Terms Version Date: December 17, 2015
These TERMS OF SERVICE (this “Agreement“) is made between Evrmrk Corporation (“Evrmrk“) and You, or, if You represent an entity or other organization, that entity or organization (in either case “Client“). Evrmrk (“Evrmrk,” “we” or “us”) provides a range of marketing products and services for businesses of all sizes (the “Services”). Your Marketing Action Plan (the “Service Agreement”) sets forth which Services are being purchased, the Client purchasing the Services (the “Client”, “you” or “your” and together with Evrmrk the “Parties” or individually a “Party”), the costs for such Services, the minimum commitment and other relevant details. These Terms of Services (the “Terms of Service”) are incorporated by reference into and made part of any Service Agreement submitted to Evrmrk and govern the relationship between you and Evrmrk. These Terms of Service are effective on the date the Service Agreement is signed (the “Effective Date”), and remain in effect until terminated as provided below. The Service Agreement, the Terms of Service and the documents and/or links referenced in such documents are collectively referred to as the “Agreement”. These Terms of Service may be reviewed at any time at evrmrk.com/terms.
Terms and Conditions
1. Marketing Products and Services. The Services include, but are not limited to, the following products:
- Website Design & Development
- Search Engine Optimization
- Local Marketing Platform
- Marketing Analytics & Conversion Tracking
- Call Tracking, Recording, & Analytics
- Content Writing & Blogging
- Email Marketing System
- Email Template Design
- Pay-Per-Click Advertising
- Client Services. Client hereby retains Evrmrk to provide the Services outlined in your Service Agreement governed by these Terms of Service. You may add additional one-time or recurring products and services at any time during the life of this Agreement. Unless the Parties agree otherwise in writing, any and all products and services added during the Term shall be governed by this Agreement.The parties shall work together in a joint effort to accomplish the tasks and objectives set forth in the Service Agreement.
- Account Managers. Client and Evrmrk shall assign an Account Manager to oversee the design, develop, execution, and management of the Service Agreement. The Account Managers shall be responsible for: (i) managing the day-to-day activities under this Agreement, (ii) serving as liaisons between the parties, (iii) assigning and scheduling the appropriate personnel to perform all of the required services under this Agreement, and (iv) authorizing and executing any and all Change Order(s). Client hereby acknowledges and agrees that Client Account Manager shall have the proper authority and power to execute and perform the duties and responsibilities set forth in this Section.
- Local Marketing Platform. Client will have access to the Local Marketing Platform as well as a dedicated Account Manager. The Local Marketing Platform is used to add, update, sync, enhance and monitor your business listings across dozens of local websites. The Local Marketing Platform includes Monthly Listings and Ranking Results (Data Crawling), 10 Keywords Tracked, Monthly Google My Business Insights, Single-Location Dashboard Access, Weekly Review Scan (Crawling & Notification), Management of 15 Core Listings, Monthly Profile Enhancement.
- Pay-Per-Click Budget. Pay-Per-Click budgets are used to run Pay-Per-Click Ads, Remarketing Ads, and Contextual Ads. Pay-Per-Click budgets are subject to the terms and conditions of the applicable 3rd Party website (Google, Bing, Facebook, etc), and some services may not be available for all Clients. Pay-Per-Click Budgets are non-refundable, but may be allocated to other services with a written request. Pay-Per-Click Budgets will not be used until your website has gone live with your approval. Ad position is based on a number of factors, and top position cannot be guaranteed. Unless instructed otherwise, your Account Manager will optimize your Pay-Per-Click Ads campaign to target the top three ad positions for your keywords where possible. In any billing cycle, Evrmrk may use up to 110% of the Monthly Pay-Per-Click Budget Any balance of the Monthly Pay-Per-Click Budget remaining at the end of a monthly billing cycle, positive or negative, will be rolled over to the next monthly billing cycle, and any negative balance remaining at the end of the Term is due at that time.
