1. Purchase and Governing Provisions. Mark Andy, Inc. (“Seller”) agrees to sell to the intended purchaser (“Buyer”), and Buyer agrees to purchase from Seller, the parts, equipment, and or services as described in the relevant purchase order and/or Seller’s invoice (the “Products”), subject to the terms and conditions set forth herein. These terms and conditions, along with any related quote or invoice, constitute the entire agreement between Seller and Buyer, superseding all prior oral or written agreements, purchase orders, acknowledgements or other forms relating to the Products. No changes to these terms and conditions may be made without the prior written consent of both parties. No modifications to these terms and conditions may be made through terms and conditions contained in other documents, including, but not limited to, purchase orders, order acknowledgements, packing slips, and Buyer invoices.
2. Warranties, Exclusions, etc.
(a) Express Warranties. Seller warrants (i) that Seller has good and marketable title to the Products, free and clear of all liens and encumbrances, (ii) Seller’s Products will conform to Seller’s published specifications, and (iii) the Products will be free from defects in materials and workmanship under normal use and service. Unless otherwise specified in writing by Seller, these warranties survive for a period of twelve (12) months from the date of delivery of the Products hereunder (“Warranty Period”). All warranties shall terminate at the end of the Warranty Period. Descriptions of Products are intended only as a guide and their accuracy is not guaranteed, and Seller makes no warranty regarding any such descriptions of Products. Buyer shall provide notice to Seller of any breach of any warranty within 30 days of discovery.
(b) Remedies. If within the Warranty Period such Products are proven to Seller’s satisfaction not to comply with the warranty in Paragraph 2(a)(i), Seller will take commercially reasonable steps to clear title to the Products, and if Seller is unable to do so, Seller shall refund the purchase price paid upon return of the Products. If within the Warranty Period any such Products are proven to Seller’s satisfaction to not conform to Seller’s published specifications or to be defective in material or workmanship, Seller shall, at its sole option, (i) repair or replace the Products at Seller’s cost, (ii) refund the purchase price paid upon return of the Products, or (iii) grant a reasonable allowance on account of such breach. The remedies provided in this Paragraph 2(b) shall be Seller’s sole warranty obligations and Buyer’s exclusive remedy for breach of any warranty or any other agreement hereunder, except for such remedies provided in Paragraph 9. This exclusive remedy shall not be deemed to have failed its essential purpose so long as the Seller is willing and able to replace defective Products or issue a credit to Buyer within a reasonable time after Buyer proves to Seller that a defect or non-conformity exists. All warranty service shall be performed, at Seller’s reasonable discretion, either at Buyer’s premises or Seller’s.
(c) Exclusions. This warranty shall not apply to consumable and wear items including, but not limited to, toner, belts, drums, fusers, rollers, cleaning blades, waste toner box, developer, doctor blades, anilox rolls, meter rolls, dies, wipes, filters, and fluids; Digital Ink Print Heads; or to Products which shall have been subjected to damage by anyone other than Seller or due to circumstances beyond Seller’s reasonable control; improper operation or maintenance (including recommended preventative maintenance) or storage by Buyer. This warranty shall also not apply to defects or non-conformity due to the manufacturing process discovered after the expiration of the Warranty Period or to any damage caused by Buyer modifying Products in any manner without Seller’s express written consent. Unless otherwise provided in writting, Seller does not warrant any specific applications or production quality, or the use of any third-party consumable materials. Equipment performance is dependent on factors including, but not limited to: human operation, environmental factors, third party consumable materials, and adherence to Seller-recommended operating instructions and maintenance. If the Products are relocated outside of the country to which Seller delivered Products during the Warranty Period, Buyer will be responsible for additional service and labor charges of Seller, including travel and related expenses, at the then standard rates for non-warranty services. If and while Buyer is in default under any payment obligation, Seller shall have no obligation to Buyer under Section 2(b).
The warranties and remedies set forth in this Paragraph 2 shall apply to and shall be the exclusive warranties and remedies for all repair or replacement parts or products provided to Buyer by Seller, but shall survive for the greater of the initial Warranty Period of the original Products or ninety (90) days after initial installation and operation of the repair or replacement parts. Seller shall have the right of disposal of parts replaced by it.
