YOUR CREATIVE SOLUTIONIST

 

Standard Terms and Conditions

The Proposal for Services (hereinafter referred to as the “Quote”) is subject to the following Terms and Conditions:

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1. 1. Acceptance.  All marketing service requests (and related products and activities) placed with Your Creative Solutionist (the “Company”) whether pursuant to a Quote or if otherwise accepted by the Company, shall be subject to the terms and conditions herein set forth. Unless otherwise expressly agreed to in writing, these terms and conditions shall override any terms or conditions stipulated, incorporated or referred to by the customer named on the first page of the Quote (the “Customer”) in the Customer’s order or in any negotiations.  These conditions, along with the Quote and any attached schedules, embody the entire agreement between the Company and the Customer (the “Agreement”). Accordingly, any promises, representations or understandings not expressed herein shall be of no force or effect. No variation of, or addition to, these conditions shall be effective against the Company unless expressly accepted or confirmed in writing of subsequent date hereto and signed by the Company’s duly authorized employee on the Company’s behalf.  A Quote not accepted within thirty (30) days of delivery is subject to change in the Company’s sole discretion.

2. 2. Price. All prices shall be set forth in the Quote.  All other prices quoted by the Company shall be subject to change without notice.

3. 3. Payment, Property and Risk.  Payment shall be made to the Company within thirty (30) days of invoice and in accordance with any terms specified by the Company. Claims for defects, damages or shortages must be made by the Customer in writing no later than ten (10) calendar days after delivery.  If no such claim is made, the Company and the Customer acknowledge that the job has been accepted and finalized. By accepting the job, the Customer acknowledges that the Company’s performance has fully satisfied all terms, conditions, and specifications.  The Company’s liability will be limited to the quoted selling price of defective goods, without additional liability for special or consequential damages.  As security for payment of any sum due under the terms of an agreement, the Company has the right to hold and place a lien on all customer property in the Company’s possession.  This right applies even if credit has been extended, notes have been accepted, trade acceptances have been made, or payment has been guaranteed.  If payment is not made, the Customer is liable for all collection costs incurred including, attorney’s fees. In the event of the Customer’s failure to make payment of any invoice by the due date, the Company reserves the right to charge interest on the amount outstanding, in accordance with applicable law, for so long as payment remains due.

4. 4. Confidentiality.  Any proposals, visuals, quotes, reports and valuations, which have been produced by the Company are to be treated confidentially and must not be disclosed to any third party.

5. 5. Production Schedules.  Production schedules will be established and followed by both the Customer and the Company.  In the event that the Customer does not adhere to production schedules, delivery dates will be subject to renegotiation.

6. 6. Creative Work.  Sketches, copy, dummies, and all other creative work developed or furnished by the Company are the Company’s exclusive property until date of payment in full by the Customer.  The Company must give written approval for all use of this work and for any derivation of ideas from it.

7. 7. Accuracy of Specifications.  Quotes are based on the accuracy of the specifications and information provided by the Customer.  The Company can re-quote a job at time of submission if copy, film, tapes, disks, or other input materials do not conform to the information on which the original quotation was based.

8. 8. Maintenance.  It is the Customer’s responsibility to maintain a copy of the original files created by the Company and maintain its own marketing services, including websites, unless otherwise agreed to by the parties.  The Company is not responsible for accidental damage to media supplied by the Customer or for the accuracy of furnished input or final output.  Until the Company can evaluate digital input, no claims or promises are made about the Company’s ability to work with jobs submitted in digital format, and no liability is assumed for problems that may arise.  Any additional translating, editing, or programming needed to utilize customer-supplied files will be charged at prevailing rates and considered additional work.

