These Standard Terms and Conditions (the “Standard Terms”) are made a part of and incorporated into the Agreement. Initially capitalized terms used, but not otherwise defined, herein shall have the meanings given to such terms in the Agreement.
- Representations and Warranties.
- Mutual. Each Party represents and warrants to the other that (i) it has the full right, power, legal capacity, and authority to enter into, deliver and fully perform under this Agreement and to grant the rights hereunder; (ii) none of the execution, delivery, or performance of or activity under this Agreement will result in a violation or breach of any contract, agreement, order, judgment, decree, rule, regulation or law by which such Party is bound and failure with which to comply would result in a material adverse effect; (iii) the person executing this Agreement on behalf of the Party is fully empowered to so execute the Agreement; (iv) the materials supplied or otherwise provided to a Party in connection with this Agreement shall not violate any law or infringe upon or violate the rights of any person (including contractual rights, copyrights, trademarks, rights of publicity and rights of privacy); (v) such Party acknowledges that the other Party makes no representations, warranties, or agreements related to the subject matter hereof that are not set forth in this Agreement; (vi) such Party nor any of its officers, directors, principals, representatives or employees will, directly or indirectly, disparage or otherwise discredit the other Party, any of its respective clients, representatives, employees, shareholders or other affiliated persons or entities, or any of its products, services or operations in any manner whatsoever; and (vii) it shall comply with all applicable laws in connection with its performance under this Agreement. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 1, ALL SERVICES AND WORK PRODUCT IS PROVIDED BY COMPANY ON AN “AS IS” BASIS AND COMPANY HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES TO CLIENT OR TO ANY THIRD PARTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, SUITABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE (IRRESPECTIVE OF ANY PREVIOUS COURSE OF DEALINGS BETWEEN THE PARTIES OR CUSTOM OR USAGE OF TRADE), OR RESULTS TO BE DERIVED FROM THE USE OF THE SERVICES OR WORK PRODUCT PROVIDED UNDER THIS AGREEMENT.
- Furthermore, Client represents and warrants that: (i) the Client Marks or any use thereof that is approved by Client shall not violate any law or infringe upon or violate the rights of any person (including contractual rights, copyrights, trademarks, rights of publicity and rights of privacy);and, (ii) Client has the right to grant the rights granted hereunder with respect to the Client Marks.
- Indemnification and Insurance. Each Party agrees to indemnify, defend, and hold harmless the other Party and such Party’s parents, subsidiaries and affiliates, and each of their respective members, officers, directors, principals, employees, agents and representatives (all such entities and persons, collectively, the “Indemnified Parties”) from and against any and all claims, liabilities, suits, demands, costs, damages (including bodily or personal injury, death, and property damage) and expenses in connection with any third party claim (including reasonable legal fees and expenses) (collectively, “Losses”), suffered or incurred by the Indemnified Parties, to the extent caused by, related to, or in connection with: (i) the indemnifying Party’s breach of this Agreement, including, without limitation, any of such Party’s representations and warranties herein; and/or (ii) the gross negligence or intentional misconduct, of the indemnifying Party and/or such Party’s officers, directors, principals, employees, subcontractors and/or any other entity or personnel that is, was or should have been under such Party’s control or supervision.
Company shall maintain a commercial general liability insurance policy with limits (which may be satisfied through combination with an umbrella liability policy) no less than One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in the aggregate. Company shall list Client as an additional insured on such policy.
