Acceptance by Customer (as named on the signature page) of any proposal, quotation or invoice (a “Proposal”) issued by MMGP Corp, LLC, doing business as, FTL Media (“FTL”), to which these terms and conditions are attached or by reference made a part of, shall constitute an agreement between Customer and FTL Media with respect to the responsibilities of FTL Media and Customer pursuant to the Proposal (the “Agreement”).
The Agreement shall consist of the Proposal and these terms and conditions, together with any modifications made in accordance with the terms hereof. No terms or conditions, other than those stated herein, and no agreement or understanding in any way modifying the terms and conditions stated herein, shall be binding upon FTL Media unless made in writing and signed by FTL’s duly authorized officer. Written or verbal acceptance of any Proposal and/or the acceptance of deliverables or services by Customer shall constitute Customer’s assent to these exclusive terms and conditions with respect to such Proposal.
This agreement shall be governed exclusively by, and be construed in accordance with, the laws of the State of Florida (except the conflicts of laws provisions thereof).
Scope of Service
FTL Media shall provide only those professional services and/or products specified in the Proposal or Statement of Work (the “Work”). Customer understands and agrees that, unless listed in the Proposal, FTL Media is not responsible for any other work or scope of supply or any disclosure, notifications or reports that may be required to be made to third parties, including appropriate governmental authorities.
If Customer requests and FTL Media agrees to perform any services that are in addition to or outside the scope of Work identified in the Proposal, Customer shall promptly pay FTL Media for such services in accordance with the terms and rates shown in the Proposal or, if no such terms or rates are shown in the Proposal, in accordance with FTL Media’s standard terms and rates for the services performed.
Customer shall pay FTL Media for the Work based upon the price or the rates shown in the Proposal.
In the event Customer fails to make payment in full within the time period set forth in the Proposal, such failure to pay on time constitutes a material breach of contract by Customer permitting FTL Media to suspend its performance hereunder, and FTL Media shall have all other remedies permitted to FTL Media by law, equity and these terms.
Past due invoices shall bear interest at the rate of one and one-half percent (1-1/2%) per month, or the highest rate allowed by applicable law, whichever is lower and, if Customer has provided FTL Media with a credit card authorization, FTL Media shall be entitled to charge the invoice amount and interest against such card. If FTL Media must take legal action to collect any amount due hereunder, Customer shall pay all court costs plus attorney’s fees incurred by FTL Media in bringing such legal action.
Standard of Care
The Work shall be carried out by FTL Media in a manner consistent with that level of care and skill ordinarily exercised by others currently providing similar services under similar circumstances at the time the services are performed. FTL Media shall provide Customer with good title to all goods supplied hereunder.
NO OTHER WARRANTY, EXPRESS OR IMPLIED, WHETHER CONTAINED IN MATERIALS PROVIDED OR STATEMENTS MADE BY FTL MEDIA OR OTHERWISE, IS MADE BY FTL MEDIA WITH RESPECT TO THE QUALITY, RESULT, EFFECTIVENESS OR OUTCOME OF THE WORK, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY SUCH ADDITIONAL WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED.
Deliverables supplied by third parties are subject to the terms and conditions and limitations of the third party’s warranty, and all direct and third party warranties shall expire six months from the date the goods or services are provided to Customer. Customer’s sole remedy for a breach of the foregoing warranty is to require FTL Media to correct or replace, at FTL Media’s election, the affected service or deliverable.
Limitations of Liability
In no event shall FTL Media or any of its owners, officers or employees be liable to Customer, or anyone claiming by, through, or under Customer, for any special, incidental, indirect or consequential damages whatsoever arising out of or resulting in any way, directly or indirectly, from the Work or the acts or omissions of FTL Media’s employees or agents, whether or not any such losses or damages are caused by negligence, professional errors or omissions, strict liability, breach of contract, breach of express or implied warranty or otherwise.
In no event shall FTL Media be liable to Customer for negligence, professional errors or omissions, strict liability, breach of contract, breach of express or implied warranty or otherwise unless Customer provides FTL Media with written notice of the claim within six months of the date the service or deliverable was provided to Customer.
FTL Media’s liability for any claim relating to the Work shall be limited to the amount paid to FTL Media by Customer pursuant to the Proposal.
Access to Site and Information
Customer will provide for right of entry and access to all relevant sites, equipment and other information in its control or possession as is necessary for FTL Media to timely and fully complete the Work. FTL Media is not responsible for the quality or accuracy of data or information, nor for the methods from which the data was developed, where such information or data is provided by or through Customer or others that are not agents of FTL Media, and FTL Media has no obligation to investigate facts or conditions not disclosed to it by Customer.
FTL Media is not liable for any failure to perform, or delay in performance, due to circumstances beyond its reasonable control, including but not limited to, riots, wars, fires, floods, explosions, strikes, acts of nature, and acts of government. If FTL Media’s services are interrupted due to any such force majeure cause, Customer and FTL Media shall negotiate a reasonable extension of time for FTL Media’s performance and payment of any additional costs to be incurred by FTL Media as a result thereof.
Neither party shall publish or use any advertising, sales promotions, press releases or other publicity relating to this Agreement or which use the other party’s name, logo, trademarks or service marks without the approval of the other party, which approval shall not be unreasonably withheld.
The foregoing notwithstanding, the parties agree that FTL Media may publicly refer to Customer by name and use Customer’s trademark and logo as part of FTL Media’s Customer lists. Customer agrees that design work for completed projects may be displayed as examples of work on FTL Media’s web site.
Protection of Personnel
FTL Media makes every effort to hire and retain the best and brightest personnel. If Customer hires any personnel of FTL Media during a contract or within 6 months of the end of a contract, then the Customer agrees to pay 50% of the employee’s previous annual compensation, or 50% of the employee’s future annual compensation, whichever is greater, to FTL Media. Customer also hereby grants access to FTL Media for any and all financial or payroll information necessary to ascertain the employee’s future annual compensation within the first year of employment with Customer.
The relationship of the parties is that of independent contractors. Each party, its employees and agents, shall not be deemed to be employees, agents, joint ventures or partners of the other and shall not have the authority to bind the other.
Neither party shall be deemed to have waived any rights under this Agreement, by course of dealing or otherwise, unless such waiver is given in writing and signed by the waiving party.
If any provision of this Agreement or a Statement of Work is found to be unenforceable in any jurisdiction, the balance of this Agreement and the Statement of Work shall not be affected by the unenforceable provision, and such provision, shall, if feasible, be modified in scope so that it becomes enforceable.
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