CMC GROUP, INC.
STANDARD TERMS AND CONDITIONS OF SALES
REVISED JUNE 24, 2021
All sales made or licenses granted by CMC Group, Inc., including its affiliates and divisions, CMC DayMark Corporation (dba DayMark Safety Systems), SmartSolve Industries LLC, and Century Marketing Corporation (dba Century Label) (together or each, “CMC”), of products (“Products” or “Product”) are subject to these Standard Terms and Conditions of Sales (“Terms”), except as may be inconsistent with any terms of any written sales agreement or license agreement (however designated) signed by an authorized representative of CMC (“Sales Agreement”).
1. Entire Agreement; Enforceability of Terms. No order for Products shall be binding upon CMC until acknowledged in writing by CMC by means of an order confirmation or other similar confirmation, however designated (“Confirmation”). The Confirmation and these Terms (together with any terms of any Sales Agreement) shall constitute the entire agreement between CMC and Customer regarding the sale and purchase or license of the Products. Any purchase order, offer or counter-offer made by Customer before or after the Confirmation is rejected and all documents exchanged prior to the Confirmation 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 CMC’s quotation, acceptance of delivery of the Products, the issuance of a purchase order to CMC, or execution or acknowledgement of a license agreement, as applicable. 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 CMC. Any salesperson or other employee of CMC 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 CMC. In the event that an order for or license of Products is repeated and additional quotes and/or Confirmations 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 Dies and Plates. Unless a fixed price is quoted on an acknowledged sales order or other CMC document, prices are subject to change without notice; and the prices invoiced will be those in effect at the time of shipment. Customer acknowledges that CMC may charge an additional fee for customized dies or plates required to fulfill an order, and agrees that CMC will retain ownership of the dies and plates at all times.
3. Taxes. Any tax imposed by any taxing authority that is or becomes payable by reason of the sale, delivery, or license of Products to a Customer, will be payable by the Customer and, if paid by or levied or assessed against CMC, will either be added to the price of the Products or billed to the Customer separately, as CMC may elect.
4. Terms of Payment. Unless otherwise specified by CMC, terms are net thirty (30) days from the date of CMC’s invoice payable in U.S. currency; provided, however, subscription or license fees for any software Products licensed (or sublicensed) from CMC, shall be payable in advance, in U.S. currency, and for the entire subscription term, except as may be described in CMC’s sales proposal, quotation, package inserts or other Product literature. CMC has the right, among other remedies, either to terminate a purchase agreement, order or license, or otherwise 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 CMC is not paid when due, it shall bear interest at a rate of 12 percent per annum or the maximum rate permitted by law, if less than 12 percent, from the date on which it is due until it is paid. If, in good faith, CMC deems itself to be insecure with respect to Customer’s financial condition, CMC may require prepayments or other assurances for future deliveries. Customer hereby grants CMC a security interest in all Products sold to Customer by CMC, which security interest shall continue until such Products are fully paid for in cash.
5. Shipment and Delivery. Unless otherwise expressly agreed in writing, shipments are made FOB CMC’s plant of origin. Risk of loss or damage and responsibility shall pass from CMC to Customer upon delivery to and receipt by a carrier. Any clams 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 CMC will use reasonable commercial efforts to maintain the delivery date(s) acknowledged or quoted by CMC, all shipping dates are approximate and not guaranteed. CMC reserves the right to make partial shipments and to place certain orders on “back order.” CMC, at its option, shall not be bound to tender delivery of any Products for which Customer has not provided shipping instructions. If CMC has agreed to pay freight, CMC 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 related cost. If the shipment of the Products is postponed or delayed by Customer for any reason, Customer agrees to reimburse CMC for any handling and storage costs and other additional expenses relating therefrom. Customers ordering shrink sleeves for delivery during warm weather months (i.e., based on weather temperatures in Ohio, the delivery route and Customer’s delivery destination) acknowledge that there is a risk of shrinking or other damage to the sleeves due to the ambient temperature conditions, and therefore CMC recommends over-night or refrigerated truck delivery to mitigate such risks. Although the risk of loss or damage passes from CMC to Customer upon delivery of Products to a carrier, for avoidance of doubt, Customer specifically acknowledges its responsibility for such risk or loss with respect to delivery of shrink sleeves.
