PREMIERE GENERAL TERMS AND CONDITIONS
1. Services & Terms. Premiere Creative (hereinafter ‘Seller’) shall provide the services (‘Services’) set forth in detail on Seller’s Quotation Form (‘Quote’) to the party whose name appears on the Quote (‘Buyer’). The terms and conditions contained herein (‘Terms’) are attached to and made a part of each and every Quote and shall apply to the performance of Services by Seller. Buyer is responsible for all charges incurred as a result of Seller’s performance of Services, including charges that exceed the scope of the Quote, provided that Seller has notified Buyer that the scope is likely to be exceeded. Seller may modify these terms from time-to-time. Any modifications shall be effective immediately upon notice to Buyer which notice may consist of a general email to all of Seller’s customers and/or a general announcement on Seller’s website premierewebsite.com. If marketing services are contained in the Quote, the definitions, terms and conditions in this Agreement and the attached Appendix A Marketing Services, shall apply.
2. Quotations; Acceptance of Orders. Buyer’s signature on the Quote shall constitute Buyer’s acceptance of the agreement formed by the Quote (together with any applicable attachments), these Terms, and the attached Appendices (the ‘Agreement’). Any document or communication from Buyer that contains terms and conditions in addition to or inconsistent with this Agreement shall be void and unenforceable, unless accepted in writing by an authorized representative of Seller. All written quotations shall expire ten (10) days after the date issued unless otherwise specified in the quotation. A verbal quotation expires on the day that it was made.
3. Prices. Seller shall be compensated for the performance of Services according to the prices set forth in the Quote and any attachments. In the event that Buyer requests modifications or additions to the Services set forth in the Quote, Seller shall invoice Buyer for the cost of such additional or modified Services. Unless stated otherwise, prices do not include any: (a) property, sales, use, privilege or export taxes, custom duties or any other tax, fee or charge of any nature whatsoever imposed by any government authority on or measured by any transaction between the parties, (b) transportation costs, or (c) material surcharges. Seller’s fee schedule for performance of Services is available on the Fee Schedule page here: Appendix-B and incorporated by this reference.
4. Payment. Unless otherwise stated in the Quote, Buyer shall pay to Seller an amount equal to fifty percent (50%) of the total price of the project set forth in the Quote upon execution of this Agreement in United States Dollars. The remaining balance shall be due within five (5) days after the date of the final invoice. Past due amounts shall be charged interest at the rate of one and one-half percent (l.5%) per month. Invoices are due upon receipt. The first time that an invoice is paid late, the Buyer shall be charged a late fee in an amount equal to ten percent (10%) of that invoice. For each time thereafter that an invoice is paid late, the Buyer shall be charged a late fee in an amount equal to fifteen percent (15%) of that invoice. Buyer shall be responsible for all costs and expenses, including without limitation attorneys’ fees, collection fees, court costs, collection agency’s fees, and disbursements incurred by Seller to collect any amounts due from Buyer under this Agreement. In the event that Seller has provided credits or barter on invoices to Buyer and Buyer fails to pay such invoices when due, Buyer forfeits such credit and the full amount shall be due and payable without setoff or deduction. Buyer shall reimburse Seller for all costs, fees or expenses incurred to complete the Services, including but not limited to special fonts, stock photography, stock research, software, etc. Buyer shall be charged a transaction processing fee in an amount equal to three percent (3%) of the net amount of each transaction.
4.1 Credit Card Authorization. By providing Buyer’s credit card information to Seller, Buyer hereby authorizes Seller to initiate charges to the credit card for costs and fees incurred on Buyer’s account and invoiced to Buyer, since the last billing date. This includes any balance which may be outstanding on the account and Buyer authorizes monthly transactions for recurring monthly fees. Buyer understands that the amount charged may vary from month to month.
4.2 Travel & Expenses. Buyer shall reimburse Seller for all reasonable travel expenses incurred for travel to Buyer’s location(s), including the following: airfare (including fees charged to modify, cancel or rebook), baggage fees, travel insurance, lodging, parking, third party car services, taxis, rental cars, tolls, gas, and auto insurance. Seller shall use reasonable efforts to purchase airfare, lodging, rentals, etc. at the lowest price. For Seller’s time spent at a Buyer location, Seller shall be entitled to a Per Diem in the amount of $ per day to cover meals.