- Search Engine Optimization. Your Search Engine Optimization budget is used to power the Search Engine Optimization program. Use the Search Engine Optimization program to increase your visibility in organic search results on search engines like Google and Bing and generate more sales from organic search. Your Search Engine Optimization budget is non-refundable, but may be allocated to other services with a written request. Search Engine Optimization budget can be used to execute such things as SEO keyword research and website optimization, title tag and meta description optimization, link quality auditing, disavowing bad links, internal linking optimization, blog architecture optimization, image tag optimization, social media network optimization, Google+ and Google maps optimization, page schema markup, page content creation and optimization, blog post writing, SEO optimized infographic design, guest blog posting for link building and more. Search Engine Optimization budget usage is determined by Evrmrk, based on what will have the greatest impact on organic growth. Search Engine Optimization budget cannot be used, and the Search Engine Optimization program cannot start, until the Client’s website has gone live with Client approval. Search Engine Optimization budget will remain in your account until used. Unless otherwise specified, content will be automatically posted to Client’s website periodically. Client is solely responsible for the review and approval of all website content. All content will be considered approved unless Client notifies Evrmrk of any errors, omissions or problems within 72 hours of posting. Client represents that it will not choose keywords that violate any third party’s trademarks or other intellectual property rights and/or will obtain licenses to use any third party trademarks as keywords.
- Call Tracking, Recording, & Analytics. If you choose to utilize the Call Tracking, Recording, & Analytics service, calls will be recorded for tracking purposes so that we may analyze the performance of ads and optimize accordingly. Call recording can be deactivated if needed while leaving call tracking in place by request. Your Service Agreement will specify the number of phone numbers included; additional numbers may be purchased for an additional cost per month.
- Website Design and Content. If you have requested Website Design services, we will populate up to 20 webpages with content or products at no additional charge. The content for the pages is generally provided by you, but we can provide content writing services for up to 10 pages, up to 300 words per page, upon request at no additional charge. Populating additional webpages and/or additional content writing is available at an hourly rate. You are welcome to add pages, content or products at any time for no additional charges via the website’s content management system. Unless you have contracted for a custom website, a website will be developed for you based on the template design of your choice. Template design services include up to three rounds of revisions at no additional cost. If you need to add more time in order for us to make additional revisions, content, pages, etc., it can be added at an additional hourly rate. Your advertising budget cannot be used until your website is completed and goes live with your approval. Any budget amounts paid prior to website completion will remain in your account until your website goes live.
- Custom Marketing Services. Can include ANY service(s) not currently provided by Evrmrk or listed in the Service Agreement. Please note that Custom Marketing Services not provided by Evrmrk may take our team additional time to setup, learn, implement, or measure its effectiveness. You understand that Evrmrk does not guarantee a working knowledge or expertise in services not explicitly provided by Evrmrk. In addition, Custom Marketing Services cannot replace hours dedicated to Evrmrk’s standard marketing services.
- Flextime™ Hours. A variable work schedule not subject to a set schedule of hours per day. Flextime™ hours are subject to achieving total daily, weekly or monthly hours in the region of what is expected, and subject to deadlines and necessary work being done.
- Evrtime™ Hours. The amount of time worked beyond Flextime™ hours.
- Sabbath Observance. Evrmrk employees will not and are not obligated to work on behalf of Client during the weekly Sabbath from Friday at sundown through Saturday at sundown. This does not include pre-scheduled activities (such as social media posts or email newsletters) which may be pre-scheduled by Evrmrk in accordance with the Service Agreement.
2. Prohibited Content. Client may not use any Evrmrk Services for any illegal activity including the storage or transmission of information, data, files or links to content that violate any applicable local, state, national or international law. This includes, but is not limited to, pirated software, copyrighted data, or links thereto, the propagation of computer worms or viruses, the use of false identities, or attempts to gain unauthorized entry to any network. Pornography and sex-related merchandising are prohibited on all Evrmrk servers. This includes sites that may infer or link to sexual content. Spamming sites and sites selling or promoting bulk email software, services or addresses are also prohibited. Evrmrk may terminate this agreement if it determines, in its sole discretion, Client has violated this policy.
3. Client Obligation.
- Client Responsibilities. In addition to making all required payments,Client agrees to (i) perform all tasks assigned to Client as set forth in this Agreement; (ii) provide all assistance and cooperation to Evrmrk in order to complete timely and efficiently the Services; (iv) provide access to Client’s Google Adwords and Analytics accounts as necessary; (v) respond promptly to questionnaires and any reasonable request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Evrmrk to perform Services in accordance with the requirements of this Agreement; (vi) provide such customer materials or information as Evrmrk may reasonably 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; and (vii) unless otherwise contracted with Evrmrk or reflected in writing, Client shall be responsible for initially populating and then maintaining any databases related to the Service Agreement as well as providing all necessary content for Evrmrk to perform Services.
