The following terms, conditions, and definitions applicable to any provision of services by Element-360, LLC (“Element-360”). The terms and conditions of Sale (these “Service Terms”) along with the terms and conditions of the Digital Marketing Proposal signed by Element-360 and the Client (the “Program”) constitute the full and complete agreement of the parties (together, the “Agreement”). The Agreement shall apply to each transaction or service provided by Element-360 to the Client.
1. Services: Element-360 shall perform the Services in general accordance with the description of the scope of services and work set forth in the Program. If Client wishes to change or add Services under the Program, the parties must agree to the change and the price for the new services. Element-360 will provide monthly updates to Client.
2. Professionalism and Warranty: Element-360 shall exercise reasonable professional effort to deliver the services outlined in the Program (“Services”). Except as set forth in the preceding sentence, element-360 shall not be bound by any express or implied representation, warranty, promise, guarantee, inducement or other statement of any kind or nature regarding the services and expressly disclaims any and all implied warranties relating to the services, including, without limitation, any implied warranty of merchantability or fitness for a particular purpose.
3. Professionalism and Warranty: Element-360 shall exercise reasonable professional effort to deliver the services outlined in the Program (“Services”). Except as set forth in the preceding sentence, element-360 shall not be bound by any express or implied representation, warranty, promise, guarantee, inducement or other statement of any kind or nature regarding the services and expressly disclaims any and all implied warranties relating to the services, including, without limitation, any implied warranty of merchantability or fitness for a particular purpose.
4. Billing and Payment for Services: Expense Reimbursement:
a. The Program sets forth the monthly and annual amount due for Services. In the absence of a written request by Client, Element-360 provides invoices.
b. Client agrees to pay for the Services monthly, in advance.
5. Term: The Agreement shall have an initial term 30-day term (the “Initial Term”) and will auto-renew on a month-to-month basis thereafter ( the “Term”).
6. Termination; Suspension: After the Initial Term, either party may terminate this Agreement for Services at any time with or without cause on at least thirty (30) days’ prior written notice. Upon the termination of this Agreement, Element-360 shall cease providing the Services, but shall be paid for all Services, and reimbursed for expenses incurred, through the termination date.
7. Confidentiality & Trade Secrets; Intellectual Property:
a. Confidential Information: Confidential Information shall mean (a) all information, in any medium, disclosed by either party (“Disclosing Party”) or their respective representatives to the other party (“Recipient”) before or after the date of this Agreement, (b) all analyses, compilations, forecasts, memoranda, notes, studies, data, formulas, analogues, data files, processes and other information, in any medium, prepared by the Recipient or its representatives that contain or otherwise reflect any information of the type described above, whether for the Recipient’ review or evaluation of any such information, or otherwise and (c) Trade Secrets; however, “Confidential Information” does not include any of the foregoing information that (1) is or becomes generally available to the public on a non-confidential basis other than as a result of actions by the Recipient or its representatives in breach of this Agreement, (2) is or becomes available to Recipient or its representatives from a source, other than discloser or its representatives, that, to Recipient’s knowledge, is not prohibited from disclosing such information to Recipient or its representatives by a legal, contractual, fiduciary or other obligation, or (3) Recipient can demonstrate with written evidence was in the possession of Recipient or its representatives before it was disclosed by discloser or its representatives.
b. Trade Secrets: Trade Secrets are [i]nformation, including a formula, pattern, compilation, program, device, method, technique or process, that (1) derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. Trade secrets also include Element-360’s past, current, and planned research and development data, current and planned distribution methods and processes, organizational structure, business procedures and techniques, internet campaign specifications, studies, test results, marketing, scientific, engineering, statistical, AdWords data, proposals, strategies, tactics, and campaign structuring.
c. Ownership: All methods, systems, processes, knowledge, or other information whether a Trade Secret or Confidential Information of Element-360 shall remain the sole and exclusive property of the Element-360. All Services provided by Element-360 under this Agreement, except for information provided by Client, the Client’s splash page’s and client specific digital advertising elements, shall remain the property of Element-360. The parties agree that the Element-360’s work product is a “not a work for hire” as that term is used in the federal Copyright Act.