5. Title to Intellectual Property.
5.1 Seller Intellectual Property. To the extent that Seller’s Services result in the creation of original works of authorship or other intellectual property for Buyer, Seller shall retain all right, title and interest (including patent rights, copyrights, trade secret rights, mask work rights, trademark rights and all other intellectual property rights throughout the world) relating to all inventions, works of authorship, mask works, designations, designs, know-how, ideas and information made or conceived or reduced to practice, in whole or in part by Seller during the term of this Agreement that relate to the subject matter of, or arise out of the Services (collectively, ‘Deliverables’) until Buyer has paid all invoices in full. Only upon such payment in full shall all right, title and interest in and to the Deliverables pass to Buyer and at that time the Deliverables shall be deemed to be work-made-for-hire to the extent allowed by law. Notwithstanding the forgoing, Seller shall retain title to all source files used in creating Deliverables. Buyer shall retain title to all media assets owned, licensed or provided by Buyer to Seller for use in performance of Services (e.g., graphics, photos or text narrative for website(s), social media, video(s), etc., collectively “Media Assets”).
5.2 Third Party Intellectual Property. To the extent that Seller’s Services require use of Third Party images or photographs (“Third Party Intellectual Property”), Buyer acknowledges and agrees that all Third Party Intellectual Property is subject to the license terms authorized by the applicable Third Party.
5.3 Behavioral Content, Behavior Data & Software. Subject to the terms and conditions of this Agreement and in consideration of the payment of the license fees set forth in the Order Form, Seller hereby grants to Buyer a revocable, limited, non-exclusive, non-assignable, right and license during the Term to access and use Behavioral Content, Behavior Data & Software which is a collection of means HTML tags, JavaScript code, object code, plugins, or other code provided to Customer to enable usage of the Behavioral Content, Behavior Data & Software. The Behavioral Content, Behavior Data & Software is for use solely by Buyer, located at Buyer’s address as it appears herein. This license does not include: any resale or third-party commercial use of the Behavioral Content, Behavior Data or Software; any derivative use of Behavioral Content, Behavior Data & Software; any downloading or copying of account information for the benefit of Buyer, or any other individual or business; or any use of data mining, robots, or similar automated data gathering and extraction tools.
No Modifications, No Reverse Engineering. Buyer will not modify, port, create derivative works of, adapt or translate the Behavioral Content, Behavior Data & Software. Buyer will not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Behavioral Content, Behavior Data & Software delivered in object code. Notwithstanding the foregoing, decompiling the Behavioral Content, Behavior Data & Software delivered in object code is permitted solely to the extent the law governing the Order Form gives Buyer the right to do so to obtain information necessary to render the decompiled technologies interoperable with other software.
6. Confidentiality & Non-Disclosure.
6.1 Confidential Information. ‘Confidential Information’ means information of Seller which is not generally known to the public and which is used, developed, or obtained by Seller including Seller’s technical, trade secret, proprietary or similar information contained in plans, drawings, specifications, photographs and other documents and media including but not limited to: (a) computer software, including systems, applications, program listings, manuals and documentation (whether owned or licensed from third parties); (b) patent rights, copyrights, trade secret rights, mask work rights, trademark rights and all other intellectual property rights throughout the world) relating to any and all inventions, works of authorship, mask works, designations, designs, know-how, ideas and information made or conceived or reduced to practice, in whole or in part by Seller prior to entering into this Agreement; (c) the identity of Seller’s customers and suppliers and their confidential information (as applicable); and (d) all information in whatever form that has been identified to or is understood by the person receiving such Confidential Information disclosed or furnished by a disclosing party (‘Disclosing Party’) to a receiving party, its officers, directors, employees or agents (collectively, ‘Receiving Party’). All copies thereof, including without limitation any and all materials of any kind containing or embodying any Confidential Information, are the sole and exclusive property of the Disclosing Party. Disclosure of Confidential information by a Disclosing Party to a Receiving Party shall not be construed as granting to a Receiving Party either expressly or by implication, any right, title or interest of any kind in any Confidential Information. Upon a Disclosing Party’s request, Receiving Party shall promptly deliver to the Disclosing Party all of the Confidential Information in Receiving Party’s possession or under Receiving Party’s control, whether in written, electronically-readable or other form, including without limitation all copies or extracts thereof or based thereon.
