Branding Session Subscription Service Agreement


SCHEDULE A GENERAL TERMS AND CONDITIONS


1. Service Agreements. This Schedule A, General Terms and Conditions (“General Terms and Conditions”), contains the general terms and conditions governing the relationship between the parties as part of any related Service Agreement.


2. Term. The term of each Service Agreement shall begin as of the Effective Date of such Service Agreement and continue for the term specified on such Service Agreement. The term of each Service Agreement shall automatically extend for the Renewal Term specified on such Service Agreement, unless such Service Agreement is terminated by either party by written notice of termination at least thirty (30) days prior to the expiration of such term then in effect, or until otherwise terminated pursuant to the provisions of such Service Agreement or these General Terms and Conditions.


3. Services. During the term of each Service Agreement, Seller shall provide Customer the Services described on such Service Agreement. The Services shall be provided by Seller in accordance with the timeline, if any, set forth on such Service Agreement. Customer shall satisfy all of Customer’s obligations, if any, set forth on such Service Agreement.

Except as otherwise provided on a Service Agreement, Customer shall be responsible for providing the hardware, software and materials and for providing Seller with the information and access to Customer’s facility as are necessary for Seller to render the Services.

Except as otherwise provided on a Service Agreement, Customer shall be responsible for the application, operation, maintenance and support of its systems, hardware and software and all components thereof including, but not limited to, the implementation of appropriate procedures, training and safeguards and routine backups. Except as otherwise provided on a Service Agreement, to the extent that Seller or any third party manufacturer specifies any preventative maintenance with respect to the Services, Customer shall be responsible for such maintenance.

From time to time, Customer may request that Seller provide additional or amended Services not covered by an existing Service Agreement, and the parties hereto may, but are not required to, agree to a change order for Services either by amending an existing Service Agreement or by entering into a new Service Agreement. Such change order, if executed, will specify the Services to be provided by Seller and terms for such Services, including, but not limited to, price terms.


4. Compensation. Customer shall compensate Seller for the Services in accordance with the terms and payment schedule set forth on each Service Agreement. Customer shall make payments to Seller in accordance with such payment schedule and within thirty (30) days after receipt of an accurate invoice from Seller showing the value of the Services completed. Such invoice shall also itemize any reimbursable expenses. Customer shall also pay any sales, use, value-added, or other tax or charge imposed by any governmental entity upon the sale, use or receipt of the Services. Late payments shall accrue interest at the rate of one and one-half percent (1.5%) per month, or the maximum rate allowed by applicable law, whichever is lower. Except as expressly set forth on a Service Agreement, Seller shall be responsible for all expenses incurred by Seller under such Service Agreement. To the extent that the reimbursement of any travel-related expenses is authorized on a Service Agreement, Customer shall reimburse Seller for all reasonable expenses incurred by Seller for travel, lodging and sustenance when Seller is required to perform Services at locations other than Seller’s offices.


5. Warranties. SELLER MAKES NO WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED REGARDING THE FUNCTIONALITY OF HARDWARE OR SOFTWARE, BUT INSTEAD RELIES ON THE WARRANTIES PROVIDED BY THE MANUFACTURER OF EACH PRODUCT. EXCEPT AS EXPRESSLY STATED IN ANY SERVICE AGREEMENT OR THESE GENERAL TERMS AND CONDITIONS, SELLER DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.

Seller hereby warrants that any products or materials to be installed by Seller under any Service Agreement shall be performed or installed by Seller in a workmanlike manner, consistent with generally prevailing industry standards for comparable services, and in compliance with the requirements of such Service Agreement.


6. Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE TO CUSTOMER, ANY EMPLOYEE, AGENT OR CONTRACTOR OF CUSTOMER, OR ANY THIRD PARTY, FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, OR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO ANY SERVICE AGREEMENT OR THESE GENERAL TERMS AND CONDITIONS EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. SELLER’S LIABILITY TO CUSTOMER UNDER ANY SERVICE AGREEMENT AND THESE GENERAL TERMS AND CONDITIONS SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO SELLER PURSUANT TO SUCH SERVICE AGREEMENT FOR THE SERVICES DURING THE PRECEDING TWELVE (12) MONTHS.

Termination. The parties hereto may terminate any Service Agreement, and their respective obligations under such Service Agreement, as follows: (1) by mutual, written consent of the parties hereto; (2) by Seller, if Customer fails to pay to Seller any payments under any Service Agreement when due, as contemplated by such Service Agreement; (3) by any party hereto upon (30) days written notice if the other party hereto materially breaches any term of any Service Agreement or these General Terms and Conditions or otherwise fails to satisfy any promise or covenant made herein or in any Service Agreement, and further provided that such party shall fail to cure said breach or failure within such period; ( (4) by Seller, with or without cause, upon (30) days’ written notice of intent to terminate to Customer.


7. Notices. All notices, demands and communications required or permitted in connection with each Service Agreement shall be in writing and shall be deemed effectively given in all respects upon personal delivery or, if mailed, by registered or certified mail, postage prepaid, return receipt requested, or by overnight courier, the receipt of which is confirmed, addressed to the party hereto at the address set forth in the first paragraph of such Service Agreement (or such other address for a party as shall hereafter be specified by like notice). Either party hereto may from time to time change its notification address by giving the other party hereto prior written notice of the new address and the effective date thereof.


8. Relationship of the Parties. Neither any Service Agreement nor these General Terms and Conditions shall create, nor shall be represented by either party hereto to create, a partnership, joint venture, employer- employee, master-servant, principal-agent, or other relationship whatsoever between the parties hereto.


9. Successors and Assigns. Each Service Agreement shall benefit and be binding upon the parties hereto and their respective successors and assigns.


10. Force Majeure. Neither party hereto shall be deemed in default of any Service Agreement or these General Terms and Conditions to the extent that performance of its obligations (other than an obligation of payment) or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, civil disturbance, terrorism, acts or omissions of suppliers and other third parties, act of government, strikes, unavailability of material, facilities, telecommunications services or supplies or any other cause beyond the reasonable control of such party (each, a “Force Majeure Event”).


11. Modification or Waiver. The parties hereto may, by mutual agreement, amend any provision of any Service Agreement or these General Terms and Conditions, and any party hereto may grant consent or waive any right to which it is entitled under any Service Agreement or these General Terms and Conditions or any condition to its obligations under any Service Agreement or these General Terms and Conditions, provided that each such amendment, consent or waiver shall be in writing.


12. Governing Law. Each Service Agreement and these General Terms and Conditions shall be governed by and construed in accordance with the laws of the State of New York and the federal laws of the United States of America. The parties hereto consent to submit to the jurisdiction of the Courts of the State of New York for any actions, suits or proceedings arising out of or relating to each any Service Agreement or these General Terms and Conditions.


13. Severability. In the event that any provision of any Service Agreement or these General Terms and Conditions, or any word, phrase, clause, sentence or other provision thereof, should be held to be unenforceable or invalid for any reason, such provision or portion thereof shall be modified or deleted in such a manner so as to make such Service Agreement or these General Terms and Conditions as modified legal and enforceable to the fullest extent permitted under applicable laws.


14. Entire Agreement.  These General Terms and Conditions and each Service Agreement and other attachments thereto constitute the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements, purchase orders, understandings and negotiations, whether oral or written, between the parties hereto with respect to such subject matter.

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