Terms and Conditions
FLOURISH PRESS TERMS AND CONDITIONS
By entering into an Agreement for services to be provided by FLOURISH PRESS, INC., a California corporation, DBA WEBVITALITY (“FLOURISH PRESS”), and the COMPANY (“COMPANY”) identified in such Agreement has agreed to be bound by the following TERMS AND CONDITIONS, which TERMS AND CONDITIONS are incorporated into and made a part of each Agreement. FLOURISH PRESS and the COMPANY may be referred to herein as a "party" and together as the "parties."
1 Defined Terms
A "corporate affiliate" of a person, party, or entity is any other person or entity that, directly or indirectly, controls such person, party, or entity, is controlled by such person, party or entity, or is under common control with such person, party or entity.
"Content" means COMPANY’S trademarks, trade names, trade dress, Internet domain names, websites, logos, creative, copy and other content provided by COMPANY to FLOURISH PRESS in connection with the Services.
“Development Services” means those customized Services which implement the “Blueprint” resulting from the initial website architecture report and include IT setup, design and development, content creation and deployment.
“Effective Date” means the date upon which the Agreement incorporating these TERMS AND CONDITIONS is signed by both parties.
"FLOURISH PRESS Technology" means any software application proprietary to FLOURISH PRESS that it makes available to COMPANY for installation on COMPANY’S servers or on a COMPANY Website to enable COMPANY’S use of the Services in accordance with these TERMS AND CONDITIONS and each relevant Agreement, together with new versions, enhancements and upgrades thereof made available by FLOURISH PRESS.
"Prohibited Activity" means any activity that involves, facilitates, advocates or promotes one or more of the following: (a) discrimination on the basis of race, ethnicity, gender, religion, sexual orientation, age, national origin or disability; (b) libelous, defamatory, obscene, pornographic, sexually explicit or abusive activities; (c) gambling or illegal substances; (d) sedition or illegal activities; (e) false or misleading advertising; or (e) a conflict or violation of any law or any intellectual property or other rights of any person, party or entity.
"Services" means one or more Internet based architecture and/or development service, website hosting, maintenance, consulting, coaching, support, marketing, editing, copywriting, lead generation, pay per click management, search optimization, advertising, and any and all other services offered by FLOURISH PRESS or WebVitality pursuant to an Agreement.
“Statement of Work (“SOW”)” means that document attached to and made a part of each Agreement describing the type, scope and level of services generally to be provided in connection with such Agreement. The SOW as it relates to Development Services may alternatively be referred to as the “Proposal for a Website Development Project”.
"Term" shall have the meaning set forth in Section 10.1.
“WebVitality” means the wholly owned division of FLOURISH PRESS.
FLOURISH PRESS Services
1.1 Services. This document states the terms and conditions under which FLOURISH PRESS will provide the Services ordered from time to time by COMPANY pursuant to one or more Agreements (each, an "Agreement"). FLOURISH PRESS will not be required to provide any Service until an Agreement for that Service is accepted and signed by both parties to these TERMS AND CONDITIONS.
1.2 Performance. Any services to be provided under any Agreement will be performed by FLOURISH PRESS personnel in a professional and workmanlike manner. Notwithstanding the preceding, FLOURISH PRESS does not guarantee or warrant that COMPANY will achieve any level of web user activity, sales revenues or other results from using any Services provided thereunder.
1.3 Documentation. The Agreement will incorporate by reference these TERMS AND CONDITIONS and the SOW. In the event of a conflict or inconsistency involving some or all of these documents, the terms of the Agreement will control over these TERMS AND CONDITIONS and SOW, and these TERMS AND CONDITIONS will control over the SOW.
