TERMS AND CONDITIONS
Last updated June 28, 2023
AGREEMENT TO OUR LEGAL TERMS
We are Henry Street Creative, LLC. (“Company,” “we,” “us,” “our“), a company registered in New York, United States at 360 W 55th Street, 2T, New York, NY 10019.
We operate the website tylergmount.com (the “Site“), as well as any other related products and services that refer or link to these legal terms (the “Legal Terms“) (collectively, the “Services“).
You can contact us by email at firstname.lastname@example.org or by mail to 360 W 55th Street, 2T, New York, NY 10019, United States.
These Legal Terms constitute a legally binding agreement made between you, whether personally or on behalf of an entity (“you“), and Henry Street Creative, LLC. , concerning your access to and use of the Services. You agree that by accessing the Services, you have read, understood, and agreed to be bound by all of these Legal Terms. IF YOU DO NOT AGREE WITH ALL OF THESE LEGAL TERMS, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SERVICES AND YOU MUST DISCONTINUE USE IMMEDIATELY.
Supplemental terms and conditions or documents that may be posted on the Services from time to time are hereby expressly incorporated herein by reference. We reserve the right, in our sole discretion, to make changes or modifications to these Legal Terms at any time and for any reason. We will alert you about any changes by updating the “Last updated” date of these Legal Terms, and you waive any right to receive specific notice of each such change. It is your responsibility to periodically review these Legal Terms to stay informed of updates. You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes in any revised Legal Terms by your continued use of the Services after the date such revised Legal Terms are posted.
The Services are intended for users who are at least 18 years old. Persons under the age of 18 are not permitted to use or register for the Services.
We recommend that you print a copy of these Legal Terms for your records.
TABLE OF CONTENTS
1. OUR SERVICES
2. INTELLECTUAL PROPERTY RIGHTS
3. USER REPRESENTATIONS
4. USER REGISTRATION
6. PURCHASES AND PAYMENT
7. REFUNDS POLICY
8. PROHIBITED ACTIVITIES
9. USER GENERATED CONTRIBUTIONS
10. CONTRIBUTION LICENSE
11. SERVICES MANAGEMENT
13. TERM AND TERMINATION
14. MODIFICATIONS AND INTERRUPTIONS
15. GOVERNING LAW
16. DISPUTE RESOLUTION
19. LIMITATIONS OF LIABILITY
21. USER DATA
22. ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES
23. CALIFORNIA USERS AND RESIDENTS
25. SCOPE OF SERVICES, FEES AND PAYMENTS
26. NON-DISCLOSURE AND TRADE SECRETS
27. WORK PRODUCT
28. TERM AND TERMINATION
30. INDEMNITIES AND LIMITATIONS OF LIABILITIES
31. GENERAL PROVISIONS
32. EXHIBIT A – STATEMENT OF WORK
33. CONTACT US
1. OUR SERVICES
The information provided when using the Services is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Services from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
The Services are not tailored to comply with industry-specific regulations (Health Insurance Portability and Accountability Act (HIPAA), Federal Information Security Management Act (FISMA), etc.), so if your interactions would be subjected to such laws, you may not use the Services. You may not use the Services in a way that would violate the Gramm-Leach-Bliley Act (GLBA).
2. INTELLECTUAL PROPERTY RIGHTS
Our intellectual property
We are the owner or the licensee of all intellectual property rights in our Services, including all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics in the Services (collectively, the “Content”), as well as the trademarks, service marks, and logos contained therein (the “Marks”).
Our Content and Marks are protected by copyright and trademark laws (and various other intellectual property rights and unfair competition laws) and treaties in the United States and around the world.
The Content and Marks are provided in or through the Services “AS IS” for your personal, non-commercial use or internal business purpose only.
Your use of our Services
Subject to your compliance with these Legal Terms, including the “PROHIBITED ACTIVITIES” section below, we grant you a non-exclusive, non-transferable, revocable license to:
- access the Services; and
- download or print a copy of any portion of the Content to which you have properly gained access.
solely for your personal, non-commercial use or internal business purpose.
Except as set out in this section or elsewhere in our Legal Terms, no part of the Services and no Content or Marks may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without our express prior written permission.
If you wish to make any use of the Services, Content, or Marks other than as set out in this section or elsewhere in our Legal Terms, please address your request to: email@example.com. If we ever grant you the permission to post, reproduce, or publicly display any part of our Services or Content, you must identify us as the owners or licensors of the Services, Content, or Marks and ensure that any copyright or proprietary notice appears or is visible on posting, reproducing, or displaying our Content.
We reserve all rights not expressly granted to you in and to the Services, Content, and Marks.
Any breach of these Intellectual Property Rights will constitute a material breach of our Legal Terms and your right to use our Services will terminate immediately.
Please review this section and the “PROHIBITED ACTIVITIES” section carefully prior to using our Services to understand the (a) rights you give us and (b) obligations you have when you post or upload any content through the Services.
Submissions: By directly sending us any question, comment, suggestion, idea, feedback, or other information about the Services (“Submissions”), you agree to assign to us all intellectual property rights in such Submission. You agree that we shall own this Submission and be entitled to its unrestricted use and dissemination for any lawful purpose, commercial or otherwise, without acknowledgment or compensation to you.
You are responsible for what you post or upload: By sending us Submissions through any part of the Services you:
- confirm that you have read and agree with our “PROHIBITED ACTIVITIES” and will not post, send, publish, upload, or transmit through the Services any Submission that is illegal, harassing, hateful, harmful, defamatory, obscene, bullying, abusive, discriminatory, threatening to any person or group, sexually explicit, false, inaccurate, deceitful, or misleading;
- to the extent permissible by applicable law, waive any and all moral rights to any such Submission;
- warrant that any such Submission are original to you or that you have the necessary rights and licenses to submit such Submissions and that you have full authority to grant us the above-mentioned rights in relation to your Submissions; and
- warrant and represent that your Submissions do not constitute confidential information.
You are solely responsible for your Submissions and you expressly agree to reimburse us for any and all losses that we may suffer because of your breach of (a) this section, (b) any third party’s intellectual property rights, or (c) applicable law.
