1. Agreement. All sales by Hellman Production, Inc., or any subsidiary or affiliate thereof, (collectively, “Company”) to the customer (“Cus- tomer”) listed in this Services Agreement (this “Agreement”) shall be exclusively governed by the provisions contained in this Agreement. Spe- cial conditions contained on Customer’s order forms that are at variance with or in addition to the terms and conditions contained herein are not binding upon Company or Customer. Customer’s execution of this Appli- cation constitutes Customer’s acknowledgement and acceptance of the terms and conditions of this Agreement in full.
2. Terms of Payment. Customer shall pay to Company the amount stated on the front of the invoice in the box marked “Total”. In addition, Customer is responsible for the ultimate payment of all taxes, including, without limitation, sales and use taxes, stamp charges, licenses, duties and government exactions by whatever name that may be assessed or levied on account of the goods purchased by Customer (“Goods”). Any amount unpaid after thirty (30) days form the date of the invoice shall accrue inter- est at a rate of the lesser of (a) eighteen percent (18%) per annum, or (b) the highest amount permissible by law. Payments are to be made pay- able and addressed directly to the Company. In the event that an order is cancelled, the Company reserves the right to charge for services rendered prior to receiving such notice, together with a fifteen percent (15%) can- cellation fee. Expenses incurred on behalf of the Customer are due and payable at such time that the job is cancelled. The Company reserves the right, in its sole discretion, to refuse any order.
3. Grant. Customer hereby grants and licenses to Company the non- exclusive permission to copy, display, modify, transmit, make derivative works of, and distribute the Material (defined below) for the purpose of providing the services contemplated by this Agreement.
4. Disclaimer of Warranties. Company makes an express, limited war- ranty to Customer that the Goods will be free, under normal use and ser- vice, from material defects in workmanship for a period of three (3) months from delivery to Customer. THIS LIMITED WARRANTY IS COMPANY’S ONLY WARRANTY TO CUSTOMER AND IS EX- PRESSLY IN LIEU OF ANY OTHER EXPRESS OR IMPLIED WAR- RANTIES, WHETHER BASED IN CONTRACT, TORT, STRICT LI- ABILITY OR OTHERWISE. COMPANY HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUD- ING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE OR SPECIFIED USE. Customer assumes all risk and liability in connection with the Goods.
5. Exclusive Remedy. In the event that Customer is not satisfied with the Goods (which for the purpose of this limited warranty and disclaimer of warranties and limitation of remedies shall include the Goods them- selves, all instructions, packaging, and other material relating to the Goods) for any reason, if Customer returns the Goods in their original condition (limited, reasonable wear and tear excepted) in their original packing within in three (3) months of receipt by Customer of the Goods, Company will either, at Customer’s discretion, replace the Goods with a new one or refund Customer’s payment, exclusive of a $1.00 handling fee per unit. THERE ARE NO OTHER WARRANTIES PROVIDED, EXPRESS OR IMPLIED EVEN IF AN EXCLUSIVE REMEDY FAILS OF ITS ES- SENTIAL PURPOSE.
6. Shipping Policy. All orders are priced F.O.B at our choice of manu- facturing plant and further shipment may be arranged at Customer’s ex-
pense upon Company’s prior written approval. The Company will expend commercially reasonable efforts to meet the Customer’s anticipated deliv- ery date, but the Company cannot guarantee that the Customer will receive the Goods by a specific date. All delivery dates from the Company are estimates only. The Company does not assume liability for any late deliv- eries.
7. Claims. Customer may reject all or part of the Goods, revoke its acceptance of all or part of the Goods or assert a claim or defense based on the quality of all or part of the Goods only if, with five (5) days after re- ceipt of the Goods, Customer sends to Company, by prepaid parcel post or express delivery, (a) a letter specifying the nature of the complaint, and (b) a representative sample of the Goods alleged to be defective or inferior. No charges or expenses incident to any claims will be allowed unless approved in advance and in writing by an authorized representative of Company. Compliance by the Customer with these conditions precedent shall not constitute an admission by the Company of the merits or amounts of the Customer’s claim or defense.
