WALK YOUR PLANS LLC
STANDARD TERMS & CONDITIONS OF SERVICE
ALL SERVICE AGREEMENTS ARE GOVERNED BY WALK YOUR PLANS LLC'S STANDARD TERMS & CONDITIONS OF SERVICE. ANY PROPOSAL THAT INCLUDES DIFFERENT OR ADDITIONAL TERMS OR CONDITIONS THAT VARY FROM WALK YOUR PLANS LLC'S STANDARD TERMS & CONDITIONS OF SERVICE ARE OBJECTED TO AND DISALLOWED. NOTWITHSTANDING THE FOREGOING, ANY SUCH COUNTERPROPOSALS BY CLIENT SHALL NOT OPERATE AS A REJECTION OF THE SERVICE AGREEMENT, BUT AS A REJECTION OF THE ADDITIONAL OR DIFFERENT TERM(S) OR CONDITION(S).
(a) Walk Your Plans LLC, an Ohio limited liability company ("WYP"), shall provide to the client ("Client") access to WYP's projection surface (the "Service") located at 17415 Northwood Avenue, Suite 203, Lakewood, Ohio 44107 (the "Projection Space") as designated on the corresponding Service Agreement (which, together with these Standard Terms & Conditions of Service, is herein collectively called the "Agreement"). During the term of the Agreement, as described in Section 3(a) below, the Service may be modified and/or expanded from time to time as mutually agreed upon by both WYP and Client (herein collectively called the "Parties" and individually, a "Party").
(b) In connection with the Service, WYP offers three (3) packages (collectively, the "Membership Packages" or singly, a "Membership Package") that allow for an allotted amount of time to use the Projection Space. By executing the Service Agreement, Client is bound to purchase one (1) of the Membership Packages. The Membership Package to be purchased may be mutually agreed upon by WYP and Client at a later time after the effective date of the Service Agreement.
(a) As full consideration for the Membership Package, Client shall pay WYP a fee (the "Fee") in the amount specified for the accompanying Membership Package as referenced in Section 2(a)(i)-(iii) in the Service Agreement.
(b) Client shall be responsible for all costs and expenses, including without limitation legal fees, with respect to the collection of any outstanding balances contemplated by this Section 2. WYP reserves the right to cancel the rendering of any future Service if any past-due invoice is not paid in full.
3. Term and Termination.
(a) The term of the Agreement shall commence upon the effective date indicated on the Service Agreement and shall remain effective until the Service to be provided under the accompanying Membership Package is completed, except as otherwise provided herein.
(b) Subject to Section 3(c) below, the Agreement may be terminated at any time by either Party effective immediately upon written notice, or the mutual agreement of the Parties, or if any Party: (a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or (b) breaches any of its material responsibilities or obligations under the Agreement, which breach is not remedied within ten (10) days from receipt of written notice by the non-breaching Party of such breach.
(c) WYP may terminate the Agreement at any time with or without cause by giving Client thirty (30) days prior written notice.
(d) Termination of the Agreement for any reason shall not discharge either WYP or Client's liability for obligations incurred hereunder and amounts unpaid at the time of such termination. Client shall pay WYP for the Service rendered under the accompanying Membership Package prior to the effective date of termination.
4. Damage to Projection Space. Client shall pay for the cost of any repairs or damage to the Projection Space resulting from the negligence or the unlawful or willful acts of Client or its employees, representatives, customers, agents, officers, directors, shareholders, members, managers, partners, owners, or visitors immediately upon receipt of invoice therefor.
5. Proprietary Information. All information provided by WYP during the course of its relationship with Client should be considered confidential and proprietary, and Client agrees it will not misappropriate or disseminate to any third party any of WYP's trade secrets (as such may be defined by Ohio law), business processes, publications (current and prospective), best practices, or any other information which Client has acquired or may acquire via the rendering of Service under the Agreement or otherwise, unless such information shall become public knowledge as a result of some action other than Client's breach hereof.
(a) Client agrees to indemnify, save, defend, and hold WYP harmless from and against any and all actions, causes of actions, liability, damage, penalties, costs, expenses and judgments (including, but not limited to, court costs and attorneys' fees) arising from injury to one or more persons or property sustained by anyone in and about the Projection Space, resulting from any acts or omissions of Client or Client's owners, officers, agents, employees, contractors, or customer, or arising out of any breach of Client's responsibilities or obligations, representations, or warranties under the Agreement. Not in limitation of the foregoing, Client shall defend, indemnify, and save WYP harmless from and against any all actions, causes of action, claims, demands, liabilities, costs, expenses, fines, or penalties due to any act or omission of Client or any owner, officer, agent, employee, contractor, or customer of Client or with respect to any noncompliance with or violation of any Federal, State or local law.