(d) Disclaimer of Warranty. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE PRODUCTS OR OTHER PARTS PROVIDED TO BUYER HEREUNDER OTHER THAN THOSE EXPRESSLY STATED HEREIN. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES WHATSOEVER. SELLER SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(e) Additional Provisions. If the Products specifications include Seller’s Remote Diagnostics Package, then the following additional warranty provisions shall apply:
(i) At all times during the Warranty Period, Buyer shall use its best efforts to provide for and maintain an Internet connection serving the Products in accordance with the requirements set forth in the Products specifications for the purpose of remote diagnostic capabilities. Notwithstanding anything to contrary set forth in this Paragraph 2, in the event that Buyer makes a warranty claim hereunder, and at that time the Internet connection to the Products is not in operation for any reason, then Buyer shall be responsible for any and all service and labor charges, including travel costs and related expenses, required to identify the defect, if any, in the Equipment. If Seller thereafter discovers a defect constituting a breach of warranty hereunder, then all service and repair charges and expenses related to the repair of the Products shall be subject to Seller’s warranty obligations hereunder; provided, however, that Buyer shall remain responsible for any charges or expenses related to identifying the defect. Any service and labor charges for which Buyer is responsible under this paragraph shall be at Seller’s then standard rates for non-warranty repairs and service and shall be paid within thirty (30) days of receipt of Seller’s invoice therefor.
(ii) Buyer hereby agrees and acknowledges that as a condition to Seller’s ability and obligation to perform remote diagnostics on the Products, Seller shall have access to certain data of Buyer related to the operation of the Products and accessed from the remote diagnostics software. Seller agrees to hold any such data in confidence, to treat such data with the same degree of care Seller uses for its own confidential information, and not to use any such data to the detriment of Buyer or its successors or assigns.
3. Contingencies and Force Majeure. All quoted delivery and service dates and/or periods are approximate. Seller shall not be liable for any damage as a result of any delay due to any cause beyond Seller’s reasonable control, including but not by way of limitation any act of God, pandemic, embargo or other governmental act, regulation or request, fire, flood, storm, accident, sabotage, explosion, strike, slow down, war, riot, act of terror, delay in transportation, delayed delivery by supplier, inability to obtain necessary labor and materials, and act or omission of Buyer, including, without limitation, delay in providing technical information, and other documentation to Seller. In the event of any such delay, the date of delivery or services shall be extended for a period equal to the time lost by reason of delay, plus the delay reasonably incident to the resumption of normal work. Seller will conduct any allocations among its own, and its customers’, requirements in a fair and reasonable manner.
4. Shipment. Unless otherwise specified in writing, all shipments are F.O.B. Seller’s factory. Seller will arrange for transportation to Buyer at Buyer’s address. The Products will be shipped under a straight bill of lading, naming Buyer as consignee. Forthwith after the Products has been delivered to a shipper for transportation to Buyer, Seller shall transmit the bill of lading to Buyer at Buyer’s address. The risk of loss in respect of the Products shall pass to Buyer when delivered by Seller to a carrier under a contract of transportation to Buyer. Before leaving Seller’s factory, each item is individually inspected and carefully packed for safe arrival at destination. In the event visible damage, concealed damage or loss should occur, a claim must be made in writing by the Buyer against the delivering carrier within two (2) weeks after receipt of product. The shipping container must be held for carrier’s inspection in the case of visible or concealed damage. “F.O.B.” shall have the meaning ascribed to in the Uniform Commercial Code. Any other provision notwithstanding, if the financial condition or credit of Buyer at any time shall, in the discretion of Seller, not warrant shipment of Products ordered prior to full payment, Seller may require full payment prior to shipment.
5. Storage. If the manufacture or shipment of the Products is delayed by causes within Buyer’s control or that affect Buyer’s ability to receive the Products or at Buyer’s request, Seller may, at Seller’s sole discretion, (i) place the Products in storage at Buyer’s risk and Buyer shall pay storage charges at the prevailing commercial rates upon submission of invoices therefor; or (ii) in the event that the Products cannot be removed from the assembly area for storage, Seller may hold the Products in its assembly area and Buyer shall reimburse Seller for all costs actually incurred due to a resulting delay in production schedule.
