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PLEASE READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS OF USE BEFORE USING THIS WEBSITE. By using this site, you are agreeing to abide by the terms and conditions set forth below.
These General Terms and Conditions ("Terms") shall govern the sale by PosterDog/Wet Ink, Inc., ("PosterDog") of all goods and/or services, all subsequent transactions between PosterDog ® and the purchaser ("Purchaser"), and the use of the PosterDog.com ® website by the Purchaser. Purchaser acknowledges and agrees that these Terms shall constitute part of any final contract of sale ("Sales Agreement") that may be entered into between Purchaser and PosterDog. In the event of any inconsistency between the terms and conditions contained in any other document and these Terms, these Terms shall prevail unless otherwise agreed upon in writing by PosterDog or its duly authorized representative. PosterDog shall not be bound by any terms and conditions affixed to Purchaser's purchase order or other procurement documents that are in addition to or inconsistent with these Terms. Neither commencement of performance nor delivery by PosterDog shall be deemed or constituted as acceptance of Purchaser's additional or conflicting terms and conditions. Terms are subject to change at PosterDog's sole discretion at any time.
2. Subject of Agreement
The subject of this Agreement is the processing of digital images submitted by Purchaser to PosterDog via the PosterDog.com online interface, the printing thereof by PosterDog, its affiliate or third parties, and the delivery of such finished prints to the Purchaser.
3. Price & Terms of Payment
(a) The price for all goods and services shall be expressly set out in the Sales Agreement, delivered in the form of a shopping cart checkout on www.PosterDog.com. Where no price has been specified, the price shall be based on PosterDog's pricing listed on the homepage of PosterDog (www.PosterDog.com) on the date that the Sales Agreement was executed by the Purchaser. PosterDog reserves the right, by giving notice to Purchaser at any time, to increase the price of goods and services to cover any delay or change in delivery dates, quantities or specification of goods and services occasioned or requested by Purchaser.
(b) Unless otherwise stated in writing by PosterDog, the price of goods shall be exclusive of shipping and handling fees and any applicable retail sales tax. Additionally, the price shall be exclusive of insurance, applicable sale, use or other taxes payable to any governmental authority, installation, assembly and commissioning charges, as well as any other ancillary costs in respect of which PosterDog shall be entitled to make additional charges ("Additional Costs").
(c) Unless otherwise expressly indicated at the time of sale, shipping and handling will be charged separately.
(d) Unless otherwise agreed upon in writing, all payments to PosterDog shall be in advance by the payment options described on the PosterDog.com website. Purchaser shall pay the entire amount due in advance, including sales taxes and shipping and handling fees. Acceptance of orders is subject to credit approval. No work by PosterDog will proceed until payment is made in full.
(e) Unless otherwise agreed upon in writing by PosterDog, all payments shall be in US Dollars.
(f) Objections to PosterDog's accounting, account statements, account reconciliations, etc. must be received in writing by PosterDog within a period of ten (10) business days from the date of the invoice or other applicable notice. In the event that Purchaser fails to provide a timely objection notice to PosterDog, the terms of the invoice or other document shall be deemed to have been irrevocably accepted by Purchaser. Notwithstanding the foregoing, PosterDog reserves the right to correct, at any time, any invoicing errors, including calculation errors, which may arise from time to time.
4. Delivery of Goods and Performance of Services
(a) Unless otherwise agreed upon in writing, PosterDog shall deliver goods at any time after PosterDog has notified Purchaser that goods are ready for delivery by means of an order confirmation notice. Notwithstanding the foregoing, a maximum delivery period of two (2) weeks applies from the conclusion of the Sales Agreement. Selection of the carrier and route of delivery shall be made by PosterDog. Delivery of goods to a common carrier or a registered courier shall constitute delivery to Purchaser and risk of loss shall thereupon pass to Purchaser. In no event shall PosterDog have any liability in connection with shipment, nor shall the carrier be deemed to be an agent of PosterDog. Notwithstanding anything contained herein to the contrary, if the shipment or receipt of goods is delayed for reasons beyond the responsibility of PosterDog, risk of loss shall pass to Purchaser upon receipt of an order confirmation notice or other similar document from PosterDog.
(b) PosterDog will use commercially reasonable efforts to deliver goods in the shortest time possible. However, specific dates and times will not be guaranteed.
(c) Unless otherwise agreed upon in writing by the parties, PosterDog reserves the right to deliver goods in installments and/or perform services in stages. Unless otherwise agreed upon in writing, each delivery of goods shall be treated as a separate transaction and payment thereof shall be in proportion to the overall purchase price set out in the Sales Agreement. Delay or failure by PosterDog to deliver an installment and/or perform a stage of service in accordance with these Terms shall not entitle Purchaser to repudiate or cancel the delivery of other installments or stages of goods under the Sales Agreement.
