APPLICABILITY These are the Terms and Conditions (“Terms”) under which Citation Healthcare Labels, LLC (“Printer”) sells its products and services to third parties (each, a “Customer”). A Customer with notice of these terms, however gained, including the use of Printer’s website, will be subject to these Terms regardless of what method is used to submit its offer to purchase (“Order”). Printer’s acceptance of any Order by Customer is expressly conditioned on Customer ‘s agreement to these Terms. Printer will not be bound by, and specifically objects to, any term, condition, or other provision which is different from or in addition to the provisions of these Terms which is proffered by Customer in any Order, receipt, acceptance, confirmation, correspondence, or otherwise, unless Printer specifically agrees to such provision in a written instrument signed by Printer. These Terms, Printer’s quotation and the accepted Order constitute the entire agreement between Customer and Printer.
PURCHASE AND SALE
QUOTATION Upon request by Customer, Printer shall issue a quotation. All prices are based on material costs at the time of quotation. A quotation not accepted within sixty (60) days is subject to review.
ORDERS Printer shall sell to Customer, and Customer shall accept and pay for, all products and services ordered by Customer pursuant to an Order that has been accepted by Printer. After acceptance by Printer, no Order may be cancelled by Customer except upon terms which will compensate Printer for special, consequential and/or other damages incurred as a result of such termination, including loss of profits and attorney’s fees and costs incurred by Printer.
CONDITION OF COPY Upon receipt of original copy or manuscript, should it be evident that the condition of the copy differs from that which had been originally described and consequently quoted, the original quotation and the subsequent Order will, at Printer’s option, be rendered void and a new quotation will be issued.
PRE-PRESS PROOFS Unless Customer’s Order is marked “preapproved” by Customer upon Order placement, pre-press proofs shall be submitted to Customer with original copy. Corrections are to be made on the master set, and returned marked “O.K.” or “O.K. with corrections” and signed by Customer. If revised proofs are desired, the request must be made when proofs are returned to Printer. Printer shall not be liable for errors if Customer has (i) failed to return proofs with indication of changes, or (ii) instructed Printer to proceed without submission of proofs.
PRODUCTION SCHEDULES Production schedules will be established and adhered to by Customer and Printer, provided that neither shall incur any liability or penalty for delays due to state of war, riot, civil disorder, fire, labor trouble, strikes, accidents, energy failure, equipment breakdown, delays of suppliers or carriers, action of government or civil authority and acts of God or other causes beyond the control of Customer or Printer. Where production schedules are not adhered to by Customer, or where production is delayed because copy or material furnished by Customer are not in accordance with the parties’ specifications, the final delivery date(s) will be renegotiated and reasonably extended to account for delays resulting from the
CUSTOMER-FURNISHED MATERIALS Paperstock, inks, camera copy, artwork, color separations, and other Customer -furnished material must be manufactured, packed, and delivered to Printer’s Additional cost due to delays or impaired production caused by specification deficiencies will be charged to Customer. Materials delivered from Customer or Customer’s suppliers are verified with delivery ticket as to cartons, packages, or items shown only. The accuracy of quantities indicated on such tickets cannot be verified, and Printer shall not be liable for shortage based on Customer’s supplier’s tickets. Charges related to delivery from Customer to Printer, or from Customer’s supplier to Printer, are not included in any quotations unless specified.
ALTERATIONS Alterations represent work performed in addition to the original specification. Such additional work will be charged at current rates and be supported with documentation upon request.
ACCEPTANCE AND DELIVERY
COLOR PROOFING Because of differences in equipment, processing, proofing substrates, paper, inks, pigments, and other conditions between color proofing and production pressroom operations, a reasonable variation in color between color proofs and the completed job will constitute acceptable
OVER-RUNS AND UNDER-RUNS Printing is performed roll to roll, and Printer cannot guarantee exact quantities. Over-runs or under-runs not to exceed 10% on quantities ordered will constitute acceptable delivery. Printer will bill for the actual quantity delivered within this tolerance. If Customer requires a guaranteed exact quantity, Customer is advised to order 10% over such quantity.
DELIVERY Unless otherwise agreed in writing, products will be delivered in a single shipmentO.B. Printer’s shipping dock (under U.C.C. shipping terms). Pricing is based on continuous and uninterrupted delivery of the complete Order without storage, unless the specifications distinctly state otherwise. Title and risk of loss for printed product will pass to Customer upon delivery to the carrier at Printer’s shipping dock. Special priority or delivery service will be provided at current rates upon Customer’s request.
CLAIMS FOR DEFECTS OR SHORTAGES Printer warrants to Customer that at delivery, products will conform to the specifications agreed upon by the parties and will be free from defects in material and workmanship with respect to materials provided by Printer. Claims for defects or shortages must be made by Customer in writing within a period of thirty (30) days after delivery of all or any part of the Order giving rise to such claim. Failure to make such a claim within the stated period will constitute irrevocable acceptance and an admission that such part of the Order so delivered complies with all terms, conditions and specifications. Customer’s sole and exclusive remedy and Printer’s sole liability, whether based upon warranty, contract or tort, including negligence, is limited to Printer’s (i) supply of additional product to address a shortage; and (ii) replacement of the printed products claimed to be defective; provided, Printer will not be liable for defects caused by or arising from use of Customer-furnished materials.
