This Imperial Media Services’ Service Agreement (the "Agreement") describes the terms and conditions by which Imperial Media Services, Inc ("Imperial Media") offers services to you ("Customer"). By registering for or using Imperial Media’s services, Customer agrees to be bound by the following terms and conditions.
1. Eligibility for Services: Imperial Media’s services are available only to individuals and business entities (including but not limited to sole proprietorships) in good legal standing that can form legally binding contracts under applicable law. Customer hereby represents and warrants that it is duly licensed to do business and is in good legal standing in the jurisdictions in which it does business (during the term of this Agreement) that it is not a competitor of Imperial Media, and that the person agreeing to this Agreement for Customer is at least eighteen years of age and otherwise capable of and authorized to enter into binding contracts for Customer.
2. PRICE: Customer agrees to pay for all services and materials ordered at Imperial Media prices in effect at the date of delivery of materials to Customer. All prices and online quotes are subject to change without notice. Unless otherwise specified, published prices are for services and materials requiring standard transfer, duplication or processing based upon the use of Imperial Media facilities and the employment of Imperial Media personnel during normal working hours.
3. TAXES AND SHIPMENT: Imperial Media prices do not include sales, use, manufacturing, excise, processing and other taxes, either presently existing or which may be imposed in the future, in connection with services or materials furnished by Imperial Media or materials used by Imperial Media in completing Customer’s order. Any such taxes shall be added to the prices charged to the Customer. All prices are FOB, Imperial Media' place of business where the materials are furnished. Transportation of materials to and from Imperial Media' facility shall be Customers risk and expense.
4. PAYMENT: Terms of payment will be negotiated and shown on invoice. Seventy-five percent (75%) of the total gross amount of the bill is due at the time the order is placed. Twenty-five percent (25%) balance is due upon completion of the order. A charge of two percent (2%) per month is made on the past due balance of any account in order to reimburse Imperial Media for estimated administrative and other costs associated with delinquent accounts. Pursuant to California Code Section 1671. Customer agrees that such a charge is a fair and reasonable Estimate of the costs Imperial Media will incur by reason of Customer’s being in default and that ascertaining Imperial Media actual damages would be impracticable. This charge is not alternative performance provision
5. DELIVERY: Delivery dates, if furnished by Imperial Media, are approximate. Customer’s order will be filled as rapidly as practicable taking into consideration the delivery to Imperial Media of materials by Customer, the type of services or materials ordered by Customer, Imperial Media' obligations to other Customers and Imperial Media' facility capacity. Imperial Media shall not be liable to Customer or to any other person for any losses or damages arising out of delay in delivery of services or materials, nor shall Imperial Media be liable for failure to give notice of any such delay. Any delay in delivery shall not constitute grounds for termination or cancellation of Customer’s order, whether such delay arises from causes within or beyond Imperial Media' control.
6. TITLE AND RISK OF LOSS: Full risk of loss and the title passes to the Customer upon delivery of the merchandise to the Customer. Claims for loss or damage in shipment must be made directly to the carrier. Upon customer’s default in payment, Imperial Media may at its option repossess the merchandise. Additionally, Imperial Media may pursue any other remedies available at law or in equity under the California Uniform Commercial Code or other laws of similar force, effect and coverage.
7. RETURNS: Undamaged merchandise may be returned only with the prior written approval of Imperial Media, unless other arrangements have been made, and even though such arrangements must be in writing by the Imperial Media. Returned items must be referenced to Imperial Media invoice number and must be sent freight preparation unless other arrangements have been made and verified by Imperial Media in writing, to the location directed by the Imperial Media. Imperial Media may collect a reasonable handling charge. Returned merchandise will be replaced, or a credit will be issued to your account, or any amount paid shall be returned to Customer. When returns are for credit, a credit memorandum will be processed and delivered to Customer shortly after the return of the merchandise. Defective products may only be replaced with the same product. Products returned for reasons other than damage or defects are subject to twenty percent (20%) restocking charge. Non-defective products for which prior written approval is obtained from Imperial Media for a return must be returned to Imperial Media in "resalable" condition and in their original packaging. If non-defective products cannot be made suitable for sale, they will be returned to Customer. A Return Authorization Number (RA) must accompany all returns. Customer may obtain an RA by contacting Imperial Media. Merchandise may not be returned without prior authorization and an RA number.