6. Price. Payment is due in accordance with the terms on page one and shall be made in U.S. dollars. If delivery is delayed by Buyer, date of notice of readiness for delivery shall be deemed to be date of delivery for invoice purposes. On late payments, the unpaid balance shall, without prejudice to Seller’s right to immediate payment, be increased by one and one-half percent (1.5%) per month, not to exceed the maximum permitted by law. Buyer agrees to pay, in addition to the balance then due and owing all incurred costs of collection, including reasonable attorney fees (if applicable). Buyer shall not apply any set-off to the price of Seller’s products without prior written agreement by the Seller. Buyer’s payment obligations shall not be affected by any circumstances, including, without limitation, any set-off, counterclaim, recoupment, defense or other right which Buyer may have against Seller or others, including any right of Buyer under RSMO 400.2-717.
7. Taxes and Other Charges. Any applicable duties, sales, use, excise, value added or similar taxes not appearing on the first page hereof and assessed in connection with the Products will be added to the price and invoiced separately (unless acceptable exemption certificate is furnished) and paid by Buyer upon receipt of invoice.
8. Security Interest. Until Seller collects in full all amounts owed by Buyer to Seller, Seller retains, and Buyer grants to Seller a continuing security interest in and a lien upon the Products and the proceeds thereof (including insurance proceeds), as security for the payment of all such amounts and the performance by Buyer of all its obligations to Seller, and Buyer shall have no right to sell, encumber or dispose of the Products. Buyer hereby authorizes Seller to file any and all financing statements listing Buyer, its successors, assigns, affiliates, and transferees as “debtor” to perfect such security interest and to issue any notices or take any other acts to establish and protect the priority of such security interest. Buyer agrees to execute such other documents and instruments and do and perform any and all other acts and things which Seller may consider necessary, desirable or appropriate to establish, perfect or protect Seller’s security interest and lien, and Buyer hereby appoints Seller to act as Buyer’s attorney-in-fact for purposes of executing any of the foregoing on Seller’s behalf. The goods shall remain personal property regardless of how they are affixed to Buyer’s real property.
9. Patents, Trademarks and Copyrights.
(a) Seller will, at its own expense, defend any suits that may be instituted by anyone against Buyer for alleged infringement of any U.S. patent, trademark or copyright relating to any Products manufactured by Seller hereunder, if such alleged infringement consists of the use of such equipment, or parts thereof, in Buyer’s business and, provided Buyer shall have made all payments then due hereunder, shall have given Seller immediate notice in writing of any such suit, transmitted to Seller upon receipt of all processes and papers served
upon Buyer, permitted Seller through its counsel, either in the name of Buyer or in the name of Seller, to defend the same and given all needed information, assistance and authority to enable Seller to do so. If such Products are held to infringe any valid U.S. patent, trademark or copyright, then: (i) Seller will pay any final award of damages in such suit attributable to such infringement, and (ii) if in such suit use of such Products by Buyer is permanently enjoined by reason of such infringement, Seller shall, at its own expense and at its sole option, either
(A) procure for Buyer the right to continued use of the Products, (B) modify the Products to render it non- infringing, (C) replace the Products with non-infringing goods, or (D) refund the purchase price and the transportation costs paid by Buyer for the Products, less an allowance for use and ordinary wear and tear equal to ten percent (10%) of the purchase price multiplied by the number of years that the Products has been utilized by Buyer, pro-rated for any partial year of use. Notwithstanding the foregoing, Seller shall not be responsible for any compromise or settlement made without its written consent, or for infringements of combination or process patents covering the use of the Products in combination with other goods or other materials not furnished by Seller. The foregoing states the entire liability of Seller for infringement, and in no event shall Seller be liable for any damages attributable to infringement nor any alleged infringement of products manufactured by third parties and supplied hereunder.
(b) Buyer shall defend and hold Seller harmless from any claim made against Seller or its suppliers that the manufacture or sale of products supplied constitutes infringement of any U.S. patent, trademark or copyright, if such Products was manufactured pursuant to Buyer’s designs, specifications, processes and/or formulas, provided Seller promptly notifies Buyer in writing of the claim and gives Buyer full authority, information and assistance (at Buyer’s expense) for the defense of same.
