This Agreement contains the entire agreement between Basementality International Corporation and its subsidiaries and the Customer concerning the production, packaging and delivery of compact discs and other materials (the ‘Products’) from items (including, without limitation, master media, photographs, artwork, label data and packaging materials) delivered to Basementality by or for the Customer (the ‘Materials’). This Agreement supersedes all prior oral or written understandings, representations and warranties (including any terms and conditions which may appear on the Customer’s order form) between Basementality and the Customer, and may not be amended except pursuant to a written document signed by both parties.
1. Acceptance. This Agreement will only be accepted by: (a) written confirmation from an authorized representative of Basementality, or (b) shipment of goods in accordance with the terms set forth herein. Basementality reserves the right to refuse to accept any purchase order for any reason. The Customer agrees to be bound by all of the terms and conditions set out herein and on the reverse side of this form.
2. Orders. Prices charged for services and Products provided to the Customer hereunder shall be as agreed upon between Basementality and the Customer. Orders may not be cancelled by the Customer after Basementality has begun processing or manufacturing. All shipments of Products will be F.O.B. Basementality’s facility and shipping charges and risk of loss or damage in transit shall be the Customer’s sole responsibility. Shipment is by regular ground service unless otherwise specified by the Customer. Basementality reserves the right to make partial shipments. Basementality reserves the right to produce and charge for production overruns up to 10% over the Customer’s order quantity. Basementality will consider the Customer’s order complete upon shipment of 90% or more of the total quantity ordered.
3. Terms of Payment. Invoices will be issued upon shipment of Products (unless shipment is delayed
by the Customer, in which case an invoice will be issued upon the completion of manufacturing).
Invoices for services performed by Basementality hereunder will be issued upon completion of those services. The Customer shall be responsible for all taxes, duties, excises and other charges associated with the production, sale or transportation of Products and performance of services hereunder (other than taxes on Basementality’s net income). Claims for adjustments in amounts due Basementality must be presented to Basementality in writing within five (5) days from the date of invoice. If any amount remains outstanding after its due date, interest shall run on that amount from the initial billing date at the rate of 1_% per month (18% per annum) and shall accrue daily. Any credit on the Customer’s account must be claimed or used within 12 months from the shipping date of the goods to which the credit relates. Notwithstanding the foregoing, Basementality may require part or full payment, security or a guarantee of payment in advance of any work or services to be performed or any shipment. Basementality shall have a security interest in all Products and Materials until all amounts due hereunder are paid in full. Basementality reserves the right to delay or withhold shipment of any order if payment in full has not been received on any prior order. The Customer agrees to pay all costs, fees, charges and expenses of every nature (including legal fees) incurred by Basementality in recovering any amounts owed to it by the Customer, whether or not a lawsuit is commenced.
4. License. The Customer grants Basementality a non-transferable license to reproduce and distribute
copies of Materials to the extent necessary for Basementality to perform its obligations under this
5. Delivery Times. Unless otherwise agreed by Basementality in writing, delivery times are estimates and
scheduled shipment dates are subject to change.
6. Warranty, Disclaimer and Limitation of Liability. Basementality warrants that the Products will meet Basementality’s standard specifications, or such other specifications as are agreed to in writing by Basementality,for a period of one year from the date of shipment by Basementality. As the Customer’s sole remedy, and as Polinta’s sole liability, for breach of this warranty, Basementality will, at its option, replace any Products or refund the amount paid by the Customer to Basementality for any Products that are returned to and found defective by Basementality. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS PARAGRAPH, POLINTA DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OR CONDITION AS TO PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL POLINTA BE LIABLE FOR AND THE CUSTOMER EXPRESSLY WAIVES ANY CLAIM FOR, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING (BUT NOT LIMITED TO) LOST DATA, PROGRAMS OR OTHER INFORMATION OR LOST PROFITS. Notwithstanding any other provision of this Agreement and in no event (including, but not limited to, lost data, programs or other information, business interruption, or delay or failure of delivery), shall Basementality’s liability to the Customer under any theory exceed the amount paid by the Customer to Basementality pursuant to Basementality’sinvoice(s) for the related services or Products. No action, regardless of form, arising out of any claimed breach of this Agreement or transactions under this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
