1. Applicability; Entire Agreement; Amendment.  These terms and conditions of sale (“Terms“) and the purchase order for goods or services agreed between the parties (“PO” together with the Terms, this “Agreement”) are the only terms which govern the sale of the goods (“Goods“) by Label Specialties Inc. (“Seller“) to the purchaser indicated on the front of the PO (“Buyer“) and are incorporated into every contract for the sale of Goods made by or on behalf of the Seller. 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 of the written agreement shall prevail to the extent inconsistent or in addition to any provisions in these Terms.  Either party may use its standard business forms to administer POs, but use of such forms is for the parties’ convenience only and does not alter the provision of these Terms.  Seller will not be bound by, and specifically objects to, any provision that is different from or in addition to the provisions of these Terms, whether proffered verbally or in any PO or otherwise and regardless of when Buyer has submitted its purchase order or such terms, and these Terms shall prevail to the extent inconsistent or in addition to any other terms unless such terms are specifically agreed to in a writing signed by Seller.  For clarification, fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions inconsistent with these Terms and does not serve to modify or amend these Terms.  Acceptance by Buyer of delivery of the Goods is (without prejudice to any other manner in which acceptance of these terms and conditions may be evidenced) deemed to constitute unqualified acceptance of these Terms.  This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of Seller.  Notwithstanding the foregoing, Seller reserves the right to replace or amend these Terms upon thirty (30) days prior notice.  For these purposes, it shall be sufficient for Seller to notify Buyer that it has revised is Terms and that such revised Terms are accessible on Seller’s website or via any other medium accessible to the Buyer.
  2. Delivery; Title; Risk of Loss. All times, dates or periods given for delivery of the Goods are estimates given in good faith, but without any responsibility on Seller’s part.  The goods will be delivered within a reasonable time after Seller’s acceptance of Buyer’s PO, subject to availability of finished Goods. Seller shall not be liable for any delays, loss or damage in transit.  Unless otherwise agreed in writing by the parties, all Goods will be delivered FOB Seller’s location (the “Delivery Point“).  Buyer shall take delivery of the Goods within (seven) 7 days o the Seller giving it notice that the Goods are ready for delivery. Seller shall not make partial or split shipments unless stated on the PO. Partial and split shipments will be charged an additional $5.00 each.  Title and risk of loss passes to Buyer upon delivery of the Goods to the Delivery Point.
  3. Non-delivery.  The Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within three (3) days of the date when the Goods would in the ordinary course of events have been received.  Any liability of Seller for non-delivery of the Goods shall be limited to, at Seller’s option, replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
  4. Quantity.  If Seller delivers to Buyer a quantity of Goods of up to 10% more or less, or 20% more or less in the case of custom orders, than the quantity set forth in the PO, or if one has been issued the sales confirmation, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods the price set forth in the PO, or if one has been issued, the sales confirmation adjusted pro rata.
  5. Inspection and Rejection of Nonconforming Goods.  Buyer shall inspect the Goods within thirty (30) days of receipt (“Inspection Period”).  Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Goods that do not conform to this Agreement (“Nonconforming Goods”) during the Inspection Period and furnishes such written evidence or other documentation as required by Seller.  If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the price for such Nonconforming Goods. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility set forth on the face of the PO.  Buyer acknowledges and agrees that the remedies set forth herein are Buyer’s exclusive remedies for the delivery of Nonconforming Goods.
  6. Price and Payment.  Buyer shall purchase the Goods at the price set forth in the PO.  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.  Buyer shall pay all invoiced amounts due to Seller (a) COD in the absence of credit approval by Seller, or (b) NET thirty (30) days following the invoice date after credit approval by Seller.  Buyer shall pay interest on all late payments at the lesser of the rate of 2% 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 suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for three (3) days following written notice thereof.  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.
  7. Label Copy.  The parties acknowledge that the artwork, logos, statements and all other content to be printed on the Goods (the “Label Copy”) will be supplied by Buyer.  Buyer shall be solely responsible for the compliance by the Label Copy with all applicable laws, rules, and regulations, including without limitation any applicable Federal Drug Administration, United States Department of Agriculture, or other industry specific regulations.  Buyer represents and warrants that it has the right to use, and to grant Supplier the right to use as required by this Agreement, all intellectual property included in any Label Copy provided by Buyer and that no such intellectual property infringes, misappropriates or otherwise violates the rights of any third party.
  8. No Seller Warranty.  SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR ANY THIRD PARTY PRODUCT CONTAINED IN, INCORPORATED INTO, ATTACHED TO OR PACKAGED TOGETHER WITH THE GOODS, AND ALL WARRANTIES ARE HEREBY SPECIFICALLY DISCLAIMED AND EXCLUDED, INCLUDING, WITHOUT LIMITATION, ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; IN EACH CASE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
  9. Limitation of Liability.  IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY THE PARTIES, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED ESSENTIAL PURPOSE.  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.
  10. Indemnity.  Buyer shall indemnify, defend, and hold harmless Seller and its officers, directors, employees, successors, and assigns (collectively, the “Indemnified Parties”) from and against all claims, suits, demands and actions brought against any of the Indemnified Parties which allege (a) that the Label Copy or the Goods, or any part thereof, or their manufacture, use, import, support, sale or distribution infringe, misappropriate, or violate any intellectual property rights of any third party and such infringement, misappropriation, or violation is attributable to any Buyer instructions or Buyer provided materials incorporated into any Goods by Seller, or (b) that the Label Copy provided by Buyer violates any applicable law, rule, or regulation applicable to the product on which the Label Copy will be applied (collectively, “Claims”).  Buyer shall be responsible for all damages, losses, costs, expenses, and liabilities (including reasonable attorney and professional fees) incurred by Seller and relating to Claims.
  11. 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 three (3) 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.
  12. 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 rights, 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.
  13. Force Majeure. The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of fourteen (14) days, Buyer shall be entitled to give notice in writing to Seller to terminate this Agreement.
  14. 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. Notwithstanding any consent to assignment granted by Seller, no assignment or delegation relieves Buyer of any of its obligations under this Agreement.
  15. 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.
  16. 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.
  17. Governing Law; Jurisdiction. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the Commonwealth of Kentucky, without regard to conflicts of law principles.  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 Commonwealth of Kentucky in each case located in the City of Louisville and County of Jefferson, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
  18. Notices. All notices, requests, 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 PO 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 by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
  19. 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.