Any order submitted to Smashed Plastic, LLC (“Smashed Plastic”), by you (“Customer“) shall be accepted entirely at the discretion of Smashed Plastic and will only be accepted upon the following Terms and Conditions (“Conditions”).
Order Submission and Acceptance. Each accepted order constitutes an individual, legally binding contract between Customer and Smashed Plastic, and such contract is hereinafter referred to in these Conditions as an “Order.” Orders will be accepted only at Smashed Plastic’s office in Chicago, IL upon written confirmation from an authorized representative of Smashed Plastic. Smashed Plastic reserves the right to refuse acceptance of any Order for any reason.
Services. Based on the Order, Smashed Plastic shall supply products and services, including but not limited to, print and packaging, replication of vinyl, mastering services (via third party mastering studio), fulfillment and distribution (“Products”).
Payment Terms. A 50% deposit is due before Smashed Plastic will consider the Order complete. The remaining balance plus shipping costs are due upon completion of Order and prior to shipping or pick up of Customer’s completed Products. Smashed Plastic accepts money orders, checks, direct wire transfer and all major credit cards. Only U.S. funds are accepted. If certified funds are not submitted, Smashed Plastic reserves the right to wait ten 19) business days to allow Customer’s check to clear before starting the Order. In the event of non-sufficient funds, Smashed Plastic reserves the right to charge a $30 fee. The balance of payment for Customer’s order is due when Customer submits its approval of the Test Pressing.
Completing the Order. Jobs will not be scheduled for pressing until all data required for the production of Products, e.g. artwork, masters, signed IPR forms and other necessary copyright clearance documents (“Source Materials”) have arrived in our warehouse along with Customer’s 75% deposit.
Changes. If the Customer (i) requests changes to specifications or processing of the Products, or (ii) fails to provide artwork in accordance with Smashed Plastic’s technical specifications, Smashed Plastic may make all necessary corrections and produce the Product accordingly, but is entitled to charge the Customer the reasonable cost of the extra work.
Test Pressing. Smashed Plastic will begin working on Customer’s Order once Customer’s deposit and Source Materials are received. Before pressing Customer’s final Product, Smashed Plastic shall provide a physical Test Pressing of the record to be shipped via mail, picked up at Smashed Plastic’s offices or scheduled for a listening session at Smashed Plastic HQ. Test Pressings are provided so that Customer may preview the audio quality of their Order. Smashed Plastic shall not begin pressing the final Order until Customer has submitted their written approval of the Test Pressing.
Cancellations. In the event Customer cancels an Order, Customer shall be charged a cancellation fee of $25 plus the cost of returning Customer’s Source Materials, along with any production costs incurred prior to the cancellation. Once Customer approves the Test Pressing, NO CHANGES OR CANCELLATIONS to Customer’s Order shall be permitted or accepted for any reason.
Turnaround and Delivery. Smashed Plastic shall provide a good faith estimate of the turnaround time for Customer’s Order. However, exact turnaround times are not guaranteed. Pressing and shipping dates are dependent on Customer’s timely approval of the Test Pressing. Smashed Plastic agrees to use commercially reasonable means to complete Customer’s Order within the quoted timeframe, however, exceeding the agreed date of delivery by Smashed Plastic shall not constitute a breach of contract and shall not entitle Customer to annul or terminate the Order in whole or in part and/or form the basis for any claim for damage suffered by Customer or others. Furthermore, Customer shall not hold Smashed Plastic liable for order delays related to third parties.
Force Majeure. If Smashed Plastic is unable to deliver on time due to force majeure, the time for delivery shall be extended, and Smashed Plastic shall send Customer a new quote with an updated delivery date on a best efforts basis. Alternatively, Smashed Plastic may terminate the Order and shall not in any event be liable to the Customer for any direct, indirect or consequential loss or damage. Force majeure events shall include but are not limited to, mobilization, war, civil insurrection, terrorism, acts of government, non-granting of required export permissions or other licenses, epidemics, riot, explosion, accidents, flood, fire, sabotage, shortages of means of transport fuel or energy shortages or delay or accident in shipping or transportation, strike, lock-out, raw material shortages, restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, lack of transportation, interruption of electricity and forces of nature.
Storage of Products. If the Products scheduled for pickup are not collected from Smashed Plastic’s warehouse within one (1) month of Order completion, Smashed Plastic is entitled in its absolute discretion to destroy or otherwise dispose of the Products.
Insurance. Customer is responsible for providing its own insurance coverage, including for any source materials in Smashed Plastic’s possession.
