Terms and Conditions of Doing Business with Kieran Label

Version: July 9, 2014

  1. Governing Provisions.

    These Terms and Conditions of Sale ("Terms and Conditions") constitute an offer by Kieran Label Corp ("Kieran Label") to provide the products and/or services described in such Quote, K-38 or K-39 signed agreement, Acknowledgment or Invoice (the "Products") to the Client identified in such Quote, Acknowledgment or Invoice ("Client"), subject to the terms, covenants and conditions contained herein. Client may not modify, change, alter, renounce or waive any term, covenant or condition hereof or any of Kieran Label's rights or remedies hereunder unless an authorized representative of Kieran Label consents thereto in writing. Kieran Label agrees to provide the Products to Client only on these Terms and Conditions, notwithstanding any language in Client's purchase order, if one exists, or other writing or oral representation previously, simultaneously or hereafter received by Kieran Label purporting to amend, modify or replace these terms, covenants and conditions with any different or additional terms, covenants or conditions or reciting that any action or inaction by Kieran Label constitutes agreement or consent by Kieran Label to such amendment, modification or replacement. No course of prior dealings between the parties and no usage of trade shall be relevant to supplement or explain any terms used in these Terms and Conditions, the K-38 or K-39 agreement, Quote, Acknowledgment or Invoice. KIERAN LABEL'S AGREEMENT TO PROVIDE THE PRODUCTS IS EXPRESSLY CONDITIONED ON CLIENT'S ASSENT TO ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN.
  2. Client's Acceptance.

    Client shall be deemed to have made an unqualified acceptance of these Terms and Conditions and it shall become the agreement between the parties on the earliest of the following to occur: (i) Kieran Label's receipt of Client's purchase order number or Client's acknowledgment of Kieran Label's Quote, K-38 or K-39 signed Agreement, Acknowledgment, Invoice or these Terms and Conditions; (ii) Client's payment of any amounts due to Kieran Label; (iii) Client's delivery to Kieran Label of any material to be furnished by Client; (iv) Client's receipt of the Products; or (v) any other event constituting acceptance under applicable law.
  3. Cancellation or Modification.

    Client may not cancel or modify its order except upon terms accepted in writing by Kieran Label. In the event of such cancellation or modification, Client shall compensate Kieran Label for all resultant costs and damages. All undelivered Products may be cancelled by Kieran Label, without incurring any liability to Client, if production becomes impracticable.
  4. Quotes and Orders.

    Written quotes are void unless accepted within 30 days from date of issue or unless otherwise indicated on the quote. Kieran Label reserves the right to accept or reject Client's purchase orders in its sole discretion. Any accepted purchase orders shall be governed by these Terms and Conditions and no additional or different terms in any such purchase order shall be part of the parties' agreement.
  5. Artwork and Tooling.

    Client may be charged for artwork, printing plates, dies and tooling. Artwork, printing plates, dies and tooling shall remain Kieran Label's property.
  6. Delivery.

    Client may select the mode of transportation, routing and carrier for delivered orders. If Client does not provide Kieran Label with shipping instructions, then Kieran Label shall select the mode of transportation for delivered orders. Client shall provide Kieran Label with a commercially reasonable lead time to make shipping arrangements. Kieran Label will use its reasonable business efforts to meet the scheduled dates, but does not guarantee to meet such dates. Time for delivery shall not be of the essence. Failure by Kieran Label to make any shipments by scheduled dates does not constitute a cause for cancellation and/or for damages of any character.
  7. Storage.

    Kieran Label can store Products at no additional charge to Client for a mutually agreeable time-frame. Unless otherwise agreed, upon expiration of 60 days, Kieran Label shall invoice Client the outstanding balance for stored Products. Presuming Client has paid for such, the Products shall be released to Client. Should Client decline release of the Products, or in the event that Client is in arrears on amounts owed to Kieran Label, Kieran Label may elect to dispose of the Products and assess the additional cost to Client.
  8. Risk of Loss; Title; Inspection.

