LINDENMEYR CENTRAL

TERMS AND CONDITIONS OF SALE (Print)

These Terms and Conditions of Purchase (“Terms”) apply to and govern all sales of print and print related services by Lindenmeyr Central and/or its affiliates (“LC”) to its customers (each a “Customer”).  All such orders by Customer (“Orders”) are expressly subject to these terms and conditions and ACCEPTANCE OF  CUSTOMER’S ORDER IS EXPRESSLY MADE CONDITIONAL ON CUSTOMER’S ASSENT TO THE TERMS AND CONDITIONS STATED HEREIN.  LC objects to any terms proposed in Customer’s proposal, purchase order, acknowledgment or other document which add to, vary from, or conflict with the Terms.   Any such proposed terms shall be void.  These Terms, as supplemented by the agreed prices, specifications and delivery dates, shall constitute the entire agreement between LC and Customer with respect to the subject of purchases from LC by Customer.

Specifications and Production Schedule:   All work to be performed hereunder shall be in accordance with accepted Orders upon the agreed specifications, and completed in accordance with a production schedule agreed to by LC and Customer.  If Customer desires to make changes in the specifications (including pages and count) or in the production schedule, LC will cooperate in effecting such changes within a reasonable period of time, provided such changes do not have a materially adverse effect on operations.  In the event any such change results in an increase or decrease in the efficiency of performing the work, the prices for the work shall be adjusted to fairly reflect such increase or decrease. In addition, should such change result in the inability of LC to use in the production of Customer’s work any materials on hand or ordered for Customer, Customer will pay LC reasonable charges associated with such materials and their disposition.

Overtime:  If overtime is required to meet Customer’s delivery or quantity requirements, or Customer change in the delivery date, quantity requirements, or any other specifications that necessitates overtime after a production schedule is agreed upon, LC will use reasonable efforts to make any necessary overtime available and will charge for such overtime at then current rates. If overtime worked is not caused by Customer’s failure to comply with the production schedule, overtime charges will not be invoiced. No chargeable overtime will be worked without prior approval of Customer.

License.  Customer grants LC a fully paid, worldwide, perpetual non-exclusive license to use all Intellectual Property Rights and work product only to the extent authorized and required for LC to perform its obligations hereunder.   Content furnished by Customer will be used solely for Customer work and will remain Customer property.

Overruns and Underruns:  The following variations from Deliverables quantities ordered will constitute acceptable delivery and the excess will be charged at the additional thousands rate stated in the Price Schedule:

Print Order Quantity

Less than 10,000
10,000 – 30,000
In excess of 30,000

Allowable Overrun Percentage

5%
3%
2%

Materials and Purchased Services:  Unless otherwise provided, LC will supply the materials (paper, ink, binding materials, etc.) or purchased services specified herein or their equivalents. Should LC be unable to obtain such materials or services or their equivalents in necessary quantities, the parties shall select mutually agreeable substitute materials or services. Should the use of such substitute materials or services increase or decrease in the efficiency of performing the work, the price will be adjusted to fairly reflect any such increase or decrease. Unavailability of materials or services will not be considered a breach of this Agreement. Any volume or trade discounts earned on materials or services will be retained by the ordering party.  All scrap and by-products will become property of LC.

Freight:  LC will arrange for shipment of Customer’s finished materials from plant of final manufacture, and Customer shall be responsible for payment of all charges related to the distribution of these materials. The distribution prices are based on standard transit times and distribution patterns, include a minimum five day in home window for mail delivery, and will be adjusted by the applicable fuel surcharges based on the US Department of Energy On-Highway Diesel Price, published weekly. Any expedited or additional services requested by the Customer will be billed as incurred.

LC will periodically review and adjust its freight prices and fuel surcharge charts, based on but not limited to changes in Customer’s distribution pattern or if the USPS or any governmental entity announces changes in its rates or regulations relating to the distribution of Customer’s materials. LC will provide a minimum of 60 days’ notice where available. Customer shall be responsible for any staging, handling or storage costs incurred by LC.

