Terms & Conditions
SMARTSOLVE INDUSTRIES LLC
STANDARD TERMS AND CONDITIONS OF SALES
REVISED FEB 7, 2024
All sales made to a customer (“Customer”) by SmartSolve Industries LLC, including its affiliates (together or each, “SmartSolve”), of products (“Products” or “Product”) are subject to these Standard Terms and Conditions of Sales (“Terms”), except as may be inconsistent with any specific terms of any written sales agreement (however designated) signed by an authorized representative of SmartSolve (“Sales Agreement”).
1. Entire Agreement; Enforceability of Terms. These Terms, together with any terms of any Sales Agreement, shall constitute the entire agreement between SmartSolve and Customer regarding the sale and purchase of Products and supersedes all prior oral or written agreements (whether express or implied, including implied by custom, practice, course of dealing, or otherwise) with respect to the same. Any attempted modification of these Terms by customer, and any additional or different terms included in Customer’s purchase order (“Purchase Order”), in any other document responding to any quote by SmartSolve, or in subsequent documents, purchase orders or acknowledgments provided by Customer are hereby rejected unless conspicuously and expressly assented to in writing by SmartSolve. Customer shall have been deemed to agree to these Terms upon the earlier of (a) acceptance of any performance by SmartSolve in response to Customer’s Purchase Order, (b) acceptance of delivery of the Products, or (c) Customer written acceptance of the Terms. In the event that any orders for Products are repeated, whether or not additional quotes and/or Confirmations are delivered to the Customer, the Customer acknowledges and agrees that these Terms shall apply to and be binding upon all such repeat orders.
2. Order Confirmation. No Purchase order shall be binding upon SmartSolve until acknowledged in writing by SmartSolve by means of a Purchase Order confirmation or other similar acceptance, however designated (“Confirmation”).
3. Quotes. A quote issued or delivered by SmartSolve for the sale and purchase of Products shall be deemed informational only and shall not itself be binding or otherwise be deemed incorporated into these Terms or any Sales Agreement (unless expressly referenced therein).
4. Purchase Orders. Purchase Orders are not binding on SmartSolve until SmartSolve delivers to Customer a Confirmation.
5. Prices; Ownership of Dies and Plates. Unless a fixed price is confirmed in a Confirmation, Sales Agreement, or other SmartSolve 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 SmartSolve may charge an additional fee for customized dies or plates required to fulfill a Purchase Order, and agrees that SmartSolve will retain ownership of the dies and plates at all times.
6. Taxes. Any tax imposed by any taxing authority that is or becomes payable by reason of the sale or delivery of Products to a Customer, will be payable by the Customer and, if paid by or levied or assessed against SmartSolve, will either be added to the price of the Products or billed to the Customer separately, as SmartSolve may elect.
7. Terms of Payment. Unless otherwise specified by SmartSolve, or in any Sales Agreement or other writing signed by an authorized representative of SmartSolve, terms are net thirty (30) days from the date of SmartSolve’s invoice payable in U.S. currency. SmartSolve has the right, among other remedies, either to terminate a Sales Agreement or Purchase Order, 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 SmartSolve is not paid when due, it shall bear interest at a rate of 12%per annum or the maximum rate permitted by law, if less than 12%, from the date on which it is due until it is paid. If, in good faith, SmartSolve deems itself to be insecure with respect to Customer’s financial condition, SmartSolve may require prepayments or other assurances for future deliveries. Customer hereby grants SmartSolve a security interest in all Products sold to Customer by SmartSolve, which security interest shall continue until such Products are fully paid for in cash.
8. Shipment and Delivery. Unless otherwise expressly agreed in writing, shipments are made Ex Works SmartSolve’s plant of origin. 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 SmartSolve will use reasonable commercial efforts to maintain the delivery date(s) acknowledged or quoted by SmartSolve, all shipping dates are approximate and not guaranteed. SmartSolve reserves the right to make partial shipments and to place certain Purchase Orders on “back order.” SmartSolve, at its option, shall not be bound to tender delivery of any Products for which Customer has not provided shipping instructions. If SmartSolve has agreed to pay freight, SmartSolve 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 SmartSolve for any handling and storage costs and other additional expenses relating therefrom.
9. Over/Under Run Allowance. Unless otherwise agreed in writing by SmartSolve, all Purchase 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 Purchase Orders delivered within the over/under run allowance will be considered acceptable for delivery.
10. Product Use. All statements, technical information and data contained in Product specifications, descriptions or other documents are based upon tests or experiences that SmartSolve believes are reliable. However, many factors beyond SmartSolve’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), and SmartSolve does not warrant that the Product is fit for a particular purpose or suitable for a specific application, unless otherwise stated by SmartSolve in a Sales Agreement or Confirmation.
11. PASS-THROUGH WARRANTIES. WITH RESPECT TO ALL PRODUCTS THAT ARE SUBJECT TO PASS-THROUGH WARRANTIES OF THIRD-PARTY MANUFACTURERS, AS DESCRIBED IN A SALES AGREEMENT, OR IN SMARTSOLVE’S SALES PROPOSAL, QUOTATION, OR OTHER PRODUCT LITERATURE, SMARTSOLVE MAKES NO ADDITIONAL WARRANTY, UNLESS EXPLICITLY STATED OTHERWISE IN A SALES AGREEMENT, OR SMARTSOLVE’S SALES PROPOSAL, QUOTATION, OR OTHER PRODUCT LITERATURE.
