Terms and Conditions & Maintenance Agreement

TERMS AND CONDITIONS
These Terms and Conditions ("Agreement"), including all amendments or modifications to any of them, along with any policies, guidelines or amendments that may be presented to you from time to time, constitute the sole and entire Agreement between you, your employees and agents (collectively "Customer") and Promo Management, LLC. (collectively "Promo Management"), a Pennsylvania corporation, with respect to the matters covered hereby and govern your use of the Promo Management website, materials, products and services (collectively "Services", superseding any prior discussions, negotiations and agreements between Customer and Promo Management ("the parties") for the use of Promo Management Services and with respect to the subject matter hereof. By using the Services, Customer agrees to all of the provisions contained or referred to in this Agreement. Promo Management reserves the right to update or change the Agreement, in whole or in part, at any time in its sole discretion without notice. Your continued use of the Services after such changes are posted to the web site also constitutes your acceptance of the changes. The Agreement may not be amended or modified by Customer except by means of a written document signed or expressly assented to by Promo Management.
  1. Services – Promo Management agrees to provide to Customer the Services according to the plan selected by Customer upon submitting the order form and in exchange for payment of fees and full compliance with the Agreement.
  2. Customer agrees to be at least 18 years of age. Customer agrees to provide real, current and accurate information, including a valid and current email address, at all times. You are responsible for maintaining the confidentiality and security of your account and password. You are solely responsible for all activities that occur under your account and for any loss, theft or other destruction of any data as the result of any access to your account via the use of your account information, whether or not actually or expressly authorized by you. You may not use the Service for any illegal or unauthorized purpose. You must not, in the use of the Service, violate any laws in your jurisdiction, including, but not limited to, copyright laws.
  3. IP Addresses – Internet Protocol addresses assigned or provided by Promo Management remain the property of Promo Management, and the right to use the IP addresses belongs solely to Promo Management.
  4. Term, Fees and Payment – The initial term of the Agreement shall begin on the date that Promo Management generates an email notification of Customer's account activation. The term of the Agreement shall be one (1) month and will be automatically renewed each additional month beyond the expiration of the initial term subject to written cancellation by the Customer.
  5. Establishment of this service is contingent upon receipt of payment from Customer to Promo Management. Subsequent payments are due on the anniversary date of the month for that month's service, unless customer requests all monthly payments to be consolidated to one specific billing date.
  6. Fees for Service(s) ordered by Customer shall begin on the date of the initial order and that date shall serve as the monthly anniversary date for all future billings, including one-time fees, upgrades and additional services. Payment is due on the defined monthly recurring billing date of each month. Credit cards that are declined for any reason are subject to a $20.00 declination fee. Accounts that reach 7 days past due will be suspended and the Service will be interrupted. Service interrupted for non-payment is subject to a $50.00 reconnect charge. Accounts not paid by due date are subject to a $20.00 late fee. Promo Management is not responsible for any additional bank fees, interest charges, finance charges, over draft charges, or other fees resulting from charges billed by Promo Management. Currency exchange settlements will be based on agreements between Customer and the provider of Customer's credit card.
  7. Upgrade Fees: Upgrades ordered on the billing anniversary date will be billed for a full month service and will continue each month on the anniversary date. Upgrades ordered after the normal anniversary billing date will be pro-rated to the next anniversary date and billed as a one time pro-rata charge. Future charges will appear as full monthly fees added to your existing anniversary billing date.
  8. Additional Service Fees: Additional services ordered on the billing anniversary date will be billed for the full month service and will continue each month on the anniversary date. Additional services ordered after the normal anniversary billing date will be pro-rated to the next anniversary date and billed as a one time pro-rata charge. Future charges will appear as full monthly fees added to your existing anniversary billing date.
  9. One Time Fees: One time fees, such as setup fees, administrative fees, bandwidth overages and late fees are due and payable at the time they are incurred, and agreed upon in writing or via ticket with approval.
  10. Cancellation: Promo Management requires a three (3) day written cancellation notice prior to the anniversary billing date for discontinuance or downgrades of month to month services. Failure to supply the requisite three (3) days written notice of cancellation will result in a full billable monthly cycle prior to cancellation. Notice of written cancellation is preferred through the control panel located at https://www.PromoManagement.net/login. All customer data remaining after the cancellation date will be destroyed for security and privacy reasons.
  11. Refunds & Disputes: All services rendered by Promo Management are non-refundable. This includes, but is not limited to: setup fees, one time fees, monthly service fees, upgrade fees, additional service fees, administrative fees, and late fees. Customers seeking to resolve billing errors are instructed to open a billing ticket inside the control panel located at https://www.PromoManagement.net/login. Customer agrees not to chargeback any credit card payments for services rendered. A chargeback of payment for services rendered will result in an additional charge of $150 and will be subject to collection by an authorized collection agency.
