Terms and Conditions

TERMS AND CONDITIONS FOR ONLINE MARKETING AND WEB BASED SERVICES

ARTICLE 1. MARKETING REPRESENTATION AND RELATED SERVICES

Appointment and Authorization of EOL

Section 1.01.

(a)  Client agrees to retain and appoint EverythingOnline, LLC to represent it in carrying out its Online Marketing and program, including all related services subject to the terms and conditions of this Agreement.

(b)  The online marketing and communications services are for Client and its:

and any other assignments/projects authorized in writing by the Client.

(c)    EOL is authorized to negotiate with third parties on behalf of Client to effectuate the purposes of this Agreement, and to contract for outside purchases in conformance with an approved budget.  EOL shall exert its best efforts to prevent any loss to Client resulting from the failure or proper performance by any third party, but EOL shall not be held liable or responsible to Client for any such failure, and Client waives all claims for negligent supervision and for liabilities caused by third parties.

EOL Duties

Section 1.02.    EOL agrees that is shall:

(a)    Exercise its best efforts, using its skill, experience and knowledge to the best of  its professional ability in providing the services required under this Agreement;

(b)    Abide by the best interests of the Client to the extent that those interests are not unlawful, tortious, or in violation of self-regulative standards of the advertising industry;

(c)    Cooperate with Client in providing the services required under this Agreement; and,

(d)    Protect and preserve any confidential information and trade secrets disclosed by Client to EOL in the course of the contractual relationship contemplated by this Agreement.

Approval of Client

Section 1.03.

(a)    EOL shall not incur any obligations or provide any services for Client’s account without first obtaining approval therefor from Client either through this  Agreement or an approved Scope of Work as may be requested by Client.  Client represents that the person(s) designated herein have authority to approve the online advertising commitments contemplated by this Agreement.

(b)    If requested by client, in order to obtain client’s approval EOL shall submit to Client a written estimate to perform each item provided for in the Scope of Work (Exhibit A, including addendums and additional Scopes.  All estimates shall be submitted on EOL standard estimate forms with sufficient copies to meet the needs of Client.

(c)    If at any time Client desires to make changes or additions to any work being developed by EOL under this Agreement, Client shall so notify EOL and the parties shall mutually agree upon any such changes or additions, and revised budget terms therefor.  At no time will EOL be liable for refunds, cancellations, posting removals, refusals to negotiate, changes in third party terms or conditions, or any other change not within the exclusive control of EOL.

Missed Deadlines

Section 1.04.

EOL shall not be responsible for missed deadlines, closing dates or insertions caused by the unreasonable delay of Client in approving the marketing to be used in connection therewith.

ARTICLE 2. COST AND PAYMENTS

Marketing and Merchandising Costs and Expenditures

Section 2.01.

(a)    Client shall reimburse EOL for all costs incurred and expenditures made on behalf of Client for approved online advertising and related services, and in addition, Client shall compensate EOL for its services as provided in Section

2.02.

(b)    Client shall pay EOL for the direct cost of products, services, mailing, packaging, shipping, taxes and duties, telephone, and other out-of-pocket costs incurred by EOL in connection with the performance of this Agreement.

(c)    In the event monthly budget charges increase or decline after EOL has submitted an estimate, Client shall pay for any increase or be given credit for any reduction, as the case may be.  If the amount of space or time or other advertising  services actually used are less than that previously contracted for, Client shall pay for any increased rate charged by media due to loss of volume discount or because of higher scheduled rates.  If additional space or time or services are so used, thereby resulting in a lower rate, Client shall make payments at the lower rate.  A monthly budget will continue at the proposed amount unless it is changed in writing after the customer has signed a budget adjustment.

(d)    If Client approves any planned online marketing and thereafter cancels all or any part thereof, Client shall pay for all costs incurred to the date of cancellation and any unavoidable costs incurred thereafter, including any noncancellable commitments for time or space.

Compensation

Section 2.02.

(a)    Client shall pay EOL for all services performed in accordance with the rates set out in the Scope of Work, which is detailed in Exhibit A, B, C etc.

(b)    Client shall pay EOL an additional fee in the amount to be determined by the parties for any special services not otherwise provided for by this agreement. Prior to rendering or otherwise contracting for any such special services EOL shall present Client with a written estimate of the cost of the services and obtain the approval of Client if requested by Client.

