GENERAL TERMS AND CONDITIONS OF SALE
The provisions set forth below, together with any special terms and conditions set forth in any written sales order or quotation from
Imagine! Print Solutions, Inc. (“IMAGINE!”), are the sole terms and conditions upon which IMAGINE! will provide services and/or
sell the products, and any additional or contrary terms and conditions contained in any purchase order or other communication from
you, or any third party working on your behalf (the “Customer”) are expressly rejected. No such purchase order or other
communication shall be construed as or constitute a waiver of these terms and conditions, or acceptance of any such additional terms,
conditions or specifications.
1.
AGREEMENT. If Customer has not otherwise agreed to these terms and conditions, Customer’s acceptance of credit,
delivery of, payment for, or the provision of service or use of the products will constitute Customer’s agreement to these
terms.
2.
EXCLUSION OF WARRANTIES. EXCEPT AS SET FORTH IN PARAGRAPH 3 BELOW, IMAGINE! MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, RELATING TO ANY PRODUCTS SOLD HEREUNDER, INCLUDING,
WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
3.
LIMITED WARRANTY. IMAGINE! warrants that any products sold hereunder shall be free from material faults and
defects for a period of six (6) months following the date on which such products were shipped by IMAGINE! to Customer.
If any product is determined to be defective by IMAGINE! within such six (6) month period, IMAGINE! shall, at its option,
either (i) replace such defective product without charge or (ii) issue to Customer a credit in such amount as IMAGINE!
deems reasonable, in its sole and absolute discretion.
4.
LIMITATIONS ON WARRANTY. IMAGINE!, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS,
SUBCONTRACTORS AND VENDORS SHALL NOT BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL,
CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES RELATING TO ANY PRODUCTS SOLD HEREUNDER
AND/OR THESE TERMS AND CONDITIONS WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT OR
OTHERWISE AND IRRESPECTIVE OF WHETHER IMAGINE! HAS BEEN ADVISED OF THE POSSIBILITY OF
ANY SUCH LOSS OR DAMAGE. CUSTOMER HEREBY WAIVES ANY CLAIMS THAT THESE EXCLUSIONS
DEPRIVE CUSTOMER OF AN ADEQUATE REMEDY. THE LIABILITY OF IMAGINE!, IF ANY, RELATING TO
ANY PRODUCTS SOLD HEREUNDER AND/OR THESE TERMS AND CONDITIONS SHALL IN NO EVENT
EXCEED THE PRICE PAID BY CUSTOMER TO IMAGINE! WITH RESPECT TO THE APPLICABLE CUSTOMER
ORDER.
5.
PRICES. All price quotations are offered for prompt acceptance, and shall be deemed to be the confidential information of
IMAGINE!. Material costs are based on the costs as of the time of quotation and are subject to adjustment based upon the
actual costs at the time of IMAGINES! acceptance of an order, (ii) all electronic pre-press estimates are subject to review and
adjustment upon receipt of Customer’s file, (iii) the prices shown, unless otherwise expressly noted do not include ancillaries,
insurance, freight, duties or sales taxes, and (iv) such quotations are subject to any change orders agreed upon by IMAGINE!
and Customer.
6.
PAYMENT TERMS. Unless otherwise specified by IMAGINE! in writing, payment in full is due thirty (30) days after
shipment, without discount, reduction, setoff, abatement, counterclaim or recoupment for any reason, except that if at any
time IMAGINE! determines that Customer’s financial condition or credit rating does not justify a sale on credit, IMAGINE!
may require advance payment, a personal guarantee and/or may ship C.O.D. If Customer contends in good faith that any
invoice is incorrect, Customer must so notify IMAGINE! within ten (10) days after receipt of the invoice. If Customer does
not so notify IMAGINE!, Customer forever waives the right to further dispute the accuracy of the invoice. Any payment not
made when due shall accrue a late charge of 1-1/2% per month or, if lower, the maximum rate permitted by law. Payment
must be made at IMAGINE!’s designated banking facility. Customer agrees that all inventory held on the customer’s behalf
will be stored as finished goods and, unless otherwise stated in writing, customer agrees to accept delivery and be held
financially responsible to pay for all inventory balances on hand held by IMAGINE!.
