1.1. In these Terms and Conditions the following definitions apply unless otherwise stated:
‘Business Day’ means a day (other than a Saturday, Sunday or public holiday) when banks in the United States of America are open for business.
‘Agreement’ means the Agreement between the Company and the Client for the supply of Services governed by these Terms and Conditions and The Proposal.
‘Client’ means the individual or business entity who purchases Services from the Company and whose details are set out in the Proposal.
‘Company’ means Zoozler LLC, 18 West Seventh Street, 3rd Floor, Cincinnati, Ohio 45202.
‘Proposal’ means the Proposal placed by the Client either through the signing of a proposal document (electronically or in writing), set up of recurring billing through online Paypal / Credit Card purchase or other payment gateways, such as, but not limited to, authorize.net, by email instruction and confirmation by the receiving party of the email and its contents or the receipt of payment following an oral agreement with an authorized officer of Zoozler LLC, such as the President or CEO. Together with these terms and conditions, the Proposal shall form a binding Agreement.
‘Quotation’ means the written quotation prepared by the Company which can be in the form of a Proposal for providing Services to the Client.
‘Services’ means the services the Company will provide to the Client as specified in the Proposal and any amendments thereto that have been agreed upon by both the Client and the Company.
‘Specification’ means the description or specification of the Services in the Proposal.
‘Terms’ means these terms and conditions as updated from time to time by the Company.
1.2. Where these Terms use words in their singular form, they shall also be read to include the plural form of the word and vice versa. Where these Conditions use words which denote a particular gender, they shall be also read to include all genders and vice versa.
1.3. The headings in this document are inserted for convenience only and shall not affect the construction or interpretation of these Terms.
2. TERMS AND CONDITIONS
2.1. These Terms shall apply to all agreements concluded between the Company and the Client to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or in the course of dealings between the Company and the Client.
2.2. These Terms and the Proposal may only be varied by express written agreement between the Company and the Client.
3. THE AGREEMENT
3.1. The Proposal constitutes an offer by the Client to purchase the Services in accordance with these Terms. The Client shall ensure that the terms of the Proposal and any relevant Specification are complete and accurate.
3.2. The Proposal shall only be deemed to be accepted when the Client either issues a written acceptance of the Proposal and presents signed Agreement to the Company, or when the Client verifies by a return email that he/she agrees to the services the Company has sent to them in a Proposal, or as otherwise outlined above in the definition of Proposal in Section 1.1 of these Terms.
3.3. The Agreement constitutes the entire agreement between the Company to provide the Services to the Client and for the Client to purchase those Services, in accordance with these Terms.
3.4. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Agreement. Any samples, drawings, descriptive matter, or advertising issued by the Company and any descriptions or illustrations contained in the Company’s brochures, website or advertisements are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Agreement or any other Agreement between the Company and the Client for the supply of Services.
3.5. A Quotation for the supply of Services given by the Company shall not constitute an offer. A Quotation shall only be valid for a period of 30 Days from its date of issue.
4. COMPANY OBLIGATIONS AND WARRANTIES
4.1. The Company warrants that it will provide the Services as stipulated in the Proposal using reasonable care and skill to conform in all material respects with the Specification.
4.2. The Company shall use all reasonable endeavors to meet any performance dates specified in the Proposal but any such dates shall be estimates only and time shall not be of the essence for the provision of the Services. The Company shall not be liable for any delay in delivery of the Services caused by the Client’s failure to provide the Company with adequate delivery instructions or any other instructions relevant to the supply of the Services, or any event of war, act of God, or other natural disasters, such as, fire, earthquake, tornado, etc.
4.3. The Company shall have the right to make any changes to the Services which are necessary to comply with any applicable law.
5. CLIENT’S OBLIGATIONS AND INDEMNITIES
5.1. The Client shall provide assistance and technical information to the Company, as reasonably required by the Company in sufficient time to facilitate the execution of an Proposal in accordance with any estimated delivery dates or milestones. The Client shall have sole responsibility for ensuring the accuracy of all information provided to the Company and warrants and undertakes to the Company that the Client’s employees assisting in the execution of a Proposal have the necessary skills and authority.
