TERMS OF SERVICE
Last Updated April 10, 2018.
New Era MediaT M d/b/a Ghost 3 Media (“New Era,” “we” or “us”) provides marketing products and services for entities (“Services”). The Service Agreement (the “Service Agreement”) discloses the Services that you are purchasing or have purchased, the parties involved including the Client purchasing the Services (the “Client”, “you” or “your” and together with New Era the “Parties” or each individually a “Party”), the costs/fees for said Services (which can be a percentage Gross Sales amount for certain services and a dollar amount for other services) and other relevant details.
Incorporation of these Terms of Service:
These Terms of Services (the “Terms of Service” or “ ToS”) are incorporated by reference into and made part of any Service Agreement submitted to and/or accepted by New Era and govern the relationship between you and New Era. These Terms of Service are effective on the date listed in the Service Agreement and remain in effect until terminated as provided herein. The Service Agreement, the ToS and the documents and/or links referenced herein or in such documents are collectively referred to as the (“Agreement”). The Terms of Service may be reviewed at any time at ghost3media.com/terms .
The Service Agreement, together with these ToS, constitute the entire agreement between the Parties. New Era limits acceptance the Service Agreement and the Terms of Service, and hereby objects to any additional or different terms including those that are provided in the Client’s acceptance.
PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY ACCEPTING THESE TERMS YOU AGREE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, WHICH CONTAIN, AMONG OTHER PROVISIONS, DISPUTE RESOLUTION PROVISIONS, A WAIVER OF CLASS-ACTION RIGHTS AND LIMITATIONS OF LIABILITY. UNLESS OTHERWISE EXPRESSLY STATED, NEW ERA DISCLAIMS ANY AND ALL WARRANTIES WHETHER PROVIDED BY NEW ERA ITS AFFILIATES, OR ITS RESPECTIVE EMPLOYEES AND AGENTS.
a. Client Services. New Era will provide the Services outlined in your Service Agreement as governed by the Service Agreement and these Terms of Service.
Unless the Parties agree otherwise, in writing (including email), any and all products and services added during the Term shall be governed by this Agreement. Any additional products or services may incur an additional fee, which shall be agreed upon by the Parties
b. Full Marketing Service Package. The Full Marketing Service Package includes both the Digital Marketing Package and the Website Development and Management Package as further outlined below. Not all services are applicable to all accounts, please check your Service Agreement for the list of products and services included in your specific marketing package:
i. Digital Marketing Package [ The Digital Marketing Package services include coverage for Email, Social Media (e.g., Facebook), SEO (e.g., Google), and Affiliate marketing. The specific channels and their share of spend shall be determined based on our determination of what will provide the best results for you. We will manage and monitor assets for ads, ad accounts, email list generate, and affiliates.
ii. The Digital Marketing Package consists of coverage for four major channels:
3rd Party Marketplace
iii. For each of the channels listed herein, where applicable, coverage shall be provided for Assets for ads, managing and monitoring ad accounts, email list generation management and affiliate management.
iv. Services will be provided only for channels and specific outlets that are mutually selected by you and NEM. For example, you and NEM may mutually agree that you only want services for marketing via Facebook. Accordingly, you will not receive services for SEO marketing and, accordingly, NEM will not receive payment for revenue generated via SEO marketing which does not include Facebook and for which NEM does not provide you services.
c. Website Development and Management Package
i. The Website Development and Management package includes web design, plugin management for Shopify or Wordpress websites, as well as server and site uptime management to mitigate down time.
ii. Website design and management services comprise a website that is built for conversions and designed to include plugin management for Shopify or Wordpress website. Your site design includes a round of revision at no additional cost. If you need to add more time in order for us to make additional revisions, updates, content, pages, etc., it can be added at an additional rate. You are welcome to add pages, content or products at any time for no additional charges via the website's content management system. Your license to use the website design is contingent upon our receipt of either (a) full payment of all moneys owed during the Initial Term or (b) the early cancellation fee, as applicable. Further information about your website design license is included herein. Website development is a fluid process dependent on a number of factors, including, but not limited to, Client response time on questions and approvals, Client response time for delivering website content, and requests for additional rounds of revisions. Accordingly, we cannot guarantee your website will “Go Live” on any set timeline. We will, however, strive to minimize response times on our end and bring your website live as soon as practicable.
