Terms and Conditions

Terms and Conditions of Sale

  1. TERMS & CONDITIONS OF SALE. The goods that are the subject of a sale by Poster Compliance Center, LCC (hereinafter, “PCC”) to Buyer are referred to herein as the “Products,” the services sold by PCC to Buyer are referred to herein as the “Services.”  All sales of Products or Services by PCC are governed by and subject to (a) PCC’s unexpired quotation, order acknowledgement, or a separate written agreement signed by an authorized representative of PCC, as applicable, and (b) these terms and conditions.   Any irreconcilable conflict between these terms and conditions and any terms in PCC’s quotation, order acknowledgement, or the separate written and signed agreement shall be resolved in favor of the quotation, order acknowledgement, or the separate written and signed agreement.  Except as otherwise agreed to by an authorized representative of PCC in writing, the terms and conditions set forth herein, together with PCC’s unexpired quotation, order acknowledgement, or a separate written and signed agreement, as applicable, shall constitute the complete and final agreement between PCC and Buyer (hereinafter, this “Agreement”), superseding completely any prior oral or written communications between PCC and Buyer regarding the subject matter.
  2. PCC’s acceptance of Buyer’s purchase order or commencement of performance shall not constitute acceptance of any of Buyer’s preprinted terms and conditions. TERMS ADDITIONAL TO OR DIFFERENT FROM THESE TERMS AND CONDITIONS, INCLUDING BUT NOT LIMITED TO TERMS CONTAINED IN BUYER’S PURCHASE ORDER OR BUYER’S STANDARD TERMS AND CONDITIONS OF PURCHASE, ARE DEEMED MATERIAL AND HEREBY REJECTED UNLESS OTHERWISE ACCEPTED BY PCC IN WRITING.
  3. BUYER’S ASSENT TO THESE TERMS AND CONDITIONS. Buyer’s assent to these terms and conditions shall be conclusively presumed from Buyer’s (1) receipt of PCC’s order acknowledgment without written objection sent to PCC within ten (10) days after Buyer’s receipt thereof, (2) instructing PCC to begin work or to ship any of the Products after receipt of PCC’s order acknowledgement, (3) acceptance of or payment for all or any part of the Products, or (4) taking any other action evidencing Buyer’s acceptance of the benefits of the agreement between the parties. PCC may commence performance in reliance upon Buyer’s acceptance of these terms and conditions, and PCC will not be obligated to fulfill an order or request for the Products or Services, unless PCC affirmatively acknowledges such order.
  4. MODIFICATION. No modification of this Agreement or waiver of any of its terms will be binding on PCC, unless clearly expressed in writing and signed by an authorized representative of PCC.
  5. TERMINATION OR CANCELLATION.  PCC shall have the right to terminate and cancel this Agreement if PCC determines that Buyer’s credit is not satisfactory or for any other reason.  Any such termination or cancellation shall be effective upon notification (either orally or in writing) to Buyer and shall be without liability to PCC.  Buyer may not cancel this Agreement once PCC has commenced manufacturing of Products.  Prior to commencement of manufacture, orders may only be cancelled upon payment to PCC of the cost of raw materials, component parts, engineering and administrative time an supplies on which commitments have been made, as well as the profit which PCC would have made on the completed order.
  6. DELIVERY, FREIGHT AND RISK OF LOSS. All deliveries are Ex Works (Incoterms 2020) PCC’s facility freight prepaid or freight collect to destination. Unless otherwise agreed in writing, PCC may, in its sole discretion, select the shipping method, the carrier and the applicable freight charges. If Buyer desires to pick up the Products at PCC’s facility, Buyer must contact PCC to arrange a mutually convenient time for pick up. Title to the Products and risk of loss to the Products shall pass to the Buyer at the point of shipment from PCC’s facility, whether freight prepaid or freight collect to destination, regardless of which party selects the carrier and arranges the freight charges or particulars of shipment. Risk of loss for damage or delay in transit shall be borne by Buyer. Buyer shall file and pursue any claims directly with the carrier related to loss, damage or delay in transit, and Buyer shall not assert such claims against PCC or deduct from amounts owing to PCC.
  7. RELEASE OF GOODS FOR SHIPMENT. Buyer must release the Products for shipment within twenty (20) days after PCC notifies Buyer that those items are ready for shipment. After such 20-day period, Buyer will pay a holding charge determined in good faith by PCC and/or PCC may ship the Products to Buyer without further notification. Buyer agrees to accept delivery of all shipped Products and to pay the applicable price. PCC has the right to sell or scrap any Products without notice to Buyer if Buyer has not released the Products for shipment within forty-five (45) days after PCC notifies Buyer that the Products are ready for shipment, and Buyer shall be responsible for any difference between the agreed purchase price and the sale price or the scrap allowance. With respect to any order of a single item of a truckload or less, Buyer must release the entire order for shipment at one time or pay the additional LTL charges required by PCC.