Unless otherwise set forth in the Agreement, COMPANY will pay or cause to be paid to FLOURISH PRESS in advance on the first day of each month via credit card or ACH processing, any and all applicable fees, expenses, costs, and charges owing under the Agreement and/or these TERMS AND CONDITIONS for the Services to be provided during such payment period. The amount due FLOURISH PRESS shall be based on a fixed-fee, time and expense, or other pricing arrangement as specified in the applicable Agreement. Payment for Development Services is generally due 60% of the estimated bid amount upon execution of the Development Services Agreement, and 40% upon completion thereof. Should the Development Services project extend beyond the “go-live” date specified therein, FLOURISH PRESS may submit an interim invoice for time and material expended up to such intended “go-live” date. The final amount due under the Development Services Agreement and any other Agreement wherein FLOURISH PRESS is to be compensated on a time and material basis will be based only on the actual hours spent on work done for COMPANY. Any reimbursable expenses are to be specified in the Agreement and approved in advance by COMPANY. Any “Change Order” for additional or extra work beyond the original scope of any project must be agreed to in writing by the parties. The COMPANY is responsible for the payment of any and all taxes related to the Services, excepting only income tax payable by FLOURISH PRESS. Any payment not made when due shall accrue interest at the lesser of one percent (1%) per month, or the maximum amount permitted by law. The failure to timely pay for Services shall, at the option of FLOURISH PRESS, result in the immediate suspension and/or termination of Services, as is set forth in more detail in Section 10, below.
3 Intellectual Property
3.1 Licenses. COMPANY hereby grants to FLOURISH PRESS during the term of these TERMS AND CONDITIONS a limited, nonexclusive, royalty-free worldwide right and license to use and sublicense COMPANY’S Content to the extent reasonably necessary for FLOURISH PRESS to provide the Services.
3.2 Ownership; No Contest. Each party and its suppliers owns its or their respective intellectual property, and, except as expressly granted herein, nothing herein will grant to either party any rights or licenses in or to the other party's intellectual property. COMPANY acknowledges and warrants that it has all rights and/or licenses to use all images and other intellectual property displayed or utilized on its website, and will indemnify and hold FLOURISH PRESS harmless for any breach of this warranty. Neither party shall encumber, assert a claim to or ownership of, any interest in any intellectual property of the other party or any goodwill associated therewith, except for any licenses or rights expressly granted hereunder or under any Agreement during its term.
3.3 Restrictions. COMPANY agrees it will not directly or indirectly through a third party (a) make unauthorized modifications, reverse engineer, disassemble, decompile, attempt to derive source code of, or hack any FLOURISH PRESS Technology; or (b) hack, abuse, adversely interfere with, infect with viruses, worms or other malicious or destructive code any FLOURISH PRESS servers, computer equipment, software or other technological resources.
4.1 Definition. A party's "Confidential Information" refers to such party's confidential and proprietary information or ideas including such party's confidential or proprietary intellectual property assets. The term "Confidential Information" also includes (a) the terms and conditions of these TERMS AND CONDITIONS and any and all Agreements, and (b) any confidential information of any third party that the disclosing party is only permitted to provide to the receiving party subject to confidentiality obligations. The term "Confidential Information" will not include information that (i) is in or enters the public domain without breach of these TERMS AND CONDITIONS, (ii) the receiving party obtains from a source other than the disclosing party, provided that the disclosure to the receiving party by such source is not known to the receiving party to be a violation of a confidentiality obligation of such source to the disclosing party, and (iii) the receiving party knew prior to receiving such information from the disclosing party or develops independently without use of the disclosing party’s trade secrets or confidential information, as shown by contemporaneous records.
4.2 Exceptions. The confidentiality restrictions contained herein will not apply to disclosure by any party of the other party's Confidential Information to the extent required by law or court order, provided that such party required to make such disclosure uses reasonable efforts to give the other party prompt written notice of such requirement, in advance if possible, in order to give such other party an opportunity to lawfully prevent or limit the scope of such disclosure.
