Terms & Conditions of Sale
Acceptance of Terms and Conditions of Sale
By placing an order with Sapphire Business Solutions or its affiliates and/or subsidiaries (“SBS”, “Company”), Customer accepts and agrees to abide by the terms and conditions of sale detailed below and as written on SBS’s quotations, order acknowledgements, invoices, credit contract and other official documents, which are incorporated herein by reference and which constitute the agreement (the “Agreement”) between them. Company and Customer together may be referred to in the singular as a “Party” and together as the “Parties”. Customer agrees that if the terms and conditions of this Agreement conflict in any way with the terms of any other agreement between the Parties, the terms and conditions of this Agreement will prevail and will supersede any other agreement.
Alterations, Corrections and Change Orders
Company’s price quotations are based upon the Company’s written understanding of the Customer specifications. No handwritten alterations to any Company document including, but not limited to, the Terms and Conditions of Sale, Quotation, Order Acknowledgement and Invoice are valid unless signed by an authorized representative of the Company. Any changes to a job order after the job has been quoted and accepted by the Company will be billed as extra charges at Company’s usual rates. Notwithstanding the foregoing, and recognizing both the frequency of change orders and press deadlines, the Company’s written change order sent, emailed or faxed to the Customer shall amend the terms of the specific job it pertains to without the countersignature of Customer, provided that Customer does not controvert the change order within 24 hours of receipt thereof by delivery-receipted email, postal mail or fax.
Company may, in its sole discretion, assign a job and/or subcontract any or all of the work for a job. This agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the Customer and the Company, provided, however, that Customer may not assign or transfer this agreement, in whole or in part, except with the prior written consent of Company.
Cancellation or Deviation
In the event of cancellation of or deviation from all or part of a Customer order, Customer shall give the Company as much notice as reasonably practicable. Customer shall be liable for all costs incurred by Company resulting from such cancellation or deviation that is not otherwise avoidable by Company through reasonable commercial efforts, including, but not limited to, machine downtime and materials ordered or inventoried on Customer’s behalf and not otherwise usable by Company in the ordinary course of its business within thirty days.
Choice of Law and Venue
This agreement is made pursuant to and shall be governed by the law of the State of California and the Parties consent to jurisdiction of the courts thereof.
Content and Refusal of Work
The Customer warrants that the work does not contain anything that is libelous, scandalous, or anything that threatens anyone’s right to privacy or other personal or economic rights. The Company reserves the right, in its sole discretion, to reject any job tendered to it for any reason and for no reason.
The Customer warrants that it has the right to produce the subject matter to be printed, duplicated or distributed. If the subject matter is copyrighted, the Customer warrants that it owns the copyright or has express permission of the owner to reproduce the copyrighted subject matter and that it has not removed any copyright notice from any material to be reproduced without written permission.
Cost and Expense of Legal Action
The prevailing party in any legal action or proceeding brought to enforce this Agreement shall be entitled to recover from the other, reasonable attorneys’ fees, costs, and expenses arising out of such legal action brought before a court, mediator, arbitration, or private settlement.
The Company may provide creative work in the form of creative briefs, ideas, concepts, demos, sketches, dummies, storyboards, comprehensive layouts, prototypes or by other means. Creative work may be communicated verbally, visually and/or electronically. This work is the sole property of the Company and may not be used by the Customer in any form or derivation without the Company’s written permission or without Customer’s payment of compensation as determined by the Company. Customer’s rights to use such creative work shall further be limited to the original agreed-upon purpose and for any time limit specified unless otherwise agreed in writing.
Customer Furnished Materials
Artwork, film, color separations, special dies, tapes, disks, electronic files, or other materials furnished by the Customer must be usable by the Company without alteration or repair. Items not meeting this requirement will be identified by the Company and may be repaired by the Customer or by the Company at the Company’s current billing rates.