7.
DELIVERY AND RISK OF LOSS. Delivery will be F.O.B. IMAGINE!’s warehouse or other point of origin designated by
IMAGINE!. IMAGINE! shall have no further responsibility for the products, and all risk of damage to or loss or delay of the
products shall pass to Customer, upon their delivery to the FOB point. IMAGINE! shall have the right to determine the
method of shipment and routing of the products, unless otherwise specified by Customer and agreed in writing by
IMAGINE!. United States law prohibits disposition of the products to certain countries. It is the Customer’s responsibility to
comply with such laws and to inform IMAGINE! of the ultimate destination for the products at the time a purchase order is
placed.
8.
BILL AND HOLD PRODUCTS: Unless otherwise agreed in writing by the parties, Customer acknowledges that if it utilizes
IMAGINE! for fulfillment or similar services that inventory housed within our facility is the property of the Customer, and
available for delivery upon reasonable request. Customer accepts title and risk of loss on said product. Items manufactured
by IMAGINE! are required to be invoiced in full at the time of delivery, at the agreed upon purchase price and paid under
normal terms at the point of completion and delivery to our fulfillment facility as “bill and hold” product. Customer accepts
this product as its own, with no right of return other than standard product warranties, with the only remedy as replacement of
defective product. Customer also agrees to take future delivery of all product within reasonable time frames, not to exceed
ninety (90) days, after such time Customer hereby authorizes IMAGINE! to dispose of such Product as obsolete with no
payment or recourse.
9.
STORAGE OF GOODS; UNPAID FULFILLMENT PRODUCTS. To the extent agreed in writing by IMAGINE!, Product
of the Customer may be held by IMAGINE! in its warehouse(s) for the purpose of fulfilling orders for the Customer for the
agreed upon period (the “Order Cut Off Date”); however, Imagine! reserves the right to invoice the Customer on a monthly
basis for warehousing and fulfillment fees incurred during such period.. Unless otherwise agreed in writing by IMAGINE!,
after [ninety (90)] days, following the Order Cut Off Date, IMAGINE! has the right to invoice Customer for the remaining
finished goods inventoried at their warehouse. Following payment for the products, Customer and IMAGINE! may agree to
have IMAGINE! continue to store the purchased product in IMAGINE!’s warehouse for the purpose of fulfilling orders,
however, the Customer agrees to pay a warehousing fee on a per skid per month basis. If Customer fails to pay for the goods
or any applicable warehousing fees, IMAGINE! shall have the right to dispose of or destroy any related finished goods
without payment or recourse.
10. OVERS/UNDERS POLICY: For all folding carton/packaging work, Customer agrees to accept a shipment quantity that is
plus or minus a quantity equal to ten percent (10%) of the order quantity requested by Customer. Customer will be invoiced
for the quantity that is actually shipped within these guidelines and Customer agrees to pay the invoice pursuant to the terms
and conditions set forth in Paragraph 7 above. For all other types of work, IMAGINE! will use commercially reasonable
efforts to ship and invoice Customer according to the quantities contained within Customer’s purchase order.
11. FORCE MAJEURE. Fulfillment of all orders is contingent upon the availability of materials. IMAGINE! shall not be liable
for any delays in delivery, or for non-delivery or nonperformance, in whole or in part, caused by the occurrence of any
contingency beyond the control of either IMAGINE! or suppliers of IMAGINE! The existence of any such cause or causes of
delay shall extend the time of performance by the time or times measured by any such cause or causes of delay.
12. ACCEPTANCE OF ORDERS. Orders and offers to purchase received by or on behalf of IMAGINE! are subject to
acceptance in writing only at its office in Shakopee, Minnesota. No IMAGINE! sales representative, or field agent has
authority to accept orders or make contracts of sale on behalf of IMAGINE!.
