Terms & Conditions
All descriptions, quotations, proposals, offers, acknowledgments, acceptances and sale of goods or services by Quadrel, Inc. dba Quadrel Labeling Systems (“Quadrel”) are made subject to the following Terms and Conditions of Sale:
1. EXCLUSIVE TERMS OF SALE. The proposal attached hereto or to which these Terms and Conditions of Sale apply (the “Proposal”), together with these Terms and Conditions of Sale (collectively, the “Sale Agreement”), constitutes the complete and exclusive statement of the agreement between Quadrel and the purchaser specified in the Proposal (“Purchaser”) concerning the equipment and other goods specified in the Proposal (collectively, the “Equipment”), as well as any and all services specified in the Proposal (collectively, the “Services”), and supersedes all prior or contemporaneous agreements, representations and/or communications, either oral or written, between Quadrel and Purchaser or any representative of such parties with respect to the subject matter of the Sale Agreement. No change to the Sale Agreement or waiver of any provision thereof will be binding on Quadrel unless made in writing and signed by an authorized officer of Quadrel. Acceptance of the Equipment, in whole or in part, or other express or implied assent by Purchaser to the terms hereof shall constitute Purchaser’s agreement to the terms of the Sale Agreement. Acceptance of any purchase order or other document of Purchaser by Quadrel is expressly made conditional on Purchaser’s assent to the Sale Agreement. ANY ATTEMPTED MEMORIALIZATION OF THIS SALE BY A PURCHASE ORDER OR OTHER DOCUMENT CONTAINING TERMS AND CONDITIONS INCONSISTENT WITH OR IN ADDITION TO THE CONDITIONS CONTAINED IN THE SALE AGREEMENT SHALL NOT BE BINDING UPON QUADREL AND QUADREL HEREBY EXPRESSLY OBJECTS TO AND REJECTS THE SAME.
2. PRICES. The applicable prices for the Equipment and the Services (“Prices”) are those specified in the Proposal. Prices are subject to revision when interruption, delays, engineering changes or changes in the quality, quantity or scope of order are caused or requested by Purchaser, and based on changes in economic and financial conditions after the date of the Proposal over which Quadrel has no control. All Prices are subject to correction by Quadrel for typographical or clerical errors. Unless otherwise specified in the Proposal, all services performed by Quadrel (including, without limitation, installation, training and design services and any and all other Services specified in the Proposal) shall be charged to Purchaser at Quadrel’s then-prevailing rates applicable to such services.
3. TAXES. Unless otherwise specified in the Proposal, all Prices are exclusive of excise, sales, use, property, occupational or like taxes which may be imposed by any taxing authority upon the manufacture, sale or delivery of the Equipment and Services. If any such taxes must be paid by Quadrel or if Quadrel is liable for the collection of such tax, the amount thereof shall be in addition to the amounts for the items sold. Purchaser agrees to pay all such taxes or to reimburse Quadrel therefor upon receipt of Quadrel’s invoice. If Purchaser claims exemption from any sales, use or other tax imposed by any taxing authority, Purchaser shall provide Quadrel with a valid exemption certificate acceptable to Quadrel and the applicable taxing authority and Purchaser shall save Quadrel harmless from and against any such tax, together with any interest or penalties thereon which may be assessed if the items are held to be taxable.
4. TITLE AND DELIVERY. Unless otherwise specified in the Proposal, the Equipment is sold F.O.B. Origin. Placement of the Equipment in the possession of a trucking company or other common carrier at such shipping point shall constitute delivery to Purchaser and risks of loss or damage in transit shall be borne by Purchaser; provided, however, all Equipment delivered shall remain the property of Quadrel until such time as all claims, including any balances, which Quadrel may have against Purchaser for any reason whatsoever have been satisfied. If such retention of title would be void under applicable law, any collateral security which corresponds to such retention of title under applicable law shall be deemed to have been agreed upon between Quadrel and Purchaser. The shipping date is Quadrel’s estimate at time of quotation and will not operate to bind Quadrel to ship or make deliveries on date indicated on the Proposal or any order, quotation or acknowledgment. Unless specific instructions from Purchaser specify a particular method of shipment, Quadrel will choose the method of shipment at its discretion.
