Drawing Board®. STANDARD
TERMS AND CONDITIONS OF SALE
These terms and conditions of
sale (“Agreement”) are applicable to any order placed with and accepted
by Drawing Board® (referred to herein as “Supplier”):
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SCOPE OF AGREEMENT. Supplier, upon acceptance of an Order placed
by Buyer, will supply the products and services specified in the Order (the
“Work”) to Buyer, pursuant to the terms and conditions of this Agreement and
its exhibits and Supplier’s acceptance of such order submitted by Buyer is
expressly limited to the terms and conditions of this Agreement notwithstanding
any contrary provision contained in Buyer’s purchase orders, invoices,
acknowledgements or other documents. The details of the Work (e.g. quantity,
price, and product specifications) shall be set forth in the relevant Order.
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PRICE AND TERMS. (a) The
prices payable by Buyer for goods and services to be supplied by Supplier under
this Agreement will be specified in the applicable Order. Unless otherwise
expressly stated in an Order, all prices exclude shipping and taxes. (b)
Payment terms are net thirty (30) calendar days from the date of the invoice.
If Buyer does not pay an invoiced amount within terms, Buyer will in addition
pay finance charges of one and one-half percent (1.5%) per month on the late
balance and Supplier reserves the right to (1) withhold
shipment of the Work until full payment is made; and/or (2) revoke any credit
extended to Buyer. In the event that Buyer’s account is more than ninety (90)
days in arrears, Buyer shall reimburse Supplier for the reasonable costs,
including attorneys fees, of collecting such amounts from Buyer.
In the event of any dispute regarding an invoice, no finance charges will apply
in the event that Buyer provides written notice of the dispute prior to the due
date for such payment. (c) Upon reasonable request by the Supplier, Buyer shall
provide copies of its most recent audited financial statements or other
reasonable evidence of its financial capacity and such other information as
Supplier reasonable requests to determine credit status or credits limits. (d)
Buyer shall provide notice within five (5) business days of the occurrence of
any event which materially affects Buyer’s ability to perform its obligations
under this Agreement including but not limited to: (i) the material default of
any supplier or sub-contractor; (ii) labor strike or dispute; or (iii) material
uncured default with respect to any debt obligations of Buyer. (e) Pricing
schedules (whether attached to this Agreement or an Order) are subject to
change upon a change in the price of applicable raw materials (as reflected on
a recognized trade or commodity pricing tracker) in excess of five percent (5%)
from the date of such schedule. (f) Unless otherwise specified in the Order,
Work will be delivered FOB Supplier’s manufacturing facility and will be
shipped to Buyer via carriers selected by Supplier.
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BUYER MATERIALS AND DATA. (a) Buyer
represents and warrants that any matter it furnishes for performance of
services by Supplier (i) does not infringe any copyright or trademark or other
Intellectual Property Rights of any third party; (ii) is not libelous or
obscene; (iii) does not invade any persons right to privacy; and (iv) does not
otherwise violate any laws or infringe the rights of any third party. (b) Buyer
warrants that it has the right to use and to have Supplier use on behalf of
Buyer any data provided to Supplier or its Affiliates by Buyer including
specifically customer names, identifying information, addresses and other
contact information and related personal information (“Data”). Buyer
further warrants that it will designate on the applicable Order if Data
provided pursuant to that Order is subject to HIPAA, Gramm-Leach-Bliley or
other statutes providing enhanced data protection or requiring enhanced data
security procedures.
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INTELLECTUAL PROPERTY. Any and all inventions, discoveries,
patent applications, patents, copyrights, trademarks and trade names,
commercial symbols, trade secrets, work product and information embodying
proprietary data existing and owned by Buyer as of the date of the Order or
made or conceived by employees of Buyer during the Term of the Order shall be
and remain the sole and exclusive property of Buyer provided that
Buyer grants to Supplier a license to use, display and distribute (and to
sub-license its affiliates and sub-contractors to use, display and distribute)
any intellectual property rights delivered to Supplier as reasonably necessary
to perform any Order. Any and all inventions, discoveries,
patent applications, patents, copyrights, trademarks and trade names,
commercial symbols, trade secrets, work product and information embodying
proprietary data existing and owned by Supplier as of the date of the Order or
made or conceived by employees, consultants, representatives or agents of
Supplier during
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the term of this Agreement shall be and remain the sole and exclusive property
of Supplier. Without limiting the generality of the foregoing, the parties
agree that Supplier will own systems (including all web source code) related to
the Services provided hereunder, including all modifications, upgrades and
enhancements thereto made during the term of the Order. [Without limiting the
generality of the foregoing, Buyer acknowledges and agrees that Supplier is in
the business of developing customized print and e-commerce solutions, and the
provision of print and fulfillment order services, and that Supplier shall have
the right to provide to third parties services which are the same or similar to
the services provided herein and to use or otherwise exploit any Supplier
materials in providing such services.
