Brand Your Brain (BYB) has agreed to provide to Client the services in the Customer Contract.
Client will be responsible for paying any and all applicable sales and use taxes for the Services. Fees are due as stated in the Customer Contract. Monthly Fees and recurring monthly Add-On Fees shall be due and payable in advance of each calendar month. Any amounts not paid within 30 days of the date due will bear a monthly finance charge equal to the lesser of 1.5% of the outstanding balance or the maximum amount allowed by law. In addition, Customer shall be liable for all fees incurred by Company due to payment processing fees resulting from bounced checks, insufficient funds/bank overdraft fees and/or chargebacks. If at any time the Customer fails to make agreed upon payments, including monthly payments (if applicable), BYB can terminate the project and shut down website (if applicable).
3. Production and Fulfillment:
Production will begin upon receipt of the applicable Fees. Included in your purchase price is two (2) rounds of revisions on your Website prior to launch, two (2) rounds of revisions on Creative Designs, and one (1) round of edits for your Video. Requests that fall outside of original agreement may be subject to an additional charge of: $75/hr for all services. Client will be required to approve in writing any edit, revision, change, or service request, beyond the included rounds of revisions specified above.
Client agrees to respond in a timely fashion to BYB’s questions and requests. Any delays in Client responses or delivery of Client materials may affect the timing of delivery and quality of Products. Materials presented to Client for review shall be deemed accepted by Client unless BYB receives Client’s comments (if any) within 3 business days. In the event Client repeatedly fails to respond to BYB during the production and fulfillment process, BYB shall have the right to terminate this Agreement with no further obligation to Client, and Client shall have no right or claim for a refund of any Fees.
Client may reschedule up to two times the date and time of the Video/Photo shoot by providing at least 48 hours notice. If Client fails to give the notice, or is not available at the scheduled time (i.e. without the required notice), Client shall pay a $200 cancellation/rescheduling fee for each such time. Client is responsible for obtaining all permits and approvals required to film Client, its location and any other items, logos or people appearing in the Video and Photos to be taken by BYB and to permit the use of such Video and Photos in accordance with the terms herein. Client is entitled to shooting at one location and inclusion of one music track. Extra locations and music track can be added at an additional cost and will be included in contract.
4. Licensed Rights and Postcare:
Once Client has paid all Fees and has satisfied the Terms in agreement, BYB shall grant to Client full access to website, all photos and videos. Client agrees all copyrights and other intellectual property elements and rights contained in the Products created or owned by BYB are owned exclusively by BYB. Client Materials provided for Products in no way will affect BYB’s continued copyright ownership in the Products, and BYB’s ownership will not merge with Client’s ownership of the Client Materials.. Client hereby agrees that BYB may use the finished Product(s) for BYB’s marketing and promotional purposes. Client further agrees that BYB shall have the right include its logo and other attribution information on Client’s Website, Video and other Licensed Products as determined by BYB. The client represents to BYB and guarantees that any elements furnished to BYB for inclusion in web pages or designs are owned by the client, or that the client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend BYB from any claim or suit arising from the use of such elements furnished by the client.
Postcare services shall be limited to original contract. Postcare includes time spent consulting with BYB, as well as BYB time spent on site functionality, the changing of photographs, modifications of design and text on a page, and similar services. Postcare does not include creation of additional web pages, creation of copy or other content for the Website, re-editing of Video, Photoshopping or editing of photography or creative design work beyond scope of original contract. The client will receive 1 hour of site management training after completion of project. Additional Postcare can be purchased by Client at BYB’s rate of $75/hr.
5. Legal disclaimers:
Client shall be responsible for timely notifying BYB of any copyright, legal notices or disclaimers that Client requires to be included in the Product.
6. Representations & Warranties:
Client agrees that they are the true owner or rightful lessee of Client’s locations, and that Client has the right to authorize the production and distribution of the Website, Video/Photography and Design, and Client has the right to include Client’s business and all of its signage, appetences, and all individuals included at Client’s business. Client shall be responsible for obtaining all necessary consents (including without limitation with respect to Client provided content and materials) but excluding assets provided by BYB. Client hereby grants permission to BYB to enter and use the property with personnel and equipment for the purpose of taking video recordings, still photographs and sound recordings in, on and/or of the property. If any representatives or other persons associated with the Client participates in the Video or the Photography, they hereby grants BYB the right (but not the obligation) to use throughout the world.
BYB and Client agrees to defend, indemnify and hold each other harmless from and against all claims, defense costs (including reasonable outside attorneys’ fees), judgments and other expenses arising out of (i) any breach of the Agreement by each other, and (ii) any claim that the Product violates the copyright or any other intellectual property right of any person (except to the extent that such claim relates to Client Materials or a breach of any representation or warranty by Client). Client agrees to defend, indemnify and hold BYB and its directors, officers, employees and agents harmless from and against all claims, defense costs (including reasonable attorneys’ fees), judgments and other expenses arising out of (a) any breach by Client of the Agreement, (b) the use, display, public performance reproduction, distribution of the Product by Client or Client’s assigns, licensees or any party to whom Client delivers the Licensed Product (except to the extent that such claims are covered under Section 7(ii) of this above), and (c) any modifications to the Licensed Product made by Client.
