Entheo-Fusion Terms and Conditions
This Agreement shall commence on the date this document is signed and executed and shall continue until the Services are completed or the Agreement is terminated by either party upon written notice to the other party.
By Agreeing to the Terms and Conditions you agree that Entheo-Fusion LLC is not, and cannot be held liable for any issues related to data breaches or security, of either the website or NetSuite. Entheo-Fusion LLC cannot be liable for lack of security procedures and best practices not implemented by its clients’, resulting in any Data Breach. Protection and Mitigation of Security Risks fall to you, implementing the needed security for those said systems, including but not limited to Two-Factor Authentication and IP Restrictions for example. Entheo-Fusion LLC will abide by any security policy and restrictions laid out by the Client.
Based on the Definition for Processor in GDPR (Art. 4 ) “Processor means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller.”, Entheo-Fusion LLC does not fall under the classification for GDPR Processor as we only facilitate Consulting, without use of external third party software, of information between our Client’s Owned systems. Entheo-Fusion LLC does not store, copy or process data from Client’s systems.
Independent Company Relationship:
Company’s relationship with Client is that of an independent Company, and nothing in this Agreement is intended to, or should be construed to create a partnership, agency, joint venture or employment relationship. Company will not be entitled to any of the benefits which Client may make available to its employees, including, but not limited to, group health or life insurance, profit-sharing or retirement benefits. Company is not authorized to make any representation, contract or commitment on behalf of Client unless specifically requested or authorized in writing to do so by a Client officer. Company is solely responsible for, and will file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of services and receipt of fees under this Agreement. Company is solely responsible for, and must maintain adequate records of expenses incurred in the course of performing services under this Agreement. No part of Company’s compensation will be subject to withholding by Client for the payment of any taxes.
Company agrees to hold Client’s Confidential Information in strict confidence and not to disclose such Confidential Information to any third parties. “Confidential Information” as used in this Agreement shall mean all information disclosed by Client to Company that is not generally known in the Client’s trade or industry and shall include, without limitation, (a) concepts and ideas relating to the development and distribution of content in any medium or to the current, future and proposed products or services of Client or its subsidiaries or affiliates; (b) trade secrets, drawings, inventions, know-how, software programs, and software source documents; (c) information regarding plans for research, development, new service offerings or products, marketing and selling, business plans, business forecasts, budgets and unpublished financial statements, licenses and distribution arrangements, prices and costs, suppliers and customers; (d) existence of any business discussions, negotiations or agreements between the parties; and (e) any information regarding the skills and compensation of employees. Confidential Information also includes proprietary or confidential information of any third party who may disclose such information to Client or Company in the course of Client business. Company’s obligations set forth in this Section (“Confidential Information”) shall not apply with respect to any portion of the Confidential Information that Company can document by competent proof that such portion: (a) was in the public domain at the time it was communicated to Company by Client; (b) entered the public domain through no fault of Company, subsequent to the time it was communicated to Company by Client; (c) was in Company’s possession free of any obligation of confidence at the time it was communicated to Company by Client; (d) was rightfully communicated to Company free of any obligation of confidence subsequent to the time it was communicated to Company by the Client; (e) was developed by employees or agents of Company independently of and without reference to any information communicated to Company by Client; or (f) was communicated by Client to an unaffiliated third party free of any obligation of confidence. In addition, Company may disclose Client’s Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law. All Confidential Information furnished to Company by Client is the sole and exclusive property of Client or its suppliers or customers. Upon request by Client, Company agrees to promptly deliver to Client the original and any copies of such Confidential Information. This Agreement shall remain in effect for five (5) years after the termination of the Agreement.
Client agrees to indemnify and hold Company and its affiliates harmless from and against any and all costs, fees, expenses, damages and liabilities (including attorneys’ fees and costs related to the defense) associated with any third party claims resulting from any of the services under this Agreement or in the Exhibit A, except to the extent determined to have resulted from Company’s gross negligence or intentional misconduct relating to such services.