Payment to Third Parties

Section 2.03.    Invoices for outside purchases will be forwarded on a timely basis to Client for payment and are due and payable within fifteen (15) days.  EOL may elect, but is not obligated, to make payments to third parties entitled thereto by the terms of this Agreement.  EOL reserves the right to discontinue making such payments if Client is in default in any payment to EOL required by the terms of this Agreement.  EOL further reserves the right to terminate any arrangement for credit with Client at any time.

ARTICLE 3. LIMITATION OF LIABILITY AND INDEMNIFICATION

Sole Liability

Section 3.01.

(a)   Client agrees to indemnify and hold EOL harmless from any and all liability, loss, costs, damages, attorney’s fees, or any other expense which EOL may sustain or incur by reason of any online promotion, web based publicity program, marketing event, web hosting, electronic services, or any other activity conducted by or participated in by EOL on behalf of Client and pursuant to the terms and conditions of a General Agreement, if EOL acts in accordance with applicable law.

(b)    Client agrees that EOL’s total monetary liability for any and all claims, losses, damages, or expenses arising out of or in connection with the work of this Agreement shall be limited to the fees received from Client by EOL in connection with this Agreement.  Client further agrees that EOL shall not be liable for any indirect, consequential, special, or punitive damages arising in connection with this Agreement.  Client and EOL mutually agree to waive all rights to jury trials hereunder and agree to have all matters determined by binding arbitration or judicial officer trial.

ARTICLE 4. TERMINATION OF AGREEMENT

Notice of Termination

Section 4.01

(a)    Either party may terminate this Agreement by giving the other party written notice of termination at least sixty (60) days prior to the effective date of termination.  Upon receipt of notice of termination, EOL shall not commence work on any new marketing of services, but it shall complete and place all work previously approved by Client which is not then terminable.  All other rights and duties to EOL for the payment of any contract obligation incurred with third parties during that period.

(b)    In the event Client or EOL desires to terminate all work in progress on services commenced before receipt of notice of termination, such termination may be agreed to upon the parties’ mutual consent and determination of the compensation to be received by EOL for partially complete work.

(c)    Notwithstanding the provision of Section 4.01(a), EOL may immediately terminate this Agreement if Client is more than thirty (30) days in arrears on any payments due EOL or any third party vendor.

(d)    Client may not terminate any work to be performed pursuant to a proposal by EOL in accordance with Section 2.02 (b), unless all monies so proposed are paid in full to EOL less any monies budgeted but not paid or incurred by EOL to third parties.

Assignment of Contracts

Section 4.02

In the event of termination, EOL shall assign to Client all of its rights in contracts, agreement, arrangements, or other transactions made with third parties for Client’s account, effective on the date of termination or on such other date as may be agreed upon by the parties, provided Client has paid EOL for said services and client shall assume all obligations and hold EOL harmless from all liability thereunder regarding obligation incurred after assigning of right in contracts.  In the event any such contract is nonassignable and consent to assignment is refused, or EOL cannot obtain a release from its obligations EOL shall continue performance thereof and Client shall meet its obligations as though this Agreement had not been terminated connected with this event.

Billing Upon Termination

Section 4.03.

In the event of termination, EOL shall bill Client for all amounts not previously filled and due at that time under the terms of this Agreement and Client shall pay such bills in full within ten (10) days of receipt.

Disposition of Property and Material

Section 4.04.

(a)    Ownership of property including plans, finished artwork, copy, web materials, electronic designs, and all other property and materials which are produced by reason of this Agreement is determined within the Exhibits of any General Agreement. Any ownership of property designated to the Client becomes property of the client after payment is received by EOL.  Upon termination of this Agreement, all such property and materials shall be the property of EOL unless Client pays for them in accordance with the terms of this Agreement, even if Client of another party has physical possession of them.

(b)    When EOL determines that art work, electrotypes, engravings, photographs, manuscripts, kiosks, CD-ROMS, web sites, and other such items are of no further use in carrying out the terms of this Agreement, then EOL shall clearly describe the particular item or items.  Client shall then be obligated to notify EOL within ten (10) days, in writing of the disposition Client desires with respect to the items.  All shipping and transportation costs shall be borne by Client and EOL shall not be obligated to store such material at its own expense except for a period of thirty (30) after the notice referred to herein has been given.  In the event Client fails to respond to EOL notice within ten (10) days, EOL shall have the option of discarding or otherwise disposing of the items, or storing the items in public storage facilities in the name of Client and at Client’s expense and risk.

