This Services Agreement (the “Agreement”) is made by and between VIRAL MARKETING LLC dba VIRAL LAUNCH, an Indiana limited liability company (“Viral Marketing”), and the individual or entity executing this Agreement (“Client”).
WHEREAS, Viral Marketing provides product promotional services to its clients for the purpose of helping companies strengthen sales of products (the “Services”); and
WHEREAS, Client desires to engage Viral Marketing to provide Client with one or more of Viral Marketing’s Services, which Services are more fully described described on Viral Marketing’s website;
NOW, THEREFORE,in consideration of the mutual covenants, agreements, warranties, and representations made and contained herein, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, Viral Marketing and the Client hereby agree the Services will be performed in accordance with the following terms and conditions.
1.1 Services. Client hereby retains Viral Marketing to provide, and Viral Marketing hereby agrees to provide one or more of the Services, which specific Service(s) to be provided hereunder shall be selected by the Client on Viral Marketing’s website. The Services being provided by Viral Marketing are on a non-exclusive basis, and Viral Marketing shall be entitled to perform or engage in any activity not inconsistent with or otherwise prohibited by this Agreement, including, but not limited to entering into agreements similar to this Agreement with third parties, which third parties may include any competitor of the Client.
2.1 Fees. As consideration for entering into this Agreement, Client shall pay Viral Marketing for the Services at Viral Marketing’s rate or rates for the Services (the “Fee(s)”), which Fees are indicated on Viral Marketing’s website. Client shall pay the Fees by automatic credit card payment arranged by Viral Marketing and the Client. Automatic payment of the Fees is a requirement of this Agreement. If the Client has failed to pay all amounts due and payable within fifteen (15) days of the date on which such amounts are due, then Viral Marketing shall have the right to suspend all Services until all outstanding amounts are paid in full.
2.2 Taxes. Client shall pay, reimburse (if necessary), and hold Viral Marketing harmless for all sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local except for income taxes, which are levied or imposed by reason of the performance of the Services under this Agreement.
The content and information on this Site and the Service, as well as the infrastructure used to provide both, is proprietary to us or our partners. You shall not to modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell or re-sell any information, software, products or services obtained from or through the Site or Service.
No rights are granted to Client other than as expressly set forth herein. Client agrees that the Services and the methods, procedures, protocol, framework, structure and all intellectual property upon which the Services are based are and shall at all times be the sole and exclusive property of Viral Marketing. Client shall not (a) modify, copy or create derivative works based on the Services; (b) frame or mirror any content forming part of the Services; (c) reverse engineer, decode, reproduce, redesign, disassemble or decompile the Services; or (d) otherwise use the Services in order to (y) build a competitive product or service, or (z) copy any ideas, features, functions or graphics of the Services. The prohibitions contained in subsections (a) and (c) of this paragraph shall not apply to any deliverables provided by Viral Marketing pursuant to the provision of the Product Photography and/or Product Label and Packaging Design Services, if Client has elected to receive such Product Photography and/or Product Label and Packaging Design Service(s).
4.1 Term. This Agreement shall be effective on the date that it is signed by the Client (the “Effective Date”). The initial term of this Agreement shall be for a period of one (1) year from the Effective Date hereof, and shall automatically renew for additional one (1) month terms thereafter, unless and until this Agreement is terminated, as provided for herein. Without limiting any right or remedies under this Agreement or at law, either party may terminate this Agreement (i) immediately if the other party becomes insolvent or becomes the subject of a bankruptcy petition or a receiver or trustee is appointed for the majority of its assets, (ii) the other party breaches this Agreement and, following fifteen (15) days’ written notice, fails to cure such breach, or (iii) for any or no reason upon no less than thirty (30) days’ written notice to the other party.
4.2 Effect of Termination. Client shall pay Viral Marketing for all Services rendered and work performed up to the effective date of termination. Viral Marketing shall provide Client with an invoice for the accrued Fees within fifteen (15) days of the effective date of the termination. Client shall pay the invoice within fifteen (15) days of the date of such invoice.
4.3 Return of Proprietary or Confidential Information. Within ten (10) days after the terminationor expiration of this Agreement, upon request, each party shall return to the other all Proprietary or Confidential Information of the other party (and any copies thereof) in the party’s possession or, with the express request and approval of the party owning such Proprietary or Confidential Information, destroy all such Proprietary or Confidential Information as requested and authorized pursuant to this section. For the purposes of this Agreement, the term “Proprietary or Confidential Information” shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, source code, operational information, technical information, business information, notes, or financial information. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the party receiving such information, (ii) was previously known to the party receiving such information or rightly received by the receiving party from a third party, (iii) is independently developed by the receiving party, or (iv) is subject to disclosure under court order or other lawful process.
THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND VIRAL MARKETING EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY, FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR CONNECTED IN ANY WAY WITH THIS AGREEMENT OR THE SERVICES, OR FOR ANY CLAIM BY ANY THIRD PARTY. VIRAL MARKETING’S TOTAL LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY OF ANY CLAIM, SHALL NOT EXCEED THE FEE(S) PAID BY CLIENT TO VIRAL MARKETING UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRIOR TO EVENTS GIVING RISE TO THE CLAIM.
8.1 The parties agree to hold each other’s Proprietary or Confidential Information in strict confidence. Other than as may be required for Viral Marketing’s performance of the Services, the parties agree not to make any use of any Proprietary or Confidential Information and agree not to disclose any Proprietary or Confidential Information to any third party without the other party’s prior written consent. Each party’s Proprietary or Confidential Information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief and/or other relief as specified in this Agreement or is otherwise available at law or in equity.
8.2. Except as may be required for the provision of Services hereunder, Client shall at all times maintain the confidentiality of Client’s Amazon usernames and passwords. Client shall immediately change Client’s password in the event there is a breach of security of Client’s Amazon account. Client hereby waives all claims against Viral Marketing in the event the security of Client’s Amazon account is compromised. Client hereby agrees to indemnify, defend, and hold Viral Marketing harmless in the event Viral Marketing incurs any damages as a result of a breach of Client’s Amazon account.
8.3 Client hereby consents to Viral Marketing’s (i) access of Client’s Amazon seller central account through Amazon’s Marketplace Web Services as may be necessary for the provision of Services hereunder, and (ii) collection and use of information from Client’s Amazon seller central account through Amazon’s Marketplace Web Services for the purposes of Viral Marketing deriving market insights, predicting outcomes and for Viral Marketing’s other business purposes. For the purposes of Section 8.3(ii), (a) information collected and used by Viral Marketing includes, but is not limited to, sales data and information, prices, shipping costs, and other similar information provided for the provision of Services hereunder, and (b) such information shall not be considered Client’s Proprietary or Confidential Information for the purposes of this Agreement.
8.4 Client hereby represents and warrants to Viral Marketing that (i) Client has the authority to enter into this Agreement and to submit any and all information provided to or used by Viral Marketing in its performance of the Services hereunder, and (ii) such information provided by Client does not and shall not infringe any third party’s intellectual property rights, including rights arising under copyright, trademark, trade secret, right of privacy or publicity of another.
Except with regard to payment obligations, either party shall be excused from delays in performing or from failing to perform its obligations under this Agreement to the extent the delays or failures result from causes beyond the reasonable control of the party, including, but not limited to: default of subcontractors or suppliers; failures or default of third party software, vendors, or products; acts of God or of the public enemy; U.S. or foreign governmental actions; strikes; communications, network/internet connection, or utility interruption or failure; fire; flood; epidemic; and freight embargoes.
This Agreement shall be governed and construed in accordance with the laws of the State of Indiana.
Client and Viral Marketing agree that Viral Marketing shall perform its duties under this Agreement as an independent contractor of Client. Neither party to this Agreement is an agent, representative or employee of the other party. Neither party will have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or otherwise bind the other party except as specifically provided herein. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or impose any liability attributable to such a relationship.
Any written notice or demand required by this Agreement shall be sent by registered or certified mail (return receipt requested), personal delivery, overnight commercial carrier, or other guaranteed delivery. The notice shall be effective (i) as of the date of delivery if the notice is sent by personal delivery, overnight commercial courier or other guaranteed delivery; and (ii) as of five (5) days after the date of posting if the notice is transmitted by registered or certified mail.
This Agreement constitutes the entire agreement between the parties with regard to the subject matter hereof. No other agreements, representations, or warranties have been made by either party to the other with respect to the subject matter of this Agreement, except as referenced in this Agreement. This Agreement may be amended only by a written agreement signed by both parties.
Client and Viral Marketing agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation. If any negotiation required by this section fails, then at the written request of either party, any controversy, dispute or claim arising out of or relating to this Agreement or any breach hereof shall be finally settled by arbitration by a single arbitrator in Indianapolis, Indiana pursuant to the Commercial Arbitration Rules then in effect of the American Arbitration Association. The award made in such arbitration shall be entered in any court having jurisdiction thereof solely for the purpose of applying for an order confirming, modifying, correcting or vacating the award. The arbitrator shall have no power to alter, amend, revoke or suspend any of the provisions of this Agreement. Except to the extent required by law, no party, arbitrator, representative, counsel or witness shall disclose or confirm to any person not present at the arbitration hearings any information about the hearings, including the names of the parties and arbitrators, the nature and amount of the claims, the financial condition of any party, the expected date of hearing or the award made.
In the event that a court finds any provision of this Agreement invalid and/or unenforceable, the parties agree that the remaining provisions shall remain valid and in force.
The headings used in this Agreement are used for convenience and shall not be considered in construing the terms of this Agreement.
IN WITNESS WHEREOF, the parties hereto hereby execute this Agreement as of the Effective Date.
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