TERMS AND CONDITIONS
General Service Terms
New Park Creative, LLC (“NPC”) provides content and digital marketing related services (collectively, “Services”) to clients (each a “Client”) subject to these general terms and conditions (“Terms”). Such Services shall be provided in accordance with statements of work agreed to from time to time by NPC and Client (“SOW”) which shall be governed by these Terms. In the event of a conflict between these Terms and an SOW, the terms of the SOW shall prevail.
Please read these Terms and any SOW carefully before using the Services. By using the Services, you agree to be legally bound by these Terms and all terms, policies and guidelines incorporated by reference in these Terms.
NPC reserves the right to change or modify any of the terms and conditions contained in these Terms, or any policy or guideline applicable to the Services, at any time and in its sole discretion. Unless otherwise specified, any changes or modifications will be effective immediately, and Client’s continued use of the Services after such changes or modifications will constitute acceptance of such changes or modifications. You should regularly review the Terms and any policies and documents incorporated in them to understand the Terms that apply to your use of the Services.
Payment and Billing
Client agrees to provide all necessary purchase order numbers and any other internal information for the purpose of processing invoices prior to the close of each month for which payment will be due. All invoices must be paid pursuant to the terms of an applicable SOW. Overdue amounts shall bear interest, at the rate equal to the lesser of 1.5% per month, or the highest rate allowed by law, calculated from the due date until the amounts are paid, together with all expenses incurred in collection, including reasonable attorneys’ fees and expenses. If Client fails to make payment on any due date, NPC shall have the right to suspend any or all Services and, if such failure to make payment has not been cured within thirty (30) days of the due date, upon written notice terminate all Services. Termination of any Services by NPC shall not limit NPC from pursuing any other remedies available to it, including injunctive relief, nor shall termination relieve Client of its obligation to pay all fees and expenses accruing prior to such termination. In any action to collect fees due and owing, Client agrees to also pay NPC’s reasonable costs and attorney’s fees. Any account that remains dormant for 45 days or longer shall require an additional fee to resume work imposed at the sole discretion of NPC.
Payment for Non-Cancelable Materials
From time to time, in providing the Services, NPC may commit to or purchase on behalf of Client certain materials or services, including without limitation modules, photography, and/or other external services (“Non-Cancelable Materials”). All expenses or costs associated with Non-Cancelable Materials shall be the responsibility of Client. NPC shall use commercially reasonable efforts to minimize the use of Non-Cancelable Materials immediately upon written notification from Client. NPC will provide documentation of such Non-Cancelable Materials upon request from Client.
Client is responsible for all taxes, duties and customs charges imposed with respect to the Services provided under these Terms and any applicable SOW, if any, excluding taxes based on NPC’s net income. Connecticut State sales tax shall be added to the charges provided for in these Terms and any SOW where applicable.
Either party may terminate any SOW upon fifteen days (15) written notice to the other party. In the event of a default by Client in the performance of any of its material duties and obligations, the Client must cure such default within thirty (30) days of the receipt of a written notice of default. Where default is not cured within fifteen (15) days of the receipt of notice of said default, NPC may immediately terminate Services.
Either party may immediately terminate any SOW by giving written notice to the other party if the other party is insolvent or has a petition brought by or against it under the insolvency laws of any jurisdiction if the other party makes an assignment for the benefit of creditors if a trustee or similar agent is appointed with respect to any property or business of the other party, or in the case of the Client if the Client materially breaches its obligations to make payment pursuant to this Agreement.
Upon termination of an SOW, neither party shall have any further liability or obligation to the other, except that each party shall remain liable to the other with respect to any liability arising prior to such termination including any outstanding invoices or balances. Client shall settle all outstanding invoices or balances within thirty (30) days of termination. NPC shall return all Client owned materials including without limitation, Client Data to Client within thirty (30) days of Client settling all outstanding invoices and balances. Client shall pay all reasonable costs associated with such transfer. If upon termination there exists any material(s) provided by NPC to Client in performance of the Services for which NPC has not received full and final compensation, Client agrees and acknowledges that it is not licensed to use such materials pursuant to these Terms or any SOW until NPC has received full and final compensation for the Services.