3. USER REPRESENTATIONS
By using the Services, you represent and warrant that: (1) all registration information you submit will be true, accurate, current, and complete; (2) you will maintain the accuracy of such information and promptly update such registration information as necessary; (3) you have the legal capacity and you agree to comply with these Legal Terms; (4) you are not a minor in the jurisdiction in which you reside; (5) you will not access the Services through automated or non-human means, whether through a bot, script or otherwise; (6) you will not use the Services for any illegal or unauthorized purpose; and (7) your use of the Services will not violate any applicable law or regulation.
If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof).
4. USER REGISTRATION
You may be required to register to use the Services. You agree to keep your password confidential and will be responsible for all use of your account and password. We reserve the right to remove, reclaim, or change a username you select if we determine, in our sole discretion, that such username is inappropriate, obscene, or otherwise objectionable.
All products are subject to availability. We reserve the right to discontinue any products at any time for any reason. Prices for all products are subject to change.
6. PURCHASES AND PAYMENT
We accept the following forms of payment:
– American Express
You agree to provide current, complete, and accurate purchase and account information for all purchases made via the Services. You further agree to promptly update account and payment information, including email address, payment method, and payment card expiration date, so that we can complete your transactions and contact you as needed. Sales tax will be added to the price of purchases as deemed required by us. We may change prices at any time. All payments shall be in US dollars.
You agree to pay all charges at the prices then in effect for your purchases and any applicable shipping fees, and you authorize us to charge your chosen payment provider for any such amounts upon placing your order. If your order is subject to recurring charges, then you consent to our charging your payment method on a recurring basis without requiring your prior approval for each recurring charge, until such time as you cancel the applicable order. We reserve the right to correct any errors or mistakes in pricing, even if we have already requested or received payment.
We reserve the right to refuse any order placed through the Services. We may, in our sole discretion, limit or cancel quantities purchased per person, per household, or per order. These restrictions may include orders placed by or under the same customer account, the same payment method, and/or orders that use the same billing or shipping address. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers, or distributors.
7. REFUNDS POLICY
All sales are final and no refund will be issued.
8. PROHIBITED ACTIVITIES
You may not access or use the Services for any purpose other than that for which we make the Services available. The Services may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by us.
As a user of the Services, you agree not to:
- Systematically retrieve data or other content from the Services to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us.
- Trick, defraud, or mislead us and other users, especially in any attempt to learn sensitive account information such as user passwords.
- Circumvent, disable, or otherwise interfere with security-related features of the Services, including features that prevent or restrict the use or copying of any Content or enforce limitations on the use of the Services and/or the Content contained therein.
- Disparage, tarnish, or otherwise harm, in our opinion, us and/or the Services.
- Use any information obtained from the Services in order to harass, abuse, or harm another person.
- Make improper use of our support services or submit false reports of abuse or misconduct.
- Use the Services in a manner inconsistent with any applicable laws or regulations.
- Engage in unauthorized framing of or linking to the Services.
- Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the Services or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Services.
- Engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools.
- Delete the copyright or other proprietary rights notice from any Content.
- Attempt to impersonate another user or person or use the username of another user.
- Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms” or “pcms”).
- Interfere with, disrupt, or create an undue burden on the Services or the networks or services connected to the Services.
- Harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing any portion of the Services to you.
- Attempt to bypass any measures of the Services designed to prevent or restrict access to the Services, or any portion of the Services.
- Except as permitted by applicable law, decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Services.
- Except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Services, or use or launch any unauthorized script or other software.
- Use a buying agent or purchasing agent to make purchases on the Services.
- Make any unauthorized use of the Services, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretenses.
- Use the Services as part of any effort to compete with us or otherwise use the Services and/or the Content for any revenue-generating endeavor or commercial enterprise.
- Use the Services to advertise or offer to sell goods and services.
- Sell or otherwise transfer your profile.
9. USER GENERATED CONTRIBUTIONS
- The creation, distribution, transmission, public display, or performance, and the accessing, downloading, or copying of your Contributions do not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret, or moral rights of any third party.
- You are the creator and owner of or have the necessary licenses, rights, consents, releases, and permissions to use and to authorize us, the Services, and other users of the Services to use your Contributions in any manner contemplated by the Services and these Legal Terms.
- You have the written consent, release, and/or permission of each and every identifiable individual person in your Contributions to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of your Contributions in any manner contemplated by the Services and these Legal Terms.
- Your Contributions are not false, inaccurate, or misleading.
- Your Contributions are not unsolicited or unauthorized advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings, or other forms of solicitation.
- Your Contributions are not obscene, lewd, lascivious, filthy, violent, harassing, libelous, slanderous, or otherwise objectionable (as determined by us).
- Your Contributions do not ridicule, mock, disparage, intimidate, or abuse anyone.
- Your Contributions are not used to harass or threaten (in the legal sense of those terms) any other person and to promote violence against a specific person or class of people.
- Your Contributions do not violate any applicable law, regulation, or rule.
- Your Contributions do not violate the privacy or publicity rights of any third party.
- Your Contributions do not violate any applicable law concerning child pornography, or otherwise intended to protect the health or well-being of minors.
- Your Contributions do not include any offensive comments that are connected to race, national origin, gender, sexual preference, or physical handicap.
- Your Contributions do not otherwise violate, or link to material that violates, any provision of these Legal Terms, or any applicable law or regulation.
Any use of the Services in violation of the foregoing violates these Legal Terms and may result in, among other things, termination or suspension of your rights to use the Services.
10. CONTRIBUTION LICENSE
By submitting suggestions or other feedback regarding the Services, you agree that we can use and share such feedback for any purpose without compensation to you.
We do not assert any ownership over your Contributions. You retain full ownership of all of your Contributions and any intellectual property rights or other proprietary rights associated with your Contributions. We are not liable for any statements or representations in your Contributions provided by you in any area on the Services. You are solely responsible for your Contributions to the Services and you expressly agree to exonerate us from any and all responsibility and to refrain from any legal action against us regarding your Contributions.
