Entire Agreement/No Waiver. These Terms of Use constitute the entire Agreement of the parties with respect to the subject matter hereof. No waiver by Continuum Marketing Services™ of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.
Updates, Correction of Errors, and Inaccuracies. The Site or Materials may contain typographical errors or other errors or inaccuracies and may not be complete or current. Continuum Marketing Services™ therefore reserves the right to correct any errors, inaccuracies or omissions and to change or update this Site or Materials at any time without prior notice. Continuum Marketing Services™ does not, however, guarantee that any errors, inaccuracies or omissions will be updated or corrected.
Governing Law Use of this Site is unauthorized in any jurisdiction that does not give full effect to all provisions of this Agreement, including without limitation this paragraph and the warranty disclaimers and liability exclusions above. Continuum Marketing Services™ has endeavored to comply with all legal requirements known to it in creating and maintaining this Site. Use of this Site is unauthorized in any jurisdiction where all or any portion of this Site may violate any legal requirements and you agree not to access this Site in any such jurisdiction. You are responsible for compliance with applicable laws. Any use in contravention of this provision or any provision of this Agreement is at your own risk and, if any part of this Agreement is invalid or unenforceable under applicable law, the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the Agreement shall govern such use. If any part of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, it will not impact any other provision of this Agreement, all of which will remain in full force and effect. Any and all disputes relating to this Agreement, Continuum Marketing Services™' Privacy Policy, your use of the Site or the Materials are governed by, and will be interpreted in accordance with, the laws of the State of Illinois, without regard to any conflict of laws provisions and you hereby consent to the exclusive jurisdiction and venue of the courts, tribunals, agencies and other dispute resolution organizations sitting in DuPage or Cook Counties, Illinois, USA in all such disputes. The provisions of the Uniform Commercial Code as adopted by the State of Illinois, and not the United Nations Convention on Contracts for the International Sale of Goods, shall apply.
These CONTINUUM STANDARD SUPPLIER TERMS AND CONDITIONS (the “Standard Terms”) shall govern all purchases of goods and services described in each Purchase Order (“PO”) issued to the party identified in the PO (“Supplier”) by Continuum Marketing Services LLC dba Kodi Marketing (“Company”).
a. On any projects for which Supplier provides a price quote, Supplier shall guarantee its pricing for no less than sixty (60) days.
b. Payment terms shall be 2% 30 days, net 60 (i.e. all invoices shall be paid within 60 days from the invoice upload date provided that Company may reduce the amount invoiced by 2% for all or any portion paid within 30 days from the invoice upload date).
c. All Supplier invoices must be uploaded to the Company supplier portal within 5 days of delivery of goods. Invoices are recognized on the date that Supplier uploads the invoice to the Company supplier portal. Supplier invoices should only incorporate one PO, and the PO number should be clearly noted on the invoice. Any invoices with an incorrect or missing PO number will not be accepted.
If Supplier delivers a defective product, it has the right to cure such defect by replacing said defective product with conforming product within the time constraints determined by the Purchase Order, or, in the alternative, by Company and/or its applicable Customer. If Supplier fails to timely cure the defective product to the satisfaction of Company and/or its applicable Customer (as indicated in writing by same), Company may:
a. cancel any Purchase Order (in whole or in part);
b. refuse to accept any further deliveries of the Product;
c. reject the Product, in whole or in part, and return the Product to Supplier at the risk and cost of Supplier, on the basis that a full refund for the Product shall be paid by Supplier to Company;
d. permit Supplier to replace the Product so that it conforms to the Purchase Order and to delay payment until the requirements of the Purchase Order have been fulfilled to Company’s reasonable satisfaction; or
e. if none of the foregoing remedies can be performed in a reasonable time by Supplier, or none is reasonably acceptable to the applicable Customer, carry out, or have carried out at Supplier’s sole expense, such work as is necessary for the Product to conform to the Purchase Order and to delay payment until the requirements of the Purchase Order have been fulfilled.
Supplier shall, at its own cost, maintain the following insurance with carriers rated “A VII” by A.M. Best and licensed to do business in the state(s) in which Products are produced and Services are performed during the term of these Standard Terms:
a. Worker's Compensation and Occupational Disease Insurance with statutory limits and Employer’s Liability coverage with a minimum limit of $500,000 per occurrence;
b. Automobile Liability Insurance with a minimum limit of $1,000,000 per occurrence covering all owned, non-owned and hired vehicles;
c. General Liability Insurance including Product Liability Insurance with a minimum limit of $3,000,000 per occurrence; and
d. Errors and Omissions, I Professional Liability Insurance with a minimum limit of $1,000,000 per occurrence.
e. Umbrella Liability Insurance in an amount of not less than $3,000,000 per occurrence; and
f. If Professional Services are rendered in the performance of these Standard Terms, Professional Liability insurance with a limit not less than $3,000,000 per claim.
The General Liability and Automobile Liability policies will name Company as an additional insured as its interest may appear. Supplier's insurance shall be primary and non-contributory. Supplier shall be responsible for deductibles, self-insured retentions and premium payments contained in any of the foregoing policies. Upon request, Supplier to provide certificates of insurance evidencing such insurance signed by an authorized representative of the insurance company.
Customer hereby engages Continuum Marketing Services LLC ("Continuum"), and Continuum shall be entitled to do or arrange for all of the work described in the Quotation (the "Quotation") that references these Terms and Conditions (the “StandardTerms”, and together with the Quotation, the “Agreement”). Unless otherwise specified, the Quotation will remain in effect for a period of ninety (90) days from the date thereof, and is subject to resource availability, credit approval and Customer’s approval of Continuum’s production schedule.
“Affiliate” shall mean an entity controlling, controlled by or under common control with that party.
“Content” means the text, images, graphics, data or other content furnished by Customer to Continuum or altered by Continuum atCustomer’s direction.
“Customer Materials” (a) all Physical Product delivered to Continuum and (b) all Content provided to Continuum by Customer or duly appointed agents of Customer, pursuant to this SOW.
