Payment

PAYMENT: Upon online reservation of a Package of Service (Package) under $1000, client shall pay Fairfax Image in full for the fees listed therein.  For Packages of Service above $1000, upon execution of the Proposal, Client shall pay Fairfax Image (“FxI”) a nonrefundable advance of 50% of the fees listed therein. Any other fees are due FxI upon delivery of the deliverables listed in the Proposal to Client. Deliverables may be invoiced incrementally as completed. Any prepayment or monthly fees received by FxI shall be non-refundable. For any Services requiring FxI to travel, Client agrees to reimburse FxI for its actual, reasonable travel and other out-of-pocket expenses. Any single expense over $250.00 must be pre approved in writing by Client. Client shall be responsible for any collections expenses, and for all taxes associated with the Services, except those based on FxI’s net income. If Client becomes delinquent in its payments, any deliverables due to Client may be withheld until Client is current, and interest may be charged. Any changes made after Client’s signature on the Proposal shall incur additional fees and the Project Schedule shall be extended. All time spent by FxI on Client’s work is accrued in 15 minute increments, rounded up, regardless of the time actually spent by FxI, and shall first be applied to the time cap found in the Package chosen by Client; after the cap is met, Client agrees to pay said amounts at FxI’s then-current hourly rate Net 15 days after receipt of FxI’s invoice. 

Deliverables

DELIVERABLES: Upon payment therefor, any and all deliverables conceived by FxI during this engagement relative to FxI’s duties under this Agreement (the “Deliverables”) shall be licensed by FxI to Client on a perpetual basis for the purpose directly listed in the Proposal and for no other purpose. If FxI works on materials or documents provided by Client (“Materials”), the Materials shall continue to belong to Client. Client shall not transfer or copy the Deliverables for delivery to any party for utilization by said party without FxI’s prior consent; provided, however that Client may assign the Deliverables in any merger, acquisition, or other purchase or transfer of Client’s assets. The intent of the preceding sentence is to prevent Client from disseminating templates or the like designed by FxI to other parties, thereby potentially decreasing the market for FxI’s services. Client understands and agrees that the use of FxI’s materials, deliverables, or work product outside the terms of this Agreement shall be deemed intellectual property infringement, and FxI shall be entitled to obtain injunctive relief related thereto. 

Trademarks of Client

TRADEMARKS OF CLIENT: Client licenses FxI the right to use Client’s name and any and all trademarks or service marks Client now or hereafter owns during the term of this Agreement, in connection with FxI’s performance under this Agreement. Client warrants that it is the lawful owner of the name and marks referred to in this paragraph. 

Consulting Services

CONSULTING SERVICES: FxI provides consulting services only and is not engaged in rendering mental health, legal, accounting, financial, HR, or other such professional advice. All FxI’s consulting services are provided on an “AS IS” basis, without any guarantees or warranties, express or implied. While provided to the best of FxI’s ability, the consulting services, recommendations, information, and materials are not designed to be authoritative; Client is responsible for using any advice or deliverables to achieve Client’s intended results. Client authorizes FxI to access its account, with “write permission” for Client’s web page directory, cgi-bin directory, and any other directories or programs that need access for FxI to provide the Services. 

Reliance

RELIANCE: FxI may rely on all decisions and approvals made by employees and agents of Client, oral or written (including extranet or email). Client’s request for any changes must be in writing. FxI shall not be obligated to perform even seemingly minimal tasks described in Client’s request until the parties agree in writing to the terms of the new tasks and any potential changes in FxI’s compensation. Each party agrees to disclose fully and accurately all facts affecting this agreement, and keep FxI informed of all developments relating to Client or Client’s business that could affect FxI. FxI necessarily must rely upon the timeliness, accuracy and completeness of the facts and information Client or Client’s agents provide. 

Confidentiality

CONFIDENTIALITY: Each party agrees to maintain the confidentiality of any information provided by the other party that a reasonably prudent person would understand to be revealed under a duty of confidentiality (the “Proprietary Information”), and to only use it in carrying out its rights and obligations under this Agreement. For avoidance of doubt, the services furnished by FxI, its processes and questions, its materials, and the terms of and pricing under this Agreement are FxI’s Proprietary Information. Each party agrees to maintain the confidentiality of information identified as private and/or personal that is shared by any party involved in the process; PROVIDED that Client understands that INFORMATION PROVIDED BY CLIENT IS NOT COVERED BY PRIVILEGE (e.g., this is not a doctor/patient relationship). Client understands and agrees that any employee/contractor brought into the process by them must be bound by this Agreement. The confidentiality obligations shall not apply to any material or information that the receiving party can document (i) is or becomes generally available to the public without the other party’s breach of this section; (ii) was lawfully in its possession or known by it prior to receipt from the other party; (iii) was rightfully disclosed to it by a third party without any breech of confidentiality; or (iv) was independently developed without use of the other party’s Proprietary Information. A party may disclose Proprietary Information as may be required to be disclosed by law, but may only disclose the information necessary to comply with the law, and the information shall otherwise be kept confidential.

