Terms and Conditions

Applicability

These terms and conditions (these “Terms and Conditions”) apply to, and are hereby incorporated by reference in, all purchase orders (the “Purchase Orders”) and the like issued and accepted by Metropolitan Fine Printers, Inc. (the “MET”) and any other documentation issued and accepted by MET with respect to a customer’s (the “Customer”) purchase of Goods (the “Goods”) or services (the “Services”), including, but not limited to, all sales quotations, estimates, acknowledgements, invoices and similar documents (collectively with Purchase Orders, the “Sales Documentation”).

The Sales Documentation and these Terms and Conditions comprise the entire agreement between MET and the Customer and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms and Conditions prevail over any of the Customer’s general terms and conditions of purchase regardless of whether or when the Purchaser submitted its Purchase Order or such terms. The fulfilment of the Customer’s Purchase Order does not constitute acceptance of any of the Customer’s terms and conditions and does not serve to modify or amend these Terms and Conditions.

Delivery of Goods and Shipping Terms

The Goods will be delivered on a date to be determined by MET after receipt of a Purchase Order from the Customer. MET shall determine the delivery date upon confirmation of the availability of material including, but not limited to, the selected paper stock and any other materials required to produce the Goods.

Unless otherwise agreed in writing by MET and the Customer, MET shall deliver the Goods FOB Company office in Vancouver, BC or Calgary, AB depending on where the Goods are manufactured (the “Delivery Point”) using MET’s standard methods for packaging and shipping such Goods. The Customer shall take delivery of the Goods within 3 business days of MET’s notice that the Goods have been delivered to the Delivery Point. The Customer shall be responsible for all delivery and courier charges, loading and offloading costs, fuel surcharges and for providing equipment and labour reasonably suited for receipt of the Goods at the Delivery Point.

If for any reason the Customer fails to accept delivery of any of the Goods within 3 business days upon notice from MET that the Goods have been delivered at the Delivery Point, the: (i) risk of loss to the Goods shall pass to the Customer; (ii) Goods shall be deemed to have been delivered; and (iii) Company, at its option, may store the Goods until the Customer retrieves them, whereupon the Customer shall be liable for all related costs and expenses including, but not limited to, storage and insurance.

Non-Delivery

The quantity of the Goods as recorded by MET on dispatch from MET’s place of business is conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.

Any liability of MET for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.

The Customer acknowledges and agrees that the remedies set forth in this Section 3 are the Customer’s exclusive remedies for the non-delivery of Goods. Except as provided under Section 3(b), all sales of Goods to the Customer are made on a one-way basis and the Customer has no right to return Goods purchased under the Sales Documentation and these Terms and Conditions.

Quantity

If MET delivers to the Customer a quantity of Goods of up to 5% more or less than the quantity set forth in the Sales Documentation or as otherwise agreed to, the Customer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods at the price set forth in the Sales Documentation adjusted pro rata.

Title and Risk of Loss

Title and risk of loss passes to the Customer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, the Customer hereby grants to MET a lien on and security interest in and to all of the right, title and interest of the Customer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Personal Property Security Act (British Columbia).

Performance of Services

MET shall provide the Services specified in the Sales Documentation.

MET shall use reasonable efforts to meet any performance dates to render the Services specified in the Sales Documentation, and any such dates shall be estimates only and are not guaranteed by MET.

With respect to the Services, the Customer shall (i) cooperate with MET in all matters relating to the Services and provide such access to the Customer’s premises, and such office accommodation and other facilities as may reasonably be requested by MET, for the purposes of performing the Services; (ii) respond promptly to any Company request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for MET to perform the Services in accordance with the requirements of these Terms and Conditions; (iii) provide such Customer materials or information as MET may request to carry out the Services in a timely manner and ensure that such Customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.

If MET’s performance of the Services is prevented or delayed by any act or omission of the Customer or its agents, subcontractors, consultants or employees, MET shall not be deemed in breach of its obligations under the Sales Documentation and these Terms and Conditions or otherwise liable for any costs, charges or losses sustained or incurred by the Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.

