Please see here for our terms of sale and the general terms and conditions for provision of services by Memnon Inc. The bottom part also outlines our Terms and Conditions for any vouchers and discount promotions.
General Terms and Conditions
Terms and Conditions for Sales & Services
1.1 These terms and conditions ("Terms and Conditions") apply to all offers, quotations and contracts for the provision of archiving and digitising services (the “Services”) by Memnon Inc. with registered office at Innovation Center, 2719 East 10th Street Bloomington, IN 47408 ("Memnon") to any purchaser or potential purchaser of Services ("Client").
1.2 Any agreement between Memnon and Client in respect of the delivery by Memnon of Services shall be binding only if, and to the extent that, an individual order for Services is accepted by Memnon following inspection of Materials as set out in Condition 2. No quotation or estimate given by Memnon shall constitute an offer. Memnon shall have full discretion in accepting or rejecting any order for Services.
1.3 These Terms and Conditions shall be exclusive of and prevail over all other terms or conditions, written or oral, implied by trade custom or course of dealing, wherever appearing or however introduced (including those in any Client general terms and conditions, request for quotation, order or confirmation) unless expressly otherwise agreed by Memnon in writing. All other terms or conditions are expressly rejected by Memnon. By submitting Materials to Memnon for the provision of Services Client agrees to be bound by these Terms and Conditions whether or not expressly so stated in any order, confirmation or otherwise. Each deviation from or modification to these Terms and Conditions requires the express written agreement of Memnon in each instance. Modification or waiver of any provision in one instance shall not constitute modification or waiver in any other instance. Memnon may amend these Terms and Conditions at any time, by taking reasonable steps to inform Client of such amendment. Any such amendment will not apply to any outstanding orders for Services already accepted at the time of the amendment.
1.4 Client may not, without Memnon's prior written consent, assign all or any of its rights under any contract incorporating these Terms and Conditions.
1.5 Nothing in these Terms and Conditions shall impose, limit, or exclude any right or obligation to the extent that it is not permitted to impose, limit, or exclude any such right or obligation under applicable law.
1.6 Services are intended for supply only for business purposes, therefore the provisions of Services and the application of these Terms and Conditions will not apply to potential Clients who are intending to contract as consumer (as defined by applicable law).
2 Process of submitting Materials for the performance of Services
2.1 In the event that Client requires Services, Client will contact Memnon and provide details of Materials in relation to which they wish Memnon to perform Services (the “Materials”). Memnon will confirm to Client if Materials are within the scope of Services and indicative charges for the performance of Services.
2.2 Client shall deliver Materials to Memnon as agreed between the parties. Unless otherwise agreed in writing, Client shall be responsible for the transportation costs and the risk of transportation of Materials to Memnon.
2.3 Receipt of Materials shall not constitute an obligation on Memnon to provide Services. It may be physically impossible to provide Services in respect of Materials.
2.4 On receipt of Materials Memnon shall inspect Materials. In the event that such inspection shows that in Memnon’s reasonable opinion the Materials:
2.4.1 are not in a suitable format or condition for Services to be performed; or
2.4.2 may include any Prohibited Content as defined in Condition 3
Memnon shall return Materials without performing Services and shall be entitled to charge Client an inspection charge at the rate of 33% of the order amount ((plus applicable taxes) and return shipping costs. Memnon will not perform an inspection the entire content material. It remains client’s responsibility that to ensure that no Prohibit Content is included.
2.5 In the event that such inspection shows that in Memnon’s reasonable opinion the Materials are suitable for Services to be performed but that Memnon will need to implement non-standard or bespoke production processes then Memnon shall revert to the Client with details of the revised charges. If the Client rejects such proposal then Memnon shall return Materials without performing Services and shall be entitled to charge Client an inspection charge (plus VAT) and return shipping costs.
2.6 If Memnon is able to provide the Services in respect of Materials and/or Client places the order, it shall confirm the order to record the basis on which Services will be provided (“PID”) and the confirmed charges for providing Services (the “Charges”).