(d) PosterDog shall not be liable to Purchaser for any delay or failure to deliver goods and/or perform services including, without limitation, any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, illness or injury to workers, delayed or failed deliveries by subcontractors, power failure, damage or destruction of production facilities, riot, insurrection, transportation delays or defaults, delay in supply or shortages of fuel, components, raw materials or supplies, labor shortage, acts or omissions of third parties, action of any governmental authority, or any other cause beyond the reasonable control of PosterDog (the "Force Majeure"). In such event, PosterDog must promptly provide Purchaser with written notice of the Force Majeure. PosterDog's time for delivery and/or performance shall be extended for a period equal to the time lost by reasons of the Force Majeure without subjecting PosterDog to any liability or penalty. If the Force Majeure event lasts longer than forty-five (45) calendar days, PosterDog may immediately terminate all or part of the Sales Agreement, without incurring any liability or penalty, by providing written notice of such cancellation to Purchaser.
(f) For greater certainty, PosterDog shall not be liable for any damages, losses, costs or expenses (collectively, the “Damage") resulting from PosterDog's delay in delivery of goods and/or provision of services to Purchaser unless such Damage arises from the gross negligence of PosterDog. Notwithstanding the foregoing, where the gross negligence of PosterDog causes a delay in the delivery of the goods or provision of services, Purchaser's sole remedy shall be a refund of the value of the portion of the delivery which cannot be used on time for its intended purpose as a result of the delay.
(g) Due to variations in equipment, including computer monitors displaying images, paper, inks and other conditions, reasonable variations in color between the original submitted digital image and the print produced by PosterDog may exist. Print variations of this kind shall be considered as acceptable and not considered as flawed.
5. Inspection and Acceptance of Goods and Services
(a) Notwithstanding (i) payment, (ii) passage of title, or (iii) prior inspection or tests, all goods and services furnished under Sales Agreement shall be subject to Purchaser's right of inspection and acceptance upon delivery.
(b) Following delivery and within three (3) calendar days of receipt of goods by Purchaser, Purchaser shall provide PosterDog with a written notice containing the full details of any alleged defect or non-conformity in goods ("Rejection Notice"). Purchaser may return rejected goods to PosterDog at Purchaser's risk and expense and in accordance with PosterDog's instructions. PosterDog shall make the final determination as to whether its goods are defective or non-conforming. Purchaser's exclusive remedy and PosterDog's entire liability to Purchaser in the event of a rejection shall be expressly limited to either the prompt replacement of the goods, the repair of any defect or non-conformity or, at PosterDog's option, the issuance of a credit or refund for the purchase price (shipping and handling fees are non-refundable)of the defective or non-conforming goods. Notwithstanding the foregoing, in the event that Purchaser fails to provide a timely Rejection Notice to PosterDog, Purchaser will be deemed to have irrevocably accepted goods. Moreover, the use of any goods by Purchaser, its agents, employees or licensees, for any purpose after delivery thereof, shall constitute irrevocable acceptance of goods by Purchaser.
Title to and ownership of all goods shall not pass to Purchaser until payment of the purchase price and any Additional Costs has been made in full to PosterDog.
7. Content of the image files, damage of third party rights
(a) Purchaser is solely responsible for the content of any submitted image files.
(b) Purchaser warrants that he will not submit any image file that infringes any patent, trademark, copyright or other intellectual or proprietary right of any party. Purchaser recognizes content does not have to bear a copyright notice in order to be protected by copyright law, and absence of such notice does not necessarily assure Purchaser’s right to reproduce content. Purchaser further warrants that no copyright notice has been removed from any content submitted to PosterDog for printing. Purchaser agrees to indemnify and hold PosterDog harmless for all liability, damages and attorney's fees that may be incurred in any legal action connected with copyright infringement involving content uploaded by the Purchaser or the print produced from such content.
(c) Purchaser warrants that he will not submit any image file that contains content which may be deemed offensive, indecent or improper material, or material that could give rise to any civil or criminal liability under applicable law. PosterDog reserves the right to refuse to deliver to Purchaser any prints that PosterDog deems to be offensive or illegal. Because PosterDog only inspects images once they have been printed, Purchaser shall remain fully liable for the cost of printing even when PosterDog refuses to deliver any print it deems as offensive or illegal. PosterDog reserves the right to report to the applicable authorities any images that PosterDog judges as potential violations of the law.
(d) In the event that any data or physical images taken into the possession or custody of PosterDog constitutes contraband (e.g., child pornography) the possession, control, or distribution of which constitutes a violation of the laws of the United States, one or more of the several states, or any applicable provision of local law or municipal ordinance, in the sole judgment of PosterDog, disposition of such contraband shall be made by PosterDog in strict accordance with applicable law. Generally, contraband may not knowingly be possessed, distributed, or destroyed without incurring criminal liability. Consequently, it is the policy of, and PosterDog reserves the right to, and shall report the existence of, and surrender any such contraband to cognizant law enforcement officials upon discovery of same. By executing this Agreement, Purchaser acknowledges this policy, expressly agrees to it and to its implementation, and agrees to hold harmless and indemnify PosterDog for any liability in connection therewith.