“Continuum Technology” means (a) all material and technology appearing on, as part of, or which provides and supports Services including, without limitation, website design, text, graphics, icons, interfaces and their arrangements, software, hardware, processes, algorithms, knowhow and other trade secrets, techniques, designs, development and design tools, inventions and other tangible or intangible technical material or information; (b) website functionality and content, and documentation (and all enhancements and derivatives thereto) which are used to provide the Services; and (c) the Continuum name, trademarks, service marks, logos, domain names, and the SaaS Services product names.
“Physical Product” means any Customer-owned physical items provided by Customer to Continuum to be used in the production ofCustomer’s Work (e.g. product samples, reference guides and printed materials).
“Required Consent” means any licenses, consents, releases or approvals required to give Continuum and its personnel (including, without limitation, employees, consultants, subcontractors or agents) the ability to perform the Services on or using the Customer Materials without violating or infringing the ownership, license or other rights (including, without limitation, intellectual property, publicity, privacy, personal or personality rights) of any third parties including, but not limited to, the authors, providers, subjects or the owners of such materials.
“SaaS Services” or “Software as a Service” means the software services products offered for sale by Continuum and included in theQuotation, including the Continuum Technology appearing on, as part of, or which provides and supports the SaaS Services, all as may be updated from time to time by Continuum, and including associated documentation made available to Customer in written form or online.
“Services” means the items as listed in the Quotation.
"Specifications" means the technical specifications of the Work detailed on the Quotation.
“Work” means all of the services and materials provided by Continuum to provide the Services under the Agreement, during the Term, except those services or materials that Customer agrees to furnish pursuant to the terms of this Agreement.
3.1 Assumptions.
All Work shall be performed hereunder shall be in accordance with the Quotation and subject to the timely delivery of files and materials to be furnished by Customer, completed in accordance with a production schedule which shall be submitted for Customer’s approval (upon mutual agreement the "Production Schedule").
3.2 Specifications and Production Schedule.
If at any time the Customer desires to make changes in the Specifications set forth on the Quotation or in a Production Schedule, Continuum will review the requested change and Continuum will cooperate with Customer to develop a new production plan to reflect such requested changes, provided that, Continuum’s agreement shall be subject to schedule and staffing availability, and if any requested change results in a change in the production plan, a decrease in the efficiency of performing the Work, or will require additional staffing or other services or changes, Continuum will inform Customer of the price and any other applicable adjustment, including production schedule adjustments, slotting fees and charges for unused production time, in connection with putting the changes into effect. In addition, should such change result in Continuum's inability to use any materials on hand or ordered for Customer in the production of Customer's Work, Customer will pay Continuum reasonable charges associated with such materials and their disposition. Notwithstanding anything to the contrary herein, Continuum shall not be obligated to proceed with any requested change unless the Parties come to mutual, written agreement on any price and other adjustments.
3.3. Overtime.
Customer's delay in furnishing and/or returning promptly all copy, specifications, artwork, proofs or other material in accordance with the Production Schedule may result in an extension of scheduled delivery date and/or additional charges to Customer for accelerated production at Continuum's regular overtime rates. Continuum will use commercially reasonable efforts to make any necessary overtime available. No chargeable overtime will be worked without Customer's prior approval, and in the absence of such approval, delivery of the Work will be made as promptly as practicable consistent with Continuum's then available capacity, provided that Continuum shall have no obligation to deliver the Work if Continuum does not have available capacity.
Additional charges due to delays, impaired production, or the necessity to repair or replace Customer-supplied materials because of Customer's failure to provide adequate materials shall be charged to Customer at Continuum's standard rates. Customer is responsible for independently seeking recourse from its suppliers with respect to such defective materials. Continuum shall not be liable for the fitness of any materials furnished by Customer unless directed by Customer, at additional charge to Customer, to make corrections, repairs or substitutions Continuum deems necessary. In no event does Continuum assume responsibility for the color fidelity of finished Work made from electronic data files or other media furnished by Customer unless proofed by Continuum.
5.1. Price Adjustments.
Unless otherwise stated in the Quotation, the prices stated in the Quotation shall remain firm for a period of ninety(90) days from the date the Quotation.
5.2. Taxes.
The prices do not include any taxes, duties, fees or other charges of any nature, including but not limited to, ad valorem, consumption, excise, import, export, license, property, sales, stamp, storage, transfer, retailers’ occupation, service occupation, value-added or use taxes (collectively, “Customer Taxes”). Customer will pay all such Customer Taxes or provide Continuum with any applicable certificate of exemption acceptable to the appropriate taxing authorities.
6.1. Charges.
In the event Continuum or an Affiliate provides transportation and/or logistics for distribution and/or facilitates shipping of the Work or Physical Product, Customer shall be responsible for payment of all such charges. Any expedited or additional services requested by the Customer will be billed as incurred.
6.2. Claims.
Any claims relating to transportation claims must be filed in writing, accompanied by signed bills of lading, paid invoices, itemization, description, dollar amount requested, and other relevant supporting documentation (“Claims”) and must be made by Customer to Continuum within thirty (30) days of the event that gave rise to the claim(“Claim Notice”). Continuum will work directly with the transportation services provider to come to a commercially reasonable resolution of the Claim.If Customer fails to provide a Claim Notice, Continuum shall not be liable for any loss or damage in connection with such claim. Customer will provide full assistance and cooperation to Continuum in processing Claims including, but not limited to, furnishing the documentation listed herein and witnesses, when as necessary to successfully prosecute a Claim. The failure ofCustomer to comply with this subsection shall be considered a material breach of the terms of the Agreement which shall require Customer to return to Continuum any sums that Continuum has paid to Customer on account of such Claim. Continuum shall have no payment obligation to Customer with respect to any Claim until Continuum has received payment for such Claim from the arranged carrier. Customer understands and agrees that Continuum shall not be liable as a carrier for cargo loss, damage or delay except as set forth herein, and that such liability lies with the arranged carrier.
If applicable, Customer shall be responsible for complying with all US Postal Service specifications and requirements concerning eligibility forUS Postal Service technology incentive discounts (e.g. the US Postal Service Augmented Reality program, etc.). Continuum shall not be liable to Customer for any discount claim rejections based on Customer’s non-compliance with the applicable US Postal Service program requirements as defined by the US Postal Service. Continuum shall not perform any services that it deems, in its reasonable discretion, is inconsistent with US Postal Service regulations or procedures.
