TERMS AND CONDITIONS
This Terms of Service Agreement (“Agreement”) is entered into this date by and between 97 Display, LLC a North Carolina limited liability company (hereinafter “Company”), and you, on behalf of yourself and your company (the “Customer”).
WHEREAS, the Company is engaged in the business of providing online marketing services for martial arts and fitness studios online via a template based website (“Website”) (collectively, hereinafter “Services”); and
WHEREAS, the Customer is interested in purchasing the Services, licensing the Website design, look-and-feel and layout and licensing the Company’s content management system; and
WHEREAS, the Customer recognizes that this Agreement does not pertain to the sale of the Website, and that all websites created pursuant to the terms of this Agreement remain the sole property of the Company.
NOW, THEREFORE, in consideration of the foregoing premises, and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereby agree as follows:
The Company hereby grants to Customer, and, to the extent applicable, the Customer’s members and users, a non-exclusive, non-transferable, limited right and license to access the Services during the term of this Agreement solely for the use of Customer, and, to the extent applicable, its members and users. The license hereunder shall not include a right of the Customer to sublicense, resell or distribute access to or use of the Services. The Customer agrees that it will not grant any third party the right to access the administrative portion of the Services or attempt to copy or appropriate the Website.
This Agreement will remain in full effect until either party terminates the Agreement upon thirty (30) days’ prior verbal notice to the other party in the form of an exit interview with the Company’s Offboarding Specialist. In the event of Agreement termination, the Customer is subject to a final, 30-day pro-rated payment.
The Customer agrees to pay the Company all fees associated with the Customer’s account. The first payment being due on the first day the Customer registers with the Company. The Customer agrees to pay all fees associate with the Customer’s account each month until the Agreement is terminated starting thirty (30) days after the Agreement is signed. Payment shall be made to the Company via electronic subscription unless otherwise notified differently by the Company. The Company will charge the credit card on file or deduct the fee from the Customer’s monthly EFC account until the Agreement is terminated. In addition to any other right or remedy provided by law, if the Customer fails to pay for the Services when due, the Company has the option to treat such failure as a material breach of this Agreement, and may terminate this Agreement and the provision of the Services and/or seek legal remedies. Customer may adjust these fees once annually.
4. Warranties; Disclaimer of Warranties.
The Company warrants that the Services will be performed in a professional and workmanlike manner and that the Services will materially perform in accordance with any documentation provided by the Company. As Customer’s sole remedy for any breach of these warranties, if the Customer brings to the Company’s notice any incidence of non-conformance, the Company will use reasonable efforts to correct the error. EXCEPT FOR THESE WARRANTIES, THE CUSTOMER ACKNOWLEDGES THAT THE SERVICES AND THE WEBSITE ARE PROVIDED “AS IS”, AND THE COMPANY DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY AND CONDITION OF MERCHANTABLE QUALITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITATION, THE COMPANY DOES NOT WARRANT THAT THE SERVICES OR THE WEBSITE WILL MEET ALL OF THE CUSTOMER’S REQUIREMENTS, OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR FREE. THE COMPANY ALSO MAKES NO WARRANTIES REGARDING ANY THIRD PARTY COMPONENTS. THE PARTIES AGREE THAT IT IS THE CUSTOMER’S RESPONSIBILITY TO DETERMINE IF THE SERVICES ARE SUITABLE FOR THE CUSTOMER’S REQUIREMENTS.
5. Limitation of Liability.
UNDER NO CIRCUMSTANCES SHALL EITHER PARTY OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, OR SUPPLIERS BE LIABLE TO THE OTHER PARTY FOR LOST PROFITS, LOST DATA OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO THIS AGREEMENT WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY. THE COMPANY’S TOTAL LIABILITY TO THE CUSTOMER AND THE EXCLUSIVE REMEDY UNDER THIS AGREEMENT FOR DAMAGES, COSTS, AND EXPENSES, REGARDLESS OF CAUSE, SHALL NOT EXCEED THE TOTAL AMOUNT PAYABLE TO THE COMPANY IN THE MOST RECENT FULL CALENDAR YEAR BY THE CUSTOMER UNDER THIS AGREEMENT.
6. Ownership of Work Product.
Any copyrightable works, ideas, discoveries, inventions, patents, products, or other information (collectively the “Work Product”) developed in whole or in part by the Company in connection with the Services will be the exclusive property of the Company. Upon request, the Customer will execute all documents necessary to confirm or perfect the exclusive ownership of Company to the Work Product. The Customer acknowledges that the Company is the owner of the Website, and that the Customer is purchasing a service to use a template-based website that will be returned to the Company after the Agreement is terminated. The Customer agrees that any text, graphics or material copied from the Company by the Customer onto a new website will result in a minimum charge of $495 per month per website or reactivation of this agreement. Notwithstanding the foregoing, nothing herein shall preclude the Company from asserting any rights to which it is entitled to assert under common law or in equity.
The Customer shall hold and keep the confidentiality of the Confidential Information of the Company and shall not use or disclose the Confidential Information to any third party. “Confidential Information” shall mean any financial information, trade secrets, know-how, inventions, products, designs, methods, techniques, systems, processes, software programs, works of authorship, business plans, customer lists, projects, plans, proposals and any other information of the Company. This provision will remain in effect after the termination of this Agreement.