Materials shipped to the Company by Customer must be accompanied by delivery tickets. The Company does not verify the accuracy of delivery tickets upon receipt of Customer materials. The Company relies the accuracy of the material delivery ticket until their use and assumes no responsibility and has no liability for shortages or discrepancies discovered at that time. Customer is expected to provide Company with sufficient material to meet the anticipated need. Any cost associated with a shortfall or discrepancy in Customer materials, including but not limited to backorders, delays, downtime or canceled orders will be billed additional to Customer at the Company’s current billing rates. Each incoming unit of delivery, such as carton or pallet, must bear an identity, item code, quantity, and a sample clearly visible. Each unit of delivery should have only one material version, unless clearly marked and separated. Multiple items should not be included within a single carton, pallet, or container unless noted thereon and on accompanying paperwork.
Customer-supplied paper must be delivered according to agreed specifications. These specifications must include basis weight, caliper, size, pick resistance, and other technical requirements. Paper mill delivery tickets must accompany the paper delivered and should show the number of rolls, pallets or cartons, the quantity per unit of delivery, and the total delivered quantity. In the event that Company stores paper on behalf of the Customer, the Company may impose a storage fee for paper stored more than 30 days at the Company’s standard rates. If storage charges remain unpaid for 90 days, Company shall have the right to demand that Customer remove the paper from Company’s storage. If Customer fails to remove the paper after 20 days’ notice, Company may sell the paper and remit the proceeds to Customer less storage costs and costs of sale. Company shall also have the right to purchase the paper for its own account at agreed-upon or market rates.
Experimental and Preliminary Work
Experimental and preliminary work performed at Customer’s request shall not be used without the Company’s written consent.
Customer agrees to indemnify, hold harmless and defend Company from any and all claims, losses, costs, expenses or damages (including legal costs and reasonable attorney fees) on account of any and all manner of claims, demands, actions and proceedings that may be instituted against Company on grounds alleging that the matter Company produced for Customer violates any copyrights or any proprietary right of any person, that it contains any matter that is libelous, obscene, or scandalous, or invades any person’s right to privacy or other personal rights, or any other breach of a representation or warranty made by Customer to Company. Customer represents and warrants that neither the execution, delivery or performance, nor consummation of the transactions contemplated by or under this Agreement will result in actual or alleged infringement of any proprietary right (including, but not limited to, trademark, trade secret, patent or copyright rights), or any actual or alleged misuse of personally identifiable information, or violation of any other laws and regulations applicable, or a violation or breach of, or default under any provision of the charter, by-laws or any material agreement to which it is a party. At all times, Customer’s performance under this Agreement will be in compliance with any and all other rights arising from or in connection with the products or services produced by the Company at the direction of the Customer.
Insurance, Risk of Loss
Company will hold and store Customer’s stock and other materials only at the Customer’s risk, and the Customer shall be responsible for insurance on their material. Customer retains title to and the insurable interest in its materials. Because of this, the Company is held harmless for acts not of its doing that create losses. All files, software, programs, paper, film, plates, or other materials not supplied by Customer but used to perform the services hereunder shall remain the exclusive property of the Company unless otherwise agreed in writing. The Company shall carry insurance to protect against acts or negligence on the part of its employees in the normal course of business. If Customer requires specific additional insurance coverage, such coverage must be specified by agreement or by separate insurance rider and premium. In such instances, the liability for losses will be limited to the agreed upon insurance amount. Moreover, the Company will only maintain fire and extended coverage on property belonging to the Customer while the property is in the Company’s possession. The Company’s liability for this property will not exceed the amount recoverable from the insurance. Additional insurance coverage may be obtained if it is requested in writing, and if the additional premium is paid to the Company. Customer bears all risk of loss to finished Work upon delivery of the work by Company or its subcontractor, as applicable, to a common or contract carrier or to the U.S. Postal Service mail unit, F.O.B. Company’s or its subcontractor’s shipping dock. The risk of loss for property furnished and/or owned by Customer and for partially-finished work before or after the manufacturing process and while in transit to or from the Company’s premises shall be borne by Customer. Title to finished and partially-finished work shall pass at the same time the risk of loss for such work passes to Customer.
