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Terms of Agreement
This Agreement ("Agreement") is entered into between Elfring Fonts Inc. having a place of business at 2020 Dean St, Unit N, St Charles, IL 60174, USA (hereinafter referred to as "Elfring") and you, the customer (hereinafter referred to as "Customer" and as further defined below). Whereas Customer is engaged in the business of developing, marketing, or distributing computer software, video, or audio content developed on its own and Customer would like Elfring to produce customized CDs or DVDs on its behalf, now therefore, the parties hereby agree as follows:/n1. Terms and Definitions/n a) "Customer" shall refer to the person, organization or authority contracting with Elfring to provide the services described herein. b) "Services" shall refer to CD or DVD duplication, and/or fulfillment services as further described in this Agreement. c) "Finished Product" refers to duplicated and/or labeled CD or DVD Media which may or may not contain software or recording content provided and by the Customer. d) "End User" shall refer to the person, organization, or authority to which the Finished Product is shipped. e) "Order List" shall refer to a list of addresses, or addresses and customized serial numbers or registration codes, that Customer sends to Elfring containing delivery addresses for Customer's Finished Product. 2. Description of Services Elfring shall provide media duplication, fulfillment services, and CD labeling on media based on orders received from the Customer. 3. Customer Responsibilities a) The Customer submitting software or recordings to Elfring for duplication and/or order fulfillment warrants that they are either the copyright owner of the software or recording and have the unrestricted right to sell it, or that they are distributing it for sale with the knowledge and permission of the software or recording's copyright owner. Customer further warrants that the software or recordings were created legally, in accordance with United States and International copyright statutes. b) Customer shall supply Elfring with a master CD of the Finished Product, which Elfring will use to duplicate the software. Customer will notify Elfring, at least five (5) business days prior to shipping a new or updated master CD of the Finished Product to Elfring. c) Customer shall supply Elfring with text and graphics for the product CD label. Customer will notify Elfring, at least five (5) business days prior to sending new or updated graphics or text for the CD label. d) The Customer hereby grants a sublicense to Elfring to: 1) Copy, reproduce and distribute all content, including label graphics and text, supplied by the Customer for the purpose of fulfilling Customer orders or Customer duplication activities. 2) Copy, reproduce and distribute any trademarks and service marks relating to content supplied by the Customer for the purpose of fulfilling Customer orders. 3) Ship the Finished Product to End Users 4) Customer shall indemnify and hold Elfring harmless in the event of any violation, allegation or claim of violation of any copyright laws arising out of this agreement and the Services provided by Elfring in support of the Customer. All legal fees including attorney fees in this regard shall be borne by the Customer. 5) Customer shall indemnify and hold Elfring harmless in the event of any violation, allegation or claim of violation of any US export laws arising out of this agreement and the Services provided by Elfring in Support of the Customer. Each time an order is placed for shipment to an End User, the Customer automatically warrants that the End User is a legal recipient of the order, and of the order content. All legal fees including attorney fees in this regard shall be borne by the Customer. 6) Elfring shall not be responsible for production of any outdated software and/or content. 7) Customer confirms that content transferred to Elfring shall not include obscene, pornographic, or hate-based materials. 8) Customer agrees to take all reasonable precautions to insure that content transferred to Elfring is free from viruses and Trojan programs. 9) Customer shall be the point of interface with the End User, and shall provide all End User customer services including without limitation, taking orders, billing, collection, complaints, returns, etc. 4. Elfring Responsibilities Elfring shall have the following responsibilities: a) Elfring shall receive and maintain a master copy of the Finished Product supplied by the Customer. b) When Elfring receives an Order List, Elfring, shall within 3 business days (Monday through Friday, not including United States national holidays), compile, reproduce and ship the content specified by the Customer for an End User on a CD. Orders received on a holiday, Saturday, Sunday, or after 10 AM Central Standard Time will be processed the following business day. 5. Proprietary Rights The Customer's rights in, and title to any computer software or recording provided to Elfring by the Customer for distribution hereunder shall remain with the Customer. Title to software, business methods, technology, technical documents and other similar items which are owned and/or were developed by Elfring and which may be used by Elfring in conjunction with services provided in this Agreement, shall remain the property of Elfring. 6. Notices All notices required to be given pursuant to this Agreement shall be deemed to have been adequately delivered to the party to whom directed when delivered to said party either by hand, in person, by U.S. Postal Service, Certified Mail, return receipt requested, or by email. If such delivery is made in person, it shall be effective as of the date of physical delivery. If such delivery is made by Certified Mail, it shall be effective as of the date of delivery or first attempted delivery as evidenced by return receipt provided by the U.S. Postal Service. If such delivery is made by email, it shall be effective as of 24 hours after the date of electronic delivery. NOTICES SHALL BE ADDRESSED AS LISTED ON THE FINAL PAGE OF THIS AGREEMENT. 