This agreement (the “Terms and Conditions”) is made between Top Marketing Brands (including Top Roof Marketing and Top Jump Marketing) (collectively, “TMB” or “the Agent”) located at 1130 E. Main St. #165, Ashland, OH 44805 and Client (“the Client”).
Client hereby subscribes to and Agent agrees to provide services to Client (as hereinafter defined) in accordance with the terms and subject to the conditions set forth in these Terms and Conditions, including those set forth below.
SECTION 1. DEFINITIONS
“Client” means the company, person(s) or entity contracting TMB advertising and marketing services.
“Services” means the products and services that are ordered by Client under a Services Agreement and made available by Us.
“Service Agreement” means an invoice submitted by Us or other document signed by Us specifying the Services to be provided hereunder that is entered into between Client and Agent or any of Our Affiliates, including any supplements thereto. By entering into a Services Agreement hereto, You agree to be bound by the terms of these Terms and Conditions as if you were an original party hereto.
“Purchased Services” means Services that You or Your Affiliate purchase under a Service Agreement.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the Client entity.
“We,” “Us” or “Our” means the company “Top Marketing Brands” (TMB) and/or its Agent.
“You” or “Your” means the Client or other legal entity for which You are accepting these Terms and Conditions, and Affiliates of that Client entity.
SECTION 2: FEES AND PAYMENT PROCEDURES
2.1. Fees. You will pay all fees specified in Service Agreements. Except as otherwise specified herein or in a Service Agreement, (i) fees are based on Services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant term, unless otherwise agreed in writing.
2.2. Invoicing and Payment. You will provide Us with valid and updated credit card information. You authorize Us to charge such credit card for all Purchased Services listed in the Service Agreement for the initial service and any renewal service(s) as set forth in Section 4.2 (Term of Purchased Services). Such charges shall be made in advance, If the Service Agreement specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Service Agreement. Unless otherwise stated in the Service Agreement, invoiced charges are due upon receipt from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
2.3. Overdue Charges. Except as otherwise specified in a Service Agreement, if any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is less and/or (b) We may condition future service renewals and Service Agreements on payment terms shorter than those specified in Section 2.2 (Invoicing and Payment).
2.4. Suspension of Service and Acceleration. If any amount owed by You under this or any other agreement for Our services is thirty (30) or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. We will give You at least 10 days’ prior notice that Your account is overdue, in accordance with these Terms and Conditions, before suspending services to You. Any overdue payments not received within thirty (30) days after this notice will be assigned to Commercial Collection Corp. (“CCC”). CCC will provide all further collections efforts as well as report delinquent accounts to Experian.
2.5. No Waiver. We may decline to exercise Our rights under Sections 2.3 (Overdue Charges) or 2.4 (Suspension of Service and Acceleration). Any failure by Us to exercise or assert Our rights under Sections 2.3 or 2.4 with respect to a particular nonpayment or breach will not limit our rights under these Sections related to any other nonpayment, continued nonpayment, or other breach.
2.6. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 2.6, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
2.7. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
2.8. Direct Mail. Due to changing postage rates, NCOA expiration periods and other factors, each direct mail piece must be dropped within 90 days of the invoice issuance date. If they are not, TMB may offer to send back the unused mailers in a box to the Client and refund any postage that may have been paid in advance. Additionally, the Client understands that there is up to a 10% error rate in mailing list data and this may result in some mailers purchased not being delivered to their final destination.
SECTION 3: OUR RESPONSIBILITIES
3.1. Provision of Purchased Services. We will (a) make the Services available to You pursuant to these Terms and Conditions and the applicable Service Agreements, (b) provide Our standard support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased, except for: any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, rapid inflation, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, or denial of service attack.
3.2. Protection of Your data. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your data by Our personnel except (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 8.3 (Compelled Disclosure) below, or (c) as You expressly permit in writing.
3.3. Our Personnel. We will be responsible for the performance of Our personnel and their compliance with Our obligations under these Terms and Conditions, except as otherwise specified herein.
SECTION 4. TERM AND TERMINATION
4.1. Term of Agreement. These Terms and Conditions commence on the date You first accept it and continues until all services hereunder have expired or have been terminated as specified in this section.
