Terms and Conditions
1. Services. Cascade Conversion will provide advertising services for client, which may include without limitation generating marketing and sales leads online.
2. Payment
2.1 Cascade Conversion will provide Service risk-free for one week after the Effective Date of campaign launch. Thereafter, Client shall pay Cascade Conversion an amount agreed upon by the parties (the “Payment Amount”).
2.2 Time is of the essence with respect to Client’s payment obligations. Payment is due in advance and is not refundable.
3. Client may provide Cascade Conversion advertising copy or creative materials (collectively “Advertising Materials”) that are to be used to promote Client’s business. All Advertising Materials shall be provided in accordance with Cascade Conversion’s policies as amended or in effect from time-to-time. Client grants to Cascade Conversion an irrevocable, non-exclusive, worldwide, fully paid license to use, perform, reproduce, display, transmit, and distribute the Advertising Materials, and to authorize third parties to use, perform, reproduce, display, transmit, and distribute the Advertising Materials to the extent deemed necessary by Cascade Conversion to accomplish the goals of the Agreement. Cascade Conversion retains the right to reject the content of any Advertising Materials submitted by Client at any time and for any reason whatsoever. Client agrees that Cascade Conversion shall own all data it generates or receives from providing Services, including Leads. If the nature of the campaign precludes Cascade Conversion from owning a Lead, then Client grants an irrevocable, unrestricted, fully paid license to use the Lead without further consent from or payment to Client.
4. Cascade Conversion’s services are provided on an “as is, as available” basis. Cascade Conversion does not guarantee that each potential Lead will generate revenue to Client or any third party. Cascade Conversion makes no representation whatsoever regarding the suitability, creditworthiness, viability, or legitimacy of each potential Lead or related contact information. Cascade Conversion has not compared any information that Client receives against the Federal Do Not Call Registry and makes no representation regarding whether the use by Client of the Lead’s contact information is authorized pursuant to the Federal Trade Commission’s Telemarketing Sales Rule, Federal Communications Commission’s Telephone Consumer Protection Act, or applicable law.
5. If Cascade Conversion finds the minimum number of new students agreed upon on the Advertising Service Agreement who attend a free, trial, or introductory class at Client’s gym during the first week, then this Agreement shall continue on a month-to-month basis at the agreed Payment Amount or an amount subsequently agreed to in writing. If Cascade Conversion does not find the minimum number of new students, then this Agreement shall terminate. Cascade Conversion may agree to find a minimum number of students each month. If it does, but does not meet this minimum and Client is current on its payments, then Cascade Conversion will provide the next month’s services at no charge.
6. Limitations
6.1 CASCADE CONVERSION MAKES NO EXPRESS OR IMPLIED WARRANTY, TO THE EXTENT PERMISSIBLE BY LAW, OTHER THAN THE WARRANTIES EXPRESSED IN THIS AGREEMENT, IF ANY, AND SPECIFICALLY DISCLAIMS ANY WARRANTIES OF MERCHANABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6.2 Cascade Conversion shall attempt to fulfill Client’s request for delivery volume, schedule, target audience, and placement. However, Cascade Conversion shall have no liability for any failure to fulfill any such request.
6.3 In no event shall Cascade Conversion or its officers, directors, members, managers, employees, contractors, attorneys, licensors, licensees, or suppliers be liable to Client for any indirect or direct lost profits, or other incidental, consequential, or special damages, even if advised of the prospect of such damages. In no event will Cascade Conversion’s total cumulative liability hereunder, from all causes of action of any kind, including without limitation contract, tort (including negligence), strict liability, breach of warranty, misrepresentation, or otherwise, exceed the total amount paid by Client to Cascade Conversion under this Agreement during the month prior to the filing of any such action. Both parties agree that Cascade Conversion exercises no control over, accepts no responsibility for, and is not liable for the acts or omissions of any third party, including without limitation any Lead, affiliates, publishers, or any third party.
7. Confidential Information
7.1 The parties acknowledge that in the course of fulfilling their obligations under this agreement, Client may have access to certain confidential information of Cascade Conversion (“Confidential Information”), which may include but is not limited to: 1) the methods, business partners, advertising sources and pricing, and affiliates used by Cascade Conversion to perform its obligations pursuant to this Agreement; and 2) Cascade Conversion’s business plans and marketing plans, financial information; and 3) all such other information that is the exclusive property of Cascade Conversion and which, if disclosed, could cause harm to Cascade Conversion.
7.2 Confidential Information does not include any information that Client possessed before receiving it from Cascade Conversion, information published or available to the general public otherwise than through a breach of this Agreement, or information obtained by Client from a third party having a valid right to disclose it to the receiving party.
