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Terms and Conditions

(Last reviewed August 29, 2018)

These Standard Terms & Conditions (the “Terms & Conditions”) are made effective as of the Effective Date set forth in the Statement of Work (the “SOW”) by and between NKP Medical Marketing, Inc. (“NKP”) and the client designated in the SOW (“Client”). Client agrees to be bound by both the Terms & Conditions and the SOW, which are collectively referred to herein as this “Agreement”. In the event of a conflict between the Terms & Conditions and the SOW, the terms of the SOW shall prevail. NKP and Client are sometimes referred to herein individually as a “party” and collectively as the “parties”.

  1. Services: NKP agrees to design, build and host Client’s website and provide other services relating to the website (the “Services”) as described in the SOW, and in consideration for the Services, Client agrees to pay NKP compensation as described in the SOW.
  2. Client Obligations: Client agrees that:
    1. All requests made by Client will be reasonable in nature and within the scope of the Services purchased.
    2. Client will respond promptly to NKP’s requests for assistance, and in no event more than three (3) business days thereafter. Failure to respond promptly will result in unnecessary delays, the cost of which shall be borne by Client. NKP is not responsible for additional fees, time, or expenses incurred because of delays caused by Client’s lack of or untimely response, feedback or approval, including Client’s failure to initiate the kick-off meeting or design process.
  3. Intellectual Property:
    1. Client IP: All domains, designs, content, pictures, logos, text, and other documentation provided by Client to NKP (“Client IP”) shall remain the sole property of Client. By submitting Client IP to NKP, Client grants NKP an unrestricted license to use Client IP in conjunction with the Services and to display screenshots of Client’s website in marketing materials.
    2. NKP IP: NKP owns all web applications, plugins and software used, developed or invented by NKP to provide the Services. Unless otherwise specifically provided in this Agreement, no right or license under any copyright, trademark, patent or other intellectual property right or license is granted by this Agreement. NKP reserves all rights not expressly granted herein.
  4. Independent Contractor: The relationship created by this Agreement is one between NKP as an independent contractor, on the one hand, and Client as the client, on the other hand. Client is not the employer of NKP, and NKP or its assigned agents will not be treated as employees of Client for tax or any other purposes, including but not limited to employee rights and benefits. NKP shall not have any authority to enter into contracts that bind Client or create obligations on part of Client without prior authorization of Client.
  5. Confidential Information:
    1. Obligations: Neither party shall use any Confidential Information (as defined herein) disclosed by the other for any purpose other than to provide or receive the Services. The parties agree to take all reasonable measures to protect the Confidential Information and avoid disclosure or use of Confidential Information.
    2. Definition of Confidential Information: “Confidential Information” means any information, technical data or know how (whether disclosed before or after the date of this Agreement), including, but not limited to, information relating to business and product or service plans, pricing, financial projections, customer lists, business forecasts, sales and merchandising, expert sources, human resources, patents, patent applications, computer object or source code, research, inventions, processes, designs, drawings, engineering, marketing or finance to be confidential or proprietary or which information would, under the circumstances, appear to a reasonable person to be confidential or proprietary. Confidential Information does not include information, technical data or know how that: (a) is or becomes generally available to the public; (b) becomes properly known to the other party without restriction on use or disclosure from an unaffiliated third party; or (c) is independently developed by a party without use of or reference to any Confidential Information disclosed by the other party
  6. General Representations and Warranties:
    1. NKP: NKP represents, warrants and covenants that: (i) the Services will be performed in a professional and workmanlike manner and that none of such Services nor any part of this Agreement is or will be inconsistent with any obligation NKP may have to others; (ii) all work under this Agreement shall be NKP’s original work and none of the Services or Client’s Intellectual Property nor any development, use, production, distribution or exploitation thereof will infringe, misappropriate or violate any intellectual property or other right of any person or entity (including, without limitation, NKP); (iii) NKP has the full right to allow it to provide Client with the assignments and rights provided for herein (and has written enforceable agreements with all persons necessary to give it the rights to do the foregoing and otherwise fully perform this Agreement); (iv) NKP shall comply with all applicable laws in the course of performing the Services; and (v) if NKP’s work requires a license, NKP has obtained that license and the license is in full force and effect.
    2. Client: Client represents, warrants and covenants that: (i) it has the right to enter into this Agreement and doing so is not inconsistent with any obligation Client may have to others; (ii) Client owns, or has the legal right to use, Client IP and the use, production, distribution and/or exploitation thereof will not infringe, misappropriate or violate any intellectual property or other right of any person or entity; (iii) Client IP is truthful, honest and accurate, and (iv) Client IP does not violate any consumer protection or data privacy laws.
  7. Disclaimer / Limitation of Liability:
