EVENTSWISH, as used herein, is defined as Eventswish LLC
The CUSTOMER acknowledges that it has reviewed and agrees to be bound by the following terms and conditions (these “Terms”) with respect to any services purchased from EVENTSWISH. CUSTOMER’s assent to these Terms shall be conclusively evidenced by CUSTOMER’s acceptance or retention of services from EVENTSWISH and/or by Customer placing an order (collectively with these Terms and any confirmation of sale or invoice, the “Agreement”) with EVENTSWISH for any services after receipt from EVENTSWIH of a quotation, invoice or other communication (whether written or electronic) containing these Terms. The Agreement comprises the entire agreement between EVENTSWISH and CUSTOMER and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and any order, these Terms shall govern unless an order confirmation issued by EVENTSWISH expressly states that the terms and conditions of such order shall prevail. These Terms shall prevail over any of CUSTOMER’s general terms and conditions regardless of whether or when CUSTOMER has submitted its request for proposal, order, or such terms. EVENTSWISH’s provision of services to CUSTOMER does not constitute EVENTSWISH’s acceptance of any of CUSTOMER’s terms and conditions and does not serve to modify or amend these Terms. Any term of CUSTOMER’s order which is in any way inconsistent with or in addition to these Terms shall not be binding upon EVENTSWISH, notwithstanding EVENTSWISH’s failure to specifically object to any such inconsistent or additional terms, and EVENTSWISH hereby objects to any such inconsistent or additional terms. EVENTSWISH’s fulfillment of CUSTOMER’s order containing terms inconsistent with or additional to these Terms does not constitute EVENTSWISH’s acceptance thereof and does not serve to modify or amend these Terms. If CUSTOMER objects to any of these Terms, such objection must be in writing and received by EVENTSWISH at 6284 Caminito Luisito, San Diego, CA 92111 or emailed to email@example.com prior to commencement of performance by EVENTSWISH hereunder. Retention by CUSTOMER of any service delivered by EVENTSWISH hereunder shall conclusively evidence CUSTOMER’s assent to these Terms
Prices of services are as published or quoted by EVENTSWISH as set forth as of the date of CUSTOMER’s order and are subject to change without notice. If the prices of any services should be increased by EVENTSWISH before delivery of such services to CUSTOMER or performance of such services, then CUSTOMER shall be billed by EVENTSWISH on the basis of such increased prices. All prices are inclusive of all customs fees, sales, use, and excise taxes, and any other foreign, federal, state or local taxes, duties, and charges (including foreign withholding taxes) of any kind (collectively, “Taxes”) imposed by any governmental authority on any amounts payable by CUSTOMER
CUSTOMER agrees to reimburse EVENTSWISH for all reasonable travel and out-of-pocket expenses incurred by EVENTSWISH in connection with the performance of the services.
Payments for services hereunder will be made in U.S. Dollars within 30 days of the invoice date (unless otherwise specified in EVENTSWISH’s invoice) at the address specified in EVENTSWISH’s invoice. EVENTSWISH shall be entitled to suspend the delivery of any services for any failure of CUSTOMER to pay any amounts when due hereunder.
CUSTOMER shall indemnify, defend and hold harmless EVENTSWISH and its representatives, officers, directors, employees, agents, affiliates, successors and permitted assigns against any and all losses, damages, or liabilities, including reasonable attorneys' fees, incurred by such party, relating to, arising out or resulting from any claim of a third party alleging: (a) breach or non-fulfillment of any representation, covenant under the Agreement by CUSTOMER or CUSTOMER’s Personnel; (b) any negligent or more culpable act or omission of CUSTOMER or its Personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under the Agreement; (c) any bodily injury, death of any person or damage to real or tangible personal property caused by the willful or negligent acts or omissions of CUSTOMER or its Personnel; or (d) any failure by CUSTOMER or its Personnel to comply with any applicable laws.
IN NO EVENT SHALL EVENTSWISH BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS OPPORTUNITY OR DAMAGES FOR FAILURE TO MEET DEADLINES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT EVENTSWISH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN THE EVENT THAT A COURT FINDS THAT EVENTSWISH HAS AN OBLIGATION TO REPAIR OR REPLACE ANY GOODS OR PARTS, SUCH REPAIR OR REPLACEMENT SHALL BE DEEMED TO CONSTITUTE LIQUIDATED DAMAGES FOR BREACH OF CONTRACT. IN NO EVENT SHALL EVENTSWISH'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO EVENTSWISH FOR THE SERVICES SOLD HEREUNDER.
CUSTOMER shall comply with all applicable laws, regulations and ordinances. CUSTOMER shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under the Agreement. CUSTOMER assumes all responsibility for delivery of services.
In addition to any remedies that may be provided under these Terms, EVENTSWISH may terminate the Agreement with immediate effect upon written notice to CUSTOMER, if CUSTOMER (a) fails to pay any amount when due under the Agreement, (b) has not otherwise performed or complied with any of these Terms, in whole or in part. The termination of the Agreement shall NOT relieve CUSTOMER of any liability hereunder and CUSTOMER’s obligation shall survive such termination. The Agreement may be canceled by CUSTOMER only with EVENTSWISH’s written consent and may result in a cancellation charge payable by CUSTOMER.
The Agreement shall be construed in accordance with the laws of the State of California, without giving effect to respective conflicts of law principles. Any legal suit, action, or proceeding arising out of or relating to the Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of California, in each case located in the City of San Diego, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
The Agreement between CUSTOMER and EVENTSWISH shall not be assigned or transferred by CUSTOMER without the prior written consent of EVENTSWISH . Any purported assignment or delegation of the Agreement in violation of this Paragraph shall be null and void. No assignment or delegation by CUSTOMER relieves CUSTOMER of any of its obligations under these Terms. If consent is given by EVENTSWISH, the Agreement shall be binding upon and inure to the benefit of the permitted assigns.
The relationship between EVENTSWISH and CUSTOMER is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
These Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and addressed to the parties at the addresses set forth on the face of any CUSTOMER order or EVENTSWISH sales confirmation or to such other address that may be designated by the receiving party in writing. Except as otherwise provided in in these Terms, a notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the notice has complied with the requirements of this Paragraph.
If any portion of the Terms is deemed invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other Term or invalidate or render unenforceable such Term in any other jurisdiction.
These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party. No course of dealing or usage of trade or course of performance shall be relevant to explain or supplement any term expressed herein.