General Terms & Conditions
PLEASE READ THESE GENERAL TERMS AND CONDITIONS (these “Terms & Conditions”) CAREFULLY BEFORE ENGAGING 10ZING DIGITAL’S SERVICES.
CLIENT (DEFINED BELOW) AGREES THAT BY PLACING AN ORDER WITH 10ZING DIGITAL THROUGH A STATEMENT OF WORK (DEFINED BELOW) CLIENT SHALL FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF SUCH STATEMENT(S) OF WORK AND THESE TERMS & CONDITIONS. IF AN INDIVIDUAL IS PLACING AN ORDER ON BEHALF OF AN ORGANIZATION, SUCH INDIVIDUAL REPRESENTS THAT HE/SHE HAS THE AUTHORITY TO BIND SUCH ORGANIZATION TO THE TERMS AND CONDITIONS OF THE STATEMENT OF WORK AND THESE TERMS & CONDITIONS.
These Terms & Conditions create a contract between 10ZING Digital LLC, a Utah limited liability company (hereinafter “10ZING Digital”) and the “Client” indicated in one (1) or more Statements of Work (hereinafter “Client”) (10ZING Digital and Client may be referred to individually as a “Party” or collectively as the “Parties”). The provision of digital marketing services by 10ZING Digital (as more fully described in the Statement of Work signed by the Parties) (hereinafter defined and referred to as the “Services”) is predicated upon Client’s acceptance of these Terms & Conditions. These Terms & Conditions apply to all Services rendered by 10ZING Digital. If Client chooses to accept these Terms & Conditions, it must do so as written, without modification.
BY SIGNING THE STATEMENT OF WORK, CLIENT SHALL BE DEEMED TO HAVE UNCONDITIONALLY ACCEPTED THESE TERMS & CONDITIONS.
- Services. 10ZING Digital shall provide the Services, as described in a Statement of Work. Specifications related to the Services may also be subsequently developed or amended by written agreement of the Parties. The Statement of Work and any specifications agreed to in writing by the Parties shall collectively constitute the complete specifications for the Services.
- Compensation. As compensation for the Services, Client shall pay 10ZING Digital as indicated in the Statement of Work. Within thirty (30) days after submission of invoices therefor to Client, Client shall reimburse 10ZING Digital for all expenses that it incurs in performing the Services, unless such invoices set forth different payment terms. Client shall pay a late payment charge of 1.5 percent (1.5%) per month or the maximum permitted by applicable law, whichever is less, on all amounts remaining unpaid for a period of fifteen (15) days after such amounts become due and payable.
- Warranties & Representations.
- 10ZING Digital. 10ZING Digital warrants and represents that the Services will be provided in a professional manner consistent with industry standards and meet the specifications set forth in the relevant Statement of Work. Client must notify 10ZING Digital of any warranty deficiencies within ninety (90) days from performance of the deficient Services. FOR ANY BREACH OF THE WARRANTY, CLIENT’S EXCLUSIVE REMEDY AND 10ZING DIGITAL’S ENTIRE LIABILITY SHALL BE THE RE-PERFORMANCE OF THE DEFICIENT SERVICES. TO THE EXTENT NOT PROHIBITED BY LAW, THIS WARRANTY IS EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- Client. Client warrants and represents that:
- Any intellectual property provided to 10ZING Digital for use related to the Services shall be original, and that no portion of such violates any third-party patent, copyright, trade secret, or other intellectual property or other rights of Client or any third party.
- Client has the authority to enter into these Terms & Conditions and to perform all of the obligations contained herein and in each Statement of Work.
- Grant by Client. Client hereby grants to 10ZING Digital a right and limited license to use any intellectual property provided to 10ZING Digital hereunder, including, but not limited to, trademarks, copyrighted works, and any and all of their attendant intellectual property rights, solely to perform the Services or satisfy other obligations under these Terms & Conditions.
- Duties of Client.
- Client shall approve or reject all proofs and/or proposals within five (5) days after Client’s receipt thereof. Client acknowledges that its failure to timely approve or reject proofs and/or proposals may prevent 10ZING Digital from being able to perform Services related thereto, and 10ZING Digital’s failure to provide any Services as a result of Client’s failure to cooperate with 10ZING Digital shall not be considered a breach of these Terms & Conditions by 10ZING Digital.
- Client shall defend, indemnify, and hold 10ZING Digital and its employees and agents harmless from and against any claim, loss, cost, damage, and expense (including, without limitation, reasonable attorney fees and costs) arising out of or resulting from (i) any negligent, reckless, or intentionally wrongful act or omission of Client or Client’s agent or employee, or (ii) any breach or alleged breach by Client or Client’s agent or employee of any covenant, representation, or warranty contained in these Terms & Conditions.
- Client shall not, either directly or indirectly through an intermediary, solicit, induce, recruit, or encourage any client, vendor, agent, employee, subcontractor, or other associate of 10ZING Digital to modify its relationship with 10ZING Digital. Such restrictions shall apply whether Client is acting on its own behalf, or for the benefit of any other person or entity. If Client breaches this restrictive covenant then upon each such breach Client shall pay to 10ZING Digital upon demand the annualized value of the relevant relationship plus 25%. For example, if the relationship is that of an employee of 10ZING Digital and the employee renders $100,000 in Services during a calendar year then Client would be obligated to pay to 10ZING Digital $125,000.00 for its breach of this covenant.