  12. Uptime Guarantee – Promo Management guarantees network and server uptime of 99.9% during any 12-month period. Guarantee is not applicable in cases where downtime is the result of (1) scheduled maintenance, (2) customer behavior or customer applications, or (3) circumstances where Promo Management has no influence or control. Exceptions to the guarantee, in which no credits will be made, include, but are not limited to, (1) backbone provider failures, (2) restoration of backups, (3) movement of accounts, (4) issues at the fault of Customer or third party, (5) fiber-optic main line cuts, (6)DNS or Registrar issues with the Customer's domain name, (7) routing issues between the Customer's location and the data center, (8) issues with Customers's local ISP, (9) Denial of Service attack, (10) suspension of an account per our TOS, and (11) external issues such as acts of God, war, governmental bodies, insurrection, embargo, fire, strike, sabotage, flood and any other natural or unnatural events.
  13. For uptime credit requests, please submit a ticket to support by logging into your Promo Management account at https://www.PromoManagement.net/login, or sending an email to support@Promo Management.com. Credits only qualify as money back or a free month of service; the uptime guarantee extends no further. Promo Management may require proof of downtime.
  14. SSH – Promo Management allows SFTP/SCP access only. Complete SSH access is not allowed.
  15. CGI Scripts – All accounts have a cgi-bin. You can use any CGI scripts, but Promo Management reserves the right to disable any script that affects normal server operation or service to other customers. Promo Management is not responsible for your scripts and their functionality. Our support team cannot troubleshoot your scripts or third party scripts that you use on our servers.
  16. Automatic Updates – Some plans include automatic updates to WordPress and other installed software enabled by default. Promo Management is not responsible for any failures resulting from automatic upgrades made to Customer's account or website. If Customer's website relies on outdated plugins, themes, or any other legacy software, Customer should disable automatic updates through the control panel located at https://www.PromoManagement.net/login.
  17. Backups – Account data is backed up nightly, but Promo Management does not make any guarantees, either expressed or implied, as to data availability, data validity or backup regularity. Promo Management is not responsible for the loss or recovery of your data, even if due to the negligence of Promo Management. We suggest you make your own backups periodically.
  18. Bandwidth/Disk Usage – Customer agrees not to exceed the maximum amount of bandwidth or disk space allotted for his or her hosting account. Promo Management shall have the right to take corrective action if Customer's bandwidth or disk usage exceeds the allotted amount. Such corrective action may include the assessment of additional charges, disconnection or discontinuance of any and all Services, or termination of this Agreement, which actions may be taken is in Promo Management's sole and absolute discretion. Promo Management may, at its sole discretion, restrict, suspend or terminate Customer's account. Customer shall not be entitled to a refund of any fees paid in advance prior to such action. Bandwidth and disk space overage is billed at $2.00 per gigabyte over the allotted amount.
  19. Server abuse/System resources – Promo Management has the right to suspend or terminate any account that utilizes an excessive or unacceptable amount of system resources, unless customer upgrades the account or significantly reduces resource usage. Promo Management has sole discretion in determining what constitutes an excessive or unacceptable amount of system resources.
  20. Copyright Infringement DMCA – Promo Management will respond to all reports of infringement that are formatted in accordance with the Digital Millennium Copyright Act and any other applicable copyright laws. Notices of infringement that do not comply with this act will not be processed. We will act in accordance with the DMCA when handling infringement reports.
  21. If you believe that your work has been copied and posted on the Promo Management Services without your permission or in any way that constitutes copyright infringement, please provide Promo Management with the following information: a description of the copyrighted work that you claim has been infringed; a description of where the material you claim is infringing is located on the Promo Management Service; your address, telephone number, and email address; and a written statement by you stating that you have a good faith belief that the disputed use is not authorized by you, your agent, or the law; and a statement by you, made under penalty of perjury, that you own the claimed infringing material together with any evidence of such ownership. Please contact Promo Management at the following address:
  22. Promo Management, LLC
  23. Attn: Copyright Infringement
  24. Lansdowne, PA 19050
  25. Intellectual Property – Customer acknowledges that Promo Management owns all right, title and interest in and to the Promo Management Services, including without limitation all intellectual property rights (“Promo Management Rights”), and such Promo Management Rights are protected by U.S. and international intellectual property laws. The Promo Management Rights include rights to: (a) the Promo Management Services developed and provided by Promo Management and all trademarks and other intellectual property associated therewith; and (b) all software associated with the Promo Management Services. You agree that you will not copy, reproduce, alter, modify, or create derivative works from the Promo Management Services or any content placed on the Promo Management Services by Promo Management or any third party.
