10th Logo Wht

TERMS AND CONDITIONS

  1. Scope of Services. We will provide the Client with the services specified in a statement of work (the “Statement of Work”). Should Client request us to perform additional services beyond what is provided in the Statement of Work, the parties will negotiate in good faith with respect to the terms, conditions, and compensation for such additional services. Any agreement for additional services will be set forth in writing and considered an addendum to the Statement of Work.
  2. Fees. The Client shall pay to us (a) the Initial Set-Up Fee specified in the Order Form within 30 days of the Effective Date, and (b) the Monthly Services Fee specified in the Order Form, which will be due on the first day of every month during the Term of the Agreement, in accordance with the payment method selected . In addition, Client shall pay all taxes, including all federal, state, local and sales taxes arising in connection with the Services or the transactions contemplated herein, excluding taxes on our income.
  3. Payment for Products/Services. Client agrees to remit payment for all products/services rendered exclusively through credit card or ACH electronic funds transfer.
  4. Price Changes. We reserve the right to increase the monthly fees payable by Client up to five percent (5%) per contract year. We further reserve the right to increase the monthly fees greater than five percent (5%) per year, except that: (i) We shall provide Client with sixty (60) days’ advance written notice of each such modification, and (ii) Client shall have the right to terminate the Agreement any time prior to the expiration of such notice period.
  5. Media Compensation. For Media Services, the fees described in the Order Form are due on or before the first of each month prior to commencement of work. We will bill in advance for all Media and Monthly Fees with all of the Program Fees paid up-front.
  6. Commitments to Third Parties. All purchases of media, production costs, and engagement of talent by us (“Third-Party Costs”) will be subject to Client’s prior approval. Client reserves the right to cancel any such authorization, whereupon we will take all appropriate steps to effect such cancellation, provided that Client will hold us harmless with respect to any costs incurred by us as a result. For all third-party costs, including but not limited to media purchased, incurred by us on Client’s behalf, Client agrees that we shall be held liable for Third-Party Costs only to the extent Client has already reimbursed us for the Third-Party Costs in question; in all other cases, Client agrees to be solely directly liable to such third parties for Third-Party Costs.
  7. Late Fees and Suspension. If Client is late on payment more than 30 days, interest on the outstanding balance shall accrue at a rate equal to the lesser of (i) 1.5% per month or (ii) the highest rate permitted by applicable law for every month the balance of payment is past due. We further reserve the right, without upon 5 business days’ prior notice to Client, to cease providing Services and to suspend Website(s) if, and for so long as, any amount due hereunder remains unpaid by Client after its payment due date. All Fees due hereunder will continue to accrue and be payable to us during any such period of cessation of services during the non-payment period.
  8. Client Content. Client will provide us with all trademarks, service marks, slogans, artwork, data, reports, written materials, drawings, photographs, graphic materials, or other intellectual property or materials necessary or appropriate to enable us to perform the Services (the “Client Content”). Client Content shall include, without limitation, information or data provided to us to substantiate claims made in advertising. Client hereby grants us a non-exclusive, non-transferable, limited, revocable, royalty-free license to use, reproduce, transmit, display, perform, distribute, excerpt, reformat, adapt, translate, and create derivative works of the Client Content solely in connection with the performance of the Services. Client represents and warrants that it has or has obtained all the necessary rights and permissions to the Client Content, and the Client Content (and our use thereof) is not defamatory, libelous, obscene, or otherwise illegal, does not invade any right of privacy, and does not infringe upon any intellectual property right or right of publicity of any person or entity. We understand and agree that, except for use in accordance with this Agreement, we have no right, title interest, or license in any Client Content. We will comply with Client’s removal requests as to the use of Client Content provided for use hereunder and will avoid knowingly taking any action intended to diminish the value of such Client Content.
  9. Materials. Unless otherwise specified in an Order Form, all content, images, graphics, videos, material, designs, and website features created or licensed by us in connection with the Services (the “Solutions”) and all software (including applications, systems, plugins, hooks, add-ons, and integrations) and techniques utilized by us in performance of the Services (the “Materials”), shall remain our sole and exclusive property, and we shall retain all Intellectual Property Rights therein, subject to the rights of licensors of any material licensed by us from third parties (“Licensed Materials”) and Client’s rights in the Client Content. We hereby grant Client a non-exclusive, non-transferable, limited, revocable, royalty-free license to use our Solutions during the Term, solely in connection with the operation of the Website. “Intellectual Property Rights” shall mean:  any and all copyrights, trademarks and trade name rights, trade secret rights, patents, designs, algorithms, and all other proprietary rights of every kind and nature relating to our Solutions (including the “look and feel” of any Website included in our Solutions); and all registrations, applications, updates, renewals, extensions, continuations, division or reissues thereof.
