ROCKY MOUNTAIN AUDIO/VIDEO PRODUCTIONS, INC. (hereinafter “RMAVP”) TERMS AND CONDITIONS
The terms of this agreement (“Agreement”) are entered into as of the date of client’s or customer’s (hereinafter “Customer”) signature to RMAVP’s Sales Order and/or Quote form (“Effective Date”). All future orders by Customer for Services shall be subject to terms and conditions contained herein.
1. Services, Payment and Expenses: RMAVP agrees to perform the services described in a Sales Order and/or Quote form (“Services”). In consideration for such Services, Customer will pay the fees and reimbursable costs set forth in the corresponding Sales Order and/Quote subject to these terms and conditions. Customer agrees that Services will not commence until a Sales Order and/or Quote has been signed Customer. Customer agrees that RMAVP may use any content produced, videotaped, recorded or created by RMAVP, for possible inclusion in our RMAVP demo tape. All expedited orders will incur a minimum 20% rush service charge.
2. Special Orders, Large Volume Orders and Approval Masters: For special orders (product which is not commonly stocked by RMAVP) and /or large volume orders, a deposit of 50% or pre-payment in full, as determined solely by RMAVP, may be required prior to initiating Services. Upon approval of master(s), no cancellations will be accepted and Customer will be responsible for the entire order.
3. Term: Unless earlier terminated pursuant to Section 10 (Cancellation and Termination), this Agreement will have a term of one (1) year from the Effective Date set forth above or as specified in the Sales Order and/or Quote.
4. Completion and Warranty: RMAVP will use good faith efforts to complete the Services by the completion date(s) specified in the Sales Order and/or Quote. Following completion of the Services, RMAVP will invoice Customer for the Services. RMAVP warrants all materials and workmanship to be free from defects for a period of 30 days from the date of delivery. RMAVP EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED OR ARISING OUT OF A COURSE OF CONDUCT OR COURSE OF DEALING, INCLUDING ALL WARRANTIES OF TITLE, PERFORMANCE, USE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE.
5. Payment by Customer: Customer shall pay for Services upon RMAVP completion of the Services. At RMAVP sole discretion, a deposit or prepayment may be required depending on the nature of the Services to be provided. A 50% deposit is required for production services, and RMAVP reserves the right to charge a 3% convenience fee to all orders paid with credit card. If Customer has completed a credit application and RMAVP has approved such credit application, Customer shall make full payment for Services within thirty (30) days of the invoice date. RMAVP shall invoice the Customer for duplication Services at the time such Services are completed. All payments will be in U.S. currency. All past due amounts will accrue interest at a monthly rate of 1.75% (annual rate of 21%). RMAVP will own all rights to video productions as security until such Services have been paid for in full by Customer. Customer will be responsible for any attorney fees or collection cost incurred by RMAVP resulting from nonpayment by Customer.
6. Shipping: All shipments shall be COD, RMAVP Littleton, Colorado via “best choice of carrier. Risk of loss shall pass to the Customer at the time of shipment. Any damage to shipped goods will be the responsibility of the carrier, not RMAVP. The Customer shall be responsible for all shipping charges, insurance, customs and duties. Customer will be responsible to provide accurate and complete shipping information.
7. Intellectual Property:
7.1 Definitions.
(a) “Intellectual Property Rights” or “Intellectual Property” means all rights in patents, copyrights, moral rights, trade secrets, mask works, trademarks, service marks and other intellectual property rights.
(b) “Pre-Existing Intellectual Property” of a party means any Intellectual Property that has been conceived or developed by such party before RMAVP renders any Services under this Agreement or that is conceived or developed by such party at any time wholly independently of the RMAVP’s services under this Agreement.
(c) “Work Product” means anything the Customer produces that is delivered or made available to RMAVP in connection with this Agreement.
7.2 Each party shall retain all right, title and interest in and to its Pre-Existing Intellectual Property.
7.3 Customer will not use any Customer or third party Pre-Existing Intellectual Property in connection with this Agreement unless Customer has the right to use it. If Customer is not the owner of such Pre-Existing Intellectual Property, Customer will obtain from the owner any rights necessary to enable Customer to comply with this Agreement.
7.4 RMAVP reserves the right to refuse duplication or production Services with the Customer due to questionable material or potential legal concerns.
8. Indemnification:
8.1 Notice. Customer will give RMAVP notice immediately if at any time the Customer knows of any third party claim to any Intellectual Property provided by Customer to RMAVP pursuant to this Agreement.
8.2 Indemnity. Customer will defend, indemnify, protect and hold harmless RMAVP, its employees and agents from and against any and all third party claims, losses, liens, demands, attorneys’ fees, damages, liabilities, costs, expenses, obligations, causes of action, or suits, (collectively “Claims”) to the extent that such Claims are caused by, arise out of, or are connected in any way with:
(a)any negligent act or omission or willful misconduct of Customer or its employees, agents, to the maximum extent permitted by law;
(b)the breach of this Agreement by Customer or its employees, or agents of any of its contractual obligations, covenants, undertakings or promises under this Agreement; or
(c)property loss, damage, personal injury or death, sustained by RMAVP or by any of its employees or agents;
(d)any claim that any Intellectual Property provided by Customer under this Agreement infringes or misappropriates any third party intellectual Property Right.
