Dynamic Media Terms and Conditions
These Terms and Conditions (“Terms and Conditions”) of Company shall govern and apply to the sale by Company of any players, music, content or other products of Company to Customer and shall be made a part of and incorporated into any service agreement, order, order form, electronic order, purchase order, order acknowledgement, invoice, agreement or contract (each of the foregoing, together with these Terms and Conditions, the “Agreement”).
Music Services. Company shall provide to Customer an on-site library of music and other content (the “Provided Music”) and shall provide refreshment of such content for each Customer location (the “Music Services”) pursuant to the Agreement. Some programming and/or channels available through the Music Services may include explicit language, which may not be appropriate for Customer’s patrons. It is Customer’s responsibility to impose listening restrictions that Customer considers appropriate for its environment. The Music Services may be unavailable or interrupted from time to time for a variety of reasons, such as environmental or topographic conditions and/or other things Company cannot control. The Music Services might also not be available in certain places (e.g., in tunnels, parking garages, or within or next to buildings) or near other technologies. Company is not responsible for any noise and/or interruptions of the Music Services.
Player. Company agrees to sell and Customer agrees to purchase a playback device (the “Player”) per Customer location pursuant to the Agreement. The computer software residing on the Player (the “Player Software”) is protected by copyright laws and is licensed, not sold, to Customer for the term of the Agreement. Customer may not copy, assign or transfer (by operation of law or otherwise) the Player Software to any other party. In no event shall Customer reverse engineer, decompile or disassemble the Player Software or use the Player Software for any purpose other than to play the Provided Music at Customer locations set forth in the Agreement. Customer acknowledges that Company’s licensor owns all right, title and interest in the programming of the song selections, or “compilations,” provided to Customer locations, and that the copyright for such compilations belongs exclusively to Company’s licensor.
Player Warranty. For the one (1) year period following Customer’s receipt of a new Player at a Customer location (the “Warranty Period”), Company shall repair or replace a defective Player at no additional charge to Customer (excluding any shipping charges related thereto), provided that the defect is not as a direct or indirect result of Customer’s improper or out of the ordinary use of the Player. In order to receive the repair or replacement of a defective Player, contact the Dynamic Media Business Loyalty Team at 586-978-4214. If Company chooses to replace a defective Player, the defective Player must be shipped to Company at Customer’s expense within thirty days of receiving a new Player. Failure to return the defective Player within thirty days will result in Customer being charged for the new Player. After the Warranty Period, Customer shall be responsible for any costs associated with repair (including any component replacement and shipping charges) of the Player. If Customer requests Company to arrange an on-site installation or service visit related to a Player component or to the sound system located at any Customer location, Customer agrees to pay the cost of any such visit, even if such a visit is merely diagnostic in nature or occurs during the Warranty Period. Any Player or equipment sold by Company may be covered by specific warranties extended by the manufacturer of said Player or equipment, but such manufacturer’s warranties are excluded from and not a part of the foregoing warranty.
DISCLAIMER; LIMITATION OF LIABILITY: THE WARRANTY SET FORTH IN THIS SECTION 4 ONLY APPLIES TO THE PURCHASE OF A NEW PLAYER AND DOES NOT APPLY TO THE PURCHASE OF USED OR REFURBISHED PLAYERS, IS GIVEN SOLELY TO CUSTOMER AND IS IN LIEU OF ALL OTHER WARRANTIES EITHER EXPRESSED OR IMPLIED. COMPANY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFIT, BUSINESS INTERRUPTION OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE PLAYERS OR MUSIC SERVICES, EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, WITHOUT LIMITING THE FOREGOING, COMPANY’S LIABILITY FOR THE PLAYER SHALL BE LIMITED TO REPAIR OR REPLACEMENT OF THE PLAYER, AND ANY DAMAGES SHALL IN NO EVENT EXCEED THE AMOUNT OF THE CHARGES PAID BY CUSTOMER TO COMPANY WITHIN THE TWELVE MONTH PERIOD IMMEDIATELY PRIOR TO THE SPECIFIC EVENT THAT GAVE RISE TO THE DAMAGE. COMPANY DOES NOT WARRANTY COMPATIBILITY OF ANY PLAYER OR EQUIPMENT SOLD BY COMPANY WITH ANY OTHER EQUIPMENT PROVIDED BY A THIRD PARTY.
Shipment, Delivery, Inspection. All shipments are F.O.B. Sterling Heights, MI. The risk of loss or damage to the Products in transit shall fall upon the Customer, whose responsibility it shall be to file claims with the carrier and/or the insurance company.
