TERMS AND CONDITIONS OF VISUAL MEDIA LAB
1. QUOTATION. A quotation by VISUAL MEDIA LAB, not accepted within 30 days is no longer binding, or if notice of revocation of quotation is provided to Customer prior thereto, unless otherwise provided. Estimates are based upon prevailing wages, the anticipated hours of work and cost of materials and supplies necessary to produce work in accordance with preliminary copy, style and specifications and are not binding upon VISUAL MEDIA LAB unless a firm quotation has been issued.
2. ORDERS. Orders regularly entered, verbal or written, cannot be cancelled except upon terms that will compensate VISUAL MEDIA LAB against all costs, expenses and losses incurred by VISUAL MEDIA LAB.
3. EXPERIMENTAL WORK. Experimental work performed at the customer's request such as composition, sketches, drawings, composition, plates, preparatory work, and the like, will be charged for at VISUAL MEDIA LAB's current rates, including but not limited to all press work and materials and shall not be used by the customer without the written consent and payment of compensation determined by VISUAL MEDIA LAB.
4. COMPUTER PROGRAMS AND UNDERLYING MATERIALS. All Computer programs, system analysis and underlying materials developed by VISUAL MEDIA LAB in order to produce work for a customer with the use of data processing machines or computers are the property of VISUAL MEDIA LAB. No use shall be made of or ideas taken from such program, analysis or materials without the express permission, and only upon payment of compensation determined by VISUAL MEDIA LAB.
5. PREPARATORY WORK. Type, composition sketches, copy, dummies, layouts, type, plates, artwork, negatives, positives and all preparatory work created or furnished by VISUAL MEDIA LAB shall remain its exclusive property and no use of the same shall be made nor any ideas attained therefrom be used, except upon the written consent and payment of compensation determined by VISUAL MEDIA LAB.
6. SEQUENCING OF INFORMATION. Unless expressly provided otherwise, all material requiring sorting or sequencing will be processed by VISUAL MEDIA LAB. according to the standard ASCII collating sequence. All deviations from this practice requiring programming and translation will be performed by VISUAL MEDIA LAB at an additional charge. Recognizing that files requiring sequencing and sorting may have reduced value to the customer at the completion of processing by VISUAL MEDIA LAB, VISUAL MEDIA LAB assumes no responsibility or liability of any kind for returning the file to its original condition, unless otherwise expressly provided herein. Until digital input can be evaluated by VISUAL MEDIA LAB, no claims or promises are made about the provider's ability to work with jobs submitted in digital format, and no liability is assumed for problems that may arise. Any additional translating, editing, or programming needed to utilize Customer-supplied files will be charged at prevailing rates.
7. DATA STORED ELECTRONICALLY, DISCS, DESKTOP PUBLISHING FILES AND MAILING LISTS. VISUAL MEDIA LAB WILL ACCEPT DUPLICATE DISCS, COMPUTER TAPES AND MAILING LISTS ONLY, with VISUAL MEDIA LAB.'S liability with respect thereto limited to replacement with a blank of the same format. Data tapes furnished by the customer or created by VISUAL MEDIA LAB for the customer will be delivered to the customer when requested upon payment in full of VISUAL MEDIA LAB'S invoice. On written request, VISUAL MEDIA LAB will create additional duplicate master files of the customer's duplicate master file for security purposes at a charge mutually agreed upon. Any additional duplicate master file created by VISUAL MEDIA LAB or supplied by the customer and delivered to VISUAL MEDIA LAB will ordinarily be kept by VISUAL MEDIA LAB on premises for only three (3) months. The customer hereby acknowledges that it has maintained a duplicate master file or the original master file of the duplicate given to VISUAL MEDIA LAB at its own premises.
8. ALTERATIONS. Alterations represent work performed in addition to the original specifications. Any addition, change or modification in work in process made by the customer in copy, style or specifications originally submitted to VISUAL MEDIA LAB represents alterations. Additionally, when type selection and style are left to the best judgment of VISUAL MEDIA LAB, charges will be made for the customer's alterations. All additional work shall be charged at VISUAL MEDIA LAB's current rates. An additional charge will also be made for any reprocessing caused by read errors or illogical, undefined or illegal data supplied by Customer.
9. PROOFS. Proofs shall be submitted with original copy. Corrections are to be made on "master set", returned marked "Okay", or "Okay with corrections", and signed by the customer. If revised proofs are desired, requests must be made when proofs are returned. VISUAL MEDIA LAB regrets any errors that may occur through production undetected, but cannot be held responsible for errors if the work is printed per the customer's okay, or if changes are communicated verbally. Verbal corrections or changes shall not be binding upon VISUAL MEDIA LAB. VISUAL MEDIA LAB shall not be responsible for errors if the customer has not ordered or has refused to accept proofs or has failed to return proofs with indication of changes or has instructed VISUAL MEDIA LAB to proceed without submission of proofs. VISUAL MEDIA LAB will be entitled to assume the correctness and acceptability of all data furnished or approved by the Customer. The Customer will be entitled to inspect VISUAL MEDIA LAB'S product or a proof thereof. If any errors created by VISUAL MEDIA LAB are identified by the Customer, VISUAL MEDIA LAB will make the necessary corrections at no additional costs to the Customer.