8. SHORTAGE: Customer must make any claim for shortages to Imperial Media within ten (10) days of delivery. Customer’s failure to advise Imperial Media of shortages within the ten (10) day period shall constitute a waiver of Customer’s right to claim a shortage exists in the delivery.
9. WARRANTY:
a) Manufacturer’s Warranty. All warranties made by the manufacturer are transferred to customer with the sale of the goods. Imperial Media shall not be responsible for manufacturer’s warranties.
b) Imperial Media. IMPERIAL MEDIA MAKES NO WARRANTIES, EXPRESS OR IMPLIED. NO WARRANTY OR MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE IS MADE. Customer shall hold for examination by Imperial Media any merchandise claimed to be in breach or warranty. In the event Customer’s claim is substantiated by Imperial Media examination, Imperial Media will replace the defective merchandise or credit an equitable portion of the purchase against further purchases or issue a refund less any shipping, handling, and/or insurance charges.
10. LIABILTY: IN NO EVENT SHALL IMPERIAL MEDIA BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. Pursuant to California Uniform Commercial Code Section 2-719, Customer agrees that no other remedy (including but not limited to incidental or consequential damages for lost profits, lost sales, injury to person or property, delays or lateness or any other incidental or consequential loss) shall be available to him. Customer’s sole remedy against Imperial Media shall be as set forth Paragraph above. In the event that the terms set forth in Paragraph are held to be unenforceable, Imperial Media and Buyer agree that consequential and/or incidental damages shall be limited to $100.00 per shipment of goods from Imperial Media to Buyer.
11. GOVERNMENTAL REGULATIONS: Imperial Media makes no representation that the merchandise complies with any present or future federal, state or local regulation or ordinance, including an laws governing or regulating the export or import of goods. Compliance is Customer’s responsibility.
12. LIMITATIONS OF ACTIONS: ANY ACTION AGAINST IMPERIAL MEDIA ARISING OUT OF THE CONTRACT FOR THE SALE OF GOODS UNDER THIS AGREEMENT SHALL BE BROUGHT WITHIN ONE YEAR OF THE DISCOVERY OF SUCH BREACH OF CONTRACT OR IS FOREVER BARRED.
13. ATTORNEY FEES: In the event Customer defaults in the terms of payment, Imperial Media may recover from Customer all costs incurred in the collection of the payment including without limitation reasonable attorney fees, whether or not such collection includes the commencement of the lawsuit. Imperial Media shall also, upon obtaining a judgment against Customer, be entitled to recover attorney’s fees and investigative costs incurred in enforcement the judgment.
14. ENTIRE AGREEMENT: Imperial Media accepts orders only upon the foregoing terms and conditions that shall prevail not withstanding any variance with the terms and conditions of any order submitted by the Customer. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior and contemporaneous agreements between the parties. This Agreement maybe amended only by an instrument in writing which expressly refers to this Agreement and which all the parties by all of the parties sign hereto.
15. SEVERABILITY: Should any paragraph, clause or provisions of this Agreement be construed by a court or competent jurisdiction to be void, invalid or unenforceable, such decision shall affect only those paragraph, clauses or provisions so construed or interpreted. It is the express intent of the parties that the court construe said paragraphs, clauses and provisions so that their meaning and the intent be enforceable to the fullest extent permitted under the law. In no event shall the unenforceability of any paragraph, clause or provision, affect the remaining paragraphs, clauses or provisions of this Agreement that shall remain enforceable.
16. GOVERNING LAW, JURISDICTION AND VENUE: This Agreement shall be construed and governed by the laws of the State of California. A material consideration for Imperial Media sale of goods on credit, Customer hereby agrees that all sales made pursuant to this agreement are made and that the terms of this agreement have been are to be performed within the State of California.
17. RESPONSIBILITY FOR PAYMENT: By affixing a signature below, Customer accepts the full responsibility for the payment of all the sums owed to Imperial Media. Customer’s signature or any other authorized employee(s) signature of Customer attests financial responsibility, willingness, and ability to pay Imperial Media invoices in accordance with Imperial Media terms.
18. INDEMNIFICATION: Customer shall indemnify hold harmless and defend Imperial Media and its officers, employees, and agents against any and all claims, suits, losses, damage, costs, fees and expenses due to or arising out of any alleged copyright, trademark, trade name, trade secret or other intellectual property infringement, right of privacy invasion, libel or obscenity resulting from Imperial Media’s provision of goods and services to and Company agrees to pay all costs incurred by Imperial Media in successfully enforcing this indemnification, including reasonable attorney fees.