Unless otherwise specified, the prices in the Quotation do not include the storage of Customer Materials beyond the production schedule span. If Customer delays completion of the Work or postpones delivery of finished goods beyond the date specified in the Production Schedule, or if Customer’s furnished materials arrive prior to the dates specified in the Production Schedule, storage will be charged at prevailing rates for each month or partial month for which the finished goods, work in process or furnished materials remain in Continuum's possession. After the second month of storage, Continuum may provide Customer at least fifteen (15) days' written notice of the items in storage, and Continuum shall request direction from Customer as to the disposition of the stored items. If Continuum does not receive a written response as to the disposition of stored items within ten (10) days, Continuum will consider the material abandoned and such items will be destroyed.
9.1. Payment Terms & Invoicing.
See Quotation or Continuum’s representative for the approved terms of payment. All payments will be made in U.S. dollars by electronic transfer to Continuum’s designated bank account as may be identified to Customer in writing. Continuum’s obligation to perform Work hereunder is subject to prompt payment of all invoices pursuant to the terms of this and other agreements Customer has with Continuum. Upon the expiration or termination of this Agreement for any reason, Customer will promptly pay all invoices that may be due and outstanding for Work performed under this Agreement.
9.2. Disputed Invoices.
Should Customer dispute any portion of an invoice, it shall notify Continuum in writing, within fifteen (15) days of the date of the applicable invoice, specifying the disputed portion of the invoice and the basis for such dispute. Customer shall pay all undisputed invoice amounts in accordance with its terms. Both parties agree to use good faith efforts to resolve the disputed portion of the invoice promptly.
9.3. Interest and Collection Costs.
Any payment which is not received when due will accrue interest from day to day beginning on the date payment is due until the date payment is received by Continuum at a rate equal to the maximum amount permitted by law. Customer shall also reimburse Continuum for all costs of collection, including but not limited to, reasonable attorney's fees. Failure to bill for interest due shall not constitute a waiver of Continuum's right to charge interest.
9.4. Credit Review.
Continuum's obligation to perform Work is subject to Customer’s compliance with its payment obligations. In addition to any other rights Continuum may have under this Agreement, the provisions of this Agreement may be reviewed by Continuum, and Continuum may modify the terms of payment if Customer does not comply with the terms of these provisions, including Customer’s obligation to pay all undisputed amounts when due and/or in the event of a substantial adverse change in Customer's credit standing. This shall include Continuum’s right to require full payment before the provision of Work and/or to require other assurances to secure Customer’s payment obligations under this Agreement. Continuum's obligation to perform further Work will be subject to reaching mutual agreement on revised terms.
9.5. Lien on Property.
As security for payments of any sum due or to become due to Continuum under the terms of this Agreement, Continuum shall have the right, if necessary, to retain possession of, and shall have a lien on all property owned by Customer and in Continuum's possession, and all Work in process and undelivered Work.
9.6. Bankruptcy.
If Customer shall be adjudicated a bankrupt, institute voluntary proceedings for bankruptcy or reorganization, make an assignment for the benefit of its creditors, apply for or consent to the appointment of a receiver for it or its property, Customer will take all actions necessary to have Continuum treated as a critical vendor.
10.1. Continuum Warranties and Remedies.
Continuum represents and warrants that it will perform the Work in a workmanlike manner (the “Warranty”). The Warranty shall expire sixty (60) days after completion and/or delivery of the applicable Work (the “Warranty Period”). All Warranty claims must be made by Customer in writing, with sufficient detail to enable Continuum to identify the nature of the Warranty defect, no later than ten (10) days after discovery of the warranty defect, provided that all Warranty claims must be made no later than the last day of applicable Warranty Period. Customer's failure to so notify Continuum shall constitute acceptance of the Work and a waiver of any Warranty claim.
Continuum shall cure any Warranty defect by, at its option, returning the selling price paid for that portion of the Work which is nonconforming or re-performing that portion of the Work that is defective.
The foregoing Warranty set forth in the preceding paragraph is exclusive and is in lieu of all other warranties, whether written, oral, implied or statutory. NO IMPLIED OR STATUTORY WARRANTY OR WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE SHALL APPLY. This section (Continuum Warranties and Remedies) sets forth the exclusive remedies for all claims based on failure of or defect in the Work and Continuum’s performance under this Agreement, whether the failure or defect arises before or during the applicable Warranty Period and whether a claim, however instituted, is based on contract, warranty, indemnity, tort/extra-contractual liability (including negligence), strict liability or otherwise.
10.2. No Other Warranties.
The foregoing Warranty set forth in the preceding paragraph is exclusive and is in lieu of all other warranties, whether written, oral, implied or statutory. NO IMPLIED OR STATUTORY WARRANTY OR WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE SHALL APPLY. This section (Continuum Warranties and Remedies) sets forth the exclusive remedies for all claims based on failure of or defect in the Work and Continuum’s performance under this Agreement, whether the failure or defect arises before or during the applicable Warranty Period and whether a claim, however instituted, is based on contract, warranty, indemnity, tort/extra-contractual liability (including negligence), strict liability or otherwise.
10.3. Customer Warranties and Remedies.
Customer represents and warrants that Customer has secured the appropriate Required Consents to allow Continuum to perform the Work ordered by Customer and that Content and Continuum’s processing, reproduction or distribution of the Content (i) does not infringe any patent, copyright, trademark, trade secret or other intellectual property right of a third party, (ii) complies with all applicable licensing requirements, (iii) is not libelous, and (iv) does not violate any federal, state or other applicable law, rule or regulation including, without limitation, those concerning privacy, false or deceptive advertising, improper labeling or packaging, improper distribution or any other form of personal or advertising injury. Customer will defend, indemnify and hold Continuum harmless from all losses, damages and expenses, including attorney’s fees, which Continuum may suffer as the result of any claim alleging breach of one or more of the foregoing representations and warranties.
