Terms and Conditions
All orders placed with PROMEDIA DIGITAL by, and for the account of, Customer, are subject to the following terms and conditions:
CUSTOMER'S WARRANTIES TO PROMEDIA DIGITAL
Customer warrants that it is the owner or copyright owner of the material, delivered by Customer to PROMEDIA DIGITAL or that Customer has a license to duplicate the materials. Customer warrants that the materials delivered to PROMEDIA DIGITAL are not pornographic under applicable law.
LIMITATION OF PROMEDIA DIGITAL LIABILITY FOR MATERIALS SUPPLIED BY CUSTOMER
Since the intrinsic value of the disc, videotape or other material delivered to, or deposited with, PROMEDIA DIGITAL by Customer clearly exceeds and bears no relationship to PROMEDIA DIGITAL's charges for duplication, printing and other services, PROMEDIA DIGITAL, in accordance with the general practice and custom in the DVD, CD and videotape duplication industry, assumes no responsibility for loss or destruction of, or damage to, such DVD, CD, videotape, or other material arising from any cause whatsoever, including the negligence of PROMEDIA DIGITAL or its employees. Notwithstanding the foregoing, in the event of the loss or destruction of, or damage to, DVD, CD, videotape, or other material as a result of the negligence of PROMEDIA DIGITAL or its employees, PROMEDIA DIGITAL will reimburse Customer for the cost of the raw recordable media, and this responsibility shall fix the limit of PROMEDIA DIGITAL's liability, there being no other warranty or liability with respect thereto. Customer waives any and all claims for damages it may have against PROMEDIA DIGITAL that are covered by any insurance carried by Customer.
LIMITATION OF WARRANTY FOR MATERIALS AND SERVICES SUPPLIED BY PROMEDIA DIGITAL
PROMEDIA DIGITAL gives no warranty and assumes no responsibility as to the character or quality of the material and/or services furnished by it. Notwithstanding the foregoing, if any material produced by PROMEDIA DIGITAL is defective or is erroneously labeled or shipped, PROMEDIA DIGITAL will, at its own expense, promptly replace or repair such material or correct such error, provided that (a) written notice of such defect is given, and the defective material is returned, to PROMEDIA DIGITAL within ten days after arrival at the original destination, or (b) written notice of such error in labeling or shipment is given to PROMEDIA DIGITAL within ten days after shipment from PROMEDIA DIGITAL. PROMEDIA DIGITAL's liability to Customer or any other person for any defective material produced by PROMEDIA DIGITAL or for an error in labeling or shipping, including shipment of an incorrect program or item, shall be limited to the replacement or repair of such defective material or the correction of such error in labeling or shipping. The shipping method used to replace defective material or to correct errors in labeling or shipping shall be determined at the sole discretion of PROMEDIA DIGITAL and shall not necessarily be based upon the original method of shipment. PROMEDIA DIGITAL shall not be liable to Customer or to any third party for any consequential damages (including, but not limited to, damages for loss of sales or profits, loss of customers, injury to reputation, or loss of, or damage to audiovisual equipment or other property used in connection with the materials produced by PROMEDIA DIGITAL) caused by, or resulting directly or indirectly from, a defect in such materials or an error in labeling or shipping, including shipment of an incorrect program or item, even though resulting from the negligence of PROMEDIA DIGITAL or its employees.
DPROMEDIA DIGITAL, CDs, videotapes, and other materials deposited with PROMEDIA DIGITAL are accepted upon the express understanding that PROMEDIA DIGITAL holds a lien thereon for any amounts from time to time owed to PROMEDIA DIGITAL by Customer. Nothing herein shall limit or impair the rights of PROMEDIA DIGITAL under the lien laws of the State of Ohio. Customer agrees that in the event of the enforcement of PROMEDIA DIGITAL's rights under said laws, the purchaser, which may be PROMEDIA DIGITAL, may exhibit, distribute or otherwise exploit and may exercise any and all rights of any kind or nature which Customer may have in, said DPROMEDIA DIGITAL, CDs, videotapes, or other materials.
PROMEDIA DIGITAL will ordinarily store Customer's materials, without charge to Customer, at such place as PROMEDIA DIGITAL deems appropriate during the time PROMEDIA DIGITAL performs services with respect to said materials and for a reasonable period, not to exceed six months. However, PROMEDIA DIGITAL reserves the right, at any time, to require Customer to remove said materials from storage. Within thirty days after PROMEDIA DIGITAL mails written notice requiring such removal to Customer at the address shown as Customer's address on PROMEDIA DIGITAL's records, Customer shall, at its sole expense, remove all materials stored by PROMEDIA DIGITAL. In the event Customer fails to remove said materials, PROMEDIA DIGITAL shall have the right to destroy or otherwise dispose of said materials without liability to Customer or any other person. Customer shall indemnify and hold PROMEDIA DIGITAL harmless from all liability, damages and expenses arising out of or connected with the destruction or disposal of said materials.
