Terms and Conditions THIS AGREEMENT GOVERNS YOUR USE OF COMEVO SERVICES. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU,” “YOUR,” OR CLIENT SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
- Fees and Payment
1.1 Services Fee: In exchange for providing services purchased from Comevo by way of an order form, invoice, or statement of work (the “Services”), Client shall pay all charges owed within 30 days of the date of invoice (“Due Date”). Client shall pay interest on overdue payments at the rate of 1.5% per month or the maximum-rate allowable by law, whichever is lower. If Client does not pay an invoice within 15 days of Due Date, Comevo reserves the right to disconnect Services. As a reasonable estimate of Comevo’s actual damages, Client agrees to pay a fifty-dollar ($50.00) service fee on any checks returned by Client’s bank.
1.2 Fee Adjustments: Fees may increase annually up to a maximum of 3.0% of the prior year’s fees.
- Representations and Warranties of Client
2.1 Client represents and warrants to Comevo that: (a) Client owns or has the right to use all Client content; and (b) the use, reproduction, distribution, and transmission of the Client content does not (i) infringe or misappropriate any copyright, patent, trademark, trade secret, or any other proprietary rights of a third party; (ii) violate any criminal laws; (iii) constitute false advertising, unfair competition, defamation, an invasion of privacy, violate a right of publicity, or violate any other federal, state or local law or regulation.
2.2 Client acknowledges the terms of the Digital Millennium Copyright Act of 1998 and the obligations on the part of Comevo in the event it receives a notice from any third party that Client content infringes upon the rights of any third party. Client consents to Comevo following the procedures outlined in the Act in the event of a claimed infringement. Client understands and agrees that Comevo’s compliance with the Act may result in the Services being taken off line. Unless otherwise prohibited by law, Client agrees to indemnify and hold Comevo harmless from and against any and all damages that may result from Comevo’s good faith compliance with the terms of the Act.
2.3 Client represents and warrants to Comevo that Client will not: (i) remove from or hide any copyright, logos, or trademark notices, or (ii) modify Comevo Services in any way, including enabling or disabling any feature. Comevo reserves the right to discontinue support of the Services, and to disable the Services if Client breaches the terms of this section.
2.4 Client shall not copy or use any of Comevo’s Confidential Information except as reasonably required to perform its duties hereunder, and shall only disclose such information to those employees, subcontractors, and agents that have a “need to know” such information to perform their duties. For purposes of these Terms and Conditions, “Confidential Information” shall mean any competitively sensitive or secret business, marketing, or technical information of either party that is designated as confidential by a party, whether disclosed orally or in writing. Confidential Information shall not include, however, information that is: (1) generally known to the public or readily ascertainable from public sources (other than as a result of a breach of confidentiality); (2) independently developed without reference to or reliance on any Confidential Information of Comevo, as demonstrated by written records (which shall be provided upon request); or (3) obtained by Client from an independent third party who has created or acquired such information without reference to or reliance on Confidential Information of Comevo, as demonstrated by written records (which shall be provided upon request). If requested, upon any termination of this Agreement both parties will immediately destroy or erase within a ten-day period, any proprietary content or data as requested. A confirmation of such removal may also be requested by signing and returning an “affidavit of destruction” detailing what and how such content and data were erased.
- Content and Data
3.1 Removal of Unacceptable Content: Comevo has the right to monitor any Services used by Client, and in its sole discretion to remove any content, with reasonable prior notice to Client.
3.2 Proprietary Content: Except for the non-exclusive licenses granted herein, Client has no right, title or interest in or to Comevo Services or any related content, source code, or deliverable.
3.3. Produced Content: All content produced by Comevo’s and its representatives are produced to client specification. Comevo is not liable for any content produced.
- Limitations of Warranties and Liability
EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, COMEVO DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES. EXCEPT FOR FINDINGS THAT THE SERVICES INFRINGE THE INTELLECTUAL PROPERTY OF A THIRD PARTY, COMEVO WILL NOT BE LIABLE FOR ANY LOSS OF BUSINESS OR PROFITS, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR SIMILAR DAMAGES, OR, EXCEPT AS SET FORTH IN THESE TERMS AND CONDITIONS, FOR CLAIMS OF DAMAGES MADE BY ANY THIRD PARTY FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY ACKNOWLEDGES THAT THIS LIMITATION OF LIABILITY REFLECTS AN INFORMED, VOLUNTARY ALLOCATION BETWEEN THE PARTIES OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THESE TERMS AND CONDITIONS. IN NO EVENT WILL COMEVO’S LIABILITY EXCEED THE TOTAL ACTUALLY PAID BY CLIENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, AS DEFINED IN THESE TERMS AND CONDITIONS.
