TERMS AND CONDITIONS OF SERVICE
1. Offer to Provide Services and/or Products. A quotation or proposal (the “Quotation”) by CHICAGO TAG & LABEL INC. (“Seller”) to its customer (“Purchaser”) named thereon constitutes an offer by Seller to provide to Purchaser the goods and/or services specified in the Quotation solely in accordance with the terms set forth in these Terms and Conditions of Service. The Quotation includes the face page, the reverse of the page and any documents of Purchaser or Seller attached to or referenced in the Quotation, including these Terms and Conditions of Service. The Quotation contains the entire agreement between Purchaser and Seller with respect to the matters set forth in it, and supersedes any previous sales agreements, arrangements, communications or negotiations, whether oral or written, between the parties. Reference to any proposal or purchase order of Purchaser (“Purchaser’s Proposed Order”) will not in any way modify any differing terms and conditions of the Quotation, but will incorporate additional terms of the Purchaser’s Proposed Order to the extent specifically identified in the reference or, if not specifically identified in the reference, all additional terms to the extent not differing from any terms and conditions of the Quotation. The Quotation may be canceled or modified by Seller without notice at any time before acceptance by Purchaser. Any acceptance of Purchaser’s Order in the Quotation is expressly conditional on Purchaser’s assent to the terms in the Quotation that are additional to or different from the terms in Purchaser’s Proposed Order or other prior documents with respect to Purchaser’s Proposed Order.
2. Acceptance and Cancellation.
a. Purchaser may accept and acknowledge the Quotation either by signing it on its face, or issuing a separate, signed purchase order, within 30 days after the date of the Quotation or any later date specified on its face. If Purchaser issues its purchase order instead of signing the Quotation, that act will constitute Purchaser’s unqualified acceptance of the Quotation. The Quotation expressly limits Purchaser’s acceptance to the terms and conditions set forth in the Quotation, and no different or additional terms and conditions contained in the purchase order, to which Seller hereby objects, will in any way be incorporated in the Quotation unless thereafter specifically agreed to in writing by Seller’s authorized representative. Seller’s shipment of proofs or final product does not waive its objections to any different or additional terms and conditions contained in Purchaser’s purchase order or constitute acceptance of them without such written agreement. Once accepted by Purchaser, the Quotation may not be modified except in writing executed by both an officer of Purchaser and a duly authorized representative of Seller.
b. After acceptance of the Quotation, Purchaser may not cancel Seller’s work specified in the Quotation except upon terms that will fully compensate Seller against loss, including reasonable charges for administrative, supervisory and overhead expenses. Seller reserves the right to run and/or furnish the entire amount of products and/or services specified in the Quotation at Seller’s convenience, holding finished products in stock for Purchaser releases. Seller’s agreement to changes in specifications after such production will not relieve Purchaser from its obligation to pay the price of all production already made.
3. Artwork, Design, Layout, Proofs, Samples, Test and Trial Runs, and Tooling.
a. Unless otherwise stated, the Quotation is based on Purchaser’s supplying camera ready copy, or artwork in standard digital format, and there will be additional charges if Seller is required to prepare artwork or text to be printed.
b. If so stated in the Quotation, Seller will provide design, layout and artwork services for the labels, tags and other printed products to be provided to Purchaser. Unless expressly otherwise indicated, the pricing in the Quotation is based on Seller’s retention of the copyrights on the design, layout and artwork elements created by Seller in all proofs, samples and printed trial, test and end-products. Purchaser’s purchase of the printed end-products that are the subject to the Quotation will include a non-exclusive, royalty-free license to use the protected design elements in the printed end-products supplied by Seller. All other rights are reserved.
c. As necessary, Seller will prepare artwork instructions, proofs, samples and/or test or trial runs or orders of products to be supplied for Purchaser approval. Artwork instructions and proofs are intended to show size, style, location, color separation of all text and artwork, materials and/or construction specifications, and test or trial products are for verifying compatibility with Purchaser’s equipment and operational uses. Purchaser must approve each proof or sample or indicate changes before Seller can perform further work. Purchaser is responsible for verifying that proofs, samples and/or test or trial products meet Purchaser’s specifications before Seller begins the print run of the final product. Seller is not responsible for errors in the final product that appear in artwork instructions, proofs, samples and/or test or trial products but are not corrected by Purchaser before Purchaser’s final approval for production of the final product. Placement of an order for the print run of the final product will be deemed approval of the prior artwork instructions, proofs, samples test or trial products. Seller may impose additional charges for an excessive number of proofs or samples required because Purchaser fails to provide prompt and thorough notice of required changes. Seller retains all rights and title in the proofs, samples and/or sample products, including its copyrights on design, layout and artwork elements, regardless of whether such items are delivered to Purchaser and regardless of involvement by Purchaser during design or production of such items.
d. Seller agrees to return or destroy Purchaser’s artwork upon Purchaser’s request after completion of or Seller’s inability to complete the products and/or services specified in the Quotation.
e. If necessary, Seller will make tools and dies to produce the products as specified in the Quotation. If so stated in the Quotation, Purchaser will be required to reimburse Seller for initial tooling costs. All tooling will remain the property of Seller.