5. SITE PREPARATION, INSTALLATION AND TRAINING. To the extent the Services include installation and training, Quadrel will perform such services as are deemed necessary by Quadrel to make the Equipment operational at Purchaser’s facility and will train Purchaser’s operating and maintenance personnel to operate the Equipment. Purchaser shall be responsible for preparing its site for installation of the Equipment in accordance with Quadrel specifications and guidelines and applicable laws, rules, regulations and ordinances (collectively “laws”). Purchaser shall provide an installation site which is safe, clean and suitable for the Equipment. Purchaser will provide to Quadrel (including its employees, agents and contractors) full, free, and immediate access to the installation site and a suitable, secure space for storage of the Equipment before installation. Purchaser is responsible for moving the Equipment from its point of delivery or storage site to the installation site (the installation site shall hereafter sometimes be referred to as the “Premises”).
Any scaffolding, platforms, lifting equipment, rigging, radiation protection requirements, building alterations, fire safety requirements, climate controls, power supplies and requirements, electrical circuits, warning lights, safety switches, power outlets, conduits, wiring (including interconnecting wiring), architectural and seismic preparations, structural support, lighting, utilities, plumbing, carpentry, or other modification or work required by any applicable laws including health and safety laws, or in connection with installation of the Equipment will be provided by Purchaser at its own expense. Purchaser shall be responsible for obtaining all required professional reviews, drawings, certifications, government consents and approvals (including building permits, health and public safety clearances and zoning) and all third party consents and approvals required for the purchase, installation, and use of the Equipment.
Installation shall be in conformity with Quadrel’s specifications and guidelines. Installation services will be considered accepted and complete upon Purchaser’s initial satisfactory use of the Equipment or Quadrel’s verification that the Equipment substantially complies with the Quadrel’s published performance specifications, whichever occurs first. Purchaser shall make available all necessary product and labels, and shall schedule installation and training Services when Purchaser’s engineering, maintenance and selected production personnel are available.
The installation and training Prices include only those Services specifically described in the Proposal. Prices do not include any additional time required or delay(s) experienced in installing the Equipment or training Purchaser’s personnel resulting from the condition or location of the Premises, the condition or location of power supplies, outlets, switches, conduits, wiring, or circuits, delay(s) in completing site preparation, the failure or non-occurrence of any obligation of Purchaser specified in this Sale Agreement, or any other cause(s) which are not within the scope of Quadrel’s installation responsibilities. Any labor and/or material costs in excess of standard installation and training services and any overtime incurred by Quadrel employees in respect to such additional time required or delay(s) experienced (as well as any extra labor or overtime work performed at the request of Purchaser, and all travel and living expenses incurred by Quadrel employees) will be invoiced to and paid by Purchaser at Quadrel’s then-prevailing rates applicable to such services.
QUADREL OFFERS NO WARRANTY AND ASSUMES NO LIABILITY FOR THE FITNESS OR ADEQUACY OF THE PREMISES OR THE UTILITIES AVAILABLE AT THE PREMISES INTO WHICH THE EQUIPMENT IS TO BE INSTALLED, USED, OR STORED. PURCHASER AGREES TO INDEMNIFY, DEFEND, AND HOLD QUADREL HARMLESS AGAINST ANY LOSS, DAMAGE, OR CLAIM (INCLUDING, WITHOUT LIMITATION, COURT COSTS AND REASONABLE ATTORNEY’S FEES AND EXPENSES) ARISING OUT OF THE CONDITION OF THE PREMISES OR UTILITIES.
6. PAYMENT TERMS. Payment terms are as follows: fifty percent (50%) of total Price due upon submission of Purchaser’s purchase order; forty percent (40%) of the total Price due at time of Equipment completion and ten percent (10%) of the total Price (plus applicable freight and service charges) due net thirty (30) days from date of invoice. If shipment is delayed beyond thirty (30) days after the Equipment has been made ready for shipment by Quadrel, and the delay is caused directly or indirectly by Purchaser (as determined by Quadrel in its sole discretion), then, at the option of Quadrel, the total unpaid balance shall become immediately due and payable upon written notice to Purchaser. If payments are not paid when due
(a) Quadrel may cease all work under the Sale Agreement or any other agreement between Quadrel and Purchaser (including, without limitation, any Services)
(b) Purchaser shall pay, in addition to all amounts otherwise due Quadrel and without limiting any remedies available to Quadrel at law or in equity, a delinquency charge in the amount of the lower of one and one-half percent (1.5%) per month (eighteen percent (18%) per annum), or the maximum rate allowable by law, on such overdue amounts, plus court costs, expenses, and attorney’s fees and expenses incurred.