Amendment and Modification of Terms and Conditions

The Company reserves the right, in its sole discretion, to amend or modify these Terms and Conditions and such amended or modified Terms and Conditions shall be binding on the Customer. The Customer acknowledges and agrees that it has no right to amend or modify these Terms and Conditions.

Prices and Quotations

The Customer shall purchase the Goods and Services from the Company at the price set forth in the Customer’s Sales Documentation, which prices are subject to change without notice.

The Customer agrees to reimburse MET for all reasonable travel and out-of-pocket expenses incurred by MET in connection with the performance of the Services.

All prices are exclusive of applicable taxes (HST/GST as applicable), duties and charges of any kind imposed by any governmental authority on any amounts payable by the Customer.

Unless otherwise agreed to in writing by the Company, any sales quotation provided by the Company to the Customer is valid for a maximum period of 30 days from the date of the sales quotation. Due to current world market financial uncertainties and currency fluctuations, the Company does not guarantee its pricing on raw materials and out of country finishing and reserves the right, in its sole discretion, to revise any sales quotation within the 30 days from the date of the sales quotation.

The Customer acknowledges that the Company undertakes substantial work to prepare prototypes, samples, Proofs (as defined herein), ink draw downs and various other instruments at a cost to the Company that is built into the total price for the Goods and Services set forth in the Sales Documentation. In the event that the Customer does not proceed with placing a Purchase Order for the Goods and Services, the Customer shall be responsible for paying the Company full compensation for the substantial work performed, in an amount as reasonably determined by the Company in its sole discretion.

Payment Terms

Unless otherwise specified in the Sales Documentation, the Customer shall pay all amounts due to MET within 30 days from the date of MET’s invoice. The Customer shall make all payments hereunder by cash or cheque with approved credit and in Canadian or US dollars as reflected in such invoice. Any payment by the Customer using credit card is subject to a 3.5% administration fee.

MET may in its sole discretion implement additional payment terms including, but not limited to, the payment of deposits and additional amounts on completion of certain milestones during the production of the Goods or during the performance of Services. Additional payment terms specific to any one Purchase Order shall be set forth in MET’s Sales Documentation and explicitly agreed to by the Customer.

The Customer shall pay interest on all late payments at the rate of 24% per annum calculated daily and compounded monthly. The Customer shall reimburse the Company for all costs and expenses incurred in collecting any late payments, including, without limitation, legal fees. In addition to all other remedies available under these Terms and Conditions or at law (which the Company does not waive by the exercise of any rights hereunder), the Company shall be entitled to suspend the delivery of any Goods or performance of Services if the Customer fails to pay any amounts when due hereunder.

The Company reserves the right to discontinue and eliminate any price discounts or sales incentives offered to or agreed upon with the Customer, both retroactively and for future sales, in the event that the Customer fails to abide by the payment terms set forth in Section 9(a). Any price incentive or credit issued by the Company to the Customer is non-transferable and shall not be assigned by the Customer.

The Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with MET.

Proofs

Prior to proceeding with the production of the Goods, MET will supply a press or portable document format (“PDF”) proof (each a “Proof”) to the Customer if such Proof is requested by the Customer. The Customer shall be responsible for the following:

Carefully reviewing the Proof and clearly indicating all corrections to be made by MET by marking such corrections on the Proof or by describing all corrections in an email to MET;

Checking off the relevant instructions on the proofing tag;

Requesting a revised Proof for further review, if necessary;

Signing the proofing tag; and

Returning the Proof or any revised Proof to MET.

MET will proceed with the production of the Goods upon receipt of the Proof and the proofing tag marked by the Customer as “O.K.” or “O.K. with corrections” or if the Customer confirms acceptance of the Proof by indicating such acceptance to MET by email.

MET is not responsible for any design, spelling, or printing errors if:

The Customer fails to request a Proof for careful review;

The Customer refuses to accept the Proof;

The Customer fails to return the Proof with changes;

The Customer communicates changes verbally; or

The Goods are produced upon receipt of the Customer’s “O.K.” or “O.K. with corrections” or if the Customer confirms acceptance of the Proof by indicating such acceptance to MET by email.