10. INPUT DATA STORAGE. (Information which has been prepared in specialized form for utilization by computers) Desktop publishing files, disks, electronic data, programs or other documents, materials or property relating to work either in progress or completed will be stored for 3 months by VISUAL MEDIA LAB at the customer's risk. Input data will be destroyed after such time unless there is a specific written agreement.
11. PRESS PROOFS. Unless specifically provided in VISUAL MEDIA LAB's quotation, press proofs will be charged for at our Company's current rates. An inspection sheet of any form can be submitted for customer approval at no charge, provided the customer is available at press during the time of make ready. Any changes, corrections or loss of press time due to the customer's change of mind, fault or delay will be charged for at our Company's current rates.
12. COLOUR PROOFING. Because of differences in equipment, paper, inks and other pressroom operations, a reasonable variation in colour between colour proofs and the completed job shall constitute acceptable delivery. Special inks and proofing stocks will be forwarded to the customer's suppliers upon request at VISUAL MEDIA LAB's current rates.
13. OVERRUNS OR UNDERRUNS. Overruns or underruns not to exceed l0% on quantities ordered and the customer hereby agrees that the same shall constitute acceptable delivery. VISUAL MEDIA LAB will bill for actual quantity delivered within this tolerance. If the customer requires guaranteed "no less than" delivery, percentage tolerance of overage must be doubled.
l4. CUSTOMER'S PROPERTY. VISUAL MEDIA LAB shall only maintain fire, extended coverage, vandalism and malicious mischief insurance on all property belonging to the customer and only while such property is in the Company's possession; the customer hereby acknowledges that VISUAL MEDIA LAB's liability for such property shall not exceed the amount recoverable from such insurance and that this shall be the sole and exclusive remedy of the customer. All additional insurance requested or required by the customer must be in writing and shall be at the customer's sole cost and expense.
15. STORAGE. VISUAL MEDIA LAB will charge the customer at its current rates for handling and storing all customer's property held more than 30 days after the delivery of order. Notwithstanding, all customer's property to be stored with VISUAL MEDIA LAB is at customer's risk after delivery of order or invoicing, whichever comes first, and VISUAL MEDIA LAB will not be liable for any loss or damage thereto caused by fire, water leakage, theft, negligence or any causes beyond the control of VISUAL MEDIA LAB. All artwork and film produced by VISUAL MEDIA LAB will be stored by VISUAL MEDIA LAB for 12 months. Customer agrees that after the stated period of time, all such material may be destroyed by VISUAL MEDIA LAB. unless the customer has furnished written instructions for disposition, and made payment therefore, including all transportation and handling charges, as provided for herein.
16. DELIVERY. Unless otherwise specified, the price quoted is for a single shipment without storage, F.O.B. VISUAL MEDIA LAB's platform. Proposals are based on continuous and uninterrupted delivery of complete orders unless specifications distinctly state, in writing, otherwise. Charges related to delivery from customer to VISUAL MEDIA LAB or from customer's supplier to VISUAL MEDIA LAB, are not included in any quotation unless otherwise specified so in writing. Special priority pickup delivery service will be provided at our Company's current rates upon the written request of the customer. Materials delivered from customer or his suppliers are verified with delivery ticket as the cartons, packages or items shown only. The accuracy of quantities indicated on such tickets cannot be verified and the customer hereby acknowledges that VISUAL MEDIA LAB cannot accept any liability for shortage based upon supplier's tickets. Title for finished work shall pass to the customer upon delivery to carrier at shipping point, or upon mailing of invoices for finished work, whichever occurs first.
17. PRODUCTION SCHEDULES. Production schedules will be established and adhered to by the customer and VISUAL MEDIA LAB., provided, that neither shall incur any liability or penalty for delays due to state of war, riots, civil disorder, fire, strikes, accidents, action of government or civil authority, any acts of God, or any other causes beyond the control of the customer or VISUAL MEDIA LAB. Any delays due to the customer or its agents shall automatically extend the delivery date by a like amount of time. Any costs incurred by VISUAL MEDIA LAB due to customer delays, other than the foregoing causes beyond the control of the customer shall be billed to customer at VISUAL MEDIA LAB's current rates.
18. CUSTOMER FURNISHED MATERIALS AND OUTSIDE PURCHASES. Materials furnished by Customers or their suppliers are verified by delivery tickets. VISUAL MEDIA LAB. bears no responsibility for discrepancies between delivery tickets and actual counts. Customer-supplied paper must be delivered according to specifications furnished by VISUAL MEDIA LAB. These specifications will include correct weight, thickness, pick resistance, and other technical requirements. Artwork, film, colour separations, special dies, tapes, disks, or other materials furnished by the Customer must be usable by the provider without alteration or repair. Items not meeting this requirement will be repaired by the Customer, or by VISUAL MEDIA LAB at VISUAL MEDIA LAB's current rates. Unless otherwise agreed in writing, all outside purchases as requested or authorized by the Customer, are chargeable.