10. Consequential Damages and Other Liability; Indemnity.
(a) Seller’s liability with respect to the Products sold hereunder shall be limited to the warranty provided in Paragraphs 2 and 9 hereof and, with respect to other performance, shall be limited to the contract price. THE PARTIES AGREE AND ACKNOWLEDGE THAT SELLER SHALL NOT BE LIABLE TO BUYER FOR AND DISCLAIMS (1) ANY OTHER OBLIGATIONS OR LIABILITY, ARISING OUT OF BREACH OF CONTRACT OR WARRANTY, (2) ANY OBLIGATIONS WHATSOEVER ARISING FROM TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ARISING UNDER OTHER THEORIES OF LAW, WITH RESPECT TO PRODUCTS SOLD OR SERVICES RENDERED (INCLUDING BUT NOT LIMITED TO WARRANTY SERVICES) BY SELLER, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO, AND (3) ALL INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, FOR PROPERTY OR PERSONAL INJURY DAMAGES, FOR LOST PROFITS OR REVENUES, LOSS OF USE OF ANY EQUIPMENT, COST OF CAPITAL, FACILITIES OR SERVICES, DOWN TIME, AND FOR ANY THIRD PARTY CLAIMS OR DAMAGES, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
(b) Buyer shall indemnify Seller against any and all losses, liabilities, damages and expenses (including but not by way of limitation, attorneys’ fees and other costs of defending any action) which Seller may incur arising from or as a result of any claim by Buyer or others arising out of or in connection with the products and/or services sold hereunder for injuries or damages directly or indirectly from, the negligence or intentional conduct of Buyer, its employees, agents, or contractors (including but not limited to removal or disabling of guarding or other safety features or devices; misuse or material alteration of the equipment; use of parts not manufactured or supplied by Seller; maintenance or repair performed by other than Seller; and failure to comply with or enforce federal, state, or local laws or regulations) or by Buyer’s breach of any relevant terms. This paragraph is not intended, and shall not be construed, to provide for indemnification of Seller for injuries or damages proven to have been caused solely by the Seller’s negligence.
11. Termination by Buyer. Purchase orders may be terminated by Buyer, in whole or in part, at any time by providing written notice of termination to Seller. Upon such termination, Buyer shall pay to Seller the following amounts without duplication: (a) the price as shown on the relevant agreement or invoice for all goods which had
been completed, including all goods purchased by Seller from third parties; and (b) costs incurred by Seller in accordance with the purchase order, including without limitation, labor, engineering and material costs allocable to the terminated portion of the purchase order and restocking fees charged by vendors for the return of components of canceled Products, plus an amount equal to twenty percent (20%) of any such costs to cover general overhead costs and administrative expenses incurred by Seller due solely to Buyer’s early termination. Seller agrees to use commercially reasonable efforts to minimize costs charged to Buyer under this paragraph.
12. Software. Any software embedded in or provided pursuant to any sale is subject to the terms of the Mark Andy Software License Agreement (https://www.markandy.com/software-license-agreement/). Buyer is responsible for all applicable third party software licensing fees.
13. Health and Safety. The Buyer (i) acknowledges that there may be hazards associated with Products, including the storage, use and handling thereof; (ii) will warn, protect and train its employees, contractors and others exposed to the hazards posed by Buyer’s storage, use and handling of such Products; (iii) assumes all responsibility for the suitability and the results of using Products alone or in combination with other articles or substances and in any manufacturing or other process or procedures; and will notify Seller of any hazards and safety procedures at Buyer’s location(s). If, at any time, Seller considers that the performance of the supply obligations hereunder would pose an unreasonable risk to safety, Seller may suspend its supply obligations without notice. Each Party, in the performance of this Agreement, will comply with all relevant federal, state and local laws, codes, regulations and ordinances, including all environmental laws, in each case as applicable to such Party. The use of Products for packaging of regulated goods, including but not limited to, food and beverage, pharmaceuticals, and health and beauty applications may be subject to important restrictions. Those restrictions differ from country to country, and depending on Buyer’s use and potential exporting practices, more than one country’s rules may apply. Buyer is solely responsible for determining which regulatory requirements apply to its use of inks and that such use complies with all applicable regulatory requirements.
14. Compliance with Laws.
(a) Seller will comply with all laws applicable to Seller in manufacturing and delivering the Products F.O.B. Seller’s factory. Compliance with any federal, state or local laws and regulations, including but not limited to OSHA, Fair Labor Standards Act, building or electrical codes, during any operation or use of the Products is the sole responsibility of Buyer. Buyer acknowledges that it is Buyer’s responsibility to provide proper safety devices and equipment for the particular application or use intended by Buyer so as to protect the operator and others from harm.
