TERMS AND CONDITIONS OF SALE - Pro Label, LLC

Please read these terms and conditions carefully.They materially affects the parties’ obligations. Pro Label, LLC will do business only on the terms and conditions in this document. For purposes herein, “Seller” shall mean Pro Label, LLC and “Buyer” means any purchaser of goods or services from Seller.

In the event that Seller and Buyer have entered into other agreement(s) concerning specific goods or services which have their own terms and conditions of sale, those documents are intended to be complementary and interpreted in harmony with this document so as to avoid conflict, with words and phrases interpreted consistent with industry standards.In the event of any inconsistency, conflict, or ambiguity between or among those agreement(s) and the terms and conditions in this document, the terms and conditions contained in the agreement(s) concerning the specific goods or services shall govern.    

1. ACCEPTANCE AND ORDERS   BUYER'S ORDER IS ACCEPTED ONLY ON THE TERMS AND CONDITIONS CONTAINED HEREIN, AND THE PROVISIONS OF ANY PURCHASE ORDER OR OTHER WRITING INCONSISTENT HEREWITH SHALL NOT CONSTITUTE A PART OF THE CONTRACT OF SALE. Orders shall be deemed accepted upon: (1) Buyer in any manner ordering products or authorizing Seller to perform any of the work shown on the face hereof or Buyer’s purchase order; (2) shipment or delivery of products or services by Seller to Buyer; (3) Buyer approving pre-press proofs, if any; or (4) Buyer approving by written notice or other means. No order may be cancelled without the written consent of Seller. Except as agreed to in a separate writing, no order may be rescheduled or changed without prior written notice of Seller. SELLER EXPRESSLY OBJECTS TO ALL CONTRADICTORY OR VARYING TERMS AND CONDITIONS, WHETHER MATERIAL OR NOT, SPECIFIED IN ANY ORDER, ACKNOWLEDGEMENT, PURCHASE ORDER, CONFIRMATION, OR OTHER DOCUMENT PERTAINING TO THE PRODUCTS OR SERVICES WHICH ARE THE SUBJECT MATTER HEREOF, INCLUDING, WITHOUT LIMITATION, THOSE TERMS AND CONDITIONS REGARDING WARRANTY AND INDEMNIFICATION. If there is a discrepancy or conflict between any purchase order or other document issued in this or any transaction between Buyer and Seller, these terms and conditions shall control.

2. PRICES AND PRICE CHANGES  “Products” shall mean any item, material, product, or service provided or manufactured by Seller. The prices stated herein for products or services shall be invoiced at Seller’s prices and charges in effect at the time of shipment. All quotations shall be subject to review at time Seller accepts any order(s). Unless otherwise stated, the sale prices specified herein do not include any international, federal, state, or local taxes (including, without limitation, sales, use, excise, manufacturing, receipts, gross income, occupation, and similar taxes or changes upon this transaction by any government authority). Wherever applicable, such taxes or charges will be for the account of Buyer. Prices are in U.S. dollars, FCA Seller’s loading dock (Incoterms). If no written price is specified or quoted, price will be Seller’s price in effect at the time of delivery of products or services. All prices are subject to adjustment on account of specifications, quantities, shipping arrangements, changes to order or delivery time, or other terms and conditions that are part of the original price quotation. Seller may at any time make such changes in products as shall, in Seller’s judgment, constitute an improvement. Seller may furnish suitable substitutes for products or materials unobtainable for good cause. Any changes in drawings, designs, materials, or specifications which affect the cost will entitle Seller to establish new prices; if work has been started, Seller shall be fully reimbursed for work substantially completed regardless of whether products or services are accepted by Buyer. Upon receipt of any original or copy, or manuscript, should it be evident that the condition of the copy differs from that which had been originally described and consequently ordered, this order shall be rendered void and a new order issued. Paper stock, inks, camera copy, film, color separations, and other Buyer furnished materials shall be produced, packed, and delivered according to Seller’s specifications. Additional cost due to delays or impaired production caused by specific deficiencies shall be charged to Buyer. In the event that Seller shall be required by any foreign, federal, state, county, or local government, authority, or agency, or any regulatory body, law, rule, regulation, or order to implement technologies for the protection of the environment, which technologies are not in place at the time of this order, or to change operations as a result of the environmental impact of the production techniques required to complete Buyer’s order, Seller shall be entitled to pass on to Buyer the increased cost to Seller of the required technology, and the same shall be deemed added to the price stated herein and in any order(s) submitted.