7. Materials. The Customer shall retain title to all Materials, including the content of such Materials.
The Customer warrants that it owns all Materials or that it has the right and authority to reproduce the Materials and has the right to deliver all Materials to Basementality. The Customer also warrants that it owns all copyright in the contents of the Materials (including without limitation any computer code embedded therein) or has the unrestricted right to permit Basementality to perform the services requested hereunder. The Customer warrants that the Materials do not contain any obscene or objectionable matter. The Customer agrees to indemnify, defend and hold Basementality harmless from and against any and all actions, suits, claims, liabilities, damages, losses and expenses (including legal fees) arising directly or indirectly out of or in connection with any claim that the services rendered or Products manufactured under this Agreement violate any law, rule or regulation or violate any rights of third parties (including without limitation, any liability for slander, defamation, invasion of privacy, or infringement of any patent, copyright, trademark or other proprietary right of any third party). If the Customer is to provide artwork to Basementality in connection with the production of disc label printing or packaging of discs hereunder, such artwork must be received by Basementality prior to the commencement of work by Basementality. If the Customer is to provide Materials for label printing or the final packaging or compact discs produced hereunder, such Materials must be received by Basementality not more than one (1) week after the delivery of the applicable master media to Basementality. The Customer is solely responsibility for delivering Materials to and retrieving Materials from Basementality hereunder. At the Customer’s request and sole risk, Basementality will store Materials as long as Basementality is providing services hereunder, at any place that Basementality deems appropriate. During such period, a storage charge may be assessed. After such period, a storage charge will be assessed until the Customer retrieves such Materials from Basementality. The Customer is responsible for removal of all Materials within thirty (30) days of notification by Basementality. If the Customer fails to remove Materials, as requested, Polinta shall have the right to: (i) return the Materials to customer at the address indicated on the last order placed by the Customer, at the Customer’s expense, or (ii) destroy, erase, or make any other disposition of such Materials without liability to the Customer or any other person.
8. Tooling, Programs, Specifications and Data. Basementality shall retain title to all tooling (including
masters, stampers, and other tooling) produced by Basementality. Basementality shall also retain all rights in
computer programs, specifications, or data developed by Basementality in or for the performance of this Agreement, notwithstanding whether such compute programs, specifications or data were developed by Basementality for the Customer or otherwise.
9. Export. The Customer agrees not to export any Product in violation of any export control laws,
rules or regulations.
10. Risk of Loss. The Products shall remain the property of Basementality until shipment. Products held by Basementality at the Customer’s request shall be held at the Customer’s sole risk.
11. Confidentiality. If Client discloses confidential information to Polinta and clearly identifies such
information in writing as "confidential", Basementality shall use reasonable care to ensure that such information is disclosed only to Polinta’s employees or contractors requiring access to such information to render the services or manufacture Products requested by the Customer. Nothing herein shall limit Basementality’s right to use or disclose information that (a) becomes available to the public without fault of Basementality, (b) is lawfully acquired by Basementality from a third party, (c) is in the possession of Basementality at the time of disclosure by the Customer, or (d) is developed by or on behalf of Polinta by persons who have not received the Customer’s confidential information.
12. Force Majeure. Basementality will not be responsible for failure to fulfill its obligations under this
Agreement if such failure is caused by circumstances beyond the reasonable control of Basementality or its suppliers or contractors (including, but not limited to, acts of God, unavailability of materials, equipment failures, strikes or other labour disturbances).
13. Severability. If any provision of this Agreement is found to be invalid, unenforceable or void by a court of competent jurisdiction, such provision shall be deemed to be severed from this Agreement and the remaining provisions will remain in full force and effect.
14. Governing Law. This Agreement shall be governed by and constructed in accordance with the laws of the state of Selangor. Any suit or action by the Customer against Basementality shall be brought exclusively in the courts in Selangor, Malaysia