ARTICLE 5. CONFIDENTIALITY

Section 5.01.

(a)    EOL and Client each agree to keep in confidence all information and know-how transmitted by the other party.  A party receiving Confidential Information of the other party shall make no use of such information or know-how except to the extent authorized by this Agreement.  In order to comply with such obligation, a receiving party shall not disclose the other party’s Confidential Information except on a need-to-know basis, and subject to appropriate confidentially obligation, to the receiving party’s employees, agents and outside legal and financial advisors.  Each party’s obligations under this paragraph shall extend to the earlier of such time as the Confidential Information protected hereby enters into the public domain through no fault of the party receiving such information or seven (7) years after the effective date of this Agreement.

(b)    For purposes of this confidentiality provision, Confidential Information shall not include (i) information of a disclosing party which is or becomes publicly known through no fault of the other party or its subcontractors or agents; (ii) information of a disclosing party which is subsequently independently developed by the other party; (iii) information already known to the receiving party prior to its disclosure in connection with this Agreement; or (iv) information that is disclosed by a party in connection with this Agreement and subsequently independently received by the receiving party without breach of any nondisclosure obligation.  All confidentiality obligations hereunder shall survive any termination or expiration of this Agreement.

ARTICLE 6. OWNERSHIP OF WORK

Section 6.01.

(a)    All copyrights and all other right, title and interest in and to all finished artwork, multi-media and graphical user interfaces, software code, and materials developed or delivered as part of the work hereunder shall remain the exclusive property of EOL until Client pays any and amounts owing to EOL for said rights, titles, and interests.

(b)    Notwithstanding the assignments contemplated above, EOL shall retain all right, title and interest in (i) all pre-existing software code contained in the work (in both source and object code form), and (ii) all know-how and proprietary tools used by EOL in developing the work; subject to the license rights granted herein.  Upon receiving payment in full from Client for the work EOL shall be deemed to have granted Client a non-exclusive, fully paid perpetual, and worldwide license to reproduce, publicly perform and display, distribute, market, license, rent, lease and sell the work in object code form, to make derivative works of the work, and to incorporate and distribute the work and derivative works thereof in object code form as part of Client’s and third party products and materials.  Client acknowledges that EOL may exercise, in its sole discretion, any and all rights of ownership in the portions of the work to which EOL retains rights hereunder.  EOL is authorized to use representative samples of its work for Client as part of EOL’s general self-promotion program in accordance with industry standards.

ARTICLE 7. GENERAL TERMS AND CONDITIONS

Controlling Law and Venue

Section 7.01.

The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of California without reference to California’s conflict of law principles.  Each party agrees that jurisdiction and venue for any claims hereunder shall be in the State Court sitting in Orange County, California.

Assignment and Delegation

Section 7.02.

Neither party may assign any rights or delegate any duties hereunder without the express prior written consent of the other.

Entire Agreement

Section 7.03.

This writing contains the entire agreement of the parties.  No representations other than those expressly set forth in an Agreement were made or relied upon by either party.  No agent, employee, or other representative of either party is empowered to alter any of the terms of an Agreement, unless done in writing and signed by an executive officer of the respective parties.

Failure to Object Not a Waiver

Section 7.04.

The failure of either party to an Agreement to object to, or to take affirmative action with respect to any conduct of the other which is in violation of the terms of an Agreement shall not be construed as a waiver of that conduct or of any future breach or subsequent wrongful conduct.

Notices

Section 7.06.

All notices pertaining to an Agreement shall be in writing and shall be transmitted either by personal hand delivery or through the facilities of the United States Postal Service or by electronic messaging (facsimile or e-mail).  The addresses contained herein for the respective parties shall be the places where notices shall be sent, unless written notice of a change of address is given.

Section 7.07.

Any monies not paid EOL when due earn interest from the date of EOL’s first bill for such monies at the highest legal rate allowed by law.

Attorney’s Fees

Section 7.08.

In the event of a dispute, arbitration, litigation or other controversy concerning this Agreement of terms, conditions or enforcement hereof, the prevailing party shall be awarded its reasonable attorney’s fees, costs and expenses incurred in said manner.

Independent Contractor

Section 7.09.

EOL is an independent contractor for Client and nothing in this Agreement shall be construed as creating an employer-employee relationship, franchise, or joint venture.  EOL agrees to be responsible for all of EOL’s federal and state taxes, withholding, social security, insurance, and other taxes and benefits in connection with performance of the work hereunder.