19. VERBAL AGREEMENTS: All agreements and directives, and any modifications to agreements and directives, must be in writing. To ensure clarity and avoid misunderstandings, no verbal agreements will be made. If Customer believe an agreement has been reached or implied, it is Customer’s responsibility to ensure that the agreement is acknowledged in writing prior to placing the order, amending the order, or at any time instructions are given or a change is made.
1. INTELLECTUAL PROPERTY RIGHTS PROTECTION: Imperial Media participates in the International Recording Media Association's (IRMA) Anti-Piracy Compliance Program, which protects property rights owners from the unauthorized distribution of their content.
Customer hereby represents and warrants (a) that it is the true and rightful owner of, or is licensed or otherwise possesses legally enforceable rights to use the registered and unregistered rights, titles, and interests in and to any United States or foreign trademarks, service marks, trade names, copyrights or other intellectual property rights relating to the materials provided to Imperial Media under this agreement, including but not limited to the right to reproduce, manufacture and otherwise use the materials; (b) that Customer and Imperial Media are not, or will not be, as a result of the execution and delivery of this Agreement or the performance by Imperial Media of the obligations hereunder, in violation of any intellectual property rights of third parties; and (c) that no claims with respect to Customer's intellectual property rights or third party intellectual property rights in the materials are currently pending, nor to the knowledge of Customer, are threatened by any person, nor, to Customer's knowledge, do any grounds for any claims exist.
Imperial Media reserves the right, at its sole discretion, to investigate the ownership of any and all materials provided hereunder.
Customer agrees to provide Imperial Media, upon request, all necessary documentation of ownership or other legal rights, including without limitation all pertinent copyright and licensing information. By reserving these rights, Imperial Media does not in any way assume an obligation to investigate or verify ownership of any materials provided by the customer, and Imperial Media may rely on Customer's representations and warranties herein and provided under Imperial Media' Intellectual Property Rights Form even if Imperial Media investigates such ownership.
If Imperial Media determines, or has reason to believe, that Customer does not have the authority to produce the products sought hereunder, Imperial Media will have no further obligations to Customer to provide any products or any other services with respect to such materials, and Imperial Media will return such materials to Customer.
2. LIABILITY LIMITATIONS: The master material you provide will be duplicated "as is". Imperial Media is not liable for defects and/or deficiencies on duplicated or replicated media that appear as a result of defects/deficiencies on your master, or as a result of any changes that you direct us to make to your master. Imperial Media assumes no liability, nor does our insurance cover failure or delay for performance caused directly or indirectly by an act of God, a strike, a lockout, a fire, a transportation failure, an equipment failure, or loss or damage to Customer's master or other material. To protect your original master against loss or damage, Imperial Media highly recommends that customers provide a sub-master for duplication/replication rather than the original master. For tracking purposes, masters and other material provided to Imperial Media must be labeled with your company name, the title of your project, a primary contact name and phone number.
3. MASTER SUBMISSION & PROOFING REQUIRMENTS: It is Customer's responsibility to provide a CD and/or DVD master that has been thoroughly reviewed and tested for content, quality and proper functionality prior to submission to Imperial Media for replication or duplication. Imperial Media uses software to verify data integrity; however, this test DOES NOT evaluate the quality of the video, audio or navigation. Likewise, Imperial Media cannot evaluate the coloration of the printing on the disc face. To ensure there is no discrepancy between our customer's quality standards and their replicated discs, Imperial Media, upon request, will supply a check (proof) disc for final verification prior to CD and/or DVD replication or duplication. PLEASE NOTE: There is an additional charge and additional time required for us to produce, and for you to examine and approve a check disc.
a) Imperial Media Prepared Masters: If Imperial Media' provides mastering for a CD or authors a DVD master, a check disc will be created for Customer's assessment of the content, quality and functionality. Approval must be confirmed in writing before duplication or replication proceeds.
b) Revisions: If after reviewing the check disc(s) Customer requests modifications or repairs, Imperial Media will make the necessary changes and prepare a revised check disc for Customer's approval. Each revision requires a new check disc and each new check disc requires customer's evaluation and written approval before Imperial Media can proceed with mastering and replication.
c) Check Disc Waiver: If Customer chooses not to receive a check disc, a written waiver is required. The waiver acknowledges Customer's option to receive a "one-off" proof prior to duplication or replication and releases Imperial Media from any liability from duplication and/or replication errors, omissions or other quality or functionality conditions that exist on the CD and/or DVD master or as a result of color match issues on the disc face.
d) Art File Submission: Templates and specifications can be found on Imperial Media' website: http://www.imperialmedia.com. Art files that do not conform to Imperial Media' submission specifications will require modification. Customer will be notified if this is the case. If Imperial Media' technicians make the repair or modification, the customer will be billed at the rate of $120 per hour, with a 15 minute minimum, billed at 15 minute increments.