4.2. Term of Purchased Services. The term of each service shall be as specified in the applicable Service Agreement. Except as otherwise specified in a Service Agreement, recurring services will automatically renew for additional periods equal to the expiring service term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant service term. The pricing during any automatic renewal term will be the same as that during the immediately prior term unless We have given You written notice of a pricing increase at least 30 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
4.3. Termination. Either party may terminate these Terms and Conditions for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
4.4. Refund or Payment upon Termination. If You terminate these Terms and Conditions in accordance with Section 4.3 (Termination), We will not refund You any prepaid fees covering the remainder of the term of all Service Agreements after the effective date of termination. If We terminate these Terms and Conditions in accordance with Section 4.3, You will pay any unpaid fees covering the remainder of the term of all Service Agreements. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination. If these Terms and Conditions are a renewal of or replacement of a prior Agreement, You agree that Your right to receive any unused funds, postage or other deposits from the prior agreement are waived, unless specifically addressed herein or in a Service Agreement.
SECTION 5. LIMITATION OF LIABILITY
5.1. Limitation of Liability. TMB’s LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS WILL EXCEED THE TOTAL AMOUNT PAID FOR SERVICES. THE ABOVE LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).
5.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL WE BE LIABLE FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
SECTION 6: NOTICES
6.1. Any notice or demand required or permitted under the terms of these Terms and Conditions shall be sufficiently given to either party if sent by certified or registered United States mail to such party at its address appearing on the party’s website, or to such other address as such party may have designated for such purpose by notice given in accordance with this Section 6.
SECTION 7: ASSIGNMENT
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign these Terms and Conditions in their entirety (including all Service Agreements), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate these Terms and Conditions upon written notice. In the event of such a termination, We will refund to You any prepaid fees covering the remainder of the term of all services. Subject to the foregoing, these Terms and Conditions will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
SECTION 8: CONFIDENTIALITY
8.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services; and Confidential Information of each party includes all Service Agreements (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms and Conditions, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with these Terms and Conditions and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms any Service Agreement to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 8.2.
8.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
SECTION 9: WARRANTIES AND REMEDIES
9.1. Representations. Each party represents that it has validly entered into these Terms and Conditions and has the legal power to do so.
9.2. Our Warranties. We warrant that (a) these Terms and Conditions, the Service Agreements accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (b) We will not materially decrease the overall security of the Purchased Services, (c) We will not materially decrease the functionality of the Purchased Services, and (d) the Purchased Services will not introduce Malicious Code into Your systems. For any breach of an above warranty, Your exclusive remedies are those described in Sections 4.3 (Termination) and 4.4 (Refund or Payment upon Termination).
9.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN THE SERVICE AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
SECTION 10: GOVERNING LAW AND JURISDICTION
These Terms and Conditions shall be governed, construed, and enforced in accordance with the laws of the State of Ohio, without regard to its conflict of laws rules.
You further agree that this contract between you and TMB will be governed by, subject to, and interpreted under the laws of Ohio. You hereby agree that if any claims, disputes, or causes of action between you and TMB relating to these terms of service are litigated, then they will be litigated exclusively in the federal or state courts of Ohio. You hereby agree and consent that Ohio shall be the exclusive venue for any such litigation.
SECTION 11: SEVERABILITY AND CONSTRUCTION
If any provision of these Terms and Conditions is determined to be invalid, illegal or unenforceable, the remaining provisions of these Terms and Conditions remain in full force, if the essential terms and conditions of these Terms and Conditions for each party remain valid, binding, and enforceable.
In the event of any conflict between these Terms and Conditions and any Service Agreement, the conflicting term of the Service Agreement will control.
SECTION 12: INDEMNIFICATION
The Client agrees to fully indemnify, defend, and hold TMB including its officers, directors, employees, contractors, agents, affiliates, future assignees or acquirers, against any claims, actions, demands, losses or damages, including attorneys’ fees, relating to Client’s content whether hosted on Client’s site or TMB, Client representation or Client’s products/services marketed, introduced or mentioned under this insertion order. Client further acknowledges there are no refunds of any sort or kind in cash and that this insertion order is for marketing and advertising services only. Client also acknowledges no assurances have been made and holds no expectation of a response or reaction based on the services performed by TMB. Client indemnification will survive the completion or termination of this insertion order.
