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Terms and Conditions
This Agreement sets forth the terms and conditions under which JCJ Communications, Inc. and its division Go Green Messaging (JCJ and GGM) may provide certain services ("Services") to Customer ("Customer") pursuant to service orders submitted in the form provided JCJ Communications, Inc. and its division, Go Green Messaging ("Service Orders"). By using the Services, Customer agrees to be bound by the following terms and conditions:
1. Scope of Services Scope of Services:
JCJ Communications, Inc. and its division Go Green Messaging shall use reasonable efforts to provide the Services at prices described in an accepted Service Order for each such Service. JCJ and GGM are under no obligation to accept any submitted Service Order. No Service Order is binding until signed in writing by both parties.
2. Fees, Expenses and Taxes
Customer shall pay JCJ Communications, Inc. and its division, Go Green Messaging all applicable fees as indicated on the JCJ and GGM Service Orders authorized by Customer and accepted by JCJ and GGM, including Minimum Monthly Usage fees (as defined in such Service Orders), if so indicated. JCJ and GGM may modify the rates, features and specifications of the Services upon thirty (30) days written notice. Customer shall reimburse JCJ and GGM for any actual, reasonable travel and out-of-pocket expenses incurred in performing the Services. The fees do not include taxes; if JCJ and GGM is required to pay any federal, state, local or foreign taxes based on the Services, such taxes will be billed to and paid by Customer.
3. Invoices and Payment
Except as otherwise provided on a Service Order, JCJ and GGM shall invoice Customer on a per job basis. JCJ and GGM may impose a service charge of 1.5% per month, or the maximum rate permitted by law, whichever is lower, on all overdue payments. Customer agrees to pay all costs incurred by JCJ and GGM in collecting overdue charges, including attorney's fees. JCJ and GGM reserve the right to require a security deposit.
4. Software
JCJ and GGM may provide Customer with certain software ("Software") for Customer's use in connection with the Services. All such Software is owned by JCJ and GGM or its licensors, and JCJ Communications, Inc. and its division Go Green Messaging grants Customer a non-transferable license to use the Software solely for its internal use in connection with the Services. Customer may use the number of copies of the Software authorized by JCJ and GGM on the workstations authorized by JCJ and GGM at the Customer site identified in the Service Order. Customer may not otherwise copy the Software, except for backup and archival purposes only, and Customer may not redistribute or transfer the Software in any way. From time to time, JCJ and GGM may provide Customer with new versions of or updates to the Software, which may be accompanied by additional terms and conditions.
5. Warranties
ALL SOFTWARE AND SERVICES ARE PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND. Customer is solely responsible for the content and quality of documents transmitted as part of the Services, the accuracy of distribution lists and for the connection of the equipment necessary to enable the Services. Customer understands and agrees that temporary interruptions of the Services may occur as normal events in the provision of the Services. JCJ AND GGM EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
6. Indemnification
Customer is responsible for the contents of the documents and the accuracy of the distribution lists provided to JCJ and GGM. Customer warrants that it will comply with all applicable laws and regulations relating to its use of the Services, including U.S. Export laws and regulations, and that its use of the Services will not violate the rights of any third party. Customer shall indemnify, defend and hold harmless JCJ and GGM , its agents, officers and employees from any liability, losses, cost or damages (including attorney's fees) arising from the unlawful use or alleged unlawful use of the Services by Customer or Customer's agents or clients, any claims that Customer's use of the Services violated the rights of any third party (including without limitation claims relating to the contents of any document provided by Customer or JCJ and GGM's use of Customer's distribution lists on behalf of Customer), or from any claims relating to the transmission of documents to destinations not allowed under U.S. Export laws and regulations, the transmission of unsolicited documents, the attempted transmission of a document to a residence telephone, or for any errors in data or distribution information provided by Customer.
7. Limitation of Damages
NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, JCJ AND GGM 'S LIABILITY TO CUSTOMER FOR ANY MATTER RELATING TO THIS AGREEMENT IS LIMITED TO THE AMOUNT ACTUALLY PAID TO JCJ AND GGM HEREUNDER. IN NO EVENT SHALL JCJ AND GGM BE LIABLE FOR ANY LOSS OF USE, LOSS OR INACCURACY OF DATA, LOST PROFITS, INTERRUPTION OF BUSINESS OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF JCJ AND GGM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL JCJ AND GGM BE LIABLE FOR ANY DAMAGES RESULTING FROM CUSTOMER'S RELIANCE ON INFORMATION OR ADVICE PROVIDED IN CONNECTION WITH THE SERVICES BY THIRD PARTIES.
8. Confidential Information
It is agreed that all names and addresses, e-mail addresses, phone and fax numbers, and other information caused to be provided to the Services Provider by the Customer or by a list provider selected by the Customer, shall remain the sole property of Customer, or the Customer's list provider. Service Provider shall not copy or enter into any computer database, the names and address, e-mail addresses, phone and fax numbers in the lists in a manner that will cause the ownership identity of the Customer's lists or content to be destroyed. Service Provider shall not rent, resell, or in any other way release the Customer list information or content.
9. Term and Termination
Effective Date as indicated on Page 1 of the Service Agreement signed by both JCJ and GGM and Customer and shall continue for a term specified on the Service Orders, and thereafter, shall be automatically extended for the term specified on the Service Order(s), unless terminated earlier pursuant to the terms of this Section. The Agreement may be terminated at any time by either party with or without cause upon thirty (30) written days notice to the other party. In the event of a breach by Customer of its material obligations under this Agreement, JCJ and GGM may immediately cease to provide Services to Customer under any accepted Service Order. Upon termination of this Agreement for any reason, all Confidential Information in the possession of one party shall be returned promptly to the other party, and Customer shall return promptly to JCJ and GGM any Software and copies thereof in its possession. The provisions of Section 5 through 10 and all payment obligations incurred prior to termination shall survive the termination of this Agreement. In the event that the Customer terminates this Agreement, and had authorized a Service Order with a Term Plan, the Customer shall be billed and agrees to pay the Minimum Monthly Usage Fee multiplied by the number of months remaining in the Term Plan, as such terms are defined in such Service Order.
10. General
The parties agree that any claim, dispute or misunderstanding arising in connection with this Agreement shall be finally settled by binding arbitration in Stafford, VA under the Commercial Rules of Arbitration of the American Arbitration Association (AAA). The arbitrator shall have no authority to award punitive or exemplary damages against either party. This Agreement is governed by the laws of the Commonwealth of Virginia without reference to its conflict of law principles. This Agreement completely and exclusively states the agreement of the Customer and JCJ and GGM regarding this subject matter. This Agreement may not be assigned by Customer without the written consent of JCJ and GGM. JCJ COMMUNICATIONS, INC. AND ITS DIVISION, GO GREEN MESSAGING MAY MODIFY THESE TERMS AND CONDITIONS UPON WRITTEN NOTICE TO CUSTOMER. |
