TERMS & CONDITIONS
CMC GROUP, INC.
STANDARD TERMS AND CONDITIONS OF SALES
All sales made by CMC Group, Inc., including its affiliates and divisions, CMC DayMark Corporations (dba DayMark Safety Systems), SmartSolve Industries LLC, and Century Marketing Corporation (dba Century Label) (together or each, "CMC"), of products ("Products" or "Product") are subject to these Standard Terms and Conditions of Sales ("Terms"), except as may be inconsistent with any terms of any written sales agreements signed by an officer of CMC ("Sales Agreement").
1. Entire Agreement; Enforceability of Terms. No order for Products shall be binding upon CMC until acknowledged in writing by CMC by means of an order confirmation or other similar confirmation, however designated ("Confirmation"). The Confirmation and these Terms (together with any terms of any Sales Agreement) shall constitute the entire agreement between CMC and Customer regarding the sale and purchase of the Products. Any purchase order, offer or counter-offer made by Customer before or after the Confirmation is rejected and all documents exchanged prior to the Confirmation are merely preliminary negotiations and not part of any agreement between the parties. Any terms submitted by Customer which are contrary to or inconsistent with these Terms are expressly rejected and of no force and effect and acceptance is made conditioned upon assent to these Terms. Customer shall have been deemed to agree to these Terms upon the earlier acceptance of CMC's quotation, acceptance of delivery of the Products or the issuance of a purchase order to CMC. No provision of these Terms shall be subject to change in any manner except as agreed to in writing and signed by an officer of CMC. Any salesperson or other employee of CMC is not authorized to change these Terms in any manner. No conditions, usage, trade, course of dealing or performance, or understanding purporting to modify, vary, explain, or supplement these Terms shall be binding unless made in writing and signed by an Officer of CMC. In the event that an order for Products is repeated and additional quotes and/or Confirmations are not delivered to the Customer, the Customer acknowledges and agrees that these Terms shall apply to and be binding upon all such repeat orders.
2. Prices; Ownership of Dies and Plates. Unless a fixed price is quoted on an acknowledged sales order or other CMC document, prices are subject to change without notice; and the prices invoiced will be those in effect at the time of shipment. Customer acknowledges that CMC may charge an additional fee for customized dies or plate required to fulfill an order, and agrees that CMC will retain ownership of the dies and plates at all times.
3. Taxes. Any tax imposed by any taxing authority that is or becomes payable by reason of the sale, or delivery of Products sold to a Customer, will be payable by the Customer and, if paid by or levied or assessed against CMC, will either be added to the price of the Products or billed to the Customer separately, as CMC may elect.
4. Terms of Payment. Unless otherwise specified by CMC, terms are net thirty (30) days from the date of CMC's invoice payable in U.S. currency. CMC has the right, among other remedies, either to terminate a purchase agreement or order or to suspend further performance with the Customer in the event the Customer fails to make any payment when due. Customer shall be liable for all expenses, including attorneys' fees, relating to the collection of past-due amounts. If any payment owed to CMC is not paid when due, it shall bear interest at a rate of 12 percent per annum or the maximum rate permitted by law, if less than 12 percent, from the date on which it is due until it is paid. If, in good faith, CMC deems itself to be insecure with respect to Customer's financial condition, CMC may require prepayments or other assurances for future deliveries. Customer hereby grants CMC a security interest in all Products sold ot Customer by CMC, which security interest shall continue until such Products are fully paid for in cash.
5. Shipment and Delivery; Over/Under Run Allowance. Unless otherwise expressly agreed in writing, shipments are made FOB CMC's plant of origin. Risk of loss or damage and responsibility shall pass from CMC to Customer upon delivery to and receipt by a carrier. Any claims for shortages or damages suffered in transit are the responsibility of Customer and shall be submitted by Customer directly to the carrier. Shortages or damages must be acknowledged and signed for at the time of delivery. While CMC will use reasonable commercial efforts to maintain the delivery date(s) acknowledged or quoted by CMC, all shipping dates are approximate and not guaranteed. CMC reserves the right to make partial shipments and to place certain orders on "back order". CMC, at its option, shall not be bound to tender delivery of any Products for which Customer has not provided shipping instructions. If CMC has agreed to pay freight, CMC shall have the right to designate routing and means of transportation; and if Customer requires a more expensive routing and/or means, Customer will pay any extra cost involved. If the shipment of the Products is postponed or delayed by Customer for any reason, Customer agrees to reimburse CMC for an handling and storage costs and other additional expenses relating therefrom. Unless otherwise agreed in writing by CMC, all orders are subject to a 10% over/under run allowance in the quantity of Product delivered compared to the quantity of Product ordered and are invoiced accordingly (i.e., invoiced based on the quantity delivered). All orders delivered within the over/under run allowance will be considered acceptable for delivery.
