For purposes of Terms of Service, BreakingRight.com is under the agency of Snap321.com LLC.
0.0 This document shall serve as an agreement between Snap321.com (“Company”) and any new Client. It will also become binding immediately for existing promotional customers upon the company sending an email to the existing customer with no formal protest within 30 days of email of said notice to existing customers. *
0.1 Authority pledge: I hereby personally swear and affirm that I am fully authorized to enter into and complete any and all formal legal transactions, contracts, covenants, agreements on behalf of above listed ï¿½Clientï¿½ at this time and for the foreseeable future.
0.2 Payment Schedule:
0.2.1 The total fee for setup of this project is $0. This includes completion of the items selected by the client by email or at http://snap321.com/freesetup.php and includes up to 3 hours active work by the Company.
0.2.2 The monthly fee for ongoing regular services is $99 per month for the Silver Membership or $199 per month for the Gold Premium Membership. This includes up to three marketing pushes per month, as defined at http://snap321.com/3pushes.php
0.2.3 Silver Membership includes a minimum of 4 hours of active work per month, resulting in a minimum of 2 marketing metric gains, found at http://snap321.com/ResultsMetrics.php If this is not achieved, and for only as long as it is not achieved, client will be provided an additional 3 hours of active work per month for 2 months minimum after notice is given by customer of any deficiency. *
0.2.4a Gold Premium Membership includes a minimum of 10 hours of active work per month, resulting in a minimum of 3 marketing metric gains, found at http://snap321.com/ResultsMetrics.php If this is not achieved, and for only as long as it is not achieved, client will be provided an additional 7 hours of active work per month for 2 months minimum after notice is given by customer of any deficiency. *
0.2.4b Platinum Domination Membership includes a minimum of 20 hours of active work per month, resulting in a minimum of 5 marketing metric gains, found at http://snap321.com/ResultsMetrics.php, including the top of Google which is #1, 2 or 3 positions. If this is not achieved, and for only as long as it is not achieved, client will be provided an additional 10 hours of active work per month for 2 months minimum after notice is given by customer of any deficiency. *
0.2.5 If available, the Promotional Discount is the same as the Silver Membership, but the first 3 months are $50 per month, and in return you agree to provide one favorable, honest testimonial, one or more photos and/or video and the permission to use such testimonial, photos and/or video indefinitely in order to market Snap321.comï¿½s products and services. You further agree to allow a contextual backlink from one or more of your website pages to snap321.com, befound.org and/or any similar websites or pages as requested by snap321.com or its authorized subsidiaries, agents or partners. Duration will be at a minumum for the full term of this contract, with removal of backlinks the responsiblity of the customer, his agents or by request and with authorization may be conducted by snap321.com, its agents, subsidiaries or partners.*
0.2.6 Completion of services is subject to Client fulfilling the Qualifications and Restrictions as detailed at http://snap321.com/pushes_freesetup.php, and any and all additional qualifications and restrictions that may be agreed upon in the conduct of the services, requiring express notice, whether in writing or by email, and dated acknowledgement of said additional requirements or restrictions.
Terms and Conditions
The terms of the Proposal shall be effective for 3 days after presentation to Client. In the event this Agreement is not executed by Client within the time identified, the Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.
2. FEES AND CHARGES
In consideration of the Services to be performed by Company, Client shall pay to Company fees in the amounts and according to the payment schedule set forth in the Proposal, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.
2.2 Additional Costs
The Project pricing includes Companyï¿½s fee only. Any and all outside costs including, but not limited to, equipment rental, photographerï¿½s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses, and online access or hosting fees, will be billed to Client unless specifically otherwise provided for in the Proposal.
All invoices are payable within 7 days of receipt. A 1.5 percent monthly service charge is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance. Client shall be responsible for all collection or legal fees necessitated by late or default in payment. Company reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses and Fees, Charges or the costs of Changes.
3.1 General Changes
Unless otherwise provided in the Proposal, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis, at Companyï¿½s standard hourly rate of $40 per hour. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein. Company may extend or modify any delivery schedule or deadlines in the Proposal and
Deliverables as may be required by such Changes.
3.2 Substantive Changes
If Client requests or instructs Changes that amount to a revision in or near excess of fifty percent (50%) of the time required to produce the Deliverables, and or the value or scope of the Services, Company shall be entitled to submit a new and separate Proposal to Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by Company.
