Customer hereby engages Digital Lizard, a business unit of LSC Communications US, LLC ("LSC Communications"), and LSC Communications shall be obligated and entitled to do or arrange for all of the work described in the Quotation ("Quotation") that references these Terms and Conditions. This proposal is valid for 60 days and is submitted with press time and paper subject to availability.
- Customer-Furnished Files. Customer shall furnish .pdf or other mutually agreeable application files for the printing. Such files will be used solely for Customer's work and will remain Customer's property. In its sole discretion, LSC Communications may store Customer's native electronic files for future reprints, but is free to delete them at any time after completion of the original printing. LSC Communications strongly recommends that Customer maintains complete and working copies of all of Customer's furnished native electronic files for future printings. LSC Communications will not be responsible for any additional rework liability, monetary or otherwise, from either third party providers or for Customer's internal rework or retrieval.
- LSC Communications Property. All electronic imposition files, normalized .pdf files, type fonts that LSC Communications buys or licenses for the production of Customer's work, and printing plates will be used solely for Customer's work but will remain LSC Communications' property. Finished production files made by LSC Communications, will be stored by LSC Communications at no additional charge for one year from the date of the last printing for future reprint and will be made available to Customer at the end of the job for a fee, if requested.
- Press Approvals: It is our policy that clients conduct their own press approval. If, for any reason this is not possible, client agrees to accept press approvals conducted by LSC Communications Printing Supervisor or Representative.
- Materials. Should a job be cancelled after stock is ordered a charge may apply. The cost of paper included in the proposal, in particular, is based on current market prices, which are subject to change. If there is an increase in the price of this paper by the time it is received by us, such increase in cost will be reflected in our invoice to you. Cancellation fees for special orders may be charged at LSC Communications' discretion. In the event customer changes delivery schedule, page count, quantity or final finished size without mutual written agreement with LSC Communications, Customer will be financially responsible for unused or additional paper secured for job(s) currently in or scheduled for production. On recurring jobs paper will be purchased up to 4 weeks prior to scheduled print date in order to secure paper availability. In the event job is not awarded, canceled or delayed customer agrees to be responsible for past cost or restocking fees. Paper stock furnished by the customer shall be properly packed, free from dirt, grit, torn sheets, bad splices, etc., and of proper quality for printing requirements. Additional costs due to delays or impaired production due to improper packing or quality shall be charged to the customer. A handling charge will be made on all paper stock furnished by customer.
- Schedule. At time of order, LSC Communications will determine production schedule depending on availability of specified materials and customer requirements. All prices quoted are based upon current production and material costs and are subject to an approved schedule and capacity at the time of order. Any project awarded which differs materially from the estimate/quote letter will be subject to re-estimating based on the actual job specifications and invoiced accordingly.
- Overruns or underruns. Variations in quantity of 10% over and OR under quantities will constitute acceptable delivery and up to 10% excess will be charged at the additional thousands rate stated herein.
- Title and Risk of Loss. Title to and risk of loss in finished and semi-finished work shall pass to Customer upon the earlier of LSC Communications' delivery to a carrier or postal service, or delivery into storage, regardless of whether the transport medium or storage facilities are owned or operated by LSC Communications and regardless of whether LSC Communications charges Customer for storage. Unless otherwise stated, the prices herein are f.o.b. LSC Communications' plant of manufacture.
- Freight. Freight quoted is an estimate only. Due to fuel surcharges and market conditions, actual freight costs may vary. Unless specifically noted in quote letter freight is estimated as one drop, standard truck and regular business day transit only. Any special requirements such as expedited freight, multiple drops, lift gate, pallet jack, residential delivery and/or weekend transit or delivery will incur additional costs and will be invoiced accordingly.
