TERMS AND CONDITIONS
(a) These Terms and Conditions (these “Terms”) are the only terms which govern the sale of labels and related products (“Labels”) by Multi-Color Corporation, an Ohio corporation, or any of its subsidiaries (“MCC”), to MCC’s customer (“Buyer”). By ordering Labels from MCC, Buyer shall be deemed to have agreed to these Terms. The accompanying quotation and/or order confirmation (the “Order Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. No order shall become binding on MCC until MCC issues an Order Confirmation, accepts the order in writing or starts performing in accordance with the order. Orders which are not accepted by MCC within 60 days shall be deemed rejected. In the event of a conflict among the provisions of these Terms and the Order Confirmation, these Terms shall control. MCC rejects any additional or different terms proposed in Buyer’s purchase order or acknowledgment, supplement or confirmation not executed by MCC.
2. CANCELLATION OR MODIFICATION OF ORDERS
Buyer may not cancel or modify its order with MCC except upon terms accepted in writing by MCC. In the event of such cancellation or modification, Buyer shall compensate MCC for all resultant costs and damages, in addition to a fee equal to 5% of the aggregate amount of such cancelled order. All undelivered Labels may be cancelled by MCC, without incurring any liability to Buyer, if production becomes impracticable.
3. LABEL DESIGNS AND SPECIFICATIONS
(a) Buyer shall be charged for all artwork, printing plates, dies and tooling. All such charges shall be invoiced with the first shipment of Labels unless otherwise agreed in writing by MCC.
(b) Buyer shall furnish or approve all artwork and written material on the Labels (“Label Designs”). Buyer is solely responsible for ensuring the Label Designs comply with Buyer’s requirements, industry standards, and all applicable laws, regulations, and requirements. Buyer grants to MCC a non-exclusive, non-transferable, non-sublicenseable royalty-free right and license to store, create derivative works from, translate, format and otherwise process Label Designs as required in the performance of MCC’s obligations under this Agreement.
(c) Buyer represents and warrants that (i) it has all requisite right, title and interest in the Label Designs, label content and any intellectual property rights comprised therein submitted to MCC for printing in accordance with this Agreement; (ii) the Label Designs do not infringe upon the intellectual property rights or any other rights whatsoever of any third party; and (iii) Buyer and the Labels do not violate any applicable law, regulation, or requirement.
(d) Buyer acknowledges that MCC is not under any obligation to prevent the infringement of the Buyer’s intellectual property rights or any other rights whatsoever by any third party (or by MCC on the direction of any third party) and hereby releases MCC from any liability and agrees that Buyer will not bring any action, claim, proceeding or demand against MCC in respect of any such infringement.
(e) Each party is and will continue to be the sole owner of any intellectual property owned by it prior to the date of the Agreement. Any new intellectual property relating to the subject matter of this Agreement which is conceived, made, authored or reduced to practice under this Agreement will be MCC’s sole and exclusive property. Buyer hereby assigns to MCC, at no additional cost, any and all other copyright, trademark, and other rights that Buyer might have asserted or could assert in such materials. Upon MCC’s request and at Buyer’s expense, Buyer shall provide MCC with such assistance as MCC may require, including executing and delivering to MCC documents, information, or materials in order to enable MCC to protect its ownership rights in such materials. Buyer will not make any adverse claim regarding intellectual property owned by or to be assigned to MCC. Under no circumstances will there be any contingent or continuing fees such as royalties, commissions or profit participation charges payable by MCC to Buyer.
4. ESTIMATES AND QUOTATIONS
Estimates and quotations for the Labels are only valid in writing, and for a period of 30 days from the date of the quotation unless otherwise agreed to in writing by MCC. All pricing shall constitute good faith estimates only and shall be conditioned upon review by MCC of any artwork and/or samples supplied by Buyer.
5. PRICING; PAYMENT TERMS
(a) Buyer shall purchase the Labels from MCC at the prices in effect at the time Buyer places the order. MCC may increase the price of any Labels before delivery of the Labels to a carrier for shipment to Buyer. In such event, then these Terms shall be construed as if the increased price were originally inserted herein, and Buyer shall be billed by MCC on the basis of such increased price.