  26. Disclaimer of Warranties – Promo Management does not monitor or control content sent through its facilities. Customer acknowledges and agrees that all use of the Services and information obtained through use of Services is at customer’s sole risk. Customer is solely responsible for any damage to Customer's computer system or other device or loss of data that results from the use of Services.
  27. Customer acknowledge that the Services are provided on an “as is” and “as available” basis. To the extent permitted by applicable law, Promo Management is not responsible for and hereby expressly disclaims all warranties and conditions of any kind, whether express or implied, including, but not limited to the implied warranties and conditions of merchantability, fitness for a particular purpose and non-infringement.
  28. No advice or information, whether oral or written, provided to Customer by Promo Management or through or from the Services shall create any warranty.
  29. Promo Management does not warrant that (1) the Services will meet your requirements, (2) the Services will be uninterrupted, timely, secure or error-free, (3) the results may be obtained from the use of the Services will be accurate or reliable, (4) the quality of any products, services, information or other material purchased or obtained by Customer through the Services will meet your expectations, and (5) any errors in the Services will be corrected.
  30. Promo Management shall not be responsible for any delays, errors, loss of data, failure to perform, interruptions or disruptions in the Services caused by or resulting from acts of God, acts of third parties, omissions or conditions beyond Promo Management's reasonable control.
  31. Limitation of Liability – You expressly understand and agree that Promo Management shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Promo Management has been advised of the possibility of such damages), resulting from: (i) the use or the inability to use the Service; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the Service; (iii) unauthorized access to or alteration of your transmissions or data; (iv) statements or conduct of any third party on the Service; (v) or any other matter relating to the Service.
  32. Notwithstanding anything else in the Agreement to the contrary, the maximum aggregate liability of Promo Management and any of its employees, agents or affiliates, under any theory of law (including breach of contract, tort, strict liability, and infringement) shall be a payment of money not to exceed the amount payable by customer for three months of service.
  33. Some jurisdictions prohibit the exclusion or limitation of liability for consequential or incidental damages, and in such jurisdictions, Promo Management's liability shall be limited to the greatest extent permitted by law.
  34. Indemnification – Customer agrees to defend, indemnify, save and hold Promo Management, its directors, investors, employees, officers, attorneys, agents, affiliates, sponsors, subsidiaries, advertisers, partners and co-branders and their respective officers and employees harmless from and against any and all liabilities, causes of action, lawsuits, penalties, obligations, losses, damages, fines, punitive damages, amounts in interest, claims, demands, expenses and disbursements of any kind and natures whatsoever, including reasonable attorneys' fees and court costs, (“Liabilities”) asserted against Promo Management, its agents, its customers, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by customer, its agents, employees or assigns. Customer agrees to defend, indemnify, save and hold harmless Promo Management against Liabilities arising out of:
    • any injury to person or property caused by any products sold or otherwise distributed in connection with Promo Management’s Server;
    • any material supplied by Customer infringing or allegedly infringing on the proprietary rights of a third party;
    • copyright infringement;
    • any defective product which Customer sold on Promo Management Server.
  35. Promo Management shall be the sole judge of what violates this Policy. The customer agrees to limit the liability of Promo Management to the amount paid for service.
  36. Governing Law and Choice of Venue – The Terms of Service and the relationship between you and Promo Management shall be governed by the laws of the State of Tennessee without regard to its conflict of law provisions. Customer agrees to submit to the personal and exclusive jurisdiction of the courts located within the County of Lansdowne, PA.
  37. Survival – All terms and conditions of this Agreement that should by their nature survive termination of this Agreement shall so survive.
  38. Severability – In the event that any provision of this agreement is deemed invalid or unenforceable in court, such invalidity and unenforceability shall not affect the validity of any other provisions of the agreement, and such invalid provision will be considered severed from the agreement. However, if the court finds that limiting such an invalid provision would make it valid and enforceable, then such provision shall be deemed to be written, interpreted and enforced as so limited. Such provision may be amended or replaced with one that is valid and enforceable and which achieves, to the extent possible, the original objectives and intent of the parties as reflected in the original provision.
  39. Cancellation – Customer may cancel his account at any time via the Promo Management website. The cancellation will take effect immediately and the Customer's account will be immediately removed. All accounts must be paid in full before cancellation can be completed.
  40. Termination/Suspension – Promo Management may suspend Services to Customer without notice and without liability at any time for any reason, including, but not limited to, (1) violations of the Agreement, (2) failure of Customer to cooperate with any reasonable investigation of any suspected violation of the Agreement, (3) as necessary to protect its network and its other customers, (4) default on payment, or (5) as requested by a law enforcement or regulatory agency.
