PLEASE READ THIS ENTIRE
DOCUMENT CAREFULLY. BY SIGNING A PROPOSAL, YOU EXPRESSLY AGREE TO AND
UNCONDITIONALLY ACCEPT THESE TERMS AND CONDITIONS. IF YOU DO NOT FULLY AGREE TO
THESE TERMS, PLEASE DO NOT SIGN A PROPOSAL.
“Agreement” - refers to and means: (a) these Terms; (b) any written Proposal that the Client has signed or electronically accepted which references these Terms; and (c) any subsequent modifications to these Terms or a Proposal which are permitted herein. The Agreement is made and entered into between Provider and Client, but subject to Guarantor’s obligations set forth herein. There are no intended third-party beneficiaries under this Agreement.
“Client” - refers to and means the person or entity named as "Client” in a Proposal. For purposes of Provider’s obligations to Client, it shall be liable only to the person or entity so named therein. However, for purposes of Client’s obligations to Provider, Client shall be jointly and severally liable to Provider along with the Guarantor.
"Content” - refers to and means any design materials, copy, web pages, video or photographic media, logos, marketing materials (including concepts, ideas, and techniques), branding materials, tangible or intangible assets, or other things which are created or delivered by Provider as part of the Services. [J1]
"Fee” - refers to and means the sum set forth in a Proposal to be paid by Client to Provider pursuant to the payment schedule set forth therein (if any), including the Initial Investment, hosting fees (if any), and marketing fees. [J2]
“Guarantor” - refers to and means the person signing a Proposal on behalf of the Client.
“Initial Investment” - refers to and means the total flat fee of Provider charged for its initial services (if such flat fee is specified in a Proposal), as well as any other services which have been financed into the Fee (such as photo or video production), and including any discounts or incentives specified in a Proposal.
“Party” - whether capitalized or not, refers to and means either Client or Provider.
“Parties” - whether capitalized or not, refers to and means both the Client and Provider collectively.
“Proposal” - refers to and means a document or email signed or accepted by Client specifying the Fee or other sum to be paid by Client, as well as the Services to be performed by Provider in consideration for receipt of the Fee or other specified sum. “Proposal” also refers to and means those future documents or emails which may be signed or accepted by Client from time to time memorializing additional Services to be performed by Provider and the fees to be paid by Client in consideration therefor, regardless of whether such documents are entitled as a ‘proposal’.
“Provider” - refers to and means, exclusively, _______________.
“Services” - refers to and means the various branding, marketing, web development, consulting, design, advertising, or related services to be performed by the Provider as described in the initial Proposal and authorized modifications made thereto as permitted in this Agreement. “Services” also refers to and means those branding, marketing, web development, consulting, design, advertising, or related services which may be requested by Client and performed by Provider from time to time which are made subject to these Terms and expressly incorporate the Agreement by reference. [J3]
“Term” and “Term of the Agreement” - refers to and means the length of our initial contractual relationship, as set forth in a Proposal, and subject to the provisions hereof regarding termination and notice.
“Terms” - refers to these Terms and Conditions.
“We” “Us” and “Our” , as used in a Proposal, and whether capitalized or not, refers to and means Provider.
“You” and “Your” , as used in a Proposal, and whether capitalized or not, refers to and means the Client.
Entire Agreement:
The Agreement shall constitute the entire, final, and exclusive agreement and understanding between the Provider, Client, and Guarantor with regards to the subject matter hereof. The provisions of these Terms hereby supersede any prior understanding, representation, or agreement between the parties, whether written or oral, express or implied, which is inconsistent with or contrary to the provisions hereof. In the event of a conflict or inconsistency between the provisions of these Terms and the provisions of a Proposal, the provisions of these Terms shall control.
Section 1. PROVIDER’S SERVICES
1.1
During the Term of this Agreement, and provided that Client is not in default hereunder, Provider will use reasonable efforts to perform the Services in a commercially reasonable manner. Client understands and acknowledges that Provider has not investigated whether any Client Content will infringe upon the rights of third parties. Accordingly, it is Client’s sole responsibility to verify that the use, marketing, advertising, transmittal, and reproduction of all Client Content will not infringe upon the rights of any person or entity.
