EmblemArt Terms & Conditions
DISRUPTIVE RESEARCH AND DEVELOPMENT D.B.A. EMBLEM ART
TERMS AND CONDITIONS
Any persons, individual or otherwise, who purchase goods and/or services, or have already purchased goods and/or services from Disruptive Research and Development Incorporated D.B.A. Emblem Art, located in Utah County, Utah, USA (the Company) shall be referred to, interchangeably, as ‘Client’, or ‘Customer’. Change in terms referencing the Client or customer does not indicate any change in entity, nor any change to any agreement, participation, or acceptance of the terms below. Use of Client or customer, signify any individual who purchases goods and/or services from the Company.
These TERMS AND CONDITIONS are LEGALLY BINDING and by proceeding with any correspondence, or by purchasing any goods and/or services from the Company, or in accepting the Terms and Conditions via any form submitted through any domains owned by the Company, or any other Electronic Contract or Electronic Signature service provided by any third party, the Client makes the following legally binding agreement with the Company:
1) LIMITED LIABILITY
(a) ANY GOODS AND/OR SERVICES OFFERED BY THE COMPANY ARE NOT CERTIFIED OR APPROVED FOR ANY SPECIFIC USE BY ANY AGENCY, FEDERAL OR OTHERWISE. ALL GOODS AND/OR SERVICES OFFERED BY THE COMPANY ARE DESIGNED AND MANUFACTURED / PRODUCED ONLY FOR DECORATIVE PURPOSES AND STATIONARY USE, WHICH USE INCLUDES BUT IS NOT LIMITED TO ADVERTISEMENT, DISPLAY, “SHOW CAR”, OR OTHER STATIONARY, NON MOVING, NON HIGHWAY USE. (b) IN NO EVENT SHALL THE COMPANY BE LIABLE TO THE CLIENT OR ANY THIRD PARTY IN CONTRACT, TORT, OR OTHERWISE FOR DIRECT DAMAGES AS A RESULT OF THE MISUSE OF ITS GOODS AND/OR SERVICES. IN NO EVENT SHALL THE COMPANY BE LIABLE TO THE CLIENT OR ANY THIRD PARTY IN CONTRACT, TORT OR OTHERWISE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, PUNITIVE OR ECONOMIC DAMAGES OR LOST PROFITS, REGARDLESS OF WHETHER EITHER PARTY SHALL BE ADVISED, SHALL HAVE OTHER REASON TO KNOW, OR IN FACT SHALL KNOW, OF THE POSSIBILITY. (c) THE CLIENT ASSUMES ANY AND ALL LIABILITY FOR THE USE OR MISUSE OF ANY GOODS AND/OR SERVICES BY ITSELF OR BY ANY THIRD PARTY AFFILIATED IN ANY WAY WITH THE CLIENT, AND FURTHER INDEMNIFIES AND HOLDS HARMLESS THE COMPANY FROM ANY DAMAGE, INJURY, OR OTHER OCCURRENCE, INCLUDING BUT NOT LIMITED TO FINANCIAL LOSS OR PHYSICAL HARM, INCLUDING DEATH, FROM, OR IN, THE USE OF GOODS AND/OR SERVICES. (d) THE CLIENT ASSUMES ANY AND ALL LIABILITY FOR THE USE OR MISUSE OF ANY GOODS AND/OR SERVICES BY ITSELF OR BY ANY THIRD PARTY AFFILIATED IN ANY WAY WITH THE CLIENT, AND FURTHER INDEMNIFIES AND HOLDS HARMLESS THE COMPANY FROM ANY DAMAGE, INJURY, OR OTHER OCCURRENCE, INCLUDING BUT NOT LIMITED TO FINANCIAL LOSS OR PHYSICAL HARM, INCLUDING DEATH, FROM, OR IN, THE USE OF GOODS AND/OR SERVICES. (e) THE CLIENT PURCHASES AND USES ANY GOODS AND/OR SERVICES OFFERED BY THE COMPANY AT THEIR OWN RISK AND FOR APPROVED USES ONLY. FURTHERMORE THE CLIENT FULLY INDEMNIFIES AND HOLDS HARMLESS THE COMPANY FROM ANY AND ALL LOSS, BY PART OF THE CLIENT OR ANY THIRD PARTY ASSOCIATED WITH THE CLIENT, RESULTING FROM ANY POTENTIALLY LIABLE EVENT INCLUDING BUT NOT LIMITED TO THE HERETOFORE LISTED.