5.1 FLOURISH PRESS. FLOURISH PRESS may use any data and information that it collects and/or compiles in the course of providing the Services to the COMPANY as reasonably necessary to provide the Services. FLOURISH PRESS may also use, transmit, distribute, and/or publish any aggregation of data and information received, collected and/or compiled through its provision of the Services, including as a part of reports, analyses, case studies, metrics, compilations, database services and/or other educational, training, marketing or similar materials, services or products to be used or made available by FLOURISH PRESS, provided that in respect of COMPANY’S data and information, FLOURISH PRESS will not disclose the identity of COMPANY.
5.2 COMPANY. During the Term and after any expiration or termination of the Term (as defined in the relevant Agreement), COMPANY may, subject to these TERMS AND CONDITIONS and any Agreement(s), use and store solely for its internal business purposes any and all data and information contained in any reports about COMPANY’S use of the Services, provided that such rights of use and storage shall cover only such data and information in COMPANY’S possession at the time of such expiration or termination. COMPANY agrees that all information received by FLOURISH PRESS, including transaction data, is subject to FLOURISH PRESS’ then applicable records retention policies.
5.3 COMPANY Client Data. We treat all information we receive from COMPANY clients as confidential and do not use the information for any purpose other than to fulfill our obligations to COMPANY. We keep client information secure at all times and prevent the misuse and unauthorized disclosure of it by our employees or any third parties.
5.4 Uses of COMPANY Client Data We Access. Through the course of our engagement to support lead generation for COMPANY, we have access to user data from its website(s) in these three primary forms: (i) web form submissions copied to our internal systems, (ii) customer call data from call tracking services, and (iii) website form submission data stored in website database. We use this information for the following reasons: (i) to ensure form tools are operational, (ii) to maintain a backup copy of all forms submitted, and (iii) to assist COMPANY in assessing return on investment for marketing expenditures.
5.5 COMPANY Client Data Storage. WebVitality retains copies of form submission emails for 60 days for backup purposes for COMPANY. Data in third party call tracking services and website database is retained for COMPANY indefinitely.
6.2 FLOURISH PRESS. FLOURISH PRESS will collect, use, communicate and disclose and make use of personal information provided by Company in connection with the Services strictly in conformance with the following. FLOURISH PRESS will collect and make use of personal information provided by COMPANY, or collected in connection with providing the Services, solely with the objective of fulfilling those purposes specified in the Agreement, the SOW, and these TERMS AND CONDITIONS. FLOURISH PRESS will protect such personal information by reasonable security safeguards against loss or theft, as well as unauthorized access, disclosure, copying, use or modification.
7 Work for Hire
FLOURISH PRESS agrees to assign to COMPANY without further consideration the entire right, title and interest in and to the work product resulting from the Services, including all concepts, material, software programs, documentation or any other intellectual property produced in connection with the Services. The parties intend that the work product arising from the Services is deemed to be a “work made for hire” pursuant to 17 U.S.C, Section 201 (b) (the Copyright Act).
Each party hereby represents, warrants, covenants and agrees that as of the Effective Date that (a) such party has full corporate power and authority to enter into these TERMS AND CONDITIONS and any Agreements executed by it and to perform its respective duties hereunder and thereunder and (b) each such Agreement has been duly authorized and executed and delivered by an authorized representative of such party, and that these TERMS AND CONDITIONS are expressly made a part of and are incorporated by reference in each Agreement. COMPANY further represents, warrants, covenants and agrees that it will not use the Services to engage in or promote any Prohibited Activity and it will comply will all state and federal laws, rules and regulation applicable to the operation of its business.
9 Indemnification; Limitation of Liability
9.1 COMPANY. COMPANY agrees to indemnify, defend and hold FLOURISH PRESS and its employees, offices, directors, shareholders, agents and suppliers harmless for any third party claims, proceedings, causes of action, liabilities, damages, losses, costs and expenses (including reasonable attorneys' fees, costs and disbursements) arising out of or relating to (a) the operation by COMPANY of any business promoted through the Services, (b) arising from, connected with or relating to the undertakings and obligations of the COMPANY herein contained, or any negligence, misconduct, or breach of this Agreement by COMPANY or any person for whom such party is responsible, or (c) COMPANY engaging in any Prohibited Activity.