1.2
Client understands and agrees that Client shall not own the Client Content unless and until the Initial Investment is paid in full. Until such time, and provided that Client is not in default hereunder, Provider grants to Client a non-exclusive, non-transferrable, and non-sublicensable license to promote, display, transmit, publish, use, and access the Client Content. In the event of default by Client, the foregoing license shall automatically terminate upon notice to Client. For purposes of clarity, the termination of this Agreement shall be synonymous with, and shall serve as the simultaneous termination of the foregoing license. [J4]
1.3
Client expressly consents to the transmission and storage of Client Content via e-mail, cloud-based platforms, and other mediums employed by the Provider. Client acknowledges that there may be security risks inherent in Provider’s performance of the Services, transmittal of Client Content to and from Provider, and maintenance, hosting, and use of Client’s website. Accordingly, and notwithstanding any confidentiality or non-disclosure provisions contained herein, Client releases, waives, and discharges all claims, demands, and causes of action, whether at law or in equity, against all of the Provider Parties (as defined below) from any and all liability for any security breach, theft, conversion, loss, misuse, or hacking of or related to the Services, the Client Content, the client’s Website (whether maintained by Provider or not), and any of the platforms used by Provider to deliver, promote, host, store, or market Client Content. In addition, and without limiting the generality of the foregoing, Client expressly acknowledges that, if its website is not regularly and properly maintained, Client may be exposed to increased security risks and vulnerabilities.
1.4
For an additional cost (subject to review and proposal by Provider based upon size and scope), migration of data and hosting can be offered. Migration will include (a). preparation of website and related content; (b). packaging and/or transfer of plugins and licensing as necessary; (c). perform testing; and (d). interface with new hosting provider and cooperate with site transfer. Client shall be responsible for all costs, fees, and expenses associated with the site transfer, as well as new hosting service.
1.5
Client expressly releases Provider, and hereby waives all claims and causes of action against Provider, whether at law or in equity, now or hereafter acquired, for lost profits or for consequential, incidental, punitive, or any other form of damages arising from or relating to: (i). use, transmittal, or reproduction of Client Content (whether authorized or unauthorized); (ii). delays in Provider’s provision of Client Content to Client or any third parties designated by Client (or delays in Client providing information, input, or approvals to Provider necessary to perform the Services; or (iii). any security breach, theft, conversion, or hacking related to the Services, the Client Content, or any of the platforms used by Provider to deliver, promote, host, store, or market Client Content. [J5]
1.6
In the event of Client’s failure to provide, or delay in timely providing any necessary information, input, or approvals to Provider necessary to the Provider’s performance of Services, the Client acknowledges that such failure or delay will necessarily result in the delay in completion of such Services. Furthermore, the Client acknowledges and agrees that Fee fees shall continue to be charged to Client during such period of time, and Client will remain fully liable therefor.
Section 2. RESTRICTIONS AND RESPONSIBILITIES
2.1
SECTION 1 HEREOF (AND ITS SUBPARTS) SETS FORTH THE SOLE AND EXCLUSIVE OBLIGATION OF PROVIDER TO CLIENT WITH REGARDS TO PERFORMANCE OF THE SERVICES AND PROVISION OF CLIENT CONTENT. PROVIDER HAS MADE NO REPRESENTATION, WARRANTY, CLAIM, OR GUARANTEE REGARDING THE EFFECT, OUTCOME, OR RESULTS TO BE REALIZED OR OBTAINED BY CLIENT THROUGH USE OF THE SERVICES OR CLIENT CONTENT, AND SPECIFICALLY DISCLAIMS ALL OF THE SAME. PROVIDER DOES NOT GUARANTEE OR WARRANT, AND EXPRESSLY WAIVES AND DISCLAIMS ANY GUARANTEE OR WARRANTEE, WHETHER EXPRESS OR IMPLIED, WHICH MAY BE APPLICABLE TO THE SERVICES, THE CLIENT CONTENT, OR THE PROVIDER’S OBLIGATIONS UNDER A PROPOSAL OR THIS AGREEMENT.
