TERMS AND CONDITIONS OF SERVICE
PLEASE READ THIS ENTIRE DOCUMENT CAREFULLY. BY ACCEPTING A PROPOSAL, OR BY AUTHORIZING AUXILIA TO PERFORM SERVICES, YOU ARE EXPRESSLY AGREEING TO AND UNCONDITIONALLY ACCEPTING THESE TERMS.
“Agreement” refers to and means: (a) these Terms; (b) a Proposal that the Client has signed, accepted, consented to, or authorized Auxilia to begin performance of; and (c) any subsequent modifications to these Terms or a Proposal which are permitted herein. The Agreement is made and entered into between Auxilia and Client, but subject to Guarantor’s obligations set forth herein. There are no intended third-party beneficiaries under this Agreement.
“Client” refers to and means the person or entity named as “Client” in a Proposal. For purposes of Auxilia’s obligations to Client under this Agreement, it shall be liable only to the person or entity so named therein. However, for purposes of Client’s obligations to Auxilia, Client shall be jointly and severally liable to Auxilia along with the Guarantor.
“Client Content” refers to and means any web design materials, web pages, video or photographic media, logos, marketing materials (including concepts, ideas, and techniques), branding materials, tangible or intangible assets, or other things which are created or delivered by Auxilia as part of the Services.
“Client Investment” refers to and means the sum set forth in a Proposal to be paid by Client to Auxilia pursuant to the “Payment Schedule” set forth therein.
“Guarantor” refers to and means the individual person signing or accepting a Proposal on behalf of the Client.
“Party”, whether capitalized or not, refers to and means either Client or Auxilia.
“Parties”, whether capitalized or not, refers to and means both the Client and Auxilia collectively.
“Proposal” refers to and means the written document signed, accepted, consented to, or authorized by Client specifying the Client Investment to be paid by Client, as well as the Services to be performed by Auxilia.
“Auxilia” refers to and means exclusively Auxilia, LLC.
“Services” refers to and means the various search engine optimization (SEO), marketing, web development, or related services to be performed by Auxilia as specified in a Proposal, as well as those authorized modifications made thereto as permitted in this Agreement.
“Term” and “Term of the Agreement” refers to and means the period of time beginning on the date a Proposal is accepted (or such other date as may be specified in the Proposal), and ending on the Services are completed and the Client Investment is received in full (or such other date as may be specified in the Proposal).
“Terms” refers to these Terms and Conditions of Service.
“We” “Us” and “Our”, as used in a Proposal and this Agreement, and whether capitalized or not, refers to and means Auxilia.
“You” and “Your”, as used in a Proposal and this Agreement, and whether capitalized or not, refers to and means the Client.
The Agreement shall constitute the entire, final, and exclusive agreement and understanding between Auxilia and Client with regards to the subject matter hereof. The provisions of these Terms hereby supersede any prior understanding, representation, or agreement between the parties, whether written or oral, express or implied, which is inconsistent with or contrary to the provisions hereof. In the event of a conflict or inconsistency between the provisions of these Terms and the provisions of a Proposal, the provisions of these Terms shall control.
1. AUXILIA’S SERVICES
During the Term of this Agreement, and provided that Client is not in default hereunder, Auxilia will use reasonable efforts to perform the Services in a commercially reasonable manner. Client understands and agrees that payment of the Client Investment pursuant to the Payment Schedule, strictly as and when due, is an express and absolute condition precedent to Auxilia’s obligation to perform the Services. Furthermore, payment of the Client Investment serves only as compensation for Auxilia’s Services performed during the period of time in which payment is made, and does not constitute payment for ownership rights to any Client Content. Client understands and acknowledges that Auxilia has not investigated whether any Client Content will infringe upon the rights of third parties. Accordingly, it is Client’s sole responsibility to verify that the use, marketing, advertising, transmittal, and reproduction of all Client Content will not infringe upon the rights of any person or entity.
Client understands and agrees that Client shall not own or have any right, title, or interest (other than specified below) in or to the Client Content, unless and until the Client has paid the Client Investment in full. Until such time, and provided that Client is not in default hereunder, Auxilia grants to Client a non-exclusive, non-transferrable, and non-sublicensable license to promote, display, transmit, publish, use, and access the Client Content. In the event of default by Client, the foregoing license shall automatically terminate upon notice to Client. For purposes of clarity, the termination of this Agreement shall be synonymous with, and shall serve as the simultaneous termination of the foregoing license.
Client acknowledges that there are security risks inherent in Auxilia’s performance of the Services, as well as transmittal of Client Content to and from Auxilia. Accordingly, Client releases Auxilia from any and all liability for any security breach, theft, conversion, or hacking related to the Services, the Client Content, or any of the platforms used by Auxilia to deliver, promote, host, store, or market Client Content.
