Terms & Conditions
PURCHASING TERMS AND CONDITIONS
Effective March 1, 2022
1. Definitions. For purposes of these Purchasing Terms and Conditions (“Terms”), “Mossberg” means Mossberg & Company, Inc., headquartered at 301 East Sample Street, South Bend, IN, 46601, which does business as Mossberg on Demand, Mossberg Beverage Marketing, Mossbev, Foster Printing, and Foster Printing at Mossberg & Company; “Services” means any services offered for sale by Mossberg to Customer; “Product” means any goods offered for sale by Mossberg to Customer; and “Customer” means any person or entity (1) using a Mossberg Site to order Products or Services; (2) providing artwork, files, or other information or materials to Mossberg or obtaining design Services; or (3) purchasing Products or Services from Mossberg; and “Site” means any website owned or operated by Mossberg that contains these Terms.
2. Order and Acceptance. These Terms govern all orders of Products or Services by Customer through a Site, as well as Mossberg’s provision of Products and Services to Customer. Customer is responsible to comply with these Terms regardless of whether Customer is the end user of the Products or Services, Customer notifies the end user of the Products and Services about Mossberg’s role in their creation, or Customer uses the Products and Services to provide the end user with a good or service without the end-user having any knowledge of Mossberg’s role in the process. The parties expressly incorporate these Terms into each Customer order for Products or Services from a Mossberg Site. If Customer and Mossberg both execute a separate contract for the delivery of Products or Services and any related transactions occur on a Site, then these Terms will be considered supplementary to the provisions set forth in the contract and the executed contract provisions will govern in the circumstance of any conflicting terms. Except in the circumstance of a separate fully executed contract, these Terms control over any additional or different terms contained in any purchase order or any other document from Customer; Mossberg expressly objects to any such different or additional terms. By ordering Products or submitting any information or materials through any Site, Customer agrees to be bound by these Terms. Mossberg’s acceptance of any order for Products or Services, which will be made in Mossberg’s sole discretion after reviewing the order, is expressly made conditional on Customer’s assent to these Terms.
3. Customer Input Materials. As a part of the process of placing an Order for Products or Services on a Site, Customer may provide images, verbiage, or artwork, in electronic file format. Except as required by law, Mossberg has no obligation to retain any Customer information or materials and Customer must maintain its own independent original version of any materials provided to Mossberg. As a reminder, certain file formats provide greater accuracy for depicting colors and images transmitted on to specific Products. If Customer wants Mossberg to arrange or organize verbiage or images for the Products, Customer agrees to pay Mossberg for such Services at Mossberg’s quoted prices. By providing copyrightable or trademarkable materials to Mossberg, Customer grants Mossberg, in addition to all other rights contained herein, a nonexclusive, royalty-free, perpetual, irrevocable, worldwide right and license, with the right of sublicense through multiple tiers to take all actions necessary to prepare and produce the Product including, but not limited to, rights to use, reproduce, resize, rearrange, create derivative works of, modify, adapt, publish, translate, and otherwise use Customer’s copyrightable and trademarkable materials and publicly display such materials in connection with the production or provision of any Products or Services you request or to show you how your materials would appear on our Products or Services and/or to market or advertise additional Products or Services to you.
4. Labeling. Mossberg is not responsible for a label’s layout, for testing QR or bar codes provided by Customer (unless Mossberg expressly agrees in writing to test a QR or bar code as a part of its Services offered to Customer) for any label, or for ensuring that any labeling complies with applicable governmental laws and regulations. Final design approval, including, but not limited to, a label’s layout, ensuring the functionality of QR or bar codes, and a label’s compliance with applicable governmental laws and regulations, is solely the Customer’s responsibility. Approval of a label constitutes Customer’s representation and warranty that the label has been approved by, as applicable, and meets the requirements of every governmental agency (e.g., Alcohol Tax and Trade Bureau, U.S. Food and Drug Administration, and Federal Trade Commission). Customer agrees that Customer will not use a Product to sell, market, or provide any Product without Customer following all applicable governmental laws and regulations (e.g., Alcoholic Beverage Labeling Act; Federal Food, Drug, and Cosmetic Act; and Fair Packaging and Labeling Act) and having obtained all applicable governmental licenses and approvals.
