marketing services terms and conditions

Standard Terms and Conditions

Heart and Soul Journeys, LLC

January 2017

Acceptance by Client of a Marketing agreement issued by Heart and Soul Journeys, LLC (“Heart and Soul Journeys, LLC”), to which these terms and conditions are attached or by reference made a part of, shall constitute an agreement between Client and Heart and Soul Journeys, LLC with respect to the responsibilities of Heart and Soul Journeys, LLC and Client pursuant to the Marketing agreement and these Standard Terms and Conditions (collectively referred to as the “Agreement”). Client represents and warrants that: (1) it has the full authority to enter into the Agreement and to perform the acts or obligations required of it in the Agreement; (2) the execution of the Agreement and the performance of its obligations do not and will not violate any other agreement that it is a party to; (3) the Agreement will constitute the legal, valid and binding obligation of each party, enforceable against each party in accordance with its terms. The formation, construction, performance and enforcement of the Agreement shall be in accordance with the laws of the State of Connecticut without regard to its conflict of law provisions.

Scope of Service

Heart and Soul Journeys, LLC shall provide only those professional services and/or products specified in the Agreement (the “Work”). Client understands and agrees that, unless listed in the Agreement, Heart and Soul Journeys, LLC is not responsible for any other work or scope of supply or any disclosure, notifications or reports that may be required to be made to third parties, including appropriate governmental authorities. If Client requests and Heart and Soul Journeys, LLC agrees to perform any services that are in addition to or outside the scope of Work identified in the Agreement, Client shall promptly pay Heart and Soul Journeys, LLC for such services in accordance with the terms and rates shown in the Agreement or, if no such terms or rates are shown in the Agreement, in accordance with Heart and Soul Journeys, LLC’s standard terms and rates for the services performed.

Client’s Content

Client represents and warrants to Heart and Soul Journeys, LLC that: (1) it owns, or has acquired the express written authority to use all of the content Client gives to Heart and Soul Journeys, LLC, (“Client Content”); (2) Client Content does not contain any obscene, threatening, harassing, vulgar, defamatory, libelous, infringing or unlawful content; (3) Client Content does not infringe upon nor violate the rights of any third party, including copyrights and trademarks; (4) there are no claims against Client regarding Client Content; and (5) Client will at all times ensure that it is in compliance with the terms and conditions of any licensing contracts between Client and a third party.

Client’s Ownership and Heart and Soul Journeys, LLC’s Ownership

Once payment is received, Heart and Soul Journeys, LLC grants all rights to content produced for Client exclusively to Client, excluding third party components. Notwithstanding the foregoing, Heart and Soul Journeys, LLC retains the right to display graphics and other Web content elements as examples of Heart and Soul Journeys, LLC’s work. Heart and Soul Journeys, LLC shall own, and retain all intellectual property rights in all preexisting material, information, know-how and data created.

Access to Site and Information

Client will provide for right of entry and access to all relevant sites, equipment and other information in its control or possession as is necessary for Heart and Soul Journeys, LLC to timely and fully complete the Work. Heart and Soul Journeys, LLC is not responsible for the quality or accuracy of data or information, nor for the methods from which the data was developed, where such information or data is provided by or through Client or others that are not agents or Heart and Soul Journeys, LLC, and Heart and Soul Journeys, LLC has no obligation to investigate facts or conditions not disclosed to it by Client.

Payment Terms

Client’s failure to pay on time constitutes a material breach of contract by Client permitting Heart and Soul Journeys, LLC to suspend its performance hereunder; additionally, Heart and Soul Journeys, LLC shall have all other remedies permitted to Heart and Soul Journeys, LLC by law, equity and these terms. Heart and Soul Journeys, LLC reserves the right to apply interest charges at 12% APR on any past-due invoice. If Client has provided Heart and Soul Journeys, LLC with a credit card authorization, Heart and Soul Journeys, LLC shall be entitled to charge the invoice amount and interest against such card. Client will be responsible for all collections costs, including reasonable attorney’s fees, incurred by Heart and Soul Journeys, LLC as a result of any collection process or proceeding.

Notice and Notice of Cancellation:

Heart and Soul Journeys, LLC or Client may cancel this Agreement in advance by delivering written Notice of Cancellation to the other party at the address provided at least sixty (60) days prior to the requested cancellation date. Any notice (“Notice”) shall be deemed sufficient if addressed in writing and mailed to the party’s address listed in the Agreement or emailed to an authorized representative, provided such notice confirms the date of receipt.

