ADVANCED DUPLICATION SERVICES, LLC GENERAL TERMS AND CONDITIONS OF SALE
1. Application. These General Terms and Conditions of Sale (the “Terms and Conditions”) shall pertain to all acts related to the purchase and sale of CD, DVD, USB, audio, video, and all other goods sold and work performed (collectively, the “Work”) in accordance with any contract (purchase order, customer drawings and specifications, etc.) to which these Terms and Conditions are hereby made applicable. As used in these Terms and Conditions, Advanced Duplication Services, LLC, hereafter referred to as “The ADS Group” means either The ADS Group or the applicable subsidiary providing the Work; and “Customer” means the party purchasing the Work from The ADS Group. All orders for Work are subject to The ADS Group’s approval and acceptance. The ADS Group’s acceptance of any order or request for Work is expressly made conditional upon the Customer’s asset to the Terms and Conditions and none of Customer’s additional or different terms shall apply unless expressly agreed to by The ADS Group in writing.
2. Pricing and delivery. While The ADS Group will make all reasonable efforts to ensure timely delivery of the purchase order, the customer’s order will be delayed if the customer has failed to provide The ADS Group all necessary materials (including without limitation master, graphics, deposit, signed estimate, signed Intellectual Property Rights Form, etc.)
Quoted or acknowledged delivery dates are only estimated dates of delivery and estimated shipping charges. The ADS Group specifically disclaims liability for delays in delivery and any resulting consequential damage or losses. The ADS Group reserves the right to adjust estimated shipping charges to reflect actual cost incurred upon shipment.
The ADS Group reserves the right to produce and bill for production overruns or underruns up to five percent
(5%) of the Customer’s order. Customer will be billed for actual amounts shipped.
The ADS Group maintains offices and facilities in several states and charges applicable sales tax when appropriate, as required by law.
The Customer is obligated to inspect products upon receipt; failure to report claims for damages or shortages within 48 hours to be deemed waived and goods be deemed irrevocably accepted.
3. Payment terms. The ADS Group accepts cash, check, VISA, MasterCard, Discover, and American Express.
Companies requesting credit must fill out a credit application before any order can be processed otherwise customers will be required to prepay their order. If Customer is approved for credit, standard terms are Net 30 days from invoice date unless otherwise approved in writing. The ADS Group is authorized to investigate the information provided in the application and the financial condition of the applicant. In the event that Customer fails to pay The ADS Group any amount owing within ten days due, Customer agrees (1) to pay interest on the amount owing at the rate of (A) 1½% per month (18% per annum) or (B) the highest rate permitted by law, whichever is less, accruing from the due date, and (2) to pay all costs of collection and reasonable attorney’s fees, if any.
The ADS Group will send an invoice when product is produced or purchased on behalf of Customer and title to the product will pass to Customer, regardless of whether the products are shipped and whether or not the product is stored for the customer at The ADS Group premises. Customer has an obligation to pay in accordance with the invoice terms, which is absolute and is not contingent on any further or other performance on the part of The ADS Group or on delivery of the product.
In the event Customer fails to pay within ninety (90) days for any work completed, or in the event Customer fails to accept delivery or pick up the finished product within ninety (90) days from completion, The ADS Group has the right to destroy any such product on hand in any way The ADS Group chooses without any liability by The ADS Group to Customer or others. Customer shall remain liable for the any amount still owed for product destroyed.
Additional charges for stored inventory will be billed on a customer specific basis. These terms will be negotiated in advance and will be billed monthly.
The ADS Group specifically disclaims and denies any and all liability for damage or loss due to fire, casualty, or negligence while the customer’s materials are in the care and possession of The ADS Group. All liability for product The ADS Group is storing shall be borne by the customer, even though such product is situated at The ADS Group premises. Since such product will be held by The ADS Group at the customer’s full risk and peril, customer agrees to maintain insurance coverage deemed necessary for its product while at and in transit to and from The ADS Group premises.
As part of The ADS Group arrangement with its financial institution, waivers may be occasionally requested with customer signatures confirming the terms of this agreement.
The ADS Group assumes, and will have the right to assume, that Customer has retained backups or originals of all content; including without limitation masters, graphic files, multimedia files, video files and audio files, provided in digital electronic form including without limitation on recordable CD or DVD, digital video mast, ZIP, USB, DLT, DAT or other digital recording medium, or as uploaded to The ADS Group website via FTP, email or other method for manufacturing. As such, The ADS Group is not obligated to return such electronic content to the customer upon completion of the order. The ADS Group will return upon request, physical masters, original artwork, photos, transparencies, etc. furnished by the customer upon completion and payment of the order.
4. Protection of Intellectual Property. The ADS Group has implemented an intellectual property rights verification program which protects property rights owners from the unauthorized manufacture and distribution of their content.
