Services Agreement
The following Services Agreement (this “Agreement”) is entered into by and between You (“Customer”) and Zac Weikal LLC (“Service Provider” and together with Customer, the “Parties”, and each a “Party”).
WHEREAS, Service Provider has the capability and capacity to provide certain graphic design, website design and management, and marketing consulting; 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:
1. Terms of Use, Privacy Policy, & Disclaimer
The Service Provider's Terms of Use, Privacy Policy, and Disclaimer are hereby incorporated by reference into this agreement. Except as modified by this Agreement, each of those agreements and policies shall apply fully to your participation in the Program. In the event of a conflict between any of those policies and this Agreement, this Agreement shall govern.
2. Nature of The Relationship
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.
3. Fees
In consideration of the provision of the Services by the Service Provider and the rights granted to Customer under this Agreement, Customer shall pay monthly payments of $54 (minus any applicable coupons applied at checkout), with the first payment due immediately. These payments will continue until you cancel your subscription to the Services according to the Services’ Cancellation Policy set forth below. Payment to Service Provider of such fees and the reimbursement of expenses as set forth below shall constitute payment in full for the performance of the Services.
Customer shall reimburse Service Provider for all reasonable expenses
incurred by Service Provider, its employees, agents and subcontractors, in performing the Services within 30 days of receipt by the Customer of an invoice from Service Provider accompanied by receipts and reasonable supporting documentation. Customer agrees to pay interest at the rate of 1.5% per month (18% per annum) on any balance unpaid after thirty
(30) days from the statement’s date.
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.
4. Payment Plan Authorization
You hereby authorize the Service Provider to charge your credit card or debit card automatically according to the terms set forth in the Fees section above.
5. Cancellation Policy
The Services are offered on an ongoing basis with a monthly or yearly subscription. You may cancel your subscription at any time by emailing [email protected].
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. Customer’s obligation to make the payments required by section 3 above shall survive the termination of this Agreement until paid in full or otherwise mutually agreed to by the parties in writing.
Either Party may terminate this Agreement, effective upon written notice to the other Party (the “Defaulting Party”), if the Defaulting Party:
a. 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.
b. Becomes insolvent or admits its inability to pay its debts generally as they become due.
c. 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.
d. Is dissolved or liquidated or takes any corporate action for such purpose.
e. Makes a general assignment for the benefit of creditors.
f. 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.
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.
Service Provider may terminate the Agreement without cause by providing thirty (30) days prior written notice to the Customer. In the event of termination under this provision, the Service Provider shall continue to provide service through the end of the period for which the fees have been paid.
6. No Refunds
All sales are final, and the Service Provider 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.
7. The Services
Service Provider shall provide to Customer basic website maintenance (the “Services”) which include:
- Ongoing maintenance and updates of your WordPress website's foundation and plugins (limited to one website) in which applicable license keys are provided and are supported with the most recent WordPress installation.
- Troubleshooting and repair of website WordPress foundation and plugins caused by an update initiated by the Service Provider.
- Addition of new book pages, music pages, or speaking calendar events, to the website including predetermined store links, updating of homepage content (content is to be written by Customer), updates to countdown timer (if applicable) as needed. We do not regularly check all product links to ensure they are still functioning, but will gladly update any that are brought to our attention of needing to be updated.
- Customer will send to Service Provider all artwork and any other assets for products/services that are to be added to the Website as they receive them and have
permission to have added to the website.
- Bi-weekly backup of your website.
8. Confidentiality
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.
9. Limited Warranty and Limitation of Liability
Service Provider warrants that it shall perform the Services:
9.1. In accordance with the terms and subject to the conditions set out in this Agreement.
9.2. Using personnel of commercially reasonable skill, experience and qualifications.
9.3. In a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.
10. 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 Agency 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 Agency in fulfilling its obligations under this Agreement. Ordering of third party services, if any, will be effected by Customer in consultation with Agency. Customer undertakes the adequate and timely introduction of Agency 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.
11. Service Provider’s Personnel
Unless otherwise stated in the Statement of Work, 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.
12. Solicitation of Personnel
Customer shall not solicit, approach, or hire any of the Service Provider’s agents or subcontractors for the purpose of employment or any form of outside work so long as this Agreement, and any applicable Statement of Work are in effect and for a period of one (1) year thereafter, except with written consent of the Service Provider.
13. 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.
14. 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.
15. Entire Agreement
This Agreement 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.
16. 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.
17. Amendments
No amendment to or modification of this Agreement is effective unless it is in writing and signed by each Party.
18. 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.
19. 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 19 shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement.
20. 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.
21. Representations and Warranties
21.1. 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 CUSTOMER “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.
21.2. 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.
21.3. 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.
21.4. 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.
22. 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.
23. 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.
24. Counterparts
This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
25. 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.
26. Effective Date
This Agreement shall commence and be enforceable upon the date that the customer initially registers for the Services.
27. 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.
28. Confidentiality of Agreement
Without Service Provider’s prior written permission, Customer shall not disclose payment rates, structure, arrangement details, any of the terms of this Agreement or any applicable Statement of Work to any one including, but not limited to, individuals, entities and government agencies.