- Mailing. For any product that mails from LSC Communications' plant of manufacture, all address labels, mail sack labels, or magnetic tapes for the preparation thereof will be furnished by Customer in compliance with the current specifications of LSC Communications' plant performing the mailing and the current U.S. Postal Service rules and regulations. Mailing prices quoted by LSC Communications are based on U.S. Postal Service regulations and procedures in effect as of the date of the Quotation. If postal regulations or procedures change so as to affect LSC Communications' cost of mailing, the prices will be revised to fairly reflect any increase or decrease in such costs. Customer will pay the costs of postage and permits, and Customer will be responsible, if necessary, for establishing an account with the U.S. Post Service with funds sufficient to cover these costs. Nothing contained herein will require LSC Communications to perform anything in violation of U.S. Postal laws, regulations, or procedures.
Unless otherwise agreed, LSC Communications does not provide for 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 agreed upon production schedule, or if Customer's furnished materials arrive prior to the dates specified in the agreed upon schedule, or if paper or other materials ordered for Customer's work remain on hand after completion, storage will be charged at the prevailing rates for each month up to six months the finished goods, work in process, or materials remain in LSC Communications' possession. Such rate will be doubled for each month after the first six (6) months of storage, and will be quadrupled for each month after the twelfth (12th) month of storage. If, following the eighteenth (18th) month of storage LSC Communications receives no direction from Customer for disposal of the stored items, such items will be destroyed. Customer will reimburse LSC Communications for additional manufacturing costs, if any, caused by the use of materials that LSC Communications has stored for over one year.
6. PAYMENT AND CREDIT TERMS.
- Payments. See quote letter or your LSC Communications sales contact for the approved Terms of Payment. All payments will be made by check or electronic funds transfer. LSC Communications obligation to perform work hereunder is subject to prompt payment of all invoices pursuant to the terms of this and other agreements LSC Communications may have with Customer.
- Interest and Collection Costs. Any payment not received when due will accrue interest at a rate of one and one-half percent (1 1/2%) per month, or the highest rate allowed by applicable law, whichever is lower. Progress billing of interest due or failure to bill for interest due shall not constitute a waiver of LSC Communications right to charge interest on all amounts past due to the date payment is received. If Customer fails to pay LSC Communications invoice in accordance with these terms, Customer shall pay all costs of collection, including but not limited to, reasonable attorneys' fees.
- Credit Review. If Customer is delinquent in its payments or if there is a substantial adverse change in Customer's credit standing, LSC Communications may, upon written notice to Customer, modify the payment terms to require full payment before the provision of Services or require other assurances to secure Customer's payment obligations hereunder LSC Communications' obligation to perform further work will be subject to reaching mutual agreement on revised terms. If Customer files for protection under any bankruptcy or insolvency statute, Customer take all actions necessary to have LSC Communications treated as a critical vendor.
- Disputed Invoices. If Customer disputes any portion of any invoice, Customer agrees to pay the undisputed portion according to its terms and will notify LSC Communications promptly of the dispute. Both parties agree to use their best efforts to resolve the disputed portion of such invoice within thirty (30) days of learning of the dispute. If Customer delays completion of manufacture beyond the period contemplated by the production schedule, or if partial shipment is made prior to the completion of the entire quantity, interim billing may be made.
7. INTELLECTUAL PROPERTY.
- Assignment of Rights. Customer shall own upon creation all right, title and interest, including all copyright or other intellectual property rights ("collectively the "Intellectual Property Rights") in all text, images, graphics and other forms of content that LSC Communications may create or modify for Customer hereunder. LSC Communications hereby assigns to Customer all Intellectual Property Rights therein. At Customer's request, LSC Communications will execute any instrument that may be appropriate to assign these rights to Customer or its designee to perfect these rights in Customer's or its designee's name.
- Retained Rights. Any Intellectual Property Rights in any equipment, software, systems, or technology, ideas, concepts, inventions or techniques that LSC Communications may use, conceive or first reduce to practice in connection with the production of Customer's work (excepting any Intellectual Property Rights assigned under subsection A) are and will be the exclusive property of LSC Communications.
