Terms and Conditions
Last Update: March 23, 2022
This Terms and Conditions Agreement (“Terms”) is entered into between you (“you” or “Client”) and Geekly Media for the range of products and services that Geekly provides ("Services").
Please read these Terms carefully because they contain a limitation of liability and release of claims against Geekly Media and other important information about your legal rights.
These Terms are incorporated by reference into and made a part of any written agreement submitted to Geekly Media and govern the relationship between the Client and Geekly Media. These Terms also apply to any Services the Client may sign-up for without an agreement, such as verbal agreement or other limited-time offers. All agreements are subject to acceptance by Geekly Media, at its sole discretion. Any written agreement, these Terms, and the documents and/or links referenced in such documents are together referred to as the "Agreement."
If you are accepting on behalf of your employer or another entity, you represent and warrant that (i) you have the full legal authority to bind your employer or such legal entity to this Agreement, (ii) you have read and understood this Agreement, and (iii) you agree, on behalf of the Client, to this Agreement.
TIME AND AVAILABILITY
Geekly Media shall have discretion in selecting the dates and times it performs the Services giving due regard to the needs of the Client's business. Geekly Media will make appropriate efforts to meet the reasonable requests of the Client such as conference calls, deliverables, reports, and other items related to the consulting services provided.
In order for Geekly Media to perform the Services, it may be necessary for the Client to provide Geekly Media with Confidential Information (as defined below) regarding the Client's business and products. The Client will rely heavily upon Geekly Media's integrity and prudent judgment to use this information only to provide the Services.
STANDARD OF CONDUCT
In rendering Services under this Agreement, Geekly Media shall conform to high professional standards of work and business ethics. Geekly Media shall not use the time, materials, or equipment of the Client without the prior written consent of the Client.
GEEKLY MEDIA CREATIVE SERVICES
Except as may be otherwise provided, if you request that Geekly Media provide any creative services, you will remain fully responsible for any content you provide to Geekly Media. With respect to any content created by Geekly Media, as between you and Geekly Media, Geekly Media shall retain ownership of the design elements of such content, excluding any of your trade names, trademarks, service marks or logos, or other proprietary elements that may be included within such content, but that predates the creation of the content.
From time to time, Geekly Media may use the service of any other person, entity, or organization in the performance of Geekly Media's duties. Should the Geekly Media use the services of any other person, entity, or organization, no information regarding the services to be performed under this Agreement shall be disclosed to that person, entity, or organization until such person, entity, or organization has executed an agreement to protect the confidentiality of the Client's Confidential Information (as defined in this Agreement).
Geekly Media shall be responsible for all taxes arising from compensation and other amounts paid under this Agreement and shall be responsible for all payroll taxes and fringe benefits of Geekly Media's employees. Neither federal, nor state, nor local income tax, nor payroll tax of any kind, shall be withheld or paid by the Client on behalf of Geekly Media or his/her employees. Geekly Media understands that he/she is responsible to pay, according to law, Geekly Media's taxes and Geekly Media shall, when requested by the Client, properly document to the Client that any and all federal and state taxes have been paid.
Geekly Media and Geekly Media's employees will not be eligible for, and shall not participate in, any employee pension, health, welfare, or other fringe benefit plan of the Client. No workers' compensation insurance shall be obtained by the Client covering Geekly Media or Geekly Media's employees.
The Client agrees to reimburse Geekly Media for all actual reasonable and necessary expenditures, which are directly related to the consulting services. These expenditures include, but are not limited to, expenses related to travel (i.e., airfare, hotel, temporary housing, meals, parking, taxis, mileage, etc.), any special printing or mailing requested by the Client, or any third-party services managed by Geekly Media at the request of the client. Unless otherwise agreed, expenses incurred by Geekly Media will be invoiced and charged, using the payment record on file. If no payment record is on file, the Client agrees to provide a valid form of payment within 15 days of receiving an invoice for reimbursed expenses.
RESPONSIBILITY UPON TERMINATION
Any equipment provided by the Client to Geekly Media in connection with or furtherance of Geekly Media's services under this Agreement, including, but not limited to, computers, laptops, and personal management tools, shall, within a reasonable time after the termination of this Agreement, be returned to the Client.
The confidentiality provisions of this Agreement shall survive the termination of this Agreement and remain in full force and effect thereafter.