2) SALES & PAYMENT
(a) ALL SALES ARE FINAL. All payments for any goods and/or services are final. Any and all payments are 100% non-refundable. Payment Terms: 100% Prepay at quoted rate plus incidentals acrued during the order and production process. (to be billed prorata during the order or after at the Companies discretion). Additional payment terms available at the discretion of the Company. (b) By placing an order, via signature on this contract and/or payment, with the Company, be that for goods and/or services the Client is entering into a contract with the Company to purchase and pay for goods and/or services as outlined and per the terms and conditions as found herein. (c) For the purpose of Quality Control an overrun of up to 10% may be charged to any order. (d) Purchased goods and/or services may not be not shipped until full payment is received, at the discretion of the Company. (e) All payments must be made within 15 calendar days from the date on any invoice or other electronic payment request after which time a 15% late charge will occur. Late fees compound bi-monthly (2x per month). (f) Any electronic payment may be subject to a 4% processing charge. Payment by Check may be required for any payment. (g) Returned checks or any dollar amount electronically charged back, withheld or otherwise debited from the Company’s accounts will incur late charges as listed here from the date of invoice, plus a $20 fee. All fees or other charges will be added to the Clients balance. (h) Unpaid balances will be sent to a collections service after 45 days, upon which action an amount no less than 40% of the balance due will be added to the Clients account.
3) QUOTES & INVOICING
(a) Quotes are provided based on the details provided to the Company by the Client. The Company shall make every reasonable effort to effectively calculate any quote cost. (b) Dimensions and quantities may change during the order process by request of the Client or as necessitated by the Company based on design, proportion of dimensions, quantity changes of other unforeseen circumstance. As such quoted totals may increase, or other changes to the order may take place during the order itself. Clients will be made aware of any necessary changes made by the Company to their order before the change is made. Additionally at any time while the order is open a Client may add to or make changes to their order at any time while the order is still open. The Client will be responsible for any additional costs thereof. (c) Due to the nature of custom work the Company will not be able to refund any differences in an order balance regardless of changes that may be made. In most cases an invoice will be emailed to the Client when the order is placed, however should an invoice not be received, it is the responsibility of the Client to request an official invoice.
4) ORDERING & DELIVERY
(a) During the order process the Client agrees to the production of their order in a material as specified in their quote. Refunds shall not be given due to lack of due diligence by part of the Client in reviewing this material as prescribed, and agreed to, during the order process and order placement. (b) The Company shall make every effort to facilitate any color matching or custom color (if applicable), but shall not be held liable or responsible for deficits, defects, mis-matches or other errors in the color matching or custom color process or application. If a deficits, defects, mis-matches, or errors occur during any order, solutions may be facilitated by the Company, at the Company's discresion, for which all costs associated shall remain the responsibility of the Client. (c) The Company Website may list a process by which the Client places an order and what should happen once the order is placed. These instructions or steps are provided as an aid to the process to help the Company assess the needs and provide an accurate quote for goods and/or services to the Client. These steps are in no way binding, nor associated as part of a potential or real purchase contract or Invoice. The Companies adherence or lack thereof to these steps may not be used as grounds for returns, refunds, or other possible breach of contract. (d) All timelines provided are estimations and subject to extenuating circumstances. “Deliver by” dates, and RUSH order timelines are not guaranteed unless (1) an exact date is agreed to by the Company via email, (2) expressly stated in the quote and (3) entered into the order via the Order form or other Purchase Contract. Refund requests due to missed “deadlines” which have not been previously guaranteed and shall not be granted. (e) Should a Client fall out of contact with the Company, (not responding to correspondence) after 30 days of placing an order, the order shall be considered abandoned, will be closed, and payment shall be forfeit.
