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SwiftDVD Terms of Agreement
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| SwiftDVD Terms of Agreement | |||||
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This Agreement ("Agreement") is entered into between DigitalSwift Corporation having a place of business at 1046 Iris Drive, Suite E, Conyers, GA 30094, USA (hereinafter referred to as "DigitalSwift") and you, the customer (hereinafter referred to as "Customer"). Whereas DigitalSwift is in the business of copying content onto DVD, and Whereas Customer would like DigitalSwift to produce customized DVDs on its behalf, Now therefore, the parties hereby agree as follows: 1. Definitions a. "Customer" shall refer to the entity, organization or authority having contracted with DigitalSwift to provide the services described herein.b. "Services" shall refer to production services and Media Distribution Fulfillment as further described in this document.c. "Content" shall refer to the original video materials provided to DigitalSwift by Customer, and to the digital items recorded onto DVDs by DigitalSwift.d. "Final Product" refers to DVD Media containing a compilation of content provided and specified by the Customer for shipment to the Customer. 2. Description of Services DigitalSwift shall provide media distribution fulfillment services by compiling, reproducing and shipping content on DVD media based on orders received from the Customer. 3. Customer Responsibilities The Customer hereby grants permission to DigitalSwift to: a. Copy, reproduce and distribute any content supplied by the Customer for the purpose of fulfilling Customer orders or supporting such activities. b. Copy, reproduce and distribute any trademarks and service marks relating to content supplied by the Customer for the purpose of fulfilling Customer orders or supporting such activities. c. Ship the Final Product to Customer. d. The Customer shall only supply to DigitalSwift for duplication content for which the Customer has duplication rights. By supplying content to DigitalSwift, the Customer automatically warrants that it has a valid duplication right for the content. e. Customer shall indemnify and hold DigitalSwift harmless in the event of any violation, allegation or claim of violation of any copyright laws arising out of this agreement and the Services provided by DigitalSwift in Support of the Customer. All legal fees including attorney fees in this regard shall be borne by the Customer. f. Customer shall indemnify and hold DigitalSwift harmless in the event of any violation, allegation or claim of violation of any US export laws arising out of this agreement and the Services provided by DigitalSwift in Support of the Customer. Each time an order is placed, the Customer automatically warrants that no US export laws have been violated. All legal fees including attorney fees in this regard shall be borne by the Customer. g. Customer shall immediately inform DigitalSwift in writing of termination of any duplication rights of content, or of any reason that may prohibit reproduction or distribution of a software product. At all times it is the responsibility of the Customer to ensure that it does not place orders with DigitalSwift for reproduction or distribution of any product for which it is not properly authorized to do so. h. Customer confirms that content transferred to DigitalSwift shall not include obscene, pornographic, nor hate-based materials. DigitalSwift reserves the right, in its sole discretion, to make such determinations. i. Customer agrees that DigitalSwift shall create and maintain a copy of each DVD created for Customer. The purpose for such archive copy is to provide additional backup safeguards in the event of loss of original materials when sent back to Customer by DigitalSwift. j. Customer agrees to notify DigitalSwift, either by e-mail or in the Comments section of the order form, if there is a blank gap exceeding ten minutes in the original tape submitted by Customer for duplication. If Customer does not notify DigitalSwift of such blank gaps, DigitalSwift will terminate the recording of original materials after ten minutes of blank space. 4. DigitalSwift Responsibilities a. DigitalSwift shall receive and safeguard content supplied by the Customer. b. When DigitalSwift receives content from a Customer, DigitalSwift, shall within 96 hours, reproduce, package, and ship the content specified by the Customer on a DVD. Orders received on a holiday, weekend day or after 9 AM Pacific Time on Friday will be processed the following business day. c. DigitalSwift agrees to store archived copies of DVDs, and to use them solely to fulfill future orders by customer, or as backups in the event of catastrophic loss of original materials during transit. 5. Proprietary Rights The Customer's rights in, and title to any content provided to DigitalSwift by the Customer shall remain in force during the duplication process. DigitalSwift will return all original materials to Customer upon completion of Services, and DigitalSwift will DigitalSwift will store only an archive copy of Customer's DVD, unless Customer specifies that DigitalSwift shall not make and maintain such archive copy. Title to software, technology, tools, technical documents, journals and other similar items which are owned and/or were developed by DigitalSwift and which may be used by DigitalSwift in connection with services hereunder, shall remain the property of DigitalSwift. 6. Notices If any future changes in or additions to this service agreement are unacceptable to Customer, or cause Customer to no longer be in compliance with this agreement, Customer's only recourse is to terminate this service agreement by sending an e-mail to: service@swiftdvd.com. Customer's continued use of the service now, or following the posting of notice of any changes in or additions to this agreement will constitute a binding acceptance by Customer of such changes and or additions. 7. Fees a. The fees for services provided under this Agreement shall be at DigitalSwift's then current standard rates as specified in the DigitalSwift price list. Such rates are subject to change by providing a 30 day notice to the Customer, and posting of such changes on DigitalSwift's web site shall be sufficient for such notice.b. DigitalSwift may, at its sole option, suspend its performance hereunder or immediately terminate this Agreement, should Customer become delinquent in any payments due to DigitalSwift, provided DigitalSwift has provided written notice of such delinquency. c. Services performed outside the scope of this Agreement, including labor and materials, shall be charged at the then-prevailing DigitalSwift rates for labor, travel, and materials. The minimum time charged for such service shall be one hour for telephone support and four hours for on-site support, including travel time to and from the site. The Customer must approve such services in writing prior to DigitalSwift undertaking any such additional services. d. Charges are exclusive of all sales, use, and like taxes, except that 7% sales tax will be applied to orders shipped to addresses in Georgia, USA. e. DigitalSwift may, at its option, charge Customer for all or any fees incurred as a result of Customer's special shipping request. 