2.2
Client shall not, either directly or indirectly, at any time during or after the Term of the Agreement or any subsequent renewal term thereof, nor shall Client permit any of Client’s agents, employees, companies, partners, affiliates or subsidiaries, nor the agents, employees, officers, or contractors of any of them, [J6] notwithstanding any other provision of the Agreement to the contrary, to do or attempt to do any of the following: (i). reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the platforms, tools, or software used by Provider to deliver the Services or Client Content; or (ii). modify, translate, or create derivative works based upon any of the foregoing (except to the extent expressly permitted by Provider or the author of such platforms, tools, or software).
2.3
Unless a transfer, sale, or assignment of intellectual property rights is expressly made in writing by Client, Client shall own and retain all right, title, and interest in and to Client Content, subject to and conditional upon Client’s payment of the entire Initial Investment. However, Provider shall have exclusive rights to, and ownership of any and all software, applications, inventions, methods, techniques, practices, content, know-how, functions, or other technology arising from or relating to any derivative work created by Provider based on Client Content [J7] Furthermore, Client grants to Provider a non-exclusive, non-transferrable, irrevocable, and non-sublicensable license to display and promote Client Content (including logos, designs, and branding which may be subject to Client’s trademark or copyrights) in connection with its business marketing and advertisements. Unless specifically agreed to by Provider in a Proposal, Provider is not responsible for the hosting of any Client Content. In any event, and even if Provider is hosting Client Content, Provider shall under no circumstances be held liable for any data loss relating to, interruption in use of, or theft, hacking, corruption, or infringement of any Client Content.
2.4
Client hereby expressly covenants to defend, indemnify, and hold harmless Provider and its agents, employees, officers, successors, subsidiaries, parents, affiliates, and assigns (collectively, “Provider Parties”) from and against all claims, causes of action, costs, fees, fines, expenses, losses, and liabilities of any and every kind whatsoever, including attorney’s fees and court costs, which are brought against, sought from, alleged to be the responsibility or fault of, or are incurred by any of the Provider Parties, and which arise from, or in any way relate to: (i). any negligence or intentional wrongful acts by or on behalf of Client or its employees, agents, contractors, officers, subsidiaries, affiliates, or assigns; (ii). the creation, production, marketing, advertising, or use of any Client Content; (iii). the breach or threatened breach of any provision of the Agreement by Client; (iv). any act or thing for which any of the Provider Parties are released under this Agreement; or (v). any use, misuse, reproduction, or alteration of any Client Content by any person or entity, regardless of whether any of the foregoing was foreseeable or known to any of the Provider Parties.
2.5
Client acknowledges that Provider has invested considerable time, effort, and money into recruiting and training its employees and independent contractors who carry out performance of the Services and delivery of Client Content during the Term (“Protected Personnel”). Accordingly, the Client shall not, during the Term or within the six (6) month period immediately thereafter, either directly or indirectly, either on Client’s behalf or in assistance to any third party, do or permit any other person to do any of the following: (i). induce, recruit, solicit, hire, employ, contract with or otherwise engage in any way with any Protected Personnel for the purpose of performing services similar in nature to the Services; or (ii). solicit, induce, recruit, encourage, or entice any Protected Personnel to leave the employ or engagement of Provider, or having knowledge that such actions will cause, either directly or indirectly, any Protected Personnel to leave the employ or engagement of Provider.
2.6
Client acknowledges that compliance with the terms of paragraph 2.5 above is necessary to protect the Provider’s legitimate business interests in retaining qualified personnel. Furthermore, Client understands and agrees that a breach of paragraph 2.5 above will damage the Provider in an amount which is difficult, if not impossible, to calculate. Accordingly, in the event the Client either (i). desires to take any action which would be considered a breach of paragraph 2.5; or (ii). actually takes action which constitutes a breach of paragraph 2.5, then Client shall pay to Provider within thirty (30) days of demand therefor a sum equal to fifty percent (50%) of the current total annual gross salary of the applicable Protected Personnel who has left or desires to leave the employ or engagement of Provider.