6. Over/Under Run Allowance. Unless otherwise agreed in writing by CMC, 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 CMC believes are reliable. However, many factors beyond CMC’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 these factors 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 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. PASS-THROUGH WARRANTIES. WITH RESPECT TO ALL PRODUCTS THAT ARE SUBJECT TO PASS-THROUGH WARRANTIES OF THIRD-PARTY MANUFACTURERS, AS DESCRIBED IN CMC’S SALES PROPOSAL, QUOTATION, PACKAGE INSERTS OR OTHER PRODUCT LITERATURE, CMC MAKES NO ADDITIONAL WARRANTY, UNLESS EXPLICITLY STATED OTHERWISE IN CMC’S SALES PROPOSAL, QUOTATION, PACKAGE INSERTS, OR OTHER PRODUCT LITERATURE.
9. OTHER WARRANTIES. WITH RESPECT TO ALL PRODUCTS NOT SUBJECT TO PASS-THROUGH WARRANTIES OF THIRD-PARTY MANUFACTURERS, UNLESS EXPLICITLY STATED OTHERWISE IN CMC’S SALES PROPOSAL, QUOTATION, PACKAGE INSERTS OR PRODUCT LITERATURE, CMC MAKES NO WARRANTY REGARDING THE PRODUCT AND THE PRODUCT IS SOLD “AS IS”. SPECIFIC PRODUCTS MAY HAVE SPECIFIC WARRANTIES AS STATED IN THE PRODUCT SALES PROPOSAL, QUOTATION, PACKAGE INSERTS OR OTHER PRODUCT LITERATURE. EXCEPT SUCH SPECIFIC WARRANTIES APPLICABLE TO SPECIFIC PRODUCTS, CMC MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY ARISING OUT OF A COURSE OF DEALING, CUSTOM OR USAGE OF TRADE.
10. Employee Statements and Representations. Any statements made by a CMC 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. 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.
11. WARRANTY EXCLUSIONS. CMC WARRANTIES DO NOT APPLY IF THE PRODUCT FAILS OR IS DAMAGED AS A RESULT OF: WILLFUL DAMAGE, NEGLIGENCE, OR ABNORMAL WORKING CONDITIONS; FAILURE TO FOLLOW CMC’S INSTRUCTIONS (WHETHER ORAL OR IN WRITING); MISUSE, ALTERATION OR REPAIR OF THE PRODUCT WITHOUT CMC’S APPROVAL; OR A MALFUNCTION CAUSED BY ANY EQUIPMENT OR SOFTWARE NOT SUPPLIED BY CMC OR ON CMC’S BEHALF. IN ADDITION, CMC’S WARRANTIES DO NOT APPLY DURING ANY PERIOD IN WHICH CUSTOMER HAS OUTSTANDING ANY PAYMENT DUE CMC BEYOND THE DUE DATE.
12. LIMITATION OF LIABILITY; EXCLUSIVE REMEDY. CMC will not be liable for any loss or damage arising from OR CAUSED BY 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. IF THE PRODUCT IS DEFECTIVE OR OTHERWISE FAILS TO MEET WARRANTY STANDARDS WITHIN THE APPLICABLE WARRANTY PERIOD, THE CUSTOMER’S EXCLUSIVE REMEDY AND CMC’S SOLE OBLIGATION WILL BE, AT CMC’S OPTION, TO REPLACE THE PRODUCT OR REFUND THE PURCHASE PRICE. ANY JUDICIAL ACTION BY THE CUSTOMER RELATING TO PRODUCTS SHALL BE BROUGHT WITHIN ONE YEAR OF THE DATE OF TENDER OF DELIVERY OF THE APPLICABLE PRODUCTS.
13. Acts of God and Third Parties. CMC 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 of any party to perform any contract with CMC, the performance of which is required for production or sourcing of the Products, or any other happening or contingency beyond CMC’s reasonable control.
14. Cancellation. Customer may cancel orders only if permitted by the express written terms of the Sales Agreement or order and, in that event, only upon reasonable advance notice and upon payment to CMC of CMC’s cancellation charges. CMC’s cancellation charge shall include, among other things, all costs and expenses incurred or committed by CMC and CMC’s prorated profit based on the percentage of completion of the order. CMC’s determination of such cancellation charges shall be conclusive.
15. Assignment. Customer shall not assign its rights or delegate its duties hereunder or any interest herein without the prior written consent of CMC; and any such assignment without consent shall be void.
16. Examination – 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 ten (10) days from delivery of the Products to Customer. CMC 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 is known to CMC. Customer shall deliver to CMC, within ten (10) days from the date of delivery of the Products, 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 CMC does not receive such notice within ten (10) days from the date of delivery of the Products, 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 right to reject the Products or to claims of damages in respect thereof. Customer may not return Products without first advising CMC of the reason therefore, obtaining from CMC a return authorization form, and observing such instruction as CMC may give in authorizing such return. CMC’s weights and volume measurements taken at the time of shipping shall govern.