iii. Website Hosting. You agree and understand that you are responsible for all payments associated with hosting your website. For clients that select the Website Design and Management package, NEM shall provide maintenance for one year after completion of the initial website. However, NEM shall provide maintenance for your website past the one year after completion mark for the duration of a Digital Marketing Package, if the Digital Marketing package is currently active under this Agreement and there is no current overdue balance owed from you to NEM. Maintenance, as used in this section shall mean that upon notification of a website failure or website plugin failure by you, NEM will attempt to correct the noted failure in a reasonable amount of time. Maintenance does not include nor does NEM provide monitoring services to detect failures.
2. Compliance with Laws/Prohibited Content. Client shall not use or permit the Services to be used in violation of any applicable national, state or local laws or regulations. Without limiting the foregoing, Client may not use any New Era Services for any illegal activity including, but not limited to, false advertising, false claims, fraudulent statements, and the storage or transmission of information, data, files or links to content that violate any applicable local, state, national or international law. This includes, but is not limited to, pirated software, copyrighted data, or links thereto, the propagation of computer worms or viruses, the use of false identities, or attempts to gain unauthorized entry to any network. Pornography and sex-related merchandising are prohibited on all New Era servers and via all New Era Services. This includes sites that may infer or link to illegal sexual content. Spamming sites and sites selling or promoting bulk email software, services or addresses are also prohibited. New Era may terminate this agreement, at any time, if it determines, in its sole discretion, that the Client has violated this policy.
3. Client Obligations. In addition to making all required payments, Client shall (a) cooperate with New Era in all matters relating to the Services and provide access to Client’s Facebook Account, Website and Google Adwords and Analytics accounts as necessary. Access shall include at least Editor level privileges; (b) respond promptly to questions and with information that is reasonably necessary for New Era to perform
Services in accordance with the requirements of this Agreement; and (c) provide such customer materials or information as New Era may reasonably request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects. New Era is not responsible or liable for any delay or failure of performance caused in whole or in part by Client’s delay in performing, or failure to perform, any of its obligations under this Agreement
4. Payment. Upon execution of Service Agreement and/or upon initiation of Services based on the Service Agreement, you will be responsible for payment in full of all associated payments, except as may otherwise be provided in the Term/Termination section below. All payments are due in US dollars. Unless otherwise stated, Client will pay all amounts due under this Agreement monthly, within 7 calendar days from transmission of the invoice to an email address provided by you (by default this shall be an email address used to communicate with you such as that of the representative/employee who has corresponded with NEM). You agree that the payment shall be due regardless of whether the invoice is received on your end (e.g., shall be due even if blocked by your email servers). Payment for one-time services will be due in full on the Effective Date, or as otherwise provided by your Service Agreement or on a date mutually agreed upon. For recurring payments, the fees will start on the Effective Date and the first payment will be due within 7 calendar days from transmission of an invoice as disclosed herein. For monthly recurring Services, you will be billed on or about the beginning of the each month. For example, if the Effective Date is June 12th, you will billed on or about July 1 and on or about the first of each subsequent month. You acknowledge that you are required to pay the full amount due for the Services each month through the Initial Term and Renewal Terms at no less than the amounts due under the Service Agreement. You will be required to agree to all applicable payment authorization forms, which authorize recurring billing in accordance with your agreement. Upon completion of an applicable authorization form, New Era shall have the right to charge your credit card or debit from your account through ACH for fees in accordance with these Terms of Service and the Service Agreement. Client warrants the validity of any ACH information provided to New Era, and acknowledges that New Era is entitled to debit Client’s account for any ACH fees charged to New Era due to Client’s error, including, but not limited to, incorrect information, invalid account numbers and non-sufficient funds. YOU UNDERSTAND AND ACKNOWLEDGE THAT ALL AMOUNTS OWED MUST BE PAID AND THAT, IN ADDITION TO BEING IN BREACH OF YOUR CONTRACTUAL OBLIGATIONS, YOUR SERVICE(S) MAY BE PAUSED OR TERMINATED IF TIMELY PAYMENT IS NOT RECEIVED OR IF A PAST PAYMENT HAS BEEN DISPUTED.
