Terms and Conditions of Service

TERMS AND CONDITIONS

TERMS AND CONDITIONS OF SERVICE:

1.     DEFINITIONS. In these terms and conditions (these “Terms”):

A.     “Customer” means the individual, corporation or other business entity, and each of its respective employees, agents and subcontractors, or any party represented by Customer, that submit Elements to, or receives services from, Facility.

B.     “Deliverables” means the final deliverable(s) provided by Facility to Customer created in the performance of any of Facility’s services.

C.     “Element” means all film negatives, master positives, master videotapes, submaster videotapes, submaster positives, sound tracks, reversal originals, reversal intermediates, cuts and trims, positive prints or video dubs, separations, audiotapes, sprocketed magnetic film, sound track optical negatives, striped film prints and film prints, digital files (including but not limited to still image files, image file sequences and digital media files), and all IP Rights in all of the foregoing, and in each case, that are delivered to or deposited with Facility by Customer or on Customer’s behalf.

D.     “Facility” means Company 3 LLC, or any of its divisions, subsidiaries, brands, successors, assigns or affiliated entities.

E.     “IP Rights” means any and all intellectual property rights now known or hereafter existing throughout the world (including but not limited to patents, copyrights, trademarks and trade secrets).

F.     “Methods” means the proprietary tools, methods or methodologies, systems, know-how, concepts, ideas, technology, information, materials, techniques, expertise, equipment, workflows, processes, and the like used or improved by Facility in rendering the services.

2.     ORDERS. Facility is entitled to rely on instructions given to Facility by any third party purportedly on the Customer’s behalf. All orders shall be placed using the Customer’s authorized purchase order and such order shall be binding on Facility only if Facility accepts such order. Facility may accept verbal orders at its discretion. Each order will create a separate contract governed by these Terms, irrespective of any other terms that the Customer may include in its purchase order. Unless otherwise specified by Customer, Facility may, in its sole discretion, select the brand, type and quality of raw stock to be used for services.

3.     CUSTOMER OBLIGATIONS. Customer represents and warrants that (i) it is the sole owner of, or has the right to possess, use and direct Facility to use, all Elements and its use does not and will not infringe on or misappropriate any copyrights, trademarks, privacy rights, publicity rights, or any other proprietary or personal rights of any person or entity, (ii) it has made a security (or second) copy of the Elements and any master copy, (iii) as long as Customer is indebted to the Facility, Customer shall not to pledge, hypothecate, assign or otherwise encumber Elements without the prior written consent of Facility, and (iv) Elements shall be suitable for use by the usual methods employed by Facility in its operations. Customer shall indemnify, hold harmless and defend Facility from any and all liability, claims, losses, damages and expenses, including without limitation, reasonable attorney’s fees, arising out of or in connection with (i) the publication, processing, use, distribution, contents or exhibition of Elements and Deliverables, including and without limitation, any liability for libel, slander, defamation, invasion of right to privacy, misappropriation, or infringement of patent, copyright, trademark, or other proprietary right, (ii) any act or omission of Customer, including the breach of Customer’s representation or warranty contained herein, or (iii) any property damage or injury caused by Customer’s agents or employees at Facility. Facility will have the right to retain separate counsel at Customer’s expense. Customer shall pay for repairs to all equipment that was damaged at Facility as a result of Customer’s negligence. Payment for said repairs is due upon presentation of repair bill and both parties agree that the Elements and Deliverables will not be released until the subject repair bill is paid in full. Facility’s ability to provide any services to Customer is subject to the Elements provided by Customer being in commercially acceptable condition for Facility to perform its services.  Facility will not be responsible for any damages, loss or delays caused by any failure of Customer to deliver such Elements to Facility on a timely basis or in commercially acceptable quality.

4.     PAYMENT.

A.     Rates; Quotations. Work will be done at Facility’s rate card current at the date an order is received from Customer, unless Facility has submitted alternative rates to Customer in a written quotation, which shall be valid for thirty (30) days from the date of submission. Oral quotations are provided as an estimate only and shall not constitute a binding contract. Rate cards are subject to change without notice.