9.Limitation of Liability: In no event will RMAVP be liable to the Customer for any special, indirect, or consequential damages (including but not limited to loss of profits) arising out of any performance of this Agreement or in furtherance of the provisions or objectives of this Agreement, regardless of whether such damages are based on tort, warranty, contract or any other legal theory, even if advised of the possibility of such damages. Notwithstanding any other provision of this Agreement, any purported limitation on Customer’s liability either as to type or amount of damages shall not apply to any claim arising from Customer’s defense and indemnity obligations.
10.Cancellation and Termination: Upon booking time for Services, Customer will be responsible for such times. Cancellations must be received during our standard business hours of 8am-5pm Monday through Friday, notification after 5pm Friday or over weekend will not be acknowledge till following Monday. Cancellations of 1 business day or less will be billed at 100% of booked services, cancellations greater than 1 business day but less than 2 business days, will incur a cancellation charge of 50% of booked services, plus 100% of any item(s)/equipment/talent/ other crew or any other associated items procured for production or rental. Note: weekends are not business days. In the event RMAVP terminates this Agreement or any Sales Order and/or Quote, in whole or in part with cause, RMAVP shall be entitled to pursue all available remedies.
11.Transition: Upon notice of termination of, or intent not to renew this Agreement or any Sales Order and/or Quote, Customer shall promptly return all RMAVP property and Work Product provided under this agreement.
11.1 Relationship of Parties: RMAVP will act solely as an independent contractor. Nothing contained herein will be construed to create the relationship of principal and agent, employer and employee, partners or joint ventures. RMAVP assumes no liability for personal injury or property damage arising out of Customer’s performance of this Agreement.
12.General Provisions:
12.1 Customer may not, directly or indirectly, in whole or in part, neither by operation of law or otherwise, assign or transfer this agreement or delegate any of its obligations under this Agreement without RMAVP’s written consent. Any attempted assignment, transfer or delegation without such prior written consent will be void and unenforceable.
12.2 This Agreement constitutes the entire agreement between the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements and representations whether oral or written. No supplement, modification or amendment of this Agreement will be binding unless in a writing which states that it is an amendment of this Agreement, and which is signed by an authorized representative of each party who is authorized to amend this Agreement.
12.3 This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado, USA, and the County of Arapahoe without regard to its conflict of law principals. Any dispute that may arise in connection with the interpretation or implementation of this Agreement shall be submitted to the courts of Colorado.
12.4 The headings in this Agreement are included for convenience only, and will not affect the construction or interpretation of any provision in this Agreement.
12.5 If RMAVP loans Customer any property for use in performing the Services, such loan may be documented in a separate agreement. Unless otherwise provided in such agreement, the property will be returned to RMAVP in good working order upon the completion of Services or earlier upon RMAVP’s request.
12.6 Nothing in this Agreement will be construed to preclude RMAVP from providing Services third parties which may be the same as or similar to the Services provided by RMAVP under this Agreement.
12.7 All notices provided in connection with this Agreement will be in writing, and be delivered by certified or registered mail, postage prepaid and return receipt requested, or by courier, and will be deemed effective upon receipt by the addressee at the address listed in Sales Order and/or Quote, or to such different or other addresses as the parties may designate by written notice to each other.
12.8 In the case of inconsistency or conflict between the provisions of this Agreement and any Customer purchase order, acknowledgment, authorization, or other such document that may be issued by Customer or RMAVP with respect to the Services, the provisions of this Agreement will control.
12.9 Every term, condition or provision of this Agreement is severable from others. If a court or an arbitrator of competent jurisdiction holds any term, condition or provision of this Agreement to be invalid, unenforceable or illegal in whole or in part for any reason, the validity and enforceability of the remaining terms, conditions or provisions, or portions of them, will not be affected.
12.10 The following section(s) shall survive the termination or expiration of this Agreement: Section 7, Intellectual Property; Section 8, Indemnification; Section 9, Limitation of Liability; and Section 12, General Provisions.
12.11 All prices are exclusive of applicable value added tax and other similar taxes (collectively “VAT”), freight charges and duties. RMAVP shall not be responsible for any taxes measured by Customer’s net income or legally required withholding taxes. If RMAVP is required by law to withhold and remit tax relating to Supplier’s order, RMAVP shall be entitled to reduce the payment by the amount of such tax. Prices are exclusive of sales and use tax and such taxes, if applicable, shall be added separately in Customer’s invoice. RMAVP will not invoice or otherwise attempt to collect from Customer any taxes with respect to which Customer has provided RMAVP with (i) a valid resale or exemption certificate, (ii) evidence of direct payment authority, or (iii) other evidence, reasonably acceptable to RMAVP, that such taxes do not apply.
12.12 Failure by RMAVP to enforce any provision of this Agreement shall not constitute a waiver or affect its right to require the future performances thereof, nor shall its waiver of any breach of any provision of this Agreement constitute a waiver of any subsequent breach or nullify the effectiveness of any provision. No waiver will be binding unless made in writing and signed by RMAVP.