6.2 Non-Disclosure Obligations. All Confidential Information shall be kept confidential by the Receiving Party and shall not be disclosed to any person or entity without the Disclosing Party’s prior written consent, except that the Receiving Party may disclose the Confidential Information or portions thereof to those of its Representatives who reasonably need to know such information for legitimate business reasons provided, however, that the Receiving Party shall be responsible for any breach of this covenant by it or any of its Representatives and shall indemnify and hold harmless the Disclosing Party and its officers, directors, employees and agents (collectively, the ‘Indemnified Parties’) from and against any costs, expenses or losses incurred or suffered by any of them as a result of such breach, including reasonable attorney’s fees and costs. The Receiving Party acknowledges and agrees that failure to comply with this Section shall cause the Disclosing Party irreparable harm and that there is no adequate remedy at law for such failure and the Receiving Party consents to the Disclosing Party’s unconditional right to obtain specific performance, injunctive relief and such other equitable relief as may be necessary to enforce these obligations and protect its rights. Seller’s right to seek and obtain any such relief is in addition to, and not in lieu of, any other remedy to which it is entitled under applicable law (including without limitation monetary damages). Notwithstanding anything to the contrary contained herein, for the purposes of marketing, publicizing or selling Seller’s services, Seller may disclose the general nature or category and scope of the Services, the nature of the Buyer’s business and the identity of the Buyer.
7. Non-Solicitation. Buyer acknowledges and agrees that Seller has a protectable business interest in Seller’s relationships with employees and independent contractors, therefore, Buyer agrees that for a period of three (3) years commencing on the last date on which Seller provided Services to Buyer, or the expiration of this Agreement (whichever is later) Buyer shall not (a) solicit for employment any employee or independent contractor employed by Seller, (b) advise or encourage any employee or independent contractor employed by Seller to terminate employment, or (c) knowingly interfere or attempt to interfere with the employment relationship between Seller and any of its employees or independent contractors who perform services for Seller. Notwithstanding the foregoing, general solicitations for employment (i.e., through job boards or general advertisements) and any employment relationship established as a result of responses to general solicitations for employment shall not be deemed a violation of this Agreement.
8. Term & Termination.
8.1 Term. The term of this Agreement commences on the Effective Date and shall continue in effect for a minimum period of one (1) year, or such longer period set forth in the Quote (“Term”). The annual subscription fee may be billed in advance or monthly but is due in full and cannot be canceled and fees are non-refundable. In the event that Buyer provides notice of its intent to terminate this Agreement prior to expiration of the Term, such notice of termination shall not relieve Buyer of the obligations to pay in full all sums due and owing to Seller as set forth in the Quote for the entire Term. Upon such notice, all amounts due during the Term shall become immediately due and payable without further notice from Seller. If the Quote or any invoice allows for payment over time, then such sums shall be accelerated and due on the date of the notice. If Seller is providing Marketing Services and Buyer terminates the Agreement prior to the expiration of the Term, then, in addition to immediately paying all amounts due under this Agreement, Buyer shall pay to Seller liquidated damages in the amount of Fifty Thousand Dollars ($50,000.00), which sum is not a penalty but an accommodation for losses, damage and/or or liabilities to Seller’s business or intellectual property rights, which would be difficult to quantify with a reasonable degree of certainty.
8.2 Termination. Seller may terminate this Agreement at any time upon thirty (30) days advance written notice (“Termination for Convenience”) to Buyer or immediately upon notice in the event of Default. In the event Seller notifies Buyer of Termination for Convenience, then Buyer shall have no further payment obligations after the effective date of such termination. The following shall constitute an event of Default: (a) failure to pay all or any part of any invoice when due, (b) failure to observe or faithfully perform any of its obligations under this Agreement, or (c) insolvency, bankruptcy, voluntarily filing or permitting the filing of a petition in bankruptcy, making an assignment for the benefit of creditors, voluntarily appointing or permitting the appointment of a receiver or guardian for purposes of liquidating assets or seeking any similar relief under any bankruptcy law or similar statute. If Buyer is unable to or fails to commence taking reasonable steps to cure an event of Default within thirty (30) days of the date of Seller’s notice, then this Agreement shall terminate immediately and all sums due or about to become due from Buyer to Seller shall become immediately due and payable. Nothing contained herein shall prevent Seller from exercising any legal or equitable remedy available to Seller under applicable law.
8.3 Renewal. The agreement to provide Marketing Services, if any, shall renew automatically on the anniversary date of this Agreement for up to four (4) consecutive one (1) year periods, unless either party provides written notice of its intent to terminate such services to the other party not less than ninety (90) days prior to the anniversary date.
