TERMS AND CONDITIONS OF SALE (Alternative Media)
These Terms and Conditions (“Terms”) apply to, govern and control all sales of magazine outserts, package inserts, shared mail, statement inserts, free-standing inserts and catalog blow-ins (“Alternative Media”) by Lindenmeyr Central (“LC”) to its customers (each a “Customer”) and are in lieu of any other terms and conditions except for those specifically set forth in any signed written agreement between LC and Customer (including all schedules and annexes thereto, an “Agreement”). ACCEPTANCE OF CUSTOMER’S ORDER IS EXPRESSLY MADE CONDITIONAL ON ITS ASSENT TO THE TERMS AND CONDITIONS STATED HEREIN. LC objects to any terms proposed by Customer in any purchase order, acknowledgment, website or other document which add to, vary from, or conflict with the Terms, and any such proposed terms shall be void.
Price: Unless otherwise agreed between the parties in writing, the price for the LC deliverables shall be at the price contained in the Agreement. Once an Agreement is signed Customer may not cancel the Agreement or any campaign thereunder, and the amount payable under the Agreement shall be deemed to be earned in full on the date the Agreement is signed.
Taxes and Additional Charges: All federal, state, local and other governmental taxes or other charges, if any, imposed upon the manufacture, delivery, distribution, and/or use of any LC deliverable shall be paid by Customer, and shall be added to the prices provided for in the Agreement. Freight or shipping surcharges, if any, will be paid by Customer.
Customer grants LC access and use of any data collected in connection with the Agreement, including response rates to Customer’s campaign.
Terms of Payment: Terms of payment run from the date of LC invoice, not date of shipment or delivery. A one percent per month service charge (12 percent per annum) or the highest permissible rate under applicable law, whichever is less, shall be assessed on late payments. Payments are to be made in the manner and to the location specified by LC. If at any time and for any reason the financial condition of Customer shall become reasonably unsatisfactory to LC, LC may, upon reasonable advance written notice to Customer, require advance payment prior to commencing or continuing any work or require other payment terms, including cash in advance.
LC shall not be liable to Customer or to any other person for loss or damage of any kind because of impracticability, inability or failure to timely deliver materials as a result of failure by LC’s suppliers or any publisher to make timely delivery; strikes, lockouts or other labor disputes; war, riot, armed conflict, insurrection, embargo or blockade; statute, regulation, order or any other action of any governmental authority; transportation delay, rejected mill runs; fire, flood, accidents, acts of God, or any other circumstance beyond LC’s reasonable control. Customer understands that once LC delivers the printed material to the applicable Publishers’ binder LC has no control over or responsibility for the deliverables or process. Customer is solely responsible for the content it provides LC for use and agrees to indemnify LC for any infringement by Customer of any right belonging to a third party; and for any third party claim arising from the activities performed by Customer pursuant to this Agreement.
LC makes no guaranty, warranty or other representation relating to Customer sales, revenue or other results in connection with Customer’s participation in any Alternative Media program.
LC MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED EXCEPT THAT IT WILL PROVIDE GOODS AND SERVICES IN A COMMERCIALLY REASONABLE MANNER AND IN ACCORDANCE WITH THE STANDARDS GENERALLY PREVAILING IN THE INDUSTRY. THE FOREGOING WARRANTY IS EXCLUSIVE OF AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL OR IMPLIED, INCLUDING ANY WARRANTY OF PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND SUPERSEDES AND EXCLUDES ANY ORAL OR WRITTEN WARRANTIES OR REPRESENTATIONS, MADE OR IMPLIED. EXCEPT AS SPECIFICALLY SET FORTH IN AN OUTSERT AGREEMENT THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE FOREGOING AND LC’S SOLE RESPONSIBILITY HEREUNDER IS AS STATED.
LC SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF REVENUES, PROFIT, VALUE, LOSS OF USE OR LOSS OF BUSINESS OPPORTUNITY), EVEN THOUGH LC MAY HAVE BEEN NEGLIGENT OR HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING LC SHALL NOT BE LIABLE EXCEPT FOR ITS WILLFUL MISCONDUCT OR FOR ANY AMOUNT IN EXCESS OF THE PRICE OF THE INVOICE INVOLVED, UNDER THE FOREGOING OR ANY OTHER PART OF THESE TERMS OR ANY OTHER AGREEMENT BETWEEN LC AND CUSTOMER. ANY LEGAL ACTION AGAINST LC FOR BREACH OF THESE TERMS, OR ANY OTHER AGREEMENT INCLUDING ANY WARRANTY HEREUNDER, MUST BE INSTITUTED WITHIN ONE YEAR AFTER THE DATE OF THE OUTSERT AGREEMENT.
The parties agree that, in performing the services, LC is acting as an independent contractor.
Miscellaneous: No provision hereof may be modified, amended or rescinded unless by a written instrument executed by LC and Customer. The failure of either party to insist in any one or more instances upon strict performance of any of the provisions of these Terms, or to take advantage of any of its rights, shall not operate as a continuing waiver of such rights. If Customer breaches any of the terms herein, including failure to timely pay any invoice, necessitating any collection efforts or legal action by LC, Customer agrees that LC shall be entitled to recover its reasonable costs incurred including, but not limited to, reasonable attorneys’ fees and costs. This transaction shall be governed by the laws of the State of New York, without reference to choice of law rules or to the Convention on Contracts for the International Sale of Goods. Any legal action or proceeding concerning the validity, interpretation and enforcement of these terms or any sale of goods or services by LC, matters arising out of or related to these terms or any sale of goods by Seller or its making, performance or breach, or related matters shall be brought exclusively in the courts of the State of New York in the County of New York or of the United States of America for the Southern District of New York, and all parties consent to the exclusive jurisdiction of those courts, waiving any objection to the propriety or convenience of such venues and THE PARTIES WAIVE TRIAL BY JURY IN ANY SUCH ACTION OR PROCEEDING. Process in any such action may be served by registered or certified mail addressed to a party at its last known address.