    Kieran Label shall deliver the Products to the Delivery Point. Unless otherwise stated in Kieran Label's Quote, Acknowledgment or Invoice, for sales to Clients in the United States, the "Delivery Point" shall be F.O.B. Kieran Label's manufacturing facility or designated location for overseas shipments. Regardless of any freight payment by Kieran Label on Client's behalf (for which Client agrees to reimburse Kieran Label), all risk of loss or damage in transit shall pass to Client upon delivery to the Delivery Point. Kieran Label is not responsible for any loss, damage, or delay which may occur after Kieran Label delivers the Products to the Delivery Point. Any claims for damage in transit shall be filed by Client directly with the carrier. Client shall inspect the Products upon receipt and any claims for shortages or other errors must be noted at the time of delivery on all carrier documents and supported by signed documentation. Claims for shortages or other errors must be made in writing to Kieran Label within 10 days after Kieran Label's delivery of the Products to the Delivery Point. Failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Client. No Products may be returned to Kieran Label for any reason without Kieran Label's prior written authorization. Partial shipments shall be permitted. Shipments may contain underruns or overruns not exceeding 10%.
  9. Insurance.

    Upon Kieran Label's request, Client shall provide and maintain adequate insurance for Products, covering them from the Delivery Point until Kieran Label has received payment in full for all Products naming Kieran Label as an additional insured.
  10. Prices.

    All prices, discounts and transportation charges are in U.S. Dollars and are subject to change without notice. If no price is stated on Kieran Label's Quote, Acknowledgment or Invoice, prices shall be Kieran Label's current prices in effect on the date of acceptance of orders by Kieran Label (or, in Kieran Label's sole discretion, on the date of shipment) as set forth on price lists issued or modified by Kieran Label from time to time. All general or special taxes, duties, fees, freight and insurance costs and any other charges of any nature whatsoever, imposed on, in connection with or measured by any transaction between Kieran Label and the Client shall be paid by the Client in addition to the prices quoted or invoiced.
  11. Payment.

    Unless otherwise stated in the K-38 or K-39 agreement, Quote, Acknowledgment or Invoice, payment terms are 100% of the order amount due net 30 days from Kieran Label's delivery of the Products to the Delivery Point with a 1% discount for payment received within 10 days. Terms of payment on all orders are subject to the approval of Kieran Label's credit department. If Client does not pay Kieran Label any amount when such amount is due, or if Client defaults in the performance of these Terms and Conditions, the K-38 or K-39 agreement and/or any Quote, Acknowledgment or Invoice issued from Kieran Label to Client, Kieran Label may, without incurring liability and without prejudice to Kieran Label's other lawful remedies and at Kieran Label's sole option: (i) terminate Kieran Label's obligations under these Terms and Conditions, the K-38 or K-39 agreement and/or any Quote, Acknowledgment or Invoice issued from Kieran Label to Client; (ii) declare immediately due and payable all of Client's obligations to Kieran Label; (iii) change credit terms with respect to any further work; (iv) suspend or discontinue any further work until Client pays all overdue amounts; and/or (v) repossess the Products. Client agrees to reimburse Kieran Label for all costs incurred by Kieran Label in collecting any sums owed by Client to Kieran Label, including without limitation, attorneys' fees and costs of proceedings. Client agrees to pay, at Kieran Label's discretion, a late payment fee of up to 1.5% per month on all amounts not paid in full when due. Kieran Label reserves the right to require payment in advance or other secured form of payment from time to time.
  12. Security Interest.

    As partial consideration for Kieran Label's sale of the Products to Client, Client hereby grants to Kieran Label and Kieran Label hereby retains a security interest in all Products sold to Client now or hereafter in the possession of or under the control of Client, title to which might at any time be determined to have passed to Client, including, without limitation, all Products and materials thereof or any other products bearing any trademark of Kieran Label, returns or repossessions and the proceeds of all of the foregoing, to secure all of Client's obligations to Kieran Label under these Terms and Conditions, the K-38 or K-39 agreement and/or any Quote, Acknowledgment or Invoice issued from Kieran Label to Client and all other obligations of Client to Kieran Label. Client agrees to execute such financing statements, continuation statements and other documents and to take such actions as may be required by Kieran Label to evidence or perfect the security interest granted herein and the interest of Kieran Label as the owner of the Products. If Client fails to perform any of its duties set forth in these Terms and Conditions, the K-38 or K-39 agreement and/or any Quote, Acknowledgment or Invoice issued from Kieran Label to Client, Kieran Label is authorized in Client's name or otherwise to take such actions including, without limitation, signing Client's name, and Client hereby appoints Kieran Label as its attorney-in-fact for such purpose.
  13. Limited Warranty.

