These Terms of Service (these “Terms”) as outlined below apply to the Agreement between Optima Healthcare Solutions,LLC(“OPTIMA”)and Sponsor pertaining to PT Pub Night.
1.SERVICES.
1.1 Services to be provided by PTE. During the term of this Agreement (as provided for in Section 4.1) OPTIMA will provide the sponsorship benefits (as described in the Agreement and Sponsorship Description) (the“Benefits”). Certain Services will be provided inconjunction with the Benefits of OPTIMA’s business partners, licensors and subcontractors.
1.2 Authority of PTE. OPTIMA will have sole authority and discretion regarding all matters relating to the OPTIMA events and branding, subject to local rules and regulations applicable to venues, the regulations and business practices of venue proprietors and the discretion o fon- site volunteers at OPTIMA events. OPTIMA’s discretion will include without limitation:(a)all advertising, marketing and promotional materials in all forms, including all text, illustrations and photographic images, distribution in all media forms, and the size, placement and other characteristics of Sponsor logos; (b) venue selection, where applicable, and/or the layout of such venues; (c) the placement, size and location of Sponsor branding and personnel; (d) the activities conducted in booths and exhibit areas and at events generally (including OPTIMA’s good faith refusal to provide entry to and/orremoval of any person(s) from events, including Sponsor’s employees and agents, in OPTIMA’s sole discretion); (e) all agendas, attractions, exhibits and other activities comprising OPTIMA events; and (f) all text and photographic images in all media forms of all OPTIMA events or any aspect thereof (including text and photographic images of Sponsor’s logo, employees, agentsand/orproducts) for OPTIMA’s use in promoting future events and OPTIMA’s other business interests ((a) through (f) above are collectively the “Event Activities”). Regarding all Event Activities, OPTIMA will attempt to accommodate the interests of Sponsors, other participants and invitees in a reasonably equitable manner under the circumstances. Not with standing the foregoing, Sponsor agrees that OPTIMA will have sole discretion and authority regarding all Event Activities, and any OPTIMA actions so taken will not constitute a breach of this Agreement
1.3 Ownership of Intellectual Property. Sponsor acknowledges that in the provision of the Benefits, OPTIMA may use or provide to Sponsor certain systems, processes, software, manuals, forms and other materials or documents in which OPTIMA or its licensors have intellectual property rights. OPTIMA and its licensors retain ownership of any intellectual property rights related t othe Benefitsorthedelivery of the Benefits, including all trademarks, copyrights, software, templates and all components and derivatives used in the provision of the Benefits. As pertains to any copywriting or design work produced or otherwise made available to Sponsor, Sponsor will be granted a license to use these materials for the purpose of promoting their affiliation with OPTIMA and its brands during the term of this Agreement (as provided for in Section 4.1). Any copywriting or design work licensed for use to Sponsor may not be reproduced or sold for any other purpose other than that specified within this Agreement.
1.4 Independent Contractor. OPTIMA agrees that in the provision of the Benefits, OPTIMA and its staff, and all subcontractors and business partners of OPTIMA, will be independent contractors and not employees of Sponsor, exercising full control over the manner and means used to provide the Benefits.OPTIMA and its subcontractors and business partners will be free to solicit and accept work from clients other than Sponsor, and will be responsible for their own insurance, if any (medical, dental, worker’s compensation, etc.), and tax obligations (payroll, income, etc.) relating to any fees paid for Services.
1.5 Confidentiality. OPTIMA will not, without prior written authorization from Sponsor, disclose to anyone outside of Sponsor, OPTIMA or OPTIMA’s subcontractors and business partners or use in a manner other than in furtherance of Sponsor’s business any specific Sponsor information or material acquired in the course of providing Services under this Agreement, which could be reasonably considered by Sponsor to be confidential or proprietary, trade secrets or processes and research projects, information or data about markets, customers or plans for future development or products; and any other information or materials not generally disclosed by Sponsor. However, Sponsor recognizes that in the course of performing servicesforSponsorandforotherclients, OPTIMA may be in contact with business information, performance indicators and general operating information which allows OPTIMA to improve its own systems and services.While no specific Sponsor information is disclosed to others in that process, OPTIMA does use information obtained during Sponsor engagements to update and refine its services, processes and procedures.