Client expressly releases Auxilia, and hereby waives all claims and causes of action against Auxilia, whether at law or in equity, now or hereafter acquired, for lost profits or for consequential, incidental, punitive, or any other form of damages arising from or relating to: (i). use, transmittal, or reproduction of Client Content (whether authorized or unauthorized); (ii). delays in Auxilia’s provision of Client Content to Client or any third parties designated by Client, or performance of the Services; or (iii). any security breach, theft, conversion, or hacking related to the Services, the Client Content, or any of the platforms used by Auxilia to deliver, promote, host, store, or market Client Content.
2. RESTRICTIONS & RESPONSIBILITIES
2.1 SECTION 1 HEREOF (AND ITS SUBPARTS) SETS FORTH THE SOLE AND EXCLUSIVE OBLIGATION OF AUXILIA TO CLIENT WITH REGARD TO PERFORMANCE OF THE SERVICES AND PROVISION OF CLIENT CONTENT. AUXILIA HAS MADE NO REPRESENTATION, WARRANTY, CLAIM, OR GUARANTEE REGARDING THE EFFECT, OUTCOME, OR RESULTS TO BE REALIZED OR OBTAINED BY CLIENT THROUGH USE OF THE SERVICES OR CLIENT CONTENT, AND SPECIFICALLY DISCLAIMS ALL OF THE SAME. AUXILIA DOES NOT GUARANTEE OR WARRANT, AND EXPRESSLY WAIVES AND DISCLAIMS ANY GUARANTEE OR WARRANTEE, WHETHER EXPRESS OR IMPLIED, WHICH MAY BE APPLICABLE TO THE SERVICES, THE CLIENT CONTENT, OR AUXILIA’S OBLIGATIONS UNDER A PROPOSAL OR THIS AGREEMENT.
2.2 Client shall not, either directly or indirectly, at any time during or after the Term of the Agreement or any subsequent renewal term thereof, nor shall Client permit any of Client’s agents, employees, companies, partners, affiliates or subsidiaries, nor the agents, employees, officers, or contractors of any of them, notwithstanding any other provision of the Agreement to the contrary, to do or attempt to do any of the following: (i). reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services, or platforms used by Auxilia to deliver the same (including, but not limited to any website created or designed by Auxilia); or (ii). modify, translate, or create derivative works based upon any Services (except to the extent expressly permitted by Auxilia).
2.3 Unless a transfer, sale, or assignment of intellectual property rights is expressly made in writing by Client, upon payment in full of the Client Investment, and provided that Client is not in default hereunder, all right, title, and interest in and to Client Content shall vest in, and shall be owned by Client. However, Auxilia shall have exclusive rights to, and ownership of any and all software, applications, inventions, methods, techniques, practices, content, know-how, functions, or other technology arising from or relating to any derivative work created by Auxilia based on Client Content. Furthermore, Client grants to Auxilia a non-exclusive, non-transferrable, irrevocable, and non-sublicensable license to display and promote Client Content (including logos, designs, and branding which may be subject to Client’s trademark or copyrights) in connection with its business marketing and advertisements.
2.4 Client hereby expressly covenants to defend, indemnify, and hold harmless Auxilia and its agents, employees, officers, successors, subsidiaries, parents, affiliates, and assigns from and against all claims, causes of action, costs, fees, fines, expenses, losses, and liabilities of any and every kind whatsoever, including attorney’s fees and court costs, which are brought against, sought from, alleged to be the responsibility or fault of, or are incurred by Auxilia, and which arise from, or in any way relate to: (i). any negligence or intentional wrongful acts by or on behalf of Client or its employees, agents, contractors, officers, subsidiaries, affiliates, or assigns; (ii). the creation, production, marketing, advertising, or use of any Client Content; (iii). the breach or threatened breach of any provision of the Agreement by Client; (iv). any act or thing for which Auxilia is released under this Agreement; or (v). any use, misuse, reproduction, or alteration of any Client Content by any person or entity, regardless of whether any of the foregoing was foreseeable or known to Auxilia.
2.5 Client acknowledges that Auxilia has invested considerable time, effort, and money into recruiting and training its employees and independent contractors who carry out performance of the Services and delivery of Client Content during the Term (“Protected Personnel”). Accordingly, the Client shall not, during the Term or within the six (6) month period immediately thereafter, either directly or indirectly, either on Client’s behalf or in assistance to any third party, do or permit any other person to do any of the following: (i). induce, recruit, solicit, hire, employ, contract with or otherwise engage in any way with any Protected Personnel for the purpose of performing services similar in nature to the Services; or (ii). solicit, induce, recruit, encourage, or entice any Protected Personnel to leave the employ or engagement of Auxilia, or having knowledge that such actions will cause, either directly or indirectly, any Protected Personnel to leave the employ or engagement of Auxilia.