B.     Taxes.  Any amounts paid by Customer to Facility under these Term do not include, any sales, use, value added, manufacturing, processing, VAT, GST, PST, gross receipts, or other pass-through tax of a similar nature which may be imposed by any governmental authority upon Facility relating to the sales, rental or use of any property or for the performance of any of the services hereunder (collectively, “Taxes”) or other charges such as shipping and delivery charges, duties, customs, tariffs, imposts and government-imposed surcharges (“Duties”).  Customer agrees to pay, upon invoicing or upon audit or other demand for payment by any government authority, or, if applicable, to reimburse, indemnify and hold Facility harmless from any and all Taxes and Duties, any related interest, deposits or penalties with respect to the sales, rental or use of any property or for the performance of any services pursuant to these Terms that Facility is, or may become, obligated to pay pursuant to any present or future law or regulation (other than Taxes imposed on the income or profits of Facility).

C.     Foreign Customers. All work for non-U.S. customers will be accepted on a U.S. currency cash basis only, which includes travelers’ checks, bank drafts and funds deposited by wire. Customer shall pay any costs associated with payment by non-U.S. customers.

D.     Cancellation Fees. All Cancellations must be made directly to the customer service department. If Customer cancels services or products, Customer shall pay for services rendered, or products ordered or produced, prior to cancellation. Customer shall pay any cancellation charges (up to 100% of the estimated costs for the period booked) that may apply, based on Facility’s cancellation policy at the time of cancellation.

E.     Terms of Payment. All work shall be accepted on a C.O.D. basis unless credit has been established in advance. Payment of all invoices is due net thirty (30) days from the date of the invoice. If a payment is not made when due, a service charge of the less of one and half percent (1-1/2%) per month or the maximum allowable by law will be charged on all outstanding balances. In the event that the invoices are not paid in accordance with the terms set forth, any discount provided by Facility shall be revoked and the fee due for the work performed will be based upon the normal rate card in effect at the time the work was performed. Customer may not deduct from any payment due to Facility in respect of any set-off or counterclaim. Any communications written or oral regarding any dispute and/or payments relative to any invoice or account which is the subject of any dispute must be sent within ten (10) days from the date of such invoice to Company 3, Attn: Credit Manager, 2400 West Empire Ave, Suite 200, Burbank CA 91504 and not to the payment remittance address. Customer will also pay Facility’s costs of collection including but not limited to, reasonable attorney’s fees.

F.     Possession. Facility may retain possession of any Deliverables until Facility has received payment in cleared funds for the services. Until such payment has been made, legal title to all Deliverables shall remain with Facility (notwithstanding delivery or the passing of risk to Customer), the license granted to Customer in Section 12 below shall not take effect.

5.     RIGHT TO REFUSE PERFORMANCE. Without placing any obligation on Facility to monitor such materials, Facility may, without liability, refuse or cease to perform services if Facility, in its sole discretion: (a) deems an Element to be unlawful, infringing, pornographic or degrading or otherwise objectionable, defamatory, libelous, or offensive with respect to applicable standards, customs, or practices; (b) Facility might subject itself to criminal or civil proceedings or to liability of any kind; (c) finds that Elements are not of the necessary technical standard to enable Facility to perform its work; (d) deems that Customer is in material breach of any of these Terms; or (e) deems that Customer is unable to pay its debts.