(b) Buyer acknowledges that the Products may be subject to certain import and/or export control laws, regulations and other directives of the United States and various other countries (collectively, the “Import and Export Laws”). To the extent such Import and Export Laws are applicable, Buyer represents and warrants that it will comply fully with all applicable Import and Export Laws when locating and/or reselling and relocating any products, including any provisions relating to reporting or disclosure requirements. Buyer acknowledges and agrees that (i) it is solely responsible for obtaining appropriate legal advice related to its compliance with the Import and Export Laws and/or the applicability of the Import and Export Laws to any particular transaction involving the Products, and (ii) Seller has no responsibility or liability for the compliance of this transaction or any other transaction involving the Products with any Import and Export Laws, and (iii) Buyer shall indemnify and hold Seller harmless from any and all claims, actions, demands, causes of actions, damages, expenses and liabilities which Seller may incur from Buyer’s violation of any Import and Export Laws in any way related to the Products.
15. Waiver. The parties shall not be deemed to have waived any of their rights, powers, or remedies at law or in equity unless such waiver is in writing and is executed. No delay or omission by the parties in exercising any right, power, or remedy shall operate as a waiver thereof or of any other right, power, or remedy. No waiver by the parties of any default shall operate as a waiver of any other default, or of the same default or another occasion.
16. Technical Information. Any sketches, models, samples or designs submitted by Seller shall remain the property of Seller, and shall be treated as confidential information by Buyer unless the Seller has in writing indicated a
contrary intent. No use or disclosure of such sketches, models and samples, or any design or production process or techniques revealed thereby, shall be made without the express written consent of the Seller.
17. Confidential Information. Information exchanged in connection with a sale will be treated as confidential if identified as such at disclosure or if the circumstances of disclosure would reasonably indicate such treatment. Confidential Information may only be used for the purpose of fulfilling obligations or exercising rights under such sale, and shared with employees, agents or contractors with a need to know such information to support that purpose. Confidential information will be protected using a reasonable degree of care to prevent unauthorized use or disclosure for five (5) years from the date of receipt. These obligations do not cover information that: (i) is known by the receiving party at the time of receipt; (ii) is or becomes a part of the public domain other than as a result of disclosure by the receiving party; (iii) the receiving party lawfully obtains from a third party under conditions permitting its disclosure to others; or (iv) is disclosed as required by law Government regulations.
18. Separability. If any provisions of these terms and conditions shall be deemed illegal or unenforceable, such illegality or unenforceability shall not affect the validity and enforceability of any legal and enforceable provisions hereof which shall be construed as if such illegal and unenforceable provision or provisions had not been inserted herein, unless such illegality or unenforceability shall destroy the underlying business purpose.
19. Assignability. Buyer may not assign any rights or obligations related to a sale without Seller’s prior written consent.
20. Governing Law and Dispute Resolution. All sales and these terms and conditions shall be governed and construed according to the laws of the State of Missouri, USA, without reference to principles of conflicts of laws. The rights and obligations of the parties hereunder shall not be governed by the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. For any dispute, controversy or claim arising out of or relating to these terms and conditions, or the breach thereof, including claims for equitable relief and requests for interim measures, the parties shall first discuss in good faith alternative dispute resolution options. Should alternative dispute resolution fail, the parties agree that any legal action or proceeding will be brought exclusively in the Federal or State courts in and for St. Louis County, Missouri, USA. The parties further agree that service of process may be made by certified mail or overnight delivery (via FedEx or similar international carrier) directed to the served party at the address provided by such relevant party, and service so made shall be deemed to be completed upon actual receipt thereof. The parties waive any objection to jurisdiction and venue of any action instituted as provided herein and agree not to assert any defense based on lack of jurisdiction or venue.
21. Change Order. Buyer may request changes be made to the Products at any time, including after delivery; provided, that Buyer and Seller mutually agree upon (a) decreases or increases, as applicable in the purchase price of the Products due to, without limitation, additional charges for redesign, additional costs for components, costs for rescheduling production (including down time due to any delay), storage fees due to delays, vendor restocking fees for returned components, other additional vendor charges for installation and training and other additional fees for labor and material; and (b) the effect any delay caused by such requested change will have on delivery schedules, payment terms, and storage fees.