8. Company’s Liability. UNDER NO CIRCUMSTANCES, INCLUD- ING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL COMPANY, ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES OR REPRE- SENTATIVES BE LIABLE FOR ANY SPECIAL OR CONSEQUEN- TIAL DAMAGES OR INJURIES THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE GOODS, EVEN IF AN AUTHOR- IZED REPRESENTATIVE OF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF AN EXCLU- SIVE REMEDY FAILS OF ITS ESSENTIAL PURPOSE. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO CLIENT. THE MATERIALS AND INFORMATION RELATING TO THE GOODS ARE SUPPLIED “AS IS” AND WITHOUT WARRAN- TIES OF ANY KIND EITHER BY EXPRESS OR IMPLIED, INCLUD- ING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MER- CHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. In no event shall the Company or its suppliers be liable for any damages whatsoever (including, without limitation, special, incidental, consequen- tial, or indirect damages for personal injury, loss of business profits, busi- ness interruption, loss of business information, or other pecuniary loss) arising out of the use of or inability to use the Goods, even if the Company has been advised of the possibility of such damages. The liability of the Company and it supplies under any provision of this Agreement shall be limited to the amount actually paid by the Customer for the Goods. The Company and its suppliers do not accept any liability for any damage caused, directly or indirectly, by the use of the Goods in a manner incon- sistent with industry standards or other published operational requirements.
9. Intellectual Property Rights. The Customer represents and warrants that: (a) the Customer owns and controls, and has obtained all rights and permissions required in and to, the materials provided by Customer (in- cluding, without limitation, data, recordings, artwork and printed materials) or included at Customer’s direction (collectively, the “Materials”) in connection with the Goods; (b) the Materials will not infringe upon any trademark, copyright, contract or other rights of third parties; (c) Customer has paid, or will pay, any and all royalties or other charges to be paid pur- suant to any statute, order or other law, or any agreement; (d) the Materials do not contain matter which is libelous, defamatory, obscene, or invadesthe rights of privacy or publicity or any other rights whatsoever of any person or entity; and (e) Customer has full legal right, power and authority to permit Company to copy, reproduce or duplicate the Materials in con- nection with the Goods.
10. Customer Materials. Company shall not be liable for loss or damage to Customer’s property, including, without limitation, the Materials. Cus- tomer is responsible for insuring its property. Company reserves the right to withhold Customer’s property until the full amount is paid to Company for the Goods, including any outstanding account balance. If Customer fails to pay any invoice or account balance within six (6) months, or fails to claim its property within six (6) months after Customer’s account has been paid in full, Company may dispose of Customer’s property in any manner Company deems appropriate in its sole discretion.
11. Promotional Use of Products. The Company reserves the right to use samples of the Goods as demonstration or promotional materials and Cus- tomer grants to Company all rights necessary for such use by Company, throughout the universe in perpetuity in any and all media, whether now known or hereafter devised.
12. Non-Waiver. The Company’s failure to exercise any right or take any action permitted hereunder, or to insist upon strict performance of any provision hereof, shall not be deemed a waiver thereof or as a waiver of other rights, remedies, breaches or subsequent defaults by the Customer in the performance of or compliance with any of the terms of this Agreement. 13. Delay in Performance. Company shall not be liable for any delay in Company’s performance caused by circumstances beyond Company’s control, including without limitation, computer virus, power failure, storm, flood, act of God, fire, war, riot, government action, labor strike or lockout or other labor trouble or shortage of, or inability to obtain, material, equipment or transportation.
14. Representations and Warranties. Customer represents and warrants that: (a) Customer has the right, power and legal authority to execute and deliver this Agreement to Company and perform Customer’s obligations hereunder and that all necessary action has been taken by or on behalf of Customer to authorize and approve this Agreement, (b) Company either owns or controls any and all rights associated with the Material (including, without limitation, any privacy or intellectual property rights such as copy- right, trademark, or right of publicity, whether arising under state or fed- eral law), or has written permission from the owner of such rights to make the Material available to Company and to grant to Company the permis- sion to use the Material as described herein, (c) Customer has the right and authority to possess, use, copy, duplicate, transform and reproduce the Materials for creation of the Goods, (d) neither the Materials, nor any element thereof, nor the duplication, reproduction, copying, transformation or use of the same in any way is defamatory or violates or infringes any copyright, trademark, patent, other intellectual property right or any other right of any person or entity, wherever located, (e) the Materials are not obscene and do not otherwise violate any local, state or federal law or regulation; and (f) Customer shall pay any and all royalties, including, without limitation, royalties owed to any patent or copyright holder, with respect to the Goods, no matter when demand for payment of any such royalties are made.
