1. AGREEMENT

In consideration of Pacific Die Cut Industries (PDCI) agreeing to sell to any purchaser of its products or services (Buyer), Buyer and PDCI (the Parties) agree that the following terms and conditions (Terms and Conditions) shall apply to any such purchase of products or services, and are incorporated by reference into any quotation, confirmation or invoice issued by PDCI. Any term or condition in any purchase order or other document issued by Buyer that differs from or is contrary to these Terms and Conditions is ineffective and void unless expressly agreed to in a writing signed by an authorized representative of PDCI.

 

2. QUOTATIONS

a.) Quotes for services

A quotation issued by PDCI for die cutting or other services to be performed is premised upon PDCI’s interpretation of Buyer’s written plans and specifications. PDCI makes no representation as to the accuracy of this interpretation. Buyer accepts all responsibility for determining the materials and services required.

b.) Quotes are not transferable

A quotation issued by PDCI is not transferable. Quotations are based on various market factors and business considerations and may not be used by any other buyer or any other person or entity without PDCI’s express written consent.

c.) Quotes are not offers to sell

A quotation issued by PDCI is not an offer to sell. All purchase orders are subject to the prior approval of PDCI’s credit department, and no purchase order is accepted until acknowledged in writing by an authorized representative of PDCI.

d.) Quotes expire after thirty days

A quotation issued by PDCI expires at 5:00 p.m. PST, thirty (30) days after the date the quotation was issued. A purchase order responding to a quotation must be placed and accepted within thirty (30) days of the quotation for the stated prices to apply. Notwithstanding, PDCI reserves the right to withdraw or amend a quotation, and to adjust the stated prices, upon written notice to Buyer.

 

3. INVOICES

a.) Prompt payment

Buyer agrees to make prompt payment of all invoices, unless payment is to be made in advance, in which case Buyer understands that no products or completed work (Products) will be delivered and no services performed until PDCI has received advance payment.

b.) Suspension of services

If, in PDCI’s judgment, reasonable doubt exists as to Buyer’s financial responsibility, or if Buyer is past due in payment of any amount owing to PDCI, PDCI reserves the right, without liability and without prejudice to any other remedies, to suspend its performance and decline to deliver any Products until PDCI receives payment (whether or not due), or adequate assurance of such payment.

c.) Late payment charges

If an invoice is not paid when due, Buyer agrees to pay a late payment charge on the past due balance, computed at the rate of 1.5% per month (18% annual percentage rate) or the maximum legal rate, whichever is lower.

d.) Collection costs

If an invoice is not paid when due, Buyer agrees to pay all costs of collection (including attorney’s fees) incurred by PDCI.

e.) Taxes

All payments required by these Terms and Conditions are exclusive of all governmental taxes, all of which Buyer is responsible for and will pay in full.

 

4. CANCELLATION

If Buyer subsequently cancels an order, PDCI may at its option invoice Buyer for its reliance costs, rather than the full contract price.

 

5. FORCE MAJEURE

PDCI shall not be liable for any delay or impairment of performance resulting in whole or in part from any cause beyond PDCI’s control including, without limitation, fires, floods, earthquakes, severe weather conditions, acts of God, strikes, lockouts or labor disruption, acts of terrorism, wars, riots or embargo, shortages of transportation, fuel, labor or materials, inability to procure raw materials, changes of law or regulation, or any other circumstance or cause beyond PDCI’s control. Such excuse from performance shall extend so long as the event continues to delay or impair PDCI’s performance.

 

6. RISK OF LOSS

Products are sold F.O.B. at PDCI’s place of business. Buyer assumes responsibility for all costs of transporting the Products and/or damages incurred in transportation. If PDCI assists Buyer in this regard, the Parties agree that such assistance is gratuitous, and PDCI shall have no obligation or liability arising therefrom. Risk of loss passes to Buyer when PDCI delivers the Products to Buyer at PDCI’s place of business.

 

7. TITLE

Title to the Products shall remain in name of PDCI until the purchase price has been paid in full, at which time title shall vest in Buyer. All tooling and fixtures utilized in the manufacture of Products or performance of services shall remain the property of PDCI. Documents provided by Buyer to PDCI for manufacture of Products or performance of services shall remain the property of Buyer; however, after two (2) years from the delivery of Products or completion of services, PDCI may discard those documents.

