PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE ACCESSING OR USING OUR WEBSITE, PLACING ORDERS, OR ENGAGING WITH MYLAR BAG DEPOT LLC IN ANY MANNER.
These Terms of Service (the "Terms," "Terms and Conditions," or "Agreement") constitute a legally binding contract between you, whether in your capacity as an individual person, sole proprietor, partnership, limited liability company, corporation, trust, unincorporated association, governmental entity, or any other legal or business entity (collectively referred to in this Agreement as "you," "your," or "Customer"), and Mylar Bag Depot LLC, a limited liability company organized under the laws of the State of Colorado, United States, together with its parent companies, subsidiaries, affiliated companies, officers, directors, employees, agents, contractors, representatives, successors, and permitted assigns (collectively referred to in this Agreement as "Mylar Bag Depot," "we," "us," or "our").
This Agreement, together with our Privacy Policy, Cookie Policy, and any other written documents, policies, schedules, exhibits, or written order confirmations expressly incorporated by reference herein, collectively govern your access to and use of our websites, mobile applications, online storefronts, e-commerce portals, design tools, customer support channels, and all other digital properties operated by us (collectively, the "Website" or "Site"), as well as the design, manufacture, sale, fulfillment, shipment, and delivery of all custom and stock flexible barrier packaging products, stand-up pouches, child-resistant bags, printed Mylar bags, glass jars, lids, accessories, and related services (collectively, the "Products" or "Goods") that you purchase or order from us. This Agreement also governs all services provided to you by us including free graphic design support, digital artwork proofs, compliance consultation, storage services, and all support, consulting, and ancillary services (collectively, the "Services").
By creating a customer account on our Website, placing an order for Products or Services, uploading custom artwork or design files, submitting a quote request, clicking "checkout" or "confirm order," accepting a digital or written quotation, or otherwise accessing or using the Website or Services in any manner whatsoever, you: (1) acknowledge that you have read, understood, and had the opportunity to seek independent legal advice regarding all provisions contained in this Agreement; (2) represent and warrant that you are at least 18 years of age (or the legal age of majority in your jurisdiction of residence, whichever is greater), possess the full legal authority and capacity to enter into binding contractual obligations, and if you are acting on behalf of a company, partnership, trust, or other legal entity, you further represent and warrant that you have full right, power, and authority to bind such legal entity to this Agreement; and (3) unconditionally accept and agree to be irrevocably bound by all of the terms, conditions, representations, warranties, disclaimers, limitations of liability, and other provisions of this Agreement as may be updated, modified, or amended by us from time to time in accordance with the provisions of Section 21 below.
THIS AGREEMENT CONTAINS A BINDING INDIVIDUAL ARBITRATION PROVISION AND CLASS ACTION WAIVER IN SECTION 19 BELOW THAT AFFECTS YOUR LEGAL RIGHTS WITH RESPECT TO CLAIMS, DISPUTES, OR CONTROVERSIES THAT YOU MAY HAVE AGAINST MYLAR BAG DEPOT LLC OR ITS AFFILIATES. PLEASE READ SECTION 19 CAREFULLY. BY AGREEING TO BINDING ARBITRATION, YOU WAIVE YOUR RIGHT TO A JURY TRIAL AND YOUR RIGHT TO BRING, PARTICIPATE IN, OR RECOVER RELIEF THROUGH ANY CLASS, REPRESENTATIVE, OR COLLECTIVE ACTION PROCEEDING.
This Agreement is effective as of the date you first access the Website, create an account, submit a quote request, or place an order (the "Effective Date"). If you do not unconditionally accept and agree to every single provision of this Agreement, including the binding arbitration clause and class action waiver in Section 19, and all limitations of liability and disclaimers contained herein, then you are NOT AUTHORIZED to access or use the Website, create an account, place any orders, upload any artwork, purchase any Products, or receive any Services from us. Any attempted use, access, or order placement by a non-accepting party is void ab initio and of no legal force or effect. Your continued access to or use of the Website or Services at any time following the Effective Date constitutes your ongoing acceptance of this Agreement as it may be updated or amended from time to time pursuant to Section 21.
Where any provision of this Agreement conflicts with, is inconsistent with, or addresses the same subject matter as any term or condition contained in any electronic or printed purchase order, quotation, invoice, acknowledgment, or other document provided by you to us (a "Customer Form Document"), the terms and provisions of this Agreement shall prevail and govern, and the conflicting term or provision contained in such Customer Form Document shall be deemed rejected by us and of no force or effect, notwithstanding any provision of such Customer Form Document that purports to require acceptance of such document, even if we acknowledge receipt, process payment, or fulfill the order described therein. Our failure to object to any provision contained in a Customer Form Document shall in no event be deemed a waiver of this Section or an acceptance of such provision.
Any quotation (written, electronic, verbal, or generated via the Website) provided by us to you in response to a request for quote ("RFQ") is valid for a period of thirty (30) calendar days from the date of issuance, unless otherwise expressly stated in writing on the face of such quotation. All quotations are made on the condition that the pricing, specifications, quantities, material availability, and lead times contained therein are subject to change or correction prior to our formal written acceptance of your corresponding purchase order. Quotations do not constitute a binding offer by us to sell Products or provide Services, but instead constitute a non-binding invitation for you to submit a purchase order to us on the terms described therein.
Your submission of a purchase order, whether placed online through our Website checkout process, via email, through a customer success manager, by telephone, or by any other channel, constitutes a binding legal offer by you to purchase the Products and Services referenced in such purchase order on the terms stated therein and in this Agreement. No order placed by you shall be deemed accepted by us, and no binding contract of sale shall come into existence between the parties, unless and until we have:
whichever of (i) or (ii) occurs first in time. We reserve the absolute right, in our sole and absolute discretion and without any liability whatsoever to you or any third party, to refuse to accept or fulfill any order or part of any order for any reason or for no reason, including but not limited to orders for prohibited uses described in Section 10, orders containing artwork that infringes or may infringe third-party intellectual property rights, orders that in our sole professional judgment contain specifications that are not technically feasible or commercially reasonable, or orders from individuals or entities with whom we decline for any reason to transact business. In the event of any such refusal, we will promptly refund any payment already received from you for Products or Services not accepted.
After our formal acceptance of your order in accordance with this Section 2, any requested changes to product specifications, material specifications, sizes, quantities, finishes, artwork designs, lamination types, zipper specifications, optional features, packaging configuration, or any other technical or commercial term of the order (collectively, "Order Changes") may be requested by contacting your customer success manager or our support team. We will use commercially reasonable efforts to accommodate Order Change requests that are received by us prior to the commencement of the physical manufacturing process. All Order Change requests must be submitted and acknowledged by us in writing (email is sufficient) to be effective. Any Order Change that is accommodated by us may result in adjustments to the unit price, total order price, delivery date, production schedule, minimum order quantity, or other commercial terms, all of which shall be agreed to in writing by both parties before the Order Change is implemented. Any Order Change request received by us after commencement of manufacturing, lamination, printing, or die-cutting operations, or after purchase of raw materials specifically for your order, may not be possible to accommodate, and if accommodated, will be subject to a reasonable change order fee reflecting all costs incurred, plus our standard overhead markup. Orders that have not yet entered physical manufacturing may be canceled by written request subject to payment of a reasonable cancelation fee equal to all non-recoverable costs already incurred by us for your order including raw material purchases, design labor, pre-press setup, plate-making fees, and administrative costs plus applicable overhead, plus an administrative cancelation fee equal to 15% of the total order value. Cancellation requests received after commencement of the manufacturing process will not be accepted under any circumstances, and you shall remain responsible for payment of the full order price plus applicable taxes and shipping charges. No purported order cancelation communicated solely by voicemail, SMS message, social media message, or via any channel other than written email to your dedicated account manager or support@mylarbagdepot.com shall be effective.
Subject to the terms and conditions of this Agreement, and as a courtesy service exclusively for customers who have placed accepted paid orders qualifying for the complimentary design benefit (generally, orders of 100+ custom printed bags), we may in our sole and absolute discretion provide complimentary basic graphic design services ("Free Design Support") to assist customers with creating print-ready custom packaging artwork for their accepted order. Free Design Support includes up to two (2) initial digital proof concept variations and up to three (3) total subsequent rounds of revisions based on written change requests provided by you. Any additional rounds of design revisions, alternative concepts, extensive re-branding work, file reconstruction, new logo design, complete packaging re-draws, or other non-basic design services requested by you beyond the included allowance may be subject to additional hourly design fees at our then-current published professional services rate, which will be quoted to you in advance and will only be charged upon your prior written approval.
If you elect to provide your own custom print artwork file ("Customer Artwork"), you hereby acknowledge, agree, and represent that it is your sole and exclusive responsibility to ensure that all Customer Artwork files submitted by you conform to our then-current published Artwork Guidelines and File Specifications (available on request from your account manager) including file format requirements, resolution requirements, bleed and safety margin requirements, CMYK color gamut requirements, font embedding requirements, transparency flattening, dieline registration, and all other technical specifications. We are not responsible and shall have no liability whatsoever for print defects, registration errors, color shifts, image pixelation, text legibility failures, cut line misalignment, barcode scan failures, QR code failure, foil stamping registration errors, or any other printing or finishing defects that result directly or indirectly from Customer Artwork files that do not fully conform to the published technical specifications, regardless of whether we accepted, processed, or approved such files for production. We reserve the right, but not the obligation, in our sole professional judgment, to reject or flag Customer Artwork files that contain technical errors, non-conforming dimensions, missing bleeds, incorrect color profiles, low resolution imagery, or other technical issues known to us, and to request corrected replacement files before production. Any such review or flagging of files by our design or prepress team is done as a courtesy only and does not constitute a warranty, guarantee, or certification that the Customer Artwork file is technically correct, print-ready, or free of defects. You assume full and exclusive responsibility for all Customer Artwork content including, without limitation, the technical accuracy and print suitability of all such files.
Prior to commencing print production for any custom printed order, we will prepare and deliver to you digital artwork proof files (PDF format with die-line overlays and layer information) for your written sign-off and final approval ("Proofs"). You are required to review all Proofs carefully and thoroughly before providing written approval. Written approval of Proofs may be communicated via email, reply to proof email thread, in-Approve online proofing tool confirmation, or signed hard copy approval ("Written Approval"). Once your Written Approval of a Proof has been received by us, you are deemed to have irrevocably accepted and verified, at your sole cost and expense and without any reliance whatsoever on any review, comment, or flag that may or may not have been made by our design or prepress teams, all of the following: (i) the accuracy of all text, copy, spelling, grammar, and punctuation appearing on the packaging; (ii) the accuracy of all numerical values, barcodes, QR codes, lot numbers, expiration dates, batch codes, nutritional facts panels, ingredient lists, allergen statements, weight statements, net contents declarations, regulatory disclosures, compliance marks, and all other printed information; (iii) the correct placement, size, orientation, and alignment of all graphic elements on all panels of the bag; (iv) the correct registration of all artwork relative to the bag die-line, cut lines, zipper placement, gusset folds, and hang hole positions; (v) the correctness and suitability of all selected color values, PMS spot colors, CMYK builds, finishes, lamination types, coating specifications, and foil stamp placements; and (vi) the accuracy, completeness, and legal sufficiency of all claims, disclosures, and regulatory compliance statements required by any applicable federal, state, local, or international law or regulation to appear on the product packaging. We shall have no liability whatsoever for any printing errors, omissions, defects, compliance failures, or regulatory issues that appear on an approved Proof after you have provided Written Approval, even if such errors, omissions, defects, or issues would have been apparent or discoverable upon a reasonable review of the Proof by a competent graphic designer or compliance professional.
EXCEPT FOR TEXT ERRORS THAT WERE INTRODUCED BY OUR DESIGN TEAM AND THAT EXISTED IN THE APPROVED PROOF DELIVERED TO YOU AND THAT WOULD NOT HAVE BEEN APPARENT TO A REASONABLE REVIEWER (WHICH ERRORS WE WILL CORRECT BY REPRINTING THE AFFECTED QUANTITY AT NO CHARGE TO YOU IN ACCORDANCE WITH OUR QUALITY GUARANTEE IN SECTION 8), WE SHALL HAVE NO LIABILITY, AND NO REFUND, REPRINT, REPLACEMENT, OR CREDIT WILL BE ISSUED, FOR ANY TEXT, SPELLING, TYPOGRAPHICAL, GRAMMATICAL, PUNCTUATION, NUMERICAL, DATE, OR OTHER PROOFREADING ERRORS THAT APPEAR IN ANY APPROVED PROOF SIGNED OFF BY YOU IN WRITING, REGARDLESS OF WHO PREPARED THE INITIAL TEXT, COPY, OR LAYOUT, AND REGARDLESS OF WHETHER SUCH ERROR RESULTS IN PRODUCTS THAT ARE UNUSABLE, UNSELLABLE, OR IN VIOLATION OF APPLICABLE LAW. TEXT AND COPY ACCURACY IS YOUR EXCLUSIVE RESPONSIBILITY AT THE PROOF APPROVAL STAGE.
You acknowledge and agree that packaging printing reproduction involves inherent limitations and tolerances with respect to color reproduction, and that no printed output will exactly match colors as displayed on your computer monitor, laptop screen, tablet display, mobile phone display, television, or any other emissive RGB display device due to fundamental differences in color theory, color gamuts, viewing conditions, calibration, and technology between CMYK lithographic or digital offset printing on flexible substrates and RGB light emitting displays. Subtle color variations, hue shifts, brightness differences, and saturation variances between digital screen previews and final printed products are inherent in the process and are not considered defects, errors, or grounds for return, refund, or reprint under any circumstances. Where critical brand color accuracy is required, you must explicitly request and purchase a paid physical printed color drawdown proof or contract proof on the actual production material prior to placing your Written Approval of the Proof. All paid physical drawdown proofs will be billed separately before production begins.