Integration; Miscellaneous Terms
This Agreement contains the entire agreement of the Parties and no inducements, representations, promises, agreements, of understandings, oral or in writing between the Parties, not embodied herein or subsequently made a part hereof by a properly executed addendum or amendment hereto as herein provided, shall be of any force or effect. No addendum to or amendment in the provisions of this agreement shall be effective or binding upon a party hereto unless embodied in a written instrument executed on behalf of such party buy an authorized representative. The only authorized representative of the Company is its President. The Parties agree that this Agreement governs all terms and conditions of Customer’s purchase from Company. These terms and conditions supersede any contrary terms and conditions shown on any and all of Customer’s documents, including but not limited to, its quote requests, purchase orders, correspondence and remittances. Company reserves the right to amend the Agreement at any time, with or without notice to Customer.
Limitation of Liability
The Parties mutually agree that Company’s liability for any and all claims whatsoever, of any kind and nature, arising out of products or services sold by Company to Customer, or relating to any dispute between the Parties of any kind or for any cause, shall not exceed, and shall be limited to, the lesser of the total amount invoiced by Company to Customer, or the fraction thereof related specifically to Customer’s claim. Liability arising from a defect in products or services sold by Company is limited to the amount or amounts invoiced giving rise to such dispute or for that amount that is defective. Notwithstanding the forgoing, to the extent that material submitted by Customer does not conform to Company’s specifications, contains clerical or typographical errors, or otherwise does not strictly meet production deadlines as specified in this Agreement or other Company documents, Company shall have no liability for claims arising out of this Agreement. In disputes regarding product specifications, the specifications contained on the SBS’s quotation or order acknowledgement shall be regarded as correct unless Company had been timely notified that the quoted or acknowledged specifications were incorrect. The Company is not liable, under any circumstances and for any reason, including gross negligence, error, or delay, for specific, incidental, consequential, or indirect damages, including but not limited to, lost profits, lost postal discounts, lost profits, or any related or extra costs incurred, however proximate or foreseeable, arising out of anything that is the subject of or related to this Agreement.
Orders shall be effective upon acceptance by Company. Acceptance by Company may be either by notification to Customer or by commencing to produce work on the goods or services ordered. Acceptance of orders is subject to credit approval and other causes enumerated under Production Schedules. The work is to be performed according to specifications expressly set forth in the Agreement and in any of Company’s specifications relating to particular portions of the work, as provided to Customer. If the Customer furnishes its own paper for any work hereunder, the provisions of Company’s furnished paper rider shall apply. If for any reason, other than solely Company’s error, all or any part of the work must be redone, an additional charge will be made at current rates. An additional charge at current rates may also be made for work requested by the Customer that is different from or in addition to the work specified in the quotation.
Unless otherwise agreed in writing, all outside purchases as requested or authorized by the Customer, are chargeable. Customer is responsible for payment for any paper which Company has been authorized by the Customer to purchase, including paper remaining on hand as the result of Customer changing specifications, discontinuing publication, or changing paper requirements. The Company reserves the right to substitute comparable paper of a manufacturer different from that designated unless specified otherwise in the quotation.
Overruns, Underruns, Spoilage
Overruns or underruns will not exceed ten (10) percent of the quantity ordered, unless specified otherwise in the quotation. The Company will invoice for the actual quantity delivered within this tolerance. If the Customer requires a guaranteed quantity, the percentage of tolerance must be stated at the time of quotation.
All sales are on a C.O.D. basis unless other terms have been previously established between the Parties. Any sales made on credit are subject to the terms and conditions of the Company credit agreement. The Company may, in its sole discretion, alter the terms of Customer credit at any time, with or without prior notice, and may require full or partial payment in advance or upon delivery.
If a prompt-pay discount is offered, all prior outstanding invoices must be paid in order for any discount to be taken. For discount purposes, the date of payment is deemed to be the postmark date on Customer’s remittance envelope. No discounts are allowed on credit card payments regardless of when payment is made. The Company may quote different prices depending upon the method of payment used by Customer.
