Terms and Conditions

GENERAL TERMS AND CONDITIONS FOR THE SALE OF GOODS

1. Applicability.  

   1. These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the goods (“Goods”) by PrintZ, LLC (“Seller”) to the purchaser named on the front page of the accompanying quotation (“Buyer”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.

   2. The accompanying quotation (the “Quotation” and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.

2. Delivery.  

   1. The goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order and Seller will use commercially reasonable efforts to deliver the Goods on or before any delivery date specified in Buyer’s purchase order. Seller shall not be liable for any delays, loss or damage in transit.

   2. Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods Ex Works (Incoterms 2000) to Seller’s facility in Hollis, New Hampshire (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such Goods. Buyer shall be responsible for all shipping and transportation costs for the method of delivery it requests, including shipping insurance, and agrees to pay to Seller all applicable shipping and handling fees as invoiced by Seller.  

   3. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer's purchase order. 

3. Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the New Hampshire Uniform Commercial Code.

4. Inspection and Rejection of Nonconforming Goods.  

   1. Buyer shall inspect the Goods within 72 hours of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only material non-compliance with the drawings or models related to the Goods as provided by Seller (“Specifications”). 

   2. If Seller reasonably determines that the Goods shipped to Buyer are Nonconforming Goods, Seller will either (a) repair or remanufacture the Nonconforming Goods and deliver the repaired or remanufactured Goods to Buyer at no additional charge, or (b) refund to Buyer all payments received for the Nonconforming Goods. If, however, Seller reasonably determines that the Goods are not Nonconforming Goods, Buyer agrees to reimburse Seller for any and all costs, fees, and expenses required to inspect such Goods.

   3. Buyer acknowledges and agrees that the remedies set forth in Section 4(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 4(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.

5. Cancellation; Changes to the Order. 

   1. Since each order is custom manufactured, should Buyer cancel an order once production has commenced, Buyer will be invoiced for all costs and expenses incurred by Seller in producing the Goods through the date of cancellation. If Buyer has made payment in advance, Seller will refund that portion of the payment in excess of charges for Goods already produced. Seller reserves the right to cancel Buyer’s order after a purchase order has issued due (i) a defective file which contains the Specifications, (ii) the Goods are not manufacturable, as reasonably determined by Seller, or (iii) other reasonable circumstances, as determined by Seller. In the event that Seller cancels Buyer’s order and Buyer has paid for the Goods, Seller will fully refund all payments made by Buyer in connection with the canceled order.

   2. Seller reserves the right to request that the Specifications be altered, modified or changed in the event that Seller reasonably determines that the manufacture of the Goods is impossible, economically impracticable, or otherwise is likely to have an adverse impact on the resulting Goods. If Seller makes a request to change the Specifications (“Change Order Request”), Buyer will use its best efforts to accommodate Seller’s request. Buyer agrees to respond to a Change Order Request within 1 business days of the date of the Change Order Request. Failure to respond within the time specified may result in cancellation of Buyer’s order.

6. Price. 

   1. Buyer shall purchase the Goods from Seller at the prices (the “Prices”) set forth in the Quotation. 

   2. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets. 

7. Payment Terms.  

   1. Buyer shall pay all invoiced amounts due to Seller by credit card ACH, EFT or wire transfer at the time Buyer issues a purchase order, unless Seller agrees to accept other payment terms. Buyer shall make all payments in US dollars. 

   2. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to stop production of the Goods and/or suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for 5 days following written notice thereof.

   3. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.

8. Ownership of Intellectual Property Rights; Limited License.

   1. Buyer owns all right, title and interest in and to its Specifications, including copyrights, moral rights, trademark rights, patent rights, trade secret rights and any other form of intellectual property rights recognized in any jurisdiction, including applications, continuation and registrations for any of the foregoing (collectively, “Intellectual Property Rights”) relating to Buyer’s Specifications.

   2. Subject to these Terms, Buyer grants to Seller a limited, revocable, royalty-free, non-exclusive right and license to use Buyer’s Specifications, including Intellectual Property Rights, solely to manufacture the Goods. 

9. Limited Warranty.  

   1. Seller warrants to Buyer that for a period of 30 days from the date of shipment of the Goods (“Warranty Period”), that such Goods will materially conform to Specifications and will be free from material defects in material and workmanship. This express limited warranty does not apply to any defects non-conformance or defects occurring as a result of (i) any specifications, designs, intellectual property, instructions or directions provided by Buyer to Seller; (ii) the Specifications of the Goods, in general; (iii) the Goods that have been abused, damaged, altered or misused by any person or entity after risk of loss passes to Buyer; (iv) the Goods being a first article, prototype, pre-production unit, test unit or other similar product; or (v) tooling produced or supplied by Buyer, if any, and Seller makes no representations or warranties whatsoever of the foregoing defects. In addition, Seller assumes no responsibility for the Specifications and materials selected by Buyer for the Goods. Buyer is solely responsible for the Specifications and performance of the Products and all liability arising therefrom.

   2. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 9(A), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.           

   3. Seller shall not be liable for a breach of the warranty set forth in Section 9(a) unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within the Warranty Period; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Goods are defective.

   4. Seller shall not be liable for a breach of the warranty set forth in Section 9(a) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Seller.

   5. Subject to Section 9(c) and Section 9(d) above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller.

   6. THE REMEDIES SET FORTH IN SECTION 9 SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 9.

10. Limitation of Liability.  

    1. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

    2. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.

    3. The limitation of liability set forth in Section 10(b) above shall not apply to (i) liability resulting from Seller’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller’s acts or omissions.

11. Indemnification. Buyer agrees, at its sole expense, to defend, indemnify and hold Seller and its principals, employees, consultants, agents, successors and assigns, from and against any and all liabilities, damages, settlements, claims, actions, suits, awards, costs and/or expenses (including, without limitation, reasonable attorneys’ fees and other reasonable expenses of litigation) threatened, suffered or incurred by Seller arising directly or indirectly from: (i) any Goods or any Specifications (whether arising out of product liability, strict liability, negligence or otherwise), including claims related to any injury, death or damage to any person or property caused by the Goods; (ii) failure of the Goods by reason of their design, or failure to comply with any law, rule, regulation or ordinance; or (iii) an allegation that any Specification or the Goods or manufacture, import, service, support, distribution, use or sale thereof infringes upon, misappropriates or violates any patent, trade secret, copyright, trademark, service mark, right of publicity or other right of any third party. 

12. Compliance with Law. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. 

13. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for 5 days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

14. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

15. Force Majeure.  No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; and (e) embargoes or blockades in effect on or after the date of this Agreement. The Impacted Party shall give notice within 10 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of 60 days following written notice given by it under this Section 15, the other party may thereafter terminate this Agreement upon 7 days' written notice.

16. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.

17. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

18. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

19. Governing Law. All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of New Hampshire without giving effect to any choice or conflict of law provision or rule (whether of the State of New Hampshire or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New Hampshire.

20. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of New Hampshire and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

21. Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Quotation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

22. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.