General Terms
Pricing and delivery
KMS Media reserves the right to change prices, colors, materials,
specifications, and quantities in our catalog, website, or elsewhere without
notice or obligation. Quoted or acknowledged delivery dates are only estimates.
Turn times are not guaranteed and are subject to seasonal fluctuations.
Intricate packaging options or products requiring a non-standard template or
manual production will take longer. Ask your sales representative for an estimated delivery date.
KMS Media is not liable for special, incidental, or consequential damages
related to omissions or errors in our catalog, website, or elsewhere.
Prices quoted in our catalog do not include freight. All shipping is FOB
Nashville, TN unless indicated otherwise. KMS Media is not responsible for loss
or damage to the product once any product has left KMS Media's premises.
KMS Media maintains offices and facilities in Tennessee and charges applicable
sales tax when appropriate, as required by law.
Payment terms
KMS Media accepts cash, check, money order, VISA, MasterCard, Discover, and
American Express.
Companies requesting credit must fill out a credit application before any order
can be processed. A purchase order is required before any open account order can
be processed.
Should any amount remain outstanding after its due date, interest shall run on
said amount from the initial billing date at the rate of one percent (1%) per
month (12% per annum) and shall accrue daily. In addition to the foregoing, the
Customer shall pay any and all costs, fees, charges or expenses of every nature
(including without limitation KMS Media's reasonable legal fees and
litigation/arbitration fees and costs) incurred by KMS Media in recovering any
amounts owed to it by the Customer.
Shipping
KMS Media's prices do not include shipping. Most orders ship via 2-day service
at standard ground rates. Some shipments over 3,000 pieces ship via freight.
Rates vary depending on your disc packaging.
Order cancellation
KMS Media reserves the right to refuse or cancel any order.
CD & DVD Replication/Duplication Orders:
Intellectual Property Rights Protection
KMS Media Services 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.
The customer represents and warrants to KMS Media: (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 KMS Media by the customer under this agreement, including but not
limited to the right to reproduce, manufacture and otherwise use the materials:
(b) that the customer and KMS Media are not, or will not be, as a result of the
execution and delivery of this agreement or the performance by KMS Media of the
obligations hereunder, in violation of any intellectual property rights of third
parties; and (c) that no claims with respect to the customer's intellectual
property rights or third party intellectual property rights in the materials are
currently pending, nor to the knowledge of the customer, are threatened by any
person, nor, to the customer's knowledge, do any grounds for any claims exist.
Customer agrees to indemnify, defend, protect, and hold harmless KMS Media
Services and its respective officers, directors, agents, affiliates,
distributors, franchisees, and employees (collectively, "indemnified
parties") against any liabilities, losses, claims, damages, punitive
damages, causes of action, lawsuits, administrative proceedings (including
interest from the date of such damages), and costs and expenses (including
without limitation reasonable attorneys' fees and disbursements of every kind,
nature, and description) (collectively, "damages") suffered,
sustained, incurred, or paid by the indemnified parties in connection with,
resulting from, or arising out of, directly or indirectly (i) any claim, demand,
proceeding, or lawsuit by a third party based on any assertion that the services
provided to the customer under this agreement breaches the patent, copyright,
trademark, trade secret, or other proprietary right of such third party and (ii)
any breach of any representation or warranty of the customer set forth in this
agreement or the form, Intellectual Property Ownership Agreement, Purchase
Order, or in any other form or document in connection herewith.
KMS Media reserves the right, at its sole discretion, to investigate the
ownership of any and all materials provided hereunder.
The customer agrees to provide KMS 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,
KMS Media does not in any way assume an obligation to investigate or verify
ownership of any materials provided by the customer, and KMS Media may rely on
the customer's representations and warranties herein and provided under KMS
Media's' Intellectual Property Rights Form even if KMS Media investigates such
ownership.
If KMS Media determines, or has reason to believe, that the customer does not
have the authority to produce the products sought hereunder, KMS Media will have
no further obligations to the customer to provide any products or any other
services with respect to such materials, and KMS Media will return such
materials to the customer.
Pricing and delivery
KMS Media reserves the right to produce and bill for production overruns or
underruns up to ten percent (10%) of the customer's order. Customer will be
billed for actual amounts shipped.
The customer's order will be delayed if the customer has failed to provide to
KMS Media all necessary materials (including without limitation master,
graphics, deposit, signed estimate, signed Intellectual Property Rights Form,
and Audio Track Listing).
Quoted or acknowledged delivery dates are only estimated dates of delivery. KMS
Media specifically disclaims liability for delays in delivery and any resulting
consequential damage or losses.
In the event a client fails to pay within ninety (90) days for any work
completed, or in the event a client fails to accept delivery or pick up his
finished product within ninety (90) days from completion, KMS Media has the
right to sell, dispose of, destroy or use any such material on hand in any way
KMS Media chooses without any liability by KMS Media to the customer or others.
KMS Media assumes that the client has backups or originals of all content
(including without limitation masters, graphic files, multimedia files, video
files, and audio files) provided in digital electronic form (including without
limitation on recordable CD or DVD, digital video master, Zip, SyQuest, 1630,
DLT, DAT, or other digital recording medium, or as uploaded to KMS Media's web
site via FTP, email, or other means) for manufacturing. As such, KMS Media is
not obligated to return such electronic content to the customer upon completion
of the order. KMS Media will return analog masters, original artwork, photos,
transparencies, etc. furnished by the client upon completion and payment of the
order.
