1. Fees and Payment. Customer shall pay EVW the fees based on the membership package selected online. Unless otherwise stated in writing payment obligations are non-cancelable and fees paid are non-refundable. EVW is authorized to charge the credit card for any and all fees incurred pursuant to this Agreement. Interest at a rate of eight percent (8%) per annum will accrue on all past due payments from the date originally due until paid. In the event the Customer carries an overdue balance for a period of 30 days, EVW holds the right to terminate services and the total investment for the engagement will be due immediately.
2. Confidentiality. The Parties agree to treat confidentially and not disclose to a third party any information received from the other Party respecting the Services or the terms of this Agreement that (a) if disclosed orally is designated as confidential at the time of disclosure, (b) if disclosed in writing is marked as “Confidential” and/or “Proprietary”, or (c) that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. The aforesaid obligations of confidentiality shall not apply, however, to information of the disclosing party which (i) was published or part of the public knowledge prior to the receipt thereof from the transmitting party, (ii) has become published or part of the public knowledge through no fault of the receiving party after the receipt thereof from the transmitting party, (iii) can be shown to have been known by the receiving party prior to the receipt thereof from the transmitting party, (iv) is acquired by the receiving party from a third party without any obligation of confidentiality, or (v) is independently developed by an employee of the receiving party provided that such employee did not have access to such confidential information of the other party. Customer shall cause each of its directors, owners, employees, contractors and agents to execute and deliver confidentiality agreements or other documents reasonably requested by EVW in order to protect the Confidential Information. The aforesaid obligations of confidentiality shall survive any cancellation or termination of this Agreement.
3. Warranties / Disclaimers / Indemnity.
Each Party represents and warrants that it has the legal power to enter into this Agreement; that the signatory hereto has the authority to bind the applicable organization; and when executed and delivered, this Agreement will constitute the legal, valid, and binding obligation of each Party, enforceable in accordance with its terms.
Except as set forth in subsection a. above, EVW makes no representations or warranties regarding any performance metrics, including sales, lead generation, ranking position, or number of visitors. EVW does not guarantee specific results within any time period or otherwise.
Except as otherwise specifically provided herein and to the maximum extent permitted by law, EVW expressly disclaims any and all warranties, conditions, representations, and guarantees with respect to the Services, whether express or implied, arising by law, custom, prior oral or written statements, or otherwise, including, without limitation, any warranty of merchantability or fitness for a particular purpose. No representation or other affirmation of fact, including, without limitation, statements regarding capacity, suitability for use or performance of the Services, not contained in this agreement shall be deemed to be a warranty by EVW.
Customer shall defend, indemnify, and hold EVW harmless against any loss, damage, or costs (including reasonable attorneys’ fees) incurred in connection with a claim that arises from Customer’s (a) services or sales, or representations thereof, to third parties or (b) negligence or willful misconduct.
4. Limitation of Liability. In no event shall EVW’s aggregate liability arising out of or related to this agreement, whether in contract, tort, or under any other theory of liability, exceed the lesser of Fifty Thousand Dollars ($50,000) or the amounts actually paid by customer hereunder in the three (3) months preceding the incident giving rise to liability. In no event shall the EVW be liable for any indirect, incidental, special or consequential damages, including loss of profits, revenue, data, or use, incurred by customer or any third party, whether in an action in contract or tort, even if EVW or any other person has been advised of the possibility of such damages. EVW reserves the absolute right to cancel or terminate the Agreement at any time without any notice, without assigning any reason and without any liability whatsoever. In no event shall EVW be liable for any liabilities, damages, losses, costs or expenses incurred by any third party as a result or in connection with such third party's use or access of customer internet, intranet or extranet sites. No claim may be brought by customer more than one (1) year after accrual of the claim.
5. Term & Termination.
Term. The term of this Agreement shall begin on the Effective Date and continue for a minimum of three years after which it will continue on a month to month basis thereafter until cancelled or terminated as provided herein (“Term”).