6.     LIMITATION OF LIABILITY.

A.     Generally. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, (A) FACILITY GIVES NO WARRANTY EXPRESS OR IMPLIED AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESCRIPTION, TITLE, NON-INFRINGEMENT, QUALITY OR OTHERWISE WITH RESPECT TO THE DEVELOPMENT, PRINTING, DUBBING, TRANSFERRING, AND PROCESSING OF THE ELEMENT OR ANY OTHER LABORATORY SERVICES PROVIDED BY FACILITY; AND (B) FACILITY MAKES NO WARRANTY AND ASSUMES NO RESPONSIBILITY FOR THE CHARACTER OR QUALITY OF THE MATERIAL, FILM PROCESSING, DUBBING, LOSS OF QUALITY ATTRIBUTABLE ANY PROCESS CARRIED OUT DURING THE PERFORMANCE OF SERVICES, OR SERVICES PROVIDED BY IT HEREUNDER. In addition, Facility makes no representation, warranty or covenant with respect to (i) the Elements or the exploitation of the Deliverables, (ii) claims resulting from Facility’s compliance with the direction or artistic and/or technical specifications of Customer, or (iii) any third party’s IP Rights relating to disc structure, disc or content format (including the codecs/output formats or ultraviolet/DECE), content protection (including DRM, Macrovision or watermarking), disc or content replication, the reading or playback of discs or content by playback machines/software, disc or content-related connectivity or disc manufacturing, including, but not limited to, anything required or described in standards or format guidelines for disc or content formats with which the Deliverables are intended to be used.

B.     Limitations of Responsibilities of Facility. It is understood and agreed that Facility is not an insurer and that payments made for service provided by Facility are based solely on the value of such services. The Elements and Deliverables are received, processed and stored solely at the risk of the Customer. Facility reserves the right to assign or subcontract all or any part of the work ordered. Facility may hold Elements at any place(s) that Facility deems appropriate, there being no promise or representation, expressed or implied, that the Elements and Deliverables will be retained or stored at any particular location or by under particular conditions.

C.     Limitations for Damage to or Loss of Elements. In the event that the Elements are lost, destroyed or damaged for any reason, including through negligence of the Facility, its employees, subcontractors or agents, Facility liability shall be limited to the replacement of unexposed/unrecorded raw stock. If such Elements contain time coding, Customer specifically agrees to test such time coding for accuracy before relying on such time coding, Customer agrees to notify Facility of any inaccuracies in such time coding, and Facility agrees to correct such inaccuracies at Customer’s expense. Facility’s obligation shall be limited to correcting any such inaccuracies in time coding, and Facility shall not be liable for any loss, injury, or damage, direct, indirect or consequential, that may be incurred as a result of any inaccuracies in any time coding.

D.     Limitations for Defects in Delivery, Services or Materials. If any Deliverable is defective or is erroneously labeled or shipped or if non-conforming services or materials are furnished by Facility, Facility’s liability therefore shall be limited to replacement or repair of such defective Deliverable (at the option of Facility), and the correction of such errors in shipment or labeling or the providing of conforming Facility services or material at Facility’s expense; provided that the defective Deliverable is returned and written notice of such imperfection or error in labeling or shipment is received by Facility within ninety (90) days after shipment.

E.     Limitations for Delay in Delivery. Facility shall use reasonable efforts to deliver in accordance with delivery dates, but Facility is not liable for any loss or damages caused by Facility’s failure to meet any delivery date or times, or failure to give notice of delay.

F.     Limitations for Absence of Data Backups. 

i)      On-Set Back-ups for Dailies Services.  For “dailies” services provided by Facility, best practices require that Customer adhere to an “on-set” back-up solution, whereby original camera and sound Elements are safely copied to an “on-set back-up” before such Elements leave the production location.  In the event Customer elects not to implement any type of on-set back up for a project, (a) Customer accepts all risks associated with the resulting lack of data redundancy, and (b) in the event any data is degraded or corrupt upon delivery to Facility, then (x) Customer shall be solely responsibility for recovery of any data contained on such Elements, (y) Facility’s obligation shall be limited to returning the Elements to Customer (such that Customer, at its sole cost, may attempt data recovery), and (z) Facility shall not be liable for any loss, injury, or damage, direct, indirect or consequential, that may be incurred as a result of such degradation of corruption of the Elements.

ii)     Full Back-ups for Finishing Services.  For creative post production “finishing” services provided by Facility, best practices require that Customer utilize and maintain, during the duration of the Facility’s services, a full data back-up, either on spinning disk or tape (a “Full Back-up”).  In the event Customer (a) declines to purchase a Full Back-up service from Facility, (b) elects to provide its own full back-up solution (separate and apart from the service offered by Facility), or (c) elects not to implement any type of full back-up in the project workflow, then (x) Customer accepts all risks associated with the resulting lack of data redundancy, and (y) Facility shall not be liable for any loss, injury, or damage, direct, indirect or consequential, that may be incurred due to any resulting loss of data.

