THESE TERMS AND CONDITIONS ARE PART OF AND INCORPORATED INTO THE AXIA CLIENT AGREEMENT THAT YOU SIGNED.
Jason Mudd & Associates, Inc. doing business as Axia Public Relations (“Axia” or “Agency”) (We, Our or Us) is a public relations company.
The Definitions adopted in the Axia (Client Service) Agreement You signed are adopted in the Terms and Conditions listed below.
II. Dispute Resolution, Damages and Indemnification
A. DISPUTE RESOLUTION PROCESS
In case a dispute arises between You and Us arising out of or related to the Agreement, the following process must be followed:
1) The party alleging default or breach (the Claiming Party) will send the other party (the Responding Party) Notice (the Notice of Breach), by certified mail, stating in specific details what act, conduct or omission constitutes the alleged breach or default.
2) The Responding Party will have 30 days from the receipt of the Notice of Default to cure the alleged breach or default. During those 30 days, the Parties will cooperate and engage in substantive, goodfaith negotiations to resolve their differences.
3) If the differences between the Parties are not resolved within 30 days after the Responding Party receives the Notice of Default, the Parties will engage in prelitigation mediation, with the cost of mediation to be shared equally between them. Mediation must take place within 90 days after the Responding Party received the Notice of Default.
4) If mediation fails, the Claiming Party may take legal action, including filing a civil action.
5) Both Parties hereby knowingly, freely and voluntarily waive trial by jury in any action or proceeding to which they may be a party,
arising out of or in any way related to the Agreement.
B. LIABILITIES AND DAMAGES
1) General Limitation. In no event shall We, Our directors, officers, employees, agents, successors, or affiliates, be liable for any damages whatsoever, including without limitation, any loss of profits, loss of business, loss of use or data, interruption of business, or for direct, indirect, special, incidental, or consequential damages of any kind, above and beyond the amount You actually paid Us in the last year under the Agreement.
2) Additional Limitation. In no event shall We, Our directors, officers, employees, agents, successors, or affiliates, be liable for any damages whatsoever, including without limitation, any loss of profits, loss of business, loss of use or data, interruption of business, or for direct, indirect, special, incidental, or consequential damages of any kind, in any amount whatsoever, that arises out of (i) your misuse of copyrighted material; (ii) misrepresentations of material facts on Your part; (iii) Your providing Us with inaccurate information.
3) Liquidated Damages. You recognize that Our investment in Your projects or campaigns carry a cost potentially higher than the amount due under the Agreement, that the Agreement may have annual renewal terms, and that damages resulting from a breach of the Agreement by You would be difficult to determine.
Accordingly, You agree that Our damages in case you Breach the Agreement are equal to a sum equal to:
Twelve monthly payments or four quarterly payments, if the breach occurs 60 days or more before the date for any renewal; or Three monthly payments or one quarterly payment if the breach occurs less than 60 days from the date for any renewal.
4) Attorneys’ Fees. In case litigation is necessary, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs incurred in litigation and on appeal.
5) Collection Cost. In addition to Your liability for attorneys’ fees provided in Paragraph 4 above, should You default on our agreement due to non-payment of amount due, You shall further be liable for and shall pay Us all collection costs and expenses We incur in collecting or attempting to collects amounts due and unpaid.
6) Guarantees and Liabilities. The payments due under these Terms and Conditions and the Agreement are due by Client, any Guarantors who have signed the Agreement, and any entity (including corporations and limited liability companies) which is making payment directly to Agency, which Client or Guarantor has an interest in as a shareholder, member, office, director. Any payment by such entity, is deemed to be made for an improper purpose of defrauding Axia, thereby creating a liability under the Agreement for all amount due thereunder.
C. INDEMNIFY AND HOLD HARMLESS
1) Hold Harmless. You hold Us, Our employees, officers, directors, agents, successors and affiliates harmless from any claim, demand, or cause of action, by whomever brought, whether or not brought in front of a state or federal court of law or equity, or an administrative tribunal of any federal, state or local body, that arises out of or is in any way related to the Agreement.
2) Indemnify. You shall indemnify Us, Our employees, officers, directors, agents, successors and affiliates for any monetary assessment, arising from any claim, demand, or cause of action, by whomever brought, and whether or not imposed by a state or federal court of law or equity, or an administrative tribunal of any federal, state or local body, that arises out of or is in any way related to the Agreement.
3) Scope of Indemnification. The above indemnification encompasses and includes, without limitation (i) payment of any penalty, fine, judgment award or decree, (ii) payment of any court cost or attorneys’ fees to a prevailing party, and (iii) the payment of Our costs and attorneys’ fees in defending any claim, demand or cause of action as described above.
C. No Guarantees
1) General limitation. We have listed and hold ourselves to certain objectives in providing the services You have hired us to provide. However, we cannot and do not guarantee any specific result.
2) Media Outlets. We do not own or exercise control over media outlets or other third parties, whether in television, radio, print, web, or any other medium. Therefore, we cannot and do not guarantee the performance, conduct, timeliness, content, or editorial decision of any media outlet.
3) Copyright. We will occasionally provide You with copies of news coverage involving You. This coverage may be subject to copyrights. We cannot and do not guarantee that You have the right to reproduce it or use it in any way. It is Your sole responsibility to obtain the necessary rights from the material’s owner.
D. Additional terms
1) Singular and plural. Where the context so indicates or requires, each term stated in the singular includes the plural, and each term stated in the plural includes the singular.
2) No Waiver. The failure of either party to insist on the performance of any of the terms and conditions of the Agreement, or the waiver of any breach of any of the terms and conditions of the Agreement, shall not be construed as waiving any other term or condition at any other time.
3) Captions. The captions of the sections and paragraphs are for convenience only and are not a part of the Agreement, and do not in any way limit or amplify the terms and provisions of the Agreement.
4) Severability. If any provision of these Terms and Conditions, is found invalid or unenforceable under judicial decree or decision, the remainder shall remain valid and enforceable according to its terms. Without limiting the previous, it is expressly understood and agreed that each and every provision of these Terms and Conditions that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is intended by the Parties to be severable and independent of any other provision and to be enforced as such. Further, it is expressly understood and agreed that if any remedy under these Terms and Conditions is determined to have failed of its essential purpose, all other limitations of liability and exclusion of damages set forth in these Terms and Conditions shall remain in full force and effect.
5) Interpretation. The Parties acknowledge that they have read the Agreement, and that they understand its terms and that they agree to be bound by the Agreement. Each has had the opportunity to consult with an attorney. In the event of an ambiguity or question of intent or interpretation arises, the Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or di favoring either Party by virtue of the authorship of any of the provisions of the Agreement.
6) Amendment. The Agreement shall not be amended in any way except by written agreement signed by both Parties.
7) Integration. The Parties represent and warrant that they are not relying on any promises or representations that do not appear written in this Agreement.
8) Counterparts. The Agreement may be executed in counterpart originals, all of which shall constitute one and the same agreement.