2.7
Client acknowledges that Provider requires administrative access to a variety of accounts owned or controlled by Client in order to perform Provider’s Services. Accordingly, during the Term Client will ensure Provider has administrative access to all accounts to which Provider requests access in order to perform its Services. If such administrative access does not exist, Client expressly authorizes Provider to create administrative accounts, permissions, and access as reasonably necessary to perform the Services and develop the Client Content. While Provider may assist Client in managing its related service accounts (such as newsletter management, advertising, and the like), Client will be responsible for opening and maintaining such accounts. In addition, the Provider has the absolute right to, at any time, require Client to open and maintain their own service account (in the event that the Provider is at that time in control of an account opened for or on Client’s behalf, but owned by Provider).
Section 3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1
Both parties may, from time to time hereafter disclose to the other party certain business, technical, or financial information relating to that party’s business, software, systems, products, or processes (hereinafter referred to as “Proprietary Information”). Proprietary Information of Provider also includes all non-public information regarding features, functionality, and performance of its services, design process, and Client Content. Accordingly, each party hereby agrees: (i). to take commercially reasonable precautions to protect such Proprietary Information of the other party, but in every event to employ at least the same or better methods for safeguarding the Proprietary Information of the other party that the first party employs for its own Proprietary Information; and (ii). not to use, disclose, divulge, or reveal, or permit to be disclosed, divulged, or revealed any Proprietary Information of the other party, except as otherwise permitted herein. Notwithstanding the foregoing, each party’s non-disclosure obligations hereunder shall not apply with respect to any Proprietary Information of the other party which is or has become generally available to the public, or which is required to be disclosed by the first party pursuant to applicable law.
3.2
Notwithstanding anything in the Agreement to the contrary, Provider shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and Client Content and its delivery, use of, and marketing to Client’s customers. The Provider shall be permitted (both during and after the Term) to do any of the following: (i). use such information and data to improve and enhance its business operations and for other development, diagnostic, and corrective purposes in connection with the Services and other Provider offerings; and (ii). disclose to third parties such data in connection with its business.
Section 4. PAYMENT OF THE FEE
4.1
Client shall pay to Provider the Fee as set forth in the initial Proposal and pursuant to the payment schedule included therein. In addition, Client shall pay to Provider when due the sum owed for any additional Services which may be requested by Client and performed by Provider from time to time after the date of the initial Proposal, which additional Services are made subject to these Terms and which expressly incorporate this Agreement by reference. Time is of the essence with regards to all of Client’s payment obligations hereunder. If a particular payment schedule or due date is not specified in the initial Proposal or subsequent written document memorializing additional Services to be performed, then the due date shall be considered the date of our agreement as to Services, and must be paid in advance prior to beginning such Services.
4.2
In the event that any payment by Client is returned or dishonored for lack of sufficient funds, Client shall promptly reimburse Provider upon demand the greater of: (i). any NSF fee charged to Provider as a result thereof; or (ii). Thirty-Five Dollars ($35.00). If Client chooses to make payment by debit card, credit card, or ACH bank withdrawal, Client shall ensure that a current card/bank account information is kept on file with Provider at all times. Provider is entitled to charge any of the debit card(s), credit card(s), or bank account(s) on file which have been given to Provider as payments become due, and without advance notice to Client. If more than one debit card, credit card, or bank account has been provided to Provider, and one of the foregoing is canceled or a charge thereon is declined, Provider may charge any other debit card, credit card, or bank account on file without advance notice to Client. The foregoing constitutes formal payment authorization, and no further or separate instrument shall be required.
4.3
Provider reserves the right, in its sole and absolute discretion, and at any time, to require that future payments be made by Client via wire transfer, ACH transfer, or certified check; provided that Client shall be solely responsible for payment of all fees (including, but not limited to merchant and transfer fees or certified check fees) related thereto. Provider shall in no way be liable for theft, hacking, misappropriation, or security breaches of Client’s payment, bank account, debit card, or credit card information.
