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BY CHECKING “I ACCEPT” AND/OR YOUR USE OF COMPANY’S SERVICES INDICATES YOUR ACKNOWLEDGMENT THAT YOU HAVE READ AND ACCEPTED THESE TERMS AND CONDITIONS AND THAT YOU HAVE AGREED TO BECOME A PARTY TO, AND TO BE LEGALLY BOUND BY, THIS AGREEMENT.
As used herein, “Client” refers to the party purchasing services from PRECISE PROOFING LLC.
1 Acceptance. THE TERMS AND CONDITIONS OF SERVICES CONTAINED HEREIN (THIS “AGREEMENT”) APPLY TO ALL QUOTATIONS MADE, INVOICES, AND PROPOSALS ENTERED INTO BY PRECISE PROOFING, LLC (“COMPANY”). SOME OF THE TERMS SET FORTH HEREIN MAY DIFFER FROM THOSE IN A CLIENT’S COMMUNICATIONS AND SOME MAY BE NEW. THIS ACCEPTANCE IS CONDITIONAL ON CLIENT’S ASSENT TO THE TERMS SET OUT HERE IN LIEU OF THOSE IN CLIENT’S COMMUNICATIONS. COMPANY’S FAILURE TO OBJECT TO PROVISIONS CONTAINED IN ANY COMMUNICATION FROM CLIENT SHALL NOT BE DEEMED A WAIVER OF THE PROVISIONS OF THIS ACCEPTANCE. MODIFICATION OF THESE TERMS AND CONDITIONS MAY BE MADE ONLY WITH THE PRIOR WRITTEN CONSENT OF BOTH PARTIES AND ANY ATTEMPTS TO ALTER SUCH TERMS AND CONDITIONS WITH PURCHASE ORDERS, ACKNOWLEDGEMENTS, SIMILAR OR OTHER DOCUMENTATION SHALL BE VOID.
2 Scope; Proposal. Company agrees to perform the services as may be requested from time to time, subject to the terms and conditions of this Agreement. Any and all services to be performed hereunder shall be authorized by Client through a mutually agreeable email which shall act as a proposal (“Proposal”), or if no Proposal has been entered into by Company and Client, the terms and conditions of this Agreement. Each Proposal shall be effective only upon issuance by Company and acceptance by Client in accordance with this Agreement.
Prior to commencement of the Services under this Agreement, the parties shall enter into a Proposal unless Company determines in its sole discretion that a Proposal is not required, in which case the terms and conditions of this Agreement shall govern the relationship between Company and Client and the provision of the Services. Company shall not be required to begin performing Services until Client has accepted of the applicable Proposal and Company has received any Deposit due under Section 6.1.
3 Standards and Warranty. Company shall provide the services described on the preceding pages hereof in accordance with generally accepted industry standards. EXCEPT AS EXPRESSLY SET FORTH IN THE IMMEDIATELY PRECEDING SENTENCE, COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ARISING IN CONNECTION WITH THIS AGREEMENT OR ITS IMPLEMENTATION, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE. COMPANY DOES NOT PROVIDE LEGAL ADVICE.
4 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, OR ANY OF ITS OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS, BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES OR LOSS OF PROFITS), EVEN IF THAT PARTY, ITS AFFILIATES, OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR ITS IMPLEMENTATION. IN NO EVENT SHALL THE TOTAL COLLECTIVE LIABILITY OF COMPANY, ITS AFFILIATES, AND ANY OF ITS OR THEIR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR ITS IMPLEMENTATION EXCEED THE TOTAL AMOUNTS PAID BY CLIENT TO COMPANY FOR SERVICES PROVIDED HEREUNDER. ADDITIONALLY, CLIENT ACKNOWLEDGES THAT THE PROVISION OF SERVICES DOES NOT CONSTITUTE THE GIVING OF LEGAL ADVICE. CLIENT WILL NOT HOLD OR ATTEMPT TO HOLD COMPANY, ITS MANAGERS, MEMBERS, EMPLOYEES, OR INDEPENDENT CONTRACTORS RESPONSIBLE FOR THE CONTENT OF ANY OR ALL EDITORIAL DOCUMENTS.
