FINANCE AND ADMINISTRATIVE TERMS OF SERVICE
THIS FINANCE AND ADMINISTRATIVE TERMS OF SERVICE are made active upon signature by and between Zazmic Finance, a California company (the “Company”), and Client (“Client”), individually referred to as a “Party”, and together referred to as the “Parties”. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Company and Client hereby agree as follows:
SECTION 1: ENGAGEMENT
Effective upon the execution of the terms of service, Client hereby engages the Company to render the services set forth in the Pricing Policy.
SECTION 2: COMPENSATION AND REIMBURSABLE EXPENSES
A. In full consideration for the performance of the Services hereunder, and for any rights granted or relinquished by the Company under those Terms of Service, Client shall pay the Company as set forth in the Pricing Policy.
B. The Company shall deliver a monthly invoice to Client, with the detail of the hours billed or work done, payable on receipt.
C. The Company agrees to furnish tools and materials necessary to perform the Services and shall be responsible for all expenses customarily associated with the services unless Client pre-approves reimbursement of such expenses. Client shall be responsible for all expenses associated with Software licenses or subscriptions necessary for specific features requested by Client, as well as any external fee, tax, or expenses incurred by or on behalf of Client.
Upon pre-approval of the Company’s expenses by Client, the Company shall promptly submit invoices to Client and, if applicable, include itemized statements of reimbursable expenses. Unless agreed otherwise in the agreement, Client shall pay all fees and reimbursable expenses within fifteen (15) days, net of any discount other than described in this Term of Services, for hourly services and reimbursable expenses, and in advance of every month of service for subscription services. Subscription services will automatically renew every month until canceled by Client with a (thirty) 30-day notice. Balances unpaid after fifteen (15) days shall accrue the greater of 2% or US$50 per month late fee, starting from the invoice date. Balances unpaid after fifteen (15) days of the invoice date shall also be increased by all collection, legal, or other fees incurred in collecting the overdue payments, including but not limited to fees from 3rd Party collection agencies, or attorneys. If a balance remains unpaid thirty (30) days after the invoice date, Company shall be entitled, at its own discretion, to make every effort to collect the balance due, through its own collection department, collection agencies, arbitration, lawsuit, or any legal avenue at its disposal.
D. The Company acknowledges and agrees that, except as provided in this Section 2, it shall not be entitled to, and Client shall not be obligated to pay, any monies or other compensation for the Services provided and rights granted under those Term of Services.
SECTION 3: TERM AND TERMINATION
A. The term (the “Term”) of this agreement shall commence on the date hereof and end on the date set forth in the Pricing Policy and, unless terminated by the Parties, will continue until final completion of the Services. The Term may be adjusted by written amendment based upon the needs of Client and the availability of the Company.
B. The Parties may terminate this agreement at any time, with or without cause, by providing 15 days’ prior written notice. Termination notice shall be made at the Parties’ address indicated in this agreement or any such physical or electronic address as either Party may notify the other of and shall be deemed given upon delivery if personally delivered, or hundred-twenty (120) hours after deposited in the mail, postage prepaid, registered or certified mail, return receipt requested. This agreement may be deemed terminated if a Party is notified being in breach of any material provision of this agreement, or in default of any obligation hereunder and the notified Party has not cured the material breach or the default or is otherwise unable to perform any of the obligations contained in those Terms of Service after fifteen days (15) from the time of notice.
C. The parties may modify or amend this agreement at any time by mutual consent. Any modification or amendment of those Terms of Service has to be done in writing, and executed by both parties to take effect at the date agreed upon by the parties. Any such executed modification or amendment of those Terms of Service is deemed part of this agreement with all rights and obligations agreed therein, unless otherwise modified or amended.
D. Neither Party shall be liable or deemed to be in default for any delay or failure in performance under those Term of Services or interruption of service resulting, directly or indirectly, from acts of God, civil or military authority, acts of the public enemy, war, riots, civil disturbances, insurrections, accidents, epidemics, pandemics, fire, explosions, earthquakes, floods, the elements, strikes, labor disputes, shortages of suitable parts, materials, labor or transportation or any causes beyond the control of such Party.
E. Upon termination by either Party and provided all Company’s fees and reimbursable expenses have been paid, the Company shall provide to Client, upon request, any and all copies of the work product developed by the Company exclusively in connection with this agreement (the “Materials”) (as they then exist) and any and all tangible materials requested by Client and provided to the Company in connection with this agreement.
F. Upon termination of this agreement, all rights and duties of the Parties toward
each other shall cease except that
- Client shall pay within 30 days of the effective date of termination all undisputed outstanding amounts due to the Company.