2.6 Client acknowledges that compliance with the terms of paragraph 2.5 above is necessary to protect Auxilia’s legitimate business interests in retaining qualified personnel. Furthermore, Client understands and agrees that a breach of paragraph 2.5 above will result in financial loss to Auxilia, for which Auxilia will be entitled to an accounting of lost profits and recovery of damages therefor.
2.7 Client acknowledges that Auxilia requires administrative access to a variety of accounts owned or controlled by Client in order to perform Auxilia’s Services. Accordingly, during the Term Client will ensure Auxilia has administrative access to all accounts to which Auxilia requests access in order to perform its Services. If such administrative access does not exist, Client expressly authorizes Auxilia to create administrative accounts, permissions, and access as reasonably necessary to perform the Services and develop the Client Content.
3. CONFIDENTIALITY; PROPRIETARY
3.1 Both parties may, from time to time hereafter disclose to the other party certain business, technical, or financial information relating to that party’s business, software, systems, products, or processes (hereinafter referred to as “Proprietary Information”). Proprietary Information of Auxilia also includes all non-public information regarding features, functionality, and performance of its services, design process, and Client Content. Accordingly, each party hereby agrees: (i). to take commercially reasonable precautions to protect such Proprietary Information of the other party, but in every event to employ at least the same or better methods for safeguarding the Proprietary Information of the other party that the first party employs for its own Proprietary Information; and (ii). not to use, disclose, divulge, or reveal, or permit to be disclosed, divulged, or revealed any Proprietary Information of the other party, except as otherwise permitted herein. Notwithstanding the foregoing, each party’s non-disclosure obligations hereunder shall not apply with respect to any Proprietary Information of the other party which is or has become generally available to the public, or which is required to be disclosed by the first party pursuant to applicable law.
3.2 Notwithstanding anything in the Agreement to the contrary, Auxilia shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and Client Content and its delivery, use of, and marketing to Client’s customers. Auxilia shall be permitted (both during and after the Term) to do any or all of the following: (i). use such information and data to improve and enhance its business operations and for other development, diagnostic, and corrective purposes in connection with the Services and other Auxilia offerings; and (ii). disclose to third parties such data in connection with its business.
4. PAYMENT OF CLIENT INVESTMENT
4.1 Client shall pay to Auxilia the Client Investment as set forth in a Proposal and pursuant to the Payment Schedule included therein. In addition, Client shall pay to Auxilia when due the sum owed for any additional Services which may be requested by Client and performed by Auxilia from time to time after the date of the initial Proposal, which additional Services are made subject to these Terms. Time is of the essence with regards to Client’s payment obligations hereunder. If a particular Payment Schedule due date is not specified in a Proposal or subsequent agreement memorializing additional Services to be performed, then the due date shall be considered the first (1st) day of the applicable monthly period. All portions of the Client Investment are non-refundable.
4.2 In the event that any payment by Client is returned or dishonored for lack of sufficient funds, Client shall promptly reimburse Auxilia upon demand the greater of: (i). any NSF fee charged to Auxilia as a result thereof; or (ii). Thirty-Five Dollars ($35.00). If Client chooses to make payment by debit card, credit card, or ACH bank withdrawal, Client shall ensure that current card/account information is kept on file with Auxilia at all times. Auxilia is entitled to charge the debit card(s), credit card(s), or bank account(s) on file which have been given to Auxilia as payments become due, and without advance notice to Client. If more than one debit card, credit card, or bank account has been provided to Auxilia, and one of the foregoing is canceled or a charge thereon is declined, Auxilia may charge any other debit card, credit card, or bank account on file without advance notice to Client.
4.3 Auxilia reserves the right, in its sole and absolute discretion, and at any time, to require that future payments be made by Client via wire transfer, ACH transfer, or certified check; provided that Client shall be solely responsible for payment of all fees (including, but not limited to merchant and transfer fees or certified check fees) related thereto. Auxilia shall in no way be liable for theft, hacking, misappropriation, or security breaches of Client’s payment, bank account, debit card, or credit card information.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided for herein, the Agreement shall run for the entire Term unless or until terminated by either party as permitted herein. Termination of this Agreement, regardless of reason or cause, or by whom it is terminated, shall not relieve Client of their payment obligations hereunder.
5.2 Auxilia may terminate this Agreement at any time upon written notice to Client in any of the following events: (i). Client breaches this Agreement; (ii). Client fails to timely respond to or provide Auxilia with any information, Client Content, answers, clarification, or data deemed reasonably necessary by Auxilia in order for it to perform its Services; or (iii). Client takes any action, publishes any statement or image (including Customer Content), or fails to take action the result of which, in Auxilia’s sole and absolute discretion, is or may be illegal, unethical, immoral, or reflect in a negative light on either the Client or Auxilia.
5.3 Either party may terminate this Agreement for convenience at any time, and for any reason, upon providing sixty (60) days’ advance written notice to the other party. During the pendency of any notice period, the parties shall continue to perform their respective obligations hereunder, unless doing so would be deemed a breach of this Agreement.
5.4 In the event that Client attempts to terminate this Agreement in a manner not expressly permitted hereby, then Client shall be responsible for all costs, fees, and expenses incurred by Auxilia up to and including the date of termination, as calculated by Auxilia in its sole and absolute discretion. Payment by Client of the foregoing shall not relieve Client of any other payment obligations hereunder, nor shall demand for such payment be considered Auxilia’s exclusive remedy hereunder.
5.5 All sections of the Agreement which by their nature should survive termination will survive termination, including, without limitation, waivers of and limitations on Auxilia’s liability, releases by Client, indemnity agreements, venue and choice of law provisions, waivers and disclaimers of warranties and guarantees, and confidentiality provisions. The foregoing list is not exhaustive.
6. WARRANTY AND DISCLAIMER
NOTWITHSTANDING ANY PROVISION OF THE AGREEMENT TO THE CONTRARY, AUXILIA DOES NOT WARRANT, AND EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED AS TO: (I). PERFORMANCE OR EFFECTIVENESS OF CLIENT CONTENT; (II). ABILITY OF CLIENT CONTENT TO BE TRADEMARKED OR COPYRIGHT PROTECTED; AND (III). CLIENT CUSTOMERS’ ABILITY TO ACCESS THE CLIENT CONTENT (INCLUDING DOWNTIME OF THE DELIVERY PLATFORMS THEREOF). THE SERVICES OF AUXILIA ARE PROVIDED “AS IS”, AND AUXILIA EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
7. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, OR ANY AMENDMENT HERETO, CLIENT HEREBY RELEASES AND WAIVES ALL RIGHTS, CLAIMS, AND ACTIONS AGAINST AUXILIA AND ITS VENDORS, OFFICERS, AFFILIATES, REPRESENTATIVES, ASSIGNS, SUBSIDIARIES, CONTRACTORS, AND EMPLOYEES FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF USE, REVENUE, OR PROFITS, OR FOR ANY MATTER BEYOND AUXILIA’S EXCLUSIVE CONTROL, INCLUDING ACTS OF GOD, CIVIL STRIFE, PANDEMICS, EPIDEMICS, PUBLIC HEALTH EMERGENCIES, EMERGENCY ORDERS, HACKING, SECURITY BREACHES, OR OTHER SIMILAR MATTERS. THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO CLIENT IN ANY ACTION AGAINST AUXILIA SHALL BE LIMITED TO THE CLIENT INVESTMENT PAID TO DATE THEREOF, REGARDLESS OF WHETHER AUXILIA HAS BEEN ADVISED OF THE POSSIBILITY OF ADDITIONAL DAMAGES. CLIENT EXPRESSLY WAIVES THE RIGHT TO SEEK RECOVERY OF ANY OTHER MEASURE OF DAMAGES, OR FOR ANY OTHER REMEDY AT LAW OR IN EQUITY.
8.1 The Agreement is not assignable, transferable, or sublicensable by Client except with Auxilia’s prior written consent, which may be withheld in its sole and absolute discretion. Auxilia may assign the Agreement without the consent of or prior notice to Client.
8.2 Except as otherwise provided herein, no waiver or modification of the Agreement shall be valid unless made in the form of a writing signed by Auxilia. However, changes to the Services may be made from time to time as Auxilia agrees to in writing (which writing may take the form of an e-mail or series of e-mails by Auxilia).
8.3 No agency, partnership, joint venture, or employment relationship is created between the parties or their respective personnel by virtue of the Agreement and Client does not have any authority of any kind to bind Auxilia in any respect whatsoever to any obligation not expressly stated in the Agreement. Auxilia is an independent contractor of Client. Auxilia has no control over or responsibility for the business decisions of Client, and therefore Auxilia shall not be held liable for any action or inaction of Client which is based upon Client’s interaction or relationship with Auxilia.