Storage:  Unless otherwise specified, the prices in this Agreement do not include storage of paper or other materials, work in process or finished goods beyond the production schedule span. If delay in completion of the work or delivery of finished goods beyond the date specified in the production schedule is caused by Customer, storage will be charged at the prevailing rates for each month up to twelve months the finished goods, work in process or furnished materials remain in possession of LC.  If, following the twelfth  month of storage we receive no direction from you as to the disposition of the stored items, such items will be destroyed or and/or recycled.

Editing of Copy:  The price quoted does not, unless otherwise stated, include the editing of copy.

Termination:  In addition to any  remedy provided at law or equity, LC shall have the right to terminate or cancel an Order, and any obligation to sell or provide a product or service, in the event Customer (a) fails to comply with any condition of the Order or any related Agreement, and such failure is not remedied within ten (10) days after written notice thereof has been given to Customer; (b) becomes insolvent, makes an assignment for the benefit of creditors, suffers or permits the appointment of a receiver, trustee in bankruptcy or similar officer for all or parts of its business or assets; or (c) avails itself of or becomes subject to any bankruptcy proceeding under the laws or any jurisdiction relating to insolvency or the protection of rights of creditors.

Price: Unless another currency is specified on the order, all monetary amounts are deemed to be expressed in U.S. dollars.

Terms of Payment:  Customer will pay LC’s invoice not later than net thirty (30) days from date of invoice unless otherwise indicated in writing by LC.  Invoices not paid within thirty (30) days shall accrue interest at the rate of 1.5% per month until paid.  Customer’s payment of any such invoice shall constitute full and complete satisfaction of any and all actual and potential fees for the billing period covered by the invoice.  All payment terms will be calculated based upon date of invoice. All payments will be made in U.S. dollars by check or electronic transfer to an LC designated bank account.  LC’s obligation to perform work hereunder is subject to prompt payment of all invoices pursuant to the terms of this and other agreements between LC and Customer. Upon the expiration or termination of this Agreement for any reason, Customer will promptly pay all invoices that may be due and outstanding for work performed under this Agreement.

Funding Postage:  If and as applicable, Customer must arrange for payment or funding of its postage costs as scheduled by LC.   If Customer fails to pay for postage in strict accordance with the terms set forth by LC, Customer will pay a penalty to LC in the amount of $2,500 in addition to any costs incurred, including but not limited to re-processing of mail files (both Customer’s and all clients in the co-bind, co-mail or commingle pool(s)) and manufacturing plan changes, and related required postage.

Credit.  If Customer credit is not approved the LC quote shall be null and void.  LC has the right to change the terms of payment, including but not limited to cash in advance, satisfactory security or other change in previous payment terms if at any time and for any reason there is a material adverse change in Customer’s financial condition or circumstances as determined by LC, or in the event that Customer does not comply with the terms of these provisions.  In such event, the obligation by Customer to take and pay for the quantity of goods ordered will be unaffected.  LC shall have the right to retain possession of, and shall have a lien on all property in the possession of LC  and all work in process and undelivered work as security for sums due to LC hereunder.  Customer shall be liable to LC for all attorneys’ fees and expenses expended to collect past due amounts.

Title and Risk of Loss:  Title and risk of loss to any work-in-progress and/or completed Deliverables will pass to Customer upon the earlier of: (i) LC’s delivery to a carrier (company owned or subcontracted) or the Postal Service F.O.B. shipping dock; or (ii) LC’s delivery into storage.  LC will require its carriers to maintain at least $100,000 of cargo insurance.  LC will assist Customer in the processing of claims against such carriers for loss of or damage to goods in transit.

Confidentiality:   All documents, artwork, or drawings delivered to by Customer to LC, and any other non-public information Customer discloses to LC, remains the property of Customer.  Each party may have access to the other party’s confidential, proprietary information  and property.  Neither party will use, disclose or disseminate the other party’s confidential information except in connection with providing the goods and services hereunder without the other party’s prior written consent.  Customer agrees that neither Customer nor its agents will provide copies of or access to any sensitive personally identifiable information (including but not limited to names and addresses, social security numbers, bank account information, credit card information or birth dates) (“SPII”) to LC and LC will not be responsible for any SPII of Customer or any agent or end user of Customer.  The obligations under this paragraph shall survive the cancellation, termination or other completion of the Order.