8. Changes and Cancellation
(a) No Sales Agreement which has been executed by PosterDog may be cancelled or amended by Purchaser except with the approval in writing of PosterDog and on terms that Purchaser shall indemnify PosterDog in full and on demand against all loss (including loss of profit), costs (including the cost of all labor and materials used, as well as accounting, legal and administrative costs), damages, charges and expenses incurred by PosterDog as a result of the cancellation or change.
(b) Purchaser has no right to cancel an executed Sales Agreement in which goods were produced as per Purchaser’s specification, or were clearly designed for Purchaser’s unique demand.
9. Limited Warranty
(a) Except as otherwise specified herein, PosterDog warrants that: (i) all goods and services purchased hereunder are free from defects in material and workmanship and conform to the requirements of Sales Agreement; (ii) PosterDog has good title to goods and the right to sell them to Purchaser; and (iii) goods and services shall conform to the written Specifications, if any, described in the Sales Agreement.
(b) Unless otherwise agreed upon in writing, the warranty period for all goods delivered by PosterDog will expire three (3) calendar days after the date of the delivery of goods to the Purchaser (the "Warranty Period"). If Purchaser believes that the goods and/or services are defective or deficient, Purchaser shall provide PosterDog with a written notice by letter, fax or e-mail, containing the full details of the alleged defect or deficiency and setting out the date of the order confirmation, the delivery confirmation or the invoice (the "Rejection Notice"). At PosterDog's direction, Purchaser shall return the defective or deficient goods to PosterDog at Purchaser's risk and expense and in accordance with PosterDog's return policy in effect from time to time, failing which any and all warranty obligation on PosterDog's part shall become void. PosterDog shall promptly investigate such claimed breach and shall, at its sole discretion and within thirty (30) days of the date of the Rejection Notice either: (i) provide information to Purchaser confirming that no breach of warranty has in fact occurred; or (ii) advise Purchaser of PosterDog's planned corrective action. If PosterDog determines that the Rejection Notice was given without cause, Purchaser shall reimburse PosterDog for all applicable costs and expenses thereby occasioned to PosterDog. If a breach of warranty has in fact occurred, PosterDog shall, at its sole discretion, promptly: (i) repair or replace the defective goods at no additional cost to Purchaser; (ii) issue credit or refund amounts paid by Purchaser related to the portion of goods and/or services in breach of warranty (less shipping and handling fees); or (iii) unless the defect in question is a minor one, cancel the Sales Agreement. All costs incidental to repairing or replacing defective goods or correcting or re-performing the deficient services shall be borne by Purchaser and in no event shall PosterDog be liable for such costs. All warranty repairs or replacements and any services that have been re-performed or corrected under warranty shall only be warranted for the balance of the original Warranty Period.
(c) Notwithstanding anything contained herein to the contrary, where PosterDog is required to perform corrective work, PosterDog's warranty shall be limited to the goods actually delivered. PosterDog shall only warrant the proper functionality of its products and components where the faulty functioning in question cannot be attributed to incorrect or incomplete information provided by Purchaser.
(d) Purchaser shall not be entitled to withhold payments on account of warranty claims or other counter-claims not recognized by PosterDog.
(e) This warranty excludes goods not manufactured by PosterDog or its affiliates. Repair or replacement of goods and/or re-performance or correction of services due to: (i) misuse or abuse; (ii) improper use or maintenance; (iii) mishandling or testing by Purchaser, its affiliates and agents; (iv) negligence; (v) alterations, maintenance or repair work undertaken by Purchaser or third parties; (vi) excessive stress; (vii) improper storage; (viii) use of incompatible supplies or cleaning agents; (ix) an event of Force Majeure; (x) chemical influences; (xi) foreign object damage; or (xii) damage in transit, are excluded from PosterDog's warranty obligations.
(f) The preceding paragraphs set forth the exclusive remedy for all claims based on failure of, or defect in, goods sold hereunder, whether the failure or defect arises before or during the warranty period, and whether a claim, however instituted, is based on contract, indemnity, warranty, tort (including negligence), strict liability or otherwise. Upon the expiration of the warranty period, all such liability shall terminate. Unless otherwise agreed in writing by PosterDog, this warranty shall not be assigned to any third party.
(g) THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, IMPLIED OR STATUTORY. NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE SHALL APPLY. PosterDog DOES NOT WARRANT ANY GOODS OR SERVICES OF OTHERS, WHICH PURCHASER HAS DESIGNATED.
