TERMS AND CONDITIONS
The following terms and conditions shall govern and be incorporated in all purchase orders and agreements between Customer eDoc Publish, Inc. unless the Customer has signed a separate purchase or manufacturing agreement in which case the separate agreement shall govern. Customer is hereby notified that eDoc Publish objects to any terms or conditions, in any Customer document, which are in addition to or different from those contained in this Purchase Order and any such additional, conflicting, or different terms are void.
1. Acknowledgment as Counter-offer
Any contract between eDoc Publish and Customer and formed, as a result of an exchange of documents must consist of all the terms herein and no others. eDoc Publish’s ACCEPTANCE OF CUSTOMER’S PURCHASE ORDER/OFFER IS HEREBY EXPRESSLY CONDITIONED ON CUSTOMER’S ASSENT TO ANY ADDITIONAL OR DIFFERENT TERMS HEREIN and this Purchase Order, when used to acknowledge Customer’s purchase order, is thus a counter-offer CUSTOMER’S RECEIPT AND ACCEPTANCE OF THE GOODS WHICH ARE THE SUBJECT OF THIS ACKNOWLEDGMENT AND COUNTER-OFFER SHALL CONSTITUTE BOTH ACCEPTANCE OF THE COUNTER-OFFER AND ASSENT TO ANY OTHER TERMS HEREIN WHICH ARE IN ADDITION TO OR DIFFERENT FROM THOSE IN CUSTOMER’S PURCHASE ORDER.
2. Terms and Conditions of Sale
(a) The price for eDoc Publish’s mastering and replication services, labeling, storage, scanning, indexing, desktop publishing, artwork design, shipping and packaging are as stated in eDoc Publish’s published price schedules. eDoc Publish may change any provision of those prices schedules without notice at any time, provided that such change will not affect any order received by eDoc Publish and ready for immediate shipment before the effective date of the change.
(b) All shipment shall be F.O.B. 1 League, 61866, Irvine, CA 92602. Quantity shipped can range from -10% to +10% of order quantity stated by Customer unless otherwise agreed in writing.
(c) All eDoc Publish invoices are prepaid unless credit was approved in advanced. We accept all major credit cards and Money orders and cash.
(d) Preparation of master discs and delivery of Compact Discs or any other media shall be made on a best effort basis. eDoc Publish makes NO GUARANTEE OR WARRANTY AS TO DELIVERY DATES and eDoc Publish shall not be liable if Customer’s desired shipping date were not met.
(e) Prices listed in eDoc Publish’s price lists do not include sales, use, excise, or similar taxes. The amount of any tax applicable to Customer’s purchase of services or eDoc Publish’s Compact Discs or floppies shall be added to the invoice and paid by Customer.
3. Customer Data and Art Work; Authority
(a) Customer hereby grants to eDoc Publish the right to replicate the data and artwork supplied by Customer onto eDoc Publish Compact Disc(s) or floppies and labels.
(b) Customer represents and warrants that it has the right and authority to have the data and art work supplied by Customer to eDoc Publish replicated onto Compact Disc(s), floppies and labels without infringing any trademark, copyright, contract, property right, or third party rights of any kind, whether statutory, legal, or equitable.
4. eDoc Publish Data
(a) eDoc Publish will retain, and will not convey to Customer, any rights in the computer programs, specifications or data utilized or developed by eDoc Publish for the performance of this Agreement, notwithstanding whether such computer programs, specifications or data were developed by eDoc Publish specifically for Customer or otherwise.
5. Tooling eDoc Publish shell retain title to all tooling, including masters, stampers and other tooling produced by eDoc Publish. No tooling shall be stored by eDoc Publish except as set forth on the standard price schedules.
6. Customer Data and Risk of Loss; Limitation of Remedies
Customer shall retain title to the intellectual content on the Master Disc containing the data from Customer’s Master Tape. Customer shall maintain a copy of each Master Tape sent to eDoc Publish containing the data to be replicated onto eDoc Publish Compact Discs. If Customer’s Master Tape is lost or damaged while in eDoc Publish’s actual possession from any cause whatsoever (including the negligence of eDoc Publish), eDoc Publish shall only be obligated (and Customer’s exclusive remedy shall be) to replace Customer’s Master Tape(s) with an equivalent quantity of blank tape(s). eDoc Publish shall not be responsible for any loss or damage to Customer’s Master Tape while in transit to or from Customer. This paragraph reflects the parties’ agreement as to their allocation of the risk of loss or damage to Customer’s Master Tape(s) between eDoc Publish and Customer and is reflected in the price of the goods and services
7. Customer Confidential Information
(a) If Customer discloses its confidential information to eDoc Publish for purposes of this Agreement and clearly identifies such information in writing as “confidential”, eDoc Publish shall use reasonable care to assure that such information is disclosed only to those eDoc Publish employees requiring access thereto in order to perform this Agreement.
(b) This paragraph shall not limit eDoc Publish’s rights to use and to disclose such alleged confidential information if it:
(1) Is or becomes available to the public without default by eDoc Publish of these terms;
(2) Is lawfully acquired by eDoc Publish from a third party;
(3) is in the possession of eDoc Publish at the time of disclosure by Customer, or
(4) Is developed by or on behalf of eDoc Publish by persons who have not received Customer’s confidential information hereunder.