All prices for Products and Services displayed on our Website, provided in written quotations, or communicated by our sales or customer success teams are quoted and invoiced in United States Dollars (USD), and are valid only for the period specified in the quotation or as updated on the Website. Prices include the cost of Products and applicable Free Design Support services, but EXCLUDE, to the extent not expressly included, all applicable federal, state, provincial, municipal, territorial, and foreign taxes (including sales tax, use tax, value added tax "VAT", goods and services tax "GST", harmonized sales tax "HST", excise duties, customs duties, import tariffs, and any other tax, levy, duty, or governmental charge whatsoever), all shipping, freight, handling, insurance, and customs clearance charges, and all separate paid professional services fees, die tooling charges, plate making fees, set-up fees, and rush production or expedited shipping fees if applicable. We reserve the right to adjust our prices for Products and Services at any time and from time to time without prior notice, except that for orders already formally accepted by us under Section 2 above, the pricing as stated in the order acceptance confirmation shall remain firm and binding. Published prices on the Website may from time to time contain typographical errors or pricing mistakes. We reserve the right to correct any such error and to cancel or refuse to honor any order placed at an erroneously published price, even if the order has been initially accepted, if the error was material and the order has not yet shipped; provided that we will provide prompt notice of the error and the corrected price to you and offer you the opportunity to confirm the order at the corrected price or cancel for a full refund of any amounts paid.
You are solely and exclusively responsible for, and shall indemnify, defend, and hold harmless Mylar Bag Depot from and against, any and all sales taxes, use taxes, value added taxes (VAT), goods and services taxes (GST), harmonized sales taxes (HST), excise taxes, stamp duties, import customs duties, tariffs, import value adjustments, port fees, clearance fees, broker fees, and any other governmental charges, fees, levies, and assessments, together with any related penalties, interest, fines, or additions to tax, imposed by any taxing or customs authority of any jurisdiction with respect to the purchase, sale, production, shipment, import, export, use, or resale of the Products or Services sold under this Agreement, other than taxes imposed on or measured by our net income, gross receipts, or capital. If we are required by applicable law to collect or remit any such taxes or duties on your behalf, the amount of such taxes or duties will be separately itemized on your invoice or checkout summary and shall be paid by you to us together with the purchase price for the Products. In the event that any applicable tax or duty was not properly charged, collected, or remitted at the time of sale, you remain liable for such amounts and agree that we may invoice you retrospectively for any such properly-determined taxes or duties, and that you shall pay such invoiced amounts within 10 calendar days of the invoice date. For all international orders shipped to destinations outside of the United States, you acknowledge and agree that the consignee (you) is the importer of record, that all import duties, customs tariffs, brokerage fees, port handling charges, and any associated VAT/GST or import taxes imposed by the destination country are your sole responsibility, and that such charges are collected by the shipping carrier upon delivery or prior to delivery and are in addition to the purchase price and any outbound international shipping charges already paid to us. We are not responsible for estimating, calculating, or quoting duties, taxes, or brokerage charges for international shipments.
Unless a separate written Net Terms credit arrangement has been approved by our finance department (in which case the terms of such written credit arrangement shall govern with respect to payment timing), payment in full for the entire order value, including all Products, Services, taxes, shipping charges, and any applicable fees, is due at the time of order placement and before our acceptance of the order in accordance with Section 2. We accept the following methods of payment, subject to change in our sole discretion: major credit cards (Visa, Mastercard, American Express, Discover), debit cards, PayPal, bank wire transfers in USD, automated clearing house (ACH) electronic transfers for qualifying US customers, Shopify Pay, Apple Pay, Google Pay, and such other payment methods as may be offered at checkout from time to time. All payments are processed by our PCI DSS Level 1 compliant payment processors as further described in our Privacy Policy. We are not responsible for any payment processing errors, merchant hold delays, rejected transactions, or foreign currency conversion fees charged to you by your card issuer, bank, or payment provider. You represent and warrant that (i) you have full legal authority to use all payment methods provided to us; (ii) all payment information submitted by you is true, accurate, current, and complete; (iii) all charges incurred by you will be honored by your payment provider; and (iv) you will pay all charges incurred at the prices in effect at the time the charges accrue, including all applicable taxes, shipping, and other charges. In the event that any payment is dishonored, declined, charged back, reversed, or fails for any reason, we reserve the right to charge a reasonable returned payment or administrative fee of the greater of $25 or 5% of the outstanding invoice balance, or such maximum amount as permitted by applicable law. Any amounts not paid when due shall accrue interest at the rate of one and one-half percent (1.5%) per month on the unpaid balance, or the maximum rate permitted by applicable law, whichever is lower, compounded monthly, until paid in full. You further agree to reimburse us for all reasonable costs of collection including attorney fees, court costs, collection agency fees, and arbitration fees incurred by us in collecting any undisputed past-due amounts.
All stated production turnaround times, shipping estimates, and delivery dates provided by us on our Website, in quotations, in order confirmations, by customer support staff, by automated tracking tools, or by carriers (collectively, "Timelines") are approximate estimates only, provided solely for general planning purposes, and are NOT guaranteed delivery dates or commitments of any kind. Standard production times are approximately 7 business days for most qualifying custom print orders (Starter tier and Growth tier), approximately 10–14 business days for Starter-tier small orders, and 3 business days for paid Rush Production eligible orders, measured from the date of your Written Approval of final digital artwork Proofs, NOT from the date of order placement or initial payment. Production times do not include shipping transit time, weekends, observed US federal holidays, carrier service disruptions, or unforeseen delays. Actual production and delivery times may vary for any reason, including but not limited to material supply chain disruptions, raw material shortages, unplanned equipment maintenance or failure, labor disputes, third-party vendor delays, unusually high order volume or peak seasonal demand, extreme or severe weather events, acts of God, regulatory actions, and other factors described in the Force Majeure provision in Section 20. Under no circumstances whatsoever shall Mylar Bag Depot be liable for any direct, indirect, incidental, consequential, special, exemplary, or punitive damages, or for any lost profits, lost sales, lost brand opportunity, lost goodwill, inventory rework costs, expedited freight costs, air charter costs, product launch delay costs, promotion cancellation costs, third-party claims, or any other losses, costs, damages, or expenses of any kind arising out of or related to any delay in production or delivery of Products or Services for any reason whatsoever, even if Mylar Bag Depot has been advised of the possibility of such damages or losses. If, in our sole discretion, we elect to offer any form of compensation for a delayed delivery, such compensation shall be limited exclusively to a credit against the purchase price of the delayed order (up to a maximum of 10% of the affected order subtotal) or a store credit of equivalent value, and such remedy shall be your sole and exclusive remedy for any such delay.
Unless otherwise specifically agreed in writing and itemized separately on your order invoice, all Products are shipped F.O.B. Origin (Uniform Commercial Code § 2-319), from our designated production or warehouse facility located in Denver, Colorado, United States or such other location as we may designate. Shipping charges, handling fees, and transit insurance premiums are calculated and charged at checkout based on the weight, dimensions, destination, declared value, and selected service level of your shipment and are non-refundable for orders that have been tendered to the carrier, regardless of whether the shipment is subsequently returned, refused, abandoned, or ultimately delivered. We currently use UPS, FedEx, DHL Express, USPS, and other nationally and internationally recognized parcel and LTL freight carriers (the "Carriers") at our sole discretion. We reserve the right to select a different carrier, service level, or method of transport than the one selected at checkout if we determine in our sole discretion that such a change will result in equal or faster delivery to the destination; provided that any such change will not be made to a lower level of service that would reasonably be expected to materially increase transit time without prior notice to you.
Risk of physical loss, damage, destruction, deterioration, delay, or mis-delivery of the Products passes to you immediately upon our tender of the Products to the Carrier at the shipping facility, regardless of whether shipping charges are prepaid or collect, and regardless of any FOB destination notation that may appear on any system-generated shipping label. Title to the Products passes to you upon our receipt of full cleared payment for the Products in immediately available funds, without regard to physical delivery or shipment status. If any Products are lost, damaged, or partially destroyed in transit after tender to the Carrier, you are responsible for filing any claims directly with the Carrier for reimbursement of the declared shipment value, and you agree to cooperate fully and reasonably with us and with the Carrier in filing, documenting, and processing any such freight claim including providing timely photos of all packaging, damage, shipping labels, and contents. In the event of lost or damaged shipments, we will provide reasonable assistance to you in the form of duplicate invoices, copies of packing lists, and shipment data, but you acknowledge and agree that we shall have no liability or obligation to issue replacement products or refunds for shipments lost or damaged by the Carrier unless and until we have actually received a confirmed claim reimbursement payment from the Carrier for the full value of the loss, and then only to the extent of such actual reimbursement actually received by us. Shipping insurance up to the full declared value of the order is included automatically on all domestic US commercial shipments and on all international DHL Express shipments as part of standard handling fees, with the Carrier as the insurer of record.
For all orders shipped to destinations outside of the continental United States, including orders to Alaska, Hawaii, Puerto Rico, all US territories, Canada, Europe, United Kingdom, Australia, New Zealand, Asia, Africa, Latin America, and all other international destinations, you acknowledge and agree that: (i) you are the importer of record for customs purposes in the destination country; (ii) you are solely and exclusively responsible for all import customs duties, tariffs, dutiable value adjustments, import value added taxes (VAT), goods and services taxes (GST), harmonized sales taxes (HST), excise duties, port handling fees, customs brokerage fees, storage fees at the carrier facility, quarantine inspection fees, phytosanitary fees, and any other governmental charges, fees, levies, penalties, or additions to tax imposed by any customs, tax, or border protection authority of the destination country or of any transit country, all of which are due and payable by you at the time of import clearance and are collected directly by the Carrier or the Carrier's appointed customs broker, and are in addition to the purchase price of the Products and the outbound international shipping charges already paid to us; (iii) it is your sole responsibility to verify and ensure that the Products being imported comply fully with all applicable laws, rules, regulations, standards, restrictions, import licensing requirements, labeling requirements, technical standards, product safety standards, food contact materials requirements, and any other restrictions or prohibitions enforced by any customs, border protection, product safety, or other governmental authority in the country of importation; (iv) we make no representation, warranty, or guarantee that any Products will be permitted entry or cleared through customs in any particular destination country; (v) if a shipment is refused entry, seized, confiscated, detained, held, destroyed, returned, or re-exported by any customs authority or governmental agency for any reason whatsoever including non-compliance with any import requirement, failure to pay duties or taxes, lack of required import licenses or permits, prohibited import status, or any other reason, you shall remain fully and exclusively responsible for the full purchase price of the Products, all shipping charges, all duties, taxes, and brokerage charges, all return shipping charges, all storage and warehousing charges, and any and all administrative or penalty charges levied by the Carrier or any governmental authority; and (vi) in the event of seizure, confiscation, destruction, refusal of entry, or abandonment of an international shipment by you, no refund, replacement, credit, or store credit of any kind will be issued by us under any circumstances, and all payments already made by you to us shall be retained by us as liquidated damages for our performance of manufacturing and related services, such liquidated damages being a reasonable estimate of the losses we will incur by reason of such refusal, seizure, abandonment, or destruction, given that the Products are custom manufactured to your unique specifications and have no residual value or marketability to us or to any other customer.
It is your sole and exclusive responsibility to ensure that all shipping address information (recipient name, company name, street address, suite or unit number, city, state or province, postal or zip code, country, recipient phone number, and any access codes or special delivery instructions) provided to us at the time of checkout or in any address update is complete, accurate, correct, and current. We are not responsible for shipments that are mis-delivered, lost, returned to sender, refused by the recipient, abandoned at a carrier access point, or incur additional address correction, redelivery, or re-shipment fees due to incorrect, incomplete, outdated, or invalid shipping address information provided by you, or due to failure of the intended recipient to be present at the time of delivery, failure to answer carrier calls or text messages, or refusal to accept delivery. In the event that a shipment is returned to our facility as undeliverable, unclaimed, refused, or for any other reason for which the Carrier will not accept liability, we will contact you to arrange reshipment or local pickup; provided that you shall be responsible for all return shipping charges charged by the Carrier to return the shipment to our facility, plus all applicable reshipment charges for a second or subsequent delivery attempt. If you fail to respond to our contact attempts within 10 calendar days of the first notification, or if you otherwise abandon the shipment, we reserve the right, at our sole option, to either destroy the returned shipment or retain and resell it without any further obligation or liability to you whatsoever, without refund, credit, or setoff against amounts already paid, and without releasing any unpaid balance you may owe. If a shipment is refused by the intended recipient without valid cause and returned to us, all outbound and return shipping charges are non-refundable, and a restocking fee of 25% of the gross order value may apply before any partial refund of the remaining product purchase price is processed, provided that the Products are unused, unopened, and in resalable condition, and further provided that no custom printed or custom manufactured products may be returned or refunded for any reason whatsoever under this Section 6.d.
All product descriptions, technical specifications, dimensional drawings, material thickness tolerances, barrier performance data, zipper closure ratings, child-resistant testing reports, burst strength values, oxygen transmission rates (OTR), water vapor transmission rates (WVTR), heat sealing temperature ranges, pouch capacity weight recommendations, and all other technical data published on our Website, in catalogs, in data sheets, in quotation documents, or provided by our staff (collectively, "Specifications") are provided in good faith and are believed by us to be accurate based on manufacturer specifications and our own internal laboratory testing. However, you acknowledge that the Specifications are approximate only, are subject to normal manufacturing and material variances and tolerances customary in the flexible packaging industry, and are provided for general guidance only. Normal manufacturing tolerances applicable to custom flexible packaging include, without limitation: dimensional tolerance of ± 1/8 inch (approximately 3mm) on all bag width, height, and gusset dimensions; film thickness tolerance of ± 10% of stated gauge; zipper placement tolerance of ± 1/16 inch; OTR/WVTR barrier performance tolerance of ± 15% of stated values; color variation within the standard GRACoL G7 color management tolerances for commercial printing of ΔE ≤ 5; print registration tolerance of ± 0.5mm across panels; and standard waste allowance of up to 2% over or under the ordered quantity on production runs, which overage or underage will be proportionally invoiced or credited, respectively. Production and delivery of any finished Products within these industry standard tolerances shall be deemed complete performance by us and shall not constitute a defect, non-conformity, or breach of contract. Orders with small minimum order quantities may be subject to wider relative tolerances; your account manager will advise you where applicable.
