BOLDER BRAND TERMS & CONDITIONS

THESE CONDITIONS OF BOLDER BRAND SERVICES (the Conditions) are an integrated agreement between Customer and Company consisting of these Conditions, the terms contained in the invoice issued by Company to Customer and referencing these Conditions (the Terms), any agreement(s) entered into between Customer and Company and any attachments, instructions or requirements appurtenant to any of the foregoing (each of the foregoing comprising this agreement and referred to herein as the Agreement). This Agreement is binding with respect to all business conducted between Customer and Company and applies to and controls all agreements related to the provision of services by Company to Customer.

1. Definitions. Any capitalized term used in this Agreement but not otherwise defined shall have the meaning set forth below:

1.1.  “Company” means Bolder Brand, LLC., a Georgia corporation.

1.2.  “Confidential Information” means confidential, proprietary or non-public information regarding the Company or its business, whether or not reduced to writing or marked as confidential, proprietary or non-public. Confidential Information shall specifically include any and all information as to the Company’s proprietary designs, products and services, any portion thereof and any improvements, innovations, additions, accretions, changes, alterations or modifications thereto of any kind or nature whatsoever. Confidential Information also includes, but is not limited to, the following types of information and other information of a similar nature: works, discoveries, trade secrets, ideas, concepts, designs, personal contractual relationships, projects, courses of dealing, drawings, specifications, improvement, inventions, original works of authorship relating to the Company (including manuals), building and plan designs, techniques, models, data, documentation, diagrams, flow charts, research, development, processes, formulae, computer systems, data, algorithms, source codes, object codes, html codes and scripts, procedures, methodologies, “know-how,” marketing techniques and materials, marketing and development plans, actual and potential customer and vendor names and lists, lead lists, and other information related to customers and vendors, price lists, pricing policies, methods of conducting and obtaining business, and financial information. Confidential Information also includes any information described herein which the Company obtains from a third party and which the Company treats as proprietary or confidential, whether or not owned by or developed by the Company. Confidential Information shall not, however, include: (i) any information that is already in the possession of Customer at the time of disclosure by the Company by reasons unrelated to Customer’s relationship with the Company as shown by Customer’s files and records existing prior to the time of disclosure by the Company; (ii) any information that is independently developed by Customer outside the scope of and unrelated to Customer’s relationship with the Company and without reference to or reliance on any Confidential Information, as shown by Customer’s files and records prior to the time of disclosure by the Company; (iii) any information that is at any time provided to Customer by a third party without any breach of Customer’s obligations hereunder or any breach of such third party’s obligations to the Company or to any other party; or (iv) information and business relationships subsequently developed by Customer through Customer’s use of Data in accordance with the terms hereof.

1.3.  “Customer” means the Person that orders the Services and is responsible for the payment of fees under, and in compliance with, this Agreement.

1.4.  “Effective Date” means the day that is the earlier of Customer: (i) returning to the Company a signed copy of the Terms; or (ii) tendering payment to Company in accordance with the Terms.

1.5.  “Person” means any individual, corporation, limited liability company, trust, joint venture, association, company, limited or general partnership, unincorporated organization, governmental authority, or other entity.

2. Company Services. 

2.1. Company shall provide to customer such services as specified in the Terms (the “Services”).

Services: 

1. Quotes & Prices

1.1 All quotes/estimates are valid for 30 days from the date of submission unless otherwise indicated in writing.

1.2 Quotes/estimates are based on the information provided by the Client, including but not limited to detail on quantities, structure, scope and functionality. Any quote/estimate may therefore be subject to change should the client’s requirements change at any time.

1.3 Quotes/estimates are based on the Agency's current costs of production and unless otherwise agreed are subject to amendment on or at any time after acceptance to meet any rise or fall in such costs.

1.4 Any estimates given by The Agency as to the time of completion or performance of its services (whether completion of the whole or a part of those services) shall be estimates.

1.5 Any stated timescale is reliant upon the client providing all required information/copy/images within the time set out at project initiation.

