General Terms and Conditions

These Terms and Conditions (these “Terms and Conditions”) govern each sale by Madzay Color Graphics Inc. (“Madzay”) of products (“Products”) to you (“Buyer”).

1. Exclusive Terms and Conditions; Acceptance.  The parties intend for these Terms and Conditions, together with each quote and invoice issued by Madzay to you (each a “Quote” and “Invoice,” and collectively with these Terms and Conditions, the “Agreement”), to exclusively govern and control each of the parties’ respective rights and obligations regarding the sale of Products. Buyer’s purchase of Products is strictly limited to the terms and conditions in the Agreement. Without limiting the foregoing, any additional or different terms contained in any purchase order or other request or communication by Buyer pertaining to the sale of Products, or any attempt to modify, supersede, supplement, or otherwise alter the Agreement, will not modify the Agreement nor be binding on the parties. The Agreement becomes binding when Buyer purchases any Products or otherwise authorizes Madzay to proceed with providing Products.
2. Sale of Products, Price, and Payment.
1. Madzay shall sell to Buyer, and Buyer shall purchase from Madzay the Products at the current prices listed by Madzay (the “Prices”). All Prices are listed in U.S. Dollars. All Prices are exclusive of all sales, use, excise, and similar taxes, and all customs, duties, import taxes, and charges of any kind imposed by any governmental authority on the purchase of the Products.
2. Madzay may, in its sole discretion, offer credit to Buyer, which may be revoked at any time.  If credit is offered, payment of the Prices and any other applicable costs shall be due within 30 days of the date of shipment or placement with the carrier, unless otherwise specified in the Order Form.  In cases where credit is not offered, payment in-full will be required before the Products will be released to Buyer.  At Madzay’s discretion, 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 Madzay for all costs incurred in collecting any late payments, including, without limitation, reasonable attorneys’ fees. Further, if payment of the Prices or any part of the Prices is not received within 30 days of the due date, Madzay shall be entitled to require payment in advance of shipment in relation to any Products not previously shipped, and to refuse to make shipment of any unshipped Products without incurring any liability whatsoever to Buyer for non-shipment or any delay in shipment.
3. Madzay will not be required to take back any Products unless otherwise pre-authorized in writing by Madzay, in its sole discretion, and any credit given is subject to reasonable restocking fees. If Madzay agrees to accept the return of Products, Buyer will be responsible for all shipping and handling charges. Madzay will not be obliged to accept any Products that are damaged in any way, and credit will only be given for Products that are in saleable condition, as determined by Madzay.
4. Buyer shall not, and acknowledges that it will have no right, under the Agreement, any other agreement, document, or law, to withhold, offset, recoup, or debit any amounts owed to Madzay against any other amount owed to it by Madzay.
3. Delivery.  The Products will be shipped on or around the date stated by Madzay or otherwise mutually agreed to in writing. Madzay shall not be liable for any delays, loss, or damage in transit. Freight terms for shipment are F.O.B. shipping point. Madzay shall ship the Products to the location specified by Buyer (the “Delivery Point”) using Madzay’s standard methods for packaging and shipping the Products. Madzay may, in its sole discretion, without liability or penalty, make partial shipments of the Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the Products shipped whether the shipment is in whole or partial fulfilment of all of the Products set forth on the Buyer’s purchase order.
4. Title and Risk of Loss. Title and risk of loss passes to Buyer upon shipment or placement of the Products to the carrier.
5. Intellectual Property Rights. Buyer does not and will not acquire ownership or any rights in Madzay’s patents, inventions, processes, technical data, brands, trade names, copyrights, or other intellectual property (“Madzay’s IP”) regardless of when Madzay’s IP is invented, conceived, generated, created, produced, or registered. Madzay reserves all rights in Madzay’s IP.
6. Limited Warranty.
1. Madzay warrants to Buyer that for a period of 12-months from the date of shipment (“Warranty Period”) the Products will not contain any defects in material or workmanship (the “Limited Warranty”). Except for the Limited Warranty, Madzay makes no warranty whatsoever, including, without limitation, any warranty of merchantability or fitness for a particular purpose, whether express or implied, by law, course of dealing, course of performance, usage of trade or otherwise.
2. Madzay shall not be liable for a breach of the Limited Warranty unless: (i) Buyer gives written notice of the defect, reasonably described, to Madzay within 10 days of the time when Buyer discovers or reasonably should have discovered the defect; (ii) Madzay is given a reasonable opportunity after receiving the notice to examine the Products, and Buyer (if requested to do so by Madzay) returns the Products to Madzay’s place of business for examination; (iii) Buyer provides reasonable cooperation and any additional information Madzay reasonably requests to ascertain Buyer’s warranty claim; and (iv) Madzay verifies Buyer’s claim that the Products are defective.
3. Notwithstanding anything to the contrary, Madzay shall not be liable for a breach of the Limited Warranty if: (i) Buyer makes any further use of such Products after giving notice; (ii) the defect arises because Buyer failed to follow Madzay’s instructions as to the storage, handling, installation, commissioning, use, and maintenance of the Products; (iii) Buyer alters or repairs the Products without the prior written consent of Madzay; or (iv) the defect arises due to (1) accident, abuse, misuse, alteration, or misapplication, (2) improper or insufficient handling, installation, or maintenance, (3) perils such as fire, earthquakes, storms, acts of nature, or any other causes beyond Madzay’s control, or (4) the incompatibility of the Products with third party materials or products.
