TERMS AND CONDITIONS Effective 10/5/2023
1. AGREEMENT: TYLER SHUMWAY POST PRODUCTION, LLC (THE “COMPANY”) DOES NOT ACCEPT AND EXPRESSLY OBJECTS TO ANY TERMS AND CONDITIONS OR OTHER WRITING ON ANY PURCHASE ORDER OR ACKNOWLEDGEMENT WHICH IS DIFFERENT FROM OR ADDITIONAL TO THOSE TERMS AND CONDITIONS CONTAINED HEREIN, EXPRESSLY INCLUDING, WITHOUT LIMITATION. ANY EFFORT TO NEGATE THE TERMS AND CONDITIONS SET FORTH HEREIN OR IN THE PRICE QUOTE. NO MODIFICATION OR WAIVER OF THESE TERMS WILL BE EFFECTIVE AGAINST THE COMPANY UNLESS SPECIFIED IN WRITING AND SIGNED BY THE COMPANY. THE RECEIPT OF THE PRICE QUOTE OR PAYMENT FOR THE SERVICES PROVIDED THEREUNDER SHALL CONSTITUTE CUSTOMER’S ACCEPTANCE OF THE TERMS HEREOF.
2. PRICING: Prices for Services (as defined below) purchased will be those specified in the Price Quote and will be valid for 30 days therefrom unless otherwise stated therein. “Services” are those services performed by the Company (including its subcontractors, which the Company may use in the performance of the Services) that are listed in the Price Quote. Unless otherwise stated in the Price Quote, prices do not include, and Customer is responsible for (i) all applicable federal, state or local sales, use or other taxes (except taxes on the Company’s net income), (ii) shipping or packing charges, and (iii) insurance. The parties agree that all charges included in the price of the Services set forth in the Price Quote are based upon detailed specifications supplied by Customer and any deviation requested by the Customer from such specifications may result in additional charges. The Company reserves the right to require that payment for the changed work shall be made before commencement of the changed work. The Company reserves the right to condition the acceptance of any change to the Services as the Company sees fit, including, without limitation, with respect to the price and/or delivery timing of the Services.
3. PAYMENT: Unless otherwise specified in the Price Quote, payment for Services is due net 30 days from the date of invoice. The Company may require prepayment. The Company may charge Customer interest on all amounts unpaid after 30 days from the date of the invoice at the annual rate of the lesser of (i) 1.5% per month or (ii) the highest interest rate permitted by law. If any invoice is not paid when due, payment shall be considered late, and the Company may, at any time, suspend delivery or other performance with respect to any Services without liability or penalty and take all other action permitted under the Uniform Commercial Code available to it.
4. CANCELLATION: Customer shall have no right to cancel an order once received by the Company, including by reason of a failure or delay in delivery, to the extent that such delay is due to causes that are beyond the Company’s reasonable control (a “Force Majeure Event”) (including, without limitation, failures or delays in performance which are due to strike, lockout, concerted act of workers or other industrial disturbance, fire, explosion, flood, or other natural catastrophe, civil disturbance, riot, act of war or terrorism, or armed conflict, whether declared or undeclared, curtailment, shortage, rationing or allocation of normal sources of supply of labor, materials, transportation, energy, or utilities, mechanical breakdown, equipment failure, accident, Act of God, epidemic, pandemic or similar influenza or bacterial infection, government shutdown, delay of subcontractors or vendors, sufferance of or voluntary compliance with acts of government or government regulations (whether valid or not), embargo, or due to any other cause), subject to any provisions of Customer’s local law to the contrary.
5. 5. TERMINATION OR SUSPENSION: If either party fails to fulfill in a timely and proper manner their obligations under the Price Quote or these Terms and Conditions, the non-breaching party shall have the right to terminate the Price Quote by written notice of termination, specifying the effective date thereof, at least five (5) business days before effective date. Further, the Company may suspend or terminate a Purchase Quote, in whole or in part, at any time on five (5) business days’ written notice, if: (a) Customer becomes non-responsive; (b) Customer becomes abusive; (c) Customer’s failure to provide information or materials necessary to complete the Services renders timely completion of the project impossible; (d) or if other actions or inaction by Customer materially impairs the Company’s ability to compete the Services. In the event a Purchase Quote is terminated or suspended, Customer shall be obligated to immediately pay the Company compensation based on the Company’s normal rates for any work completed prior to the effective date of termination, including charges for both labor performed and materials purchased by the Company prior to such date, in addition to the Company’s overhead and profit on the portion of the work which remains uncompleted as of the cancellation date. In the event Customer seeks to cancel a Price Quote after signing the Price Quote, Customer shall be obligated to pay to the Company, as liquidated damages and not as a penalty, a sum of money equal to fifty percent (50%) of the contract price, or the Company’s charges for Services provided prior to cancellation, whichever amount is greater.