a. Gross Sales, as used herein and in the Service Agreement, shall refer to the total sales amount for your products and or services sold in association with the Services provided in accordance with the Agreement. To clarify, Gross Sales shall be the amount of money for products or services sold through channels and outlets that NEM manages or provides you services for. Gross Sales shall mean the amount prior to any deductions made including, for example, transaction fees, commissions, flat fees, percentage based fees, affiliate fees, marketing fees, or the like. Gross Sales shall not include taxes made to any governing body.
i. Where applicable, the Gross Sales will be calculated based on Pixel 28 Day and Click 28 Day view on Google and Facebook as well as any coupon codes tied to correspondence (e.g., emails) that New Era promotes as well as any sales channels and affiliates we manage or first introduce you to.
b. You agree that the burden to collect on sales is solely yours and such collection is not a service provided by New Era nor is New Era’s payment subject to such collection. To clarify, you agree that Payment, under this Agreement, will be due to New Era whether or not you collect the amount associated with the sales. For example, payment shall be due even if a merchant processor fails to transfer any money generated through sales to you or if there is a levy against you for money transferred to your account, or the like.
c. Payments are to be provided to New Era via ACH. A reasonable wire fee may be added to a subsequent bill if New Era incurs wire fees. A 3% transaction fee shall be applied to any payments made using a credit card and may be added in subsequent bills.
5. Sales Audit. If New Era relies on you to provide sales figures in order for New Era to calculate its fees, you agree to provide New Era access to sales data upon request by New Era up to one time per month. New Era agrees to use the sales data only for auditing purposes and shall consider the sales data confidential information. New Era agrees to pay for any requested audits unless the audit results in a discrepancy in reported data to actual sales figures of over 5%. If such a discrepancy over 5% is discovered, you agree to pay for the audit and one subsequent audit to be conducted at New Era’s discretion.
a. Term. The Agreement shall begin on the Effective Date, and will remain in effect until terminated as provided below. For recurring accounts, the Service Agreement sets forth the minimum commitment term (the “Initial Term”). Unless otherwise stated in the Service Agreement, all monthly recurring Services have a one (1) year Initial Term. Client acknowledges that Client’s digital marketing plan is designed based on a minimum one year Initial Term. After the Initial Term, the Term will be automatically renewed for successive one month periods (each, a “Renewal Term”), or as otherwise provided in the Service Agreement (the Initial Term and any Renewal Terms are collectively referred to herein as the “Term.”)
i. Trial Period. During the Trial period, Client may cancel the services by providing email notice to a New Era executive or project manager. Upon receipt of cancellation notice, the Agreement will terminate at the end of the Trial period. Any fees incurred during the Trial Period will be owed and due within two business days from the termination of the Trial Period.
ii. Initial Term. During the Initial Term, Client may cancel the services by providing email notice to a New Era executive or project manager. Upon receipt of cancellation notice, the Agreement will terminate upon the later of the payment of the Early Cancellation Fee and the end of the monthly service cycle during which the cancellation fee is received. If no Early Cancellation Fee is received, the termination will be effective at the completion of the Initial Term. See the Early Cancellation section herein for further details.
iii. Renewal Term. During a Renewal Term, Client may cancel the services by providing email notice to a New Era executive or project manager. Upon receipt of the cancellation, the services will continue through the end of the next applicable Renewal Term, and will then be cancelled.
c. Early Cancellation. If you wish to cancel the Services without completing the Initial Term you may do so only by providing both written notification (email) of cancellation and the Early Cancellation Fee. The amount of your Early Cancellation Fee is defined in your Service Agreement. If your Service Agreement does not define the Early Cancellation Fee it shall be equal to $20,000. The Early Cancellation Fee payment is in addition to your incurred payments to date. No early cancellation of a Service Agreement will take effect until the Early Cancellation Fee has been paid, and you will continue to be billed monthly until we receive both proper written notice of cancellation and the Early Cancellation Fee, as applicable. Upon execution of this agreement, New Era will be investing considerable work into Client’s business and online marketing activities. This investment is being made with the understanding that you are committing to pay for the Services through the Initial Term. Client recognizes the aforementioned investment, up-front sales, setup and opportunity costs that New Era bears in connection with this marketing commitment, and acknowledges that this fee is not a penalty, but rather a reasonable amount of liquidated damages to compensate New Era for early cancellation of the Services.