OBLIGATION OF CONFIDENTIALITY
In performing Services under this Agreement, Geekly Media may be exposed to and will be required to use certain "Confidential Information" (as hereinafter defined) of the Client. Geekly Media agrees that Geekly Media will not and Geekly Media's employees, agents, or representatives will not use, directly or indirectly, use such Confidential Information for the benefit of any person, entity, or organization other than the Client, or disclose such Confidential Information without the written authorization of an officer of the Client, either during or after the term of this Agreement, for as long as such information retains the characteristics of Confidential Information. "Confidential Information" means information not generally known and proprietary to the Client or to a third party for whom the Client is performing work, including, without limitation, information concerning any patents or trade secrets, confidential or secret designs, processes, formulae, source codes, plans, devices or material, research and development, proprietary software, analysis, techniques, materials, or designs (whether or not patented or patentable), directly or indirectly useful in any aspect of the business of the Client, customer lists, any confidential secret development or research work of the Client, or any other confidential information or proprietary aspects of the business of the Client. Any methods, tools, or work product produced by Geekly Media during the course of work for the Client does not fall under the definition of "Confidential Information" so long as it does not disclose other Confidential Information. Geekly Media retains the rights to any tools, technology, or any other work product it develops during the course of working for the Client. All information which Geekly Media acquires or becomes acquainted with during the period of this Agreement, Geekly Media has a reasonable basis to believe to be Confidential Information, or which is treated by the Client as being Confidential Information, shall be presumed to be Confidential Information. Except as may be required by applicable law, you shall not disclose the contents of the Agreement to any third party (other than its employees and representatives who are made aware of and agree to this restriction) without Geekly Media's prior written consent.
REPRESENTATIONS, WARRANTIES, AND COVENANTS
You represent and warrant that you have all necessary rights and authority to enter into the relationship with Geekly Media contemplated by the Agreement. You represent, warrant, and covenant that any website, website content, and any content or materials that you provide to Geekly Media, do not and will not: (a) infringe on any third party's copyright, patent, trademark, trade secret, moral right or other proprietary rights or right of publicity or privacy; (b) violate any law, statute, ordinance or regulation, including, without limitation, laws, and regulations governing export control, false or misleading advertising or unfair competition; (c) be defamatory or libelous; (d) be pornographic or obscene; or (e) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines. You further represent, warrant, and covenant that the product or service that is being (or will be) promoted through any campaign is (i) lawful and (ii) not the subject of any ongoing investigation by any local, state, or federal regulatory or quasi-regulatory authorities.
You will indemnify, defend (with counsel reasonably acceptable to Geekly Media) and hold harmless Geekly Media, , its subsidiaries, affiliates and parent companies and each of their respective directors, owners, officers, agents, and employees and each of their successors and assigns from and against any and all claims, liabilities, damages, losses, costs, expenses, fees of any kind (including without limitation reasonable attorneys' fees and expenses) incurred in connection with any claim, action or proceedings that arise as a result of work performed by Geekly Media as part of the services outlined in this Agreement.
CONSTRUCTION OF TERM
If any provision of this Agreement is held unenforceable by a court of competent jurisdiction, that provision shall be severed and shall not affect the validity or enforceability of the remaining provisions.
This Agreement shall be governed by and construed in accordance with the internal laws (and not the laws of conflicts) of the State of Texas.
TIMING OF CLAIMS
You agree that regardless of any statute or law to the contrary, the dispute resolution process identified in Section 15 applicable to any claim, dispute, or controversy arising out of or related to the Agreement must be commenced within one year after such claim or cause of action arose or be forever barred; provided that this section shall not in any way limit the time in which claims for infringement or misappropriation of Intellectual Property Rights may be brought.
This Agreement constitutes the complete agreement and sets forth the entire understanding and agreement of the parties as to the subject matter of this Agreement and supersedes all prior discussions and understandings in respect to the subject of this Agreement, whether written or oral. This Agreement may be changed only in writing signed by both parties. With respect to changes to Agreements then in effect, such writing may include email, provided that such changes are limited to a change in the term of the Agreement or the amounts being paid under the Agreement.
Other than claims to collect an amount due for providing the Services, any dispute, controversy or claim arising out of or related in any manner to this Agreement or the Services shall be solely and finally settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof in Dallas, Texas. The arbitration shall take place before a panel of one (1) arbitrator sitting in Dallas, Texas. The language of the arbitration shall be English. The arbitrator will be bound to adjudicate all disputes in accordance with the laws of the State of Texas. The decision of the arbitrator shall be in writing with written findings of fact and shall be final and binding on the parties. Each party shall bear its own costs relating to the arbitration proceedings irrespective of its outcome. Any claim shall be brought individually on behalf of the person or entity seeking relief, not on behalf of a class or other persons or entities not participating in the arbitration, and shall not be consolidated with the claim of any person who is not asserting a claim arising under or relating to this contract. This section provides the sole recourse for the settlement of any disputes arising out of, in connection with, or related to this Agreement and/or the Services, except that a party may seek a preliminary injunction or other injunctive relief in any court of competent jurisdiction in Dallas, Texas if in its reasonable judgment such action is necessary to avoid irreparable harm. The arbitrator will make the initial determination as to whether any claim is subject to arbitration. Notwithstanding any language to the contrary in this Agreement, the parties hereby agree that any award issued by the arbitrator (the Underlying Award”) may be appealed pursuant to the AAA’s Optional Appellate Arbitration Rules (“Appellate Rules”); that the Underlying Award rendered by the arbitrator(s) shall, at a minimum, be a reasoned award; and that the Underlying Award shall not be considered final until after the time for filing the notice of appeal pursuant to the Appellate Rules has expired. Appeals must be initiated within thirty (30) days of receipt of an Underlying Award, as defined by Rule A-3 of the Appellate Rules, by filing a Notice of Appeal with any AAA office. Following the appeal process the decision rendered by the appeal tribunal may be entered in any court having jurisdiction thereof.