All payments are to be made in U.S. Dollars against funds in the United States.
7. FINANCIAL IMPAIRMENT. Quadrel may, at its option, suspend performance if in its opinion the credit of Purchaser becomes impaired until such time as Quadrel has received full payment, including any general price increases or surcharges, or satisfactory security for deliveries made and is satisfied as to Purchaser’s credit for future deliveries. Quadrel reserves the right to cancel Purchaser’s credit at any time for any reason. In addition, Quadrel reserves the right by written notice to cancel any order or require full or partial payment or adequate assurance of performance from Purchaser without liability to Quadrel in the event of:
(a) Purchaser’s insolvency
(b) filing of a voluntary petition in bankruptcy by Purchaser
(c) filing of an involuntary petition in bankruptcy against Purchaser
(d) appointment of a receiver or trustee for Purchaser
(e) execution by Purchaser of an assignment for the benefit of creditors
8. CHANGES, RESCHEDULES AND CANCELLATIONS. Purchaser may request to modify the designs or specifications for the Equipment or Services sold hereunder as well as the quantities and delivery dates thereof, or may request to cancel all or part of Purchaser’s order, however no such requested modification or cancellation shall become part of the Sale Agreement unless accepted by Quadrel in a written amendment to the Sale Agreement. Acceptance of any such requested modification or cancellation shall be at Quadrel’s discretion, and shall be upon such terms and conditions as Quadrel may require, including, without limitation, forfeiture of all down payments and payment of all other applicable cancellation charges.
Quadrel may alter the construction, design or configuration of the Equipment without notice to Purchaser as long as the general function of the Equipment is not thereby altered.
9. PURCHASER REQUIREMENTS. Purchaser must provide Quadrel descriptions and specifications of all labels and items to be labeled, including, without limitation, label material, product and label dimensions, and any other items required by Quadrel. Further, purchaser shall furnish Quadrel one (1) production size roll of each label and 100 samples of each item to be labeled for testing purposes. Quadrel shall have no liability (whether under its Limited One-Year Warranty or otherwise) for labeling performance on labels or items to be labeled:
(a) which were not specified or sufficiently described in the Proposal; or
(b) with respect to which Purchaser fails to provide Quadrel the samples specified herein, even if such labels or items to be labeled were specified in the Proposal. Further, Quadrel shall have no liability for delays caused by Purchaser’s failure to furnish samples as specified herein.
10. INSPECTION AND ACCEPTANCE. Purchaser shall fully inspect the Equipment upon receipt and, if installation Services were provided, upon installation. Purchaser shall give notice to Quadrel of any claim that the Equipment is defective in any manner within sixty (60) days after Purchaser’s receipt of the Equipment. In such written notice, Purchaser shall specify in detail the basis for all claims against Quadrel. Any claim not made within the specified period shall be conclusively deemed waived by Purchaser. Purchaser’s inspection shall not exceed the inspection procedures customary in the industry for the type of goods delivered by Quadrel and shall be at Purchaser’s expense.
11. LIMITED ONE-YEAR WARRANTY. SUBJECT TO THE LIMITATIONS SET FORTH IN THE SALE AGREEMENT, QUADREL WARRANTS TO PURCHASER FOR A PERIOD OF ONE (1) YEAR FROM THE DATE OF SHIPMENT (BASED ON A ONE SHIFT PER DAY OPERATIONTHAT THE EQUIPMENT WILL CONFORM TO QUADREL’S QUOTED PERFORMANCE SPECIFICATIONS AND BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP WHEN PROPERLY INSTALLED AND USED FOR THE PURPOSE FOR WHICH IT WAS INTENDED BY QUADREL.
The foregoing limited one-year warranty covers non-wear mechanical and electrical components manufactured or supplied by Quadrel. Components supplied by third parties are sold exclusively under such warranties as may be provided to Quadrel by such third parties and then only to the extent such warranties are enforceable by Quadrel.