4.4
Provider may, if set forth in the initial Proposal, allow the Initial Investment to be paid in installments by Client along with charges for other services. However, Client understands and acknowledges that the Initial Investment is a flat fee which is due to Provider regardless of the performance or non-performance of, payment or non-payment for, or termination of other Services (i.e., marketing and hosting) provided by Provider to Client. Furthermore, all portions of the Fee, Initial Investment, and other fees and costs paid hereunder are non-refundable unless otherwise expressly and separately agreed to in writing by Provider.
4.5
In addition to, and not to the exclusion of any other remedy Provider may have, in the event of nonpayment by Client of any amount owed when due, Provider may suspend hosting, marketing of, and access to Client Content (including, but not limited to Client’s website).
4.6
The Client acknowledges that, due to periodic increases in the costs incurred by Provider associated with the Services, Provider may, without advance written consent from or notice to Client, increase the Fee up to two (2) times per calendar year in an amount equal to the rate of increase in the Consumer Price Index for All Urban Consumers (CPI-U); U.S. City Average; All items, not seasonally adjusted, with a reference base determined by Provider.
Section 5. TERM & TERMINATION
5.1
The Agreement shall begin as of the date upon which the initial Proposal is signed by Client, and shall continue for the entire Term, unless terminated by either party as expressly permitted herein. Unless terminated prior to the end of the Term, the Agreement shall automatically renew on a month-to-month basis, subject to the termination notice provisions below. Notwithstanding anything to the contrary contained herein, and whether occurring during the initial Term or thereafter, The Provider may terminate this Agreement at any time upon written notice to the Client in the event of a breach or threatened breach hereof by Client, or in the event that the Client takes any action which the Provider believes to be unlawful, unethical, or improper.
5.2
After the initial Term, either party may terminate this Agreement for convenience at any time, and for any reason, upon providing sixty (60) days’ advance written notice to the other party. In addition, and in the event of the dissolution, bankruptcy, winding up, or death of the principal owner of Provider, Provider may terminate this Agreement immediately upon notice to Client. For purposes of clarity, Client’s continued performance of all its obligations stated herein shall be considered material to the Agreement, and the default therein shall entitle the Provider to terminate this Agreement upon notice to Client. Termination of this Agreement for any reason will not relieve Client of its payment obligations hereunder. At the time of termination, Provider will advise Client of any outstanding balance on the Initial Investment, and Client shall remit/authorize payment for the same within thirty (30) days therefrom. If Client fails to remit/authorize payment for any outstanding balance on the Initial Investment within the foregoing timeframe, then Provider shall automatically be authorized and entitled to, without further notice or demand, charge any debit card, credit card, or bank account on file with Provider.
5.3
Despite any termination of this Agreement during the Term, the entirety of the Initial Investment shall remain due and payable. After the initial Term, if the Client attempts to terminate this Agreement with less than sixty (60) days advance written notice, then Client shall be responsible for all costs, fees, and expenses incurred by Provider up to and including the date of termination, as calculated by Provider in its sole and absolute discretion. Payment by Client of the foregoing shall not relieve Client of any other payment obligations hereunder, nor shall demand for such payment be considered Provider’s exclusive remedy hereunder.
5.4
All sections of the Agreement which by their nature should survive termination will survive termination, including, without limitation, waivers of and limitations on Provider’s liability, releases by Client, indemnity agreements, venue and choice of law provisions, waivers and disclaimers of warranties and guarantees, and confidentiality provisions. The foregoing list is not exhaustive.
