- Applicability.
- These terms and conditions of sale (these “Terms“) are the only terms which govern the sale and provision of services (“Services“) by SJ DIGITAL SOLUTIONS™ LLC. (“Service Provider“) to the client named in the accompanying proposal (the “Client”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale and provision of Services covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
- The accompanying completed and submitted proposal and confirmation of sale and invoice (the “Sales Confirmation“) and these Terms (collectively, this “Agreement“) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Client’s general terms and conditions of purchase regardless of whether or when Client has submitted its purchase order or such terms. Fulfillment of Client’s order does not constitute acceptance of any of Client’s terms and conditions and does not serve to modify or amend these Terms.
- Notwithstanding anything to the contrary contained in this Agreement, Service Provider may, from time to time change the Services without the consent of Client provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Sales Confirmation.
- Performance of Services and Delivery of Service Deliverables.
- The deliverables associated with the purchased Services (the “Service Deliverables”) shall be delivered to the Client electronically on or before the 5th business day following completion of the Service Provider’s onboarding process.
- With respect to the Services, Client shall
- complete and submit the Service Provider’s onboarding questionnaire within 30 calendar days of purchase;
- respond promptly to any Service Provider request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Service Provider to perform Services in accordance with the requirements of this Agreement;
- provide such materials or information as Service Provider may request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects;
- Advise Service Provider or any desired revisions (if included with the purchased services) within FOURTEEN (14) calendar days of receipt of the Service Deliverables; and
- Obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
- In the event that email support is included in the ordered Services, it shall be provided on the following terms:
- Service Provider shall check email at least once daily during normal business hours. Normal business hours are from Monday to Friday from 10AM to 4PM EST, exclusive of statutory holidays or personal days when the Service Provider is out of the office;
- Service Provider will respond to Client emails as soon as practicable, however response time may take up to one business day; and email support is not for emergencies;
- Email support shall terminate at 11:59 PM on the FOURTEENTH (14th) calendar day following initial delivery of the Service Deliverables.
- If included in the purchased Services, revisions requested by Client shall be completed by Service Provider within THREE (3) business days of receipt of the request.
- Non-Delivery.
- The quantity and nature of the Services requested by the Client upon submitting the request for Services (the “Proposal”) and documented by Service Provider through electronic provision of the Service Deliverables (with proof of transmission) is conclusive evidence of the quantity and nature of the Service Deliverables received by Client, unless Client can provide conclusive evidence proving the contrary.
- Service Provider shall not be liable for any non-delivery of Service Deliverables (even if caused by Service Provider’s negligence) unless Client gives written notice to Service Provider of the non-delivery within FIVE (5) business days of the date when the Service Deliverables would in the ordinary course of events have been received.
- Any liability of Service Provider for non-delivery of the Service Deliverables shall be limited to replacing the Service Deliverables within a reasonable time or adjusting the invoice respecting such Service Deliverables to reflect the actual nature quantity delivered.
- Client acknowledges and agrees that the remedies set forth in Section 3 are Client’s exclusive remedies for the delivery of Non-Conforming Service Deliverables. Except as provided under this Section 3, all sales of Service Deliverables to Client are made on a one-way basis and Client has no right to return Service Deliverables purchased under this Agreement to Service Provider.
- Delivery Terms. Delivery of the Service Deliverables shall be made electronically using the document delivery system selected by the Service Provider.
- Title and Risk of Loss. Title and risk of loss passes to Client upon delivery of the Service Deliverables at the Delivery Point.
- Client’s Acts or Omissions. If Service Provider’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants or employees, Service Provider shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
- Inspection and Rejection of Non-Conforming Service Deliverables.
- Client shall inspect the Service Deliverables within FIVE (5) business days of receipt (“Inspection Period“). Client will be deemed to have accepted the Service Deliverables unless it notifies Service Provider in writing of any Non-Conforming Service Deliverables during the Inspection Period and furnishes such written evidence or other documentation as required by Service Provider. “Non-Conforming Service Deliverables” means only the following: (i) The Service Deliverable provided is different than what was requested in Client’s submitted Proposal.
- If Client timely notifies Service Provider of any Non-Conforming Service Deliverables, Service Provider shall, in its sole discretion, (i) replace such Non-Conforming Service Deliverables with conforming Service Deliverables, or (ii) credit or refund the Price for such Non-Conforming Service Deliverables.
- Client acknowledges and agrees that the remedies set forth in Section 7.b. are Client’s exclusive remedies for the delivery of Non-Conforming Service Deliverables. Except as provided under Section 7.b., all sales of Service Deliverables to Client are made on a one-way basis and Client has no right to return Service Deliverables purchased under this Agreement to Service Provider.
- Price.
- Client shall purchase the Service Deliverables and Services from Service Provider at the price (the “Price“) set forth in Service Provider’s Proposal at the date of Client’s submission of the completed Proposal and Payment.
- All Prices are exclusive of any applicable harmonized sales tax, goods and services tax, sales tax, value added tax, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any Governmental Authority on any amounts payable by Client. Client shall be responsible for all such charges, costs, and taxes; provided that, Client shall not be responsible for any taxes imposed on, or with respect to, Service Provider’s income, revenues, gross receipts, personnel or real or personal property, or other assets.
- Payment Terms.
- Client shall pay all invoiced amounts due to Service Provider on receipt of Service Provider’s invoice. Client shall make all payments using the online payment processor of the Service Provider’s choice. The Client will be responsible for any payment processing fees.