Continuum IS NOT RESPONSIBLE FOR LIABILITY OR DAMAGE ARISING FROM ANY CUSTOMER MATERIALS. Continuum WILL NOT HAVE ANY LIABILITY FOR DAMAGE TO, OR LOSS OR THEFT OF, ANY CUSTOMER MATERIALS, UNLESS DIRECTLY CAUSED BY Continuum'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
THE TOTAL LIABILITY OF Continuum ON ANY CLAIM OF ANY KIND ARISING OUT OF THE PERFORMANCE OR BREACH OF THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THE INVOICE FOR THE PORTION OF THE WORK GIVING RISE TO THE CLAIM, PROVIDED THAT, IN ANY TWELVE MONTH PERIOD, Continuum'S TOTAL LIABILITY SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT IN THE PREVIOUS TWELVE MONTHS AND IN NO EVENT SHALL Continuum'S TOTAL LIABILITY UNDER THE AGREEMENT, UNTIL THE TIME ALL SUCH LIABILITY SHALL END, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO Continuum UNDER THE AGREEMENT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, ALL Continuum LIABILITY SHALL END NO LATER THAN NINETY (90) DAYS FOLLOWING THE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
IN NO EVENT SHALL Continuum BE LIABLE FOR LOSS OF PROFIT, REVENUES OR SALES, LOSS OF CUSTOMER PRODUCT, COST OF CAPITAL, COST OF SUBSTITUTE SERVICES, DOWNTIME COSTS, CLAIMS OF THIRD PARTIES FOR SUCH DAMAGES, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES.
Continuum SHALL NOT BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL, ASSOCIATED WITH Continuum'S SHIPMENT OF ANY OF CUSTOMER’S WORK OR CUSTOMER MATERIALS ON CONTRACT OR COMMON CARRIERS.
THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION (LIMITATION OF LIABILITY) SHALL APPLY REGARDLESS OF WHETHER A CLAIM IS BASED IN CONTRACT, WARRANTY, INDEMNITY, TORT/EXTRA-CONTRACTUAL LIABILITY (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. THE PROVISIONS OF THIS SECTION (LIMITATION OF LIABILITY) SHALL PREVAIL OVER ANY CONFLICTING OR INCONSISTENT PROVISION CONTAINED IN ANY OF THE DOCUMENTS COMPRISING THIS AGREEMENT, EXCEPT TO THE EXTENT SUCH PROVISIONS FURTHER RESTRICT Continuum'S LIABILITY.
12.1. Continuum Insurance.
Continuum agrees to keep in full force and effect and maintain at its sole cost and expense the following policies of insurance during the entire duration of the Agreement:
12.1.1. Workers Compensation with statutory limits and Employers Liability Insurance limits of $500,000 per employee, accident or disease.
12.1.2. Commercial General Liability Insurance providing coverage for bodily injury and property damage arising out of the Work to be performed providing limits of not less than $1,000,000 per occurrence.
12.1.3. Professional Liability Insurance including coverage for wrongful acts, errors and omissions, with limits of not less than $1,000,000 per claim. Continuum shall have the right to self-insure any obligation set forth in this section of the Agreement.
12.2. Customer Insurance.
Customer agrees to keep in full force and effect and maintain at its sole cost and expense the following policies of insurance during the entire duration of the Agreement:
12.2.1. Workers Compensation with statutory limits and Employers Liability Insurance limits of $500,000 per employee, accident or disease.
12.2.2. Commercial General Liability Insurance providing coverage for bodily injury and property damage arising out of the Work to be performed providing limits of not less than $1,000,000 per occurrence.
12.3. Security.
All such insurance shall be with insurance companies that maintain a rating of not less than A- VII in the most current publication of Best’s Insurance Reports published by A.M. Best Company.
12.4. Certificates of Insurance Requirements.
Each party agrees to provide certificates of insurance signed by an authorized representative of the respective carriers prior to commencement of the Work to be performed.
Title of Work shall pass to Customer, in the case of services, as services are performed, and otherwise upon the earlier of Continuum's delivery to carrier, the US Postal Service, or delivery to Customer, regardless of whether the transport medium is owned and/or operated by Continuum.
14.1. Transfer.
Risk of loss for Work shall pass to Customer, in the case of services, as services are performed, and otherwise upon delivery to a carrier, the US Postal Service, or delivery to Customer, regardless of whether the transport medium is owned and/or operated by Continuum and whether or not it is in digital form.
14.2. Insured Perils.
If prior to Continuum's delivery of the Work to the carrier, Customer’s property is damaged as a result of an insured peril under the applicable insurance policy, then, at Continuum's option, Continuum will either replace Customer’s damaged property or reimburse Customer for the actual cash value of the damaged property. If Continuum elects to reimburse Customer for the damaged property’s actual cash value, the amount payable to Customer shall be limited to the proceeds of such policy plus any related deductible, if any, applied to the claim for damage to Customer’s property. For film and other media Continuum's insurance coverage and Continuum's liability shall be limited to the cost of blank film or other media and the cost of duplication from an original or other copy.
15.1. Termination for Default or Insolvency.
Except as otherwise provided herein, the non-breaching Party may terminate thisAgreement for default if
(1) the other Party fails to make any payment when due and fails to cure such non-payment within fifteen (15) days after written notice from the non-breaching Party;
(2) the other Party materially breaches any non-payment related obligation which does not have a stated remedy and fails to remedy such material breach within sixty (60) days after written notice from the non-breaching party or, if it is not possible to cure such breach within sixty (60) days, fails to commence to cure the breach within thirty (30) days; or
(3) the other Party becomes insolvent or bankrupt, assigns all or a substantial part of its business or assets for the benefit of creditors, permits the appointment of a receiver for its business or assets, becomes subject to any legal proceeding relating to insolvency, reorganization or the protection of creditors' rights, generally becomes unable to pay its debts or otherwise ceases to conduct business in the normal course.
Notwithstanding the foregoing, if Customer makes and assignment in violation of Section 18(Assignment), then Continuum may terminate this Agreement in whole or in part.
For any default, other than a default for payment, this provision for termination for default may only be exercised by notice in writing within ninety (90) days of the non-defaulting Party becoming aware of the event giving rise to the default.
15.2. Post-Termination Obligations.
In the event of the termination or expiration of this Agreement, Customer shall pay Continuum all amounts then due and owing, and for further Work performed by Continuum to complete any work in process. Upon Customer’s written request, and upon payment in full for all amounts then due and owing, Continuum shall deliver to Customer in good condition f.o.b. Continuum dock all Customer-owned materials then in Continuum's possession
Customer and Continuum are independent parties. Nothing in this Agreement will be construed to make Continuum an agent, employee, joint venture partner, partner or legal representative of Customer. Continuum will neither have nor represent itself to have any authority to bind Customer to any obligation.