- Deliverables Approval. Client shall execute a written approval via email upon completion of each of the deliverables identified in the Service Agreement. Evrmrk shall rely on such written approval as Client’s acceptance of such deliverable, including, but not limiting to, acceptance of its design, content, layout, color, format, navigation, and functionality.
- Non-breach. Evrmrk shall not be deemed in breach of this Agreement or any milestone in the event Evrmrk’s failure to meet its responsibilities and time schedules is caused by Client’s failure to meet (or delay in) its responsibilities and time schedules set forth in this Agreement. In the event of any such failure or delay by Client, (i) all of Evrmrk’s time frames, milestones, and/or deadlines shall be extended by the product of the number of days of Client’s failure multiplied by two (2); and (ii) Client shall continue to make timely payments to Evrmrk as set forth in this Agreement as if all time frames, schedules, or deadlines had been completed by Evrmrk. Client shall be responsible for making, at its own expense, any changes or additions to Client’s current systems, software, and hardware that may be required to support operation of the Service Agreement. With the execution of a request specifically asking Evrmrk to assess Client’s systems, software and hardware from time to time, Evrmrk may agree to perform this function at normal Evrmrk rates.
4. Payment. Once you have executed your Service Agreement, you will be responsible for payment in full of all associated payments, except as may otherwise be provided in Term and Termination section of this agreement. All payments are due in US dollars. Client will pay all amounts due under this Agreement monthly, in advance. If Client is paying by credit card or ACH, Client hereby irrevocably authorizes Evrmrk to charge the credit card or other payment method provided for any such amounts on a recurring basis when such amounts are due, and amounts due will be automatically charged, in advance. Payment for one-time services will be due in full on the Effective Date, or as otherwise provided by your Service Agreement. For recurring payments, the initial payment will be taken on the Effective Date, and you will be billed for subsequent payments as outlined in your Service Agreement. For monthly recurring Services, unless the Service Agreement states otherwise, you will be billed on the same numerical day of each month as the Effective Date. For example, if the Effective Date is January 17th, you will be billed for recurring monthly payments on February 17th, March 17th, and so on. For annual recurring services you will be billed for the first year on the Effective Date, and you will be billed for subsequent payments on the anniversary of the Effective Date unless cancelled as provided below. You acknowledge that you are required to pay all amounts due for the Services through the Initial Term as outlined in your Service Agreement. You will be required to agree to all applicable payment authorization forms, which authorize recurring billing in accordance with your agreement. Evrmrk shall have the right to charge your credit card or debit from your account through ACH for fees in accordance with these Terms of Service and the Service Agreement. YOU UNDERSTAND AND ACKNOWLEDGE THAT ALL AMOUNTS OWED MUST BE PAID IN ADVANCE AND THAT, IN ADDITION TO BEING IN BREACH OF YOUR CONTRACTUAL OBLIGATIONS, YOUR SERVICES MAY BE PAUSED OR TERMINATED IF TIMELY PAYMENT IS NOT RECEIVED.
5. Term and Termination.
- Term. The Agreement shall begin on the Effective Date, and will remain in effect until terminated as provided below. For recurring accounts, the Service Agreement sets forth the minimum commitment term (the “Term Length”), and authorizes recurring monthly billing for such period. Unless otherwise stated in the Service Agreement, all monthly recurring Services have a twelve (12) month Term Length. After the Initial Term, the Term will be automatically renewed for successive periods (each, a “Renewal Term”) as provided in the Service Agreement (the Initial Term and any Renewal Terms are collectively referred to herein as the “Term.”)
- Cancellation. Client may cancel the services by providing no less than forty-five (45) days written notice of cancellation via registered mail or email addressed to email@example.com. If you have not completed the Initial Term, cancellation will be effective at the completion of the Initial Term. If you have completed the Initial Term, your services will run through the end of the previously paid billing period and will then be disabled or end, as applicable.