3. TERMS  Seller shall have the right to require full cash payment in advance before accepting any order, making shipment, or beginning to perform work on any order, regardless of the terms shown on the face of this acknowledgment or any accompanying order. If Buyer defaults in any of the terms of any order or payment, or if the financial responsibility of Buyer shall at any time become impaired or unsatisfactory to Seller, Seller shall have the right to terminate this contract or an order without notice, or to defer or discontinue further shipments or work hereunder. Buyer represents and warrants to Seller that it is solvent and has immediately available funds and will make such funds available to Seller in accordance with the terms hereof to pay for the products or services provided by Seller. Buyer further agrees to provide immediately, upon request of Seller, documentation of its creditworthiness and financial statements demonstrative of Buyer’s ability to pay for the products or services to be provided by Seller. Invoices shall be issued by Seller and directed to the billing address indicated on any order or quotation. Unless expressly agreed in writing or Seller deems it necessary to require cash payment in advance per this Paragraph 3, all invoices are payable thirty (30) days following delivery or acceptance unless other individual agreements are agreed upon in writing prior to acceptance of the order. All amounts not paid shall bear interest at the lesser of eighteen percent (18%) per annum or the maximum rate permitted by law. Buyer shall reimburse Seller for all costs and expenses, including necessary attorneys’ fees, incurred by Seller in collecting amounts past due hereunder. All claims for monies due or to become due from Buyer shall be subject to deduction or set-off by Seller by reason of any claim arising out of this or any other transaction.

4. WARRANTY/ LIMITED REMEDY  Seller warrants that all products or services sold hereunder will conform to the description on the face hereof, that it will convey good title to any products or materials provided hereunder, that such products and materials will be made using workmanship standard to the industry, and that such warranties are in lieu of and exclude all other warranties, express or implied by law, or otherwise. There is NO WARRANTY in cases of damage in transit, negligence, abnormal usage, misuse, accidents, normal wear and tear, or damage due to environmental or natural elements of any products delivered pursuant to any order hereunder. SELLER AND BUYER AGREE THAT THE EXPRESS WARRANTIES IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES (claims on account of defective materials or for any other cause whatsoever shall conclusively be deemed waived by Buyer unless written notice hereof is given to Seller promptly after discovery but not later than fifteen (15) days from date of shipment or pick up). AT ITS OPTION, SELLER SHALL HAVE THE RIGHT EITHER TO REPLACE OR REPAIR ANY DEFECTIVE MATERIALS, TO REFUND THE PURCHASE PRICE UPON RETURN OF THE MATERIALS, OR TO GRANT A REASONABLE ALLOWANCE ON ACCOUNT OF SUCH DEFECTS, AND SELLER SHALL NOT BE LIABLE TO BUYER, OR TO ANYONE CLAIMING UNDER BUYER, FOR ANY OTHER OBLIGATIONS OR LIABILITIES, INCLUDING, BUT NOT LIMITED TO, OBLIGATIONS OR LIABILITIES ARISING OUT OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORT, OR ANY THEORY OF STRICT LIABILITY OR PRODUCTS LIABILITY WITH RESPECT TO THE PRODUCTS OR SELLER’S ACTS OR OMISSIONS OR OTHERWISE. IN NO EVENT WILL SELLER BE HELD LIABLE FOR COMPENSATORY, PUNITIVE, CONSEQUENTIAL, INDIRECT AND SPECIAL, OR OTHER DAMAGES. THE LIMITATIONS SET FORTH IN THESE TERMS AND CONDITIONS REGARDING SELLER’S LIABILITY SHALL BE VALID AND ENFORCEABLE NOTWITHSTANDING A FAILURE OF THE ESSENTIAL PURPOSE OF THE LIMITED REMEDIES DESCRIBED HEREIN. Seller shall be given reasonable opportunity to investigate all claims, and no materials shall be returned to Seller until after inspection and approval by Seller and receipt by Buyer of written shipping instructions from Seller. Buyer agrees that Seller’s liability and Buyer’s remedy for damages, whether in contract, in tort, under any warranty, in negligence, or otherwise, shall not exceed the amount of the purchase price paid by Buyer to Seller for the subject order. The price stated for the goods and/or services is based upon and in consideration for limiting Seller’s liability as set forth herein. No actions arising out of the transactions under any agreement or contract arising from or out of this order may be brought by Buyer more than twelve (12) months after the date of shipment of the products or performance of the services, except that any written notice of claims for defects must be brought within the 15-day time period set forth in this Paragraph 4.

