Terms and Conditions

Customer Experience – Policy

 
This agreement for the purchase of goods (the “Agreement”) is between Traco Manufacturing, Inc. (the “Company”), and the “customer” as identified in the Order Acknowledgement (as defined below) (such goods, the “Product”, and such customer, the “Customer”). This Agreement sets forth general business terms and conditions relating to the purchase of the Product by the Customer from the Company (the Customer and the Company collectively sometimes hereinafter individually, a “party” and collectively, the “parties”).
 

1. Entire Agreement; Enforceability of Terms. No order for Products shall be binding upon the Company until acknowledged in writing by the Company by means of an order acknowledgement or other similar confirmation provided by the Company, however designated (“Order Acknowledgement”). The Order Acknowledgement and the terms and conditions set forth in this Agreement (together with any other written agreement between the Company and the Customer) (collectively, the “Terms”) shall constitute the entire agreement between the Company and Customer regarding the sale and purchase of the Products. Except as expressly provided in this Agreement, any purchase order, offer or counter-offer made by Customer before or after the Order Acknowledgement is rejected and all documents exchanged prior to the Order Acknowledgement are merely preliminary negotiations and not part of any agreement between the parties. Any terms submitted by Customer which are contrary to or inconsistent with these Terms are expressly rejected and of no force and effect and acceptance is made conditioned upon assent to these Terms. Customer shall have been deemed to agree to these Terms upon the earlier acceptance of the Order Acknowledgement and acceptance of delivery of the Products. No provision of these Terms shall be subject to change in any manner except as agreed to in writing and signed by an officer of the Company. Any salesperson or other employee of the Company is not authorized to change these Terms in any manner. No conditions, usage, trade, course of dealing or performance, or understanding purporting to modify, vary, explain, or supplement these Terms shall be binding unless made in writing and signed by an officer of the Company. In the event that an order for Products is repeated and additional quotes and/or Order Acknowledgements are not delivered to the Customer, the Customer acknowledges and agrees that these Terms shall apply to and be binding upon all such repeat orders.
2. Prices; Ownership of Tooling (Dies). Unless otherwise expressly agreed in writing between the Company and the Customer, all prices are subject to change without notice and the prices invoiced will be those in effect at the time of shipment. The price(s) set forth on the Order Acknowledgement are the price(s) for the Products reflected in such Order Acknowledgement and pricing for additional orders is subject to change without notice. Customer acknowledges that the Company may charge an additional fee for customized dies required to fulfill an order and agrees that the Company will retain ownership of the dies and plates at all times.
3. Any tax imposed by any taxing authority that is or becomes payable by reason of the sale, or delivery of Products sold to a Customer, will be payable by the Customer and, if paid by or levied or assessed against the Company, will either be added to the price of the Products or billed to the Customer separately, as the Company may elect.
4. Terms of Payment. When credit terms are granted by the Company to a Customer, and unless otherwise specified by the Company, terms are net thirty (30) days from the date of the Company’s invoice payable in U.S. currency. The Company has the right, among other remedies, either to terminate a purchase agreement or order or to suspend further performance with the Customer in the event the Customer fails to make any payment when due. Customer shall be liable for all expenses, including attorneys’ fees, relating to the collection of past-due amounts. If any payment owed to the Company is not paid when due, it shall bear interest at a rate of 18 percent per annum or the maximum rate permitted by law, if less than 18 percent, from the date on which it is due until it is paid. If, in good faith, the Company deems itself to be insecure with respect to Customer’s financial condition, the Company may require prepayments or other assurances for future deliveries. Customer hereby grants the Company a security interest in all Products sold to Customer by the Company, which security interest shall continue until such Products are fully paid for in cash. Customer hereby consents to the filing of such UCC statements or other filings as Company shall determine to reflect the foregoing grant a security interest in the Product.
5. Shipment and Delivery. Unless otherwise expressly agreed in writing between the Company and the Customer, Customer shall be responsible for all shipping and transportation costs associated with the delivery of the Product to Customer. Customer will select the method of shipment and carrier for the delivery of Product from Company to Customer; provided, that such method and carrier is reasonably acceptable to Company. If Customer fails to designate the method of shipment and carrier, the Company shall select the method of shipment and the carrier. Risk of loss or damage and responsibility shall pass from the Company to Customer upon delivery to and receipt by a carrier. Any claims for shortages or damages suffered in transit are the responsibility of Customer and shall be submitted by Customer directly to the carrier. Shortages or damages must be acknowledged and signed for at the time of delivery. While the Company will use reasonable commercial efforts to maintain the delivery date(s) acknowledged or quoted by the Company, all shipping dates are approximate and not guaranteed. The Company reserves the right to make partial shipments and to place certain orders on “back order.” The Company, at its option, shall not be bound to tender delivery of any Products for which Customer has not provided shipping instructions. If the Company has agreed to pay freight, the Company shall have the right to designate routing and means of transportation; and if Customer requires a more expensive routing and/or means, Customer will pay any extra cost involved. If the shipment of the Products is postponed or delayed by Customer for any reason, Customer agrees to reimburse the Company for any handling and storage costs and other additional expenses relating therefrom.