(b) All prices are exclusive of all sales, use and excise taxes, and any other taxes, tariffs, duties, and charges of any kind imposed by any governmental authority. Buyer shall be responsible for all such charges, costs and taxes; provided, however, that MCC shall be responsible for any taxes with respect to MCC's income, revenues, personnel or real or personal property.
(c) Amounts owed for online orders are due when the order is placed. For all other orders, Buyer shall pay all invoiced amounts within 30 days from the date of MCC’s invoice. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off counterclaim or dispute with MCC.
(a) Unless otherwise agreed in writing by the parties, MCC shall deliver the Labels to Buyer FCA MCC’s manufacturing facility (Incoterms 2020) using MCC’s standard methods for packaging and shipment. Buyer shall be responsible for all loading costs and shall provide all equipment and labor reasonably suited for receipt of the Labels at Buyer’s delivery point.
(b) MCC will use commercially reasonable efforts to meet requested, required, or scheduled delivery dates, but does not guarantee to meet such dates. Time for delivery shall not be of the essence. MCC disclaims any liability or responsibility, and Buyer shall hold MCC harmless, for manufacturing and shipping delays. Failure by MCC to make any shipments by scheduled dates does not constitute a cause for cancellation or for damages. In the event of delay in delivery requested by Buyer or caused by Buyer, MCC will store the Labels at Buyer’s risk and expense.
(c) Buyer shall inspect the Labels within a reasonable period of time following receipt and any claims for shortages or other errors must be noted at the time of delivery on all carrier documents and supported by signed documentation. Claims for shortages or other errors must be made in writing to MCC within 10 calendar days of MCC’s delivery of the Labels to the designated delivery point, provided shipments may contain shortages or overruns not exceeding 5%. Failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Buyer. No Labels may be returned to MCC for any reason without MCC’s prior written authorization. Partial shipments shall be permitted.
7. LIMITED WARRANTY
MCC guarantees for a period of six (6) months from the date of shipment that the Labels will be free of all material defects and will conform in all material respects with the written specifications for the Labels as agreed to by the parties in the Order Confirmation, as amended in writing by the parties from time to time (the “Limited Warranty”). Buyer’s sole and exclusive remedy for any breach of this Limited Warranty shall be limited to replacement, correction or repair of defective Labels at MCC’s facility and in no event shall MCC be liable for any other costs or changes including the cost of inspection, removal, delivery or field service travel expenses. EXCEPT AS PROVIDED IN THIS SECTION 7, MCC MAKES NO REPRESENTATION OR WARRANTY AS TO THE LABELS AND HEREBY DISCLAIMS ANY OTHER WARRANTY INCLUDING NY IMPLIED WARRANTY OF MERCHANTABILITY OR IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. THE WARRANTIES SET FORTH IN THIS SECTION 7 SHALL NOT APPLY TO ANY LABELS THAT HAVE BEEN (I) SUBJECTED TO ABUSE, MISUSE, NEGLECT, NEGLIGENCE, ACCIDENT, IMPROPER TESTING, IMPROPER INSTALLATION, IMPROPER STORAGE, IMPROPER HANDLING, ABNORMAL PHYSICAL STRESS, ABNORMAL ENVIRONMENTAL CONDITIONS OR USE CONTRARY TO ANY INSTRUCTIONS ISSUED BY MCC; OR (II) RECONSTRUCTED, REPAIRED OR ALTERED BY PERSONS OTHER THAN MCC OR ITS AUTHORIZED REPRESENTATIVE.