5. Color Proofing. Mossberg will provide Customer with a digital proof on its Site for each final image (e.g., box, label, or document) of a Product prior to Customer placing the order. Due to the variations in quality and colors that can be displayed on monitors and other digital viewing equipment or produced by printers, Mossberg makes no representation or promise that any digital proof viewed or printed on Customer’s equipment will be color accurate. As noted previously, certain file formats may also cause degradation of the final image. As such, Mossberg expressly disclaims that the final Product provided to Customer may have variations in color between the digital proof and completed Product and the final image found on the completed Product may be degraded because of the conversion process, which will still be considered conforming for purposes of any such order. If more than process equivalent imagery and color identification is required (e.g., color critical Products requiring application of the Pantone Color System), then the Customer should make a direct inquiry to Mossberg by submitting a sample request here to discuss procuring specific file formats or the possibility of obtaining alternative proofs (e.g., Epson color proofs, shrink sleeved can proofs, final Product proofs) at an additional cost before placing any order.
6. Product Specific Provisions. Customer should refer to the Addendum at the end of these Terms to review the provisions applicable to specific Products available on a Site.
7. Shipping/Risk of Loss. Unless otherwise agreed to in a writing signed by an authorized representative of Mossberg, the price quoted is for single shipment, without storage, F.O.B. Mossberg’s facility. Risk of loss passes to Customer upon the Product leaving Mossberg’s facility. Title passes to Customer upon shipment of the Product. Mossberg will not be liable for any delays, loss, or damage in transit. Customer understands that certain Products (e.g., empty cans) are very light and can damage easily. Customer also understands that some Products are temperature-sensitive and can be damaged by excessive exposure to hot or cold temperatures. Mossberg is not responsible for any damage to the Products caused by exposure to hot or cold temperatures after the Products leave Mossberg’s facility. Shipping estimates are truly just estimates as shipping delays regularly occur in today’s marketplace. Mossberg is not responsible for any shipping delays. If Customer requires a Product to arrive by a specific date, then Customer must contact Mossberg and confirm Mossberg’s ability to meet the required delivery date before placing the order.
8. Production Schedules. All production estimates provided at the time of placing an order are not guaranteed as several factors need to be considered, which are not assessed at the time the system provides a production estimate. To obtain a more official production schedule, Customer must contact Mossberg before placing an order.
9. Customer’s Representations and Warranties. By submitting any information on any Site, Customer represents and warrants to Mossberg that:
- Residency and Capacity. Customer, to the extent an individual, is a legal resident of the United States of America, is over the age of 18, is of sound mind, and possesses the necessary legal capacity to enter a contract. Customer, to the extent a business entity, is a U.S. company represented by an authorized agent over the age of 18, is of sound mind, and possesses the necessary legal capacity to enter a contract.
- Authority. Customer has the right to order the Products or Services requested and accepts and agrees to be bound by these Terms. To the extent Customer is a business organization (e.g., corporation, limited liability company, or partnership), Customer certifies that it has legal authority to submit the final Product image for production of the requested Products. Customer possesses the ability and authority to grant the rights given by these Terms without obtaining any additional permission or authorization from any employee, agent, or third-party.
- Truth. All the information provided by Customer is and will continue to be true, accurate, and complete. Customer has not perpetrated and will not perpetrate any fraud or deception in connection with its inquiries or requests.
