POINT.360 TERMS AND CONDITIONS OF BUSINESS
These Terms and Conditions of Business shall govern ANY submission of Materials (as defined below) to POINT.360 (including Modern VideoFilm, Digital Film Labs, Visual Sound and all other divisions and subsidiaries) (hereinafter collectively referred to as “POINT.360”) as well as requesting/ordering and Services (as defined below) from POINT.360. Submitting Materials or requesting Services are subject to your acceptance of these Terms and Conditions of Business. These Terms and Conditions of Business affect your rights and you should read them carefully. If you do not agree to be bound by, please do not submit Materials to or request Services from POINT.360. The term “Materials “ hereby includes any and all media assets, including without limitation, film, audio, video, digitized content, metadata, props, scripts, story boards, artwork, prints, music cue sheets, biographies or edited footage, in whatever medium now existing or hereafter developed, as well as any and all materials and/or media assets derived therefrom, in whatever medium now existing or hereafter developed. Materials shall also include all materials, submitted for duplication, addition, subtraction, digitization, storage, processing, repurposing, authoring, close-captioning/subtitling, compression, manipulation, editing, conversion, encoding, transcoding, transmission, distribution, delivery or any other service or form of handling and/or ordering any Materials to be derived therefrom, in whatever medium then existing or thereafter developed or otherwise to be furnished by POINT.360 (collectively, “Services”). Your submission of Materials to or requesting/ordering Services from POINT.360 constitutes an ongoing contract between you and POINT.360. By submitting Materials to POINT.360 or ordering Services, you agree to accept and to be bound by these Terms and Conditions of Business. POINT.360 reserves the right, in its sole discretion, to modify these Terms and Conditions of Business at any time. Any such modifications will be immediately effective upon being noticed on future invoices. Your continued submission of Materials, including following the posting of changes, will mean that you accept and agree to these Terms and Conditions of Business, as well as to any changes. By your continued submission of Materials, you hereby agree to periodically review these Terms and Conditions of Business on future invoices. If you choose not to agree to these or any modified Terms and Conditions of Business, please do not submit Materials or request Services
Client agrees to pay for all Services and Materials ordered at POINT.360 prices in effect at the date of delivery of Services and/or Materials to Client. All prices are subject to change without notice. Unless otherwise specified, published prices are for Services and Materials requiring standard transfer, duplication, processing or any other type of handling based upon the use of POINT.360 facilities and the employment of POINT.360 personnel during normal working hours.
2. Taxes and Shipment.
POINT.360 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 POINT.360 or Materials used by POINT.360 in completing Client’s order. Any such taxes shall be added to the prices charged to the Client. If Client is exempt from any taxes, Client shall provide POINT.360 at the time Client submits Materials to POINT.360 and/or orders Services from POINT.360 the appropriate tax exemption documentation, which documentation must be acceptable to POINT.360. All prices are FOB, POINT.360’s place of business where the Services and/or Materials are furnished. Transportation of Materials to and from POINT.360’s laboratory shall be at client’s sole risk and expense.
Delivery dates and times, if furnished by POINT.360, are approximate. Client’s order will be filled as rapidly as practicable taking into consideration the delivery to POINT.360 of Materials by Client, the type of Services or Materials ordered by Client, POINT.360’s obligations to other Clients and POINT.360’s facility capacity. POINT.360 SHALL NOT BE LIABLE TO CLIENT OR TO ANY OTHER LEGAL PERSON FOR ANY LOSSES OR DAMAGES, INCLUDING AIR TIME COSTS, ARISING OUT OF NON-DELIVERY OR DELAY IN DELIVERY OF SERVICES OR MATERIALS, NOR SHALL POINT.360 BE LIABLE FOR FAILURE TO GIVE NOTICE OF ANY SUCH NON-DELIVERY OR DELAY. Any non-delivery or delay in delivery shall not constitute grounds for termination or cancellation of Client’s order, whether such non-delivery or delay arises from causes within or beyond POINT.360’s control.
