DELINCE GROUP TERMS OF SALE
1. Acceptance and Cancellation. Delince Group, Inc. (“DCI”) expressly limits acceptance of this quote to the terms hereof. In the case of Electronic Content Services (“ECS”), acceptance will also include DCI’s ECS Agreement and Operating Manual. No inconsistent additional terms contained in any acceptance, purchase order or other form from customer shall be binding upon DCI unless approved in writing by DCI. This quote is to be accepted by customer returning a signed copy of the face page of the quote. For ECS, signature and return of ECS Agreement. Where work commences pursuant to this quote by DCI after receipt of customer's materials and prepayment, if any, the parties agree such acts constitute acceptance of this quote in lieu of customer's signature. Once accepted, this quote cannot be cancelled by customer except on terms that will reimburse DCI for all costs incurred by it in the acceptance and performance of this quote prior to its cancellation. DCI reserves the right to reject any order, within ten (10) days after receipt of complete copy and specifications, without liability.
Acceptance by electronic signature, as well as electronic delivery, receipt and other electronic transmissions will be subject to the Florida Uniform Electronic Transactions Act, FCL 668.50, et.seq. 2. Entire Agreement. This agreement constitutes the entire agreement between the parties. There are no oral agreements between the parties affecting this agreement. This agreement supercedes and cancels any and all previous negotiations, arrangements, letters of intent, proposals, agreements and understandings, whether written or oral, between the parties with respect to the subject matter hereof.
3. Experimental Work and Preparatory Materials. Experimental or preliminary work performed at the customer's request or necessitated by the demands of the job in the judgement of DCI will be charged for at current rates and may not be used until DCI has been reimbursed in full for the amount of charges billed. All experimental, preliminary, or final creative and preparatory work and materials, including but not limited to sketches, copy, dummies, negatives, positives, flats, plates, electronic content code created or modified, electronic files and other work or materials created, developed, furnished or supplied by DCI shall remain its exclusive property unless otherwise agreed in
writing and upon the payment of specific compensation for same to be determined by DCI. Film negatives and electronic files for plate making or conversion to electronic content are the property of the customer and will be stored without charge for a period of three (3) years after use for offset printing and one (1) year for electronic content. A nominal annual material storage charge will be levied thereafter.
4. Prices. Except as noted, all prices are F.O.B. Delince Group, Inc.' Dock at the place of manufacture and are subject to sales, use, or other taxes as may apply. All prices, specifications, and discounts now in effect, or hereinafter issued, are subject to change without notice. Subject to these terms and all other written specifications of DCI, proposal quotations will be held open for sixty (60) days from presentation unless otherwise noted. Prices quoted are based on materials cost at the time of quotation. Any increase in materials cost between the time of quotation and the time the order is placed will be passed on at cost. The sales price does not include applicable taxes or transportation charges, unless so specified, and customer is solely liable for same.
5. Condition of Copy. Estimates for typesetting are based on the receipt of electronic files or original copy which meets DCI’s predetermined guidelines Condition of copy which deviates from this standard is subject to re-estimating and pricing review by DCI at time of submission of copy, unless otherwise specified in the estimate. Copy or instructions which are incomplete, inaccurate, or poorly prepared will be accepted at the discretion of Delince Group, Inc.. Electronic content received by DCI for reproduction/repurposing shall be further controlled by ECS Operating Manual.
6. Alterations. Quotations are only for work done according to the original specifications. All changes, additions, deletions, etc., brought about by the customer shall be charged for at current rates for work performed. When type selection and style are left to the best judgement of DCI, charges will be made for customer's alterations thereof. If through customer's errors, or changes of specifications, work is redone or expended; such extra work will constitute modifications requiring additional charges to the quote.
7. Customer Furnished Materials. All electronic files, camera copy, art work and other materials supplied by customer for reproduction shall be clean, properly ordered and prepared in full compliance with the standards of the industry. Customer furnished materials shall be manufactured, packed and delivered to DCI’s specifications which shall be provided to customer upon request. DCI is not responsible for defective books or files, additional expense, or schedule delays caused by materials furnished by customer and customer agrees to compensate DCI for any expense caused by reason of said defects, the amount of such expenses to be determined by DCI. DCI has no obligation to perform any proofreading operations and is not responsible for editorial continuity. Materials delivered from customer
or his suppliers are verified with paper or electronic delivery ticket as to cartons, packages or item shown only. The accuracy of quantities indicated on such tickets is not the responsibility of DCI. DCI shall not be liable for shortages based on delivery tickets. Customer is responsible for all delivery and handling charges for customer furnished materials. DCI reserves the right to reject any or all customer furnished materials.