- Mutual Indemnification
Unless otherwise prohibited by law, each party agrees to indemnify and hold harmless the other party and its agents, affiliates, successors, and assigns from and against any and all liabilities, losses, damages, costs, and expenses, including reasonable attorney fees and experts’ fees, associated with any claim or action (whether or not any action or administrative proceeding is actually filed) against the other party and its agents, affiliates, successors, and assigns related to or arising out of any act, omission, or negligence of such indemnifying party under this Contract. Each party shall promptly notify the other of any such claim, shall provide reasonable assistance in connection with the defense and/or settlement thereof, and shall permit the other party to control the defense and/or settlement thereof. This ties the duty to indemnify to a particular party, rather than any claim arising out of the contract in general.
- Term and Termination
6.1 Term: Services will begin on the upon receipt of first payment and remain in effect for the term specified in the respective invoice to the Client and will automatically renew on a year-to-year basis thereafter, unless sooner terminated pursuant to the terms hereof.
6.2 Termination: Either Party may terminate Services, with or without cause, upon 30 days prior written notice to the other party. Termination by Client prior to the end of the term hereof shall not obligate Comevo to reimburse Client for prepaid fees. If Client terminates due to Comevo’s breach of these Terms and Conditions, Comevo shall reimburse Client for all remaining prorated, pre-paid fees.
7.1 The relationship of Comevo and Client established by these Terms and Conditions is solely that of independent contractors. Nothing herein shall be deemed to establish a partnership, joint venture, association, or employment relationship between the parties.
7.2 These Terms and Conditions may be amended at any time and from time to time, but only by written agreement signed by each Party.
7.3 Performance by each party shall be pursued with due diligence in all requirements hereof; however, neither party shall be liable for any loss or damage for delay or nonperformance due to causes not reasonably within its control. Such acts or causes shall include but not be limited to acts of God, strikes, lockouts, riots, acts of war, governmental regulations superimposed after the fact, earthquakes, or other catastrophes. In the event of any delay resulting from such causes, the time for performance and payment hereunder shall be extended for a period of time reasonably necessary to overcome the effect of such delays. In the event of any delay or nonperformance caused by such uncontrollable forces, the party affected shall promptly notify the other in writing of the nature, cause, date of commencement thereof, and the anticipated extent of such delay, and shall indicate whether it is anticipated that the completion dates would be affected thereby.
7.4 If any term, provision, covenant, or condition of these Terms and Conditions is held by a court of competent jurisdiction to be invalid or unenforceable, the rest of the Terms and Conditions shall remain in full force and effect and shall in no way be affected or invalidated.
7.5 These Terms and Conditions, along with any related invoice, statement of work, or other document identifying the Services provided by Comevo, contain the entire agreement of the Parties relating to the rights granted and obligations assumed herein.
7.6 In any action brought under this Terms and Conditions, the prevailing party shall be entitled to recover its actual costs and attorney fees and all other litigation costs, including expert witness fees, and all actual attorney fees and litigation costs incurred in connection with the enforcement of a judgment arising from such action or proceeding. The provisions of the preceding sentence shall be severable from the provisions of these Terms and Conditions and shall survive the entry of any such judgment.
7.7 In the event of a dispute between the parties regarding these Terms and Conditions or the Services provided to Client, the parties agree to submit the dispute to a mediation service reasonably accepted by each party. If the parties are unable to resolve their dispute after such mediation services have been rendered, then they may file any relevant civil action against the other, hereby irrevocably submit to the jurisdiction of any California State or United States District Court sitting in or presiding over San Luis Obispo County, for any suit, action or proceeding (including arbitration) arising out of or relating to this Agreement; and the parties consent to San Luis Obispo County as the venue for any such suit, action or proceeding (including any mediation) and irrevocably waive to the fullest extent permitted by law, any objection to such venue as being an inconvenient forum. In the event it becomes necessary for either party to enforce any of its rights under these Terms and Conditions, the prevailing party shall be entitled to recover its reasonable attorney’s fees and related costs. Each party shall pay one half of the mediation and/or arbitration fees and costs.