TERMS AND CONDITIONS OF USE
Last Updated: August 5, 2021
The following Terms and Conditions of Use (“Terms”) are entered into by and between You and Erika Sanborne Media (“Erika Sanborne,” “the company,” “we” or “us”).
Your access to and use of the Website is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all visitors, users, customers, and others who access or use the Website.
By accessing or using the Website you agree to be bound by these Terms, without modification, and acknowledge reading them. If you disagree with any part of the Terms, you may not access the Website.
Your use of the Website is also subject to Erika Sanborne Media’s Disclaimer. Please review our Disclaimer, which also governs the Website and informs users of various limitations regarding the information provided on the Website. Your agreement to the Disclaimer is hereby incorporated into these Terms.
USE OF THE WEBSITE
To access or use the Website, you must be 18 years of age or older and have the requisite power and authority to enter into these Terms. Children under the age of 18 are prohibited from using the Website. Information provided on the Website and any resources provided on or available for download from the Website are subject to change. Erika Sanborne Media makes no representation or warranty that the information provided, regardless of its source, is accurate, complete, reliable, current, or error-free. Erika Sanborne Media disclaims all liability for any inaccuracy, error, or incompleteness in the information provided.
Erika Sanborne Media reserves the right to withdraw or amend this Website and any service or material provided on the Website in its sole discretion without notice. Erika Sanborne Media will not be liable if, for any reason, all or any part of the Website is unavailable at any time or for any period. From time to time, Erika Sanborne Media may restrict access to some parts of the Website, or the entire Website, to users, including registered users.
You may use the Website for lawful purposes only. You agree to be financially responsible for all purchases made by you or someone acting on your behalf through the Website. You agree to use the Website and to purchase services or products through the Website for legitimate, non-commercial purposes only. You shall not post or transmit through the Website any material that violates or infringes the rights of others, or that is threatening, abusive, defamatory, libelous, invasive of privacy or publicity rights, vulgar, obscene, profane, or otherwise objectionable, contains injurious formulas, recipes, or instructions, that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any law.
ACCOUNT CREATION AND SECURITY
In order to use the Website or make a purchase on the Website, you may be required to provide information about yourself including your name, email address, username and password, and other personal information. To place an order, we need your physical address even if your order i for a digital product, because we are required by law to charge and remit sales tax. You agree as a condition of your use of the Website and any resources downloaded from the Website that any registration information you give to Erika Sanborne Media will always be accurate, complete, and up to date. You must not impersonate someone else or provide account information, physical address or an email address other than your own. Your account must not be used for any illegal or unauthorized purpose.
If you choose, or are provided with, a username, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Website or portions of it using your username, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
REFUSAL OF SERVICE
The products and services available on the Website are offered subject to our acceptance of your order or request. We reserve the right to refuse service to any order, person or entity, without cause or explanation. No order is deemed accepted by us until payment has been processed. We may at any time change or discontinue any aspect or feature of the Website, subject to us fulfilling our previous responsibilities to you based on acceptance of your payment.
We will email you to confirm placement of your order and with details about product delivery. If you do not receive email order confirmation, it is your responsibility to inform us as soon as possible.
CANCELLATIONS, REFUNDS & RETURNS
NO REFUNDS ON MEDIA PRODUCTIONS
Client shall not be entitled to any refunds in full or in part for payments made under this Agreement for any reason, including but not limited to termination of this Agreement. All funds paid shall be considered compensation for services rendered. Any unused service hours included under any monthly retainer will not be refunded or rolled over month-to-month.
Cancellation of media contract – For media work billable up to $500, payment is due when the order is placed, in order to reserve the labor time so that work may begin on your project. Please contact us if you would like us to stop working on a media project you have asked us to work on for you. You cannot receive a refund. For media work billable over $500, a 50% deposit is due upfront and the remaining 50% is due upon delivery of the final product(s). If we create a personalized contract for media services, in which we negotiate mutually agreeable terms, that contract supercedes these terms wherever they differ. For anything that is not addressed in our contract, these terms hold.
All media products are not-returnable and non-refundable. If you contract for a media product and choose to not pay your bill, or if you choose to not submit images or complete a Details Form, work will cease on your project. You are still not entitled to a refund of past payments made even though your project may not be done. If you would like your project completed, you will need to pay any outstanding balance on your account, or submit necessary high resolution images, so that work can proceed.
We try to describe and display any products and services available for purchase on the Website as accurately as possible. While we try to be as clear as possible in explaining the product or service, we do not guarantee that the Website is entirely accurate, current, or error-free. From time to time we may correct errors in pricing and descriptions. We reserve the right to refuse or cancel any order with an incorrect price listing.
USE OF FREE DOWNLOADABLE CONTENT
Erika Sanborne Media may make resources on this Website accessible to users in exchange for providing an e-mail address (“Gated Content”). Erika Sanborne Media grants you a limited, personal, non-exclusive, non-transferable license to use the Gated Content for your own personal or internal business use. Except as otherwise provided, you acknowledge and agree that you have no right to modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the Gated Content in any manner.
By accessing or downloading the Gated Content, you agree that the Gated Content you access or download may only be used by you for your personal or internal business use and may not be sold or redistributed without the express written consent of Erika Sanborne Media.
By accessing or downloading the Gated Content, you further agree that you shall not create any derivative work based upon the Gated Content and you shall not offer any competing products or services based upon any information contained in the Gated Content.
MATERIAL YOU SUBMIT TO THE WEBSITE
By posting, uploading, submitting, inputting, providing, or otherwise making available any artwork, photos, written works, or other media, including feedback, testimonials and suggestions (collectively, “Submissions”), you are granting Erika Sanborne Media, our affiliated companies, and any necessary sub-licensees a worldwide, nonexclusive, irrevocable license to use your Submission for promotional, business development, and marketing purposes including, without limitation, the right to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate, and reformat your Submission; and to publish your name in connection with your Submission.
We claim no intellectual property rights over the Submissions you supply to Erika Sanborne Media. You retain copyrights and any other rights you may rightfully hold in any Submissions that you submit through the Website.
You shall not upload, post, submit, input or otherwise make available on the Website any Submissions protected by copyright, trademark, or other proprietary right without the express written permission of the owner of the copyright, trademark, or other proprietary right, and the burden of determining that any Submissions are not so protected rests entirely with you. You shall be liable for any damage resulting from any infringement of copyrights, trademarks, or other proprietary rights, or any other harm resulting from such a Submission.
Specifically regarding photos submitted for media products, you are responsible for ensuring that you own the rights to any images that you provide to us for inclusion in your media product, and that you have the right to share images of the likenesses of indivivdual people depicted in the photos you provide.
For all Submissions submitted by you to the Website, you automatically represent or warrant that you own or otherwise control all the rights to your Submission described herein including the authority to use and distribute the Submission, and that the use or display of the Submission as contemplated in this section will not violate any laws, rules, regulations, or rights of third parties. You agree to hold Erika Sanborne Media harmless from and against all claims, liabilities, and expenses arising out of any potential or actual copyright or trademark misappropriation or infringement claimed against you arising from Submissions you submit through the Website.
You further you grant us the right to use your Submission for the purpose of creating your media production, and improving our Website, products or services (and for any other purpose we deem necessary or desirable) without being obliged to pay you any compensation for our use of your Submission. Erika Sanborne Media is under no obligation to post or use any Submission you may provide and may remove any Submission at any time in Erika Sanborne Media’s sole discretion. If you do send us unsolicited ideas, such ideas will be deemed non-confidential, and we will not be required to provide any acknowledgement of their source.
OUR INTELLECTUAL PROPERTY
The Website contains intellectual property owned by Erika Sanborne Media, including trademarks, copyrights, proprietary information, and other intellectual property. We reserve all rights in and to our common law and registered trademarks, service marks, copyrights, and other intellectual property rights, including but not limited to text, graphics, photographs, video, design, and packages, belonging to Erika Sanborne Media or to our licensors (“IP”). You may not modify, publish, transmit, participate in the transfer or sale of, create derivative works from, distribute, display, reproduce or perform, or in any way exploit in any format whatsoever any of our IP in whole or in part, without our prior written consent. We reserve the right to immediately block your access to the Website and remove you from any service, without refund, if you are caught violating this intellectual property policy.
As a condition of your use of the Website, you warrant to Erika Sanborne Media that you will not use the Content for any purpose that is unlawful or prohibited by these Terms. You may not use the Content in any manner that could damage, disable, overburden, or impair the Website or interfere with any other party’s use and enjoyment of the Website. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Website.
All content included as part of the Content, such as text, graphics, logos, images, as well as the video compilation thereof, and any software used on the Website, is the property of Erika Sanborne Media or its suppliers and protected by copyright and other laws that protect intellectual property and proprietary rights. You agree to observe and abide by all copyright and other proprietary notices, legends or other restrictions contained in any such content and will not make any changes thereto.
You will not modify, publish, transmit, reverse engineer, participate in the transfer or sale, create derivative works, or in any way exploit any of the Content, in whole or in part.
The Content is not for resale. Your use of the Content does not entitle you to make any unauthorized use of any protected content, and in particular you will not delete or alter any proprietary rights or attribution notices in any Content. You will use protected content solely for your individual use and will make no other use of the Content without the express written permission of Erika Sanborne Media and the copyright owner. You agree that you do not acquire any ownership rights in any protected content. We do not grant you any licenses, express or implied, to the intellectual property of Erika Sanborne Media or our licensors except as expressly authorized by these Terms.
Erika Sanborne Media name, Erika Sanborne Media logo, Erika Sanborne Media slogan, and all related names, logos, product and service names, designs, and slogans are trademarks of Erika Sanborne Media or its affiliates or licensors. You must not use such marks without the prior written permission of Erika Sanborne Media. All other names, logos, product and service names, designs and slogans on this Website are the trademarks of their respective owners.
While we make every effort to ensure that the content on this Website is free from errors, we do not give any warranty or other assurance as to the accuracy, completeness, timeliness or fitness for any particular purpose of the content and materials on this site beyond reasonable efforts to maintain the site. To the maximum extent permitted by law, we provide our website and related information and services on an “as is” and “as available” basis without any warranties, representations, or guarantees of any kind (whether express, implied, statutory, or otherwise) including but not limited to warranties of non-infringement, merchantability, or fitness for a particular purpose.
LIMITATION OF LIABILITY
YOU AGREE THAT UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, OR ANY OTHER DAMAGES ARISING OUT OF YOUR USE OF THE WEBSITE OR RESOURCES, PRODUCTS OR SERVICES AVAILABE THROUGH THE WEBSITE.
ADDITIONALLY, ERIKA SANBORNE MEDIA IS NOT LIABLE FOR DAMAGES IN CONNECTION WITH (I) ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, DENIAL OF SERVICE, ATTACK, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, OR LINE OR SYSTEM FAILURE; (II) LOSS OF REVENUE, ANTICIPATED PROFITS, BUSINESS, SAVINGS, GOODWILL OR DATA; AND (III) THIRD PARTY THEFT OF, DESTRUCTION OF, UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF YOUR INFORMATION OR PROPERTY, REGARDLESS OF OUR NEGLIGENCE, GROSS NEGLIGENCE, FAILURE OF AN ESSENTIAL PURPOSE AND WHETHER SUCH LIABILITY ARISES IN NEGLIGENCE, CONTRACT, TORT, OR ANY OTHER THEORY OF LEGAL LIABILITY, EVEN IF ERIKA SANBORNE MEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN THE DAMAGES.
IN THOSE STATES THAT DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR THE DAMAGES, OUR LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW. IN NO EVENT SHALL ERIKA SANBORNE MEDIA’S TOTAL LIABILITY TO YOU EXCEED THE TOTAL PURCHASE PRICE OF ANY PRODUCTS OR SERVICES YOU HAVE PURCHASED FROM ERIKA SANBORNE MEDIA.
Your use of the Website and any associated services may sometimes be subject to interruption or delay. Due to the nature of the Internet and electronic communications, we and our service providers do not make any warranty that our Website or any associated resources or services will be error-free, without interruption or delay, or free from defects in design. We will not be liable to you should our Website or the resources or services supplied through our Website become unavailable, interrupted or delayed for any reason.
Although we endeavor to prevent the introduction of viruses or other malicious code (“malicious code”) to our Website, we do not guarantee or warrant that our Website, or any data available on the Website, does not contain malicious code. We will not be liable for any damages or harm attributable to malicious code. You are responsible for ensuring that the process you employ for accessing our Website does not expose your computer system to the risk of interference or damage from malicious code.
The security of your contact information is of utmost importance to us. However, you acknowledge the risk of unauthorized access to, or alteration of, your data. We do not accept responsibility or liability of any nature for any losses you may sustain as a result of such unauthorized access or alteration. All information transmitted to or from you is transmitted at your own risk, and you assume all responsibility and risks arising in relation to your use of this Website and the internet. We do not accept responsibility for any interference or damage to your computer system that may arise in connection with your access of this Website or any outbound hyperlinks.
THIRD PARTY RESOURCES
The Website contains links to third party websites and resources. You acknowledge and agree that we are not responsible or liable for the availability, accuracy, content, or policies of third-party websites or resources. Links to such websites or resources do not imply any endorsement by or affiliation with Erika Sanborne Media. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
Erika Sanborne Media may, from time to time, provide information from a third party in the form of a guest post or interview, in written, audio, video, or other medium. Erika Sanborne Media does not control the information provided by such third-party guests, is not responsible for investigating the truth of any information provided and cannot guarantee the veracity of any statements made by such guests.
You shall indemnify and hold us harmless from and against any and all losses, damages, settlements, liabilities, costs, charges, assessments, and expenses, as well as third party claims and causes of action, including, without limitation, attorney’s fees, arising out of your breach of any of these Terms, your use of the Website, its content, and any product or service purchased from the Website, or your failure to maintain the confidentiality and/or security of your password or access rights to this Website and its resources. You shall provide us with such assistance, without charge, as we may request in connection with any such defense, including, without limitation, providing us with such information, documents, records, and reasonable access to you, as we deem necessary. You shall not settle any third-party claim or waive any defense without our prior written consent.
EFFECT OF HEADINGS; SEVERABILITY
The subject headings of the paragraphs and subparagraphs of this Agreement are included for convenience only and shall not affect the construction or interpretation of any of its provisions. If any portion of these Terms are held to be unenforceable or contrary to law, such portion shall be construed in accordance with applicable law so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remainder of the provisions shall remain in full force and effect.
ENTIRE AGREEMENT; WAIVER
GOVERNING LAW; JURISDICTION; MEDIATION
The parties agree to attempt to resolve any dispute, claim, or controversy arising out of or relating to these Terms by mediation. The parties further agree that their respective good faith participation in mediation is a condition precedent to pursuing any other available legal or equitable remedy, including litigation, arbitration, or other dispute resolution procedures.
ALL RIGHTS RESERVED
All rights not expressly granted in these Terms are reserved by us. If you do not see a usage scenario here that applies to your intended usage contact us using our Contact page.
The owner of this website is Erika Sanborne Media. To minimize spam and to ensure your message is received and responded to, please use our contact form.
Terms of Service Agreement for Media Production
When you make a payment to Erika Sanborne Media for a customized media product, you agree to the terms of this service agreement for media production.
This Terms of Service Agreement is made effective as of the date a client makes a payment for service, by and between client (the “Recipient,” “you”), and Erika Sanborne Media (the “Provider,” “we” or “us”) of 1279 Smith Avenue South, West Saint Paul, Minnesota 55118.
1. DESCRIPTION OF SERVICES. Beginning on the date a client pays for a customized media product, Erika Sanborne Media will provide to the client the following services (collectively, the “Services”):
The final media product as described in the product description, according to the option chosen at checkout. For videos, the client will receive a link to their video on our YouTube channel, a link to their video on our facebook page, and a link from which they can download the video file for themselves. Estimated time of completion is five business days from the time that we receive the necessary photos, text and customization details needed to begin working on a project. If the client is contracting for an offline, private videography product that will not be shared online, then a separate contract may need to be agreed upon, and individualized conditions arranged such as mailing of a USB jump drive containing the final product, for additional fees.
2. PAYMENT. Payment shall be made to the Provider in the total amount due plus state sales tax according to the client’s state of residence or state of business location, which we are required by law to collect and remit. If you are tax exempt, it is your responsibility to provide us a copy of your tax exemption documentation.
Client shall pay all costs of collection, including without limitation, reasonable attorney fees. In addition to any other right or remedy provided by law, if client fails to pay for the Services when due, Erika Sanborne Media has the option to treat such failure to pay as a material breach of this Agreement, and may cancel this Contract and/or seek legal remedies.
CANCELLATION TERMS: Payment is due when the service or product is ordered, so that work may begin and time may be reserved for that labor. Due to the labor-intensive nature of media, there are no refunds.
3. TERM. This Agreement will terminate automatically upon completion by Provider of the Services required by this Agreement.
4. WORK PRODUCT OWNERSHIP. Copyright of the final media product remains with Erika Sanborne Media, as the content creator. This is industry standard. As the client, you are paying for a license to use, share, print, and stream, as appropriate, the media you are commissioning.