6. TIME FOR COMPLETION: The completion time stated in the price quote is merely an approximation and is based, in part, on Customer’s timely provision to the Company of all materials necessary for the completion of the Services. The actual completion time is contingent upon the non-occurrence of any Force Majeure Event. Change orders and other changes to the scope of the Services will affect the time necessary for completion. The Company shall not be liable for any damages suffered by Customer because of any delay occasioned by these contingencies or a resulting from changes to the Services requested by the Customer. Further, Contractor will not be held liable for failure, delays or damages caused by a Force Majeure Event.
7. CONFIDENTIALITY: In consideration of the Company selling the Services, Customer shall keep confidential and not disclose to any persons or use any confidential and/or proprietary knowledge, information or materials, relating to the Company’s business, including, without limitation, customer names, customer supplied information, pricing, quantities, business and marketing plans and strategy, processes and trade secrets for so long as permitted by applicable law. Additionally, the use of the Company’s name or logo or other proprietary marks in any advertisement or other publication by Customer must be preapproved in writing by the Company.
8. WARRANTIES AND REMEDIES: The Company represents, warrants, and covenants that the Company shall perform all Services in accordance with the material specifications set forth in the Price Quote. Customer’s exclusive remedy, if any, under this warranty is limited to a refund of the Customer’s purchase price. EXCEPT AS SET FORTH HEREIN, THE COMPANY MAKES NO OTHER WARRANTIES, WRITTEN OR ORAL. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE HEREBY SPECIFICALLY DISCLAIMED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. Customer acknowledges that it does not rely on, and waives any claim for breach of, any representations and warranties which are not confirmed in writing by the Company.
9. LIMITATION OF LIABILITY: The total liability of the Company to Customer from any cause whatsoever, whether arising under contract, warranty, tort (including negligence), strict liability, products liability or any other theory of liability will be limited to the lesser of (i) Customer’s actual damages or (ii) the purchase price paid to the Company for the Service(s) that is the subject of Customer’s claim. THE COMPANY SHALL NOT HAVE ANY LIABILITY OR OBLIGATION TO CUSTOMER OR ANY OTHER PERSON FOR ANY CLAIM, LOSS, DAMAGE, OR EXPENSE CAUSED IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, BY THE INADEQUACY OF ANY SERVICES FOR ANY PURPOSE, BY ANY DEFICIENCY OR DEFECT IN ANY SERVICE, BY THE USE OR PERFORMANCE OF ANY SERVICES OR BY ANY FAILURE OR DELAY IN THE COMPANY’S PERFORMANCE HEREUNDER, OR FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY OR LOSS OF BUSINESS OR PROFIT, WHETHER OR NOT CUSTOMER WILL HAVE INFORMED THE COMPANY OF THE POSSIBILITY OR LIKELIHOOD OF ANY SUCH DAMAGES. All claims hereunder against the Company must be brought within 12 months after the cause of action arises and Customer expressly agrees to this 12-month period and waives any other statute of limitations which might apply by operation of law or otherwise including under the Uniform Commercial Code.
10. INTELLECTUAL PROPERTY: Any software or other intellectual property included in or relating to Services is supplied by its manufacturer or licensor. The Company makes no representation or warranty with respect thereto and will have no liability in connection therewith. Customer agrees to comply with all requirements regarding proprietary and similar rights in and to any intellectual property (including any requirement to enter into a separate license agreement and prohibitions against duplicating or disclosing the same), even if the Company has broken the seal on any “shrink wrapped” software.