2. FEES.
2.1 Service Fees. Service fees associated with this Agreement are as outlined in the Agreement.
2.2 OtherFees.
2.2.1 Mailing Fees. Any mailing fees incurred in the sending of information between OPTIMA and the Sponsor will be invoiced to Sponsor.
- Fees on Termination of the Agreement. See Section4.
2.2.3 Pass-Through Fees. In the delivery of services to Sponsor, OPTIMA may incur fees from its partners and vendors. These fees will be passed through to Sponsor inclusive of a markup which covers expenses associated with vendor relations, administrative fees, credit risk, timing differences, and other factors.
2.2.4 Miscellaneous Fees. Other fees related to Sponsor requests which fall outside of the scope of the Benefits contained in this Agreement will be the responsibility of Sponsor.
2.3 Invoicing and Payment. Except as otherwise provided for in this Agreement, OPTIMA will bill Sponsor on or around the 1stof each month in which a payment is due, in advance of the Benefits or other fees to be provided for that period (or in arrears for any reimbursement of Services or fees due which have not been previously invoiced). Sponsorwillmakepaymentwithinfifteen(15)days of the date of the invoice. A credit card or bank account (or both)preauthorization will be required to be provided by Sponsor. Sponsor authorizes OPTIMA to initiate payment through such credit card or bank account for all invoiced amounts (plus accruing interest or other charges)which are not paid in full within fifteen (15) days of the date of invoice. If payment is not timely made for any reason, OPTIMA reserves the right to suspend provision of the Benefits pending payment. If Sponsor is an entity, the owners of Sponsor personally guarantee the performance by Sponsor of each and every obligation under taken by Sponsor in the Agreement (as it may be modified or amended from time to time) as and when due.
2.4 Late Payment. Amounts not paid in full by the 15th day after the date of invoice will accrue interest at the rate of one percent (1.0%) of the balance due per month, interest compounded monthly.
2.5 Deposits. OPTIMA commences work on the Sponsor’s account following execution of the Agreement and incurs staff time and expense in onboarding the Sponsor. As a result, all Sponsordeposits with OPTIMA are nonrefundable. Sponsor deposits will be applied against fees arising under the Agreement and, if none, will be deemed earned for services rendered.
3. LIMITS ON SERVICE OBLIGATIONS;REMEDIES.
3.1 Information to be provided by Sponsor. The provision of the Benefits by OPTIMA is dependent on information provided by Sponsor. Sponsor acknowledges that OPTIMA does not audit the information provided by Sponsor or others for use in providing the Benefits, and OPTIMA makes no warranty as to the accuracy or completeness of the information provided by Sponsor. The Benefits do not include any independent verification of information provided by Sponsor. Sponsor is responsible for the information it provides to OPTIMA in the provision of the Benefits, and Sponsor will provide the information in a timely, accurate manner to allow OPTIMA to efficiently provide the Benefits. In connection with the provision of the Benefits, Sponsor may provide OPTIMA with various types of digital or hardcopy images, text copy or other copyrightable content. Sponsor is responsible for ensuring that it has the appropriate ownership or license to use the copyrightable content as contemplated by the Benefits. OPTIMA will not be responsible for verifying usage rights on material submitted by Sponsor.Sponsoragreestoindemnify, defend and hold OPTIMA harmless from and against all damage, loss or expense arising out of any claim of copyright infringement relating to the use of Sponsor provided copyrightable content.
3.2 Sponsor’s Participation; Indemnification. Sponsor represents that Sponsor has authority to participate in OPTIMA events and provide all of its logos, materials, products and services in connection with OPTIMA, and that such activities will not infringe on any copyright or violate any contract or other applicable rights of any third party. All Sponsor representatives will conduct themselves in a professional manner in all Event Activities, and will adhere to all rules asset forth by OPTIMA, venues and other parties responsible for event conduct and safety. To the greatest extent allowed by law, as between Sponsor and OPTIMA, Sponsor assumes all risks of participating in OPTIMA events and the Event Activities, and indemnifies and holds harmless OPTIMA and OPTIMA’s agents from and against any and all claims, losses, damages and related expenses (including claims relating to death or injury to persons and damage or destruction of property) of any party in any way arising out of or relating to Sponsor’s products, services or participation in OPTIMA events or EventActivities.