8.4 Liquidated Damages. Buyer agrees that any act of sabotage or dishonesty toward Seller, or any disclosure in violation of Section 6, shall constitute and be treated as a material breach of this Agreement which will cause irreparable harm to Seller entitling Seller to seek, among other things, (i) recovery or disgorgement of the monies or other consideration received in connection with such disclosure, sabotage, or dishonesty, if any, (ii) recovery of attorneys’ fees incurred to enforce the terms of Section 6, and (iii) an amount equal to Fifty Thousand Dollars ($50,000.00), which amount is agreed upon by the Parties as liquidated damages and not as a penalty, and which sum amount has been computed, estimate and agreed upon as an attempt to make a reasonable forecast of probable actual loss because of the difficulty of estimating with exactness the damages which shall result from Buyer’s disclosure in violation of Section 6, or act of sabotage or dishonesty.
9. DISCLAIMERS. SELLER HEREBY DISCLAIMS ANY AN ALL REPRESENTATIONS, WARRANTIES OR GUARANTEES AS TO THE RELIABILITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY DELIVERABLE. SELLER DOES NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET BUYER’S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, OR (D) THE SERVICES OR DELIVERABLES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES AND ALL DELIVERABLES ARE PROVIDED STRICTLY ON AN ‘AS IS’ BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
IF SELLER IS ENGAGED TO PERFORM SEARCH ENGINE OPTIMIZATION SERVICES TO IMPROVE BUYER’S PAGE RANK, OR PLACEMENT IN SEARCH ENGINE RESULTS, DUE TO THE PROPRIETARY AND SECRETIVE NATURE OF SEARCH ENGINE OPERATIONS, SELLER CAN NOT AND DOES NOT MAKE ANY GUARANTEE OF ANY SPECIFIC OUTCOME OR LEVEL OF IMPROVEMENT.
IF SELLER IS ENGAGED TO ADDRESS REPUTATION MANAGEMENT CONCERNS SUCH AS NEGATIVE OR UNFLATTERING PRESS COVERAGE OR CONSUMER REVIEWS, DUE TO THE DYNAMIC NATURE OF ONLINE CONTENT, SAFE HARBORS FOR THIRD PARTY SERVICE PROVIDERS AND CONTENT PLATFORMS AND U.S. FIRST AMENDMENT PROTECTIONS, SELLER CAN NOT AND DOES NOT MAKE ANY GUARANTEE OF ANY SPECIFIC OUTCOME OR LEVEL OF IMPROVEMENT.
10. LIMITATION OF LIABILITY; EXCLUSION OF DAMAGES. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY RELATED TO THIS AGREEMENT, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR CERTAIN OTHER TYPES OF DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
SELLER SHALL HAVE NO LIABILITY FOR ADDITIONS, MODIFICATIONS OR DELETIONS TO ANY CONTENT OR FUNCTIONALITY OF THE BUYER’S WEBSITE, SOCIAL MEDIA ACCOUNTS, ONLINE MARKETING, OR OTHER ACCOUNTS BY ANY THIRD PARTY.
11. Internet Delays. Buyer acknowledges and agrees that Seller has no control over access to or the functioning of the Internet. Services and websites may be subject to unavailability, limitations, delays, or other problems inherent in the use of the Internet and electronic communications. In no event shall Seller have any liability for any such unavailability, delays or damages arising from such problems or for any claims or causes of action due to loss of data, ‘Hacking,’ ‘Phishing’ or other malicious third-party conduct, including malicious computer software.
12. Buyer’s Warranties. Buyer hereby represents and warrants that the content and information provided to Seller, including all Media Assets, is true, accurate, correct and complete. Buyer represents and warrants that Buyer has the full right and authority to: (a) enter into this Agreement, (b) provide any information, materials (including, but not limited to text, photos, graphics, video or other creative content), specifications or designs (‘Materials’) to Seller for use in the performance of Services, and (c) such Materials shall not infringe on any copyright, trademark, service mark, trade name, patent, trade secret or other intellectual property or proprietary right or violate any right of publicity or privacy, or libel, slander, defame or disparage, any third party (‘Third Party Rights’). Seller may immediately remove any Materials at any time without penalty or liability, upon receipt of notice form a third party that the Materials violate a third-party’s rights. If Buyer is a single-member LLC or single-shareholder corporation, the individual natural person signing on behalf of the Buyer (“Owner”) represents and warrants that Owner shall remain personally liable for the debts of Buyer and Owner acknowledges and agrees that Owner is providing a personal guarantee of Buyer’s liabilities incurred in any way related to this Agreement.
