Terms of Service
CLIENT AGREEMENT FOR SERVICES FROM JV INNOVATIONS, LLC d/b/a AUDIOLOGY PLUS
This Agreement for Services (the “Agreement”) is entered into between AudiologyPlus, LLC (“Developer”), a New Jersey domestic limited liability company and the entity or individual agreeing to the terms herein (“Client”). This Agreement is effective as of the date the Client clicks the “Agree and Confirm” button below (the “Effective Date”). By accepting this Agreement, you confirm that you are the Client, or that you have the authority to bind the Client. If you do not have legal authority to bind the client, please do not click the “Accept and Confirm” button.
By agreeing, the Client further acknowledges that Client has chosen one of the following program levels under which Services shall be provided: Silver, Gold or Platinum. Unless modified by the terms of the individual plan choices, the terms of this Agreement shall govern.
The Client acknowledges that Client may not purchase services from Developer if the Client is a direct competitor, except with Developer’s prior written consent. In addition, the Client may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. The Client represents that he or the person entering into this Agreement on behalf of Client is at least 18 years or older.
EFFECTIVE DATE AND TERM. This Agreement is made effective as of the Effective Date and will remain in effect for the duration of the chosen Program’s term; at the end of the Program’s respective term, the Agreement shall be in effect on a month-to-month basis and shall continue until terminated by either Party pursuant to this Agreement.
SERVICES AND SCOPE. For the duration of the Term of this Agreement, Developer will provide Services to Client pursuant to this Agreement and the Program selected by Client. Developer’s services shall be limited to those specified under this Agreement and in the Program. All other services are excluded and will not be provided unless specifically agreed to by the Parties in a written agreement executed by both Parties.
CHARGES AND PAYMENT. By agreeing to a Program, the Program’s payment terms shall apply.
The Client agrees to pay any additional fees and costs applicable to the Program, as they may come due on a continuing basis as agreed by the Parties. If there is no objection to invoices, charges or bills received by the Client within 15 days of receipt, Client shall be deemed to accept the validity of such invoices, charges or bills.
Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder. All payments are due on receipt by Client. If payment is not received on the Due Date, Developer shall have the right, in its sole discretion to suspend services and/or terminate the Agreement without notice and all remedies shall be available at law or in equity to Developer.
PAYMENT INFORMATION. Client acknowledges the importance of keeping contact information, billing information and credit card information (where applicable) up to date. All payment obligations are non-cancelable and all amounts paid are non-refundable once received by Developer. In the event a payment fails to process, is returned or rejected, Developer shall have the right to charge a $50.00 cancelled transaction fee. Any bank transaction fees, “cancelled check” fees or fees otherwise charged to Developer shall be added to Client’s balance as immediately due and payable.
- The Client acknowledges that Client’s full and timely cooperation is necessary for successful implementation of Developer’s services; and
- Client shall provide Developer with access to, use of, and all information, data and documentation reasonably required by the Developer for performance of Developer’s services. In the event that the Client does not provide reasonable response to Developer’s requests for information, the Developer shall have the right to suspend or terminate services without refund of Client’s payments; and
- All fees, services, documentations, recommendations and reports shared by Developer with the Client are confidential. The confidentiality of such information shall survive the termination of services, the subscription and this Agreement; and
- All fees are non-refundable once paid to Developer. The Client further agrees that it is Client’s material obligation to pay all fees when due; and
- The Client is responsible for the accuracy and completeness of the materials provided by the Client. The Developer shall not be responsible for any delays or defects in work product due to incorrect or inaccurate information provided by the Client; and
- The Client acknowledges that the Developer has no control over the policies of search engines with respect to the type of sites and/or content that they accept now or in the future. The Client’s website may be excluded from any directory or search engine at any time at the sole discretion of the search engine or directory; and
- The Client acknowledges that due to the competitiveness of certain keywords/phrases, ongoing changes in search engine ranking algorithms, and other competitive factors, the Developer cannot guarantee any particular position(s) of any particular keyword(s), phrase(s) or search terms in search engine results; and
- The Client represents that it has all necessary copyright, trademark and intellectual property rights to use, publish and share any and all text, images, and material (the “Content”) shared with Developer during the course of the Program. In the event the Client or the Content shared with Developer becomes the subject of any case, claim or allegation concerning its use, publication, sharing or dissemination, Client shall immediately notify Developer in writing and Client shall immediately assume all responsibility to defend, indemnify and hold harmless developer from the same, in addition to any other indemnification obligations set forth under this Agreement.
