Terms and Conditions of Use

<br /> 1. DEFINITIONS. For purposes of these Terms and Conditions (“Terms”), “Mossberg” means Mossberg & Company Inc, which does business as Mossberg Beverage Marketing. “Product” means any product offered for sale on www.mossbev.com or provided to a mobile canning company by Mossberg for Customer. “Customer” means any person or entity (1) using www.mossbev.com to order Products, to provide label artwork to Mossberg, or to obtain artwork design services; or (2) purchasing Products from a mobile canning company. <br /> 2. ORDER AND ACCEPTANCE. These Terms govern all use of, and ordering on, www.mossbev.com by Customer, as well as Mossberg’s provision of Products to Customer, whether directly or indirectly through a mobile canning company. Mossberg’s acceptance of any order for Products is expressly made conditional on Customer’s assent to these Terms. The parties expressly incorporate these Terms into each and every order by Customer for Products from Mossberg, and 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. <br /> 3. CUSTOMER INPUT MATERIALS. Customer will provide artwork for the Products. If Customer wants Mossberg to arrange artwork for the Products, Customer agrees to pay Mossberg for the artwork at Mossberg’s quoted prices. Mossberg will provide a PDF proof for each label to Customer. At Customer’s request, Mossberg can provide proofs of an actual shrink-sleeve or shrink-sleeved can. Customer agrees to pay Mossberg’s quoted rates for proofs. Any input materials Customer provides Mossberg will become the property of Mossberg (though the Customer’s intellectual property will continue to be owned by Customer). <br /> 4. LABELING. Mossberg is not responsible for a label’s layout, testing QR codes provided by Customer for any label, or for ensuring that any labeling complies with applicable governmental laws and regulations. A label’s layout, ensuring the functionality of QR codes, and a label’s compliance with applicable governmental laws and regulations are Customer’s responsibility. Approval of a label constitutes Customer’s representation and warranty that the label has been approved by the Alcohol Tax and Trade Bureau. Customer agrees that Customer will not use a Product to sell, market, or provide any alcoholic beverage without Customer following all applicable governmental laws and regulations and having obtained all applicable governmental licenses and approvals. <br /> 5. COLOR PROOFING. Due to differences in equipment, paper, inks and other conditions between color proofing and production pressroom operations, a reasonable variation in color between color proofs and completed Products is to be expected and Products containing such reasonable variations shall be deemed conforming. Due to the variations in quality and colors that can be displayed on monitors and other digital viewing equipment, Mossberg makes no representation or promise that any digital proof viewed on such screens or equipment will be color accurate. <br /> 6. OVER RUNS/UNDER RUNS. Unless otherwise agreed in job specifications, over runs and under runs of up to 10% percent of the quantity ordered will be considered conforming and Customer will not be entitled to object to or reject any shipment from Mossberg for such reason. Over runs or under runs will be billed or credited at the cost per piece. <br /> 7. PICK-UP/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 dock. Risk of loss passes upon Customer or Customer’s agent picking up the Products at Mossberg’s dock. Title passes to Customer upon Customer’s payment for the Products. Mossberg will not be liable for any delays, loss or damage in transit. Customer agrees to pay Mossberg a storage fee of $12 per skid per month for any Products not picked up within 15 days. Customer understands that the cans are very light and can damage easily, and Customer expects that some pallets might have some damaged cans on the corners of the skids. Customer also understands that the 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 dock. <br /> 8. PRODUCTION SCHEDULES. All production scheduling is tentative pending: (a) receipt and inspection of final artwork by Mossberg; and (b) Mossberg’s on-time receipt of Customer’s approved and final proofs. <br /> 9. COPYRIGHT/TRADEMARK. It is Customer’s responsibility to ensure, and Customer represents and warrants to Mossberg, that all materials supplied by Customer for reproduction (a) do not infringe or violate any copyright, trademark, or any other intellectual property or ownership right or interest; and (b) do not contain anything that is defamatory or scandalous or that threatens the right to privacy or other personal or economic rights. Mossberg reserves the right to refuse to engage in the preparation and manufacture of Products it deems illegal, defamatory, scandalous, improper or in violation of any law or regulation. <br /> 10. INTELLECTUAL PROPERTY. Customer grants Mossberg a nonexclusive, paid-up worldwide license, including the right to sublicense, to copy, distribute, create derivative works based upon, publicly display, publicly perform, reproduce, promote, resize, rearrange, modify, and otherwise use any intellectual property in the materials provided by Customer to Mossberg to incorporate in the Products (“Customer IP”) in any media or service, in whatever format, now or in the future, provided that such use is in furtherance of Mossberg’s preparation of Products for Customer (including, but not limited to, using Customer’s artwork to prepare Products.) In addition, Mossberg will have the right, revocable by Customer on written notice to Mossberg, to use Customer’s IP in materials promoting Mossberg’s services or products. <br /> 11. WARRANTY. Mossberg warrants only that completed Products (excluding any portion of the Products consisting of Third Party Products as defined below), at the time of delivery, materially conform to the electronic proof, or hard-copy proof or can proof if requested by Customer, with reasonable variation in color as described in