2. Methods

2.1 The Agency reserves the right to sub-contract the fulfilment of an order or any part thereof.

2.2 Any images supplied electronically will be incorporated into designs without charge provided that they are of suitable quality. All images need to be supplied as EPS illustrator vectors for logos and Photoshop tiffs (300dpi min) for pictures. Any logos that need to be re-drawn will be charged extra at our hourly rate. All supplied images requiring scanning or alterations to be charged at £20 per image. Images sourced from external image libraries may incur additional licence/royalty charges payable by the Client.

2.3. Should the Client supply text, artwork or images, the Agency is not obliged to edit, check or guarantee the correctness thereof in any way whatsoever, and the end product shall be made at the entire risk of the Client.

2.4. The Agency shall be indemnified by the Client in respect of any claims, costs and expenses arising out of any libelous matter or any infringement of copyright, patent design or any other proprietary or personal rights contained in any material supplied by the Client. The indemnity shall extend to any amounts paid on a lawyer's advice in settlement of any claim.

2.5. Origination and/or conceptual work and any copyright subsisting therein shall remain the property of the Agency unless otherwise agreed in writing with the Client.

2.6. The Client’s property and property supplied to the Agency on behalf of the Client, while it is in the possession of the Agency or in transit to or from the Client, will be deemed to be at Client’s risk unless otherwise agreed and the Client should insure accordingly.

2.7. When required to expedite project delivery ahead of the time needed for proper production of a given deadline, the Agency shall not be liable for defects occasioned thereby. Should such delivery require payment of overtime wages, delivery charges or other additional costs, all such extras will be for the Client’s account.

2.8. The Agency shall not be required to use, print, upload or hold any matter which in its opinion is or may be of an illegal or libelous nature or an infringement of the proprietary or other rights of a third party.

3 Proofing

3.1. Proofs, pull samples, specimens, sketches, photographs, links or any representation, whether partial or total, of the finished article in whatever form may be submitted to the Client for approval.

3.2. After approval the Client shall have no claim against the Agency for errors in the exemplar as approved by them.

4 Insolvency

4.1. If the Client ceases to pay their debts in the ordinary course of business or cannot pay their debts as they become due or is deemed to be unable to pay its debts or have a winding-up petition issued against it or being a person who commits an act of bankruptcy or has a bankruptcy petition issued against him, the Agency without prejudice to other remedies shall:

4.2. Have the right not to proceed further with the contract or any other work for the Client and be entitled to charge for work already carried out (whether completed or not) and materials purchased for the Client. Such a charge be an immediate debt due to him.

4.3. In respect of all unpaid debts due from the Client have general lieu on all goods and property in its possession (whether worked on or not) and shall be entitled on the expiration of 14 days' notice to dispose of such goods or property in such manner and at such price as it thinks fit and to apply the proceeds towards such debts.

5 Force Majeure

5.1. The Agency shall be under no liability if it shall be unable to carry out any provision of the contract for any reason beyond its control including (without limiting the foregoing) Act of God, legislation, war, fire, flood, drought, failure of power supply, lock-out, strike or other action taken by employees in contemplation or furtherance of a dispute or owing to any inability to procure materials required for the performance of the contract. During the continuance of such a contingency the Client may by written notice to the Agency elect 'to terminate the contract and pay for work done and materials used', but subject thereto shall otherwise accept delivery when available.

6 Information Provided by You

6.1. You warrant that the name, address and payment information provided when you place your order with the Agency will be correct and you agree to notify the Agency of any changes in the name, address and/or payment details.

6.2. You warrant that you possess the legal right and ability to enter into this Agreement and to use the Agency's services in accordance with this Agreement.

7  Indemnity

7.1. You shall indemnify us and keep us indemnified and hold us harmless from all liabilities, actions, claims, proceedings, losses, expenses (including reasonable legal costs and expenses), costs and damages, howsoever suffered or incurred by us in consequences of your breach or non-observance of this Agreement, or arising out of claims based upon or relating to our work for you or any claim brought against us by a third party resulting from the provision of any Services to you and your use of them.

