General Terms & Conditions
Drew & Rogers, Inc 30 Plymouth Street Fairfield, New Jersey 07004 Phone: (800) 610-6210 Fax: (973) 575-7180 General Terms and Conditions DREW & ROGERS, INC (“D&R”) and the Customer (the “Customer”) agree that the following terms and conditions will apply to any products or services supplied by D&R for or on behalf of the Customer: 1. Incorporation of these Terms and Conditions. The provisions on this document shall apply and shall be deemed incorporated by reference into any price quotation or other offer to sell, print or produce (made orally or in writing) any labels, tags, flexible packaging, commercial printing, business forms, carton packaging, boxes, POP & POS, promotional materials, event services or documents (collectively called the “Products”) made or supplied by D&R at any time to the Customer. 2. Specifications Provided by Customer. The Customer will provide D&R with such adequate specifications (including quantity required and time deadlines) relating to Products as D&R deems appropriate in order to allow D&R to quote a price for producing the Products and a timeline for completion of the work. If D&R requests additional information, the Customer will promptly provide such information. Neither the Customer’s providing of specifications and other information to D&R, nor the D&R’s acknowledgement of receipt of such information, shall be considered as forming a contract legally binding upon D&R. 3. D&R’s Offer to Produce Products. After D&R is provided with specifications by the Customer, D&R will quote a price to the Customer for the requested job. D&R’s quoting (in writing) of a price to the Customer to perform a specific printing job shall be considered an offer by D&R to print the Products specified for that specific job. However, such offer shall only be deemed accepted if, and only if, D&R receives from the Customer a written purchase order, buyer’s order, Customer’s order or other documentation satisfactory in D&R ‘s discretion to evidence the order (such purchase order, buyer’s order, Customer’s order or other documentation, as the case may be, shall be referred to simply as a “Purchase Order”), within ten (10) calendar days of the date that D&R provides the quotation to the Customer; otherwise, the offer shall have no effect and is effectively rescinded. The quoting of a price by D&R to the Customer shall not, in any event, be considered a firm offer, and the offer may be revoked at any time prior to acceptance. Once a Purchase Order is submitted to D&R by the Customer, the Purchase Order can be cancelled by the Customer only with D&R ‘s consent and only upon terms that will indemnify D&R against any costs or expenses already incurred with respect to the Purchase Order and any losses (including lost profit) that may result from such cancellation. 4. Payment of Invoices. The net amount of any invoice submitted by D&R to the Customer is due in full within thirty (30) days of date of invoice. If, in the opinion of D&R, the financial condition of the Customer at any time does not justify continuance of production or shipment on the terms of payment specified, D&R reserves the right to require full or partial payment in advance. For payments made after the stated thirty (30) day period, there will be a service charge of 1.5% of the total amount outstanding, for each month that payment is in arrears or outstanding. In addition to such service charge, the Customer agrees to pay D&R ‘s costs of collection (including reasonable attorney’s fees) that may be added to any invoice that is more than thirty (30) days in arrears. D&R’s acceptance of such service charge shall not be deemed a waiver of any rights that D&R may have by reason of the Customer’s nonpayment. 5. Taxes. All taxes or other governmental charges imposed upon the sale of any Products shall be paid by the Customer in addition to the prices quoted by D&R. 6. Packaging. D&R will use its standard packaging with respect to Products shipped. If the Customer requires special or unique packaging of Products, D&R reserves the right to charge an additional amount to compensate it for such packaging. 7. Transportation. Unless D&R and the Customer expressly agree in a writing signed by both parties, all price quotations are F.O.B. manufacturing location. The method and route of shipment are at D&R’s discretion, unless the Customer supplies explicit instructions. If, for any reason, freight charges are paid in advance by or billed to D&R, the Customer agrees to reimburse D&R for such freight charges upon D&R’s demand. All shipments are insured at the Customer’s expense and made at the Customer’s risk. 8. Rights in Transit. D&R shall have the right, in addition to all others it may possess, at any time, for credit reasons or because of the Customer’s default or defaults, to withhold shipments, in whole or in part, and to recall Products in transit, retake the same, and repossess all Products that may be stored with D&R for the Customer’s account, without the necessity of taking any other proceedings, and the Customer hereby consents that all the Products so recalled, taken, or repossessed shall become D&R’s absolute property, provided that the Customer is given full credit therefore. The foregoing shall not be construed as limiting, in any manner, any of the rights or remedies available to D&R under the Uniform Commercial Code of the State of New Jersey (in effect at the time of the signing of this Agreement) because of any default by the Customer. 9. Events Beyond D&R’s Control. D&R shall not be liable for loss or damage of any kind resulting from delay or inability to deliver on account of fire, labor troubles, accident, acts of civil or military authorities, or from any other cause beyond the control of D&R. 10. Warranties; Waiver of Certain Warranties; Damages. D&R warrants and represents that the Products printed for Customers will conform to the description and specifications provided to and agreed upon by D&R, and that the Products will be free from defects in materials and workmanship. THIS WARRANTY IS EXPRESSLY MADE IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN ANY EVENT, D&R SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, DIRECTLY OR INDIRECTLY, ARISING FROM THE USE OF THE PRODUCTS OR FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND OR NATURE. IN THE EVENT OF BREACH OF CONTRACT, D&R SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS REVENUES, CONSEQUENTIAL AND/OR INCIDENTIAL DAMAGES OF THE CUSTOMER; AND D&R’S TOTAL LIABITY TO THE CUSTOMER IN ANY EVENT SHALL BE LIMITED TO THE PURCHASE PRICE AGREED UPON BY THE PARTIES FOR THE PRODUCTS. 11. Inspection. The Customer shall inspect the Products immediately upon their arrival and shall, within ten (10) calendar days after their arrival, give written notice to D&R of any claim that the Products do not conform with the description and specifications provided to and agreed upon by D&R in producing the Products. If the Customer should fail to give such notice, the Products shall be deemed to conform to the description and specifications, and the Customer shall be bound to accept and pay for the Products in accordance with the quotation for such Products provided by D&R. The exclusive remedy of the Customer in the event that any of the Products do not conform to the description and specifications provided to and agreed upon by D&R shall be a replacement of the Products with conforming Products. All Products claimed to be nonconforming shall be, at the sole option of D&R, either (i) held for a reasonable period of time (not to exceed five business days), at no expense to D&R, at the Customer’s facility so as to allow D&R an opportunity to inspect the Products and determine whether it would be feasible to return or dispose of any Products that are nonconforming; or (ii) shipped to D&R ‘s facility, at D&R ‘s expense. In either event, D&R will replace nonconforming Products within a reasonable period of time. D&R’s acceptance of any Products so shipped to it shall not be deemed an admission that the Products are nonconforming. If D&R finds that any Products returned are not defective, such Products shall be reshipped to the Customer at the Customer’s expense, and the Customer shall also be responsible for the expenses incurred in shipping the Products back to D&R’s facility. If D&R finds that any Products held for inspection by D&R at the facility of the Customer are not defective, the Customer shall reimburse D&R for its travel and other expenses incurred (or a prorated portion thereof if all of the Products inspected are not defective) in performing the inspection. 12. Infringement. If, in producing Products, D&R relies upon the Customer’s designs, documents, specifications, layouts or materials for the documents printed, the Customer warrants and represents that that none of the designs, documents, specifications, layouts and/or materials provided or supplied to D&R in connection with the printing or producing of any Products for the Customer will infringe or violate any trademark, service mark, copyright, patent or other proprietary right of others, and the Customer hereby agrees to indemnify and hold harmless D&R and its officers, directors, employees and agents from and against any liability, damages, expenses (including, but not limited to, reasonable attorney’s fees) incurred with respect to or arising directly or indirectly from any claim or assertion of such infringement or violation brought by any third-party against D&R. 13. Settlement of Disputes. It is the intention of D&R and the Customer not to resolve all controversies, claims, disagreements and/or disputes concerning the agreement contained in this document and any aspect of the parties’ business relationship through litigation in the courts, but rather D&R and the Customer hereby agree and consent to binding arbitration, as provided for below, concerning any such claims, disagreements or disputes. If any controversy, claim, disagreement or dispute should arise between D&R and the Customer in the performance, interpretations or application of the agreement contained in this document, any Purchase Order, or any other aspect of their business relationship, and such controversy, claim, disagreement or dispute is not promptly resolved or compromised, then after thirty (30) days’ notice either party may serve upon the other party a written notice stating that the controversy, claim, disagreement or dispute is being referred to a sole arbitrator selected by the American Arbitration Association. The arbitration proceeding shall be conducted in Essex County, NJ, and shall be governed by the commercial Rules of the American Arbitration Association (“AAA”). The prevailing party in any arbitration proceeding shall be awarded against the losing party all reasonable costs of arbitration, including but not limited to, attorney fees, travel costs, and expert witness fees, in addition to any other relief or damages awarded. The decision and award of the arbitrator shall be final and there shall be no appeal or review whatsoever of such arbitration award and such arbitration award may be entered as final judgment in any court of competent jurisdiction. 