1. DEFINITIONS. "Seller" is Unimark ("Unimark") and "Buyer" is the addressee of the Order Confirmation defined in Item 2 below (collectively the "Parties"). "Goods" as used herein are the goods described as such in the Order Confirmation.
2. ACCEPTANCE A contract (hereinafter referred to as "Contract") consisting only of the "Order Confirmation" printed and typed on the reverse side hereof and on any additional pages which are a part of the Order Confirmation, these Terms of Sale and any attached appendices designated in the Order Confirmation (the foregoing collectively referred to as the "Terms"), is formed at Gardena, California between Seller and Buyer upon issuance of the Order Confirmation. All prices and conditions (unless otherwise stated) are as quoted within 14 days after date of Order Confirmation after which time they are subject to alteration without notice. If Buyer submits its printed or written Purchase Order or similar document containing its own terms, Seller specifically rejects any conflicting terms within the Purchase Order or similar document, and Buyer accepts the Terms contained in this Order Confirmation unless objected to in writing within five (5) days of issuance of this Order Confirmation.
3. MODIFICATION. There shall be no modification or waiver of the Contract except by a writing signed by both of the Parties. However, if any modification is made in the Contract, whether authorized or unauthorized, then Seller may make reasonable adjustments in the sales price and at the time of performance without Buyer's consent and in such case, Seller does so without prejudice and with an explicit reservation of its rights under the Contract and under the law.
4. DUTIES OR TAXES. The sales price does not include any duties or sales, use, excise, property or any similar or other taxes arising out of or relating now or in the future to the Contract or the Goods unless otherwise provided in the Order Confirmation. Therefore, in addition to the sales price or any other charges specified herein, Buyer must pay any of the duties or taxes mentioned above or in lieu of such payment must provide Seller with a tax-exemption certificate acceptable to the proper taxing authorities. Seller has the right to separately bill buyer for any such duties or taxes which Seller is called upon to pay.
5. CONFIDENTIALITY. Buyer must keep confidential the designs, drawings, engineering data, formulae, specifications, or any other technical or proprietary Information furnished by Seller to Buyer and Buyer may use such disclosures only for the purposes of ordering and using Goods from the Buyer and for no other purpose, without Seller's prior written consent. Buyer acknowledges that the goods sold pursuant to this Contract are covered by one or more U.S. and/or foreign patents.
6. TRADEMARK. All trademarks, marks, notations and logos belong to Unimark and can be only used by authorization of Unimark on a non-exclusive basis as it relates this Contract.
7. DELIVERY. The date of any performance by Seller under the Contract, including shipping and delivery, dates are approximate only. Seller shall not be liable for delays or failures in delivery or in its performance or failure to manufacture or deliver, due to the following causes: (1) causes beyond Seller's reasonable control, including, but not limited to Acts of God, acts of Buyer, acts of civil military authority, acts of domestic or international terrorism, inclement weather, fires, strikes and other labor disputes, war embargo, riot, delays in transportation or car shortages, accident, breakdowns, sabotage, or (2) inability or delay of Seller to obtain necessary labor, materials, power supply, components, manufacturing facilities or transportation. Upon the occurrence of any of the above-mentioned delays or failures, Seller shall have the right to extend the period of its performance for a period at least equal to the time lost by reason of the delay. Seller accepts no liability for any loss, damage or inconvenience resulting from any failure or delay in delivery however caused, nor shall such delay entitle Buyer to cancel or repudiate the Contract.
8. WARRANTIES. Seller warrants to Buyer that the machine equipment and standard and stretch labels (Easy Stretch), except that part thereof manufactured by others, will be free from defects in materials or workmanship for a period of one (1) year from date of shipment, provided that the goods are used in accordance with all of Seller's instructions as to use, maintenance and operation. Seller warrants to Buyer that all other forms of Unimark heat transfers, except that part thereof manufactured by others, will be free from defects in materials or workmanship for a period of nine (9) months from date of shipment, provided that the goods are used in accordance with all of Seller's instructions as to use, maintenance and operation. Seller's liability under this Warranty is limited to furnishing labor and materials at Seller's plant required for replacing products or parts thereof which Seller in its own discretion determines to be defective. Seller accepts no responsibility for any damage or defect which shall occur during or as a result of transit or as a result of climatic conditions. This Warranty shall be valid only as to Buyer and no other. Buyer must pay all costs of packing and shipping of products to Seller's plant. Any replacement product shall be shipped to Buyer F.O.B. Seller's plant. This Warranty shall be valid only in the event that Buyer notifies Seller in writing of a claimed breach of warranty setting forth the facts thereof in the case of textile materials within fourteen (14) days of the date of receipt by the Buyer of delivery thereof and mail other cases within fourteen (14) days of the alleged defects discovered by Buyer but in no event later than fourteen (14) days after the expiration of the warranty period. The above-mentioned warranties shall not apply and the Buyer shall not be entitled to any benefit there under in any of the following circumstances. (i) if the Buyer shall use in conjunction with any machine or equipment sold by Seller any parts or consumable supplies not sold or manufactured by Seller so long as such parts or consumable supplies shall be obtainable from Buyer at the material time or (ii) if the Buyer shall use any parts or consumable supplies sold or manufactured by Seller in conjunction with any machine or equipment not sold by Seller or (iii) if any machine equipment or consumable supplies shall be materially modified after delivery or shall be operated or used otherwise than in the manner described or recommended in our instruction Books or other relevant literature supplied by Seller.(iv) If any products have been sold by Seller for use within a prescribed period and such period shall have expired prior to the date of any complaint made hereunder.Seller's liability to Buyer hereunder shall not exceed the sales price of the goods. THIS WARRANTY SHALL BE IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND OF ALL OTHER OBLIGATION ON THE PART OF SELLER, IN CONSIDERATION OF THE EXPRESS WARRANTY HEREIN CONTAINED; BUYER AGREES THAT NO OTHER REMEDY (INCLUDING BUT NOT LIMITED TO, INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR LOST PROFITS, LOST SALES, INJURY TO PERSON OR PROPERTY OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGES) SHALL BE AVAILABLE TO IT.