8. Limitation of Liability:
BYB’s liability under this Contract shall be limited to the total amounts paid by Client to BYB in the aggregate during the twelve month period prior to the date the cause of action arose, and neither party shall be liable for any special, indirect, incidental, punitive or consequential damages, including without limitation, lost profits or business or damages arising out of the Agreement even if it has been advised of the possibility of such loss or damage. Any cause of action arising out of or related to the Services or Products must be commenced within one (1) year after the cause of action accrues; otherwise such cause of action shall be permanently barred.
The Agreement is subject to the Term set forth in Contract. The Term runs from the date of the first Monthly Fee. If Client wishes to terminate the Agreement prior to the completion of the Term, Client may do so by providing written notice to BYB and paying to BYB a lump sum termination fee equal to the total remaining Monthly Fees that would have been paid under the Term. In the event Client has pre-paid the Monthly Fees for the Term, any and all such pre-payments shall be deemed fully earned and non-refundable. After completion of the Term, either Client or BYB shall have the right to terminate this Agreement at any time for any reason by providing the other party with written notice of termination, such termination to take effect at the end of Client’s then current billing cycle. Notwithstanding any provision to the contrary, BYB may terminate the Customer Contract and/or immediately suspend any Service or Client’s right to any Product in the event of breach of the Agreement by Client, and at BYB’s option, in the event of any such termination of the Agreement, Client shall be liable to BYB for a Termination Fee (calculated as described above). Upon termination, Client shall have no further use of the Products, nor shall Client receive a refund for any Fees paid.
10. “As Is” Clause:
Client acknowledges and agrees that BYB’S services are provided on an “as is” basis, and BYB disclaims any and all express or implied warranties, to the maximum extent of the law. There is no warranty that products or services will be error free, will be on time, will operate without interruption, will be compatible with or is supported by all operating systems and/or internet browsers, will fulfill client’s particular purposes or needs or meet any level of sales, purchases, clicks, leads or other performance metric. BYB makes no warranty as to storage of client materials and shall not be responsible for any loss of or damage to client materials. To the extent that BYB cannot disclaim any such warranty as a matter of applicable law, the scope and duration of such warranty will be the minimum permitted under such law.
11. Other Terms:
BYB is acting solely as an independent contractor and not as a partner or employee of Client. Any agreements or approvals by either party is required by any provision of the Agreement shall not be unreasonably delayed. If provision of the Agreement is held by a court of competent jurisdiction to be invalid, the remainder of the provisions shall remain in full force and shall in no way be affected. A waiver by either of the parties of any of the agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any covenant or agreement herein contained. Neither party shall be liable to the other for delays (other than with respect to confidentiality and payment obligations) under the Agreement if the delay or failure is caused by shortage of labor, war, act of enemies, riots, federal, state or municipal action, statute ordinance, or regulation, fire, flood, earthquake, accident, storm, explosions, acts of God, the inability to obtain essential materials, services or other resources, or other causes beyond the party’s reasonable control.
Client may not assign this contract without the written consent of BYB.
Client acknowledges that BYB may suffer great harm from misuse of the Product and accordingly Client agrees to take reasonable precautions to prevent such misuse by Client. BYB may seek injunctive against the breach or threatened breach of this Customer Contract regarding material in addition to any other legal remedies that may be available. Client’s rights and remedies in the event of a breach of this Customer Contract by BYB shall be limited to the right, if any, to recover damages in an action at a law and Client shall not be entitled to any equitable relief to restrict or interfere with BYB’s rights pursuant to this Customer Contract.
The Customer Contract and the Standard Terms and Conditions constitute the entire agreement between the parties with respect to the Services and supersedes all prior or contemporaneous agreements or representations of the parties, whether express or implied, oral or written, with respect to the subject matter hereof. Accordingly, Client shall not rely on any representations or warranties that are not expressly set forth in the Agreement. No change, waiver, or discharge hereof shall be valid unless it is in writing and is executed by both parties.
BYB may adjust it business practices and/or amend or modify these Standard Terms and Conditions. The revised Standard Terms and Conditions shall be posted on BYB’s Website and/or sent to Client. Client agrees to maintain a current and operational email address on file with BYB and Client further agrees that any correspondence sent by BYB to the email address that Client has on file with BYB, shall be deemed delivered. In addition, Client will be liable for any attorneys’ fees and costs (including collections costs) if BYB takes any legal action to enforce the Agreement. The laws of the State of North Carolina (excluding the laws and principles with respect to conflicts of law) govern the Agreement. In connection with any dispute or claim arising out of or in connection with the Agreement, Client and BYB agree exclusively to arbitrate such dispute before a single arbitrator mutually agreed upon. If the parties are unable to agree upon an arbitrator, the parties agree to the designation of an arbitrator. The arbitration shall take place in Huntersville, North Carolina and shall apply North Carolina law. The arbitrator’s award will be final and non-appealable, and judgment may be sought thereon in any court with jurisdiction. In the event that arbitration is necessary, the prevailing party shall have its costs associated with the arbitration, including its reasonable attorneys’ fees, paid by the other party. Any dispute resolution proceedings will be conducted only on an individual basis and not in a class or representative action or as a named or unnamed member in a class, consolidated, representative, or private attorney general action unless Client and BYB agree to do so in writing.
Any notice to be given by BYB to Client may be effected by email as set forth above, or either party may send notice to the other party via U.S. Mail services, in either case addressed to Client at the address on the Customer Contract, or to BYB as follows: Brand Your Brain, 8424 Sandowne Lane, Huntersville, NC 28078. Notice shall be deemed given upon receipt or, if sooner, three (3) days following deposit in the U.S. mails. Each party may change its address by written notice given in accordance with this paragraph.