Purchaser is responsible for the installation of replacement components provided by Quadrel under this warranty, unless otherwise agreed to in writing by Quadrel.
All warranty service provided by Quadrel on tabletop equipment shall be performed at the Quadrel facility.
Although recommendations of Quadrel for the use of the Equipment are based upon standard tests believed to be reliable, all Equipment is sold with the understanding that Purchaser has independently determined the suitability of the Equipment for its particular application and use.
THE WARRANTIES PROVIDED ABOVE ARE IN LIEU OF ANY AND ALL OTHER WARRANTIES AND LIABILITIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. NO OTHER WARRANTIES ARE OFFERED BY QUADREL WITH RESPECT TO THE EQUIPMENT OR SERVICES AND QUADREL HAS NOT AUTHORIZED ANY EMPLOYEE OR AGENT TO OFFER ANY WARRANTIES EXCEPT THOSE PROVIDED ABOVE. PURCHASER AND QUADREL EXPRESSLY AGREE THAT THE WARRANTIES PROVIDED ABOVE SHALL SERVE AS PURCHASER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THE EQUIPMENT AND SERVICES.
12. LIMITATION OF WARRANTIES. Quadrel shall have no obligation to honor its warranties and shall have no liability with respect to defective Equipment if:
(a) The Equipment has been modified, altered, damaged, abused or used for other than those purposes intended by Quadrel.
(b) The Equipment has been changed without prior written consent from Quadrel.
(c) The Equipment has not been operated and maintained in accordance with generally accepted commercial practices for similar equipment and Quadrel’s specifications and instructions, as published in the Quadrel manual.
(d) The surface of the product to be labeled is not clean and free from contamination, including, but not limited to, mold release agents, condensation, dirt and oil.
(e) Labels are not manufactured in accordance with label specifications provided by Quadrel, or are not free from defects such as cracked edges, deep die strikes, etc.
(f) Labels and items to be labeled are not those set forth in the Proposal.
(g) Samples of all products and labels were not provided to Quadrel for testing prior to Equipment shipment as required in paragraph 9 of these Terms and Conditions of Sale.
(h) There is dimensional inconsistency from one like product to another.
(i) There is slitting inconsistency from one like roll of labels to another.
(j) The Equipment does NOT include physical control of the product.
13. LIMITATION OF REMEDIES. All warranty claims shall be subject to review and approval by Quadrel. Quadrel’s obligation to honor warranties is in all cases limited to, at Quadrel’s sole option:
(a) repair of defective Equipment or components; or
(b) providing a cash refund or credit, after Purchaser has returned Equipment to Quadrel.
Where warranty service is to be provided at the Quadrel facility, Purchaser shall return Equipment claimed to be defective to Quadrel, freight prepaid, for review. No Equipment shall be returned to Quadrel, whether for inspection, repair, refund, or any other reason, without prior return authorization from Quadrel. Quadrel may charge Purchaser costs resulting from testing, handling and disposition of Equipment claimed to be defective by Purchaser which is found by Quadrel to conform to Quadrel’s warranties.
14. LIMITATION OF LIABILITY. QUADREL SHALL HAVE NO LIABILITY FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES BY REASON OF ANY ACT OR OMISSION OR ARISING OUT OF OR IN CONNECTION WITH THE (a) EQUIPMENT OR ITS SALE, DELIVERY, INSTALLATION, MAINTENANCE, OPERATION, OR PERFORMANCE, OR (b) SERVICES. IN NO EVENT SHALL QUADREL’S LIABILITY EXCEED THE PRICE OF THE EQUIPMENT (OR THE PRICE OF THE SERVICES IF A CLAIM IS MADE WITH RESPECT TO THE SERVICES) WITH RESPECT TO WHICH A CLAIM IS MADE REGARDLESS OF WHETHER SUCH CLAIM IS BROUGHT AT LAW OR IN EQUITY AND REGARDLESS OF WHETHER SUCH CLAIM IS BROUGHT UNDER CONTRACT, BREACH OF WARRANTY, TORT OR ANY OTHER THEORY OF LAW OR EQUITY.