- LSC Communications Warranties. LSC Communications will perform the work in a good and workmanlike manner and in accordance with the specifications and production schedule.
- Customer Warranties. Customer represents and warrants that any matter it furnishes to LSC Communications to reproduce, incorporate in, bind into or package with the completed product (or as altered or attached by LSC Communications at Customer's direction) (1) does not violate any applicable laws, including without limitation those concerning labeling, packaging or distribution, (2) does not infringe any third party's Intellectual Property Rights, (3) is not libelous, and (4) does not otherwise violate the rights of or will cause damage or injury to other persons. Customer agrees to indemnify and hold LSC Communications harmless from all losses, damages and expenses, including attorneys' fees, which LSC Communications may suffer as the result of any claim of such violation, damage or injury.
- Disclaimer of Other Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE SERVICES AND THE ACCURACY, OPERATION, FUNCTIONALITY, QUALIFICATIONS, OR CAPABILITIES OF THE DELIVERABLES, SERVICES, OR RESOURCES PROVIDED HEREUNDER, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY EITHER PARTY, OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT) ARE HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED.
- Confidential Information. LSC Communications and Customer acknowledge that each party may have access to certain of the other party's confidential and proprietary information in connection with the work to be performed by LSC Communications ("Confidential Information"). Confidential Information includes any nonpublic information that a disclosing party designates as being confidential or that, under the circumstances, surrounding disclosure the receiving party should know is treated as confidential by the disclosing party. Each party will take all reasonable precautions necessary to safeguard the confidentiality of the other party's Confidential Information, including those (1) required under this Section 10, (2) taken by such party to protect its own confidential information of similar nature and value (but no less than reasonable care) and (3) which the other party may reasonably request from time to time.
- Use and Disclosure. Each party will use the other party's Confidential Information solely in connection with LSC Communications' production of books for Customer. Neither party will disclose, in whole or in part, the other party's Confidential Information to any person, except to such party's employees or agents who require access to fulfill such purpose. Each party will affix appropriate confidentiality and proprietary notices to its own items of Confidential Information. Neither party will remove or deface any such notice that the other party may have affixed to its items of Confidential Information.
- Unauthorized Use or Disclosure. Each party acknowledges that any unauthorized use or disclosure of the Confidential Information may cause irreparable damage to the other party. If an unauthorized use or disclosure occurs, such party will take, at its expense, all steps that are necessary to recover the other party's Confidential Information and to prevent its subsequent unauthorized use or dissemination, including availing itself of actions for seizure and injunctive relief. If such party fails to take these steps in a timely and adequate manner, the other party may take them at such party's expense.
- Limitation. Neither party will have any confidentiality obligation with respect to any portion of the other party's Confidential Information that (i) it independently knew or develops, (ii) it lawfully obtains from a third party under no obligation of confidentiality or (iii) is or becomes available to the public other than as a result of its act or omission.
10. LIMITATION OF LIABILITY.
- Remedies. LSC Communications shall provide Customer with an opportunity to review a softcopy or digitally printed proof prior to releasing production files for printing. If Customer declines to review or okays such proofs, LSC Communications shall not be liable for any costs resulting from errors or defects appearing in such proofs, including but not limited to the cost of reprinting or redistributing material that has been printed or bound using such defective files. LSC Communications' sole liability and Customer's sole remedy for any other defect, error or delay shall be limited to a credit or refund for the portion of the work which is nonconforming, upon mutual agreement of the parties.
- Exclusions. UNDER NO CIRCUMSTANCES WILL LSC COMMUNICATIONS, ITS AFFILLIATES, PARENTS, OR SUBSIDIARIES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS OF CUSTOMER, ITS APPOINTEES OR ITS OR THEIR CUSTOMERS (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF GOODWILL, USE OF OR RELIANCE ON THE SERVICES, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND EVEN IF A LIMITED REMEDY PROVIDED IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
LSC Communications agrees to keep in full force and effect and maintain at its sole cost and expense the following policies of insurance:
- Workers Compensation with statutory limits and Employers Liability Insurance limits of $500,000 per employee, accident or disease;
- Commercial General Liability Insurance providing coverage for bodily injury and property damage arising out of the work to be performed and including coverage for personal and advertising injury and contractual liabilities providing limits of not less than $1,000,000 per occurrence;
- Professional Liability Insurance including coverage for wrongful acts, errors and omissions, with limits of not less than $1,000,000 per claim.
