1. Applicability. These terms and conditions and any documents attached hereto and incorporated herein at the time of execution constitute an offer to provide the products described and, when accepted by the Buyer, shall constitute the entire agreement between the parties (the "Agreement"). For purposes of this Agreement, the term "Seller" shall mean National Imprint Corporation and its affiliates. Buyer's failure to object in writing to this Agreement prior to Seller's commencement of any work or shipment of the goods described in the relevant purchase order, order acknowledgement or other document shall constitute Buyer's acceptance of this Agreement. Any terms proposed by Buyer in any communication or document, including without limitation, preprinted terms on a purchase order, which modifies, differs from or conflicts with this Agreement shall not apply unless specifically agreed to in writing by Seller.
2. Pricing. Prices are effective for thirty (30) or such period as specifically provided in writing, except that prices of materials (such as paper, ink, plates and adhesives) and outside services are subject to change at any time. Seller will notify Buyer of price changes. Pricing does not include postage and does not include freight charges.
3. Cancellations; Modifications. Cancellation or modification of orders accepted by Seller must be submitted in writing by Buyer to Seller. Buyer agrees to pay all costs (whether direct or indirect) incurred by Seller in connection with the order up to the date of termination or modification by Seller.
4. Artwork and Graphics. All artwork, type, plates, dies, tooling, negatives and other preparatory items, when fabricated or procured by Seller, shall remain the exclusive property of Seller, notwithstanding any expense or preparation fee charged to Buyer, and no use of the same shall be made by Buyer without the express prior written consent of Seller.
5. Buyer's Warranty and Indemnity. Buyer warrants that it is the legal owner or licensee of all items or specifications submitted by or on behalf of Buyer to Seller, including artwork and graphics. Buyer further warrants that no material furnished to Seller for the product infringes any copyright or other intellectual property rights of any person, is libelous or otherwise violates the rights of or causes damage to any person or entity, or constitutes a violation of any law. Buyer agrees to defend, at its sole cost and expense, and to indemnify and hold Seller, its parent company, affiliates, employees, officers, agents, successors and assigns, harmless from any liabilities, expenses (including attorney's fees) or damages resulting from, any and all claims, demands, actions or proceedings that are asserted or instituted against Seller arising out of Buyer's breach of its warranties hereunder or any specification or items submitted by or on behalf of Buyer to Seller. Seller reserves the right, in its sole discretion, to refuse to produce any product that it deems illegal, libelous, scandalous, improper or infringing upon copyright law.
6. Shipping; Delivery. Shipping dates are estimates only and are based upon the prompt receipt by Seller of any approved proofs, artwork, special materials, shipping instructions and other custom specifications needed for production of the product. Unless otherwise agreed to in writing by Seller, delivery shall be F.O.B. point of production and the title to the product and risk of loss with respect thereto shall pass to Buyer upon delivery of the product to a common carrier. Seller shall not be liable for any delay or failure in the delivery of any product to Buyer caused by riot, civil commotion, fire, flood, labor dispute, natural disaster or any other event beyond the reasonable control of Seller.
7. Payment; Taxes. Unless otherwise agreed to in writing by Seller, payment of all invoices is due upon receipt. Buyer shall be responsible for all sales and similar taxes relating to each order (which, where applicable, will be added to the amount due from Buyer at the time of invoicing unless a valid exemption certificate is in the possession of Seller prior to the date of shipment). Seller has the right to suspend performance with respect to any outstanding order if and for so long as an invoice to Buyer remains unpaid beyond the applicable payment due date.
8. Insurance. Seller agrees to maintain at its expense insurance policies providing coverage, while in its care and custody and similar coverage from its subcontractors while items are under their care and custody, against loss or damage due to water, sprinkler leakage, fire, explosion, windstorm, civil commotion and other perils covered under its "extended coverage" property insurance policy: (i) all work which may be in process and (ii) all materials furnished by Buyer. All of said insurance policies shall extend coverage to Seller and Buyer as their respective interests may appear. All creative work and Buyer-owned finished goods that is stored with Seller is stored at Buyer's risk, and Buyer is responsible for obtaining insurance thereon.
9. Security Interest. Until all liabilities of Buyer have been paid in full, Buyer hereby grants Seller a security interest in any and all of Buyer's products, artwork, types, plates, dies, engravings, negatives and other preparatory items now or hereinafter possession of Seller as collateral for the payment for any and all liabilities of Buyer to Seller, including, but not limited to, attorney's fees incurred by Seller in regard of any such liabilities.
10. Warranty. Seller warrants that the products delivered to Buyer under this Agreement will conform to any specifications set forth in the applicable purchase order or other similar document expressly agreed to by Seller. IF SAMPLES WERE SHOWN TO BUYER, SUCH SAMPLES WERE FOR GENERAL INFORMATIONAL PURPOSES ONLY AND SHALL NOT BE DEEMED A WARRANTY BY SAMPLE OR OTHERWISE HAVE ANY LEGAL EFFECT. THE WARRANTY IN THIS SECTION 10 IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ALL SUCH OTHER WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED.
11. Limitation of Liability. Upon any breach of warranty or breach of contract, the Buyer's sole and exclusive remedy shall be to receive reimbursement of the price paid for defective product (or the portion thereof with respect to which damages are claimed) or, at Seller's option, Seller may elect to replace any defective products. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SELLER SHALL NOT BE LIABLE TO BUYER FOR ANY AMOUNT BEYOND THAT STATED IN THE PREVIOUS SENTENCE INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COSTS OF ACQUIRING SUBSTITUTE PRODUCTS OR OTHER INTANGIBLE LOSSES. Claims for defective or damaged goods or for shortages shall be made by the Buyer in writing within sixty (60) days after shipment and are otherwise waived. If Seller cures such default, or proceeds diligently to complete the cure within thirty (30) days after receipt of the Buyer's claim, Seller shall not be in violation of this Agreement.
12. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflicts of law rules thereof. Buyer, for itself and its successors and assigns, irrevocably agrees that any suit, action or proceeding initiated by Buyer and arising out of or relating to any transaction subject to this Agreement must be instituted only in a United States District Court located in New York, New York. Buyer, for itself, generally and unconditionally accepts and irrevocably submits to the exclusive jurisdiction of the aforesaid courts.
13. Binding Agreement. This Agreement is binding upon Buyer and Buyer's heirs, administrators, executors, successors, personal representatives and assigns and shall inure to the benefit of Seller and its successors and assigns and supersedes all other agreements, written or oral, regarding the subject matter hereof.