G.    Force Majeure. Without limiting the generality of the foregoing, Facility shall not be liable for any delay or loss due to delays or failures in performance caused directly or indirectly by the Element; acts of God; Customer, civil or military authorities; terrorism; civil unrest; fires; floods; epidemics; quarantine restrictions; wars; riots; strikes; lock outs; labor difficulties; failures of equipment or transportation; whole or partial satellite malfunctions, uplink failures, internet outages, communications line failures or power failures; inability to obtain, or the failure of others to deliver, Element, machinery, equipment or qualified personnel; or any other cause beyond Facility’s reasonable control. In the event of a delay, the delivery or shipping date, as appropriate, shall be deemed extended for a period equal to the delay.

H.     Damages. Facility’s total liability for any and all loss or damage arising out of or in connection with any contract for services shall be limited to the total sums paid by Customer to Facility under such contract. IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL FACILITY BE LIABLE TO ANY PARTY FOR ANY LOST PROFITS OR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DAMAGES RESULTING FROM: (a) ANY DEFECTIVE ELEMENT, DELIVERABLES, SERVICES, PRODUCTS OR EQUIPMENT; OR (b) DAMAGES TO, OR DESTRUCTION OF ELEMENTS OR DELIVERABLE BY FACILITY, WHETHER OR NOT SUCH DAMAGES ARE CAUSED BY THE NEGLIGENCE OF FACILITY, ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS; OR (c) ANY NEGLIGENCE OR BREACH OF DUTY (CONTRACTUAL OR OTHERWISE) BY FACILITY, INCLUDING, WITHOUT LIMITATION, IMPROPER STORAGE OR RETENTION, PROCESSING, PACKING, DELAY IN DELIVERY OR SHIPMENT, OR ERRORS IN SHIPMENT, OR LABELING.

7.     FACILITY LIENS; SECURITY INTEREST. In addition to any other liens, rights or remedies given to Facility under applicable law herein, Customer hereby grants, assigns and transfers to Facility a security interest in and lien on any and all Elements and Deliverables in the possession of Facility as security for payment of any and all services and materials furnished to Customer by Facility.

A.     Additional Payments. In the event Facility exercises its rights hereunder by selling the Elements or Deliverables at public or private sale, then Customer agrees to pay Facility on written demand whatever deficiency may be due after the proceeds are applied to payment of the indebtedness, including, without limitation, all legal and other costs, expenses and charges incurred in the collection, sale, delivery or preservation of the Elements or Deliverables.

B.     Title After Sale. Customer agrees that if Facility shall enforce its rights under any law, it or any other person acquiring title or interest in or to any Elements or Deliverables at public or private sale, shall have and is hereby granted, all right, title and interest of Customer in the Elements or Deliverables.

8.     RETENTION AND DISPOSAL OF INACTIVE ELEMENTS. Provided that all obligations that may arise hereunder have been paid to Facility, Customer shall remove from Facility’s premises all Elements and Deliverables within three (3) months after the last work thereon. If Customer fails to remove said Elements or Deliverables as herein provided, Facility may at any time, without further notice or liability to Customer or any other person, begin charging Customer a storage/retention fee per Element, destroy, erase, reuse or make any disposition of said Elements or Deliverables as Facility sees fit. Customer agrees to indemnify, hold harmless and defend Facility harmless from all liability arising out of or connected with Facility’s destruction or disposition of said Elements or Deliverables as provided herein.

9.     INSURANCE. Customer agrees to insure fully, at its own expense, Elements and Deliverables against all insurable risk, including damage or destruction of such Elements and Deliverables through the negligence of Facility. Such insurance against any and all losses (including incidental and consequential losses) for which insurance is available and the policy and the policy of insurance shall provide that the insurer waives all claims of subrogation against Facility. Facility shall not insure any Elements or Deliverables.

