TERMS AND CONDITIONS
The terms and conditions set forth below, together with any additional terms set forth in the current applicable sales order,estimate, invoice, quotation, or other sales documentation from The Imagine Group, LLC (together with its parent company, subsidiaries, and affiliates collectively hereinafter referred to as “Imagine”) are the only terms and conditions upon which Imagine will sell and provide products and/or services to customer or any third party working on customer’s behalf (collectively “Customer”). Any additional or contrary terms and conditions (other than a listing of the type and quantity of products and/or services being ordered) contained in any purchase order or other ordering communication from Customer, which has been accepted by Imagine, are expressly rejected and shall not apply. Notwithstanding the foregoing, if and to the extent that Imagine and Customer are parties to a current separate master services agreement governing Customer’s purchase, and Imagine’s provision, of products and/or services (an “MSA”), such MSA shall govern and any conflicting provisions set forth below shall not apply. No Customer purchase order or other communication shall be construed as or constitute a waiver of these terms and conditions, or Imagine’s acceptance of any additional or conflicting terms, conditions, or specifications contained therein.
1. AGREEMENT. If Customer has not already provided written acceptance of these terms and conditions, Customer’s acceptance of credit from Imagine, Customer’s placement of an order with Imagine, which has been accepted by Imagine, or Customer’s acceptance of delivery of or payment for products and/or services from Imagine, constitutes Customer’s agreement to these terms and conditions and the related Imagine sales documentation.
2. PRICES. All sales documentation for products and/or services provided by Imagine to Customer (whether via a sales order, estimate, invoice, quotation, or other sales documentation) shall be valid for thirty (30) days from the date on the sales document; provided, however, (a) material costs are based on the costs as of the time of the sales documentation and are subject to upward adjustment by Imagine if the actual costs of the materials has increased at the time of Imagine’s acceptance of Customer’s placement of an order under the sales documentation, (b) all electronic pre-press estimates are subject to review and adjustment by Imagine upon Imagine’s receipt of Customer’s file, (c) the prices shown in the sales documentation, unless otherwise expressly noted, do not include ancillary services, insurance, freight, duties or sales taxes, and (d) such sales documents are subject to any change orders agreed upon by Imagine and Customer. Customer acknowledges that all pricing provided by Imagine is Imagine Confidential Information (as that term is defined below). Notwithstanding anything to the contrary contained in these terms and conditions or a sales document or any Customer order accepted by Imagine, if Imagine’s cost of raw materials and/or labor increases at any time prior to or during its fulfillment of any Customer order, Imagine shall have the right to pass along to Customer the costs of such increases subject to Imagine providing reasonable supporting documentation for such increase to Customer. Customer payments due to Imagine hereunder, and Imagine’s entitlement to adjustments in pricing for any products and/or services, shall not be contingent upon or limited to the amount that the Customer receives from its third party client(s). Typographical and other errors in sales documents are subject to correction by Imagine. All pricing is valued and shall be paid in United States Dollars.
3. TAXES. Imagine shall remit all state and local sales and use taxes, where applicable, in connection with products sold and services rendered pursuant to these terms and conditions, any sales documentation, and related order to the appropriate state and local taxing authorities. Imagine shall invoice Customer and Customer shall pay the amount of any such state and local sales and use taxes paid by Imagine. Imagine shall honor tax exemption certificates, and other appropriate documents, which Customer may submit, pursuant to relevant tax provisions of the taxing jurisdiction providing the exemption. Customer shall reimburse Imagine in the event Imagine is held liable for payment of any sales and use taxes determined to be owed in connection with the products sold and services rendered hereunder.
4. PAYMENT TERMS. Unless otherwise specified by Imagine in writing, Customer shall make payment in full to Imagine within thirty (30) days after receipt of each applicable invoice, 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, and Customer shall then provide, advance payment, a personal guarantee and/or acceptance of C.O.D. shipments. If Customer contends in good faith that any invoice is incorrect, Customer must so notify Imagine within ten (10) days after receipt of the affected 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 the lower of 1-1/2% per month or the maximum rate permitted by law. Payment must be made via ACH/Wire Transfer to Imagine’s account, or by check to Imagine’s address, all as designated by Imagine’s Account Receivable Department. 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 pursuant to Section 6 below. Customer shall not be eligible for any applicable discounts, rebates, or other incentives related to any invoices that were not paid in accordance with agreed upon terms. Customer shall reimburse Imagine for any expenses, including reasonable attorneys’ fees, incurred in the collection of any delinquent account or for enforcing its rights hereunder.