12. OTHER WARRANTIES. WITH RESPECT TO ALL PRODUCTS NOT SUBJECT TO PASS-THROUGH WARRANTIES OF THIRD-PARTY MANUFACTURERS, UNLESS EXPLICITLY STATED OTHERWISE IN A SALES AGREEMENT, OR SMARTSOLVE’S SALES PROPOSAL, QUOTATION OR OTHER PRODUCT LITERATURE. SMARTSOLVE MAKES NO WARRANTY (INCLUDING ANY IMPLIED WARRANTY ARISING OUT OF A COURSE OF DEALING, CUSTOM OR USAGE OF TRADE) REGARDING THE PRODUCT AND THE PRODUCT IS SOLD “AS IS”.
13. WARRANTY EXCLUSIONS. SMARTSOLVE WARRANTIES DO NOT APPLY IF THE PRODUCT FAILS OR IS DAMAGED AS A RESULT OF: CUSTOMER’S WILLFUL DAMAGE, NEGLIGENCE, OR ABNORMAL WORKING CONDITIONS; CUSTOMER’S FAILURE TO FOLLOW SMARTSOLVE’S INSTRUCTIONS (WHETHER ORAL OR IN WRITING); CUSTOMER’S MISUSE, ALTERATION OR REPAIR OF THE PRODUCT WITHOUT SMARTSOLVE’S APPROVAL; OR A MALFUNCTION CAUSED BY ANY EQUIPMENT NOT SUPPLIED BY SMARTSOLVE OR ON SMARTSOLVE’S BEHALF. IN ADDITION, SMARTSOLVE’S WARRANTIES DO NOT APPLY DURING ANY PERIOD IN WHICH CUSTOMER HAS OUTSTANDING ANY PAYMENT DUE SMARTSOLVE BEYOND THE DUE DATE.
14. LIMITATION OF LIABILITY; EXCLUSIVE REMEDY. EXCEPT AS EXPRESSLY PROVIDED IN A SALES AGREEMENT, OR SMARTSOLVE’S SALES PROPOSAL, QUOTATION OR OTHER PRODUCT LITERATURE, SmartSolve 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. IF THE PRODUCT IS DEFECTIVE OR OTHERWISE FAILS TO MEET WARRANTY STANDARDS WITHIN THE APPLICABLE WARRANTY PERIOD, THE CUSTOMER’S EXCLUSIVE REMEDY AND SMARTSOLVE’S SOLE OBLIGATION WILL BE, AT SMARTSOLVE’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 PRODUCTS.
15. Employee Statements and Representations. Any statements made by a SmartSolve 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.
16. Acts of God and Third Parties. SmartSolve 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, epidemic or pandemic, 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 SmartSolve, the performance of which is required for production or sourcing of the Products, or any other happening or contingency beyond SmartSolve’s reasonable control.
17. Cancellation. Customer may cancel Purchase Orders only if permitted by the express written terms of the Sales Agreement and, in that event, only upon reasonable advance notice and upon payment to SmartSolve of SmartSolve’s cancellation charges. SmartSolve’s cancellation charge may include, among other things, all costs and expenses incurred or committed by SmartSolve and SmartSolve’s prorated profit based on the percentage of completion of the order. SmartSolve’s determination of such cancellation charges shall be conclusive.
18. Assignment. Customer shall not assign its rights or delegate its duties hereunder or any interest in a Purchase Order without the prior written consent of SmartSolve; and any such assignment without consent shall be void.
19. 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. SmartSolve 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). Customer shall deliver to SmartSolve, 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 SmartSolve 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 SmartSolve of the reason therefore, obtaining from SmartSolve a return authorization form, and observing such instruction as SmartSolve may give in authorizing such return. SmartSolve’s weights and volume measurements taken at the time of shipping shall govern.
20. Technology Rights. Except as may be specifically set forth in a Sales Agreement, the purchase of Products from SmartSolve itself confers no assignment or license, express or implied, under any patents, copyrights, know-how, or technology.
21. Layout Approval; Barcodes; Color Standards; Errors. Customer’s signature and initialing of a layout or Customer’s acceptance or confirmation of a Purchase Order after a layout is presented to the Customer, shall signify Customer’s approval of product size, shape, color, design, font, 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. SmartSolve 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, SmartSolve does not guarantee 100% color matching. All orders for Products shall in addition be subject to SmartSolve Color Standards which shall be provided to Customer upon request.
22. Non-Infringement. Customer represents that all materials to be printed on or otherwise incorporated into Product, including but not limited to, trademarks and copyrighted works, fonts and images, 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 SmartSolve for any damages, losses, or expenses as a result of the printing of such materials.
23. Returned Checks. A One Hundred Dollar ($100.00) service fee shall be charged for each Customer check that is returned.
24. Lead Times. Production schedules or lead times are estimates and are not guaranteed, although SmartSolve 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 Purchase order by SmartSolve , or (b) Customer’s approval of the proof, and end upon shipment from SmartSolve’s plant.
25. Communication. By placing an order for Products with SmartSolve, the Customer consents to receive notices, announcements, brochures, advertisements, and other information sent by or on behalf of SmartSolve via facsimile, telephone, or e-mail. Customer further agrees that SmartSolve’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 a Purchase Order for Products with SmartSolve, Customer consents to the recording of any or all telephone communications between or among SmartSolve and Customer personnel, whether recorded before or after Customer’s receipt of the Confirmation.
26. U.S. Export Control Regulations. Products sold to Customer by SmartSolve 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.
27. Non-Waiver. No waiver by SmartSolve 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 SmartSolve.
28. Severability. If any provision of these Terms is held to be invalid or unenforceable, all other provisions shall nevertheless continue in full force and effect.
29. CHOICE OF LAW/CHOICE OF FORUM. THESE TERMS (AND ANY SALES AGREEMENT 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.
30. Errors. All typographical or clerical errors made by SmartSolve in any quotation, acknowledgement, confirmation, or other document are subject to correction.