STANDARD TERMS AND CONDITIONS OF SALE
These terms and conditions of sale (“Terms and Conditions”) are applicable to all services performed by tena.cious corp. (“Company”) for or on behalf of the client (“Client”) who signs a Company agreement (the “Agreement”) to receive Services from the Company:
- SCOPE OF AGREEMENT.The agreement between Company and Client shall consist of the Agreement and these Terms and Conditions. These Terms and Conditions are integrated into, and form an integral part of, the Agreement. Company will supply the services specified in the Agreement (the “Services”) to Client, pursuant to these Terms and Conditions, and Company’s agreement to provide such Services is expressly predicated upon these Terms and Conditions notwithstanding any contrary provision contained in Client’s purchase orders or other documents. In the event of any conflict between the Agreement and these Terms and Conditions, the Agreement shall control.
- PRICE AND TERMS. Unless set forth on the Agreement, payment terms are net thirty (30) calendar days from the date of the invoice. If Client does not pay an invoiced amount within terms, Client will in addition pay finance charges of one and one-half percent (1.5%) per month on the late balance. Client shall pay any and all legal and collection costs, fees and expenses (including reasonable attorneys’ fees) incurred by Company in the collection of amounts due.
- TERM AND TERMINATION. Unless otherwise stated upon the face of the Agreement, the term of the Agreement shall begin upon mutual execution of the Agreement by the parties and shall continue until termination by mutual agreement of the parties or as otherwise permitted under this Section. Company shall have the right to terminate this Agreement in the event Client defaults in the performance of any of its obligations under this Agreement, and such default is not cured within ten (10) days after written notice from Company. Company may also terminate this Agreement and all Services at any time with or without cause upon thirty (30) days written notice to Client. Client shall have the right to terminate this Agreement in the event Company defaults in the performance of any of its obligations under this Agreement, and such default is not cured within thirty (30) days after written notice from Client. Except as stated in the Agreement, Client may also terminate this Agreement and all Services at any time with or without cause upon thirty (30) days written notice to Company, for monthly services. Once a financial commitment has been made from the Client to the Company, no refunds will be provided.
- CLIENT’S MATERIALS.Client represents and warrants that any matter it furnishes for performance of Services (i) does not infringe any copyright or trademark or other intellectual property rights of any third party; (ii) is not libelous or obscene; (iii) does not invade any person’s right to privacy; and (iv) does not otherwise violate any laws or infringe the rights of any third party.
- APPROVAL OF PROOFS. Client will be asked to approve content prior to digital or physical production. Client is solely responsible for the accuracy of content. Additional charges may be charged for any amendments, reproductions, or reprints of content or materials after Client approval.
- INTELLECTUAL PROPERTY. Any and all copyrights, trademarks and trade names, commercial symbols, trade secrets, work product and information embodying proprietary data existing and owned by Client as of the date of the Agreement or made or conceived by employees of Client during the term of this Agreement shall be and remain the exclusive property of Client. Any and all copyrights, trademarks and trade names, commercial symbols, trade secrets, work product and information embodying proprietary data existing and owned by Company as of the date of the Agreement or made or conceived by employees of Company during the term of this Agreement shall be and remain the exclusive property of Company. All finalized files will be provided within the appropriate file format of the agreed upon scope of work. The native (source) files, code, procedures and development files employed to create the agreed work remain the sole property of Company unless specifically agreed and released in writing and after all costs have been settled. A charge for supply of native files will be negotiated between Company and Client. Native files will not be supplied until payment is received in full.
- NONSOLICITATION OF EMPLOYEES.Neither party will hire or retain the services of any employee or contractor of the other party during the term of this Agreement and for a two (2) year period thereafter without the prior written consent of the other party, such consent to be made at the discretion of the consenting party. Consent for hiring an employee or contractor may be conditioned on payment of a recruitment fee or other payment to compensate the consenting party for the expense of replacing the employee or contractor, as the case may be.
- CONFIDENTIAL INFORMATION.The parties agree to hold each other’s Proprietary or Confidential Information in strict confidence. “Proprietary or Confidential Information” means any information that parties receive or otherwise have access to incidental to or in connection with this Agreement: (i) whose confidential nature has been made known by the disclosing party, orally or in writing, to the receiving party; or (ii) which a reasonable person under like circumstances would treat as confidential due to its character and nature. The parties agree not to make each other’s Proprietary or Confidential Information available in any form to any third party or to use each other’s Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party’s Proprietary or Confidential Information shall remain the exclusive property of that party. Notwithstanding termination or expiration of this Agreement, the parties agree that the obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a period of two (2) years from the date of termination.