9. 9. Cancellation and Termination. The Customer may terminate this Agreement only upon delivery of written notice to the Company and upon payment to the Company of reasonable and proper termination and cancellation charges including, but not limited to: (a) all costs theretofore incurred by the Company in connection with disposal services began yet uncompleted at the time of the Company’s receipt of such written notice of termination or cancellation; (b) an amount equal to the Company’s expected profits on all such cancellations; and (c) the expenses incurred by the Company by reason of such termination or cancellation, including reimbursement for any changes arising from termination of subcontract claims. All rights and remedies of the Company hereunder are cumulative and not alternative.

10. 10. WARRANTY. THE COMPANY WARRANTS THAT THE QUALITY OF SERVICES PROVIDED PURSUANT TO A QUOTE/PURCHASE ORDER SHALL BE CONSISTENT WITH COMMON MARKETING INDUSTRY STANDARDS AND SOUND BUSINESS PRACTICES. THE COMPANY MAKES NO OTHER WARRANTIES ABOUT THE SERVICES TO BE PROVIDED HEREUNDER, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY DOES NOT AUTHORIZE ANYONE TO MAKE A WARRANTY ON THE COMPANY’S BEHALF AND THE CUSTOMER MAY NOT RELY ON ANY STATEMENT OF WARRANTY AS A WARRANTY OF THE COMPANY. THIS SECTION SHALL SURVIVE ANY TERMINATION OF THE AGREEMENT.

11. 11. LIMITATION ON LIABILITY.  THE COMPANY’S ENTIRE LIABILITY AND THE CUSTOMER’S EXCLUSIVE REMEDIES WITH RESPECT TO ANY SERVICES PROVIDED TO THE CUSTOMER AND THE REMOVAL OF IT ASSETS FOR THE  CUSTOMER (INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO THE REMOVAL OF CERTAIN ASSETS, DELAY, TERMINATION, RESALE, INTERRUPTION, OR VALUATION OF ANY SUCH SERVICE) OR BREACH OF THE AGREEMENT, WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF CONTRACT, TORT, INCLUDING NEGLIGENCE, INDEMNITY OR STRICT LIABILITY, SHALL BE AS FOLLOWS: (I) FOR TANGIBLE PROPERTY DAMAGE OR PERSONAL INJURY CAUSED BY THE COMPANY’S GROSSLY NEGLIGENT ACTS OR OMISSIONS, OR FOR ANY DAMAGES ARISING FROM THE WILLFUL AND INTENTIONAL MISCONDUCT OF THE COMPANY, THE AMOUNT OF PROVEN DIRECT DAMAGES; AND (II) FOR ALL OTHER CLAIMS NOT COVERED BY THE FOREGOING SUBSECTION, THE AMOUNT OF PROVEN DIRECT DAMAGES NOT TO EXCEED AN AMOUNT EQUAL TO THE CHARGE APPLICABLE UNDER THE AGREEMENT FOR THE PERIOD DURING WHICH SERVICES WERE PROVIDED.   IN NO EVENT SHALL THE COMPANY’S AND ITS AFFILIATES’ CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID BY THE CUSTOMER TO THE COMPANY HEREUNDER. THIS SECTION SHALL SURVIVE ANY TERMINATION OF THE AGREEMENT.

12. 12. Indemnification and Defense. The Customer agrees to indemnify, defend and hold the Company, its affiliates and their respective employees, officers and directors harmless from and against any and all claims, damages, costs, expenses and other liabilities (including attorney’s fees and other costs of investigation and defense) caused by or arising out of the Customer’s acts or omissions related to the performance of its obligations under this Agreement or its use of the services described in the Quote.