6. Product Use. All statements, technical information and data contained in Product specifications, descriptions or other documents are based upon tests or experiences that CMC believes are reliable. However, many factors beyond CMC's control can affect the use and performance of a Product in a particular application, including the conditions under which the Product is used and the time and environmental conditions in which the Product is expected to perform. Since these factors are uniquely within the Customer'sor other end-user's knowledge and control, it is essential that the Customer or other end-user evaluate the Product to determine whether it is fit for a particular purpose and suitable for the Customer's or other end-user's specific application(s).
7. WARRANTY AND LIMITED REMEDY. Unless stated otherwise in CMC's literature, packaging inserts, or product packaging related to individual Products, CMC warrants only that each Product meets the applicable specifications at the time CMC ships the Product. Individual Products may have additional or different warranties as stated on Product literature, package inserts or packages. CMC MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY ARISING OUT OF A COURSE OF DEALING, CUSTOM OR USAGE OF TRADE. The Customer or other end-user is responsible for determining whether the Product is fit for a particular purpose and suitable for a particular application. Any statements made by a CMC salesperson or other employee as to a Product's quality or fitness for a particular purpose shall be considered solely the opinion of the salesperson or other employee, and shall not constitute an express warranty. If the Product is defective within the warranty period, the Customer's exclusive remedy and CMC's sole obligation will be, at CMC's option, to replace the Product or refund the purchase price.
8. LIMITATION OF LIABILITY. EXCEPT WHERE PROHIBITED BY LAW, CMC WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM THE PRODUCT, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL, REGARDLESS OF THE LEGAL THEORY ASSERTED, INCLUDING WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY. ANY ACTION BY A CUSTOMER, WHETHER IN LAW OR EQUITY, ARISING OUT OF ANY TRANSACTIONS RELATING TO PRODUCT, SHALL BE BROUGHT WITHIN ONE YEAR OF THE DATE OF TENDER OF DELIVERY OF THE APPLICABLE PRODUCTS.
9. Acts of God and Third Parties. CMC shall not be held responsible for or be liable for any default or delay in performance if caused, directly or indirectly, by acts of God, war, fire, the elements, riot, civil commotion, strikes, lock-outs, slow-downs, picketing, or other labor controversies, accidents, delay, or default of or failure by carriers, shortages of labor, delay in obtaining or inability to obtain materials, equipment, or parts from regular sources, action, request, or regulation of or by any government or governmental authority, failure or any party to perform any contract with CMC, the performance of which is required for production or sourcing of the Products, or any other happening or contingency beyond CMC's reasonable control.
10. Cancellation. Customer may cancel orders only if permitted by the express written terms of the purchase agreement or order and, in that event, only upon reasonable advance notice and upon payment to CMC of CMC's cancellation charges. CMC's cancellation charge shall include, among other things, all costs and expenses incurred or committed by CMC and CMC's prorated profit based on the percentage of completion of the order. CMC's determination of such cancellation charges shall be conclusive.
11. Assignment. Customer shall not assign its rights or delegate its duties hereunder or any interest herein without the prior written consent of CMC; and any such assignment without consent shall be void.
12. Examination - Suitability - Claims. Customer agrees to examine and test each shipment of Product promptly on arrival, before any part of the Products (except for reasonable test quantities) has been changed from its original condition and in no event later than ten (10) days from delivery of the Products to Customer. CMC will not recognize any claims for any cause after the Products have been used, processed, or changed in any manner (except for reasonable test quantities). It is Customer's responsibility to determine whether the Products are suitable for their contemplated use, whether or not such is known to CMC. Customer shall deliver to CMC, within ten (10) days from the date of delivery of the Products, written notice of any deficiencies, defects, variations from specifications, or complaints of any kind with respect to the quantity, quality, condition, shipment, performance, price, or appearance of the Products delivered by Customer. If CMC does not receive such notice within ten (10) days from the date of delivery of the Products, Customer shall be deemed conclusively to have inspected and accepted all such Products unconditionally and to have waived any rights and claims, including without limitation any right to reject the Products or to claims of damages in respect thereof. Customer may not return Products without first advising CMC of the reason therefore, obtaining from CMC a return authorization form, and observing such instruction as CMC may give in authorizing such return CMC's weights and volume measurements taken at the time of shipping shall govern.