Most of our standard Mylar bag constructions and flexible pouch materials are manufactured from virgin food-contact-grade raw materials including polyester (PET), aluminum foil (AL), and polyethylene (PE) sealant layers that, when properly manufactured, laminated, cured, and used under intended conditions of use, are generally recognized by the United States Food and Drug Administration ("FDA") as complying with the applicable food additive regulations set forth in 21 C.F.R. Parts 174 – 186 for indirect food additives used as components of articles intended for use in contact with food. However, you acknowledge, understand, and agree the following: (i) we are not a laboratory, testing facility, food regulatory body, or law firm, and we do not provide legal, regulatory, or compliance advice of any kind; (ii) the determination of whether any specific Product is suitable and legally compliant for your specific product, intended use, intended shelf life, target distribution market, applicable product category, and applicable regulatory framework is your sole and exclusive responsibility; (iii) you must engage your own qualified independent food safety consultant, toxicologist, packaging engineer, or regulatory attorney to perform a formal food safety assessment and letter of opinion for each specific food application and each market where products will be sold, and to conduct finished product migration testing and compliance testing where required; (iv) no statement or representation made by any employee, agent, customer success manager, or sales representative of Mylar Bag Depot, whether written, verbal, or electronic, including any statements made on product listing pages, data sheets, or quotation documents, regarding FDA, USDA, EU No. 10/2011, CFIA, Health Canada, JHPA, or any other compliance status, shall be deemed a warranty of compliance, shall be legally binding on us, or shall be relied upon as a substitute for your own independent testing and legal compliance review; and (v) you shall be solely responsible for, and shall indemnify, defend, and hold Mylar Bag Depot harmless from and against all claims, damages, regulatory actions, fines, recalls, seizures, adverse event reports, and consumer claims arising out of or relating to any actual or alleged failure of Products sold to you to comply with any applicable food contact, food safety, consumer product safety, environmental, labeling, or other laws or regulations of any jurisdiction whatsoever, regardless of whether such compliance issue arises from the base materials, our manufacturing process, your product contents, your product label claims, or otherwise.
Certain SKUs of zipper bags marketed on our Website as "Child-Resistant" or "CR Certified" are offered as manufactured articles that we believe, based on documentation received from our upstream component suppliers, to have passed the federal Consumer Product Safety Commission (CPSC) protocol for child-resistant effectiveness testing as set forth in 16 C.F.R. § 1700.20 (the "CR Protocol"). IMPORTANT NOTICE: Child-resistant packaging certification applies to and is valid for the specific CR packaging article as tested when it is properly and fully closed and engaged in the child-resistant mechanism, by itself and without regard to the specific contents, but does NOT constitute certification that your specific product, when placed inside the bag, meets any state, federal, or local statutory or regulatory requirement for packaging of any regulated product category. Determining whether a child-resistant package is legally required for your specific product, and whether the bag as used with your product and your sealing process meets all applicable standards and regulations, is your sole and exclusive responsibility and requires independent review by your qualified regulatory counsel. We make no warranty, guarantee, or representation that any CR bag SKU purchased by you will be accepted as legally compliant by any particular state, local, or federal regulator, by a judge, jury, or arbitrator, or by any third-party auditor or certification body. YOU MUST CONDUCT YOUR OWN INDEPENDENT VERIFICATION, TESTING, AND LEGAL REVIEW OF APPLICABLE REGULATORY REQUIREMENTS BEFORE USING OR RESALE OF ANY CHILD-RESISTANT BAGS PURCHASED FROM US.
Mylar Bag Depot warrants to the original purchasing Customer, for a period of sixty (60) calendar days from the date of delivery of the Products to the shipping destination, that all Products manufactured and delivered by us shall, when properly used in their intended manner, be free from material manufacturing and workmanship defects including, subject to the tolerances and exclusions stated in Section 7, defective or broken zipper seals, major delamination of film layers, mis-cut or mis-formed pouches outside of stated tolerances, major print registration errors (excluding errors on proofs approved by Customer), defective heat seal welds that fail under normal filled drop test conditions, and raw material defects that existed at the time of manufacture and result in unusable Products (the "Limited Warranty"). This Limited Warranty is the sole and exclusive warranty provided by Mylar Bag Depot and is in lieu of all other warranties, representations, conditions, or guarantees, whether express, implied, statutory, or arising by course of dealing, usage of trade, or otherwise, all of which are hereby disclaimed to the fullest extent permitted by applicable law, including without limitation all implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. The Limited Warranty is personal to the original purchasing Customer and does not run to any subsequent transferee, reseller, distributor, sub-purchaser, end user, consumer, or other third party.
The Limited Warranty provided in this Section 8 does NOT apply to and covers none of the following, all of which are excluded from any warranty coverage: (i) any alleged defects, errors, or issues that appear in any digital proof approved in writing by Customer in accordance with Section 3.c, including without limitation all text errors, misspellings, numerical errors, incorrect legal disclosures, incorrect barcodes, wrong PMS colors, and all other approved Proof content; (ii) any Products that in our reasonable sole judgment have been subjected to misuse, abuse, negligence, improper storage (exposure to excessive moisture, humidity, extreme heat or cold, direct sunlight, UV degradation, or corrosive environments), accident, vandalism, alteration, modification, attempted repair, re-sealing, re-processing, over-filling beyond rated weight capacity, or handling other than in accordance with published handling instructions; (iii) normal manufacturing variances and tolerances within the industry standards published in Section 7.a; (iv) color differences between the printed Products and any digital or electronic preview image displayed on any screen, monitor, or proofing device, or color differences due to paper proof, press proof, or substrate mismatches; (v) any Products that were not manufactured by Mylar Bag Depot or that were purchased from an unauthorized reseller, distributor, broker, or marketplace reseller; (vi) cosmetic and aesthetic issues that do not materially impair the functional barrier or seal performance of the bag, including minor, aesthetic-only print specks, minor dust contamination visible only under close magnification, minor film scuffs occurring during normal boxed transport that do not affect barrier integrity, and other minor aesthetic imperfections that are customary in commercial flexible packaging manufacturing; (vii) any damage, defect, or failure caused by third-party sealers, heat seal equipment, automated filling lines, induction sealers, or other packaging equipment that is not manufactured, calibrated, supplied, or specified by Mylar Bag Depot in writing; and (viii) indirect, incidental, special, consequential, exemplary, or punitive damages of any kind whatsoever, including without limitation all lost profits, lost sales, lost revenue, lost business opportunities, brand harm, and all costs of reworking or re-labeling products, regardless of whether Mylar Bag Depot was informed or should have been aware of the possibility of such damages.
To make any claim under the Limited Warranty, Customer must contact Mylar Bag Depot Customer Support team via email at support@mylarbagdepot.com (and NOT by phone, social media, chat, or any other channel) no later than fifteen (15) calendar days from the date of delivery of the affected Products, or such longer period as may be required by applicable non-waivable consumer protection law, specifying in reasonable detail the nature of the claimed manufacturing defect, the order number, the affected SKU or item, the estimated quantity of defective units, and attaching clear, well-lit high-resolution digital photographs of: (i) the exterior of all original shipping boxes and shipping labels, (ii) the packing slip, (iii) the allegedly defective Products displaying the specific defect, (iv) a clear photo of any production markings, lot codes, or QC stamps on the bags or boxes, and (v) any other evidence reasonably requested by our quality control department. Customer shall, upon our request, ship (at our expense using a pre-paid shipping label provided by us) up to a representative sample of ten percent (10%) of the allegedly defective units to our QC inspection facility for verification and failure analysis. Customer agrees to hold and preserve all allegedly defective Products in a secure, climate-controlled location and to make them reasonably available for inspection during normal business hours for a period of at least thirty (30) calendar days from the date of the claim, and to cooperate in any reasonable failure analysis investigation, prior to the discard, rework, or destruction of any of the affected Products. ANY WARRANTY CLAIM NOT BROUGHT IN STRICT COMPLIANCE WITH THE NOTICE, PHOTOGRAPH, AND COOPERATION REQUIREMENTS OF THIS SECTION 8.c WITHIN THE APPLICABLE TIME PERIOD SHALL BE DEEMED WAIVED, ABANDONED, AND BARRED FOREVER, AND WE SHALL HAVE NO LIABILITY WHATSOEVER WITH RESPECT THERETO.
Upon our good-faith verification and validation that any delivered Products contain material manufacturing defects covered under the Limited Warranty in Section 8.a, our sole and exclusive obligation, and Customer's sole and exclusive remedy for any such validated manufacturing defect claim, shall be, at our sole election and in our absolute discretion, any one of the following: (i) to reprint and ship replacement Products of substantially equivalent specifications at no additional charge to Customer; (ii) to issue a non-expiring store credit to the Customer's account in the amount of the purchase price of the affected defective Products (calculated pro-rata based on the per-unit purchase price of the defective units, excluding taxes, shipping, and non-refundable fees); or (iii) to refund to Customer the purchase price actually paid by Customer for the affected validated defective Products, excluding all previously incurred shipping and handling charges which shall remain non-refundable. The exclusive remedy stated in this Section 8.d is Customer's sole monetary and equitable remedy for any and all claims, demands, or causes of action arising out of or relating to any manufacturing or workmanship defects, non-conformity, or breach of warranty under this Agreement, including any and all claims for breach of contract, breach of warranty, tort, strict liability, negligence, misrepresentation, and all other legal and equitable theories, to the exclusion of all other remedies available at law or in equity, all of which are hereby knowingly and voluntarily waived by Customer to the fullest extent permitted by applicable law.
Subject to the restrictions below, returns of non-custom, stock, blank, unprinted, standard catalog SKU Products that are NOT custom printed, NOT custom sized, NOT custom die-cut, and NOT ordered specifically to Customer specifications may be accepted for refund or exchange in our sole and absolute discretion, provided that ALL of the following conditions are strictly met: (i) the return request is submitted by the original Customer in writing via email to support@mylarbagdepot.com no later than 10 calendar days from the date of original delivery; (ii) the Products are in their original unopened master shipping cartons, unused, un-filled, un-sealed, and in pristine resalable condition with no damage, scuffs, dirt, moisture, or signs of handling or storage outside the original carton; (iii) the total quantity being returned equals at minimum 95% of the original ordered quantity in the original unit packaging; (iv) the Products are not limited edition, promotional, or clearance items explicitly marked as non-returnable; (v) a valid, pre-approved Return Merchandise Authorization (RMA) number has been issued by us in writing and clearly appears on the exterior of the return shipping carton; and (vi) the returned Products are received by our designated returns warehouse location within 14 calendar days of the date of RMA issuance. ALL custom printed bags, custom-sized bags, custom die-cut products, custom laminated constructions, and any other products that were specifically manufactured to order or to Customer specifications are NON-RETURNABLE and NON-REFUNDABLE for any reason whatsoever, including but not limited to over-ordering, changed mind, changed marketing plans, product formulation changes, label rebrands, or any other reason. All authorized non-custom stock returns are subject to a mandatory restocking fee of twenty-five percent (25%) of the original gross purchase price of the returned items, plus any shipping refunds or discounts applied to the original order, and all original outbound shipping charges and return shipping charges are strictly non-refundable. Refunds will be processed back to the original method of payment within 10 business days of our receipt and physical inspection and verification that the returned Products meet all of the above conditions in our sole reasonable discretion. If returned Products are received by us in any condition other than that specified above, we reserve the right to reject the return in full and reship the Products back to you at your expense, and no refund will be issued.
As between the parties, we and our respective licensors are and shall remain at all times the sole and exclusive owners of all worldwide right, title, and interest in and to: (i) the Website, all underlying source code, databases, server infrastructure, API endpoints, e-commerce platform configuration, proprietary design tools, online proofing systems, customer portal features, and all derivative works thereof; (ii) all trademarks, service marks, trade names, brand names, taglines, logos, design marks, trade dress, product configurations, social media content, marketing materials, advertising copy, press materials, photographs, videos, audio content, blog posts, website content, technical documentation, product data sheets, product descriptions, catalog content, and the overall visual appearance, look-and-feel, and graphic design of all Products sold by us, together with all registrations and applications for registration of any of the foregoing anywhere in the world (collectively, the "Mylar Bag Depot Marks" and our "Content"); (iii) all proprietary packaging constructions, proprietary die shapes and die-cut configurations (except those designed exclusively for a specific single Customer pursuant to a paid custom die tooling charge on that Customer's order), production techniques, know-how, trade secrets, customer lists, pricing models, cost structures, supplier information, quality control procedures, and all other confidential information described in Section 13; and (iv) all copyrights, moral rights, trademark rights, patent rights, trade secret rights, database rights, and all other intellectual property and proprietary rights of any kind whatsoever (whether registered or unregistered, and including all applications for registration and rights to apply for registration) that subsist in or relate to any of the foregoing. Except for the limited, non-exclusive, non-transferable, revocable license to access and use the Website for your personal or internal business purposes set forth in this Section 9, no license, ownership right, title, or interest of any kind in or to any of our intellectual property is granted, assigned, or transferred to you or any third party by virtue of this Agreement, access to the Website, or the purchase of Products, whether by implication, estoppel, or otherwise. You may not copy, reproduce, distribute, publicly display, perform, publish, transmit, broadcast, hyperlink to, frame, scrape, data mine, reverse engineer, decompile, disassemble, modify, create derivative works of, or commercially exploit any part of the Website, the Mylar Bag Depot Marks, or our Content without our prior express written permission in each instance. All rights not expressly granted to you by the plain terms of this Agreement are reserved exclusively by us and our licensors.