The following applies to “Buddy System” clients: Client understands that you will hear personal information from your “Buddy”, and you will be sharing personal information that your “Buddy” will hear. Client understands that you must keep the information divulged by your “Buddy” in the strictest confidence. Client understands that while FxI shall keep all participants’ information confidential, that FxI does not have a legally-obligated duty of confidentiality (e.g., like a priest, lawyer or doctor). Client also understands that, while your “Buddy” will have signed an agreement with these terms, FxI cannot be responsible if the “Buddy” breaks these terms, and therefore holds FxI harmless therefrom. 

Non-Compliance

NON-COMPLIANCE: Should any of FxI’s services or deliverables not comply with FxI’s specifications therefor, Client must inform FxI of the deficiency within ten (10) days of receipt, and FxI shall use commercially reasonable efforts to remedy. If compliant services or deliverables cannot be provided within a reasonable time, Client’s remedy shall be to terminate this Agreement; such termination shall not affect FxI’s accrued rights to payment for work performed prior to said termination. No breach of this Agreement by FxI shall be deemed material if Client has not informed FxI via written notice within ten (10) days of learning of such breach, and giving FxI at least ten (10) days to remedy. FxI is not responsible for errors, omissions or delays caused by faulty, incomplete, changed, or untimely information received from Client and needed for completion of agreed-upon deliverables. 

Warranties and Disclaimers

WARRANTIES AND DISCLAIMERS: Each party warrants, represents, and unconditionally guarantees that it has sufficient rights in any and all Deliverables/Materials it is providing to the other party hereunder, including but not limited to any elements of text, fonts, graphics, photos, designs, trademark, artwork, music, or the like for each party to complete the Services contemplated by this Agreement, including but not limited to any necessary authorization, release, clearance, or license related to any rights of ownership, privacy, publicity, or intellectual property; and it will not provide the other party for use hereunder with any Deliverables/Materials or ask the other party to perform any acts that infringe any third party’s intellectual property or other proprietary rights.

Client hereby agrees to indemnify, defend and hold harmless FxI, its employees, subcontractors and agents, against any damages, losses, liabilities, taxes, tariffs, settlements or expenses (including, without limitation, costs and attorneys’ fees), in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from the Materials, or the services.

Any warranties, indemnities, guarantees, and representations, express or implied, are specifically disclaimed, including, but not limited to, any warranty of noninfringement, merchantability, title, or fitness for a particular purpose and implied warranties arising from course of dealing or performance, except to the extent that such disclaimers are held to be legally invalid. FxI also disclaims any warranty regarding any benefit Client might obtain from its services, and the operation or appearance or interaction of the deliverables with media.

Approvals

APPROVALS: This Agreement may require FxI and Client to secure approval from each other for various activities, which both Parties agree may take place via email, extranet, or in such other mutually agreed-upon manner. Unless there is a specific provision to the contrary, it is understood that all responses to requests for approval shall be made within ten (10) days of receipt by the party with the approval right and that approvals shall not be unreasonably withheld. Each party shall be entitled to learn the reason for a refusal to approve, shall help suggest a solution, and will have a reasonable period to meet the objection. When a deliverable is submitted for approval and no approval or rejection is received within ten (10) days, the item shall be deemed approved. FxI’s integration of all reasonable changes suggested by Client on any deliverable shall be considered acceptance of the deliverable by Client without further submission. The parties agree that if all proposed changes are not acceptable to a Party or will delay further deliverables, they may agree to sign-off on individual deliverable items on a case-by-case basis. 

Marketing

MARKETING: FxI may mention its relationship, show its work, and utilize Client’s logo in marketing and PR materials, including but not limited to presentations, case studies (verbal and published), its website, and the like. At FxI’s request, Client shall include FxI’s logo in an appropriate area on its website, which FxI may revoke in its sole discretion. 

Limitation of Liability

LIMITATION OF LIABILITY: AS ALL DELIVERABLES PROVIDED HEREUNDER SHALL BE BASED ON CLIENT’S CONTENT, SPECIFICATIONS AND MATERIALS AND ANSWERS TO EXERCISES, ALL SERVICES AND DELIVERABLES ARE PROVIDED “AS IS”. IN NO EVENT SHALL FxI, ITS OWNERS OR AGENTS BE LIABLE FOR LOSS OF BUSINESS OR BUSINESS OPPORTUNITIES, LOSS OF USE OR OF DATA, OR FOR ANY EXEMPLARY, PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUSINESS INTERRUPTION OR LOSS OF PROFITS, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITY, WHETHER UNDER THIS AGREEMENT OR OTHERWISE, IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT. FxI SHALL IN NO EVENT BE LIABLE HEREUNDER FOR DAMAGES EXCEEDING THE FEES PAID BY CLIENT FOR THE SERVICES THAT DIRECTLY GAVE RISE TO SUCH DAMAGES. 

