Version: May 2016
IMPORTANT – PLEASE READ CAREFULLY: THE PURCHASE OF CINEBODY PRODUCTS IS SUBJECT TO THE AGREEMENT BELOW. BY PURCHASING CINEBODY PRODUCTS YOU WILL BE DEEMED TO HAVE ACCEPTED THE TERMS OF THIS AGREEMENT UNLESS YOU RETURN THE PRODUCTS TO CINEBODY IN UNUSED CONDITION WITHIN TEN (10) DAYS OF RECEIPT PURSUANT TO THE RETURN PROCEDURE SET FORTH IN SECTION 12, BELOW. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, DO NOT USE THE PRODUCTS PURCHASED AND RETURN SUCH PRODUCTS TO CINEBODY AS SO PROVIDED.
- These are the terms and conditions (“Terms”) under which Super 6, LLC, d/b/a Cinebody (“Cinebody”) sells its off-the-shelf catalog products (“Catalog Product”) and products manufactured according to Customer’s specifications, including bulk and custom manufacturing (“Custom Product”). Catalog Product and Custom Product are collectively referred to herein as “Product” unless otherwise specified. These Terms apply to any person or entity purchasing or otherwise receiving Product directly or indirectly from Cinebody or a Cinebody affiliate or distributor, on behalf of such person or entity and each individual who is given access to the Product (“Customer”). These Terms apply to any order for Product regardless of the mode of ordering (e.g., Internet, electronic, e-mail, telephone, facsimile) utilized to effect purchase or transfer of Product (“Order”). The sole exception to the applicability of these Terms is the existence of an Inter-Company Agreement (as set out in Section 2) at the time an Order is received for Product covered by the Inter-Company Agreement.
- Certain Product may be subject to third-party intellectual property licenses, software licenses or other contract terms that Customer will not find here (“Supplemental Terms”). If such Supplemental Terms exist for Products being purchased, those terms will be found in a product insert or written agreement that accompanies or is associated with the Product. Supplemental Terms flow down to any end-user and apply in the case of authorized or unauthorized use of Product by Customer or any other end-user. If Customer is uncertain if any Supplemental Terms exist for Product, Customer should contact Cinebody’s Customer Service at firstname.lastname@example.org.
- Customer’s Order for Product is Customer’s agreement to be bound by these Terms and any Supplemental Terms, unless Customer returns the Product as described at the start of these Terms. An Order accepted by Cinebody, these Terms, and any Supplemental Terms are collectively referred to herein as an “Agreement”.
Exclusive Terms of Sale and Transfer.
- The Agreement comprises the entire agreement between Customer and Cinebody regarding Product and supersedes and replaces any previous course of dealing, trade usage, and any previous agreements between Customer and Cinebody (whether written or oral), unless there is an applicable Inter-Company Agreement. Any additional, different or conflicting terms that Customer may provide or appearing in or referenced in Customer’s Order or other purchase or confirming document, whether or not such would materially alter any Agreement, are material alterations which Cinebody expressly objects, and are not terms of any Agreement to which Cinebody is bound.
- Cinebody reserves the right to prospectively change these Terms at any time. Any change to these Terms will not apply to an Agreement for any Order Cinebody received before the change is in effect. The most recent revision date can be found at the start of these Terms.
- Cinebody, in its sole discretion, may from time-to-time enter into a separately negotiated written agreement executed by a duly authorized representative of Cinebody for the supply of certain Product with terms different or in addition to these Terms (“Inter-Company Agreement”). The terms of any Inter-Company Agreement only apply to Orders as of the effective date of the Inter-Company Agreement and only apply to Orders of Product covered by the Inter-Company Agreement.
Cinebody provides several methods for submitting Orders for Product, including through its website and by telephone. For specific information on how to place an order, please visit Cinebody online at http://shop.cinebody.com. An Order will set forth the identification and quantity of the desired Product(s) and, if applicable, Custom Specifications for Custom Product. Customer must provide and maintain complete and accurate contact and billing information; failure to do so may result in Order processing delays or cancellation. Customer’s purchase of Product is expressly conditioned on Customer's agreement to this Agreement. All Orders are subject to Cinebody’s acceptance in accordance with Section 5. Written confirmation of an Order by Cinebody is not required.