7.2. The Agency will notify you promptly of any claim for which the Agency seeks specific indemnification at the currently supplied address. The Agency will afford you the opportunity to participate in the defense of such claim, provided that your participation will not be conducted in a manner prejudicial to the Agency's interests, as reasonably determined by the Agency and/or its legal representatives.

8 Limitation of Liability

8.1. All conditions, terms, representations and warranties relating to the Services supplied under this Agreement, whether imposed by statute or operation of law or otherwise, that are not expressly stated in these terms and conditions including, without limitation, the implied warranty of satisfactory quality and fitness for a particular purpose are hereby excluded, are subject always to sub clause 1.9.2.

8.2. Nothing in these terms and conditions shall exclude our liability for death or personal injury resulting from our negligence.

8.3. In any event, no claim against the Agency shall be brought unless you have notified the Agency of the claim within one year of the issue arising.

8.4. In no event shall the Agency be liable to you by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, for any loss of business, contracts, anticipated savings or profits or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the Agency's negligence or the negligence of its servants or agents or otherwise) which arise out of or in connection with the provision of any goods or services by the Agency.

8.5. The Agency warrants that its services will be provided using reasonable care and skill. Where the Agency supplies any goods supplied by a third party, the Agency does not give any warranty, guarantee or other term as to their quality, fitness for purpose or otherwise, but shall, where possible, assign the benefit of any warranty, guarantee or indemnity given by the supplier of the goods to the Agency.

9 General Terms

9.1. These conditions and all other express terms of the contract shall be governed and constructed in accordance with the laws of the United States and the laws of the State of Georgia and you agree to the personal jurisdiction by and venue in the state and federal courts in Hall County, Georgia, and waive any objection to such jurisdiction or venue.

9.2. The Agency shall not be liable or deemed to be in breach of contract by reason of any delay in performing, or failure to perform, any of its obligations if the delay or failure was due to any cause beyond its reasonable control.

9.3. All quotes/estimates, briefs and other Client/Agency documents are commercially confidential and may not be disclosed to third parties without prior written agreement.

9.4. These terms and conditions, together with any documents expressly referred to in them, contain the entire Agreement between the Agency and the Client relating to the subject matter covered and supersede any previous agreements, arrangements, undertakings, proposals or contemporaneous communications, written or oral: between the Agency and the Client in relation to such matters. No oral explanation or oral information given by any party shall alter the interpretation of these terms and conditions. In agreeing to these terms and conditions, you confirm that you have not relied on any representation other than those expressly stated in these terms and conditions and you agree that you shall have no remedy in respect of any misrepresentation which has not been expressly made in this Agreement.

9.5. Any notice to be given by either party to the other may be sent by either email or post to the address of the other party as appearing in this Agreement or ancillary application forms or such other address as such party may from time to time have communicated to the other in writing, and if sent by email shall unless the contrary is proved, be deemed to be received on the day it was sent, or if sent by post shall be deemed to be served two days following the date of posting.

9.6. Headings, numbering and summaries are included in this Agreement for convenience only and shall not affect the construction or interpretation of this Agreement.

9.7. You acknowledge that no joint venture, partnership, employment, or agency relationship exists between you and the Agency as a result of your use of these services. You agree not to hold yourself out as a representative, agent or employee of the Agency. You agree that the Agency will not be liable by reason of any representation, act or omission to act by you.

9.8. The Agency reserves the right to revise, alter, modify or amend these terms and conditions, and any of our other policies and agreements at any time and in any manner without prior notification. Notice of any revision, amendment, or modification will be posted in accordance with our Terms and Conditions.

9.9. If any of the provisions of this Agreement are judged to be illegal or unenforceable, the remainder shall continue in full force and the effect of the remainder of them will not be deemed to be prejudiced.

9.10. This Agreement takes effect on the date on which you order our services. Acceptance of these terms is an absolute condition of the Client requesting work. An order constitutes acceptance of all our Terms and Conditions.

9.11. You shall not assign this Agreement or any benefits or interests arising under this Agreement without the Agency’s prior written permission.