10.   TECHNICAL CALIBRATION AND EXHIBITION; PUBLICITY. Customer hereby grants Facility the right to use the Elements for technical calibration to adjust the system used to process the Element.

Following the theatrical release of the picture, the Customer hereby grants Facility the limited right to exhibit the Deliverables, or excerpts thereof, on Facility’s websites, in social media, in press releases, or in “demo reels” for the limited purpose of demonstrations of Facility’s work in accordance with standard industry practice.  Facility shall have the right to use the Customer’s name for Facility publicity and marketing purposes limited in reference to the product or services supplied by Facility.

11.   DELIVERY. Delivery shall be at Facility’s premises. Risk shall pass to Customer on delivery. On instruction from Customer, Facility will cause Elements and Deliverables to be transported to any destination (whether by courier, satellite, fiber, posted to an Internet site or server, or email) requested at the expense and risk of the Customer. Customer hereby consents to Facility posting Elements and Deliverables on an FTP site and providing access (via a user identification and password) to Customer’s vendors that are working on the same project as Facility and that have a need for the content on such site. Unless otherwise requested, Facility will ship all physical materials collect, via a carrier of its selection, and a handling charge will be added to all prepaid shipments.

12.   PROPRIETARY RIGHTS.

A.     Customer Ownership. As between Customer and Facility and subject to these Terms, Customer owns and shall retain all right, title and interest, including, without limitation, all IP Rights, in and to (i) the Elements, and (ii) upon full payment of the services, the Deliverables, except for the Methods used therein for which Customer has a license as set forth below (“Customer IP”).

B.     Facility Ownership. As between Customer and Facility, Facility owns and shall retain all right, title, and interest, including, without limitation, IP Rights in and to the Methods (“Facility IP”). No portion of such Facility IP will be deemed a “work for hire” and Facility will not be restricted in any way with respect thereto.  Customer acknowledges and agrees that: (i) Facility shall have the right to use the Facility IP in performing services for third parties and (ii) the work product and deliverables rendered as the result of such services may be substantially similar to the Deliverables, provided that Facility does not use any Customer IP; (iii) the Facility IP is Facility’s trade secrets; and (iv) Facility will not be prohibited or restricted at any time by Customer from utilizing any skills or knowledge of a general nature acquired during the course of providing the services, not uniquely applicable to Customer.

C.     License to Methods. To the extent the Deliverables incorporate any Facility IP (other than the Facility Software, which is licensed pursuant to the separate license in Section 12-D below), Facility hereby grants Customer a non-exclusive, irrevocable, royalty-free, fully paid-up license, throughout the universe and in perpetuity, to use the Methods only as contained or embedded in the Deliverables solely as necessary in the distribution of the Customer products into which such Deliverables are incorporated.

D.     License to Software. 

i) If access is granted to any Facility website, web portal or other software platform (whether SaaS, PaaS or IaaS) (collectively, the “Facility Software”), such Facility Software is licensed and not sold.  Customer acknowledges and agrees that Facility and/or its licensors owns all legal right, title and interest in and to such Facility Software, and all IP Rights that subsist in the Facility Software anywhere in the world.  Apart from a limited, personal, non-assignable licence to use the Facility Software for its intended purpose, Customer obtains no right, title or interest in or to any such IP Rights in or to the Facility Software.  Except with the prior written consent of Facility, Customer must not disclose to any other person any usernames, passwords, tokens or other access methods supplied by Facility.

ii) Customer shall be solely responsible for maintaining its own equipment and establishing its own connection via the Internet to the Facility Software.  Customer shall not attempt to gain unauthorized access to the Facility Software or any restricted portion of the Facility Software, exceed its permitted use, attempt to access any other user’s data or content, or otherwise compromise any aspect of the Facility Software. Customer shall not take any action to interfere with the Facility Software or any other user’s use of the Facility Software.

iii) Customer will not:  (a) disassemble, copy, decompile, reverse engineer, recreate, modify, adapt, create derivative works from or otherwise attempt to discover the Facility Software; (b) delete, alter, cover, or distort any patent, copyright, trademark, or other proprietary rights notice placed by, on or in the Facility Software; and (c) sell, rent, lease, lend, sublicense, distribute, provide a service bureau or otherwise transfer or provide access to all or any portion of the Facility Software to any third party (including as an SaaS, IaaS or PaaS).

iv) Customer is solely responsible and liable, and Facility has no responsibility to Customer or any third party, for any content that is created, transmitted, stored or displayed by the Customer while accessing the Facility Software.

v) All rights not otherwise granted herein are reserved to Facility.