9.2 FLOURISH PRESS. FLOURISH PRESS agrees to indemnify, defend and hold COMPANY harmless for any third party claims, proceedings, causes of action, liabilities, damages, losses, costs and expenses (including reasonable and customary attorneys' fees, costs and disbursements) reasonably incurred in connection with the defense of any claim asserted or brought against COMPANY in the United States by third parties alleging that COMPANY’S Implementation of the FLOURISH PRESS Technology or Services infringe any United States patent, copyright or trademark issued as of the Effective Date, provided however, FLOURISH PRESS shall not be obligated to indemnify, defend and hold COMPANY harmless to the extent that (a) the alleged infringement is not attributable to the FLOURISH PRESS Technology or Services, (b) COMPANY makes an unauthorized modification to the FLOURISH PRESS Technology, (c) COMPANY uses the FLOURISH PRESS Technology or Services for a purpose for which it was not intended, outside the scope of any relevant documentation furnished to COMPANY or in violation of these TERMS AND CONDITIONS), or (d) the alleged infringement results from COMPANY’S Implementation of the FLOURISH PRESS Technology or Services in conjunction with any other hardware, software, processes or material not provided by FLOURISH PRESS. COMPANY agrees to cooperate fully in mitigating any alleged infringement after being notified thereof and promptly and fully install and implement any modifications, enhancements or substitutions provided by FLOURISH PRESS that would mitigate or avoid such infringement. In the event that any preliminary injunction, temporary restraining order or final injunction shall be obtained in the United States, FLOURISH PRESS shall, in its sole discretion and as COMPANY’S sole remedy, either (a) obtain the right for COMPANY to continue using the FLOURISH PRESS Technology, (b) modify or replace the same so as to avoid the alleged infringement, or (c) offer a substitute and equivalent technology and/or methodology. If FLOURISH PRESS determines that none of these alternatives is reasonably available, either COMPANY or FLOURISH PRESS will have the right, upon written notice to the other, to terminate the Agreement and these TERMS AND CONDITIONS. This section finally, entirely and exclusively states all of COMPANY’S rights against FLOURISH PRESS and is COMPANY’S sole remedy with respect to an infringement of any third party rights. FLOURISH PRESS shall have no additional liabilities to COMPANY with regard to the infringement of any third party intellectual property right.
9.3 Procedure. The indemnification obligations in this Section 9 are conditioned on (a) prompt accurate written notice to the indemnifying party of any claim, action, or demand for which indemnity is claimed or which may give rise to an indemnity claim, provided that the failure by the indemnified party to provide timely notice of any claim, action or demand shall not affect or impair the obligations of the indemnifying party, except and only to the extent that the indemnifying party has been adversely affected by such failure or delay; (b) the indemnifying party having the right to assume complete and sole control over the defense and any and all negotiations for any settlement or compromise thereof; and (c) cooperation of the other party and its employees, officers, directors, consultants, advisers, and Corporate Affiliates in such defense. If the indemnifying party elects to assume control of the defense of any claim, the indemnified party shall, at its own expense, have the right to participate in the defense or consult its own counsel.
9.4 Limitation on Liability. Neither party (including its respective contractors and suppliers) will be liable to the other (whether in contract or based on warranty, negligence, tort, strict liability or otherwise) in connection with or resulting from the Agreement and/or these TERMS AND CONDITIONS or any of the contemplated services, activities or relationships for any indirect, incidental, consequential, lost profits, reliance, punitive or special damages, even if such party was aware that such damages could result. In no event shall FLOURISH PRESS' total liability for any or all of the other party's losses or injuries from acts or omissions by FLOURISH PRESS under the Agreement and/or these TERMS AND CONDITIONS, regardless of the nature of the legal or equitable right claimed to have been violated, exceed the amount of FLOURISH PRESS fees paid or accrued by COMPANY under the Agreement subject to the alleged breach during the one year period preceding the date of the alleged breach.