8. Proofs. Proofs shall be submitted with original copy. Corrections are to be marked on the proofs and returned to DCI either via electronic content transmission or with original paper copy . The proof is to be returned and marked "OK" or "OK with Corrections" and signed by the customer. DCI cannot be held responsible for errors if the work is printed per customer's OK or if changes are communicated orally. DCI shall not be responsible for errors if the customer has refused to accept proofs or has failed to return proofs with indication of changes or has instructed DCI to proceed without submission of proofs. If revised proofs are desired, request must be made when proofs are returned to DCI.
9. Press Proofs. Unless specifically provided in DCI’s quotation, press proofs will be charged for at current rates. Any changes, corrections or lost press time due to customer's change of mind or delay will be charged for at current rates. 10. Color Proofing. Because of differences in equipment, paper, inks and other conditions between color proofing and production pressroom operations, a reasonable variation in color between color proofs or sample books and the completed job shall constitute acceptable delivery.
11. Over-Runs and Under-Runs. Over-runs and under-runs not to exceed ten percent (10%) of quantities ordered shall constitute acceptable delivery. Customer agrees to pay for actual quantity delivered within this tolerance at over-run rate, not unit rate. If customer requires guaranteed exact quantities, adjustment in the quoted price may be made by DCI.
12. Customer's Property. DCI shall charge the customer at current rates, for handling and storing customer's furnished, electronic content and/or printed matter, when held for more than thirty (30) days. DCI is not responsible for any loss or damage to any of customer's property while such property is in the possession of DCI if loss or damage is caused by fire, water leakage, theft, negligence, insects, rodents, or any cause beyond its control. In the event liability does attach, DCI shall be responsible solely for either the cost of reproducing the items or a reasonable facsimile at the election of DCI and not for any consequential damages consistent with Paragraphs 15 through 18 below.
13. Production and Delivery Schedules. Production and delivery schedules will be established and adhered to by customer and DCI, provided that neither shall incur any liability or penalty for delays due to state of war, riot, civil disorder, fire, labor trouble, strike, accidents, energy failure, equipment breakdown, delays of suppliers or carriers, action of Government or civil authority and acts of God or other causes beyond the control of customer or DCI. Where production schedules are not adhered to by customer, final delivery date will be established by DCI.
14. Delivery. Unless otherwise specified, the price quoted does not include shipping charges, and is for a single shipment, without storage, F.O.B. Delince Group, Inc.' dock at the place of manufacture. Quotes are based on continuous and uninterrupted delivery of complete orders, unless specifications distinctly provide otherwise. Charges related to delivery from customer to DCI, or from customer's supplier to DCI, are not included in any quotations unless specified. Title for finished work shall pass to the customer upon delivery to common carrier at shipping point, or when sent by electronic transmission, or upon mailing of invoices for finished work, whichever occurs first. DCI may consider an order to be completed and invoice for the order if customer fails to supply material or specifications necessary to allow completion as originally specified. Delince Group, Inc.' responsibility for the shipment ceases with delivery to the carrier and claims for loss or damage must be presented to the carrier.
15. Claims and Limitation of Remedies. All claims for defects, damages or shortages must be made by the customer in writing and must be received at Delince Group, Inc. within thirty (30) days after delivery of all or any part of the order. In the case of electronic content, such claims must be received by DCI within seven (7) days of receipt by customer. Failure to make such claim within the stated period shall constitute irrevocable acceptance of the books or electronic content and an admission that they fully comply with all terms, conditions and specifications. In the event DCI acknowledges the claimed defects, damage or shortages, DCI’s liability shall be limited to: repair or correction of the defective books/electronic content, replacement of the defective or damaged books/electronic content, or credit for such damaged or defective books/electronic content at the price charged to the customer for such books/electronic content. The selection of the applicable remedy shall be in the sole discretion of DCI.