Company will prioritize performance of the Services as may be necessary or as identified in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. Client agrees to review Deliverables within the time identified for such reviews and to promptly either,
(i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Clientï¿½s concerns, objections or corrections to Company. The Company shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that Companyï¿½s ability to meet any and all schedules is entirely dependent upon Clientï¿½s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Clientï¿½s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or Companyï¿½s obligations under this Agreement.
3.4 Testing and Acceptance
Company will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. Client, within five (5) business days of receipt of each Deliverable, shall notify Company, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Company will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted.
4. CONFIDENTIAL INFORMATION
Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (ï¿½Confidential Informationï¿½). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third-party, and shall not use any
Confidential Information except as may be necessary to perform its obligations under the Proposal except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.
5. RELATIONSHIP OF THE PARTIES
5.1 Independent Contractor
Company is an independent contractor, not an employee of Client or any company affiliated with Client. Company shall provide the Services under the general direction of Client, but Company shall determine, in Companyï¿½s sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Company and the work product or services prepared by Company shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.
5.2 No Exclusivity
The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Company, and Company shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Company.
6. INDEMNIFICATION / LIABILITY
6.1 By Client
Client agrees to indemnify, save and hold harmless Company from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Clientï¿½s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances Company shall promptly notify Client in writing of any claim or suit; (a) Client has sole control of the defense and all related settlement negotiations; and (b) Company provides Client with commercially reasonable assistance, information and authority necessary to perform Clientï¿½s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by Company in providing such assistance.
6.2 By Company
Subject to the terms, conditions, express representations and warranties provided in this Agreement, Company agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Companyï¿½s representations and warranties made herein, except in the event
any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client provided that (a) Client promptly notifies Company in writing of the claim; (b) Company shall have sole control of the defense and all related settlement negotiations; and (c) Client shall provide Company with the assistance, information and authority necessary to perform Companyï¿½s obligations under this section.
Notwithstanding the foregoing, Company shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any work provided by Company.
6.3 Limitation of Liability
THE SERVICES AND THE WORK PRODUCT OF COMPANY ARE SOLD ï¿½AS IS.ï¿½ IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES (ï¿½COMPANY PARTIESï¿½), TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENTï¿½S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE NET PROFIT OF COMPANY. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY COMPANY, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
7. TERM AND TERMINATION
This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.
This Agreement may be terminated at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or if any party:
(a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or
(b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within ten (10) days from receipt of written notice of such breach.
In the event of termination, Company shall be compensated for the Services performed
through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by Company or Companyï¿½s agents as of the date of termination, whichever is greater; and Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation.
In the event of termination by Client and upon full payment of compensation as provided herein, Company grants to Client such right and title with respect to those services provided to, and accepted by Client as of the date of termination.
Upon expiration or termination of this Agreement: (a) each party shall return or, at the disclosing partyï¿½s request, destroy the Confidential Information of the other party, and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.
7.5.1 NOTE – Signature section has been removed. Checking the checkbox on any snap321.com, befound.org or authorized affiliate websites constitutes legal acceptance of this contract in its entirety. *
*7.6 Updated 5/27/2013, including Sections 0.0, 0.2.3, 0.2.4, 0.2.5 and 7.5.1. All updates are applicable to all future customers, and customers as of 5/27/2013 who remain in the Promotional program as of this date, wherein their monthly fee is $50/month or less as of 5/16/2013. Updates are: 0.0 – “It will also become binding immediately for existing promotional customers upon the company sending an email to the existing customer with no formal protest received within 30 days of email of said notice to existing customers.” 0.2.3 – 4 hours was 3 hours, 2 gains was 3 gains. 0.2.4 – 10 hours was 7 hours. 0.2.3-0.2.4 added “for 2 months minimum after notice is given by customer of any deficiency.” Section 0.2.5 – added “You further agree to allow a contextual backlink from one or more of your website pages to snap321.com, befound.org and/or any similar websites or pages as requested by snap321.com or its authorized subsidiaries, agents or partners. Duration will be at a minumum for the full term of this contract, with removal of backlinks the responsiblity of the customer, his agents or by request and with authorization may be conducted by snap321.com, its agents, subsidiaries or partners.”, and Section 7.5.1 added.