3 Prohibited Content
3.1 It is Client’s responsibility to ensure that Materials supplied by it for the performance of Services do not contain any content which is classed as Prohibited Content. For the purposes of these Terms and Conditions “Prohibited Content means any content which:
3.1.1 infringes the Intellectual Property Rights (as defined in Condition 9.1) or any other rights of a third party;
3.1.2 Memnon believes to be abusive, deceptive, defamatory, illegal, pornographic, obscene, offensive or otherwise inappropriate (save in the context it being held for valid and legitimate purposes); or
3.1.3 is in a format which may compromise Memnon’s ability to perform Services.
3.2 Memnon will not accept any Materials which it is aware include Prohibited Content. In the event that Memnon becomes aware of the presence of any Prohibited Content on Materials during its performance of Services, it is entitled to immediately cease the provision of Services and invoice Client for the full Charges up to the point of cessation of Services . Memnon reserves the right to pass details of any Prohibited Content contained on Materials to the relevant authorities and to not return Materials to Client.
4 Performance of Services
4.1 Provided Materials pass the inspection as detailed in Condition 2.4, Memnon will perform Services in with reasonable skill and care and accordance with the PID.
4.2 Any time estimate for completion of Services, which may be given to Client by Memnon is an estimate only and does not form an obligation under these Terms and Conditions. Accordingly, Memnon accepts no liability whatsoever for any loss or damage resulting from delay however caused, nor shall late delivery be a basis for cancellation of Services by Client.
4.3 Memnon reserves the right to sub-contract the performance of any part or all of Services.
4.4 Memnon reserves the right to vary Charges in the event that the volume of the Materials is varied by Client or Materials require additional levels of manual attention e.g. repairing tapes or unexpected treatments are needed.
4.5 Upon completion of Services (or, if later, payment of all outstanding Charges and other sums due) Memnon will return Materials and the digitised media to Client.
5 Charges and Payment
5.1 Upon completion of Services (or as otherwise agreed), Memnon shall invoice Client for Charges which are expressly stated to exclude any and all applicable sales, value added, excise, withholding or similar tax or duties.
5.2 Where an inspection fee and/or return shipping charges are payable by Client under Condition 2.4 Memnon shall invoice Client for such fees and charges plus any applicable sales, value added, excise, withholding or similar tax or duties.
5.3 Client shall pay invoices within the number of days stated on the invoice for payment or, in the absence of such information being shown on the invoice, 30 days from the date of invoice.
5.4 Without prejudice to Memnon's other rights and remedies, including the right in any event to sue for Charges, interest at the rate stated on the relevant invoice may be charged on the amount of any overdue account from the due date until the date of final settlement. In the event that no such rate is expressly specified, then the lower of 1% per month or the maximum rate of default interest chargeable under the applicable law may be charged on the amount of any overdue account from the due date until the date of final settlement. Such interest shall accrue on a daily basis from the due date until the date of the actual payment of the overdue amount, whether before or after judgement.
6 Client’s Default or Insolvency
6.1 If Client: (i) is in breach of any of these Terms and Conditions; (ii) fails to make any payment to Memnon when due; (iii) becomes subject to any of the events listed in Condition 6.2 and fails to cure any of the conditions/events listed in subclauses (i), (ii) or (iii) above within 10 calendar days of receiving written notice from Memnon of any such condition/event, or (iv) is in Memnon's reasonable belief about to become subject to any of the events listed in Condition 6.2 and Memnon notifies Client accordingly, then Memnon shall have the right, without prejudice to any other remedies to: (i) cancel or suspend the performance of Services under these Terms and Conditions; (ii) charge Client a storage charge for the Materials at the rate of $0.50 per month (or part thereof) per carrier i.e. an individual cassette/tape/disc etc; and/or (iii) destroy Materials after a reasonable period of time and charge Client the associated costs of doing so without incurring any liability to Client.