5. DELIVERY; SHIPMENT; TITLE; RISK OF LOSS  All products are sold FCA Seller’s loading dock (Incoterms), and Buyer shall bear all risk of loss or damage in transit, shipping, handling, or storage. No loss or damage in transit, shipping, handling, or storage shall relieve Buyer of any obligation hereunder, including payment for lost or damaged goods. Unless Buyer provides Seller with written instructions regarding shipment of products, Seller shall ship products in accordance with Seller’s usual shipping practices. Seller shall make shipment as near to the expected delivery date as possible, and it may ship in installments with each installment to be separately invoiced and paid for when due, but no rights shall accrue to Buyer hereunder by reason of Seller’s delay in shipping on or by such expected delivery date. Buyer shall be liable for the added costs of storage, hanging, and carrying of materials at Seller’s facility when shipments or orders are postponed or delayed for reasons beyond Seller’s control or at Buyer’s request. Seller reserves the right to add to the selling price handling, delivery, and administration charges. In no event shall Seller be liable to Buyer for consequential damages, including lost profits, resulting from any delayed or faulty delivery. Any delivery not in dispute shall be paid for regardless of any controversies relating to other products. TIME IS NOT OF THE ESSENSE as to the provisions of this order, including, but not limited to dates and deliveries. Claims for shortages or other errors in delivery or production must be made to carrier or Seller within fifteen (15) days from date of invoice. Failure to give such notice shall constitute Buyer’s unqualified acceptance of products and/or services and waiver of any such claims. All products furnished by Seller shall be subject to commercial variations. Unless otherwise agreed to in writing, the following order quality variations shall constitute acceptable delivery for any flexible packaging order: 10-20 MMSI, 20%; 20-30 MMSI, 15%; and 30+ MMSI, 10%. For all other orders, a variation of 10% or less in the order quantity shall constitute acceptable delivery. Title, possession, and risk of loss or damages in transit, shipping, storage, handling, loading, or otherwise stay with Buyer from shipment until delivery to destination designated on the order. Buyer agrees that by providing a signature at the shipping dock of their facility at time of delivery they are acknowledging and accepting the product as in good condition and not damaged in shipping, Seller is not responsible for damage occurred during the delivery process, and claims must be made by Buyer to the shipping company.  Buyer waives any right to modify the shipping contract. Buyer shall maintain adequate insurance to cover the risk of loss or damage in transit, shipping, handling, or storage of products or materials purchased from Seller or delivered to Buyer.