- MUTUAL INDEMNIFICATION.Client shall indemnify, defend, and hold harmless Company (and its affiliates, officers, agents, owners, and employees) from and against any and all claims, damages, liabilities, costs, and expenses (including, without limitation, reasonable attorneys’ fees and all related costs and expenses) incurred by Company as a result of any claim, judgment, or adjudication related to or arising from any third-party claim based on Client’s breach of any representation, warranty, covenant, agreement, or obligation under this Agreement. Company shall indemnify, defend, and hold harmless Client (and its affiliates, officers, agents, owners, and employees) from and against any and all claims, damages, liabilities, costs, and expenses (including, without limitation, reasonable attorneys’ fees and all related costs and expenses) incurred by Client as a result of any claim, judgment, or adjudication related to or arising from any third-party claim based on Company’s breach of any representation, warranty, covenant, agreement, or obligation under this Agreement. Neither party will be responsible for indemnifying another party hereto where the basis of the indemnity claim arises out of such other party’s own negligence or willful misconduct. To qualify for such defense and payment, Client must (i) give Company prompt written notice of a claim; (ii) allow Company to control the defense and all related negotiations; and (iii) fully cooperate with Company in the defense and all related negotiations.
- WARRANTY.Any warranty shall be in writing on the face of the Agreement. With the exception of such warranty, Company makes no warranty of any kind, expressed or implied or otherwise whatsoever, that the services performed will be merchantable or fit for any particular purpose or use. In the event of any breach of any warranty specified in this provision, Client’s exclusive remedy shall be that Company shall, at its option, repair or substitute services at no cost to Client or refund any purchase price paid for such services. Company shall have no liability under this Agreement in the event a breach of the warranties contained herein is: (i) a result of circumstances beyond Company’s control; or (ii) due to third party errors or omissions.
- DISCLAIMER.EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 9, SERVICES ARE PROVIDED ON AN “AS-IS” BASIS. COMPANY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER WARRANTIES WHATSOEVER CONCERNING THE PERFORMANCE OF THE SERVICES AND ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. COMPANY DOES NOT ASSUME ANY RESPONSIBILITY FOR THE PRODUCTS, SERVICES OR ACTIONS OF ANY THIRD PARTIES. CLIENT’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD PARTY PRODUCTS AND SERVICES ARE AGAINST THE THIRD PARTY AND NOT AGAINST COMPANY.
- LIMITATION OF LIABILITY.IN NO EVENT SHALL EITHER PARTY BE LIABLE HEREUNDER FOR INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY FOR SUCH DAMAGES AND COMPANY’S TOTAL LIABILITY FOR DAMAGES UNDER THE AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES DUE HEREUNDER FOR THE INVOICE UPON WHICH A CLAIM IS BASED.
- ASSIGNMENT.This Agreement shall not be assignable by either party without the prior written consent of the other party. Except as otherwise provided, this Agreement shall be binding upon and inure to the benefit of the parties’ successors and lawful assigns.
- GOVERNING LAW.This Agreement shall be governed by the laws of the State of Minnesota, without reference to conflicts of law principles. Any legal suit, action or proceeding arising out of or relating to the services or this Agreement shall be commenced in a federal or state court in Ramsey County, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding. The parties expressly waive any right they may have to a jury trial and agree that any such litigation shall be tried by a judge without a jury and the prevailing party shall be entitled to recover its expenses, including reasonable attorneys’ fees, from the other party.
- FORCE MAJEURE .Neither party shall be liable for any failure to perform or delay in performance of this Agreement to the extent that any such failure arises from acts of God, war, civil insurrection or disruption, riots, government act or regulation, strikes, lockouts, labor disruption, cyber or hostile network attacks, inability to obtain raw or finished materials, inability to secure transport, or any cause beyond such party’s commercially reasonable control.
- SEVERABILITY.If any term provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of this Agreement shall remain in full force and effect and will in no way be affected, impaired or invalidated. Any provision of this Agreement that expressly, by implication, or by necessity, contemplates performance or observance subsequent to the termination or expiration of this Agreement will survive termination or expiration of this Agreement, and continue in full force and effect.
- ENTIRE AGREEMENT.This Agreement (including the signed Agreement, these Terms and Conditions, and any attached exhibits and schedules) supersedes all prior agreements and constitutes a complete and exclusive statement of the terms of the agreement among the parties with respect to its subject matter. There have been and are no representations, warranties or covenants between the parties other than those set forth in this Agreement. No supplement, modification or amendment of this Agreement will be binding unless executed in writing by all of the parties. No waiver of any provisions of this Agreement will be deemed a waiver of any other provisions, nor will any waiver constitute a continuing waiver. No waiver will be binding unless executed in writing by the party making the waiver.