Essential Solutions Terms of Service

1. LIST CONFIDENTIALITY & ACCOUNT MANAGEMENT. To maintain and support the client, Company and its staff members will have password access to the Customer’s CRM database lists. This is a necessary part of the service. The Company agrees that these lists are the exclusive property of the Customer. Because this information is valuable property and is of a highly confidential nature, Company agrees not to disclose, transfer, duplicate, or reproduce in any form or manner whatsoever all or any portion of the said emailing list(s) and to use such property solely for the provision of the Service to Customer.
2. TERM AND TERMINATION. This Agreement shall be effective for a period of 12 months commencing on the EFFECTIVE DATE of this contract and will automatically renew on a month-to-month basis thereafter. After completion of the original 12-month term, Customer may cancel with 30 days’ written notice. Notwithstanding, Company may terminate this Agreement at any time should Customer breach this Agreement or should Company decide to terminate this Agreement in its sole and absolute discretion. In the event this Agreement is terminated as a result of Customer’s breach of this Agreement, any payments made are non- refundable and the remaining amounts due Company by Customer under the PAYMENT AUTHORIZATION attached to this Agreement shall be due and payable, and your right to use the CRM services provided by Company shall immediately cease, and Company may delete from its servers or its affiliate’s servers Customer’s account and any content associated with said account, including database lists and information. Upon termination, Customer assumes sole responsibility for establishing any new marketing services they may or may not employ and Company is not responsible for any aspect of the transfer or establishment of new services..
3. NO EXPECTATION OF MARKET EXCLUSIVITY. Customer understands and agrees that there is no offer, guarantee, promise or expectation that Customer will “own,” dominate or increase its market share in any specific market or that engaging Company Service accords them exclusivity to the Service within their existing market or any targeted market.
4. NO REFUNDS. Company abides by a strict, no refund policy. By accepting the terms of this Agreement, Customer expressly agrees and understands that Customer is foregoing any right to claim any refund of fees paid for access and use of the service(s) offered by Company for any reason whatsoever.
5. COMPENSATION. Customer agrees to pay Company the Total Amount Due as outlined in the PAYMENT AUTHORIZATION. The Total Amount Due is owed the Company whether or not Customer chooses to utilize any or all of the Service. Administrative access to website will not be granted to Customer and no transfer of Work Product will occur until the Total Amount Due is paid in full and this Agreement is satisfied.
6. COLLECTION COSTS. In addition to all other amounts due, in the event it becomes necessary to use collection procedures, Customer agrees to pay for any and all collection agency fees, costs and expenses. And if the Agreement is turned over to an attorney, Customer shall be liable for reasonable attorneys’ fees, expenses and court costs in either the enforcement of any provisions of the Agreement, in connection with a bankruptcy or insolvency proceeding or in the collection of any amounts due.
7. INDEMNIFICATION. Customer agrees to indemnify and hold Company, its directors, officers, shareholders, employees, contractors, licensors, suppliers and agents harmless from claims of third parties arising out of the Customer’s use of the Service or materials provided pursuant to this Agreement, or arising out of, from or in connection with (i) Customer’s content; (ii) any material breach of this Agreement by Customer or (iii) which may have accrued against Customer under federal, state or local law or regulation. Company agrees to indemnify and hold Customers, its directors, officers, shareholders, employees, managers, members, contractors, licensors, suppliers and agents harmless from claims of third parties arising out of the Customer’s use of the Service or materials provided pursuant to this Agreement, or arising out of, from or in connection with (i) Company-provided content; (ii) any material breach of this Agreement by Company or (iii) which may have accrued against Company under federal, state or local law or regulation.
8. DISCLAIMER OF WARRANTIES. CUSTOMER EXPRESSLY AGREES THAT USE OF THE SERVICE DESCRIBED HEREIN IS AT CUSTOMER’S SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CUSTOMER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, EXCEPT AS MAY BE REQUIRED UNDER APPLICABLE STATE LAW. CUSTOMER EXPRESSLY DISCLAIMS ALL WARRANTIES CUSTOMER, ITS LICENSORS, SUPPLIERS, SPONSORS, SUBCONTRACTORS, AND AFFILIATES MAKE (A) NO WARRANTY THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; (B) NO WARRANTY ABOUT THE RESULTS OBTAINED FROM THE SERVICE OR THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE; (C) NO WARRANTY THAT DEFECTS IN THE SERVICE, OR THE RESULTS WILL BE CORRECTED, AND (D) NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH OR FROM THE WEBSITE, OTHER WEBSITES, OR ANY TRANSACTIONS ENTERED INTO THROUGH SUCH WEBSITES.
