THE TERMS OF SERVICE AGREEMENT (this “Agreement” or “Contract”) is an agreement between DIY Smart Marketing, a division of New-Ride Enterprises Inc. (“New Ride,” “DIY Marketing,” “we,” “us,” or “our”) and each end-user client account or reseller (“Client,” “Customer,” or “You”). It contains the terms and conditions that govern the access and use of this Website, our DIY Smart Marketing Platform, and related Marketing Productions Services (the “Services”) as defined below in the Order. Your use of, and participation in, certain Services offered by DIY Smart Marketing may be subject to additional terms incorporated herein or included in your Order.
This Agreement takes effect when you clicked- through or provided written approval during the process of purchasing any Services directly on our website, by Statement of Work, by email, or through a reseller (an “Order”). Your use of, and participation in, certain Services offered by DIY Smart Marketing may be subject to additional terms incorporated herein or at the time of placing your Order.
Delivery of Services
DIY Smart Marketing and Customer agree to cooperate in good faith to achieve satisfactory completion of services documented in the Order, in a timely and professional manner.
DIY Smart Marketing and Customer will each designate a representative to interface and facilitate the successful completion of the Order. Any Subcontractor (defined below) designated by DIY Smart Marketing to perform any portion of the Order will designate a representative to interface with Customer and DIY Smart Marketing on all matters relating to Subcontractor’s performance of the Order.
DIY Smart Marketing will perform the Order, directly or through a Subcontractor(s) of its choice. Customer agrees to provide, at no cost to DIY Smart Marketing, timely and adequate assistance and other resources reasonably requested by DIY Smart Marketing to enable the performance of the Order (collectively, “Assistance”). Neither DIY Smart Marketing, nor its Subcontractor(s) will be liable for any deficiency in performance of the Order to the extent resulting from any acts or omissions of Customer, including but not limited to, Customer’s failure to provide Assistance as required hereunder.
In performing the Consulting Services, DIY Smart Marketing will provide such resources, and utilize Subcontractor(s) as it deems necessary to perform the Consulting Services or any portion thereof. Customer may object to DIY Smart Marketing’s’ election of Subcontractor(s) by specifying its objection to DIY Smart Marketing, in which case DIY Smart Marketing will cooperate in good faith to appoint another Subcontractor(s) to perform such Services. DIY Smart Marketing may replace Subcontractor(s) in its normal course of business, provided that DIY Smart Marketing will be responsible for the performance of the Order by all Subcontractor(s).
DIY Smart Marketing will control the method and manner of performing all work necessary for completion of the Order, including but not limited to the supervision and control of any Subcontractor(s). DIY Smart Marketing will maintain such number of qualified Subcontractor(s) and appropriate facilities and other resources sufficient to perform DIY Smart Marketing obligations under the Agreement.
Customer agrees to reimburse DIY Smart Marketing for all actual reasonable and necessary expenditures, which are directly related to the Order. These expenditures include, but are not limited to, expenses related to travel (i.e., airfare, hotel, temporary housing, meals, parking, taxis, mileage, etc.), telephone calls, and postal expenditures. Expenses incurred by DIY Smart Marketing will be reimbursed by the Customer within fifteen (15) days of DIY Smart Marketing’s proper written request for reimbursement. All expenditures shall be preapproved by the Customer.
The result of any and all deliverables agreed upon in the Order by DIY Smart Marketing and Customer, including original work (with the exception of clearly marked documents created by DIY Smart Marketing independently of Customer), will remain the property of Customer. Customer may use this material in any way deemed appropriate. DIY Smart Marketing shall not publish or otherwise distribute any written materials (including any public website content) referencing Customer without the express prior written consent of the Customer.
Customer shall not publish or otherwise distribute any written materials (including any public website content) referencing DIY Smart Marketing or its’ Subcontractor(s) without the express prior written consent of DIY Smart Marketing.
Payment Terms
Payment Information. DIY Smart Marketing will keep your company contact information (where applicable) up to date. Changes to your company contact information may be made in the DIY Smart Marketing portal. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Term or as specified in the Contract. If you are a reseller that purchases on behalf of an end-user client, you agree to be responsible for the Contract and to guarantee payment of all fees.
Payment Against Invoice. All invoices shall be available in your DIY Smart Marketing account on, or around, the first of each month. All invoices shall be due and payable within 15 business days of the receipt of the invoice.
Payment By Credit Card. If you are paying by credit card, you authorize us to charge your credit card for all fees payable during the Term or Order specified in the Contract. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
Early Termination. The Term or Order will end on the expiration date detailed in the Contract. This Agreement may be terminated for any or no reason on thirty (30) days’ written notice by either the Customer or DIY Smart Marketing. The Termination Date shall be the thirtieth (30th) day following the day notice to the other party is deemed to have been given. If any part of your payments are due or past due, they are still deemed due and payable.
Refunds. DIY Smart Marketing does not provide refunds if Customer decides to stop using the Services during the current Term or Order.
Confidentiality
For the purposes of this Agreement, “Confidential Information” means all information disclosed by DIY Smart Marketing to Customer or by Customer to DIY Smart Marketing which is in tangible form and labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving party at the time of disclosure by the disclosing party; (b) was or is obtained by the receiving party by a third party not known by the receiving party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of these terms; (d) was or is independently developed by the receiving party without use of the disclosing party’s Confidential Information.
Subject to the express permissions of this Agreement, DIY Smart Marketing and Customer will protect each other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, each party may use the other party’s Confidential Information solely to exercise its respective rights and perform its respective obligations under this Agreement and shall disclose such Confidential Information solely to those of its Subcontractors who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information.