8.4 In the event that legal action is taken by either party against the other (or against Guarantor) to enforce the provisions of this Agreement, the prevailing party from such dispute shall be entitled to recover its attorney’s fees and court costs arising from such dispute, together with any fees or costs incurred in determining the amount of fees to be recovered. As used in this subsection the term “prevailing party” means the party prevailing on the substantial matters of law in such legal action.
8.5 All notices under the Agreement must be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next-day delivery by recognized overnight delivery service; or upon receipt, if sent by certified or registered mail, return receipt requested. Client’s contact information for purposes of legal notices is as set forth in the initial Proposal. Either party may update its contact information for purposes of notice by giving notice of the same to the other party as provided for herein.
8.6 The Agreement shall be governed by the laws of the State of Florida without regard to its conflict of laws provisions. Venue for any legal action or other proceeding arising from or relating to the Agreement shall be proper, convenient, and exclusively held in the courts of the county wherein Auxilia’s principal place of business is located, and both parties hereby expressly and irrevocably consent to the personal jurisdiction of the courts thereof over each party. The parties expressly agree that the Agreement shall be considered to have been made and entered into in Orange County, Florida.
8.7 CLIENT HEREBY EXPRESSLY AND IRREVOCABLY WAIVES CLIENT’S RIGHT TO A TRIAL BY JURY IN ANY LEGAL ACTION ARISING FROM OR RELATING IN ANY WAY TO THE AGREEMENT.
8.8 Client hereby expressly, absolutely, and irrevocably waives all defenses, whether arising in equity or at law, which may now or hereafter be available to Client, as to the validity and enforcement of this Agreement, including, but not limited to duress, estoppel, failure or lack of consideration, fraud, misrepresentation, lack of capacity, unconscionability, unclean hands, or undue influence. Client and Guarantor expressly agree that all provisions of this Agreement are necessary and reasonable.
8.9 Should any provision of this Agreement be held by a court of competent jurisdiction to be enforceable only if modified, or if any portion of this Agreement shall be held as unenforceable and thus stricken, such holding shall not affect the validity of the remainder of this Agreement, the balance of which shall continue to be binding upon the parties with any such modification to become a part hereof and treated as though originally set forth in this Agreement. The parties further agree that any such court is expressly authorized to modify any such unenforceable provision of this Agreement in lieu of severing such unenforceable provision from this Agreement in its entirety, whether by rewriting the offending provision, deleting any or all of the offending provision, adding additional language to this Agreement or by making such other modifications as it deems warranted to carry out the intent and agreement of the parties as embodied herein to the maximum extent permitted by applicable law. The parties expressly agree that this Agreement as so modified by the court shall be binding upon and enforceable against each of them. In any event, should one or more of the provisions of this Agreement be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions hereof, and if such provision or provisions are not modified as provided above, this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had not been set forth herein.
8.10 This Agreement shall be binding upon and inure to the benefit of each party’s respective heirs, successors, and assigns.
8.11 The language used in this Agreement will be deemed the language chosen by the parties to express their mutual intent, and no rules of strict construction will be applied against either party.
8.12 The Guarantor shall be considered to have obligated themselves to Auxilia to the same and equal extent as Client for all obligations stated herein. Guarantor hereby expressly and unconditionally guarantees all obligations of Client as set forth in this Agreement. Furthermore, Guarantor’s liability to Auxilia is joint and several with Client; accordingly, in any legal action to enforce the provisions of this Agreement, it shall not be necessary for Auxilia to bring such action against Client first in order to proceed against Guarantor individually.
8.13 This Agreement is not exclusive. Accordingly, nothing contained in this Agreement shall be deemed or construed as a limitation on Auxilia’s right to work with and perform services similar or identical to the Services for other persons and entities, including competitors of Client.
8.14 The Client is expressly prohibited from assigning this Agreement to any party without the prior written consent of Auxilia, which consent may be withheld at Auxilia’s sole discretion for any reason. Any purported assignment which is in contravention of this section shall be void ab initio.
8.15 Nothing in this Agreement shall be construed so as to reduce, restrict, limit, negate, or abridge Auxilia’s right to collaborate with, share information related to the Services and Client Content with, and subcontract all or part of the Services to its preferred vendors and contractors, which right is expressly affirmed and acknowledged by Client.
8.16 Notwithstanding anything to the contrary contained in this Agreement, except for an action by Auxilia against Client or Guarantor arising from or related to nonpayment of sums owed to Auxilia hereunder, neither party may commence litigation against the other party without providing written notice and demand to the other party setting forth the matters and amounts (if applicable) in dispute, and without first mediating the dispute before a certified mediator of the parties’ mutual choosing in Orange County, Florida.