    Kieran Label warrants to Client that its Products will be free from material defects in workmanship and materials under normal use and service, for a period for 6 months from the date of Kieran Label's delivery of the Products to the Delivery Point (the "Warranty Period"). There is NO WARRANTY in cases of damage in transit, negligence, abuse, abnormal usage, misuse, accidents, altered Products, failure to follow Kieran Label's instructions or improper storage. KIERAN LABEL'S SOLE AND EXCLUSIVE OBLIGATION (AND CLIENT'S SOLE AND EXCLUSIVE REMEDY) UNDER THIS WARRANTY SHALL BE, UPON PROMPT WRITTEN NOTICE RECEIVED BY KIERAN LABEL DURING THE WARRANTY PERIOD OF ANY BREACH, TO EITHER, AT KIERAN LABEL'S OPTION, REPAIR, CORRECT OR REPLACE WITHOUT CHARGE, F.O.B. KIERAN LABEL'S FACILITY, ANY DEFECTIVE PRODUCT EXPRESSLY WARRANTED HEREIN BY KIERAN LABEL AGAINST DEFECTS AND FOUND BY KIERAN LABEL IN ITS SOLE DISCRETION TO BE DEFECTIVE AND COVERED BY THIS WARRANTY, OR CREDIT CLIENT FOR THE PURCHASE PRICE PAID FOR SUCH PRODUCT. KIERAN LABEL SHALL NOT BE LIABLE TO CLIENT, OR TO ANYONE CLAIMING UNDER CLIENT, FOR ANY OTHER OBLIGATIONS OR LIABILITIES, INCLUDING, BUT NOT LIMITED TO, OBLIGATIONS OR LIABILITIES ARISING OUT OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR TORT OR ANY THEORY OF STRICT LIABILITY, WITH RESPECT TO THE PRODUCTS OR KIERAN LABEL'S ACTS OR OMISSIONS OR OTHERWISE.
  14. Limited Liability.

    Prior to using Products, Client or user shall determine the suitability of the Product for the intended use and Client shall assume all risk and liability whatsoever in connection therewith. IN NO EVENT SHALL KIERAN LABEL BE LIABLE FOR INCIDENTAL, INDIRECT, COMPENSATORY, PUNITIVE, CONSEQUENTIAL, SPECIAL OR OTHER DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS. KIERAN LABEL'S AGGREGATE LIABILITY WITH RESPECT TO A DEFECTIVE PRODUCT AND THESE TERMS AND CONDITIONS, THE K-38 OR K-39 AGREEMENT AND/OR ANY QUOTE, ACKNOWLEDGMENT OR INVOICE ISSUED FROM KIERAN LABEL TO CLIENT SHALL BE LIMITED TO THE MONIES PAID BY CLIENT TO KIERAN LABEL FOR THE DEFECTIVE PRODUCT. The remedy described in this section 14 is Client's exclusive remedy and is in lieu of any other remedy otherwise available at law or by contract.
  15. Disclaimer of Warranties.

    KIERAN LABEL AND CLIENT AGREE THAT THE WARRANTY IN SECTION 13 IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS FURNISHED BY KIERAN LABEL HEREUNDER (INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRINTING OR REPRODUCTION OF UNIVERSAL PRODUCT CODE INFORMATION). KIERAN LABEL HEREBY DISCLAIMS AND EXCLUDES ALL OTHER EXPRESS OR IMPLIED WARRANTIES. Any oral or written description of the Products is for the sole purpose of identifying the Products and shall not be construed as a warranty.
  16. Other Manufacturers' Warranties.

    On Products furnished by Kieran Label, but produced or manufactured by others, the written warranty of the manufacturer, if any, will be assigned to Client if assignment is reasonably practicable. However, Kieran Label does not adopt or guarantee or represent that such external manufacturer will comply with any of the terms of the warranty of such manufacturer.
  17. Engineering Data and Design Information.

