This TrepStar Agreement ("Agreement") is entered into between A1Tech, Inc., a Minnesota corporation, having its principle place of business at 8852 Aviary Path, Inver Grove Heights, Minnesota, 55077 United States of America, operating a web site at www.trepstar.com (also trepstar.com,cd-fulfillment.com dvd-fulfillment.com or cdDVDfulfillment.com) ("A1Tech") and you, the customer ("Customer").
We offer low cost setup, but this requires you, the customer, to learn how to use the system. If you're a new customer (publisher), and not yet familiar with our system, delays with your first products are possible. First, you, the customer, will set up a project. Once TrepStar approves the project, it is wise to order a SINGLE copy sent to yourself. It's possible the burn process may fail if your setup files are incorrect or you did not follow instructions etc. We can not know in advance whether a product will be manufactured without errors. Only by submitting the order and paying us do we start the process. i.e. We can only determine if errors will occur once the order is placed and the manufacturing process has started. If there are errors, we send you an email explaining how you can fix it. If you fix any errors we discover, your product will be shipped at that time. If you do not fix the errors, we are not able to send product, but we still have used our resources. Therefore, in this case, we can not offer any refunds. During this initial phase, there may be delays in shipment (obviously) so plan for this. You are purchasing our SERVICE as well as an end PRODUCT.
If you understand and agree to this, please continue to use our system. If you are new to TrepStar, do NOT expect the first products you produce to be sent out right away. To be safe, assume there may be delays of up to a week. When you get used to how the system works, there will be few delays.
We only offer refunds in special cases such as if we made a mistake. Generally speaking, we don't offer refunds because once we print postage, and produce product, those materials are not of use to us, only to you.
Whereas, (1) Customer is in the business of distributing software or other digital content; (2) A1Tech is in the business of copying content onto CDs and DVDs and shipping these CDs and DVDs as a fulfillment service to its customers; and (c) Customer desires to retain A1Tech to produce customized CDs or DVDs pursuant to this Agreement. Now therefore, the parties agree as follows:
1.0 Definition of Terms.
1.1 "Customer" means the entity, publisher, organization or authority having contracted with A1Tech to provide the services described in this Agreement.
1.2 "Services" means the production and fulfillment services described in this Agreement.
1.3 "Final Product" means CD or DVD media containing a compilation of content provided and specified by Customer for shipment to the End User. This also includes any cd or dvd case, printed packaging artwork, included documents, finishing, and packaging materials.
1.4 "End User" means the entity, organization, or person to which A1Tech is directed to ship the Final Product after performing the Services.
1.5 "License" means an agreement by which a third party grants to Customer the right to distribute content or fulfillment items pursuant to the terms of a license.
2.0 Responsibilities of A1Tech.
A1Tech shall provide media distribution fulfillment services by compiling, reproducing and shipping content on CD or DVD media based on orders received from Customer. A1Tech shall have the following responsibilities:
2.1 A1Tech shall receive and maintain a copy of the content supplied by Customer.
2.2 When A1Tech receives a CD/DVD fulfillment order, A1Tech requires one full business day to manufacture the product, and sometimes 2 business days to compile, reproduce on CD/DVD and deliver the Final Product for shipment to U.S. mail. Actual shipping times vary depending on the shipping method chosen at order time.
2.3 The Final Product will conform to the specifications, logos, and graphics designated by Customer under its web-based account with A1Tech at www.trepstar.com.
2.4 When an e-mail address is provided, A1Tech will automatically notify the End User via e-mail that their CD/DVD order has been processed if you choose to have your customers notified by us. Any optional tracking information is sent to customer in this email.
2.5 SHIPPING: Ship the Final Product to End Users and communicate with such End Users as reasonably required to perform the Services called for under this Agreement.