During the term of any SOW and/or when providing Services, each party may learn and have access to certain information of the other party which has commercial value or other utility in the business in which the disclosing party is engaged, qualifies as a trade secret under applicable law or such other party designates as being “CONFIDENTIAL” or with words of similar import (the “Confidential Information”). Without limiting the foregoing, all NPC owned materials, including without limitation NPC information provided by, held for or related to NPC clients (“Client Information”), deliverables, proposals, pricing information shall be deemed to be the Confidential Information of NPC without the need to be marked or designated as such. Except as expressly provided otherwise herein, neither party will, without the other party’s prior written approval, publish or otherwise disclose to any third-party, with the exception of certain contractors of NPC working on matters relating to the Services, any Confidential Information of the other party. Each party shall use reasonable care to safeguard the Confidential Information of the other party and to prevent the unauthorized use or disclosure thereof. Notwithstanding any of the foregoing, Confidential Information shall not include information that: (i) is in the public domain at the time of its use or disclosure through no fault of the party receiving Confidential Information (the “Receiving Party”) or, in the case of NPC, its contractors; (ii) was lawfully in the possession of or demonstrably known by the Receiving Party prior to its receipt from the party disclosing Confidential Information (the “Disclosing Party”); (iii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (iv) becomes known by the Receiving Party from a third-party and, to the Receiving Party’s knowledge, is not subject to an obligation of confidentiality to the Disclosing Party. Client acknowledges that a breach of its confidentiality obligations under these Terms may, as determined by a court of competent jurisdiction, result in irreparable and continuing damage to NPC for which monetary damages will not be sufficient, and agrees, notwithstanding anything herein to the contrary, that NPC will be entitled to seek, in addition to its other rights and remedies hereunder or at law, injunctive and/or other equitable relief, and such further relief as may be proper from a court of competent jurisdiction.
Each Parties’ Confidentiality obligations shall survive the termination of any agreement between the Parties and shall remain in effect until such Confidential Information no longer qualifies as such or until the disclosing party sends the receiving party written notice releasing receiving party from such Confidentiality obligations, whichever occurs first.
NPC may use Client’s information to the extent necessary to provide the Services. Without limiting the foregoing, NPC may use Client’s information to: provide the Services; troubleshoot problems; exchange of documents for review and delivery; collect fees owed; authenticate users, inform Client about online and offline offers, products, services, and updates; detect and protect against error, fraud and other criminal activity; enforce NPC’s Terms and policies.
If Client chooses to use our Services, we use your address, credit card and billing information to bill you and provide Services.
NPC does not share, sell or rent any of your information to third parties other than as outlined in these Terms. However, Client information may be disclosed in the normal scope of business to provide our services. We may use third parties or subcontractors (“Internal Service Provider”) to facilitate or outsource one or more aspects of the Services that we provide to you, and therefore we may provide some of your personal information directly to these Internal Service Providers. These Internal Service Providers are subject to contractual restrictions that limit their use and disclosure of information we provide them. All Internal Service Providers are selected and used at the sole discretion of NPC
NPC reserves the right to disclose information relating to Client’s use of the Services if required to do so by law, regulation, local, state or federal governmental request or in the good faith belief that such action is necessary to: (a) comply with legal process served on NPC or its affiliates; (b) protect and defend the rights or property of NPC or its affiliates; or (c) act under reasonable and good faith circumstances to protect the personal safety of users of the Services or members of the public.
Data and Security
“Client Data” means all information provided to NPC by Client for use by NPC in providing the Services which is stored on computers or other electronic media by NPC or a third-party at NPC’s request on Client’s behalf. Client Data includes, without limitation: (a) information on paper or other nonelectronic media provided to NPC for use in providing the Services, or information formerly on electronic media; (b) information provided to NPC by Client in electronic format; (c) any information obtained by NPC in providing the Services per Client’s request; and (d) personally identifiable information from Client other third parties for use in providing the Services to Client.
