THESE SERVICE TERMS are made and entered into effective as of the preferred service start date as set forth on the order form (“Order Form”) executed by and between EASY MEDIA, LLC, an Oregon limited liability company (“EM”), and the customer identified on the Order Form (“Customer”). The Order Form in addition to these Service Terms constitute the “Agreement” between EM and Customer with respect to the services identified in the Order Form.
1. Scope of Services. EM agrees to provide directly through its employees, independent contractors, or sub-contractors the services set forth in the Order Form (the “Services”) in exchange for payment by Customer at the rates specified therein (the “Fees”). Any changes to this Agreement, or to the Services listed in the Order Form, or to any of the specifications thereof, shall become effective only when a written change request is executed by Customer and EM. In the event of a conflict between the terms of this Agreement and any Order Form, the terms of this Agreement shall govern. Any Services requested beyond the scope of this Agreement shall be charged at the rates to be agreed upon by the parties. The successful completion of the Services depends on Customer’s provision of accurate information and Customer’s ability to respond promptly to EM. In the event Customer does not provide feedback to content submitted to Customer within forty-eight (48) hours after delivery from EM, such content will be deemed accepted and EM shall have the ability to utilize such content to perform the Services without liability.
2. Invoices. EM shall prepare and submit an invoice to Individual Locations/Properties monthly in advance of services in accordance with the rates specified in the applicable Order Form. Individual Locations/Properties shall pay all invoices within 30 days after the date of the invoice. Any amount not paid when due shall bear interest at the rate of the lesser of 1.5% or the highest rate permitted by applicable law, per month, from the date of the invoice until the date paid.
3. Term. This Agreement shall remain in effect for a period of the minimum number of months specified in the Order Form or at least three (3) months, whichever is greater. The term of this Agreement shall be automatically renewed for additional monthly periods provided that neither EM nor Customer shall have given notice of termination of this Agreement at least thirty (30) days before the end of the initial term or any renewal term. Notwithstanding the foregoing, EM shall have the right to immediately terminate its Services hereunder in the event Customer fails to timely pay the Fees set forth in the Order Form.
4. Confidentiality. Neither party shall, without the prior written consent of the other party, disclose the Confidential Information of the other party during the Term of this Agreement and for two (2) years following the expiration or termination hereof. Each party will take all reasonable precautions to protect Confidential Information directly disclosed to it by the other party, using at least the same standard of care as it uses to maintain the confidentiality of its own Confidential Information and may only use the Confidential Information of the disclosing party for the purpose for which it was disclosed and for the benefit of the disclosing party. Notwithstanding the foregoing, a party may disclose Confidential Information to the extent required: (a) to any consultants, contractors, and counsels who have a need to know in connection with this Agreement and have executed a reasonably protective non-disclosure agreement with the disclosing party, or (b) by operation of law, or by a court or governmental agency, or if necessary in any proceeding to establish rights or obligations under this Agreement; provided, the disclosing party shall, unless legally prohibited, provide the non-disclosing party with reasonable prior written notice sufficient to permit the non-disclosing party an opportunity to contest such disclosure. If a party commits, or threatens to commit, a breach of this Section, the other party shall have the right to seek injunctive relief from a court of competent jurisdiction. For purposes of this Agreement, “Confidential Information” means any non-public information of the parties hereto, including any information relating to its business activities, financial affairs, technology, marketing or sales plans that is disclosed to, and received by, the other party pursuant to this Agreement. Confidential Information includes, but is not limited to, the terms and pricing of this Agreement. Confidential Information shall not include information which: (i) is or becomes public knowledge through no breach of this Agreement by the receiving party, (ii) is received by recipient from a third party without any obligation of confidentiality, or (iii) is already known or is independently developed by the receiving party without use of the Confidential Information.
5. Nonsolicitation. Customer acknowledges that EM incurs substantial recruitment, screening, administrative and marketing expenses in attracting its employees and maintaining its relationship with them. Without prior written permission of EM, Customer agrees that it will not, directly or indirectly, alone or with others, hire, solicit or otherwise engage (whether as an employee, consultant, independent contractor, or employee of or consultant for any other person or entity) or assist anyone else in the solicitation of, any employee of EM during the Time Period. For purposes of this Agreement “Time Period” shall mean the period beginning on the date hereof and ending 12 months after the termination of this Agreement; provided, however, that if a court of competent jurisdiction determines that such period is unenforceable, Time Period shall mean the period beginning on the date hereof and ending nine months after the termination of this Agreement; provided, however, that if a court of competent jurisdiction determines that such period is unenforceable, Time Period shall mean the period beginning on the date hereof and ending six months after the termination of this Agreement.