4. OVER-RUN / UNDER-RUN POLICY: Production quantities of CD and DVD-replicated discs and commercially printed paper (e.g. case-wraps, case folders, booklets, tray cards & sleeves) may vary from the quantity ordered. Customer is responsible, up to the limits specified below, for all costs associated with the over/under-run variance. Customer responsibility for over-runs / under-runs follows:
500 – 9,999: (+ or -) 10%
10,000 - 49,999 units: (+ or -) 5%
>50,000 units: (+ or -) 3%
5. EXPERIMENTAL WORK: Experimental or preliminary work performed at the customer’s request will be charged for at current rates and may not be used until Imperial has been reimbursed in full for the amount of charges billed.
6. CREATIVE WORK: Creative work, such as sketches, copy, dummies, and all preparatory work developed and furnished by Imperial, shall remain their exclusive property and no use of same shall be made, nor any ideas obtained there from be used, except upon compensation to be determined by Imperial, and not expressly identified and included in the selling price.
7. CONDITION OF COPY: Upon receipt of original copy or manuscript, should it be evident that the condition of the copy differs from that which had been originally described and consequently quoted, the original quotation shall be rendered void and a new quotation issued.
8. PREPARATORY MATERIALS: Working mechanical art, type, negatives, positives, flats, plates or other items when supplied by Imperial, shall remain their exclusive property unless otherwise agreed in writing.
9. ALTERATIONS: Alterations represent work performed in addition to the original specifications. Such additional work shall be charged at current rates and be supported with documentation upon request.
10. PREPRESS PROOFS: Prepress proofs shall be submitted with original copy. Corrections are to be made on "master set." Returned marked "O.K" or "O.K. with corrections," and signed by customer. If revised proofs are desired, request must be made in writing when proofs are returned. Imperial cannot be held responsible for errors under any and all of the following conditions: if the work is printed per customer’s O.K.: if changes are communicated verbally; if customer has not ordered proofs; if the customer has failed to return proofs with indication of charges; or if the customer has instructed Imperial to proceed without submission of proofs.
11. PRESS PROOFS: Unless specifically provided in Imperial’s original quotation, press proofs will be charged for at current rates. An inspection sheet of any form can be submitted for customer approval, at no charge, provided customer is available at the press during the time of make-ready. Lost press time due to customer delay, or customer changes and corrections, will be charged at current rates.
12. COLOR PROOFING: Because of differences in equipment, processing, proofing substrates, paper, inks, pigments, and other conditions between color proofing and production pressroom operations, a reasonable variation in color between proofs and the complete job shall constitute acceptable delivery.
13. CUSTOMER FURNISHED MATERIALS: Paper stock, inks, camera copy, film, color separations and other customer supplied materials shall be manufactured, packed and delivered to Imperial’s specifications, Additional cost due to delays or impaired production caused by specification deficiencies shall be charged to customer.
These Terms of Service set forth the terms and conditions upon which Imperial Media makes available, at no charge, its proprietary file transmission services ("Services"). Your use of the Services is expressly conditioned on your compliance with these Terms of Service. By clicking, accessing or using the Services, you are indicating that you agree to be bound by these Terms of Service.
1. DESCRIPTION OF SERVICES: The Services operate by storing a file (a "User File) on Imperial Media's server. The User can then access and download the User File. You acknowledge and agree that Imperial Media may establish general practices and policies concerning use of the Services, including, without limitation, the maximum size of the file that a user may store and send through the Services, the maximum number of days that a file will be stored by the Services, the maximum number of times a user may access the Services in a given period of time, and the maximum number of recipients to which a user may send a file.