 

8. SECURITY INTEREST

PDCI shall retain a security interest in the Products, the accounts receivable related to the Products and the proceeds from the sale of the Product as security for Buyer’s performance of its obligations. Buyer hereby authorizes PDCI to create and file a financing statement. Buyer agrees to execute and deliver such other documents as necessary to create, perfect or enforce such security interest.

 

9. LIMITATION OF LIABILITY

Buyer shall inspect the Products immediately upon delivery. Notice of any claim for shortage, non-conformance or defects discoverable on such inspection shall be made to PDCI within fifteen (15) days thereafter. Buyer shall, upon PDCI’s request, furnish reasonable proof of any claimed shortage, non-conformance or defects and PDCI shall be given an opportunity to investigate and, at its option, either: a.) repair or replace any Products which it finds to be defective or not in conformity with the terms of sale; or b.) return the purchase price of the Products or services.

In no event shall PDCI be obligated to Buyer for more than the purchase price of the Products or services. Failure of Buyer to give notice of any claim within the specified period shall be deemed an absolute and unconditional waiver of such claim.

 

10. DISCLAIMER OF WARRANTIES

PDCI DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE PRODUCTS OR PDCI’S SERVICES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO PERSON, INCLUDING BUYER, IS AUTHORIZED BY PDCI TO MAKE ANY WARRANTIES OR ASSUME ANY LIABILITY FOR PDCI WITH RESPECT TO THE PRODUCTS OR SERVICES. ORAL STATEMENTS DO NOT CONSTITUTE WARRANTIES AND SHALL NOT BE RELIED ON BY BUYER. UNDER NO CIRCUMSTANCES SHALL PDCI BE LIABLE FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF PDCI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

11. CONFIDENTIAL INFORMATION AND INDEMNIFICATION

The Parties acknowledge that each may have access to certain confidential information of the other Party concerning the other Party’s business plans, client information, technology, products, vendor and client lists, and information held in confidence by one Party for a third party. Each Party agrees not to disclose confidential information without the express written agreement of the other Party. BUYER WILL INDEMNIFY, DEFEND AND HOLD PDCI, ITS DIRECTORS, OFFICERS AND AGENTS HARMLESS FROM AND AGAINST ANY AND ALL LOSSES RESULTING FROM OR ARISING OUT OF ANY CLAIM OR ACTION BROUGHT AGAINST PDCI ALLEGING, WITH RESPECT TO PDCI’S PRODUCTS OR SERVICES, ANY VIOLATION OF INTELLECTUAL PROPERTY RIGHTS (INCLUDING PATENT, TRADEMARK OR COPYRIGHT), ANY BREACH OF CONTRACT, OTHER THAN CONTRACT BETWEEN PDCI AND BUYER, OR ANY DAMAGES IN TORT ARISING FROM THE PRODUCTS OR A PRODUCT OF WHICH PDCI’S PRODUCTS FORM A COMPONENT.

 

12. ADDITIONAL TERMS

a.) Severability

These Terms and Conditions shall be interpreted in a manner to be effective and valid, but if any provision is held by a court of competent jurisdiction to be prohibited or invalid, then such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating or affecting the remainder of such provision or the remaining provisions of these Terms and Conditions.

b.) Binding Effect

These Terms and Conditions shall be binding upon and will inure to the benefit of each Party and their respective successors and assigns.

c.) Governing Law

These Terms and Conditions, and any other terms and conditions applicable to any purchase by Buyer of Products or services from PDCI, shall be governed by and construed according to the laws of the State of California.

d.) Disputes

In any dispute, claim or controversy between the Parties as to the legal effect of these Terms and Conditions, or any legal action or proceeding brought by one Party against the other arising out of any purchase by Buyer of Products or services from PDCI, the Parties expressly consent to the personal jurisdiction of the state courts located in Alameda County, California, and agree that the prevailing Party shall be entitled to a reasonable award of attorneys’ fees and costs.

e.) Arbitration

In any dispute, claim or controversy between the Parties as to the legal effect of these Terms and Conditions, including the determination of the scope or applicability of this agreement to arbitrate, or any legal action or proceeding brought by one Party against the other arising out of any purchase by Buyer of Products or services from PDCI, said dispute, claim or controversy shall be determined by arbitration in San Francisco, before one arbitrator, to be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. The arbitrator may, in the Award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and the reasonable attorneys’ fees of the prevailing party. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.