4. Prices and Taxes.
a. Unless otherwise stated on the face of the Quotation, the price(s) stated in the Quotation are good for 30 days, and are not guaranteed for more than 30 days after Purchaser’s acceptance. Seller reserves the right to change the quoted prices at any time thereafter.
b. Unless otherwise stated, the price(s) stated in the Quotation are F.O.B. destination at Seller’s address or other location specified on the face of the Quotation and do not include any ship-ping charges or costs of insurance. Prices also do not include any applicable sales taxes or similar charges. If delivery is at Purchaser’s address or any other Illinois location, Seller will charge applicable Illinois sales and use taxes unless Purchaser provides a copy of a valid Illinois Reseller’s certificate and certifies to Seller that the products are for resale to Purchaser’s customers.
5. Terms and Collection.
a. If Purchaser has obtained credit approval for an open account with Seller, invoices are payable in 30 days, with a 1% discount for payment within 15 days of invoice. Purchaser can obtain such credit approval by submitting to Seller’s the information required on Seller’s standard form credit application and Seller’s reasonable satisfaction with the submitted information and other credit information Seller obtains from reliable rating sources.
b. If Purchaser does not obtain credit approval for an open account with Seller, payment terms are cash in advance of production, whereby Purchaser must pay the entire price specified in the Quotation before Seller will furnish proofs, samples and/or any final products or services.
c. Purchaser is not obligated to begin any services or production of any proofs, samples or other products until Seller has obtained credit approval or paid cash in advance of production.
d. If any invoice is not paid when due or within thirty days (whichever is sooner), Purchaser will pay and be liable for all of Seller’s expenses of collection. Expenses of collection include, but are not limited to, costs, attorneys’ fees, expert witness fees and fees charged by collection agents or other persons who assist in collection. Interest will accrue on all sums due to Seller at the rate of 1½% per month or any part of a month (18% per annum) until paid.
6. Delivery. Dates of shipment and/or delivery on the Quotation are estimates based on timely order by Purchaser and are not guaranteed. Seller will provide new estimates upon actual receipt of Purchaser's order, and Seller is not liable for changed estimates because of delays in ordering, changes in availability of raw materials and press and processing time because of other customers' orders received after the date of the Quotation. In any event, Seller is not liable for delay in shipment and delivery of products if an act of god, fire, labor dispute or any other contingency beyond its control ("force majeure") occurs and Seller has notified Purchaser promptly when the force majeure arises, whether before shipment or after placing the shipment with a common carrier and before delivery of the shipment to Purchaser.
7. Risk of Loss. Upon Purchaser’s request, Seller will, at Purchaser’s expense, insure for full the price(s) specified in the Quotation the goods that Seller places on board common carriers for delivery to Purchaser. Except as stated in the Quotation or otherwise agreed in writing by Seller, risk of loss becomes Purchaser’s upon placement of the shipment with the specified common carrier.
8. Inspection. Purchaser may inspect all goods at Seller’s plant or the other agreed delivery location, as is convenient to Purchaser, within ten (10) days after delivery, for patent defects or other noncompliance with specifications. If Purchaser determines that goods are defective or otherwise noncompliant, Purchaser may request replacement of the noncompliant goods or credit for the price charged by Seller. Return of noncompliant goods will be at Seller’s expense.
9. Warranties, Remedies and Limitation of Liability. Notwithstanding any other warranties in Purchaser’s acknowledgment of or purchase order in response to the Quotation, except as otherwise specified elsewhere in the Quotation, Seller provides the following warranties to Purchaser:
a. If, within one (1) year from the date of manufacture, any of the goods and/or services that are manufactured, applied, affixed or otherwise fabricated or supplied by Seller are found to be (i) defective in service by reason of defects in material or workmanship, (ii) not to conform strictly to the specifications, drawings or sample specified, furnished or approved by Purchaser, (iii) unsuitable for their ordinary and customary use or any other use specified by Purchaser and acknowledged in the Quotation, or (iv) not to be in compliance with Seller’s other warranties set forth in the Quotation, Seller will repair or replace such items, F.O.B. destination, and Seller will reimburse Purchaser for all reasonable costs incurred in replacing such items at the place of delivery to Purchaser, or as otherwise mutually agreed by Seller and Purchaser, or, if the defects or unsuitability are latent and outside the control of Seller, Seller will enforce, and will assist Purchaser in enforcing, any and all warranty claims of Seller against Seller’s suppliers and/¬or subcontractors with respect to the defects.