E.     Additional rights. Each party hereby expressly reserves all rights in and to its IP Rights, and the other party shall not acquire any such rights, whether by virtue of these Terms, operation of law, estoppel, or otherwise. Each party shall not contest, directly or indirectly, the validity or ownership of the other party’s IP Rights. Each party shall not, and shall not permit any other third parties to: (a) create derivative works from the other party’s IP Rights, (b) disassemble, decompile, reverse engineer, or otherwise attempt to discern any aspects of the other party’s IP Rights, (c) sublicense, lease, rent, loan or distribute or otherwise transfer or grant access to the other party’s IP Rights, or (d) otherwise use or attempt to exploit the other party’s IP Rights in a manner not expressly authorized by these Terms.

13.   MISCELLANEOUS.

A.     Governing law; Venue. These Terms shall be governed by Delaware law. The exclusive venue for all legal proceedings shall be the County of Los Angeles, California.

B.    Export Laws and Anti-Corruption. Customer shall not transmit, directly or indirectly, Facility’s confidential information or any technical data or goods or services received hereunder, except in accordance with all export laws and regulations of any governing body in the United States, the European Union, China and any other jurisdiction in which such information, data, goods or services are obtained.  Customer understands that Facility is subject to applicable anti-corruption laws, which may include the U.S. Foreign Corrupt Practices Act of 1977 (15 U.S.C. § 78dd-1 et seq.), the UK Bribery Act 2010, and other applicable anti-corruption laws. Accordingly, neither Facility nor Customer nor any of their respective owners, officers, directors, employees, agents or representatives are permitted, directly or indirectly, to offer, pay, promise, authorize, or give anything of value to any government official (defined as any (i) government official, (ii) political party or official thereof, (iii) candidate for political office or (iv) officer or employee of a public international organization) for purposes of obtaining or retaining business or gaining any improper advantage.

C.     Modification. These Terms constitute the entire agreement between Facility and Customer with respect to the subject matter contained herein. These Terms apply to every contract for the provision of services by Facility to the Customer and the supply of services by Facility shall not constitute acceptance of any other terms and conditions. Facility reserves the right to make changes to these Terms from time to time. An up-to-date copy will be available at http://www.company3.com/terms-conditions-service/ or on request. Sales personnel are not authorized to amend, alter, waive or modify the terms of these Terms. These Terms may not be modified by language contained in any purchase order, invoice or other business form.

D.     Notices. All notices and communications hereunder to Facility shall be sent c/o Company 3 LLC, 2400 West Empire Ave, Suite 200, Burbank CA 91504, Attn: Legal Department, unless notified otherwise in writing. Any notice or communication hereunder to Facility shall be deemed to have been duly given when in writing and actually received by Facility. All notices or communications hereunder to Customer shall be deemed to have been duly given when in writing and personally deposited in the United States Mail with postage prepaid to Customer at the last known address of Customer.

E.     Waiver. No failure or delay by Facility in exercising any of its rights under these Terms shall be deemed to be a waiver of any term, Customer’s breach or any subsequent breach of the same.

F.     Severability. The invalidity of any one of these Terms shall not affect the validity of the remaining Terms.

G.     Assignment; Subcontracting. These Terms shall bind and inure to the benefit of the respective heirs, principal representatives, successors, and assigns of the parties; provided that any credit extended to Customer shall not be extended to its successors and assigns without successful completion of a new credit application. Facility may assign these Terms or subcontract its services at its discretion and without notice to Customer.

H.    Parties. These Terms shall not constitute a partnership or employment relationship between the parties.

I.     Rights and Remedies. Facility’s rights and remedies shall be cumulative and not exclusive, and the exercise of any right or remedy shall not affect its right to enforce one or more other remedies.