  8. DELAYS AND CANCELLATIONS BY BUYER. “Delay/Cancellation Costs” include all labor, materials, overhead, general and administrative costs, restocking charges, surcharges levied on material by outside suppliers, sub-vendor cancellation charges, excess inventory charges, value of storage space, inventory tax charges, banking and finance charges, scrapping and disposal fees, and other harm, costs and charges incurred directly or indirectly by PCC in connection with a delay or cancellation of an order for the Products or Services. The “Firm Order Period” is determined according to, as applicable, the quotation, order acknowledgement or separate written and signed agreement. If there is no quotation, order acknowledgement or separate written and signed agreement, or if none of those items specifies the Firm Order Period, the Firm Order Period will be determined according to PCC’s then current cancellation and orderbook management policy. If a Firm Order Period cannot be determined in any of the preceding methods, the entire order will be considered to be within the Firm Order Period. Buyer is not entitled, without PCC’s prior written consent, which may be withheld or conditioned in PCC’s sole discretion, to cancel or delay a delivery of the Products for all or any part of an order within the Firm Order Period. PCC may treat as a cancellation any proposed delay greater than 60 days. If PCC consents to the cancellation or delay, Buyer shall pay a cancellation or delay charge in an amount determined in PCC’s sole discretion to reflect all applicable Delay/Cancellation Costs, including, at a minimum, a storage charge, inventory carrying costs, financing costs associated with the finished Products, work in process and raw materials, and costs of inactive labor, from the original request date until the time of delivery or performance. In the case of cancellation, the charge may also include, at PCC’s sole discretion, a reasonable and equitable profit for PCC. If PCC’s work on an order requires material from Buyer or a third party selected by Buyer, and PCC does not timely receive material that strictly conforms to PCC’s requirements, including chemical composition, physical properties and dimensions, PCC may delay performance of or cancel the order without liability, and Buyer shall compensate PCC for all Delay/Cancellation Costs, including for costs incurred and time expended working on non-conforming material.
  9. SPECIFICATIONS. The material specifications, quality requirements, or any other aspect of the Products and the Services or their manufacture (the “Product Specifications”) is controlled by PCC’s unexpired quotation, order acknowledgement, or separate written and signed agreement. If any of the Product Specifications in PCC’s unexpired quotation, order acknowledgement, or separate written and signed agreement differ materially from the Product Specifications requested by Buyer, PCC may, in its sole discretion, require that Buyer provide a written acknowledgment and acceptance of the Product Specifications in PCC’s quotation, order acknowledgement, or separate written and signed agreement prior to the manufacture or delivery of the Products or Services.  Buyer is not entitled, without PCC’s prior written consent, which may be granted or withheld in PCC’s sole discretion, to make any changes to Product Specifications in PCC’s quotation, order acknowledgement, or separate written and signed agreement. If PCC consents to the change, PCC may condition its consent on Buyer’s agreement to price adjustments and other compensating payments satisfactory to PCC. In addition to all other remedies available to it under applicable law, PCC may refuse to comply with any change to which PCC has not given its prior written consent.
  10. GOVERNMENT CONTRACTS. If Buyer is purchasing the Products or Services for a government contract or sub-contract, Buyer shall promptly notify PCC of that fact and of any contractual terms from the government procurement laws and regulations that Buyer is obligated to include in its contracts for such Products or Services. No government procurement provisions will be included in this Agreement unless agreed to in a writing signed by an authorized representative of PCC.
  11. PURCHASE PRICE. The purchase price of the Products or Services shall be as stated in PCC’s unexpired quotation, order acknowledgement, or separate written agreement signed by an authorized representative of PCC, as applicable. Unless agreed by PCC in writing, the purchase price does not include shipment costs. If the Products are shipped freight prepaid, the charge for freight shall be added to the invoice. Prices are based on and assume Buyer’s compliance with all of the terms and conditions of this Agreement, including a promise by Buyer to purchase a particular mix of goods, a certain quantity of goods, or a certain percentage of Buyer’s requirements for the goods. PCC may adjust prices, in its sole discretion, if the circumstances do not coincide with the forgoing assumptions. In addition, PCC may at any time adjust prices based on changes to energy costs, raw material costs, labor costs and exchange rates.
  12. PAYMENT TERMS. Payment terms are net 30 days, with no discount allowed on transportation charges. Interest will accrue on invoices unpaid after the net due date at the annual rate of 12% or the maximum legal contract interest rate, whichever is less.
  13. SURCHARGES; PRICE ADJUSTMENTS. For purchases made pursuant to a separate written agreement signed by an authorized representative of PCC, if PCC announces a surcharge, such surcharge shall become effective for the Products scheduled for shipment beginning on the date set forth in PCC’s announcement of such surcharge or, if there is no such date, immediately upon such announcement. For all other purchases, including, but not limited to, spot purchases: (i) if PCC announces a general price increase, such price increase shall become effective for the Products scheduled for shipment beginning on the date set forth in PCC’s announcement of such price increase or, if there is no such date, immediately upon such announcement; and (ii) if PCC announces a surcharge, such surcharge shall become effective for the Products scheduled for shipment beginning on the date set forth in PCC’s announcement of such surcharge or, if there is no such date, immediately upon such announcement.