5.2. The Client shall be obliged as quickly as possible and within the agreed deadline to comment on and or approve materials provided under the Services, including (without limitation) profile copy, website(s) and graphic material submitted by the Company.
5.3. The Client shall be obliged to inform the Company immediately of changes of domain names, websites, passwords, technical setup and any other material information regarding the technical infrastructure which may affect the Services delivered by the Company.
5.4. In the event that the Client fails to undertake those acts or provide those materials required under this Section 5 within any agreed deadline (and at least within 15 Business Days of the date requested by the Company) the Company shall be entitled to invoice for the Services that it has supplied and the remaining Services specified in the Proposal whether or not the Company has been able to deliver them.
5.5. The Client shall indemnify and keep the Company indemnified fully against all liabilities, costs and expenses whatsoever and howsoever incurred by the Company in respect of any third parties as a result of the provision of the Services in accordance with the Proposal, Specification, or the content of the Client’s advertising or web pages which result in claims or proceedings against the Company for infringement of any Intellectual Property Rights or other proprietary rights of third parties, or for breach of confidentiality or Agreement or for defamation.
5.6. The Client undertakes to comply with all applicable rules, regulations, codes of practice and laws relating to its use of the Services and hereby agrees to indemnify and to keep the Company indemnified in respect of any and all costs, claims or proceedings whatsoever brought against the Company by any third party in connection with any breach of the same by the Client.
5.7. The Company requires that prior notice be given for any alterations relating to the Client’s social media profile(s) that may affect the services supplied by the Company. If alterations are made by the Client or a third party to the Client’s profile(s) then performance and brand integrity may be affected and the Company cannot be held responsible.
6.1. Unless otherwise expressly stated, all prices shall be in United States dollars. Sales tax may be applied or invoiced at a future date, if applicable. In the event that duties are introduced or changed after the conclusion of a Proposal, the Company shall be entitled to adjust the agreed prices accordingly.
6.3.a Unless otherwise specifically stated in the Proposal, all Proposals are provided on a monthly or annual subscription basis and the Client acknowledges that subscriptions will be automatically renewed by the Company at the end of each term to avoid any interruption to service. The Client may terminate its subscription to the Services in writing giving no less than 10 business days’ notice of the termination. Services will continue to be provided until such time as the existing service subscription has been provided in full to the Client (i.e. until the end of the month or year for which the services have already been invoiced or been pre-paid by the client).
7.1. Unless as otherwise arranged, the client will pay by recurring monthly payments via credit card through authorize.net. Invoices will be sent only at the request of the Client for recurring monthly payments. In the event that a Client pays by check, an invoice will be sent via email prior to the due date. In that event, Client agrees to pay said invoice by the due date.
7.2. The Client shall pay all amounts due under the Agreement in full without any deduction or withholding except as required by law and the Client shall not be entitled to assert any credit, set-off or counterclaim against the Company in proposal to justify withholding payment of any such amount in whole or in part. The Company may, without limiting its other rights or remedies, set off any amount owed to it by the Client against any amount payable by the Company to the Client.
7.3. In the event of overdue payment, interest shall accrue on the invoice amount at the rate of 2 percent over the base rate. At the Company’s discretion, a fee of $10 (to cover administrative expenses and not as a penalty) shall be charged per reminder for overdue payment submitted to the Client. The Company shall be entitled to submit such reminders on a weekly basis once the fees have become overdue. The Company expressly reserves all rights at all times to bring any legal action it considers appropriate to recover any unpaid sums.
7.4. Late payment shall be considered as constituting a material breach of the Agreement entitling the Company (at its discretion) to cancel the Agreement or to affirm the Agreement and assert the usual remedies for breach.
7.5 In the event that the Services cannot be delivered either in full or in part due to the Client’s failure to assist or delay in assisting in the execution of the Proposal, the Company shall be entitled to charge to the Client the subscription, corresponding to the amount that would have been due had the Services been rendered in accordance with the Proposal.
