This Agreement is made between those parties (herein referred to as “Client”) that pay for management services (herein referred to as “Deliverables”) and Past Due Branding (herein referred to as “Contractor”).
Client agrees to submit any cancellation/refund notice in writing no more than two (2) business days from the time of purchase. Client agrees that there will be no refunds (full, partial, pro-rated, etc) in association with the purchase after the approved cancellation time period. Client agrees that any and all questions should be asked and addressed prior to completing the purchase of any and all services.
Deliverables are broken down into the service categories of WEBSITE, SOCIAL MEDIA and EMAIL LIST
SOCIAL MEDIA MANAGEMENT
EMAIL LIST MANAGEMENT
Service Reliability (hosting services only). Any service interruptions caused be conditions beyond the reasonable control of the Contractor shall not be considered a breach of the agreement and will result in a pro-rated refund applied to the Client’s account if a service interruption is found to be the fault of the Contractor. Conditions beyond the reasonable control of the Contractor include, but are not limited to, natural disasters, acts of government after the date of agreement, power failure, fire, flood, acts of God, labor disputes, riots, acts of war, terrorism and epidemics
Confidential Information. All material considered confidential by either party shall be designated as confidential. Confidential Information shall not be disclosed to third parties and shall only be used as needed to perform this Agreement. Confidential Information shall not include any information that is already known by the recipient, becomes publicly known through no fault of the recipient, or is received from a third party without a restriction on disclosure.
Relationship of the Parties. Contractor is an independent contractor. Contractor shall determine, in its sole discretion, the manner and means by which the Deliverables are accomplished. No agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. Neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Contractor and the work product or Deliverables prepared by Contractor shall not be deemed a work for hire as defined under Copyright Law. All rights granted to Client are contractual in nature and are expressly defined by this Agreement.
Representations and Warranties. Client represents and warrants to Contractor that to the best of Client’s knowledge, use of the Client Content does not infringe the rights of any third party. Contractor represents and warranty to Client that to the best of Contractor’s knowledge, the website will not violate the rights of any third parties.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, CONTRACTOR MAKES NO WARRANTIES WHATSOEVER. CONTRACTOR EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE PROJECT.
Accreditation and Promotion. Contractor shall be entitled to place accreditation, as a hyperlink, in the form, size and location as incorporated by Contractor in the footer of each page of the website. Contractor retains the right to reproduce, publish and display the website in Contractor’s portfolios and websites, in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the website in connection with such uses.
Permissions and Releases. The Client agrees to indemnify and hold the Contractor harmless against any and all claims, costs, and expenses, including attorney’s fees, due to materials included in the Deliverables at the request of the Client for which no copyright permission or privacy release was requested, or for which uses exceed the uses allowed pursuant to a permission or release.
Indemnification and Liability. Client shall indemnify Contractor from any and all damages, liabilities, costs, losses, expenses or attorney fees arising out of any claim, demand, or action by a third party due to materials included in Deliverables at the request of the Client.
THE SERVICES AND THE WORK PRODUCT OF CONTRACTOR ARE SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF CONTRACTOR, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES (“CONTRACTOR PARTIES”), TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE NET PROFIT OF CONTRACTOR. IN NO EVENT SHALL CONTRACTOR BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY CONTRACTOR, EVEN IF CONTRACTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Dispute Resolution. Parties agree to attempt to resolve any dispute by negotiation between the parties. If parties are unable to resolve the dispute by negotiation, either party may start mediation and/or binding arbitration in a forum mutually agreed to by the parties. The prevailing party shall be entitled to recover its attorneys’ fees and costs in any dispute resolved by binding arbitration or litigation.
General. Modifications to this Agreement must be in writing and signed by both parties. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach. All notices under this Agreement shall be given in writing either by: (a) Fax or Email, with return confirmation of receipt; (b) Certified or Registered mail, with return receipt requested. Notice will be effective when received, or in the case of email or fax, on confirmation of receipt. Rights or obligations under this Agreement shall not be transferred, assigned or encumbered without the prior written consent of the other party. This Agreement shall be governed by the law of Texas. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect. Where possible the invalid or unenforceable provision shall be interpreted in such manner as to be effective and valid under applicable law. Headings and numbering used in this Agreement are for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of this Agreement, and shall not have any legal effect. This Agreement is the entire understanding of the parties and supersedes all prior understandings and documents relating to the subject matter of this Agreement.