Cinebody typically responds to and processes Orders within twenty four (24) hours. Customer may not cancel or change an Order once the Order has been packaged except on a case-by-case basis with written acknowledgment by Cinebody and, in any case, Customer may not cancel or change an Order after shipment of such Order. Orders that are not cancellable may, however, be eligible for return according to Section 12. Custom Product Orders are not eligible for cancellation after twenty four (24) hours from Cinebody’s receipt of an Order.
All Orders are subject to acceptance by Cinebody either in writing or by shipping Product. Cinebody may accept any Order in whole or in part. Cinebody reserves the right to refuse or cancel an Order for any reason, including limitations on quantities available, inaccuracies in ordering or billing information, errors in Product or pricing information, or any other potential problem identified by Cinebody. Cinebody will contact Customer if any portion or all of an Order is canceled or if additional information is required to accept the Order; on the condition that Customer has provided e-mail contact information at the time of Order.
Shipping and Delivery.
- Shipments are made in accordance with Cinebody’s standard commercial practices via a common carrier selected by Cinebody. Cinebody does not assume any liability in connection with the shipment, nor will the carrier be construed to be an agent of Cinebody. Shipment schedules are estimates only. Cinebody may suspend or delay shipment or cancel an Order at any time pending receipt of adequate assurances of Customer’s ability to pay, including full or partial prepayment or payment of any outstanding amounts owed. Cinebody shall not be liable for any damages or penalties for delay in shipment or delivery, cancellation of an Order, or for failure to give notice of delay or cancellation for any reason.
- All Products are delivered FOB Cinebody’s facility. Risk of loss for all Products transfers to Customer upon Cinebody’s placement of the Product with the carrier. Customer shall pay or reimburse Cinebody for all transportation, freight, insurance, loading, packaging and handling charges (“Delivery Charges”); sales, use, excise, import, privilege or any similar tax or duty levied by any government (“Taxes”), and storage and all other charges applicable to shipment and delivery of the Product. Partial deliveries are permissible. Customer’s rejection of any Product does not shift the risk of loss until the Product is returned to Cinebody pursuant to Section 12.
Title to Product (excluding Cinebody’s intellectual property rights therein) transfers to Customer upon payment in full, subject to any limitations provided in these Terms and any Agreement.
The price of Catalog Product is Cinebody’s standard U.S. list price in effect on the date the Order is received, unless otherwise agreed to in writing by Cinebody. Custom Product are priced by quotation. All prices are subject to change without notice for purposes of any future Orders. Prices of Product do not include Delivery Charges, Taxes, or storage fees and all other charges applicable to shipment and delivery of applicable to the Product. These charges will be added to Customer’s invoice (which includes electronic Order checkout webpages when used in lieu of a traditional invoice).
Sales tax will be added when shipping to jurisdictions where Cinebody is responsible for collecting sales tax unless the receiving party has valid exempt information on file with Cinebody. Customer is solely responsible for any other applicable Taxes and agrees to indemnify Cinebody for any such Tax if not properly paid by Customer. Customer is responsible for confirming and providing any applicable valid exemption documents. Customer must contact Cinebody to correct or update its account information and to note any updates to this effect on applicable Orders.
Customer shall pay for all Product ordered by Customer pursuant to an Order accepted by Cinebody. Customer shall pay the prices specified in the applicable invoice. Payment becomes due upon placement of an Order and, unless upfront payment is required by Cinebody, must be made no later than 30 days after the date of invoice. Payment must be made in U.S. Dollars. If Customer is late in making payment, Cinebody may, without affecting any other rights or remedies, suspend shipment, cancel Orders, reject future Orders, and/or charge interest as a late payment fee. Interest accrues from the due date until paid, at the rate of one and a half percent (1.5%) per month (18% per year) or such lesser amount as is the maximum rate of interest allowed by law. Customer shall pay any and all reasonable costs, including attorneys’ fees, incurred by Cinebody in collecting any delinquent balance.
Within ten (10) days after Customer’s receipt of a Product shipment, Customer shall inspect the condition, quantity and identity of the Product received. Product that is non-conforming based upon the visible condition upon delivery, the quantity or identity of Product received, or as a result of duplicate shipments (“Non-conforming Shipment”) may be eligible for return in accordance with Section 12.