10. Limitations of Liability
(a) PosterDog's LIABILITY WITH RESPECT TO ALL CLAIMS OF ANY KIND, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR ALL LOSSES OR DAMAGES ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THIS AGREEMENT, OR THESE TERMS AND CONDITIONS, OR FROM THE PERFORMANCE OR BREACH THEREOF, OR FROM ANY GOODS OR SERVICES COVERED BY OR FURNISHED UNDER THE AGREEMENT OR ANY EXTENSION OR EXPANSION THEREOF (INCLUDING REMEDIAL WARRANTY EFFORTS), SHALL IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE SPECIFIC GOODS OR SERVICES THAT GIVES RISE TO THE CLAIM. ALL SUCH LIABILITY SHALL TERMINATE UPON THE EXPIRATION OF THE WARRANTY PERIOD SPECIFIED ABOVE.
(b) IN NO EVENT, WHETHER BASED ON CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL PosterDog, ITS EMPLOYEES, AGENTS, SUPPLIERS AND AFFILIATES BE LIABLE FOR SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUE, LOSS OF USE OF ANY PROPERTY, COST OF CAPITAL, COST OF PURCHASED POWER OR ENERGY, COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, BUSINESS INTERRUPTION COSTS, DOWNTIME COSTS, INJURY TO PERSON OR PROPERTY OR DEATH, OR CLAIMS OF PURCHASERS OF PURCHASER FOR SUCH DAMAGES OR LOSSES, AND PURCHASER WILL INDEMNIFY PosterDog, ITS EMPLOYEES, AGENTS, SUPPLIERS AND AFFILIATES AGAINST ANY SUCH CLAIMS FROM PURCHASER'S PURCHASERS. IF PURCHASER RESELLS GOODS SOLD HEREUNDER TO ANY THIRD PARTY WHO IS NOT A CONSUMER OF PosterDog'S GOODS, PURCHASER SHALL OBTAIN FROM SUCH THIRD PARTY A PROVISION AFFORDING PosterDog AND ITS SUPPLIERS THE PROTECTION OF THE PRECEDING SENTENCE. Any action or suit by Purchaser against PosterDog relating to the Sales Agreement of the goods and/or services covered hereby must be brought within one (1) year of the date of invoice for such goods or services. The parties hereto acknowledge and agree that this is a commercial transaction.
Purchaser shall indemnify, defend and hold harmless PosterDog from and against all claims, demands, causes of action (including third-party claims), losses, damages, expenses (including consequential and incidental damages, court costs and attorney fees) and liabilities of every kind and nature that PosterDog incurs as a result of Purchaser's breach of any of Purchaser's obligations under the Sales Agreement and/or these Terms.
13. Confidentiality/Intellectual Property
(a) All technical information and/or Specifications, etc. supplied by PosterDog in connection herewith shall be treated as strictly confidential by Purchaser and must not be made available to any third party both prior to and after execution of Sales Agreement and delivery of goods and/or provision of services without the prior written consent of PosterDog.
(b) PosterDog expressly reserves all right, title and interest in any documents, Specifications, and other technical information provided to Purchaser in connection with Sales Agreement, quotation, offer to sell, installation, service, or repair of goods sold, and Purchaser shall return same to PosterDog upon request.
(c) To the extent that goods are supplied in accordance with Purchaser's Specifications or statements (collectively, the "Statements"), Purchaser represents and warrants that such Statements do not infringe any third party intellectual property rights. Purchaser agrees to indemnify PosterDog in respect of any claim for intellectual property infringement by a third party resulting from the use of the Statements by PosterDog.
Any notice, approval, consent, waiver, or other communication to be given hereunder shall be in writing and shall be deemed to be given if delivered personally, or sent by registered mail in which case such notice, approval, consent, waiver or other communication shall be deemed to be received on the second business day following the mailing thereof by registered mail to:PosterDog/Wet Ink, Inc.
8290 W 80th Ave Suite 3
Arvada CO 80005
and to Purchaser at such mailing address, telephone, facsimile, or email address provided by Purchaser.
15. Entire Agreement
These Terms and any document relating thereto contain the entire agreement between Purchaser and PosterDog. In the case of inconsistencies between these Terms and any information included or provided in other materials (e.g., promotional materials, other web pages, etc.), including a Sales Agreement, these Terms shall always prevail. No waiver, alteration or modification of these Terms will be valid unless made in writing and signed by an officer or other authorized representative of PosterDog.
16. Applicable Law and Jurisdiction
These Terms and any document relating thereto shall be governed by and interpreted according to the laws of the State of Colorado, without regard to conflict of laws principles, and applicable federal laws of the United States of America. Purchaser consents and submits to the exclusive jurisdiction of the State and federal courts of the State of Colorado.
17. Jury Waiver
PosterDog and Purchaser waive any rights they may have to a jury trial.