9. LIMITATION OF LIABILITY. THE REMEDIES EXPRESSLY SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE AND IN NO EVENT SHALL COMPANY, ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, LICENSORS, SUPPLIERS AND/OR AGENTS BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST INCOME OR LOST REVENUES, WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY. SUCH DAMAGES SHALL IN ANY EVENT BE LIMITED TO THE FEE PAID BY CUSTOMER TO COMPANY FOR THE SERVICE DURING THE 12-MONTHS IMMEDIATELY PRECEDING THE DATE THE CLAIM OR CAUSE OF ACTION AROSE. COMPANY SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, STATUTORY, CONSEQUENTIAL OR EXEMPLARY DAMAGES RESULTING FROM: (A) THE USE OR THE INABILITY TO USE ANY OF COMPANY’S SERVICE, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, (B) INTERRUPTION, SUSPENSION OR TERMINATION OF SERVICE, (C) RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE, OR (D) RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA INCLUDING, BUT NOT LIMITED TO, DAMAGES FROM LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY IS NOT RESPONSIBLE FOR ANY LOSS OF DATA RESULTING FROM CUSTOMER’S DELETION OF THE WEBSITE, NETWORK OR SYSTEM OUTAGES, FILE CORRUPTION, OR ANY OTHER REASONS. COMPANY IS NOT RESPONSIBLE FOR THE DELIVERY OF ANY GOODS OR SERVICES SOLD OR ADVERTISED BY YOU OR OTHERS. CUSTOMER AGREES THAT IT IS COMPLETELY RESPONSIBLE FOR ALL ACTIVITIES, FEES, AND/OR LIABILITIES THAT ARE RELATED TO OR RESULT FROM USE OF THE SERVICE. IN ADDITION TO THE FOREGOING, COMPANY SHALL NOT BE LIABLE FOR ANY LOSS, INJURY, CLAIM, LIABILITY OR DAMAGE OF ANY KIND RESULTING FROM CUSTOMER’S NON-COMPLIANCE WITH ALL LOCAL AND STATE ETHICS RULES OR OTHER RULES APPLICABLE TO THE PRACTICE OF LAW OR FROM CUSTOMER’S VIOLATION OF SUCH RULES. NO ACTION OR SUIT, REGARDLESS OF FORM, OTHER THAN AN ACTION FOR PAYMENTS DUE COMPANY, ARISING OUT OF THE TRANSACTIONS PURSUANT TO THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE YEAR AFTER THE CAUSE OF THE ACTION ACCRUES.
10. GOVERNING LAW AND JURISDICTION. Customer agrees that if the Agreement gives rise to any legal actions, the action shall be governed and construed according to the laws of the state of Kansas and shall be commenced within and limited to the jurisdiction of the federal or state courts of Johnson County, KS. Each party consents to the exclusive jurisdiction of such courts in any such civil action or legal proceeding and waives any objection to the laying of venue of any such civil action or legal proceeding in such courts and/or the right to bring an action or proceeding in any other courts. Service of any court paper may be effected on such party by mail, as provided in this Agreement, or in such other manner as may be provided under applicable laws, rules of procedures or local rules. Company and the Customer hereby knowingly, voluntarily and intentionally waive any right to a trial by jury in any suit action, proceeding or counterclaim concerning any rights under this Agreement, or any related document or agreement delivered or which may be in the future delivered in connection herewith, or arising from any relationship existing in connection with this Agreement. And agree that any such suit, action, proceeding or counterclaim shall be tried before a court and not before a jury. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
11. NON BINDING MEDIATION. Before commencing any legal proceeding in any court of law, or before creating or posting any complaint, negative review or other online communication referencing the Company and/or this Agreement and claiming a breach, misrepresentation, poor service or other failure by the Company, the parties agree to subject any controversy, claim, dispute or disagreement (“Dispute”) about (i) the Service, including, without limitation, the quality, timeliness or other aspect of the Service, (ii) the terms of this Agreement, or the their enforcement or interpretation, or (iii) an alleged breach, default, or misrepresentation in connection with any of the provisions of this Agreement, shall first be submitted to non-binding mediation in Johnson County, KS, before a sole mediator selected from Alternate Dispute Resolution (ADR), Johnson County, KS, or if ADR is no longer able to supply the mediator, such mediator shall be selected from the American Arbitration Association, provided, however, that provisional injunctive relief may, but need not, be sought by either party to this Agreement in a court of law while mediation proceedings are pending. Mediation shall be held within thirty (30) calendar days of the end of such fifteen (15) calendar day negotiation period of the negotiating teams. Except as provided in this Section, no litigation for the resolution of such Dispute may be commenced until the parties attempt in good