All notices, requests, consents, demands and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be (a)personally delivered (including courier) or sent by overnight mail with proof of delivery, and (b) in the case of Continuum with a copy sent by electronic mail to the e-mail address below, and shall be deemed to have been duly given when received. Notice to either party shall be sent to
If to Continuum:
Continuum, LLC
2501 McGavock Pike, Suite 1702
Nashville, TN 37214
Attention: General Counsel
With an electronic copy to
legal@callkodi.com
If to Customer:
All notices shall be sent to theCustomer address specified on the Quotation
For documents or other information sent via electronic means, including invoices, receipt shall be deemed to have occurred one (1) calendar day after the date the applicable invoice was transmitted electronically by the sending party. For documents or other items transmitted through the US Mail or other delivery service, other than hand delivery or where a return receipt is obtained, delivery shall be deemed to have occurred five (5) business days after the date the applicable document or item was sent, as evidenced by a post-mark or other documentary evidence.
Neither party may assign this Agreement without the other party’s prior written consent, such consent not to be unreasonably withheld, provided that Continuum may assign, without Customer’s consent, all or any portion of, or any rights and obligations under, this Agreement to one or more of its Affiliates or any entity carrying on that part of the business to which the assigned portion of the Agreement relates, including through a direct sale or transfer of all or a controlling interest in Continuum or all or a portion of the assets of Continuum. This Agreement shall inure to the benefit of and shall bind the permitted successors and assigns of the parties hereto.
Notwithstanding the foregoing, Continuum shall have the right to subcontract any portion of the Work to a third party or Affiliate, provided that Continuum shall remain responsible to Customer for performance of the subcontracted scope.
19.1. Confidential Information.
Any information disclosed by a Party in connection with this Agreement and designated by the party as“confidential” or “proprietary” at the time of disclosure shall be treated as confidential information and shall not be disclosed to any thirdparty without the consent of the other Party, except to the extent required by law, or for the enforcement of this Agreement. The Partiesagree that the prices shall be considered Continuum's confidential information at all times. Customer consents to Continuum'suse of Customer-supplied data to perform Continuum's obligations under this Agreement and to use Customer-supplied data,including information derived from and/or generated by the services, to create, develop and improve the Services and other Continuum products and services, provided that Continuum shall not disclose to any party an identification of Customer or anyCustomer client in connection with a particular item of Customer-supplied Data.
19.2. Publicity.
Notwithstanding anything to the contrary in this Agreement, Continuum and/or its Affiliates, on their respective websites orin connection with advertising and other promotional and marketing materials in any media whatsoever, may (a) use the Work and (b)publicly identify Customer and use Customer’s logo(s).
Customer understands and agrees that Customer shall only send to Continuum the names and associated physical addresses of recipients of the Work as required for Continuum to provide the Services (“Personal Information”), andCustomer shall not provide Continuum with any other personal information under this Agreement (“Out-of-Scope Personal Information”). In the event thatCustomer provides Continuum with any Out-of-Scope Personal Information,Customer shall indemnify, defend, and hold harmless Continuum from and against any and all claims that arise in connection with the Out-of-ScopePersonal Information provided to Continuum. Continuum will treatPersonal Information as confidential in accordance with the terms herein and comply with all applicable law, including, but not limited to, the CCPA. EachParty agrees to cooperate with the other Party in response to any consumer requests involving the disclosure of their data. Customer consents to Continuum’s use of Customer-supplied data to perform Continuum’s obligations under this Agreement and to use Customer-supplied data, including information derived from and/or generated by the services, to create, develop and improve the services and other Continuum products, provided that Continuum shall not disclose to any party an identification of Customer or any Customer client in connection with a particular item of Customer-supplied Data.
21.1. Customer Ownership.
As between Customer and Continuum, Customer will retain all right, title and interest in and to, including intellectual property rights therein and thereto, the Customer Materials. Customer grants to Continuum a non-exclusive, worldwide, royalty-free license to use, reproduce, store, modify, adapt, translate, distribute, offer for sale, sell, publish, perform, and publicly display the Customer Materials solely to the extent necessary to provide the Services to Customer. Customer understands that Continuum, in performing the required technical steps to provide the Services, may: (a) transmit or distribute Customer Materials over various public networks and in various media, and (b) make such changes to Customer Materials as are necessary to conform and adapt such materials to the technical requirements of the Services, connecting networks, devices or media. Customer agrees that this license will permit Continuum to take these actions.
21.2. Continuum Ownership.
Continuum will retain all right, title and interest in and to, including intellectual property rights therein and thereto, the Services provided by Continuum, together with any and all Continuum Technology that enables the provision of such Services including, without limitation, repeatable processes, reusable forms, templates, training materials, documentation, or whitepapers provided by Continuum under this Agreement. Continuum will retain all right, title and interest in and to all works, applications and materials derived from any customization requests by Customer, including any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any other party relating to the Services, as well as all intellectual property rights therein.
Any waiver, amendment or other modification of this Agreement will not be effective unless in writing and signed by the party against whom enforcement is sought.
If any one or more of the provisions of this Agreement should be ruled illegal, wholly or partly invalid or unenforceable by a court or other government body of competent jurisdiction under present or future laws, then (i) the validity and enforceability of all provisions of this Agreement not ruled to be invalid or unenforceable shall be unaffected and remain in full force and effect and (ii) the effect of the ruling shall be limited to the jurisdiction of the court or other government body making the ruling, (iii) the provisions held illegal, wholly or partly invalid or unenforceable shall be deemed amended, and the court or other government body is authorized to reform the provision(s) to the minimum extent necessary to render them valid and enforceable in conformity with the Parties’ intent as manifested herein. Notwithstanding the foregoing, if Continuum deems the unenforceable provision to be essential to this Agreement, Continuum may terminate this Agreement, effective immediately upon notice to Customer.
