Terms of Service
These Terms of Service govern any service provided by Flourish & Grit purchased through the website (and any subdomain of) flourishgrit.com
1. PROJECT TERM
Starts: Date of purchase
Ends: 30 Days After Last Invoice Date
The term of this Agreement is from the Effective Date written. Either party may terminate this agreement at any point in time by providing 14 (fourteen) calendar days' notice to the other party. The company will retain any fees paid to date, including those of the current month, and the Client will not be billed again. Either party may terminate this Agreement for any reason by providing written14 (fourteen) calendar days' notice to the other party.
If this Agreement is terminated after Company commences work under this Agreement, any fees paid by Client prior to termination will not be refunded, and Company reserves the right to seek compensation for work done prior to termination. If this Agreement is terminated prior to Company commencing work under this Agreement, a kill fee of 25% of the total project cost will apply.
3. OWNERSHIP OF INTELLECTUAL PROPERTY
During the course of the work under this Agreement, the Company will provide the Client with EMAIL MARKETING (“Deliverables”), to be used in connection with the Client’s business. All Deliverables provided by Company under this Agreement and actually used by Client for its business shall be the intellectual property of Client, so long as Client pays all fees due under this Agreement. However, the Company retains the right to use or display such Deliverables in its portfolio of work, future educational publications, and in the marketing, advertising, or promotion of the Company's services. If for any reason Client does not feel comfortable with having their work included in the Company's portfolio of work, it is the duty of the Client to notify Company.
Company may include in the work produced for Client under this Agreement pre-existing work or materials owned by or licensed to Company. If such work is used in the work produced for Client, such use shall constitute a license to use and distribute such materials.
All Deliverables provided to, but not used by the Client, shall remain the intellectual property of Company and cannot be used by Client for any purpose.
The company is not responsible for trademark searches, trademark registration, copyright registration, or any other service related to the protection of legal rights in Client’s Deliverables.
Client hereby indemnifies, saves, and holds harmless Company for any liabilities, damages, losses, costs, or expenses arising out of any claim, demand, or action by a third party alleging infringement arising out of Client's use of Deliverables provided by Company under this Agreement.
4. LIMITATION OF LIABILITY
In no event shall either party have any liability to the other party for any lost profits, loss of use, business interruption, costs of procurement of substitute goods or services, or for any indirect, special, incidental, multiple, exemplary, punitive, or consequential damages however caused and, whether in contract, tort or under any other theory of liability, whether or not the party has been advised of the possibility of such damage and, in no event shall a party's liability exceed the fees paid under this agreement, whether in contract, tort or under any other theory of liability.
Any and all Client information and data of a confidential nature, including but not limited to any and all design, creative, marketing, sales, finances, accounting, operating, performance, know-how, business, and process information shall be treated by Company in the strictest of confidence and not disclosed to third parties or used by Company for any purpose other than for providing Client with the services specified in this Agreement without Client’s express written consent.
Confidential Information shall not include any information which (a) becomes available to the public through no breach of confidentiality by Company, (b) was in Company's possession prior to receipt from the disclosure, (c) is received by Company independently from a third party free to disclose such information, or (d) is independently developed by Company without the use of the Client's Confidential Information. Neither party may disclose the terms of this Agreement without the other party s prior written approval unless such disclosure is compelled by a court of law.
6. INDEPENDENT CONTRACTOR
This Agreement shall not render Company an employee, partner, agent of, or joint venturer with the Client for any purpose. The company is and will remain an independent contractor in its relationship to the Client.
The company is or remains open to conducting similar tasks or activities for entities other than the Client and holds itself out to the public to be a separate business entity.
The company shall retain sole and absolute discretion in the manner and means of carrying out the activities and responsibilities under this Agreement. The company shall be responsible for the ownership and management of the Client, but the Company will not be required to follow or establish a regular or daily work schedule. Company and Client agree to conform to any and all IRS tests necessary to establish and demonstrate the independent contractor relationship between Client and Company.