10 Print Terms & Conditions

10.1 Proofing

10.1.1. After initial design and layout, a mono proof will be submitted for author’s corrections to be identified. These corrections will be carried out inclusive of the quoted price. On approval of a second mono proof, again inclusive of the quoted price, the design will be classed as complete, where a final color proof will be provided for full Client sign off.  

10.2 Print

10.2.1. Standing matter and printers’ materials of any kind are effaced or disposed of immediately after the order is executed unless written arrangements are made for retention in advance.

10.2.2. The Agency shall not be required to work to tolerances closer than those applicable to the materials obtained  in the ordinary course of trade. No liability shall arise from variation in the standard, quality and performance of such materials.

10.2.3. Every endeavor will be made to deliver the correct quantity ordered 

10.3 Materials supplied by the Client

10.3.1. The Agency will not be responsible for imperfect work caused by defects in or unsuitability of material and equipment supplied by the Client. The Agency will not be responsible for Client’s material wasted in course of production. Extra costs incurred through the use of defective materials or equipment supplied are for the Client’s account.

10.3.2. The Agency may reject any paper, plates or other materials supplied or specified by the Client which appear to them to be unsuitable. Additional cost incurred if materials are found to be unsuitable during production may be charged except that if the whole or any part of such additional cost could have been avoided but for unreasonable delay by the Agency in ascertaining the unsuitability of the materials then that amount shall not be charged to the Client.

10.3.3. Quantities of materials supplied by the Client shall be adequate to cover normal spoilage.

10.4 Machine Readable Codes

10.4.1. In the case of machine readable codes or symbols, the Agency shall print the same as specified or approved by the Client in accordance with generally accepted standards and procedures.

10.4.2. The Client shall be responsible for satisfying themselves that the code or symbol will read correctly on the equipment likely to be used by those for whom the code or symbol is intended.

10.4.3. The Client shall indemnify the Agency against any claims by any party resulting from the code or symbol not reading or not reading correctly for any reason, except to the extent that such claim arises from any failure of the Agency to comply with any of the above which is not attributable to error falling within the tolerances generally accepted in the trade in relation to printing of this sort.

10.5 Delivery

10.5.1. Goods will be dispatched or must be collected by the Client when ready and the Client shall not refuse or delay delivery.

10.5.2. Advice of damage, delay or partial loss of goods in transit or of non-delivery must be given in writing to the Agency and the carrier within three clear days of delivery (or, in the case of non-delivery, within 14 days of dispatch of the goods) and any claim in respect thereof must be made in writing to the Agency and the carrier within seven days of delivery (or, in the case of non-delivery, within 28 days of dispatch). All other complaints and claims must be made in writing to the Agency within 10 days of delivery. The Agency shall not be liable in respect of any claim unless the aforementioned requirements have been complied with except in any particular case where the Client proves that it was not possible to comply with the requirements and advice (where required) was given and the claim made as soon as reasonably possible.

10.5.3. Goods completed but not delivered shall thereupon forthwith become due and payable. Moreover after the expiration of 14 days’ notice the Agency may exercise a general lien on all the Client’s goods and property in our hands and may dispose of such goods and property as they see fit and apply the proceeds towards such debts. The Agency may also elect to cancel further work and/or not produce any unmade balance of such contract and recover from the Client any losses sustained by so doing.

10.5.4. The Agency shall not be liable for any loss to the Client arising from delay in transit howsoever caused.

10.5.5. The risk in the goods passes to the Client upon delivery (whether to the Client or to a common carrier) but legal and beneficial ownership shall remain with the Agency until payment in full has been received (each delivery being considered as a whole). Until the date of payment the Client, if so required by the Agency, shall store the goods in such a way that they are clearly identifiable as the property of the Agency.

11. Digital Media Terms & Conditions

11.1 Web & Programming

11.1.1. Once the Agency has deemed a project to be complete, any amendments will be charged at the Agency’s standard billing structure which will be provided at the start of the contract and each new year, thereafter.

11.1.3. The Agency develops websites for compatibility with the current version of Microsoft Internet Explorer and Google Chrome: not all previous versions or every browser. If further compatibility is required, the Agency must be advised at the outset.