13. Technology Rights. The purchase of Products from CMC itself confers no license, express or implied, under any patents, copyrights, know-how, or technology.
14. Orders. Orders are not binding on CMC until CMC issues a Confirmation.
15. Layout Approval; Color Standards; Non-infringement. Customer's signature and initialing of a layout or Customer's acceptance or confirmation of an order after a layout is presented to the Customer, shall signify Customer'sapproval of product size, shape, color, design, address information, telephone number, spelling, etc., as shown in the layout. CMC attempts to accurately match Customer color samples or requirements, but due to the differences in printing processes and unknown color Quality Control parameters of previous vendors, CMC does not guarantee 100% color matching. All orders for Products shall in addition be subject to CMC Color Standards which shall be provided to Customer upon request. Further, Customer represents that all materials to be printed on or otherwise incorporated into Product, but not limited to, trademarks and copyrighted works, are owned by Customer or Customer has obtained a license from the owner of such materials. Upon request, Customer will provide evidence of such ownership or license. Customer agrees to indemnify CMC and its related companies for any damages, losses, or expenses as a result of the printing of such materials.
16. Returned Checks. A Seventy-five Dollar ($75.00) service fee shall be charged for each Customer check that is returned.
17. Lead Times. Production schedules or lead times are estimates and are not guaranteed, although CMC will use reasonable commercial efforts to meet such estimated production schedules or lead times. Production schedules or lead times begin upon the later of (a) acceptance of the order by CMC in Bowling Green, Ohio, or (b) Customer's approval of the proof, and end upon shipment from CMC's plant.
18. Communication. By placing an order for Products with CMC, the Customer consents to receive notices, announcements, brochures, advertisements, and other informaton sent by or on behalf of CMC via facsimile, telephone, or e-mail. Customer further agrees that CMC's express permission to FAX, telephone, or e-mail Customer such notices and other information will continue and have no date of expiration, unless a written request is received revoking such consent or permission. By placing an order for Products with CMC, Customer consents to the recording of any or all telephone communications between or among CMC and Customer personnel, whether recorded before or after Customer's receipt of the Confirmation.
19. U.S. Export Control Regulations. Products sold to Customer by CMC hereunder may be subject to U.S. Export Control Laws. Customer hereby agrees not to re-sell or divert any Products contrary to such laws.
20. Non-Waiver. No waiver by CMC with respect to any breach or default of any right or remedy and no course of dealing shall be deemed to constitute a continuing waiver of any other breach or default of any other right or remedy, unless such waiver be expressed in writing and signed by CMC.
21. Severability. If any provision of this Agreement is held to be invalid or unenforceable, all other provisions shall nevertheless continue in full force and effect.
22. Choice of Law/Choice of Forum. THESE TERMS (AND ANY AGREEMENT OR SALES OR PURCHASE ORDER INTO WHICH THEY ARE INCORPORATED) SHALL BE CONSTRUED, INTERPRETED, AND ENFORCED UNDER AND IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF OHIO, EXCLUDING ITS CONFLICTS OR CHOICE OF LAW RULES OR PRINCIPLES THAT MIGHT REFER TO THE LAW OF ANOTHER JURISDICTION. CUSTOMER AGREES TO EXERCISE ANY RIGHT TO REMEDY IN CONNECTION WITH THESE TERMS OR OTHERWISE IN CONNECTION WITH THE PURCHASE AND SALE OF PRODUCTS EXCLUSIVELY IN, AND HEREBY SUBMITS TO THE EXCLUSIVE JURISDICTION OF, THE COURTS OF WOOD COUNTY, OHIO, OR THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, WESTERN DIVISION.
23. Errors. All typographical or clerical errors made by CMC in any quotation, acknowledgement, or publication are subject to correction.