16. LIMITATION OF LIABILITY. Delince Group, Inc.' LIABILITY FOR ALL BREACHES OF ANY TERM(S) OF THIS AGREEMENT INCLUDING THE ECS AGREEMENT AND OPERATING MANUAL SHALL BE LIMITED TO THE QUOTED PRICE AND SHALL IN NO EVENT INCLUDE INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST SALES OR PROFITS, COSTS OF REPAIR, REPLACEMENT OR REPRINTING, INJURY TO BUSINESS REPUTATION AND LOSS OF MARKETING OPPORTUNITIES OR EXPENDITURES. THIS LIMITATION IS AN ESSENTIAL TERM OF THIS QUOTE, AND IS SEPARATE FROM AND IN ADDITION TO THE LIMITATION OF REMEDIES OF PARAGRAPH 15, ABOVE.
17. Indemnity. It is expressly understood and agreed that customer shall defend, indemnify and hold harmless DCI from any and all loss, cost, expense and damages, including but not limited to court costs and reasonable attorney fees, on account of any and all manner of claims, demands, actions and proceedings that may be instituted against DCI or others by reason of (1) any violation or infringement of any proprietary right, licenses for resale, royalty obligation or copyright, (2) any libelous, obscene, or unlawful matter contained in the writings that are the subject matter of this contract, (3) customer's breach of any term, covenant, representation, or warranty of this contract, or (4) any malfunction or injury to DCI and/or end user/purchaser’s electronic devices, operating or storage systems caused by customer’s original electronic content received by DCI anything whatsoever that might prejudice the securing to Delince Group, Inc. or its assigns of the full benefit of the rights herein granted.
18. DISCLAIMER OF WARRANTIES. Delince Group, Inc. GIVES NO WARRANTY, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR PURPOSE SOLD, DESCRIPTION, QUALITY, OR ANY OTHER MATTER WHATSOEVER. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE EXPRESS TERMS CONTAINED HEREIN.
19. Payment Terms. Payment shall be made in terms set forth in the quotation or invoice unless otherwise provided in writing. DCI may elect to declare all unpaid balances immediately due and owing upon customers' failure to make payment as set forth therein. In the event of non-payment, DCI may commence collection proceedings against the customer without further notice. Customer agrees to compensate DCI for all costs incurred in collecting said sums, including but not limited to, reasonable attorney's fees and costs. All past due balances shall bear interest at the rate of 1 1/2% per month (18% per annum) whether or not demand has been made for payment.
20. Security. As security for payment of any sum due or to become due for any past or present work by DCI under any agreement between the parties, DCI shall have the right to retain possession of and shall have a lien on all customer property in DCI’s possession, including work in process, finished work and customer furnished materials. The lien right shall include all rights to resell finished work or raw materials at the election of DCI and to recover the difference between the resell price and the contract price consistent with applicable law. The extension of credit or the acceptance of notes, trade acceptances or guarantee of payment shall not affect such security interest and liens.
21. Governing Law and Jurisdiction. Customer understands that Delince Group, Inc. is a Florida corporation with its principal place of business in Florida and manufacturing facilities in Florida, Michigan, New Jersey and Haiti. Customer further understands that the customer’s order will be manufactured in Michigan. Customer agrees that by entering into this agreement it is doing business in Michigan and agrees that such state is a reasonably convenient place for resolution of any suit which may be filed as a result of any controversy or claim arising under the terms of this agreement. Customer waives any claim of inconvenient forum, and any right to claim action between the parties should be litigated other than in a Michigan venue. Customer further consents to the jurisdiction of any court of
competent jurisdiction sitting in Michigan for resolution of any dispute. This agreement shall be interpreted, and the rights and liabilities of the parties shall be determined in accordance with, the laws of the state of Michigan.
22. Fulfillment and Warehouse. Unless specified, fulfillment handling, warehousing, postage and freight charges are not included in this quotation. Such services will be charged at current rates and will be quoted upon request.
23. Severability. The terms and conditions contained herein are independent and severable. The invalidating of any term or condition found herein shall not affect the validity of the entire agreement nor any other term or condition contained herein.