Paragraph 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. NO OTHER WARRANTIES, EXPRESS OR IMPLIED, SHALL APPLY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND MOSSBERG EXPRESSLY DISCLAIMS ANY SUCH IMPLIED WARRANTIES. Products manufactured by a third party including, but not limited to, steel or aluminum beverage cans, glass bottles, and beverages contained in the cans and bottles (collectively “Third Party Products”), may be incorporated into or with Products sold by Mossberg. Third Party Products are not covered by the warranty in this Paragraph. For the avoidance of doubt, MOSSBERG MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, 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; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. <br /> 12. REMEDY/LIMITATION OF LIABILITY. Customer’s remedy under this warranty shall be limited to replacing the 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 the nonconforming Products. IN NO EVENT SHALL 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 SHALL 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 TOTAL AMOUNTS PAID TO MOSSBERG FOR THE PRODUCTS SOLD TO CUSTOMER UNDER THESE TERMS. The foregoing limitations on liability apply to the fullest extent not prohibited by law. <br /> 13. NOTICE. As a condition precedent to Mossberg performing its warranty obligations under these Terms, Customer must promptly, and in no event any later than thirty days after tender of delivery, give written notice of the defect to Mossberg or be barred from any remedy. Any suit by Customer against Mossberg must be brought within one year after Customer’s cause of action accrues. <br /> 14. CANNING. Customer understands that, if the Products are used in connection with canning alcoholic or other beverages, Mossberg has no responsibility for the canning process. Customer or any third-party canner utilized by Customer has sole responsibility for the canning process. <br /> 15. 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, Customer’s breach of these Terms or Customer’s acts or omissions relating to the Products, including but not limited to Customer’s use of any Product in connection with the canning, sale or provision of alcoholic or other beverages. <br /> 16. 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) actions, embargoes or blockades in effect on or after the date of Customer’s order; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; and (i) shortage of adequate power or transportation facilities. <br /> 17. PAYMENT. Customer must pay the amount shown on www.mossbev.com at the time of checkout before Mossberg will process any order for Products, unless Customer is purchasing Products through a mobile canning company, in which case Customer will pay the mobile canning company, except for charges for artwork and proofs, for which payment is due at the time of checkout on www.mossbev.com. Mossberg’s prices do not include federal, state or local taxes. Customer is responsible for paying any applicable excise, import, sales, use or similar tax, whether federal, state, provincial or local, and any transportation and other charge. <br /> 18. CANCELLATION. Customer may cancel the order, in whole or in part, by written notice to Mossberg, provided that Customer pays Mossberg, within 10 days of such cancellation: (a) the price of all portions of the order finished and ready to ship; (b) the cost Mossberg paid for unreturnable materials purchased for the order; and (c) other reasonable costs which Mossberg has incurred in the performance of the order. <br /> 19. 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 if Customer (i) fails to pay any amount when due and such failure continues for 10 days after Mossberg sends Customer written notice of nonpayment; (ii) 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. <br /> 20. COSTS OF COLLECTION. Customer will pay Mossberg’s actual costs of collection, including but not limited to court costs, litigation expenses, and reasonable attorney’s fees and costs, incurred in connection with collection of any delinquent amounts owed by Customer to Mossberg. <br /> 21. ENTIRE AGREEMENT. Except as otherwise agreed in writing, these Terms (along with the order quantity and payment amount of Products on www.mossbev.com shown at the time of checkout, if such terms are present) constitute the entire agreement between Mossberg and Customer, superseding all prior agreements, proposals, and understandings, whether oral or written. No stipulations, representations or agreements by Mossberg, or its officers, agents, or employees shall be binding upon Mossberg unless reduced to writing and signed by an authorized representative of Mossberg. No trade custom or usage may alter or vary the terms set forth herein. <br /> 22. 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 Paragraph is null and void. No assignment or delegation relieves Customer of any of its obligations under these Terms. <br /> 23. RELATIONSHIP OF THE PARTIES. The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. <br /> 24. RELATIONSHIP TO MOBILE CANNING COMPANIES. Customer understands that the relationship between Mossberg and any mobile canning company is that of independent contractors. Neither Mossberg nor any mobile canning company shall have authority to contract for or bind the other party in any manner whatsoever. <br /> 25. 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 shall 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. <br /> 26. 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. <br /> 27. 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 in St. Joseph County, Indiana. <br /> 28. SEVERABILITY. If any provision in these Terms is determined to be invalid under applicable law, such invalidity shall be limited to such provision without invalidating any of the remaining terms and conditions contained in these Terms. <br /> 29. 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, the following provisions: governing law/forum, labeling, copyright/trademark.</p> <p>