6. Limitation on Liability. EM SHALL NOT, AS A RESULT OF ANY CLAIM ARISING UNDER OR RELATED TO THIS AGREEMENT OR SERVICES, BE LIABLE TO CUSTOMER, ITS EMPLOYEES, AGENTS OR ANY OTHER PERSONS FOR ANY LOST PROFITS, LOST REVENUES, LOSS OF GOODWILL, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF RECORDS OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES, SUSTAINED OR INCURRED REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING NEGLIGENCE, STRICT LIABILITY, INDEMNITY OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN AND REGARDLESS OF WHETHER EM HAD RECEIVED NOTICE OR HAD BEEN ADVISED, OR KNEW OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. THE MAXIMUM EXTENT OF EM’S LIABILITY TO CUSTOMER FOR ANY CLAIM ARISING UNDER OR RELATED TO THIS AGREEMENT OR SERVICES SHALL NOT IN ANY CIRCUMSTANCES EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO EM PURSUANT TO THIS AGREEMENT. IN NO EVENT SHALL EM BE LIABLE FOR ANY CLAIM NOT MADE WITHIN 30 DAYS OF THE ACT OR OMISSION GIVING RISE TO SUCH CLAIM.
7. Force Majeure. EM will not be liable for any failure or delay in its performance under this Agreement due to an unforeseeable event beyond its reasonable control, including but not limited to, acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, changes in government codes, ordinances, laws, rules, regulations or restrictions, failure of the Internet, terrorist acts, failure of data, products or services controlled by any third party, including the providers of communications or network services, utility power failure, material shortages or unavailability or other delay in delivery not resulting from EM’s failure to timely place orders therefore, or lack or delay in transportation (collectively, a “Force Majeure Event”). In the event a Force Majeure Event suspends the provision of Services hereunder for a period of thirty (30) days, either party may terminate the affected Service by providing thirty (30) days’ prior written notice to the other party, without liability or incurring any additional costs or charges; provided, however, that all Fees accruing prior to such termination shall be immediately paid to EM. Further, EM shall not be liable for any losses or damages resulting from any acts or omissions of any third-party providers.
8. Ownership; Proprietary Rights.
(a) Customer may provide EM with certain content or materials created or provisioned by Customer for use by EM in the provision of the Services, such as trade or service marks, images, illustrations, graphics, multimedia files and/or text (collectively, “Customer Content”). Customer shall retain all ownership, right, title and interest (including copyright and other proprietary or intellectual property rights) in and to such Customer Content. By providing such Customer Content to EM, Customer (i) grants to EM a royalty-free, fully-paid up, limited, nonexclusive right and license to copy, modify, reproduce, distribute and display all such Customer Content in the provision of the Services, and (ii) represents and warrants that it has full ownership and copyright rights to provide such Customer Content to EM for use as contemplated by this Agreement. EM retains the right to display graphics and other design elements of the Customer in connection with this Agreement as examples of their work in their respective portfolios.
(b) Customer further acknowledges, understands and agrees that EM may use its own and/or may purchase third party licenses for products or services that are necessary for EM to provide the Services, which may include but are not limited to server-side applications, clip art, “back-end” applications, music, stock images, or any other copyrighted work (“EM Provided Content”), which EM deems necessary to provide or purchase on behalf of Customer in connection with the Services. Customer further acknowledges and understands that any EM Provided Content is owned by EM and/or such third parties and cannot be transferred to Customer and is hereby specifically not transferred to Customer and shall remain the property of EM and/or such third parties.
9. Representations. Customer represents, warrants and covenants that: (a) it has full authority to enter into this Agreement; (b) the Customer Content will not infringe upon any copyright, patent, trademark, trade secret, contract right or other third party right; and (c) all obligations owed to third parties with respect to the activities contemplated to be undertaken by Customer pursuant to this Agreement are or will be fully satisfied by Customer so that EM will not have any obligations with respect thereto.