5 PROPRIETARY RIGHTS; LICENSES.
5.1 Company Proprietary Rights; Licenses.
b. Company and/or its licensors shall own any and all Intellectual Property Rights in Company Content, and except as expressly provided herein, Client shall not have or obtain any other license, right, title or interest therein.
c. If and to the extent that any Company Content is incorporated in or is required for Client to utilize the products delivered or deliverable by Company hereunder (collectively, the “Deliverables”), and subject to the terms and conditions of this Agreement, Company hereby grants to Client, for its benefit and for the benefit of its customers, a worldwide, nonexclusive, nontransferable, nonsublicensable, perpetual, royalty-free, and fully paid-up right and license to use, execute, reproduce, modify, and distribute such Company Content, solely in the ordinary course of Client’s business, subject to any applicable license restrictions or other terms and conditions imposed by Company’s licensors.
5.2 Client Proprietary Rights; Licenses.
a. Client and/or its licensors shall own all Intellectual Property Rights in the Deliverables (excluding any Company Content incorporated therein) and Client Content, and except as expressly provided herein, Company shall not have or obtain any other license, right, title or interest therein. The parties agree that the Deliverables (excluding any Company Content incorporated therein) shall be considered “work made for hire” (as such term is defined in 17 U.S.C. §101) belonging to Client. To the extent that the Deliverables (excluding any Company Content incorporated therein) may not be considered “work made for hire”, Company agrees to assign, and upon its creation, automatically assigns, to Client all Intellectual Property Rights therein.
b. Subject to the terms and conditions of this Agreement, Client hereby grants to Company a worldwide, nonexclusive, sublicensable, royalty-free, and fully paid-up right and license to use, reproduce, edit, adapt, translate, digitize, display, exhibit, publish, transmit, distribute, perform, and create derivative works from Client Content, whether in original or derivative form, for the sole purpose of performing its obligations hereunder.
5.3 Client Representation; Indemnification. Client represents, warrants and covenants to Company that the Client Content, and the use and display thereof as contemplated by this Agreement, will not: (a) violate or infringe upon any third party’s copyrights, trademarks, or rights of privacy or publicity; or (b) defame any third party. Client agrees to indemnify and hold Company and its shareholders, successors, assigns, employees, officers, directors, agents, servicers, representatives, consultants, and attorneys, and their affiliates, harmless for any claim or demand, including reasonable fees and costs for the service of an attorney, or as may be made by any third party due to or arising from any infringement or any intellectual property or other right of any person or entity by Client or any of its affiliates.
6 Pricing; Payments.
6.1 Pricing. Prices quoted by Company are subject to change if not accepted by Client within thirty (30) days of the date of quotation or if the work is not commenced (through no fault of Company) within thirty (30) days of the date of a Proposal. Project-specific pricing information contained in any quotation or in a Proposal is the confidential and proprietary property of Company and is not to be disclosed or made available to third parties without the written consent of Company.
6.2 Deposit. Upon the acceptance of a Proposal, Client shall pay to Company a deposit in the amount set forth in such Proposal (the “Deposit”).
6.3 Invoices. Invoices for completed work will be submitted when the respective Deliverables are tendered to Client and that invoice is due upon receipt. Balances will be past due after fourteen (14) days of receipt and carry interest charges at the rate of 1.5 percent per month. In the event of non-payment Client is liable for all costs of collection and any related attorney fees.
7 Termination. Either party may terminate this Agreement and/or any Proposal if the other party materially breaches any term or condition of this Agreement and following seven (7) days written notice thereof, together with the reasons and details therefore. A final invoice shall be calculated on the first or fifteenth of the month (whichever comes first) following receipt of such cancellation notice as follows:
a. Where the method of payment is “per edited page” Client agrees that the final invoice will be based on the percentage of work completed to the effective date of cancellation.
b. Should the method of payment be a “fixed fee”, Client agrees that the final invoice will include all services and direct expenses up to the effective date of cancellation.