By submitting, uploading, transmitting, posting, providing, or otherwise making available any Customer Artwork files, design files, logos, brand assets, product photographs, marketing copy, product descriptions, text, images, fonts, graphics, illustrations, brand colors, creative briefs, written instructions, or other materials, content, or information (collectively, "Customer Content") to us, our employees, our design team, our customer support team, or to the Website for the purpose of manufacturing Products or providing Services to you, you hereby make all of the following legally binding representations and warranties on behalf of yourself and all beneficial owners of rights in such Customer Content, and you grant to us the licenses set forth below:
Subject to the terms and conditions of this Agreement, you hereby grant to Mylar Bag Depot, our affiliates, our authorized contract manufacturers, our approved suppliers, and our authorized third-party service providers a limited, non-exclusive, non-transferable (except as permitted under Section 22.h), non-sublicensable (except to our approved contract manufacturers and service providers strictly performing obligations on our behalf), worldwide, royalty-free, fully-paid-up license during the term of this Agreement and for a reasonable period thereafter, solely for the purpose of performing our obligations and exercising our rights under this Agreement, to: (A) reproduce, copy, store, archive, transmit, display, process, pre-flight, reformat, color-separate, rasterize, vectorize, trap, proof, print, laminate, coat, die-cut, emboss, foil-stamp, manufacture, assemble, and incorporate the Customer Content into the finished Products; (B) display digital previews of Products incorporating Customer Content on our internal proofing portal, in emails to you, and on our proprietary customer-facing systems for your review and approval; and (C) test, inspect, and quality control the Products. You hereby waive, to the fullest extent permitted by applicable law, all moral rights, droit moral, and similar author's rights or performer's rights that you may have in or to the Customer Content in connection with our authorized uses thereof.
Unless you have expressly opted out in writing (via email to your account manager, specifically referencing this section 9.b.iii) at or before the time of order placement, you further grant to Mylar Bag Depot a perpetual, irrevocable, worldwide, royalty-free, non-exclusive license to use, reproduce, display, distribute, publish, and otherwise exploit photographic or digital images, portfolio renderings, product mockups, and digital representations of the finished custom Products that incorporate your Customer Content, together with your company or brand name, solely and exclusively for the limited purpose of displaying such work in our portfolio, on our Website, in our blog, in our case studies, in our marketing materials, in our social media profiles, and in our sales and advertising presentations to prospective customers to showcase our capabilities and the quality of our work. No compensation, royalty, or payment of any kind shall be payable to you in respect of such portfolio use. You may opt out of this portfolio license at any time by written email to us and we will use commercially reasonable efforts to remove your portfolio content from public-facing materials within 30 calendar days, subject to reasonable exceptions for printed materials already produced and distributed and for content cached by third-party search engines and platforms over which we have no direct control.
You agree to defend, indemnify, and hold harmless Mylar Bag Depot LLC, its affiliates, officers, directors, employees, contractors, licensors, suppliers, service providers, and agents from and against any and all claims, causes of action, suits, proceedings, complaints, subpoenas, investigations, demands, letters, notices, damages, losses, liabilities, deficiencies, fines, penalties, interest, judgments, awards, settlements, costs, and expenses (including reasonable attorneys' fees, expert witness fees, court costs, and arbitration fees) of every nature and description whatsoever, whether in law, in equity, in arbitration, or before any regulatory tribunal, arising out of, based upon, relating to, or resulting from: (i) any actual or alleged infringement, misappropriation, dilution, or violation by Customer Content, or by any Products manufactured in accordance with Customer Content and Customer's approved Proofs, of any copyright, trademark, service mark, patent, trade secret, trade dress, right of publicity, right of privacy, moral right, or other intellectual property or proprietary right of any third party; (ii) any actual or alleged false advertising, deceptive trade practice, consumer fraud, misrepresentation, or failure to disclose material facts arising from or related to any statement, claim, omission, label, graphic, or other content contained in Customer Content or printed on Products manufactured to Customer's specifications; and (iii) any actual or alleged violation of any applicable law, regulation, rule, ordinance, or order by Customer Content, by the Customer's use or sale of the Products filled with Customer's product contents, or by Customer's business practices with respect to the Products. In the event of any third-party claim or threatened claim against us falling within the scope of the foregoing indemnity, we shall: (A) promptly notify you of the claim in writing; (B) grant you the right, at your sole cost and expense, to assume the exclusive defense and control of the claim with counsel reasonably acceptable to us (provided that you acknowledge and agree that our failure to provide prompt notice of any claim shall not relieve you of your indemnification obligations hereunder except to the extent that you are actually and demonstrably prejudiced in your ability to defend such claim); and (C) provide you with reasonable cooperation and assistance in the defense of such claim at your written request and at your reasonable out-of-pocket expense. You further agree that you shall not enter into any settlement, compromise, consent judgment, or stipulation of any kind that (x) imposes any obligation of monetary payment or future performance on us, (y) admits any wrongdoing, fault, or liability on our part, or (z) subjects any of our intellectual property, products, processes, or business practices to any license, restriction, or injunction, in each case without our prior express written consent, which consent shall not be unreasonably withheld, conditioned, or delayed.
You agree that you shall not, and shall not permit or authorize any third party, including any employees, agents, contractors, resellers, distributors, or joint venturers of yours, to: (a) access, use, or purchase Products or Services from us for any purpose, use, application, end use, or resale that violates any applicable federal, state, local, or international law, statute, regulation, ordinance, rule, order, or requirement of any governmental authority, whether in the jurisdiction of manufacture, the jurisdiction of shipment origin, the jurisdiction of transit, or the jurisdiction of destination, sale, use, or consumption; (b) upload, submit, provide, or use any Customer Content that is defamatory, libelous, slanderous, hateful, discriminatory, harassing, abusive, tortious, threatening, violent, obscene, pornographic, indecent, vulgar, or otherwise objectionable, or that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law; (c) use any Customer Content that contains or depicts images, likenesses, names, signatures, voices, biometric information, or personal identifying information of any identifiable individual, public figure, or minor child, unless you have obtained a fully executed, written, irrevocable release and consent to use from that individual or from their legally authorized parent or guardian, sufficient to permit all intended uses worldwide in all media and for all purposes for the duration of all applicable intellectual property and publicity rights terms; (d) use any Customer Content that incorporates, reproduces, imitates, or is confusingly similar to any third-party trademark, service mark, trade name, brand name, logo, design patent, copyrighted artwork, character, mascot, or celebrity image without first obtaining a fully-executed written license from such third party, and you bear the exclusive burden of proving the existence of such license to us upon demand; (e) use the Website or any Services in any manner that, in our sole reasonable judgment, could damage, disable, overburden, impair, compromise the security of, or otherwise interfere with the operation of the Website, our e-commerce platform, our email systems, our proofing systems, or our other information technology infrastructure, or that could introduce any virus, malware, ransomware, worm, Trojan horse, spyware, adware, malicious script, SQL injection, cross-site scripting payload, or other harmful code into any of our systems, or that constitutes an attempt to gain unauthorized access to any portion of our systems, data, servers, user accounts, or networks; (f) engage in any form of scraping, data mining, data harvesting, bulk copying, bulk downloading, automated crawling, indexing, price monitoring, competitive data collection, or other automated access to or use of the Website or any Content or data displayed thereon, whether by use of scripts, bots, crawlers, scrapers, spiders, scrapers, headless browsers, automated tools, or manual processes for large-scale or systematic data collection for any commercial purpose, without our prior express written consent; (g) frame, inline link, mirror, deep-link, or use any framing technology to enclose, display, or surround the Website, any individual page, any product image, or any Content contained on the Website within another website, application, or service without our prior express written consent; (h) use any false name, false address, impersonated identity, stolen credit card, stolen payment credential, unauthorized corporate identity, or fabricated or misleading information to create an account, place an order, submit a quote, or otherwise transact with us; or (i) resell, distribute, broker, supply, or furnish any Products purchased from us to any individual or entity that you know or reasonably should know intends to use or resell such Products for any unlawful purpose or in any manner that would violate any applicable law, regulation, or rule, including without limitation any law that regulates or restricts the labeling, packaging, marketing, or sale of regulated consumer products, pharmaceuticals, controlled substances, cosmetic products, medical devices, food products, or infant and children's products. We reserve the right, without prior notice and without any liability whatsoever to you or to any third party, to immediately suspend or terminate your account, refuse pending orders, cancel unshipped orders, and/or permanently ban you and your affiliates from future purchases from us, if in our sole and absolute reasonable discretion we believe that you have violated any provision of this Section 10 or otherwise engaged in conduct that is harmful to us, to our employees, to other customers, to our reputation, or to any third party. Any such action on our part shall not release you from any obligations owed under this Agreement including, without limitation, the obligation to pay for Products that have already been manufactured or shipped prior to the date of such action.
NOTHING CONTAINED IN THIS AGREEMENT, ON THE WEBSITE, IN OUR PRODUCT LISTINGS, IN ANY DATA SHEET, IN ANY QUOTATION, IN ANY TECHNICAL SPECIFICATION, OR IN ANY STATEMENT MADE BY OUR EMPLOYEES, AGENTS, OR REPRESENTATIVES, SHALL BE CONSTRUED AS LEGAL ADVICE, REGULATORY ADVICE, COMPLIANCE CONSULTING, OR A GUARANTEE OR WARRANTY THAT THE PRODUCTS OR THE PROPOSED LABELING AND PACKAGING FOR YOUR PRODUCTS WILL COMPLY WITH ANY APPLICABLE FEDERAL, STATE, PROVINCIAL, LOCAL, OR INTERNATIONAL LAW, REGULATION, RULE, ORDINANCE, STANDARD, OR DIRECTIVE OF ANY GOVERNMENTAL AUTHORITY, AGENCY, REGULATORY BODY, OR INDUSTRY STANDARD SETTING ORGANIZATION WHATSOEVER. You are solely and exclusively responsible for engaging qualified independent experts of your own choosing, including but not limited to regulatory attorneys, packaging engineers, food safety consultants, toxicologists, product safety laboratories, and compliance testing firms, to evaluate and confirm at your sole cost and expense: (i) that the base packaging materials and construction selected by you for your Products are legally suitable for your specific product contents, product category, and intended end-use application, including all food-contact, cosmetic, medical device, pharmaceutical, consumer product, hazardous material, and environmental regulations applicable in every jurisdiction where the filled finished goods will be manufactured, stored, distributed, offered for sale, sold, used, or disposed of; (ii) that all label copy, graphic text, claims, disclosures, warnings, directions, net quantity statements, ingredient statements, nutritional facts panels, allergen declarations, country of origin markings, barcodes, batch codes, lot numbers, expiration dating, third-party certification marks, and all other printed content on the finished packaging is factually accurate, truthful, non-misleading, and fully compliant with every applicable law, rule, regulation, and standard; (iii) that any child-resistant packaging selected by you satisfies all legally required effectiveness, certification, and record-keeping requirements for your specific product category and jurisdiction; (iv) that all recycling symbols, resin identification codes, compostable or biodegradable claims, and environmental claims are accurate, substantiated, and fully compliant with all applicable truth-in-labeling, environmental marketing, and green guides enforced by the Federal Trade Commission (FTC), the European Commission, the Competition Bureau of Canada, the Australian Competition and Consumer Commission, and all other applicable authorities; and (v) that your entire product, contents plus packaging, has been registered, licensed, permitted, notified, or certified as required by every applicable jurisdiction where it will be sold or distributed. You further acknowledge that we do not audit, verify, approve, or certify your product contents, formulations, manufacturing processes, filling processes, filling equipment, heat seal parameters, shelf life studies, storage conditions, transport conditions, or any other aspect of your operations that may impact the safety, legality, regulatory compliance, or performance of the finished packaged product after delivery of the empty bags to you.
If you create an account on the Website, you agree: (a) to provide and maintain accurate, current, truthful, and complete information about yourself and your business as prompted by the account registration forms, and to promptly update such information as needed to keep it accurate, current, and complete at all times; (b) that you are responsible for maintaining the strict confidentiality of your account username, account password, and all other credentials used to access the Website or any associated account portals, and for restricting access to your account from unauthorized users, employees, contractors, or devices; (c) that you are fully and solely responsible for all activities, orders, communications, submissions, design files, charges, and transactions that occur under your account or through your login credentials, whether or not you have expressly authorized such activities and whether or not you have been negligent in safeguarding such credentials; (d) that you will never disclose, share, sell, lease, license, or transfer your account or your login credentials to any third party without our prior express written consent; and (e) to immediately notify Mylar Bag Depot via written email to security@mylarbagdepot.com of any actual or suspected: (i) unauthorized use of your account or login credentials, (ii) unauthorized access to your account from unknown devices or IP addresses, (iii) security breach of any kind affecting your account, or (iv) theft, loss, or compromise of any of your credentials or authorized devices. We reserve the absolute right to disable, suspend, restrict, or terminate any user account or login session, in our sole reasonable discretion, at any time, with or without cause and with or without prior notice, for any reason or for no reason, including but not limited to a reasonably suspected breach of security, inactivity, violation of any provision of this Agreement, or to protect our systems, customers, employees, reputation, or business. Upon any suspension or termination of your account, all licenses granted under this Agreement shall immediately terminate; you shall immediately cease all access to and use of the Website; and we may, in our sole discretion, delete or archive all account data, order history, files, messages, and other content associated with your account, without any liability to you or to any third party, subject to our reasonable retention obligations for tax, audit, legal, accounting, and order fulfillment record-keeping purposes as required by applicable law. Account deletion does not relieve you of any obligations owed for any outstanding, accepted, or shipped orders placed prior to account termination.
For purposes of this Agreement, "Confidential Information" means any non-public, proprietary, or confidential information, whether in written, oral, visual, electronic, digital, or any other form or medium, that is disclosed, furnished, or made available by one party (the "Disclosing Party") to the other party (the "Receiving Party") in connection with the negotiation, performance, or administration of this Agreement or the transactions contemplated herein, including without limitation: (i) all business and financial information including pricing, costs, margins, profit targets, discounts, terms, sales volumes, customer lists, customer identities, customer contact information, supplier identities, logistics partners, product roadmaps, and planned product launches; (ii) all technical information including packaging constructions, proprietary film formulations, manufacturing processes, production techniques, die specifications, plate making procedures, quality control protocols, testing data, proprietary artwork templates, technical specifications, trade secrets, source code, API details, and system architecture information; (iii) all terms, conditions, pricing, and commercial arrangements of this Agreement and all orders, quotations, invoices, and correspondence related hereto; and (iv) all Customer Artwork files, product formulas, proprietary brand guidelines, unreleased product designs, marketing plans, customer data, and any other information identified in writing or disclosed under circumstances that would reasonably indicate its confidential nature. Customer Content submitted by you to us for manufacturing purposes shall be deemed your Confidential Information for purposes of this Section 13, except to the extent that you have granted us a limited portfolio showcase license under Section 9.b.iii.