14. Miscellaneous Matters. This document, when signed by D&R, will constitute the entire agreement and understanding between the parties with respect to its subject matter and will supersede all prior understandings and agreements between the parties. Except as otherwise stated in this agreement, no amendment, supplement, modification, waiver or termination of the agreement set forth in this document shall be binding unless executed in writing by both parties. The agreement contained in this document shall be construed and interpreted according to the laws of the State of New Jersey. References to “parties” in this agreement are to D&R and the Customer. When the context so requires, the singular shall include the plural and vice versa. This agreement may be executed in multiple counterparts. Both parties shall be determined to be creators of this document, and both parties have reviewed same with independent counsel of choice. If any provision of this agreement, or any portion thereof, is held to be invalid and unenforceable, then the remainder of this Agreement shall nevertheless remain in full force and effect. 15. Purchase Orders. The Customer agrees that the issuance of any Purchase Order by it with respect to Products, or its acceptance of any such Products, shall be deemed to note the Customer’s consent to the terms and conditions contained in this agreement. The provisions stated in this document shall take precedence over any other inconsistent terms or conditions (whether stated in Purchase Orders or in any other documents), and no contrary, additional, or different terms or conditions shall be binding on D&R unless accepted by D&R in a writing signed by an authorized representative of D&R and specifically setting forth such additional or different terms or conditions. Any proposal of the Customer for additional terms (whether contained in a Purchase Order or otherwise), or any attempt to vary, in any degree, any of the terms of the agreement contained in this document or a quotation provided by D&R, shall operate as a rejection and shall constitute a counteroffer. Any attempt to vary any of the terms of the agreement contained in this document shall be deemed a material alteration. No usage of trade or course of prior dealings between D&R and the Customer shall be relevant or admissible to supplement, explain or vary any of the terms of this agreement. D&R’s price quotations and other terms of agreement with respect to one particular job requested by the Customer shall have no bearing upon, or be relevant in interpreting its terms of agreement with respect to, another job for the Customer. Acceptance of or acquiescence in a course of performance rendered under this document or any prior agreement shall not be relevant or admissible to determine the meaning of the agreement contained in this document, even though the accepting or acquiescing party has knowledge of the nature of the performance and an opportunity to make objection. No representations, understandings, or agreements have been made or relied upon in the making of the agreement contained in this document other than those specifically set forth herein. NOTHING IN THIS DOCUMENT SHALL BE CONSTRUED AS IMPOSING A BINDING OBLIGATION UPON D&R TO PRODUCE PRODUCTS FOR THE CUSTOMER UNLESS AND UNTIL D&R AND THE CUSTOMER FIRST REACH AN AGREEMENT ON PRICE, TIME OF DELIVERY AND THER MATERIAL TERMS RELATING SPECIFICALLY TO THE PARTICULAR PROPOSED PURCHASE ORDER. 16. Delivery Dates. No delivery date set forth in any purchase order or other document delivered by the Customer to D&R shall constitute a binding agreement between the parties that the Products must be delivered on or before the delivery date or that time is of the essence with respect to the delivery date; rather, D&R shall have a reasonable time under the circumstances to make delivery of the Products after the date indicated for delivery. If the Customer desires to have firm delivery date for Products, D&R must execute and deliver to Customer a separate writing so indicating that the delivery date is firm and that time is of the essence. If D&R fails to meet a firm delivery date so agreed upon in writing, the Customer’s damages relating thereto shall in no event exceed the lesser of: (i) the purchase price for the Products that were not delivered in a timely fashion; or (ii) the Customer’s actual damages recoverable under the Uniform Commercial Code. The Customer’s acceptance of Products from D&R shall be deemed the Customer’s acceptance of all of the terms and conditions set forth above.