  41. Promo Management may terminate this Agreement prior to expiration of the term without notice and without reason at any time for any reason, including, but not limited to, (1) upon ten (10) days notice if Customer is overdue on the payment of any amount due under the Agreement, (2) material violations of any other provision of the Agreement and failure to remedy the violation within thirty (30) days of a written notice from Promo Management describing the violation, or (3) upon one (1) days notice if Customer's Service is used in violation of a material term of the Agreement more than once.
  42. No Waiver – The failure of Promo Management to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
  43. No Agency – No part of this Agreement shall be interpreted as creating any agency, partnership or other form of joint enterprise between you and Promo Management.
  44. Force Majeure – Promo Management shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond Promo Management’s control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
  45. Notices – Notices to Customer shall be given via email. Notices to Promo Management under the Agreement shall be given via postal mail to Promo Management, LLC. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. You agree that Promo Management may provide you with notices, including those regarding changes to the Agreement, by email, postal mail or via the Promo Management web site.
  46. Assignment – Customer may not transfer or assign this Agreement or your rights hereunder, without the express written consent of Promo Management. Promo Management may assign all or part of its rights, benefits, interest, obligations and liabilities in connection with all or parts of the Agreement to any party.
  47. No third party beneficiaries – Customer agrees that there shall be no third party beneficiaries to this agreement.
  WEBSITE MAINTENANCE AGREEMENT This Maintenance Agreement ("Agreement") is hereby entered into between you, your employees and agents (collectively "Customer") and applies to the purchase of all Monthly Website Maintenance Services (hereinafter collectively referred to as "Maintenance Services") ordered by Customer.
  1. Term and Termination – This Agreement shall be effective as of the time frame Customer signs up for Maintenance Services. This Agreement may be terminated by either party upon written notice to the other, if the other party breaches any material obligation provided hereunder and the breaching party fails to cure such breach within thirty (30) days of receipt of the notice. This Agreement may be terminated by Promo Management (i) immediately if Customer fails to pay any fees hereunder; or (ii) if Customer fails to cooperate with Promo Management or hinders Promo Management's ability to perform the Maintenance Services hereunder.
  2. Maintenance Services – Promo Management agrees to provide Customer with Maintenance Services as described in this Agreement. Maintenance Services include:
    • Updates to text, images, and other minor changes to Customer's website pages.
    • Upgrades to Customer's content management system, including plugins and themes.
    • Removal of malware, spam and malicious code from Customer's website.
    • Recovery of files or email from backups, if available.
  3. Fees; Limitations on Refunds and Cancellation Fees – Customer agrees to pay Promo Management any and all fee(s) as billed in accordance with this Agreement. The fee(s) must be received prior to the start of any Maintenance Services. THE CUSTOMER FURTHER AGREES THAT, IN THE EVENT OF ANY TERMINATION OF THIS AGREEMENT BY CUSTOMER, NO REFUNDS SHALL BE GIVEN UNDER ANY CIRCUMSTANCES WHATSOEVER. THE CUSTOMER FURTHER AGREES TO PAY UPON CANCELLATION THE AMOUNT OF ANY CANCELLATION FEES OR OTHER AMOUNTS DUE TO Promo Management AS PROVIDED IN THE AGREEMENT. Promo Management IS HEREBY AUTHORIZED TO CHARGE CUSTOMER'S CREDIT CARD ACCOUNT OR OTHER PAYMENT MECHANISM FOR ANY AMOUNTS OWED FROM TIME TO TIME BY CUSTOMER TO Promo Management.
  4. Customer Responsibilities – For the purposes of providing these services, Customer agrees:
    • To provide Promo Management with access to its web sites for creating new pages, and making changes for the purpose of providing Maintenance Services.
    • To properly convey to Promo Management the information that needs to be changed or added.
  5. Customer Acknowledgements – Customer understands, acknowledges and agrees that:
    • Only one (1) hour of time for Maintenance Services is allowed per month, billed in fifteen (15) minute increments.
    • Any work that exceeds one (1) hour will be billed on an hourly basis of $100 per hour.
    • Web page updates exclude, but are not limited to, image editing, graphic design, graphic editing, database design, database changes, programming, and search engine optimization.
    • Promo Management has no control over the policies of search engines or directories with respect to the type of sites and/or content that they accept now or in the future. Customer's web site(s) may be excluded from any search engine or directory at any time at the sole discretion of the search engine or directory entity.
    • Additional fees could be charged if the information provided has to be typed and exceeds the one (1) hour of time allotted.
    • If changes are made by Promo Management according to Customer's information, and the changes are not correct, additional time to remedy the changes fall under the one (1) hour of time allotted.
    • Unused time is not accumulative. Unused time does not transfer from month to month. Maintenance Services time is strictly month to month.
    • Promo Management is not responsible for rewriting sentences, restructuring paragraphs, or checking for typing errors, misspellings, etc.
    • Promo Management is not responsible for changes made to Customer's web site(s) by other parties.