  14. TAXES. Prices do not include any taxes or other assessments. All taxes, duties, fees, assessments or other charges of any kind imposed by any federal, state, municipal or other governmental authority which PCC is required to collect or pay with respect to the provision, production, sale or shipment of the Products or Services shall be the responsibility of Buyer. Buyer agrees to pay all such taxes and further agrees to reimburse PCC for any such payments made by PCC. Buyer hereby affirms that it is purchasing the Products referenced herein for resale, and/or that Buyer is not the end user of the Products, so as to be exempt from any otherwise applicable sales tax.
  15. FAILURE OF PAYMENT. If Buyer fails to make payment in full or in part when due or refuses to pay any applicable price increases or surcharges, PCC shall have the right to: (i) immediately suspend performance and cancel the unfinished portion of any outstanding orders, (ii) declare all unpaid amounts for the Products delivered immediately due and payable, and (iii) withhold further deliveries. If PCC elects to proceed with an order after the suspension of performance, PCC shall have an extension of time for performance as is necessitated by the suspension. PCC shall have the right to enforce payment of the full purchase price, including any price increase or surcharge, for Products already delivered or in process. Buyer shall reimburse PCC for all costs of collection, including reasonable attorney’s fees, incurred as a result of Buyer’s failure to make payments when due.
  16. BUYER’S FINANCIAL CONDITION. First time customers may be required, in PCC’s sole discretion, to supply a current financial statement, three trade references, and/or completed credit questionnaire. PCC shall have the right, by written notice, to suspend performance, terminate this Agreement, cancel any order, modify any payment terms, or require full or partial payment or adequate assurance of performance from Buyer, without liability to PCC, in the event of a material adverse change in the Buyer’s financial condition or if reasonable grounds for insecurity arise with respect to Buyer’s performance of this Agreement, evidence of which might include, among other things, (i) a default under any of Buyer’s financing agreements, (ii) Buyer’s inability to obtain financing, (iii) a reduction in Buyer’s credit rating by a recognized rating agency, (iv) Buyer’s insolvency, (v) the filing of a bankruptcy by or against Buyer (whether voluntary or involuntary), (vi) the appointment of a receiver or trustee for Buyer, (vii) the execution by Buyer of an assignment for the benefit of creditors, (viii) the failure by Buyer to make a payment to PCC when due, or (viii) any other event which raises reasonable doubts as to Buyer’s creditworthiness. The modifications PCC may make to payment terms include shortening the payment period, requiring advance payment, or requiring payment of cash on delivery. PCC shall notify Buyer in writing of any modifications to payment terms, which may be made retroactive to include amounts then accrued but unpaid. PCC reserves the right to cancel Buyer’s credit at any time for any reason, without notice.
  17. SETOFF. PCC shall have the right to credit toward the payment of any monies that may become due Buyer hereunder any amounts which may now or hereafter be owed to PCC. Buyer shall pay PCC’s invoices without discount, setoff or reduction for any reason, including asserted warranty claims or other claims of non-performance by PCC.
  18. ACCORD AND SATISFACTION. Checks or payments, whether full or partial, received from or for the account of Buyer, regardless of writings, legends or notations upon such checks or payments, or regardless of other writings, statements or documents, shall be applied by PCC against the amount owing by Buyer with full reservation of all PCC’s rights and without an accord and satisfaction of Buyer’s liability.
  19. LIMITED WARRANTY. EXCEPT AS EXPRESSLY SET FORTH IN PCC’S UNEXPIRED QUOTATION, ORDER ACKNOWLEDGEMENT OR SEPARATE WRITTEN AND SIGNED AGREEMENT, PCC MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH ARE EXPRESSLY DISCLAIMED. AT PCC’S DISCRETION, BUYER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THE CONFORMANCE OF ANY PRODUCTS FURNISHED BY PCC UNDER THIS AGREEMENT SHALL BE LIMITED TO EITHER: (1) REPLACEMENT OF SUCH PRODUCTS AT THE POINT OF SHIPMENT FROM PCC’S FACILITY, OR (2) REPAYMENT OF OR CREDIT AGAINST THE PURCHASE PRICE OF SUCH PRODUCTS UPON AUTHORIZED RETURN THEREOF. In the event PCC has authorized Buyer to scrap all or any portion of the Products, the scrap allowance is to be credited to PCC. The employees and representatives of PCC are not authorized to make any statement or representation as to the Products inconsistent with this Agreement and no such statements made will be binding upon PCC or be grounds for any claim.
  20. NON-CONFORMING GOODS. No claim for damages for non-conforming Products will be allowed unless Buyer provides PCC with written notice of the claim within sixty (60) days of the date the Products were delivered to Buyer. To assert such a claim, Buyer must (a) at PCC’s request, return to PCC 100% or, if agreed by PCC, a lesser but still statistically relevant percentage of the Products claimed to be non-conforming, and (b) provide reasonable evidence to support the claim, including, if requested by PCC, results of diagnostic tests, evaluations and investigations performed by Buyer or Buyer’s customer. Products for which damages are claimed shall not be returned, repaired, or discarded without PCC’s prior written consent. If requested by PCC, the non-conforming Products must be returned to PCC at Buyer’s expense within ten (10) days of PCC’s request. No claims, rejections or returns for non-conforming Products will be permitted unless Buyer cooperates in full with PCC’s technical personnel to determine the cause of the non-conformance.