d. Confidential Information Disclosure: In the absence of a valid governmental order, neither party shall disclose any Confidential Information to others without the other party’s prior emailed consent. Disclosure to either parties’ employees, agents, contractors, advisors, or representatives, and other professional advisors who agree to be bound by the terms of this section is permitted when required in connection with the Services. Upon the conclusion of the Services, each party shall return all Confidential Information to the other or shall certify in writing that all Confidential Information has been destroyed. In addition, each party agrees that ideas or concepts under consideration by the parties and disclosed to or developed under this Agreement are confidential and proprietary to each party and may not be utilized by either party for any purpose other than in connection with the Services.
e. Use of Trade Secrets: In the absence of a valid governmental order, Client shall not obtain, use or disclose Element-360’s Trade Secrets.
f. Other Intellectual Property: The parties agree that all trademarks, trade names, service marks, logos, or copyrighted materials of the of the other party that are permitted to be used in connection with this Agreement are used by only by consent and shall remain the sole and exclusive properties of each party and this Agreement does not confer upon the other party any right or interest therein or in the use thereof upon expiration of the Agreement.
his Agreement does not confer upon the other party any right or interest therein or in the use thereof upon expiration of the Agreement.
8. Other Sites, Content, Products and Services As a convenience to Client, the Services may include links to websites and access to content, products, and services of third parties, advertisers and strategic partners and other entities with which connection consists of only a hyperlink (“Linked Sites”). All Linked Sites are provided only because they provide information or services that Element-360 uses as part of the Services or may be of interest to Client or offer a service for Client’s convenience. Information, policies, and views contained in Linked Sites are not adopted or endorsed by Element-360.
a. “Claims” shall mean any and all direct or indirect claims, demands, actions, causes of action, suits, rights of recovery for any relief or damages, debts, accounts, damages, taxes, assessments, fees, fines, penalties, costs, losses, liabilities, liens, of any kind or nature, including, without limitation, whether based on contract, in tort, in law or in equity, or pursuant to any violation of any and all applicable laws, rules, ordinances, regulation, by-laws, orders, decrees, permits, licenses and certificates of any federal, state or other governmental agency or body having jurisdiction, and whether known or unknown, foreseeable or unforeseeable, now existing or hereafter arising and shall include, without limitation, court or arbitration costs, and attorneys’ fees and expenses, and other costs of defense.
b. With regard to third party(s), Element-360 and Client hereby agree to defend, indemnify, protect and hold harmless the other, including any commonly owned entities and their respective members, managers, partners, lenders, officers, joint-venturers, directors, affiliates, representatives, employees, agents, shareholders, attorneys and employees, and each of them and their respective successors and assigns (collectively, the “Indemnified Parties”) from and against any and all Claims for bodily injury, sickness or death, and property damage or destruction to the extent caused by the negligent acts or omissions of either party, anyone employed directly or indirectly by either party or anyone for whose acts either party may be liable in the performance of this Agreement. In addition, the indemnifying party agrees to indemnify and hold harmless Indemnified Parties from and against all Loss to the extent caused by the negligence of the indemnifying party in the performance of either party under this Agreement. The foregoing indemnification expressly excludes the duty of either party to defend the Indemnitees. However, the absence of the duty to defend shall not preclude Indemnitees from seeking its reasonable attorneys’ fees as part of its damages where and to the extent such fees are caused by the indemnifying party’s negligence. This indemnity shall survive the expiration or termination of this Agreement as to any such Claims arising out of this Agreement. Each party shall, upon receipt of notice of any Claim, promptly take all action necessary to make a claim under any applicable insurance policy or policies each party is carrying and maintaining.