WAIVER OF BREACH
The waiver by a party of a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any other or subsequent breach by the party in breach.
TERMINATION OF MONTHLY PLANS OR SUBSCRIPTION CHANGES
Either party may terminate a monthly or subscription plan at any time with written notice as outlined in this section.
CLIENT-INITIATED CANCELLATION IN THE FIRST 12 MONTHS
In the event of client-initiated cancellation of a monthly or subscription plan within the first 12 months, the balance for the remainder of the 12-month term is due.
CLIENT-INITIATED CANCELLATION AFTER THE FIRST 12 MONTHS
In the event of client-initiated cancellation of a monthly or subscription plan after the first 12 months, the Client may cancel at any time with 60 days written notice.
CHANGES TO MONTHLY PLANS
Client and Geekly Media may agree at any time to change the Client’s monthly plan. Any client-initiated change request must be agreed upon in writing by both parties. If the change to the monthly plan is made during the first 12 months, the difference in the remaining balance for the first 12-month term will be due. Geekly Media, at its discretion, may waive the remaining balance on a case-by-case basis.
SUCCESSORS AND ASSIGNS
Geekly Media may assign this Agreement. The client may not assign this Agreement without the prior written consent of Geekly Media; provided, however, that the Agreement shall be assignable by the Client without Geekly Media's consent in the event the Client is acquired by or merged into another corporation or business entity. The benefits and obligations of this Agreement shall be binding upon and inure to the parties hereto, their successors, and assigns.
OUTSIDE CONTRACTORS AND SUBCONTRACTORS
Geekly Media reserves the right to assign contractors and/or subcontractors to perform work as outlined in the Agreement.
REVISIONS DURING EXECUTION
The client may be charged additional fees if the Client requests to make changes to the agreed-upon project scope and objectives.
DISCLAIMER OF WARRANTIES
Geekly Media provides all services performed on an "as is" and "as available" basis, without any warranty of any kind and without any guarantee of continuous or uninterrupted availability. If the consulting services are interrupted or delayed, Geekly Media’s sole obligation will be to restore such services as soon as practicable. To the maximum extent permitted by applicable law, Geekly Media disclaims all warranties of any kind, whether express or implied, including but not limited to the implied warranty of merchantability or fitness for a particular purpose and implied warranties arising from course of dealing or course of performance. Geekly Media will have no liability for any: errors, mistakes, or inaccuracies of content or information; claims relating to infringement of any third party's intellectual property or defamation; personal injury or property damage resulting from your access to or use of any of the services; unauthorized access to or use of Geekly Media servers or of any personal or financial information; (v) interruption of transmission to or from the services; (vi) bugs, viruses, trojan horses, or the like which may be transmitted on or through the services by any third party; (vii) loss or damage of any kind incurred as a result of the use of any content posted, e-mailed, transmitted, or otherwise made available on or through the services; or (viii) matters beyond Geekly Media's reasonable control. Geekly Media does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party on or through the offerings or any linked web site.
No advice or information, whether oral or written, obtained by you from Geekly Media or through the services will create any warranty not expressly made in these services terms.
Without limiting the generality of the foregoing, Geekly Media makes no guarantees with respect to the performance of any product or service.
LIMITATIONS OF LIABILITY
No consequential damages. To the maximum extent permitted by applicable law, neither party shall be liable for any special, indirect, incidental, punitive or consequential damages (including, without limitation, for breach of contract or warranty, negligence or strict liability), or for interrupted communications, loss of use, lost business, lost data or lost profits (even if such party was advised of the possibility of any of the foregoing), arising out of or in connection with this agreement. The foregoing exclusion of liability will not apply to (i) either party's indemnification obligations, including any amounts payable in connection therewith; (ii) to your confidentiality obligations; and/or (iii) either party's willful misconduct.
LIMITATION ON DAMAGES
To the maximum extent permitted by applicable law, under no circumstances shall Geekly Media's cumulative, aggregate liability to you or any third party exceed the amounts received by Geekly Media from you during the 12-month period immediately prior to the incident giving rise to such liability. In lieu of refund, Geekly Media shall be permitted, in its sole discretion, to provide "make-good" services, provided such "make-good" services are provided within a reasonable period of time after the liability has accrued.
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent Geekly Media may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of Geekly Media's liability will be the minimum permitted under such law.
Each party acknowledges that the other party has entered into the Agreement in reliance upon the limitations of liability set forth herein and that the same is an essential basis of the bargain between the parties.
If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.
Neither party shall have any liability for any failure or delay (other than with respect to payment obligations) resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or inventory shortage, unavailability of currency, transportation interruption of any kind, work slowdown or any other condition affecting production or delivery in any manner beyond the reasonable control of such party.
Terms and Conditions may be modified from time to time by Geekly Media without notice.