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. LSC Communications agrees to provide certificates of insurance signed by an authorized representative of the respective carriers prior to commencement of the work to be performed, and shall have the right to self-insure any of its insurance obligations.
- Independent Parties. Customer and LSC Communications are independent parties. Nothing in this Agreement will be construed to make LSC Communications an agent, employee, joint venture partner, partner or legal representative of Customer. LSC Communications will neither have nor represent itself to have any authority to bind Customer to any obligation.
- Assignment. Neither party may assign this Agreement without the other party's prior approval, such consent not to be unreasonably withheld, provided that LSC Communications may assign all or any portion of, or any rights and obligations under, this Agreement to one or more of its affiliates and either party may assign this Agreement in connection with the sale of all or substantially all of the assets or stock of such party, or its merger with or into a third party. This Agreement shall inure to the benefit of and shall bind the permitted successors and assigns of the parties hereto.
- Import/Export Laws. If Customer directs LSC Communications to ship Customer's products to foreign destinations or to import products into the United States from another country, Customer shall comply with all laws and regulations applicable to the export of any materials supplied by Customer for the production of Customer's work (e.g., film, copy, data) as well as all laws and regulations applicable to the distribution of finished product from LSC Communications' plant of manufacture to the country of importation, including but not limited to U.S. export control and U.S. and foreign country of origin laws and regulations. Customer agree to indemnify and hold LSC Communications harmless against any failure to comply with the aforementioned laws, and notwithstanding the indemnification, LSC Communications reserves the right to reject any work that is not in compliance with applicable laws and regulations.
- Sale of Goods. Performance due under these Terms and Conditions is intended to be primarily for the sale of goods for purposes of the Uniform Commercial Code and section 503(b)(9) of Title 11 of the United States Code.
- Force Majeure. Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance under these Terms and Conditions due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act, failure of the Internet or the unavailability of materials, purchased services or utilities (not resulting from the actions or inactions of LSC Communications), 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. If LSC Communications is unable to provide services for a period of thirty (30) consecutive days as a result of a continuing force majeure event, Customer may cancel the service.
- Governing Law. The Quotation and these Terms and Conditions (collectively, the "Contract Terms") will be governed by and interpreted in accordance with the laws of the State of Illinois without regard to its conflict of laws rules. The parties hereby: (a) waive all right to trial by jury; (b) consent to the exclusive jurisdiction and venue of the Circuit Court of Cook County, Illinois and of the United States District Court for the Northern District of Illinois; and (c) agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the Contract Terms.
- Waiver, Amendment or Modification. Any waiver, amendment or other modification of the Contract Terms will not be effective unless in writing and signed by the party against whom enforcement is sought.
- Severability. If any provision of the Contract Terms is held to be unenforceable, this holding will not affect the validity of the other provisions hereof, unless LSC Communications deems the unenforceable provision to be essential to the Contract Terms, in which case LSC Communications may terminate these Contract Terms, effective immediately upon notice to Customer.
- Entire Agreement. The Contract Terms constitute the complete and exclusive statement of the terms, conditions and representations of the agreement between LSC Communications and Customer with respect to book production services and supersedes all other agreements with respect to the subject matter hereof. LSC Communications objects to any terms proposed in a Customer proposal, sales note, purchase order or other form of acceptance of LSC Communications offer which add to, vary from, or conflict with the Contract Terms. Any such proposed terms shall be void and the Contract Terms constitute the complete and exclusive statement of the terms and conditions between Customer and LSC Communications.