The Company's invoicing is on an advance billing basis. Accordingly, the Client's credit card will be automatically charged upon issuance of monthly invoices.
Any modifications to this agreement and job descriptions shall be in writing and agreed to by both parties.
All the payments will be charged on the Client's credit card and will be due upon receipt.
This Agreement is made between Flowz Digital LLC, a subsidiary of Flowz Digital, LLC a Delaware Limited Liability Company (“Company”) with its principal business location at 409 N. Pacific Coast Highway, Suite 583, Redondo Beach, CA 90277 and Client ("Client") named on the signature page below.
1) Term. This Agreement is effective as of the date set forth above and will continue in effect on a month by month basis and will auto renew monthly.
2) Authority. Each party represents and warrants that it has the full and complete power and authority to enter into this Agreement and to perform its obligations hereunder.
3) Non-Solicitation. During the term of the Agreement and for a period of three (3) years thereafter, Customer shall not seek to hire, solicit, do business with or otherwise interfere with Company’s relationship with any of Company’s employees or contractors or any former employees or contractors. Customer agrees that if it breaches this provision Company shall be entitled to injunctive relief to prevent such breach as Company will be irreparably harmed by such breach and damages shall be difficult to ascertain. Customer shall also be liable for liquidated damages equal to one (1) year of Company’s billings to Customer (actual or estimated) normally measured by the highest amount billed in the preceding three (3) calendar years or $5000.00 USD whichever is greater. Such payment is not a penalty but is a fair valuation of the damages Company will suffer as a result of the breach of this paragraph and the loss of a customer, employee or contractor. If Company is required to bring legal action to enforce the terms of this paragraph, then Company shall be entitled to recover its court costs, including its attorney’s fees.
4) Gift Policy. Company employees are not permitted to accept gifts from Clients unless expressly approved by the Company's senior management. “Gift” means any bestowal of money, any item of value, service, loan, thing or promise, discount or rebate for which something of equal or greater value is not exchanged. Payments for travel, entertainment and food are gifts. Should there be any violation of this policy, the Company reserves the right to re-assign employees or terminate the services agreement upon immediate notification.
5) Work for Hire. The ownership of all right, title and interest in and to the trade names, trademarks, copyrights, logos, slogans, artwork, labeling, design, identifying marks and other intellectual property and materials provided by the Client (collectively, the “Marks”) (whether registered or otherwise) are and shall at all times remain the property of Client and/or its customers. The Company shall use such Marks only in connection with the performance of its obligations pursuant to this Agreement.
6) Proprietary Rights; Non-Compete. Any and all drawings, data, designs, specifications, and other processing, technical, proprietary, business or financial information (collectively, “Information”) supplied by a party (the “Disclosure”) to the other party (the “Recipient”) (including any Information supplied as a result of any request for quotation process or event) shall remain Discloser’s and/or its customers’ property and shall be held in strict confidence by Recipient. Such Information shall be used by Recipient only in connection with the performance of its obligations pursuant to this Agreement and shall not be, directly or indirectly, reproduced, used or disclosed by Recipient in whole or in part to or for the benefit of Recipient or others without Disclosing prior written consent. Recipient agrees to limit access to the Information to such of its own employees and contractors who have the need for such access and who are bound unto Recipient to maintain the Information in confidence in accordance with this Agreement (and then only to the extent necessary). Such Information, together with all products, documents and things embodying any of the Information, in Recipient’s possession or control, shall be returned to Disclosure upon completion of its obligations under this Agreement or upon demand. Recipient shall not, without Disclosing prior written consent, sell or provide any services or products to any third party if based in whole or in part upon Disclosing Information. Notwithstanding the foregoing, deliverables (i.e., processed Art files) shall be considered Information of Client and/or its customers for purposes of this paragraph (a). Notwithstanding anything set forth herein to the contrary, Information shall not include any information that Recipient can reasonably demonstrate: (i) has been or becomes part of the public domain through no wrongful act or breach of obligation of confidentiality by Recipient; (ii) was lawfully known to Recipient prior to the time it was received by Recipient or is later received by Recipient from a third party who, to the knowledge of Recipient, is not subject to any obligation of confidentiality in favor of Disclosure; or (iii) is independently developed by Recipient without any use of or reference to Information. Each party shall advise the other party in writing of any misappropriation or misuse of Information of the other party of which the notifying party becomes aware.
7) Relationship of the Parties. The Company is an independent contractor and not an agent, servant, employee, representative, partner or joint venturer of Client. Nothing herein shall be deemed or construed as creating a joint venture or partnership between the Company and Client. Neither party has the power or authority to bind or commit the other party. Client acknowledges that the Company may utilize its own employees or the services of other independent contractors in connection with its performance under this Agreement.
8) Severability. To the extent possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement is illegal, invalid or unenforceable, such provision shall not invalidate or render unenforceable the entire Agreement and this Agreement shall be construed as if it did not contain the illegal, invalid or unenforceable provision and the rights and obligations of the parties shall be construed and enforced accordingly.