  21. SHORTAGE OF GOODS OR DAMAGED GOODS. Claims by Buyer with respect to shortage of Products invoiced or for damaged Products must be made to PCC in writing no later than sixty (60) days from the date the Products were delivered to Buyer. All claims must be made only for substantial cause, must be in writing, and must specify the reason(s) for the claim. THE FAILURE TO NOTIFY PCC OF ANY CLAIM WITHIN THE TIME PERIOD SPECIFIED BY THIS SECTION SHALL CONSTITUTE A WAIVER OF AND BAR SUCH CLAIM. PCC SHALL INCUR NO LIABILITY FOR SHORTAGE OR DAMAGE ALLEGED TO HAVE OCCURRED OR EXISTED AT OR PRIOR TO DELIVERY TO THE CARRIER UNLESS BUYER SHALL HAVE ENTERED FULL DETAILS THEREOF ON CARRIER’S DELIVERY RECEIPT WHICH MUST BE SIGNED BY THE CARRIER’S AGENT. PCC MUST BE GIVEN AN OPPORTUNITY TO INVESTIGATE THE CLAIM BEFORE BUYER DISPOSES OF THE PRODUCTS. ANY DAMAGED PRODUCTS SHALL NOT BE RETURNED, REPAIRED OR DISCARDED WITHOUT PCC’S WRITTEN PERMISSION.
  22. TECHNICAL ADVICE. PCC assumes no obligation or liability for any technical advice furnished to Buyer, including without limitation technical advice with respect to the use of the Products, all such technical advice being given and accepted at Buyer’s risk. PCC will not be liable for any damages of any kind arising out of or relating to the use of or the inability to use the information provided, including but not limited to any special, indirect, incidental or consequential damages including, without limitation, demurrage charges, cost of shipment, downtime, lost profits (whether direct or indirect), or lost sales, whether foreseeable or not, and even if PCC has been advised of the possibility of damages.
  23. INTELLECTUAL PROPERTY. Nothing in this Agreement is to be construed as a grant or assignment of any license or other right to Buyer of any of PCC’s or its affiliates’ intellectual property rights, whether patent, trademark, trade secret, copyright or otherwise. All improvements and developments related to the Products or the efforts of PCC and Buyer will be owned exclusively by PCC, and Buyer shall reasonably cooperate with PCC in confirming that result.
  24. CONFIDENTIALITY. Any pricing or other sensitive commercial information provided by PCC to Buyer is proprietary to PCC and shall be held in confidence by Buyer, shall only be used by Buyer in connection with this sale, and shall not be used for any other purposes or disclosed to third parties without PCC’s prior written consent. Buyer shall be liable for any loss to PCC or commercial gain by others from unauthorized use of confidential information occasioned by Buyer’s failure to comply with this provision.
  25. AUDIT. Unless otherwise agreed to in writing by an authorized representative of PCC, Buyer shall have no right to audit any books or records of PCC and Buyer shall have no right to enter into any facility owned or controlled by PCC.
  26. LIMITATION OF LIABILITY. PCC’S LIABILITY, WHETHER IN CONTRACT, IN TORT, UNDER WARRANTY, IN NEGLIGENCE, OR OTHERWISE, SHALL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCTS OR SERVICES, AND UNDER NO CIRCUMSTANCES SHALL PCC BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, DEMURRAGE CHARGES, COSTS OF SHIPMENT, DOWNTIME, LOST PROFITS (WHETHER DIRECT OR INDIRECT), LOST SALES, DAMAGE TO EQUIPMENT, OR CLAIMS OF BUYER’S CUSTOMERS OR OTHER THIRD PARTIES FOR DAMAGES OR PENALTIES, WHETHER OR NOT BUYER IS LEGALLY OBLIGATED TO PAY THEM. PCC’S LIABILITY HEREUNDER SHALL BE LIMITED TO EITHER: (1) THE OBLIGATION TO REPAIR OR REPLACE, AT PCC’S SOLE DISCRETION, ONLY THOSE PORTIONS OF THE PRODUCTS PROVEN TO HAVE FAILED TO MEET IN MATERIAL RESPECT THE SPECIFICATIONS ON THE PCC’S QUOTATION, ORDER ACKNOWLEDGEMENT, OR SEPARATE WRITTEN AND SIGNED AGREEMENT AT THE TIME OF SHIPMENT FROM PCC’S FACILITY, OR (2) REPAYMENT OF OR CREDIT AGAINST THE PURCHASE PRICE OF THE PRODUCTS OR SERVICES. PCC AND BUYER EXPRESSLY AGREE TO THIS ALLOCATION OF RISK AND THE PRICE STATED FOR THE PRODUCTS OR SERVICES IS CONSIDERATION FOR THE LIMITATION ON PCC’S LIABILITY. THIS DISCLAIMER AND EXCLUSION WILL APPLY EVEN IF THE EXCLUSIVE REMEDY DESCRIBED IN THIS SECTION FAILS ITS ESSENTIAL PURPOSE.
  27. INDEMNIFICATION.  Buyer agrees to indemnify, defend and hold harmless PCC, its directors, officers, employees, agents, successors and/or assigns from and against any and all damages, losses, expenses, costs (including without limitation reasonable attorney’s and accountant’s fees), claims, suits, actions, judgments or other liability asserted against or incurred by PCC arising out of (a) Buyer’s use of the Products or Services for any purpose other than disclosure or display of Product and Product contents, to inform employees of applicable labor laws.