d. Cancellation Revocation. You may, upon written notice (email is acceptable), revoke such cancellation within 30 days after you have made a cancellation request, in which case the Service Agreement will be reinstated and all applicable services will be reinstated upon payment in full of all amounts owed. If the cancellation fee has already been paid it shall be applied to any future amounts owed.
e. New Era’s Right to Cancel. We may cancel this Agreement at any time for any reason, and in our sole discretion, by providing written notice of cancellation to you. Cancellation will take effect at the end of the then current billing period. Written notice may be provided to you via email.
f. Pause or Downgrade of Service. You may request a pause or a downgrade in your Services, however it will be in New Era’s sole discretion to determine if a pauseordowngrade inServicesisappropriate.Nopauseordowngradewillbe effective without a signed written confirmation from both New Era and Client.
g. No Refunds. No action or inaction shall result in a refund of payment under this Agreement.
h. Collection of Amounts Owed. You agree to pay all costs of collection (including attorneys’ fees, costs and other legal and collection expenses) incurred by New Era in connection with its enforcement of its right to payment under the Agreement. Any amounts not paid by you when due shall bear interest at the rate of 1.5% per month (or the highest rate permitted by law, if less).
7. Intellectual Property.
a. License to New Era. During the Term, you hereby grant to New Era a non-exclusive, royalty-free worldwide license to use, copy, backup, modify, display, broadcast and transmit any of your content, including but not limited to your website, text, images, logos, trademarks, service marks, promotional materials, photos, audio, and video content relating to your existing website, as applicable, to the extent necessary and for the sole purpose of allowing New Era to perform the Services. This license will terminate upon termination of the Service Agreement.
b. Ownership of Creative Deliverables and Content. Upon receipt by New Era of full, unconditional payment from Client, Client shall own all rights, title and interest in and to the Creative Deliverables (as defined below) created under this Agreement. Creative Deliverables shall mean Custom Website Design, logo design, video services, photography services and general design.
c. Ownership of Website Design. Notwithstanding the previous section, New Era retains all copyrights in all non-custom website designs delivered under this Agreement. Upon valid cancellation of this Agreement, and so long as full, unconditional payment has been received by New Era for any amounts owed by Client under this Agreement, Client will be granted a perpetual, royalty free, revocable, non-transferable license to use, copy and publish any website design and related materials delivered to Client under this Agreement. New Era reserves the right to revoke this license only in the event that either (1) Client does not fulfill the Initial Term and/or pay the early cancellation fee or (2) Client initiates a payment dispute for any past payment.
d. Work Product Ownership. Any intellectual property including works, ideas, discoveries, inventions, patents, products or other information (collectively, “Work Product”) developed in whole or in part by New Era during the course of this Agreement, but excluding the Creative Deliverables and any materials referenced as belonging to Client above, shall be the exclusive property of New Era
e. Trademarks. All trademarks in this agreement and used in conjunction with the Services are trademarks of New Era, its affiliates and licensors. Use of these trademarks without the express written consent of New Era is prohibited.
8. Representations. By signing the Service Agreement you personally represent that (a) you have the power to enter into this Agreement and be bound to its obligations hereunder on behalf of the Client; (b) the execution of this Agreement by the Client has been authorized by all necessary corporate actions; and (c) upon execution of the Service Agreement, this Agreement constitutes a legal, valid and binding obligation of Client, enforceable against Client in accordance with its terms. Client further represents that Client has the right to use all intellectual property, including but not limited to copyrighted materials and trademarks, supplied to New Era for use in conjunction with the services.
9. Agency. In the event that you are purchasing the Services on behalf of another company, you personally represent and warrant that you have been authorized by such company to act as its agent in all respects related to the agreement. Without limiting the foregoing, you agree on behalf of each such company that such company has been made aware of, and agrees to be bound by, these Terms of Service and the Service Agreement.