faith to settle the dispute by such mediation in accordance with such rules and either party has concluded in good faith that amicable resolution through continued mediation of the matter does not appear likely. The costs of mediation shall be shared equally by the parties to the mediation. Any settlement reached by mediation shall be recorded in writing, signed by the parties, and shall be binding on them. Customer expressly agrees and acknowledges that if Customer creates or posts any complaint, negative review or other online communication referencing the Company and/or this Agreement and claiming a breach, misrepresentation, poor service or other failure by the Company without first attempting to resolve the issues with the Company, and failing that conduction the mediation called for by this Section, and because the economic damages caused by improper online communication are difficult to determine, Customer agrees to be liable for liquidated damages to Company in the amount of $15,000.

ADDITIONAL PROVISIONS

1. Waiver: The waiver, modification or failure to insist by Company of any of these Terms and Conditions, shall not void, waive, or modify any of the other Terms and Conditions nor be construed as a waiver or relinquishment of Company’s right to performance of any such Term and Conditions.
2. Severability: If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties agree that the court should give effect to the parties’ intentions as reflected in the provisions, and the other provisions of this Agreement will remain in full force and effect.
3. Assignment: This Agreement is not assignable or transferable by Customer and any attempted assignment and transfer shall be null and void and of no force or effect. Company may assign this Agreement to a third party purchaser of the Company or all or substantially all of its assets.
4. Cooperation: Customer shall promptly provide true, accurate, current and complete information as required by this Agreement in order for Company to provide Customer services. Failure to promptly provide such information will be considered a breach of this Agreement. Customer hereby acknowledges that information provided to Company under this Agreement may be shared with Company professional advisors, affiliates and agents.
5. Waiver. No waiver by Company or Customer of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No waiver by Company or Customer of any right under this Agreement shall be construed as a waiver of any other right. Neither Company nor Customer shall be required to give notice to enforce strict adherence to all terms of this Agreement.
6. Injunctive Relief. A breach of any of the promises or agreements contained in this Agreement will result in irreparable and continuing damage to Company for which there may be no adequate remedy at law, and Company is therefore entitled to injunctive relief as well as such other and further relief as may be appropriate.
7. Notices. All notices, requests, and other communications under this Agreement must be in writing, and must be emailed with confirmation of receipt, or mailed by registered or certified mail, postage prepaid and return receipt requested, or delivered by hand to the party to whom such notice is required or permitted to be given. The email address and mailing address for notice to either party will be the address shown on the first and signature pages of this Agreement. Either party hereto may change its mailing address by notice as provided by this section.
8. Entire Agreement: Customer acknowledges that it has read this Agreement and agrees that it is the complete and exclusive statement between the parties, superseding all other communications, oral or written. This Agreement constitutes the entire agreement between the parties. This Agreement may be modified only by a written amendment signed by the parties.
9. NON DISPARAGEMENT. The parties agree that after the delivery of the Service by the Company and the payment of all agreed fees by Customer, regardless of any underlying facts, neither party will make any public statements which materially disparage the other party. Notwithstanding the foregoing, nothing in this Section shall prohibit any person from making truthful statements when required by order of a court, mediator or governmental or regulatory body having jurisdiction or to enforce any legal right including, without limitation, the terms of this Agreement.
10. CORPORATE AUTHORITY AND LIABILITY. Customer warrants and represents that it has authority to enter into this Agreement. And that any person signing this Agreement has been duly authorized to execute this Agreement for and on behalf of the Customer. I/We acknowledge having read and understood the proceeding Terms & Conditions, and Customer agrees to abide by them.