  28. INDEMNIFICATION PROCEDURE.  The Party seeking indemnification (the “Indemnitee”) under this Agreement shall promptly notify the other Party (the “Indemnitor”) in writing of any claim, complaint, suit, proceeding or cause of action with respect to which the Indemnitee intends to claim such indemnification (for purposes of this Section 28, each a “Claim”), and the Indemnitor shall have sole control of the defense and/or settlement thereof; provided that the Indemnitee shall have the right to participate, at its own expense, with counsel of its own choosing in the defense and/or settlement of such Claim. The indemnification obligations of the Parties shall not apply to amounts paid in settlement of any Claim if such settlement is effected without the consent of the Indemnitor. The failure to deliver written notice to the Indemnitor within a reasonable time after the commencement of any such Claim, if prejudicial to its ability to defend such action, shall relieve such Indemnitor of liability to the Indemnitee. The Indemnitee, and its employees, at the Indemnitor’s request and expense, shall provide full information and reasonable assistance to Indemnitor and its legal representatives with respect to such Claims covered by this indemnification.
  29. FORCE MAJEURE. PCC shall not be responsible for cancellation or delay in delivery or performance resulting, in whole or in part, from causes beyond its reasonable control, including, but not limited to: acts of God; acts of Buyer; strikes or other labor disturbances regardless of whether or not PCC is capable of settling such strike or disturbance; mill or facility conditions; temporary or permanent mill or facility closures; equipment failure; inability to obtain fuel, material, or parts; war; acts of terrorism; sabotage; riot; delays in transportation; repairs to equipment; natural disasters; epidemics; pandemics; floods; fires; action of governmental authorities (valid or invalid); severe weather conditions; accidents; explosions; failure of or inability to obtain power, raw materials, suppliers, labor, equipment or transportation; a court or administrative injunction or order; or any other contingency the non-occurrence of which was a basic assumption on which this Agreement was made.
  30. GOVERNING LAW; FORUM SELECTION. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the Commonwealth of Massachusetts, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Buyer, acting for itself and its successors and assigns, hereby expressly and irrevocably consents to the exclusive jurisdiction of the state and federal courts having authority over the territory of Boston, Massachusetts, for any litigation which may arise out of or be related to this Agreement or the purchase or use of the Products or Services. Any action brought in any such court may not be transferred or removed to any other court. Buyer waives any objection based upon forum non-conveniens or any objection to venue of any such action.
  31. STATUTE OF LIMITATIONS. BUYER AND PCC AGREE THAT, UNLESS OTHERWISE SPECIFIED IN THIS AGREEMENT, ANY ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT OR THE SALE OF THE PRODUCTS OR SERVICES MUST BE BROUGHT WITHIN ONE YEAR AFTER THE DATE ON WHICH THE PRODUCTS IN QUESTION WERE DELIVERED TO BUYER OR THE DATE ON WHICH THE EVENT GIVING RISE TO THE ACTION OCCURRED, WHICHEVER IS EARLIER.
  32. DISPUTE RESOLUTION.  Buyer and PCC will attempt in good faith to resolve promptly any dispute arising out of or relating to this Agreement or the breach thereof. If a dispute should arise, BUYER AND PCC AGREE TO SUBMIT THE DISPUTE TO MEDIATION. BUYER AND PCC FURTHER AGREE THAT THEIR PARTICIPATION IN MEDIATION IS A CONDITION PRECEDENT TO ANY PARTY PURSUING ANY OTHER AVAILABLE REMEDY IN RELATION TO THE DISPUTE. Mediation involves no formal court procedures or rules of evidence, and the mediator does not have the power to render a binding decision or force an agreement on the parties. Buyer and PCC agree that the entire mediation procedure will be confidential. Buyer or PCC must give written notice of their desire to commence mediation, and a mediation session must take place within forty-five (45) days after the date such notice is given. The mediation shall be attended by representatives of each party with authority to resolve the dispute, and counsel for the parties shall not attend the mediation unless otherwise agreed to by the parties. Buyer and PCC will jointly appoint a mutually acceptable and neutral mediator. If Buyer and PCC are unable to agree upon the appointment of a mediator within seven (7) days after notice of desire to mediate is given, Buyer or PCC may apply to the American Arbitration Association for appointment of a mediator. The mediation shall be held in Cleveland, Ohio. Buyer and PCC agree that the expenses of mediation shall be borne equally by both parties.
  33. NONWAIVER. The failure of PCC to enforce any of the provisions of this Agreement shall not be construed as a waiver of PCC’s right to enforce each and every provision hereof. PCC reserves the right to enforce these terms and conditions at any time and none shall be deemed waived unless such waiver is in writing signed by an authorized representative of PCC. PCC’s rights and remedies set forth in this Agreement are in addition to all legal and equitable rights and remedies available to PCC.
  34. ASSIGNMENT OR DELEGATION. Buyer shall not assign or delegate any or all of its rights or obligations under this Agreement without the prior written consent of PCC, and any attempt to do so will be ineffective.
  35. NO THIRD PARTY RIGHTS.  This Agreement is for the sole and exclusive benefit of the parties hereto and their permitted successors and assigns. Nothing expressed or referred to in this Agreement will be construed to give any other person any legal or equitable right, remedy or claim under or with respect this Agreement.
  1. INDEPENDENT PARTIES. PCC and Buyer are independent parties and nothing in this Agreement shall make either party an agent, partner, joint venturer, or legal representative of the other. Buyer agrees that no joint venture, partnership, employment, or agency relationship exists between you and PCC as a result of this Agreement.