In the event any Company invoice is not paid within the stated terms, all products sold to Customer shall collateralize all Customer invoices, and all of Customer’s invoices shall become immediately due and payable, at the option of the Company and without notice. If any invoices are paid late, Company may apply Customer payments to the oldest outstanding Customer invoice regardless of Customer indications to the contrary on a check, remittance stub or correspondence. Past due balances will accrue interest at the greater of 1.5% monthly or the highest legal rate. If Customer resells Company products, lack of payment to Customer by its customer does not relieve Customer of the obligation to timely pay Company. Customer will be charged $50.00 for each attempt to deposit a dishonored Customer check. Customer is financially liable for all costs and fees incurred by Company in collecting accounts receivable from Customer including court costs and reasonable attorney’s fees. Customer shall execute financing statement(s) on request and irrevocably authorizes Company to execute and file same. Company and Customer mutually agree that time is of the essence for all provisions of this Agreement. In the event Customer defaults in making any payment under this Agreement, Company may suspend performance under this Agreement. As security for payment of any sum due under the terms of this agreement, the Company has the right to hold and place a lien on all of the Customer’s property in the Company’s procession. Lack of enforcement of this or any provision of this Agreement shall not constitute any waiver of Company’s rights.
Any problems or disagreements regarding any invoice must be made known to Company within 15 days after the invoice date. If there are both disputed and undisputed items on an invoice, the undisputed items must be paid when due. Once any disputed items are settled, payment shall be due either when those items were originally due, or within 3 business days after settlement, whichever is later.
Prepress and Proofing
A color proof is used to simulate how a printed piece will look prior to production on the printing press. Due to differences between the proofing substrates, equipment, and other conditions, the proof may present a reasonable variation in color between the proof and printed piece. A reasonable variation in color between color proofs and the completed job may be expected. When variations of this kind occur, it will be considered acceptable performance. It is the Customer’s responsibility to maintain a copy of the original data submitted to the Company. The Company is not responsible for accidental damage to material, data or media supplied by the Customer or for the accuracy of furnished input or final input. Until the Customer’s data or media can be evaluated by the Company, no claims or promises are made about the Company’s ability to work with the material submitted in digital format, and no liability is assumed for problems that may arise. Any additional translating, editing, or programming needed to utilize Customer-supplied files will be charged at prevailing rates. All materials and data created by the Company, including, but not limited to, artwork, plates, dies, data, and digital output files, shall remain the Company’s exclusive property. The Company will submit prepress proofs along with original copy for the Customer’s review and approval. Corrections will be communicated electronically or returned to the Company on a physical master proof marked “OK,” “OK With Corrections,” or “Revised Proof Required” and electronically authorized or physically signed by the Customer. Until the master proof is received and authorized or signed, no additional work will be performed. The Company will not be responsible for undetected production errors if: i) proofs are not required by the Customer, ii) the work is printed per the Customer’s OK, or iii) requests for changes are communicated orally. When proofing color, a reasonable variation between color proofs or electronic renderings and the final product is to be expected. This is due to differences in viewing conditions, equipment, and materials between the color proofing process and print production.
Press proofs will not be furnished unless they have been requested by the Customer and presented in the Company’s quotation. A press sheet can be submitted for the Customer’s approval as long as the Customer is present at the press during makeready. Any manufacturing time lost or alterations/corrections made because of the Customer’s delay or change of mind will be chargeable at the Company’s current rates.
A Company price quotation not accepted by Customer in writing within thirty (30) days is void. No discount will be allowed unless specifically set forth in the quote itself. Price quotes are based on the Company’s written understanding of the Customer specifications and the accuracy of the specifications provided to the Company by the Customer. The Company has the option to re- quote a project at the time of submission by Customer if project does not conform to the information on which the original quote was based. Price quotes are based on the cost of services, labor and materials on the date of the quote. If changes occur in cost of materials, labor, or other costs prior to acceptance, or if the Customer requires changes in specification, quantities, designs, or the production schedule subsequent to acceptance, or in the event of foreign or domestic legislation enacted by any level of government, including tax legislation, which increases the cost of producing, warehousing, or selling the goods or services purchased hereunder, Company reserves the right to change the quoted priced. Subsequent orders for the same or similar products and services are subject to price revision. Price quotes do not include applicable taxes, shipping costs or deliveries unless specifically stated in the quote. If there is a change in specifications or instructions to the original quote and these changes result in additional costs, the Company will inform the Customer, in writing, what these additional costs will be and how they may affect the delivery date.