9.5 DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, FLOURISH PRESS SERVICES AND TECHNOLOGY ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”, AND WITHOUT ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF ANY NATURE OR KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, OR ARISING FROM CUSTOM OR TRADE USAGE OR BY ANY COURSE OF DEALING OR COURSE OF PERFORMANCE, INCLUDING ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF OR RELATING TO: ACCURACY, ACCESSIBILITY, AVAILABILITY, COMPLETENESS, DURABILITY, ERRORS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, LACK OF VIRUSES OR OTHER DISABLING OR HARMFUL CODE, PERFORMANCE, QUALITY, RESULTS, SUITABILITY, SECURITY, TIMELINESS, TITLE, TRUTHFULNESS, QUIET ENJOYMENT, UNINTERRUPTED SERVICE, OR WORKMANLIKE EFFORT; ALL OF WHICH ARE HEREBY WAIVED BY COMPANY AND DISCLAIMED BY FLOURISH PRESS TO THE FULLEST EXTENT PERMITTED BY LAW. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OR ON BEHALF OF FLOURISH PRESS WILL CREATE ANY LEGALLY BINDING OR EFFECTIVE REPRESENTATION, WARRANTY OR PROMISE BY FLOURISH PRESS. COMPANY IS SOLELY RESPONSIBLE FOR THE SELECTION AND USE OF FLOURISH PRESS’ SERVICES AND TECHNOLOGY TO ACHIEVE COMPANY’S INTENDED RESULTS AND COMPANY USES FLOURISH PRESS’ SERVICES AND TECHNOLOGY AT COMPANY’S OWN RISK.
9.6 TECHNOLOGY DISCLAIMER. FLOURISH PRESS’ SERVICES AND TECHNOLOGY MAY BE AFFECTED BY NUMEROUS FACTORS BEYOND ITS CONTROL, AND MAY NOT BE CONTINUOUS, UNINTERRUPTED OR SECURE. COMPANY ACKNOWLEDGES THAT FLOURISH PRESS’ SERVICES AND TECHNOLOGY MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND FLOURISH PRESS IS NOT RESPONSIBLE OR LIABLE FOR ANY DELAYS, DELIVERY FAILURES, DOWNTIME, OR OTHER DAMAGE RESULTING FROM THOSE PROBLEMS. FOLLOWING THE “GO LIVE” DATE OF COMPANY’S WEBSITE, COMPANY IS SOLELY RESPONSIBLE FOR THE MAINTENANCE OF ITS WEBSITE UNLESS IT ENGAGES FLOURISH PRESS PURSUANT TO A WEBSITE MAINTENANCE & SUPPORT SERVICES AGREEMENT (“MAINTENANCE AGREEMENT”). FLOURISH PRESS WILL TAKE ALL REASONABLE STEPS TO INSURE ANY COMPANY WHICH HAS ENGAGED FLOURISH PRESS UNDER A MAINTENANCE AGREEMENT HAS DEPLOYED ADEQUATE AND CURRENT TECHNOLOGY TO RESIST HACKERS, MALICIOUS WEB “BOTS”, CYBER ATTACK RESULTING IN IDENTITY THEFT, INVASION OF PAYMENT DATA SYSTEMS, IMPROPER DISCLOSURE OF PERSONAL INFORMATION, OR OTHER DATA BREACHES THAT COMPROMISE COMPANY’S WEBSITE, BUT FLOURISH PRESS DISCLAIMS ANY WARRANTY OR RESPONSIBILITY FOR SUCH ATTACKS, OR FOR THE UNAUTHORIZED MODIFICATIONS BY COMPANY TO THE CODE INSTALLED BY FLOURISH PRESS, OR FOR COMPANY DOWNLOADING UNAUTHORIZED OR UNAPPROVED SOFTWARE, OR VIRUSES, MALWARE, OR SPYWARE.