5) SHIPPING
(a) All shipments will be made by a shipping carrier of the Companies choice. The Company will use its own discretion in determining shipping and handling costs and will charge accordingly to secure safe shipment of goods and/or services. (b) Orders are shipped FOB the Company. Shipping insurance is available upon request. Additional shipping charges, fees or duties, may be added to the order at any time and shall be due before shipment. (c) The Company is not responsible for any damage, delays or theft during shipment. As the Company cannot monitor nor secure international shipments, international shipment delivery is not guaranteed. International Clients accept all risk of shipping internationally, including but not limited to loss, theft, or damage. (d) Additional shipping options may be available at the Client’s request or may be used as determined by the Company. These options may include additional handling charges. (e) The Company will make all reasonable effort to track and/or assist Clients in shipping issues. (f) Any additional duty costs, import fees, shipping taxes, or other costs assessed to a shipment shall remain the sole responsibility of the Client. Should the Company be billed for any of these associated costs the balance of which shall be added to the balance of the associated order and the customer agrees to reimburse the Company in full within 15 calander days. (g) If the address provided in any Payment Details defers from the address provided on the Invoice or Purchase Contract, the Company may ship to either address and the Client will retain responsibilty for recovery of the shipment. (h) If a shipment is returned to the Company for any reason by the shipping provider the shipment will be considered abandoned and recycled and any payments for such items or orders shall be forfeit. Notwithstanding the afore mentioned, the Company will make every reasonable attempt to contact the Client to verify addresses and re-ship the order/shipment, of which the Client shall be responsible for additional costs to do so. (i) If theft happens during the shipping process the Company requires a Police Report by party of the Client as necessary proof in shipping insurance claims. (j) If a STOP SHIPMENT or similar service to halt the shipping process is required due to non-payment or other arising issue due to Client negligence, chargeback or other action by the Client, the Client shall be responsible for all costs and fees incurred, including costs for re-shipment once payment clears.
6) PAYMENT DISPUTES
(a) The Company reserves the right to contest any and all payment disputes in any form, including but not limited to credit card charge back, PayPal Dispute, or other legal action. The Company reserves the right to pursue payment after the fact via debt collection services (collection agency’s) or other methods should payment be rescinded for any reason. The Client agrees to pay any fees or charges associated with any action taken by the Company in regards to re-obtaining or retaining payment including all costs in pursuit thereof. These costs include, but are not limited to, the use of a collection agency, other legal costs and actual attorney’s fees and costs in any legal action or dispute related to payment. Should any dispute, claim or other legal action arise, be it to enforce this agreement by part of the Company, or by part of the Client in seeking legal claim, the Client agrees that Utah County, Utah, USA shall be the exclusive jurisdiction and legal venue for said action. The Client agrees to pay the Company’s actual legal and attorney fees and costs incurred thereby, whether or not formal proceedings are brought to remedy any Client’s breach of this agreement. (b) Any and all formal claims and disputes arising under or relating to Payment are to be settled by binding arbitration in Utah County, Utah, USA. An award of arbitration may be confirmed in a court of competent jurisdiction which award shall include the assessment of costs, expenses, and reasonable attorneys’ fees. If such dispute arises from use of electronic payment (credit card or paypal), Arbitration facilitated by part of that same payment service provider (ei: credit card chargeback resolution, or Paypal dispute resolution) shall not be considered binding and the Company reserves the right to pursue and collect payment by the methods outlined herein, including but not limited to any formal legal action. (c) Should any formal payment dispute (Credit Card Chargeback, PayPal dispute, or other Action) be initiated during the order process, the Client agrees that all payment amounts shall be forfeit to the Company and the order closed without shipment.