6. Over/Under Run Allowance. Unless otherwise expressly agreed in writing between the Company and the Customer, all orders are subject to a 10% over/under run allowance in the quantity of Product delivered compared to the quantity of Product ordered and are invoiced accordingly (i.e., invoiced based on the quantity delivered). All orders delivered within the over/under run allowance will be considered acceptable for delivery.
7. Product Use. All statements, technical information and data contained in Product specifications, descriptions or other documents are based upon tests or experiences that the Company believes are reliable and which are based on the typical commercial use of the Product. However, Customer’s intended or actual use may vary from typical commercial use of the Product and many factors beyond the Company’s control can affect the use and performance of a Product in a particular application, including the conditions under which the Product is used and the time and environmental conditions in which the Product is expected to perform. Since the Customer’s intended or actual use of the Product are uniquely within the Customer’s or other end-user’s knowledge and control, it is essential that the Customer or other end-user evaluate the Product prior to the placement of the order and upon delivery of the final Product to determine whether it is fit for a particular purpose and suitable for the Customer’s or other end-user’s specific application(s).
8. WARRANTY AND LIMITED REMEDY. Unless stated otherwise in the Company’s literature, packaging inserts, or product packaging related to individual Products, the Company warrants only that each Product meets the applicable specifications necessary for typical commercial use at the time the Company ships the Product. Individual Products may have additional or different warranties as expressly stated by the Company on Product literature, package inserts or packages. THE COMPANY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) ANY IMPLIED WARRANTY ARISING OUT OF A COURSE OF DEALING, CUSTOM OR USAGE OF TRADE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY. The Customer or other end-user is responsible for determining whether the Product is fit for a particular purpose and suitable for a particular application. Any statements made by a Company salesperson or other employee as to a Product’s quality or fitness for a particular purpose shall be considered solely the opinion of the salesperson or other employee and shall not constitute an express warranty applicable to the Product by the Company. If the Product is defective within the inspection period, the Customer’s exclusive remedy and the Company’s sole obligation will be, at the Company’s option, to replace the Product or refund the purchase price.
9. LIMITATION OF LIABILITY. THE COMPANY WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM THE PRODUCT, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL, REGARDLESS OF THE LEGAL THEORY ASSERTED, INCLUDING WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY. ANY ACTION BY A CUSTOMER, WHETHER IN LAW OR EQUITY, ARISING OUT OF ANY TRANSACTIONS RELATING TO PRODUCT, SHALL BE BROUGHT WITHIN ONE YEAR OF THE DATE OF TENDER OF DELIVERY OF THE APPLICABLE PRODUCTS.
10. Acts of God and Third Parties. The Company shall not be held responsible for or be liable for any default or delay in performance if caused, directly or indirectly, by acts of God, war, fire, the elements, riot, civil commotion, strikes, lock-outs, slow-downs, picketing, or other labor controversies, accidents, delay, or default of or failure by carriers, shortages of labor, delay in obtaining or inability to obtain materials, equipment, or parts from regular sources, action, request, or regulation of or by any government or governmental authority, failure or any party to perform any contract with the Company, the performance of which is required for production or sourcing of the Products, or any other happening or contingency beyond the Company’s reasonable control.
11. Customer may cancel orders only if expressly agreed in writing between the Company and the Customer and, in that event, only upon reasonable advance written notice (but in no event less than thirty (30) days prior written notice) and upon payment to the Company of the Company’s cancellation charges. The Company’s cancellation charge shall include, among other things, all costs and expenses incurred or committed by the Company. If the Company has already begun production of the Products, the Company’s cancellation charge shall also include the Company’s prorated profit based on the percentage of completion of the order. The Company’s determination of such cancellation charges shall be conclusive.
12. Customer shall not assign its rights or delegate its duties hereunder or any interest herein without the prior written consent of the Company; and any such assignment without consent shall be void.
13. Examination and Inspection Period – Suitability – Claims. Customer agrees to examine and test each shipment of Product promptly on arrival, before any part of the Products (except for reasonable test quantities) has been changed from its original condition and in no event later than sixty (60) days from the date the Product is available for delivery to Customer as notified by the Company (such period, the “Inspection Period”). The Company will not recognize any claims for any cause after the Products have been used, processed, or changed in any manner (except for reasonable test quantities). It is Customer’s responsibility to determine whether the Products are suitable for their contemplated use, whether or not such intended use is known to the Company. If applicable, Customer shall deliver to the Company within the Inspection Period written notice of any deficiencies, defects, variations from specifications, or complaints of any kind with respect to the quantity, quality, condition, shipment, performance, price, or appearance of the Products delivered by Customer. If the Company does not receive such notice within the Inspection Period Customer shall be deemed conclusively to have inspected and accepted all such Products unconditionally and to have waived any rights and claims, including without limitation any warranty rights or any right to reject the Products or to claims of damages in respect thereof. Customer may not return Products without first advising the Company of the reason therefore, obtaining from the Company a claim number which will serve as a return authorization number, and observing such instruction as the Company may give in authorizing such return the Company’s weights and volume measurements taken at the time of shipping shall govern. The customer must return product within 15 days from return authorization to complete the claim or be subject to the original invoice in addition to replacement costs.