Limitations on Liability and Indemnification:
Except to the extent determined to have resulted from Company’s gross negligence or intentional misconduct, Company’s aggregate liability for all claims, losses, liability, or damages in connection with this Agreement, whether as a result of breach of contract, tort, or otherwise, regardless of the theory of liability asserted, is limited to no more than the total amount of fees paid to Company for the particular item of work set forth on the proposal giving rise to the liability. In addition Company will not be liable in any event for lost profits, consequential, indirect, incidental, punitive, exemplary or special damages unless it was due to Company’s gross negligence or intentional misconduct.
Term and Termination:
Term: The initial term of this Agreement is set forth for the services indicated and agreed upon above, unless earlier terminated as provided in this Agreement.
Termination by Client: Client may terminate this Agreement: (i) upon thirty (30) days written notice in the event of a material breach by Company of this Agreement, provided that, such breach remains uncured at the end of such thirty (30) day period; (ii) immediately in its sole discretion upon Company’s material breach of Sections (“Confidential Information”) or (“Noninterference with Business”); or (iii) upon sixty (60) days written notice to Company.
Termination by Company: Company may terminate this Agreement upon sixty (60) days written notice to Client.
Noninterference with Business:
During this Agreement, and for a term of two (2) years after this Agreement concludes, Company agrees not to interfere with the business of Client in any manner. By way of example and not of limitation, Company agrees not to solicit or induce any employee or independent Company to terminate or breach an employment, contractual or other relationship with Client.
Mediation Requirement: If any dispute arises between the parties with response to any matter, the parties agree to first try in good faith to settle the dispute by mediation administered by the American Arbitration Association (“AAA”). Fees charged by mediators or the AAA shall be shared equally by the parties. Unless one party is determined to be at fault in which case the Arbitrator(s) can award fees/costs to the party at fault.
Additional Arbitration Matters: Any arbitration shall take place in Salt Lake City, Utah, unless the parties agree to another location. The Arbitration panel shall have no power to (i) award non-monetary or equitable relief of any sort, or (ii) award damages inconsistent with the Limitations on Liability provisions herein. Client accepts and acknowledges that any demand for arbitration must be issued within one year from the date Client became aware of or should reasonably have become aware of the facts that give rise to Company’s alleged liability, and in any event no later than two years after any such cause of action accrued. IN AGREEING TO ARBITRATION, BOTH CLIENT AND COMPANY ACKNOWLEDGE THAT EACH PARTY IS GIVING UP THE RIGHT TO HAVE THE DISPUTE DECIDED IN A COURT OF LAW BEFORE A JUDGE OR JURY AND INSTEAD THE PARTIES ARE ACCEPTING THE USE OF ARBITRATION FOR DISPUTE RESOLUTION. The prevailing party shall be entitled to an award of reasonable attorney’s fees and costs incurred in connection with the arbitration of the dispute in an amount to be determined by the arbitrators.
The rights and obligations contained in Sections (“Confidential Information”), (“Limitations on Liability and Indemnification”), (“Indemnification”), (“Noninterference with Business”) and (“Dispute Resolutions”) will survive any termination or expiration of this Agreement.
Successors and Assigns:
Company may not subcontract or otherwise delegate its obligations under this Agreement without Client’s prior written consent. Subject to the foregoing, this Agreement will be for the benefit of Client’s successors and assigns, and will be binding on Company’s assignees.
Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by overnight courier upon written verification of receipt; (iii) by telecopy or facsimile transmission upon acknowledgment of receipt of electronic transmission; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to the addresses set forth below or such other address as either party may specify in writing.
This Agreement shall be governed in all respects by the laws of the United States of America and by the laws of the State of Utah.
Should any provisions of this Agreement be held by a court of law to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.
The waiver by Client of a breach of any provision of this Agreement by Company shall not operate or be construed as a waiver of any other or subsequent breach by Company. The waiver by Company of a breach of any provision of this Agreement by Client shall not operate or be construed as a waiver of any other or subsequent breach by Client.
This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. The terms of this Agreement will govern all services undertaken by Company for Client; provided, however, that in the event of any conflict between the terms of this Agreement and any Proposal, the terms of the applicable Proposal will control. This Agreement may only be changed by mutual agreement of authorized representatives of the parties in writing.