 

  1. HEADINGS. The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
  2. SEVERABILITY.  If any provision or part of a provision of this Agreement is declared invalid, illegal, or unenforceable under applicable law, the affected provision will be considered omitted or modified to conform to applicable law. The validity, legality, and enforceability of all other remaining provisions or parts of provisions will remain in full force and effect.
  3. INTERNATIONAL TRADE.  PCC makes no representation with respect to the country of origin, qualification for duty preference or similar program, specific Harmonized Tariff Schedule Number, export jurisdiction, U.S. Munitions List category, Export Control Classification Number, or export authority of any good. PCC retains all of its duty drawback rights, and any attempt by Buyer to transfer any such rights will be void. Buyer shall not, itself or by any freight forwarder, customs broker or other agent or third party under Buyer’s direction or control, designate PCC as the U.S. Principal Party in Interest (as defined in the U.S. Foreign Trade Regulations, 15 CFR Part 30) or file the Electronic Export Information with U.S. Bureau of Census (“EEI”), unless otherwise agreed in writing by an authorized representative of PCC. If Buyer files an EEI without the prior written consent required by the preceding sentence, then: (i) the EEI will be considered to have been made without PCC’s authority or permission, and any false statements to the government will be considered to have been made by Buyer or its agent, as applicable, (ii) any affected transaction will be considered to be a routed export transaction, such that Buyer or its agent will be considered the U.S. Principal Party in Interest and exporter of record (as defined by the Foreign Trade Regulations and the Export Administration Regulations) for those transactions, (iii) Buyer shall assume all of the responsibilities of the exporter of record for any such transactions; and (iv) PCC will have no responsibility as the exporter of record. Buyer represents that it is not, and to the best of Buyer’s knowledge, its customers, its customers’ end-users and its agents are not, subject to any U.S. or other government sanction or restriction that would prohibit the sale or export by PCC of the Products or Services. Upon PCC’s request, Buyer shall provide all end-user and end-use information of which it is aware or which it could obtain with commercially reasonable efforts. Buyer shall comply strictly with all applicable U.S. export laws and regulations, and Buyer shall assist PCC in complying and documenting compliance with any applicable U.S. export laws, regulations and executive orders. Regardless of any statements on Buyer’s purchase order or other documents to the contrary, PCC shall not be the importer of record (as that term is defined by U.S. law at 19 USC 1484, or equivalent provision of non-U.S. law) with respect to a transaction governed by this Agreement, unless otherwise agreed in writing by an authorized representative of PCC.