Consumption:  Over-consumption and underconsumption of paper shall be reported by LC.  Ownership of any unconsumed portion of paper supplied by LC remains with LC.  LC is responsible for excess consumption.

Mailing Services.   For each mail piece requiring ink-jet printing of names and addresses for delivery through the United States Postal Service, Customer shall furnish or caused to be furnished ink-jet formatted data compatible and in accordance with instructions and specifications provided by LC. If LC is required to provide data processing services to Customer, it will do so in accordance with USPS regulations. LC will use such files to print names and addresses on each mail piece. Any reformatting, coding, combining of lists or other work necessary for LC use of Customer data will be charged an additional amount.

Warranties:  LC warrants that the products and services will conform to the agreed upon specifications for such products and services, and the generally accepted quality standards of the commercial printing industry. LC makes no other promises or warranties and all other express and implied warranties are disclaimed including the warranties of merchantability and fitness for a particular purpose. To the extent applicable, LC assigns to Customer all warranties of third parties relating to the products and services.

Taxes: LC will not be liable for any taxes with respect to an Order, except for sales, use, retailers occupation, service occupation, excise, ad valorem, value added, or consumption taxes imposed by any governmental authority for the purchase of the products LC supplies, which LC is required by law to collect from Customer. LC shall not collect or remit, and Customer shall not be liable for, any such taxes if Customer has provided Supplier with appropriate tax documentation supporting such position. Customer will not be liable for any taxes of any nature based on the income of Supplier.

Regulatory Compliance.  LC will comply with all laws applicable in any jurisdiction in which any products or services are produced for, or delivered or provided to Customer.  Customer will have the right to audit all aspects of the goods and services provided by LC, including, but not limited to, legal and regulatory compliance related to any operation where FSC, SFI or PEFC certified materials are manufactured, used, modified, labeled, re-labeled, packaged or re-packaged.  If applicable, LC and any subcontractor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin.

Indemnity.  Customer represents that the materials it furnishes to LC will be free of defects and shall not be in violation of applicable law or infringe any trademark, servicemark, copyright or any license relating thereto, nor shall it contain any libelous or other content, including sensitive personal data, which may cause damage or injury to a person.  Customer agrees to indemnify and save LC, its Affiliates, directors, officers, agents, employees and shareholders  harmless from and against all losses, claims, expenses, costs or damages which LC may suffer or incur in the event any claim is made against LC by any person, or entity for any cause of action of whatever nature  (including attorneys’ fees) including without limitation claims which in any way relate to or arise, in whole or in part, due to (a) the acts or omissions of LC, its subcontractors, agents or employees, in the performance of any Order or any breach or default hereunder or (b) a claim that any products or services provided by LC are defective,  (c) a claim that LC’s products or services, or any part thereof, infringes a patent, copyright, trademark, trade secret or other intellectual or proprietary right of a third party, provided however that Customer shall not be liable to the extent such damages were a result of an unauthorized change or deletion of Customer furnished editorial/advertising content, or (d) any claim in connection to the use or release of SPII of Customer, Customer’s agent, and/or its end user.