11. SERVICES MANAGEMENT
We reserve the right, but not the obligation, to: (1) monitor the Services for violations of these Legal Terms; (2) take appropriate legal action against anyone who, in our sole discretion, violates the law or these Legal Terms, including without limitation, reporting such user to law enforcement authorities; (3) in our sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) any of your Contributions or any portion thereof; (4) in our sole discretion and without limitation, notice, or liability, to remove from the Services or otherwise disable all files and content that are excessive in size or are in any way burdensome to our systems; and (5) otherwise manage the Services in a manner designed to protect our rights and property and to facilitate the proper functioning of the Services.
13. TERM AND TERMINATION
These Legal Terms shall remain in full force and effect while you use the Services. WITHOUT LIMITING ANY OTHER PROVISION OF THESE LEGAL TERMS, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SERVICES (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON OR FOR NO REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE LEGAL TERMS OR OF ANY APPLICABLE LAW OR REGULATION. WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE SERVICES OR DELETE YOUR ACCOUNT AND ANY CONTENT OR INFORMATION THAT YOU POSTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION.
If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.
14. MODIFICATIONS AND INTERRUPTIONS
We reserve the right to change, modify, or remove the contents of the Services at any time or for any reason at our sole discretion without notice. However, we have no obligation to update any information on our Services. We also reserve the right to modify or discontinue all or part of the Services without notice at any time. We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Services.
We cannot guarantee the Services will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the Services, resulting in interruptions, delays, or errors. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Services at any time or for any reason without notice to you. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Services during any downtime or discontinuance of the Services. Nothing in these Legal Terms will be construed to obligate us to maintain and support the Services or to supply any corrections, updates, or releases in connection therewith.
15. GOVERNING LAW
These Legal Terms and your use of the Services are governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be entirely performed within the State of New York, without regard to its conflict of law principles.
16. DISPUTE RESOLUTION
If the Parties are unable to resolve a Dispute through informal negotiations, the Dispute (except those Disputes expressly excluded below) will be finally and exclusively resolved by binding arbitration. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the American Arbitration Association (AAA) website. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Consumer Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by either Party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in New York, New York. Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
If for any reason, a Dispute proceeds in court rather than arbitration, the Dispute shall be commenced or prosecuted in the state and federal courts located in New York, New York, and the Parties hereby consent to, and waive all defenses of lack of personal jurisdiction, and forum non conveniens with respect to venue and jurisdiction in such state and federal courts. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) are excluded from these Legal Terms.
In no event shall any Dispute brought by either Party related in any way to the Services be commenced more than one (1) years after the cause of action arose. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
The Parties agree that any arbitration shall be limited to the Dispute between the Parties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
Exceptions to Arbitration
The Parties agree that the following Disputes are not subject to the above provisions concerning binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a Party; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (c) any claim for injunctive relief. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
There may be information on the Services that contains typographical errors, inaccuracies, or omissions, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Services at any time, without prior notice.
THE SERVICES ARE PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. YOU AGREE THAT YOUR USE OF THE SERVICES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SERVICES’ CONTENT OR THE CONTENT OF ANY WEBSITES OR MOBILE APPLICATIONS LINKED TO THE SERVICES AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY, AND/OR (6) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES, ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
19. LIMITATIONS OF LIABILITY
IN NO EVENT WILL WE OR OUR DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM YOUR USE OF THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE LESSER OF THE AMOUNT PAID, IF ANY, BY YOU TO US DURING THE THREE (3) MONTH PERIOD PRIOR TO ANY CAUSE OF ACTION ARISING OR $10,000.00 USD. CERTAIN US STATE LAWS AND INTERNATIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
You agree to defend, indemnify, and hold us harmless, including our subsidiaries, affiliates, and all of our respective officers, agents, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of: (1) use of the Services; (2) breach of these Legal Terms; (3) any breach of your representations and warranties set forth in these Legal Terms; (4) your violation of the rights of a third party, including but not limited to intellectual property rights; or (5) any overt harmful act toward any other user of the Services with whom you connected via the Services. Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defense of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
21. USER DATA
We will maintain certain data that you transmit to the Services for the purpose of managing the performance of the Services, as well as data relating to your use of the Services. Although we perform regular routine backups of data, you are solely responsible for all data that you transmit or that relates to any activity you have undertaken using the Services. You agree that we shall have no liability to you for any loss or corruption of any such data, and you hereby waive any right of action against us arising from any such loss or corruption of such data.
22. ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES
Visiting the Services, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Services, satisfy any legal requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SERVICES. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
23. CALIFORNIA USERS AND RESIDENTS
If any complaint with us is not satisfactorily resolved, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone at (800) 952-5210 or (916) 445-1254.
These Legal Terms and any policies or operating rules posted by us on the Services or in respect to the Services constitute the entire agreement and understanding between you and us. Our failure to exercise or enforce any right or provision of these Legal Terms shall not operate as a waiver of such right or provision. These Legal Terms operate to the fullest extent permissible by law. We may assign any or all of our rights and obligations to others at any time. We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control. If any provision or part of a provision of these Legal Terms is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Legal Terms and does not affect the validity and enforceability of any remaining provisions. There is no joint venture, partnership, employment or agency relationship created between you and us as a result of these Legal Terms or use of the Services. You agree that these Legal Terms will not be construed against us by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Legal Terms and the lack of signing by the parties hereto to execute these Legal Terms.