(b) The obligation to indemnify under this Section 6 is contingent upon: (i) WYP promptly notifying Client in writing of any claim subject to such indemnity obligation; (ii) Client having sole control over the defense and settlement of the claim; (iii) WYP reasonably cooperating during defense and settlement efforts; (iv) the claim not arising, in whole or in part, out of the action or inaction of WYP; and (v) WYP not making any admission, concession, consent judgment, default judgment, or settlement of the claim or any part thereof. Client will reimburse the reasonable out-of-pocket expenses incurred by WYP in providing such cooperation.
7. Limitation of Liability.
(a) In no event shall WYP be liable under the Agreement to Client for any incidental, consequential, indirect, statutory, special, exemplary, or punitive damages, including, but not limited to, lost profits, loss of use, loss of time, inconvenience, lost business opportunities, damage to good will or reputation, and costs of cover, regardless of whether such liability is based on breach of contract, tort, strict liability or otherwise, and even if advised of the possibility of such damages or such damages could have been reasonably foreseen. WYP's entire aggregate liability for any claims relating to the Service or the Agreement shall not exceed the Fees paid or payable by Client to WYP under the Agreement in the twelve (12)-month period immediately preceding the event(s) giving rise to such liability. This Section 7 shall survive the termination of the Agreement. No action shall be brought for any claim relating to or arising out of the Agreement more than one (1) year after the accrual of such cause of action, except for money due on an open account.
(b) Except for intentional, malicious torts and not in limitation of any other limitations or exculpations of liability of WYP set forth in this Section 7, WYP shall not be responsible or liable for any damage, loss, theft, or injury to or of any property or to any person or persons, at any time at the Projection Space, including any damage or injury to Client or to any of Client's owners, officers, agents, employees, contractors, or customers.
8. Compliance With Laws. Client shall at all times comply with all Federal, State and local laws, statutes, ordinances, rules, regulations, and requirements and the orders of all duly authorized governmental officials with respect to the use of the Services and/or Projection Space, and Client shall cause the Services and/or Projection Space to conform to such governmental requirements at all times.
(a) The Agreement is intended to create a contractual arrangement between the Parties whereby WYP provides the Service to Client as an independent contractor. Therefore, the Agreement (and any provisions contained therein) shall not be deemed or construed to create an agency, partnership, fiduciary, employment, or any other relationship between WYP and Client.
(b) The Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof. All prior or contemporaneous oral or other written agreements, negotiations, representations, and arrangements regarding the subject matter hereof are hereby merged into and superseded by the Agreement.
(c) All provisions of the Agreement are severable and neither the Agreement nor any provision contained therein shall be affected by the invalidity or inapplicability of any other provision of the Agreement.
(d) The Agreement may be amended, altered, or changed only by a written document signed by both Parties and clearly designated as an amendment to the Agreement.
(e) These Standard Terms & Conditions of Service may be amended, altered, or changed at any time upon written notice to Client. Such written notice to Client may be sent via email with the modified terms and conditions of service. Client's continued use of Service after the date that notice is sent shall constitute an acceptance of any such modified terms.
(f) No course of dealing between the Parties, no waiver by WYP, and no refusal or neglect of WYP to exercise any right hereunder or to enforce compliance with the terms and conditions of the Agreement shall constitute a waiver of any provision contained therein, unless such waiver is expressed in writing by WYP and is clearly designated as a waiver to a specific provision(s) of the Agreement.
(g) In the event of a dispute regarding the Service or any terms or conditions of the Agreement, each Party agrees to provide written notice to the other Party of any perceived breach and to work in good faith to achieve a mutually satisfactory resolution prior to filing any suit or engaging in litigation of any sort.
(h) The Agreement is not transferable by either Party without the prior written consent of the other Party, except that WYP may assign the Agreement without Client's consent if the assignment is to an affiliate of WYP or if the assignment is carried out as part of a merger, restructuring, reorganization, sale, or transfer of all or substantially all of WYP's assets.
(i) Neither WYP nor Client shall be liable for any failure or delay in the performance of such Party's obligations under the Agreement if such failure or delay is on account of causes beyond the Party's reasonable control, including civil commotion, war, fires, floods, accident, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, pandemics, epidemics, local disease outbreaks, public health emergencies, governmental regulations or controls, casualty, strikes or labor disputes, terrorism, acts of God, or other similar or different occurrences beyond the reasonable control of either WYP or Client so defaulting or delaying in the performance of the Agreement, for so long as such force majeure event is in effect. Each of WYP and Client shall use reasonable efforts to notify the other Party of the occurrence of such an event within five (5) business days of its occurrence. Should WYP or Client experience a force majeure event, it shall take reasonable measures to mitigate any impact that such event has on its performance of the Agreement, and shall take all reasonable steps to perform despite such event.
10. Jurisdiction and Venue. Ohio's laws shall govern all disputes, controversies and litigation arising under the Agreement. For all disputes, controversies, and litigation arising under the Agreement, WYP and Client hereby (jointly and individually) submit to the personal jurisdiction of the State Courts of Cuyahoga County, Ohio.