- Remedies. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD-PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS PROFITS OR GOODWILL OR FOR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION AND EVEN IF A REPRESENTATIVE OF THE PARTY ALLEGEDLY LIABLE WAS ADVISED, HAD REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. WITH THE SOLE EXCEPTION OF EACH PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 3 HEREIN AND LIABILITIES AS THEY PERTAIN TO THIRD PARTY CLAIMS, IN NO EVENT SHALL EITHER PARTY’S DIRECT LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER ALONE OR IN THE AGGREGATE WITH OTHER CLAIMS) EXCEED THE VALUE OF THIS AGREEMENT. THE LIMITATIONS SET FORTH ABOVE SHALL BE DEEMED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES. EACH PARTY ACKNOWLEDGES AND AGREES THAT IT HAS FULLY CONSIDERED THE FOREGOING ALLOCATION OF RISK AND FIND IT REASONABLE, AND THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
- Confidentiality and Non-Disclosure. During the term of this Agreement, each Party and its officers, directors, shareholders, employees, agents, contractors and representatives (the “Receiving Party”) may gain access or be exposed to certain confidential and proprietary information (“Confidential Information”) relating to the business of the other Party (the “Disclosing Party”). Except for disclosure (i) authorized by the express prior consent of the Disclosing Party, (ii) to the Receiving Party’s attorneys, accountants, or similar agents as may be necessary to allow for effective representation of the Receiving Party’s Interests, or (iii) as required by law after prior written notice to the Disclosing Party, the Receiving Party agrees, that all such Confidential Information shall remain and be kept in strictest confidence and shall not be disclosed to or used by any person or entity without the prior written consent of the Disclosing Party. This Agreement, the terms and conditions contained herein, and any details of ensuing negotiations are Confidential Information within the meaning of this section.
- Notice. All notices given to Client hereunder shall be addressed to Client at the address as included on the signature page hereof. All notices to be given to Company hereunder and statements and payments to Company shall be addressed to Company at the following address (or at such other address as Company shall designate in writing from time to time): All notices shall be in writing and shall either be served by personal delivery (provided that a written receipt shall be obtained indicating that such delivery was made) or certified mail (return receipt requested), all charges prepaid. Except as otherwise provided herein, such notices shall be deemed given upon the earlier of actual receipt, five (5) days following deposit into the United States mail (certified mail, return receipt requested), the next business day following deposit with a nationally recognized overnight courier service, or the same day following transmission of a legible facsimile copy or email during regular business hours (with the original thereof posted first-class mail, postage prepaid, within two (2) business days thereafter), in each case with all charges prepaid, except that notices of change of address shall be effective only after the actual receipt thereof. This Paragraph shall survive the termination or expiration of this Agreement.
- Termination/Force Majeure.
- Either Party shall have the right, but not the obligation, to terminate this Agreement with respect to any event specified in clauses (i) or (ii) in this Section 7(a), effective immediately upon the other Party’s receipt of written notice with respect thereto: (i) if the other Party commits a material breach of this Agreement that is not cured by the other Party within thirty (30) days following receipt of written notice from the non-breaching Party; or (ii) if the other Party becomes insolvent or becomes involved in bankruptcy proceedings. In the event Client terminates this Agreement pursuant to this Section 7(a), Client shall not be liable for any prospective fees and Company shall refund Client any prepaid fees. In addition, Company reserves the right to suspend or terminate any services in the event that any payment by Client is made in fully within five (5) days of its due date, provided that Company shall provide Company advance notice and a reasonable period to cure before any such termination.
