JAPS-OLSON COMPANY CONDITIONS OF SALE
1. GENERAL. All sales are made pursuant to the terms and conditions set forth in this Conditions of Sale and any Japs-Olson quotation, notwithstanding the provisions of any purchase order or other commercial form submitted by the Customer to Japs-Olson. Any terms or conditions of any purchase order or other form issued by the Customer which are in addition to, modify, or are inconsistent with these terms and conditions will not be binding on Japs-Olson unless the Customer and Japs-Olson agree, in a separate writing, to such additions or modifications.
2. QUOTES. Price quotes, with the exception of paper, shall be firm and valid for 30 days. In the event the Customer does not accept Japs-Olson’s price quote within 30 days, the price quote shall be subject to change at the sole discretion of Japs-Olson.
3. NATURE OF TRANSACTION. The parties agree that this transaction is a Commercial Transaction constituting the sale of goods and is subject to and shall be governed by the provisions of Article Two of the Uniform Commercial Code as it has been adopted and amended by the State of Minnesota and modified by these Conditions of Sale.
4. QUANTITY. Variations in quantity of 10 percent over or under the quantity agreed upon by the parties shall constitute acceptable delivery and performance. Within this range, Japs-Olson shall bill and the Customer shall pay for the actual quantity delivered.
5. PAYMENT. The Customer agrees to pay Japs-Olson’s invoices within 30 days from the date of invoice. Invoices not paid in full within 30 days from invoice date will be subject to a finance charge of 1.5 percent per month (18 percent per annum) or the maximum rate allowed by law, if less. Irrespective of any contrary language in the Customer’s Purchase Order or any Policy Position of the American Association of Advertising Agencies, the Customer shall be liable for all invoices regardless of whether or not the Customer has been paid by its client(s) or advertiser(s).
6. JAPS-OLSON WORK PRODUCT. All of Japs-Olson’s work products and prepatory materials connected with the services provided hereunder, including, without limitation, art work, sketches, copy, dummies, type, and plates are the exclusive property of Japs-Olson. Any and all uses of this work product must be approved by Japs-Olson in writing.
7. PRICE. The price set forth in any quotation is based upon the specifications detailed therein. Any changes to such specifications that require additional production time or other additional costs will be charged in addition to the price set forth therein. All prices are FOB St. Louis Park, Minnesota, unless specified to the contrary. Where, for the convenience of the Customer, Japs-Olson arranges for shipment and incurs freight charges, such freight charges shall be billed to the Customer. In the event any freight company, or agent or trustee thereof, later asserts freight charges to be properly due in addition to those originally billed, the Customer shall reimburse Japs-Olson to the extent of such additional charges.
The Customer shall also pay any sales, use, or other taxes now or hereafter imposed by any federal, state, or local taxing authority upon or with respect to the sale, other than taxes imposed on net income or personal property taxes. In the event such taxes are not included in the invoice from Japs-Olson, but it is determined that Japs-Olson is subject to such taxes by a taxing authority, Japs-Olson may pay such taxes and the Customer will reimburse Japs-Olson the amount thereof.
8. RESPONSIBILITY FOR SUBJECT MATTER. In furnishing copy for printing or mailing, the Customer represents that such copy does not infringe upon any copyright, is not libelous, and does not otherwise violate the rights of other persons or entities or constitute a violation of any statute, law, or governmental regulation of any kind. The Customer agrees to indemnify and hold Japs-Olson, its affiliates, their officers, directors, agents, and employees harmless from all losses, damages, and expenses, including attorney’s fees, which Japs-Olson, its affiliates, their officers, directors, agents, or employees may incur or suffer as the result of any claim of such violation or alleged violations. If Japs-Olson believes, in its sole discretion, that the content of the Customer’s materials are in violation of this representation, Japs-Olson may also refuse to print, mail, or otherwise perform this agreement without being in breach hereof.
The Customer assumes responsibility when claiming presort or automation rates for all mail to demonstrate to the United States Postal Service that they have updated the addresses in their mailing lists within 95 days prior to the mailing date.
9. INDEMNIFICATION. The Customer shall, at all times, indemnify, defend, and save Japs-Olson, its affiliates, and their employees, officers, directors, and agents harmless from any and all damages, losses, claims, attorney’s fees, economic losses, and any other harmful consequences that arise in connection with the work hereunder.
10. FORCE MAJEURE. Japs-Olson shall not be liable for delays or nonperformance occasioned by causes beyond its control, including, without limitation, acts of God, strikes, lockouts, fires, inability to obtain materials, breakdowns, delays of carriers or suppliers, and governmental acts and regulation. Nothing contained herein shall be construed to require Japs-Olson to settle any strike or other dispute.
11. STORAGE. In the event Japs-Olson stores the Customer’s materials, Japs-Olson’s liability for any damage or loss to the Customer’s stored materials shall not exceed Japs-Olson’s replacement costs for such materials.