- Client agrees that during the term of these Terms & Conditions and after their termination, Client shall not, and shall ensure that its employees and agents do not, whether acting alone or for a third party, disparage the image or reputation of 10ZING Digital or its officers, agents, and/or affiliates. The provisions of this subsection 5(d) shall survive the termination of these Terms & Conditions.
- The Services and all information and documentation relating thereto shall be held in confidence by Client and its affiliates, agents or employees, and may not be used by Client, its agents, affiliates or employees, other than for the furtherance of the purposes of these Terms & Conditions, nor shall such information be disclosed to third parties (except to the extent provided herein) without 10ZING Digital’s prior written consent.
- A Statement of Work may not be disclosed or made available by either Party hereto to third parties without the prior written consent of the other Party; but nothing contained herein shall prevent either Party from complying with applicable law, regulation or court order.
- Termination & Cancellation.
- These Terms & Conditions may be terminated/cancelled upon the occurrence of one (1) or more of the following events, which event shall also result in the termination of all active Statements of Work:
- By either Party, if the other Party seeks protection under the bankruptcy laws (other than as a creditor) or any assignment is made for the benefit of creditors or a trustee is appointed for all or any portion of such Party’s assets; or
- By either Party, if the other Party is in default of any material provision of these Terms & Conditions and such default is not cured within thirty (30) days after receipt of written notice thereof by such other Party.
- If these Terms & Conditions are terminated/cancelled by either Party pursuant to Section 7(a), all amounts payable to 10ZING Digital pursuant to these Terms & Conditions and the Statement(s) of Work shall be immediately due and payable.
- Indemnities. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES OR REPRESENTATIONS AGAINST INFRINGEMENT, EXPRESS OR IMPLIED, AND THERE ARE NO INDEMNIFICATIONS AGAINST INFRINGEMENT OF ANY PATENTS, COPYRIGHTS, TRADE SECRETS, OR OTHER PROPRIETARY RIGHTS.
- Term. Unless otherwise terminated/cancelled as provided herein, the term of these Terms & Conditions shall commence on the date set forth in the first Statement of Work and shall continue for a period of one (1) year or the date on which the Services associated with all Statements of Work have been fully rendered, whichever is later.
- Assignment. These Terms & Conditions and all rights, licenses, or obligations hereunder may not be assigned, transferred, or subcontracted by either Party, except to a successor in interest of such Party, without the prior written consent of the other Party.
- Notices. All notices required to be given pursuant to these Terms & Conditions shall be deemed given when actually delivered, if delivered in person, when sent, if delivered by email to the email address indicated in the Statement of Work, or three (3) days after being deposited in the United States mail, postage prepaid and addressed to the receiving Party at the address indicated in the Statement of Work.
- Entire agreement. These Terms & Conditions and the Statement(s) of Work constitute the entire agreement between the parties relating to the subject matter hereof and supersedes all prior agreements, proposals, representations, and commitments. These Terms & Conditions may be amended only by an instrument executed by both Parties.
- Relationship of the Parties. The Parties are and shall remain independent contractors. Nothing herein shall be deemed to establish a partnership, joint venture, or agency relationship between the Parties. Neither Party shall have the right to obligate or bind the other Party in any manner to any third party.
- Attorney Fees. In any action at law or in equity to enforce or interpret any provision of these Terms & Conditions, the prevailing party shall be entitled to collect from the non-prevailing party, in addition to any damages and injunctive relief, whether at law or in equity, all reasonable costs, fees, and expenses, including, without limitation, attorney fees, costs, and expenses, expert witness fees, deposition transcript fees, postage, long-distance telephone charges, and travel costs.
- Governing law; Jurisdiction & Venue. These Terms & Conditions shall be interpreted in their entirety in accordance with the laws of the State of Utah, and Client agrees that the state courts of Utah shall have exclusive jurisdiction in any controversy relating to or arising out of these Terms & Conditions.
- Equitable Relief. The parties acknowledge and agree that there may be no adequate remedy at law for the failure of the other party to comply with any of the material provisions of these Terms & Conditions, and the parties agree that, in the event of any such failure, the non-breaching party shall be entitled to equitable relief by way of temporary restraining order, temporary injunction and permanent injunction and such other and further relief as any court of competent jurisdiction may deem proper.
- Limitation of Liability. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST REVENUE OR INDIRECT, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES.
- Force Majeure. Neither Party shall be liable to the other by reason of any failure of performance hereunder (except obligations to pay) if such failure arises out of causes beyond such Party’s reasonable control, despite the reasonable efforts, and without the fault or negligence of such Party. A Party experiencing such an event shall give as prompt notice as possible under the circumstances.
- Negotiation. These Terms & Conditions are the result of negotiation between the Parties and, accordingly, shall not be construed more strongly for or against either party regardless of which Party was more responsible for the preparation of these Terms & Conditions or any portion thereof.
- Surviving provisions. In the event of any expiration, termination or cancellation of these Terms & Conditions, provisions hereof which are intended to continue and survive shall continue and survive.