Terms and Conditions
June 16, 2020
THIS AGREEMENT (the “Agreement”) is hereby entered into by and between you or the entity you represent (together hereinafter referred to as the “Customer”) and W. Hans Oliver(hereinafter referred to as “Vendor”) whose address is: Little Rock, Arkansas. The Customer and Vendor (the “Parties” and variations thereof) agree as follows:
Vendor is in the business of providing marketing products, and the Customer wishes to engage
Vendor to provide marketing products (the “Products”).
Acceptance of Product:
The Contract becomes binding upon the acceptance of Customer of the terms herein through the Vendor Onboarding Process and all terms contained herein are agreed to by Customer.
Ownership of Product:
All art, designs, mechanisms, intellectual property, products, images, recordings, sonic information, written words, and/or any other goods and/or process not specified here that was created by the Vendor shall remain property of the Vendor.
All prospective customer data produced by Vendor for Customer shall be, at all times, the sole property of the Customer
The Product Fee will be shown to Customer on every invoice. Payment Fees will be paid every 30 days.
Unless the Parties enter into the Addendum attached hereto or separately agree in writing, this Agreement will commence on the effective date of first payment on the part of Customer and will continue until delivery of notice of termination by the other party.
III. Customer REQUIREMENTS / ONBOARDING:
Customer must comply with the entirety of this agreement at all times.
Customer will, at all times, treat the Vendor team and/or their agents or with respect. Vendor staff will likewise always treat the Customer, their employees and/or agents with respect.
Customer will supply reasonable information required by the Vendor.
Upon first payment of the Vendor’s Product Fee, the Customer will schedule an onboarding call within 72 hours. Delay on behalf of Customer will not stop the billing cycle.
Customers will have on hand a credit card or other acceptable payment method that will be used to set up Advertising Spend.
Delays in supplying a credit card for Advertising Spend will not affect schedule of billing.
Customer agrees to pay the Vendor the Product Fee at the moment of engagement of Products.
Customer may, at any time and without causing undue burden, request that this Agreement include the product fee.
Customer agrees to pay the same product fee amount every 30 days after First Payment. The term is computed from the date of Initial Payment per the terms of this Agreement. To wit: Each subsequent payment is due 30 days after the prior payment.
V. ADVERTISING SPEND:
Customer agrees to pay an advertising spend in the range represented to Vendor prior to engagement.
Advertising spend shall only be used to pay for advertising space. The advertising spend is, at all times, paid directly to Vendor.
Customer agrees that the monthly advertising spend may fluctuate +/- 20% depending on Customer goals, targeting, market factors, and regional economics.
Frequency of advertising charges will vary based on spend and the reasons outlined in IV. (B) above during the applicable 30 day period.
Customer authorizes Vendor to charge the credit card provided by Customer for advertising spend costs.
Vendor may recommend vendors for additional Products if Vendor does not offer all components of scope of project internally.
VI. LATE FEES:
A monthly product charge of 1.5 percent computed monthly (or the greatest amount allowed by state law) is payable on all overdue balances.
Payments will be credited first to late payment charges and next to the unpaid balance.
Customer shall be responsible for all collection or legal fees necessitated by lateness or default in payment.
Either party may terminate this agreement for any reason.
Under no circumstances will the Vendor be obligated to provide any refunds of the amounts paid for the first 30 days of Products hereunder except per Section VII of this Agreement.
This Agreement and any work assignment in progress may be terminated by Vendor at any time without prior written notice to Customer in the event that:
Customer fails to meet the terms and/or conditions of this Agreement, and/or
Customer defaults on payment as set forth in Section III.
VIII. PRODUCT ACCESS SUSPENSION:
Customer may request temporary discontinuation of Products, however this will not affect payment and billing schedule, and Customer will continue to be responsible for payment as outlined above.
The Customer must Contact the Customer Success Specialist assigned to them to state the reasons and timeline for renewal of Products.
At the specified date for renewal of Products, Products will automatically come into force unless the customer contacts the Customer Success Specialist assigned to them.
If Customer is delinquent on payment for more than 7 days, the lead followup system will be terminated, the phone number assigned will be assigned to a new user, and any voicemails will be deleted.
Customers may cancel your account at any time. Cancellation will stop any future subscription payments from being charged, and your access to the Product will expire at the moment you cancel.
Customer may receive a full cancellation refund, minus unused-ad spend, and minus a $25.00 fee if said cancellation occurs in the first 48 hours after payment was due.
After the 48 hour period, but within the first 7 calendar days of the billing cycle, Customer may only request a refund for unused ad spend. After the 7 day period no refund is available.
The Parties agree that, unless otherwise agreed to by the Parties in writing, during the performance of any Products hereunder and for a period of two (2) years after termination of such Products, Customer shall not solicit, entice, encourage or induce (hereinafter collectively “solicit”) any person who at any time during the Initial Term or Term of this Agreement shall have been an employee, staff, consultant, temporary personnel or technical personnel of Vendor to cease being an employee, staff, consultant, temporary personnel, technical personnel or independent contractor of Vendor and to become employed by or associated with any person, firm or corporation other than Vendor, and Customer shall not approach any such employee, consultant or contractor for such purpose or authorize or knowingly approve the taking of such actions by any other person, firm or corporation or assist any person, firm or corporation in taking such action. In the event that Customer breaches the covenants contained in this Section, Customer agrees to pay to Vendor an amount equal to two times the annual salary (or annualized contract payments) of each employee or contractor as liquidated damages and agrees that such amount is a reasonable estimate of the cost and expense to Vendor to retrain new personnel.