6. PRE-PRESS PROOFS; PRESS PROOFS; COLOR PROOFING  Prior to the production of the products described herein, and when applicable thereafter, pre-press proofs shall be submitted by Seller to Buyer. Seller will not produce the products until the pre-press proofs have been marked “O.K.” or “O.K. with corrections” with written documentation of approval and, if Buyer wishes to review and approve the revised pre-press proofs prior to production, such a request must be made in writing when the pre-press proofs are returned. Seller cannot be held responsible for errors under any or all of the following conditions: if the work is printed per Buyer’s O.K., if changes are communicated verbally, if Buyer has not ordered proofs, if Buyer fails to return proofs with indication of changes, or if Buyer has instructed Seller to proceed without submission of proofs. If Buyer is available at press at the time of make-ready, Seller shall not produce the products, or render any related services, unless or until Buyer signs an inspection sheet evidencing Buyer’s approval of the press proof. Such inspection sheet shall be in a form Seller deems appropriate. Lost press time due to Buyer delay or Buyer changes will be charged at current rates. Because of differences in equipment, processing, proofing substrates, paper, ink, pigments, and other conditions between color proofing, and product pressroom operations, a reasonable variation in color between color proofs and the completed job shall constitute conforming goods.

7. INTELLECTUAL PROPERTY  Any item or material (including, but not limited to, proofs, hardware, software, drawings, and artwork) which Seller creates or purchases for use exclusively in the production of materials or provision of services for Buyer will be used only for that purpose but shall be and remain Seller’s property and in Seller’s possession and control, and any charges therefore shall be for the use of such items or material. If artwork provided to Buyer by Seller is modified by Buyer with or without Seller’s direction, such modified artwork shall be and remain Seller’s exclusive intellectual and personal property and in Seller’s possession and control; any original artwork provided to Buyer by Seller shall be returned to Seller at Seller’s request subject to this Paragraph 7. Buyer will use its best efforts to handle and store carefully while in its possession any materials or equipment owned or furnished by Seller, and Buyer shall be liable for damage or loss thereof. When for three (3) consecutive years no orders have been received requiring the use of any items or materials owned or furnished by Buyer and referred to in this Paragraph 7, Seller may dispose thereof as it sees fit without liability to Buyer after thirty (30) days’ notice to Buyer at its last known address. This order does not constitute and shall not be construed to confer upon Buyer or its customers any license under patents or other proprietary rights of Seller except the right to use such goods for the purposes for which they are sold.

8. CHANGES; CANCELLATION  The contract resulting from this acknowledgment and acceptance of Buyer’s order cannot be cancelled, terminated, or modified by Buyer in whole or in part except with Seller’s written consent, and then only upon terms and conditions then to be agreed upon which shall include protection of Seller against all loss. If Buyer cancels all or part of an order, Buyer agrees to indemnify Seller against any loss related to such cancellations. Buyer shall at a minimum be entitled to be paid a materials fee equal to twenty percent (20%) of the gross price of Buyer’s order in most cases, unless the actual materials fee is larger, in which case the actual materials fee will be charged, which can be up to sixty percent (60%) of the gross price of Buyer’s order, together with such other incidental and consequential damages and loss of profits as may result from cancellation.

9. FORCE MAJEURE  Seller shall not be liable for any loss or damage resulting from any delay in delivery due to: (1) fires; floods; strikes or other labor disputes; accidents to machinery; acts of sabotage; riots; acts of terrorism; precedence or priorities granted at the request or for the benefit, directly or indirectly, of the federal or any state government or any subdivision or agency thereof; delays in transportation or lack of transportation facilities; restrictions imposed by federal or state legislation or rules or regulations; or inability to obtain materials; or (2) any cause beyond the control of Seller.

10. INDEMNIFICATION  Buyer shall indemnify, defend, and hold harmless Seller from and against any claims for infringement of patents, copyrights, trade dress, trade secrets, or trademarks or from unfair competition claims based upon any design, legend, or other matter, whether or not prepared by Seller, printed upon the materials or used by Buyer at Buyer’s request. Seller neither warrants nor represents that any products or services hereunder may be patentable or copyrightable. Buyer shall review and approve all plans, drawings, sketches, renderings, diagrams, specifications, models, plates, and prototypes prepared for Seller by Buyer (collectively “design work”). Such approval shall constitute Buyer’s warranty and representation to Seller that no design work or product produced by Seller for Buyer infringes upon any patent, copyright, trademark, trade dress, or trade secret. Buyer acknowledges that Seller is relying upon Buyer’s representations herein and that Buyer has not made, and is not obligated to make, any independent inquiry or investigation.