25. SCOPE OF SERVICES, FEES AND PAYMENTS
Section 1.01 Services. (a) Services Generally. HSC will perform the services set forth in each SOW (each as may be amended by Change Orders (as defined below) from time to time, “SOW”) annexed hereto as Exhibit A (the “Services”), which is incorporated by reference herein. During the term hereof, HSC will perform the Services in a timely and professional manner consistent with industry standards. This Agreement constitutes a basic agreement, the terms and conditions of which shall apply to each SOW entered into between the parties for the furnishing of such Services and related deliverables. If each of the Parties has agreed to an SOW in writing, the terms and conditions of this Agreement will apply to each such work assignments as well as to all future work assignments from Client (subject to additional new SOWs or any Change Order) until the Agreement is terminated. Each of the Parties acknowledges that HSC is performing the Services on a non-exclusive basis and has other clients for which services (that may or may not be substantially similar to the Services) are being performed, subject to HSC’s obligations set forth in this Agreement. Any material changes in the details of the Services or the assumptions upon which this Agreement is based (including, but not limited to, changes in an agreed starting date for the Services or a suspension of the Services by Client) may require changes in the budget and/or timelines, and will require a written amendment to the Agreement or through a Change Order. (b) Subcontractors. HSC may in its sole discretion employ one or more subcontractors for the performance of Services. Any assignment or employment of subcontractors by HSC will not relieve HSC of any of its obligations under this Agreement. HSC will have the sole responsibility for the assignment of personnel to perform any Services. (c) Independent Contractors. Each of the Parties acknowledges that neither HSC (nor any of its employees, sub-contractors and agents, if any) is not and must not be deemed employees of Client. As an independent contractor, HSC is solely responsible for payment of all taxes relating to its work hereunder, and any of its employees, including, but not limited to, all federal, state and local income taxes, employment related taxes, workers’ compensation insurance, social security taxes and withholding taxes relating to HSC and anyone working for HSC. Neither HSC (nor any of HSC’s employees, subcontractors and agents, if any) will be entitled to any benefits paid or made available by Client to its employees. Each of the Parties are not partners or joint venturers; neither Party is the agent, representative or employee of the other Party. Nothing in this Agreement will be construed to create any relationship between them other than an independent contractor relationship. Neither Party will have any responsibility or liability for the actions of the other Party except as specifically provided herein. Neither Party will have any right or authority to bind or obligate the other Party in any manner or make any representation or warranty on behalf of the other Party. (d) Force Majeure. HSC must not be liable to Client for any failure or delay caused by events beyond HSC’s control, even if such event was reasonably foreseeable or HSC had received warning about the possibility of such event occurring, including, without limitation, Client’s failure to furnish necessary information; restrictions or limitations imposed by governmental authorities (including without limitation, precatory or mandatory quarantines, capacity constraints, curfews and stay-at-home orders) or other restrictions imposed by landlords and other third parties relating to a pandemic, disease outbreak or biohazard event; sabotage; acts of God; catastrophes and natural disasters; acts of terrorism; failure or delays in transportation or communication; black-outs and brown-outs and failure of energy supply; failure or substitutions of equipment; labor disputes; accidents; shortages of labor, fuel, raw materials or equipment; or technical failures. Section 1.02 Fees, Payments and Expenses. (a) Invoices. As consideration for Services and other obligations imposed upon HSC under this Agreement, Client will promptly pay HSC for the Services set forth on Exhibit A. Payments are due upon receipt. (b) Expenses. Client will reimburse HSC for all reasonable out-of-pocket expenses, that exceed any agreed upon monthly “Expense Budget” within Exhibit A, incurred by HSC during the performance of Services on behalf of Client, if any of these activities are deemed necessary. As a condition to receipt of reimbursement, HSC will be required to submit to Client reasonable evidence that the amount involved was both reasonable and necessary to the Services provided under this Agreement. (c) Amounts Owed to HSC upon Termination. All prior amounts due or invoiced will be immediately due upon termination of this Agreement. Without limiting any other amounts payable to HSC, HSC will be entitled to recover payment for all Services rendered through the date of termination (including for work in progress), those costs reasonably incurred in anticipation of performance of the Services to the extent they cannot reasonably be mitigated, any other termination costs HSC incurs in connection with canceling any secondary contracts it undertook in anticipation of performance of the Services and any other actual damages suffered by HSC. Section 1.03 Access and Cooperation; Status Reports and Performance Delays. (a) Access. For any Services to be provided by HSC at any of Client’s sites, Client will provide HSC’s personnel with (i) to the extent reasonably required and relevant for a particular project, a suitable and adequate work environment, including space for work and equipment for performance of the Services; (ii) to the extent reasonably required and relevant for a particular project, access to and use of Client’s facilities; (ii) access to relevant information, including software, hardware and documentation and, if requested, Client will provide and maintain personal computing workstations for such personnel’s use and assist such personnel in a timely manner by promptly correcting any hardware or software problems that would affect the performance of Services; and (iii) any other items set forth in each SOW. (b) Cooperation. Client will ensure that all of Client’s personnel who may be necessary or appropriate for successful and timely implementation of the Services will, on reasonable notice, (i) be available to assist HSC’s personnel by answering business, technical, and operational questions and providing requested documents, guidelines, and procedures in a timely manner; (ii) participate in the Services as outlined in the SOW; (iii) actively participate in progress and other Service-related meetings, if requested; (iv) contribute to software and system testing, if appropriate; and (v) be available to assist HSC with any other activities or tasks required to complete the Services. Where agreement, approval, acceptance or consent by either Party is required by any provision of this Agreement or any SOW, such action will not be unreasonably delayed or withheld, unless otherwise specifically provided herein. (c) Status Reports and Performance Delays. HSC will render status reports to Client as to the progress of any work assignment when and as requested by Client. Any statements and agreements concerning time are good faith estimates based upon information available and circumstances existing at the time made, and such estimates are subject to equitable adjustment upon any material change in such information or circumstances or occurrence of delays resulting from causes beyond HSC’s reasonable control. Without limiting the generality of the foregoing, Client acknowledges that HSC’s failure or delay in furnishing necessary information, equipment or access to facilities, delays or failure by Client in completing tasks required of Client or in otherwise performing Client’s obligations hereunder or under any SOW and any assumption contained in a SOW which is untrue or incorrect will be considered an excusable delay or excusable failure to perform hereunder and may impede or delay completion of the Services. Client further acknowledges that such delays or failures may result in additional charges for Services.