    • Promo Management is not responsible for third-party plugins that may become unusable as a result of Maintenance Services performed.
    • Promo Management will not repair Customer's website(s) that became compromised, hacked, or otherwise defaced or infected prior to ordering Maintenance Services.
    • Recovery or repair of Customer's website is not guaranteed.
    • Availability of backups is not guaranteed.
  6. Additional Services – Additional services not listed herein will be provided for a fee of $100.00 per hour. Promo Management is not responsible for developing new content or writing new copy for Customer. Customer will be charged an additional fee for writing content, based on the hourly rate of $100.00 per hour.
  7. Indemnification – Customer shall indemnify and hold harmless Promo Management (and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys' fees and all related costs and expenses) incurred by Promo Management as a result of any claim, judgment, or adjudication against Promo Management related to or arising from (a) any photographs, illustrations, graphics, audio clips, video clips, text, data or any other information, content, display, or material (whether written, graphic, sound, or otherwise) provided by Customer to Promo Management (the "Customer Content"), or (b) a claim that Promo Management's use of the Customer Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, Promo Management must: (i) give Customer prompt written notice of a claim; and (ii) allow Customer to control, and fully cooperate with Customer in, the defense and all related negotiations.
  8. Disclaimer of All Other Warranties – Promo Management DOES NOT WARRANT THAT THE MAINTENANCE SERVICES WILL MEET THE CUSTOMER'S EXPECTATIONS OR REQUIREMENTS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE IS WITH CUSTOMER. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, Promo Management PROVIDES ITS SERVICES "AS IS" AND WITHOUT WARRANTY OF ANY KIND. THE PARTIES AGREE THAT (A) THE LIMITED WARRANTIES SET FORTH IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY EACH PARTY, AND (B) EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THIS AGREEMENT, PERFORMANCE OR INABILITY TO PERFORM UNDER THIS AGREEMENT, THE CONTENT, AND EACH PARTY'S COMPUTING AND DISTRIBUTION SYSTEM. IF ANY PROVISION OF THIS AGREEMENT SHALL BE UNLAWFUL, VOID, OR FOR ANY REASON UNENFORCEABLE, THEN THAT PROVISION SHALL BE DEEMED SEVERABLE FROM THIS AGREEMENT AND SHALL NOT AFFECT THE VALIDITY AND ENFORCEABILITY OF ANY REMAINING PROVISIONS.
  9. Limited Liability – IN NO EVENT SHALL Promo Management BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, LOST PROFITS, WHETHER OR NOT FORESEEABLE OR ALLEGED TO BE BASED ON BREACH OF WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY, ARISING UNDER THIS AGREEMENT, LOSS OF DATA, OR ANY PERFORMANCE UNDER THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. THERE SHALL BE NO REFUNDS. Promo Management MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES.
  10. Customer Representations – Customer makes the following representations and warranties for the benefit of Promo Management:
    • Customer represents to Promo Management and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Promo Management are owned by Customer, or that Customer has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Promo Management and its subcontractors from any claim or suit arising from the use of such elements furnished by Customer.
    • Customer guarantees to Promo Management and unconditionally guarantees that Customer's website has not been compromised, hacked, or otherwise defaced or infected prior to ordering Maintenance Services.
    • Customer guarantees any elements of text, graphics, photos, designs, trademarks, or other artwork provided to Promo Management for inclusion on the website above are owned by Customer, or that Customer has received permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and defend Promo Management and its subcontractors from any liability or suit arising from the use of such elements.
    • From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. Customer agrees that the client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend Promo Management and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Customer's exercise of Internet electronic commerce.
  11. Confidentiality – The parties agree to hold each other's Proprietary or Confidential Information in strict confidence. "Proprietary or Confidential Information" shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; (iii) is independently developed by the receiving party; or (iv) is subject to disclosure under court order or other lawful process. The parties agree not to make each other's Proprietary or Confidential Information available in any form to any third party or to use each other's Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party's proprietary or confidential information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, Promo Management and Customer acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the effective date.
  12. Force Majeure – Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party's reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.
  13. Relationship of Parties – Promo Management, in rendering performance under this Agreement, shall be deemed an independent contractor and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership. Customer does not undertake by this Agreement, or otherwise, to perform any obligation of Promo Management, whether by regulation or contract. In no way is Promo Management to be construed as the agent or to be acting as the agent of Customer in any respect, any other provisions of this Agreement notwithstanding.
  14. Notice and Payment – Any notice required to be given under this Agreement shall be in writing and delivered personally to the other designated party, mailed by certified, registered or Express mail, return receipt requested or by Federal Express. Either party may change its address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.
  15. Jurisdiction/Disputes – This Agreement shall be governed in accordance with the laws of the State of Tennessee. All disputes under this Agreement shall be resolved by litigation in the courts of the State of Tennessee including the federal courts therein and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.