9.7 Entire Obligation. This Section 9 states FLOURISH PRESS’ entire obligation to COMPANY with respect to any breach of any of the warranties set forth in these TERMS AND CONDITIONS or in any Agreement. Each party acknowledges that the provisions of each of the foregoing Sections are an essential element of the benefit of the bargain reflected in the Agreement and/or these TERMS AND CONDITIONS.
10 Term; Termination
10.1 Term. The term of these TERMS AND CONDITIONS will commence as of the Effective Date and continue until the expiration of the last Agreement that may be in effect, unless earlier terminated in accordance with the Agreement and/or these TERMS AND CONDITIONS (the "Term"). To the extent the Agreement provides for Services to be rendered on a repetitive and recurring basis, then the Agreement and these TERMS AND CONDITIONS will renew automatically for like amount of time as the original Term provided in the Agreement, subject to the right in either party to terminate with or without cause as set forth in Section 10.2 below.
10.2 Termination Rights. Unless mutually agreed in the Agreement, either party will have the right to terminate these TERMS AND CONDITIONS and any or all Agreements without cause upon thirty (30) days prior written notice. No refund of pre-paid fees shall occur. Either party will have the right to terminate these TERMS AND CONDITIONS and any or all Agreements upon any material breach of these TERMS AND CONDITIONS or any Agreement by the other party, which breach remains uncured for a period of ten (10) days following the non-breaching party’s receipt of written notice thereof, provided that FLOURISH PRESS may terminate these TERMS AND CONDITIONS and any or all Agreements upon any default in COMPANY’S payment obligations to FLOURISH PRESS if such default is not cured within five (5) business days following COMPANY’S receipt of written notice thereof. In addition, either party may terminate these TERMS AND CONDITIONS and any or all Agreements in accordance with Section 11.2.
10.3 Suspension Right. Upon determining in good faith that a material breach of these TERMS AND CONDITIONS or any Agreement has occurred or at any time FLOURISH PRESS determines in good faith that any act or omission by COMPANY might have a material adverse effect on FLOURISH PRESS’ business operations, FLOURISH PRESS will have the immediate right to temporarily suspend COMPANY’S access, use or benefit of any or all FLOURISH PRESS-provided tools, services and/or other resources until the time when COMPANY cures such alleged breach, such suspected or alleged breach is determined by FLOURISH PRESS to be nonexistent, or a termination event as described in these TERMS AND CONDITIONS, as applicable.
11.1 Public Announcements. The parties agree that any press release issued announcing COMPANY’S engagement of FLOURISH PRESS for Services shall be pre-approved by both parties.
11.2 Force Majeure. Neither party will be liable to the other party by reason of any failure or delay in the performance of its obligations hereunder (other than any payment obligation) on account of strikes, shortages, fires, flood, storms, war, governmental action, labor conditions, earthquakes, interruptions in telecommunications services or web access, terrorism, or any other cause which is beyond its reasonable control.
11.3 Assignability. Neither party may assign or transfer it rights and obligations under any Agreement without the prior written consent of the other party, except that either party may assign or transfer its rights and obligations hereunder, in whole or in part, to any corporate affiliate or to any successor (by sale of all or substantially all of the assets, merger, corporate reorganization or otherwise). Any purported assignment or transfer in violation of the foregoing shall be null and void.
11.4 Notices. Any and all notices or other communications or deliveries hereunder shall be in writing and shall be deemed given and effective on the earliest of (i) the date of transmission, if such notice or communication is delivered via facsimile or email scan prior to 4:30 p.m. (San Diego California time) on a non-holiday weekday (a “Business Day”), (ii) the next Business Day after the date of transmission, if such notice or communication is delivered via facsimile or email scan later than 4:30 p.m. (San Diego California time) on any day, (iii) the Business Day following the date of mailing, if sent by nationally recognized overnight courier service, (iv) the delivery date noted on the receipt, if delivered by certified or registered US Mail, return receipt requested, or (v) immediately, if sent my email, subject to confirmation of receipt. The addresses for such communications are specified in the Agreement.