2. RESPONSIBILITY FOR DATA: Customer has sole responsibility for all User Files that you store on Imperial Media’s servers through use of the Services. You acknowledge and agree that Imperial Media will not be responsible for any failure of the Services to store a User File, for the deletion of a User File stored on the Services, or for the corruption of or loss or any data, information or content contained in a User File.
3. PRIVACY POLICY: Imperial Media respects the privacy of others. These Terms of Service incorporate the terms of Imperial Media’ Privacy Policy.
4. COPYRIGHT POLICY: YOU WILL NOT USE THE SERVICES TO TRANSMIT, ROUTE, PROVIDE CONNECTIONS TO OR STORE ANY MATERIAL THAT INFRINGES COPYRIGHTED WORKS OR OTHERWISE VIOLATES OR PROMOTES THE VIOLATION OF THE INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. Imperial Media has adopted and implemented a policy that provides for the termination in appropriate circumstances of the accounts of users who repeatedly infringe or are believed to be infringing the rights of copyright holders.
5. PROPRIETARY RIGHTS: All right, title, and interest in and to the Services are and will remain the exclusive property of Imperial Media and its licensors. The Services are protected by copyright, trademark, and other laws of both the United States and foreign countries. Except as expressly permitted in these Terms of Service, you may not reproduce, modify, or prepare derivative works based upon, distribute, sell, transfer, publicly display, publicly perform, transmit, or otherwise use the Services.
6. TRADEMARKS: Imperial Media, the Imperial Media logo, and all other Imperial Media trademarks, service marks, product names, and trade names appearing on the Services are owned by Imperial Media. All other trademarks, service marks, product names, and logos appearing on the Services are the property of their respective owners. You may not use or display any trademark, service mark, product name, trade name, or logo appearing on the Services without the owner's prior written consent.
7. GENERAL PROHIBITIONS: As a condition to your use of the Services, you agree not to:
a) Upload or transmit as part of a User File or otherwise any data, text, graphics, content, or material that: (i) is false or misleading;(ii) is defamatory; (iii) invades another's privacy; (iv) is obscene, pornographic, or offensive; (v) promotes bigotry, racism, hatred, or harm against any individual or group; (vi) infringes another's rights, including any intellectual property rights; or (vii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
b) Access, tamper with, or use any non-public areas of the Services or Imperial Media's computer systems or the technical delivery systems of Imperial Media’s providers;
c) Attempt to probe, scan, or test the vulnerability of the Services or any related system or network or breach any security or authentication measures;
d) Attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Services;
e) Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services; or
f) Impersonate or misrepresent your affiliation with any person or entity.
Imperial Media has the right to investigate and prosecute violations of any of the above, including intellectual property rights infringement and security-related issues, to the fullest extent of the law. Imperial Media may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms of Service. You acknowledge that Imperial Media has no obligation to monitor your access to or use of the Services, but has the right to do so for the purpose of operating the Services, to ensure your compliance with these Terms of Service, or to comply with applicable law or the order or requirement of a court, administrative agency, or other governmental body.
8. TERMINATION: Customer may terminate your account at any time. If you violate any of these Terms of Service, your permission to use the Services will automatically terminate. Imperial Media reserves the right to discontinue providing or to change the Services at any time and without notice. Except to the extent that Imperial Media is required by applicable law or court order to retain copies of any of your User Files that are stored on the Imperial Media’s servers, upon any termination of your account, Imperial Media will delete and erase all User Files associated with your account.
9. DISCLAIMER OF WARRANTIES: THE SERVICES ARE PROVIDED "AS IS", WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, IMPERIAL MEDIA, INC. EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. IMPERIAL MEDIA MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR WILL BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. YOU ACKNOWLEDGE AND AGREE THAT IMPERIAL MEDIA WILL NOT BE RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR TO THE COMPUTER SYSTEM OF ANY THIRD PARTY THAT RESULT FROM USE OF THE SERVICES.
10. LIMITATION OF LIABILITY: IN NO EVENT WILL IMPERIAL MEDIA BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE OR FROM THE USE OR INABILITY TO USE THE SERVICES OR ANY USER FILES SENT THROUGH, STORED BY OR DOWNLOADED FROM THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT IMPERIAL MEDIA HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL IMPERIAL MEDIA’ AGGREGATE LIABILITY TO YOU OR TO ANY THIRD PARTY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SERVICES EXCEED ONE HUNDRED DOLLARS ($100). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN IMPERIAL MEDIA AND YOU.
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