(a) Buyer hereby releases and agrees to indemnify, defend and hold harmless MCC, its shareholders, directors, officers, employees, affiliates, subsidiaries, agents, successors and assigns (collectively, “MCC’s Indemnified Parties”) from and against any and all direct and indirect claims, demands, actions, liabilities, judgments, damages, losses, fines, penalties, forfeitures, costs and expenses, including, without limitation, reasonable attorneys’ fees and costs of proceedings (collectively, “Damages”), arising out of, in connection with, resulting from or relating to: (i) breach of these Terms or any Order Confirmation or any law by Buyer or any of Buyer’s shareholders, directors, officers, employees, representatives, agents, successors or assigns (“Buyer’s Parties”); (ii) any damage to or destruction of property, or injury to or death of persons caused, or alleged to have been caused, in whole or in part, by any intentional, reckless, negligent or other act (or failure to act) of Buyer or any of Buyer’s Parties; (iii) losses, damages or injuries caused by, arising out of or relating to the Labels and/or Label Designs or the handling or use of the Labels and/or Label Designs, except to the extent caused directly by a breach of the Limited Warranty in Section 7; and/or (iv) any infringements of any patent, trademark, copyright or other intellectual property rights of any other party with respect to the Labels and/or Label Designs either alone or in combination with other products. Buyer understands and agrees that protection for the above-referenced costs, expenses, losses and damages is Buyer's sole responsibility and that it is Buyer's responsibility to obtain and maintain insurance coverage for such costs, expenses, losses and damages. Buyer releases and waives all rights of recovery against MCC by way of subrogation.
9. LIMITATION OF LIABILITY
IN NO EVENT SHALL MCC BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT MCC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. EXCEPT FOR LIABILITY ARISING OUT OF MCC’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL MCC'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO MCC FOR THE LABELS SOLD HEREUNDER OR $250,000, WHICHEVER IS LESS.
10. GRANT OF SECURITY INTEREST
As partial consideration for MCC’s sale of the Labels to Buyer, Buyer hereby grants to MCC and MCC hereby retains a security interest in all Labels sold to Buyer now or hereafter in the possession of or under the control of Buyer, regardless of whether title has passed to Buyer, including, without limitation, (i) all Labels or any other materials bearing any trademark of MCC, (ii) returns or repossessions and (iii) the proceeds of all of the foregoing, to secure all of Buyer’s obligations to MCC under these this Agreement or any invoice issued by MCC to Buyer and all other obligations of Buyer to MCC. Upon the request of MCC, Buyer agrees to execute such financing statements, continuation statements and other documents and to take such actions as may be required by MCC to evidence or perfect the security interest granted herein and the interest of MCC. If Buyer fails to perform any of its duties set forth herein, MCC is authorized to take such actions in Buyer’s name or otherwise to take such actions including, without limitation, signing Buyer’s name, and Buyer hereby appoints MCC as its attorney-in-fact for such purpose.
In addition to any remedies that may be provided under these Terms, MCC may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for five (5) days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
12. FORCE MAJEURE
MCC shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of MCC including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, governmental action, lockouts, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
(a) Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any attempted assignment or delegation in violation of this clause 13(a) shall be void and of no effect.
(b) No waiver by MCC of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by MCC. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
(c) The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
(d) This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
(e) This Agreement will be governed by and construed in accordance with the internal laws of the State of Ohio, excluding any choice of law rules which may direct the application of the laws of another jurisdiction. The parties hereby irrevocably submit themselves to and consent to the exclusive jurisdiction of the Ohio state and/or federal courts located in Hamilton County, Ohio, and Buyer hereby waives any objection based on lack of personal jurisdiction, improper venue, or forum non conveniens. ANY ACTION BROUGHT BY BUYER MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE DELIVERY OF THE LABELS NOTWITHSTANDING ANY STATUTORY PERIOD OF LIMITATION TO THE CONTRARY. The United Nations Convention on Contracts for the International Sale of Goods (“CISG”) is expressly excluded from this Agreement.
(f) Any notice given pursuant to the Agreement shall be in writing and sent by certified mail, postage prepaid, return receipt requested, to the appropriate party at the address set forth in the purchase order, contract or agreement or at such other address as such party may provide in writing to the other party. Any such notice shall be effective upon the receipt thereof.
(g) Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this including, but not limited to, the following Sections: 7, 8, 9, 10, 12 and 13.