11.2 Ownership

11.2.1. The ownership of the web pages and copyright therein shall remain with the Agency until payment in full has been received for all sums owing. Once payment has been received, ownership and copyright shall pass to the Client for page text and graphics specific to the Client.

11.2.2. Ownership of all code used in processing web pages shall remain with the Agency and it is expressly agreed that the use of such code in processing the web pages does not confer any passing of title from the Agency to the Client.

11.3 Content

11.3.1. The Client shall supply the copy for your web pages in clear and usable permanent or electronic form and shall be entirely responsible for the content of the web pages, unless otherwise agreed upon, and clarified in the terms of the Service.

11.3.2. All images uploaded to websites by the Client (via CMS, FTP or other) should be optimized (compressed file size). The Agency can provide advice on the best image editing software packages but accepts no responsibility for the performance or compatibility of third-party software, or the results they produce.

11.3.3. When a test link is provided, it is the responsibility of the Client to test the functionality, read and check all copy, as well as approve the design and images used before approval is given.

11.3.4. The Agency can provide legal disclaimers and privacy policies; but it is the responsibility of the Client to confirm with their own legal advisers that these meet their individual requirements, as The Agency accepts no responsibility for their accuracy, relevance or currency.

12. Website Hosting and Email Terms & Conditions

12.1 The Agency offers website hosting and database hosting services through the use of third party providers and is subject to requirements set out in these terms and conditions and any other relevant terms and conditions, policies and notices which may be applicable to the supply of hosting services.

12.2. Below is a summary of the main points covered in these terms:

12.2.1 Whilst we and our suppliers will always endeavor to give you the best possible level of service, we cannot guarantee 100% availability of service.

12.2.2 The Agency and our suppliers accept no responsibility for any losses caused by a loss of service.

12.2.3 Your service will be removed if you fail to pay in time or misuse the service.

12.2.4 The Agency will not be liable for any costs to restore your service once it has been removed. Specifically, any websites with databases will require reprogramming once they have been removed from their original server.

12.2.5 Any work undertaken by the Agency at the request of the Client outside of the deliverables identified in the Services will be charged at our standard rate, including investigations regarding problems or loss of service that are not due to the Agency or our suppliers. The Agency should only be contacted after you and your IT professional/advisor have established that any problems are not due to you or your systems.

12.2.6 Our server management fee covers the ongoing management of your server, including security patches, server health checks, uptime/performance monitoring and access to technical advice from our development team.

12.2.7 Support at our standard level is provided on a best effort basis from 9am-5pm Monday-Friday (excluding bank holidays and the shut-down period between Christmas and New Year) and 24/7 ticket support from our suppliers (with varying response times).

13 Website & Email Content & Use

13.1. We make no representation and give no warranty as to the accuracy or quality of information received by any person via the Server and we shall have no liability for any loss or damage to any data stored on the Server. You warrant the accuracy, truthfulness and reliability of any information (including, where applicable, statements of opinion or advice) which you place or allow to be placed on your web pages. You warrant that you are authorized to promote and/or provide any information which you promote and/or provide on your web pages (for example if you are providing financial information, that you hold any necessary authorization under all relevant legislation including the Financial Services Acts).

13.2. You represent, undertake and warrant to us that you will use the website allocated to you only for lawful purposes. In particular, you represent, warrant and undertake to us that:

13.2.1. You will not use the Server in any manner which infringes any law or regulation or which infringes the rights of any third party, nor will you authorize or permit any other person to do so.

13.2.2. You will not host, post, publish, disseminate, link to or transmit:

13.2.2.1. Any material or information which is unlawful, infringing, threatening, abusive, malicious, defamatory, obscene, indecent, blasphemous, profane or otherwise objectionable in any way.

13.2.2.2. Any material containing a virus or other hostile computer program.

13.2.2.3. Any material or information which constitutes, or encourages the commission of a criminal offence, or which threatens, harasses, stalks, abuses, disrupts or violates the legal rights (including rights of privacy and publicity) of others, or which infringes any patent, trade mark, design right, copyright or any other intellectual property right or similar rights of any person which may subsist under the laws of any jurisdiction.

