Terms & Conditions of Sale for KC & CO.
1. OFFER AND ACCEPTANCE: Purchaser offers to purchase the products and services (“Goods”) described on the face of this Order from KC & CO., subject to the terms and conditions set forth herein. Acceptance may be made by KC & CO. at its facility either by written acknowledgment of the Order or shipment of the Goods.
2. TERMS AND CONDITIONS APPLICABLE: When accepted by KC & CO., the terms and conditions set forth herein comprise all of the terms and conditions of KC & CO. and the Purchaser respecting the subject matter of this Order. Any change or modification in the terms and conditions must be specifically agreed to in writing by an authorized KC & CO. representative. No course of conduct and no usage of the trade shall be relevant to supplement the Order.
The use of a formal Purchase Order or other instrument by Purchaser in the course of dealing with KC & CO. with respect to the purchase of the Goods, whether submitted before or after this order, shall be considered to be for the convenience of the Purchaser, and any printed provisions thereon shall not modify or supplement this Order. KC & CO. objects to the inclusion of any different or additional terms that may be contained in any such instrument. Purchaser’s acceptance of the Goods without objection shall constitute a waiver of any such different or additional terms.
3. ERRORS: KC & CO. reserves the right to correct any inadvertent errors made in specifications and prices quoted.
4. CANCELLATION: Orders regularly entered cannot be cancelled except upon terms that will compensate against loss.
5. DELIVERY AND TITLE: Unless otherwise specified on the face of this Order, all shipments shall be FOB point of shipment. All shipping dates are approximate and under no circumstances does KC & CO. guarantee date of shipment. KC & CO. shall not be liable for any delay in delivery of any Goods or any other default due to occurrences or contingencies, including, but not limited to, fire, flood, embargo, strike, failure to secure materials or labor from usual sources of supply, governmental restrictions considered “force majeure”, delays occasioned by any subcontractors or any other circumstances beyond KC & CO.’s control which shall prevent KC & CO. from performing in the normal and usual course of its business.
Title to Special Order Goods shall pass to Purchaser at KC & CO.’s manufacturing location immediately upon completion of manufacture. Title to stock Goods shall pass to Purchaser upon acceptance by KC & CO. of this offer to purchase. Passage of title shall not be affected by delivery terms, shipping, instructions, or storage on Purchaser’s behalf by KC & CO.
6. PARTIAL ORDERS AND SINGLE LOT SHIPMENTS: This Order, and the prices quoted, are based upon the purchase of all the Goods. Orders for less than all of the Goods are not acceptable unless specifically provided for on the face hereof or by written consent of KC & CO.. In addition, and unless otherwise specified, such prices are based upon single shipment, single destination. If more than one shipment to more than one destination is requested by the Purchaser, the price shall be adjusted to reflect any increase in KC & CO.’s cost occasioned by any such additional shipments.
7. RISK OF LOSS: Notwithstanding title to or ownership of the Goods or the method of shipment, the risk of loss shall pass to the Purchaser as soon as the Goods have been delivered to the carrier for shipment to the Purchaser or when the Goods are ready for delivery if delivery has been delayed by the Purchaser.
8. LIMITATION OF LIABILITIES: KC & CO.’s maximum liability for any and all claims arising directly or indirectly from the performance of its obligations hereunder, whether resulting from KC & CO.’s negligence or otherwise shall not in the aggregate exceed the purchase price of the Goods. Under no circumstances shall KC & CO. be liable to the Purchaser or any third party for loss of business or profit or any other economic loss, or any incidental, indirect, special or consequential damages.
9. INDEMNIFICATION BY PURCHASER: (a)Purchaser acknowledges that KC & CO. has no control over, and is not responsible for, the manner in which the Goods will be used or otherwise dealt with by the Purchaser. The Purchaser therefore agrees to assume all responsibility for any and all sums which KC & CO. and/or Purchaser become obligated to pay because of bodily injury or property damage caused by or resulting directly or indirectly from the use of the Goods or the failure of the Goods to comply with any safety or environmental laws or regulations. Purchaser shall indemnify and hold KC & CO. harmless from and against any and all actions, claims and demands arising out of or any way connected with the use of the Goods, including any actions, claims and demands based in whole or in part on the default or negligence of KC & CO..
(b)The Purchaser warrants to KC & CO. that the Purchaser is entitled to use any trademarks, logo or copyright embodied in Special Order Goods and that the Goods do not infringe the proprietary rights of a third party. Purchaser shall defend KC & CO. against any and all claims alleging the manufacture, sale or use of such Goods violates any state or federal law or infringes any proprietary right of a third party and shall indemnify KC & CO. against any liability arising therefrom.
10. PROPRIETARY RIGHTS: Sketches, copy, drawings, dummies and all preparatory work created or furnished by KC & CO. shall remain their exclusive property and no use of same shall be made, nor may ideas obtained therefrom be used, except upon compensation to be determined by KC & CO..
Composition, artwork, type, plates (including lithographic plates), engravings, electrotypes, negatives, positives and other items when supplied by KC & CO. shall remain their exclusive property, unless otherwise agreed in writing.
11. PROOFS: One proof, when requested, shall be submitted with original copy. Corrections, if any, to be made thereon and to be returned marked “O.K.” or “O.K. with corrections” and signed with name or initials of Purchaser or person duly authorized to pass on same. If revised proofs are desired, request must be made when proof is returned. KC & CO. IS NOT RESPONSIBLE FOR ERRORS IF WORK IS PRINTED AS PER PURCHASER’S O.K. ON PROOF.
Because of the difference in equipment and conditions between the color proofing and the pressroom operations, a reasonable variation in color between color proofs and the completed job shall constitute an acceptable delivery.
12. ALTERATIONS: Proposals are only for work according to the original specifications. If through Purchaser’s error, or change of mind, work has to be repeated, such extra work will carry an additional charge, at current rates for the work performed.
13. QUANTITIES: Unless otherwise noted on the face of this order, over runs or under runs not to exceed 10% of the amount ordered shall constitute an acceptable delivery to the Purchaser proportionately.
14. RETURNED GOODS: Goods may not be returned without the consent of KC & CO.. Such requests should be made within ten days from receipt of invoice. Material must be in first class, saleable condition, returned prepaid in its original container and subject to inspection upon receipt by KC & CO.. When goods are returned because of error on the part of KC & CO., the error will be rectified cheerfully and promptly without expense to Purchaser. If the cause of the return is not the fault of KC & CO. or its suppliers, KC & CO. reserves the right to make a nominal handling and restocking charge. KC & CO. cannot accept return of Goods which have been fabricated to a Purchaser’s specifications.
15. CREDIT: KC & CO. reserves the right at any time to alter or suspend credit or to change any credit terms provided for in this Order when, in its sole discretion, the financial condition of the Purchaser so warrants. In any such case, KC & CO. may require cash payment or additional security from the Purchaser before shipment, may accelerate the date of any payment and may withhold any shipment or further shipments and cancel any unfilled orders.
16. COLLECTION: If KC & CO. engages a collector or an attorney to collect the purchase price or any portion thereof, including repossession of Goods subject to the Uniform Commercial Code, Purchaser shall pay reasonable collector’s and /or attorney’s fees (whether or not legal action be instituted) and all of KC & CO.’s collection costs and expenses, including court costs if legal action be commenced.