6.2 For the purposes of Condition 6.1, the relevant events are if Client:
6.2.1 is involved in any legal proceedings concerning its solvency;
6.2.2 commits an act of bankruptcy or is adjudicated bankrupt;
6.2.3 enters into liquidation, whether compulsory or voluntary, other than for the purposes of amalgamation or reconstruction;
6.2.4 makes an arrangement with its creditors or petitions for an administration order;
6.2.5 has a trustee, receiver, administrative receiver or manager is appointed over all or part of its assets;
6.2.6 generally becomes unable to pay its debts;
6.2.7 is subject to an event or proceeding in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events listed in Conditions 6.2.1 to 6.2.6;
6.2.8 suspends, threatens to suspend, ceases or threatens to cease to carry on all or substantially the whole of its business; or
6.2.9 is subject to their financial position deteriorating to such an extent that, in Memnon’s reasonable opinion, Client’s capability to adequately fulfil its obligations under the Terms and Conditions is at risk.
6.3 Termination of a contract, however arising, shall not affect any of the parties' rights and remedies that have accrued up to the point of termination. Conditions which expressly or by implication survive termination of the contract shall continue in full force and effect.
7.1 On receipt of the digitised media and the returned Materials Client will ingest the digitised media, check that Materials have been correctly returned by Memnon and undertake its own quality check of the digitised media. Any complaints must be made within 30 days of the date upon which Client received the digitised media and/or the returned Materials. All complaints not so filed are waived to the extent that it is legally permitted to do so under applicable law, the digitised media will be deemed to have been accepted by Client and Memnon will be entitled to delete its back-up copies of the same. If Client considers that the digitised media (or any of them) are not of an acceptable standard then Client shall contact Memnon with full details of its concerns; if, upon inspection, Memnon determines that the reason the quality may be low is due to the original quality of the Materials then Memnon shall be entitled to charge Client the costs associated with re-checking the digitised media. If Memnon determines that the original quality of the Materials is not the cause of the problems, then Memnon shall re-digitise the Materials at no additional cost to Client and this shall be Client’s sole remedy in such circumstances.
8.1 Memnon’s entire liability in respect of any single cause of action arising out of or in connection to these Terms and Conditions or their subject matter (whether for breach of contract, tort, including negligence, statute or otherwise) for damages for any claim of any kind shall not, subject to Conditions 8.2, 8.3 and 8.4) exceed Charges payable by Client for Services.
8.2 Materials are by their nature often defective, fragile, aged and/or in a poor conditions, whilst Memnon uses reasonable skill and care to avoid damaging Materials it will have no liability in respect of Materials which are damaged during the performance of Services due to the Materials being defective, fragile, aged or in a poor condition. Subject to the foregoing and Condition 8.4, Memnon's total liability to the Client, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the loss or damage to an item of the Materials (in this case each item being an individual cassette, tape, disc or equivalent) is limited to the physical material value of the media tape/film.
8.3 In no event shall Memnon be liable in contract law or otherwise for any (i) indirect, special, punitive or consequential damages or (ii) loss of business or goodwill, loss of revenue or loss of profits, howsoever arising under or in connection with the supply of Services under these Terms and Conditions.
8.4 Nothing in these Terms and Conditions shall limit or exclude Memnon’s liability in respect of any liability which Memnon is not permitted to limit or exclude under any applicable law.
9 Intellectual Property
9.1 Client warrants that it is the owner or licensee of all intellectual property rights (including without limitation all copyright, design rights, trademarks, trade secrets, patents and patentable processes (together defined as “Intellectual Property Rights”)) in respect of the content contained on Materials and that the passing of Materials to Memnon for the purposes of the provision of Services does not infringe the Intellectual Property Rights or any other rights of any third party.
9.2 Client agrees to indemnify Memnon against the expenses costs and damages of any action brought against Memnon based on a claim that any part of the content contained on Materials is Prohibited Material or resulting from Client’s breach of the warranty set forth in section 9.1 above.