Quantity Tolerances. The difference between the quantity of Products determined in the Order and the actual delivered quantity of the Product may not exceed ten (10) percent. If Customer receives Products containing volume deficiencies beyond 10 percent, Customer must notify Smashed Plastic within 48 hours providing reasonable documentation to support its claim.
Shipping and Defects Liability. Title and risk of loss of goods shipped shifts to Customer and carrier at the time and place of shipment. All shipping costs will be borne by Customer.
Customer shall be deemed to have accepted all goods upon their delivery to the address specified in the Order. Customer shall inspect the Products immediately upon delivery. The Customer shall be entitled to refuse acceptance of delivery only if the Products are visibly and substantially defective and the Customer provides Smashed Plastic with specific written notice thereof within three (3) days of delivery of such Products. In cases where there is allegedly damage which could have been caused during transportation and which such a reasonable inspection would reveal, Customer must deliver to Smashed Plastic a shipping document executed by both Customer and a representative of the shipping agent stating the nature and scope of the damage. Customer must notify Smashed Plastic of any hidden defects in the Products within forty-eight (48) hours of discovering them; any such notification and claim of hidden defects shall be made no later than two (2) months after the date of delivery. Any valid rejection or refusal by Customer shall revest title in the goods in Smashed Plastic by operation of law.
Refunds and Replacements. Provided that notification has been given in accordance with the above clauses and that good cause for refusal of acceptance has been established, Smashed Plastic will repair or, at its absolute discretion, replace any defective products and make good any volume deficiencies free of charge and within a reasonable time
PROVIDED THAT:
Copyright Compliance. Smashed Plastic values the rights of copyright owners to protect their works. We will not accept or process any orders where IPR Forms are missing or incomplete, and it is the Customer’s duty to provide timely and accurate documentation of any necessary rights, licenses and clearances. Customer shall fill out an IPR Form with every Order, and Smashed Plastic is entitled in its absolute discretion to require further evidence or documentation, the sufficiency of which is determined exclusively by Smashed Plastic, that Customer possesses all the relevant rights and licenses regarding any copyright or any other intellectual property right of any third party.
Copyright Warranty. By submitting an Order to Smashed Plastic, Customer represents and warrants that:
Indemnity. Customer shall defend, indemnify and hold harmless Smashed Plastic or its Subsidiaries from and against any claim, dispute, proceeding, action, fine, penalty, suit, loss, expense, damages including punitive damages, and cost (including all attorney fees) arising out of or relating to any infringement or alleged infringement of any copyright or any other proprietary right of any third party by the Products.
License. Customer grants to Smashed Plastic a worldwide, royalty-free, non-transferable license to reproduce and distribute copies and phonorecords of the literary, musical, pictorial, graphic, and sound recording works encompassed within the Product to the extent necessary for Smashed Plastic to fulfill Customer’s order. Smashed Plastic reserves the right to retain copies and phonorecords of vinyl records, print product, or other Customer order materials at no cost to the Customer for the purpose of providing samples and archiving.
Samples. Orders submitted to Smashed Plastic are audio tested. If the source material submitted contains samples of any kind the Customer may be asked to 1) provide the required Master and Mechanical licenses and/or permissions from the original artist or rights holder OR 2) edit out the sample OR 3) the order will be rejected. If the order is rejected, Customer will be billed for a cancellation fee, plus any charges incurred to the point of audio testing. Notwithstanding the aforementioned audio testing, it is the sole responsibility of the Customer to identify and clear any samples, interpolations, or any other work or portion of work of any third party that is incorporated into the Product, and any claim arising out of Customer’s use of such works shall be subject to the paragraph entitled “Indemnity” above.
Severance and Waiver. If any provision of these Conditions or the Order is held by a court or other competent authority to be invalid, illegal, unlawful, void or unenforceable, it shall be deemed to be severed and deleted from the Order and shall be of no force and effect. The Order shall remain in full force and effect as if such provision had not originally been contained in the Order. In the event of any such deletion, the parties shall negotiate in good faith in order to replace the deleted provision with a mutually acceptable and satisfactory alternative provision. Failure to agree to a substitute term shall not otherwise affect the validity and enforceability of the remainder of the parties’ agreement.
Final Agreement. These Conditions shall supersede any contrary or conflicting terms or conditions (if any) contained on or referred to in an order form or other documents or correspondence from the Customer, and no addition, amendment, alteration or substitution of these terms will bind Smashed Plastic or form part of any Order, unless expressly accepted in writing by a person authorized to sign on Smashed Plastic’s behalf. These Conditions shall also govern all future supplies and transactions between Smashed Plastic and Customer.
Governing Law. This Agreement shall be governed by and constructed in accordance with the laws of the State of Illinois.
Arbitration. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction.
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