Terms of Service
1. Applicability. These terms of services (these “Terms“) are the only terms that govern the provision of marketing services by RxMedia LLC (“Service Provider“) to a customer that has executed an Order Form (a “Customer“). These Terms prevail over any of Customer’s general terms and conditions regardless whether or when Customer has submitted its request for proposal, order, or such terms.
2. Services. Service Provider shall provide the services to Customer as described in the Order Form (the “Services“) in accordance with these Terms.
3. Customer Obligations and Responsibilities. Customer shall:
- Appoint a representative to serve as the primary contact with respect to this Agreement, which representative will have the authority to act on behalf of Customer with respect to matters pertaining to this Agreement (the “Point of Contact“).
- Provide copies of or access to Customer ‘s information, documents, samples, products, or other material (collectively, “Customer Materials“) as Service Provider may request in order to carry out the Services in a timely manner, and ensure that they are complete and accurate in all material respects. Customer and its licensors are, and shall remain, the sole and exclusive owner of all right, title, and interest in and to all Customer Materials, including any and all trade secrets, trademarks, domain names, original works of authorship and related copyrights, and any other intangible property in which any person holds proprietary rights, title, interests, or protections, however arising, pursuant to the laws of the US (collectively “Intellectual Property“) therein. This shall include all applications, registrations, renewals, issues, reissues, extensions, divisions, and continuations in connection with any of the foregoing and the goodwill connected with the use of and symbolized by any of the foregoing.
- Respond promptly to any Service Provider request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Service Provider to perform the Services in accordance with the requirements of this Agreement.
4. Customer’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 Customer 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 Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
5. Changes. Changes in Services that deviate from the Order Form will incur additional fees, as agreed between the parties.
6. Fees and Expenses; Payment Terms; Interest on Late Payments.
- In consideration of the provision of the Services by Service Provider and the rights granted to Customer under this Agreement, Customer shall pay the fees set forth in the Order Form.
- Customer agrees to reimburse Service Provider for all reasonable travel and out-of-pocket expenses incurred by Service Provider in connection with the performance of the Services.
- Customer shall pay all invoiced amounts due to Service Provider on receipt days from the date of Service Provider’s invoice. Customer authorizes Service Provider to initiate all payments hereunder in US dollars by ACH.
- In the event payments are not received by Service Provider five (5) days after becoming due, Service Provider may: (i) charge interest on any such unpaid amounts at a rate of 1% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and (ii) suspend performance for all Services until payment has been made in full.
7. Invoice Disputes. Customer shall notify Service Provider in writing of any dispute with an invoice (along with a reasonably detailed description of the dispute) within five (5) days from the date of such invoice. Customer will be deemed to have accepted all invoices for which Service Provider does not receive timely notification of dispute and shall pay all undisputed amounts due under such invoices within the period set forth in. The Parties shall seek to resolve all such disputes expeditiously and in good faith.
8. Taxes. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder.
9. Intellectual Property.
- Ownership. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, 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 documents, work product, and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of Service Provider in the course of performing the Services, including any items identified as such in the Order Form (collectively, the “Deliverables“) except for any Confidential Information of Customer or Customer Materials shall be owned by Service Provider.
- License. Service Provider hereby grants Customer a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Services.
- Indemnification. Customer shall defend, indemnify, and hold harmless Service Provider, and its officers, directors, employees, agents, Affiliates, successors, and permitted assigns (collectively, “Service Provider Indemnified Party“), from and against any and all losses arising out of or resulting from any third-party Claim or direct Claim alleging that any Customer Materials or Customer Intellectual Property or Service Provider’s receipt or use thereof in accordance with the terms of this Agreement infringes any Intellectual Property of a third party.
10. Confidential Information.
- All non-public, confidential or proprietary information of Service Provider, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information“), disclosed by Service Provider to Customer, 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 the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Customer without the prior written consent of Service Provider. Confidential Information does not include information that is: (i) in the public domain; (ii) known to Customer at the time of disclosure; or (iii) rightfully obtained by Customer on a non-confidential basis from a third party.
- Customer agrees to use the Confidential Information only to make use of the Services.
- Service Provider shall be entitled to injunctive relief for any violation of this Section.
11. Representation and Warranty.
- Service Provider represents and warrants to Customer 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.
- Customer’s sole and exclusive remedy and service provider’s entire liability for any breach of the limited warranty set forth above shall be re-provisioning the services.