8. Non-Exclusivity
All rights and remedies granted to eDoc Publish herein shall be in addition to and not in lieu of any rights and remedies Customer may have under applicable federal, state, or local law.
9. Limited Warranty and Limitation of Remedies
(a) eDoc Publish warrants to its original Customer that the eDoc Publish COMPACT DISC is free from defects in materials and workmanship at the time of Customer’s purchase. If this product is found to be defective at any time within 60 days from the date of purchase, eDoc Publish will, as Customer’s sole and exclusive remedy, at its option either (a) repair or replace the defective disc, or (b) refund the Customer’s purchase price of the disc. Return the disc to eDoc Publish, together with Customer’s proof of purchase, to the following address: eDOC PUBLISH INC, Warranty Service Department, 1 League, 61866, Irvine, CA 92602, Orange County, USA. This warranty does not apply to disc failures resulting from accident, abuse, alteration, neglect, improper handling or storage or wear from ordinary use. Improper storage includes, but is not limited to, storage of spindle/shrink-wrapped Compact Discs for longer than 60 days. If eDoc Publish defaults on its obligations to its original Customer under this warranty or otherwise becomes liable in connection with Customer’s purchase, eDoc Publish’s obligation will be limited to the amount its original Customer paid for the disc.
(b) With respect to services involving the processing on eDoc Publish equipment of data furnished by Customer onto the Master Disc or Compact Disc(s), eDoc Publish’s only obligation and Customer’s exclusive remedy is for eDoc Publish, at its expense, to re-perform or correct any nonconforming services which are due solely to errors on the part of eDoc Publish, its equipment, or its employees. Notice of nonconforming services must be received by eDoc Publish no later than fifteen (15) days after the date of shipment of the Compact Disc(s) to Customer. eDoc Publish shall not be responsible in any manner for any nonconforming services, which are caused in whole or in part by inaccurate, or inadequate input data or tapes supplied by Customer. eDoc Publish may check the master digital tape supplied by the Customer for obvious flaws, but eDoc Publish shall have no duty to perform such checks, and shall not be responsible for the quality or accuracy of the master digital tape or related information provided by the Customer.
(c) THESE WARRANTIES ARE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. UNDER NO CIRCUMSTANCES WILL eDoc Publish BE LIABLE TO CUSTOMER OR ANYONE ELSE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS), EVEN IF eDoc Publish HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. (Some states do not allow the exclusion or limitation of liability or incidental or consequential damages, so the above limitation or exclusion may not apply.)
10. Excused Performance
eDoc Publish shall not be liable for nor be deemed to be in default on account of any failure to perform services or deliver Compact Disc(s) or Floppy Disk (s) if such failure is due to any cause or condition beyond eDoc Publish’s control, including but not limited to acts of God, unavailability of material, equipment failures, or labor problems.
11. Customer Indemnification
(a) Customer will indemnify and hold harmless eDoc Publish and its directors, officers, and employees from any loss, claim, liability, and expense (including reasonable attorney’s fees and other litigation expenses) with respect to claims by third parties that the mastering, duplication, replication, possession, sale, rental, or use of Customer’s data or art work or of any eDoc Publish Compact Disc containing Customer’s data or art work as contemplated herein, infringes any copyright, trademark, proprietary right, or any other right of any third party, or claims of third parties arising from Customer’s wrongful disclosure of information to eDoc Publish.
12. Assignment
Neither this Agreement nor any right, interest, or obligation under this Agreement shall be assigned or otherwise transferred by Customer without the prior written consent of eDoc Publish.
13. Arbitration; Applicable Law
Any disputes as the interpretation or performance of this Agreement (expressly excepting any claim by eDoc Publish for payment due from Customer hereunder) shall be submitted for arbitration in California under the rules of the American Arbitration Association. All costs and expenses (including reasonable attorney’s fees and other litigation expenses) shall be borne by the losing party. This Agreement shall be construed according to, and the legal relations between the parties shall be governed by, the laws of the State of California as applicable to agreements executed and fully performed in the State of California.
14. Attorneys Fees
In the event of a breach of the Contract by Customer and in addition to any other remedies available to eDoc Publish, Customer hereby agrees to pay, to the full extent permitted by law, all costs and expenses, including attorney’s fees, which are reasonably incurred in any legal proceedings to enforce this Agreement, provided that eDoc Publish is the prevailing party in such proceedings.
15. Waiver; Entire Agreement
(a) No waiver or modification of the relations between the parties, including a course of dealing or of performance, or of this Agreement, shall be effective unless ratified in writing and signed by both parties. Any failure or delay by either party in exercising any right or remedy in one or many instances will not prohibit a party from exercising it at a later time or from exercising any other right or remedy.
(b) This Agreement, the applicable price schedules referred to herein, and any attached Production Details, all of which are incorporated herein and made a part hereof by this reference, supersede all prior agreements, if any, whether written or oral, between the parties with respect to the subject matter contained herein.
(c) Each party agrees that it has not relied on any representation, warranty, or provisions not explicitly stated in this Agreement, and that no oral statement has been made to either party that in any way tends to waive any of the terms or conditions of this Agreement. This Agreement constitutes the final written expression of all terms of this Agreement, and it is a complete and exclusive statement of those terms.
16. Facsimile Copies
Customer agrees that a signed faxed copy of this Agreement shall be deemed to be of the same force and effect of the original manually signed copy.