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CONFIDENTIAL INFORMATION. Any information that parties receive or
otherwise have access to incidental to or in connection with this Agreement
(collectively, the “Confidential Information”), shall be and remain the
property of the disclosing party. Confidential Information shall not include
information which: (i) was in the possession of the Receiving Party at the time
it was first disclosed by the Disclosing Party; (ii) was in the public domain
at the time it was disclosed to the Receiving Party; (iii) enters the public
domain through sources independent of the Receiving Party and through no breach
of this provision by the Receiving Party; (iv) is made available by the
Disclosing Party to a third party on an unrestricted, non-confidential basis;
(v) was lawfully obtained by the Receiving Party from a third party not known
by the Receiving Party to be under an obligation of confidentiality to the
Disclosing Party; or (vi) was at any time developed by the Receiving Party
independently of any disclosure by the Disclosing Party. Confidential
Information may be used to the extent necessary to perform this Agreement and
the parties shall not disclose Confidential Information to any third party,
except to its agents (who have executed confidentiality agreements containing
terms substantially similar to the terms) as necessary to provide the Work
hereunder. In no event shall Buyer acquire any right, title or interest in and
to any product or process information, including related know how, either
existing or developed during the course of the business relationship with
Supplier and Buyer, and in no event shall Supplier acquire and right, title, or
interest in and to any materials or information provided to it by Buyer.
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INDEMNIFICATION. The indemnifying party, as Indemnitor, shall
indemnify, defend and hold harmless the indemnified party, as Indemnitee, its
officers, directors, employees, agents, subsidiaries, and other affiliates from
and against any and all claims, damages, liabilities, and expenses (including
attorney fees) arising from any third-party claim based on Indemnitor’s (or its
agent’s) breach of any representation, warranty, covenant, agreement, or
obligation under the Order or this Agreement , or Indemnitor’s (or its agent’s)
grossly negligent and/or willful acts in carrying out its obligations under the
Order or the Agreement, provided that in no event shall Supplier be responsible
for any claims arising out of its compliance with instructions, requirements,
or specifications provided by or required by Buyer (including the use of
information, artwork, logos, and/or trademarks provided by Buyer). Neither
party will be responsible for indemnifying another party hereto where the basis
of the indemnity claim arises out of such other party’s own negligence or
willful misconduct. In order to avail itself of this indemnity provision,
Indemnitee shall promptly provide notice to Indemnitor of any such claim,
tender the defense of the claim to Indemnitor, and cooperate with Indemnitor in
the defense of the claim. Indemnitor shall not be liable for any cost, expense,
or compromise incurred or made by Indemnitee in any legal action without the
Indemnitor’s prior written consent.
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BREACH. In addition to all other rights to which a party is
entitled under this Agreement , if either party breaches any term of the Order
or the Agreement , the non-breaching party shall have the right to: (a)
terminate the Order immediately upon written notice to the other party; and (b)
seek to obtain injunctive relief to prevent such breach or to otherwise enforce
the terms of this Agreement. Failure to properly demand compliance or
performance of any term of the Order or this Agreement shall not constitute a
waiver of Supplier’s rights hereunder and prior to any claim for damages being
made for non-conformance or breach, Buyer shall provide Supplier with
reasonable notice of any alleged deficiencies in the Work or performance under
the Order or this Agreement and Supplier shall have a reasonable opportunity to
cure any such alleged non-conformance or breach.
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WARRANTY. Supplier warrants that the Work shall reasonably
conform to specifications in all material respects. Supplier will provide Buyer
with an on-line printing proof for Buyer approval. Once Buyer approves a proof,
Buyer will be liable for all fees associated with the order, as specified in
the Order. If Buyer supplies Supplier stock or items for imprinting as part of
the Order, Supplier is not responsible for issues related to the quality of the
stock or items for imprinting. Supplier will not provide refunds for any Work
conforming to specifications in all material respects. Other than the
warranties set forth in this section, Supplier makes no warranty of any kind,
expressed or implied or otherwise whatsoever, that the services performed or
any items produced will be merchantable or fit for any particular
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purpose or use. In the event of any breach of any warranty specified in this
provision, Buyer’s exclusive remedy shall be that Supplier shall, at its
option, repair or replace any defective goods at no cost to Buyer or refund any
purchase price paid for such Work.