7. Fees a) The fees for services provided under this Agreement shall be at Elfring's then current standard rates as specified on the Elfring cd-ship.com web site; such rates are subject to change by providing a 30 day notice, either in writing or in email, to the Customer. Invoices shall be due and payable within 15 days of receipt. b) Elfring may, at its sole option, suspend its performance hereunder or immediately terminate this Agreement, should Customer become delinquent in the payment of any invoice from Elfring, provided Elfring has provided written or email notice of such delinquency and not received payment within 5 business days of such notification. c) Charges are exclusive of all sales, use, and like taxes. Customer shall pay or reimburse Elfring for all such taxes. d) Elfring shall charge Customer for all or any fees incurred as a result of Customer's special shipping request. e) Elfring may, at any time, require the Customer to provide evidence of its having paid the required fees. 8. Warranty a) Elfring warrants all services provided herein will be performed in a good, workmanlike manner. Elfring will perform these services with qualified personnel at all times. The software and/or recordings are expressly excluded from this warranty. b) The exclusive warranties and remedies provided herein shall not apply to damages or deficiencies resulting from accident, disaster, modifications, alteration, misuse, tampering, negligence, improper maintenance, or abuse by anyone other than Elfring. 9. Disclaimer of Warranty Except for the express warranty stated above, Elfring and any affiliate thereof grant no other warranties, either expressed or implied, including any implied warranties of merchantability and fitness for a particular purpose. The stated express warranties and remedies provided for breach thereof, are in lieu of all other liabilities or obligations of Elfring and any affiliate thereof (whether such liabilities or obligations would arise under this Agreement or otherwise by operation of law) for damages arising out of or in connection with the delivery, use or performance of the Services. 10. Limitation of Liability a) Notwithstanding anything contained herein to the contrary, Elfring's cumulative liability resulting from any damage(s), cost, expenses, penalties, losses (or related items) that Elfring acknowledges under the Agreement shall be limited to one hundred dollars, and the Customer undertakes to bear all claims, liabilities, costs and expenditures in excess of the above limit without being entitled to claim against Elfring; the Customer further undertakes to ensure that its insurers waive any claims against Elfring in excess of this amount. b) In no event shall Elfring be liable for any consequential, incidental, indirect, or special damages, including without limitation loss of profits, or data, which may arise in connection with this Agreement, even if Elfring has been advised of the possibility of such damages. 11. General a) If any provision or provision within a provision in this Agreement is found void, invalid, or unenforceable, it will not affect the validity of the balance of this Agreement, which shall remain valid and enforceable according to its terms. b) Should any portion or portions of this Agreement be deemed illegal or unenforceable by a court of competent jurisdiction, then that portion or portions so deemed, and only that portion or portions shall be declared null and void. However, the remainder of this Agreement shall remain in full force and effect and shall be binding upon both parties hereto. c) Neither Developer or Distributor shall be deemed in default if its performance or obligations hereunder are delayed or become impossible or impractical by reason of any act of God, war, fire, earthquake, strike, sickness, accident, civil commotion, epidemic, act of government, it agencies or officers, or any other causes beyond their control. d) Except as to any issue involving payment or non-payment of any fees or charges due hereunder, in the event there arises a dispute between the parties as to the interpretation or performance of any of the provisions of this Agreement or as to any other matters arising out of or otherwise related to this Agreement (including default and termination), then the parties shall consult together in good faith to find a mutually agreeable resolution thereof. If the parties are unable to arrive at a resolution by such consultations within 30 days of the date such an issue is notified by one party to the other, then the dispute shall be finally settled under the expedited rules of arbitration of the American Arbitration Association by three arbitrators knowledgeable with respect to the subject matter of the dispute (the parties agree that there shall be no discovery, except that there shall be an exchange of exhibits and a brief description of the testimony each side proposes to offer). The arbitral award shall be in writing and shall be final and binding on the parties, and the judgment may be entered upon the award in any Court of competent jurisdiction or having jurisdiction over the parties or their assets. The parties expressly waive and forego any right to punitive, exemplary or similar damages as a result of any controversy or claim arising out of, relating to, or in connection with this agreement, or the breach, termination or validity thereof. The laws of the State of Illinois shall govern this Agreement. e) Notwithstanding the obligation to arbitrate disputes, the parties agree that any breach of this Agreement may result in irreparable harm to one or the other party, for which damages would be an inadequate remedy, and therefore, in addition to the rights and remedies otherwise available at law, the parties shall be entitled to seek equitable relief, including an injunction to restrain the breaching party, or any director, officer, employee, partner, agent, servant or other individual through whom the breaching party may be acting, from any further or continued breach of this Agreement. f) Either party may terminate this Agreement, without cause, by providing 30 days prior written notice to the other party. In the event of such notice to terminate, this Agreement shall immediately become null and void. g Customer may not assign, sell, pledge, syndicate, transfer, mortgage, hypothecate, or otherwise encumber the rights assigned in this Agreement. h) Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, or employment relationship between the parties hereto, it being understood that Elfring and Customer are independent contractors vis-a-vis one another. Except as specified herein, neither party shall have the right, power, or implied authority to create any obligation or duty, expressed or implied, on behalf of the other party hereto. 12. Complete Agreement All parties agree that this Agreement is the complete and exclusive statement of the agreement between the parties and supersedes any proposal or prior agreement, oral or written, and any other communications between the parties relating to the subject matter of this Agreement.
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