10. Limitation of Damages in no event shall element-360 or its respective members, managers, partners, lenders, officers, joint-venturers, directors, affiliates, employees representatives, agents, shareholders, independent contractors, attorneys, suppliers or licensors, and their respective successors and assigns, be liable for any indirect, incidental, special, punitive, increased or consequential damages, loss of profits, revenue, data, goodwill or use, incurred by client or any third party, whether in an action in contract or tort (including negligence and strict liability), arising from access or inability to access, or use of, any services, intellectual property, applications, tools, products, information, or content provided in connection with the services, even if element-360 has been advised of the possibility of such damages. This limitation on liability applies to, but is not limited to, the transmission of any disabling device or viruses which may infect equipment or system, failure of software, cloud services, failure of mechanical or electronic equipment or communication lines, telephone or other interconnect problems, unauthorized access, theft, bodily injury, property damage, operator errors, strikes or other labor problems or any force majeure. Element-360’s liability for any type of damages under this agreement in the aggregate shall be the annual amount paid by client hereunder or $25,000, whichever is less.
Some jurisdictions do not allow certain limitations or exclusions of liability in some circumstances. Consequently, some of the foregoing limitations may not apply to client. For example, California residents must, as a condition of these terms, waive the applicability of California civil code section 1542, which states, “a general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” Client hereby waive this section of the California civil code. Client hereby waive any similar provision in law, regulation, or code that has the same intent or effect as the aforementioned release.
If client is a resident of New Jersey, to the extent new jersey law prohibits the limitations and/or exclusions of liability set forth in these terms, such limitations and/or exclusions shall not apply to client.
a. Independent Contractor: Element-360 is an independent contractor in the performance OF this Agreement. The detailed methods, manner and means of conducting the Services shall be under the complete control and direction of Element-360. No partnership or joint venture between Client and Element-360 is intended or implied by this Agreement.
b. Assignment: This Agreement may not be assigned by either party without the other party’s prior written consent.
c. Amendment: The Program may be amended only by a written instrument which refers to the Program and is executed by each of the parties hereto. The Service Terms may only be amended by Element-360. Element-360 may make future changes to these Service Terms at any time without notice, with any changes binding on the parties from and after their effective date.
d. Entire Agreement: This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes any and all prior agreements with respect to such subject matter between Element-360 and the Client.
e. Disputes, Venue, Governing Law: . In the event of a dispute between the parties not requiring immediate request for injunctive relief, the parties shall engage informally with the most senior leader of each entity participating in good faith. The forgoing shall not be required if either party pursues injunctive or some other form of equitable relief. In all circumstances beyond informal discussions, the state or federal courts having jurisdiction over Buncombe County, North Carolina shall have exclusive jurisdiction. THE CLIENT AND ELEMENT-360 DO HEREBY WAIVE THEIR RIGHT TO TRIAL BY JURY. The laws of the State of North Carolina shall govern this Agreement in all aspects.
f. Counterparts: This Agreement may be executed in counterparts, and when all counterpart documents are executed, the counterparts shall constitute a single binding instrument. In addition, properly executed authorized signatures may be transmitted via facsimile and upon receipt shall constitute an original signature.
g. Headings: The headings used in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit, or describe the scope of this Agreement or the intent of any provision thereof.
h. Severability: If any provision of this Agreement shall be held invalid or unenforceable, such invalidity or unenforceability shall not affect or impair the validity or enforceability of the remaining provisions of this Agreement, which shall remain in full force and effect, and the parties hereto shall continue to be bound thereby.
i. Waiver: The failure of either party to require the strict performance of any provisions of the Agreement in any one or more instances, or to exercise its rights hereunder or at law or inequity, shall not be construed as and shall not constitute a waiver or relinquishment of any such provisions or rights, and such provisions and rights shall continue in full force and effect.
j. Notices: All notices required to be given under this Agreement shall be given to the other party in writing and by personal delivery, email, recognized national courier (e.g. FedEx or UPS) or certified mail with return receipt requested, to the address of each party given in the Program. Notice shall be effective upon receipt.
k. Force Majeure: Neither Element-360 nor Client shall be liable for delays or defaults in the performance of its respective obligations due to causes beyond its respective control, including, but not limited to: Acts of God, accidents, riots, wars, acts of terror, government interference, epidemics, pandemics, non-quota related embargoes, strikes, other labor disputes or any other cause outside its control. The party claiming force majeure shall notify the other party in writing of the cause of any such excusable delay promptly after such delay or delays. Payment for all services rendered shall be made when due, regardless of a force majeure notice.