TERMS AND CONDITIONS
In consideration of the Price of Client’s order and My Marketing Solutions, Inc. ( MMS) (Client and MMS are sometimes referred to as a “Party” or collectively as the “Parties”) provision of Products and/or Services to Client, and other good and valuable consideration the receipt and sufficiency of which are acknowledged, the contract entered into by Client and MMS with respect to such Products and/or Services (the “Contract”) includes, is bound by, and is made subject to, the following terms and conditions (“Terms & Conditions”):
1. Definitions. The following definitions apply to these Terms & Conditions and all Contracts:
A. Products and Services: The decoration and sale of promotional items using third-party manufactured materials and decoration labor (“Products”), and other marketing services (“Services”).
B. Price: The final and actual price charged Client by MMS for the Products and Services provided by MMS to Client as identified in the Contract.
2. Breach, Default, and Enforcement. A Party shall be in default on the Contract in the event the other Party provides written notice of a material breach thereof and said breach remains uncured after ten (10) business days. In the event of any default by Client, Client shall promptly pay all costs and expenses, including, without limitation, court costs and reasonable attorneys’ fees, incurred by MMS to enforce any provision of these Terms & Conditions or any other provision of the Contract.
3. Limited Liability. Notwithstanding anything contained herein to the contrary, MMS’s total liability for any default on the Contract shall be limited to the Price associated with such Products and Services, and in no circumstance shall incidental and/or consequential damages be recoverable by Client.
4. Conditions Precedent to MMS’s Obligations. MMS’s obligation to perform under the Contract is conditioned on the following: (a) Client’s approval of the order acknowledgement (b) Client’s approval of a proof of any Product ordered or finalized plan for any Service ordered pursuant to the procedure indicated to Client by MMS; (c) Client’s prepayment if one is required of the Price for the Contract after approval of a proof and/or finalized plan is made; and (d) express acceptance of these Terms & Conditions pursuant to the procedure indicated to Client by MMS.
5. Samples Policy. Pursuant to the terms, conditions, and procedures set forth by MMS at its sole and absolute discretion, MMS may at its discretion provide Client a generic sample of Products offered by MMS (a “Sample”). If there is a cost for the sample, MMS will provide the price and an order acknowledgement of the item with approval from client. With respect to any request for a Sample, these Terms & Conditions apply to the fullest extent reasonable. In addition, the following terms apply to the provision of any Sample: a) MMS, at its sole and absolute discretion, may deny any request for a Sample for any reason and limit the number of Samples, if any, it will provide to Client; b) Client is responsible for all shipping costs for any Samples; c) in the event Client does not return a Sample of a Product that retails for over ten dollars and no/100 ($10.00) to MMS within 15 days of receipt, Client is responsible for the full cost of any such Sample(s); and d) MMS has the right to use any and all methods described in these Terms & Conditions for purposes of collecting any moneys due to it under this Samples Policy.
6. Payment Terms. In addition to the terms and conditions of payment as provided for herein, MMS will notify Client of any additional terms of payment of the Price of all Contracts (the “Payment Terms”) at the time the Client requests the provision of a Product or Service. As stated herein, Client’s satisfaction of pre-work Payment Terms is a condition precedent to MMS’s obligation to perform under the Contract. Client’s failure to satisfy any Payment Term shall be considered a material breach of the Contract. In the event of Client’s failure to strictly comply with all Payment Terms, all overdue payments will accrue interest at a rate of three percent (3%) per month, or the maximum rate allowed by law, whichever is less, from the date the payment became due and owing. MMS may use any and all legal means to enforce the Payment Terms and Client shall promptly pay all costs and expenses of collection of the Contract Price, including without limitation, court costs and reasonable attorneys’ fees.
7. Overruns and Under-Runs on Products. MMS will use all reasonable efforts to avoid overruns and/or under-runs with respect to its provision of Products to Client. However, due to the nature of manufacturing with high speed imprinting machinery coupled with damaged items that are removed during quality control, overruns/under-runs are a common occurrence in MMS’s industry. MMS makes no guarantee that overruns and/or under-runs will not occur with respect to any and all Products and the occurrence of an overrun or under-run is not a breach of a Contract unless MMS has specifically agreed to provide an exact quantity of a Product. When Client requires an exact quantity of a Product, the request for the exact quantity must be specified to MMS and MMS’s acceptance of such request, if MMS does accept same, will be noted as part of the process for Client’s approval of any and all Product proofs. MMS reserves the right to increase the Price on a Contract to account for the provision of exact quantities.