13. 13. Copyrights.  The Customer warrants that the subject matter to be printed in any related marketing materials is not copyrighted by a third party.  The Customer recognizes that because subject matter does not have to bear a copyright notice in order to be protected by copyright law, absence of such notice does not necessarily assure a right to reproduce.  The Customer further warrants that no copyright notice has been removed from any material used in preparing the subject matter for reproduction.  To support these warranties, the Customer agrees to indemnify and hold the provider harmless for all liability, damages, and attorney fees that may be incurred in any legal action connected with copyright infringement involving the work produced or provided. The Customer further warrants that the work does not contain anything that is libelous or scandalous, or anything that threatens anyone’s right to privacy or other personal or economic rights.  The Customer will, at the Customer’s sole cost and expense, promptly and thoroughly defend the Company in all legal actions related to these matters and the Customer will use its best efforts to: (i) promptly notify the Customer of the legal action and (ii) give the Customer reasonable time to undertake and conduct a defense,provided, however, a failure to do either shall not release the Customer from its obligations to defend the Company as provided herein.  The Company reserves the right to use his or her sole discretion in refusing to print anything he or she deems illegal, libelous, scandalous, improper or infringing upon copyright law.

14. 14. Force Majeure. The Company shall not be liable for any loss or damage caused by non-performance or delay in performance of any of its obligations under the Agreement where the delay or nonperformance is due to any cause beyond the Company’s control, including (without limiting the foregoing): Acts of God, legislation, war, fire, flood, drought, failure of power supply, lock-out, strike or other action taken by employees or others in contemplation or furtherance of a dispute or owing to any inability to procure materials or services required for the performance of the Agreement. In such event the Company may terminate or suspend the Agreement with no liability for loss or damage thereby occasioned.

15. 15. No Assignment.  The Customer may not assign or transfer this Quote or any of the Customer’s rights or obligations hereunder without the prior written consent of the Company.

16. 16. Interpretation. This Agreement constitutes the sole and entire agreement between the Customer and the Company with regard to the subject matter hereof.  No course of prior dealings between the parties and no usage of trade shall be relevant or admissible to supplement, explain, or vary any of the terms of this Agreement.  Acceptance of, or acquiescence in, a course of performance rendered under this Agreement or any prior agreement shall not be relevant or admissible to determine the meaning of this Agreement even though the accepting or acquiescing party has knowledge of the nature of the performance and an opportunity to make objection. No representations, understandings, or agreements have been made or have been relied upon in the making of this Agreement other than those specifically set forth herein.

17. 17. Waiver. No term or provision herein shall be waived, and no breach or default excused, unless such waiver or consent is in writing, of subsequent date hereto, and signed by the party to which it is attributed. No consent by a party to, or waiver of, a breach or default by the other, whether expressed or implied, shall constitute a consent to or waiver of any subsequent breach or default.

18. 18. Partial Invalidity. If any provision of the Agreement shall be held to be invalid or unenforceable by a court of competent jurisdiction and venue, then such invalidity or unenforceability shall not invalidate or render the Agreement unenforceable, but rather the Agreement shall be construed as if not containing the invalid or unenforceable provision. However, if such provision is an essential element of the Agreement, then the parties shall promptly attempt to negotiate a substitute therefor.

19. 19. Governing Law.  This Agreement and any services and contracts performed hereunder shall be governed by the laws of the State of New Hampshire, without regard to conflicts of laws rules or rulings and regardless of location of Customer.  Any and all disputes, actions or litigation must be brought exclusively in New Hampshire federal or state and the Customer consents to the exclusive jurisdiction of the federal and state courts located in New Hampshire, submits to jurisdiction there, and waives the right to request a change of venue. Notwithstanding the foregoing, the Company may seek equitable relief or legal damages in any jurisdiction and venue of its choice.

20. 20. Taxes.  All amounts due for taxes and assessments will be added to the Customer’s invoice and are the responsibility of the Customer.  No tax exemption will be granted unless the Customer’s “Exemption Certificate” (or other official proof of exemption) accompanies the purchase order.  If, after the Customer has paid the invoice, it is determined that more tax is due, then the customer must promptly remit the required taxes to the taxing authority, or immediately reimburse the provider for any additional taxes paid.

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     Accepted and agreed to by:

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       ______________________________________     

       Correct Legal Business Name (“Customer”)

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      By: ______________________   

             Name:

             Title: