Acutrack’s Terms & Conditions
The submission of your production and/or fulfillment order to Acutrack, Inc. indicates your acceptance of “ALL” of Acutrack, Inc.’s terms and conditions herein.
Your signature or the signature of an authorized individual from your organization on a copyright validation form will be treated as a legally binding document for printing and manufacturing services. All copyright disputes will be the sole responsibility of the customer.
Acutrack will make every attempt to produce only the quantity ordered. Overruns or under runs will not exceed five (5) percent of the quantity ordered. Acutrack will bill for the actual quantity delivered within this tolerance and up to 5% overs are considered billable.
Prices to be charged for services and materials provided to customer hereunder shall be in accordance with Acutrack's most recent written, unexpired quotation to Customer. All quotations are subject to visual inspection of the project. Unless otherwise specified, all written quotations expire thirty (30) days from their date of issue. Quoted or listed prices do not include sales, use, excise, or similar taxes. The amount of any tax applicable to customer's purchase shall be paid by customer.
Customer confidential information:
If customer discloses its confidential information to Acutrack for purposes of this agreement and clearly identifies such information in writing as "confidential," Acutrack shall use reasonable care to assure that such information is disclosed only to those persons requiring access thereto in order to carry out the work required of Acutrack. This paragraph shall not limit Acutrack's rights to use and to disclose such alleged confidential information if it (a) is or becomes available to the public without default by Acutrack of these terms; (b) is lawfully acquired by Acutrack from a third party; (c) is in the possession of Acutrack at the time of disclosure by customer, or (d) is developed by or on behalf of Acutrack by persons who have not received customer's confidential information hereunder.
Customer represents and warrants that, with respect to any information or materials furnished to Acutrack under this agreement, it has the necessary rights and authority to allow Acutrack to perform the services requested under this Agreement so as not to result in customer or Acutrack infringing any trademark, copyright, patent, trade secret, contract, property right, or third party rights of any kind, whether statutory, legal or equitable. Customer further represents and warrants that having Acutrack perform the services requested will not violate any legal statute, lawful order, or regulation, including, but not limited to, those regarding copyright, obscenity, and national security. Customer will indemnify, defend, and hold harmless Acutrack and its employees, agents, contractors, successors, and assigns from any loss, claim, liability, and expense (including reasonable attorney's fees and other litigation expenses) with respect to any threatened or actual legal action, whether administrative, civil or criminal, regarding the information or materials furnished by customer to Acutrack under this agreement.
Customer limitation of remedies:
Customer shall retain title to the intellectual content of any materials sent to Acutrack for printing, manufacturing, fulfillment or other work. Customer shall maintain a copy of, or the ability to reconstruct, all such information sent to Acutrack. If customer's assets or data are lost or damaged while in Acutrack's actual possession from any cause whatsoever (including the negligence of Acutrack), Acutrack shall not be held responsible. Acutrack shall not be held responsible for any loss or damage to customer's assets or data while in transit to or from customer.
Electronic manuscripts and images:
It is the customer's responsibility to maintain a copy of the original file. Acutrack is not responsible for accidental damage to media supplied by the customer or for the accuracy of furnished input or final input. Until digital input can be evaluated by Acutrack, no claims or promises are made about Acutrack's ability to work with jobs submitted in digital format, and no liability is assumed for problems that may arise. Any additional translating, editing, or programming needed to utilize customer-supplied files will be charged at prevailing rates.
Production schedules will be established and followed by both the customer and Acutrack. There will be no liability or penalty for delays due to a state of war, riot, civil disorder, fire, strikes, accidents, action of government or civil authority, acts of God, or other cases beyond the control of Acutrack. In such cases, schedules will be extended by an amount of time equal to the delay incurred.
Unless otherwise specified by Acutrack, all customers must pay in full with placement of order. Credit accounts will be considered upon receipt of completed and signed credit application and/or personal guarantee of payment. Invoices will be issued once the requested services are completed. Customer requests to cancel or modify an order for which work has commenced shall be honored to the extent possible, and customer shall be invoiced for all work performed prior to such cancellation or modification. Claims for adjustments must be presented to Acutrack in writing within ten days from the date of invoice. Customer shall pay all invoiced amounts upon receipt of invoice, or by such date as may be indicated on the invoice. Customer agrees to pay all attorney fees, collection fees, court costs and other expenses incurred by Acutrack to enforce its rights under this agreement.