5. DELIVERY AND RISK OF LOSS FOR PRODUCTS. Delivery of products 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.
6. BILL AND HOLD PRODUCTS: Customer acknowledges and agrees that if it utilizes Imagine for fulfillment or similar services for any products or Customer-provided inventory items (“Bill and Hold Products”) that any Bill and Hold Product inventory housed within Imagine’s facility is the property of Customer, and available for shipment to Customer upon reasonable request. Customer accepts title and risk of loss on said Bill and Hold Products upon initial delivery at Imagine’s facility. Imagine shall invoice Customer in full for such Bill and Hold Products at the time of such initial delivery and Customer shall pay, on a monthly basis, for all warehousing and fulfillment fees on a per skid basis at Imagine’s current rate during the time period the Bill and Hold Product inventory is housed by Imagine. Customer agrees and accepts the Bill and Hold Products as its own, with no right of return other than pursuant to any warranty process set forth herein. Customer also agrees to take future delivery of all Bill and Hold Products within reasonable time frames, not to exceed ninety (90) days, from the date the Bill and Hold Products were put into inventory, at which time if Customer does not take such delivery, Imagine is authorized to dispose of or destroy such Bill and Hold Products as obsolete, without payment or recourse to Customer.
7. OVERS/UNDERS POLICY: 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. Imagine will use commercially reasonable efforts to ship and invoice Customer according to the quantities contained within Customer’s order.
8. ACCEPTANCE OF ORDERS. Customer orders and requests to purchase received by or on behalf of Imagine are subject to acceptance in writing by an authorized representative of Imagine.
9. CANCELLATION, COUNTERMAND, DEFERMENT, AND RETURNS. Orders accepted by Imagine cannot be cancelled or countermanded, or product shipments or services deferred or returned by Customer except with the prior written consent from an authorized representative of Imagine and, in the event of any such consented cancellation, countermand, deferment, or return, Customer acknowledges that, at a minimum, it shall be responsible for all costs incurred by Imagine for work in process and any completed products, services, or work, along with any custom materials purchased expressly for Customer that cannot otherwise be transferred to other Customer orders.
10. SOLVENCY AND SECURITY INTEREST. Customer represents and warrants to Imagine, as an inducement to Imagine to extend credit and sell products and/or services to Customer, 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.
11. 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 or complete the services in any Customer order. Customer grants to Imagine a nonexclusive, nontransferable (except to Imagine affiliates), and royalty free right and license to use such Customer materials in connection with Imagine’s fulfillment of any Customer order. Customer shall defend,indemnify and hold Imagine harmless from any claim of infringement that such materials or their use by Imagine infringes any patents, copyrights, trademarks, trade secrets, or any other intellectual property rights of any third party. Unless otherwise agreed in writing, Customer acknowledges and agrees that any invention, discovery, know-how, or idea (whether patentable or not and including those that may be subject to copyright protection) that was generated, conceived, or reduced to practice by Imagine (and not exclusively for Customer) in conjunction with any provision of products or services to Customer or was independently developed by Imagine before, during or after any Customer order are Imagine’s exclusive property and Imagine shall have all ownership rights therein.