  10. Custom Content. During the Term, Client may request, and we may agree to develop custom graphics, logos, videos, or other content for Client (“Custom Content”), in consideration for payment by Client to us in separate and additional agreed-upon compensation. We hereby grant Client a non-exclusive, non-transferable, limited, revocable, royalty-free license to use the Custom Content during the Term, solely in connection with the operation of the Website. Unless otherwise specified in an Order Form or agreed in writing between the parties, we shall own all other Intellectual Property Rights in the Customer Content, subject to the rights of licensors of any Licensed Materials and Client’s rights in the Client Content, to the extent incorporated into any Custom Content.
  11. Open-Source. Our Materials and our Solutions may include certain open-source software. To the extent that the open-source licenses applicable to such open-source software prohibit us from limiting Client’s rights to use, modify, and distribute such open-source software, nothing in this Agreement is intended to, or shall be deemed to, limit such rights under such licenses with respect to such open-source software components. Copyrights to the open-source software are held by the copyright holders indicated in the copyright notices in the corresponding files.
  12. No Contestation. Client agrees not to contest, nor assist others in contesting, our title to, or the validity of, any of Client’s Intellectual Property Rights in or to our Solutions, our Materials, or the Custom Content during the term of this Agreement or at any time after any termination or expiration thereof.
  13. Domain Names. In the event that Client instructs us to secure, modify, update, administer or otherwise control one or more domain names through our Domain Name System (“DNS”) in connection with the provision of Services hereunder, we will thereafter have the exclusive right during the Term, including during all renewals thereof and all cure periods in the event of Client default hereunder, to control such domain name(s). Transfer to Client of the domain name(s) will thereafter be made only upon termination of this Agreement and payment in full by Client of all sums due and owing to us hereunder. In the event that Client instructs us not to use our DNS to provide the Services, including monitoring and alerts, will be measured by our core URL and not by Client’s actual domain name(s), as they are hosted elsewhere.
  14. Confidentiality. “Confidential Information” means any confidential or proprietary information of the disclosing party that is either marked as being “Confidential” or “Proprietary” or under the circumstances of disclosure should reasonably be considered as confidential or proprietary. Confidential Information includes the existence and terms of this Agreement. Confidential Information does not include information that: (i) is in or enters the public domain without breach of this Agreement and through no act of the receiving party; (ii) the receiving party was lawfully in possession of without any obligation of confidentiality or nondisclosure prior to receiving it from the disclosing party; (iii) the receiving party can demonstrate was developed by the receiving party independently and without use of or reference to the disclosing party’s Confidential Information; or (iv) the receiving party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation. The Confidential Information of each party is the property of that party, and the receiving party obtains no right, title, interest, or license in or to the Confidential Information of the disclosing party, except as provided in this Agreement. Each party will: (i) hold in strict confidence all Confidential Information of the other party; (ii) use such Confidential Information only to perform or to exercise its rights under this Agreement; and (iii) not transfer, display, convey or otherwise disclose or make available such Confidential Information to any person or entity except to the directors, officers, employees, agents, contractors, accountants, auditors and legal and financial advisors of such party who need to know such Confidential Information, who are under confidentiality obligations substantially similar as those set forth hereunder, and whose handling and treatment of the Confidential Information in accordance with this Agreement is such party’s full responsibility. Each party will use at least the same degree of care to protect the disclosing party’s Confidential Information as it uses to protect its own Confidential Information of like nature, but each party will use at least reasonable care. The receiving party may disclose the Confidential Information of the disclosing party in response to a valid court order, law, rule, regulation, or other governmental action provided that (x) the disclosing party is notified in writing prior to disclosure of the information and given reasonable opportunity to obtain a protective order, and (y) the receiving party assists the disclosing party, at the disclosing party’s expense, in any attempt to limit or prevent the disclosure of the Confidential Information. Upon the request of the disclosing party at the termination or expiration of this Agreement, or at any other time, as the case may be, the receiving party will at its own expense, promptly return to the disclosing party all Confidential Information (and all copies thereof) of the disclosing party in its then-current format, or at the written direction of the disclosing party, promptly destroy such Confidential Information and provide the disclosing party with written certification of such destruction, and cease all further use of the other party’s Confidential Information, except for (A) any Confidential Information that the receiving party is required to retain pursuant to any applicable law, or (B) executed original copies of any contractual documents or other materials customarily held by the receiving party as archival material.