8. DELAYS AND FULFILLMENT ALLEGATIONS
8.1. In the event that the Client proves that the Services are delayed or not in accordance with the Agreement, the Company shall be obliged to remedy or redeliver, at its own discretion, without undue delay. In the event that the Services continue to be not in accordance with the Agreement after reasonable attempts have been made to remedy this, the Client shall be entitled to cancel the Proposal in accordance with Section 13.2 a), provided that the breach is material.
8.2. Complaints concerning delays or breach of Agreement shall be submitted immediately after the time when the Client became or should have become aware of the matter. If the Client fails to bring the defect (unless by its very nature it is impossible to ascertain within such a period) to the attention of the Company within 48 hours the Client shall be deemed to have accepted the Services and shall not be entitled to assert remedies based on delays or breach of Agreement. Furthermore, the scope of the Company’s obligation to provide remedy or redeliver Services shall be limited to the current payment month, or the amount corresponding therewith if payments are not made monthly, and former months shall be deemed to the fullest permissible extent of the law to be void of defect based, in particular, on the failure of the Client to bring any alleged defects to the attention of the Company in a timely fashion as outlined herein.
8.3. The Client’s exclusive remedies for late delivery or Services not conforming with the Agreement are as specified in this Section 8 and, if the remedies set out in these Terms have been exhausted, the Client’s final remedy is limited to cancellation of the Agreement and the Company’s sole liability is to refund any payments for Services not conforming with the Agreement, subject to the limitations set out in Section 9 below.
9.1. Except as expressly stated in this Section 9, the Company shall have no liability to the Client for any loss or damage whatsoever arising from or in connection with the provision of the Services or for any claim made against the Client by any third party.
9.2. Without prejudice to the generality of Section 9.1 above, the Company shall have no liability for any losses or damages which may be suffered by the Client whether the same are suffered directly or indirectly or are immediate or consequential which fall into the following categories:
a) Any indirect or consequential loss arising under or in relation to the Agreement even though the Company was aware of the circumstances in which such loss could arise;
b) Loss of profits; loss of anticipated savings; loss of business opportunity or goodwill;
c) Loss of data; loss of search engine rankings; loss of website traffic; loss of followers; loss of access to social media profiles;
9.3. To the extent such liability is not excluded by sub-sections 9.1, 9.2 and Section 10 below, the Company’s total liability (whether in Agreement, tort (including negligence or otherwise)) under or in connection with the Agreement or based on any claim for indemnity or contribution (including for damage to tangible property) or otherwise will not in any event exceed the total sum invoiced for the Services.
10. OTHER LIMITATIONS OF LIABILITY
10.1. The Company shall not be liable for downtimes, interference in the form of hacking, virus, disruptions, interruptions, faulty third-party software, search engines or websites on which a service is dependent or other deliveries from a third party. The Company shall use its reasonable efforts to assist in remedial efforts if so requested by the Client. Any work connected with remedial efforts as described above shall be charged to the Client separately in accordance with these Terms or (at the Company’s discretion) the Company’s price list applicable from time to time.
10.2. The Company shall not be liable for any changes made without notice by the Client or a third party employed by the Client to domain names, websites, content, links, technical setup etc. and affecting the Services delivered by the Company. Preceding or subsequent work connected with any adjustments required as a result of such changes shall be charged to the Client in accordance with these Terms or on the basis of the Company’s price list applicable from time to time at the Company’s discretion.
10.3. The Company shall use all reasonable endeavors to deliver Services relating to web development, social media marketing, videography, design, content sharing, blogging and user engagement in accordance with the guidelines applicable to the relevant websites and social media platforms. However, the Company shall not be liable for delays or deteriorating performance due to changes made to standard terms, algorithms, account functionality, account availability, search results, viewing policy, prices or other matters beyond the Company’s control and reserves the right to make changes to Services as a result of the same. In addition, the Company shall not be liable for other changes or discontinuation of social media platforms’ services or third party services.
10.4. The Company shall not be liable for Services leading to a certain volume of traffic, number of clicks, likes, follows, registrations, purchases or the like.