- Cancellation Fees. If you wish to cancel the Services immediately without completing the Initial Term you may do so only by providing both written notification of cancellation and an early cancellation fee. The early cancellation fee shall be equal to the lesser of (a) your remaining monthly payments or (b) $2,377, in addition to any outstanding expenses or unpaid Flextime™ and/or Evrtime™ Hours worked by Evrmrk. The early cancellation fee, outstanding expenses or unpaid Flextime™ and/or Evrtime™ Hours must be provided within 5 business days from our receipt of your written notice of early cancellation. If this Agreement is cancelled before the Term Length is fulfilled, the Client grants Evrmrk the right to charge the credit card(s) or debit the bank account provided to Evrmrk to collect fees due. No early cancellation of a Service Agreement will take effect until this cancellation fee has been paid, and you will continue to be billed monthly until we receive both proper written notice of cancellation and the early cancellation fee, as applicable. Upon execution of this agreement, Evrmrk will be investing considerable work into Client’s business and online marketing activities. This investment is being made with the understanding that you are committing to pay for the Services through the Initial Term. Client recognizes the aforementioned investment, up-front sales, setup and opportunity costs that Evrmrk bears in connection with this marketing commitment, and acknowledges that this fee is not a penalty, but rather a reasonable amount of liquidated damages to compensate Evrmrk for early cancellation of the Services.
- Cancellation Revocation. You may, upon written notice (email is acceptable), revoke such cancellation within thirty (30) days after you have made a cancellation request, in which case the Service Agreement will be reinstated and all applicable services will be reinstated upon payment in full of all amounts owed. If the cancellation fee has already been paid it shall be applied to any future amounts owed.
- Service Modifications. Modifications to this Agreement, including downgrades and upgrades, are not permitted and will be treated as cancellation requests.
- Service Termination.This Agreement may be terminated by Evrmrk, at any time, in Evrmrk’s sole discretion, upon any breach by You of this Agreement that remains uncured ten (10) days after Evrmrk delivers written notice to You via email.
- Refund Policy. Upon cancellation of this agreement by you for any reason, any and all unused funds or credits will be forfeited. Unless Evrmrk cancels the agreement pursuant to the Service Termination section of this agreement, all fees and/or payments are non-refundable once paid to Evrmrk including upon any cancellation, termination, or suspension of this Agreement.
- Collection of Amounts Owed. You agree to pay all costs of collection (including attorneys’ fees, costs and other legal and collection expenses) incurred by Evrmrk in connection with its enforcement of its right to payment under the Agreement. Any amounts not paid by you when due shall bear an additional charge of the lesser of 1 1/2% per month or the maximum amount permitted under applicable law.
- Charge Disputes. If you dispute any payment with your credit card company or bank, and such dispute is resolved in Evrmrk’s favor, you will be assessed $100 charge per dispute initiated. You acknowledge that this amount is not a penalty, but a reasonable amount of liquidated damages to compensate Evrmrk for the additional costs incurred in defending your payment dispute.
6. Intellectual Property Rights and Licenses.
- Intellectual Property. Evrmrk shall own all worldwide right, title, and interest in and to all work designed and developed in accordance to the Service Agreement (including, all graphics, content, videos, photos, images, source code and documentation) (the “Custom Work”). Client and Evrmrk agree that Evrmrk shall retain a world-wide, royalty-free, non-exclusive, transferable, and perpetual right and license to the Custom Work including, but not limited to, the right to modify, amend, create derivative works, rent, sell, assign, lease, sublicense, or otherwise alter or transfer the Custom Work. Client shall be responsible for researching, obtaining, and filing all trademark, copyright, patent, or other intellectual property protections for necessary aspects of the Service Agreement, its look and feel, any logos, any “tag lines,” or any other content or documentation designed or developed by Evrmrk for Client. Client and Evrmrk also agree that the design and development of Client’s Service Agreement may include graphics, content, videos, photos, images, source code, documentation, and/or application programs that were previously written or developed by Evrmrk and modified to meet Client’s specific requirements (the “Evrmrk Content”). Evrmrk shall own all worldwide right, title, and interest in and to Evrmrk Content, but shall provide Client a worldwide, royalty-free, non-exclusive, transferable and perpetual right and license to use the Evrmrk Content. Evrmrk agrees that it either owns or will own any rights that it claims to own and which Evrmrk assigns to Client. Evrmrk will assign any intellectual property rights to Client that are consistent with this paragraph.