10. Indemnification. Customer shall indemnify and hold harmless EM (and its subsidiaries, affiliates, officers, agents, co-branders, partners, members, managers, and employees) for, from, and against any and all damages (including punitive, special, indirect, consequential, exemplary or incidental damages), liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) incurred by EM as a result of any third party claim, judgment, settlement, or adjudication against EM related to or arising from (a) any breach or alleged breach by Customer of any representation or covenant made by Customer under this Agreement, or (b) any Customer Content. EM shall indemnify and hold harmless Customer for, from, and against any and all damages (including punitive, special, indirect, consequential, exemplary or incidental damages), liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) incurred by Customer as a result of any third party claim, judgment, settlement, or adjudication against Customer related to or arising from (a) any breach or alleged breach by EM of any representation or covenant made by EM under this Agreement, or (b) any EM Provided Content as the same is provided by EM and used in accordance with any applicable terms and conditions.
11. Independent Contractor. The parties acknowledge that EM is an independent contractor, that neither EM nor any of its employees are employees of Customer, and that Customer will make no federal, state, or local tax or unemployment insurance or social security withholdings from payments of the amount payable to EM hereunder.
12. Assignment; Binding Effect; Amendment. Except as set forth in this Agreement, neither party shall assign this Agreement or its rights under it without the other party’s prior written consent, which consent shall not be unreasonably withheld. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assignees. This Agreement may be amended or modified only by a written instrument executed by the parties hereto.
13. Entire Agreement. This Agreement is the final, complete and exclusive statement of the agreement between the parties with relation to the subject matter of this Agreement, it being understood that there are no oral representations, understandings or agreements covering the same subject matter as this Agreement. This Agreement supersedes, and cannot be varied, contradicted or supplemented by evidence of, any prior or contemporaneous discussions, correspondence, or oral or written agreements of any kind.
14. Notices. Any notices, consents or approvals required or permitted to be given hereunder shall be deemed to be given and sufficient (i) five (5) days after deposit in the United States mail, if sent via certified or registered letter, return receipt requested, (ii) one (1) day after deposit with a reputable overnight delivery or courier service or (iii) after receipt of confirmation or answerback, in each case, to the respective addresses set forth on the applicable Order Form.
15. Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Oregon, without giving effect to any choice or conflict of law provision or rule (whether of the State of Oregon or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Oregon. The parties agree that any actions arising under this Agreement shall be brought exclusively in the state courts of the State of Oregon or the federal district courts located in the State of Oregon. Each party agrees to submit itself to the jurisdiction and venue of such courts for purposes of any such action. The parties expressly waive their right to have their claims or defenses heard by a jury.
16. Publicity. Customer expressly agrees that EM may publicly refer to Customer as a customer of EM as part of its marketing activities (e.g., sample client list) and Customer may identify EM as a service provider of Customer. Any other public reference to Customer by EM shall require the express written consent of Customer.
17. No Waiver. No delay of or omission in the exercise of any right, power or remedy accruing to any party as a result of any breach or default by any other party under this Agreement shall impair any such right, power or remedy, nor shall it be construed as a waiver of or acquiescence in any such breach or default, or of or in any similar breach or default occurring later; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default occurring before or after that waiver.
18. Captions. The headings of this Agreement are inserted for convenience only, and shall not constitute a part of this Agreement or be used to construe or interpret any of its provisions.
19. Severability. In case any provision of this Agreement shall be invalid, illegal or unenforceable, it shall, to the extent possible, be modified in such manner as to be valid, legal and enforceable but so as most nearly to retain the intent of the parties. If such modification is not possible, such provision shall be severed from this Agreement. In either case the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
20. Remedies. In the event of breach of any of the terms of this Agreement by either party hereto, the non-breaching party will be entitled, where appropriate, to apply for and obtain injunctive relief in any court of competent jurisdiction without limitation as to any other or future remedies which may be available.
21. Attorneys’ Fees. If any legal action or any other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default, or misrepresentation in connection with any of the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and other costs incurred in that action or proceeding, in addition to any other relief to which the party may be entitled.
22. Counterparts. This Agreement may be executed in one or more counterparts, including by electronic transmission and signature, each of which will be deemed an original copy of this Agreement, and all of which, taken together, will be deemed to constitute one and the same agreement.
If there are any questions regarding these Service Terms, you may contact us using the information below.
12655 SW Center Street, Suite 500
Beaverton, OR 97005
Last Updated on 06-15-2017