9) Waiver. No delay or failure by either party to exercise any right, remedy or power herein shall impair such party’s right to exercise such right, remedy or power, or be construed to be a waiver of any default or an acquiescence thereof. Any single or partial exercise of any such right, remedy or power shall not preclude any other or further exercise thereof or the exercise of any other right, remedy or power. No waiver by a party of any right, remedy or power herein shall be valid unless set forth in a writing executed by the waiving party and then only to the extent expressly set forth in that writing. The rights and remedies provided for in this Agreement are cumulative and not exclusive of any rights and remedies provided by law or at equity.
10) Equitable Relief. Each party (as Recipient) acknowledges that the Discloser considers its Information to contain trade secrets of the Discloser and that any unauthorized use or disclosure of such information would cause the Discloser irreparable harm for which remedies at law would be inadequate. Accordingly, each party (as Recipient) acknowledges and agrees that the Discloser will be entitled, in addition to any other remedies available to it at law or in equity, to the issuance of injunctive relief, without bond, enjoining any breach or threatened breach of the Recipient’s obligations hereunder with respect to the Information of the Discloser, and such further relief as any court of competent jurisdiction may deem just and proper.
11) Governing Law. This Agreement, including its formation, interpretation and performance shall be governed by the laws of the State of Delaware, including the conflict of law provisions of that or any other jurisdiction. The parties expressly acknowledge and agree to submit all disputes arising out of or relating to this Agreement including those relating to its negotiation, performance, non-performance, interpretation, enforceability or breach, to the exclusive personal jurisdiction and venue of the state or Federal courts situated in Wilmington, Delaware except with respect to actions for injunctive or equitable relief, which may be brought in any state or Federal court having jurisdiction.
12) Entire Agreement. This Agreement merges or cancels all prior negotiations, understandings or agreements between the parties, oral or written, and constitutes the entire Agreement of the parties, concerning the subject matter hereof. No course of prior dealings between the parties and no usage of trade shall 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 relied upon in the making of the Agreement other than those specifically set forth herein. This agreement can only be modified by a writing signed by both parties.
13) Termination. Customer may terminate this Agreement prior to the expiration of its term by providing sixty (60) days written notice to Company.
14) Survival. The provisions of this Agreement that expressly or by their nature survive termination or expiration of this Agreement, shall survive termination or expiration of this Agreement for any reason. The parties, by their duly authorized officers, have entered into this Agreement effective as of the date first set forth above.
15) Parties Bound; Assignment. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided, however, that neither this Agreement nor any part thereof, nor any of Company’s obligations hereunder, may be assigned by Company’s without the prior written consent of Client, which consent shall not be unreasonably withheld or delayed.
16) Warranty. Company warrants that the services they will be providing shall be done in a professional manner consistent with industry standards. You must notify Company of any performance deficiencies within 30 days from performance. For any breach of this agreement, Client's exclusive remedy and Company's entire liability shall be the performance of the deficient services. To the extent not prohibited by law, this warranty is exclusive and there shall be no other express or implied warranties or damages available for the breach of this agreement.
17) Limitations of Liability Client agrees that we shall not be liable for: (a) any direct loss, claim or damage; (b) any indirect loss, claim or damage, or any punitive, special, incidental or consequential damages of any kind (including but not limited to lost savings or loss or corruption of data); or (c) any loss of profit, loss of opportunity or anticipated savings, in each case whether direct or indirect and whether based in contract, tort (including negligence), strict liability, or otherwise, which arises out of or is in any way connected with (i) any use of the Services; (ii) any failure or delay in the use of any component of the Services including, without limitation, any unavailability of the Services irrespective of duration of any period of unavailability; or (iii) any use of or reliance upon any information, material, software, products, services and related graphics obtained through the Services, in all cases even if we have been forewarned of the possibility of such loss or damage.
17.1 Without limiting the effect of clause 17.1 above, due to the inherent risks of using the internet, we cannot be liable for any damage to, or viruses that may infect, your computer equipment or any other property when you are using the Services or browsing the Website. The downloading or other acquisition of any materials or information through the Website or Internet site is done at your own discretion and risk and with your agreement that you will be solely responsible for any damage to your computer system or loss of data that results from the downloading or acquisition of any such materials.
17.2 You agree to indemnify us against any claims or legal proceedings that may arise through your use of the Services or from any breach of these Terms and Conditions by you.
17.3 While the Company will do its best to minimize errors, due to the nature of our service and software offerings, we can not guarantee all output will be 100% error free. The Company is not responsible or liable for any losses or expenses incurred from errors or omissions.
IN NO EVENT SHALL THE COMPANY OR ITS SUPPLIERS BE LIABLE FOR ANY DAMAGES (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, DAMAGES FOR LOSS OF DATA OR PROFIT, OR DUE TO BUSINESS INTERRUPTION,) ARISING OUT OF THE USE OR INABILITY TO USE ANY MATERIALS, EVEN IF THE COMPANY OR A COMPANY AUTHORIZED REPRESENTATIVE HAS BEEN NOTIFIED ORALLY OR IN WRITING OF THE POSSIBILITY OF SUCH DAMAGE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, OR LIMITATIONS OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THESE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE TOTAL LIABILITY OF THE COMPANY UNDER THIS AGREEMENT EXCEED ONE HUNDRED DOLLARS ($100), REGARDLESS OF THE CAUSE OF ACTION, IN TORT, CONTRACT, OR OTHERWISE.