Termination. Cancellation or termination of this Agreement can be made by the Customer after the first three year (3) calendar years with a 30 day written notice.
Surviving Provisions. Section 2, 4 and 5 through 9 shall survive any cancellation or termination or expiration of this Agreement.
6. Publicity; Trademarks. Notwithstanding the foregoing, during the Term, Customer may use EVW’s ranking, trademark, and logo on Customer’s website, proposals, e-mail signatures, stationery, and in sales conversations in accordance with EVW’s standard logo and/or trademark usage guidelines. EVW may include the name and logo of the Customer in connection with or related to the Services. EVW may use Customer in case studies and white papers created by EVW for general marketing purposes. All rights, title, and interests of the Parties respective trademarks are reserved to the respective Party and no rights, title, and interests to such marks, except as provided herein, are transferred herein.
7. General Provisions.
Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; or (ii) the second business day after sending by confirmed facsimile. Notices to Customer shall be addressed to Customer’s signatory of this Agreement unless otherwise designated below.
Assignment. Except as otherwise provided herein, neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld, conditioned or delayed). This Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Force Majeure. If either Party is rendered unable, wholly or in part, by force majeure to carry out its obligations under this Agreement, that Party shall give to the other Party prompt notice of the force majeure with reasonably full particulars concerning it. Thereupon the obligations of the Party giving notice, so far as they are affected by the force majeure, shall be suspended during, but no longer than, the continuance of the force majeure. The affected Party shall use all reasonable diligence to remove the force majeure as quickly as possible. The term “force majeure” shall without limitation mean an act of God, strike, industrial disturbance, act of the public enemy, war, blockage, public riot, lightning, fire, storm, flood, failure of utilities, Internet failure, any unauthorized server or computer violation or other security violation, explosion, governmental restraint, or any other cause, whether of the kind specifically enumerated above or otherwise, which is not reasonably within the control of the Party claiming suspension.
Counterparts. This Agreement may be executed in counterparts, which taken together shall form one legal instrument. Delivery of an executed counterpart signature page of this Agreement by facsimile, email, or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Agreement.
Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter herein, supersedes all prior agreements and customer purchase order terms, whether written or oral, and supersedes and merges all prior discussions between the parties. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Schedule or SOS, the terms of this Agreement shall prevail unless expressly stated otherwise in the applicable Schedule or SOS. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation (excluding SOS) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. The language used in this Agreement shall be deemed to be language chosen by both parties hereto to express their mutual intent, and no rule of strict construction against either Party shall apply to rights granted herein or to any term of condition of this Agreement.
Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
Severability. Any provision of this Agreement which is prohibited and unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction.
Third-Party Beneficiaries. Except as otherwise provided herein, there are no third-party beneficiaries to this Agreement.
Attorneys’ Fees. In any action or proceeding brought to enforce any provision of this Agreement, or where any provision is validly asserted as a defense, the successful Party is entitled to recover reasonable attorneys’ fees in addition to any other available remedy.
Governing Law / Dispute Resolution The Customer hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of any Indiana state court, sitting in Marshall County, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the Parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such Indiana State Court. Each of the Parties hereto agrees that a final non-appealable judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The Customer hereby irrevocably and unconditionally, to the fullest extent it may legally and effectively do so, (a) waives any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in the previous paragraph of this section, (b) waives its right to have any such case or proceeding removed to Federal Court, (c) agrees not to file any action to have any such case or proceeding removed to any Federal Court, and (d) waives the defense of an inconvenient forum to the maintenance of such action or proceeding in any such Indiana State Court. Each Party also waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. Notwithstanding the foregoing, in the event any dispute or unresolved issue between Customer and EVW is not resolved by themselves within twenty (20) days, then either Party may submit such dispute or unresolved issue to a mutually agreed neutral third party mediator in Marshall County, IN, who shall mediate to resolve the dispute.