Term of Agreement
The term of the Agreement commences on the date TerminalWorks delivers written (or electronic) confirmation of its acceptance of Client’s Order (the “Acceptance Date”), and terminates on the End Date set forth in the Order or forty-eight (48) hours after either party delivers written notice to the other of its intent to terminate this Agreement for any reason. In the event of any termination, Client shall remain liable for any amount due under an Order, which obligation to pay shall survive any termination of this Agreement. Anything herein to the contrary notwithstanding, the provisions of the Agreement relating to confidentiality and any other provisions which by their nature should survive termination or expiration of this Agreement, shall so survive.
Acceptance/Rejection of Orders
Submission of your completed Order is merely an offer to TerminalWorks to use commercially reasonable efforts to provide the services and deliver the deliverables described in the Order for the price proposed therein. The Order is not binding on TerminalWorks unless or until TerminalWorks delivers written confirmation of its acceptance of the Order to the Client. TerminalWorks reserves the right, in its sole discretion, to accept or reject any Order. Acceptance of an Order only obligates TerminalWorks to use commercially reasonable efforts to provide the services described in the Order. In the event TerminalWorks accepts an Order, Client shall have thirty (30) days to make its survey available to TerminalWorks as required by the Order. In the event Client fails to do so within such thirty (30) day period, the Agreement shall immediately terminate. In the event TerminalWorks rejects an Order, it may propose an alternative price and/or scope of work for the Order, which such alternative proposal shall be merely an offer to the Client to provide such services and deliver such deliverables as specified in the alternative proposal. Unless otherwise stated in such an alternative proposal, the alternative proposal shall be valid for a period of thirty (30) days from the date of sending. If not accepted by Client (as confirmed in a writing received by TerminalWorks) during such period, TerminalWorks’s alternative proposal shall be automatically revoked.
Term of Payment
Promptly after sending written confirmation of its acceptance of Advertiser’s Order, TerminalWorks will invoice Advertiser the amount set forth in the Order. Unless otherwise stated in The Samples Network’s insertion order: (i) payment of fifty percent (50%) of such amount shall be payable to TerminalWorks upon receipt of the invoice; and (ii) payment of the remaining fifty percent (50%) of such amount shall be payable upon TerminalWorks’s delivery to Advertiser of the deliverables set forth in the Order. In the event TerminalWorks is unable to obtain the number of surveys specified in an Order in accordance with the terms of such Order, TerminalWorks shall: (i) reduce the Order price charged to Advertiser by a percentage equal to the percentage deficiency in surveys it is able to deliver in accordance with the Order; and (ii) provide Advertiser with a ten percent (10%) discount on its next Order accepted by TerminalWorks. Amounts unpaid by Advertiser after thirty (30) days shall bear interest at the rate of one-and-one-half percent (1.5%) per month (or the highest rate permitted by law, if less) until paid in full. In the event of any failure by Advertiser to make payment, Advertiser will be responsible for all reasonable expenses (including attorneys' fees) incurred by TerminalWorks in collecting such amounts. Without limiting any other remedy available to TerminalWorks in law or equity, in the event that Advertiser is in default of its obligations hereunder, including without limitation delinquent in payments required to be made hereunder, Advertiser shall upon notice by TerminalWorks cease-and-desist from any further use of any information, materials or other deliverables acquired under this Agreement. All payments due hereunder are in U.S. dollars and are exclusive of any applicable taxes. Advertiser shall be responsible for all applicable taxes.
During the term of this Agreement, and until such time as the "Confidential Information" (as defined below) is no longer protected as a trade secret or confidential information under New Jersey law, neither party will use or disclose any "Confidential Information" of the other party except as specifically contemplated herein. "Confidential Information" means information that: (1) is sufficiently secret to derive economic value, actual or potential, from not being generally known to other persons who can obtain economic value from its disclosure or use; and (2) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy or confidentiality. Subject to the foregoing: (i) Confidential Information of TerminalWorks includes, but is not limited to, the sources from which it obtains survey respondents, and the methods by which it obtains survey respondents; and Confidential Information of either party includes, but is not limited to, technical or non-technical data, a formula, pattern, compilation, program, device, method, technique, drawing, process, financial data, or list of actual or potential customers or suppliers, the advertisement before publication, and the terms of the Order. Confidential Information does not include information that: (i) has been independently developed by the receiving party without access to the other party's Confidential Information; (ii) has become publicly known through no breach of this Section by the receiving party; (iii) has been rightfully received from a third party authorized to make such disclosure; (iv) has been approved for release in writing by the disclosing party; or (v) is required to be disclosed by a competent legal or governmental authority. At the request of the disclosing party, the receiving party shall return all of the disclosing party's Confidential Information to the disclosing party.
TerminalWorks warrants that: (i) it will provide its services hereunder in a professional and workmanlike manner; and (ii) the third parties with which it contracts to assist it in obtaining respondents for surveys are required by their agreements with TerminalWorks to comply with the federal CAN-SPAM Act. WITH THE EXCEPTION OF THE PRECEDING WARRANTY, TerminalWorks MAKES NO WARRANTY WITH RESPECT TO ANY MATTER INCLUDING, WITHOUT LIMITATION, ITS SERVICES AND DELIVERABLES HEREUNDER, AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NONINFRINGEMENT, TITLE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, AND ANY REPRESENTATION OR WARRANTY REGARDING THE PERFORMANCE, AVAILABILITY OR FUNCTIONALITY OF ANY ASPECT OF THE SERVICES OR DELIVERABLES HEREUNDER. Limitations of Liability In the event that TerminalWorks fails to deliver any services or deliverables, including completed surveys, in accordance with, and within the time period(s) set forth in, the applicable Order, or in the event of any other failure, technical or otherwise of such services or deliverables, the entire liability of TerminalWorks and the exclusive remedy of Client shall be limited to the price reduction and future credit set forth in Paragraph 3 above. IN NO EVENT SHALL TerminalWorks BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, EVEN IF TerminalWorks HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL TerminalWorks'S AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY CLAIM EXCEED THE AGGREGATE AMOUNT OF THE ORDER. Without limiting the foregoing, TerminalWorks shall have no liability for any failure or delay resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes whether legal or illegal, labor or material shortage, transportation interruption of any kind, work slowdown or any other condition affecting production or delivery in any manner beyond the control of TerminalWorks. Client acknowledges that TerminalWorks has entered into this 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.
This Agreement and the Order constitute the entire agreement of the parties with respect to the subject matter of the Order. This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, without giving effect to principles of conflicts of law. Any dispute arising out of or relating to this Agreement shall be brought exclusively in the federal or state courts located in the State of New Jersey, the jurisdiction and venue of which the parties irrevocably consent to for this purpose. This Agreement may be amended only by a writing executed by a duly authorized representative of each party. Client shall make no public announcement regarding the existence or content of the Order without TerminalWorks's prior written approval, which approval shall not be unreasonably withheld. Any notices under this Agreement shall be sent to the addresses set forth in the Order (or in a separate writing) by facsimile or nationally-recognized express delivery service and deemed given upon receipt. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. If any provision contained in this Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect. By submitting its Order to TerminalWorks, Client assent and agrees to these Standard Terms.