With respect to all non-payment related disputes arising between the Parties under this Agreement (the“Dispute”), the Parties shall first use their best efforts to resolve theDispute in accordance with this Section:The complaining Party shall provide written notice to the other party in a document (email sufficing)entitled “Initial Notice of Dispute” setting form the precise nature of theDispute (“Initial Notice of Dispute”).Following receipt of the Initial Notice of Dispute, the Parties shall consult and negotiate with each other in good faith and attempt to reach a just solution of the Dispute satisfactory to both Parties, including escalating the Dispute to senior leadership of each respective Party if the Dispute is not resolved within fifteen (15) days of the Initial Notice of Dispute (“Direct DisputeResolution”).
If the Parties are unable to resolve the Dispute through Direct DisputeResolution within thirty (30) days of the receipt of the Initial Notice ofDispute, the Dispute may then be resolved in accordance with the terms ofSection 25 (Governing Law, Jurisdiction and Waiver of Jury Trial) hereof.Except to the extent a Party deems it necessary to seek immediate injunctive relief, neither Party shall initiate legal action until thirty (30) days after the Initial Notice of Dispute is received by the other Party.
This Agreement shall be governed by the laws of the State of Delaware, without giving effect to any choice of law rules which would cause the application of laws of another jurisdiction. Any action to enforce this Agreement shall be brought in the federal or state courts located in the State of Delaware, and each party (i) submits to the exclusive jurisdiction of these courts; (ii)agrees not to commence any legal action under or in connection with the subject matter of this Agreement in any other court or forum; and (iii) waives any objection to venue in such courts. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES,TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT.
26.1. Force Majeure Events.
Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance or be considered to be in breach under this Agreement due to any cause beyond its reasonable control, acts of war (declared or undeclared), armed conflict, acts or threats of terrorism, civil unrest, acts of God, earthquakes, floods, severe weather conditions, fires, epidemics, pandemics, embargoes, riots, sabotage, labor shortages, disputes, disturbances or strikes, actions (or failure to act) of governmental authorities or third parties not engaged by the Party claiming Force Majeure, delays in transportation, failure of the Internet or the unavailability of materials, purchased services (including transportation), utilities or fuel, provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to promptly correct such failure or delay in performance.
26.2. Performance.
If Continuum is unable to perform the Work as the result of any such cause, Continuum will perform such parts of the Work as it is capable of performing, and if Customer places any other part of the Work elsewhere, Continuum shall be entitled to resume the same as promptly as practicable. The occurrence of a Force Majeure does not excuse any delay or failure by Customer to make any payment to be paid to Continuum pursuant to this Agreement except to the extent the Force Majeure event directly delays or prevents the transmission of the payment itself.
Customer agrees that, at all times while this Agreement is in effect and for eighteen (18) months thereafter, it will not directly or indirectly employ, or enter into an independent contractor relationship with (or knowingly permit any business organization, directly or indirectly affiliated with or controlled by such party, to employ or enter into an independent contractor relationship with), any person who is employed by Continuum or who was employed by Continuum during the previous six (6) months, or in any manner seek to induce any such person to leave his or her employment with Continuum.
Submission of electronic data, copy or other materials for commencement of production hereunder shall constitute acceptance by Customer of the prices and other terms and conditions contained herein.
The provisions set forth in this Agreement represent the entire agreement between the Parties in relation to the matters contained herein. Any oral or written representation not contained or referenced in the Agreement shall not be binding on any Party. Each Party agrees that it has not relied on, or been induced by, any representations of any other Party not contained in this Agreement. No rights or obligations other than those expressly set forth herein are to be inferred from this Agreement, and the rights and remedies set forth in this Agreement are the exclusive rights and remedies of each party with respect to this Agreement, its performance or breach, and the rights and remedies set forth in this Agreement are the exclusive rights and remedies of each party with respect to this Agreement, its performance or breach. No purchase order or other ordering or confirming document or any handwritten or typewritten text issued by Customer which purports to modify or supplement the text of this Agreement shall add to or vary the terms of this Agreement.
Each Party hereby represents and warrants that its execution and delivery of its obligations under this Agreement have been duly authorized by all requisite corporate action.
Customer hereby engages Continuum, Inc. d/b/a Kodi ("Printer"), and Printer shall be entitled to do or arrange for all of the manufacturing work described in the Quotation (the "Quotation") that references these Terms and Conditions (the “Standard Terms”, and together with the Quotation, the “Agreement”). Unless otherwise specified, the Quotation will remain in effect for a period of thirty (30) days from the date thereof, and is subject to Section 6.1 (Materials Price Adjustments) and the availability of equipment and materials, credit approval and Customer’s approval of Printer’s production schedule.
“Affiliate” shall mean an entity controlling, controlled by or under common control with that party.
“Content” means the text, images, graphics, data or other content furnished by Customer to Printer or altered by Printer at Customer’s direction.
“Specifications” means the technical specifications of each Title including, but not limited to, trim size, frequency, pages, ordered quantity and paper basis weight detailed on the Quotation.
“Titles” means the items as listed in the Quotation.
“Work” means all of the services and materials provided by Printer to manufacture the Titles under the Agreement, during the Term, except those services or materials that Customer agrees to furnish pursuant to the terms of the Agreement.
3.1. Assumptions. All Work performed hereunder shall be in accordance with the Quotation and subject to the timely delivery of files and materials to be furnished by Customer, completed in accordance with a production schedule which shall be submitted for Customer’s approval (upon mutual agreement the “Production Schedule”).
3.2. Forecast. Upon execution of the Agreement, and on each anniversary thereof (unless a different frequency is mutually agreed), Customer shall submit to Printer a forecast of the Work for the upcoming twelve (12) month period, including the Title frequency, print orders, pages, style, colors, form breaks, requested overruns and in-home dates. Within thirty (30) days after receipt of each forecast, Printer shall develop for Customer’s approval a Production Schedule for the Work forecasted for the next twelve (12) months.