 

TERMS AND CONDITIONS OF PURCHASE:

Except as may be otherwise provided on the face of the applicable Purchase Order, the following Terms and Conditions shall apply to any purchases by Company 3 LLC, or any of its divisions, subsidiaries, brands, successors, assigns or affiliated entities (“Company 3”):

1. TERMS OF AGREEMENT:  The purchase order, together with these terms and conditions, and any attachments and exhibits, specifications, drawings, notes, instructions and other information, whether physically attached or incorporated by reference (collectively the “Purchase Order”), constitutes the entire and exclusive agreement between the applicable Company 3 facility and the supplier (“Vendor”) identified in the Purchase Order.  Vendor’s electronic acceptance, acknowledgement of the Purchase Order, or commencement of performance constitutes Vendor’s acceptance of these terms and conditions.  Notwithstanding the foregoing, if a master agreement covering procurement of the goods or services described in the Purchase Order exists between Vendor and Company 3, the terms of such master agreement shall prevail over any inconsistent terms herein.

2. PRICES; INVOICING: 

2.1  The Purchase Order may not be filled at prices higher than those last quoted or charged by Vendor to Company 3, unless otherwise specified herein.

2.2 Unless otherwise specified in the Purchase Order, the price for the goods and/or services includes all taxes and other charges such as shipping and delivery charges, duties, customs, tariffs, imposts and government-imposed surcharges.  Vendor will, at Company 3’s request, break-out from the price all such taxes and other charges, in its invoices.  Vendor shall use its best efforts to assist Company 3 in all legal efforts to minimize the taxes resulting from the performance of the Purchase Order.

2.3  Payment will be in the currency of the country in which the Company 3 entity or affiliate identified in the Purchase Order is located, and if the price set forth in the Purchase Order is not in the local currency, then Company 3 will determine the local currency equivalent of the price as of date of payment.

2.4 Deluxe will make any payments due under a Purchase Order within seventy-five (75) days after its receipt of a valid invoice from Vendor.

2.4.1 Invoice Detail.  Each invoice shall show: (a) the Goods/Service Order number to which the invoice relates; (b) the valid Purchase Order number relating to the Goods/Service Order; (c) the Company 3 billing information identified on the applicable Goods/Service Order; and (d) the specific items billed, including hours billed for each of Vendor’s personnel performing under each Service Order.  Company 3, at its sole discretion, may refuse to pay any invoice not containing the required detail and, instead, return the invoice to Vendor within thirty (30) days of receipt. In such event, Company 3 shall not be obligated to pay any sums billed by such returned invoice until thirty (30) days after Company 3 receives a properly corrected invoice therefor.

2.4.2 Mailing of Invoices.  Mailed invoices should be mailed to Company 3 at the following address:

Company 3 LLC

2400 W. Empire Ave

Burbank, CA  91504

Attention: Accounts Payable

2.4.3 E-mail Invoices. Invoices may also be submitted to Company 3 using the following e-mail address:

[email protected]

3. DELIVERY DATES AND QUANTITIES:  The dates of delivery and quantities specified herein are of the essence of the Purchase Order, and delivery of all items must be made within the time specified.  If deliveries cannot be made on time and in the quantities specified, Vendor shall promptly notify Company 3, and Company 3 shall have the right to purchase some or all of the items elsewhere.

4. RETURN PERIOD:  Company 3 reserves the right to return the equipment to Vendor, opened or unopened, within 60 days at no cost to Company 3.  Vendor will pay all costs of shipping and insurance for the return of equipment.

5. Neither the Purchase Order nor any part thereof shall be assigned by Vendor without the written consent of Company 3.

6. CHANGES:  Company 3 shall have the right, by written change order, to make changes from time to time as to packing, testing, destination, specifications, designs, and postponements of delivery.  If such changes cause an increase or decrease in the amount due, or in the time required for delivery, an equitable adjustment shall be made, and the Purchase Order shall be modified in writing.