Termination

TERMINATION: Each party may terminate this Agreement upon thirty (30) days’ written notice for any reason or for no reason; provided, however, that FxI may terminate this Agreement immediately upon non-payment, after giving Client ten (10) days to cure. Termination shall not affect FxI’s accrued rights to payment. The initial deposit is non-refundable after it is paid to FxI. In addition, either party may terminate this Agreement immediately upon written notice to the other in the event of the other’s insolvency, fraud, willful misconduct, or substantial breach of this Agreement; substantial breach shall be based solely on what a reasonably prudent person should believe based upon the circumstances surrounding the alleged breach. Either party may terminate this Agreement immediately upon written notice to other party in the event the other party assigns its rights and obligations under this Agreement, violates any trademarks or copyrights of the party, or breaches the confidentiality provision of this Agreement.

If Client halts work or wishes to terminate this Agreement without cause, or FxI terminates for cause, Client agrees to pay for all work completed or hours spent and any out-of-pocket expenses incurred prior to termination.

If FxI terminates this Agreement without cause, or Client terminates for cause, Client agrees to pay for all work completed and any out-of-pocket expenses incurred prior to termination.

Immediately upon termination of this Agreement for any reason, (a) FxI shall stop all work, (b) each party shall return all Confidential Information to the owning party, and (c) each party shall cease use of the other party’s trademarks and other intellectual property, except as allowed under the terms of this Agreement.

Survival

SURVIVAL: All Sections of this Agreement that by their nature should survive termination or expiration will survive, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.   

Force Majeure

FORCE MAJEURE: Except for payment obligations, neither party shall be responsible for any failure to perform due to unforeseen, non-commercial circumstances beyond its reasonable control, including but not limited to acts of God, war, embargoes, fire, floods, terrorist attacks, earthquakes, accidents, strikes, sickness, computer viruses, or the like. In the event of any such delay, any period of time for action by said party may be deferred for a period sufficient to resume normal business activities. 

No Agency

NO AGENCY: No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority to bind the other party in any respect, except as detailed in the proposal. FxI shall have the right to use third parties in performance of the services and, for purposes of this Agreement, FxI may also act as Client’s agent with respect to licensing Third Party Materials, as detailed in the Proposal. 

Complete Agreement

COMPLETE AGREEMENT/NOTICE: This Agreement is the complete and exclusive statement of the parties’ mutual understanding and supersedes and cancels all previous written and oral agreements, communications, proposals, and other understandings related to its subject matter. The parties have read this Agreement, and had the opportunity to consult with their legal advisors. It will be fairly interpreted in accordance with its terms and without any strict construction against either party. All waivers and modifications must be in writing signed by both parties and sent via PDF or facsimile to the other party, except as otherwise provided. No failure or delay on the part of a party in exercising any right, power or remedy shall operate as a waiver thereof; nor shall any single or partial exercise preclude any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The parties expressly agree that any pre-printed or other terms on any purchase order, request for proposal, or other document shall have no force or effect, even if signed by the parties after the date hereof. If it is determined as a part of a final non-appealable judgment that any provision of this Agreement is illegal or otherwise unenforceable, or against statutory law, then the Agreement will be limited to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. Any notice under this Agreement will be in writing and will be deemed to have been duly served the day after it is sent, if sent by next day commercial courier delivery (e.g., Federal Express). 

Governing Law/Venue

GOVERNING LAW/VENUE: This Agreement and all transactions hereunder shall be governed in all respects by the laws of the State of California, without regard to either its conflicts or choice of laws rules or the application of the United Nations Convention on Contracts for the International Sale of Goods. All disputes under or concerning this Agreement, except disputes involving late or non-payment or misuse of Proprietary Information which may be heard in a court of competent jurisdiction, shall be settled under the rules of the American Arbitration Association. The settlement shall take place in San Francisco, California. In any action to enforce rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees. From time to time, governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. Client agrees that it is solely responsible for complying with said laws, taxes, and tariffs, and will hold harmless, protect and defend FxI and its subcontractors from any claim, suit, penalty, tax or tariff arising therefrom. 

Counterparts/Facsimiles

COUNTERPARTS/FACSIMILES: This Agreement may be executed in counterparts, each of which will be deemed to be an original, and each of which alone and all of which together, shall constitute one instrument. In making proof of this Agreement it is only necessary to produce or account for the counterpart signed by the party against whom this Agreement is to be enforced. A facsimile, PDF, or a photocopy thereof of any autograph is deemed an original signature and said facsimile, PDF, or photocopy shall be an original counterpart. The signatures on the Proposal evidence that the Parties agree to the Standard Terms, as they may be amended from time to time. Client agrees to review the Standard Terms during Client’s relationship with FxI.