13. Indemnification. Buyer agrees to indemnify, defend and hold harmless the Seller, its affiliates, directors, officers, employees and agents from and against any claim, liability, obligation, loss, damage, judgment, cost or expense, including reasonable attorney’s fees suffered or sustained, whether or not a lawsuit or other proceeding is filed, that in any way relates to: (a) content provided by Buyer that violates of a third-party’s intellectual property, privacy or publicity rights; and (b) any breach or default by Buyer under any representation, warranty, covenant or other provision of this Agreement. The sole remedy for Client for any erroneous information posted by Seller shall be removal or correction of the information and Client shall have no right or claim for economic damages as a result of the posting of incorrect information. Seller shall promptly notify Buyer in writing of any Third-Party Claim and Buyer shall conduct the defense in any such third-party action arising as described herein at Buyer’s sole expense and Seller shall cooperate with such defense.
14. Force Majeure. Seller shall not be liable for any delay or failure to perform, delayed delivery or shipment, or for any damages or losses suffered by Buyer or any third party which are caused by, or in any manner arise directly or indirectly from any event or condition beyond Seller’s control including but not limited to: labor disturbances or disputes, embargos, riots, storms, fires, explosions, acts of God or public enemies, inability to obtain necessary labor or raw materials, malfunctions of machinery or equipment, changes in economic conditions, delays or interruptions in transportation (‘Force Majeure’). In the event of Force Majeure, the performance of Services or the applicable shipment date(s) shall be postponed until the resolution of the event given rise to such Force Majeure. If Seller’s performance is rendered permanently impossible or impracticable, either party may cancel the Agreement upon written notice to the other party and, upon such cancellation, Seller shall have no further liability to Buyer and Buyer shall be liable only for the pro-rated or allocated portion of Services completed, including without limitation all inventory and supplies not returnable for full credit or otherwise useable by Seller as of the date of such notice.
15. Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey without regard to the conflicts of laws provisions thereof. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable costs and attorney’s fees. Buyer hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the United States District Court for the Northern District of New Jersey, or the applicable state court located in the State of New Jersey, County of Essex for any action or proceeding arising out of or relating to this Agreement and waives any objection of inconvenient forum.
16. Miscellaneous. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. No changes or modifications to this Agreement by Buyer will be effective against Seller unless in writing and signed by both parties. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Headings herein are for convenience of reference only and shall in no way affect interpretation of the Agreement. The Quote and any attachments and appendices together with these Terms constitute the entire agreement between the parties superseding all prior representations, agreements or understandings, written or oral, between the parties provided, however, that to the extent the parties have entered into a separate Non-Disclosure Agreement, the terms and conditions, rights and obligations contained therein shall not be construed so as to alter or minimize any obligations of Buyer under these Terms nor alter or expand any obligations or restrictions upon Seller. Because any breach of Sections 1, 5, 6, 7, 9, 12, or 13 shall cause irreparable harm to Seller for which damages would not be an adequate remedy, Seller reserves the right to seek injunctive relief with respect thereto in addition to any and all other remedies available in equity or at law without the requirement of posting bond. The obligations set forth in Sections 1, 5, 6, 7, 9, 12, 13 and 16 of this Agreement shall survive termination or expiration of this Agreement. This Agreement shall be binding upon the parties and their respective successors and assigns provided, however, that Buyer shall not assign any of its rights or duties hereunder without Seller’s prior written consent, which consent may be withheld in Seller’s sole discretion. Notwithstanding any provision hereof, for all purposes of this Agreement each party shall be and act as an independent contractor and not as partner, joint venturer, or agent of the other and shall not bind nor attempt to bind the other to any contract. Either party may give notice by means of written communication sent by electronic mail (email), letter delivered by nationally recognized overnight delivery service or facsimile (such notice shall be deemed given when received), first class mail or pre-paid post to the address on record. If mailed or emailed, such notice shall be deemed to have been given upon the expiration of forty eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending (if sent by email).
17. Electronic Signatures. Electronic and facsimile signatures shall be deemed effective, and an original, for all purposes.