  16. Agreement Binding on Successors – The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns.
  17. Assignability – Customer may not assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of Promo Management. Promo Management reserves the right to assign subcontractors as needed to this project to ensure on-time completion.
  18. Waiver – No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.
  19. Severability – If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
  20. No Inference Against Author – No provision of this Agreement shall be interpreted against any Party because such Party or its legal representative drafted such provision.
  21. Disputes – Customer and Promo Management agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation. Should the parties fail to resolve any such disagreement within ten (10) days, any controversy or claim arising out of or relating to this Agreement, including, without limitation, the interpretation or breach thereof, shall be submitted by either party to arbitration in Knox County, Tennessee and in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted by one arbitrator, who shall be (a) selected in the sole discretion of the American Arbitration Association administrator and (b) a licensed attorney with at least ten (10) years experience in the practice of law and at least five (5) years experience in the negotiation of technology contracts or litigation of technology disputes. The arbitrator shall have the power to enter any award that could be entered by a judge of the state courts of Tennessee sitting without a jury, and only such power, except that the arbitrator shall not have the power to award punitive damages, treble damages, or any other damages which are not compensatory, even if permitted under the laws of the State of Tennessee or any other applicable law. The arbitrator must issue his or her resolution of any dispute within thirty (30) days of the date the dispute is submitted for arbitration. The written decision of the arbitrator shall be final and binding and enforceable in any court having jurisdiction over the parties and the subject matter of the arbitration. Notwithstanding the foregoing, this Section shall not preclude either party from seeking temporary, provisional, or injunctive relief from any court.
Read and Understood – Each Party acknowledges that it has read and understands this Agreement and agrees to be bound by its terms and conditions. [/vc_column_text][/vc_column][/vc_row] _____________________________________________________________________________________________________________________________________ Promo Management (PM) will conduct itself in the most professional manner, and will do its utmost to unsure that every client is as happy as possible and well pleased with the marketing results. To ensure optimal success though please heed the professional suggestions and recommendations of the PM representative. 1. Prices are based upon receiving any and all information required of the client, which is to be used in the marketing project, in a digital format (i.e., text typed into a word processor, graphics given in graphic format, etc.) and given on a diskette or CDROM or emailed as attachments. However PM recognizes that a limited amount of data entry may be necessary on their end, though we reserve the right to charge the client for any such work and such as image scanning, retyping a handwritten document, etc. 2. Hours listed in the line items of this quote are for the purpose of quoting, to garner an amount to charge the client. However, these are based upon internal development hours, thus deemed consulting hours and not considered direct hours worked for the client (as if an employee). All rights to the programming code, development techniques, production techniques, and/or photographs and music or other creative element are owned exclusively by Promo Management or any of PM various partners that may have been involved (though these partners would only own the rights to their specific portion of involvement), and these techniques or programming code are the intellectual property (or outright property if an image or music clip) of the said company and are not shared or inherited by or with any client or successor. These products (i.e., the items being owned by the stated companies) are solely being licensed to the end client for use under their individual rules and restrictions. 3. Prices subject to change due to market price fluctuations in printing, media advertising, etc. These prices are guides, which are as close as possible. However due to forces beyond the control of PM, these prices may fluctuate from time to time. 4. Software and production companies whose products and services are used in the creation of any marketing project created by PM (such as Macromedia, Acrobat, INM, CIS, PM, etc.) reserve the right to include the proper credits to appear at the start of CD-ROMs and Videos (known as splash and credit screens), on CD-ROM and Video packaging (small and non-intrusive on back panel or flap), at the bottom of all websites (as a website developer credit), and/or underneath the corresponding technology used (such as beneath a plug-in or embedded object). 5. Software and production companies do not release the rights to their intellectual property (i.e., code for any programming project). These companies maintain full rights to all intellectual property (such as programming code), as do all such companies. These companies only license the use of their intellectual property within certain parameters and conditions. 6. Promo Management and any client accepting a proposal is bound to the laws of the State of PA; as well, both parties are bound first to the arbitration of the Better Business Bureau of Northwestern PA. 7. If the proposed project herein is placed on hold due to a situation on the clients end (the customer of PM), and the wait is longer than 7 days past the agreed upon date (agreed upon date as determined by PM and their customer for the delivery of some necessary element such as a logo graphic in the proper format), then the entire project may be placed on temporary hold by PM not to exceed 120 days. The 120 days is the full extent permitted by this notice, but is not likely to occur (as hold status could be as little as 0 days). However, as the nature of marketing projects is completely dependent upon timely responses from the client, PM is maintaining the right to place projects on temporary hold for up to 120 days if the client does not respond within the agreed upon timeframe with the materials that PM requires in order to continue developing said project. 