b. Seller warrants that it will convey good title, and the goods conveyed will be free from any security interest or other lien or encumbrance of which Purchaser has not received written notice on or before the date of Purchaser’s acknowledgment of or purchase order in response to the Quotation.
c. Seller warrants that all products and services to be provided to Purchaser pursuant to the Quotation will conform to all affirmations, promises, facts, samples, models and descriptions relating thereto made by Seller to Purchaser in the Quotation (including all attachments thereto).
d. Seller provides printing, coating and other processing services for the production of paper and synthetic labels, tags and other similar readable forms. If Purchaser has indicated that the end products to be furnished by Seller pursuant to the Quotation are to be used for any particular purpose and/or are to be provided to Purchaser’s customers as merchantable goods, Seller agrees to use its best efforts to advise, consult and work with Purchaser in the design of the end products in conformity with Purchaser’s requirements and to inform Purchaser of various alternative materials and processes that Seller may furnish (whether directly or from Seller’s suppliers) that may be suitable to achieve Purchaser’s requirements. Seller’s design and consulting services are subject to Paragraph 3.b, except as otherwise agreed by Seller and Purchaser. Nevertheless, Seller’s consulting and design services cannot substitute for Purchaser’s examination and testing of proofs and samples to verify that the end product will meet Purchaser’s requirements. In addition, Seller cannot provide any warranties to Purchaser with respect to paper or synthetic substrates, inks, coatings or other raw materials obtained from Seller’s suppliers that differ from the warranties it receives from its suppliers. ACCORDINGLY, EXCEPT AS EXPRESSLY OTHERWISE STATED IN THE QUOTATION, SELLER DISCLAIMS AND MAKES NO WARRANTIES OF FITNESS OR SUITABILITY FOR USE OR FOR PARTICULAR PURPOSE OR OF MERCHANTABILITY WITH RESPECT TO ANY PRODUCTS OR SERVICES TO BE FURNISHED TO PURCHASER PURSUANT TO THE QUOTATION.
e. Seller warrants that it has and will comply with all federal, state and local laws, statutes, ordinances, rules, regulations and codes (“Applicable Law and Regulations”) applicable to Seller’s provision of the products and/¬or services specified in the Quotation, except that Seller will have no responsibility for compliance of the artwork, text or printed format of any product specified in the Quotation with any Applicable Law and Regulations.
f. Purchaser will have no remedies for Seller’s failure to perform its obligations under the Quotation other than repair or replacement of products and services or refund of some or all of the price paid by Purchaser thereunder, as set forth above in this Paragraph 9. Seller will in no event have obligations or liabilities to Purchaser or any other person for loss of profits, loss of use or incidental, special or consequential damages, whether based on contract, tort (including negligence), strict liability, or any other theory or form of action, even if Seller has been advised of the possibility thereof, arising out of or in connection with the sale, delivery, use, repair or performance of the products and/or services described in the Quotation, or any failure or delay in connection with any of the foregoing. Without limiting the generality of the preceding sentence, Seller will not be liable for personal injury or property damage. In no event will the liability of Seller arising in connection with the products and/or services provided pursuant to the Quotation exceed the actual price paid by Purchaser to seller for the products and/or services delivered.
g. Seller will not be liable to Purchaser for any claim brought by Purchaser more than one hundred eighty (180) days after delivery of goods or completion of services pursuant to the Quotation, and such claims are thereafter barred.
10. Indemnification. Purchaser will defend, indemnify and hold Seller harmless against any and all claims, damages, expenses (including reasonable attorneys’ and expert witness fees and out-of-pocket costs) or other damages incurred by Seller as a result of any infringement of any copyrights, trade secrets, patents or other intellectual property of any third party resulting from Seller’s use of Purchaser’s artwork, design, layout, plans, specifications, text or other intellectual property furnished or specified by Purchaser for the products and/or services specified in the Acknowledgment.
11. Applicable Law and Remedies. The Quotation will be deemed a contract made under and governed by the laws of the State of Illinois. All proceedings with respect to any disputes arising out of the Quotation or these Terms and Conditions of Service included therein must be brought exclusively before State or Federal courts sitting in Chicago, Illinois, and Purchaser and Seller waive any objection to personal jurisdiction and venue in such cases, except that further proceedings in enforcement of any award of such courts may be brought in any jurisdiction where the party subject to such award or any of its property may be found. Seller will not under any circumstances be liable for any of Purchaser’s costs, interest charges, attorneys’ or expert witness fees or out-of-pocket costs or expenses with respect to the Quotation or of any relationship between the parties.
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