14. Technology Rights. The purchase of Products from the Company itself confers no license, express or implied, under any patents, copyrights, know-how, or technology.
15. Proof Approval; Color Standards; Non-infringement. Customer’s signature, initialing and/or electronic approval of a layout or Customer’s acceptance or confirmation of an order after a layout is presented to the Customer, shall signify Customer’s approval of product size, shape, color, design, address information, telephone number, spelling, etc., as shown in the layout. Such approval includes, without limitation, die line, die cut, overprint, and font. If subsequent proofs are necessary, the Customer must review and approve the entire proof again, not just the corrected or altered portions. The Company attempts to accurately match Customer color samples or requirements, but due to the differences in printing processes and unknown color quality control parameters of previous vendors, the Company does not guarantee 100% color matching. If a Customer deems its order to be “color critical”, Customer shall be fully responsible to request, examine and approve a press proof before production run. All orders for Products shall in addition be subject to the Company color standards which shall be provided to Customer upon request. Further, Customer represents that all materials to be printed on or otherwise incorporated into Product, including, but not limited to, trademarks and copyrighted works, are owned by Customer or Customer has obtained a license from the owner of such materials. Upon request, Customer will provide evidence of such ownership or license. Customer agrees to indemnify the Company and its related companies for any damages, losses, or expenses as a result of the printing of such materials.
16. Returned Checks. A Seventy-five Dollar ($75.00) service fee shall be charged for each Customer check that is returned.
17. Lead Times. Production schedules or lead times are estimates and are not guaranteed, although the Company will use reasonable commercial efforts to meet such estimated production schedules or lead times. Production schedules or lead times begin upon the later of (a) acceptance of the order by the Company in Orem, Utah, or (b) Customer’s approval of the proof, and end upon shipment from the Company’s plant.
18. Unless otherwise expressly agreed in writing between the Company and the Customer, the Company reserves the right to publicize the work produced by the Company in an effort to showcase the Company’s expertise and printing capabilities.
19. By placing an order for Products with the Company, the Customer consents to receive notices, announcements, brochures, advertisements, and other information sent by or on behalf of the Company via facsimile, telephone, or e-mail. Such consent continues until terminated by Customer in writing. By placing an order for Products with the Company, Customer consents to the recording of any or all telephone communications between or among the Company and Customer personnel, whether recorded before or after Customer’s receipt of the Order Acknowledgement.
20. S. Export Control Regulations. Products sold to Customer by the Company hereunder may be subject to U.S. Export Control Laws. Customer hereby agrees not to re-sell or divert any Products contrary to such laws. Customer agrees to indemnify the Company and its related companies for any damages, losses, or expenses as a result of the violation by Customer of the foregoing.
21. Non-Waiver. No waiver by the Company with respect to any breach or default of any right or remedy and no course of dealing shall be deemed to constitute a continuing waiver of any other breach or default of any other right or remedy, unless such waiver be expressed in writing and signed by the Company.
22. If any provision of this Agreement is held to be invalid or unenforceable, all other provisions shall nevertheless continue in full force and effect.
23. Choice of Law/Choice of Forum. THESE TERMS (AND ANY AGREEMENT OR SALES OR PURCHASE ORDER INTO WHICH THEY ARE INCORPORATED) SHALL BE CONSTRUED, INTERPRETED, AND ENFORCED UNDER AND IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF UTAH, EXCLUDING ITS CONFLICTS OR CHOICE OF LAW RULES OR PRINCIPLES THAT MIGHT REFER TO THE LAW OF ANOTHER JURISDICTION. CUSTOMER AGREES TO EXERCISE ANY RIGHT TO REMEDY IN CONNECTION WITH THESE TERMS OR OTHERWISE IN CONNECTION WITH THE PURCHASE AND SALE OF PRODUCTS EXCLUSIVELY IN, AND HEREBY SUBMITS TO THE EXCLUSIVE JURISDICTION OF, THE COURTS OF UTAH COUNTY, UTAH OR THE UNITED STATES DISTRICT COURT FOR UTAH.
24. All typographical or clerical errors made by the Company in any quotation, acknowledgement, or publication are subject to correction.
25. Customer agrees to keep all pricing information provided by the Company to the Customer confidential.