Section 6. WARRANTY AND DISCLAIMER
NOTWITHSTANDING ANY PROVISION OF THE AGREEMENT TO THE CONTRARY, PROVIDER DOES NOT WARRANT, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED AS TO: (I). PERFORMANCE OR EFFECTIVENESS OF CLIENT CONTENT OR SERVICES; (II). NON-INFRINGEMENT OR ABILITY OF CLIENT CONTENT TO BE TRADEMARKED OR COPYRIGHT PROTECTED; OR (III). CLIENT CUSTOMERS’ ABILITY TO ACCESS THE CLIENT CONTENT (INCLUDING DOWNTIME OF THE DELIVERY PLATFORMS THEREOF). THE SERVICES OF PROVIDER ARE PROVIDED “AS IS”, AND PROVIDER EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
Section 7. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, OR ANY AMENDMENT HERETO, CLIENT HEREBY RELEASES AND WAIVES ALL RIGHTS, CLAIMS, AND ACTIONS AGAINST ALL PROVIDER PARTIES AND PROVIDER’S VENDORS, OFFICERS, AFFILIATES, REPRESENTATIVES, ASSIGNS, SUBSIDIARIES, CONTRACTORS, AND EMPLOYEES FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF USE, REVENUE, OR PROFITS, OR FOR ANY MATTER BEYOND PROVIDER’S REASONABLE CONTROL, INCLUDING ACTS OF GOD, CIVIL STRIFE, HACKING, SECURITY BREACHES, OR OTHER SIMILAR MATTERS. THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO CLIENT IN ANY ACTION AUTHORIZED UNDER THIS AGREEMENT AGAINST PROVIDER SHALL BE LIMITED TO THE SUM OF ONE (1) MONTH’S MOST RECENT MONTHLY PAYMENT AMOUNT, REGARDLESS OF WHETHER PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF ADDITIONAL DAMAGES. CLIENT EXPRESSLY WAIVES THE RIGHT TO SEEK RECOVERY OF ANY OTHER MEASURE OF DAMAGES, OR FOR ANY OTHER REMEDY AT LAW OR IN EQUITY.
Section 8. MISCELLANEOUS
8.1
The Agreement is not assignable, transferable, or sublicensable by Client except with Provider’s prior written consent, which may be withheld in its sole and absolute discretion. Provider may assign the Agreement without the consent of or prior notice to Client.
8.2
Except as otherwise provided herein, no waiver or modification of the Agreement shall be valid unless made in the form of a writing signed by Provider. However, changes to the Services may be made from time to time as the Provider agrees to in writing (which writing may take the form of an e-mail or series of e-mails by Provider).
8.3
No agency, partnership, joint venture, or employment relationship is created between the parties or their respective personnel by virtue of the Agreement and Client does not have any authority of any kind to bind Provider in any respect whatsoever to any obligation not expressly stated in the Agreement. Provider is an independent contractor of Client. Provider has no control over or responsibility for the business decisions of Client, and therefore Provider shall not be held liable for any action or inaction of Client which is based upon Client’s interaction or relationship with Provider.
8.4
In the event that legal action is taken by either party against the other (or against Guarantor) to enforce the provisions of this Agreement, the prevailing party from such dispute shall be entitled to recover its attorney’s fees and court costs arising from such dispute, together with any fees or costs incurred in determining the amount of fees to be recovered. As used in this subsection the term “prevailing party” means the party prevailing on the substantial matters of law in such legal action.
8.5
All notices under the Agreement must be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next-day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested. Client’s contact information for purposes of legal notices is as set forth in the initial Proposal. Either party may update its contact information for purposes of notice by giving notice of the same to the other party as provided for herein.
8.6
The Agreement shall be governed by the laws of the State of Florida without regard to its conflict or choice of law principles. Venue for any legal action or other proceeding arising from or relating to the Agreement shall be proper, convenient, and exclusive in the county wherein Provider’s principal place of business is located, and both parties hereby expressly and irrevocably consent to the personal jurisdiction of the courts thereof over each party. The parties expressly agree that the Agreement shall be considered to have been made and entered into in such county.
8.7
CLIENT AND GUARANTOR HEREBY KNOWINGLY, INTENTIONALLY, EXPRESSLY, AND IRREVOCABLY WAIVE THEIR RIGHT TO A TRIAL BY JURY IN ANY LEGAL ACTION ARISING FROM OR RELATING IN ANY WAY TO THE AGREEMENT.
8.8
Client hereby expressly, absolutely, and irrevocably waives all defenses, whether arising in equity or at law, which may now or hereafter be available to Client, as to the validity and enforcement of this Agreement, including, but not limited to duress, estoppel, failure or lack of consideration, fraud, misrepresentation, lack of capacity, unconscionability, unclean hands, or undue influence. Client and Guarantor expressly agree that all provisions of this Agreement are necessary and reasonable.