7) REFUNDS, RETURNS, AND EXCHANGES
(a) Custom Orders: All sales are final, as such refunds are not offered. Exchanges are not offered for any custom order except in the case where there may be a manufacturing defect as to be determined by the Company. Deficits of defects in color matching or custom color selection or application shall not be grounds for a return or exchange nor considered as a manufacturing defect. A Return Merchandise Authorization (RMA) is required for any and all exchanges as approved by the Company. The Client must contact the Company to request an RMA within 3 business days of receipt of goods or services and is subject to approval. If contact with the Company is not made within this window the order will be considered satisfactory by the Client. The Client agrees to uphold the decision of the Company in such approval. Please see the section Payment and Payment Disputes for more information. (b) Off-the-Shelf orders: Any order that is not a custom designed order is considered “Off the shelf”. These goods may be exchanged or refunded within 7 days of receipt of items. All returns are subject to a 20% restocking/processing fee. An RMA is required for any exchange or refund and is subject to approval. Items must be in unopened unused condition. If returned conditions are not acceptable, as determined by the Company, no refund will be given and items will not be returned to sender. Any shipping costs are not refundable. (c) Any and all items returned to the Company without Authorization (including returned shipments marked as Undeliverable or otherwise) will be considered abandoned by the Client and recycled and any payments for such items shall be forfeit.
8) INTELLECTUAL PROPERTY
(a) Any design, logo, trademark, likeness, font, art work, concept, patent, product, item (or images thereof), trade secret, and any and all other digital or other physical items or likenesses thereof, all of which hereafter referred to as "media", are the Intellectual Property (IP) of their respective holders, exclusively for their lawful use by their respective holders and licensees. (b) All media for use by the Company shall be submitted by the Client. The Client may contract the Company to create media on their behalf. The Client agrees that they own, or have otherwise obtained and will retain, any and all applicable legal IP rights and/or licensing for any media, or contents thereof, that they have submitted, or will submit, to the Company for the use of products and services offered by the Company. The Client agrees that they retain any and all responsibility and liability regarding any media, or contents thereof, submitted to the Company and releases, holds harmless and indemnifies, the Company from any responsibility and liability regarding its use. The Client agrees that they alone will be responsible for any finacial burden and/or liability in regard to the use of said Media. (c) The Client agrees that they retain any and all responsibility and liability regarding any given direction, request, design concept, or command given to the Company in conjunction with the creation, or modification of any media created or modified by the Company on behalf of the Client. Furthermore the Client releases, holds harmless, and indemnifies the Company from any responsibility and liability regarding its creation, modification, and use. The Client agrees that they will not instruct the Company to create or modify media in such a way that violates the IP of any given holder. The Client agrees that they own, or have otherwise obtained any and all applicable legal IP rights and/or licensing for any direction, request, design concept, or command given to the Company. The Client agrees that they alone will be responsible for any finacial burden and/or liability in regard to the use of said Media. (d) In good faith the Company will recieve, or has recieved media from the Client. Any and all legal ramifications and reprecussions of the use of said media remains with, and will be, the liability and responsibility of the Client. The Client agrees that any inquiry, legal or other action with regard to any media used by the Company for the Client shall be the liability and sole responsibility of the Client and absolves, holds harmless, and indemnifies the Company should such action be made. (e) The Client agrees that any and all media created, modified, or converted by the Company for the Client shall be done so solely for the internal uses of the Company in relation to their offering to the Client. The Client agrees that in order to recieve a usable digital copy of these internal files an additional fee will be required. (f) The Company is not Legal Counsel. In good faith the Company will advise and assist Clients to navigate IP related issues, however the Client recognizes that the Company is not legal counsel and absolves the Company of any responsibility and further indemnifies them regarding the use of any advice or direction provided by the Company. (g) The Company shall make every reasonable, good faith effort to enforce any intellectual property licensing on behalf of the owner thereof. However, the Client agrees with, and understands that, the Company is not