2.6 EXTRA INVENTORY: We normally only make enough product for current orders. However, there are times that we have extra discs or dvd/cd case artwork packaging printed. Our printers print 2 or 3 images per page, and sometimes, we have extra discs made (usually not more than one or two). We save those extras. If and when a new order comes in, extra inventory is used first. If you update your product files or graphics within the TrepStar project, and submit a single quantity order at that point, most times, the most recent burn files are used, but we do often have extra cd/dvd case artwork left over. Those older extra copies will be used in this case. There is NO guarantee that the order proceeding a project change will contain your changes. For example, if you order one copy on your first order, we print 2 or 3 of the same cd/dvd case artwork image. We do this because it costs us the same amount to print 2 or 3 images instead of one. We usually do not have extra cds/dvds unless orders are taken, then deleted. Therefore, if you plan to order once, change the project, and order again, it's best to order a quantity of 3 or more to ensure any old inventory is used up and at least one of your products will be shipped with your latest changes. This is a known limitation of our project management system which means you'll have to order a few test copies at your cost until your new changes are reflected. This is why we recommend ordering 3 or more if you are testing a change to your existing project.
2.7 MASTERS OR COPIES. Do not send your cd or dvd masters to A1Tech. If you need A1Tech to import the CD or DVD for you, you will need to send a copy of your CDs or DVDs to our address. We will not send anything back to you so be sure to only send a copy of your discs.
2.8 NO REFUNDS for flaws in publisher material: WE BURN WHAT YOU SEND US. IF THERE IS A FLAW IN THE FILES YOU SEND US, WE WILL DUPLICATE THAT FLAW. WHEN WORKING WITH A NEW PROJECT, YOU MUST ORDER A COPY FOR YOURSELF. DO THIS BEFORE YOU TAKE ORDERS FOR A CUSTOMER.
2.8.1 NO REFUNDS if errors exist in project files: THERE MAY BE DELAYS WITH NEW PROJECTS IF THERE ARE ERRORS WITH THE FILES YOU HAVE SUBMITTED. IF YOU SUBMIT FILES THAT CAN NOT BE BURNED, OR GRAPHICS THAT CAN NOT BE PRINTED, WE CAN NOT MAKE THE PRODUCT UNLESS YOU FIX THE ERRORS. WE GIVE YOU INSTRUCTIONS ON HOW TO FIX ANY ERRORS. IF YOU DO NOT FIX THE ERRORS, YOU ARE NOT ENTITLED TO ANY REFUND OF ANY KIND since we've spent lots of time and expense detecting errors and recommending corrections:
2.8.5 Product Testing: Once you receive the first copy of your product, test it in all devices you can think of. Once you are convinced the product has been duplicated correctly, only then should you order for your customers. We do not give refunds if people claim something "doesn't work" since because this is an issue with the customers lack of testing and quality control.
2.9 COLOR MATCHING: While we attempt to print the disc image, graphics, dvd case overwrap and inserts as close to the original color of your graphics, we can't match them perfectly. We use several devices to make the discs. Variations can occur from disc to disc. Normally this is not a problem with single disc sets. However, if you have multiple disc sets, some variation can occur between each disc in the set. Flesh tones are hardest to reproduce, followed by dark colors (especially black). We highly recommend you order a copy for yourself before ordering for other customers. We do not give refunds if you do not like the color matching. You can submit new graphics to our system to compensate for color shifts, but then you'll need to order again at your cost until you're satisfied with the colors. If you need exact matching, we recommend you use a disc replication company (google dvd replication)
3.0 Customer License to A1Tech.
Customer hereby grants a sub-license to A1Tech to:
3.1 Copy, reproduce and distribute any content supplied by Customer for the purpose of fulfilling Customer orders or supporting such activities. This sub-license extends to content downloaded by A1Tech from third party websites to which Customer has referred A1Tech for the purpose of copying software to fulfill the Services under this Agreement.
3.2 Copy, reproduce and distribute any trademarks, service marks, logos, graphics, and/or copyrighted material relating to content supplied by Customer for the purpose of fulfilling Customer orders or supporting such activities.
3.5 Retain a copy of all content, trademarks, service marks, logos, graphics, and/or copyrighted material for the purpose of internal record keeping and for preservation in the event of a dispute under this Agreement.