Restrictions. Customer shall use the Player only to provide foreground or background music at the Customer locations listed in the Agreement and shall not amplify, transmit or re-transmit the broadcast of Provided Music so as to be audible outside any such premises (beyond ordinary patio or other outdoor speaker usage, which is permissible), nor transmit Provided Music outside any such premises. Customer shall not, without the prior written consent of Company, (i) use Provided Music in conjunction with any advertising or commercial message or entertainment or other public event at a Customer location for which Customer or any other person receives consideration of any kind (ii) use Provided Music at the premises listed herein for any customer location for which an admission fee is charged or (iii) transmit, re-transmit, alter, record or reproduce (or permit the transmission, re-transmission, alteration, recording or reproduction of) any Provided Music other than as expressly permitted under this Agreement. The Player(s) and/or Provided Music shall not be removed from the premises of any Customer location without the prior written consent of Company.
Default; Remedy. If Customer breaches the Agreement for any reason, Company in its sole discretion, and in addition to its other remedies, may terminate this Agreement and withhold any further distribution of additional Provided Music. Customer shall reimburse Company for costs and expenses incurred in connection with Company’s exercise of its rights under this Agreement, including without limitation its costs of collection and reasonable attorneys’ fees. Customer acknowledges and agrees that, if at any time Customer is late in its payments due to Company, Company may withhold distribution of Provided Music to the Customer locations until such time as Customer pays the balance of payments due and owing to Company. In such event, where Company exercises its right to withhold Provided Music to the store locations as a result of Customer being late in its payments to Company, Customer acknowledges and agrees that (1) the full and regular monthly music/content service fees shall continue to accrue with respect to such store locations notwithstanding the fact Provided Music are being withheld, and (2) Company will not be obligated to send retroactive Provided Music once Customer pays the balance of payments due and owing to Company.
Purchase Order Fulfillment. IN NO EVENT SHALL A CUSTOMER INVOICE, PURCHASE ORDER OR OTHER CUSTOMER ORDER DOCUMENT (EACH, A “CUSTOMER PO”) MODIFY ANY OF THESE TERMS AND CONDITIONS. NEITHER CUSTOMER NOR COMPANY WILL ACCEPT AND HEREBY OBJECTS TO ANY TERMS OR CONDITIONS OR OTHER WRITING IN A CUSTOMER PO THAT IS DIFFERENT FROM OR ADDITIONAL TO THE TERMS AND CONDITIONS CONTAINED IN THESE TERMS AND CONDITIONS. NO TERM OR CONDITION OF A CUSTOMER PO EXPRESSLY INCLUDING ANY EFFORT TO NEGATE THE TERMS AND CONDITIONS SET FORTH IN THESE TERMS AND CONDITIONS SHALL BE EFFECTIVE OR BINDING AGAINST THE OTHER PARTY. THESE TERMS AND CONDITIONS SHALL CONSTITUTE WRITTEN NOTICE BY CUSTOMER AND COMPANY OF OBJECTION TO AND REJECTION OF, ANY TERM OR CONDITION IN A CUSTOMER PO THAT IS INCONSISTENT WITH THE TERMS AND CONDITIONS CONTAINED IN THESE TERMS AND CONDITIONS. COMPANY SHALL NOT BE DEEMED TO HAVE IN ANY WAY ENLARGED OR MODIFIED ITS LIABILITIES OR OBLIGATIONS UNDER THESE TERMS AND CONDITIONS BY FILLING ANY ORDER OR BY FAILING TO FURTHER OBJECT TO CUSTOMER’S TERMS OR CONDITIONS IN A CUSTOMER PO.
Payment Terms; Taxes. For the Music Services and Player(s) provided hereunder Customer shall pay Company as set forth in the Agreement. Customer shall pay for expenses related to shipping the Players and any other equipment to the premises listed herein for Customer locations. Any special transportation arrangements related to delivery of music content and/or equipment shall be at Customer’s expense. Company may increase music service fees at any time in its sole discretion. The respective Music Service fees shall be invoiced and paid in advance on a net thirty (30) days basis. The fees and charges in this Agreement do not include applicable sales or other taxes, which shall be paid by Customer. Customer agrees to pay all attorneys’ fees, litigation expenses and costs allowable by law that are incurred by Company for the collection of all amounts owed by Customer to Company. Company reserves the right to charge a fee for all returned checks.