responsible to research, discover, or otherwise verify any ownership or requirement of licensing of any given media or part thereof. Furthermore the Client removes and indemnifies the Company of such a requirement to do so. The Client agrees with, and understands that, it is unreasonable and impossible to expect the Company to be aware of any given Intellectual Property and it’s applicable licensing requirements, thus the Client maintains any and all responsibility for any research, discovery, or verification in regards to any requirement for licensing of any media submitted to the Company by the Client, or any media created by the Company as directed by the Client. This acknowledgment of responsibility by the Client regarding media and it’s applicable licensing includes but not limited to any errors or omissions in the findings or knowledge of either party regarding the contracted media and any legal repercussions and consequences thereby incurred. This includes, but is not limited to, parody use of logos or registered trademarks, elements of trademarks and/or copyright and other Intellectual property protection, in full, or in part. The Client acknowledges that it is their responsibility to perform such tasks as necessary to verify the legal and proper use of any media submitted, or created by the Company on behalf of the Client, as a whole, or part thereof, including any applicable licensing or permission required for the media, as a whole, or part thereof. The Client affirms that by submitting any media to the Company, or that by contracting and directing the Company to create any media, that they have performed any and all such required research in regards to that media and holds harmless and indemnify the Company of any and all liability regarding it’s use. (h) The Company uses media and other Client information, both of which hereafter referred to as "data", in conjunction with 3rd party manufacturers, as well as cloud software and services from 3rd party providers in raw data management, storage, and production capacities. The Company shall not be held in any way liable or responsible, in cost, harm, loss, or other unknown manner, for any 3rd party data breach, data theft, or other 3rd party data use. Furthermore the Client shall hold harmless the Company in any and such an event or loss. Any costs, liability, or other loss incurred by the Client in such an event, in pursuit of any data recovery, or other actions required to secure such data shall remain the sole liability and responsibility of the Client. The Client absolves the Company in any and every way from any data breach of any kind related to the companies use of 3rd party services or products.
9) RESEARCH & DEVELOPMENT
(a) In addition to the terms herein listed, if a Client opts in to participate in any project or goods and/or services which the Company classifies, via email or other communication, as a Research and Development (R&D) project or R&D goods and/or services, said Client agrees to the following conditions: (1) the Company cannot guarantee a timeline for delivery. (2) The Company cannot guarantee durability of the goods and/or services or project and in no way warrants it against defect. (3) If any finishing process (i.e. powder coat, paint, other coloring or color fill) fails in any way, as determined by the Company, the Company will accept the project or goods in order to re-finish said project or goods. This may also signify that all finishing be removed and the part returned to the customer as a raw finish. The Company will use its own discretion in determining the method appropriate to use for any re-finishing, free of charge, for up to 2 years after the goods initially leaves our warehouse. The Client will be responsible for all shipping. (4) Some products may not qualify for free refinishing due to the nature of the product or it’s finish application. (5) Scratches or normal wear and tear do not warrant free re-finishing. (6) If the Company determines that the finish failed due to abuse or other event, free re-finishing wouldn’t be applicable. In all cases, free re-finishing applicability is at the sole discretion of the Company. (7) Custom color is not available unless expressly stated by the Company (8) there are no refunds for any R&D project or goods and/or services. (9) The Client agrees and acknowledges that any and all previous terms and conditions found herein, including but not limited to the Limit of Liability section apply to any and all R&D products and hereby affirms their agreement to them in this regard.
10) EMAIL
(a) Returning, responding of otherwise corresponding with the Company via emails sent by any domain owned by the Company signifies agreement to all terms and conditions listed herein. Failure to comply with these terms will result in appropriate action, which may include your account being sent to a collections agency, legal proceedings, or other reasonable response. The Client will be responsible for all cost incurred in the pursuit of resolution
11) PRIVACY
(a) The Company may share any and all information with any entity owned by the Company. The Company may also share any Client information in the use of any type of marketing research.