Customer is required to have duplication permission for all copyrighted material and content therein. Customer shall indemnify PROMEDIA DIGITAL against, and hold it harmless and to defend PROMEDIA DIGITAL from and against, all liabilities, suits, claims, damages and expenses (including reasonable attorneys' fees) that may be rendered against PROMEDIA DIGITAL from any claim of defamation, invasion of privacy, or infringement of any copyright, trademark, patent or other proprietary right, which may arise either directly or indirectly by reason of the services performed or goods provided by PROMEDIA DIGITAL for Customer. This indemnity provision applies whether Customer is legal owner or copyright owner of the material and/or contents, or agent, broker or other intermediary for the legal owner.
REFUSAL TO ACCEPT MATERIALS
PROMEDIA DIGITAL, in its sole discretion, may refuse to accept for duplication materials showing any imperfections or defective physical condition. In the event that such materials are accepted for duplication or other services, PROMEDIA DIGITAL shall not be responsible for the quality resulting from such conditions and will make an additional charge to Customer for the additional time and/or materials required to comply with the orders submitted, whether or not a satisfactory result is ultimately achieved by PROMEDIA DIGITAL. Furthermore, PROMEDIA DIGITAL, in its sole discretion, may refuse to accept for duplication materials that are deemed to be pornographic, or copyrighted if permission from the copyright owner is in question.
PRICE AND CREDIT TERMS
All prices set forth in PROMEDIA DIGITAL's price schedules are subject to change without notice. All prices are F.O.B. PROMEDIA DIGITAL's place of business, and do not include federal, state or local excise, sales or use taxes. PROMEDIA DIGITAL reserves the right to demand payment in full before completing any order. Finished products will be released only upon full payment, unless credit has been approved. For customers with approved credit, PROMEDIA DIGITAL's terms are NET Thirty (30) days from date of invoice. Customer agrees to pay interest at the rate of 1 ½% per month on all amounts that are not paid when due. Customer further agrees to pay PROMEDIA DIGITAL all costs of collection including reasonable attorney's fees whenever PROMEDIA DIGITAL employs an attorney or other party to enforce collection. No delay or omission by PROMEDIA DIGITAL in exercising any rights with respect to interest or collection shall operate as a waiver of such rights, or of any other rights under the terms and conditions. The waiver on any one occasion shall not be construed as a bar to or waiver of any such rights and remedies on any future occasion.
Unless otherwise instructed by Customer, PROMEDIA DIGITAL will ship all materials via carrier selected by PROMEDIA DIGITAL. All shipments will be at the sole cost and expense of Customer and Customer shall bear all risk of loss of, and damage to, the materials during shipment. PROMEDIA DIGITAL shall not be liable for any loss or damage arising during shipment.
PROMEDIA DIGITAL shall not be liable to Customer for any failure or delay in the performance of any of PROMEDIA DIGITAL's obligations to Customer if such failure or delay shall arise from any cause beyond the reasonable control of PROMEDIA DIGITAL, including, without limitations, acts of God, acts or omissions of any government or agency thereof, fire, storm, flood, accident, acts of the public enemy, strikes, lockouts, disputes or differences with workmen, staffing shortages, transportation embargoes, failures or delays, equipment or process malfunctions, and concerns with product quality.
If, at any time, Customer cancels an order before or upon its completion, Customer shall be liable to PROMEDIA DIGITAL for that part of the work performed to the date of cancellation, as well as any other direct, consequential or incidental costs or damages due to the cancellation. Also, PROMEDIA DIGITAL reserves the right to cancel an order if, at any time, it has legal, moral, or ethical objections to the services or products that Customer has requested. In this event, Customer shall be liable to PROMEDIA DIGITAL for the reasonable value of the goods furnished and the services performed to the date of cancellation.
Unless PROMEDIA DIGITAL specifically agrees otherwise in writing, the terms and conditions set forth herein shall supersede and take precedence over any other terms and conditions that may appear on any purchase order submitted by Customer or any prior agreement inconsistent with the terms hereof, and PROMEDIA DIGITAL's failure to object to provisions contained in Customer's purchase orders shall not be deemed a waiver of the terms and conditions set forth herein.
These terms and conditions shall be governed by, and construed and enforced in accordance with, the laws of the State of Ohio.