BOOKLETS Notwithstanding anything to the contrary within this Section 5: pricing for Orders for custom order booklets (“Booklet(s)”) includes storage at Printer’s onsite facility; shipping terms for Booklet Orders are F.O.B. Printer’s onsite storage facility (under U.C.C. shipping terms) and title and risk of loss for the Booklets shall pass to Customer upon delivery to Printer’s onsite storage facility; and claims for defects or shortages must be made by Customer in writing within a period of thirty (30) days after delivery to the end user.
PRICING AND PAYMENT
PRICING Customer shall pay the prices specified in the applicable Order. Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Customer.
PRESS PROOFS Unless specifically provided in Printer’s quotation, press proofs are not included in pricing and will be charged at current rates. An inspection sheet of any form can be submitted for Customer approval, at no charge, provided Customer is available at the press during the time of makeready. Lost press time due to Customer delay, or Customer changes and corrections, will be charged at current
EXPERIMENTAL WORK Experimental or preliminary work performed at Customer’s request will be charged at current rates and may not be used until Printer has been reimbursed in full for the amount of the charges
PAYMENT Payment terms are net 30 days from the date of invoice. If Customer is late in making payment with respect to any Order, including any prior and unrelated order of Customer with Printer, Printer may, without affecting any other rights or remedies, (i) charge a late payment fee, from the due date until paid, at the rate of one and a half percent (1.5%) per month (18% per year) or such lesser amount as is the maximum rate of interest allowed by law; or (ii) withhold delivery of all or any portion of the Order. Customer shall pay any and all reasonable costs, including attorneys’ fees, incurred by Printer in collecting any delinquent balance.
PRINTER’S LIEN As security for payment of any sum due with respect to any prior order, or to become due under the terms of this or any other agreement between Printer and Customer, Printer shall have the right, if necessary, to retain possession of, and shall have a lien on, all Customer property in Printer’s possession including work in process and finished work. The extension of credit or the acceptance of notes, trade acceptance or warranty of payment will not affect such security interest and
CREATIVE WORK Creative work, such as sketches, copy, dummies, and all preparatory work developed and furnished by Printer, will remain Printer’s exclusive property and no use of same may be made, nor any ideas obtained therefrom be used, except upon compensation to be determined by Printer.
PREPARATORY MATERIALS Working mechanical art, type, negatives, positives, flats, plates, and other items when supplied by Printer, will remain Printer’s exclusive property unless otherwise agreed in writing.
CUSTOMER’S PROPERTY Printer will maintain fire, extended coverage, vandalism, malicious mischief and sprinkler leakage insurance on all property belonging to Customer , including Customer -furnished material, while such property is in Printer’s possession. Printer’s liability for such property will not exceed the amount recoverable from such insurance. Customer’s property of extraordinary value will be insured through mutual agreement.
PRINTER’S LIABILITY; DISCLAIMER Printer’s liability hereunder will be limited to the selling price of any printed products claimed to be defective and will in no event include special, indirect, incidental, or consequential damages, including lost profits or loss of Customer’s clients. EXCEPT AS EXPRESSLY STATED HEREIN, PRINTER MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR GOODS, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
INDEMNIFICATION Customer shall indemnify and hold harmless Printer from any and all loss, cost, expense, and damages (including court costs and reasonable attorney’s fees) on account of any and all manner of claims, demands, actions, and proceedings that may be instituted against Printer on grounds alleging that the said printing violates any copyrights or any proprietary right of any person, or that it contains any matter that is libelous or obscene or scandalous, or invades any person’s right to privacy or their personal rights, except to the extent that Printer contributed to the matter.
GOVERNING LAW Customer hereby agrees that the only proper jurisdiction and venue for any dispute with Printer, or in any way relating to these Terms, is in the state and federal courts in the State of Minnesota. All disputes with Printer will be governed by the laws of the State of Minnesota, without regard to provision on the conflict of laws.
General These Terms may only be amended or modified in a writing signed by Printer and Customer. No waiver by either party of any breach of these Terms will constitute a waiver of any other, preceding, or succeeding breach of the same or any other provision, nor will any waiver constitute a continuing waiver. The delay by or failure of a party to enforce any provision of these Terms will not be construed as a waiver of that provision, nor will it prevent that party from thereafter enforcing that provision or any other provision hereof. If any provision hereof is held to be invalid or otherwise unenforceable for any reason, then such provision will be severed from these Terms or modified to the minimum extent necessary to reflect the parties’ intention, and all other terms and remaining conditions will continue to be in force.