17. Technology Rights. Except as may be specifically set forth in a Sales Agreement (including any license agreement), the purchase of Products from CMC itself confers no license, express or implied, under any patents, copyrights, know-how, or technology.
18. Orders. Orders are not binding on CMC until CMC issues a Confirmation.
19. Layout Approval; Barcodes; Color Standards; Non-infringement. Customer’s signature and initialing 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. Customer shall be solely responsible for: assuring that all Barcodes are accurate, correctly displayed and fully comply in all respects to ISO and ANSI standards (as applicable); validating all Manufacturer Identification Numbers; and validating all U.P.C. numbers. CMC 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, CMC does not guarantee 100% color matching. All orders for Products shall in addition be subject to CMC 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, 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 CMC and its related companies for any damages, losses, or expenses as a result of the printing of such materials.
20. Returned Checks. A Seventy-five Dollar ($75.00) service fee shall be charged for each Customer check that is returned.
21. Lead Times. Production schedules or lead times are estimates and are not guaranteed, although CMC 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 CMC in Bowling Green, Ohio, or (b) Customer’s approval of the proof, and end upon shipment from CMC’s plant.
22. Communication. Subject to Section 27, by placing an order for Products with CMC, the Customer consents to receive notices, announcements, brochures, advertisements, and other information sent by or on behalf of CMC via facsimile, telephone, or e-mail. Customer further agrees that CMC’s express permission to FAX, telephone, or e-mail Customer such notices and other information will continue and have no date of expiration, unless a written request is received revoking such consent or permission. By placing an order for Products with CMC, Customer consents to the recording of any or all telephone communications between or among CMC and Customer personnel, whether recorded before or after Customer’s receipt of the Confirmation.
23. U.S. Export Control Regulations. Products sold to Customer by CMC 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.
24. Non-Waiver. No waiver by CMC 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 CMC.
25. Severability. If any provision of this Agreement is held to be invalid or unenforceable, all other provisions shall nevertheless continue in full force and effect.
26. CHOICE OF LAW/CHOICE OF FORUM. These Terms (and any SALES 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 Ohio, 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 Wood County, Ohio, OR THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, WESTERN DIVISION.
27. Errors. All typographical or clerical errors made by CMC in any quotation, acknowledgement, or publication are subject to correction.
28. General Data Protection Regulations (EU) 2016/679 (GDPR).
In providing products, services and software to the Customer, CMC may process Personal Data within the meaning of the GDPR. CMC currently complies with and will continue to comply with the GDPR. At any time the Customer can request:
to have inaccuracies corrected and to have information erased;
to object to direct marketing;
to restrict the processing of its information, including automated decision-making; and
CUSTOMER AGREEMENTS WILL COMPLY WITH ARTICLE 28(3) OF THE GDPR FOR CONTRACTS BETWEEN CONTROLLERS AND PROCESSORS.
In using the products, services and software, it may be required that CMC ("the Provider") process Personal Data on behalf of users.
This Section 27 sets forth the requirements and conditions on which the Provider will process Personal Data when providing services to or on behalf of Customer; constitutes an agreement between the Provider and Customer and sets out the manner in which the Provider will process Personal Data and outlines the Customer's rights as the data controller; and contains the mandatory clauses required by Article 28(3) of the GDPR for contracts between controllers and processors.
THE PROVIDER MAKES THE FOLLOWING FURTHER COMMITMENTS:
The Provider will only process Personal Data on documented instruction from the Customer;
Any person authorized to process data on behalf of Customers are fully trained in the requirements of the GDPR and are bound by confidentiality agreements to ensure the security and privacy of Customer data;
The Provider has implemented appropriate technical and organizational measures to ensure that Customer’s Personal Data is processed and stored securely;
The Provider will, where possible, further assist the Customer in ensuring compliance with obligations under the GDPR and other applicable data protection law, taking into account the nature of the processing and the information available to the processor;
The Provider will maintain the confidentiality of all Personal Data and will not disclose Personal Data to third parties or sub-contractors unless specifically requested to do so;
The Provider will, at the choice of the Customer, delete or return all Personal Data to the controller upon termination of the services (related to the processing of Personal Data) and will delete any data following this decision unless requested to retain it on behalf of the Customer; and
The Provider will notify the Customer immediately if it receives any notice, communication or complaint that relates directly or indirectly to the processing of Personal Data by Customer and CMC will give Customer any required support to address such notice, communication or complaint.
Personal Data on record will be retained for 12 months unless requested to be destroyed by Customer. Personal Data will be permanently destroyed after 12 months, unless the Customer requests that the Provider retain it for a longer period. Storage for more than 12 months may result in an additional storage charge.