All shipments shall be F.O.B., Livermore, CA. Shipping charges and risk of loss or damage in transit shall be Customer's sole responsibility. If any shipment crosses an international border, the goods will be labeled to reflect the country of origin so as to conform to applicable laws, and customer consents to such labeling at Acutrack's expense. Acutrack reserves the right to make partial shipments and to delay shipments until payment in full has been received for any amounts past due.
At its sole discretion, Acutrack may subcontract part or all of customer's order to other manufacturers and/or service providers. Any such arrangement in no way will serve to relieve Acutrack's responsibilities under this Agreement.
Abandoned Account and Liquidation
If your account remains unpaid for a period greater than 60 days, then Acutrack reserves the right, at its sole discretion to reclassify your Account as an “Abandoned Account.” Additionally, any Account that remains unpaid for greater than 120 days will automatically be deemed an Abandoned Account. Upon an Account becoming an Abandoned Account, all rights to ownership of the Account Balance and inventory would then immediately be forfeited by you. Inventory will become immediately and irrevocably unavailable to you, and liquidation proceedings would begin. You agree the inventory would be free and clear of liability, and that you would assume any liability therefore. You would have no rights to the liquidation proceeds. You would also remain liable for any pending Usage Fees above and beyond the liquidation proceeds.
Service Level Terms
Expedited (Next day Service): Orders sent to the warehouse by 06:30 AM PST will be available for carrier pick up the same day. For orders submitted to the warehouse past the cut-off for Same Day Shipping, all orders will be shipped within a 24 hour time period
Priority (2-day Service): Orders sent to the warehouse by 06:30 AM PST will be available for carrier pick up within 24 hours. For orders submitted to the warehouse past the cut-off for Same Day Shipping, all orders will be shipped within a 48 hour time period
Standard orders (Ground service, first class, media mail):Orders sent to the warehouse by 06:30 AM PST will be available for carrier pick up within 48 hours. For orders submitted to the warehouse past the cut-off for Same Day Shipping, all orders will be shipped within a 72 hour time period
Shipments made during “Peak Season” dates including the first week of December, Mondays during December, December 12th-25th and New Year’s Eve. During Peak Season dates Acutrack will endeavor to maintain our shipping service level; however, we cannot offer the service level guarantees due to unforeseeable spikes in merchant shipping volume.
Remedy: If an order is sent to the warehouse by 06:30 AM PST and we do not ship in the time period defined herein we will review and at our discretion credit your Account the item order handling/pick fee. We will not be responsible to cover shipping cost. To make a claim under one or more of the Service Levels, your Account must be in good standing and no exclusions must be present. For Shipping Accuracy service level you must use the “Submit a support ticket” in Acutrack’s customer portal (www.acutrack.com/customerportal)
LIMITATION OF LIABILITY
Annual Goods Shrink-Allowance:
Handling physical products could result in loss or damage of inventory. We maintain high standards, however occasionally facilities experience concealed shortages, product damages, mislabeled, mis-picked product and/or cross-shipments. Acutrack maintains merchant friendly receiving and product labeling requirements. You agree that Acutrack will have a 2% shrink allowance based on the value of your account’s product known to be in the facility based on the stated cost value measured on an annual basis and subject to Limitations of Liability in Section 8 below. Explainable, offsetting inventory adjustments based on mis-marked inventory or receiving inventory errors will not be deemed an inventory shrinkage event or lost inventory.
Damage or Loss of Inventory:
INVENTORY INSURANCE IS AVAILABLE. IN THE EVENT OF LOSS, DAMAGE OR DESTRUCTION OF INVENTORY (“INVENTORY LOSS”) FOR WHICH ACUTRACK IS LEGALLY LIABLE, YOU DECLARE THAT ACUTRACK’S LIABILITY SHALL BE LIMITED TO REPLACEMENT VALUE OF THE PRODUCT.
CHOOSING A CARRIER:
In the U.S., there are two types of carrier services: track able and delivery confirmation. Track able services, such as FedEx, UPS and the US Postal Service’s Express service, all include door-to-door tracking. Typically a track able service costs more than a “delivery confirmation” service, such as the US Postal Service’s Priority and First Class package services. FedEx, UPS offer tracking on all services internationally. The US Postal Service offers tracking on Express International shipments. No other USPS services offer reliable tracking or delivery confirmation internationally.
Acutrack is responsible to delivery to carrier in good condition and properly packed. Acutrack is not responsible for damage in transit. However, Acutrack can assist in filing a claim if insurance shipping carrier is used during shipment. Not all shipments come with insurance. All FedEx, UPS shipments come with $100 insurance included, as do US Postal Service Express shipments.
