company that the product is ready, unless mutually agreed upon between customer and the company.
6. Indemnification. Customer, its owners, shareholders, members, agents, employees, and representatives, shall indemnify and hold harmless the Company and all related or affiliated entities, their officers, directors, shareholders, members, employees, agents and attorneys, from all claims, losses, damages, liabilities, costs, and expenses (including all attorneys’ fees and costs) of personal injury, property damage, or advertising liability (not caused by the sole negligence or intentional acts by the Company) resulting from: (i) Customer’s modification of the Product, (ii) any claims or suits arising from any design defect, manufacturing defect, negligence, failure to comply with any laws, rules or regulations, or any other manner of personal injury or product liability claim relating in any way to any product of Customer inserted into, sold with, and/or described by the Product; (iii) any claims or suits relating to infringement of the intellectual property rights of any third party; (iv) any claims or suits arising out of any labeling law, rule, or regulation relating to the Product.
7. WARRANTY AND LIMITED REMEDY. Company warrants only that each Product meets the applicable specifications necessary for typical commercial use at the time the Company ships the Product. Individual Products may have additional or different warranties as expressly stated by the Company on Product literature, package inserts or packages. THE COMPANY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) ANY IMPLIED WARRANTY ARISING OUT OF A COURSE OF DEALING, CUSTOM OR USAGE OF TRADE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY. The Customer or other end-user is responsible for determining whether the Product is fit for a particular purpose and suitable for a particular application. Any statements made by a Company representative as to a Product’s quality or fitness for a particular purpose shall be considered solely the opinion of that person and shall not constitute an express warranty applicable to the Product by the Company. If the Product fails to meet the applicable specifications necessary for typical commercial use at the time the Company ships the Product, Customer’s exclusive remedy and the Company’s sole obligation will be, at the Company’s option, to replace the Product or refund the purchase price. If Customer does not provide Company with a written rejection of the Product and return the Product within 30 days of receipt of the Product, the Product is deemed accepted by the Customer and is deemed to be fit for use for the Customer’s particular purpose and to be in conformance with any warranties in law either express or implied.
8. LIMITATION OF LIABILITY. THE COMPANY WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM THE PRODUCT, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL, REGARDLESS OF THE LEGAL THEORY ASSERTED, INCLUDING WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY. ANY ACTION BY A CUSTOMER, WHETHER IN LAW OR EQUITY, ARISING OUT OF ANY TRANSACTIONS RELATING TO PRODUCT, SHALL BE BROUGHT WITHIN ONE YEAR OF THE DATE OF TENDER OF DELIVERY OF THE APPLICABLE PRODUCTS.
9. Acts of God and Third Parties. The Company shall not be held responsible for or be liable for any default or delay in performance if caused, directly or indirectly, by acts of God, war, fire, the elements, riot, civil commotion, pandemics, strikes, lock-outs, slow-downs, picketing, or other labor controversies, accidents, delay, or default of or failure by carriers, shortages of labor, delay in obtaining or inability to obtain materials, equipment, or parts from regular sources, action, request, or regulation of or by any government or governmental authority, failure or any party to perform any contract with the Company, the performance of which is required for production or sourcing of the Products, or any other happening or contingency beyond the Company’s reasonable control.
10. Entire Agreement. The final Order Confirmation, Final Invoice, and these Terms (together with any other written agreement between the Company and the Customer and executed by both Company and Customer) (collectively, the “Agreement”) shall constitute the entire agreement between the Company and Customer regarding the sale and purchase of the Product. Except as expressly provided in the Agreement, any purchase order, offer, or counteroffer made by Page 5 of 6 Customer before or after the Order Confirmation is rejected and all documents exchanged prior to the Order Confirmation are merely preliminary negotiations and not part of any agreement between the parties. Any terms submitted by Customer which are contrary to or inconsistent with these Terms are expressly rejected and of no force and effect and acceptance is made conditioned upon assent to these Terms. Customer shall have been deemed to agree to these Terms upon the earlier acceptance of the Order Confirmation and acceptance of delivery of the Products. No provision of these Terms shall be subject to change in any manner except as agreed to in writing and signed by an officer of the Company. No salesperson or other employee of the Company is authorized to change these Terms in any manner. No conditions, usage, trade, course of dealing or performance, or understanding purporting to modify, vary, explain, or supplement these Terms shall be binding unless made in writing and signed by an officer of the Company. If an order for Products is repeated and additional Quotes and/or Order Confirmations are not delivered to the Customer, the Customer acknowledges and agrees that these Terms shall apply to and be binding upon all such repeat Orders.
11. Governing Law; Jurisdiction; Forum Selection; Attorneys’ Fees. If Customer breaches all or any portions of these Terms, Customer shall be liable for all the Company’s costs and expenses (including, without limitation, attorneys’ fees, court costs, process server fees, and all related disbursements) incurred by the Company to enforce the Company’s rights. Any action arising out of a breach of these Terms shall be brought exclusively in the Supreme Court of the State of New York, Suffolk County, and Customer hereby consents to the jurisdiction of such Court for that purpose, agrees that it is a convenient forum, and unconditionally waives all rights to make any argument to the Court based on the doctrine of forum non conveniens, removal, or any similar doctrine. These Terms shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any choice of law principles.
12. Miscellaneous. Unless otherwise expressly agreed in writing between the Company and the Customer, the Company reserves the right to publicize the work produced by the Company on the Company’s website etc. in an effort to market and advertise the Company’s expertise.
By placing an order for Products with the Company, the Customer consents to receive notices, announcements, brochures, advertisements, and other information sent by or on behalf of the Company via facsimile, telephone, or e-mail. Such consent continues until terminated by Customer in writing. By placing an order for Products with the Company, Customer consents to the recording of any or all telephone communications between or among the Company and Customer personnel, whether recorded before or after Customer’s receipt of the Order Confirmation.
13. Non-Waiver. No waiver by the Company with respect to any breach or default of any right or remedy and no course of dealing shall be deemed to constitute a continuing waiver of any other breach or default of any other right or remedy unless such waiver be expressed in writing and signed by the Company.
14. Severability. If any provision of this Agreement is held to be invalid or unenforceable, all other provisions shall nevertheless continue in full force and effect.