7.3 Client hereby represents and warrants that it shall not, for any reason or under any circumstance at any time, directly or indirectly use, convert, apply, appropriate, employ, alter, transform, assign, put into operation or otherwise use any of the Confidential Information, in whole or in part, for any purposes whatsoever, other than as expressly permitted herein. Client acknowledges any such action is in contravention to this Agreement and is strictly prohibited.
7.4 A breach of this section will cause Cascade Conversion irreparable harm and shall entitle Cascade Conversion to immediate injunctive relief, in addition to an award of damages. But for Client’s willingness to agree to this section, Cascade Conversion would not have entered into this Agreement with Client.
8. Client warrants and represents that it shall strictly comply with all applicable laws, rules, and regulations, including but not limited to all laws, rules, and regulations governing marketing (this includes without limitation the Federal Trade Commission’s Telemarketing Sales Rule and Federal Communications Commission’s Telephone Consumer Protection Act). Client also represents and warrants that Client shall maintain a privacy policy that complies with all applicable law on Client’s website. If Client obtains a sample privacy policy from Cascade Conversion, Client represents and warrants that it is receiving the sample privacy policy “as-is,” without any warranty, that Client will have the sample privacy policy reviewed and revised by competent legal counsel prior to posting, and that Client solely assumes all responsibility for the Privacy Policy.
9. Termination
9.1 Either party may terminate this Agreement by providing written notice. If Client terminates this Agreement, no refund shall be due or owing.
9.2 If Cascade Conversion terminates this agreement without cause, Cascade Conversion shall refund a pro-rated portion of the Payment based upon the amount of work done prior to termination. Cascade Conversion may terminate this Agreement for cause if it learns of, or has good reason to suspect that, Client has breached any material provision or express warranty in this Agreement. Subsequent to such termination for cause: 1) Cascade Conversion shall incur no liability or further obligation to Client; and 2) Cascade Conversion may share all information about Client with any law enforcement agency, government agency, individual, or entity claiming to have been harmed by any such breach.
10. Each party represents and warrants that execution and performance of this Agreement shall not violate any agreement to which such party bound, any applicable governmental law or regulation to which it is subject, or any intellectual property or other third party right.
11. Client will indemnify and hold Cascade Conversion harmless from any and all actions, claims, demands, proceedings, liabilities, damages, judgements, settlements, fines, penalties, costs, and expenses that arise from or are related to a breach by Client of any of the warranties, covenants, terms, or conditions of this Agreement.
12. The failure of either party to insist upon or enforce performance by the other party of any provision of this Agreement or to exercise any right under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party’s right to assert or rely upon any such provision or right in that or any other instance; rather the same will be and remain in full force and effect.
13. Neither party shall be held responsible for any delay or failure in performance of this Agreement caused by fire, hurricane, tornado, earthquake, tidal wave, meteor strikes, civil war, Internet brown-outs or black-outs, computer hacking, or acts of terrorists (“Force Majuere”) if the effects of such Force Majuere could not have been avoided through the application of reasonable foresight or diligent effort. Notwithstanding the foregoing, a shortage of funds is never an event of Force Majuere.
14. Nothing contained herein shall in any way be construed to interpret this Agreement as creating a partnership, joint venture, employment, or franchise relationship between the parties hereto. It is expressly agreed that the parties are acting hereunder as independent contractors and under no circumstances shall any of the employees of one party be deemed the employees of the other for any purpose. This Agreement shall not be construed as authority for either party to act for the other party in any agency or other capacity, or to make commitments of any kind for the account of or on behalf of the other except to the extent and for the purposes expressly provided for herein. In this regard, neither party shall hold itself out contrary to the terms of this provision, and neither party shall become liable for the representation, act or omission of the other contrary to the provisions hereof.
15. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. The parties hereby agree to submit to the exclusive jurisdiction of the federal or state courts of the State of Washington for all disputes arise under or relate to this Agreement. Client consents to accepting service of process by email at the address that Cascade Conversion uses to communicate with the individual executing this Agreement.
16. This Agreement (which includes the Advertising Services Agreement and Cascade Conversion Standard Terms & Conditions) is the complete agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior agreements, communications, and understandings (both written and oral) regarding such subject matter. The terms and conditions of this Agreement will prevail over any contrary or inconsistent terms in any other writing. This Agreement may only be modified by a written document executed by both parties. This Agreement was prepared jointly by both parties or their attorneys. The terms of the Agreement are not to be strictly construed against either party.
17. This Agreement may be executed in counterparts, each of which will be deemed to be an original and all of which together constitute one and the same instrument. A party may delivery an executed copy of this Agreement by email or other means of electronic communication capable of producing a printed copy.
18. Client agrees to pay all costs, interest, and reasonable attorney’s fees incurred by Cascade Conversion or Cascade Conversion’s assignee in collecting any amounts due hereunder.