15. INTELLECTUAL PROPERTY INFRINGEMENT.
(a) Indemnification by Purchaser. Purchaser shall indemnify and hold Quadrel harmless from and against any and all lost, cost, expense, claims, demands, suits and judgments (including, without limitation, all court costs and reasonable attorney’s fees and expenses) arising from actual or alleged infringement of any patent, trademark, copyright, trade dress, trade secret or any similar right (“Intellectual Property Rights”) based on information provided by Purchaser or if the design for an item of Equipment is specified in whole or in part by Purchaser.
(b) Indemnification by Quadrel. Quadrel shall defend any action, suit or proceeding brought in a court of competent jurisdiction against Purchaser alleging that the Equipment, or any part thereof, directly infringes any United States Intellectual Property Right (an “Infringement Action”), and shall pay all resulting costs and damages finally awarded by a court of competent jurisdiction attributable to such Infringement Action or agreed to by Quadrel in settlement of any such Infringement Action, provided that (i) Purchaser notifies Quadrel in writing of the existence of such Infringement Action within ten (10) days after such Infringement Action is initiated, (ii) Quadrel has sole control of the defense of such Infringement Action and all related settlement negotiations, and (iii) Purchaser provides all necessary information, cooperation and authority to defend such Infringement Action. If as the result of an Infringement Action, the court enjoins the use of any Equipment, or part thereof, in the manner intended by Quadrel, Quadrel shall at its option:
(A) procure for Purchaser the right to continue using such Equipment or part;
(B) replace such Equipment or part with a non-infringing Equipment or part;
(C) modify such Equipment or part so that it becomes non-infringing; or
(D) remove such Equipment or part and refund its Price and transportation costs.
Notwithstanding the foregoing, Quadrel shall have no liability for claims of infringement of Intellectual Property Rights based on information provided by Purchaser, or directed to items delivered hereunder for which the designs are specified in whole or part by Purchaser, or infringements resulting from the modification, combination or use of Equipment in a system. Quadrel shall have no further liability for actual or alleged infringement of Intellectual Property Rights except as provided herein.
16. OWNERSHIP OF INTELLECTUAL PROPERTY. Quadrel shall exclusively own any and all Intellectual Property Rights in all know-how, technology, processes, procedures, ideas and concepts invented or developed by Quadrel or its employees, agents, affiliates or contractors in the course of manufacturing or assembling the Equipment or performing the Services (including, without limitation, any experimental work performed at Purchaser’s request such as sketches, drawings, etc.), any modifications, enhancements, improvements to the manufacturing, assembly, installation or training processes for the Equipment, and any other idea, design, concept, technique, invention or discovery related to the manufacture, assembly or installation of the Equipment or training therefor.
17. SEVERABILITY. In the event that one or more of the provisions contained herein shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such provision shall be construed as nearly as possible to its original meaning as permitted by law, and such invalidity, illegality or unenforceability shall not affect any other provision hereof.
18. NO ASSIGNMENT. The Sale Agreement may not be assigned, in whole or in part, by Purchaser without the prior written consent of Quadrel.
19. INDEPENDENT CONTRACTOR. Quadrel shall perform all Services as an independent contractor and not as an employee or agent of Purchaser Nothing in the Sale Agreement shall be construed to create a partnership, joint venture or agency relationship between Quadrel and Purchaser.
20. GOVERNING LAW AND JURISDICTION. The Sale Agreement shall be governed by and construed in accordance with the domestic laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than the State of Ohio. Any legal action, suit or proceeding relating to the Sale Agreement shall be heard and determined exclusively in the United States District Court for the Northern District of Ohio or the Court of Common Pleas of Lake County, Ohio, and each party irrevocably submits to the jurisdiction of either of such courts and waives any objection which such party may have to the laying of venue of any such legal action, suit, or proceeding in any such court. The Sale Agreement shall not be governed by the United Nations Convention on the International Sales of Goods. No actions arising out of the sale of the Equipment or Services may be brought by either party more than one (1) year after shipment.
21. EXPIRATION OF PROPOSAL. Unless otherwise specified in the Proposal, the Proposal shall expire automatically and no longer be binding upon Quadrel if not accepted by Purchaser within sixty (60) days of the date of the Proposal. Quadrel may change or rescind the Proposal at any time prior to receipt of Purchaser’s written acceptance thereof.