10.5. The Company shall not be responsible for profiles or their content streams dropped or excluded by a search engine or social media site for any reason.
10.6. If the Client does not implement some or all of the Company’s recommendations, the Company shall not bear any liability for any lack of success experienced by the Client relating to the Services.
11. INTELLECTUAL PROPERTY RIGHTS
11.1. It is the responsibility of the Client to ensure that they have the right to use any Intellectual Property Rights when they provide any text, image or representation (“Materials”) to the Company for incorporation into the Services and the Client hereby grants or agrees to procure the grant of (as applicable) an irrevocable license to the Company to use such Materials for the purposes of providing the Services for the duration of the Agreement.
11.2. The Client shall be responsible for ensuring that the contents of Materials which the Client has contributed or approved are not in contravention of legislation, decency, marketing rules or any other third-party rights. The Company shall be entitled to reject and delete such material without incurring any liability. In addition, the Company shall be entitled to cancel the Proposal.
11.3. The Client shall indemnify the Company against all damages, losses and expenses suffered or incurred by the Company as a result of the Materials which the Client has contributed or approved being in contravention of legislation, decency, marketing rules or any action that any such Materials infringe any Intellectual Property Rights of a third party.
11.4. The parties shall be obliged to notify the other party without undue delay of any claims raised against a party as described above.
11.5. Unless expressly stated otherwise in these Terms or in a Proposal, the Intellectual Property Rights created, developed, subsisting or used in connection with the Services and whether in existence at the date hereof or created in the future shall vest in and be the property of the Company until all payments in accordance with this Agreement have been paid in full and upon the condition that such payments are not revoked, cancelled, disputed or otherwise prevented from becoming fully and permanently accessible to the Company. Upon the end of the relationship between the Client and the Company, the Company will turn over any Intellectual Property Rights of the Clients website(s), video(s), etc., if the Client is current with all payments to the Company. There will be no refunds or payment adjustments of any kind made by the Company to the Client once the login information has been provided to the Client.
11.6. If the Company makes software subscriptions, processes or content available to the Client as part of the execution of a Proposal, the Client shall only acquire a non-exclusive personal non-transferable license to use such material until the Services under this Agreement cease.
11.8. The Client hereby irrevocably licenses the Company to use and display the Client’s name, figure, logo etc. as a reference on the Company’s website, other marketing materials or types of media whilst they are a Client of the Company and for 18 months after the Agreement terminates. The Client agrees to send the Company its most recent logo or figure as and when it is amended from time to time.
12. CONFIDENTIALITY AND PERSONAL DATA
12.1. A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Agreement, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This Section shall survive termination of the Agreement.
12.2. During the term of the Agreement and for a period ending 5 years from the date of its conclusion, the Company shall take the same care as the Company uses with its own confidential information, to avoid, without the Client’s consent, the disclosure to any third party (except a subcontractor working on the Services who is subject to similar undertakings of confidentiality) of any of the Client’s business or operational information which the Client has designated as confidential.
12.3. The obligation in Section 12.2 shall not apply to any information which is or becomes publicly available otherwise than through a breach of this agreement, is already or rightly comes into the Company’s possession without an accompanying obligation of confidence, is independently developed by the Company, or which the Company is required to disclose by law.
12.4. During the term of the Agreement and for a period ending 5 years from termination thereof, the Client will not disclose to any persons within its organization that do not have a need to know, or to any third party, any information and non -Client materials provided by the Company concerning the method or approach the Company uses in providing the Services.
12.5. The Client shall be obliged to indemnify the Company for any loss, including costs incidental to legal proceedings, suffered as a result of the processing of personal data which the Client has contributed. The parties shall be obliged to notify the other party without undue delay of any claims raised against a party as described in the present Section.
13. TERM, TERMINATION AND ASSIGNMENT
13.1. The Agreement shall renew automatically for a further term (of either one month or one year depending on the subscription option chosen) at the end of each completed subscription term unless and until either party notifies the other of its wish to terminate the Agreement at the expiry of the current subscription term by giving the other party at least 10 Business Days’ written notice to expire at the end of the current subscription term. Services will continue to be provided until such time as the existing service subscription has been provided in full to the Client (i.e.,. until the end of the month or year for which the services have already been invoiced or been pre-paid by the client).