- Content. Customer has legal ownership or license rights over all information and materials submitted to Mossberg and no such information or materials infringe upon or otherwise violate any copyright, trademark, or other intellectual property or ownership right or interest. To the extent any individual is depicted in the materials provided by Customer, Customer has obtained proper authorization from the individual for use of their image or depiction on the requested Product. Customer has complied with all laws and regulations applicable to the content and materials provided to Mossberg. Additionally, none of the information or materials submitted by Customer are defamatory or scandalous or threaten the right to privacy or other personal or economic rights of third parties.
10. Revocable Publicity Release and Assignment. This publicity release and assignment may be revoked by Customer at any time by providing Mossberg written signed notice of its revocation. Unless such notice of revocation has been provided, Customer irrevocably grants to Mossberg, the unrestricted, absolute, perpetual, worldwide right and license to use Customer’s business name, trademark, address (city and state), statements, and Product digital image, without further compensation, consideration, or notice or permission to Customer or any third party, and to reproduce, copy, display, exhibit, publicly or otherwise, whether alone or in combination with other materials (including but not limited to other Product ordered by other Customers), in physical form or on any media or embodiment now known or hereafter developed including, but not limited to, any format of any computer-based, Internet-based, electronic, magnetic, digital, laser or optical-based media, for any purpose related to Mossberg’s company interests.
11. Intellectual Property Rights. Mossberg owns and retains its interest in all trademarkable and copyrightable materials — whether registered with the USPTO or U.S. Copyright Office or not — included on any Site including, but not limited to Product design templates (“Mossberg’s Site Intellectual Property”). Any use of Mossberg’s Site Intellectual Property by Customer or any third party without the written signed authorization of Mossberg is a direct violation of Mossberg’s intellectual property rights and a violation of these Terms. Mossberg retains all intellectual property rights to materials it creates on behalf of any Customer including, but not limited to, physical and digital files, discs, printing plates, and dies. Customer will retain its intellectual property interest in any materials created and provided by Customer to Mossberg, subject to the licenses and rights granted pursuant to these Terms.
12. Discretionary Denial. Mossberg reserves the right to refuse to engage in the preparation and manufacture of any Products it deems, in its sole discretion, illegal, defamatory, scandalous, improper, or in violation of any law or regulation.
- Image Quality. Mossberg warrants only that completed Products (excluding any portion of the Products consisting of Third-Party Materials as defined below), at the time of delivery, materially conform to the digital proof, with possible variations in color and image as described in Section 5. Customer agrees that no other affirmation of fact, promise, description, sample, or model of any kind has become part of the basis of the bargain between Customer and Mossberg. MOSSBERG HAS MADE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- No Warranty for Third-Party Products. Mossberg is in the printing business, not the business of manufacturing the underlying surfaces or base level goods that such printed images or labels are placed upon (“Third-Party Materials”). Third-Party Materials, including, but not limited to, paper, cardboard, plastic, metals, steel or aluminum beverage cans, can liners such as Epoxy and BPANI, glass bottles, and beverages contained in the cans and bottles, may be incorporated into or with Products sold by Mossberg. Third-Party Materials are not covered by the warranty in this Section 13. Customer has evaluated any perceived risk and expressly assumes all risk and liability for any non-performance of the Third-Party Materials including, but not limited to, defects in parts or all of the Third-Party Materials (e.g. cans and their ends), including any defects resulting in leakages or recalls, and for any resulting damages or bodily injury to Customer, its employees, or any third parties arising from the handling, filling and/or use of the Third-Party Materials filled with Customers goods (e.g. food or beverage formula) or from ingestion of the contents of the Third-Party Materials, and agrees that Mossberg will have no responsibility and no liability for any such damage or bodily injury to Customer, its employees, or third parties. For the avoidance of doubt, MOSSBERG MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY MATERIALS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; IN EACH CASE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
14. Remedy/Limitation of Liability. Customer will have no remedy for faults relating to Third-Party Materials. Customer’s remedy under the warranty pursuant to Paragraph 13(a) for Products manufactured by Mossberg is limited to replacing such nonconforming Products or, at Mossberg’s sole discretion, a refund of the amount, or a portion of the amount, of the invoice price attributable to such nonconforming Products manufactured by Mossberg. IN NO EVENT WILL MOSSBERG BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CUSTOMER OR COULD HAVE BEEN REASONABLY FORESEEN BY CUSTOMER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL MOSSBERG’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE LESSER OF $100.00 OR THE TOTAL AMOUNTS PAID TO MOSSBERG FOR THE PRODUCTS SOLD TO CUSTOMER UNDER THE APPLICABLE ORDER. The foregoing limitations on liability apply to the fullest extent not prohibited by law.