10. DISCLAIMER OF WARRANTIES. NEW ERA PROVIDES ALL SERVICES ON AN “AS IS” BASIS WITHOUT ANY WARRANTY OF ANY KIND, AND MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, TIMELINESS, SECURITY, OR ACCURACY OF THE SERVICES. THE SERVICES ARE PROVIDED WITHOUT ANY GUARANTEE OF CONTINUOUS OR UNINTERRUPTED AVAILABILITY. IF THE MARKETING SERVICES ARE INTERRUPTED OR DELAYED, NEW ERA’S SOLE OBLIGATION WILL BE TO RESTORE OR PROVIDE SUCH SERVICES AS SOON AS PRACTICABLE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEW ERA DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, NEW ERA MAKES NO GUARANTEES WITH RESPECT TO THE PERFORMANCE OF ANY PRODUCT OR SERVICE.
11. LIMITATIONS OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEW ERA SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CLIENT OR COULD HAVE BEEN REASONABLY FORESEEN, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE INDEMNIFICATION SECTION AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS YOU PAID TO NEW ERA FOR THE SERVICES SOLD HEREUNDER. WITHOUT LIMITING THE FOREGOING, NEW ERA IS NOT RESPONSIBLE FOR ANY DAMAGES DUE TO ANY CONTENT, OMISSIONS, OR ERRONEOUS DATA APPEARING IN CLIENT’S CONTENT, WEBSITE, BLOGS OR ON SOCIAL MEDIA OR ANY LOSS, DAMAGE, CORRUPTION OR BREACH OF CLIENT DATA WITHIN CLIENT’S NEW ERA ACCOUNT. WE FURTHER DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE IN CONJUNCTION WITH THESE SERVICES. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SERVICES TO YOU.
12. Dispute Resolution.
a. Good Faith and Cooperation. Each of the Parties agrees to cooperate in good faith, reasonably, and in such a manner as may be necessary or appropriate to implement and give effect to the terms, conditions, and agreements contained herein. Each Party agrees to contact the other in writing (email is acceptable) regarding any claims, disputes or controversies, and allow the other Party no less than 15 days to cure the issue and/or demonstrate that there is in fact no issue present under these Terms of Service prior to initiating any formal legal action, payment dispute, or publishing any disparaging comments detrimental to the reputation, business, or business relationships the other.
b. Agreement to Arbitrate. If the Parties are unable to resolve a dispute in Good Faith, the Parties hereby agree to resolve any and all disputes, controversies or claims arising out of, relating to or in connection with this Agreement, including the breach, termination or validity thereof, through confidential binding arbitration in Fort Collins, Colorado by a single arbitrator. Such arbitration shall be administered by the American Arbitration Association (AAA), and conducted pursuant to the Expedited Procedures of the Commercial Arbitration Rules (CARs) of the AAA. The Parties further agree that they may only bring or participate in claims against the other in their respective individual capacities, and not as a plaintiff or class member in any purported class or representative proceeding. The Parties further agree that the arbitral tribunal may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
c. Exceptions to Agreement to Arbitrate. In the event that the Arbitration Agreement is found not to apply for any reason, all actions relating to or in connection with this Agreement shall be brought in the state and federal courts of the state of New Jersey. The Parties consent to venue and personal jurisdiction in these courts for the limited exceptions under this Exceptions to Agreement to Arbitrate section.
d. Costs and Attorney’s Fees: Except as otherwise provided in these Terms of Service, the Parties will be responsible for their own costs and legal fees.
e. Voluntary and Knowing Waiver. BY ENTERING INTO THIS ARBITRATION AGREEMENT, CLIENT ACKNOWLEDGES AND AGRESS THAT IT IS WAIVING THE RIGHT TO A TRIAL BY JURY FOR ANY CLAIM SUBJECT TO ARBITRATION. CLIENT FURTHER ACKNOWLEDGES AND AGREES THAT IT MAY ONLY BRING A CLAIM IN ITS INDIVIDUAL CAPACITY, AND THAT IT WAIVES ANY RIGHT TO BRING AN ACTION AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. OTHER RIGHTS THAT CLIENT WOULD HAVE IF IT WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST.