8.9
Should any provision of this Agreement be held by a court of competent jurisdiction to be enforceable only if modified, or if any portion of this Agreement shall be held as unenforceable and thus stricken, such holding shall not affect the validity of the remainder of this Agreement, the balance of which shall continue to be binding upon the parties with any such modification to become a part hereof and treated as though originally set forth in this Agreement. The parties further agree that any such court is expressly authorized to modify any such unenforceable provision of this Agreement in lieu of severing such unenforceable provision from this Agreement in its entirety, whether by rewriting the offending provision, deleting any or all of the offending provision, adding additional language to this Agreement or by making such other modifications as it deems warranted to carry out the intent and agreement of the parties as embodied herein to the maximum extent permitted by applicable law. The parties expressly agree that this Agreement as so modified by the court shall be binding upon and enforceable against each of them. In any event, should one or more of the provisions of this Agreement be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions hereof, and if such provision or provisions are not modified as provided above, this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had not been set forth herein.
8.10
This Agreement shall be binding upon and inure to the benefit of each party’s respective heirs, successors, and assigns.
8.11
The language used in this Agreement will be deemed the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against either party.
8.12
The Guarantor shall be considered to have obligated themselves to Provider to the same and equal extent as Client for all obligations stated herein. Specifically, and without limitation, Guarantor expressly agrees to all provisions of sections 2, 3, 4, 6, 7, and 8 of this Agreement. However, Guarantor hereby expressly and unconditionally guarantees all obligations of Client as set forth in this Agreement. Furthermore, Guarantor’s liability to Provider is joint and several with Client; accordingly, in any legal action to enforce the provisions of this Agreement, it shall not be necessary for Provider to bring such action against Client first in order to proceed against Guarantor individually.
8.13
This Agreement is not exclusive. Accordingly, nothing contained in this Agreement shall be deemed or construed as a limitation on Provider’s right to work with and perform services similar or identical to the Services for other persons and entities, including competitors of Client.
8.14
Nothing in this Agreement shall be construed so as to reduce, restrict, limit, negate, or abridge Provider’s right to collaborate with, share information related to the Services and Client Content with, and subcontract all or part of the Services to its preferred vendors and contractors, which right is expressly affirmed and acknowledged by Client.
8.15
Notwithstanding anything to the contrary contained in this Agreement, except for an action by Provider against Client or Guarantor arising from or related to nonpayment of sums owed to Provider hereunder, neither party may commence litigation against the other party without providing written notice and demand to the other party setting forth the matters and amounts (if applicable) in dispute, and without first attempting in good faith to mediate the dispute before a certified mediator in the county wherein the Provider’s principal place of business is located. The foregoing shall constitute an express and absolute condition precedent to the institution or maintenance of any legal action by Client or Guarantor against any of the Provider Parties.
8.16
Client understands and acknowledges that Provider’s Services are limited to that which is expressly stated in the Proposal. Furthermore, Client understands and acknowledges that future changes to the Client Content (including the Client’s website) may be impossible, impracticable, or cost prohibitive depending on the technical capabilities of Provider, as well as the platform upon which the Client Content (including the Client’s website) has been built pursuant to the Proposal. Client is fully aware of such limitations, and expressly assumes all risk inherent in engaging in this Agreement with Provider.
Section 9. CONSENT TO BIND CLIENT
9.1
The Client hereby expressly authorize Provider, as well as any and all of its agents, employees, and contractors, to do all of the following during the Term of the Agreement: (1) create and open accounts for the provision of services to Client which are necessary or incidental to the Services rendered by Provider to Client; (2) cancel, modify, or suspend such accounts as is necessary based upon the Services and stated goals of the Client; and (3) on Client’s behalf, consent and bind Client to any terms and conditions, user license agreements, or similar documents related to such accounts and services.
9.2
The Client has fully read and understands the provisions of this Section, and agrees to waive and discharge against Provider, and that Provider shall not be held liable for, any and all claims, demands, causes of action, costs, fees, fines, expenses, losses, damages, or liabilities of any kind, whether at law or in equity, which arise from or relate in any way to this section or Provider’s actions (or inactions) taken based on, in furtherance of, or in reliance upon the provisions of this section.