15. Notice. As a condition precedent to Mossberg performing its warranty obligations under these Terms, Customer must promptly, and in no event later than thirty days after tender of delivery, give written notice of the defect to Mossberg or be barred from any such remedy. All warranty claim notices to Mossberg must be in writing and personally delivered or sent by Certified Mail, Return Receipt Requested, and any such mailed notice will be deemed delivered three days after being deposited in United States Postal Service with proper postage prepaid as follows:
Mossberg & Company, Inc.
Attn: Quality Control
301 E. Sample St.
South Bend, IN 46601
All other notices to Mossberg required by these Terms must also be in writing and personally delivered or sent by Certified Mail, Return Receipt Requested, and any such mailed notice will be deemed delivered three days after being deposited in United States Postal Service with proper postage prepaid as follows:
Mossberg & Company, Inc.
Attn: Director of Administration
301 E. Sample St.
South Bend, IN 46601
Customer is solely responsible for maintaining up to date contact information in Customer’s account to ensure that Mossberg can properly reach Customer by any means provided in Customer’s account for any applicable reason.
16. Limitations Period. All claims, actions, or proceedings, legal or equitable, against Mossberg must be commenced in court within one year after the cause of action has occurred or the act, omission or event occurred from which the claim, action, or proceeding arises, whichever is earlier, without judicial extension of time, or said claim, action, or proceeding is forever barred, time being of the essence of this Section 16.
17. Indemnification. Customer agrees to defend, indemnify, and hold harmless Mossberg and its officers, directors, employees, agents, affiliates, successors and permitted assigns from and against any and all damages, losses, liabilities, interest, awards, penalties, fines, claims, costs, expenses, awards, causes of action, lawsuits, and injuries of any kind or nature whatsoever (including costs and reasonable attorney’s fees) caused by, resulting from, arising out of, or occurring in connection with, (i) Customer’s breach of these Terms including, but not limited to, any breach of Customer’s representations and warranties set forth in Section 9 above, (ii) Customer’s acts or omissions relating to the Products including, but not limited to, Customer’s use of any Product in connection with the packaging, canning, sale, or provision of food, alcoholic, or other beverages, (iii) any Third-Party Materials, and (iv) any claims raised by customers of Customer for all matters to the extent not solely caused by Mossberg’s negligence or willful misconduct.
18. Force Majeure. Mossberg will in all cases be excused from performance to the extent that Mossberg’s failure to perform or delay in performing is caused or results from acts beyond Mossberg’s reasonable control, including but not limited to (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) pandemics or epidemics; (f) actions, embargoes or blockades in effect on or after the date of Customer’s order; (g) action by any governmental authority; (h) national or regional emergency; (i) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (i) shortage of adequate power or transportation facilities.
19. Payment. All prices are shown in U.S. Dollars. All online orders must be prepaid at the time of placing the order. To the extent Mossberg’s prices do not include federal, state, or local taxes or the amount of taxes collected is less than what is required, Customer is responsible for paying any applicable excise, import, sales, use or similar tax, whether federal, state, or local, and any transportation and other charge. Mossberg may apply a fee for each payment made with insufficient funds or improper chargeback. If Customer qualifies for tax exempt status, Customer must contact Mossberg to notify them of Customer’s tax-exempt status and provide the necessary documentation proving such status.