13.2.3. You will not send bulk email, whether opt-in or otherwise, from our network. Nor will you promote a site hosted on our suppliers network using bulk email.

13.2.4. You will not employ programs which consume excessive system resources, including but not limited to processor cycles and memory.

13.2.5. You shall observe the procedures which we may from time to time prescribe and you shall make no use of the Server which is detrimental to other customers.

13.2.6. You shall procure that all mail is sent in accordance with applicable legislation (including data protection legislation) and in a secure manner.

13.2.7. In the case of an individual User, you warrant that you are at least 16 years of age and if the User is a company, you warrant that the Server will not be used by anyone under the age of 16 years.

13.2.8. You are entirely responsible for any civil or criminal liability that is incurred as a result of any use of your web pages. If you post or allow to be posted a defamatory or libelous message, it is you that will be deemed to have published it and you shall be liable for the consequences of it.

13.2.9 If you advertise or offer to sell goods or services via your web pages, you undertake to provide goods in conformity with any description and warranties made. You agree to comply with all relevant legislation including Advertising and Broadcast regulations, Consumer Credit Acts and Trades Descriptions Acts. If you are advertising goods in the course of a trade or business this must clearly be so stated.

3. Customer Agreement

3.1.  Payment. Customer shall tender payment to Company in accordance with the Terms. All payments are non-refundable. Any taxes are the responsibility of Customer. There shall be no deduction in respect of any such taxes, or any offset against payment for any taxes; and all payments shall be grossed up to take account of any withholding taxes. In the event Customer has not made payment within thirty (30) days of the invoice date, the Company may, in its sole discretion, cancel the invoice and issue new Terms.

3.2.  Representation and Warranties. Customer is responsible for its own responsiveness to communications and inquiries from Company and acknowledges that any lack of responsiveness could materially impact the effectiveness of the Services. Customer represents and warrants that, to the best of Customer’s knowledge, any and all information or data that Customer, including its agents or representatives, has provided or will provide to Company in connection with the Services is and will be accurate and complete. Customer represents and warrants that any information provided to Company pursuant to this Agreement does not violate any applicable law or regulation; does not infringe any third-party rights in any way, including copyright, patent, trademark, trade secret, or other intellectual property right, or right of privacy or publicity; is not false or misleading; has not and will not result in any consumer fraud, product liability, breach of contract, injury, damage, or harm of any kind to any person or entity; is not defamatory, libelous, slanderous, or threatening; is free of viruses; does not contain, promote, or offer any form of spyware, adware, or other advertising or information collection software; and does not contain, link to, or promote violence, hate crimes (whether racial or otherwise), illegal activities, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.

3.3.  No Fault. Customer acknowledges that third parties may access Customer’s website(s) and therefore will not hold Company or its affiliates liable or responsible for the activities of visitors who come to Customer’s website(s) as a result of the Services. Customer acknowledges and agrees that it will not hold Company or its affiliates liable for any errors in content, omissions, consequences, damages, costs, refunds, or rebates of any kind arising from any interruption of service or other unavailability of the Internet or website(s). Customer further acknowledges and agrees that errors or mistakes in the performance of the Services, including but not limited to misspellings or miscommunications, do not create a right to refund for the Customer. Customer will give Company timely notice and allow Company a reasonable opportunity thereafter to cure any identified errors or omissions. Customer acknowledges that Company makes no representations or warranties relating to the results of the Services, including without limitation, the number of impressions, click-throughs, or leads, and any promotional effect or return on investment thereof. If Company relies on third parties for certain data, Company makes no guarantees regarding the accuracy, reliability, or completeness of any such data, including usage statistics.

4. Term.

4.1.  Effectiveness of Agreement. Customer agrees to be bound by this Agreement and this Agreement shall become effective upon the Effective Date

4.2.  Term of the Agreement. This Agreement shall continue in effect from the Effective Date until Customer completes payment of all invoiced amounts, or as provided in the Terms, whichever is later, except for any provisions of this Agreement that survive termination.

