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TERMS & CONDITIONS

WHEREAS

Cothought Social offers a suite of services. The Client wishes to use Cothought Social's services. Cothought Social agrees to grant the Client a license to use its Technology and Creative Services under the terms and conditions of this Agreement, as of the Effective Date of signing. In the event of any discrepancy between these general terms and conditions and any specific terms and conditions defined in any schedule or amendment, the specific terms and conditions shall prevail.

Definitions

“Campaign” is a mutually agreed upon advertising venture
“Professional Services” means optional training, campaign production services, data services, web development, consulting or other services provided by Cothought Social to Client as described as above.
“Effective Date” means the start date of this Agreement.


Joint Obligations


“Client” and Cothought Social jointly agree
To reserve the right to cancel the insertion order at any time based on the plan term selected below, with 30 day's written notice (after the first 90 days).
To warrant to the other that during the term of Agreement, each shall comply with all applicable laws and regulations including but not limited to laws governing privacy and data protection), and with the Self-Regulatory Principals Governing Online Preference Marketing promulgated by the Network Advertising Initiative. (Available athttp://www.networkadvertising.org).
That the initial minimum contract length is 90 days.

 

Obligations of Cothought Social
Cothought Social agrees:
To put forth its best material effort to deliver leads to the client.
To issue invoices on a Monthly basis, and to keep the client apprised of payment status.

Representations of Client

Fees and Terms of Payment

Client agrees to pay Cothought Social monthly as above. Late payments shall be subject to interest for delay amounting to three (3) times the legal rate of interest in force. The obligations of Cothought Social hereunder are conditional upon observance by the Client of the payment obligations to Cothought Social. Cothought Social reserves the right to suspend performance of its services until receipt of payment of the amounts due, but this suspension may not be interpreted as a termination of this Agreement by Cothought Social. Where the Client fails to observe its payment obligations within the periods set out in the Agreement, Cothought Social shall send a registered letter to the Client in order to declare suspension of its services within 4 days from the receipt of the registered letter. Furthermore, default of payment by the Client, where it cannot invoke the infringement by Cothought Social of one of the clauses of the Agreement or the termination of activity, shall result in the application of an indemnity equal to 10% of the sums due together with interest for delay. All payments must be in US dollars. Client hereby authorizes Cothought Social to charge the credit card indicated on the cover page hereof automatically for all Services fees that may accrue for any period or for any past-due balances in order to bring Client’s account to current status. Client agrees to promptly inform Cothought Social of any change in the credit card information provided herein. Cothought Social will not be held responsible should Client's payment information become out-of-date. If payment is by check, such check must be drawn on a US bank. Client’s account shall be in default if payment is not received by Cothought Social within 20 days after the date of invoice. If Client's check is returned by the bank, Client will be deemed to be in default, and will be liable for a "returned check".

Term and Termination

The initial term of the Agreement shall commence on the Effective Date of the Agreement and end on the date set forth on the cover page hereof (the “Term”). Either party may terminate this Agreement upon a notice of termination for any material breach of this Agreement, provided such notice is sent via registered letter with return receipt requested. If the termination notice is given as a result of a breach of this Agreement by a party, the notice shall (i) describe the grounds for termination in sufficient detail and (ii) give the breaching party thirty (30) days to cure the breach. Notwithstanding any notice of termination, such termination shall not be effective if the breach is cured prior to expiration of the notice period and the terminating party is given timely notice of the cure. Notwithstanding the above, Cothought Social shall have the right, exercisable in its sole discretion, to terminate this Agreement immediately, without an opportunity to cure, (x) upon a breach by Client of the representations and warranties contained in Section 5 hereof, or (y) if Client ceases business, becomes insolvent or files for bankruptcy protection under Federal or state law. In any such event, Cothought Social shall have no further obligations of any kind whatsoever to Client. Where the Client terminates this Agreement without being able to validly invoke the infringement by Cothought Social of any clause of the Agreement or the cessation of business, the Client shall pay to Cothought Social a termination indemnity equal to the value of the Agreement remaining to invoice at the date of termination, without prejudice to any other damages that Cothought Social may claim thereafter.

This indemnity shall be due within 30 days from the date of termination. Each party will return to the other party any documentation and confidential information received from such other party. All sections of this Agreement that by their nature should survive termination will survive termination including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers and limitations of liability.

Intellectual Property

Client acknowledges the intended use of processes and software that are the property of Cothought Social or its licensers and that Cothought Social owns all intellectual proprietary rights, including patent, copyright, trade secret and trademark with respect thereto and Cothought Social and its logo. Client has no rights in the foregoing except those expressly granted by this Agreement, and this Agreement does not transfer ownership of any of these rights. Cothought Social is in no way, either express or implied, granting any rights, title or other ownership whatsoever to Cothought Social's domains. Client acknowledges and agrees that all Cothought Social trademarks remain the sole property of Cothought Social.

Neither party shall use or reproduce any trade name, logo, trademark or copyright of the other party except in accordance with the terms and conditions of this Agreement. Neither party shall register or attempt to register any trade name, logo, trademark or copyright owned by the other party anywhere in the world except with the owner’s express written permission. Upon the expiration or termination of this Agreement, each party will cease using the trademarks, service trademarks and/or trade names of the other party except as the parties may agree in writing or to the extent permitted by applicable law.

Indemnification

Client shall indemnify and hold Cothought Social harmless from and against any costs, losses, liabilities and expenses, including all court costs, legal expenses, reasonable expenses and reasonable attorney’s fees (collectively, “Losses”) that Cothought Social may suffer, incur or be subjected to by reason of any legal action, proceeding, arbitration or other claim by a third party, whether commenced or threatened, arising out of or as a result of a (a) Client Message containing (i) any unlawful, threatening, abusive, libelous, defamatory, obscene, pornographic, profane, or otherwise objectionable information, including without limitation any transmission.