NPC will provide reasonable and appropriate measures in compliance with industry standards to secure Client’s Data against accidental or unlawful, loss, access, or disclosure. NPC uses reasonable procedural and technical safeguards to protect your personal information against loss or theft as well as unauthorized access and disclosure to protect your privacy. NPC employs many different security techniques to protect such data from unauthorized access by users inside and outside the company. However, “perfect security” does not exist on the Internet and NPC makes no guarantee or warranty of any kind regarding surety of data.
Unless it receives Client’s prior written consent, NPC: (i) shall not access, process, or otherwise use Client Data other than as necessary to facilitate the Services; (ii) shall not give any of its employees access to Client Data except to the extent that such individual needs access to facilitate performance under this Agreement and (iii) shall not give any third party access to Client Data, including without limitation NPC’s other Clients, except subcontractors to the extent that such individual needs access to facilitate performance under this Agreement. Notwithstanding the foregoing, NPC may disclose Client Data as required by applicable law or by proper legal or governmental authority.
Except as otherwise permitted herein, NPC shall not erase Client Data, or any copy thereof, without Client’s prior written consent and shall follow any written instructions from Client regarding retention and erasure of Client Data. Unless prohibited by applicable law, NPC shall purge all systems under its control of all Client Data at such time as Client may request. Promptly after erasure of Client Data or any copy thereof, NPC shall certify such erasure to Client in writing. In purging or erasing Client Data as required by this Agreement, NPC shall leave no data recoverable on its computers or other media, to the maximum extent commercially feasible.
NPC warrants that all Services will be performed in a professional manner in accordance with generally accepted industry standards. No particular results are guaranteed or warrantied by NPC. Client must report any deficiencies in Services to NPC in writing within ten (10) business days of performance of such Services in order to receive warranty remedies.
THIS WARRANTY IS GIVEN IN LIEU OF ALL OTHER EXPRESSED OR IMPLIED WARRANTIES. NO OTHER WARRANTIES APPLY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL SERVICES ARE PROVIDED “AS IS” AND “WHERE IS” AND EACH PARTY DISCLAIMS ALL WARRANTIES, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE. NPC DOES NOT WARRANT THAT THE SERVICES, SERVICE DELIVERABLES, OR ANY THIRD-PARTY PRODUCTS ARE ERROR-FREE.
FOR ANY BREACH OF THE WARRANTY, CLIENT’S EXCLUSIVE REMEDY, AND NPC’s ENTIRE LIABILITY, SHALL BE LIMITED TO THE RE-PERFORMANCE OF THE SERVICES. IF NPC IS UNABLE TO RE-PERFORM THE SERVICES AS WARRANTED, CLIENT SHALL BE ENTITLED TO RECOVER THE FEES PAID TO NPC FOR THE DEFICIENT SERVICES. IN NO CASE SHALL ANY RECOVERY EXCEED THE AGGREGATE AMOUNTS PAID TO NPC BY CLIENT FOR THE SPECIFIC SERVICES THAT ARE THE SUBJECT OF THE CLAIMED BREACH OVER THE THIRTY DAY (30) PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIMED BREACH.
Limitation of Liability
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RELATING TO LOST PROFITS, LOSS OF DATA OR LOSS OF BUSINESS OPPORTUNITY) EVEN IF THE PARTY CLAIMING SUCH DAMAGES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN ANY CASE UNDER ANY THEORY OF RECOVERY, NPC’s AGGREGATE LIABILITY FOR DAMAGES HEREUNDER SHALL NOT EXCEED THE AGGREGATE AMOUNTS PAID TO NPC BY CLIENT FOR THE SPECIFIC SERVICES THAT ARE THE SUBJECT OF THE CLAIM OVER THE THIRTY (30) DAY PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO SUCH CLAIM. CLIENT ACKNOWLEDGES THAT THE LIMITATION OF LIABILITIES AND DISCLAIMERS OF WARRANTIES CONTAINED HEREIN CONSTITUTE AN AGREED UPON ALLOCATION OF RISK BETWEEN THE PARTIES, HAVE BEEN FACTORED INTO PRICING OF THE SERVICES, AND ARE AN ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES.