4. Responsibility for Materials; Limited Liability.
Materials are received, processed, used, stored and otherwise handled by POINT.360 at Client’s sole risk. POINT.360 shall not be liable for any loss, destruction or damage thereto from any source whatsoever, including consequential damages arising therefrom, with the sole exception of loss, destruction or damage caused by the willful acts of POINT.360 personnel acting within the scope of their authority or the gross negligence of POINT.360, in which event POINT.360’s liability shall be limited to the replacement thereof in the case of Materials in media form with a similar quantity of new unrecorded media of a similar type and, in the case of film Materials, with a similar quantity of unexposed raw stock. POINT.360 shall do nothing to prejudice Client’s right to recover against third parties for any such loss, destruction or damage and shall furnish Client reasonable assistance and cooperation in obtaining recovery at Client’s sole expense. POINT.360 shall not insure any Materials while in the possession or under the control of POINT.360 or while in transit, such insurance coverage being Client’s sole responsibility. POINT.360 shall not be liable to Client nor to any other person for any act or omission of any person selected by POINT.360 to perform Services or furnish Materials for Client. If any medium, including without limitation, film, video tape, audio tape, CD or DVD, furnished by POINT.360 hereunder is found to be defective in manufacture, POINT.360 shall replace such medium with new unrecorded media of similar type, provided Client gives POINT.360 written notice thereof within thirty (30) days after initial delivery to Client. EXCEPT FOR SUCH REPLACEMENT, POINT.360 SHALL HAVE NO FURTHER LIABILITY IN CONNECTION WITH SUCH DEFECTIVE MEDIA, EXCEPT AS SPECIFICALLY PROVIDED IN THIS PARAGRAPH, CLIENT AND POINT.360 AGREE POINT.360 SHALL HAVE NO OTHER LIABILITY, EITHER EXPRESS OR IMPLIED, FOR THE FOREGOING OCCURRENCES OR FOR THE CONSEQUENCES THEREOF. Should media, including without limitation, tape, CD or DVD, be labeled or shipped in error, POINT.360 will promptly correct such error by replacement of the media at POINT.360’s expense, provided a written notice of error in labeling or shipping is given to POINT.360 within twenty (20) days after shipment. IN NO EVENT SHALL POINT.360 BE LIABLE FOR ANY LOST PROFITS OR ANY OTHER DAMAGES CAUSED BY ANY TECHNOLOGY AND/OR EQUIPMENT AND/OR PROCESSES DEVELOPED BY THIRD PARTIES, CLIENT’S NEGLIGENT ACTS OR OMISSIONS AND/OR ANY ERROR IN SHIPMENT. Client acknowledges prices charged by POINT.360 are small compared to the possible lost profits or other damages Client might suffer in the event of any loss, damage or destruction of Materials and it would be difficult or impossible to determine the amount of such damages. For these reasons, Client assumes all risk of loss, with the foregoing exceptions described in this Paragraph 4. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY IN ANY ACTION, WHETHER IN CONTRACT, TORT OR ANY OTHER CLAIM, EVEN IF AN AUTHORIZED REPRESENTATIVE OF POINT.360 HAS BEEN ADVISED OF OR SHOULD HAVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES. USER HEREBY ACKNOWLEDGES THAT THIS PARAGRAPH SHALL APPLY TO ALL CONTENT, MERCHANDISE AND SERVICES PROVIDED. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
5. Limitation of Warranty.
Except as provided in paragraph 4, POINT.360 SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY POINT.360 OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU
6. Terms of Payment; Cost of Collection; Attorney’s Fees.
Client agrees to pay POINT.360 for all Services and Materials furnished for Client or for the account of Client. Client may purchase Services and Materials on open account only upon approval by POINT.360. If Services and Materials are furnished to Client on open account, Client shall pay POINT.360 the amount invoiced to Client within 30 days from date of invoice. Any claims for adjustment in connection with an invoice must be presented to POINT.360 in writing within fifteen (15) days from the date of the invoice in question or such claim shall be deemed waived by Client. Client agrees to pay POINT.360 interest at the rate of 18% per annum or one and one-half percent (1 ½%) per month on all amounts which are not paid when due, interest to accrue from the date payment is due. This interest rate shall not exceed the maximum amount permitted by law. Client agrees to pay POINT.360 all costs and expenses (including reasonable attorneys’ fees) incurred by POINT.360 in connection with the collection of amounts owed by Client.
7. POINT.360 Lien; Waiver of Notice.
In addition to any other rights or remedies POINT.360 may have under the law, or under any other agreement with Client, Client grants POINT.360 a lien, dependent on possession, on all Materials, and such Materials will be retained by POINT.360 until payment in full of the amount owed to POINT.360 in order to perfect the lien to secure payment of the general balance of amounts owed POINT.360 by Client from time to time. If the Materials are surrendered to Client or a third person and thereafter reacquired by POINT.360 prior to payment in full of the balance of any amounts owed by Client, such lien shall continue in effect as if the Materials had never been surrendered by POINT.360. Client waives the right to receive notice of Services ordered and notice of Materials ordered for the account of Client by persons having the apparent authority to place such orders. Nothing contained in this paragraph shall be deemed to limit or prejudice the rights of POINT.360 under the lien law of the State of California or any applicable lien law of any other state.
8. Storage and Removal of Materials.
POINT.360 will store Materials without charge during the time of transfer, duplication or processing, and for a reasonable period thereafter not to exceed three (3) months. Thereafter, Client agrees to pay POINT.360’s then existing storage fees. Any Materials held for the account of Client may be kept at such place or places as POINT.360 may determine, there being no promise or representation that any Materials held by POINT.360 will be stored at any particular location. At any time, POINT.360 may require Client to retake possession of any or all of Materials. Upon failure of Client to remove such Materials at POINT.360’s request, POINT.360, at its option after thirty (30) days’ written notice given by POINT.360 to Client at Client’s last known address as it appears on the records of POINT.360, may either (i) send such Materials to a public warehouse or to a storage company to hold in the name of, for the account of, and at the sole risk and expense of Client, at a rate obtained in good faith by POINT.360 or (ii) destroy or make other disposition of said Materials. Client agrees because of the impracticability of POINT.360’s storing Materials for all its Clients and because Client has the ultimate responsibility for its Materials, these procedures for disposition or destruction of Materials are reasonable and fair. CLIENT AGREES THE LIMITATION OF LIABILITY PROVISIONS OF PARAGRAPH 4 SHALL APPLY TO THE DISPOSITION OR DESTRUCTION OF MATERIALS IN ACCORDANCE WITH THIS PARAGRAPH.