12. Disclaimer of Warranties. Except for the warranty set forth in section 11(a) above, service provider makes no warranty whatsoever with respect to the services, including any (a) warranty of merchantability; or (b) warranty of fitness for a particular purpose; or (c) warranty of title; or (d) warranty against infringement of intellectual property rights of a third party; whether express or implied by law, course of dealing, course of performance, usage of trade, or otherwise.
13. Limitation of Liability.
- In no event shall service provider be liable to customer or to any third party for any loss of use, revenue or profit or loss of data or diminution in value, or for any consequential, incidental, indirect, exemplary, special, or punitive damages whether arising out of breach of contract, tort (including negligence), or otherwise, regardless of whether such damages were foreseeable and whether or not service provider has been advised of the possibility of such damages, 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 aggregate amounts paid or payable to service provider pursuant to the applicable order form in the 12 month period preceding the event giving rise to the claim.
- The limitation of liability set forth in above shall not apply to (i) liability resulting from Service Provider’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Service Provider’s negligent acts or omissions.
14. Term; Termination.
- The term of this Agreement commences on the Effective Date stipulated in the Order Form and continues unless it is terminated in accordance with the terms of this Agreement (the “Term“).
- Termination for Cause.
- Term. Either Party may terminate this Agreement, effective upon written Notice, to the other Party (the “Defaulting Party“) if the Defaulting Party:
- materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure (other than a failure by Customer to make timely payments (a “Payment Failure“), which is separately addressed in 14(b)(ii)), the Defaulting Party does not cure such breach within five (5) days after receipt of written notice of such breach;
- becomes insolvent or is generally unable to pay its debts as they become due;
- files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law;
- makes or seeks to make a general assignment for the benefit of its creditors;
- applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business;
- is dissolved or liquidated; or
- is unable to perform its obligations under this Agreement due to the occurrence of a Force Majeure Event that lasts for more than thirty (30) consecutive days.
- Service Provider may terminate this Agreement, effective upon written notice to Customer if:
- a Payment Failure by Customer continues for five (5) days after Customer’s receipt of written notice of nonpayment; or
- within any twelve (12) month period, six (6) or more Payment Failures occur.
- Termination without Cause. Customer may terminate this Agreement after the Initial Term on twenty (20) days’ prior written Notice to Service Provider.
- Effect of Expiration or Termination.
- Expiration or termination of this Agreement will not affect any rights or obligations that:
- are to survive the expiration or earlier termination of this Agreement; and
- were incurred by the Parties prior to such expiration or earlier termination.
- Upon the expiration or termination of this Agreement for any reason, each Party shall promptly:
- destroy all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the other Party’s Confidential Information;
- permanently erase all of the other Party’s Confidential Information from its computer systems, except for copies that are maintained as archive copies on its disaster recovery or information technology backup systems, which it shall destroy upon the normal expiration of its backup files; and
- certify in writing to the other Party that it has complied with the requirements of this clause.
- Upon expiration or termination of this Agreement for any reason, Service Provider may disconnect
- In no event shall Customer be liable for any Service Provider Personnel termination costs arising from the expiration or termination of this Agreement.
- Subject to 14(d)(i), the Party terminating this Agreement, or in the case of the expiration of this Agreement, each Party, shall not be liable to the other Party for any damage of any kind (whether direct or indirect) incurred by the other Party by reason of the expiration or earlier termination of this Agreement. Termination of this Agreement will not constitute a waiver of any of either Party’s rights, remedies, or defenses under this Agreement, at law, in equity or otherwise.
15. 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 rights, 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.
16. Force Majeure. The Service Provider shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Service Provider including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
17. Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
18. 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.
19. Governing Law; Dispute Resolution. This Agreement will be governed by and construed in accordance with the laws of the State of Oregon without regard to any contrary conflicts of law principles. Any dispute, controversy, or claim arising out of or relating to this Agreement will be settled by binding arbitration. Unless the parties otherwise agree, the arbitration will be administered by the Arbitration Service of Portland, Inc. (ASP) in accordance with ASP’s rules. Judgment on the award rendered by the arbitrator may be entered in the circuit court in the county in which the arbitration occurs, and the resolution of the disputed matter as determined by the arbitrator will be binding on the parties. There will be one arbitrator who will be a business lawyer or will have such alternate qualifications that are mutually agreeable to the parties. Any arbitration will be conducted in Portland, Oregon.
20. 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.
21. 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 Agreement inc.