4. Subject to Section 6(b) and Section 6(c), with respect to any defective Products during the Warranty Period, Madzay shall, in Madzay’s sole discretion, either: (i) repair or replace the defective Products (or the defective part) or (ii) credit or refund the Price paid for the defective Products (less any discounts, credits or rebates provided). The remedies set forth in this Section 6(d) are Buyer’s sole and exclusive remedy and Madzay’s entire liability for any breach of the Limited Warranty.
7. Limitation of Liability.  
1. TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL MADZAY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, THE PRODUCTS OR IN CONNECTION WITH ANY BREACH UNDER THE AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT MADZAY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (D) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
2. TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL MADZAY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE PRODUCTS OR THE AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID TO MADZAY FOR THE PRODUCTS GIVING RISE TO THE LIABILITY.
3. Any cause of action brought by Buyer arising from the sale, use, or performance of the Products must be commenced within one year after the cause of action accrues.
8. Compliance with Law. Buyer is in compliance with and will comply with all applicable federal, state, local, and foreign laws, regulations, and ordinances. Buyer has and will maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to own and use the Products and carry out its obligations under the Agreement.
9. Indemnification. Buyer shall indemnify, defend, and hold harmless Madzay, its affiliates, and their respective members, managers, officers, directors, employees, agents, affiliates, successors, and assigns (each an “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, fees, or expenses of whatever kind, including reasonable attorneys’ fees, and the costs of enforcing any right to indemnification under the Agreement and the cost of pursuing any insurance providers, in any way relating to a claim arising out of or occurring in connection with Buyer’s (a) handling, installation, or use of the Products, (b) negligence or willful misconduct, or (c) breach of the Agreement. Buyer will not enter into any settlement without the Indemnified Party’s prior written consent, which will not be unreasonably withheld.
10. Termination. In addition to any remedies that may be provided in the Agreement, Madzay may terminate all purchase orders, including those previously accepted by Madzay, with immediate effect and without incurring any liability to Buyer, if Buyer: (i) fails to pay any amount when due under the Agreement; (ii) has not otherwise performed or complied with any of the terms of the Agreement; 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. Madzay may also terminate all purchase orders, including those previously accepted by Madzay, in its sole discretion for any reason or no reason at all.  If Madzay terminates a purchase order under the foregoing sentence Madzay shall promptly refund to Buyer any deposit or payments given by Buyer for Products which have not been delivered to Buyer in connection with the terminated order (without interest), which will be Buyer’s only remedy, and Madzay’s sole liability, for Madzay cancel terminating a purchase order.
11. Confidential Information. All non-public, confidential or proprietary information of Madzay, including, but not limited to, the terms and provisions of the Agreement, including, without limitation, all Prices, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not identified as “confidential,” is confidential, and may be used by Buyer solely for the use of performing under the Agreement and may not be disclosed or copied unless authorized by Madzay in writing. Upon Madzay’s request, Buyer shall promptly return all documents and other materials received from Madzay. Madzay shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
12. Choice of Law and Forum.  The Agreement shall be governed by and construed in accordance with the internal laws of the State of Ohio, without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of  laws of any jurisdiction other than those of the State of Ohio. Any legal suit, action, or proceeding arising out of or related to the Products or the Agreement, or the matters contemplated under the Agreement, shall be instituted exclusively in the federal or state courts located in Cleveland, Ohio, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding and waives any objection based on improper venue or forum non conveniens. Neither the Uniform Law on International Sale of Goods, Uniform Law on Formation of Contracts for International Sale of Goods nor the United Nations Convention on the International Sale of Goods of 1980 (and any amendments or successors thereto) shall apply to the sale of Products or the Agreement.
13. Assignment.  Buyer shall not assign or transfer any of its rights or obligations under the Agreement without the prior written consent of Madzay. Any purported assignment, transfer, delegation, or subcontract in violation of this Section shall be null and void. No assignment, transfer, delegation, or subcontract shall relieve Buyer of any of its obligations under the Agreement.
14. Entire Agreement; Amendments.  The Agreement constitutes the entire agreement between the parties and supersedes all other communications, oral, and written, between the parties relating to the subject matter of the Agreement. These Terms and Conditions may be amended, modified, or supplemented only by an agreement in writing signed by the parties.
15. Independent Contractor.  Each party shall be considered to be an independent contractor under the Agreement. The relationship between the parties shall not be construed to be that of employer and employee, nor to constitute a partnership, joint venture, or agency of any kind. Neither party shall have the right to bind the other party to any contract or other commitment.
16. Third Party Beneficiaries.  Except as provided for in Section 9, no provision of these Terms and Conditions is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any person other than the parties and their respective successors and permitted assigns.
17. Severability.  If any term or provision of these Terms and Conditions are invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction.
18. Force Majeure. Any delay or failure of Madzay to perform its obligations under the Agreement will be excused if the delay or failure was caused by an event or events beyond Madzay’s control (which events may include, without limitation, natural disasters, embargoes, explosions, riots, wars, acts of terrorism, strikes, labor stoppages or slowdowns or other industrial disturbances, and shortage of adequate power or transportation facilities).
19. Waivers. No waiver by either party of any of the provisions of these Terms and Conditions shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by either party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver.
20. Notices.  All notices, requests, consents, claims, demands, waivers, and other communications under these Terms and Conditions shall be in writing and shall be deemed to have been given: (a) when delivered by hand; (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the Order Form (or to such other address that may be designated by a party from time to time in writing).
21. Waiver of Jury Trial. Each party acknowledges and agrees that any controversy that may arise under the Agreement are likely to involve complicated and difficult issues and, therefore, each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to the Agreement or the transactions contemplated by the Agreement.