The company will be responsible for filing its own tax returns and to pay taxes in accordance with all provisions of applicable Federal and State law. The client shall not be responsible for withholding taxes with respect to Company s compensation. The company shall have no claim against Client for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind.
The company reserves the right to use independent subcontractors to provide services to the Client under this agreement. All such independent subcontractors shall be bound by the terms of this Agreement, including but not limited to the terms in sections 7 (seven) and 8 (eight) of this Agreement.
7. GOVERNING LAW, VENUE, MEDIATION
This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan without regard to its choice-of-law or conflict-of-law provisions.
The Parties agree that, prior to filing a lawsuit with respect to any dispute, controversy, or claim concerning this Agreement (collectively and individually, “Dispute”), they will make a good faith attempt to resolve the Dispute, in writing, within 30 business days. If no resolution can be determined, the parties will submit the Dispute to mediation, the procedure for which shall be mutually agreed upon by the Parties (“Mediation”). The Parties agree to share equally any costs or fees resulting from the engagement of a mediator and or the hiring of an appropriate forum for the Mediation. The Parties agree to pay their own individual expenses incurred in the Mediation (including, without limitation, the cost of each Party's independent counsel or other representatives. Should such Mediation fail, the Parties agree that the exclusive venue for any unresolved Dispute is an appropriate court located within the State of Michigan.
Any provision of this Agreement that, by its terms, is intended to continue to apply after any termination or expiration of this Agreement, shall survive such termination or expiration and continue to apply in accordance with its terms. This includes, but is not limited to, section 4 of this Agreement.
This Agreement shall be binding on and shall inure to the benefit of, the parties to it and their respective heirs, legal representatives, successors, and assigns provided, however, that Client may not assign any of its rights under this Agreement except to a wholly-owned subsidiary entity of Client. No such assignment by Client to its wholly-owned subsidiary shall relieve Client of any of its obligations or duties under this Agreement.
10. HEADINGS; STRICT CONSTRUCTION
Headings used in this Agreement are provided for convenience only and shall not be used to construe the meaning or intent of any provisions of the Agreement. The language used in this Agreement shall be deemed to be the language chosen by the Parties to express their mutual intent. The Parties agree that this Agreement shall be construed impartially between the Parties without regard to which Party may or may not be considered the drafter or scrivener of the Agreement.
11. NO IMPLIED WAIVER
The failure of either Party to insist on strict performance of any covenant or obligation under this Agreement, regardless of the length of time for which such failure continues, shall not be deemed a waiver of such Party's right to demand strict compliance in the future. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation under this Agreement shall constitute a consent or waiver to or of any other breach or default in the performance of the same or any other obligation.
12. ENTIRE AGREEMENT
This Agreement constitutes the final and entire agreement between the Parties with respect to its subject matter, and supersedes any and all prior and contemporaneous agreements, representations, and or understandings, whether written or oral, between the Parties.
13. AMENDMENTS; MODIFICATIONS
No amendment, change, or modification of this Agreement shall be valid unless in writing and signed by both Parties.
If any term, provision, covenant, or condition of this Agreement shall be found to be illegal or otherwise unenforceable, this finding shall not invalidate the whole of the Agreement. Rather, the remainder of the Agreement shall remain in full force and effect, and the offending provision shall be deemed modified or stricken to the extent necessary to render such provision or the rest of the Agreement enforceable. The rights and obligations of the Parties shall be construed and enforced accordingly, preserving to the fullest extent permissible the Parties intent set forth in the original Agreement.
All notices, requests, demands, and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given (i) on the date delivered if personally delivered, (ii) upon receipt by the receiving Party if sent by registered or certified mail (first-class mail, postage prepaid, return receipt requested), or (iii) on the date targeted for delivery if delivered by overnight courier, addressed to (a) Company at the address listed in this Agreement, (b) Client at the address listed in this Agreement. Either Party may change the address to which notices are to be sent by written notice of the new address.