  15. Publicity. Client agrees that, commencing on the Effective Date and continuing for the duration of the Term, we may reference, without notification, Client’s name and Website in advertising materials promoting our business in all media.
  16. Data and Analytics. We shall be permitted to: (i) collect and aggregate data generated through the use of our Solutions together with data we have obtained from other websites for the purpose of (i) performing internal statistical analysis of the results of the Services and (ii) disclosing the aggregated data (without identification of Client in any way) to prospective customers of ours. However, under no circumstances will we disclose segregated Client data to third parties.
  17. Client Representations and Warranties. Client represents and warrants that (i) Client owns all rights, title and interest in and to Client Content, and/or Client has a license with a sufficient right of sublicense, to so use, reproduce, and/or distribute such Client Content; (ii) the use of such Client Content in our Solutions will not infringe the Intellectual Property Rights, or any other rights of any kind whatsoever, of any third parties: (iii) the Client Content is not libelous or defamatory, and will  conform to applicable federal, state, and local laws; (iv) Client has the right to grant access to, and use of, any ad planners and similar product materials utilized by Client; and (v), that such access and use by us, in connection with this Agreement will not contravene the rights of any third parties.
  18. Cookies. We use cookies and similar technologies to collect and utilize data as part of its services. A cookie is a small file placed onto a device that enables features and functionality. Any browser visiting sites created or monitored by us may receive cookies. These cookies may display ads or host plugins or tags. Cookies help us learn more about how well our services perform. We use cookies to understand, improve, and research products, features and services. We also use cookies to obtain aggregated information about our clients.
  19. Third Party Scripts. Third-party scripts provide a wide range of useful functionality, making the web more dynamic, interactive, and interconnected. These scripts may offer functionality that is deemed important or essential to a Website. However, third-party scripts also come with many risks which include, without limitation (1) performance concerns, (2) privacy concerns, (3) security concerns, (4) unpredictability and continuity of technology, and (5) unintended consequences that can significantly impact load performance. Client understands and has been so advised that the implementation of third-party scripts can have unintended and negative consequences to the performance of a Website, cause security breaches and load function of a Website. We will not be liable for any reason in the performance, or the lack thereof, of any third-party technological implementation on Client’s Website.
  20. Website Technology. The Parties acknowledge and affirm Website development, software development and hosting technology is a dynamic industry with improvements and changes happening often, while we strive to meet the ever-changing development of the software industry, only those services as described in the statement of work of this Agreement will be delivered.
  21. Warranties; Disclaimers. We represent and warrant that it will perform the Services in a professional and workmanlike manner in accordance with the applicable Order Form, utilizing individuals with appropriate levels of knowledge, skill, training and experience for the tasks to which they are assigned. Except with respect to the foregoing, ALL SERVICES ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. We will not be liable to client for interruptions or degradations of services due to lack of internet capacity or equipment limitations, modifications, repairs, upgrades or relocations. We shall not be liable to client for interception of data through the Internet by third parties. We make no representation or warranty with respect to the content of our Solutions, whether the advertising claims about the Client’s business set forth in any Website created hereunder conform to applicable federal, state, and local laws, and we shall not be liable for any claims or damages resulting therefrom. Client shall have the sole responsibility for reviewing advertising claims.
  22. Limitation of Liability. EACH PARTY SHALL EACH HAVE AN OBLIGATION TO MITIGATE ITS DAMAGES. CLIENT’S SOLE REMEDY FOR BREACH OF ANY WARRANTIES OF US HEREUNDER IS THE REPAIR OR REPLACEMENT OF NON-CONFORMING SERVICES. EXCEPT FOR INDEMNIFICATION CLAIMS UNDER SECTION 22 BELOW, IN NO EVENT SHALL WE BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE FEES ACTUALLY PAID BY CLIENT TO US DURING THE 6 MONTHS PRECEDING THE CLAIM, FOR SERVICES PROVIDED HEREUNDER. IN NO EVENT SHALL WE BE LIABLE FOR ANY DAMAGES, ATTORNEY’S FEES OR OTHER EXPENSES ARISING FROM INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS BY THE CLIENT CONTENT . IN NO EVENT SHALL WE BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR INTERRUPTION OF BUSINESS, WHETHER SUCH DAMAGES ARE ALLEGED IN TORT, CONTRACT, INDEMNITY, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN APPRISED OF THE POSSIBILITY OF SUCH DAMAGES.