- Product may be eligible for return by Customer at Cinebody’s discretion and in accordance with the requirements of this Section. For all returns, a return authorization must be obtained from Cinebody’s Customer Service (“Return Authorization”), and Customer shall follow any other reasonable instructions provided by Cinebody. Cinebody will not accept returns, and no replacement or credit will be issued or invoice canceled, without a Return Authorization. If requested by Cinebody, Customer shall make Product available for inspection by Cinebody or its agent. Custom Orders are not eligible for return. Claims for Non-conforming Shipment must be made in writing to Cinebody within ten (10) days following receipt of Product and Product returned as set forth below in Sections 12(b) and 12(c) as applicable. Claims for Product that do not conform to the Limited Warranty set forth in Section 15 (“Non-conforming Product”) must be made, and Product returned, in accordance with the terms of the Limited Warranty set forth below. If Customer does not accept these Terms, claims must be made in writing to Cinebody within ten (10) calendar days following receipt of Product and Product shall be returned as set forth below in Section 12(d).
- In the case of error by Cinebody in fulfilling an Order, return of Product of Non-conforming Shipment is at Cinebody’s cost and Cinebody at its sole discretion will replace the Product of Non-conforming Shipment or issue a full credit. Product of Non-conforming Shipment due to Cinebody error must be returned within ten (10) days of receiving a Return Authorization in the original packaging, unopened and unused. This remedy is Customer’s sole and exclusive remedy and Cinebody’s sole and exclusive liability for claims of Non-conforming Shipment due to Cinebody error and is in lieu of all other remedies or claims for damages which Customer may have against Cinebody.
- In the case of error by Customer in ordering Product, return of Non-conforming Shipment is at Customer’s cost and may be eligible for partial credit at Cinebody’s sole discretion. Cinebody does not issue full credit for returned Product of Non-conforming Shipment due to Customer error because Product is perishable and Cinebody cannot be assured of the quality of returned Product. Partial credit is based on the invoiced price of returned Product less (i) a return charge in the amount of 10% of the invoiced price and (ii) the original Delivery Charges. Certain Product as determined by Cinebody may not be eligible for partial credit due to packing and storage requirements to maintain Product stability that cannot be assured during the return process, or the condition of the returned Product. Product of Non-conforming Shipment due to Customer error must be returned within ten (10) days of receiving a Return Authorization in the original packaging, unopened and unused. Customer is responsible for return shipping costs. This remedy is Customer’s sole and exclusive remedy and Cinebody’s sole and exclusive liability for claims of Non-conforming Shipment due to Customer error and is in lieu of all other remedies or claims for damages which Customer may have against Cinebody.
- In the case that Customer does not accept these Terms and Product is returned in accordance with this Section 12(d), Cinebody will cancel the invoice for such Product, or if the applicable invoice has been paid by Customer, Cinebody will issue a full refund. Product must be returned within ten (10) days of receiving a Return Authorization in the original packaging, and unused. Customer is responsible for return shipping costs. This remedy is Customer’s sole and exclusive remedy and Cinebody’s sole and exclusive liability for Product returned due to Customer disagreement with these Terms and is in lieu of all other remedies or claims for damages which Customer may have against Cinebody.
Cinebody, in its sole discretion, may accept or reject a request to manufacture Custom Product. Customer’s placement of an Order for Custom Product is Customer’s agreement, representation and warranty that (i) Customer has all necessary rights and authority to disclose and provide to Cinebody all materials, information, designs, plans and specifications for such Custom Product (“Custom Specifications”) for use in manufacture of such Custom Product for Customer, (ii) Customer hereby grants to Cinebody any necessary rights to manufacture such Custom Product, (iii) there are no defects or hazards, latent or otherwise, with respect to the Custom Specifications, (iv) Cinebody’s receipt and use of Custom Specifications and manufacture of such Custom Product for Customer and/or sale of such Custom Product to Customer does not infringe or misappropriate any intellectual property right of a third party, and (v) the manufacture and sale of such Custom Product complies with all applicable laws and regulations. Customer is solely responsible for all Custom Specifications. If Cinebody makes a suggestion with respect to the Custom Specifications at Customer’s request or otherwise, Customer remains solely responsible for proper selection, application, processing and use of any Cinebody suggestion to the Custom Specifications. Cinebody, in its sole discretion, may accept or reject change requests submitted by Customer and Customer shall pay all incurred and additional costs of implementing any change requests including, without limitation, the cost of time and materials incurred prior to a change request, and the cost of fulfilling the change request.
Customer shall comply with all applicable United States laws, regulations and rules, including the Export Administration Regulations issued by the U.S. Department of Commerce.