Each party, as Receiving Party, agrees and covenants that it shall: (i) use the Confidential Information of the Disclosing Party solely and exclusively for the purpose of performing its obligations and exercising its rights under this Agreement, and for no other commercial or non-commercial purpose whatsoever; (ii) protect and safeguard such Confidential Information using at least the same degree of care and security measures that it uses to protect its own most sensitive confidential information of similar nature and importance, and in no event less than commercially reasonable security measures appropriate for the nature of the information disclosed; (iii) restrict disclosure of such Confidential Information solely to those of its officers, directors, employees, contractors, professional advisors (attorneys, accountants, auditors, insurers), and wholly owned subsidiaries who have a bona fide need-to-know such information for the purposes of this Agreement and who are bound by written or professional obligations of confidentiality at least as protective as those set forth in this Section 13; and (iv) not copy, reproduce, disclose, distribute, publish, transmit, disseminate, sell, license, rent, or otherwise make available such Confidential Information to any third party without the prior express written consent of the Disclosing Party in each instance.
Confidential Information shall not be subject to the confidentiality obligations of this Section 13 to the extent, if any, that the Receiving Party can demonstrate by clear and convincing written evidence that such information: (i) is or becomes generally available to the public through no fault, act, or omission of the Receiving Party or of any person acting on its behalf; (ii) was rightfully known by the Receiving Party without any restriction, obligation, or limitation before being received from the Disclosing Party, as evidenced by written records created prior to the date of disclosure; (iii) is rightfully received by the Receiving Party from a bona fide third party source that has the lawful right and authority to make such disclosure and that does so without breaching any obligation of confidentiality owed to the Disclosing Party; or (iv) is independently developed by employees or contractors of the Receiving Party without any access to, use of, reference to, or reliance on the Confidential Information of the Disclosing Party, as demonstrated by contemporaneous, documented written evidence. In addition, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent that such disclosure is legally compelled by a valid and binding court order, governmental subpoena, regulatory inquiry, or other applicable requirement of law, provided that, where legally permitted, the Receiving Party shall: (1) provide the Disclosing Party with as much advance written notice of such compelled disclosure as is reasonably practicable under the circumstances; (2) cooperate with the Disclosing Party, at the Disclosing Party's sole cost and expense, in seeking any available protective order, confidential treatment order, or other appropriate remedy to prevent or limit public disclosure of the Confidential Information; and (3) disclose only that minimum portion of the Confidential Information that is strictly required by the terms of the applicable court order, subpoena, or regulatory demand. Compelled disclosure under this Section 13.c.iv shall not operate to terminate, waive, or otherwise diminish the confidential status of the information as against all other third parties.
The confidentiality obligations set forth in this Section 13 shall survive the expiration, termination, or completion of this Agreement, and shall continue in full force and effect for a period of five (5) years from the date of the most recent disclosure of Confidential Information, with respect to all Confidential Information that does not constitute a trade secret under applicable law. Confidential Information that constitutes a trade secret at law shall remain subject to the confidentiality obligations of this Section 13 for so long as such information continues to qualify as a trade secret and has not entered the public domain through no fault of the Receiving Party, notwithstanding the passage of any stated contractual time limit.
EXCEPT FOR THE LIMITED, EXPRESS QUALITY GUARANTEE SET FORTH EXCLUSIVELY IN SECTION 8.a OF THIS AGREEMENT, AND EXCEPT TO THE EXTENT THAT ANY IMPLIED WARRANTIES CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE NON-WAIVABLE CONSUMER PROTECTION STATUTE IN THE JURISDICTION OF THE CUSTOMER'S RESIDENCE (AND THEN ONLY TO THE MINIMUM EXTENT REQUIRED BY SUCH STATUTE AND FOR NO GREATER DURATION OR SCOPE THAN SUCH STATUTE MANDATES), MYLAR BAG DEPOT LLC AND ITS AFFILIATED ENTITIES, PARENTS, SUBSIDIARIES, RELATED COMPANIES, LICENSORS, VENDORS, SUPPLIERS, CONTRACT MANUFACTURERS, DISTRIBUTORS, AGENTS, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, CONTRACTORS, ASSIGNS, AND SUCCESSORS (COLLECTIVELY, THE "MYLAR BAG DEPOT · TEXAS PARTIES") HEREBY EXCLUDE AND DISCLAIM, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS, GUARANTEES, AND TERMS OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED, STATUTORY, COLLATERAL, OR ARISING FROM COURSE OF DEALING, USAGE OF TRADE, OR PERFORMANCE, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, SATISFACTORY QUALITY, DURABILITY, ACCURACY, COMPLETENESS, SYSTEM INTEGRATION, COMPATIBILITY, AVAILABILITY, UNINTERRUPTED USE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ALL OF WHICH ARE HEREBY EXCLUDED IN THEIR ENTIRETY. NO ORAL OR WRITTEN STATEMENTS, ADVICE, PRODUCT DATA SHEETS, CATALOG SPECIFICATIONS, TECHNICAL ASSISTANCE, PRODUCT IMAGES, WEBSITE CONTENT, MARKETING MATERIALS, SOCIAL MEDIA CONTENT, CASE STUDIES, OR SALES LITERATURE PROVIDED BY MYLAR BAG DEPOT · TEXAS OR BY ANY EMPLOYEE, REPRESENTATIVE, AGENT, DISTRIBUTOR, OR RESELLER OF MYLAR BAG DEPOT · TEXAS SHALL CREATE ANY NEW WARRANTY, EXPAND OR MODIFY THE SCOPE OR DURATION OF THE LIMITED QUALITY GUARANTEE, OR SERVE TO OTHERWISE ALTER ANY TERM OF THIS AGREEMENT UNLESS THE SAME IS IN WRITING, SPECIFICALLY REFERENCES THIS SECTION 14, AND IS SIGNED BY A DULY AUTHORIZED OFFICER OF MYLAR BAG DEPOT LLC. ANY IMPLIED WARRANTIES THAT MAY NOT BE EXCLUDED IN THEIR ENTIRETY BY APPLICABLE LAW ARE HEREBY LIMITED IN DURATION TO THE MINIMUM WARRANTY PERIOD PRESCRIBED BY SUCH APPLICABLE LAW, AND IF NO MINIMUM PERIOD IS PRESCRIBED, THEN TO THE SIXTY (60) CALENDAR DAY PERIOD STATED IN THE EXPRESS LIMITED QUALITY GUARANTEE IN SECTION 8.a, AND THE REMEDY FOR ANY BREACH THEREOF SHALL BE LIMITED EXCLUSIVELY TO THE REMEDY SET FORTH IN SECTION 8.d.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ANY OF THE MYLAR BAG DEPOT · TEXAS PARTIES, COLLECTIVELY OR INDIVIDUALLY, BE LIABLE TO YOU OR TO ANY THIRD PARTY (INCLUDING WITHOUT LIMITATION ANY SUCCESSOR, RESELLER, DISTRIBUTOR, CUSTOMER, CONSUMER, END USER, EMPLOYEE, OR AGENT OF YOURS) FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, AGGRAVATED, PUNITIVE, OR MULTIPLE DAMAGES, OR FOR ANY DAMAGES FOR LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF SALES, LOSS OF BUSINESS OPPORTUNITY, LOSS OF GOODWILL OR REPUTATION, LOSS OF ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF DATA, COST OF COVER, COST OF SUBSTITUTE OR REPLACEMENT GOODS OR SERVICES, COSTS OF DELAY, COSTS OF REWORK, COSTS OF PRODUCT RECALL OR WITHDRAWAL, COSTS OF INVESTIGATION OR DEFENSE, OR ANY OTHER ECONOMIC OR PECUNIARY LOSS OF ANY KIND OR NATURE WHATSOEVER, ARISING OUT OF, BASED UPON, OR RELATING TO THIS AGREEMENT, OR ARISING FROM THE PERFORMANCE OR BREACH HEREOF, THE MANUFACTURE, SALE, DELIVERY, FURNISHING, USE, POSSESSION, REPAIR, REPLACEMENT, OR RETURN OF ANY PRODUCTS OR SERVICES SOLD OR FURNISHED HEREUNDER, THE USE OR INABILITY TO USE THE WEBSITE OR ANY PORTION THEREOF, ANY SECURITY INCIDENT OR DATA BREACH, ANY ACT OR OMISSION OF MYLAR BAG DEPOT · TEXAS PARTIES, OR ANY THEORY OF LIABILITY WHATSOEVER, INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, BREACH OF WARRANTY, MISREPRESENTATION, NEGLIGENCE, GROSS NEGLIGENCE, STRICT LIABILITY IN TORT, PRODUCTS LIABILITY, STATUTORY LIABILITY, OR OTHERWISE, EVEN IF ANY MYLAR BAG DEPOT · TEXAS PARTY HAS BEEN ADVISED, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF THE LIMITED REMEDIES PROVIDED FOR HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. YOU ACKNOWLEDGE AND AGREE THAT, IN VIEW OF THE NATURE OF FLEXIBLE PACKAGING PRODUCTS, WHICH ARE OFTEN MANUFACTURED AT RELATIVELY LOW PER-UNIT COST IN LARGE VOLUMES AND WHICH THEMSELVES SERVE ONLY AS A COMPONENT OF THE CUSTOMER'S OVERALL FINISHED PRODUCT, IT IS COMMERCIALLY IMPOSSIBLE AND FUNDAMENTALLY UNREASONABLE TO HOLD THE PACKAGING MANUFACTURER LIABLE FOR THE ENTIRE VALUE OF THE CUSTOMER'S FILLED FINISHED GOODS, OR FOR THE FULL SCOPE OF DOWNSTREAM INDIRECT ECONOMIC LOSSES; ACCORDINGLY, THE AGGREGATE, CUMULATIVE, TOTAL LIABILITY OF ALL OF THE MYLAR BAG DEPOT · TEXAS PARTIES, COLLECTIVELY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, OR TO ANY ONE OR MORE PRODUCTS OR SERVICES FURNISHED OR SOLD HEREUNDER, OR TO THE PERFORMANCE OR NON-PERFORMANCE HEREOF, OR TO ANY CLAIM ARISING OUT OF OR RELATING THERETO, WHETHER IN CONTRACT, IN TORT, UNDER STATUTE, IN EQUITY, IN ARBITRATION, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE FOR ALL SUCH CLAIMS, THE ACTUAL TOTAL AMOUNTS PAID BY CUSTOMER TO MYLAR BAG DEPOT LLC SPECIFICALLY FOR THE INDIVIDUAL PRODUCTS OR SERVICES GIVING RISE TO THE PARTICULAR CLAIM DURING THE TWELVE (12) CALENDAR MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE FIRST CLAIM ACCRUED. THE EXISTENCE OF MULTIPLE CLAIMS IN RESPECT OF THE SAME ORDER OR BREACH SHALL NOT ENLARGE OR EXTEND THIS LIMITATION, WHICH CONSTITUTES A CAP ON AGGREGATE LIABILITY AND NOT A PER-CLAIM LIMIT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES CONTAINED IN THIS SECTION 15 AND THROUGHOUT THIS AGREEMENT REPRESENT A NEGOTIATED, BARGAINED-FOR ALLOCATION OF RISK BETWEEN THE PARTIES, AND THAT THE PRICING FOR PRODUCTS AND SERVICES REFLECTS AND INCORPORATES SUCH RISK ALLOCATION. EACH PARTY CONFIRMS THAT IT HAS ENTERED INTO THIS AGREEMENT KNOWINGLY, VOLUNTARILY, AND WITH THE BENEFIT OF INDEPENDENT LEGAL ADVICE (OR HAVING HAD THE OPPORTUNITY TO SEEK SUCH ADVICE AND ELECTING NOT TO DO SO), AND THAT IT WOULD NOT HAVE EXECUTED THIS AGREEMENT ABSENT THE LIMITATIONS AND EXCLUSIONS CONTAINED IN THIS SECTION 15. The limitations and exclusions of liability set forth in this Section 15 do not apply to: (x) liability for death or bodily injury caused by the gross negligence or willful misconduct of a Mylar Bag Depot Party to the extent such liability cannot be limited by applicable law; or (y) liability for fraud, fraudulent misrepresentation, or intentional concealment of a material fact by a Mylar Bag Depot Party; or (z) your obligation to pay all amounts due under any accepted and fulfilled order. Nothing in this Agreement shall be construed as limiting or excluding any liability that cannot lawfully be excluded or limited under the consumer protection legislation of the jurisdiction in which you reside if you are contracting as a consumer rather than a business entity.