Miscellaneous

Limitation of damages, disclaimer of warranty.

The Client acknowledges and accepts (a) the characteristics of Internet, an open world network for which (i) the confidentiality of the information circulating cannot be totally assured, as data can be diverted, (ii) the response times depend, particularly, on the performance of the network over which Cothought Social has no influence; COTHOUGHT SOCIAL MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, FOR THE SERVICE IT IS PROVIDING. COTHOUGHT SOCIAL ALSO DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Cothought Soial will not be responsible for any damage suffered. This includes loss of data resulting from delays, non-deliveries, mis- deliveries, or service interruptions caused by Cothought Social's negligence or Client's errors or omissions. NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER USED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS SET FORTH ABOVE, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR DAMAGES IN EXCESS OF THE TOTAL PAYMENTS MADE UNDER THIS AGREEMENT. Except as expressly set forth herein, each party acknowledges and agrees that the other has not made any representations, warranties or Agreements of any kind, express or implied. Assignment. Neither party may assign this Agreement, except (a) in connection with the transfer of substantially all of the business operations of such party (whether by asset sale, stock sale, merger or otherwise); (b) to an affiliate of such party; or (c) with the written permission of the other party. Relationship of Parties. This Agreement will not be construed to create a joint venture, partnership or the relationship of principal and agent between the parties hereto, nor to impose upon either party any obligations for any losses, debts or other obligations incurred by the other party except as expressly set forth herein. Applicable Law and attribution of jurisdiction. This Agreement shall be construed and enforced in all respects in accordance with the laws of the State of Georgia, without giving effect to principles of conflicts of law. Confidentiality. In connection with the activities contemplated by this Agreement, each party may have access to confidential or proprietary technical or business information of the other party, including without limitation (a) proposals, ideas or research related to possible new products or E-mail Marketing Technology Services; (b) financial statements and other financial information; (c) any reporting information herein; and (d) the material terms of the relationship between the parties; provided, however, that such information will be considered confidential only if it is conspicuously designated as “Confidential,” or if provided orally, identified at the time of disclosure and confirmed in writing within 30 days of disclosure (collectively, “Confidential Information”). Each party will take reasonable precautions to protect the confidentiality of the other party’s Confidential Information, which precautions will be at least equivalent to those taken by such party to protect its own Confidential Information. Except as required by law or as necessary to perform under this Agreement, neither party will knowingly disclose the Confidential Information of the other party or use such Confidential Information for the benefit of any third party. Each party’s obligations in this Section with respect to any portion of the other party’s disclosed Confidential Information shall terminate when the party seeking to avoid its obligation under this Section can document that such disclosed Confidential Information: (i) was in the public domain at or subsequent to the time it was communicated to the receiving party (“Recipient”) by the disclosing party (“Discloser”) through no fault of Recipient; (ii)was rightfully in Recipient’s possession free of any obligation of confidence at or subsequent to the time it was communicated to Recipient by Discloser; (iii) was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by Discloser; (iv) was communicated by the Discloser to an unaffiliated third party free of any obligation of confidence; or (v) was in response to a valid order by a court or other governmental body, was otherwise required by law or was necessary to establish the rights of either party under this Agreement; provided, however, that both parties will stipulate to any orders necessary to protect said information from public disclosure.

Severability of Agreement

If a court of an arbitrator or competent jurisdiction holds any provision of this Agreement to be illegal, unenforceable, or invalid in whole or in part for any reason, the validity and enforceability of the remaining provisions, or portions thereof, will not be affected.

Dispute Resolution

Any controversy or claim between the parties arising out of or relating to this Agreement shall be resolved through mandatory arbitration by one arbitrator in accordance with the rules then in effect of the American Arbitration Association. All statutes of limitations or any waivers contained herein, which would otherwise be applicable shall apply to any arbitration proceeding under this Section. The arbitrator shall prepare written reasons for the award. The location of the arbitration shall be in Georgia. The arbitrator shall be generally skilled in the legal and business aspects of the subject matter at issue. The decision of the arbitrator shall be binding upon all parties. Judgment upon the award rendered may be entered in any court having jurisdiction. Notwithstanding the foregoing dispute resolution process, neither party shall be excluded from seeking provisional remedies in the state or federal courts of Georgia, including, but not limited to, temporary restraining orders and preliminary injunctions, but such remedies shall not be sought as a means to avoid the dispute resolution process.

Force Majeure

If the performance of this Agreement or any obligations hereunder is prevented, restricted or interfered with by reason of fire or other casualty or accident, strikes or labor disputes, war or other violence, any law, order, proclamation, regulations, ordinance, demand or requirement of any government agency, or any other similar act or condition beyond the reasonable control of the parties hereto, the party so affected upon giving prompt notice to the other parties will be excused from such performance during such prevention, restriction or interference.

Article Headings

The captions and headings of the various articles of this Agreement are inserted merely for the purpose of convenience and do not expressly or by implication limit, define or extend any specific terms or text of the article so designated and shall not in any way alter the meaning or interpretation of this Agreement. No waiver of breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this Agreement will be effective unless it is in writing and signed by the party waiving the breach, failure, right or remedy. No waiver of any other breach, failure, right or remedy will be deemed a waiver of any other breach, failure, right or remedy, whether or not similar, nor shall any waiver constitute a continuing waiver unless the writing so specifies. Any specific right or remedy provided in this Agreement shall not be exclusive but shall be cumulative upon all other rights and remedies set forth herein and allowed or allowable under applicable law.

 

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