13. Indemnification. You agree to indemnify, defend and hold New Era and its members, officers, affiliates, employees and contractors harmless from any and all liability, claims, damages and settlements due to any third-party claims or causes of action, (including, without limitation, reasonable attorneys’ fees and court costs) arising out of or relating to Client’s (a) illegal or unauthorized use of the Services, or (b) noncompliance or breach of any of these Terms or Service by Client or any third party (authorized, permitted or enabled by Client). This indemnification includes, but is not limited to, any actions, including intellectual property actions (including trademark and copyright actions), actions related to end user personal or financial data, PCI compliance, Client’s order processing, billing, fulfillment, shipment, collection and/or actions related or associated with any products or services offered, sold or licensed through Client’s website. If Client is a Covered Entity under The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Client waives any Claims it may have against New Era arising out of or in connection with HIPAA requirements and agrees to indemnify and hold harmless New Era against any and all Claims that are related to or arise from failure to comply with HIPAA requirements.
a. Choice of Law: This agreement and its interpretation, and all controversies arising hereunder, shall be governed by the applicable statutory and common law of the state of New Jersey without giving effect to conflict of laws principles.
b. Entire Agreement. These Terms or Service together with the applicable Service Agreement constitute the entire agreement between the Parties. All prior agreements, discussions, representations, warranties and covenants are merged herein. Any amendments or modifications of this agreement shall be in writing and approved by the Parties .
c. Waiver. The failure by either Party to require performance of any provision shall not constitute a waiver nor affect that Party's right to require performance at any time thereafter.
d. Advertising. You agree that NEM may use your name and logo to to advertise that you are a client of NEM.
e. Electronic Signatures. Each party agrees that electronic signatures have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record.
f. Severability. If any provision of this Agreement or the application thereof is held invalid, illegal or unenforceable by any court of competent jurisdiction, (a) such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants and restrictions of this Agreement will remain in full force and effect.
g. Assignment. Neither Party may assign any part of the Agreement without the prior written consent of the other Party, provided, however, that either Party may freely assign this Agreement in connection with a sale of substantially all of its assets or a change of control of at least 50% of the voting equity interests of the business effective upon notice to the other Party.
h. No Third Party Beneficiaries. The parties do not confer any rights or remedies upon any Person other than the parties to this Agreement and their respective successors and permitted assigns.
i. Third-Party Sites and Products. Third-Party sites and products are not under our control, and are provided to you only as a convenience. The availability of any Third-Party Site or Product does not mean we endorse, support or warranty the Third-Party Site or Product.
j. HIPAA. If Client is a “covered entity” or a “business associate” thereof, as each term is used under the Health Insurance Portability and Accountability Act of 1996 (as may be amended or replaced, “HIPAA”) or is otherwise subject to any HIPAA-related or similar legal requirement, Client is solely responsible to ensure full compliance therewith. Client is responsible for maintaining the privacy of any persons or their information that may be covered by HIPAA or any related or similar legislation or regulation. New Era makes no claims or warranties regarding compliance with HIPAA.
k. Relationship of the Parties. The Parties to the agreement are independent contractors, and no agency, partnership, joint venture or employee/employer relationship is intended or created.
l. Referrals. New Era may provide incentives to third parties to introduce potential Clients to New Era.
m. Survival. The sections labeled Intellectual Property, Confidentiality, Disclaimer of Warranties, Limitations of Liability, Dispute Resolution, Indemnification and any other sections with post termination provisions are intended to survive the termination, cancellation or expiration of this agreement. Notwithstanding the foregoing, Client remains liable for any amounts due to New Era as of the effective date of termination.
n. Subcontracting. New Era may, without your consent, subcontract to any party the performance of all or any of New Era’s obligations under this Agreement provided that New Era remains primarily liable for the performance of those obligations.
o. Taxes. Unless otherwise stated, the fees do not include any taxes, levies, duties or other similar government assessments of any nature, including but not limited to value-added, sales, use or withholding taxes assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Client is responsible for paying any taxes associated with the purchase of the services hereunder.
p. Call Recording. You acknowledge that we may record Client phone calls for quality control purposes.
q. Headings. Section headings are provided for reference purposes only and in no way define, limit, construe or describe the scope or extent of any section.
r. Force Majeure. Neither party shall have any liability for any failure or delay (other than for an obligation to pay) resulting from any government action, natural disaster, power failure, or any other condition affecting production or delivery in any manner beyond the reasonable control of such party.
s. Notices. All notices required by one party hereunder shall be provided in writing to the other Party at the mailing address or email address provided to the other Party from time to time in writing.
t. Defined Terms. Capitalized terms are defined in the Section in which they first appear.