CLIENT’S WAIVER AND RELEASE OF LIABILITY
Waiver: Buyer does hereby waive any claim against Seller, Seller’s employees, agents, servants, or representatives and does agree to hold them harmless for any actual, consequential, indirect, special, incidental, reliance, exemplary, or punitive damages, or loss, expense, or other injury arising from their efforts to advertise on behalf of Buyer’s business whether such damages are foreseeable or not and whether such claims are based on the alleged breach of any express or implied warranty, breach of contract, misrepresentation, negligence, or strict liability (including damages for loss of data, goodwill, reputation, business, money, or opportunity), even if Seller has been advised of the possibility of such damages except that Seller shall retain the responsibility and liability for providing the advertising services.
TERM AND TERMINATION
Term: This Agreement will commence on the Effective Date identified at the top of this Agreement, and will continue month to month unless terminated in accordance with Subsection “Termination” below.
Termination: The client must request a cancellation of services within 30 days of the next billing cycle due date in order to avoid a final charge for the monthly service as specified in the credit card authorization form provided to the client upon engagement. Setup fees are non-refundable.
MISCELLANEOUS PROVISIONS & CLAUSES
Amendment: This Agreement may be amended only by a written instrument executed by both parties.
Assignment: Neither party’s rights under this Agreement may be assigned by either party in connection with a merger, consolidation, sale, or otherwise, without the written consent of the other party. However, each party’s obligations under this Agreement are binding upon its respective heirs, purchasers, or other legal successors.
Attachments, Exhibits, and Appendices: Any attachments, exhibits, and/or appendices referred to in this Agreement are incorporated by reference as if fully set forth in this Agreement.
Non-Compete – Any non-compete clauses or agreements are null and void after service is canceled by either party. Any non-compete or no-competition agreements provided by the client and signed by the seller become null and void after service is terminated by the seller or client.
Conflicting Agreements: In the event that any provision of this Agreement conflicts with the term of any prior Agreement made between the parties, the terms of this Agreement shall prevail.
Disclaimer of Warranty: Except as otherwise expressly agreed to herein, Seller makes no warranty of any kind, either express or implied, regarding the quality, accuracy, reliability, or validity of the applications, software, data, or information related to Seller’s Advertising Services. Seller provides its products and services “as is” and specifically disclaims all warranties of merchantability and fitness for a particular purpose. Buyer understands, acknowledges, and agrees that it will use Seller’s products and services, and all aspects thereof, at Buyer’s sole risk.
Dispute Resolution: In the event of any dispute arises related to this agreement that the parties can settle between themselves, the parties agree to mediate and arbitrate. “Mediation” is a process in which parties attempt to resolve disputes by submitting it to an impartial mediator who will facilitate the resolution of the dispute, but who is not empowered to impose a settlement on the parties. The parties will equally divide the cost of the mediation. Failure to attend after being notified of the mediation conference without written notice to the mediator will result in a default. In the event that there is no resolution through mediation, the parties agree to arbitrate. “Arbitration” is a process in which the parties resolve a dispute by a hearing before a neutral party person or panel who decides the matter and whose decision is binding on the parties. Each party to any arbitration will pay its own fees, costs, and expenses, including attorney’s fees, and will equally share the arbitrator’s fees and administrative fees of arbitration. The Arbitrator may conduct the hearing in the absence of either party after being fully notified of such hearings.
Entire Agreement, Binding Effect: This Agreement contains the entire agreement and all the terms, conditions, and obligations governing the relationship of the parties, and supersedes all prior agreements, understandings, and representations relating to the subject matter of this Agreement, whether oral or written. This Agreement is binding upon the parties and their representatives, successors, and assigns.
Force Majeure: In the event the operations of either party are interrupted by war, fire, insurrection, labor unrest or troubles, riots, the elements, earthquakes, acts of God, or any other event beyond the reasonable control of such party, the provisions of this Agreement may be suspended for the duration of such interruption without liability to the other party. Should a substantial part of the services which either party has agreed to provide the other hereunder be interrupted pursuant to such event for a period in excess of thirty (30) days, either party will have the right to terminate this Agreement upon thirty (30) days written notice to the other.
Good Faith: The parties agree to carry out their respective responsibilities, duties, and activities under this Agreement in good faith. The parties understand and agree that it is not a breach of the covenant of good faith to terminate this Agreement without cause. The seller may or may not be working with clients in the same industry and that is not a breach of good faith.
Governing Law: This Agreement shall be governed by and construed, interpreted, and enforced in accordance with the laws of the State of Michigan, without giving effect to the conflicts-of-law provisions thereof, and the parties hereto agree to submit to the exclusive jurisdiction of the federal and state courts of the State of Michigan located in Oakland County; provided however the parties may bring an action in any appropriate jurisdiction as necessary to obtain injunctive or equitable relief hereunder. In the event of any dispute arising in connection with this Agreement, the prevailing party will be entitled, in addition to any other rights or remedies provided by Michigan law, to recover such party’s costs and expenses and reasonable attorney’s fees.
No Rights in Third Parties: This Agreement does not create any rights in or inure to the benefit of any third parties.
Relationship of the Parties: Nothing in this Agreement will be construed as creating a relationship of employer and employee, principal and agent, partnership, or joint venture between the parties. Each party will be deemed an independent contractor at all times and will have no right or authority to assume or create any obligation on behalf of the other party except as may be expressly provided in this Agreement.
Section Headings: The section and subsection headings used in this Agreement have been inserted for convenience of reference only and do not in any way modify or restrict the terms or provisions of this Agreement.
Severability: In the event that any provision of this Agreement is rendered invalid or unenforceable by any proper act of the federal, state, or local government, or declared null and void or unenforceable by any court of competent jurisdiction, the remainder of this Agreement shall remain in full force and effect and continue to bind the parties, except to the extent that the major purposes of this Agreement would be frustrated by such continuation.
Covenant Not to Sue: By signing the credit card authorization form the client agrees that he or she will never sue or attempt to sue the seller for any reason whatsoever.
Hold Harmless: Buyer agrees to indemnify and hold harmless of and from any and all claims, demands, losses, causes of action, damage, lawsuits, judgments, including attorneys’ fees and costs, to the extent caused by or arising out of or relating to the work of the Seller.
Breach of Contract: Breach of Agreement Any party that fails to perform the Agreement or performance of the Agreement does not comply with the provisions shall be deemed to be in breach of the Agreement. The defaulting party shall indemnify the non-defaulting party for any and all losses resulting therefrom, and the non-defaulting party may require the defaulting party to assume other liabilities for breach of the Agreement in accordance with the applicable regulations and laws.
Exclusion of Consequential Damages: In no event shall the Company be liable for any punitive, exemplary, or other special damages, or for any indirect, incidental or consequential damages (including lost profits or lost business opportunity), in each case arising under or in relation to this Agreement (including with respect to the performance or non-performance of any Services), whether arising under breach of contract, tort or any other legal theory, and regardless of whether the Company has been advised of, knew of, or should have known of the possibility of such damages.