5. CONFIDENTIALITY. Provider, and its employees, agents, or representatives will not at any time or in any manner, either directly or indirectly, use for the personal benefit of Provider, or divulge, disclose, or communicate in any manner, any information that is proprietary to Recipient. Provider and its employees, agents, and representatives will protect such information and treat it as strictly confidential. This provision will continue to be effective after the termination of this Agreement. Any oral or written waiver by Recipient of these confidentiality obligations which allows Provider to disclose Recipient’s confidential information to a third party will be limited to a single occurrence tied to the specific information disclosed to the specific third party, and the confidentiality clause will continue to be in effect for all other occurrences.
Upon termination of this Agreement, Provider will return to Recipient all records, notes, documentation and other items that were used, created, or controlled by Provider during the term of this Agreement.
6. LIMITATION OF LIABILITY. Except as expressly provided in this Agreement, Provider makes no guarantees, representations or warranties of any kind or nature, express or implied with respect to the Services. In no event shall the Provider be liable to the Client for any indirect, consequential or special damages. Provider’s entire liability for any breach of this Agreement, and Client’s sole remedy, shall be limited to the lesser of the total Agreement Price or the amount actually paid by the Client to Erika Sanborne Media under this Agreement. Provider shall provide its services and meet its obligations under this Agreement in a timely and workmanlike manner, using knowledge and recommendations for performing the services which meet generally acceptable standards in Provider’s community and region, and will provide a standard of care equal to, or superior to, care used by service providers similar to Provider on similar projects.
7. DEFAULT. The occurrence of any of the following shall constitute a material default under this Agreement:
a. The failure to make a required payment when due.
b. The insolvency or bankruptcy of either party.
c. The subjection of any of either party’s property to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency.
d. The failure to make available or deliver the Services in the time and manner provided for in this Agreement.
8. REMEDIES. In addition to any and all other rights a party may have available according to law, if a party defaults by failing to substantially perform any provision, term or condition of this Agreement (including without limitation the failure to make a monetary payment when due), the other party may terminate the Agreement by providing written notice to the defaulting party. This notice shall describe with sufficient detail the nature of the default. The party receiving such notice shall have 0 days from the effective date of such notice to cure the default(s). Unless waived in writing by a party providing notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Agreement.
9. FORCE MAJEURE. If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages or other labor disputes, or supplier failures. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
10. DISPUTE RESOLUTION. The parties will attempt to resolve any dispute arising out of or relating to this Agreement through friendly negotiations amongst the parties. If the matter is not resolved by negotiation within 30 days, the parties will resolve the dispute using the below Alternative Dispute Resolution (ADR) procedure.
Any controversies or disputes arising out of or relating to this Agreement will be resolved by binding arbitration under the rules of the American Arbitration Association. The arbitrator’s award will be final, and judgment may be entered upon it by any court having proper jurisdiction.
11. SEVERABILITY. If any provision of this Agreement will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
12. AMENDMENT. This Agreement may be modified or amended in writing by mutual agreement between the parties, if the writing is signed by the party obligated under the amendment.
13. GOVERNING LAW. This Agreement will be governed and interpreted in accordance with the laws of the State of Minnesota, without giving effect to its principles of conflicts of law. .
14. NOTICE. All notices shall be in writing and deemed effective when received by either electronic mail or paper mail at the address of the party to be notified provided in the introductory provision of this Agreement. Either party may change the address to which notices are to be sent by providing written notice to the other party as provided for in this section.
15. WAIVER OF CONTRACTUAL RIGHT. 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.
16. ATTORNEY’S FEES TO PREVAILING PARTY. In any action arising hereunder or any separate action pertaining to the validity of this Agreement, the prevailing party shall be awarded reasonable attorney’s fees and costs, both in the trial court and on appeal.
17. CONSTRUCTION AND INTERPRETATION. The rule requiring construction or interpretation against the drafter is waived. The document shall be deemed as if it were drafted by both parties in a mutual effort.
18. ASSIGNMENT. Neither party may assign, transfer, subcontract or delegate any right or obligation under this Agreement without the prior written consent of the other party.
19. SECTION HEADINGS. Section headings are inserted for convenience only and shall not be used in any way to construe the terms of this Agreement.
20. ENTIRE AGREEMENT. This Agreement sets forth and constitutes the entire agreement of the Parties. No previous statement, promise, inducement, understanding, or agreement made by either party that is not contained in this Agreement shall be binding or valid.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date first above written.
Media Client Service Recipient:
By: (your payment constitutes acceptance of the terms of this service agreement)
Erika Sanborne Media