8. Any monetary discounts offered for this project by PM on any proposal will only be honored as of the last payment made by the client, if and only if the client keeps to the original timeframe schedule and the project does not go into temporary hold status (as per #7 above). Timely responses from the client are critical to the success of any marketing project. If extraneous circumstances occur, PM may be inclined to waive #7 and #8, but this will occur only if it is possible according to their work docket and schedule and their partners work docket and schedule. If delays from the client and corresponding hold statuses from PM delay a project for more than 360 days, then the project can be re-evaluated at new PM pricing (as pricing may rise on a yearly basis). The client would then be responsible for any new price increases for the remaining sections to be completed. 9. Most of the graphic art development work (i.e., graphic design) has a maximum of two complete iterations (completely different designs) before more monetary compensation is required. PM and their partners strive to take into account exactly what the client desires from the start, thus only having to modify the first iteration (i.e., the first design concept) instead of needing to create a second iteration. However a maximum of two iterations is all that is permitted for the proposed price listed herein. Note though that only two (2)-design concept is created, monetary compensation is required if and when using more then the required graphic art designs. 10. Normal Payments schedule would be set up as follows: all costs to be paid in full, as well as º (one-half) of payment down at start of project (non-refundable***), then (one-half) payment 7 days before the website is completed. Other arrangements can be made, but must be discussed and agreed upon by all parties prior to initiation of this Contract. *[Project will not be started until an payment has been made] 11. This is a legally binding contract and is deemed fully accepted and enacted once the client has issued a down payment (as per #11 above Normal Payments). Thank You! We Appreciate Your Business! Please make check(s) payable to: Elijah Austin. AGREEMENT FOR DESIGN SERVICES This Agreement, dated Date (the “Effective Date”) for Design Services (the “Agreement”) is between Designer Name, of Designer Company(“Designer”), and Client Name, of Client Company (“Client”) (together known as the “Parties”), for the performance of said Design Services and the production of Deliverables, as described in Schedule A, attached hereto and incorporated herein by reference. The Parties agree as follows: 1. DEFINITIONS As used herein and throughout this Agreement: 1.1 “Agreement” means the entire content of this document, the Proposal document(s) (if any), Schedule A, and Schedule B, together with any other Supplement, Exhibits, or additional Schedules as may be attached hereto and incorporated herein by reference. 1.2 “Client Content” means all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables. 1.3 “Copyrights” means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under U.S. Copyright Law. 1.4 “Deliverables” means the services and work product, as mutually agreed upon by Client and Designer, to be delivered by Designer to Client, in the form and media specified in Schedule A. 1.5 “Designer Tools” means all design tools developed and/or utilized by Designer in performing the Services, including, without limitation, pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions (whether or not patentable), and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements. 1.6 “Final Art” means all creative content developed or created by Designer, or commissioned by Designer, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including, but not limited to, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Client Content, and Designer’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials, and as approved and accepted by Client. 1.7 “Final Deliverables” means the final versions of Deliverables provided by Designer and approved and accepted by Client. 1.8 “Preliminary Works” means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents, developed by Designer and which may or may not be shown and or delivered to Client for consideration. 1.9 “Project” means the scope and purpose of Client’s identified usage of the work product. 1.10 “Services” (or “Designer’s Services”) means all services and the work product to be provided to Client by Designer as described and otherwise further defined in the Deliverables. 1.11 “Third Party Materials” means proprietary third party materials which are incorporated into the Final Deliverables, including, but not limited to, stock photography or stock illustrations. 1.12 “Trademarks” means trade names, words, symbols, designs, logos or other devices or designs used to designate the origin or source of goods or services. 2. INTELLECTUAL PROPERTY PROVISIONS 2.1 Client Content. Client Content, including all pre-existing Trademarks and copyright material, shall remain the sole property of Client, and Client shall be the sole owner of all rights in connection therewith. Client hereby grants to Designer a nonexclusive, nontransferable license to use, reproduce, and modify the Client Content solely in connection with Designer’s performance of the Designer’s Services and the production of the Deliverables. 2.2 Third Party Materials. All Third Party Materials are the exclusive property of their respective owners. Designer shall inform Client of all Third Party Materials that may be required to perform the Design Services or otherwise integrated into the Final Art. Under such circumstances, Designer shall inform Client of any need to license. 2.3 Assignment of Copyrights. Upon completion of the Services and conditioned upon full payment of all fees, costs and out-of-pocket expenses due, Designer shall assign to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Designer as part of the Final Art and Final Deliverables for use by Client. Designer shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence all such assignments of intellectual property. 2.4 Assignment of Final Art. Upon completion of the Design Services, and subject to full payment of all fees, costs and expenses due, Designer hereby assigns to Client all right, title and interest, including without limitation, copyright and other intellectual property rights, in and to the Final Deliverables and the Final Art. Designer agrees to reasonably cooperate with Client and shall execute any additional documents reasonably necessary to evidence such assignment. 3. FEES In consideration of the Services to be performed by Designer, Client shall pay to Designer fees in the amounts and according to the Payment Terms and Schedule, as set forth in Schedule B, attached hereto and incorporated herein by reference. 