For Buyer’s who purchase PCC’s 1 Year Poster Compliance Warranty Program, the following additional terms (the “Compliance Warranty Plan”) shall apply:

  1. Throughout the term of your Compliance Plan subscription (the “Warranty Period”) warrants all labor law compliance posters, and any associated updates thereto, delivered by PCC to Buyer (hereinafter, the “Purchased Posters”) shall be legally accurate and include all mandated federal and state employment law notices for general business[1]. For any breach of the foregoing warranty PCC shall reimburse Customer for all fines actually paid by Customer up to an aggregate amount of $25,000.00 US dollars.  The preceding remedy is available to Customer only if (i) Poster Compliance Center is notified in writing by Customer of the applicable fines paid no later than ten (10) business days after Customer’s payment thereof, (ii) Customer provides Poster Compliance Center reasonable documentation detailing the related violation and Customer’s payment thereof, and (iii) Customer provides Poster Compliance sufficient evidence the Purchased Posters were properly displayed in accordance with applicable laws.
  2. The foregoing warranty does not apply a) to any notices required solely for specified industry(ies), type or sector of commerce, b) to any Purchased Poster (including updates thereto) that has not been properly displayed by Customer within 2 business days of Customer’s receipt and remains properly displayed throughout the then remaining Compliance Plan subscription term, and c) any violations paid by Customer for posters not received from Poster Compliance Center.

For Buyer’s who purchase PCC’s Virtual Compliance Guide on-line services (the “VCG Service”), the following additional terms (hereinafter, the “VGC Service Terms”) shall apply with respect to such VGC Service:

  1. The VCG Service is a web service delivered by the postercompliance.com website (hereinafter, the “Site”), which is comprised of various web pages operated by PCC. The VCG Service is provided to Buyer conditioned on Buyer’s acceptance without modification of the terms, conditions, and notices contained in this Section.  Buyer’s use of the VCG Service constitutes Buyer’s agreement to these additional terms.

 

  1. VCG Service is an on-line information service, which enables Buyer and/or Buyer’s authorized users, online access to view mandatory state labor law posters for all states Buyer subscribes, enabling Buyer to “virtually display” mandated labor law posters for Buyer’s employees, providing the ability to notify employees, who work virtually and have no physical office with which to view such posters.

 

  1. ELECTRONIC COMMUNICATIONS. Visiting postercompliance.com or sending emails to PCC constitutes electronic communications. You consent to receive electronic communications and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically, via email and on the Site, satisfy any legal requirement that such communications be in writing.

 

  1. BUYER’S ACCOUNT. If Buyer uses the VCG Service, Buyer is responsible for maintaining the confidentiality of Buyer’s account and password and for restricting access to Buyer’s account; Buyer accepts responsibility for all activities that occur under Buyer’s account or password. Buyer may not assign or otherwise transfer Buyer’s account to any other person or entity. Buyer acknowledges that PCC is not responsible for third party access to Buyer’s account that results from theft or misappropriation of such account. PCC reserves the right to refuse or cancel service, terminate accounts, or remove or edit content in our sole discretion.

 

  1. CHILDREN UNDER 18. PCC does not knowingly collect, either online or offline, personal information from persons under the age of thirteen. If you are under 18, you may use postercompliance.com only with permission of a parent or guardian.

 

  1. LINKS TO THIRD PARTY SITES/THIRD PARTY SERVICES. The Site and/or the VCG Service may contain links to other websites (“Linked Sites”). The Linked Sites are not under the control of PCC and PCC is not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site.  PCC is providing these links to Buyer solely as a convenience, and the inclusion of any link does not imply endorsement by PCC of the site or any association with its operators.