In addition to the indemnification obligations specifically set forth in Sections 4.b, 9.c, and 11 of this Agreement, you hereby agree, to the fullest extent permitted by applicable law, to fully defend, indemnify, and hold harmless each and every one of the Mylar Bag Depot Parties from and against any and all claims, actions, suits, proceedings, complaints, investigations, demands, notices, injunctions, orders, judgments, awards, penalties, fines, interest, settlements, losses, liabilities, damages, deficiencies, and all reasonable costs, charges, and expenses whatsoever (including, without limitation, all court costs, arbitration filing fees, expert witness fees, investigative costs, copying costs, travel costs, and reasonable attorneys' fees incurred in connection with, or in the investigation, preparation, and defense of, any of the foregoing, whether at trial, on appeal, in arbitration, in regulatory proceedings, or in any settlement or compromise negotiations) arising out of, based upon, resulting from, or in any way related to: (a) your breach or alleged breach of any representation, warranty, covenant, obligation, or term of this Agreement; (b) your failure to comply with any applicable law, rule, regulation, ordinance, or order of any governmental authority in connection with your use, resale, import, export, labeling, or distribution of Products purchased hereunder or the contents placed therein; (c) the acts, errors, omissions, negligence, willful misconduct, recklessness, or fraud of you, your employees, agents, contractors, resellers, distributors, customers, or end users, relating in any way to Products or Services; (d) any claim brought against Mylar Bag Depot Parties by a consumer, purchaser, reseller, distributor, end user, or any other third party arising from the presence, characteristics, use, misuse, handling, storage, consumption, or sale of your product contents, filled packaged goods, or the labeling thereon, regardless of whether any such claim alleges that the empty Mylar bag purchased from us contributed in whole or in part to the alleged injury or damage; (e) any dispute between you and any supplier, partner, licensor, customer, end user, distributor, joint venturer, or third party arising out of or relating to the Products or Services; and (f) any sales, use, VAT, GST, HST, import, excise, or other taxes, duties, or tariffs that you were or are responsible for under Section 4.b but that were not properly paid when due, together with all associated penalties, interest, and collection costs. This indemnification obligation is separate from and in addition to any other remedies or rights available to the Mylar Bag Depot Parties at law or in equity, shall survive the expiration or termination of this Agreement, and shall not be limited by any of the provisions of Section 15 (Limitation of Liability) with respect to third-party claims brought against any Mylar Bag Depot Party and indemnified under this Section 16.
Either party may terminate this Agreement (including all customer accounts, outstanding purchase orders, and ongoing engagements): (i) at any time for convenience, by giving the other party no less than thirty (30) calendar days' prior written notice; or (ii) immediately for Cause, upon written notice, if the other party: (A) materially breaches any provision of this Agreement and, where such breach is reasonably capable of cure, fails to cure such breach within fifteen (15) calendar days after receiving specific written notice of the breach and a detailed description of the breach and the cure requested; (B) files a voluntary petition for protection under any bankruptcy, insolvency, or debtors' relief law, or suffers the entry of an order for relief under any such law against it in an involuntary proceeding that is not dismissed within sixty (60) calendar days; (C) makes a general assignment for the benefit of creditors, suffers the appointment of a receiver, trustee, custodian, or similar fiduciary for all or a substantial part of its assets, or ceases to conduct its ordinary business operations in the normal course for a period of more than fifteen (15) calendar days; or (D) is dissolved, wound up, liquidated, or otherwise terminated in accordance with the law of its jurisdiction of organization. Upon any termination for any reason: (1) all rights and licenses granted to you under this Agreement, including your limited license to access and use the Website, shall immediately cease and terminate; (2) you shall immediately discontinue all access to and use of the Website and all Confidential Information belonging to Mylar Bag Depot Parties; (3) with respect to Products for which we have formally accepted an order pursuant to Section 2 prior to the effective date of termination, and for which manufacturing has commenced, you shall remain obligated to pay the full purchase price and related charges in accordance with this Agreement, and we shall fulfill such accepted orders in accordance with the terms thereof, unless Mylar Bag Depot elects in its sole reasonable discretion to waive such obligation and terminate such accepted orders upon repayment of any amounts already paid minus applicable cancelation fees and incurred costs; (4) all accrued payment obligations owed by you to us for Products and Services already delivered, and for production work already commenced, shall become immediately due and payable in full, without further notice or demand; (5) the following Sections and provisions shall survive any termination of this Agreement in full force and effect, in addition to any other provisions that by their nature or explicit terms are intended to survive: Sections 3 (Custom Design, Artwork, and Proof Approval), 4 (Prices, Taxes, Payment Terms), 6 (Shipping, Risk of Loss, Delivery), 7.c (CR Certification Notice), 8 (Quality Guarantee and Remedies), 9 (Intellectual Property), 11 (Regulatory Compliance Responsibility), 13 (Confidentiality), 14 (Disclaimer of Warranties), 15 (Limitation of Liability), 16 (Indemnification), 18 (Governing Law), 19 (Binding Arbitration and Class Action Waiver), 20 (Force Majeure), 22 (Entire Agreement, Severability, and Waiver), and 23 (Contact Information), together with all accrued payment obligations. Termination of this Agreement shall not be construed as a waiver of, release of, or limitation on any rights or remedies available to the terminating party, whether at law, in equity, or under the terms of this Agreement, including without limitation the right to seek damages for any breach that existed at or prior to the date of termination.
This Agreement, including all exhibits, schedules, and documents incorporated herein by reference, and any and all disputes, claims, controversies, causes of action, or proceedings arising out of, based upon, or relating in any way to this Agreement, the interpretation, validity, performance, breach, or termination hereof, the sales, purchase, manufacture, delivery, use, or non-conformity of Products or Services, the use of or access to the Website, the ordering process, or the business relationship between the parties, whether sounding in contract, tort, equity, statute, or any other legal or equitable theory, shall be governed by, and construed, interpreted, and enforced in accordance with, the internal substantive laws of the State of Colorado, United States of America, including Colorado's Uniform Commercial Code as codified at C.R.S. Title 4, without regard to (a) any conflict of laws or choice of law rule, principle, doctrine, or statute of Colorado or any other jurisdiction that would cause the application of the laws of any jurisdiction other than Colorado, and (b) the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded to the fullest extent permitted by law. For any disputes that are not subject to binding arbitration pursuant to Section 19 below (including, without limitation, any action to compel or stay arbitration, to confirm, vacate, or modify an arbitration award, or any other judicial proceeding ancillary to arbitration), or for any cause of action for provisional relief, injunction, replevin, attachment, or other equitable or ancillary relief that a party is permitted to pursue in court pursuant to Section 19.i, the parties irrevocably and unconditionally (1) consent and submit to the exclusive, sole, and personal jurisdiction and venue of the state and federal courts located in the City and County of Denver, State of Colorado, United States of America, for the adjudication and resolution of all such matters; (2) agree that such courts shall be deemed the most convenient and appropriate forum and waive any objection that such courts are an inconvenient forum or do not have personal jurisdiction over the parties or over the subject matter of the dispute; and (3) agree that service of process, summons, notice, or other legal documents upon the parties may be effected in the manner prescribed for notices in Section 23.g and that such service shall be deemed legally sufficient and effective for all purposes. Each party hereby knowingly, voluntarily, and irrevocably waives, to the fullest extent permitted by applicable law, any and all rights to a trial by jury in any action, suit, proceeding, or counterclaim of any kind whatsoever arising out of or relating to this Agreement, whether in law or in equity, and whether before a state or federal court or other tribunal. This jury trial waiver is separate, independent, and in addition to the binding arbitration and class action waiver set forth in Section 19 below.
YOU ACKNOWLEDGE, UNDERSTAND, AND AGREE THAT EXCEPT FOR THE SPECIFIC MATTERS LISTED IN SECTION 19.i BELOW, ANY AND ALL DISPUTES, CLAIMS, DEMANDS, CONTROVERSIES, OR CAUSES OF ACTION, WHETHER PAST, PRESENT, OR FUTURE, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, OR THE NEGOTIATION, EXISTENCE, FORMATION, PERFORMANCE, BREACH, TERMINATION, OR VALIDITY HEREOF, OR TO THE WEBSITE, PRODUCTS, SERVICES, ORDERING PROCESS, ADVERTISING, MARKETING, OR BUSINESS PRACTICES OF MYLAR BAG DEPOT · TEXAS PARTIES, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION, UNJUST ENRICHMENT, PRODUCTS LIABILITY, STRICT LIABILITY, CONSUMER PROTECTION STATUTES, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND REGARDLESS OF THE DATE OF ACCRUAL, SHALL, AT THE ELECTION OF EITHER PARTY, BE RESOLVED EXCLUSIVELY AND FINALLY BY MEANS OF CONFIDENTIAL, BINDING INDIVIDUAL ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION ("AAA") IN ACCORDANCE WITH ITS APPLICABLE RULES AND PROCEDURES IN EFFECT AT THE TIME THE DEMAND FOR ARBITRATION IS FILED, INCLUDING, WHERE APPLICABLE, THE AAA CONSUMER ARBITRATION RULES, THE AAA COMMERCIAL ARBITRATION RULES, AND THE AAA SUPPLEMENTARY PROCEDURES FOR MASS ARBITRATIONS, AS APPROPRIATE (COLLECTIVELY, THE "AAA RULES"). FOR THE AVOIDANCE OF DOUBT, THIS ARBITRATION PROVISION ALSO APPLIES TO DISPUTES BETWEEN YOU AND MYLAR BAG DEPOT LLC ARISING OUT OF OR RELATING TO THE INTERPRETATION, APPLICABILITY, ENFORCEABILITY, SCOPE, OR VALIDITY OF THIS ARBITRATION PROVISION ITSELF.
Before commencing any formal arbitration or litigation proceeding, each party agrees to first attempt in good faith, for a period of no less than thirty (30) calendar days (the "Informal Resolution Period"), to resolve any Claim, dispute, or controversy directly with the other party through informal direct communications and good-faith settlement discussions. A party wishing to invoke this informal resolution process shall provide the other party with a detailed written Notice of Dispute, delivered in accordance with Section 23.g of this Agreement, clearly stating (i) the name, address, and contact information of the party bringing the Claim; (ii) a detailed factual description of the nature and basis of the Claim, including all dates, order numbers, invoice numbers, and supporting documentation; (iii) the specific legal theories or provisions of this Agreement alleged to have been breached; (iv) a specific, itemized statement of all relief and damages sought, including calculations of any monetary amounts and a description of any injunctive or declaratory relief requested; and (v) a proposed resolution, settlement offer, or demand. During the Informal Resolution Period, senior representatives of each party who have authority to settle the dispute shall hold at least one good-faith meeting or video conference call to discuss the dispute and attempt in good faith to negotiate a mutually acceptable settlement. No arbitration may be commenced by either party until after the expiration of the Informal Resolution Period or until the other party has materially failed to participate in the informal dispute resolution process, except that the Informal Resolution Period may be shortened or waived only by a written agreement signed by both parties. All statements, offers, proposals, concessions, and statements made during the informal dispute resolution process shall be deemed confidential settlement communications, inadmissible as evidence in any subsequent arbitration or judicial proceeding for any purpose pursuant to Federal Rule of Evidence 408 and analogous state rules of evidence, and shall not be deemed an admission against interest by any party.
If the parties are unable to resolve the dispute amicably during the Informal Resolution Period, either party may initiate binding arbitration by filing a formal Demand for Arbitration with the AAA in accordance with the AAA Rules, with a copy of such Demand simultaneously served on the other party in accordance with the notice provisions of Section 23.g. The arbitration shall be conducted in the English language and shall be seated in Denver, Colorado, United States, and all hearings shall be conducted virtually via videoconference unless the arbitrator determines, upon a written showing of good cause, that an in-person hearing is necessary, in which case such in-person hearing shall be held in Denver, Colorado. An award rendered in arbitration shall be final and binding on both parties, and judgment on the award may be entered in any court of competent jurisdiction, including the state and federal courts of the State of Colorado located in Denver County, Colorado, which courts shall have exclusive jurisdiction to confirm, vacate, modify, or correct any arbitration award as permitted by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq., or the Colorado Uniform Arbitration Act, C.R.S. § 13-22-201 et seq.
With respect to any Claim where the total amount of relief sought, excluding attorneys' fees, arbitration costs, and pre-judgment interest, is less than or equal to Seventy-Five Thousand United States Dollars ($75,000 USD) (a "Small Claim"), Mylar Bag Depot agrees to reimburse you for all AAA filing fees, administrative fees, and arbitrator fees actually paid by you to the AAA, up to a maximum amount equal to the filing fee you would have paid to commence an equivalent civil action in the Small Claims court or County Court of Denver County, Colorado (whichever is greater), provided that (1) your Claim is not brought in bad faith, is not frivolous or groundless, and is not brought for purposes of harassment; (2) your Claim is not brought as or on behalf of a representative, class, or collective action in violation of Section 19.f; and (3) the arbitrator issues an award in your favor on at least one substantive claim for relief (other than purely nominal or de minimis damages). For all Claims other than Small Claims, the arbitrator shall apportion the payment of all AAA administrative fees, arbitrator compensation, and other costs of arbitration between the parties as the arbitrator deems just and equitable in light of the circumstances of the case, including the relative merits of the parties' positions, the outcome of the proceeding, and the economic circumstances of the parties. Each party shall be responsible for its own attorneys' fees, expert witness fees, witnesses, travel costs, and other costs incurred in connection with the preparation and prosecution of the arbitration, except that the arbitrator shall have authority to award reasonable attorneys' fees, costs, and expert witness fees to the substantially prevailing party as permitted by applicable substantive law or by this Agreement. Nothing in this Section shall limit the authority of the arbitrator to award any other remedy available under applicable law or this Agreement.
A single neutral, independent arbitrator shall be selected in accordance with the AAA Rules. The arbitrator shall be either (i) an attorney admitted to practice before the Supreme Court of Colorado with at least 10 years of active experience handling commercial and products liability disputes, or (ii) a retired state or federal judge with at least 10 years of judicial experience in commercial disputes; provided that, in the case of a Small Claim brought by a consumer claimant, the arbitrator selection process shall comply with the requirements of the applicable AAA Consumer Arbitration Rules. The arbitrator shall have all powers conferred by applicable law, the AAA Rules, and this Agreement, including, without limitation, the power to hear and determine all questions of jurisdiction, arbitrability, procedural matters, admissibility of evidence, and all merits questions of law and fact; to order such provisional, conservatory, or interim relief as the arbitrator deems just and necessary, including injunctive relief, attachment, replevin, and disclosure of documents or other discovery, subject to the requirements of the AAA Rules; and to fashion such remedies, relief, and award as a court of competent jurisdiction could grant, including legal, equitable, and declaratory relief, compensatory damages, restitution, specific performance, and attorneys' fees where permitted by law; provided however that the arbitrator shall have no power or authority to: (A) preside over, certify, allow, or enter any award with respect to any class, collective, representative, private attorney general, or consolidated action that has not been validly opted out of in accordance with this Section 19; (B) join as parties any individuals or entities who are not signatories to this arbitration clause or who have not individually and expressly consented to be joined; (C) issue a single, consolidated, or class-wide award covering the Claims of multiple non-signatory claimants; (D) grant punitive, exemplary, or treble damages, or any other damages not permitted or recoverable under the applicable substantive law or the express terms of this Agreement, including Section 15; (E) disregard, override, or refuse to apply the disclaimers of warranties, exclusions of damages, limitations of liability, or other substantive provisions of this Agreement; or (F) issue any award that is inconsistent with, or contradicts, the express terms and provisions of this Agreement, including without limitation the governing law specified in Section 18. The arbitrator shall issue a reasoned, written award setting forth the essential findings of fact and conclusions of law supporting the award, within thirty (30) calendar days of the conclusion of the final arbitration hearing, unless the AAA Rules or applicable law require a shorter period or the parties agree otherwise in writing.