12. LIMITED WARRANTY. Imagine warrants that any products or services sold hereunder shall be free from material faults and defects for a period of thirty (30) days (or such other warranty time period as set forth in the applicable sales documentation) following the date on which such products were shipped, or such services were provided, by Imagine to Customer. If any product or service is determined to be defective by Imagine following written notice from Customer within such warranty period, Imagine shall, at its option, either (i) replace such defective product, or reperform the defective service, without charge or (ii) issue to Customer a credit in such amount as Imagine deems reasonable, in its sole and absolute discretion. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, IMAGINE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, RELATING TO ANY PRODUCTS OR SERVICES SOLD HEREUNDER, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
13. LIMITATIONS ON LIABILITY. 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 OR SERVICES SOLD HEREUNDER AND/OR WITH RESPECT TO THESE TERMS AND CONDITIONS, ANY IMAGINE SALES DOCUMENTATION, OR ANY CUSTOMER ORDER, 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. THE LIABILITY OF IMAGINE, IF ANY, RELATING TO ANY PRODUCTS OR SERVICES SOLD HEREUNDER AND/OR WITH RESPECT TO THESE TERMS AND CONDITIONS, ANY IMAGINE SALES DOCUMENTATION, OR ANY CUSTOMER ORDER SHALL IN NO EVENT EXCEED THE PRICE PAID BY CUSTOMER TO IMAGINE WITH RESPECT TO THE CUSTOMER ORDER GIVING RISE TO THE LIABILITY. CUSTOMER HEREBY WAIVES ANY CLAIMS THAT THESE EXCLUSIONS OR LIMITATIONS DEPRIVE CUSTOMER OF AN ADEQUATE REMEDY.
14. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. If, and to the extent that, Customer and Imagine are parties to a current separate confidentiality agreement or other non-disclosure agreement (a “Confidentiality Agreement”) relating to Imagine Confidential Information (as that term is defined below), such Confidentiality Agreement shall govern and if the parties have not entered into a Confidentiality Agreement, this Section shall apply to Customer’s obligations as to, and use of, Imagine Confidential Information. “Imagine Confidential Information” includes all pricing, technical, sales, financial, customer, vendor, and all other proprietary information, whether discussed orally or disclosed or accessed in written, electronic, or other form or media and whether or not marked, designated, or otherwise identified as “confidential”, which is furnished by Imagine to, or acquired by, Customer in connection with its relationship with Imagine. Customer shall not disclose to any third party any Imagine Confidential Information and shall ensure all Imagine Confidential Information in its possession or control is kept confidential and only used for purposes of Customer’s purchase of products or services from Imagine. Title to Imagine Confidential Information shall at all times remain the absolute property of Imagine. Upon completion of the parties’ relationship or as requested by Imagine, Customer shall promptly return to Imagine, or destroy, all Imagine Confidential Information in its possession or control.
15. INDEMNITY. Customer will defend, indemnify and hold harmless Imagine from and against all damages, losses, claims and expenses, including reasonable attorneys’ fees, incurred by Imagine as a result of (a) a breach by Customer of any of its representations or obligations under these terms and conditions, (b) any personal injury or property damages resulting from Customer’s negligence, misconduct, or misuse of the products or services, or (c) Customer’s violation of applicable law.
16. 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 its suppliers. The existence of any such cause(s) of delay shall extend the time of performance by the time(s) measured by any such cause(s) of delay.
17. DISPUTES. These terms and conditions shall be governed by, construed and interpreted in accordance with the laws of the State of Delaware, without regard to any conflict of law provisions thereof. With respect to any dispute, controversy or claim arising out of or relating to these terms and conditions, any sales documentation, or the relationship between the parties, each of the parties agrees and consents to the 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.
18. SEVERABILITY. The provisions of these terms and conditions (including any sales documentation) shall be applied and interpreted in a manner consistent with each other so as to carry out the purposes and intent of the parties hereto, but if for any reason any provision hereof is determined by a court of competent jurisdiction to be unenforceable or invalid, such provision shall be deemed severed from these terms and conditions and the remaining provisions shall be carried out with the same force and effect as of the severed provision or part thereof had not been a part of this.
19. ENTIRE AGREEMENT; AMENDMENT. These terms and conditions, along with each sales document and related Customer order accepted by Imagine, contain the entire agreement between Customer and Imagine with respect to the subject matter hereof and supersede all previous understandings, representations, proposals, and discussions, whether oral or written, between the parties hereto concerning such subject matter. These terms and conditions may not be modified, supplemented, or waived except in a writing signed by an authorized representative of Imagine.