Upon completion of any replication or printing order KMS Media will retain
certain production masters (e.g. stampers, label film, original graphics files,
and other materials needed to manufacture the product to the customer's
specification) for a period of 12 months from the date the product was last
ordered or reordered. After 12 months of inactivity those physical production
masters and related parts will be recycled or discarded to create space for
active titles. Customer reorders placed after more than 12 months of inactivity
will not incur any extra charges so long as KMS Media can get one copy of the
original finished product from the customer at the time of reorder.
While KMS Media will treat the customer's materials with the utmost care, KMS
Media specifically denies liability for damage or loss due to fire, casualty, or
negligence while the customer's materials are in the care and possession of KMS
Media.
Customer's materials stored in KMS Media's premises are not insured and are
stored strictly at the customer's risk. The customer agrees to carry insurance
coverage for its materials while at and in transit to and from KMS Media's
premises.
Payment terms
KMS Media requires a deposit of 50% of the purchase price with most custom
manufacturing orders (your sales representative will inform you of the deposit requirements). The
balance of the purchase price, subject to a ten percent (10%) production under
or over run, is due upon completion of the order, before shipping (no C.O.D.s).
If replication orders are prepaid in full, including freight and applicable
taxes, any overs will be at no charge.
Warranty of product, limitation of liability, and indemnification
KMS Media guarantees the customer's satisfaction with art and content proofs. If
KMS Media cannot satisfy the customer, KMS Media will refund the entire deposit
amount if customer wants to cancel the project. However, once proofs are
approved KMS Media will charge for all work and services performed, even if the
project is subsequently canceled.
KMS Media warrants that material produced and delivered by KMS Media meets KMS
Media's standard specifications for the material or such other specifications as
described in our catalog and meets generally accepted industry standards.
All custom-manufactured and/or printed KMS Media products are unconditionally
guaranteed against defects in quality and workmanship. If any
custom-manufactured product produced by KMS Media from or through the use of
materials is found to be defective in quality, or is shipped or labeled in
error, KMS Media will replace or repair defective product and/or correct error
in shipment or labeling at its own expense or, at KMS Media's option, refund to
customer part or all of the purchase paid to KMS Media, on the condition that a)
written notice of such defect or error is received by KMS Media at its office
within thirty (30) days after shipment by KMS Media to customer, and b) the
defect or error did not result from a defect or error in the materials supplied
by or on behalf of the customer. If said notice is not received by KMS Media
within the date indicated above, KMS Media will be deemed to be released by
customer from any and all liability.
The customer shall return any defective product to KMS Media should KMS Media so
request. No merchandise may be returned to KMS Media without written return
authorization by KMS Media. Product reruns or purchase price refunds will be
prorated based on the quantity of defective merchandise returned.
Prior to returning any product, you must obtain an RMA (return merchandise
authorization) number from KMS Media. The RMA number must appear on your address
label. KMS Media reserves the right to refuse delivery of any item returned
without an RMA number.
KMS Media is not responsible for any loss of revenue or profit or other
financial damages of any kind whatsoever, whether direct or indirect, suffered
by the customer for any reason whatsoever.
Order cancellation
Orders for products not yet manufactured by KMS Media may be cancelled by either
party at any time. The customer will be responsible for all costs incurred by
KMS Media related to pre-manufacturing or manufacturing of any product, prior to
receipt of notice of cancellation. After such cancellation, the customer's
materials and any completed product may be delivered to the customer only after
all sums owed to KMS Media have been paid in full by cash or check.
DIGITAL TRANSFER SERVICES:
By
receiving KMS Media Services terms and conditions you acknowledge that
this is a binding legal agreement between KMS Media Services and users of
digital transfer services provided by KMS
Media Services.
Digital transfer services offered on the web site
www.kmsmedia.net is provided without warranties of any kind, whether
expressed or implied to the fullest extent permissible pursuant to applicable
law. KMS Media Services disclaims all warranties, expressed or implied,
including but not limited to implied warranties of merchantability and fitness
for a particular purpose. KMS Media Services does not represent or warrant
that the services provided will be error-free or that defects will be corrected.
KMS Media Services does not make any warranties or representations
regarding the use of the materials provided in terms of their correctness,
accuracy, adequacy, usefulness, timeliness, reliability or otherwise.
KMS
Media Services is not responsible for late, lost, damaged or misdirected mail.
KMS Media Services does not warrant that Digital Transfer Services will fit all users' particular purposes, and is not liable for any damages or
losses of any kind to the original video tape provided by customer. Liability of
KMS Media Services is limited to replacement of such tape with blank video
tape of the same kind only.
By submitting an order Customer declares and warrants that all materials
provided for conversion and/or duplication are not in violation of any copyright
laws. Customer will indemnify and hold KMS Media Services harmless in
respect to any claims or demands by any third party that infringes upon any
Copyright law. The video, audio images or other materials submitted were either created by Customer or
Customer has the right to permit KMS Media Services to perform duplication
services, or Customer has the permission of the copyright owner to duplicate
video materials and written release form is provided.
Having
read and understood this agreement, you acknowledge its priority to any order,
engagement or advertisement, and agree to its terms.
©2008 KMS Media Services, a division of Kaluboné
Records All rights reserved.