- Cinebody warrants that each Product will be free from material manufacturing defects and will meet the specifications stated on the end user documentation included with and covering the Product, if any (“End User Documentation”) when used appropriately under normal conditions (“Limited Warranty”). The Limited Warranty extends twelve (12) months after the Product shipment date (“Warranty Period”). If changes in the physical criteria of any Product are made, the description in the End User Documentation provided with the Product will supersede the information contained in the Cinebody Product catalog.
- The Limited Warranty does not cover issues caused by any other reason, including but not limited to normal wear and tear, acts of God, misuse, limitations of technology, custom manufacture in accordance with Custom Specifications, neglect or accident, contact with improperly used or unapproved liquids or environments, modification to the Product, or combination of Product with any other product unless expressly intended by the End User Documentation. The Limited Warranty also does not cover any damage to or destruction to Customer’s cellular devices and related accessories for any reason whatsoever.
- Cinebody agrees to replace Non-conforming Product free of charge or issue a credit of the invoiced price (exclusive of the original Delivery Charges) at Cinebody’s sole discretion. Customer shall notify Cinebody in writing of any Non-conforming Product and provide the reason for rejection within the Warranty Period. Any claims not received within the Warranty Period are waived and released. Customer shall return the Non-conforming Product pursuant to Section 12(a). This remedy is Customer’s sole and exclusive remedy and Cinebody’s sole and exclusive liability for claims of Non-conforming Product. This remedy is in lieu of all other remedies or claims for damages which Customer may have against Cinebody.
- THE LIMITED WARRANTY AND STATED REMEDIES ARE SOLE AND EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND REMEDIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, CINEBODY EXPRESS DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. CINEBODY’S LIMITED WARRANTY EXTENDS ONLY TO THE ORIGINAL PURCHASING CUSTOMER AND CANNOT BE TRANSFERRED TO ANY OTHER PARTY.
LIMITATIONS ON LIABILITY.
IN NO EVENT WILL CINEBODY BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, INDIRECT OR EXEMPLARY DAMAGES OF ANY KIND, OR LOST PROFITS OR REVENUE, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT CINEBODY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
NOTWITHSTANDING THE EXCLUSIVE REMEDIES SET FORTH IN SECTION 12 AND SECTION 16 WHICH APPLY TO THE SUPPLY OF PRODUCT, CST’S TOTAL LIABILITY TO CUSTOMER ARISING FROM OR IN RELATION TO THESE TERMS, AN AGREEMENT BETWEEN THE PARTIES, OR PRODUCT, WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE WILL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO CINEBODY DURING THE TWELVE (12) MONTH PERIOD PRECEDING A CLAIM FOR THE APPLICABLE PRODUCT GIVING RISE TO THE CLAIM. IN NO EVENT WILL CINEBODY BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS.
Customer shall hold harmless, indemnify and (at Cinebody’s request) defend Cinebody for any and all damages, liabilities, costs and expenses (including any costs of litigation, including, without limitation, attorneys’ fees and any other costs and expenses), fines or losses in connection with any threatened or actual claims, actions, demands, investigations or suits, including, without limitation, claims or suits by third parties, arising out of any of the following: (a) Customer’s negligent or willful acts, or those of its employees and/or agents, (b) repair or modification of Product by persons other than Cinebody, (c) modification of Product or combination of Product with any other product, including, without limitation, modification or combination resulting in the actual or alleged infringement of any intellectual property rights of any third party, (d) Customer’s selection, application, processing and use of Product, (e) Cinebody’s use of Custom Specifications for manufacture of Custom Product, including, without limitation, actual or alleged infringement of any intellectual property rights of any third party, (f) from the manufacture, sale, transfer or use of Product produced by Cinebody according to Customer’s Custom Specifications, including actual or alleged infringement of any intellectual property rights of any third party, (g) any violations of export control laws by Customer, or (h) Customer’s breach of any of these Terms.
“Confidential Information” means all of Cinebody’s business information, specifications and all related writings, drawings, designs and similar works or any other information which is disclosed by Cinebody to Customer and labeled or marked as confidential, proprietary or its equivalent, or oral or visual information that is designated confidential, proprietary or its equivalent at the time of its disclosure. All Confidential Information is the exclusive property of Cinebody, and Cinebody retains all of its rights, title and interests. Customer agrees to use Confidential Information for the exclusive purpose of performing under any Agreement. Customer shall not disclose or provide any Confidential Information to any third party and shall take all necessary measures to prevent any such disclosure by its employees, agents, contractors or consultants. Upon request of Cinebody, Customer shall return all Confidential Information to Cinebody.