20. No Right to Cancellation. Customer has no right to cancel an order, in whole or in part, after the order has been placed on any Site. Although Customer is warned to confirm everything is correct before placing an order, Mossberg understands that mistakes happen. To the extent Customer desires or needs to cancel an order because of an error or mistake made at the time of placing the order, Customer may submit a contact inquiry to Mossberg requesting cancellation. Although Mossberg has no obligation to authorize cancellation, Mossberg will make reasonable efforts to permit cancellation, in whole or in part, if Mossberg is contacted by Customer before production begins. To the extent cancellation is permitted, Customer may still be held responsible for financial obligations associated with the cancellation: including but not limited to, (a) the price of all quantities of the order initiated by Mossberg; (b) the cost Mossberg paid for unreturnable Third-Party Materials purchased for the order; (c) the price for ordered printed labels not applied to Products; (d) other reasonable costs which Mossberg has incurred in the performance of the order; and (e) labor costs associated with the cancellation.
21. Termination. In addition to any remedies that may be provided under these Terms, Mossberg may terminate any order with immediate effect upon written notice to Customer at the mailing address or email contained in Customer’s account if Customer (i) has had previously or is having payment issues; (ii) is considered, in Mossberg’s sole discretion, to be in breach of any provision within these Terms or has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings related to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
22. Costs of Collection. Customer will pay Mossberg’s actual costs, including but not limited to court costs, litigation expenses, and reasonable attorney’s fees and costs, incurred in connection with any enforcement of these Terms, necessitated by breach or otherwise.
24. Assignment. Customer will not assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of Mossberg. Any purported assignment or delegation in violation of this Section 24 is null and void. No assignment or delegation relieves Customer of any of its obligations under these Terms. Mossberg is permitted to assign its interest in any orders, accounts, and Customer relationships governed by these Terms in connection with a business or asset sale or otherwise without the consent of Customer.
25. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in these Terms will 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 has authority to contract for or bind the other party in any manner whatsoever.
26. No Third-Party Beneficiaries. These Terms are for the sole benefit of Mossberg and Customer and their respective successors and permitted assigns and nothing in these Terms, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
27. No Waiver. No waiver by Mossberg of any of the provisions in these Terms is effective unless explicitly set forth in writing and signed by an authorized representative of Mossberg. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates, or may be construed, as a waiver of any such right, remedy, power, or privilege. No single or partial exercise or waiver 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.
28. Governing Law/Forum. Any questions, disputes, controversies, or litigation arising either directly or indirectly from any order by Customer or any of these Terms will be governed by the laws of the State of Indiana, and, in the event of litigation between Mossberg and Customer, such litigation may be commenced only in a federal or state court located in St. Joseph County, Indiana. Customer consents to personal jurisdiction and venue in such courts.
29. Severability. If any provision in these Terms is determined to be invalid under applicable law, such invalidity is limited to such provision without invalidating any of the remaining terms and conditions contained in these Terms.
30. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of any order, including but not limited to, Sections 9-11, 13-17, 22, and 28.
This Addendum to the Mossberg & Company, Inc. Purchasing Terms and Conditions sets forth additional provisions that govern certain Product purchases.
1. Custom Designed Boxes.
- Shipping Timing. The standard time to ship an order is between 15 to 20 business days after the order is confirmed, but shipping delays are a known risk and Mossberg is not responsible for such delays.
- Shipping Condition. Mossberg will ship all boxes in a flat unfolded condition, which provides additional costs savings to Customer in connection with shipping the Product and helps reduce possible damage to the Product during shipment.
2. Custom Labeled Cans.
- Shipping. Empty cans are very light and fragile and are known to easily be damaged during shipping. Customer expects that some pallets might have some damaged cans on the corners of the skids.
- Canning Process. Customer understands that, if the Products are used in connection with canning food, alcoholic or other beverages, or other materials, Mossberg has no responsibility for the canning process. Customer or any third-party canner utilized by Customer has sole responsibility for the canning process.