3.3 Sponsor’s Products; Samples. Sponsor is solely responsible for any damage or injury resulting from products or services sold, given away as samples or provided at OPTIMA eventsorduringEventActivities by Sponsor. In selling or providing samples of any products at the Event, Sponsor will strictly adhere to any rules, regulations, laws and ordinances regarding the same of the event venue(s), the local governing authority of the location of the event, and/orPTE.
3.4 Additional Provisions. Prior to execution of this Agreement, if appropriate, the parties will include within the body of the Agreement any other agreements between them regarding this Agreement (the “Additional Provisions”). Any Additional Provisions after the Effective Date of this Agreement must be pursuant to a mutually signed amendment.
3.5 Force Majeure. OPTIMA will not be in breach of this Agreement for any failure to provide the Benefits which is attributable, in whole or in part, to acts or events beyond the reasonable control of OPTIMA, which acts or events include but are not limited to acts of God, acts of terrorism or war, failure of public systems (telephone, Internet, electricity, social media) or isolated hardware or software failures.
3.6 Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, OPTIMA MAKES NO WARRANTIES, GUARANTEES OR REPRESENTATIONS OF ANY KIND CONCERNING THE BENEFITS, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.
3.7 Limitation of Liability. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT WILL OPTIMA’S LIABILITY IN CONNECTION WITH THIS AGREEMENT, HOWSOEVER ARISING, EXCEED (IN THE AGGREGATE) THE ACTUAL SERVICE FEES PAID BY SPONSOR UNDER THIS AGREEMENT FOR THE PRECEDING 90DAYS.
3.8 Billing Disputes. IT IS THE RESPONSIBILITY OF THE SPONSOR TO TIMELY REVIEW AND NOTIFY OPTIMA IN WRITING OF ANY DISPUTE WHICH CHALLENGES THE ACCURACY OR VERACITY OF INVOICES GENERATED BY OPTIMA FOR SERVICES RENDERED. IN NO EVENT WILL OPTIMA BE LIABLE FOR ANY DISPUTED CHARGES BEYOND THOSE BILLED ON THE INVOICES ISSUED FOR THE 90 DAYS PRIOR TO THE MONTH IN WHICH THE DISPUTE IS RAISED WITH PTE. SPONSOR WAIVES ANY RIGHT TO DAMAGES FOR BILLING DISCREPANCIES BEYOND THE 90 DAY LOOK BACK PERIOD REFERRED TO IN THE PRECEDING SENTENCE.
3.9 Limitation on Indirect Damages. IN NO EVENT WILL OPTIMA BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOSS OF PROFITS, BUSINESS OR OTHER DAMAGES A RISING OUT OF A BREACH OF THIS AGREEMENT OR RELATING TO THE BENEFITS, EVEN IF OPTIMA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
3.10 No Warranty of Business Partners. From time to time, OPTIMA may identify or recommend certain suppliers, vendors or OPTIMA business partners who can provide business related services for Sponsor. OPTIMA makes no warranty, express or implied, regarding the Benefits provided by such third parties and does not guarantee any specific result. Sponsor will be responsible for making the final determination as to whether to engage any such service provider and the business terms of any such engagement.
4.0 GENERAL.
4.1 Term. The term of this Agreement will commence upon acceptance of the Agreement and continue for a period equal to the term indicated on the Agreement (“InitialTerm”). Unless otherwise set forth in the Agreement, the Agreement will automatically be renewed for successive periods equal in length to the Initial Term unless either party gives written notice to the other, at least thirty (30) days prior to the renewal date that the Agreement will not renew at the renewal date.OPTIMA may from time to time adjustthefee for any Service, with the new fee amount to be effective on the next upcoming renewal date, upon written notice given to Sponsor at least sixty (60) days prior to an upcoming renewal date.