9.3 Memnon retain the Intellectual Property Rights in the processes it operates when performing Services and any patented or patentable or other like protected or protectable invention, process, discovery, technique, know-how or method belonging to and used by Memnon for the benefit of the Client in the performance of Services shall remain and be the property of Memnon.
10 Force Majeure
10.1 Memnon shall not be liable for any failure or delay in performing its obligations under these Terms and Conditions to the extent that such failure or delay is caused by any event beyond its reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable (an event of “Force Majeure”).
10.2 Memnon and Client shall each, without prejudice to any other provisions hereof, be entitled to cancel or rescind any order or contract under these Terms and Conditions upon written notice to the other party if any failure or delay in performance of such order or contract continues for more than 30 consecutive days in an event of Force Majeure.
11 Cancellation/Reduction of Orders
11.1 No cancellation/reduction of any order for Services by Client shall be accepted by Memnon unless:
11.1.1 the cancellation/reduction is received by Memnon in writing;
11.1.2 Memnon accepts such cancellation/reduction in writing; and
11.1.3 Memnon is paid by Client: (i) costs of that part of work done in connection with the order; (ii) a contribution towards Memnon’s costs of preparing to provide the Services at the original quantities; and (iii) any other costs and liabilities which Memnon incurs by reason of Client's cancellation/reduction.
11.2 Any extra cost or liability incurred by Memnon due to suspension of work or lack of or mistaken instructions from Client or to any interruptions or delays attributable to Client, shall be added to the price of Services and paid for by Client.
12 Confidentiality and data protection
12.1 Neither party shall without the other’s written consent, disclose to any third party any secret or confidential information (“Confidential Information”) supplied by it by the other party, except that Memnon may disclose such information to its affiliate companies on an as-needed basis, provided such affiliates shall likewise be obligated to protect the confidentiality of such information.
Confidential Information does not include information that
12.1.1 is in the public domain or is or becomes publicly accessible otherwise than by a violation of this Terms and Conditions;
12.1.2 was lawfully in the possession of the other party prior to the disclosure and had not been obtained by the other party directly or indirectly from the disclosing party;
12.1.3 is legally disclosed to the other party by a third party, without restriction of disclosure;
12.1.4 is developed independently by the other party;
12.3 Where Memnon acts as a processor for Client (who will on his turn act as controller), Memnon will undertake the processing of Personal Data on behalf and upon instruction of Client. Memnon will also implement appropriate technical and organisational security measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, and against all other unlawful forms of processing.
12.4 Memnon may engage subprocessors, provided they are bound by commitments substantially equivalent to those in this Terms and Conditions.
12.5 It is mutually agreed that by transferring Personal Data to Memnon, Client confirms (i) it has a lawful basis for the transfer and all necessary authority from all Data Subjects for Memnon to process the Client Personal Data in accordance with the Terms and Conditions (ii) it provides to Memnon updated, relevant and adapted Personal Data for the purposes described therein (iii) its instructions in connection with the processing of the Personal Data are in accordance with all applicable Data Privacy Legislation and will not cause Memnon to breach any applicable Data Privacy Legislation.
12.6 Client shall indemnify and hold Memnon harmless from any and all claims, actions, proceedings or losses incurred or caused by a competent public authority, Data Subjects and/or a third party with regard to Memnon concerning any offence or alleged offence resulting from the processing carried out under these Terms and Conditions or from any violation by Client of its obligations to protect the data arising from these Terms and Conditions.
12.7 Where Memnon acts as a controller, Memnon may process Personal Data for the purposes of any of: (i) performing Services, (ii) security, quality and risk management activities; and (iii) complying with any requirement of law or regulation.
13 Export and Import of Materials and digitised content
Client expressly agrees that it will comply with all applicable laws (including complying with and obtaining appropriate permits in accordance with all applicable export and customs laws) in respect of the export and import of Materials and the digitised content and that it will not permit any export or use which does not comply with such laws.