8. Warranty a. DigitalSwift warrants all services provided herein will be performed in a good, workmanlike manner. DigitalSwift will perform these services with qualified personnel at all times. The DVD content is expressly excluded from this warranty. b. The exclusive warranties and remedies provided herein shall not apply to damages or deficiencies resulting from accident, disaster, modifications, alteration, misuse, tampering, negligence, improper maintenance, or abuse by anyone other than DigitalSwift. 9. Disclaimer of Warranty Except for the express warranty stated above, DigitalSwift and any affiliate thereof grant no other warranties, either expressed or implied, including any implied warranties of merchantibility and fitness for a particular purpose. The stated express warranties and remedies provided for breach thereof, are in lieu of all other liabilities or obligations of DigitalSwift and any affiliate thereof (whether such liabilities or obligations would arise under this Agreement or otherwise by operation of law) for damages arising out of or in connection with the delivery, use or performance of the Services. 10. Limitation of Liability a. Notwithstanding anything contained herein to the contrary, DigitalSwift's cumulative liability resulting from any damage(s), cost, expenses, penalties, losses (or related items) that DigitalSwift acknowledges under the Agreement shall be limited to one thousand dollars, and the Customer undertakes to bear all claims, liabilities, costs and expenditures in excess of the above limit without being entitled to claim against DigitalSwift; the Customer further undertakes to ensure that its insurers waive any claims against DigitalSwift in excess of this amount. Submission of Content by Customer to DigitalSwift for processing constitutes an agreement by Customer that any damage or loss to content by DigitalSwift, even if caused by negligence or other fault, entitles Customer to replacement of a like amount of blank media only. b. In no event shall DigitalSwift be liable for any consequential, incidental, indirect, or special damages, including without limitation loss of profits, or data, which may arise in connection with this Agreement, even if DigitalSwift has been advised of the possibility of such damages. 11. General a. This Agreement constitutes the entire agreement and supersedes all prior proposals, negotiations and communications, oral or written, between the parties with respect to the subject matter hereof. DigitalSwift may from time to time, at its sole discretion and upon reasonable notice to Customer, modify, amend, or supplement the terms of this Agreement. b. The waiver of any breach or default under this Agreement shall not constitute the waiver of any subsequent breach or default. c. In the event that any of the provisions in this Agreement is held to be unenforceable, the offending provision shall be stricken and replaced with a provision that reflects the original intent of the parties, and the remaining portions of this Agreement shall remain in full force and effect. d. Except as to any issue involving payment or non-payment of any fees or charges due hereunder, in the event there arises a dispute between the parties as to the interpretation or performance of any of the provisions of this Agreement or as to any other matters arising out of or otherwise related to this Agreement (including default and termination), then the parties shall consult together in good faith to find a mutually agreeable resolution thereof. If the parties are unable to arrive at a resolution by such consultations within 30 days of the date such an issue is notified by one party to the other, then the dispute shall be finally settled under the expedited rules of arbitration of the American Arbitration Association by three arbitrators knowledgeable with respect to the subject matter of the dispute (the parties agree that there shall be no discovery, except that there shall be an exchange of exhibits and a brief description of the testimony each side proposes to offer). The arbitral award shall be in writing and shall be final and binding on the parties, and the judgment may be entered upon the award in any Court of competent jurisdiction or having jurisdiction over the parties or their assets. The parties expressly waive and forego any right to punitive, exemplary or similar damages as a result of any controversy or claim arising out of, relating to, or in connection with this agreement, or the breach, termination or validity thereof. The laws of the State of Georgia shall govern this Agreement. e. Notwithstanding the obligation to arbitrate disputes, the parties agree that any breach of this Agreement may result in irreparable harm to one or the other party, for which damages would be an inadequate remedy, and therefore, in addition to the rights and remedies otherwise available at law, the parties shall be entitled to seek equitable relief, including an injunction to restrain the breaching party, or any director, officer, employee, partner, agent, servant or other individual through whom the breaching party may be acting, from any further or continued breach of this Agreement. f. A Force Majeure shall be deemed to be any external event which is beyond the reasonable control of DigitalSwift and which is not caused by DigitalSwift's fault or negligence, such as, without limitation, fires, war whether or not declared, strikes of any nature whatsoever, floods, natural catastrophes, civil disturbances, acts of terrorism. DigitalSwift shall inform the Customer as soon as possible of the occurrence of a Force Majeure.g. The effect of the Force Majeure will be to suspend DigitalSwift' s performance throughout the period during which said performance is rendered impossible, the Customer shall not be entitled to any compensation whatsoever as a result of a Force Majeure and contractual time schedules will be extended accordingly.h. Should a Force Majeure persist for a period in excess of three (3) months, the Customer shall be entitled to terminate this Agreement, by operation of law and without further demand, by registered letter with acknowledgment of receipt, unless the parties, after having discussed the matter, agree to amend the Agreement in order to adapt it to the new circumstances arising from the Force Majeure. i. Either party may terminate this Agreement, without cause, by providing 30 days prior written notice to the other party. In the event of such notice to terminate, this Agreement shall immediately become null and void. j. The Customer shall not assign, transfer or otherwise delegate this Agreement. Any attempted assignment, transfer or delegation shall be null and void. Copyright 2002 DigitalSwift All rights reserved. Send inquiries to webmaster@swiftdvd.com | |||||||||||||