Notwithstanding the foregoing, this Agreement shall not prevent the party receiving Confidential Information from disclosing such Confidential Information to the extent required by a judicial order or other legal obligation, provided that, in such event, the receiving party shall promptly notify the disclosing party of such requirement to allow intervention (and shall cooperate with the disclosing party at the disclosing party’s expense) to contest or minimize the scope of the disclosure (including application for a protective order).
The Parties acknowledge that any unpermitted disclosure of a party’s Confidential Information is likely to cause the disclosing party irreparable harm for which its remedies at law would be inadequate. Accordingly, each party (as the receiving party) acknowledges and agrees that the party disclosing Confidential Information will be entitled, in addition to any other remedies available to it at law or in equity, to the issuance of injunctive relief, without bond, enjoining any breach or threatened breach of the receiving party’s obligations hereunder with respect to the Confidential Information of the disclosing party, and such further relief as any court of competent jurisdiction may deem just and proper.
Upon termination of this Agreement or a request by a disclosing party, each party, as a receiving party of Confidential Information, will return to the disclosing party any and all copies of the material containing the other party’s Confidential Information, or any portion thereof, in the possession of the receiving party, except for the information necessary to implement the objectives of this Agreement after its termination.
Other Terms and Policies
INDEMNIFICATION
Customer agrees to indemnify, hold harmless, and at DIY Smart Marketing ‘s option defend DIY Smart Marketing and its officers, directors, employees, advisors, subsidiaries, affiliates and subcontractors from any and all claims and all related losses, liabilities, damages, costs and expenses (including, without limitation, reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties) arising from or related to: (a) any allegation that the Services: (i) violate or in any way infringe or misappropriate any third party’s patent, copyright, trademark, trade secret or other intellectual property right, (ii) violate any applicable law, rule or regulation, or (iii) constitute, or contain material that constitutes, libel, defamation or a violation of the right of privacy or publicity; and (b) any claim that is based, in whole or in part, on any act or omission of Customer (or any of Customer’s Personnel). These indemnification provisions shall be conditioned upon Customer not consenting to any judgment or decree or entering into any settlement of such action without DIY Smart Marketing’s prior written approval.
LIMITATION OF LIABILITY
In no event shall DIY Smart Marketing, nor its directors, employees, partners, agents, suppliers, affiliates or Subcontractors, be liable for any indirect, incidental, special, consequential or punitive damages, including without limitation, loss of profits, data, use, goodwill, or other intangible losses, resulting from (i) your access to or use of or inability to access or use the Service; (ii) any conduct or content of any third party on the Service; (iii) any content obtained from the Service; (iv) any security, data privacy, and accessibility compliance policies; and (v) unauthorized access, use or alteration of your transmissions or content, whether based on warranty, contract, tort (including negligence) or any other legal theory, whether or not we have been informed of the possibility of such damage, and even if a remedy set forth herein is found to have failed of its essential purpose.
DISCLAIMER
Your use of the Services is at your sole risk. The Services are provided on an “AS IS” and “AS AVAILABLE” basis. The Service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, non-infringement or course of performance.
DIY Smart Marketing its subsidiaries, affiliates, and its licensors do not warrant that a) the Services will function uninterrupted, secure or available at any particular time or location; b) any errors or defects will be corrected; c) the Service is free of viruses or other harmful components, or d) the results of using the Service will meet your requirements.
EXCLUSIONS
Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to you.
GOVERNING LAW
This Agreement shall be governed and construed in accordance with the laws of Colorado, United States, without regard to its conflict of law provisions. Our failure to enforce any right or provision of this Agreement will not be considered a waiver of those rights. If any provision of this Agreement held to be invalid or unenforceable by a court, the remaining provisions of this Agreement will remain in effect. This Agreement constitutes the terms and conditions between us regarding our Service, and supersede and replace any prior agreements we might have had between us regarding the Service.
NO EMPLOYMENT RELATIONSHIP
NOTWITHSTANDING ANY LANGUAGE IN THIS STATEMENT OF WORK TO THE CONTRARY, THE CUSTOMER AND SERVICE PROVIDER (“PARTY”) INTEND THAT THEIR RELATIONSHIP WILL BE ONLY AS SET FORTH IN THIS STATEMENT OF WORK. NEITHER PARTY NOR ANY EMPLOYEE, AGENT, OFFICER, OR INDEPENDENT CONTRACTOR OF OR RETAINED BY EITHER PARTY SHALL BE CONSIDERED AN AGENT, EMPLOYEE OR CO-JOINT VENTURER OF THE OTHER PARTY FOR ANY PURPOSE OR ENTITLED TO ANY OF THE BENEFITS THAT THE OTHER PARTY PROVIDES FOR ANY OF THE OTHER PARTY’S EMPLOYEES. FURTHERMORE, EACH PARTY ACKNOWLEDGES THAT IT SHALL BE RESPONSIBLE FOR ALL FEDERAL, STATE AND LOCAL TAXES FOR IT AND ITS EMPLOYEES AND REPORTS RELATIVE TO FEES UNDER THIS STATEMENT OF WORK AND EACH PARTY WILL INDEMNIFY AND HOLD THE OTHER PARTY HARMLESS FROM ANY FAILURE TO FILE NECESSARY REPORTS OR PAY SUCH TAXES.
AUTHORIZATION
BY ORDERING PRODUCTS AND SERVICES FROM DIY SMART MARKETING YOU AGREE TO THE STATEMENT OF WORK AND FEES LISTED IN THE ORDER AND THE TERMS DETAILED HEREIN.