Any changes, corrections or lost press time resulting from the Customer’s unreasonable delay will be charged to the Customer at MET’s current rates for press time.

Customer Specifications

The Customer is responsible for detailing all specifications and ensuring the accuracy of any materials, including, but not limited to, compiled files and artwork (the “Customer Specifications”). It is the Customer’s obligation to provide MET with the Customer Specifications before entering into a Purchase Order for the Goods and Services. The Customer agrees to fully compensate MET for additional labour and material costs resulting from any incomplete or incorrect Customer Specifications.

Orders

Purchase Orders cannot be cancelled by the Customer except on terms that will fully compensate MET and as expressly agreed to in writing by MET.

Purchase Orders can be cancelled by MET at any time by providing written notice to the Customer if MET reasonably determines that it will be unable to provide Goods or Services to the Customer in accordance with the Customer Specifications.

Inspection and Rejection of Non-Conforming Goods and Defective Services

The Customer shall inspect the Goods or review the performance of the Services within 3 business days of receipt of the Goods or Services being rendered (the “Inspection and Review Period”). The Customer will be deemed to have accepted the Goods or Services rendered unless it notifies MET in writing of any Non-Conforming Goods or Defective Services during the Inspection and Review Period and furnishes such written evidence or other documentation as reasonably required by MET. “Non-Conforming “Goods” means only Goods that are substantially different from the Proof provided by MET, if such Proof is requested by the Customer. Due to differences in equipment, paper, inks and other factors involved in proofing, operations and production of the Goods, MET is not responsible for minor variations including, but not limited to, colour variations between a Proof and the Goods delivered, and such minor variations in the Goods do not qualify as Non-Conforming Goods. “Defective Services” means only Services that are substantially different than the Services to be provided by MET. Services do not qualify as Defective Services if such Services are performed in accordance with generally recognized industry standards for similar services.

If the Customer notifies MET during the Inspection and Review Period of any Non-Conforming Goods and MET reasonably determines such Goods to be Non-Conforming Goods, MET shall, in its sole discretion, (i) replace such Non-Conforming Goods with conforming Goods, or (ii) credit or refund the price for such Non-Conforming Goods.

The Customer acknowledges and agrees that the remedies set forth in Section 13(b) are the Customer’s exclusive remedies for the delivery of Non-Conforming Goods. Except as provided under Section 13(b), all sales of Goods to the Customer are made on a one-way basis and the Customer has no right to return the Goods to MET.

If the Customer notifies MET during the Inspection and Review Period of any Defective Services and MET reasonably determines such Services to be Defective Services, MET shall, in its sole discretion, (i) repair or re-perform the applicable Services, or (ii) credit or refund the price for such Defective Services.

The Customer acknowledges and agrees that the remedies set forth in Section 13(d) are the Customer’s exclusive remedies for the performance of Defective Services.

Alterations to Goods

Any alteration by the Customer to the Goods described in the Sales Documentation and as produced in a Proof, if such Proof is requested by the Customer, is an alteration. Alterations will be charged to the Customer at rates determined by MET, which rates are available upon request. If MET receives raw materials that deviate from the specifications set out in the Sales Documentation, MET shall notify the Customer prior to proceeding with the production of the Goods.

Alterations to Services

If the Customer wishes to change the scope or performance of the Services, it shall submit details of the requested change to MET in writing. MET shall, within a reasonable time after such request, provide a written estimate to the Customer of (i) the likely time required to implement the change; (ii) any necessary variations to the fees and other charges for the Services arising from the change; (iii) the likely effect of the change on the Services; and (iv) any other impact the change might have on the performance of the Services. The Customer and Company shall agree in writing on the terms of the change in scope or performance of the Services in accordance with Section 7.

Notwithstanding anything to the contrary contained in these Terms and Conditions, MET may, from time to time change the Services without the consent of the Customer provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Sales Documentation.

Copyright and Trademark

The Customer is responsible for ensuring that all materials supplied to MET for the production of Goods and the provision of Services do not violate copyright or trademark restrictions. MET assumes no liability whatsoever for the Customer’s use or misuse of copyright or trademark materials.