Client agrees to indemnify, defend and hold harmless NPC and its subsidiaries and affiliated companies, third-party service providers and each of their respective officers, directors, employees, shareholders and agents (each an “Indemnified Party” and, collectively, “Indemnified Parties”) from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney’s fees) threatened, asserted, or filed by a third-party against any of the Indemnified Parties arising out of or relating to (i) Client’s use of the Services; (ii) any violation by Client of any of NPC’s policies; and/or (iii) any acts or omissions by Client including without limitation those arising out of NPC’s use of text, images, artwork, or other materials provided by Client for use in providing the Services. Client is responsible for the accuracy, completeness, and propriety of all information concerning Client’s products and services which are provided to NPC in providing Services.
Client guarantees that all elements of text, images, or other artwork provided by Client are either owned by Client or that Client has a valid license or permission from the owner to use such materials. Upon completion of any project SOW and upon full and final payment of all balances by Client, Client will maintain ownership of the complete design created by NPC pursuant to any SOW. Unless otherwise stated in an SOW where the Services include the capturing of video, still images, or audio, NPC will transfer ownership of all raw footage and images and all project files to Client where necessary and/or applicable.
Client shall obtain releases, licenses, permits, or other authorization to use testimonials, copyrighted materials, photographs, artwork, video, music, or any other property or rights belonging to third parties for use in performing Services (If applicable). Client bears sole responsibility for obtaining and/or maintaining any and all licenses necessary for completion of any SOW, in accordance with terms set by the licensor. Where materials from a third party will be necessary for the completion of an SOW, it is Client’s responsibility to obtain or seek assignment of any releases, licenses, permits, or authorization to use testimonials, copyrighted materials, photographs, artwork, video, music, or any other property or rights belonging to third parties for use of such materials in the completion of any SOW.
Each party agrees to cooperate reasonably and in good faith with the other in the performance of the Services and acknowledges that delays may otherwise result. Client agrees to provide or provide access to information relating to Client or otherwise requested information or materials reasonably necessary to perform the Services. NPC will use its best efforts to fulfill its obligations in performing the Services and providing deliverables listed in any SOW. Where a project goes dormant for more than thirty (30) days due to no fault of NPC, NPC reserves the right to seek a progress payment within its sole discretion. NPC may in its sole discretion charge a restart fee of 10% of the total project cost to initiate work on a project dormant for more than thirty (30) days due to no fault of NPC.
Changes to Scope
Any changes to the scope of Services under an SOW shall be made in writing and signed by an authorized representative of each party prior to implementation of such changes, or in accordance with any SOW (“Change Request”). NPC will not proceed with any Change Request until such Change Request is either approved by Client or Client requests a different course of action.
Relationship of the Parties
Neither these terms nor any SOW, will be construed as creating a partnership, joint venture, or agency relationship or as granting a franchise. Each party agrees to perform under these Terms or any SOW solely as an independent contractor and shall not hold itself out as an employee or agent of the other party in any sense. No party shall have authority to act for or obligate the other party in any way or to make any representation or warranty on behalf of the other party.
By engaging our Services, Client agrees not to knowingly hire or contract separately with any person employed by NPC during the time NPC provides Client with Services, and within one year of the last Services provided for Client. In the event Client hires or contracts separately with such a person within one year of the last Services provided for Client, NPC shall receive from Client, liquidated damages in the amount of Fifty-percent (50%) of such person’s salary, calculated using the salary of such person while employed by NPC. It is acknowledged and agreed by the Parties that, in such event, each party’s damages would be impossible to ascertain and that such amount constitutes a fair and reasonable amount of compensation therefor. Such liquidated damages are hereby fixed and are not intended to be nor shall they be treated as either a partial or full waiver or discharge of any right or remedy of NPC or Client provided hereunder or by law.
Governing Law; Venue
All questions concerning the validity, interpretation and performance of these Terms or any SOW shall be governed by and decided in accordance with the laws of the State of Connecticut, without regard to any conflicts of laws and principles thereof. The parties hereby submit and consent to the exclusive jurisdiction of any state or federal court located within the State of Connecticut and agree that all actions or proceedings relating to these Terms or any SOW shall be litigated in such courts, and each of the parties waives any objection which it may have based on improper venue or forum non conveniens to the conduct of any such action or proceeding in such court.