- Licenses to Evrmrk. Client hereby grants Evrmrk the right to use the name and service marks of Client in its marketing materials or other oral, electronic, or written promotions, which shall include naming Client as a client of Evrmrk and a brief scope of services provided. In addition, Client hereby grants Evrmrk the right to display its logo (or other identifying information) and a hyperlink to Evrmrk’s Web site (currently www.evrmrk.com) on every page of Client’s website and other necessary work developed by Evrmrk. Any use of Evrmrk logos or links on Client’s website and other necessary work must be approved in writing by Client. Either party may elect to issue a press release related to this Agreement. In doing so, any release shall be approved by the other party and such approval shall not be unreasonably withheld.
- Third Party Licenses. In addition to any other fees set forth in this Agreement, Client shall be required to pre-purchase and provide any applicable third party licenses for any third party products that are necessary for Evrmrk to design, develop, execute, and manage the Service Agreement.
7. Confidentiality. The parties agree to hold each other’s Proprietary or Confidential Information in strict confidence. The parties agree not to make each other’s Proprietary or Confidential Information available in any form to any third party or to use each other’s Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party’s Proprietary or Confidential Information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, Evrmrk and Client acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the Effective Date.
8. Representations. You represent that (a) you have the power to enter into this Agreement and be bound to its obligations hereunder; (b) the execution of this Agreement by the Client has been authorized by all necessary corporate actions; and (c) upon execution of the Service Agreement, this Agreement constitutes a legal, valid and binding obligation of Client, enforceable against Client in accordance with its terms.
9. Agency. In the event that you are purchasing the Services on behalf of another company, you represent and warrant that you have been authorized by such company to act as its agent in all respects related to the agreement. Without limiting the foregoing, you agree on behalf of each such company that such company has been made aware of, and agrees to be bound by, these Terms of Service.
10. Limited Warranties.
- DISCLAIMER OF WARRANTIES. EXCEPT AS SET FORTH IN THIS AGREEMENT, THE WEBSITE IS PROVIDED on an “AS IS” and “AS AVAILABLE” basis, AND EVRMRK EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY, FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR CONNECTED IN ANY WAY WITH THIS AGREEMENT OR THE WEB SITE, OR FOR ANY CLAIM BY ANY THIRD PARTY. THE TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) TO THE OTHER SHALL NOT EXCEED THE DEVELOPMENT PRICE (AS DEFINED IN SECTION 0). THIS LIMITATION OF LIABILITY SHALL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL IN THEIR ESSENTIAL PURPOSE.
- THIRD PARTY DISCLAIMER. EVRMRK MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES.
11. Indemnification. Each Party agrees to indemnify, defend and hold harmless the other Party, its subsidiaries, partners, officers, directors and employees from any and all liability, claims, damages and settlements due to any third party claims or causes of action, including reasonable legal fees and expenses arising out of or related to the indemnifying Party’s breach of any of its representations or warranties in this Agreement. Client further agrees to indemnify, defend and hold harmless Evrmrk, its subsidiaries, partners, officers, directors, and employees from any third party claims (including, without limitation, reasonable attorneys’ fees and court costs) arising out of or relating to Customer’s breach of any of these Terms or use by Customer or any third party (authorized, permitted or enabled by Customer). This indemnification includes, but is not limited to, actions arising from keywords, content including blogs or material on any website associated with any Advertising Content, Advertiser’s website(s), end user personal or financial data, and Client’s order processing, billing, fulfillment, shipment, collection and/or other customer support associated with any products or services offered, sold or licensed through any Client website. If Customer is a Covered Entity under The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Customer waives any Claims it may have against Evrmrk arising out of or in connection with HIPAA requirements and agrees to indemnify and hold harmless the Indemnified Parties against any and all Claims that are related to or arise from failure to comply with HIPAA requirements.
12. Dispute Resolution.
- Good-faith. Client and Evrmrk agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation.