WARRANTY DISCLAIMER

EXCEPT AS EXPRESSLY SET FORTH HEREIN, HEART AND SOUL JOURNEYS, LLC’S SERVICES ARE PROVIDED “AS IS.” HEART AND SOUL JOURNEYS, LLC EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. HEART AND SOUL JOURNEYS, LLC DOES NOT WARRANT THAT THE SERVICES WILL MEET CLIENT’S SPECIFIC REQUIREMENTS OR THAT THE SERVICES WILL BE COMPLETELY ERROR-FREE, COMPLETELY SECURE OR UNINTERRUPTED. HEART AND SOUL JOURNEYS, LLC SHALL NOT BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY UNAVAILABILITY OR INOPERABILITY OF TELECOMMUNICATIONS SYSTEMS, THE INTERNET, SEARCH ENGINES, SOCIAL MEDIA SITES, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMTION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF HEART AND SOUL JOURNEYS, LLC. CLIENT ASSUMES ALL RISKS RELATED TO PROCESSING OF TRANSACTIONS RELATED TO ELECTRONIC COMMERCE. Client’s sole remedy for a breach of the foregoing warranty is to require Heart and Soul Journeys, LLC to correct or replace, at Heart and Soul Journeys, LLC’s election, the affected service if Client gives Notice to Heart and Soul Journeys, LLC of such breach within 6 months from the date the affected services were provided.

LIMITATION OF LIABILITY

EXCEPT WITH RESPECT TO EACH PARTY’S INDEMNITY OBLIGATIONS HEREUNDER, BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS AND/OR THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY, IN NO EVENT WILL HEART AND SOUL JOURNEYS, LLC, IT’S OWNERS, OFFICERS, OR EMPLOYEES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF USE, DATA, BUSINESS OR PROFITS OR COSTS OF COVER) ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, OR PROFESSIONAL ERRORS OR OMISSIONS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON AGREEMENT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. HEART AND SOUL JOURNEYS, LLC, IT’S OWNERS, OFFICERS, OR EMPLOYEES’ CUMULATIVE LIABILITY TO CLIENT, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO HEARTA AND SOUL JOURNEYS, LLC BY CLIENT PURSUANT TO THE PREVIOUS THREE MONTHS OF THE AGREEMENT. HEART AND SOUL JOURNEYS, LLC SHALL NOT BE LIABLE TO CLIENT OR CLIENT’S REPRESENTATIVES FOR ANY HARM RESULTING FROM ANY USE OF CONFIDENTIAL INFORMATION.

Indemnification

Client agrees to defend, indemnify and hold harmless Heart and Soul Journeys, LLC from and against any and all claims, liabilities, suits, actions, proceedings, demands, damages, losses, costs, and expenses, including reasonable attorney’s fees, based upon a third party claim arising, directly or indirectly, out of the Client Content.

How Disputes will be Resolved/Legal Issues

Heart and Soul Journeys, LLC’s offices are in Florida. Therefore, the formation, construction, performance and enforcement of the Agreement shall be in accordance with the laws of the State of Florida without regard to its conflict of law provisions. Any action or proceeding arising from a claimed breach of this Agreement shall only be brought in the appropriate state or federal court in the State of Florida and Client consents to the jurisdiction of such Florida courts (and appellate courts) and by agreeing waives the right to object to Florida venues or jurisdiction. Client also consents to in personam jurisdiction (personal jurisdiction) and agrees that service by registered mail, return receipt requested, is sufficient. If Heart and Soul Journeys, LLC prevails in any dispute arising out of this Agreement, Heart and Soul Journeys, LLC will be entitled to reimbursement for its expenses and costs (including attorneys’ fees), regardless of whether any legal action is filed. Any action or proceeding arising out of this Agreement must be instituted within two (2) years after such cause of action has accrued. Client acknowledges that if the remedy at law for any breach, or threatened breach, of this Agreement is by its nature inadequate to compensate Heart and Soul Journeys, LLC for the damages that are certain to result then Heart and Soul Journeys, LLC may seek temporary and/or permanent injunctive relief (an official order to stop!), and any other available equitable relief and/or damages, without any requirement to obtain a bond or prove monetary damages.

Force Majeure

Neither party shall be liable for any default or delay in the performance of its obligations under this Agreement to the extent such default or delay is caused, directly or indirectly, by reason of fire, earthquake, labor dispute (other than labor disputes of such party or its independent contractors and its employees), act of God, acts of terrorism, or any local, state, federal, national or international law, governmental order or regulation or any other event beyond a party’s reasonable control.

Enforcement

Each provision of the Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision is held invalid or unenforceable, the remainder of the Agreement shall remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision. Indemnification, Client’s Ownership and Heart and Soul Journeys, LLC’s Ownership and shall survive termination or cancellation of the Agreement.