ALL CLAIMS FOR DEFECTIVE OR DAMAGED WORK OR FOR SHORTAGES OR MISSED SHIPMENTS MUST BE MADE BY CUSTOMER IN WRITING WITHIN THIRTY (30) DAYS AFTER LC’S SHIPMENT OF SUCH WORK.  FAILURE TO MAKE SUCH A CLAIM WITHIN SUCH PERIOD SHALL CONSTITUTE AN IRREVOCABLE ACCEPTANCE OF THE WORK AND AN ADMISSION  THAT IT FULLY COMPLIES WITH ALL OF THE TERMS, CONDITIONS AND SPECIFICATIONS OF THE QUOTE.  WITHOUT LIMITING THE FOREGOING, LC’S LIABILITY FOR ANY AND ALL CLAIMS WHATSOEVER OF ANY KIND AND NATURE, ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO LC’S PRICE TO CUSTOMER FOR THE PRINTING RELATED MATERIALS INVOLVED OR PERFORMANCE OF THE SERVICE INVOLVED, OR , AT LC’S OPTION, REPLACING THE PRINTED MATERIALS OR OTHER GOODS WHICH ARE THE SUBJECT OF CUSTOMER’S CLAIM. NOTWITHSTANDING THE FOREGOING, TO THE EXTENT THE MATERIAL SUBMITTED BY CUSTOMER DOES NOT CONFORM TO LC’S SPECIFICATIONS OR OTHERWISE DOES NOT STRICTLY MEET THE DEADLINES IN THE PRODUCTION SCHEDULE, LC SHALL HAVE NO LIABILITY FOR THE CLAIMED ERRORS.  IN NO EVENT WILL LC BE LIABLE TO CUSTOMER OR ANY THIRD PARTY, IN CONTRACT, TORT OR OTHERWISE, FOR ANY LOSS OF PROFITS OR BUSINESS, OR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, ARISING FROM OR AS A RESULT OF THESE TERMS, ANY ORDER OR ANY AGREEMENT BETWEEN THE PARTIES RELATING TO THE PRODUCTS, SERVICES OR DELIVERABLES PROVIDED BY LC FOR CUSTOMER, EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  MOREOVER, IN NO EVENT  SHALL LC BE LIABLE FOR SUMS IN EXCESS OF LC’S INVOICE PRICE.  FREIGHT CLAIMS OR CLAIMS FOR DEFECTIVE , DAMAGED OR UNDELIVERED WORK AGAINST ANY CARRIER FOR TRANSPORTAION OF SUCH WORK MUST BE MADE BY CUSTOMER AGAINST THE CARRIER.  LC WILL REASONABLY ASSIST CUSTOMER IN CUSTOMER’S PURSUIT OF ANY SUCH CLAIM AGAINST THE CARRIER.

Insurance:  LC shall maintain and could be requested to provide certificates of insurance from companies meeting an A.M. Best rating of at least A- VII showing that Supplier is covered by A) Workers’ Compensation as required by law, including a waiver of subrogation in favor of LC; B)Employers Liability and Occupational Disease insurance with limits of $500,000 per occurrence; C) Commercial General Liability, including Products and Completed Operations, with limits of not less than $2,000,000 per occurrence for bodily injury and property damage; D) Auto Liability covering all autos with a limit of $1,000,000; and E) Professional Liability with a limit of $2,000,000 per claim. F)  Property coverage insuring the replacement value of the Work and Customer-furnished materials held at LC designated facilities.  The Commercial General Liability policy shall name Customer as an additional insured as its interest may appear upon request.

Force Majeure:  Neither party will be liable for any delay or failure to perform hereunder (other than Customer’s obligation to pay for services and products delivered) if such delay or failure to perform arises out of a Force Majeure Event. “Force Majeure” is an event or circumstance that is beyond the reasonable control of a party without such party’s fault or  negligence, and which by its nature could not be reasonably foreseen, prevented, or avoided by such party and which renders performance  hereunder partially or entirely impracticable or unreasonable.  Force Majeure events include but are not limited to: fires, explosions, floods, tornadoes, epidemics, acts of God, civil disturbance, war, riots, sabotage, terrorism, restraints or injunctions issued by a court or other governmental entity, government acts or regulations (including but not limited to adverse trade actions; imposition of tariffs and/or quotas; anti-dumping actions; and actions taken for reasons of national security), shortage or interruption of transportation, mill shutdown, strikes or labor disputes or any other cause whether or not similar to the causes listed above, beyond a party’s reasonable control without such party’s fault or negligence and by which its nature could not be reasonably foreseen, prevented or avoided by such party in each case whether affecting LC, Customer, LC’s supplier, or any logistics or other relevant provider hereunder.  Customer’s economic hardship or changes in market conditions are not considered Force Majeure events. Prompt notice of a Force Majeure Event shall be provided by the affected party to the other party.  In the event that either party is unable to substantially perform its obligations under this Agreement as a result of a Force Majeure Event for a commercially reasonable period by industry standards, the other party shall have the right to terminate this Agreement.

Assignment.  This Agreement binds and benefits the parties and their respective successors and permitted assigns.  Except as provided below, neither party may assign any rights or delegate any responsibilities under this Agreement without the prior written consent of the other party which shall not be unreasonably delayed or withheld and any attempt to do so in violation of this Section is void.

Miscellaneous:  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.  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 purchase of products by LC, matters arising out of or related to these Terms or any purchase of products by LC 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.