    Except for data, information and drawings provided by Client, all engineering data, design information, composition plates, sketches and drawings used in the completion of Client's order and all of Kieran Label's copyrights, trademarks, patents and other intellectual property are and shall remain Kieran Label's property. The preceding provision also applies to any artwork that Kieran Label has made modifications thereto. Client shall not use, copy, reproduce, distribute, publish or communicate to any third party such data, information, intellectual property or drawings without Kieran Label's prior written permission.
  18. Client's Drawings, Designs or Descriptions.

    Orders manufactured to drawings, designs or specifications provided by or on behalf of Client are executed only with the understanding that Client releases and agrees to indemnify, defend and hold harmless Kieran Label and each of Kieran Label's Indemnified Parties (as defined below) from and against any and all Damages (as defined below) sustained by or against any of them, resulting from, in connection with or relating to any action or threatened action concerning: (i) infringement of the patents, trademarks, copyrights or other intellectual property or proprietary rights of any other person or entity; or (ii) injury to person or property, including death, relating to the drawings, designs or specifications provided by or on behalf of Client.
  19. Indemnification.

    Client hereby releases and agrees to indemnify, defend and hold harmless Kieran Label, its shareholders, directors, officers, employees, affiliates, agents, successors and assigns (collectively, "Kieran Label's Indemnified Parties") from and against any and all direct and indirect claims, demands, actions, liabilities, judgments, damages, losses, fines, penalties, forfeitures, costs and expenses, including, without limitation, reasonable attorneys' fees and costs of proceedings (collectively, "Damages"), arising out of, in connection with, resulting from or relating to: (i) breach of these Terms and Conditions or any Quote, K-38 or K-39 agreement, Acknowledgment or Invoice provided by Kieran Label or any law by Client or any of Client's shareholders, directors, officers, employees, representatives, agents, successors or assigns ("Client's Parties"); (ii) any damage to or destruction of property, or injury to or death of persons caused, or alleged to have been caused, in whole or in part, by any intentional, reckless, negligent or other act (or failure to act) of Client or any of Client's Parties; (iii) losses, damages or injuries caused by, arising out of or relating to the Products or the handling or use of the Products; and/or (iv) any infringements of any patent, trademark, copyright or other intellectual property rights of any other party by the Products either alone or in combination with other products.
  20. Special Indemnity Regarding Game Pieces and Similar Products.

    Client releases, and agrees to indemnify and hold Kieran Label and each of Kieran Label's Indemnified Parties harmless from and against any and all Damages due to or arising out of or resulting, directly or indirectly, from the design of the game, participation in the game or any game related activities, any receipt, use or misuse of any prize from any game, the illegality of the game (whether resulting from design, implementation or other factors), and any other aspect of the game that is not expressly covered by Kieran Label's limited warranty. Further, Kieran Label shall not be responsible in the event any of Client's games are terminated due to the fact that such game is technically impaired or corrupted or that fraud or technical problems, failures or malfunctions have destroyed or severely undermined the integrity and/or feasibility of such game, unless such termination is the result of Kieran Label's failure to produce the game in accordance with Client's written specifications.
  21. Force Majeure.


    Kieran Label will endeavor to fill all accepted orders as soon as it is practical and consistent with production schedules. Kieran Label shall not be responsible for delay in delivery or failure to fill orders or other default or damage where such has been caused by an act of God, war, major disaster, terrorism, insurrection, riot, flood, earthquake, fire, strike, lockout or other labor disturbance, delay by carriers, shortage of fuel, power, materials or supplies, operation of statutes, laws, rules or rulings of any court or government, demand for goods exceeding Kieran Label's available supply, or any other cause beyond Kieran Label's control affecting production or delivery. In the event of any delay in shipment or nonperformance caused by any of the foregoing, Kieran Label may, at its option and without liability, cancel all or any portion of its obligations to Client and/or extend any date upon which performance is due.
  22. Final Written Expression.