  23. Indemnities. We agree to indemnify, defend and hold Client harmless with respect to any claims or actions by third parties against Client to the extent alleging libel, slander, piracy, copyright infringement, or invasion of privacy by the Custom Content, except where any such claim or action arises out of Client Content. Client agrees to indemnify, defend and hold us harmless with respect to any claims or actions by third parties against us based upon (i) any Client Content; (ii) any alteration made to our Solutions, Custom Content, or Licensed Materials by Client (or upon Client’s instructions); or (iii) arising out of the operation of Client’s business and/or the distribution or sale of Client’s products or services.
  24. Term.  The term of this Agreement shall commence upon the Effective Date and shall continue for the “Initial Term” as indicated in the Term section of the agreement.  We offer several subscription terms. By subscribing, you agree to pay the applicable fees as outlined in the Pricing section of the Agreement.  All subscriptions automatically renew upon the end of the initial subscription term unless explicitly canceled thirty days prior to the renewal date (each a “Renewal Term”). The Initial Term and any Renewal Term are collectively referred to herein as the (“Term”).   During the Notice Period, each party’s rights, duties and responsibilities shall continue up to the effective date of termination, including any and all fees due to us.  We reserve the right to modify subscription fees, providing reasonable prior notice to affected subscribers. Any changes to fees will take effect upon the next applicable billing cycle.  Notices should be sent to 3002 Dow Avenue, Suite 408, Tustin, CA 92780, ATTN: Legal. Emails should be sent to terms@jazel.com,
    ATTN: Legal.
  25. Termination. In the event that either party shall be in breach of any provision of this Agreement (including non-payment of any fees due hereunder), the non-breaching party may terminate this Agreement by providing the breaching party with thirty (30) days written notice of breach, setting forth with reasonable specificity in such notice the nature of the breach and providing the breaching party with an opportunity to cure the breach within such time period given by non-breaching party. Further, either party may terminate this Agreement immediately by written notice in the event that the other party commences a bankruptcy proceeding or is subject to appointment of a receiver over its property. Finally, we may terminate this Agreement upon five (5) business days’ written notice in the event that we reasonably determine that Client’s use of the Services is in any way deceptive, misleading, unfair, or otherwise in violation of any law.
  26. Amendments. Any amendments to this Agreement must be in writing signed by us and Client.
  27. Notices. Any notice shall be deemed given three (3) days after mailing if properly addressed on the day of mailing or, if notice is by email or fax, on the next day following the day notice is emailed or faxed to the addresses specified in the Order Form. Couriered notices shall be deemed delivered on the date that the courier represents that delivery will occur.
  28. Governing Law. This Agreement is governed by and shall be construed according to the laws of the State of California without regard to conflicts of laws provisions. The prevailing party in any action brought to enforce any term of this Agreement shall be entitled to recovery of its reasonable attorney’s fees and actual costs incurred therein. The parties agree that jurisdiction and venue for all matters related to this Agreement shall be vested exclusively in the federal, state, or local courts within Orange County, California.
  29. Force Majeure. Neither party shall be responsible for, or liable to each other for, the actions of internet systems and service providers or acts of God that create delays or interruptions of services. Performance by either party of obligations its hereunder (excluding payment obligations) shall not be deemed to be in default, or considered to be a default, where delays or defaults are due to force majeure events beyond the control of such party, including, without limitation, war, insurrection, strikes, lockouts, riots, floods, earthquakes, fire, acts of god, acts of any public enemy, pandemic, epidemic or quarantine, lack of transportation, weather-caused delays, and/or an inability to secure necessary labor (each a “Force Majeure Event”). A party whose performance is impeded by a Force Majeure Event shall provide prompt notice to the other party and   shall take prompt and reasonable action to overcome such impediment.
  30. No Assignment. Client may not assign this Agreement without our prior written consent. Moreover, Client’s licenses set forth herein shall not be assignable without the consent of us, which consent shall not be unreasonably withheld or delayed; provided, however, such licenses may be assigned without consent if Client engages in a sale or other disposition of the entire assets of the line of business for such the relevant Services were performed. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective executors, administrators, heirs, successors, and assignees.
  31. Entire Agreement, This Agreement (including the Statement of Work) constitutes the entire Agreement between us and Client. This Agreement supersedes all prior agreements.
  32. Severability. In the event any provision of this Agreement is found to be unenforceable under applicable law, the remaining provisions of this Agreement shall remain in full force and effect and shall be enforced to the extent permitted by law consistent with the intent of the parties.
  33. Counterparts This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.