26. NON-DISCLOSURE AND TRADE SECRETS
Section 2.01 General. Mutual Non-Disclosure and Non-Use of Confidential Information. Each party acknowledges that the information and data disclosed by the other party (the “Disclosing Party”) and received by a party (the “Recipient”), directly or indirectly, that a reasonable person would deem confidential or proprietary or a competitor to the Disclosing Party would reasonably deem material and valuable, during the period of HSC’s providing Services to Client concerning the business and affairs of the Disclosing Party and its affiliates and their respective customers or clients, are the property of the Disclosing Party or such affiliates (the “Confidential Information”). Therefore, Recipient agrees that Recipient will not disclose to any unauthorized person or use for Recipient’s own account (other than with respect to enforcement of this Agreement or relating to any dispute between the parties or in connection with any of Recipient’s obligations under this Agreement) any of such information or data without the Disclosing Party’s prior written consent, unless and to the extent that such information (1) is or becomes generally known to and available for use by the public other than as a result of Recipient’s acts or omissions to act in violation of this Agreement or any other agreement by which Recipient is bound, (2) was known to Recipient prior to Recipient’s engagement by the Disclosing Party or any of its affiliates, (3) is lawfully received from a third party without breach any duty or obligation of confidentiality, non-use or non-disclosure or (4) is independently developed by or for Recipient without reference to or reliance upon the Disclosing Party’s Confidential Information. In the event that any Confidential Information is required to be disclosed by Recipient pursuant to any applicable law, legal or arbitral tribunal or proceeding, or court order, Recipient will provide the Disclosing Party prompt prior notice of such requirement (unless prohibited by law) and will reasonably cooperate with the Disclosing Party, at the Disclosing Party’s sole expense with prompt reimbursement of Recipient’s attorney’s fees and disbursements, in seeking a protective order or other appropriate remedy in respect of any Confidential Information required to be so disclosed. Section 2.02 Compelled Disclosure. Notwithstanding any other provision of this Agreement, disclosure of Confidential Information will not be precluded if such disclosure is required under applicable law, regulation or valid order of a court or other governmental body to which a relevant Party is subject (“Applicable Law”), provided, that, to the extent permitted by law, Recipient will promptly provide written notice to Client of the need for such disclosure, and reasonably cooperate with Disclosing Party, at Disclosing Party’s sole expense (including without limitation, Recipient’s attorneys’ fees and disbursements) to seek a protective order or other confidential treatment of its Confidential Information. Notwithstanding the foregoing, any disclosure of Confidential Information in accordance with this Section 2.02: (a) will be limited to that which is reasonably necessary to comply with the terms of such law, regulation, court order or governmental body, and (b) must in no way alter the proprietary and confidential nature of such Confidential Information for all other purposes. Section 2.03 Return or Destruction. As requested by Disclosing Party during the Term, or subsequent to expiration or any termination of this Agreement, Recipient will return or destroy, as Disclosing Party may direct, all material in any medium that contains, refers to, relates to, or is derived from Confidential Information of Disclosing Party and retain no copies other than as required by law, and provide written certification executed by an executive officer of Recipient to Disclosing Party at any time upon Disclosing Party’s reasonable request. Notwithstanding the foregoing provisions of this Section 2.03, (a) Recipient may retain one copy of such Confidential Information for archival purposes, and (b) Recipient may retain Confidential Information if required to do so by Applicable Law, provided, that Recipient will notify Client in writing of such obligation, and (i) may not use such retained Confidential Information for any purpose not strictly required to comply with such law, and (i) will at Disclosing Party’s option, return or destroy such retained Confidential Information as soon as practicable after it is no longer required by law to retain it. Section 2.04 No Rights or Licenses. Notwithstanding Confidential Information must be and will remain the sole and exclusive property of Disclosing Party and is subject to the restrictions provided for herein. No rights or licenses, including without limitation to trademarks, inventions, copyrights, patents or any other intellectual properties, are implied or granted to Recipient, whether by implication, estoppel or otherwise, under this Agreement. Recipient may not use any Confidential Information in applying for patents or securing other intellectual property rights. Section 2.05 Defend Trade Secrets Act Notice. Notwithstanding the nondisclosure obligations herein, pursuant to 18 U.S.C. Section 1833(b), Recipient will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made: (1) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (2) in a complaint or other document filed in a lawsuit or other proceeding if such filing is made under seal.
27. WORK PRODUCT
Section 3.01 Work Product. Subject to Client meeting all of its payment obligations under this Agreement to HSC, HSC agrees that any and all ideas, discoveries, developments, improvements, inventions and works of authorship, and any and all materials, whether made, conceived, written, created or first reduced to practice in whole or in part by HSC, alone or with others, in the performance of the Services under this Agreement (collectively, “Work Product”), to the extent permitted by law, will be the sole and exclusive property of Client. Accordingly, subject to Client meeting all of its payment obligations under this Agreement to HSC without additional consideration, HSC hereby agrees to transfers and assigns to Client all of HSC’s right, title and interest, including all patent, copyright, trade secret, trademark, and other intellectual property rights, in and to all Work Product. Section 3.02 Residual Rights. Notwithstanding anything to the contrary, Client agrees that HSC, its employees and agents will be free to use and employ their general skills, know-how and expertise, and to use, disclose and employ any generalized ideas, concepts, know-how, methods, tools, processes, techniques or skills gained or learned during the course of any Services performed hereunder, subject to its obligations respecting Confidential Information set forth in Section 2. Client understands and agrees that HSC may perform similar services for third parties using the same personnel that HSC may utilize for rendering the Services for Client hereunder, subject to HSC’s obligations respecting Client’s Confidential Information set forth in Section 2. Section 3.03 Licensing of Content, Rights and Reproductions. Notwithstanding anything to the contrary in this Agreement, all media incidentals to third parties will be paid directly to those parties by Client or its agents, including licensing, scanning and transfer fees for images, film, video audio. Client will obtain the licensing of media in connection with the project for which HSC is providing Services to use and hold such media based on predetermined use for annual renewal or for use in perpetuity. The Parties acknowledge that external costs not included in the budget discussed between the Parties required for full project completion by Client are listed as follows: Licensing of names, Marks, works of authorship, video (whether live, streaming or otherwise), images, effects, music, fonts, memes, emoticons or any other content, tools or features to be used on website, social media accounts, platforms and apps Client acknowledges and agrees that Client’s failure to obtain sufficient licenses in a prompt manner may delay HSC’s performance of Services, and such additional delay may result in additional charges. Section 3.04 Client Content. As between Client and HSC, Client will own all rights, title and interest in and to the Client Content. “Client Content” is all content or materials provided by Client or its affiliates to HSC hereunder, including but not limited to trademarks, service marks, logos, insignia, trade names and other designations of origin of Client and its affiliates (collectively “Marks”), text, graphics, Client software, third party software, music or other material in any form or media. Content License. Client hereby grants to HSC, a non-exclusive, non-transferable and non-sublicensable, worldwide, royalty-free license to use the Client Content, Logo, Name and Trademarks under the terms and conditions of this Agreement solely as necessary for HSC’s marketing strategy including but not limited to social media, website, e-mail marketing and digital advertising. HSC will not (a) knowingly or negligently permit any third party to use the Client Content; (b) use the Client Content in a manner that is likely to diminish or impair the Client Content’s value; or (c) knowingly permit the use of any mark, name, image likely to cause confusion with Marks. Except for the limited license set forth in this Section 3.04, Client expressly reserves all other rights in and to the Client Content. Cooperation. Client will, in good faith and through the use of commercially reasonable efforts, provide to HSC any materials and information in Client’s possession and control that are: (i) reasonably requested by HSC and (ii) reasonably necessary for the performance by HSC of the Services hereunder.