3.3. Specifications and Production Schedule. If at any time the Customer desires to make changes in the Specifications (including, but not limited to, frequency, pages and count), in the paper (including basis weight and physical characteristics) or in a Production Schedule, Printer will review the requested change and Printer will cooperate with Customer to develop a new manufacturing plan to reflect such requested changes, provided that, Printer’s agreement shall be subject to manufacturing and staffing availability, and if any requested change results in a change in the manufacturing plan, a decrease in the efficiency of performing the Work, or will require additional staffing or other services or changes, Printer will inform Customer of the price and any other applicable adjustment, including production schedule adjustments, slotting fees and charges for unused manufacturing time, in connection with putting the changes into effect. In addition, should such change result in Printer's inability to use any materials on hand or ordered for Customer in the production of Customer's Titles, Customer will pay Printer reasonable charges associated with such materials and their disposition. Notwithstanding anything to the contrary herein, Printer shall not be obligated to proceed with any requested change unless the Parties come to mutual, written agreement on any price and other adjustments.
3.4. Overtime. Customer's delay in furnishing and/or returning promptly all copy, specifications, artwork, proofs or other material in accordance with the Production Schedule may result in an extension of scheduled delivery date and/or additional charges to Customer for accelerated production at Printer's regular overtime rates. Printer will use commercially reasonable efforts to make any necessary overtime available. No chargeable overtime will be worked without Customer's prior approval, and in the absence of such approval, delivery of the Work will be made as promptly as practicable consistent with Printer's then available capacity, provided that Printer shall have no obligation to deliver the work if Printer does not have available capacity.
4.1. Paper shall be furnished in accordance with the Quotation and as set forth in this Section 4 (Paper).
4.2. Printer-Supplied Paper.
4.3. Customer-Supplied Paper.
Materials furnished by Customer shall be properly packed, free from dirt, grit, torn sheets, and shall comply with the specifications and Printer's quality and manufacturing standards. Additional charges due to delays, impaired production, or the necessity to repair or replace such materials because of Customer's failure to meet such standards shall be charged to Customer at Printer's standard rates. Customer is responsible for independently seeking recourse from its suppliers with respect to such defective materials. Semi-finished materials furnished by Customer shall include manufacturing waste allowances Printer deems adequate and shall be adjusted to Printer's count. Printer shall not be liable for the fitness of any materials furnished by Customer unless directed by Customer, at additional charge to Customer, to make corrections, repairs or substitutions Printer deems necessary. In no event does Printer assume responsibility for the color fidelity of finished Work made from electronic data files or other media furnished by Customer unless proofed by Printer.
Customer shall be responsible for complying with all US Postal Service requirements concerning the appropriate class of mail and with the plant mailing specifications. Printer shall not be liable to Customer for any damages or claims whatsoever because of US Postal Service rejection of mail by reason of sortation errors in any manner attributable to Customer’s noncompliance with the plant mailing specifications or applicable US Postal Service requirements. Unless otherwise stated in the Quotation or Schedules that are a part hereof, special sorting, bundling, tagging and/or bagging for presort discounts, multiple mail lists or list merging will result in additional charges to Customer. For any product that mails via the US Postal Service from Printer’s plant of manufacture, all address labels, mail sack labels, or files for the preparation thereof will be furnished by Customer in compliance with the current specifications of Printer’s plant performing the mailing and current US Postal Service rules and regulations. Printer shall not perform any services that it deems, in its reasonable discretion, is inconsistent with US Postal Service regulations or procedures.
Unless otherwise specified, the prices in the Quotation do not include the storage of paper, other materials, work in process or finished goods beyond the Production Schedule span. If Customer delays completion of the Work or postpones delivery of finished goods beyond the date specified in the Production Schedule, or if Customer’s furnished materials arrive prior to the dates specified in the production schedule, storage will be charged at the prevailing rates in the Quotation for each month or partial month for which the finished goods, work in process or furnished materials remain in Printer's possession. After the second month of storage, Printer may provide Customer at least fifteen (15) days' written notice of the items in storage, and Printer shall request direction from Customer as to the disposition of the stored items. If Printer does not receive a written response as to the disposition of stored items within ten (10) days, Printer will consider the material abandoned and such items will be destroyed.
THE TOTAL LIABILITY OF PRINTER ON ANY CLAIM OF ANY KIND ARISING OUT OF THE PERFORMANCE OR BREACH OF THE AGREEMENT, SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THE INVOICE FOR THE PORTION OF THE WORK GIVING RISE TO THE CLAIM, PROVIDED THAT, IN ANY TWELVE MONTH PERIOD, PRINTER’S TOTAL LIABILITY SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THE AGREEMENT IN THE PREVIOUS TWELVE MONTHS AND IN NO EVENT SHALL PRINTER’S TOTAL LIABILITY UNDER THE AGREEMENT, UNTIL THE TIME ALL SUCH LIABILITY SHALL END, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO PRINTER UNDER THE AGREEMENT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, ALL PRINTER LIABILITY SHALL END NO LATER THAN NINETY (90) DAYS FOLLOWING THE TERMINATION OR EXPIRATION OF THE AGREEMENT.
IN NO EVENT SHALL PRINTER BE LIABLE FOR LOSS OF PROFIT, REVENUES OR SALES, LOSS OF CUSTOMER PRODUCT, COST OF CAPITAL, COST OF SUBSTITUTE SERVICES, DOWNTIME COSTS, CLAIMS OF THIRD PARTIES FOR SUCH DAMAGES, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES.
PRINTER SHALL NOT BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL, ASSOCIATED WITH PRINTER’S SHIPMENT OF ANY OF CUSTOMER’S WORK ON CONTRACT OR COMMON CARRIERS.
THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION 12 (LIMITATION OF LIABILITY) SHALL APPLY REGARDLESS OF WHETHER A CLAIM IS BASED IN CONTRACT, WARRANTY, INDEMNITY, TORT/EXTRA-CONTRACTUAL LIABILITY (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. THE PROVISIONS OF THIS SECTION 12 (LIMITATION OF LIABILITY) SHALL PREVAIL OVER ANY CONFLICTING OR INCONSISTENT PROVISION CONTAINED IN ANY OF THE DOCUMENTS COMPRISING THE AGREEMENT, EXCEPT TO THE EXTENT SUCH PROVISIONS FURTHER RESTRICT PRINTER’S LIABILITY.
Title of finished and semi-finished Work shall pass to Customer upon the earlier of Printer's delivery to carrier or US Postal Service, or delivery into storage, regardless of whether the transport medium or storage facilities are owned and/or operated by Printer and regardless of whether Printer charges Customer for storage.