13.2. Without limiting its other rights or remedies, each party may terminate the Agreement with immediate effect by giving written notice to the other party if the other party:
a) commits a material breach of the Agreement and (if such breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or
b) becomes or is insolvent or is unable to pay its debts or, except for the purposes of a petition is presented or meeting convened or resolution passed for winding up the defaulting party or the defaulting party enters into liquidation whether compulsorily or voluntarily or compounds with its creditors generally or has a receiver, administrator, or administrative receiver appointed over all or any part of its assets or the defaulting party ceases to carry on all or a substantial part of its business.
13.3. The Company shall, in addition to all other rights and remedies under these Terms, be entitled to terminate this Agreement without notice in the event that any of its charges for the Services are not paid in accordance with these Terms.
13.4. Upon termination, for whatever reason, the parties shall be obliged to return all materials received from the other pursuant to the Agreement without undue delay and the Client shall cease to use any content, subscriptions, processes or codes provided during the provision of the service. If the Client fails to do so, the Company shall be entitled to invoice the Client in line with its then current terms and conditions for subsequent Services without such invoicing amounting to a waiver of the Company’s right to terminate the Agreement.
13.5. The Client shall not be permitted to assign or transfer all or any part of its rights or obligations under the Agreement and these Terms without the prior written consent of the Company.
15.1. The Company reserves the right to modify or discontinue, temporarily or permanently, the Services with or without notice to the Client and the Company shall not be liable to the Client or any third party for any modification to or discontinuance of these Services save for the return of any prepaid sums in connection with the provision of the Services which are subsequently not provided.
15.2. The Company shall be free to provide its Services to any and all third parties at its sole discretion, whether during or following the provision of the Services to the Client.
15.3. During the term of the Agreement and for a period of 12 months thereafter, the Client agrees not to employ or engage or offer to employ or engage anyone designated by the Company to work on the Services.
15.4. The failure of either party to enforce or to exercise at any time or for any period of time any right pursuant to these Terms does not constitute, and shall not be construed as, a waiver of such terms or rights and shall in no way affect that party’s right later to enforce or to exercise it, except as expressly stipulated in this Agreement.
15.5. If any term of these Terms is found illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining Terms, be deemed omitted from these Terms and shall in no way affect the legality, validity or enforceability of the remaining Terms which shall continue in full force and effect and be binding on the parties to the Agreement. Such impermissible term shall be replaced by the permissible alternative, which most closely complies with the initial intention of such term.
15.6. The Company may from time to time make any valid alteration to or variation of these Terms by publishing the revised Terms on its website and informing the Client by electronic mail that the Terms have been modified. Continued use of the services constitutes acceptance of the revised Terms by the Client.
15.7. A person who is not a party to the Agreement shall not have any rights under or in connection with it.
15.8. All notices must be in writing to Zoozler LLC, 18 West Seventh Street, 3rd Floor, Cincinnati, Ohio 45202.
16. ENTIRE AGREEMENT
The parties acknowledge and agree that the Agreement supersedes any prior agreement, understanding or arrangement between the parties, whether made orally or in writing and constitutes the entire agreement between the Company and the Client relating to these Services. Therefore, except as expressly provided, all other conditions and warranties (implied, statutory or otherwise) are hereby excluded to the fullest extent permitted by law.
17. LAW AND JURISDICTION
17.1. The Company and the Client shall be obliged to attempt to settle any disputes arising between them including disputes relating to the existence or validity of the Agreement through negotiation provided always that either party shall be entitled at all times to exercise any of its other remedies including through taking legal action.
17.2. The Agreement and any and all amendments or subsequent agreements or provisions shall be governed by and construed in accordance with the United States of America’s law and the parties hereby agree to submit to the exclusive jurisdiction of Hamilton Country in the State of Ohio courts.