3.55 Display images or samples of Customer's End Products on A1Tech's web site, brochures, and marketing materials, which may contain Customer's trademarks, service marks, logos, graphics, and/or copyrighted material.
3.6 Identify Customer as a customer of A1Tech on its web site, brochures, and marketing materials.
4.0 Responsibilities of Customer.
4.1 Customer shall only supply to A1Tech for fulfillment, content that is owned or licensed for use by Customer. By supplying content to A1Tech, and subsequently each time an order is placed for shipment to an End User, Customer automatically warrants that it owns or holds a valid license for the product, and that Customer has the right to authorize A1Tech to copy and reproduce the same.
4.2 Customer shall immediately inform A1Tech in writing or email of termination of any License for content covered by this Agreement, or of any reason that may prohibit reproduction or distribution of such content by A1Tech under this Agreement. Customer shall ensure that it does not place orders with A1Tech for reproduction or distribution of any content without the lawful authority, license, and permission of the content owner(s).
4.3 Customer shall indemnify and hold A1Tech harmless from and against all liability, claims, damages, penalties, fines, costs, and expenses, including A1Tech's attorney's fees and court costs, in the event of any violation, allegation or claim of violation of any U.S. export laws or export control laws arising out of this Agreement or the Services provided by A1Tech. Each time an order is placed for shipment to an End User, Customer automatically warrants that the End User is a legal recipient of the order and that A1Tech may lawfully ship the order to the address designated, even if outside of the USA.
4.5 Customer confirms that content transferred to A1Tech shall not include obscene, pornographic, or hate-based materials and agrees that A1Tech shall not be obligated to reproduce or fulfill orders with respect to any such prohibited materials.
4.6 Customer shall take all reasonable precautions to insure that content transferred to A1Tech is free from viruses or other malicious or destructive characteristics.
4.7 Customer shall be the point of interface with End User, and shall provide all End User customer services including taking orders, billing, collection, complaints, returns, etc. except as specifically agreed by A1Tech pursuant to its customer service practices, which A1Tech may modify or discontinue at any time.
5.0 Intellectual Property Rights.
5.1 Customer and the owner(s) of any Licenses granted to Customer shall retain ownership of all content, trademarks, service marks, logos, graphics, and/or copyrighted material provided to A1Tech, subject to the sublicenses granted to A1Tech hereunder.
5.2 A1Tech shall own and retain exclusive title to all content, trademarks, service marks, logos, graphics, copyrighted material, software, source code, object code, technology, methods, tools, technical documents, databases, journals and other similar items which are owned and/or were developed by A1Tech and which may be used by A1Tech in connection with performing the Services hereunder.
6.0 Posted Modifications and Amendments.
6.1 A1Tech shall have the right to modify this Agreement at any time, with respect to orders placed by Customer after the posting of such modifications on the www.trepstar.com web site, or otherwise communicated to Customer in writing via e-mail or otherwise at the address(es) specified in Customer's account with A1Tech.
6.2 In the event that any future changes or additions to this Agreement are unacceptable to Customer, Customer's only recourse is to terminate this Agreement by sending notice of termination to A1Tech via e-mail to email@example.com. Customer's use of this service, or continued use of this service following the posting of notice of changes or additions to this Agreement, will constitute a binding acceptance by Customer of the same.
7.0 Charges and Fees.
7.1 The charges for services provided under this Agreement shall be at A1Tech's then current standard rates as published in the A1Tech price list located at www.trepstar.com. Special postage fees are applicable to orders mailed to End Users outside of the USA. A1Tech may change such rates at any time for any reason.
7.2 A1Tech shall send customers billing reminders periodically for fees, charges, and other amounts owed by Customer. Such amounts shall be due and payable in U.S. funds within 15 days of receipt. A1Tech may require an advance deposit for orders in excess of $500 during any 30-day period until Customer has demonstrated its creditworthiness to the satisfaction of A1Tech. The balance of such advance deposit, if any, will be refunded to Customer.