Music Rights Fees. If Customer’s commercial establishment uses the Music Services as its sole music source, Customer is not responsible for the payment of any copyright royalties to ASCAP, BMI, SESAC, or GMR for any sound recordings, as these are included in the Fees, unless Customer (i) operates an establishment for which an admission fee or cover charge is assessed (e.g., ballrooms, discotheques, dance studios, bowling centers, theme park, skating rink, nightclub, etc.) limited to such portion of the premises from the event or entertainment for which admission is charged is intended to be observed or heard, (ii) uses the Music Service for instructed health club classes, or (iii) uses music sources other than the Music Services (e.g. CDs, DJs, live music or terrestrial radio, etc.), in which case Customer shall be responsible for payment of any and all copyright royalties to ASCAP, BMI, SESAC, GMR and/or for any sound recordings.
Credit Card Authorization. Customer authorizes Dynamic Media to charge the submitted credit card on a periodic and recurring basis for the amount due for Music Services with Dynamic Media. This recurring payment authorization/periodic charge shall remain in force until cancelled per this Terms of Service. Customer will not dispute Dynamic Media’s recurring billing with their credit card issuer so long as the amount in question was for services rendered prior to customer canceling their account in the manner required. Customer guarantees and warrants that they are the legal cardholder for this credit card and that they are legally authorized to enter into this one time or recurring billing agreement with Dynamic Media.
Termination. Customer may terminate its subscription of Music Services at any Customer location upon providing thirty days written notice to Company. Customer will receive a pro-rated refund of any prepaid subscription fees based on the number of full calendar months remaining on the date of cancellation; provided, however, if Customer is operating on a one-year prepaid subscription for Music Services and cancellation occurs prior to the fulfillment of 12 calendar months, a $75 dollar early termination fee will apply per subscription. Upon termination or expiration of the Agreement, Customer shall cease using the Music Services, and at such time Company shall not be responsible for any copyright royalties related to the playback of music in Customer’s locations thereafter. Within ten (10) days of the date on which Service(s) are terminated, Customer will return all Company Equipment, which shall herein be defined any radio, device, hardware, software, cabling, adapter, or any other component that is owned by Company provided for use at Customer Location, to Company in working order, normal wear and tear excepted. Otherwise, Customer will be charged the retail price for a new replacement. Customer may also be charged incidental costs that Company incurs in replacing the Company Equipment.
Miscellaneous. The Agreement shall be governed by, and construed and enforced in accordance with the laws of the State of Michigan. If any clause or provision of the Agreement shall be held in violation of applicable law, or otherwise invalid or unenforceable, the Agreement shall be interpreted as if such provisions were limited to the extent legally permitted or, if such a clause or provisions shall be prohibited in its entirety, it shall be null and void and the Agreement as so modified shall remain in full force and effect. Buyer and Seller specifically agree that any legal action brought relating to the Agreement will be brought and tried in the federal or state courts located in Macomb County, Michigan. Any terms and conditions or other provisions issued by Customer in connection with the subject matter of any Agreement, which are in addition to or inconsistent with the Terms and Conditions expressed herein will not be binding upon Company in any manner unless accepted by Company in writing. Customer may not assign the Agreement without the prior written consent of Company.
Returns and Exchanges. Special order equipment is non-returnable. Regular orders returned within 30 days of receipt in the original, unopened packaging and in working condition will be returned less a 15% restocking fee. Items returned within 30 days of receipt in opened packaging will be returned less a 30% restocking fee. Please notify Company by phone or email prior to the return for authorization. Customer is responsible for returning the item(s) pre-paid and insured to Company. Any credit issued will not include original shipping and warranty charges. Labor that has already been performed and services that have already been rendered (such as monthly music service) cannot be returned. Company reserves the right to not accept a return.
Collection and Use of Personal Information. Personal information is data that can be used to uniquely identify or contact a single person. In order to set up an account with Dynamic Media, you will be required to provide personal information, such as name, business address, phone number, email address, etc. From time to time, we may use your personal information to send important notices, such as invoices and changes to our terms and policies. Because this information is important to your interaction with Dynamic Media, you may not opt out of receiving these communications. We may also use your personal information to communicate new products, product specials, or other programs you may find important. These communications are informational in nature and at any time, you may opt out using a link in the email. Dynamic Media may share your information with affiliated third parties where required, legally or otherwise, to provide the services to you. Dynamic Media will never sell or share your information with unaffiliated third parties or those parties not involved in the chain of service provisioning or performance licensing.
Extended Limited Warranty. This section applies only to those customers that have purchased a Dynamic Media Extended Limited Warranty Plan. Company warrants to the original purchaser of the Company provided equipment (“the Product”) that the Product will remain free from defects in materials and workmanship under normal use for the selected extended warranty term; provided, however, that (1) this Extended Limited Warranty applies only to Products that were purchased from Company; and (2) this Extended Limited Warranty extends only to the original purchaser of the Product. Protection under this Extended Limited Warranty is not transferable to anyone who subsequently purchases the Product from the original purchaser.