YOU ACKNOWLEDGE, UNDERSTAND, AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (I) ANY ARBITRATION, CLAIM, DISPUTE, OR PROCEEDING BROUGHT BY OR AGAINST EITHER PARTY, WHETHER IN ARBITRATION OR IN COURT, SHALL BE BROUGHT SOLELY IN THE PARTY'S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, REPRESENTATIVE ACTION, CONSOLIDATED ACTION, MASS ARBITRATION PROCEEDING, OR PRIVATE ATTORNEY GENERAL ACTION; (II) THE ARBITRATOR OR COURT, AS APPLICABLE, SHALL HAVE NO POWER OR AUTHORITY TO CONSOLIDATE, JOIN, OR COMBINE THE CLAIMS OF MORE THAN ONE INDIVIDUAL OR ENTITY, TO PRESIDE OVER ANY FORM OF CLASS, COLLECTIVE, REPRESENTATIVE, CONSOLIDATED, MASS, OR PRIVATE ATTORNEY GENERAL PROCEEDING, TO ASSERT JURISDICTION OVER THE CLAIM OF ANY PERSON OR ENTITY WHO IS NOT A SIGNATORY PARTY TO THIS AGREEMENT (EXCEPT AS EXPRESSLY PERMITTED IN SECTION 19.e.iii), OR TO MAKE ANY ARBITRATION AWARD OR JUDGMENT BINDING ON ANY PERSON OR ENTITY WHO IS NOT A PARTY TO THE PROCEEDING; AND (III) YOU ARE HEREBY KNOWINGLY AND VOLUNTARILY WAIVING YOUR RIGHT TO BRING, PARTICIPATE IN, ASSERT CLAIMS IN, SERVE AS A CLASS REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL IN, OR RECOVER RELIEF THROUGH, ANY CLASS ACTION, COLLECTIVE ACTION, REPRESENTATIVE ACTION, CONSOLIDATED PROCEEDING, MASS ARBITRATION, OR PRIVATE ATTORNEY GENERAL ACTION OF ANY KIND WHATSOEVER AGAINST ANY MYLAR BAG DEPOT · TEXAS PARTY. If any court, arbitrator, or tribunal of competent jurisdiction in a final non-appealable order determines that the class action waiver or representative action waiver contained in this Section 19.f is invalid, unenforceable, unconscionable, or void, then and only in that event, and solely with respect to claims ordered to proceed on a non-individual basis, the parties agree that such ordered class, collective, representative, or consolidated claims shall be severed from arbitration and shall instead be brought exclusively in a court of competent jurisdiction in the City and County of Denver, Colorado, United States, with all remaining claims and parties proceeding to individual arbitration pursuant to the remaining terms of this Section 19. The parties further agree that no arbitration shall proceed with respect to any class, collective, representative, or mass claim in circumstances where a court of competent jurisdiction has determined that this class action waiver is valid and enforceable, such claims being deemed non-arbitrable and subject to court resolution. Nothing in this Section 19.f shall prohibit two or more individual claimants represented by the same or affiliated law firms from voluntarily coordinating or settling their respective individual arbitrations on consistent terms, provided that no such coordinated or parallel resolution shall in any way serve as the basis for class, collective, or consolidated treatment in any subsequent proceeding before any arbitrator or court.
Notwithstanding anything to the contrary in this Section 19, if you are an individual person contracting as a consumer (i.e., not as a business, company, partnership, LLC, or other legal entity, and purchasing Products or Services predominantly for personal, family, or household purposes), you may elect to opt out of this arbitration agreement and the class action waiver contained in Section 19.f in their entirety, such that neither you nor Mylar Bag Depot will be required to arbitrate future disputes, by delivering a clear, written notice of election to opt out that is RECEIVED by us no later than THIRTY (30) CALENDAR DAYS AFTER THE EARLIER OF: (i) THE DATE YOU FIRST ACCEPT THIS AGREEMENT, CREATE AN ACCOUNT, OR PLACE YOUR FIRST ORDER; OR (ii) THE DATE THAT WE FIRST PROVIDED YOU WITH WRITTEN NOTICE OF THIS ARBITRATION OPT-OUT RIGHT. To opt out effectively, the written notice must be sent by email to arbitration-optout@mylarbagdepot.com with the subject line "ARBITRATION AGREEMENT OPT-OUT — [YOUR FULL LEGAL NAME]" and must clearly include: your full legal name, your complete home mailing address, your email address associated with your customer account or order, your customer account number (if applicable), your order number (if applicable), and an explicit, unambiguous statement to the effect that "I hereby opt out of the binding arbitration agreement and class action waiver contained in Section 19 of the Mylar Bag Depot LLC Terms of Service." Any purported opt-out notice that fails to substantially comply with all of the requirements of this Section 19.g, that is sent to any address other than the specific email address above, that is sent after the applicable 30-day deadline, or that is ambiguous, conditional, or contingent, shall be deemed null, void, and of no effect, and you and Mylar Bag Depot shall remain bound by the arbitration agreement and class action waiver in all respects. Only one opt-out election is permitted per consumer individual, and it shall be irrevocable once submitted in compliance with the requirements of this Section. This opt-out mechanism does not apply to business entities, companies, corporations, limited liability companies, partnerships, sole proprietorships operating under a business name, or any purchaser that is not a natural person purchasing Products predominantly for personal, family, or household use.
This Section 19 (including all subsections, the pre-arbitration notice requirements, class action waiver, small claims allocation, and opt-out provision) shall survive the expiration, termination, or completion of this Agreement and any bankruptcy, insolvency, receivership, assignment for the benefit of creditors, or similar proceeding involving either party. If any portion of this Section 19 is deemed unenforceable or invalid by a court or arbitrator of competent jurisdiction, the invalid or unenforceable portion shall be modified or reformed to the minimum extent necessary to render it valid and enforceable consistent with the intent of the parties as expressed herein, and all remaining portions of this Section 19 shall remain in full force and effect. In the event that Section 19.f (Class Action Waiver) is held to be invalid, unenforceable, unlawful, or void as applied to any particular claim or proceeding in a final non-appealable order of a court of competent jurisdiction, then the parties agree that such invalid provision shall be severable from this arbitration agreement, and all other provisions of this Section 19 (including the requirement of individual arbitration for all non-class claims) shall remain fully valid, binding, and enforceable as if the invalid provision had never been included.
Notwithstanding the binding arbitration requirement in Section 19.a, the following matters shall NOT be subject to binding arbitration and may instead be pursued in the state or federal courts of competent jurisdiction located in Denver, Colorado, United States of America: (i) any and all claims, applications, motions, petitions, or proceedings to compel or stay arbitration, to confirm, vacate, correct, or modify an arbitration award, to enforce or challenge an arbitration decision, or to otherwise seek judicial review, recognition, or ancillary relief in connection with arbitration proceedings and awards; (ii) any request solely for provisional, interim, or conservatory equitable relief, including temporary restraining orders, preliminary injunctions, attachments, replevin, freezing orders, or account restraining orders, where such relief is sought to prevent imminent, irreparable harm for which there is no adequate remedy at law or under arbitration, pending final resolution of the merits dispute in binding arbitration; (iii) any claim or action brought by Mylar Bag Depot for the sole purpose of protecting, enforcing, vindicating, or preventing any actual or threatened misappropriation, infringement, dilution, or violation of our intellectual property rights, trademarks, copyrights, patents, trade dress, trade secrets, confidential information, domain names, or other proprietary rights; and (iv) any claim or dispute relating to the validity, interpretation, enforceability, or scope of the intellectual property license grants contained in Section 9 of this Agreement. Pursuit of any of the above-listed carve-out matters in court shall not operate as a waiver of the right of either party to compel binding arbitration of any and all remaining merits Claims that are within the scope of Section 19.a. Notwithstanding any other provision of this Section 19, either party may also pursue resolution of an individual Small Claim in the small claims court (or equivalent court) of the county or parish in which the customer resides (or, if you are a business, Denver County, Colorado), provided that such claim is brought solely in an individual capacity and remains in small claims court (i.e., it is not transferred or removed to a court of general jurisdiction or combined with another claim), and provided that the parties otherwise comply with all pre-arbitration informal resolution requirements.
Neither party shall be liable to the other party for any failure, inability, or delay in performing any obligation under this Agreement (including without limitation any delay or failure to manufacture, ship, or deliver Products or to accept or pay for Products, as applicable), and no such delay or failure shall constitute a breach of or default under this Agreement, to the extent that such failure, inability, or delay is caused directly and solely by a Force Majeure Event and the non-performing party is unable to overcome the effects of such event through the exercise of reasonable diligence and commercially reasonable alternatives. For purposes of this Agreement, "Force Majeure Event" means any cause, circumstance, condition, or event that is unforeseeable at the time of contracting, is beyond the reasonable control of, and is not caused or contributed to by the fault or negligence of, the party claiming excuse, and that by the exercise of reasonable diligence such party would be unable to avoid or overcome notwithstanding its reasonable efforts. By way of non-exhaustive list, a Force Majeure Event includes: acts of God; earthquakes, tsunamis, hurricanes, typhoons, cyclones, tornadoes, wildfires, floods, mudslides, landslides, lightning, drought, extreme weather events, and natural disasters; war, declared or undeclared, civil war, armed conflict, terrorist acts, sabotage, cyber terrorism, ransomware attacks, hacking of critical infrastructure, insurrection, rebellion, revolution, coup d'état, riots, civil unrest, public demonstrations, mass labor unrest, and strikes; pandemics, epidemics, quarantines, public health emergencies, shelter-in-place orders, facility shutdowns, and governmental restrictions, mandates, stay-at-home orders, and business closure orders promulgated by any competent governmental authority in response to a public health crisis; expropriations, nationalizations, confiscations, embargoes, blockades, sanctions, import and export controls, trade restrictions, denial of export or import licenses, tariff impositions, and actions by any governmental authority, regulatory agency, or court of competent jurisdiction; failure or substantial reduction in the supply of essential raw materials, resins, aluminum foil, film substrates, adhesives, inks, solvents, zippers, and other packaging components caused by global supply chain disruptions, plant fires, explosions, facility shutdowns of major raw material suppliers, transportation or logistics disruptions, port closures, port congestion, backlogs at container ports, carrier strikes, or lack of available shipping containers, ocean freight, over-the-road trucking, or air cargo capacity; widespread failure of public utilities including extended power outages, telecommunications network failures, internet backbone outages, and cloud infrastructure provider disruptions affecting the primary third-party infrastructure providers used by us; and any other event or circumstance of a nature analogous to any of the foregoing that is generally recognized in commercial law as constituting force majeure or impossibility or impracticability of performance under the Uniform Commercial Code. The party whose performance is excused by a Force Majeure Event shall: (a) give prompt written notice to the other party within five (5) business days of the commencement of the Force Majeure Event, describing the event in reasonable detail, the obligations affected thereby, and the anticipated duration of the event and its effects; (b) use all commercially reasonable efforts to mitigate the effects of the Force Majeure Event and to resume performance of its obligations as soon as reasonably practicable, including by sourcing substitute materials or services from alternative suppliers at commercially reasonable prices (it being understood that no party is required to accede to pricing, terms, or conditions that are commercially unreasonable or that would result in a material financial loss to such party); and (c) provide periodic written status updates to the non-affected party at reasonable intervals during the pendency of the event, and prompt written notice when the Force Majeure Event has ceased and performance can be fully resumed. If the effects of a Force Majeure Event prevent the manufacturing or shipment of Products for a continuous period of more than sixty (60) calendar days, then either party may, by written notice to the other, terminate the affected order or orders without liability, in which case we shall refund to you any prepayments made for Products not yet manufactured or shipped, minus our actual, reasonable, documented, non-recoverable direct costs incurred (including raw materials purchased, labor costs, tooling and plate costs, and non-refundable vendor payments), which costs we shall itemize and document in writing. No Force Majeure Event shall excuse you from your obligation to make any payment for Products that have been delivered, or for which manufacturing has been completed and is ready for shipment, before the occurrence of the Force Majeure Event.
We reserve the right, in our sole and absolute discretion, at any time and from time to time, to modify, amend, restate, update, discontinue, or replace any portion or provision of this Agreement, or to add new terms, provisions, schedules, or exhibits to this Agreement, by posting the amended and restated version of this Agreement on the Website at the publicly-accessible URL where these Terms of Service are located, together with a clearly marked and updated "Last Updated" date displayed conspicuously at the top of the page. It is your sole and exclusive responsibility to review this Agreement periodically for any such changes. Unless otherwise expressly stated by us in writing, all modifications, amendments, updates, and restatements shall become legally binding and effective thirty (30) calendar days after the date they are first posted to the Website, or, if we provide you with separate written notice of material changes via email or prominent in-app or website banner notification, then such material changes shall become effective on the date specified in such notice (or thirty (30) days after such notice if no effective date is specified). Your continued access to or use of the Website, creation of new accounts, submission of new quote requests, or placement of new orders on or after the effective date of any amended or updated version of this Agreement shall constitute your conclusive, irrevocable acceptance of such amended or updated terms in full. If you do not unconditionally agree to be bound by any updated version of this Agreement, your sole and exclusive remedy is to cease all further use of the Website, close your account in writing via email to support, cancel any pending unaccepted orders, and refrain from placing any further orders or otherwise engaging in any business transactions with us. Amendments to this Agreement shall not apply retroactively to orders that were formally accepted by us pursuant to Section 2 prior to the effective date of the applicable amendment, unless the parties otherwise expressly agree in a writing signed by both parties.