The parties agree to make reasonable efforts to resolve any dispute arising between the parties prior to pursuing litigation. Such efforts shall include the escalation of the dispute to a senior manager of each party who has full authority to resolve the dispute on behalf of the party. In the event that Client brings a lawsuit for alleged breach of these Terms or any SOW, and Client does not prevail in the litigation, Client agrees that NPC shall be paid its reasonable attorneys’ fees and costs incurred in defending the litigation.
In the event any provision of these Terms or any SOW is held to be invalid or unenforceable; the remaining provisions shall remain in full force and effect.
The waiver by either party of any default or breach of these Terms or any SOW shall not constitute a waiver of any other or subsequent default or breach. EXCEPT FOR ACTIONS FOR NONPAYMENT OR BREACH OF EITHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THESE TERMS OR ANY SOW MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
These General Service Terms and associated SOW(s) (collectively the “Agreement”) set forth the entire understanding between the parties with respect to the services described in the SOW. There are no representations, warranties, covenants, conditions or undertakings other than those expressly set forth herein. These Terms or any SOW supersedes all prior negotiations, agreements, and understandings between the parties, whether written or oral, with respect to the subject matter hereof. In the event of a conflict with the terms and conditions of any order or invoice submitted by Client, the terms and conditions of these Terms or any SOW shall prevail.
NPC may, in its reasonable discretion, use third-party contractors inside or outside the United States to perform any of its obligations hereunder without approval from Client.
All Terms herein which should by their nature survive the termination of this or any SOW shall so survive.
The parties hereby acknowledge that these Terms or any SOW is the product of negotiation between the parties and that the identity of the party who prepared these Terms or any SOW shall in no way create a presumption that these Terms or any SOW and the language hereof is to be construed against such party.
All notices and other communications to be given to a party hereunder shall be addressed to such party at the address for such party set forth on the signature page of any applicable SOW or at such other address as such party shall designate in writing from time to time by giving notice as provided in this Section. All notices shall be in writing and shall be delivered by personal delivery, by facsimile, by overnight courier (Federal Express or comparable service) or by certified mail, all charges prepaid. Such notices shall be effective upon actual receipt (or a party’s refusal to take delivery).
The provisions of these Terms or any SOW may be waived, altered, amended or supplemented, in whole or in part, only by a writing signed by all of the parties hereto.
These Terms or any SOW, and any right or interest hereunder, may be assigned in whole or in part by NPC without the prior written consent of the Client. Client’s rights or interest hereunder, may be assigned in whole or in part only with the prior written consent of NPC, which written consent shall not be unreasonably withheld.
In any action at law or in equity by NPC to enforce any of the provisions of these Terms or any SOW, if NPC is the successful party in such litigation, as determined by the court in a final judgment or decree, Client shall pay all costs, expenses and attorneys’ fees incurred therein (including, without limitation, all costs, expenses and fees related to any appeals), and such costs, expenses and attorney’s fees shall be included as part of any judgment.
The parties hereto acknowledge and agree that each would be irreparably damaged in the event that any of the provisions of these Terms or any SOW were not performed by the other in accordance with its specific terms or were otherwise breached. Accordingly, it is agreed that each party shall be entitled to an injunction or injunctions to prevent breaches of these Terms or any SOW by the other and shall have the right to specifically enforce these Terms or any SOW and the terms and provisions hereof against the other in addition to any other remedy to which such aggrieved party may be entitled at law or in equity.
Successors and Assigns.
These Terms and any SOW shall be binding upon and shall inure to the benefit of the parties hereto and, to the extent permitted hereby, their legal representatives, heirs, successors and assigns.
These Terms and any SOW may be executed in separate counterparts, each of which shall be deemed an original, and all of which shall be deemed one and the same instrument.
Neither party shall be liable in damages or have the right to terminate these Terms or any SOW for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including but not limited to acts of God, government restrictions (including the denial or cancellation of any export of other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected (including mechanical, electronic, or communications failure).