28. TERM AND TERMINATION
Section 4.01 Term. Initial Term. The initial term of this Agreement will commence as of the date hereof and will be for one (1) year from the Effective Date (the “Term”). Unless either Party has provided written notice of termination within thirty (30) days prior to the end of the Term, this Agreement will automatically renew for successive one (1) year terms (each a “Renewal Term” and collectively with the Term and prior Renewal Terms, the “Term”). Section 4.02 Termination for Convenience. Either Client or HSC may terminate this Agreement with or without cause, at any time upon thirty (30) days’ prior written notice to the other Party, assuming payment in full satisfaction of Serviced performed during the engagement has been received by HSC. Section 4.03 Termination for Cause. Should either Party default in the performance of this Agreement or materially breach any of its obligations under this Agreement, the non-breaching Party may terminate this Agreement immediately if the breaching Party fails to cure the breach within five (5) business days after having received written notice by the non-breaching Party of the breach or default providing reasonable detail of the breach or default, or if the nature of such breach or default is inherently not curable. Section 4.04 Effects of Termination. The election of Client to terminate this Agreement will not be deemed an election of remedies, and all other remedies provided by this Agreement or available at law or in equity will survive any termination. Upon expiration or termination of this Agreement for any reason, each Party will be released from all obligations to the other Party arising after the date of expiration or termination, except that expiration or termination will not relieve HSC of its, his or her obligations under Article II, Article III, Article IV, Article V and Article VI, nor will expiration or termination relieve HSC or Client from any liability arising from any breach of this Agreement. Section 4.05 Confidential Information. Upon expiration or termination of this Agreement for any reason, subject to the Client meeting all of its payment obligations under this Agreement, HSC will cease using all Confidential Information, including but not limited to Work Product. Subject to Client meeting all of its payment obligations under this Agreement and at Client’s sole expense and in accordance with Client’s instructions, HSC will act in good faith to (a) promptly deliver to Client all such Confidential Information in tangible form other than an archival copy subject to Section 2.03, or (b) certify in writing as to the destruction of Confidential Information, subject to an exception for an archival copy as set forth in Section 2.03.
30. INDEMNITIES AND LIMITATIONS OF LIABILITIES
Section 6.01 Indemnification. Client Indemnification of HSC. Client hereby indemnifies and agrees to indemnify and hold harmless HSC and its managers, managing members, members, partners, directors, officers, independent contractors and employees, and agents and its and their respective successors, assignees, and licensees, and their managers, managing members, members, partners, directors, officers, directors, employees and agents (each of the foregoing, including HSC, a “Indemnified Party”) from and against any loss, claim, damage or liabilities (or actions in respect thereof that may be asserted by any third party) that may result from any third party claims arising out of or relating to (1) any use by HSC of any intellectual property owned or licensed by Client or content provided by Client to HSC, directly or indirectly, that does not arise from, or relate to, the gross negligence, fraud, unlawful conduct (except to the extent that such unlawful conduct relates, directly or indirectly, to any unlawful act or omission by Client) or intentional misconduct of a Indemnified Party, (2) any breach by Client of its representations, warranties or covenants under this Agreement or (3) if any Indemnified Party is called to testify or give a deposition in any civil, criminal, administrative or arbitrative action or hearing, alternate dispute resolution mechanism, investigation, inquiry, mediation, settlement, suit or proceeding, and any appeal thereof relating solely to your acts, omissions or your role as in connection with the Services provided by HSC or relating to events, circumstances and other factual matters encountered by HSC during the course of performing Services for Client (each a “Proceeding”) (whether or not it is a party or is threatened to be made a party to such Proceeding); provided, that, (1) to the extent that HSC has no prior knowledge of such Claim, HSC and each Indemnified Party has notified Client promptly in writing of any such Claim; and (2) the Indemnified Party will reasonably cooperate with Client’s legal counsel, unless the interests of the Parties are reasonably deemed to be direct and adverse and written notice of such adversity is provided to Client. Control of Defense. In the event that a Indemnified Party is indemnified pursuant to this Section 6.01, HSC and each Indemnified Party must give Client sole control of the defense thereof and any related settlement negotiations; provided, however, that (i) Client will not, without the Indemnified Party’s prior written consent, admit liability or consent to the imposition of any liability upon the Indemnified Party, (ii) Client may not settle any claim against the Indemnified Party (A) unless such settlement completely and forever releases the Indemnified Party from all liability with respect to such claim and is subject to subclause (i) above, or (B) unless the Indemnified Party consents to such settlement; and (iii) the Indemnified Party will have the right, at its option, to waive its right to indemnification by Client and defend itself against any such claim at its own expenIndemnities and Limitations of Liabilitiesse and at its own risk, or to participate in the defense thereof by Client, using counsel of such Indemnified Party’s own choice, at its sole expense. Notwithstanding anything to the contrary in this Agreement, Client must indemnify and hold harmless, and advance expenses to, the Indemnified Party for independent counsel of its choice in the event that (1) Indemnified Party has reasonably determined that there may be an actual or potential conflict of interest between the Indemnified Party and Client, in connection with any Proceeding (whether or not it is a party or is threatened to be made a party to such Proceeding), (2) Client has not promptly in fact have employed legal counsel to assume a Indemnified Party’s defense in connection with any Proceeding (whether or not it is a party or is threatened to be made a party to such Proceeding), or (3) Indemnified Party is called to testify or give a deposition in any Proceeding (whether or not it is a party or is threatened to be made a party to such Proceeding), then in any such event such Indemnified Party will be entitled to retain its own separate counsel (but not more than one law firm plus, if applicable, local counsel in respect of any such proceeding) and any and all costs and expenses related to such separate legal counsel will be borne by Client. Section 6.02 Limitation of Liability Generally. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES, OR TO ANY OTHER THIRD PARTY, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, OR THE SERVICES OR EFFORTS TO MEET PERFORMANCE OBLIGATIONS, FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS OR LOSS OF BUSINESS, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHER THEORY OF LIABILITY, REGARDLESS OF WHETHER A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. Section 6.03 Limitation of Liability for HSC’s Services. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL HSC’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNTS PAID BY COMPANY TO HSC IN THE TWELVE- (12-) MONTH PERIOD PRIOR TO SUCH LIABILITY ARISING UNDER THIS AGREEMENT FOR THE SERVICES, DELIVERABLES OR INVENTIONS GIVING RISE TO SUCH LIABILITY. Section 6.04 Scope of Liability. THIS SECTION SETS FORTH CLIENT’S SOLE REMEDIES AND HSC’S AND ITS SUBCONTRACTORS’ AND THEIR RESPECTIVE AFFILIATES’ SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES OR ANY DELIVERABLES RELATING TO THE SERVICES) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT. Section 6.05 Survival. This Section 6 will survive and apply even if any limited remedy specified in this agreement is found to have failed of its essential purpose. Section 6.06 Non-Disparagement. (a) The parties hereto agree that I will make, or cause to be made, any statements, observations, or opinions, or communicate any information (whether oral or written), that disparages or is likely in any way to harm the reputation of the Company, Tyler Mount or any of their respective affiliates, employees, managers, managing members, members, officers, directors, affiliates or consultants, customers, vendors, investors, equity owners, creditors, business partners and other associates. Nothing contained in this Agreement shall be deemed to prohibit either party from testifying truthfully under oath pursuant to any lawful court order or subpoena or otherwise responding to or providing disclosures required by law. (b) Notwithstanding anything to the contrary, in the event of any breach of the obligations by me under Sections 6(a) or 6(b), that the Company shall no longer be bound by its obligations to me, other than mandated by applicable law. (c) In the event that the Company commences an action in any court of law to enforce any of the restrictive covenants set forth in this Section 6(a) or 6(b) (each, “Covenant” and collectively the “Covenants”), the running of any time period or limitation applicable to such Covenant will be suspended and tolled pending final resolution of such legal action. The running of any unexpired time period must resume either on the date when final judgment is rendered or when all appeals taken there from are concluded, whichever is later. Additionally, the time period for my faithful observance or performance of any Covenant under this Agreement will also be extended for any period of time that I am in breach of such Covenant. (d) In the event that the Company commences an action in any court to enforce any of the Covenants, the party against whom the court finds must pay all costs and expenses associated.
31. GENERAL PROVISIONS
Section 7.01 Amendment. Any amendment to this Agreement must be in writing and signed by all Parties. Section 7.02 Authorized Representatives. Each signatory to this Agreement personally represents that, he, she or it has authority to legally bind his, her or its respective party to this Agreement. Section 7.03 Assignment. Neither Party may make any assignment of this Agreement or any interest herein, except as otherwise permitted in this Agreement, without the prior written consent of the other Party; except that either Party may assign, in its sole discretion, any and all its rights, interest and obligations under this Agreement to its parent Client or any direct or indirect subsidiary of the Party’s parent Client. Section 7.04 Counterparts. This Agreement may be executed in counterparts, each of which will be an original and all such counterparts together will constitute the entire Agreement. Electronically transmitted and facsimile transmitted signatures will have the full force and effect of an original signature. Section 7.05 Entire Agreement and Conflicts with SOW. This Agreement (together with all schedules and exhibits annexed hereto or otherwise agreed to in writing between the Parties from time to time, including without limitation, any SOW or Change Order) contains the final, complete and exclusive agreement of the Parties relative to the subject matter hereof, and supersedes any and all prior agreements or understandings (oral or written) between the Parties with respect to the subject matter hereof. In the event of any conflict between this Agreement and a SOW, this Agreement shall control, unless otherwise specified in this Agreement, except that the SOW shall control with respect to any project set forth in the SOW. Each SOW is incorporated and made a part of this Agreement to the same extent as if set forth in full herein; any use of the phrase “this Agreement” will include each SOW (unless such construction is clearly not intended). Section 7.06 Survival of Terms. All terms and provisions of this Agreement, including any and all exhibits, addenda and amendments hereto, which by their nature are intended to survive any termination or expiration of this Agreement, will so survive. Section 7.07 No Waiver. Failure by either Party to insist upon the performance of any term, covenant, or condition in this Agreement, or to exercise any rights under this Agreement, will not be construed as a waiver or relinquishment of the future performance of any such term, covenant, or condition, or the future exercise of any such right, and the obligation of each Party with respect to such future performance will continue in full force and effect. Section 7.08 Notices. All notices, demands, requests, consents, and other communications required or which may be given under this Agreement will be deemed to have been duly given (a) when delivered by hand; (b) five (5) days after being mailed by registered or certified mail, return receipt requested; (c) when received by the addressee, if sent by facsimile transmission or the U.S. Postal Office’s Express Mail service, FedEx or other nationally recognized express courier delivery service (receipt requested), in each case addressed to a Party at its address set forth above (or to such other address as such Party may hereafter designate as to itself by notice to the other Party); or (d) when delivered by email addressed to the Party to be notified at such Party’s email address as set forth on the signature page, as subsequently modified by written notice, or if no email address is specified on the signature page, at the most recent email address set forth in Client’s books and records. Notices are deemed received when the recipient replies by email confirming receipt, provided that any emails arriving on a weekend (Saturday or Sunday, or in the Middle East region, Friday or Saturday) or after 5pm (local time) on a business day will not be deemed received until the next business day. Each Party hereby assumes and covenants to act in good faith to respond promptly and truthfully and accurately to any request for confirmation of receipt of email. Section 7.09 No Third