12) GENERAL & OTHER PROVISIONS
(a) This agreement shall be governed by and construed in accordance with the internal laws of the State of UTAH, U.S.A., without reference to any conflicts of law provisions. (b) The Client shall comply in all respects with all applicable legal requirements governing the duties, obligations, and business practices and shall obtain any permits or licenses necessary for its operations including but not limited to any legal requirement in regards to Intellectual Property and any licensing thereof, used in any purchase contract made with the Company. The Client shall not take any action in violation of any applicable legal requirement that could result in liability being imposed on the Company. (c) The Client agrees to indemnify, defend, and hold harmless the Company, and its officers, directors, employees, agents, licensors, and suppliers from and against any and all losses, liabilities, expenses, damages, and costs, including reasonable attorneys’ fees, resulting from any violation of these terms and conditions. This includes but is not limited to any activity related to use of any goods and/or services sold or offered, and activity related to the use of the domains owned by the Company (including negligent or wrongful conduct) by Client or any other person accessing these domains using the Clients Internet account. (d) The Client shall absolve, indemnify, defend, and hold the Company harmless from and against any and all claims, actions, suits, demands, assessments, or judgments asserted, and any and all losses, liabilities, damages, costs, and expenses (including, without limitation, attorney’s fees, accounting fees, and investigation costs to the extent permitted by law) alleged or incurred arising out of, or relation to, any operations, acts, or omissions of the Client or any of its employees, agents, and invitees in the exercise of the Clients rights or the performance or observance of the Client’s obligations under this agreement. (e) Each party hereby submits to the exclusive jurisdiction of, and waives any venue or other objection against, the Utah County Court located in Utah County, UTAH, U.S.A (or any federal court sitting in the State of Utah, U.S.A. should such be applicable), for and in relation to any legal proceeding arising out of or relating to this contract. Each party agrees that all claims and matters may be heard and determined in any such court and each party waives any right to object to such filing on venue, forum non-convenient or similar grounds. (f) Failure of either party to insist on strict compliance with any of the terms, covenants, and conditions of this agreement shall not be deemed a waiver of such terms, covenants, and conditions, or of any similar right or power hereunder at any subsequent time. (g) Any specific right or remedy provided in this contract will not be exclusive but will be cumulative of all other rights and remedies. (h) If any provision of this Agreement shall be declared by any court of competent jurisdiction to be invalid, illegal, or unenforceable, it shall not affect the enforceability of any other provision of this Agreement. Rather, the invalid, illegal, or unenforceable provision shall be modified so that it is valid, legal, and enforceable and to the fullest extent possible, which reflects the intention of the Company. (i) This agreement serves as a perpetual contract between the Client and the Company. The Terms and Conditions are subject to change without notice. The Client, acknowledging this, hereby accepts responsibility to review and update their records of these changes accordingly. Updates to these terms and conditions can be found at www.emblemart.com/terms-and-conditions. The Client hereby affirms their agreement to the contract of these Terms and Conditions in perpetuity. The effective date of this contract is the date of the first interaction of the Client with the Company. Should the Client, at any time, disagree or otherwise wish to end this perpetual, contractual, agreement to these Terms and Conditions the Client must notify the Company by certified mail. This certified mail must include a notarized letter with: (1) the name of the Client, (2) the date of their order, (3) the name of their order, (4) the address where the order was shipped, (5) the email address used in the correspondence during the order. (6) and the letter must clearly state the Client had agreed to the Terms and Conditions when the order was placed and now wishes to end that perpetual contract. Lastly (7) a printed copy of the terms and conditions effective the date the Certified mail was sent. Upon receipt of this certified mail the Company will release the Client from their perpetual contract of agreement to the terms and conditions. The effective date of the end of this perpetual contract shall be the date the certified mail is delivered to the Company, to be verified, and recorded via mail tracking methods. The Company shall retain a copy of this certified mail by physical or electronic means. By ending this perpetual contract of agreement to the Terms and Conditions, the Client is in no way removed from their responsibility or liability regarding their agreement to the terms and conditions in regards to any services rendered, or orders placed, or emails sent at any time previous to the effective date. The Client hereby indemnifies and holds harmless the Company from any loss due to changes in the terms and conditions. (j) Any and All provisions and/or conditions that logically ought to survive termination of this agreement shall survive.