 

  1. Certain services made available via the Site postercompliance.com are delivered by third party sites and organizations. By using any product, service or functionality originating from the postercompliance.com domain, you hereby acknowledge and consent that PCC may share such information and data with any third party with whom PCC has a contractual relationship to provide the requested product, service or functionality on behalf of postercompliance.com users and customers.

 

  1. NO UNLAWFUL OR PROHIBITED USE/INTELLECTUAL PROPERTY. Buyer is granted a non-exclusive, non-transferable, revocable license to access and use VCG Service and/or the Site strictly in accordance with these terms of use. As a condition of Buyer’s use of the VCG Service or the Site, Buyer warrants to VCG that Buyer will not use the VCG Service or the Site for any purpose that is unlawful or prohibited by these VCG Service Terms. You may not use the VCG Service or the Site in any manner which could damage, disable, overburden, or impair the Site or interfere with any other party’s use and enjoyment of the Site. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the VGC Service or the Site.

 

  1. All content included as part of the VCG Service, such as text, graphics, logos, images, as well as the compilation thereof, and any software used on the Site, is the property of PCC or its suppliers or licensors, and is protected by copyright and other laws that protect intellectual property and proprietary rights. Buyer agrees to observe and abide by all copyright and other proprietary notices, legends or other restrictions contained in any such content and will not make any changes thereto.

 

  1. Buyer will not modify, publish, transmit, reverse engineer, participate in the transfer or sale, create derivative works, or in any way exploit any of the content, in whole or in part, found on the Site or through the VCG Service. PCC content is not for resale. Buyer’s use of the VCG Service and/or the Site does not entitle Buyer to make any unauthorized use of any protected content, and in particular Buyer will not delete or alter any proprietary rights or attribution notices in any content. Buyer will use protected content solely for Buyer’s internal business use and compliance with laws, and will make no other use of the content without the express written permission of PCC and/or the copyright owner. Buyer agrees that it does not acquire any ownership rights in any protected content. PCC does not grant Buyer any licenses, express or implied, to the intellectual property of PCC or PCC’s suppliers or licensors, except as expressly authorized by these VCG Service Terms.

 

  1. INTERNATIONAL USERS. The VCG Service and the Site are controlled, operated and administered by PCC from our offices within the USA. If Buyer accesses the VCG Service or the Site from a location outside the USA, Buyer is responsible for compliance with all local laws. Buyer agrees that it will not use the PCC content accessed through VCG Service or the Site in any country or in any manner prohibited by any applicable laws, restrictions or regulations.

 

  1. Buyer agrees to indemnify, defend and hold harmless PCC, its officers, directors, employees, agents and third parties, for any losses, costs, liabilities and expenses (including reasonable attorney’s fees) relating to or arising out of Buyer’s use of the VCG Service or the Site in violation of any terms of this Agreement or Buyer’s violation of any rights of a third party, or Buyer’s violation of any applicable laws, rules or regulations. PCC reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with PCC in asserting any available defenses.

 

  1. LIABILITY DISCLAIMER. THE INFORMATION, SOFTWARE, AND CONTENT INCLUDED IN OR AVAILABLE THROUGH THE VCG SERVICE OR THE SITE MAY SOMETIMES INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY ADDED TO THE INFORMATION HEREIN. PCC AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE VCG SERVICE OR THE SITE AT ANY TIME.

 

  1. PCC AND/OR ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE, POSTER PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED ON THE VCG SERVICE OR THE SITE FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. PCC AND/OR ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. FOR THE AVOIDANCE OF DOUBT, THE COMPLIANCE WARRANTY PLAN DOES NOT APPLY TO VCG SERVICES.

 

  1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PCC AND/OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SITE, WITH THE DELAY OR INABILITY TO USE THE SITE OR RELATED SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SITE, OR OTHERWISE ARISING OUT OF THE USE OF THE SITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF PCC OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE, OR WITH ANY OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE.

 

  1. TERMINATION/ACCESS RESTRICTION. PCC reserves the right, in its sole discretion, to terminate Buyer’s access to the VCG Service or the Site, and their related services or any portion thereof at any time, without notice.  Use of the VCG Service or the Site is unauthorized in any jurisdiction that does not give effect to all provisions of these VCG Terms, including, without limitation, this section.

 

[1]Poster Compliance Center guarantees only mandated state and federal law notices will be contained in any Purchased Posters.  This includes, but is not limited to, state minimum wage, federal minimum wage, GINA, OSHA, EEOC, FMLA, and USERRA.