- LIMITATION OF LIABILITY. IN NO EVENT SHALL
EITHER PARTY BE LIABLE HEREUNDER FOR INCIDENTAL, SPECIAL, INDIRECT,
CONSEQUENTIAL, OR PUNITIVE DAMAGES EVEN IF ADVISED IN ADVANCE OF THE
POSSIBILITY FOR SUCH DAMAGES AND VENDOR’S TOTAL LIABILITY FOR DAMAGES UNDER
THIS AGREEMENT AND THE ORDER SHALL BE LIMITED TO THE TOTAL FEES DUE HEREUNDER
FOR THE INVOICE UPON WHICH A CLAIM IS BASED.
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NOTICE. Any notice sent pursuant to the
Order or this Agreement shall be sent by certified mail, return receipt
requested, or by overnight mail to the addresses on the Order or to such
address as either party may in the future designate. A copy of any notice to
Supplier shall be also sent to General Counsel, 1725 Roe Crest Drive, North
Mankato, Minnesota 56003 together with a copy this Agreement. Notices shall be
effective upon receipt.
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ASSIGNMENT. Except as otherwise provided, the Order and
this Agreement shall be binding upon and inure to the benefit of the parties’
successors and lawful assigns.
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INCONSISTENT DOCUMENTS INEFFECTIVE: No proposal, purchase order,
order confirmation, acceptance, or any other document provided by Buyer, nor
any electronic click-wrap, terms of use or similar online consent or acceptance
language accompanying or set forth as a prerequisite to any electronic
interface or utility associated with any Work, shall be deemed to amend the
terms hereof and any such contradictory or additional terms shall be
ineffective. In the event of any ambiguity or conflict between any of the terms
and conditions contained in these Terms and the terms and conditions contained
in an Order, the terms and conditions of these Terms shall control, unless the
Parties have expressly provided in such Order that a specific provision in this
Agreement is amended, in which case this Agreement shall be so amended, but
only with respect to such Order.
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STATUS. Buyer and Supplier are separate entities. Nothing
in the Order or this Agreement shall be construed as creating an
employer-employee or joint venture relationship.
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COMPLIANCE WITH LAW. Supplier shall comply with all state,
federal and local laws and regulations applicable to its performance hereunder.
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GOVERNING LAW. The Order and this Agreement shall be
governed by the laws of the State of Minnesota, without reference to conflicts
of law principles. Any legal suit, action or proceeding arising out of or
relating to the Order or these this Agreement shall be commenced in a federal
court in Minnesota or in state court in the County of Nicollet, Minnesota, and
the appellate courts thereof, and each party hereto irrevocably submits to the
exclusive jurisdiction and venue of any such court in any such suit, action or
proceeding. With respect to any litigation arising out of the Order or this
Agreement, the parties expressly waive any right they may have to a jury trial
and agree that any such litigation shall be tried by a judge without a jury and
the prevailing party shall be entitled to recover its expenses, including
reasonable attorney’s fees, from the other party.
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FORCE MAJEURE. Neither party shall be liable for any
failure to perform or delay in performance of this Agreement to the extent that
any such failure arises from acts of God, war, civil insurrection or
disruption, riots, government act or regulation, strikes, lockouts, labor
disruption, cyber or hostile network attacks, inability to obtain raw or
finished materials, inability to secure transport, or any cause beyond such
party’s commercially reasonable control.
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SURVIVAL. In the event any provision of the Order or this
Agreement is held by a tribunal of competent jurisdiction to be contrary to the
law, the remaining provisions of the Order or this Agreement will remain in
full force and effect. All sections herein relating to payment, ownership,
confidentiality, indemnification and duties of defense, representations and
warranties, waiver, waiver of jury trial and provisions which by their terms
extend beyond the Term shall survive the termination of the Order and this
Agreement.
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ENTIRE AGREEMENT. The Order, this Agreement and the
operative provisions of any quotation issued by Supplier and any purchase order
issued by Buyer, sets forth the entire agreement and understanding among the
parties as to the subject matter hereof, and merges and supersedes all prior
discussions, agreements, and understandings of every and any nature among them.
No party shall be bound by any condition, definition, warranty, or
representations, other than as expressly set forth or provided for in the Order
or this Agreement, or as may be, on or subsequent to the date hereof set forth
in writing and signed by the party to be bound thereby. The Order or this
Agreement may not be amended, supplemented, changed, or modified, except by
agreement in writing signed by the parties to be bound thereby.
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