- Customer acknowledges that all intellectual property rights (patent, trademark, copyright, trade secret or otherwise) relating to Product and End User Documentation, as between Customer and Cinebody, are solely and exclusively owned by Cinebody. Cinebody’s sale or transfer of Product to Customer grants to Customer a limited non-transferable right (i) to use as authorized by these Terms the quantity of Product purchased under an Agreement, and (ii) to use the applicable End User Documentation and content contained therein (e.g., protocols, validation data and images) for Customer’s authorized use of the Product. Except as expressly permitted by these Terms sale or transfer of Product to Customer does not grant Customer any other license rights to Cinebody’s intellectual property, including, without limitation, no right to make or have made any Product or any portion thereof, and no right to reproduce, display, redistribute copies, create derivative works or otherwise use the End User Documentation and content thereof. Any use of Product for diagnostic, prophylactic or therapeutic purposes, or any purchase of Product for resale (alone or as a component) or other commercial purpose, requires a separate license from Cinebody. It is Customer’s sole responsibility to secure any required intellectual property rights.
- Cinebody shall solely own all right, title and interest in and to any inventions (patentable or otherwise), discoveries, improvements, data, know-how or other results that are conceived, developed, discovered, reduced to practice, or generated by Cinebody in performing under an Agreement and all intellectual property rights therein (“Inventions”). Customer hereby irrevocably assigns and transfers to Cinebody, from the moment of creation, all of its rights, title and interests in and to Inventions and shall assist Cinebody, at Cinebody’s request and expense, in securing and recording Cinebody’s rights in Inventions.
Cinebody shall not be liable for any failure to perform under any Agreement when such failure is due to circumstances beyond its control. Circumstances beyond the control of Cinebody include, without limitation, acts of God, governmental action, accidents, labor trouble, and inability to obtain materials, equipment or transportation.
No oral statements, recommendations and assistance given by a Cinebody representative or authorized distributor of Cinebody to Customer or its representatives in connection with the manufacture, supply or use of Product constitute a waiver by Cinebody of any of the provisions hereof, or affect Cinebody’s liability herein. Cinebody’s failure to exercise any rights under any Agreement is not a waiver of it rights to damages for Customer’s breach of contract and is not a waiver of any subsequent breach.
Governing Law, Forum, Venue and Consent to Jurisdiction.
These Terms, the purchase, sale and transfer of Product, and any dispute or controversy relating to any Agreement are (a) governed and construed according to the laws of the State of Colorado, without regard to provisions on the conflict of laws, and (b) subject to the exclusive jurisdiction of the state and federal courts seated in Denver, Colorado. Customer irrevocably submits to the personal jurisdiction of such courts. Customer agrees not to raise any objection at any time to forum non conveniens and irrevocably waives the right to object to the jurisdiction of the state and federal courts seated in Denver, Colorado. The United Nations Convention on Contracts for the International Sale of Goods does not apply to any Agreement. ANY CAUSE OF ACTION BROUGHT BY CUSTOMER ARISING OUT OF OR RELATING TO THESE TERMS OR ANY AGREEMENT, OR TO PRODUCT RECEIVED FROM CINEBODY, ITS AFFILIATES AND ITS DISTRIBUTORS MUST BE BROUGHT WITHIN ONE YEAR AFTER SUCH CAUSE OF ACTION AROSE. Actions not commenced by Customer within one year are permanently barred. This Section survives expiration or termination of any Agreement.
All provisions of these Terms regarding warranty, confidential information, indemnification, liability, governing law, forum, venue, jurisdiction, and any other provisions that survive by their terms will survive any termination or expiration of any Agreement pursuant to their terms. If any term of this Agreement is determined to be invalid or unenforceable for any reason, it shall be adjusted rather than voided, if possible, to achieve the intent of the parties to the maximum extent possible. In any event, all other terms and provisions shall be deemed valid and enforceable to the maximum extent possible. Customer and Cinebody are independent contractors under this Agreement. Customer may not assign, including by operation of law, its obligations under these Terms or any Agreement without Cinebody’s prior written consent.