THIRD-PARTY SITES AND PRODUCTS. Third party sites, products and services are not under Developer’s control. Any third-party sites, products or services provided to you or utilized for the purposes of fulfilling the Developer’s services are only provided for convenience. The availability of such third-party sites, products or services does not mean Developer endorses, supports or warrants the functionality, reliability, purpose, content or availability of such third-party sites, products or services.
Client authorizes Developer to bill any Third-Party charges directly to the credit card or bank account on file with Developer. Client shall hold Developer harmless and defend and indemnify Developer against any claims that arise with regard to the use of or charges for the products or services provided to Client in connection with the services contracted for by Client.
WARRANTIES. Each of the parties warrants to the other that it has full power and authority to enter into and perform this Agreement. The Developer shall perform the services set forth herein with reasonable care and skill. The warranty shall not apply to the extent that any failure of the program is caused by any materials provided by the Client, in the form provided by the Client. Unless otherwise provided in writing, Developer’s work is accepted AS IS, without any warranties or guarantees of any kind.
LIMITATIONS OF REMEDIES AND LIABILITY. In no event shall either party be liable to the other party, to the other party’s sub-contractors or agents, or to any third party for any loss of use, revenue or profit [or loss of data or diminution in value], or for any consequential, incidental, indirect, exemplary, special or punitive damages whether arising out of breach of contract, tort (including negligence) or otherwise, regardless of whether such damages were foreseeable and whether or not a party has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose. In no event shall either party’s aggregate liability arising out of or related to this Agreement, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed the amounts paid or payable to Developer pursuant to this Agreement. Notwithstanding the foregoing, this paragraph shall not apply to Client’s confidentiality and indemnification obligations set forth in this Agreement.
INTELLECTUAL PROPERTY RIGHTS. All Intellectual Property Rights, including design files, content, logos, UI elements and functionalities, applications, but excluding Client provided content and materials, arising in connection with this Agreement shall be the sole property of the Developer (the “Developer Intellectual Property Rights”). The Developer hereby grants the Client a non-exclusive perpetual, irrevocable, transferable license to such Developer Intellectual Property Rights for the purpose of utilizing the Program. The Client shall indemnify the Developer against all damages, losses and expenses arising as a result of any action or claim that materials provided by the Client, in the form provided by the Client, infringe the intellectual property rights of a third party. The Developer shall indemnify the Client against all damages, losses and expenses arising as a result of any action or claim that the Developer Intellectual Property Rights infringe on the intellectual property rights of a third party.
DATA PROTECTION. The Developer warrants that, to the extent it processes any personally identifiable data (“Personal Data”) on behalf of the Client:
- It shall act only on instructions from the Client; and
- It has in place appropriate technical and organizational security measures against unauthorized or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data; and
- Client shall take all reasonable measures to protect data and information subject to HIPPA regulations and shall indemnify, defend and hold harmless Developer from any such information knowingly or inadvertently shared by Client in violation of applicable law.
AD CONTENT. If the selected Program includes the Development of Ads by Developer as an included service, Developer shall update the Ads with materials provided from time to time by the Client. The ability to make any of the requested changes is at the sole discretion of the Developer and the Client may incur additional costs for work performed. Client will be notified of additional fees and costs before said fee or cost is incurred and will have the right to decline the service. The Client shall ensure that the materials do not infringe any applicable laws, regulations or third-party rights including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third-party Intellectual Property Rights (“Inappropriate Content”). The Client shall indemnify the Developer against all damages, losses and expenses arising as a result of any third-party action or claim that the materials constitute Inappropriate Content. The Developer may include the statement “Powered by AudiologyPlus” on the footer of the Ads in a form of their choosing.
WEB HOSTING OF ADS. If Developer is engaged to host Ads, all Ads shall be hosted on a service of Developer’s choosing in Developer’s sole discretion and Developer shall maintain full access to the Ads.
HOSTING OF WEBSITES. If Developer is engaged to host websites, websites shall be hosted on a service of Developer’s choosing in Developer’s sole discretion and Developer shall maintain full access to the web site and hosting service.