    1. Disclaimer: The Services are provided “AS IS” on an “AS AVAILABLE” basis without warranty or condition of any kind. NKP DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NKP IS NOT RESPONSIBLE OR LIABLE (AND MAKES NO REPRESENTATION OR WARRANTY) FOR THE ACCURACY, CONTENT, COMPLETENESS, LEGALITY, RELIABILITY OR AVAILABILITY OF THE SERVICES. NKP EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR LIABILITY DUE TO HACKING OF ANY WEBSITES, HOSTING OUTAGES, DOWNTIME, USABILITY OF THE SITE, OR CLIENT’S FAILURE TO OBTAIN ANY DESIRED RESULTS, SUCCESS OR PERFORMANCE FROM THE SERVICES.
    2. Limitation of Liability: NKP’S TOTAL LIABILITY TO CLIENT FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO, AND WILL NOT EXCEED, MONIES PAID BY CLIENT TO NKP OVER THE PREVIOUS 12 MONTHS. TO THE EXTENT PERMITTED BY LAW, NKP WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THESE LIMITATIONS ARE INTENDED TO APPLY EVEN IF A LIMITED REMEDY IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
  8. Indemnification:
    1. General Indemnification: Each party will indemnify, defend (or settle) and hold the other harmless from any claims, actions, damages, losses, liabilities, judgments, costs and expenses (including reasonable attorneys’ fees) (collectively, “Claims”) arising out of or in connection with any breach this Agreement.
    2. Client IP: Notwithstanding anything to the contrary, if a third party claim is made or an action brought alleging that (i) Client IP infringes a patent, or any copyright, trademark, trade secret or other proprietary intellectual property right, and/or (ii) Client IP violates any applicable law or regulation, Client shall indemnify, hold harmless and defend NKP against such Claims.
  9. Miscellaneous:
    1. Press Release. NKP may issue a press release announcing Client’s use of the Services and may include Client’s name in NKP’s list of customers that NKP provides to its then current or prospective customers. Additionally, NKP has the right to use the name and logo of Client’s company or organization on the NKP website and in NKP’s marketing materials to identify Client as a user of the Services.
    2. Notices. All notices required or contemplated by this Agreement shall be in writing. Any notice to be given or served hereunder, by either party shall be deemed given and received hereunder when delivered personally or five (5) days after being mailed certified mail, postage prepaid, and addressed as follows, or to such other address as each party may designate in writing.
    3. Governing Law and Venue. This Agreement and all matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to any conflict of law provisions. Any dispute, claim or action brought by it in any way arising out of this Agreement must be brought solely and exclusively in state or federal court located in Los Angeles County, California, and each party irrevocably accepts and submits to the sole and exclusive jurisdiction of each of the aforesaid courts in personam, generally and unconditionally, with respect to any action, suit, or proceeding brought by it or against it by the other party.
    4. Assignment. This Agreement may not be assigned or otherwise transferred by any party without the prior written consent of the other party; provided, however, that either party may, without such consent, assign its rights and obligations under this Agreement in connection with a merger, consolidation or sale of substantially all of the business to which this Agreement relates. Any purported assignment or transfer in violation of this Section shall be void. This Agreement shall be binding on the parties and their respective successors and permitted assigns.
    5. Counterparts. This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument.
    6. Entire Agreement/Severability. This Agreement constitutes the entire agreement between the parties with respect to this subject matter and supersedes and merges any prior proposals, understandings and contemporaneous communications. If any part of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect.
    7. Section Headings. Headings of articles and sections in this Agreement are for the convenience of the parties only. Accordingly, they shall not constitute a part of this Agreement when interpreting or enforcing this Agreement.
    8. Breach and Waiver. No waiver of any breach of this Agreement shall: (a) be effective unless it is in a writing which is executed by the party charged with the waiver, or (b) constitute a waiver of a subsequent breach, whether or not of the same nature. All waivers shall be strictly construed. No delay in enforcing any right or remedy as a result of a breach of this Agreement shall constitute a waiver thereof.
    9. Survival of Terms. Notwithstanding anything contained herein to the contrary, all of NKP’s and Client’s respective obligations, representations and warranties under this Agreement which are not, by the expressed terms of this Agreement, fully to be performed while this Agreement is in effect shall survive the termination of this Agreement for any reason.
    10. Defined Terms and Use of Terms. All defined terms used in this Agreement shall be deemed to refer to the masculine, feminine, neuter, singular and/or plural, in each instance as the context and/or particular facts may require. Use of the terms “hereunder,” “herein,” “hereby,” and similar terms refer to this Agreement.
    11. Cumulative Remedies. No right or remedy conferred by this Agreement is exclusive of any other right or remedy conferred herein or by law or in equity; rather, all of such rights and remedies are cumulative of every other such right or remedy and may be exercised concurrently or separately from time-to-time.
    12. Ambiguous Terms. Any ambiguities in this Agreement will not be strictly construed against the drafter of the language concerned but will be resolved by applying the most reasonable interpretation under the circumstances, giving full consideration to the intentions of the parties at the time of contracting. This Agreement will not be construed against any party by reason of its preparation.
    13. Attorney’s Fees. In the event any suit or other action is commenced to construe or enforce any provision of this Agreement, the prevailing party, in addition to all other amounts such party shall be entitled to receive from the other party, shall recover its reasonable attorney’s fees and court costs.
    14. Addendum/Appendices. All documents attached hereto as an addendum or appendix shall be incorporated into the body of this Agreement.

 

[End of Terms & Conditions]