7.2.1 A1Tech may ask for, or require, current and valid credit card information so we can bill for payment on your account. Customer agrees A1Tech has the right to bill said credit card for any outstanding payment.
7.2.2 Refunds: We do not give refunds for any orders submitted to us for any reason except if we made a manufacturing or shipping mistake. Our burn system verifies each disc for accuracy, but if it can be shown that there was a burn error (disc must be returned to us), we will issue a refund. If we sent the wrong product, we will send out the correct product at our cost. Breakage, missing packages, or burn errors are quite rare. Our no refund policy is intended to prevent publishers from ordering lots of product, then deciding they do not want it for some reason and expecting a refund. Their product is of no value to us so we do not offer refunds in those cases.
7.3 A1Tech may suspend its performance under this Agreement or immediately terminate this Agreement, should Customer become delinquent in the payment of any invoice.
7.4 A1Tech may charge Customer for all fees incurred due to Customer's special shipping request other than U.S.
7.5 A1Tech may, at any time, require Customer to provide evidence that Customer has paid the fees required under this Agreement.
7.6 A1Tech may charge interest at the rate of three percent (3%) per month for all amounts that are not paid within 60 days of invoice.
7.7 Customer shall be responsible for paying all of A1Tech's collection costs, attorney's fees, court costs, disbursements, and expenses incurred in collecting delinquent amounts.
7.8 A1Tech reserves the right to send periodic or frequent email reminders to customers who are late paying their bill (over 60 days without payment). We may send multiple emails to any contact email address we can find on your website. We may call your telephone contact phone multiple times in order to contact you for bill payment.
7.9 A1Tech may charge your credit card for overdue payments. If you have an outstanding bill with us, and have paid us by credit card in the past, or we've asked you for your credit card, we reserve the right to charge that credit card for any outstanding balance to your account. We would only resort to this if you do not respond to our attempts to contact you, and your account is over 60 days overdue.
8.0 Limited Warranty.
8.1 A1Tech warrants that all Services provided under this Agreement will be performed in a good, workmanlike manner by qualified personnel and that all content shall be reproduced on new market-grade compact disks (CDs) or DVDs. We do not issue refunds for properly manufactured and shipped products. You should order a test copy for yourself for any new project, or when you make changes to the project. If the product meets your needs, you may order for your customers.
8.2 The obligations, duties, exclusive warranties and remedies provided by A1Tech under this Agreement shall not apply to delays or damages caused by war, insurrection, labor troubles, strikes, Acts of God or the public enemy, riots, breakdown of transportation infrastructure, the unavailability of A1Tech's web site for any reason, closing or delays in the U.S. mails, or other causes beyond the control of A1Tech.
9.0 Disclaimer of Warranty.
9.1 Except for the express warranty contained in Section 8.1 of this Agreement, A1Tech and its owners, directors, officers, employees, affiliates, successors, and assigns grant no other warranties, either expressed or implied, including any implied warranties of merchantability or fitness for a particular purpose. A1TECH EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER IMPLIED WARRANTY.
9.2 The express warranty contained in Section 8.1 of this Agreement and the remedies provided for a breach of this Agreement are in lieu of all other liabilities or obligations of A1Tech or its affiliates (whether such liabilities or obligations would arise under this Agreement or otherwise by operation of law) for damages arising out of or related to the delivery, use or performance of the Services or A1Tech's performance hereunder.
10.0 Limitation of Liability.
10.1 Notwithstanding anything to the contrary in this Agreement, A1Tech's cumulative liability to Customer or any third parties resulting from any claims, damages, costs, expenses, penalties, fines, awards, losses (or related items) caused by A1Tech, including those losses that A1Tech acknowledges under this Agreement, shall be limited to One Hundred Dollars ($100) (U.S.). A1Tech's liability shall be exclusive. The limits provided under this Section 10.1 shall apply irrespective of A1Tech's non-performance of any obligations under this Agreement or negligence.
