Terms of Agreement
1. ACCEPTANCE OF AGREEMENT. It is mutually understood and agreed that this Customer Order shall become a contract between Client and Osky Blue LLC, hereinafter Publisher, upon acceptance of the Customer Order by Publisher at its main office.
2. SERVICES. Publisher shall provide services as indicated on the reverse side of this Agreement (the “Services”), subject to content modifications by Client via Publisher’s web site. The service period of this Agreement shall be twelve (12) calendar months unless otherwise indicated on the reverse side of this Agreement. Upon reaching the end of the service period, this Agreement shall be auto-renewed month-to-month until cancelled.
3. PAYMENT TERMS. Client agrees to pay Publisher charges for the contracted services indicated on the reverse side of this Agreement, plus all state and local taxes attributable thereto. Any unpaid balance of the service charges is due and payable upon presentation of a statement. Any amounts not paid within 30 days of the date of such a statement may thereafter bear a late charge at the rate of 1 ½% per month, or the highest rate allowed by applicable law, whichever is lower, until paid in full. Discontinuation of business does not relieve Client of its obligations under this contract.
4. ACCELERATION. Should Client fail to make any payment when due, Publisher may, at its option, declare Client in default and declare the entire balance owed by Client to Publisher under this, or any other, agreement between Publisher and Client immediately due and payable.
5. CANCELLATION. Client may cancel Services without penalty within three (3) calendar days of this Agreement date, but in no event after the web based publishing is completed, whichever is sooner. Publisher will refund deposits received for services cancelled within the cancellation period in compliance with the terms of this Section, but not thereafter.
6. EXTENSION OF CREDIT. Publisher may, but need not, extend credit to Client for purchase of the services requested, upon such terms and conditions as the Publisher, in its sole discretion, deems appropriate.
7. ASSIGNMENT. This Agreement is between Client and Publisher, and changes in ownership, name, management or operation of Client shall not dissolve the contractual obligation under this Agreement. This Agreement may not be assigned by Client without the written consent of Publisher, which consent will not be unreasonably withheld. This Agreement is assignable by Publisher, and any assignment that occurs will be deemed a novation between Client and any subsequent assignee.
8. COPYRIGHTS. Client assumes sole responsibility for the protection of its copyright in any writing, illustration, design, map, photograph, or combination thereof included in said items of Agreement. Client must inform Publisher of any possible infringement that may occur prior to publication. Such notice must be made in writing or will be deemed a permissive use of the copyrighted material.
9. POLICIES. If Publisher is working directly with any other publisher of print or electronic media, Publisher reserves the right to revise its policies and practices. Additionally, if Publisher is working directly with any other media publisher, Publisher further reserves the right to revise or reject any or all advertising copy or illustration. Publisher does guarantee that it will provide client with an electronic proof of digital assets from Publisher, if requested.
10. WARRANTIES AND INDEMNIFICATION. The person entering into this Agreement for Client expressly warrants that he/she is authorized by Client to do so, and on behalf of Client represents and warrants:
- That Client is in compliance with applicable laws, including licensing requirements;
- That Client is a duly authorized agent for the product or service to be advertised;
- Publisher has the right to use any trademark, service mark, trade name, artwork, photographs, illustrations or copyrighted material appearing in the advertising text supplied by Client. Client agrees that it will hold Publisher harmless from any and all claims and demands asserted against Publisher by reason of the falsity of the foregoing representations, breach of the forgoing warranties, or by reason of the falsity of any portion of said advertising or the name or copyrighted material therein, and agrees to notify Publisher immediately, in writing, of any changes in such ownership or authorization. Client shall indemnify and hold Publisher harmless from all liabilities and costs, including attorney’s fees, incurred in connection with Client’s breach of any of the foregoing representations and warranties or for any other claim made on account of Publisher use of advertising text supplied by the Client including, without limitation to the generality of the foregoing, claims of false advertising or of infringement of the intellectual property rights of third parties.
11. LIMITATION OF LIABILITY. CLIENT AGREES THAT THE PUBLISHER SHALL NOT BE LIABLE FOR ERRORS OR OMISSIONS IN THE MARKETING MATERIALS IN EXCESS OF THE AMOUNT PAID OF THE ITEM (S) AND SHALL NOT BE LIABLE FOR LOST PROFITS; DIRECT OR INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR FOR ANY CONTINGENT DAMAGES ARISING OUT OF SUCH AN OMISSION OR ERROR. ANY ERROR OR OMISSION SHALL BE CLIENT’S SOLE AND EXCLUSIVE REMEDY, AND PUBLISHER SHALL NOT BE LIABLE TO CLIENT FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS), WHETHER IN CONTRACT, TORT OR OTHERWISE, CLIENT ACKNOWLEDGES AND AGREES THAT PUBLISHER HAS RELIED ON THE FOREGOING LIMITATION OF LIABILITY IN ESTABLISHING ITS RATES, AND THIS LIMITATION OF LIABILITY MAY ONLY BE WAIVED UPON THE PAYMENT OF ADDITIONAL CONSIDERATION BY CLIENT IN SUCH AMOUNT AND UPON SUCH TERMS AS MAY BE EVIDENCED BY A WRITTEN AGREEMENT OF THE PARTIES.
12. ARBITRATION. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, other than an action by Publisher for the collection of the amounts due under this Agreement, shall at the sole option of the Publisher be settled by final, binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, which rules are incorporated herein by reference; provided, however, that any person nominated to act as arbitrator is licensed to practice law before the courts of the State where the arbitration is conducted. There shall be one arbitrator for any arbitration. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Venue for any arbitration under this provision shall be at the office of the American Arbitration Association closest to the Publisher or such other location as the parties may agree.
13. ADDITIONAL TERMS.
- Should legal action be required to enforce Client’s obligations under this Agreement, Client agrees to pay all attorney’s fees and court costs, as well as all other costs associated with the prosecution of such action, incurred by Reseller in any such action or any appeal thereof so long as Reseller prevails;
- All written correspondence addressed to Publisher should be directed to Customer Service Department.
- This Agreement and any interpretation thereof shall be governed by the laws of the state of Texas;
- Facsimile and digital signatures shall have the same legal effect as original signatures;
- This Agreement constitutes the entire contract between the parties and neither party shall be bound by any terms, conditions, or representations not herein contained. Neither party shall be bound by any oral agreement or special arrangements contrary to the terms and conditions of this Agreement, and no agent or employee of Publisher has the authority to vary any of the terms of this Agreement, except pursuant to a duly authorized and executed written amendment or waiver to this Agreement;
- If any paragraph or portion of this Agreement is declared invalid under applicable law, which declaration shall not affect the remaining terms of the Agreement, and all other terms of this Agreement shall retain their full force and effect.
14. COMMUNICATIONS. By signing this contract and providing address information (street or other postal address, telephone, fax, and email addresses listed on the first page of this contract), Client acknowledges the existence of a business relationship between the Publisher and the Client. Client expressly agrees the Publisher may use any or all of the address information so provided to communicate with Client via FAX, email, phone or mail regarding Publisher’s products and services. If Client does not wish to receive communications from Publisher by a particular means, Client will notify Publisher to that effect in writing, and Publisher will endeavor to honor Client’s request.
Last Updated: April 11, 2014