4.3.  Termination. Notwithstanding anything to the contrary contained herein, Company may terminate this Agreement and immediately cease providing the Services hereunder, in the event: (i) of Customer’s breach of this Agreement; (ii) any representation or warranty made by Customer hereunder is reasonably determined by Company to be false or inaccurate; or (iii) that, in the reasonable determination of Company, Customer is using the Services in an effort to threaten, intimidate, annoy, abuse or harass or is otherwise using the Services to promote a morally repugnant matter. In the event of any of the foregoing and Company desires to exercise its right to terminate hereunder, Company shall send notice to Customer describing the violation, and then, if the matter remains uncured to Company’s Satisfaction for fifteen (15) days, this Agreement shall thereupon terminate automatically.

4.4.  Refusal to Provide the Services. Notwithstanding anything to the contrary contained herein, Company may refuse to provide the Services hereunder if, in its sole discretion, Company determines that any information, material or content to be used in connection with the Services is objectionable, inappropriate or detrimental to the reputation of Company. The foregoing includes, without limitation, any graphics or formatting that disrupts the continuity of the Customer’s or Company’s websites.

5. Miscellaneous.

5.1.  No Guarantee. Unless agreed to in writing, Company makes no express, implied or implicit guarantee with respect to the effectiveness of the Services.

5.2.  Confidential Information. Customer acknowledges that during the course of the Agreement, it may have access to certain Confidential Information of Company. During the term of this Agreement and for a period of two (2) years following the termination of this Agreement for any reason, within the geographical region of the United States of America and its territories, Customer shall, to the fullest extent permitted by law: (i) not disclose the Confidential Information to any third party, (ii) not use the Confidential Information in any fashion except for its own personal purposes, as intended under this Agreement, (iii) exercise reasonable care to prevent disclosure of the Confidential Information, and (iv) promptly notify Company of any unauthorized disclosure or use of the Confidential Information or compelled disclosure or use. If Customer becomes legally compelled to disclose any of Company’s Confidential information, Customer will immediately notify Company of that requirement so that Company may seek a protective order or other appropriate remedy.  Customer acknowledges that breach of the covenants contained herein will cause irreparable harm to the disclosing party entitling the Company to injunctive relief, among other remedies, against any breach or threatened breach, without waiving or affecting any claim for damages or other relief.

5.3.  Non-Solicitation. To the fullest extent permitted by law, during the term of this Agreement and for one (1) year thereafter, Customer shall not directly or indirectly, either alone or in concert with others, on Customer’s own behalf or on behalf of any other person or entity, solicit, or attempt to persuade or solicit any employee of Company to terminate his or her employment with Company, or to work for anyone in competition with the Company.

5.4.  Reasonableness of Certain Conditions. The parties declare that the territorial and time limitations as stated herein, are reasonable and properly required for the adequate protection of each party’s business. If any of the territorial or time limitations are deemed to be unreasonable by a court of competent jurisdiction, then all parties agree and submit to adjustment of the limitation as the court deems reasonable.

5.5.  Force Majeure.  Except for payment obligations, neither party shall be liable to the other for delays or failures in performance resulting from causes beyond the reasonable control of that party, including, but not limited to, acts of God, labor disputes or disturbances, material shortages or rationing, riots, acts of war, governmental regulations, communication or utility failures, or casualties.

5.6.  Relationship of Parties. The parties are independent contractors under this Agreement and no other relationship is intended, including a partnership, franchise, joint venture, agency, employer/employee, fiduciary, master/servant relationship, or other special relationship.  Neither party shall act in a manner which expresses or implies a relationship other than that of independent contractor or bind the other party.

5.7.  No Third Party Beneficiaries. Unless otherwise expressly provided, no provisions of this Agreement are intended or shall be construed to confer upon or give to any person or entity other than the Company and Customer any rights, remedies or other benefits under or by reason of this Agreement.  The Company’s subsidiaries and affiliated entities are express third party beneficiaries of this Agreement.

5.8.  Equitable Relief. Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching party may institute an action to enjoin the breaching party, without the requirement of posting bond, from any and all acts in violation of those provisions or any applicable law, which remedy shall be cumulative and not exclusive, and the parties hereby each consent to the entry of an injunction by any appropriate court or arbitral tribunal enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.