10.2 Customer agrees to bear all claims, damages, costs, expenses, penalties, fines, awards, losses (or related items) in excess of the above $100 limit without being entitled to claim against A1Tech or its affiliates, successors or assigns.
10.3 Customer agrees to ensure that Customer's insurers waive any claims against A1Tech, whether by subrogation or otherwise, in excess of the above $100 limit.
10.4 IN NO EVENT SHALL A1TECH, ITS PARENT, ITS SUBSIDIARIES, ITS AFFILIATES, ITS MARKETING AGENTS, OR ANY OF THEIR RESPECTIVE OWNERS, SHAREHOLDERS, MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS, CONTRACTORS, CONSULTANTS, SUPPLIERS, VENDORS, INSURERS, ATTORNEY'S, OR AFFILIATES BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, DAMAGES FOR LOST PROFITS, IMPAIRED GOODWILL, INTANGIBLE LOSSES, OR DAMAGES CAUSED BY DELAY OR BUSINESS INTERRUPTION, WORK STOPPAGE, LOSS OF DATA, OR ANY OTHER PECUNIARY LOSS, MONETARY OR OTHER DAMAGES, FEES, FINES, PENALTIES, OR LIABILITIES, WHETHER IN AN ACTION FOR BREACH OF CONTRACT, NEGLIGENCE, OR OTHER WRONGFUL ACTION, REGARDLESS OF WHETHER A1TECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS INCLUDES DAMAGES INCURRED BY CUSTOMER, ITS OWN END USERS AND CLIENTS, OR ANY THIRD PARTY.
11.0 No Third Party Beneficiaries.
11.1 There are no third party beneficiaries to this Agreement. A1Tech disclaims any obligation to any party other than Customer and then only in accordance with the terms and limitations contained in this Agreement.
11.2 In the event that any End User or third party brings a legal claim or proceeding against A1Tech in connection with Services provided by A1Tech or this Agreement, Customer shall indemnify and hold A1Tech harmless from and against all liability, claims, damages, penalties, fines, costs, and expenses, including A1Tech's attorney's fees and court costs, incurred by A1Tech in connection with such claim or proceeding.
12.0 Confidential Information and Trade Secrets. Both parties acknowledge that during the term of this Agreement, each may obtain confidential information and/or trade secrets regarding the other party's business, operations, customers, and intellectual property. Both parties agree to treat all such information as confidential and to take reasonable precautions against disclosure of such information to unauthorized third parties during and after the term of this Agreement. The parties agree to use such information only for the purpose of carrying out this Agreement or as expressly permitted under this Agreement. Upon request, all documents, summaries, and abstracts constituting or containing the confidential information of the requesting party shall be returned by the receiving party, subject to the continuing licenses granted to A1Tech under Section 3.0 of this Agreement and the right of A1Tech to continue using materials as described therein.
13.0 Independent Contractor Relationship. The two parties are independent contractors. Neither party shall be deemed the agent or partner of the other and shall have no authority to bind the other party except as expressly stated in this Agreement.
14.0 Final Agreement. This Agreement, along with the retail order agreement shown here: Retail order page terms of service., constitutes the entire agreement between the parties and supersedes all prior proposals, negotiations, and communications (oral or written) regarding its subject matter. A1Tech may from time to time, at its sole discretion and upon reasonable notice to Customer, modify, amend, or supplement the terms of this Agreement.
15.0 Severability. The invalidity of any provision of this Agreement shall not affect the validity of any other provision of this Agreement. In the event that any provision of this Agreement is held to be unenforceable, the offending provision shall be replaced with a provision that reflects the original intent of the parties to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect.
16.0 Waiver. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Agreement.
17.0 Assignment. Customer shall not assign, transfer or otherwise delegate this Agreement. Any attempted assignment, transfer or delegation by Customer shall be null and void. A1Tech shall be permitted to assign its rights and obligations under this Agreement.