19. TERMS. Payment shall be net cash, 30 days from the date of invoice, subject to credit approval, or unless otherwise provided for in writing. If credit is not approved, payment shall be due upon demand by VISUAL MEDIA LAB All payments not tendered when due shall bear interest at the rate of 1 l/2% per month until paid. All payments shall be applied first to the reduction of any and all accrued and unpaid interest and the balance to the reduction of principal until payment, in full, shall be made pursuant to this Agreement. As security for payment of any sum due or to become due under the terms of this or any other agreement with the customer, VISUAL MEDIA LAB is hereby granted the right by the customer to retain possession of and to have a lien upon all of the customer's property in VISUAL MEDIA LAB's possession, including work in progress and finished work and work relating to other orders of the customer. Customer further acknowledges and agrees that the extension of credit or the acceptance of notes, trade acceptances or guarantee of payment, shall not affect said security interest and lien. Customer hereby acknowledges and agrees that it shall pay any and all costs and expenses relating to the collection of all payments due hereunder, if any, and there shall be allowed and included as additional indebtedness in any judgment relating to the collection of payments due hereunder, all expenditures and expenses which may be paid or incurred by VISUAL MEDIA LAB, including, but not limited to, actual attorneys' fees and court costs.
20. INDEMNIFICATION. The customer hereby acknowledges and agrees that he shall indemnify and hold harmless VISUAL MEDIA LAB from any and all loss, cost, expense and/or damages including actual attorneys' fees incurred by VISUAL MEDIA LAB on account of any and all manners of claims, demands, actions and proceedings that may be instituted against VISUAL MEDIA LAB on grounds alleging that the said printing violates any copyright or any proprietary right of any other person, or that it contains any matter that is libellous or slanderous, or invades any person's right to privacy or other personal rights. Customer hereby agrees, at the customer's sole cost and expense, to promptly defend and continue the defence of any such claim, demand, action or proceeding, that may be brought against VISUAL MEDIA LAB, provided, that VISUAL MEDIA LAB shall promptly notify the customer with respect thereto, and, further provided, that VISUAL MEDIA LAB shall give the customer such reasonable time as the exigencies of this situation may permit in which to undertake and continue the defence thereof. VISUAL MEDIA LAB. reserves the right in its sole discretion to refuse to print any matter in which, in its judgment it shall deem improper, libellous or scandalous or the printing of which would result in the violation of federal, state or local laws.
21. MANUFACTURING. VISUAL MEDIA LAB has the right to subcontract all work to be performed by it hereunder.
22. WARRANTY. VISUAL MEDIA LAB WARRANTS THAT THE GOODS AND SERVICES SOLD HEREUNDER WILL CONFORM TO THE DESCRIPTION ON THE FACE HEREOF, WILL BE FREE OF DEFECTS IN MATERIAL AND WORKMANSHIP, AND WILL BE OF VISUAL MEDIA LAB.'s STANDARD QUALITY. VISUAL MEDIA LAB. MAKES NO OTHER WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. VISUAL MEDIA LAB.'s liability under this warranty shall be limited to VISUAL MEDIA LAB.'s option either: l) to repair or replace the goods or services ordered; or2) to return the purchase price paid by the customer. VISUAL MEDIA LAB shall in no event be liable for direct, indirect, incidental, consequential damages or lost profits even if VISUAL MEDIA LAB shall have been advised of the possibility of such potential loss or damage. Any claim must be in writing within ten (l0) days after receipt of goods, if for shortages, or within thirty (30) days after receipt of goods for defects, and the goods must be held available at customer's place of business for VISUAL MEDIA LAB's inspection. Otherwise, such claim shall be deemed waived. In no event may any claim be made after goods have in any way been used or processed by the customer. No goods may be returned to VISUAL MEDIA LAB without VISUAL MEDIA LAB's consent.
23. CHANGES IN LABOUR RATES AND MATERIALS PURCHASED. The prices contained herein are based on the cost of labour and materials as of the date hereof and the customer hereby understands and agrees that said prices are subject to adjustment to reflect any increase or decrease in such cost subsequent to this date. Should there be any changes in these costs after the order is accepted and before completion of work, actual material and labour cost will be charged on the final billing at VISUAL MEDIA LAB.'s then current rates.
24. SUBCONTRACTS. In the event the Customer is contracting for the goods and services to be provided hereunder in fulfillment of a contract with, or for the benefit of, a third party ("End User") and the Customer defaults under the terms and conditions of this Agreement, then the Customer hereby assigns all of its right, title and interest in, to and under any and all agreements it has with the End User and agrees that VISUAL MEDIA LAB may take any and all legal remedies against the End User which VISUAL MEDIA LAB. has against the Customer or the Customer has under its agreements with the End User.
25. TAXES. All amounts due for taxes and assessments will be added to the Customer's invoices and are the responsibility of the Customer. No tax exemption will be granted unless the Customer's "Exemption Certificate" (or other official proof of exemption) accompanies the purchase order and is approved by VISUAL MEDIA LAB. If, after the Customer has paid the invoice, it is determined that more tax is due, then the Customer must promptly remit the required taxes to the taxing authority, or immediately reimburse VISUAL MEDIA LAB for any additional taxes paid.