Recognizing that transactions of the type contemplated in an engagement sometimes result in litigation and that the role of TMB is advisory, the Client agrees to indemnify and hold harmless TMB and its affiliates and their respective officers, directors, employees, contractors, agents and controlling persons within the meaning of Section 15 of the Securities Act of 1933, as amended (the “Act”) or Section 20(a) of the Securities Exchange Act (“Indemnified Parties”) and against any and all loss, charge, claim, damage, expense and liability whatsoever, including, but not limited to, all attorneys’ fees and expenses (hereinafter a “Claim” or “Claims”), related to or arising in any manner out of, based upon, or in connection with (i) any untrue statement or alleged untrue statement of a material fact made by the Client or any omission or alleged omission of the Client to state a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) any transaction, proposal or any other matter (items (i) and (ii) being hereinafter referred to as a “Matter” or “Matters”) contemplated by the engagement of TMB hereunder, and will promptly reimburse the Indemnified Parties for all expenses (including reasonable fees and expenses of legal counsel) as incurred in connection with the investigation of, preparation for or defense of any pending or threatened Claim related to or arising in any manner out of any Matter contemplated by the engagement of TMB hereunder, or any action or proceeding arising therefrom (collectively, “Proceedings”), whether or not such Indemnified party is a formal party to any such Proceeding. Notwithstanding the foregoing, the Client shall not be liable in respect of any Claims that a court of competent jurisdiction has judicially determined by final judgment (and the time to appeal has expired or the last right of appeal has been denied) which resulted solely from the negligence, gross negligence or willful misconduct of an Indemnified Party or the violation of any securities laws or regulations by an Indemnified Party. The Client further agrees that it will not, without the prior written consent of TMB settle compromise or consent to the entry of any judgment in any pending or threatened proceeding in respect of which indemnification may be sought hereunder (whether or not TMB or any Indemnified Party is an actual or potential party to such Proceeding), unless such settlement, compromise or consent includes an unconditional release of TMB and each other Indemnified Party hereunder from all liability arising out of such proceeding.
In order to provide for just and equitable contribution in any case in which (i) an Indemnified Party is entitled to indemnification pursuant to an Engagement Agreement but it is judicially determined by the entry of a final judgment decree by a court of competent jurisdiction and the time to appeal has expired or the last right of appeal has been denied) that such indemnification may not be enforced in such case, or (ii) contribution may be required by the Client in circumstances for which an Indemnified party is otherwise entitled to indemnification under the Agreement, then, and in each such case, the Client shall contribute to the aggregate losses, Claims, damages and/or liabilities in an amount equal to the amount for which indemnification was held unavailable. Notwithstanding the foregoing, TMB shall not be obligated to contribute any amount hereunder that exceeds the amount of fees previously received by TMB pursuant to an Agreement.
The Client further agrees that no Indemnified Party shall have any liability (whether direct or indirect, in contract or tort or otherwise) to the Client for or in connection with TMB’s engagement hereunder except for Claims that a court of competent jurisdiction has determined by final judgment (and the time to appeal has expired or the last right of appeal has been denied) resulted solely from the negligence, gross negligence or willful misconduct of such Indemnified Party or the violation of any securities laws or regulations by an Indemnified Party. The indemnity, reimbursement and contribution obligations of the Client set forth herein shall be in addition to any liability which the Client may otherwise have an shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Client or an Indemnified Party.
The indemnity, reimbursement and contribution provisions set forth herein shall remain operative and full force and effect regardless of (i) any withdrawal, termination or consummation of or failure to initiate or consummate any Matter referred to herein, (ii) any investigation made by or on behalf of any party hereto or any person controlling (within the meaning of Section 15 of the Securities act of 1933 as amended, or Section 20 of the Securities Exchange Act of 1934, as amended) any party hereto, (iii) any termination or the completion or expiration of an Engagement Agreement with TMB and (iv) whether or not TMB is or is not be called upon to render any formal or informal advice in the course of such engagement.
Unless otherwise defined, capitalized terms used herein shall have the meaning ascribed to them in the General Terms and Services ‘Agreement’.