- Section 5, 6, 7, 8, and 9 shall survive the termination of this agreement.
G. Upon termination of this agreement Parties shall keep confidential all aspects of their relationship, other than the fact that they had a contractual agreement covering the scope of services described in the Pricing Policy. In particular, Parties shall not disclose, publicly or privately, any aspect of their operations, pricing, clients and customers, markets, processes, relationship with customers, clients, vendors, contractors, employees, investors, shareholders, owners, or any other partners, or any operational, strategic, marketing, technical, financial, fiscal, legal, or other information pertaining to the Parties without their prior authorization.
Upon termination, Parties shall not make any disparaging comment about each other, or circulate any disparaging information or material related to them.
SECTION 4: PARTIES RELATIONSHIP
A. The Company agrees to perform the Services hereunder solely as a service provider. The parties to those Terms of Service recognize that this agreement does not create any actual or apparent agency, partnership, franchise, or relationship of employer and employee between the parties. Neither Party is authorized to enter into or commit the other Party to any agreement, and neither Party shall represent themselves as the agent or legal representative of the other Party unless otherwise agreed by the Parties.
B. Client shall not be liable for taxes, Worker's Compensation, unemployment insurance, employers' liability, employer's FICA, social security, withholding tax, or any other taxes or withholding for or on behalf of the Company or any other person consulted or employed by the Company in performing Services under those Terms of Service. All such costs shall be the Company's responsibility.
SECTION 5: PROPRIETARY RIGHTS
A. Each Party shall retain ownership of any materials, sources, methods, and intellectual property that they respectively owned or had an interest in prior to the Effective Date of this agreement (“Pre-Existing Materials”).
B. The Parties shall retain all rights to approaches, skills, knowledge, and experience acquired by them during the term of those Terms of Service. Any template developed by the Company shall remain the exclusive intellectual property of the Company. The Company agrees to assign and hereby does assign to Client all moral and intellectual property rights in the Work Product developed exclusively for Client, and to the extent that any moral rights cannot be assigned, the Company hereby waives and agrees not to enforce them.
C. The Parties shall take, and shall require their employees and subcontractors to take, all actions as may be necessary to secure their respective rights and title in any Work Product or Pre-Existing Materials. If a Party is unavailable, that Party hereby irrevocably appoints the other and their duly authorized officers and agents as the unavailable Party’s agent and attorney-in-fact to act on the unavailable Party’s behalf and do all lawfully permitted acts to further the issuance of intellectual property rights registrations in the Work Product or Pre-Existing Materials. This power of attorney shall be deemed coupled with an interest.
SECTION 6: CONFIDENTIALITY AND NON-DISCLOSURE
A. In connection with the performance of Services hereunder, the Parties may be exposed to confidential and proprietary information, whether or not so identified (including without limitation those Terms of Service). All such confidential and proprietary information shall be subject to the terms and conditions of the Terms of Service to Protect Confidential Information, Assign Inventions, and Prevent Unfair Solicitation which is an integral part of the Terms of Service, in the Privacy Policy.
B. Neither Party shall, without the prior written consent of the other Party, use the other Party's name in any advertising or promotional literature or publish any articles relating to the other Party, other than acknowledging their relationship.
SECTION 7: REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION
A. The Company represents and warrants that:
i) The Company shall perform the services and carry out its obligations hereunder in accordance with generally accepted professional techniques and practices, and appropriate safety measures. The Company agrees that it will periodically keep Client advised as to progresses made or issues encountered in performing the services under those Terms of Service. The Company shall obtain all permits or permissions required to comply with such laws, rules, or regulations. The Company represents and warrants that: (a) neither the Work Product nor the Pre-Existing Materials (including, in each case, Client’s use thereof) shall infringe upon or violate any intellectual property or proprietary rights of any third Party, or any law; (b) it has the full power and authority to enter into those Terms of Service and to grant Client the rights granted herein; (c) all information provided to Client is accurate; and (d) it shall comply with all laws (including, without restriction, those applicable to taxes and employment); (e) it has no outstanding agreement or obligation that is in conflict with any of the provisions of those Terms of Service, or that would preclude it from complying with the provisions hereof, and further certifies that it will not enter into any such conflicting agreement during the term of those Terms of Service.
ii) The Materials will not contain libelous, injurious, or unlawful material and will not violate or in any way infringe upon the personal or proprietary rights of third parties, including property, contractual, employment, trade secrets, proprietary information, and non-disclosure rights, or any trademark, copyright, or patent, nor will they contain any format, instruction, or information that is inaccurate or injurious to any person, computer system, or machine;
iii) The Parties have full power and authority to enter into and perform their obligations under those Terms of Service; those Terms of Service are a legal, valid, and binding obligation of the Parties, enforceable against it in accordance with its terms (except as may be limited by bankruptcy, insolvency, moratorium, or similar laws affecting creditors' rights generally and equitable remedies); entering into this agreement will not violate the Charter or By-laws of the Parties or any material contract to which they are a Party.
iv) The Company will perform the Services in accordance with the specifications established by Client.
v) Client agrees to support the Company with its staff and all necessary resources for the Company to provide the services described in those Terms of Service as well as provide the Company with all the information and support reasonably required in the performance thereof.