11. INDEMNIFICATION: Customer agrees to indemnify, defend, and hold harmless the Company, and its members, managers, employees, agents, and affiliates, from all damages, liabilities, costs, losses, or expenses arising out of or related to any claim, demand, or action by a third party arising out of any breach of Customer’s responsibilities or obligations, representations or warranties under the Price Quote and these Terms and Conditions. Under such circumstances the Company shall promptly notify Customer in writing of any claim or suit. Further (a) Customer has sole control of the defense and all related settlement negotiations; and (b) the Company provides Customer with commercially reasonable assistance, information and authority necessary to perform Customer’s obligations under this section. Customer will reimburse the reasonable out-of-pocket expenses incurred by the Company in providing such assistance.
12. INDEPENDENT CONTRACTORS: Nothing contained in the Price Quote, or these Terms and Conditions shall be construed as creating a partnership or joint venture between the Company and Customer, and Customer shall always be deemed to be an independent contractor, solely responsible for the manner by and the form in which it fulfills the Price Quote.
13. ASSIGNMENT: The Price Quote and these Terms and Conditions may not be transferred or assigned in whole or in part by Customer without the prior written consent of the Company. Such consent shall not relieve Customer of its obligations and liabilities hereunder.
14. SEVERABILITY: The invalidity or unenforceability of any provision contained herein shall not affect the validity or enforceability of any other provision hereof. Any invalid or unenforceable provision shall be deemed severed from the Price Quote and these Terms and Conditions to the extent of its invalidity or unenforceability, and the Price Quote and these Terms and Conditions shall be construed and enforced as if such documents did not contain that particular provision to the extent of its invalidity or unenforceability.
15. ADVERTISING: The Company may use both the Customer’s name and other brand identifying information and/or marks, along with any deliverables completed as part of the Services (“Deliverables”), for purposes of the Company’s promotional advertising, without payment to Customer.
16. OWNERSHIP RIGHTS:
a. Customer acknowledges that the Services may in whole or in part be created using brightly prior acquired knowledge, skill and expertise, and may include Company proprietary information and prior developed intellectual property of the Company, which the Company shall continue to own and have an unrestricted right to use for other purposes. To the extent that such Company prior developed and proprietary materials are included in the Services, Customer, shall have a perpetual, non-exclusive license to use the proprietary materials as part of the Services, such that Customer may copy and disseminate the Deliverables and create derivative works therefrom, as appropriate and as required by Customer. The Company shall have no continuing proprietary interest in the Deliverables, except as stated herein. The Company may retain archival copies of the Deliverables for the Company’s internal use, and nothing herein shall prevent the Company from continuing to use the Company’s information, knowledge, skill and/or expertise for other purposes.
b. Upon payment in full for all of the Services under a Purchase Quote, the Company agrees that all Deliverables, which means and includes all materials developed, generated, or produced by the Company pursuant to a Purchase Quote, shall be owned by and shall be the exclusive property of Customer for use as a contribution to a collective work, and considered a "WORK MADE FOR HIRE" as that term is defined for copyright and other purposes.
c. Upon payment in full for all the Services under a Purchase Quote, the Company hereby assigns all copyrights, patents, service marks, trademarks, and all other intellectual property rights of Deliverables, finally and irrevocably to Customer, and the Company agrees to execute all documents necessary to accomplish such assignment and/or to allow Customer to register any patent, service or trademark, or copyright arising from the Services.
17. GOVERNING LAW: The Price Quote and these Terms and Conditions shall be governed by the laws of the State of Michigan, without regard to the conflicts of laws rules of such jurisdiction. Customer and the Company hereby irrevocably and unconditionally waive, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of venue of any suit, action, or proceeding arising out of or relating to these Terms and Conditions or any Price Quote in the State and Federal Courts sitting in Grand Rapids, Kent County, Michigan. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
18. MISCELLANEOUS PROVISIONS: These Terms and Conditions, together with the Price Quote and all schedules, attachments and documents incorporated herein and therein, shall constitute the entire agreement between the parties. The failure of either party at any time to require performance by the other party of any provision of this agreement shall in no way affect the right to require such performance at any time thereafter, nor shall the waiver of either party of a breach of any provision of this agreement constitute a waiver of any succeeding breach of the same or other provision. The Company is entitled to recover, and Customer shall pay, all costs, expenses, and legal fees incurred by the Company in enforcing the Price Quote and/or these Terms and Conditions. Any notices provided for in the Price Quote and/or these Terms and Conditions shall be given in writing and transmitted by personal delivery or prepaid first class registered or certified mail.