12. LIMITATIONS OF WARRANTIES. JAPS-OLSON WARRANTS ONLY TITLE TO THE GOODS AND THEIR CONFORMITY TO THE SPECIFICATIONS CONTAINED IN ANY QUOTATION. JAPS-OLSON MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER MATTERS WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED.
13. LIMITATION OF LIABILITY. JAPS-OLSON SHALL NOT BE LIABLE FOR ANY CLAIM, LOSS, INJURY, LIABILITY, OR DAMAGE CAUSED BY DELAY IN ANY PERFORMANCE PURSUANT TO THIS AGREEMENT. IN NO EVENT SHALL JAPS-OLSON’S LIABILITY, WHETHER BASED IN CONTRACT OR TORT, INCLUDE ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WITH RESPECT TO ANY DAMAGES WHICH ALLEGEDLY ARISE OUT OF THE PERFORMANCE OR BREACH OF THIS AGREEMENT. JAPS-OLSON’S LIABILITY SHALL IN NO EVENT EXCEED AN AMOUNT EQUAL TO THE AMOUNT ACTUALLY PAID BY THE CUSTOMER TO JAPS-OLSON FOR THE WORK IN DISPUTE.
IF JAPS-OLSON FURNISHES TECHNICAL OR OTHER ADVICE TO THE CUSTOMER WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, THE CUSTOMER ASSUMES ALL RISK OF SUCH ADVICE AND THE RESULTS THEREOF, AND JAPS-OLSON SHALL NOT BE LIABLE FOR SUCH TECHNICAL OR OTHER ADVICE.
14. LIMITATION OF ACTIONS/CLAIMS. No action, regardless of form, arising out of the transactions under this agreement may be brought more than one year after the cause of action has accrued. All claims for alleged defects shall be deemed waived unless made in writing, along with samples demonstrating the complaint, within thirty (30) days after receipt of goods.
15. CONFIDENTIALITY. Japs-Olson will maintain in confidence all information furnished to Japs-Olson by the Customer provided that such information is identified, in writing, as confidential. Except to the extent required by law or necessary to enable Japs-Olson to perform its obligations hereunder, Japs-Olson will not make use of or disclose any of such information to any other person.
16. LIEN ON CUSTOMER PROPERTY. As security for payments of any sum due or to become due under the terms of this agreement, Japs-Olson shall have the right to retain possession of, and shall have the right to obtain a lien on, all paper and any other property owned by the Customer and in our possession and all work in process and/or undelivered work.
17. CHANGES. Any changes by the Customer to their original specifications or copy, which require additional production time, will be subject to extra charges. Paper prices quoted are current as of the quote date. Any increases in our costs of materials between the date of Japs-Olson’s quotation and delivery to Japs-Olson’s plant shall be added to quoted prices. Japs-Olson shall not be responsible for any errors, omissions, or extra costs resulting from faults in any electronic transmission.
18. NON-WAIVER. No waiver by Japs-Olson of a breach of any provision hereof shall be deemed a waiver of future compliance therewith.
19. GOVERNING LAW. This agreement is made and entered into in the State of Minnesota for goods, materials and services to be provided and sold by Japs-Olson and purchased by the Customer in the State of Delaware. This agreement shall be governed by and construed in accordance with the laws of Delaware, without regard to its principles of conflicts of laws. The Customer consents to the exclusive jurisdiction of the courts of Delaware and agrees that any legal action or proceeding arising under, or relating to, this agreement shall be brought in any state or federal court located in the State of Delaware.
20. ASSIGNMENT. The Customer shall not assign this agreement or its rights hereunder without the prior written consent of Japs-Olson, except to its subsidiaries and/or affiliates or the surviving entity of a merger or consolidation involving such party. Upon any assignment made in compliance with this paragraph, this agreement shall inure and be binding upon the successors and assigns of the assigning party and any such successors and assigns shall agree in writing to be bound by the terms and conditions hereof.
21. COMPLETE AGREEMENT. THE TERMS AND CONDITIONS SET FORTH HEREIN SUPERSEDE ALL OTHER PROPOSALS, ORAL OR WRITTEN, AND ALL PREVIOUS NEGOTIATIONS, CONVERSATIONS, OR DISCUSSIONS BETWEEN THE PARTIES TO THIS AGREEMENT. THE CUSTOMER UNDERSTANDS AND AGREES THAT NO AGENT, EMPLOYEE, OR REPRESENTATIVE OF JAPS-OLSON HAS AUTHORITY TO BIND JAPS-OLSON TO ANY AFFIRMATION, REPRESENTATION, OR WARRANTY CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT WHICH IS NOT SET FORTH HEREIN, AND THAT ANY AFFIRMATION, REPRESENTATION OR WARRANTY WHICH IS NOT SET FORTH HEREIN SHALL NOT CONSTITUTE A WARRANTY.