7. WARRANTIES:  Vendor expressly warrants all items covered by the Purchase Order to be free from defects in material and workmanship and to be of the quality, size, description and dimensions required, and the express warranty shall not be deemed waived by reason of receipt of said terms and/or payment thereof by Company 3.  Vendor further warrants that all items covered by the Purchase Order will conform and comply with all applicable provisions of governmental laws, ordinances, rules and regulations.  The foregoing are in addition to all other warranties, expressed and implied, applicable to any items purchased hereunder.

8. INSPECTION AND REJECTION:  All items furnished will be subject to inspection and approval before acceptance by Company 3.  Company 3 reserves the right to reject any items that do not fulfill the specifications of the Purchase Order or time of the delivery and (a) to return the rejected items to Vendor at Vendor’s risk and expense for full credit at the order price, without prejudice to any right to damages for such breach, or (b) to require Vendor to replace at Vendors’ expense rejected items at the unit price of the Purchase Order, or (c) to consider the Purchase Order breached as to the rejected quantity and cancelled as to any unfilled portion of the Purchase Order, and to hold Vendor fully liable for such breach and cancellation.

9. DATA:  Vendor agrees not to use or disclose any data or designs furnished by or belonging to Company 3, except in the performance of the Purchase Order.  Upon Company 3’s request all such data or designs, and all copies thereof, shall be promptly returned to Company 3.

10. PATENTS:  Vendor guarantees that the items furnished under the Purchase Order, and the sale or use of them, will not infringe any patents, copyrights, or trademarks.  In the event of any claim of such infringement against Company 3 or Company 3’s customers based on items furnished by Vendor hereunder, Vendor agrees to repurchase such articles from Company 3 at the order price, and to indemnify and save harmless Company 3 and all such customers from all expenditures of any nature whatsoever incurred by Company 3 and/or such customers as a result thereof.

11. TERMINATION FOR DEFAULT:  Company 3 may by written notice of default to Vendor, terminate the whole or any part of the Purchase Order if (a) Vendor fails to make delivery of the ordered items within the time specified herein, or (b) Vendor fails to perform any of the other provisions of the Purchase Order, or so fails to make progress as to endanger performance of the Purchase Order in accordance with its terms, or (c) Vendor becomes insolvent or the subject of proceedings under any law relating to bankruptcy or the relief of debtors.  In the event of such termination Company 3 may procure similar items upon such terms and in such manner as the Company 3 may deem appropriate, and Vendor shall be liable to Company 3 for any excess costs for such similar items.  Company 3’s rights and remedies under the paragraph are in addition to any other rights and remedies provided by law or under the Purchase Order.

12. LIMITATION OF LIABILITY:  Company 3’s total liability for any and all loss or damage arising out of or in connection with any contract for services shall be limited to the total sums paid by Company 3 under such contract. IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL COMPANY 3 BE LIABLE TO ANY PARTY FOR ANY LOST PROFITS OR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER.

13. MODIFICATIONS; NONWAIVER:  No agreement or other understanding in any way modifying these terms and conditions shall be binding upon Company 3 unless made in writing and signed by authorized representative of Company 3.  Company 3 reserves the right to make changes to its standard terms and conditions from time to time.  An up-to-date copy will be available at http://www.company3.com/terms-conditions-service/ or on request. Company 3 personnel are not authorized to amend, alter, waive or modify the terms of these terms. Company 3 shall not be bound by any terms or conditions contained in Vendor’s acknowledgement forms, invoices, or other communications, unless acceptance of such terms and conditions is expressly made by Company 3 in writing.  In no event shall the receipt of any items by Company 3 be deemed as acceptance of any such terms or conditions.  No waiver by either party of any default on the part of the other party shall be deemed a waiver of any subsequent default.

14. GOVERNING LAW; VENUE:  The Purchase Order and Vendor’s acceptance thereof shall be governed by the laws of the State of Delaware.  The exclusive venue for all legal proceedings shall be the County of Los Angeles, California.  In any action relating to the Purchase Order or the items covered by the Purchase Order, the prevailing party shall be entitled to recover costs and reasonable attorney’s