11.5 Severability. If any provision of these TERMS AND CONDITIONS or its application to any person, party or entity or circumstance is held by a court with jurisdiction to be invalid or unenforceable, the remaining provisions, or the application of such provision to other persons, parties, entities or circumstances, will remain in full force and effect. Such court may substitute therefor a suitable and equitable provision to carry out, so far as may be valid and enforceable, the intent and purpose of the invalid or unenforceable provision and, if such court will not do so, the parties will negotiate in good faith to agree upon such a provision. Any provision that is judicially unenforceable in any jurisdiction will not be affected with respect to any other jurisdiction.
11.6 Governing Law; Venue. These TERMS AND CONDITIONS will be governed by the federal laws of the United States and the state laws of the State of California without regard to conflicts of law principles, specifically excluding the application of any laws that implement the United Nations Convention on Contracts for the International Sale of Goods. Each party consents to the jurisdiction and venue of the Federal and California State courts sitting in San Diego County, California (and the appellate courts to which judgments of such Federal and State courts may be appealed), and agrees to commence any litigation hereunder in one of those courts. Each party waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any action, suit or proceeding arising out of or relating to these TERMS AND CONDITIONS. Notwithstanding the foregoing, COMPANY agrees that FLOURISH PRESS is entitled to seek and receive injunctive relief in any court or jurisdiction.
11.7 Remedies; Injunctive Relief. Unless otherwise expressly stated in these TERMS AND CONDITIONS, all remedies available under or with respect to these TERMS AND CONDITIONS are cumulative and in addition to all other remedies, if any, available at law or in equity. The prevailing party in any litigation between the parties arising out of the Services to be provided will be entitled to recover its reasonable legal expenses, including court costs and attorneys' fees and disbursements. Where FLOURISH PRESS has to refer unpaid payment obligations to a collection agency, costs of collection shall be paid by COMPANY in addition to all other owed amounts. Each party acknowledges that if it breaches its obligations under Sections 4 or 5 above, the other party will be irreparably harmed, and that damages will be inadequate to compensate the other party for such breach. Accordingly, without limiting any other right or remedy of the non-breaching party in respect of such a breach, the non-breaching party will be entitled to injunctive relief with respect thereto.
11.8 No partnership or joint venture; No Third Party Beneficiaries. No partnership or joint venture is intended hereby. There are no third party beneficiaries of these TERMS AND CONDITIONS and/or the Agreement.
11.9 Amendments and Waivers. Any amendments of these TERMS AND CONDITIONS and/or the Agreement must be in writing and signed by both parties. No failure or delay in exercising any power, right, or remedy will operate as a waiver. A waiver, to be effective, must be written and signed by the waiving party. No course of dealing or practice will be used to interpret, supplement or alter in any manner the express written terms of these TERMS AND CONDITIONS and/or the Agreement.
11.10 Entire Agreement. These TERMS AND CONDITIONS and any and all executed Agreements, together with any addendums thereto, if any, will constitute the entire agreement between the parties pertaining to the subject matter hereof and thereof, and all written or oral agreements, representations, warranties or covenants, if any, previously existing between the parties with respect to such subject matter are canceled. The headings of sections or other subdivisions of these TERMS AND CONDITIONS will not affect in any way the meaning or interpretation of these TERMS AND CONDITIONS.
11.11 Counterparts; Facsimile. The Agreements may be executed in counterparts, each of which will be deemed to be an original and all of which together will constitute one and the same agreement. In addition to any other lawful means of execution or delivery, the executed Agreement may be transmitted and received by facsimile or email of scan.
By entering into and executing an Agreement, each party is deemed to have read these TERMS AND CONDITIONS and the SOW, including any and all attachments, and agree to be bound by all the terms and conditions contained in the Agreement, the SOW, and herein.