- Arbitration. Should the parties fail to resolve any such disagreement within ten (10) days, any controversy or claim arising out of or relating to this Agreement, including, without limitation, the interpretation or breach thereof, shall be submitted by either party to arbitration in Denver, Colorado and in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted by one arbitrator, who shall be (a) selected in the sole discretion of the American Arbitration Association administrator and (b) a licensed attorney with at least ten (10) years experience in the practice of law and at least five (5) years experience in the negotiation of technology contracts or litigation of technology disputes. The arbitrator shall have the power to enter any award that could be entered by a judge of the state courts of Colorado sitting without a jury, and only such power, except that the arbitrator shall not have the power to award punitive damages, treble damages, or any other damages which are not compensatory, even if permitted under the laws of the State of Colorado or any other applicable law. The arbitrator must issue his or her resolution of any dispute within thirty (30) days of the date the dispute is submitted for arbitration. The written decision of the arbitrator shall be final and binding and enforceable in any court having jurisdiction over the parties and the subject matter of the arbitration. Notwithstanding the foregoing, this Section shall not preclude either party from seeking temporary, provisional, or injunctive relief from any court.
13. Modifications.We reserve the right to modify these Terms of Service from time to time, and each such modification shall be effective upon notice to you of such modification. Updated Terms of Service will be maintained at evrmrk.com/terms. All material modifications will apply prospectively only. Your continued use of the Services following any such modification constitutes your agreement to be bound by and your acceptance of the Agreement as so modified. If you do not consent to any modification you must provide written notice (email is acceptable) of your objection within 30 days of such notice. Such objection shall not affect any previously agreed upon obligations of Client.
- Entire Agreement. These Terms or Service together with the applicable Service Agreement constitute the entire agreement between the Parties. All prior agreements, discussions, representations, warranties and covenants are merged herein. Any amendments or modifications of this agreement shall be in writing and executed by the Parties.
- Choice of Law.You agree that this Agreement shall for all purposes be governed by and construed in accordance with the laws of the State of Colorado, and that any action arising out of this Agreement shall be litigated and enforced under the laws of the State of Colorado. In addition, You agree to submit to the jurisdiction of the courts of the State of Colorado, and that any legal action pursued by You shall be within the exclusive jurisdiction of the courts of the State of Colorado.
- Notices. Any written notice or demand required by this Agreement shall be sent by registered or certified mail (return receipt requested), personal delivery, overnight commercial carrier, or other guaranteed delivery to the other party at the address set forth herein. The notice shall be effective (a) as of the date of delivery if the notice is sent by personal delivery, overnight commercial courier or other guaranteed delivery, and (b) as of five (5) days after the date of posting if the notice is transmitted by registered or certified mail.
- Electronic Signatures. Each party agrees that electronic signatures have the same force and effect as manual signatures and shall be as valid as an original signature. Electronic signature means any electronic sound, symbol or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record.
- Severability. In the event that a court finds any provision of this Agreement invalid and/or unenforceable, the parties agree that the remaining provisions shall remain valid and in force.
- Waiver. Neither party shall be deemed by mere lapse of time (without giving notice or taking other action hereunder) to have waived any breach by the other party of any of the provisions of this Agreement. Further, the waiver by either party of a particular breach of this Agreement by the other party shall not be construed as, or constitute, a continuing waiver of such breach, or of other breaches of the same or other provisions of this Agreement.
- Days. Unless indicated otherwise, all references to “days” shall mean calendar days.
- Independent Contractor Status. Client and Evrmrk agree that Evrmrk shall perform its duties under this Agreement as an independent contractor.
- Referrals. Evrmrk may provide incentives to third parties to introduce potential Clients to Evrmrk.
- Survival. The following provisions shall survive termination or expiration of this Agreement: Fees, Payment, and Termination, Intellectual Property Rights and License, Disclaimer of Warranties, Limitation of Liability, Third Party Disclaimer, Indemnification Obligations, Confidentiality, Choice of Law; Venue; Limitation of Actions, Disputes, and Survival.
- Subcontracting. Evrmrk may, without your consent, subcontract to any party the performance of all or any of Evrmrk’s obligations under this Agreement provided that Evrmrk remains primarily liable for the performance of those obligations.
- Force Majeure. Except with regard to payment obligations, either party shall be excused from delays in performing or from failing to perform its obligations under this Agreement to the extent the delays or failures result from causes beyond the reasonable control of the party, including, but not limited to: default of subcontractors or suppliers; failures or default of third party software, vendors, or products; acts of God or of the public enemy; U.S. or foreign governmental actions; strikes; communications, network/internet connection, or utility interruption or failure; fire; flood; epidemic; and freight embargoes.