The following Terms and Conditions are entered into by and between You (“Client” “Customer”, or “You”) and Zac Weikal LLC (“Company”, “Service Provider”, “we”, or “us”).
WHEREAS, Service Provider has the capability and capacity to provide certain digital marketing and design services; and
WHEREAS, Customer desires to retain Service Provider to provide said services, and Service Provider is willing to perform such services under the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Service Provider and Customer agree as follows:
- Services. Service Provider shall provide to Customer Newsletter Formatting and Sending (up to 1X Per Month) (the “Services”). As a condition of the Services, you agree to be bound by and to abide by all policies and procedures set out in this Agreement, including those incorporated by reference.
- Fees and Expenses.
- In consideration of the provision of the Services by the Service Provider and the rights granted to Customer under this Agreement, Customer shall make monthly payments of $24, with the first payment due immediately. These payments will continue until you cancel your subscription to the Services according to the Program’s Cancellation Policy set forth below.
- In the event that Customer fails to make any payment required by this Agreement, Service Provider shall immediately cease all work until payment is made.
- Limited Warranty and Limitation of Liability.
- In accordance with the terms.
- Using personnel of commercially reasonable skill, experience and qualifications.
- In a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.
- Service Provider warrants that it shall perform the Services:
- Term & Termination.
- Materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within 15 days after receipt of written notice of such breach.
- Becomes insolvent or admits its inability to pay its debts generally as they become due.
- Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven business days or is not dismissed or vacated within 45 business days after filing.
- Is dissolved or liquidated or takes any corporate action for such purpose.
- Makes a general assignment for the benefit of creditors.
- Has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
- This Agreement shall commence as of the Effective Date and shall continue thereafter until terminated pursuant to Section 4.4, unless sooner terminated pursuant to Section 4.2 or Section 4.3.
- Either Party may terminate this Agreement, effective upon written notice to the other Party (the “Defaulting Party”), if the Defaulting Party:
- Service Provider may terminate this Agreement before the expiration date of the Term on written notice if Customer fails to pay any amount when due hereunder and such failure continues for 15 days after Customer's receipt of written notice of nonpayment.
- The Program is offered on an ongoing basis with a monthly or yearly subscription. You may cancel subscriptions at any time by emailing firstname.lastname@example.org. Your subscription shall continue until the end of the existing subscription period and shall terminate at the completion of that period. You shall not be charged after a cancellation.
- No Refunds. All sales are final, and the Company does not offer any money-back guarantees. You recognize and agree that you shall not be entitled to a refund for any purchase under any circumstances.
- The Services. As part of the Program, the Company shall provide the following to Client.
Formatting and Sending of Email Newsletter up to 1 time per month – Service Provider will format and send an email newsletter, up to once per month for Customer. Customer will be sent a "proof" of the email to approve before Service Provider schedules or sends it. Service Provider will make one set of edits to any email. It is the responsibility of Customer to maintain and supply the email service provider and appropriate login information to Service Provider. It is solely the responsibility of Customer to submit email newsletter content to Service Provider within 7 days of when content is to be sent. Customer is responsible for all content, including ensuring the content, including links, meets all legal requirements. Further, Service Provider assumes no responsibility for the use of or content of any and all emails sent on behalf of Customer. If Customer fails to supply email content, they forfeit any time that was skipped.
Bonuses – From time to time, the Company will offer bonuses to individuals who sign up for the Services. You shall be entitled to any bonuses offered to you at the time of registration.
- Confidentiality. From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” is identified as confidential when disclosed, or which the Receiving Party should reasonably know to be confidential (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party's breach of this Section 7; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party's possession prior to Disclosing Party's disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party's sole cost and expense, a protective order or other remedy.
- Cooperation of Customer. The Services described in the Agreement are based on information provided by the Customer. Customer undertakes that all documents, information and data necessary for Service Provider to perform the Services will be made available to Service Provider in a timely fashion. Customer will make available such employees of its organization as are necessary to assist Service Provider in fulfilling its obligations under this Agreement. Customer undertakes the adequate and timely introduction of Service Provider employees and agents within Customer’s organization and, if required by law, will obtain all necessary approvals of the applicable governing body in connection with the performance of Services. In case any or all of the above conditions are not complied with, not complied with properly or not timely complied with, or if Service Provider has to interrupt Services for reasons not attributable to Service Provider’s negligence or willful misconduct, the period of completion set forth in the Agreement shall be automatically extended for such additional time as shall be necessary to perform the Services, and any and all additional costs resulting therefrom shall be the responsibility of Customer.