Additional Fees:Fees related to Customs and security, failed pickup or delivery, returns, labor and waiting time, and re-consignment, may be assessed and these additional charges and may incur additional transit day(s). Acutrack further reserves the right to bill additional fees, along with Acutrack administrative fees, for address corrections and other carrier adjustments that are billed to Acutrack by transportation carriers and agencies.
Ancillary, Brokerage, Fuel and Beyond Charges: A shipment that originates from, or is destined to, a rural location or a location distant from a commercial center may be assessed additional charges and may incur additional transit day(s). Known surcharges like Fuel surcharge and Delivery Area surcharges will typically be included at the time of shipment. Some surcharges and fees are not known until after delivery has been made, (e.g. wait time, additional delivery attempts, redirect fees, address correction fees). You are responsible for any invoiced surcharge or fee for shipments from your account. Acutrack may bill these charges in arrears without additional notice.
Shippable Addresses: You are responsible for the accuracy and deliverability of order shipping addresses. Acutrack may, at its discretion, verify some order shipping addresses, but this is not a replacement for merchant address diligence and verification. If Acutrack provides an order shipping estimate on the basis of an address later discovered to be inaccurate or incomplete, the merchant is responsible for any applicable address correction fees, or for any difference in shipping cost due to differences between the merchant-provided address and the actual address. Examples of discrepancies for which the merchant may be responsible include, but are not limited to, incomplete addresses, commercial/residential address status, and rural address status.
International Shipping: Acutrack offers International shipping on a “best efforts” basis because we cannot guarantee delivery due to the unknowns involved with cross-border shipping. Customs and Customs agents can delay, refuse to process, assess brokerage, lose or impose unanticipated customs, tax or duties to international shipments at their discretion. Even perfectly documented shipments can be returned to the warehouse with no reasons indicated. Acutrack will not refund or guarantee an international shipment that was lost or returned.
International CDT: Customs, Duties and Taxes (“CDT”) on any international shipment charged by the carrier are the responsibility of the merchant and will be charged back to the merchant regardless of whether they were or were not in the initial shipping estimate, or whether the order was or was not delivered.
Warranty (Limited) and limitation of remedies:
Acutrack warrants to its original customer that the goods furnished to the customer under this agreement are free from defects in materials and workmanship at the time of customer's purchase. If any of the goods are found to be defective within one year from the date of purchase, Acutrack will, as customer's sole and exclusive remedy, at its option either repairs, replace, or refund the amount paid by customer to Acutrack for any goods that are returned to and found to be defective by Acutrack. This warranty does not apply to product failures resulting from accident, abuse, alteration, neglect, improper handling or storage or wear from ordinary use. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS PARAGRAPH, Acutrack DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY AS TO PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL Acutrack BE LIABLE FOR, AND CUSTOMER EXPRESSLY WAIVES ANY CLAIM FOR, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO LOST SALES, PROFITS ETC. Notwithstanding any other provision of this Agreement and in no event, including without limitation delay or failure of delivery, shall Acutrack's liability to customer under any theory exceed the amount paid by customer to Acutrack hereunder. 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 year after the cause of action has accrued.
Other general terms
(a) No waiver or modification of the relations between the parties, including a course of dealing or of performance, shall be effective unless ratified in writing and signed by both parties. Any failure or delay by either party in exercising any right or remedy in one or many instances will not prohibit a party from exercising it at a later time or from exercising any other right or remedy.
(b) This agreement, the applicable price schedules referred to herein, and any attached Production Details, all of which are incorporated and made a part hereof by this reference, supersede all prior agreements, if any, whether written or oral, expressed or implied, between the parties with respect to the subject matter contained herein.
(c) Each party agrees that it has not relied on any representation, warranty, or provisions not explicitly stated in this agreement, and that no oral statement has been made to either party that in any way tends to waive any of the terms or conditions of this agreement. This agreement constitutes s the final written expression of all terms of the agreement, and it is a complete and exclusive statement of those terms. No part of this Agreement may be waived, modified, or supplemented in any manner whatsoever except by a written instrument signed by duly authorized officers of the parties.
(d) This agreement shall be governed and construed in accordance with the laws of the state of California, excepting that body of law concerning conflicts of law. Any dispute or legal proceeding regarding this Agreement shall take place in the county of Alameda, State of California. Customer agrees to venue within that district and submits to the jurisdiction of the courts within that district.