14 No Waiver
Failure or delay by either party to enforce any provision of these Terms and Conditions shall not be deemed a waiver of future enforcement of that or any other provision.
15 Miscellaneous Provisions
15.1 These Terms and Conditions and any dispute or claim arising out of or in connection with an order, its subject matter, or formation (including non-contractual disputes or claims) shall be subject to and construed under the law of the State of Delaware, excluding conflict of law rules, and the parties hereby submit to the exclusive jurisdiction of the federal and state courts located in the State of Indiana. For the avoidance of doubt, the United Nations Convention on the International Sale of Goods shall not apply to contracts concluded under these Terms and Conditions.
15.2 If any provision is declared void or unenforceable by a court of competent jurisdiction with respect to particular circumstances, such provision shall remain in full force and effect in all other circumstances. If any provision is declared entirely void or unenforceable by a court of competent jurisdiction all other provisions of these Terms and Conditions shall remain in full force and effect.
15.3 These Terms and Conditions apply in the English language. Any translations that may be provided are only for information purposes and the accuracy of any such translations should not be relied upon. If there is any conflict in meaning between the English language version of these Terms and Conditions and any version or translation of these Terms and Conditions in any other language, the English language version shall prevail.
15.4 A person who is not a party to a contract to which these Terms and Conditions apply shall have no rights under or in connection with it.
15.5 These Terms and Conditions, together with the Special Terms, constitute the entire agreement between the parties, and supersede all prior agreements, proposals and communications, whether oral or written, concerning the subject matter hereof. This Agreement may not be changed, modified or otherwise amended, except by way of a written amendment duly signed by authorized representatives of both parties.
Terms and Conditions for Vouchers and Discounts
Memnon Inc. (Memnon) will from time to time produce offers and discounts for its MemnonBox service (www.memnonbox.com). A promotional voucher code (Voucher) is an entitlement to a discount (up to the amount stated on the Voucher) off a qualifying order for a promotional period (as stated in the Voucher). Whilst each Voucher on any leaflet will have its own terms and conditions (for example expiry date), all the Vouchers are subject to the following terms:
• Vouchers are only valid for new orders through www.memnonbox.com and only available for MemnonBox supported countries.
• Vouchers are redeemable only against MemnonBox digitization orders. They may not be redeemed against incidental costs or additional services.
• Terms and Conditions of sale will apply as published on www.memnonbox.com.
• Vouchers are not transferable or assignable and cannot be sold at auctions.
• Vouchers can only be used during the promotional period and cannot be used with any other promotion or offer.
• Single use Vouchers can only be used once (see individual Vouchers for details) and only one Voucher can be used per order.
• When using a Voucher, the full balance of the order is payable at the time the order is placed.
• A minimum spend may be applicable in order for a Voucher to be valid (see individual Vouchers for details).
• Vouchers have no monetary value. They are redeemed in their entirety and may not be redeemed incrementally.
• Memnon reserves the right to refuse redemption of Vouchers if they believe that:
(a) they are being used by someone other than the intended recipient.
(b) they are invalid for the order being made.
• Memnon reserves the right to cancel a promotion at any time.
• Memnon shall not be liable to any customer for any losses, financial or otherwise (except for losses that Memnon is not permitted to exclude under any applicable law) arising out of the refusal, cancellation or withdrawal of a Voucher or any failure or inability of a customer to use a Voucher for any reason.
• Memnon reserves the right to amend these terms and conditions at any time.
These terms and conditions will be governed by the law of the State of Delaware, excluding conflict of law rules, and the parties hereby submit to the exclusive jurisdiction of the federal and state courts located in the State of Indiana.
If you have any questions regarding these terms and conditions, please contact us at firstname.lastname@example.org.
Memnon Archiving Services Inc.
2719 East 10th Street Bloomington
(+1) 812 856 6882