This Agreement, together with the Privacy Policy, Cookie Policy, and all other policies, documents, schedules, and exhibits expressly incorporated herein by reference, any order acceptance confirmation issued by us in writing, and any executed custom services statements of work, design service agreements, or credit agreements executed by both parties, constitutes the final, complete, integrated, and entire agreement between the parties with respect to the subject matter hereof and thereof, and supersedes and replaces in their entirety all prior and contemporaneous oral and written agreements, proposals, quotations, negotiations, representations, promises, covenants, arrangements, understandings, purchase order terms, and discussions of every kind and nature whatsoever between the parties, including without limitation all prior versions of Terms of Service previously posted to or made available via the Website. Neither party has relied on, and each party hereby disclaims any reliance upon, any statement, representation, warranty, promise, assurance, covenant, or inducement that is not expressly set forth in this Agreement or in a document signed by a duly authorized officer of Mylar Bag Depot LLC and explicitly incorporated herein by reference. No course of dealing, course of performance, trade usage, or custom in the trade shall be deemed to amend, modify, supplement, or override any express provision of this Agreement, even if the parties have knowledge of the nature of the performance and an opportunity to object thereto. Any term, condition, provision, or addendum contained in any Customer Form Document (including, without limitation, purchase orders, purchase order terms and conditions, vendor questionnaires, supplier onboarding portals, accounts payable portals, insurance or indemnity requirements, or code of conduct documents), whether submitted before, on, or after the date of this Agreement, that conflicts with, is inconsistent with, or supplements the terms of this Agreement shall be deemed to be additional or different terms proposed by you and, even if we acknowledge receipt or process the related order, shall not become part of this Agreement. No such additional or different terms shall be binding on Mylar Bag Depot unless and until they are expressly accepted by us in a writing that specifically references such term and is signed by a duly authorized officer of Mylar Bag Depot LLC (general counsel, CEO, CFO, or VP-level executive), and no general acknowledgment, "click to accept," processing of payment, performance of services, shipment of goods, or other act shall be deemed to constitute such an acceptance.
If any one or more provisions, clauses, sentences, phrases, or words of this Agreement are held by a court, arbitrator, regulatory body, or other tribunal of competent jurisdiction in a final, non-appealable order to be illegal, invalid, unconstitutional, unenforceable, unconscionable, or void under any applicable law, rule, or regulation, then: (i) such provision shall be reformed, modified, revised, construed, or limited, to the minimum extent necessary, so as to make it valid, legal, enforceable, and consistent with the original intent of the parties as closely as possible; (ii) if such reformation is not possible under applicable law, such invalid, illegal, unconstitutional, or unenforceable provision shall be deemed severed and excised from this Agreement; and (iii) the legality, validity, enforceability, and binding nature of all the remaining provisions of this Agreement shall not in any way be affected, impaired, invalidated, or disturbed thereby, and this Agreement shall continue in full force and effect as if such invalid or unenforceable provision had never been included herein, consistent with the overall intent, bargain structure, and economic allocation of risks set forth in the remaining provisions of this Agreement. The parties acknowledge that the limitations of liability, disclaimers of warranties, class action waiver, and binding arbitration provisions are material and core bargained-for terms that were critical inducements to both parties entering into this Agreement, and that if any such provision were held invalid or unenforceable and could not be reformed consistent with the intent of the parties, the parties acknowledge and agree that this Agreement would not have been executed absent such provision, and the remaining provisions shall be construed and enforced in a manner most consistent with the reasonable commercial expectations of the parties formed at the time of contracting.
No waiver of any breach, default, or non-performance of any provision, term, covenant, obligation, or condition of this Agreement by either party shall be effective or binding unless it is set forth in a writing signed by the party against whom such waiver is sought to be enforced and that specifically references the particular provision, breach, or default being waived. No course of conduct, delay, inaction, or failure or omission by either party to exercise any right, power, remedy, privilege, or election provided for in this Agreement, to object to any breach, default, or non-compliance, or to insist upon strict performance of any provision, shall operate as a waiver of: (i) such provision or right, (ii) any subsequent, prior, or future breach, default, or non-compliance of the same or similar nature, or (iii) any other right, remedy, power, or privilege of the waiving party under this Agreement or applicable law. No single or partial exercise of any right or remedy hereunder shall be construed as precluding any further exercise of such right or remedy or the exercise of any other right or remedy available to the exercising party at law, in equity, in arbitration, or otherwise. The rights, remedies, powers, and benefits expressly provided in this Agreement are cumulative and are not exclusive of any other rights, remedies, powers, or benefits that a party may have under applicable law, in equity, under statute, or otherwise, and the pursuit by either party of any remedy provided for hereunder shall not preclude the simultaneous or subsequent pursuit of any other available remedy.
This Agreement, and the purchase and sale of Products and Services contemplated herein, creates and shall be deemed to create a relationship of independent contractors between Mylar Bag Depot LLC and the Customer, and nothing in this Agreement shall be construed to create, constitute, or evidence any partnership, joint venture, co-ownership, franchisor-franchisee, principal-agent, employer-employee, fiduciary, or trust relationship between the parties, or to grant either party the legal authority, right, or power (actual, apparent, or implied) to bind, obligate, create any liability on behalf of, or act as the agent or representative of the other party for any purpose whatsoever. Neither party shall hold itself out to third parties as having any such authority, right, power, agency, or relationship, and each party shall be solely responsible for the compensation, benefits, tax treatment, withholding, social security contributions, workers' compensation insurance, unemployment insurance, and other statutory obligations relating to its respective officers, employees, contractors, agents, and representatives. The parties acknowledge and agree that each of them is a sophisticated business entity (or individual acting with full legal capacity) with knowledge and experience in commercial matters relating to the purchase and sale of custom packaging products, and that each has had the opportunity to consult with independent legal counsel, tax advisors, and business advisors of its own choosing before entering into this Agreement. Accordingly, no rule of construction or presumption against the drafter shall apply against Mylar Bag Depot LLC in the interpretation of this Agreement.
You may not, without the prior express written consent of Mylar Bag Depot LLC (which consent may be withheld, conditioned, or delayed in our sole and absolute discretion for any reason or no reason), assign, transfer, convey, subcontract, delegate, or otherwise dispose of, whether voluntarily, involuntarily, by operation of law, by change of control, by merger, consolidation, or reorganization, or otherwise, this Agreement, any of your rights, interests, or benefits hereunder, or any order placed hereunder, or delegate the performance of any of your obligations or covenants under this Agreement to any third party. Any attempted assignment, transfer, delegation, or other disposition in violation of this Section 22.e shall be null, void, ab initio, and of no legal force or effect whatsoever, and shall constitute a material breach of this Agreement. We may, however, in our sole and absolute discretion, without your consent and without providing prior notice to you, assign, transfer, convey, or delegate this Agreement in its entirety, or any of our rights, obligations, interests, or remedies hereunder, or any part thereof, (i) to any affiliate, parent, subsidiary, or related company under common control with Mylar Bag Depot LLC; (ii) to any successor in connection with any merger, consolidation, reorganization, restructuring, sale of all or substantially all of our assets or business, financing transaction, or similar corporate transaction; or (iii) to any approved contract manufacturer, supplier, logistics provider, or service provider for the limited purpose of performing manufacturing, shipping, warehousing, design, printing, and support services on our behalf; provided that we shall remain responsible for the ultimate due performance of all obligations assigned or delegated in accordance with this Section. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties and their respective heirs, successors, legal representatives, executors, administrators, and permitted assigns.
This Agreement is made and entered into solely and exclusively for the mutual benefit of Mylar Bag Depot LLC and the Customer that is a direct signatory or accepting party to this Agreement. Nothing in this Agreement, whether express or implied, shall confer, or is intended to confer, any legal or equitable right, benefit, remedy, or claim of any nature whatsoever upon or to any third party whatsoever, including without limitation any employee, customer, end user, consumer, reseller, distributor, broker, supplier, contractor, partner, shareholder, lender, insurer, beneficiary, or affiliate of Customer or of Mylar Bag Depot LLC, or any other person or entity who is not a direct signatory or accepting party to this Agreement. No third party shall have any right to bring a cause of action, claim, demand, suit, arbitration, or other proceeding against either party arising out of or relating to this Agreement, whether pursuant to the doctrine of third-party beneficiary, promissory estoppel, tort, products liability, unjust enrichment, or any other legal or equitable theory, except as expressly provided to the contrary by applicable non-waivable consumer protection or products liability statute.
All notices, demands, claims, requests, approvals, consents, design approvals, order acceptance confirmations, RFQ responses, legal complaints, correspondence, and other communications of any kind required or permitted to be given under this Agreement (collectively, "Notices") shall be in the English language, in writing, and shall be deemed to have been properly given, delivered, and received for all purposes hereunder on the earliest of the following dates: (i) if delivered personally or by commercial overnight courier, next-business-day air service, or reputable hand-delivery service, on the business day of actual delivery as evidenced by a signed delivery receipt or carrier Proof of Delivery; (ii) if sent by certified or registered United States Mail, postage pre-paid, return receipt requested, five (5) business days after the date of mailing as evidenced by the USPS postmark date; (iii) if sent by confirmed email to the designated email addresses listed below, upon completion of successful transmission by the sending server and the generation of an automated or manual delivery receipt confirming successful delivery to the recipient's mail server (without bounce, undeliverable, or deferred return message), regardless of whether the recipient actually opens, views, or downloads the email; or (iv) if posted to the customer's secure online account portal, upon the earlier of actual access by the customer or the expiration of 24 hours from the time of posting accompanied by an automated email notification referencing the availability of the document in the portal. Notices to Customer shall be delivered to the most recent email address, physical mailing address, and account contact information provided by Customer in its account profile or at checkout, as updated from time to time. Notices to Mylar Bag Depot LLC shall be delivered to the following addresses, as applicable for the subject matter: General legal notices and dispute-related notices: legal@mylarbagdepot.com and by certified mail to Mylar Bag Depot LLC, Attn: Legal Department, 1280 Packaging Way, Suite 400, Denver, CO 80202, United States. Customer support, order changes, cancelation requests, quality claims, and routine operational notices: support@mylarbagdepot.com. It is your sole responsibility to keep your account contact information, including your primary email address and mailing address, accurate and up-to-date at all times, and we shall be deemed to have properly given any Notice sent to the most recent contact information on file in your account, even if such email address is no longer monitored, bounces, has been decommissioned, or has changed without your having provided us with updated information. Notwithstanding the foregoing, routine operational communications (order status updates, shipping notifications, proof approval requests, marketing emails, newsletter updates, and similar day-to-day communications) may be sent via standard unconfirmed email, SMS text message, in-app notification, or live chat to the contact information provided by you, and shall be deemed delivered when sent in accordance with your explicit or implied marketing and operational communication preferences.
The descriptive headings, captions, and titles used in this Agreement, including the Table of Contents, are inserted solely for convenience of reference and ease of navigation only. They shall not be deemed to constitute part of the agreed terms of this Agreement, and they shall not be used to interpret, construe, define, limit, or expand the scope, intent, meaning, or applicability of any provision of this Agreement in any way. Unless the context clearly requires otherwise: (i) the singular number includes the plural, and the plural includes the singular; (ii) words of any gender include all other genders; (iii) words using the terms "including," "includes," "e.g.," "for example," "such as," "by way of example," or words of similar import are intended to be illustrative and non-exhaustive and shall not be construed to mean "limited to" or "consisting of," whether or not they are in each instance expressly followed by the phrase "without limitation" or words of similar meaning; (iv) the words "hereof," "herein," "hereto," "hereunder," and "hereby" and similar compound words refer to this Agreement as a whole and not to any particular section, paragraph, or clause; (v) references to "Sections," "subsections," "paragraphs," "clauses," "Schedules," and "Exhibits" are to the sections, subsections, paragraphs, clauses, schedules, and exhibits of this Agreement; (vi) any reference to a statute or law shall be deemed to also refer to all rules, regulations, guidelines, administrative interpretations, and judicial decisions thereunder, and to any and all successor statutes, amendments, consolidations, re-enactments, and modifications thereof, whether now in effect or hereafter enacted; (vii) all references to dollar amounts, prices, payments, penalties, or damages are to the lawful currency of the United States of America (USD); (viii) any requirement of a writing or written notice includes electronic documents, PDFs, email, and documents signed with secure electronic signatures (including DocuSign, Adobe Sign, and similar e-signature services) to the maximum extent permitted by applicable electronic signature laws including the federal E-SIGN Act, 15 U.S.C. § 7001 et seq., and the Colorado Uniform Electronic Transactions Act, C.R.S. § 24-71.3-101 et seq.; and (ix) whenever a party is required to pay any amount, fine, tax, fee, or penalty, such amount shall be paid in immediately available funds, without deduction, set-off, recoupment, counterclaim, or withholding of any kind, except to the extent that such set-off or withholding is expressly required by applicable law and Customer provides Mylar Bag Depot with sufficient official documentation enabling Mylar Bag Depot to claim a full and valid foreign tax credit or similar credit for the amount so withheld against its own tax liabilities.
If you have any questions, concerns, complaints, demands, or legal notices regarding these Terms of Service, please direct your written communication via email or certified mail to:
Email: legal@mylarbagdepot.com (Preferred for all correspondence)
Customer Support / Orders: support@mylarbagdepot.com
Privacy / Data Protection Inquiries: privacy@mylarbagdepot.com
Telephone (Mon–Fri 8AM–6PM MST): +1 (800) 555-2697
Certified Mail / Registered Mail / Overnight Courier Address:
Mylar Bag Depot LLC
Attn: Legal Department
1280 Packaging Way, Suite 400
Denver, CO 80202
United States of America
Thank you for taking the time to read and understand our Terms of Service. We appreciate your trust and partnership.