4.2 Termination for Cause. This Agreement may be terminated by eitherpartyuponamaterialdefaultunderatermorprovisionofthe Agreement and the failure of the defaulting party to cure (or commence activities to cure if the default cannot be immediately cured)withinfifteen(15)daysofwrittennoticefromthepartynotin default of the existence of the materialdefault.
4.3 Termination for Bankruptcy. If bankruptcy proceedings are commenced with respect to either party (“filing party”), and if this Agreement has not otherwise terminated, then the other party may suspend all further performance of this Agreement until the filing party assumes this Agreement and provides adequate assurance of performancethereoforrejectsthisAgreementpursuanttoSection 365 of the Bankruptcy Code or any similar or successor provision, it being agreed by the parties that this is an executory contract. Any suspension of further performance by the other party pending the filing party’s assumption or rejection of the Agreement will not be a breach of the Agreement and will not affect the other party’s right to pursue or enforce any of its rights under this Agreement or otherwise.
4.4 Fees Due on Termination of Agreement. Upon termination of the Agreement, Sponsor will be responsible for all Services and fees incurred (i) through the termination date for Services or fees which do not carry a term length as referenced in the Agreement, or (ii) through the last day of the month for the remaining term for Services or fees which carry a contract or payment term.
4.5 Non-Solicitation of Personnel. While the Agreement is in effect and for a period of twelve (12) months following termination of the Agreement, for any reason, neither party will, directly or indirectly, solicit for employment any current or former employee(s) of the other party who were or are involved in the provision or execution of the Benefits pursuant to this Agreement without the express written consent of the other party.
4.6 Insurance Matters. Sponsor will carry in full force general liability and property damage insurance covering Sponsor’s participation in any OPTIMA event, with appropriate coverage limits and terms, at all times under this Agreement, and will provide OPTIMA written evidence of such insurance and name OPTIMA as an additional insured under such insurance policies at OPTIMA’s request. Sponsor and OPTIMA waive all subrogation rights each may have against the other for insured losses relating to OPTIMA events or the Event Activities, including loss or damage arising from the negligence or fault of either party. If Sponsor receives any consideration from a third party, including without limitation an assignee or subrogee, Sponsor will indemnify OPTIMA for any claims asserted against OPTIMA by such third party, regard less of any allegation of OPTIMA’s negligence, strict liability, breach of contract, breach of warranty or other allegation
4.7 Notices. All notices required to be given under this Agreement must be in writing and will be deemed given (a) when received, if personally delivered; (b) the day after it is sent, if sent by a recognized delivery service with next day service requested; or (c) three (3) days after it is sent if mailed, postage prepaid, via certified mail, return receipt requested.
4.8 Entire Agreement. These Terms along with the Agreement and Sponsorship Description, constitutes the whole and entire agreement between the parties pertaining to the subject matter here of, and supersedes all prior agreements, correspondence, quotes or other communications between the parties with respect thereto.
4.9 Governing Law & Venue. The validity, construction and enforcement of, and the remedies under, these Terms and the Agreement shall be governed in accordance with the laws of Pennsylvania, without regard to any conflicts of laws principles. Any disputes arising out of these Terms and the Agreement shall be subject to the exclusive jurisdiction of the state and federal courts sitting in Allegheny County, Pennsylvania.
4.10 Binding Effect.These Terms and the Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns.
4.11 Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision and this Agreement shall be modified, construed and enforced as if such invalid, illegal or unenforceable provisions had never been contained herein so long as the purpose of the contract and the intent of the parties can be realized; provided, if the invalid, illegal or unenforceable clause can instead be modified to make it valid, legal and enforceable to partially realize its objective, the clause will instead be so modified.
4.12 Headings. The headings contained in these Terms are for reference purposes only and will not affect the meaning or interpretation of theseTerms
4.13 Attorney Fees. If any action( including arbitration) is brought to enforce, construe or determine the validity of any term or provision of these Terms or Agreement (whether at the arbitration or trial court level or any appeal therefrom), the prevailing party will be entitled to reasonable attorney fees and costs of the action.
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