The Company warrants its products to conform to printing industry standards and job specifications. It does not warrant their fitness for any particular use. All preliminary work, including but not limited to sketches, copies, dummies, etc., are only intended to illustrate the general type and quality of the final work product, and are not intended, nor are they required, to meet fully all of the requirements of the job specifications. Claims for defects, damage or shortage or any other any problem regarding a Company product or service must be made by the Customer in writing within 30 days after shipment. If no claim is made within the specified time period, the Parties will have mutually acknowledged that the job has been accepted by the Customer and that the Company’s performance has fully satisfied all terms, conditions and specifications of the purchase agreement. In the event of a claim, the Company has the right to inspect the product in question at its cost. If the Company agrees that there is a problem with its product, it may, at its option, choose to grant partial or full credit, or replace or repair the product. If the Company chooses to replace the product in question, no Customer copy or construction changes will be accepted in the replacement order. If the Company chooses to replace any product, the product it replaces shall be destroyed or returned to the Company at its cost. Printed materials degrade over time. The shelf life of SBS’s products is no longer than one year from the date of manufacture and may be less, depending upon storage conditions. There are no implied warranties of any kind.
Production schedules shall be established and followed by both the Customer and the Company. There will be no Company liability or penalty for delays due to Customer delays, state of war, riot, civil disorder, fire, flood, terrorism, unavailability or shortages of materials, equipment failures, acts or defaults of the work of a subcontractor, delays in transportation, strikes, accidents, action of government or civil authority, acts of God, or other causes beyond the control of the Company. In such cases, schedules will be extended by an amount of time equal to delay incurred. The prices quoted by Company and in this Agreement are based upon full compliance with said schedule and any deviation from the agreed upon schedule on the part of the Customer may result in a revised delivery date or additional charges for downtime or overtime incurred by Company due to the deviation from the agreed schedule. In any case, no additional work will be performed by the Company until such revised schedule and/or pricing is approved by the Customer.
Sales Tax Liability
Customer is liable, and agrees to pay SBS, for all sales tax due to any and all government entities. If Customer believes sales tax is not due on a sale or sales, Customer may present SBS with a valid resale certificate or other documentation, and following receipt of the same SBS may, in its sole judgment, determine that the sale to Customer is not subject to sales tax or that sales tax is due, and in either case such determination by SBS shall be final, conclusive, and binding. If the SBS fails to invoice Customer for sales tax, invoices Customer for less sales tax than properly due, or a governmental entity later determines that sales tax is due for which SBS has in whole or part not charged, SBS may issue an invoice at any time within five years after the date of sale to recover the sales tax due and Customer shall be obligated to pay such invoice forthwith.
Unless otherwise specified, the price quoted is for a job with a single shipment, without storage, F.O.B. the Company dock in Ontario, CA. Price quotations are based on a single, continuous and uninterrupted delivery of the complete order. If the specifications state otherwise, the Company will charge accordingly at current rates. Charges for delivery of materials and supplies from the Customer to the Company, or from the Customer’s representative to the Company are not included in quotations unless specified. Company will choose a common carrier of its choice unless specified in writing by Customer. Customer may choose to be invoiced by the carrier for freight, or may have the carrier invoice Company and have Company either bill Customer for shipping and handling or include the cost of freight in the price of the product. The Parties agree that the transportation and billing options selected by Customer do not affect the timing of transfer of title or any other terms of sale. If damage occurs during transport, it is the responsibility of the Customer to file a claim with the freight carrier. The Company will use commercially reasonable efforts to assist with any freight damage claim.
All downstream handling, such as for direct mail, involves spoilage. Spoilage of up to three (3) percent of Customer’s material is typical. Allowances for spoilage should be taken into consideration in ordering material. The Company cannot accept responsibility for shortages of material as a result of spoilage in downstream processing.
Title to Products
The Parties agree that title to the products sold by Company passes to Customer when the product is on the loading dock of Company and before the product is loaded for transport or upon creation of an invoice for finished product or its segments, whichever occurs first. Company retains a security interest in and a first lien on all the products until they are paid for by Customer.
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