TERMS & CONDITIONS
THESE TERMS AND CONDITIONS (“TERMS”) APPLY TO YOUR (HEREINAFTER, “YOU”, “YOUR” OR “CLIENT”) ORDER AND PURCHASE OF SERVICES OFFERED AND PERFORMED BY PERFORMANCE BASED LLC d/b/a DOCTOR MARKETING (“COMPANY”). SUCH SERVICES (COLLECTIVELY, “SERVICES”) MAY BE PERFORMED DIRECTLY OR THROUGH SUBCONTRACTORS.
Services The Company provides certain marketing services as described on the DOCTOR MARKETING web site (the “Site”). The Company shall provide the Services to the Client in accordance with the terms described on the Site and according to these terms and conditions. Client shall assist Company by promptly providing all information requests known or available and relevant to the Services in a timely manner.
Method of Providing Services Company will perform the Services in a timely and professional manner. The manner and means that Company chooses to perform the Services are in Company’s sole discretion and control.
Compensation and Payment Terms Payment is due upon the purchase of the Services from the Site and it is not refundable.
Relationship of the Parties The Parties acknowledge and agree that the services performed by the Company, its employees, agents or sub-contractors shall be those of an independent contractor and that no partnership, joint venture, agency relationship or otherwise between the parties because of Client’s use of the services provided under this site.
Ownership, Grant of Licenses.
Except as otherwise provided herein, the parties agree that all documents, designs, products, pricing, costs, future plans, business information, process information, technical information, customer lists, computer programs, computer systems, data, computer documentation, ideas, processes, techniques, know-how, knowledge and other proprietary and/or tangible materials authored or prepared by Company (and its employees, agents, consultants or subcontractors) for Client as the deliverables are the sole and exclusive property of Company or its third party licensees.
Client acknowledges that the Company provides similar services to other customers, and agrees, subject to the Company’s confidentiality obligations hereunder, that nothing in these Terms shall be deemed or construed to prevent the Company from carrying on such business. In particular, Client agrees that as part of the Company’s supply of the Services hereunder, the Company may utilize proprietary works of authorship that have not been created specifically for Client, including without limitation, software, methodologies, tools, specifications, drawings, sketches, models, samples, records and documentation, as well as copyrights, trademarks, service marks, ideas, concepts, know-how, techniques, knowledge or data, which have been originated, developed or purchased by the Company or by third parties under contract to Company (all of the foregoing, collectively, “Company’s Information”), and Company’s Information and Company’s administrative communications, records, files and working papers relating to the Services are and shall remain the sole and exclusive property of Company.
Except as otherwise provided herein, upon payment in full of all fees and other amounts due, the Company grants to Client a perpetual, worldwide, non-exclusive, non-transferable license to use Deliverables of Services solely for the purpose expressly set forth (“Deliverables of Services” shall mean any and all data, information, reports, analysis supplied by Company to Client), and Company’s Information incorporated into such Deliverables solely in connection with Client’s use of the Deliverables. Except as otherwise provided herein, Client shall not have the right to license, sublicense or otherwise transfer to others the right to use the Deliverables or Company’s Information without Company’s prior written consent.
Any and all data, information, reports, analysis, artwork, logos, graphics, text, and other materials, including without limitation, financial data supplied by Client to Company in connection with this Agreement, if any, shall remain the sole and exclusive property of Client (the “Client Content”).
Confidentiality: The Company shall use practices consistent with generally accepted industry standards to protect the security of any confidential Information it receives from the Client and to prevent the disclosure or use any such confidential Information for any purpose other than to provide services.
Limitation of liability: CLIENT ACKNOWLEDGES AND AGREES THAT IN NO EVENT SHALL COMPANY OR ANY OF COMPANY OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, OR REPRESENTATIVES BE LIABLE TO CLIENT OR ANY OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR LOSS OF GOODWILL IN ANY WAY, WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE, ARISING FROM OR RELATING TO THIS CONTRACT OR RESULTING FROM THE USE OF OR INABILITY TO USE THE PRODUCTS OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY SERVICES, INCLUDING THE FAILURE OF ESSENTIAL PURPOSE, EVEN IF COMPANY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING.
CLIENT AGREES THAT COMPANY’S LIABILITY HEREUNDER FOR DAMAGES, REGARDLESS OF THE FORM OF ACTION, WILL NOT EXCEED THE TOTAL AMOUNT ACTUALLY PAID FOR SERVICES AND DELIVERABLES UNDER THE AGREEMENT GIVING RISE TO THE DAMAGES. CLIENT AGREES THAT AMOUNTS STATED HEREIN ARE FAIR UNDER THE CIRCUMSTANCES AND THAT THE PRICES REFLECT THIS LIMITATION OF LIABILITY.
Indemnification. Each Party will defend, indemnify and hold the other party harmless, including attorney’s fees and costs for the defense, from and against any and all liabilities, losses, damages, costs and expenses (including legal fees and expenses) associated with any claim or action brought against the party for actual or alleged infringement of any patent issued as of the Effective Date of this Agreement, copyright, trademark, service mark, trade secret or other property right based upon the duplication, sale, license or use of the materials provided by that party.
Warranty Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS TERMS AND CONDITIONS, COMPANY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Governing Law. The rights and obligations of the parties under these Terms shall be governed by and construed under the laws of the State of Florida without reference to conflict of laws principles.
Venue. Any conflict or dispute arising out of the services provided by the Company shall be brought exclusively in the State Courts of Miami Dade County or Federal Courts of the Southern District of Florida sitting in Miami Dade County.
Modification. No modification of, amendment to, nor any waiver of any rights under these Terms shall be effective unless in writing signed by the party to be charged, and the waiver of any breach or default shall not constitute a waiver of any other right hereunder or any subsequent breach or default.
Severability. The invalidity or unenforceability of any provision of these Terms, shall not affect the validity of the others as a whole, which shall at all times remain in full force and effect.
Entire Agreement. These Terms set forth the entire agreement and understanding of the parties relating to the subject matter hereof and merges all prior discussions between them. No modification of or amendment to the Terms, nor any waiver of any rights under these Terms shall be effective unless in writing signed by the party to be charged.
Waiver. No failure or delay on the part of Either Party in exercising any right, power or privilege under these Terms will operate as a waiver thereof, nor will any single or partial exercise of any such right, power or privilege or of any other right, power or privilege operate as a waiver of any subsequent exercise thereof.
No Exclusivity. Nothing herein shall be construed to prohibit either Party from dealing with any other person, or other entity regarding the distribution, purchase or use of any product or service or for any other business relationship or any other reason.
Compliance with Laws. Each party shall perform all of its obligations in compliance at all times with all foreign, federal, state and local statutes, orders and regulations, including those relating to privacy and data protection.
Remedies. Company reserves all remedies available at law or equity for any disputes that arise under these Terms. In the event of a suit or proceeding Client agrees to pay all attorneys’ fees if the federal or state court renders judgment substantially in Company’s favor.