8 CONFIDENTIAL INFORMATION. Each party acknowledges that any and all confidential, proprietary and/or trade secret information disclosed or submitted by one party (the “Disclosing Party” ) to the other (the “Receiving Party” ) hereunder (the “Confidential Information” ) shall be received and maintained by the Receiving Party in strict confidence, shall not be used for any purpose other than as expressly permitted under this Agreement, and shall not be disclosed to any third party without the prior written consent of the Disclosing Party, except as expressly provided herein. “Confidential Information”, for purposes of this Agreement, shall include, without limitation, any and all trade secrets, processes, techniques, drawings, models, customer-related information and data, computer programs, databases, business plans, technical data, product ideas, marketing data, contracts and financial information. The restrictions set forth in this Section 8 shall not apply with respect to any information which the Receiving Party can document: (a) became publicly known through lawful means; (b) was rightfully in the Receiving Party’s possession prior to disclosure by the Disclosing Party; or (c) is disclosed to the Receiving Party without confidential or proprietary restriction by a third party who rightfully possesses the information (without confidential or proprietary restriction). Each party agrees to limit access to the other party’s Confidential Information to those of its affiliates, directors, officers, employees, contractors, and representatives who: (i) have a need to know such Confidential Information for purposes of such party performing its obligations hereunder; and (ii) are obligated in writing to protect the confidentiality of such Confidential Information under terms at least as restrictive as those set forth in this Section 8. The Receiving Party shall treat the Confidential Information of the Disclosing Party with at least the same degree of care and protection as it would use with respect to its own proprietary information (and in no event less than a reasonable degree of care), and except as expressly authorized by this Agreement, shall not itself, or allow others to, copy, reverse engineer, disassemble, decompile, translate, or create derivative works from all or any part of such Confidential Information. The Receiving Party shall be fully and directly responsible and liable to the Disclosing Party for any breach of this Section 8 by the Receiving Party’s employees or other third parties receiving access to the Disclosing Party’s Confidential Information through or on behalf of the Receiving Party.
9 General Provisions
9.1 Governing Law. The laws of the State of North Carolina shall govern this agreement and all transactions relating hereto.
9.2 Severability; Waiver.If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way, the parties agree to replace any invalid provision with a valid provision which most closely approximates the intent and economic effect of the invalid provision. No waiver of any breach of this Agreement will be effective unless made in writing and signed by an authorized representative of the waiving party. The waiver by either party of any breach of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
9.3 Representation on Authority of Parties/Signatories and Execution. Each person signing this Agreement represents and warrants that he/she is duly authorized and has legal capacity to execute and deliver the Agreement as valid and binding on such party and enforceable in accordance with its terms.
9.4 Force Majeure. The failure of either party to perform any obligation otherwise due as a result of governmental action, laws, orders, regulations, directions or requests, or as a result of events, such as war, acts of public enemies, strikes or other labor disturbances, fires, floods, acts of God or any causes of like or different kind beyond the reasonable control of that party (“force majeure”) is excused for so long as said cause exists.
9.5 Relationship of the Parties. Each party to this Agreement is acting as an independent contractor, and nothing in this Agreement shall create or be construed to create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Except as otherwise provided in this Agreement, neither party shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other.
9.6 Notices. Any notices required or permitted hereunder shall be given to the appropriate party at the address specified below or at such other address as the party may specify in writing. Such notice shall be deemed given: (a) if delivered personally, upon delivery as evidenced by delivery records; (b) if sent by e-mail, upon receipt of a reply e-mail from the other party confirming receipt, or (c) if sent by certified or registered mail, postage prepaid, five (5) days after the date of mailing.
As set forth in the Proposal or any quotation request
9.7 Counterparts; Electronic Contracting. This Agreement and any Proposal or Change Order may be executed in one or more counterparts each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument. Proposals and Change Orders pursuant to this Agreement may be delivered by e-mail. The party receiving such Proposal or Change Order by e-mail may accept such Proposal or Change Order by confirming (via e-mail) its receipt and acceptance of the Proposal or Change Order. Client agrees that electronically accepting any Proposal or Change Order, to the fullest extent permitted by applicable state and federal law, is commensurate with executing a legally binding printed copy of the Proposal or Change Order, as applicable.
9.8 Order of Precedence. In the event of any conflict, ambiguity or inconsistency between or among the terms and conditions of this Agreement and any Proposal, the terms and conditions of this Agreement shall control.
9.9 Publicity. Company shall have the right, from time to time, to publicly announce its involvement in the development of the Deliverables for Client hereunder (including, without limitation, in news releases, business plans, and marketing materials). Subject to the terms and conditions of this Agreement, Client hereby grants to Company a worldwide, nonexclusive, perpetual, irrevocable, royalty-free, and fully paid-up right and license to use, reproduce, adapt, digitize, display, publish, perform, and distribute the applicable Client Marks, solely for the purpose of exercising its rights under this Section 9.9.
9.10 Entire Agreement. This proposal constitutes the entire agreement between Company and Client regarding the subject matter hereof and replaces all prior written or oral agreements and understandings.