- The Service Provider shall not be required to provide Services for which Payment has not been received in advance.
- The Client understands and acknowledges that refunds are not available.
- Limited Warranty.
- Service Provider warrants to Client that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
- EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT (A) EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE UNDER THIS AGREEMENT, AND (B) SERVICE PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
- Limitation of Liability.
- IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CLIENT OR COULD HAVE BEEN REASONABLY FORESEEN BY CLIENT, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- IN NO EVENT SHALL SERVICE PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SERVICE PROVIDER FOR THE SERVICE DELIVERABLES AND SERVICES SOLD HEREUNDER OR ONE THOUSAND DOLLARS ($1000.00), WHICHEVER IS LESS.
- Compliance with Law. Client shall comply with all applicable laws, regulations, and ordinances. Client shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
- Termination. In addition to any remedies that may be provided under these Terms, Service Provider may terminate this Agreement with immediate effect upon written notice to Client, if Client has not performed or complied with any of these Terms, in whole or in part. In the event of such termination, Client acknowledges and agrees that no refunds shall be payable.
- Waiver. No waiver by Service Provider of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Service Provider. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- Intellectual Property
- Except as set forth in this Section, all intellectual property rights, including copyrights, patents, patent disclosures, and inventions (whether patentable or not), trademarks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works, and all other rights (collectively, “Intellectual Property Rights“) in and to all Service Deliverables shall be owned exclusively by Client. Service Provider hereby irrevocably assigns and shall cause its personnel to irrevocably assign to Client, in each case without additional consideration, all right, title, and interest throughout the world in and to the Service Deliverables, including all Intellectual Property Rights therein. The Service Provider shall cause its personnel to irrevocably waive, to the extent permitted by applicable law, any and all claims such Service Provider Personnel may now or hereafter have in any jurisdiction to moral rights or rights of droit moral with respect to the Service Deliverables.
- All Intellectual Property Rights in all documents, data, know-how, methodologies, software, and other materials provided by or used by Service Provider in performing the Services and developed or acquired by the Service Provider prior to or independently of this Agreement (collectively, “Pre-Existing Materials“) shall be owned exclusively by Service Provider and its licensors. Service Provider hereby grants Client a limited, irrevocable, perpetual, non-transferable, non-sublicensable, worldwide, non-exclusive license to use, display, reproduce, any Pre-Existing Materials to the extent incorporated in or otherwise necessary for the use of the Deliverables. All other rights in and to the Pre-Existing Materials are expressly reserved by the Service Provider.
- Service Provider shall indemnify, defend, and hold harmless the Client Indemnitees from and against all Losses awarded against a Client Indemnitee in a final judgment based on a claim that any of the Services or Deliverables or Client’s receipt or use thereof infringes any Intellectual Property Right of a third party arising under the laws of the United States of America; provided, however, that Service Provider shall have no obligations under this Section 15.c. with respect to claims to the extent arising out of (a) any instruction, information, designs, specifications, or other materials provided by Client in writing to Service Provider; (b) Client’s use of the Deliverables in combination with any materials or equipment not supplied to Client or specified by Service Provider in writing; or (c) any modifications or changes made to the Deliverables other than by Service Provider.
- To the best of their knowledge, the Client warrants that any instruction, information, designs, specifications, or other materials provided by Client in connection with the Services do not infringe any Intellectual Property Right of a third party.
- Confidential Information. All non-public, confidential or proprietary information of Service Provider, including but not limited to, specifications, samples, know-how, documents, data, business operations, disclosed by Service Provider to Client, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Service Provider in writing. Upon Service Provider’s request, Client shall promptly return all documents and other materials received from Service Provider. Service Provider shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Client at the time of disclosure; or (c) rightfully obtained by Client on a non-confidential basis from a third party.
- Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such party’s (“Impacted Party“) failure or delay is caused by or results from the following force majeure events (“Force Majeure Event(s)“): (a) acts of God; (b) flood, tsunami, fire, earthquake, explosion; (c) sudden illness, epidemics, pandemics, and OTHER POTENTIAL DISASTER(S) or CATASTROPHE(S); (d) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (e) government order, law or actions; (f) embargoes or blockades in effect on or after the date of this Agreement (g) national or regional emergency (h) shortage of adequate power or telecommunications or transportation facilities; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice as soon as practicable of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.
- Assignment. Neither party may assign, transfer, or delegate any or all of its rights or obligations under this Agreement.
- Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
- No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
- Governing Law. This Agreement and all related documents, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the State of PENNSYLVANIA and the federal laws of United States of America applicable therein.
- Choice of Forum. Any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from or relating to this Agreement, including all statements of work, exhibits, schedules, attachments, and appendices attached to this Agreement, the services provided hereunder, and all contemplated transactions, shall be instituted in the courts of the State of PENNSYLVANIA, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation, or proceeding. Service of process, summons, notice, or other document by mail to such Party’s address set forth herein shall be effective service of process for any suit, action, litigation, or other proceeding brought in any such court. Each Party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The Parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
- Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and sent via email to the address that may be designated by the receiving party and shall be deemed to have been given on the date sent by email (with confirmation of transmission) if sent between Monday to Friday from 10AM to 4PM EST (“Normal Business Hours”), and on the next business day if sent after Normal Business Hours.
- Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
- Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order including, but not limited to, the following provisions: Compliance with Laws, Limitation of Liability, Intellectual Property, Confidential Information, Governing Law, Choice of Forum and Survival.
- Amendment and Modification. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.
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