5.9.  Attorneys’ Fees.  In addition to any other relief awarded, the prevailing party in any action arising out of this Agreement shall be entitled to its reasonable attorneys’ fees and costs.

5.10.  Notices.  Any notice required or permitted to be given by either party under this Agreement shall be in writing and shall be personally delivered or sent by a reputable overnight courier service (e.g., Federal Express), or by first class mail (certified or registered), to the attention of the President or equivalent officer of the other party. Notices will be deemed effective two (2) business days after mailing, postage prepaid, if mailed, or the next day if sent by overnight courier service. Notices shall go to, in the case of Customer, to the address provided in the Terms, or, in the case of the Company, to our headquarters as provided for on the Website or in the Terms, or to any other addresses subsequently provided in writing by a party.

5.11.  Assignment.  Customer may not assign its rights or delegate its obligations hereunder, either in whole or in part, whether by operation of law or otherwise, without the prior written consent of the Company. Any attempted assignment or delegation without the Company’s written consent will be void. The rights and liabilities of the parties under this Agreement will bind and inure to the benefit of the parties’ respective successors and permitted assigns. For purposes of this provision, a fifty percent (50%) or more change in control of Customer’s equity ownership shall constitute an assignment. Any assignment or transfer by Customer by operation of law, merger, consolidation, transfer of a majority of the voting equity of Customer or any similar transaction or series of related transactions shall be an assignment prohibited by this provision.

5.12.  Waiver and Modification. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Any waiver, amendment, or other modification of any provision of this Agreement will be effective only if in writing and signed by the parties.

5.13.  Severability.  If any court, arbitrator, or other tribunal finds any provision of this Agreement to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.

5.14.  Arbitration, Jurisdiction, and Applicable Law.  Any dispute, claim, or controversy arising out of or relating to this Agreement, or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by binding arbitration in Hall County, Georgia before an arbitrator, rather than in court.  The Federal Arbitration Act and federal arbitration law shall apply to this Agreement.  The arbitration shall be administered pursuant to Comprehensive Arbitration Rules and Procedures. There is no judge or jury in arbitration, and court review of an arbitration award is limited. You and we each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action.  Judgment on the Award may be entered in any court having jurisdiction.  If for any reason a claim proceeds in court rather than in arbitration, the parties waive a right to a jury trial.  This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.  The parties agree that the Federal Arbitration Act, applicable federal law, and the laws of the state of California, without regard to principles of conflict of laws, will govern these Terms and Conditions and any dispute of any sort that might arise between them.  To the extent any dispute, claim, or controversy proceeds in court rather than arbitration, it shall proceed in the federal or state courts of Hall County, Georgia. The parties waive any objection they may have to jurisdiction and venue in such courts.

5.15.  Headings.  Headings used in this Agreement are for ease of reference only and shall not be used to interpret any aspect of this Agreement.

5.16.  Entire Agreement.  This Agreement, including all documents or exhibits that are incorporated herein by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous understandings or agreements, written or oral, regarding such subject matter; provided, that, in the event of an inconsistency between this Agreement and the terms or conditions associated with Bolder Brand, this Agreement shall govern.

5.17.  Indemnification. Each party (the “Indemnifying Party”) shall indemnify the other party(s) and its directors, officers, agents, employees, contractors, affiliates, or subsidiaries (collectively referred to as Indemnified Parties) and hold the Indemnified Parties harmless from and against any liability, losses, costs, damages, and fees (including reasonable attorneys fees) incurred by the Indemnified Parties in connection with any breach by the Indemnifying Party of any warranty, covenant, or obligation under this Agreement.

5.18.  Limited Liability. The dollar amount of any liability of the Company to any Person under this Agreement or of Company’s indemnification pursuant to this Agreement shall be limited to the amount actually paid to Company by such Person for the Services pursuant to this Agreement.

5.19.  Cumulative Remedies. The rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.

5.20.  Further Assurances. Each party to this Agreement shall, with reasonable diligence, take all such actions and execute all such documents as may be reasonably necessary to implement and carry out the intent of this Agreement.