18.0 Termination. Either party may terminate this Agreement, without cause, by sending an email to the other party requesting said termination. Notwithstanding the termination, cancellation, or expiration of this Agreement for any reason, all of the warranties and indemnification obligations provided by Customer shall survive and remain in full force and effect.
19.0 Governing Law. This Agreement shall be construed under the laws of the State of Minnesota, United States of America.
20.0 Dispute Resolution. In the event of any dispute or controversy arising out of or relating to this Agreement, the parties agree to exercise reasonable efforts to resolve the dispute informally before submitting any claim to arbitration. The parties shall, without delay, continue to perform their respective obligations under this Agreement that are not effected by the dispute. To invoke the dispute resolution process, the invoking party shall give to the other party written notice of its decision to do so, including a description of the issues subject to the dispute and a proposed resolution thereof. Designated representatives of both parties shall attempt to resolve the dispute within five (5) working days after such notice. If those designated representatives cannot resolve the dispute, the President or another officer of each party shall conduct a telephone conference at a mutually agreeable time, within five (5) working days after request by either party, to discuss the dispute and their respective proposals for resolution. If the dispute is not resolved within five (5) working days of such telephone conference, either party may submit a claim to arbitration. Nothing in this Section shall limit A1Tech's right to terminate or suspend services due to Customer's failure to pay amounts due under this Agreement.
21.0 Arbitration. Any controversies or disputes arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association ("AAA") in accordance with the following procedures:
21.1 The parties shall endeavor to select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of this Agreement. In the event that the parties are unable to agree to such a selection, each party will select an arbitrator and the arbitrators in turn shall select a third arbitrator.
21.2 The arbitration shall take place in Minneapolis, Minnesota or otherwise at a location mutually agreed upon by the parties.
21.3 All documents, materials, and information in the possession of each party that are relevant to the claim(s) or dispute(s) shall be made available to the other party for review and copying no later than thirty (30) days after written request for access to such materials. Neither party may introduce exhibits at the hearing, except for impeachment or rebuttal purposes, unless such party has provided the other party with prior access to such documents as set forth in this section.
21.4 The arbitrator(s) shall not have the authority, power, or right to alter, change, amend, modify, add, or subtract from any provision of this Agreement or to award punitive damages. The arbitrator(s) shall have the power to issue mandatory orders and restraining orders in connection with the arbitration.
21.5 The award rendered by the arbitrator(s) shall be final and binding on the parties, and judgment may be entered thereon in any court having jurisdiction. The agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law.
21.6 The cost of the arbitration shall be split equally between the parties, subject to the provisions of Section 25.0 of this Agreement in the event that A1Tech shall prevail.
22.0 Injunctive Relief. The parties agree that any breach of this Agreement may result in irreparable harm to one or the other party, for which damages would be an inadequate remedy, and therefore, in addition to the rights and remedies otherwise available at law, the parties shall be entitled to seek equitable relief, including an injunction to restrain the breaching party, or any director, officer, employee, partner, agent, servant or other individual through whom the breaching party may be acting, from any further or continued breach of this Agreement.
23.0 Deadline for Asserting Claims; Statute of Limitations. The parties agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this Agreement must be brought within one (1) year after such claim or cause of action arose or be forever barred.
24.0 Exclusive Venue and Jurisdiction. All claims, actions, arbitrations, or disputes between the parties shall be brought ONLY in the State of Minnesota, United States of America. Customer agrees that Minnesota is a convenient forum for resolving such disputes, and waives the right to request the transfer of venue of any arbitration or proceeding outside of Minnesota.
25.0 Attorney's Fees and Costs. In the event of any arbitration or legal proceeding arising out of this Agreement, or the performance or interpretation this Agreement, A1Tech shall be entitled to recover from Customer (and Customer agrees to pay) A1Tech's reasonable attorney's fees, costs, disbursements, arbitration fees, witness fees, expert fees, and all other expenses, if A1Tech prevails in such dispute or proceeding.
25.0 Retail order page:
In addition, if "customer" uses our retail order page (our buy now buttons), the following terms and fees apply: Click here for retail order page terms of service.
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