- The failure of either Party to comply with any term or condition of this Agreement because of a Force Majeure Event (as defined below), or the cancellation, rescheduling or change in any Event because of a Force Majeure Event, shall not be deemed a breach of this Agreement. A “Force Majeure Event” shall mean any of the following, the occurrence of which makes performance of any Event, in whole or in part, and/or the provision of Company’s services hereunder impossible, impracticable or unsafe: cancellation/ rescheduling of an Event, an act of God (including earthquake), fire, strike or other labor dispute, war or threat of war, act of public enemy, act of terrorism or threats thereof affecting any Event, riot or civil commotion, national state of emergency, enactment, rule, order or act of any government or governmental instrumentality, prolonged failure of technical facilities, severe or hazardous weather conditions (except as set forth below), epidemic/ pandemic (including a health epidemic), prolonged interruption in, or substantial delay or failure of, technical facilities, or sustained failure or substantial delay of necessary transportation services, or any other event or condition beyond Client and/or Company’s reasonable control, as applicable. If a Party is prevented from performing its obligations under this Agreement, such Party shall provide immediate notice to the other Party identifying such Force Majeure Event and its impact on such Party’s obligations. The Party prevented from performing its obligations under this Agreement by a Force Majeure Event will, except in the case of any payment obligation under this Agreement, be excused from the performance of such obligations from the date of such notice for so long as the specified Force Majeure Event continues to prevent such Party from performing such obligations, provided that: (x) such Party will, throughout the duration of the Force Majeure Event, take reasonable steps to mitigate the effects of the Force Majeure Event on the other Party; and (y) upon cessation or resolution of the Force Majeure Event, the Party affected will promptly notify the other of such cessation or resolution to the reasonable satisfaction of the Parties and resume performance of such Party’s obligations under this Agreement. For the avoidance of doubt, if performance by either Party of such Party’s obligations under this Agreement is affected by a Force Majeure Event, such Party will nevertheless remain liable for the performance of all of such Party’s obligations that are not affected by the Force Majeure Event (including all payment obligations). With respect to Marketing Campaigns not provided or rendered unavailable due to a Force Majeure Event, the Parties will work together in good faith to agree either upon additional Marketing Campaigns to be provided during the remaining Term under this Agreement or to an amount to which Company will be credited with respect to Company’s remaining payment obligations under this Agreement and/or refunded.
- Neither Party shall be entitled to assign such Parties’ rights and obligations hereunder without obtaining prior written approval from the other Party, not to be unreasonably withheld. Notwithstanding anything set forth herein to the contrary, Company shall be entitled to engage subcontractors to assist Company in providing the services contemplated hereunder, provided that Company shall remain liable for all of its obligations under this Agreement.
- Nothing contained in this Agreement shall be construed to create a partnership or joint venture between the Parties, or to make either the agent of the other, each Party hereto being an independent contractor.
- A waiver by either Party of any term or condition of this Agreement in any instance shall not be deemed or construed as a waiver of such term or condition for the future, or of any subsequent breach thereof. All remedies, rights, undertakings, obligations, and agreements contained in this Agreement shall be cumulative and none of them shall be in limitation of any other remedy, right, undertaking, obligation or agreement of either Party. If any provision of this Agreement shall be held void, invalid or inoperative, no other provision of this Agreement shall be affected as a result thereof and, accordingly, the remaining provisions of this Agreement shall remain in full force and effect as though such void, invalid or inoperative provision is not contained herein.
- This Agreement shall be governed, interpreted, construed, regulated and conformed in accordance with the laws of the State of New York without regard to its conflict of laws provisions. As set forth more fully below, any disputes arising under or relating to this Agreement shall be submitted to JAMS, or its successor, for mediation, and if the matter is not resolved through mediation, then it shall be submitted to JAMS, or its successor, for final and binding arbitration. A party may commence mediation by providing to JAMS and the other parties a written request for mediation, setting forth the subject of the dispute and the relief requested. The parties will cooperate with JAMS and with one another in selecting a mediator from the JAMS panel of neutrals and in scheduling and venueing the mediation proceedings, provided that the mediator shall be a retired judge and the proceedings shall take place in New York, NY. The parties agree that they will participate in the mediation in good faith and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. A party may initiate arbitration with respect to the matters submitted to mediation by filing a written demand for arbitration at any time following the initial mediation session or at any time following 45 days from the date of filing the written request for mediation, whichever occurs first (“Earliest Initiation Date”). The mediation may continue after the commencement of arbitration if the parties so desire. If the dispute is submitted to arbitration, then the dispute shall be determined by arbitration before a single arbitrator. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. All applicable statutes of limitation and defenses based upon the passage of time shall be tolled until 15 days after the Earliest Initiation Date. The parties will take such action, if any, required to effectuate such tolling.
- This Agreement may be executed simultaneously in two (2) or more counterparts (including by digital signature methods) and via facsimile, PDF or emailed scans, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.