15. Indemnification. Customer shall indemnify, defend, save and hold Company and its directors, officers, licensees, assigns, partners, agents, and employees harmless from any loss, liability, cost, damage, expense (including costs and attorneys’ fees, whether or not in connection with litigation), causes of actions, claims or demands arising out of or in con- nection with the Material, any breach or alleged breach by Customer of its representations, warranties or agreements hereunder, the rights granted to Company hereunder or the performance by Customer of its obligations hereunder.
16. Change Orders. Customer may, from time to time, by written change order to Company, make such changes and additions to, and/or omissions from, the Goods as it deems necessary; provided, however, that each such change and the cost for any part of the Goods affected thereby shall be subject to the mutual agreement of the parties negotiating same in good faith and acting with due diligence.
17. Entire Contract. This Agreement contains the entire understanding of the parties hereto with respect to the sale and purchase of the Goods, and no modification or waiver of these terms and conditions contained herein shall be of any force unless such modification or waiver shall be in writing and signed by the each party’s authorized representative. Customer agrees that all terms and conditions of each sale and purchase of Goods shall be the terms and conditions contained in this Agreement, and that any differ- ent, additional or conflicting terms and conditions contained in Customer’s purchase order are inapplicable and without effect. This Agreement shall be binding upon and inure to each party’s successors and assigns.
18. Severability. If any or provision of this Agreement shall be deemed to be invalid or unenforceable, such a determination shall not effect any of the remaining terms and provisions, and provisions, and all such remaining terms and provisions shall remain in full force and effect.
19. Governing Law;Consent to Jurisdiction; Waiver of Jury Trial. This Agreement shall be governed by and construed in all respects, including as to validity, interpretation and effect, in accordance with the laws of the state of California without regard to conflict of laws principles, or to inter- national or transnational laws. The parties further agree that if a dispute arises between the parties relating to this Agreement, the parties herby irrevocably submit to the exclusive jurisdiction of the courts of the state of California and the federal courts of the United States of America located in the County of Los Angeles, State of California, and hereby waive, and agree not to assert, as a defense in any action, suit or proceeding that said action, suit or proceeding may not be brought or is not maintainable in said court or that the Agreement may not be enforced by said court. Each party expressly waives the right to a jury trail as to any issues arising out of any such dispute. In the event that either party hereto should employ the ser- vices of an attorney in connection with a breach of this Agreement or the enforcement of the terms hereof, the defaulting or losing party shall pay, in addition to any other sums due hereunder, the prevailing party’s attorneys’ fees, costs and expenses.
20. Counterparts. This Agreement may be executed n counterparts, and once so executed shall be integrated and have the same validity and effect as if all signatories had executed the same original. This Agreement may be executed by facsimile signature.
21. Notices. All notices, requests, demands or other communications required by this Agreement or otherwise given in respect to the transac- tions contemplated by this Agreement, shall be in writing and served by personal delivery or deposited with the United States Postal Service, certi- fied mail, return receipt requested, with proper postage affixed, addressed and directed to the party to receive the same at the address give on the first page of this Agreement. All notices shall be deemed effective on the date and at the time of delivery if delivered in person, or if deposited with the United States Postal Service, on the second (2nd) business day following the date of deposited.
22. Relationship. It is not intended by this Agreement to, and nothing contained in this Agreement shall, create any partnership, join venture or other arrangement between Customer and Company, except as specifically provided herein. No term or provision of this Agreement is intended to benefit any person, partnership, corporation or other entity not a party hereto (including, without limitation, any broker), and no such other per- son, partnership, corporation or entity shall have any right or cause of action hereunder.
By signing this Agreement, Customer represents and warrants that:
(1) Customer is authorized to enter into and exe- cute this Agreement;
(2) the information furnished in this Agreement by the Customer is true and accurate;
(3) Customer has read this entire Agreement; and
(4) Customer agrees to be bound by the terms and conditions stated therein.
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