Customer agrees that any and all proprietary information obtained from Vendor, including the products and Products used to carry out the terms of this Agreement, the methods in which products and Products are implemented, information about inventions, designs, methods, systems, improvements, and any other proprietary and confidential matters gained as a result of this Agreement will be considered strictly confidential and shall not be used by or directly or indirectly disclosed by Customer to any person or persons without Vendor’ prior written permission.
Except as set forth in the last sentence hereof, Vendor agrees that any and all proprietary information which may be obtained by Vendor from Customer, its employees or consultants, including information about inventions, designs, methods, systems, improvements, and other private matters gained while on the premises will be regarded as strictly confidential and shall not be directly or indirectly used by or disclosed by Vendor to any person or persons (other than Vendor employees or vendors with a need to know solely for the purposes of this Agreement) without Customer’s prior written permission.
Notwithstanding the foregoing, Vendor shall be entitled to use Customer’s name and results from the Products in any and all marketing materials utilized by Vendor to market its Products.
XII. LIABILITY LIMITATIONS:
Except for bodily injury, Vendor’ liability, including but not limited to Customer’s claims of contribution and indemnification related to third party claims arising out of Products rendered by Vendor, and for any losses, injury or damages to persons or properties or work performed arising out of or in connection with this Agreement and for any other claim, whether arising under contract, tort or other theory, shall be limited to the payments received by Vendor from Customer hereunder during the three month period prior to the date the cause of action arose. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, VENDOR SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, LOST PROFITS, LOST REVENUES, LOST OR CORRUPTED DATA, LOST USE, OR PUNITIVE DAMAGES.
Customer’s exclusive remedy for any valid claim arising out of or relating to this Agreement will be for Vendor, upon receipt of written notice and at Vendor’ sole option, either
to use commercially reasonable efforts to cure, at its expense, the matter that gave rise to the claim for which Vendor is at fault, or
return to Customer the fees paid by Customer to Vendor for the particular Product provided that gives rise to the claim, subject to the limitation contained in this Section. Customer agrees that it will not allege that this remedy fails of its essential purpose. Vendor will not be held responsible for downtime, loss of data or any other loss incurred by the Customer due to any cause. In no event, shall either party’s liability for breach or alleged breach of this Agreement exceed the liability limitations set forth herein.
XIII. WARRANTY MATTERS:
Vendor warrants that its Products shall be performed consistent with applicable industry standards. No other representation, express or implied, and no warranty or guarantee are included or intended in this Agreement, or in any report, opinion, deliverable, work product, document or otherwise. Furthermore, no guarantee is made as to the efficacy or value of any Products performed. THIS SECTION SETS FORTH THE ONLY WARRANTIES PROVIDED BY Vendor CONCERNING THE Products AND RELATED WORK PRODUCT. THIS WARRANTY IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR OTHERWISE.
Each Party shall indemnify, save, defend, and hold the other Party, and their respective officers, directors, shareholders, managers, members, employees and agents, harmless from and against all claims, liabilities, demands, causes of action, losses, damages, taxes, penalties, liens, costs, and expenses, including but not limited to interest, penalties, court costs, and attorneys’ fees, incurred by the other Party (collectively, “Liabilities”) in connection with any (a) material breach of any of the terms of this Agreement by the indemnifying party, or (b) act, omission, or misrepresentation of the indemnifying party, unless such Liabilities are caused by the gross negligence or intentional torts of the other Party.
This Agreement, along with any Addendum if entered into, shall be governed by the laws of Arkansas, without regard to the conflict of laws provisions thereof. It constitutes the entire Agreement between Customer and Vendor for the Products.
A good faith (realistic) effort must be made by both parties to rectify disputes regarding Product prior to pursuit of other avenues of resolution including but not limited to litigation. Failure to exercise this good faith effort and document the same by a party shall result in that party’s losing the right to have attorney’s fees and costs awarded to them in the event that they were successful in such dispute. Following use of such efforts, any controversy, dispute or claim arising out of or related to this Agreement or breach of this Agreement shall be settled solely by confidential binding arbitration by a single arbitrator in accordance with the commercial arbitration rules of JAMS in effect at the time the arbitration commences. The award of the arbitrator shall be final and binding. Except as otherwise provided in the prior paragraph, the arbitrator shall also award to the prevailing party in the arbitration (as determined by the arbitrator) reasonable legal fees, expert witness fees, and related costs of the prevailing party.
1. The arbitration shall be held in Little Rock, Arkansas
No action, regardless of form, arising out of this Agreement, may be brought by either party more than one (1) year from the last date of payment.
This Agreement may be executed simultaneously in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement.
All of the terms and provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective transferees, successors, assigns and heirs, unless otherwise specifically provided herein.
The warranties, representations and covenants of each of the parties hereto shall be true and correct as of the date of this Agreement and shall survive the date of the within Agreement.
If any party brings any action or proceeding to enforce, protect or establish any right or remedy under this Agreement or with respect to the transactions contemplated hereby, the prevailing party shall be entitled to recover actual attorney’s fees and costs.
If any provision of this Agreement is deemed unenforceable or invalid under any applicable law or is so determined by applicable court decision, such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or court decision.