13. CANCELLATION, COUNTERMAND AND RETURN OF GOODS. Orders accepted by IMAGINE! cannot be cancelled or
countermanded, or shipments deferred or product returned by Customer except with the prior written consent from the
IMAGINE! office in Shakopee, Minnesota, and upon terms that will indemnify IMAGINE! against all losses resulting
therefrom, including the profit on any part of the order that is cancelled.
14. SOLVENCY AND SECURITY INTEREST. Customer represents and warrants to IMAGINE! as an inducement to
IMAGINE! to extend credit and sell to Customer product that Customer is able to pay its obligations in the ordinary course of
business. Customer hereby grants to IMAGINE! a first priority security interest in the products to secure payment of the
price and all other indebtedness now and in the future owing by Customer to IMAGINE!. Customer agrees that IMAGINE!
may file a financing statement in order to perfect the security interest granted herein.
15. INTELLECTUAL PROPERTY. Customer represents and warrants that it owns or has the legal right to use the materials
provided to IMAGINE! to create the products. Customer shall defend, indemnify and hold IMAGINE! harmless from any
claim of infringement that the products or their use infringe any patents, copyrights, trademarks, trade secrets, or any other
intellectual property rights of any third party if such claim of infringement involves products produced by IMAGINE! at
Customer’s direction or is based upon the use of the product in combination with other items where such infringement or
claim thereof would not have occurred from the normal use for which the product was designed. Unless otherwise agreed in
writing, Customer acknowledges and agrees that any invention, discovery or idea (whether patentable or not and including
those that may be subject to copyright protection) that were generated, conceived, or reduced to practice by IMAGINE! in
conjunction with the production of the products or during the time that the products were being developed and produced are
IMAGINE!’s exclusive property.
16. NON-DISCLOSURE OF CONFIDENTIAL AND/OR PROPRIETARY TECHNICAL INFORMATION. Customer shall not
disclose any pricing, technical or proprietary information furnished by IMAGINE! or acquired by Customer or by virtue of or
as a result of the implementation of any purchase order to any person, firm or body or corporate authority and shall make all
endeavors to ensure such technical/proprietary information is kept confidential. Title to such technical/proprietary
information imparted/supplied by IMAGINE! to Customer shall at all times remain the absolute property of IMAGINE!.
17. INDEMNITY. Customer will defend, indemnify and hold harmless IMAGINE! from and against all damages, losses, claims
and expenses, including attorneys’ fees, incurred by IMAGINE! as a result of (a) any breach by Customer of any of its
obligations under these terms and conditions of sale, or (b) any personal injury or property damages resulting from the sale or
use of the products.
18. APPLICABLE LAW. These terms and conditions shall be deemed to have been made in the State of Minnesota and shall be
governed by, construed and interpreted in accordance with the laws of the State of Minnesota. With respect to any dispute,
controversy or claim arising out of or relating to these terms and conditions or the relationship between the parties,
IMAGINE! and Customer agree and consent to jurisdiction of and exclusive venue in the United States District Court,
District of Minnesota, Fourth Division or in the Minnesota State Court, Hennepin County, Fourth Judicial District.
19. ENTIRE AGREEMENT; AMENDMENT. These terms and conditions contain the entire agreement between Customer and
IMAGINE! with respect to the subject matter hereof. These terms and conditions may not be modified, supplemented, or
waived except in a writing signed by an authorized representative of IMAGINE!.
20. SEVERABILITY. Should any provision of these terms and conditions be illegal or unenforceable, the validity of the
remaining terms and conditions shall not be affected thereby. If any provision of these terms and conditions is determined to
be overbroad as written, that provision should be considered to be amended to narrow its application to the extent necessary
to make the provision enforceable according to applicable law and enforced as amended.
21. ATTORNEYS’ FEES. If an action is instituted in any court involving these terms and conditions and/or any products sold
hereunder, and provided IMAGINE! shall prevail in the action, Customer agrees to pay all of IMAGINE!’s costs, expenses
and fees in the action or appeal including, without limitation, reasonable attorneys’ fees.