8. Return Policy. A decorated Product cannot be returned. MMS must be notified of any defects in a Product within fourteen (14) days of delivery of the Product(s) to Client. In the event of a defective product and due notice given, MMS will discuss the terms of a timely replacement or discount with Client. The Client stipulates and agrees that in the event MMS allows a return after fourteen (14) days, said allowance shall not be construed as a waiver of any of MMS’s rights.
9. Force Majeure. With respect to MMS’s provision of both Products and Services, should MMS be unable to complete its obligations under the Contract due to the following occurrences to the extent the same are beyond the reasonable control of MMS and not due to the fault or negligence of MMS: (a) government orders or regulations, (b) failure of any third-party or vendor to perform to the full extent such failure is beyond the reasonable control of MMS, (c) war, (d) fires, (e) riots, (f) insurrections, (g) explosions, (h) earthquakes, (i) floods, (j) strikes, (k) embargoes, (l) lockouts, (m) Internet disruptions, and/or (n) acts of God (collectively, “Force Majeure Conditions”), then MMS shall provide written notice to Client of such Force Majeure Condition(s) which prevent MMS from providing a Product and/or Service (a “Force Majeure Notice”). If MMS becomes aware that it cannot provide a Product and/or Service so as to meet its obligations under a Contract and provides Client a Force Majeure Notice within a reasonable amount of time upon learning of any Force Majeure Conditions, MMS will be excused from meeting such affected obligation(s) until such time, determined at MMS’s sole but commercially reasonable discretion, as such Product and/or Service may be provided once all Force Majeure Conditions have abated and the production of the Products and/or Services reasonably can be completed.
10. Indemnity and Hold Harmless Agreement. To the fullest extent permitted by law, Client shall defend, indemnify, and save free and harmless MMS and its directors, officers, employees, members, suppliers, vendors, attorneys, and agents against all injuries, losses, damages, claims, suits, liabilities, judgments, costs, and expenses (hereinafter collectively “Claims”), which may arise directly or indirectly from any negligence or from the reckless, or willful misconduct (including, but not limited to the misuse, improper use, and/or unintended use of the Products and Services; misappropriation of any intellectual property under any circumstances; and products liability) by Client and/or its employees, directors, volunteers, participants, customers, clients, donors, and agents, or that may result in any way therefrom (including, but not limited to Claims arising from the conduct of third-parties who came into contact with Products and Services through Client). Client shall, at its own expense, appear, defend, and pay all charges of attorneys and all costs and other expenses arising therefrom or incurred in connection therewith, and, if any judgment shall be rendered against MMS in any such action, Client shall, at its expense, satisfy and discharge the same. This provision shall not be construed as requiring Client to indemnify MMS for MMS’s negligence.
11. Disclaimer of Warranties. With respect to all Products and/or Services provided to Client, unless otherwise restricted by mandatory applicable law, MMS DISCLAIMS ANY AND ALL WARRANTIES NOT EXPRESSLY SET FORTH HEREIN, WHETHER SUCH WARRANTIES ARE EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY AND ALL WARRANTIES OF MERCHANTABILITY, QUALITY AND FITNESS FOR USE AND FOR PURPOSE, ANY ADVICE AND RECOMMENDATION AND ANY OBLIGATIONS OR LIABILITIES WHICH MAY BE IMPUTED TO MMS, AND ANY AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED, DENIED AND EXCLUDED. CLIENT EXPRESSLY AGREES THAT NO WARRANTY THAT IS NOT SPECIFICALLY STATED IN THESE TERMS & CONDITIONS WILL BE CLAIMED OR OTHERWISE ADHERED TO BY CLIENT AND/OR BY ANYONE ACTING ON CLIENT’S BEHALF AND/OR BY ANYONE DERIVING THE LEGALITY OF ITS CLAIM FROM CLIENT, NOR THAT WILL ANY SUCH WARRANTY BE VALID. MMS NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT, ANY OTHER LIABILITY IN CONNECTION WITH THE SALE, USE OR HANDLING OF ANY AND ALL PRODCUTS AND/OR SERVICES SPECIFIED OR CONTEMPLATED BY THESE TERMS & CONDITIONS AND/OR ANY AND ALL CONTRACTS. NO WARRANTY IS MADE WITH RESPECT TO ANY PRODUCT AND/OR SERVICES WHICH HAA BEEN SUBJECT TO ACCIDENT, NEGLIGENCE, ALTERATION, IMPROPER CARE, IMPROPER STORAGE, IMPROPER MAINTENANCE, ABUSE OR MISUSE.
12. Governing Law; Venue; Jury Trial Wavier. All Contracts entered into between MMS and Client and shall be governed by and construed in accordance with the laws of the State of Massachusetts without regard for any conflict of laws provisions. Client hereby waives its right to a trial by jury.