Limitation of Liability

In no event shall MET’s aggregate liability arising out of or related to the Sales Documentation and these Terms and Conditions, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed the total amount paid to MET for the Goods and Services sold hereunder or $10,000, whichever is less.

Indemnification

The Customer shall indemnify and hold harmless MET from any and all loss, cost, expense and damages on account of any and all manner of claims, demands, action and proceeding that may be commenced against MET on grounds alleging that the production of Goods or provision of Services directly or indirectly violates copyright, trademark, or any proprietary right of any person, or that it contains any matter that is libelous or scandalous, or invades any persons right to privacy or other personal rights except to the extent that MET contributed to the matter. The Customer agrees to, at the Customer’s own expense, promptly defend and continue the defence of any such claim, demand, action or proceeding that may be brought against MET.

Compliance with Law

The Customer shall comply with all applicable laws, regulations and ordinances. The Customer shall maintain in effect all licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Sales Documentation and these Terms and Conditions.

Termination

In addition to any remedies that may be provided under these Terms and Conditions, MET may terminate a Purchase Order with immediate effect upon written notice to the Customer, if the Customer: (i) fails to pay any amount when due under the Purchase Order and these Terms and Conditions and such failure continues for 7 days after Customer’s receipt of written notice of non-payment; (ii) has not otherwise performed or complied with any of these Terms and Conditions, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

Waiver

No waiver by MET of any of the provisions of these Terms and Conditions is effective unless explicitly set forth in writing and signed by MET. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms and Conditions operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

Confidential Information

All non-public, confidential or proprietary information of MET, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, pricing, discounts or rebates, disclosed by MET to the Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with the Sales Documentation and these Terms and Conditions is confidential, solely for the use of performing the agreement and may not be disclosed or copied unless authorized in advance by MET in writing. Upon MET’s request, the Customer shall promptly return all documents and other materials received from MET. MET shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain, or (b) known to the Customer at the time of disclosure. The Customer’s obligations under this Section 22 shall survive the termination of the Sales Documentation and these Terms and Conditions.

Force Majeure

MET shall not be liable or responsible to the Customer, nor be deemed to have defaulted or breached the terms of the Sales Documentation and these Terms and Conditions, for any failure or delay in fulfilling or performing any term of the Sales Documentation or these Terms and Conditions when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of MET including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labour disputes, or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 60 days, the Customer shall be entitled to give notice in writing to MET to terminate the entire agreement between MET and the Customer.

Assignment

The Customer shall not assign any of its rights or delegate any of its obligations under the Sales Documentation and these Terms and Conditions without the prior written consent of MET. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the Customer of any of its obligations under the Sales Documentation or these Terms and Conditions.

Relationship of the Parties

The relationship between MET and the Customer is that of independent contractors. Nothing contained in the Sales Documentation and these Terms and Conditions shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

Governing Law

The Sales Documentation and these Terms and Conditions shall in all respects be governed by and construed in accordance with the laws of the Province of British Columbia and the laws of Canada applicable therein. The courts of British Columbia shall have the exclusive jurisdiction to hear any matters arising in connection with the Sales Documentation or these Terms and Conditions, including all exhibits, schedules, attachments, and appendices attached thereto, and each party irrevocably submits and attorns to the exclusive jurisdiction of the courts of British Columbia. MET and Customer’s obligations under this Section 26 shall survive the termination of the Sales Documentation and these Terms and Conditions.

Notices

All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in the Sales Documentation or to such other address that may be designated by the receiving party in writing. Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email if sent during the addressee’s normal business hours, and on the next business day if sent after the addressee’s normal business hours; and (d) on the 5th day after the date mailed by certified or registered.

Severability

If any provision in the Sales Documentation or in these Terms and Conditions is held to be unenforceable, such provision shall be severed from the Sales Documentation or these Terms and Conditions. The other provisions of the Sales Documentation and these Terms and Conditions shall be construed as if such unenforceable provision had never been contained in it.