DEVELOPMENT AND ACCEPTANCE OF ADS. If the selected Ad Program includes the Development of Ads by Developer as an included service, the Developer shall engage in the design and development of the ads upon Client approval of the Project Proposal, initial build payment, and signature of this document. The Developer will provide a maximum of three (3) design iterations to Client in development of the Ads. Throughout the construction of the Ads, they shall not be accessible to Client except through updates provided by Developer. Until Client has approved the Ads, none will be accessible to end users. Approval of the Ads shall be deemed to have taken place upon the occurrence of any of the following events:
- The Client approves the Ads for launch; or
- The Client uses any part of the Ads for any purposes or to provide any services to third parties other than for test purposes; or
- Fails to accept or reject the final Ads within 60 days or the Developer’s delivery of the Ads to the Client.
RESTRICTIONS ON RIGHTS TO USE DEVELOPER-CREATED CONTENT/DEVELOPER-CREATED WEB SITES. Without limiting the generality of any other provisions of this Agreement, Client shall not (and not allow any other individual or entity to):
- Download, modify, reproduce, adapt, translate, reverse engineer, create derivative works based upon, publicly display, sell, rent, license, or in any way commercially exploit any portion of the Sites, except and to the extent expressly permitted under this Agreement;
- Remove any copyright, trademark or other proprietary rights notice contained in or on the Sites;
- Use any robot, spider, site search/retrieval application, or other device to retrieve or index any portion of the Sites;
- Reformat or frame any portion of any Web pages that are part of the Sites;
- Create or transmit to other Users unsolicited electronic communications, such as “spam,” or otherwise interfere with other Users’ enjoyment of the Sites;
- Submit to the Sites any content that falsely states or implies that such content is sponsored or endorsed by us;
- Transmit or upload to the Sites any item containing or embodying any virus, worm, defect, Trojan horse, software bomb or other feature designed to damage or degrade in any manner the performance of the Sites, any other Web site, or any computer or other device or system, or the enjoyment of the Sites by any User;
- Use the Sites to violate the security of or gain unauthorized access to any computer or computer network or other device or system (including unauthorized attempts to discover passwords or security encryption codes);
- Copy or store any User Content offered on the Sites other than for your personal use;
- Take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on the Sites or the IT infrastructure used to operate and make the Sites available;
- Use the Sites and/ or any User Content, intentionally or unintentionally, to violate any applicable local, state, federal or international law.
Any violation of this section shall be a material violation of the Agreement, and Developer shall have the right to terminate the Agreement immediately, with reservation of Developer’s rights and remedies available in law and in equity.
INDEMNIFICATION. To the greatest extent permitted by law, Client agrees to defend, indemnify and hold harmless the Developer against all third-party claims, allegations or damages arising out of Developer’s Services and this Agreement, whether caused by the acts or omissions of Client, including but not limited to the sole negligence of the Client.
TERMINATION. Either party shall have the right to terminate this Agreement upon thirty (30) days’ written notice to the other. The Developer may terminate this Agreement without notice if the Client fails to make any payments. In the event of termination, the Client shall remain responsible for any and all payments due up through the effective date of termination.
CONFIDENTIALITY. Each party shall protect the non-public, proprietary and/or confidential information (“Confidential Information”) of the other party against unauthorized disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care. Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received. The terms and conditions of this Agreement are confidential between the parties and shall not be disclosed to anyone else as shall be necessary to effectuate its terms. Any disclosure in violation of this section shall be deemed a material breach of this Agreement.
PUBLICITY. Client grants Developer the right to add Client’s name and company logo to Developer’s customer list and website. If Client wishes for Developer to remove references to Client’s name or logo, Client must inform Developer in writing of this request.
NOTICES. All notice given under this agreement shall be in writing in the English language and sent as follows
(A) to Client: to the addresses or emails provided by the Client;
(B) to Developer: AudiologyPlus PO Box 8027 Bridgewater, NJ 08807 and [email protected]
ASSIGNMENT. Except as expressly set forth herein, the Client may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights or obligations under this Agreement without the prior written consent of the Developer, which may be provided in Developer’s sole discretion.
NO THIRD-PARTY BENEFICIARIES. This agreement is intended solely for the benefit of Client and Developer. Any party, entity or individual not a party to this Agreement may bring a cause of action pursuant to this Agreement as a third-party beneficiary hereof.
ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
SEVERANCE. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the extent necessary to make it valid, legal, and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement. If any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
GOVERNING LAW. This agreement and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with the law of the state of New Jersey. Each party irrevocably agrees that the courts in New Jersey shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
ATTORNEY FEES. In the event of any action to enforce rights under this Agreement, the prevailing party shall be entitled to recover its reasonable attorney fees, costs and expenses incurred.