11. REMEDIES AND SECURITY INTEREST  Failure by Buyer to make any payment due hereunder, or on request to give proper shipping instructions, or to accept delivery times stated, or to comply with all terms of any contract between Buyer and Seller shall give Seller, in addition to all other available remedies, the right at its option to deduct any undelivered quantities of material, products, or services, whether under this or any other contract between Buyer and Seller. In partial consideration for Seller’s sale of goods or provision of services to Buyer, Buyer hereby grants to Seller without further authorization, and Seller hereby retains a security interest in, all goods sold to, furnished to, or provided to Buyer and documents relating to such goods now or hereafter in the possession of or under the control of Buyer, title to which might at any time be determined to have passed to Buyer, including, without limitation, all inventories of the goods or any other product bearing any trademark or trade name of Seller, returns, or repossessions and the proceeds, including insurance proceeds and proceeds from products in which the goods sold by Seller to Buyer were an input, of all of the foregoing, together with the additions and accessions thereof, to secure all of Buyer’s obligations to Seller under this agreement and all other obligations of Buyer to Seller. Buyer agrees to execute such financing statements and other documents and to take such actions as may be required by Seller to evidence or perfect the security interest granted herein and the interest of Seller. Seller is authorized in Buyer’s name to take such actions as permitted under this contract or applicable law, including, without limitation, signing Buyer’s name, and Buyer hereby appoints Seller as its attorney-in-fact for such purpose. Samples, prototypes, and print runs are subject to separate quotation and negotiation. If, without Seller’s prior written approval, Buyer removes from Seller’s possession any working mechanical art, type, negatives, positives, flats, plates, or Buyer-approved materials (collectively “production materials”) supplied to Buyer for use in production of any products specified herein, then Buyer shall pay Seller at time of removal an additional fee of thirty percent (30%) of the total cost to Seller of creating the same. To secure Buyer’s obligations to Seller, Buyer hereby grants to Seller a security interest consistent with the terms of this provision. If any production materials are in Seller’s possession, risk of loss or damage to such production materials remains with Buyer. Seller is not liable for any loss, damage, or wear and tear that may occur while the production materials are in Seller’s possession, and Seller does not undertake to cover any such property by any insurance. Any production materials in Seller’s possession may be disposed of, and Seller shall be entitled to dispose of the same, ninety (90) days following the completion of any work derived from the production materials. Within the said ninety-day (90-day) period, Buyer may request in writing that Seller ship the production materials to Buyer. Seller may honor such written request and, if so, shall ship the production materials to Buyer at Buyer’s expense FCA Seller’s loading dock (Incoterms) if Buyer is current on all its obligations to Seller at the time of such request. The production materials shall be delivered “as is” and without any warranty as to their condition.

12. APPLICABLE LAW  This acknowledgment and contract created under any order shall be construed to be executed and performed in Wisconsin and Wisconsin laws shall govern its interpretation and enforcement. All litigation arising hereunder shall be commenced and prosecuted in Outagamie County Circuit Court located in Appleton, Wisconsin. Buyer waives all right to remove any litigation to federal court and hereby expressly consents to the exclusive jurisdiction and venue of Outagamie County Circuit Court.

13. INTEGRATION; NO WAIVER  This agreement constitutes the entire contract of sale and purchase of the goods or services named herein. No modification hereof shall be of any force or effect unless in writing and signed by the party claimed to be bound thereby, and no modification shall be affected by the acknowledgment or acceptance of purchase order forms stipulating different conditions. No provision hereof and no breach of any provision hereof shall be deemed waived by any previous waiver of such provision or breach thereof, by any previous Buyer practice or course of dealing, or by Seller’s failure to object to provisions contained in any communication, document, or order of Buyer.