Terms and Conditions of Sale
AVERY PRODUCTS CORPORATION dba MasterTag (the “Seller”)
TERMS & CONDITIONS OF SALE (“Sale Terms”)
1. Acceptance; Agreement. Seller’s commencement of work on the goods subject to any Purchase Order or shipment of goods pursuant thereto, whichever occurs first, shall be deemed an effective acceptance of any Purchase Order. Any acceptance of such Purchase Order is limited to acceptance of the express terms contained herein and therein and in any attachments hereto. Any proposal for additional or different terms or any attempt by Buyer to vary in any degree any of the terms of these Sale Terms in Buyer’s Purchase Order is hereby objected to and rejected.
2. Binding Orders; Prices. All Purchase Orders shall be considered firm and binding upon acceptance, provided they terminable for cause in accordance with Section 3. If Buyer cancels any Purchase Order, Buyer shall be responsible for the full price of such Purchase Order. Any price quoted by Seller is reflective of current costs of materials and labor. If there is an increase in the cost of making the Goods, the prices quoted are subject to increase. Seller shall not be responsible for delays caused by Buyer.
3. Termination for Cause. Either party may terminate any Purchase Order for default in the event of breach by the other party of these Sale Terms or the terms of such Purchase Order which has not or cannot be cured within thirty (30) days of the non-breaching party’s written notice thereof, or in the event of insolvency, bankruptcy, or receivership of a party, which termination shall be effective upon written notice to such party.
4. Payment and Shipment. Buyer shall make payment net 30 days from the date of invoice. Buyer shall have no right of set-off.
5. Representations and Warranty. Buyer represents and warrants that any content provided to Supplier by Buyer for display on goods made by Supplier for Buyer shall be free from infringing on any third-party rights and/or that Buyer has obtained permission or a license from the third party owner. Claims for defects, damages, or shortages must be made in writing within five (5) days of receipt of Goods. Failure to make such a claim within stated period shall constitute irrevocable acceptance and an admission that they full comply with the terms, conditions, and specifications. Seller agrees, as Buyer’s sole and exclusive remedy, to replace or correct defects of any goods or services not conforming to the foregoing warranty promptly, without expense to Buyer, when notified of such nonconformity by Buyer within the warranty term. EXCEPT AS OTHERWISE REQUIRED BY APPLICABLE LAW OR EXPRESSLY SET FORTH IN THESE SALE TERMS, THE WARRANTIES SET FORTH HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE GOODS, INCLUDING ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS OF PURPOSE, TO THE FULLEST EXTENT PERMITTED BY LAW.
6. Indemnity. Buyer will indemnify and hold Seller and its employees and agents harmless and defend Seller if requested, as to any claims, damages, liabilities, and expenses (including attorney's lees) incurred by, or asserted against, Seller because of (i) Buyer’s breach of these terms, (ii) any claim of infringement relating to the goods to the extent the goods contain any of Buyer’s designs, trademarks, tag lines or other Buyer content or intellectual property, or (iii) Buyer’s negligence or misconduct.
7. Limitation on Seller's Liability. IN NO EVENT SHALL SELLER BE LIABLE FOR ANTICIPATED PROFITS OR FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE THEORY OF RECOVERY. SELLER’S LIABILITY ON ANY CLAIM OF ANY KIND FOR ANY LOSS OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH OR RESULTING FROM THESE SALE TERMS OR ANY PURCHASE ORDER OR FROM THE PERFORMANCE OR BREACH HEREOF OR THEREOF SHALL IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE GOODS WHICH GIVE RISE TO THE CLAIM. SELLER SHALL NOT BE LIABLE FOR PENALTIES OF ANY DESCRIPTION.
8. Force Majeure. Except for non-payment of undisputed monies owed, neither party shall be responsible or liable to the other party for failure or delay in performance of its obligations under the Agreement because of circumstances beyond its reasonable control, including, but not limited to, acts of God, flood, fire, accident, embargoes, sabotage (including, but not limited to computer viruses and other malware), governmental action, or the effect of any laws, ordinances or regulations which restrict or prohibit the transactions contemplated by the Agreement. In the event that a party is unable substantially to perform for any of the reasons described in this Section, it shall notify the other party promptly, in writing, of such inability to perform and shall use reasonable commercial efforts to remove or correct the cause of its inability to perform.
9. Entire Agreement, Ambiguity, Waiver. These terms and conditions, together with all agreements entered into contemporaneously, constitute the entire agreement among the parties pertaining to the subject matter hereof and supersede all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties. No supplement, modification or waiver of any term of these Sale Terms or any Purchase Order shall be binding unless executed in writing by the party to be bound thereby. No waiver of any of the provisions of these Sale Terms or any Purchase Order shall be deemed or shall constitute a waiver of any other provision (whether or not similar) hereof or thereof, nor shall such waiver constitute a continuing waiver unless otherwise expressly provided. In the event of any conflict or ambiguity, the terms of these Sale Terms shall supersede any Purchase Order.
10. Assignments and Subcontracting. No part of any obligation under the Sale Terms or any Purchase Order may be delegated, assigned or subcontracted without the prior written approval of the other party.
11. Invalidity. In the event that any one or more of the provisions contained in this Agreement or any Purchase Order, or in any other instrument referred to herein, shall, for any reason, be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, then to the maximum extent permitted by law, such invalidity, illegality or unenforceability shall not affect any other provision of these Sale Terms or any Purchase Order or any other such instrument.
12. Governing Law and Venue. This Agreement will be deemed to have been made in, and will be construed pursuant to, the laws of the State of Ohio and the United States without regard to conflicts of laws provisions thereof. Any suit or proceeding arising out of or relating to this Agreement will be commenced in a federal or state court in Cuyahoga County, Ohio and each party irrevocably submits to the jurisdiction and venue of these courts. The parties expressly disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods.