START IMAGINING BIRDS, LLC
TERMS AND CONDITIONS
START IMAGINING BIRDS, LLC provides bird photography CHIRPS OF JOY™ (PRODUCTS) for consumer, commercial, non-profit and charitable (CUSTOMER) marketing, advertising and personal gift or gift giving purposes that include but are not limited to bird photo cards, photo books and photo postcards. These PRODUCTS include bird photos taken by START IMAGINING BIRDS, LLC and may include, but are not limited to, descriptions about the bird, or organization, or entity. START IMAGINING BIRDS, LLC provides customization services (SERVICES) for a specific CUSTOMER requirement as defined by the CUSTOMER and mutually agreed upon in a proposal (PROPOSAL) provided by START IMAGINING BIRDS, LLC to the CUSTOMER and signed by the CUSTOMER.
Once START IMAGINING BIRDS, LLC engages a CUSTOMER through a written PROPOSAL and upon the CUSTOMER signing said PROPOSAL, the CUSTOMER agrees to pay START IMAGINING BIRDS, LLC 20% of the total PROPOSAL amount before work begins or PRODUCTS are shipped. The remaining 80% of the total PROPOSAL amount is due in full 15 days from the date on the invoice that START IMAGINING BIRDS, LLC provides to the CUSTOMER. START IMAGINING BIRDS, LLC reserves the right to stop all work if the CUSTOMER fails to pay the initial 20% of the total PROPOSAL amount. Payments that are more than 15 days late will incur a 1.5% monthly penalty. If CUSTOMER cancels the order at any time before PRODUCT is delivered, START IMAGINING BIRDS, LLC will charge a 50% of the PROPOSAL total as a cancellation fee in addition to the original 20% initial payment. In cases of consumer purchases where no written PROPOSAL is sent and where CUSTOMER places order through START IMAGINING BIRDS’ website store, the CUSTOMER will pay for the PRODUCT at the time the order is placed for the price shown on the website store. Appropriate sales tax and shipping may be charged to the CUSTOMER and will be shown at time of purchase for CUSTOMER to review. If a CUSTOMER has paid for more than one month of PRODUCT, START IMAGINING BIRDS will continue to ship PRODUCT to CUSTOMER as described by the purchase. Once an order has been fulfilled in its entirety, START IMAGINING BIRDS will not ship any further PRODUCT to the CUSTOMER until the CUSTOMER places a new order from START IMAGINING BIRDS’s website store and completes a new purchase transaction and receives and order confirmation by email. A CUSTOMER may cancel their order at any time to stop receiving the PRODUCT.
START IMAGINING BIRDS, LLC and CUSTOMER Responsibilities:
START IMAGINING BIRDS, LLC represents that it will use Reasonable Efforts to perform the SERVICES and provide the PRODUCT in a professional manner in accordance with this PROPOSAL. The CUSTOMER agrees that its personnel will respond in a timely manner to inquiries from START IMAGINING BIRDS, LLC employees relative to the SERVICES to be performed under this PROPOSAL.
Term and Termination:
This PROPOSAL shall commence on the Effective Date shown above, or on the date which authorization through a signed PROPOSAL is received through email, phone, or mail to that states to proceed with the work and shall continue until terminated by either party upon thirty (30) days written notice. Termination of this PROPOSAL also terminates all then-outstanding PROPOSALS. In the event of termination of a PROPOSAL, START IMAGINING BIRDS, LLC shall be paid by CUSTOMER for all SERVICES and PRODUCT rendered up to the date of termination. This PROPOSAL may be terminated by either party immediately and without notice in the event that the other commits a material breach of any of its provisions and fails to cure any such breach within 10 days of receiving written notice from the other specifying the breach. Failure to make timely payments on monthly invoices constitutes a material breach of this PROPOSAL.
Except as specifically provided in this PROPOSAL, each party shall retain all right, title, and interest in their respective Intellectual Property. CUSTOMER shall not acquire rights in START IMAGINING BIRDS, LLC Intellectual Property, except as specifically provided for in this PROPOSAL. START IMAGINING BIRDS, LLC shall not acquire rights in CUSTOMER’s Intellectual Property, except as specifically provided for in this PROPOSAL.
The parties agree not to permit access to or to disclose the other party’s Confidential or Proprietary Information (CONFIDENTIAL INFORMATION) except to its authorized employees. START IMAGINING BIRDS, LLC will only use CONFIDENTIAL INFORMATION received from the CUSTOMER for the specific purpose of performing its duties for the sole benefit of the CUSTOMER as described in this PROPOSAL. If a party discloses CONFIDENTIAL INFORMATION, the receiving party agrees to preserve and protect such CONFIDENTIAL INFORMATION from disclosure, inadvertent or otherwise, to any person or persons, through an exercise of care equivalent to the degree of care it uses to preserve and protect its own CONFIDENTIAL INFORMATION and, in any event, with no less than a reasonable standard of care for protection. The foregoing restriction shall not apply to any portion of the information that:
is or becomes part of the public domain without breach of this PROPOSAL;
is subsequently received from a third party who did not obtain or disclose it in violations of any rights of the disclosing party;
is already known to a party as evidenced by tangible documentation;
was independently developed by the receiving party without resort to the Information disclosed hereunder;
the receiving party is compelled to disclose pursuant to a judicial order issued by a court of competent jurisdiction to which the receiving party shall provide formal notice to the disclosing party, and all reasonable assistance in opposing such disclosure order.
Disclaimer of Implied Warranties:
THE CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE WORK PERFORMED UNDER THIS AGREEMENT IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND. START IMAGINING BIRDS, LLC SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
The CUSTOMER agrees to indemnify, defend and hold START IMAGINING BIRDS, LLC, its owners, lawyers, accountants and employees harmless from and against any and all losses, claims, demands, damages, liabilities, costs and expenses, including but not limited to reasonable attorney’s fees and the costs of any legal action arising from CUSTOMER’S use of the services. Such indemnification shall include, but not be limited to, claims for libel, slander, theft of misappropriation of intellectual property, or unauthorized use of any trademark, trade name, or service.
Limitation on Damages:
START IMAGINING BIRDS, LLC will work to provide a professional and high-quality PRODUCT to the CUSTOMER. However, START IMAGINING BIRDS, LLC is not, and will not be liable or responsible for any consequential or incidental damages resulting from START IMAGINING BIRDS, LLC PRODUCT or SERVICES, including, but not limited to, interruption of events, delays in events, delays in marketing or advertising, lost revenue, lost opportunity, emotional harm, mental harm, or physical damage or harm that our products may cause, including but not limited to, neglect, misuse, or dissatisfaction, regardless of whether such damages arose from START IMAGINING BIRDS, LLC negligence. In addition, START IMAGINING BIRDS is not, and will not be liable or responsible for any consequential or incidental damages or claims from START IMAGINING BIRDS, LLC PRODUCT or SERVICES including, but not limited to, delayed shipments, incorrect shipments, missing or incorrect information, misuse of PRODUCT causing bodily harm, or damage to the PRODUCT while in transit to CUSTOMER provided address, regardless of whether such damages arose from START IMAGINING BIRDS’ negligence.
Limitation of Liability:
THE CUSTOMER AGREES THAT START IMAGINING BIRDS, LLC MAXIMUM LIABLITY TO THE CUSTOMER SHALL NOT EXCEED THE AMOUNT PAID BY THE CUSTOMER TO START IMAGINING BIRDS, LLC AND IN NO EVENT SHALL START IMAGINING BIRDS, LLC BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES HEREUNDER, INCLUDING BUT NOT LIMITED TO, INTERRUPTION OF EVENTS, DELAYS IN EVENTS, DELAYS IN MARKETING OR ADVERTISING, LOST REVENUE, LOST OPPORTUNITY, EMOTIONAL HARM, MENTAL HARM, OR PHYSICAL DAMAGE OR HARM OF ANY KIND, HOWEVER CAUSED. START IMAGINING BIRDS, LLC IS NOT AND WILL NOT BE LIABLE FOR DELIVERY OR SHIPPING OF PRODUCT BY THE CUSTOMER THAT RESULTS IN INDIRECT OR CONSEQUENTIAL DAMAGES HEREUNDER, INCLUDING BUT NOT LIMITED TO, INTERRUPTION OF EVENTS, DELAYS IN EVENTS, DELAYS IN MARKETING OR ADVERTISING, LOST REVENUE, LOST OPPORTUNITY, EMOTIONAL HARM, MENTAL HARM, OR PHYSICAL DAMAGE OR HARM OF ANY KIND, HOWEVER CAUSED. ONCE CUSTOMER HAS RECEIVED AND ACCEPTED PRODUCT, START IMAGINING BIRDS, LLC IS NOT AND WILL NOT BE RESPONSIBLE OR LIABLE FOR MODIFICATIONS OR MISUSE OF PRODUCT RESULTING IN INDIRECT OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO, INTERRUPTION OF EVENTS, DELAYS IN EVENTS, DELAYS IN MARKETING OR ADVERTISING, LOST REVENUE, LOST OPPORTUNITY, EMOTIONAL HARM, MENTAL HARM, OR PHYSICAL DAMAGE OR HARM OF ANY KIND, HOWEVER CAUSED.
Neither START IMAGINING BIRDS, LLC or the CUSTOMER will be liable for any failure or delay in performing an obligation under this PROPOSAL that is due to any of the following causes, to the extent beyond its reasonable control: acts of God, accident, riots, war, terrorist act, epidemic, pandemic, quarantine, civil commotion or unrest, breakdown of communication facilities, breakdown of web host, breakdown of internet service provider, natural catastrophes, governmental acts or omissions, changes in laws or regulations, national strikes, fire, explosion, generalized lack of availability of raw materials or energy.
Governing Law and Language. This PROPOSAL shall be governed and construed in all respects by the internal laws of the State of New York. The venue of any legal action under this PROPOSAL shall be Niagara County, New York.
Notices. Whenever, under the terms of or in connection with this PROPOSAL, any notice, consent, approval, authorization or other information is required to be given by either party, such notice, consent, approval, authorization or other information shall be in writing and shall be given or made by electronic mail, facsimile, personal delivery, reputable overnight courier or registered or certified mail, return receipt requested and with all postage prepaid.
No Agency. Nothing contained herein shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. The amount to be paid to START IMAGINING BIRDS, LLC pursuant to this PROPOSAL shall not be considered as salary, and START IMAGINING BIRDS, LLC shall not be entitled to participate in any of the CUSTOMER’s benefit plans. START IMAGINING BIRDS, LLC shall be solely responsible for the payment of all federal, state and local taxes, social security benefits, unemployment compensation and worker's compensation insurance. This PROPOSAL or the creation of the Work creates no employer-employee relationship.
Severability. In the event that any provision of this PROPOSAL shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such un-enforceability or invalidity shall not render this PROPOSAL unenforceable or invalid as a whole.
ASSIGNMENT. This PROPOSAL may not be assigned or transferred by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed.
Entire Agreement. This PROPOSAL supersedes all previous agreements with respect to the subject matter hereof between START IMAGINING BIRDS, LLC and the CUSTOMER. This PROPOSAL may only be changed by mutual agreement of authorized representatives of the parties in writing.