- Service Provider’s Personnel. Service Provider shall have sole discretion over the identity of its personnel used to provide the services; provided, that Service Provider shall ensure that Services will be performed only by reliable, adequately trained, experienced and skilled personnel in sufficient number and within the timetable set forth in this Agreement. Where specific personnel are specified in an applicable Statement of Work, Service Provider shall use reasonable efforts to provide the Services using those personnel; provided, that Service Provider is entitled to replace such personnel with personnel of equivalent qualification and experience at any time.
- Non-Exclusivity. Customer agrees that Service Provider’s personnel providing Services to Customer under this Agreement may perform similar services from time to time for other persons, firms or entities, and this Agreement shall not prevent Service Provider from using such personnel for the performance of such similar services for such other persons, firms or entities. Service Provider recognizes that Customer may engage other consultants to perform similar services from time to time, and this Agreement shall not prevent Customer from using such consultants.
- Limitation of Liability. IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- Entire Agreement. This Agreement, including and together with the attached Statement of Work constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
- Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Amendments. No amendment to or modification of this Agreement is effective unless it is in writing and signed by each Party.
- Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- Assignment. Customer shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section 17 shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement.
- Ownership of Work Product. All software code, plans, diagrams, models and other work product created or developed by Service Provider in the course of performing Services hereunder (“Services”), and all intellectual property rights thereto, are the sole and exclusive property of the Customer upon payment for work rendered. However, certain work which is not specific to the business of the Service Provider, that is deliverables which don’t specifically relate to the tasks at hand, are owned by the Service Provider yet given perpetual license to the Customer.
- Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- Representations and Warranties.
- 19.1. IN GENERAL. THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT WHEN OTHERWISE STATED IN WRITING THE MATERIALS PRODUCED UNDER THE TERMS OF THIS AGREEMENT ARE PROVIDED TO CLIENT “AS IS,” THAT IS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE AND/OR SERVICES PROVIDED UNDER THIS AGREEMENT RESTS SOLELY WITH THE CUSTOMER. SHOULD THE SOFTWARE OR PROGRAM PROVE DEFECTIVE, CUSTOMER SOLELY ASSUMES THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION, INCLUDING WITHOUT LIMITATION ANY “DEBUGGING.” EXCEPT AS OTHERWISE STATED BELOW, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES RELATED TO INFORMATION OR BUSINESS ADVICE PROVIDED, WARRANTIES RELATED TO OUTCOMES BASED ON INFORMATION OR ADVICE PROVIDED, WARRANTIES OF MERCHANTABILITY OR MERCANTILE QUALITY, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR USE, WARRANTIES OR CONDITIONS ARISING BY STATUTE OR OTHERWISE IN LAW, OR WARRANTIES OF ANY PRODUCTS OR SERVICES PROVIDED BY THIRD PARTY VENDORS.
- 19.2.Authority; No Conflict. Each party warrants that it is authorized to enter into this Agreement and to perform its obligations hereunder, and that its performance hereunder shall not conflict with, limit or be contrary to any other agreement.
- 19.3.Professional Service. Service Provider warrants that it will perform all Services under this Agreement with the degree of care and skill ordinarily exercised by members of Service Provider’s profession.
- 19.4.No Infringement. The Parties represent and warrant that their disclosure and delivery of any code, information, documents, software or any other materials, and use thereof, as contemplated by this Agreement, will not knowingly infringe or violate any proprietary right of any third party, including, but not limited to: any copyright, patent or trade secret.
- No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
- Choice of Forum. Each Party irrevocably and unconditionally agrees that any dispute arising under or related to this Agreement shall be resolved exclusively through arbitration to be held in Transfer, Pennsylvania under the rules of the American Arbitration Association. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such arbitration and agrees to bring any such dispute only in such forum. Each Party agrees that a final judgment by such arbitration is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
- Indemnification. You agree to indemnify, defend, and hold harmless the Company, its officers, directors, employees, agents, and third parties for any losses, costs, liabilities, and expenses (including reasonable attorneys’ fees) relating to or arising out of your use of or inability to use the Services and related services, any user postings made by you, your violation of any terms of this Agreement or your violation of any rights of a third party, or your violation of any applicable laws, rules or regulations. The Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with the Company in asserting any available defenses.
- Termination And Access Restriction. The Company reserves the right, in its sole discretion, to terminate your access to the Program and the related services or any portion thereof at any time, if You become disruptive to the Company or other Program participants, if You fail to follow the Program guidelines, or if You otherwise violate this Agreement. You shall not be entitled to a refund of any portion of the fees and shall not be excused from any remaining payments under a payment plan in the event of such termination.
- Force Majeure. The Service Provider shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Service Provider including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 15 days, Customer shall be entitled to give notice in writing to Service Provider to terminate this Agreement.
- Headings. Sections and other headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretations of this Agreement.
- Effective Date. This Agreement shall commence and be enforceable with respect to each Program participant upon the date that the participant initially registers for the Program.