9. Authority and Ownership.
Client represents and warrants it owns all Materials submitted to POINT.360 and has the right to engage POINT.360 to provide the Services or furnish the Materials requested by Client or Client’s representative. In the event of any dispute concerning the Materials, including without limitation disputes concerning ownership rights and/or access rights, Client hereby agrees POINT.360 shall have the right to hold the Materials until POINT.360 is provided with: (i) an agreement executed by all parties to the disagreement instructing POINT.360 respecting the Materials; or (ii) a certified or file-stamped copy of a court order resolving the disagreement or directing a specific distribution of all or any portion of the Materials. POINT.360 shall not be liable in any way to Client or any other person for its failure or refusal to comply with conflicting or adverse demands concerning the Materials. Client agrees to indemnify POINT.360, its directors, officers, employees and agents against and hold each of them harmless from any and all claims, damages, costs and expenses of any nature, including attorneys’ fees and costs, arising, directly or indirectly, out of any dispute, including ownership, access and/or any other dispute involving the Materials.
Client represents and warrants the Materials delivered to POINT.360 do not in any way defame, violate or infringe any copyright, civil right of privacy or any other right of any third party, including individuals and business entities. POINT.360 will not be required to duplicate and/or deliver any Materials it deems to be obscene or otherwise violative of State or Federal statutes. Client agrees to indemnify POINT.360, its directors, officers, employees and agents against and hold each of them harmless from any and all claims, damages, costs and expenses of any nature, including attorneys’ fees and costs, incurred by POINT.360 by reason of any breach or alleged breach of any representation, warranty or agreement herein made by Client, including without limitation any pending or threatened action relating to the infringement or disputed ownership of any Materials or content contained therein, including after any Services performed by POINT.360 Client shall indemnify and hold harmless POINT.360 from all claims, liabilities, cost (including attorneys’ fees) and damages arising out of POINT.360’s disposition or destruction of Materials (provided such disposition or destruction is in accordance with provisions of paragraph 8) or the publication, use, distribution, exhibition or other handing of Materials. Any right and remedy belonging to POINT.360 hereunder or under the law shall be deemed cumulative and not exclusive of one another and the exercise by POINT.360 of any such right or remedy shall not preclude POINT.360 from exercising or enforcing any other right or remedy it may have.
11. Right of Refusal.
POINT.360 may refuse to provide Services or Materials that require transfer, duplication or other processing by methods other than those usually employed by POINT.360. In addition, if, upon inspection of Materials, POINT.360 determines further Services in connection with such Materials might subject POINT.360 or its employees to criminal or civil liability, POINT.360 may refuse to provide such Services and may retain in its possession all Materials until POINT.360 has been paid in full for the Services or Materials theretofore furnished by POINT.360.
Any notices or communications to Client by POINT.360 shall be deemed to have been duly given when deposited in the United States mail with postage prepaid to Client at the address shown as Client’s address in POINT.360 records. Client may change the address at which it desires to receive such notices by giving written notice of such change to POINT.360.
13. Partial Invalidity; No Waiver.
In the event that any portion of these terms and conditions shall be held to be invalid or unenforceable, the remaining terms and conditions shall nevertheless remain in full force and effect as though the invalid or unenforceable portion was not included. The failure of POINT.360 to insist upon Client’s performance of any Client’s obligations hereunder shall not be construed as a waiver of the breach of any other obligation of Client or of any subsequent breach of such obligation. The failure of POINT.360 to exercise any right or remedy which POINT.360 may have hereunder or under the law shall not be construed as a waiver of any other right or remedy which POINT.360 may have hereunder or under the law.
14. Governing Law.
The laws of the State of California will govern our ongoing contract, any and all disclaimer terms, without giving effect to any principles of conflicts of laws. Client hereby agrees to submit to the personal and exclusive jurisdiction of the courts of the state of California, county of Los Angeles, in connection with any dispute with POINT.360.
These Terms and Conditions of Business embody the entire understanding between us with respect to the subject matter hereof and supersede any and all prior understandings and agreements, oral or written, including as may be contained in or accompanying any purchase order previously or hereinafter submitted by Client, and any prior general agreement (except any separate written security agreement) inconsistent with these Terms and Conditions. These terms and conditions can only be modified by an instrument in writing signed by either the President or Executive Vice President of Point.360.