    These Terms and Conditions, the K-38 or K-39 (if any) and the Quote, Acknowledgment and/or Invoice issued from Kieran Label to Client (if any), constitute the final written expression of the terms between Kieran Label and Client regarding the Products and, together, are a complete and exclusive statement of those terms. Any negotiations or understandings between Kieran Label and Client which are not contained in these Terms and Conditions, and/or any K-38 or K-39 agreement, Quote, Acknowledgment or Invoice issued from Kieran Label to Client shall have no force or effect. In the event of a conflict among the provisions of these Terms and Conditions, the Quote, K-38 or K-39 agreement, Acknowledgment or Invoice issued from Kieran Label to Client, the order of priority shall be: (i) K-38 or K-39 agreement, if applicable; (ii) these Terms and Conditions of Sale; (iii) the Quote; (iv) the Acknowledgment; (v) the Invoice.
  23. Governing Law.

    These Terms and Conditions, the K-38 or K-39, Quote, Acknowledgment and/or Invoice between Kieran Label and Client shall be governed and construed according to the internal laws of the State of California, including, without limitation, the Uniform Commercial Code as adopted in Wisconsin, without regard to conflict of laws principles. Subject to section 27 below, any cause of action, claim, suit or demand by Client allegedly arising from or related to the terms of these Terms and Conditions, the K-38 or K-39 agreement and/or any Quote, Acknowledgment or Invoice issued from Kieran Label to Client or the relationship of the parties shall be brought exclusively in a court situated in the State of California, San Diego County. Both parties hereby irrevocably admit themselves to and consent to the exclusive jurisdiction of said court. ANY ACTION BROUGHT BY CLIENT MUST BE COMMENCED WITHIN ONE YEAR AFTER THE DELIVERY OF THE PRODUCTS OR THE COMPLETION OF SERVICES NOTWITHSTANDING ANY STATUTORY PERIOD OF LIMITATION TO THE CONTRARY.
  24. Miscellaneous.

    The invalidity or unenforceability of any provision or clause of this Agreement or any document referred to herein shall not affect the validity or enforceability of any other provision or clause. Kieran Label reserves the right to correct clerical or similar errors relating to price or any other term shown in these Terms and Conditions, K-38 or K-39 agreement, and/or any Quote, Acknowledgment or Invoice issued from Kieran Label to Client. Failure of either party to insist, in any one or more instances, upon performance of any term, covenant or condition of these documents shall not be construed as a waiver or relinquishment of any right granted hereunder or of the future performance of such term, covenant or condition. Kieran Label reserves the right to amend these Terms and Conditions from time to time. Kieran Label's sales representatives are without authority to change, modify, or alter these Terms and Conditions. The provisions of sections 9, 11, 12, 14, 17, 18, 19, 20, 22, 23, 24 and 27 shall survive termination of these Terms and Conditions, K-38 or K-39 agreement and/or any Quote, Acknowledgment or Invoice issued from Kieran Label to Client.
  25. Export Laws.

    To the extent applicable, the Products and all shipments are subject to compliance with the U.S. Export Administration Act, as amended, the regulations thereunder and all other U.S. laws and regulations concerning exports and imports Client agrees to comply with all such laws and regulations.
  26. Benefit; No Assignment by Client.

    These Terms and Conditions, K-38 or K-39 agreement, and any Quote, Acknowledgment or Invoice issued from Kieran Label to Client is binding upon and inures to the benefit of Client and Kieran Label and their respective successors and assigns. Client may not assign these Terms and Conditions, the K-38 or K-39 agreement and any Quote, Acknowledgment or Invoice issued from Kieran Label to Client, or any part thereof, without Kieran Label's prior written consent.
  27. Alternative Dispute Resolution.

    It is the policy of Kieran Label to attempt to settle all disputes through alternative dispute resolution techniques and to use litigation only as a last resort to settle any dispute, except in the case of collection of past-due accounts or when other circumstances dictate that litigation is advisable. Client agrees to make a good faith attempt to settle any disputes arising out of the purchase of the Products by Client through the use of alternative dispute resolution before instituting any litigation against Kieran Label.
  28. Confidentiality.

    All prices and engineering specifications provided by Kieran Label and contained on Quotes (or otherwise conveyed to Client) are proprietary and Client agrees to treat such information with at least the same level of care that it treats its own confidential information. Nothing in this provision shall be construed to prohibit Client from sharing such information with its own employees, advisors, affiliates and any parties who are obliged to maintain confidentiality between themselves and Client.