9. PATENT INFRINGEMENT. Buyer shall notify Seller in writing of any charge of infringement and tender to Seller the right to defend, settle, or make changes in the Goods for the purpose of avoiding infringement. In no event shall Seller's liability hereunder exceed the sales price of the Goods charged to infringe.
10. TERMINATION. Seller has the right to forthwith terminate the Contract in the event of the happening of any of the following: the Insolvency of Buyer, the filing of a voluntary petition to have the Buyer declared bankrupt, any material adverse change in the financial condition of Buyer, the appointment of a receiver or trustee for Buyer provided such appointment is not vacated within thirty (30) days from the date of appointment, the execution by Buyer of an assignment for the benefit of creditors, or the breach of this Contract by Buyer. Such termination shall be effective immediately. However, the Seller's obligations under this Contract shall continue to the extent necessary to effectively conclude any pending transactions.
11. SELLER'S LIABILITY. Seller's liability on any claim of any kind, including negligence, for any loss or damage arising out of, connected with, or resulting from the Contract or from the performance or breach thereof, or from the design, manufacture, sale, delivery, resale operation, or use of any Goods or equipment covered by or furnished under the Contract shall in no case exceed the sales price allocable to the Goods or equipment which gives rise to the claim. In any event, whether as a result of breach of the Contract or warranty thereunder or any alleged negligence. Seller shall not be liable for any incidental, special, consequential or penal damages including but not limited to, loss of profits or revenue, loss of the use of the Goods or any associated equipment, cost of capital, cost of substituting Goods, facilities, or services, down time costs, or claims of customers of Buyer for such damages, and Buyer shall not deduct all or any part of the Sales price still due under the Contract.
12. PAYMENTS. Payments under this Contract shall be made net by the 30th day following the date of the invoice; unless otherwise agreed. SELLER RESERVES THE RIGHT AFTER 30 DAYS TO ASSESS A MONTHLY CARRYING CHARGE OF ONE AND ONE-HALF PERCENT (1½ %) ON THE UNPAID BALANCE, PAYABLE MONTHLY, UNLESS OTHERWISE PROHIBITED BY LAW, IN WHICH CASE THE APPLICABLE CARRYING CHARGE SHALL BE APPLIED. All prices quoted herein are F.O.B., the works. All prices are subject to adjustment after acceptance by the Buyer for increases in the cost of material and/or labor rates between the date of acceptance and the date of shipment in which event the invoice price will be increased In an amount equal to such increases.
13. MATCHING. Seller will make every effort to match design or color requirements, but makes no warranties express or implied with respect to color or color requirements of Buyer and hereby expressly disclaims liability and responsibility for loss or damage in the event of failure to achieve accurate matching of designs or color requirements to Buyers samples or specifications.
14. PACKING. Packing cases, whether charged separately or not, are non-returnable unless otherwise agreed.
15. F.O.B. Unless otherwise specifically specified by Seller, all prices quoted are freight on board (f.o.b.), Seller's plant ___________________.
16. QUANTITIES. Seller reserves the right to supply Buyer with a quantity tolerance of ten (10%) percent less or in excess of the total quantity ordered by Buyer and the price shall be adjusted on a pro rata basis according to the total quantity shipped.
17. CANCELLATION BY BUYER. Once accepted by Seller, the Contract is not subject to cancellation (except for those reasons listed in Paragraph 10 above) by Buyer except where Buyer gives reasonable written notice to Seller to stop work and Buyer, along with said notice, agrees to pay for all work in progress and any raw materials or used (or for which commitments have been made by Seller) in connection with the order, plus all costs and expenses otherwise incurred by Seller computed in accordance with Seller's general accounting practices, plus a cancellation charge of 20% of the initial quoted charge.
18. GOVERNING LAW. This Contract shall be a California contract and the laws of the State of California shall in all respects govern the validity, interpretation and enforcement of the Contract of the rights, duties and interests of the Parties, without regard of any conflicts of laws provisions.
19. ARBITRATION. Any controversy or claim arising out of or relating to the Contract or the breach thereof, shall be settled by arbitration, in accordance with the rules, then obtaining of the American Arbitration Association, and judgment upon the award rendered may be entered in any court having jurisdiction thereof. The prevailing party shall be entitled to reasonable attorneys' fees.
20. COLOR FASTNESS. Unimark will guarantee the opaque coverage of the inks used in production of Unimark Heat Transfers for all materials that are dyed with a color fastness rating of 4 or above. It is the responsibility of the user to test materials being used for color migration and dye bleeding. Any materials with a rating of less than 4 are not guaranteed and the user assumes all risk and liability for use on those materials.
21. MINIMUM PACKAGING. Unimark, in the course of normal manufacturing, has set standard package quantities per heat transfer type and size. Unimark reserves the right to ship in minimum package quantities only. Unimark will not break open pre-packaged lots. Unimark will fill orders based on the minimum number of packages required to complete the order.
22. CLAIMS. All claims must be submitted in writing within 14 days of receipt of the merchandise. All claims must be supported with samples or documentation to support the claim. Any claims made after the fourteen (14) day period will not be considered.

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