B. The Parties hereby agree to indemnify, defend and hold each other harmless, their subsidiaries, and affiliates, and their officers and employees, from any damages, claims, liabilities, and costs, including reasonable attorney's fees, or losses of any kind or nature whatsoever ("Loss") which may in any way arise from the Services performed by the Company hereunder, the work of employees of the Company while performing the Services of the Company hereunder, or any breach or alleged breach of those Terms of Service by the Company, including the representations and warranties set forth herein. The Client shall retain control over the defense of, and any resolution or settlement relating to, such Loss. The Company will cooperate with Client and provide reasonable assistance in defending any such claim.
SECTION 8: DAMAGES AND REMEDIES
A. In the event of termination of this agreement by the Parties pursuant to Section 3.B, the Parties shall have all remedies available to it at law and in equity. Any and all Materials prepared for and/or delivered for the exclusive use of Client prior to termination shall remain the property of Client.
B. In the event of termination pursuant to Section 3.B, the Company shall be entitled to keep all considerations already paid hereunder and the Client's sole obligation shall be to pay the Company the amount due for Services already performed, and Materials already accepted.
C. Except as provided in those Terms of Service, the Parties agree that any dispute or controversy arising out of, relating to or in connection with the interpretation, validity, construction, performance, breach or termination of this agreement shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “Rules”). The arbitrator may grant injunctions or other relief in such dispute or controversy. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator's decision in any court of competent jurisdiction. The arbitrator(s) shall apply U.S. laws and standards to the merits of any dispute or claim, without reference to conflicts of law rules. The parties hereby consent to the personal jurisdiction of the state and federal courts located in Delaware for any action or proceeding arising from or relating to those Terms of Service or relating to any arbitration in which the parties are participants. The parties shall each pay one-half of the costs and expenses of such arbitration, and each shall separately pay their counsel fees and expenses unless otherwise required by law. The parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this arbitration Terms of Service and without abridgment of the powers of the arbitrator.
Section 9: GENERAL TERMS
A. Those Terms of Service shall be governed and construed in accordance with the laws of the State of Delaware applicable to contracts made and fully performed therein, and the state and federal courts located in Delaware shall have exclusive jurisdiction of all suits and proceedings arising out of or in connection with those Terms of Service. Both parties hereby submit to the jurisdiction of said courts for purposes of any such suit or proceeding, and waive any claim that any such forum is an inconvenient forum.
B. Any notices to either Party under those Terms of Service shall be in writing and delivered by hand or sent by nationally recognized overnight mail carrier service, personal delivery, email or facsimile, or by registered or certified mail, return receipt requested, to the address set forth on the signature page hereto or to such other address as that Party may hereafter designate by notice. Notice shall be effective when received, which shall be no greater than three (3) business day after being sent by an internationally recognized overnight mail carrier, the same day when sent via email, facsimile or personal delivery or five (5) days after being sent by mail.
C. Neither this agreement nor any right hereunder or interest herein may be assigned or transferred by either Party without the express written consent of the other Party.
D. The waiver by either Party of a breach or violation of any provision of those Terms of Service shall not constitute a waiver of any subsequent or other breach or violation.
E. Following the expiration or termination of this agreement, whether by its terms, operation of law, or otherwise, the terms and conditions set forth, as well as any term, provision, or condition required for the interpretation of those Terms of Service or necessary for the full observation and performance by each Party hereto of all rights and obligations arising prior to the date of termination, shall survive such expiration or termination.
F. Those Term of Services represent the entire agreement between the parties with respect to the subject matter herein and supersedes all prior written and oral agreement between them. The Terms of Service, and any rights, obligations, or provisions contained in it, may not be amended, changed, waived, or supplemented in any way except by written agreement signed by both parties.
G. If any provision of those Terms of Service, or portion thereof, is found to be invalid or unenforceable, such provision will be enforced to the maximum extent permissible and the remainder of this agreement will continue in full force and effect.
H. Those Terms of Service may be executed in any number of counterparts, each of which shall be enforceable against the parties executing the counterparts and all together shall constitute one instrument.