Therefore it is required that Customer represents to the ADS Group that it is the rightful owner of, or is licensed or otherwise possesses legal rights to use the content, trademarks, service marks, trade names, copyrights or other intellectual property rights relating to the materials provided to The ADS Group by the customer under this agreement, including but not limited to the right to reproduce, manufacture and otherwise use the materials.
Customer agrees to indemnify, defend, protect, and hold harmless The ADS Group and its subsidiaries and their respective officers, directors, agents, affiliates, distributors and employees (collectively, “indemnified parties”) against any and all liabilities, losses, claims, damages, punitive damages, causes of action, lawsuits, administrative proceedings, and cost and expenses (collectively “damages”) suffered, sustained, incurred, or paid by the indemnification parties in connection with or resulting from (i) any claim, demand, proceeding or lawsuit by a third party based on any assertion that the products or services provided to Customer under this agreement breaches the patent, copyright, trademark, or other proprietary right of such third party and (ii) any breach of representation or warranty of Customer set forth in this agreement, or the Intellectual Property Rights form, purchase order or any other form or document in connection herewith.
The ADS Group reserves the exclusive rights, at its sole discretion, to investigate the ownership of any and all materials provided. In turn, Customer agrees to provide The ADS Group, upon request, all necessary documentation of ownership or other legal rights, including without limitation all relevant copyright and licensing information. By reserving these rights, The ADS Group does not assume any obligation to investigate or verify ownership of any materials provided by Customer, and The ADS Group may rely on Customer’s representations and warranties herein and provided under the Intellectual Property Rights form.
In the event The ADS Group determines, or has reason to believe, that Customer is not authorized to produce the products as indicated, The ADS Group will have no further obligations to the customer to provide any products or services associated with such materials, and The ADS Group will return such materials to Customer.
5. Completion of Work; Limited Warranty. The ADS Group warrants that it will complete the Work in a workmanlike manner consistent with industry standards. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, INFRINGEMENT AND FITNESS FOR PARTICULAR USE. ANY ORAL OR WRITTEN STATEMENT CONCERNING THE WORK INCONSISTENT WITH THE LIMITED WARRANTY CONTAINED HEREIN SHALL BE OF NO FORCE OR EFFECT. The ADS Group will exercise reasonable effort to complete the Work by any date reasonably requested by the Customer, but shall not be liable for any delay in the delivery or shipment of goods, or any damages suffered by the client by reason of such delay.
No employee, agent or other person is authorized to give any warranties on behalf of the ADS Group in addition to or different from those herein given, or to assume for The ADS Group any other liability in connection with the Work except in a document signed by an authorized officer of the ADS Group, which expressly provides such warranties or assumes such liability.
6. Limitation of Remedies. The sole and exclusive remedy of Customer and its customers, agents and other affiliates, in respect of any claim against The ADS Group based on or relating to any claimed defect in the Work or otherwise relating to the Work or the relationship of the parties, whether such claim is based upon contract, warranty, statute, professional errors or omissions, strict liability or negligence, and whether such claim is commercial loss or other monetary loss, shall be (i) replacement of Work, or rework of any defective portion of the Work, or (ii) at The ADS Group’s option, a refund or credit to Customer in the amount of the price paid for the defective portion of the Work.
7. Cancellations. A purchase order or other contract for Work once placed and accepted by The ADS Group can be cancelled, in whole or in part, only with the consent of The ADS Group. If Customer cancels without The ADS Group’s consent, Customer shall be liable for the full price of the Work, less any actual expenses saved by The ADS Group in not having to perform the Work, as reasonably determined by The ADS Group in its sole discretion.
8. Limitation on Liability. EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 6, THE ADS GROUP SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY LOSS, LIABILITY OR DAMAGE DIRECTLY OR INDIRECTLY ARISING FROM ITS PERFORMANCE OF THE WORK. THE ADS GROUP SHALL NOT BE LIABLE FOR ANY INCIDENTIAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR GOODWILL). IN NO EVENT SHALL THE ADS GROUP BE LIABLE FOR ANY DAMAGES ABOVE THE COST OF THE WORK.
9. Limitation of Actions. Any actions or claims by Customer against The ADS Group shall be brought within twelve (12) months after shipment or completion of the Work.
10. Force Majeure. The ADS Group sh all not be liable for any delays in delivery or performance due in whole or in part, directly or indirectly, to fire, act of God, strike, shortage of raw materials, supplies or components, retooling, upgrading of technology, delays of carriers, embargo, government order or directive, or any other circumstance beyond The ADS Group’s reasonable control.
11. Applicable Law. These Terms and Conditions shall be governed by and construed in accordance with the internal laws (not the laws of conflicts) of the State of Minnesota. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms and Conditions and the transactions of the parties.
12. Miscellaneous. All clerical errors a re subject to correction. The failure of The ADS Group to enforce or apply at any time any provisions of these Terms and Conditions shall not be construed to be a waiver of such provisions or the right of The ADS Group to enforce such provisions in the future.