Party Beneficiaries. The sole non-exclusive client of HSC pursuant to this Agreement is Client, and no other persons or entities (including employees, officers, directors, agents, advisers, members, stockholders or lenders of or to Client) are parties to the Agreement. The Parties agree that this Agreement is solely for the benefit of the Parties hereto and no provision of this Agreement will be deemed to confer upon any other person or entity any remedy, claim, liability, reimbursement, cause of action or other right whatsoever, whether express or implied, under or because of this Agreement or the services to be provided pursuant thereto. Section 7.10 Reimbursement of Collection Fees and Legal Expenses. Client must promptly reimburse HSC (in no event later than within ten (10) business days of HSC’s written notice (including reasonable back-up) thereof), for any attorney’s or collection fees , disbursements and expenses, including any and all costs incurred by HSC in any action or proceeding relating to the enforcement of this Agreement, that HSC incurs as a result of Client’s failure to make timely payments required under, or relating to Client’s breach of any provision or obligation in, this Agreement. Section 7.11 Taxes. HSC will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state or local tax authority with respect to HSC’s performance of services and receipt of fees under this Agreement. Because HSC is an independent contractor, Client will not withhold or make payments for social security; make unemployment insurance or disability insurance contributions; or obtain workers’ compensation insurance on HSC’s behalf. HSC will be responsible for complying with all applicable state and federal laws governing self-employed individuals, including obligations such as payment of taxes, social security, disability and other contributions based on fees paid to HSC under this Agreement. Section 7.12 Legal and Equitable Remedies. HSC hereby acknowledges and agrees that in the event of any breach of this Agreement by HSC, including without limitation, the actual or threatened disclosure of Confidential Information without the prior express written consent of Client, Client will suffer an irreparable injury such that no remedy at law will afford it adequate protection against, or appropriate compensation for, such injury. Each Party acknowledges and agrees that in the event of a breach of Section 5.02 (Non-Solicitation), including without limitation, the actual or threatened solicitation activity in breach of Section 5.02 (Non-Solicitation), the other non-breaching Party will suffer an irreparable injury such that no remedy at law will afford it adequate protection against, or appropriate compensation for, such injury. Accordingly, each Party hereby agrees that the other non-breaching Party will be entitled to specific performance of its respective obligations with respect to Section 5.02 (Non-Solicitation), and Client will be entitled to specific performance of HSC’s obligations with respect to breach of Confidential Information under this Agreement, as well as other equitable or further relief as may be granted by a court of competent jurisdiction, without necessity of posting a bond, to the extent permitted under Applicable Law. Section 7.13 Severability. If any term or other provision of this Agreement is held to be invalid, illegal or incapable of being enforced by any rule of law or public policy by a court of competent jurisdiction, all other conditions and provisions of this Agreement will nevertheless remain in full force and effect, insofar as the foregoing can be accomplished without materially affecting the economic benefits anticipated by the Parties to this Agreement. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties hereto will negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible to the fullest extent permitted by Applicable Law. Section 7.14 Electronic Signature. Client confirms that they have read and fully understand the contract including all related Exhibits and that by clicking “Confirm Signature” below constitutes a legally binding signature.
32. EXHIBIT A – STATEMENT OF WORK
EXHIBIT A HENRY STREET CREATIVE, LLC SERVICES AGREEMENT — STATEMENT OF WORK This STATEMENT OF WORK (“SOW”) dated and effective as of the date set forth above (the “SOW Date”) is hereby annexed to and made part of that certain Services Agreement by and between Henry Street Creative, LLC (“HSC”), a New York limited liability company, and the party (“Client” or each a “Party” and collectively and each, the “Parties”) set forth below, dated as of the date first set forth above (the “Agreement”). This SOW incorporates by reference all terms and conditions set forth in the Agreement, and is integrated, together with the Agreement, as one and the same agreement. All capitalized terms used herein that are not otherwise expressly defined shall have the same meanings ascribed to such terms in the Agreement. The signatures below constitute the Parties’ written consent to the terms and conditions of this SOW. This SOW shall be effective upon execution by both parties. Client hereby orders the services and/or deliverables described below (the “Work”), and HSC agrees to commence the Work upon review and acceptance of this SOW. The Work will be provided pursuant to the rates, terms, and conditions set forth in this SOW and any applicable laws, statutes, regulations, and/or other restrictions of the countries where the Services will be performed and the Work will be provided. Services and Compensation Type and/or rate of payment: A fee in accordance with pricing publicly listed on TylerGMount.com, which may change at any time, with 30-days notice to client. Timing of payments: Client will be automatically billed on a fee-for-service basis monthly. Types of expenses to be paid: Ordinary and necessary business expenses that are appropriate for Services to be rendered. Expenses totaling above $100.00 per month, including travel and third-party expenses will require written Client approval in advance. Client facility or facilities where work is to be performed: N/A Scope of work to be performed: PERSONAL DIGITAL MARKETING SESSIONS WITH TYLER MOUNT Tyler to meet with client at predetermined monthly cadence to guide, teach, and support your social media presence Tyler to understand your KPIs, goals and objectives and pivot accordingly Scope includes the number of sessions purchased, each 45 minute brand strategy* sessions in accordance with a convenient time that works for both parties *Meetings canceled within 24 hours of scheduled start time will be forfeited without refund or rescheduling Scope does not include: Content Development of any sort- copywriting, newsletter, blog, video, lifestyle etc. Syndication cross any social platforms Travel related expenses Creative asset licensing including: photography, music, video, fonts, imagery, et. al. Paid social media spend or strategy Postage & shipping related expenses All third party vendor expenses Any service or deliverable not explicitly listed in the aforementioned scope
33. CONTACT US
In order to resolve a complaint regarding the Services or to receive further information regarding use of the Services, please contact us at:
Henry Street Creative, LLC.
New York, NY 10024