Customer and Printer are independent parties. Nothing in the Agreement will be construed to make Printer an agent, employee, joint venture partner, partner or legal representative of Customer. Printer will neither have nor represent itself to have any authority to bind Customer to any obligation.
All notices, requests, consents, demands and other communications to be given or delivered under or by reason of the provisions of the Agreement shall be in writing and shall be (a) personally delivered (including courier) or sent by overnight mail with proof of delivery, and (b) in the case of Printer with a copy sent by electronic mail to the e-mail address below, and shall be deemed to have been duly given when received. Notice to either party shall be sent to
If to Printer:
Kodi Holdings, Inc. d/b/a Kodi
2501 McGavock Pike, Suite 1702
Nashville, TN 37214
Attention: General Counsel
With an electronic copy to
legal@callkodi.com
If to Customer:
All notices shall be sent to the Customer address specified on the Quotation
For documents or other information sent via electronic means, including invoices, receipt shall be deemed to have occurred one (1) calendar day after the date the applicable invoice was transmitted electronically by the sending party. For documents or other items transmitted through the US Mail or other delivery service, other than hand delivery or where a return receipt is obtained, delivery shall be deemed to have occurred five (5) business days after the date the applicable document or item was sent, as evidenced by a post-mark or other documentary evidence.
Neither party may assign all or any portion of the Agreement without the other party’s prior written consent, such consent not to be unreasonably withheld, provided that Printer may assign, without Customer’s consent, all or any portion of, or any rights and obligations under, the Agreement to one or more of its Affiliates or any entity carrying on that part of the business to which the assigned portion of the Agreement relates, including through a direct sale or transfer of all or a controlling interest in Printer or all or a portion of the assets of Printer. The Agreement shall inure to the benefit of and shall bind the permitted successors and assigns of the parties hereto.
Notwithstanding the foregoing, Printer shall have the right to subcontract any portion of the Work to a third party or Affiliate, provided that Printer shall remain responsible to Customer for performance of the subcontracted scope.
Any information disclosed by a Party in connection with the Agreement and designated by the party as “confidential” or “proprietary” at the time of disclosure shall be treated as confidential information and shall not be disclosed to any third party without the consent of the other Party, except to the extent required by law, or for the enforcement of the Agreement. The Parties agree that the prices shall be considered Printer’s confidential information at all times. Customer consents to Printer’s use of Customer-supplied data to perform Printer’s obligations under the Agreement and to use Customer-supplied data, including information derived from and/or generated by the services, to create, develop and improve the Services and other Printer products and services, provided that Printer shall not disclose to any party an identification of Customer or any Customer client in connection with a particular item of Customer-supplied Data.
Customer understands and agrees that Customer shall only send to Printer the names and associated physical addresses of recipients of the Work as required for Printer to provide the Services (“Personal Information”), and Customer shall not provide Printer with any other personal information under this Agreement (“Out-of-Scope Personal Information”). In the event that Customer provides Printer with any Out-of-Scope Personal Information, Customer shall indemnify, defend, and hold harmless Printer from and against any and all claims that arise in connection with the Out-of-Scope Personal Information provided to Printer. Printer will treat Personal Information as confidential in accordance with the terms herein and comply with all applicable law, including, but not limited to, the CCPA. Each Party agrees to cooperate with the other Party in response to any consumer requests involving the disclosure of their data. Customer consents to Printer’s use of Customer-supplied data to perform Printer’s obligations under this Agreement and to use Customer-supplied data, including information derived from and/or generated by the services, to create, develop and improve the services and other Printer products, provided that Printer shall not disclose to any party an identification of Customer or any Customer client in connection with a particular item of Customer-supplied Data.
Electronic data files, copy and any media furnished by Customer will be used solely for Customer’s Work and will remain Customer’s property. Electronic data files, other media, prints, reproduction media and plates made by Printer will be used solely for Customer’s Work but will remain Printer’s property.
Any waiver, amendment or other modification of the Agreement will not be effective unless in writing and signed by the party against whom enforcement is sought.
If any one or more of the provisions of the Agreement should be ruled illegal, wholly or partly invalid or unenforceable by a court or other government body of competent jurisdiction under present or future laws, then (i) the validity and enforceability of all provisions of the Agreement not ruled to be invalid or unenforceable shall be unaffected and remain in full force and effect and (ii) the effect of the ruling shall be limited to the jurisdiction of the court or other government body making the ruling, (iii) the provisions held illegal, wholly or partly invalid or unenforceable shall be deemed amended, and the court or other government body is authorized to reform the provision(s) to the minimum extent necessary to render them valid and enforceable in conformity with the Parties’ intent as manifested herein. Notwithstanding the foregoing, if Printer deems the unenforceable provision to be essential to the Agreement, Printer may terminate the Agreement, effective immediately upon notice to Customer.
With respect to all non-payment related disputes arising between the Parties under this Agreement (the “Dispute”), the Parties shall first use their best efforts to resolve the Dispute in accordance with this Section:
This Agreement shall be governed by the laws of the State of Delaware, without giving effect to any choice of law rules which would cause the application of laws of another jurisdiction. Any action to enforce this Agreement shall be brought in the federal or state courts located in the State of Delaware, and each party (i) submits to the exclusive jurisdiction of these courts; (ii) agrees not to commence any legal action under or in connection with the subject matter of this Agreement in any other court or forum; and (iii) waives any objection to venue in such courts. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT.
Submission of electronic data, copy or film for commencement of production hereunder shall constitute acceptance by Customer of the Agreement.
The provisions set forth in the Agreement represent the entire agreement between the Parties in relation to the matters contained herein. Any oral or written representation not contained or referenced in the Agreement shall not be binding on any Party. Each Party agrees that it has not relied on, or been induced by, any representations of any other Party not contained in the Agreement. No rights or obligations other than those expressly set forth herein are to be inferred from the Agreement, and the rights and remedies set forth in the Agreement are the exclusive rights and remedies of each party with respect to the Agreement, its performance or breach. No purchase order or other ordering or confirming document or any handwritten or typewritten text issued by Customer which purports to modify or supplement the text of the Agreement shall add to or vary the terms of the Agreement.
Each Party hereby represents and warrants that its execution and delivery of its obligations under the Agreement have been duly authorized by all requisite corporate action.
Roll Paper Requirements & Specifications
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