Either party may terminate this Agreement (a) for cause by giving the other party thirty (30) days prior verbal notice via an exit interview call with the Comapany’s Offboarding Specialist specifying a material breach of the other party’s obligations under this Agreement; and provided that said breach has not been cured within such thirty (30) day period, the non-defaulting party shall have the right, at its election and without prejudice to any other rights or remedies, to cancel this Agreement in whole or in part or (b) immediately upon notice to the other upon the occurrence of the following events: (i) a receiver, trustee, or liquidator of the party is appointed for any of its properties or assets; (ii) the party admits in writing its inability to pay its debts as they mature; (iii) the party makes a general assignment for the benefit of creditors; (iv) the party is adjudicated as bankrupt or insolvent; (v) a petition for the reorganization of the party or an arrangement with its creditors, or readjustment of its debt, or its dissolution or liquidation is filed under any law or statute; or (vi) a party ceases doing business, commences dissolution or liquidation and provided that said event(s) has not been cured within said thirty (30) day period, the non-defaulting party shall have the right, at its election and without prejudice to any other rights or remedies, to cancel this Agreement.
9. Effect of Termination.
Upon the termination of this Agreement (whether pursuant to Section 8 or for any other reason), the Customer shall immediately (i) cease use of the Services (including access to the Website), (ii) return any Work Product to the Company and certify in writing that it has retained no copies of such Work Procut and (iii) pay any outstanding, amounts due to the Company hereunder; and, upon request from the other party and upon no more than within ten (10) days from such request, each party shall return to the other party all copies of such other party’s Confidential Information and certify in writing to such other party that no copies of such Confidential Information have been retained by it or have been destroyed. Sections 6, 7, 9 and 14 through 22 shall survive any termination of this Agreement.
Any notices permitted or required under this Agreement shall be deemed given upon the date of personal delivery or 48 hours after deposit in the United States mail, first class postage fully prepaid, addressed to as follows: (a) To Company: 97 Display, LLC, 3610 Healy Drive Suite 210, Winston Salem, NC 27103; and (b) To the Customer: Address listed on account of the Customer or any other address as any party may, from time to time, designate by notice given in compliance with this section.
11. Force Majeure.
If a Force Majeure Event occurs, the party that is prevented by that Force Majeure Event from performing any one or more obligations under this agreement (the “Nonperforming Party”) will be excused from performing those obligations, on condition that it complies with its obligations under this Section. For purposes of this agreement, “Force Majeure Event” means, with respect to a party, any event or circumstance, regardless of whether it was foreseeable, that was not caused by that party and that prevents a party from complying with any of its obligations under this agreement, other than an obligation to pay money, on condition that that party that uses reasonable efforts to do so, except that a Force Majeure Event will not include any a strike or other labor unrest that affects only one party or an increase in prices. Upon occurrence of a Force Majeure Event, the Nonperforming Party shall promptly notify the other party of occurrence of that Force Majeure Event, its effect on performance, and how long that party expects it to last. Thereafter the Nonperforming Party shall update that information as reasonably necessary. During a Force Majeure Event, the Nonperforming Party shall use reasonable efforts to limit damages to the Performing Party and to resume its performance under this agreement.
Any controversies or disputes arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association. The parties shall select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of this Agreement. In the event the parties are unable to agree as to the selection of arbitrator, each party will select an arbitrator and the two arbitrators in turn shall select a third arbitrator, all three of whom shall preside jointly over the matter. The arbitration shall take place at a location that is reasonably centrally located between the parties, or otherwise mutually agreed upon by the parties. All documents, materials, and information in the possession of each party that are in any way relevant to the dispute shall be made available to the other party for review and copying no later than thirty (30) days after the notice of arbitration is served. The arbitrator(s) shall not have the authority to modify any provision of this Agreement or to award punitive damages. The arbitrator(s) shall be final and binding on the parties, and judgment may be entered in conformity with the decision in any court having jurisdiction. The Arbitration settlement agreement shall be specifically enforceable under the prevailing arbitration law. During the continuance of any arbitration proceeding, the parties shall continue to perform their respective obligations under this Agreement.
Neither the Company nor Customer may assign any of its rights or delegate any of its obligations under this Agreement to any third party without the express written consent of the other party, except that the Company may assign this Agreement to any affiliate of the Company and to a successor to its business (whether by purchase of the Company’s assets or otherwise). Further, unless authorized by the Company in writing, the Customer may not resell the Services to third parties. This Agreement shall be binding upon the parties hereto and their respective successors and assigns as permitted hereunder.
14. Entire Agreement.
This Agreement contains the entire understanding between and among the parties and supersedes any prior understandings and agreements among them respecting the subject matter of this Agreement.
This Agreement may be modified or amended only if the amendment is made in writing and signed by both parties.
If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall 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 shall be deemed to be written, construed, and enforced as so limited.
17. No Waiver.
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.
18. Separate Counsel.
The Customer hereby expressly acknowledge that she has been advised that she has not been represented by the Company’s attorney in this matter and has been advised and urged to seek separate legal counsel for advice in this matter.
19. Further Action.
The parties hereto shall execute and deliver all documents, provide all information and take or forbear from all such action as may be necessary or appropriate to achieve the purpose of the Agreement.
20. Entire Agreement.
This Agreement contains the entire understanding between and among the parties and supersedes any prior understandings and agreements among them respecting the subject matter of this Agreement. Any amendments to this Agreement must be in writing and signed by the party against whom enforcement of that amendment is sought.
21. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina.
22. Attorney’s Fees.
Should any collection action or proceeding be brought regarding any amount owed hereunder, the Company shall be entitled to recover reasonable attorney’s fees, costs, and expenses in connection with such collection action or proceeding (including appeals) in addition to all other relief to which the Company may be entitled.