4. TIMING AND ACCEPTANCE 4.1 Timing. Designer shall prioritize performance of the Services as may be necessary or as agreed upon by the Parties, and will undertake commercially reasonable efforts to perform the Services. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve and accept the Deliverables in writing (which will then become the Final Deliverables) or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Designer. 4.2 Acceptance. Client, within 3 business days of receipt of each Deliverable, shall notify Designer, in writing, of any failure of such Deliverable to comply with the specifications as agreed upon by the Parties, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Designer shall undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client within said stated time period, the Deliverable shall be deemed accepted. 5. CLIENT RESPONSIBILITIES Client acknowledges that he shall be responsible for performing the following in a reasonable and timely manner: (a) Coordination of any decision-making with parties other than the Designer; (b) Provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation; and, (c) Final proofreading pursuant to Provisions 4.1 and 4.2. 6. RECOGNITION Designer retains the right to reproduce, publish and display the Final Deliverables in Designer’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the sole purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Final Deliverables in connection with such uses. Either Party, subject to the other’s written approval, may include a link to the other Party’s website. 7. CONFIDENTIAL INFORMATION Each Party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other Party, including, but not limited to, Preliminary Works (“Confidential Information”). Each Party, its agents and employees shall hold and maintain in strictest confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations pursuant to this Agreement, except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality. 8. RELATIONSHIP OF THE PARTIES 8.1 Independent Contractor. Designer is an independent contractor, not an employee of Client or any company affiliated with Client. Designer shall provide the Services under the general direction of Client, but Designer shall determine the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture, and neither Party is authorized to act as agent or bind the other Party, except as expressly stated in this Agreement. Designer and the Deliverables prepared by Designer shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the Parties and the various terms and conditions of this Agreement. 8.2 No Exclusivity. The Parties expressly acknowledge that this Agreement does not create an exclusive relationship between the Parties. Client is free to engage others to perform services of the same or similar nature to those provided by Designer, and Designer shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Designer. 9. WARRANTIES AND REPRESENTATIONS 9.1 By Client. Client represents, warrants and covenants to Designer that (a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content; and, (b) To the best of Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties. 9.2 By Designer. (a) Designer hereby represents, warrants and covenants to Client that Designer will provide Designer’s Services and produce the Deliverables as identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services. (b) Designer further represents, warrants and covenants to Client that (i) The Final Deliverables shall be the original work of Designer; and, (ii) To the best of Designer’s knowledge, the Final Art provided by Designer does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. 10. INDEMNIFICATION 10.1 By Client. Client agrees to indemnify, save and hold harmless Designer from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances, Client shall promptly notify Designer in writing of any claim or suit. Client has sole control of the defense and all related settlement negotiations. Designer shall provide Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. 10.2 By Designer. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Designer agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Designer’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client. 11. TERM AND TERMINATION 11.1 This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and the Final Deliverables and the Final Art are delivered. 11.2 This Agreement may be terminated at any time by either Party effective immediately upon notice, or the mutual agreement of the Parties, or if any Party: (a) Becomes insolvent, files a petition in bankruptcy, or makes an assignment for the benefit of its creditors; or, (b) Breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within 20 days from receipt of written notice of such breach. 11.3 Upon expiration or termination of this Agreement: (a) Each Party shall return or, at the disclosing Party’s request, destroy the Confidential Information of the other Party; and, (b) Other than as provided herein, all rights and obligations of each Party under this Agreement, exclusive of the Services, shall survive. 12. GENERAL 12.1 Modification/Waiver. This Agreement may be modified by the Parties, but any modification of this Agreement must be in writing and executed by both Parties. Failure by either Party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights, nor shall a waiver by either Party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach. 12.2 Notices. All notices to be given hereunder shall be transmitted in writing either by facsimile or electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the addresses identified in the signature execution section below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of fax or email, upon confirmation of receipt. 12.3 No Assignment. Designer shall not assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of Client. 12.4 Governing Law. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and State of Residence without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. 12.5 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision. 12.6 Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement, nor shall such headings otherwise be given any legal effect. 12.7 Integration. This Agreement comprises the entire understanding of the Parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the Parties relating to the subject matter of this Agreement. By their execution, the Parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the last date of signature, and each signatory represents that it has the full authority to enter into this Agreement and to bind her/his respective Party to all of the terms and conditions herein.