Terms & Conditions

TERMS & CONDITIONS
KUSH MEDIA CO.

 

The terms & conditions outlined here and all other documents that are referenced here or linked within the terms are all equal parts of this entire agreement. When you agree to these terms, you are agreeing to all the terms of service outlined in their entirety. The agreement represents the contracted work between Kush Media Co. (https://kushmediaco.com) and any client or business who chooses to enter into a contracted agreement with Kush Media Co. for web design, web hosting, logo design, email marketing, social media marketing, and any other services Kush Media Co. offers to the client. Kush Media Co. may hereon be referred to as “We,” “Company,” “Party,”  or  “Kush Media.” Businesses contracted with Kush Media Co. may hereon be referred to as  “Client” “Party,” or if both Client and Kush Media Co. are referred to together, may hereon be “Parties.”

  1. Terms of Service Definitions.

1.1 Date of Effect: This term covers the date a contractual agreement is entered into between Client and Company.

1.2 Launch Date: This term covers the date of which the Client website, client email campaign, or client social media campaign are published/made live/made available to Client customers, public eyes.

1.3 Client Website: This term covers the consumer-communicating website for the Client, built by Kush Media Co. or provided from Client and hosted through Kush Media Co. website services via this agreement.

1.4 Client Properties: This term covers any and all of the Client representative Social Media accounts/sites, location-based sites, and the Client website. 

1.5 IP: Intellectual Property, including any and all trademark, copyrights, proprietary information and data, patent, trade secrets. 

1.6 Client-Provided Material: This term covers all goods, services, and proprietary information secured and supported by the Client. Including, without limitations, names, logos, Client provided images, graphics, photos, videos, audio clips and designs, catchphrases and slogans, content, publications, software, hardware, plugins, etc. This term additionally covers the Client website domain name, and any usernames/passwords, account information for social media sites/accounts, location-based sites that were created by the client. Any material the Client provides for information, material, content for the purposes of Kush Media to display, publish, reproduce for distribution.

1.7 Location-based Site: This term covers any and all local business listings created for the Client on any location-based websites that Kush Media Co. selects for the good of the Client, including but not limited to Yelp, Google, Yahoo, Bing.

1.8 Social Media Site: This term covers any and all social media sites created for the Client or run by Kush Media Co. on behalf of the Client. These social media sites may be any and all that Kush Media Co. selects for the good of the Client, including but not limited to Instagram, Facebook, YouTube. 

1.9 Kush Media-Provided Material: This term covers anything referred to as “Kush Media-Provided Material means concurrently: (a) the Kush Media Co. Website and all its contents, materials, elements, images, content, features and functionalities thereof, this is excluding all Client-Provided Material contained within; (b) all Kush Media names, branding, logos, designs and brand images; (c) all links and advertisements provided by Kush Media; (d) all Kush Media Systems (as defined below) and all hardware, software, tools, technologies, processes, methods, techniques and know-how provided by Kush Media (whether for use by Kush Media or Client or otherwise) in the rendering of the Services; and (e) all results, work products and deliverables of the Services (including, without limitation, all Client Properties source code, object code, HTML files, Java files, data files, scripts, programs, templates, user interface designs, themes, page layouts and look and feel, and documentation created by Kush Media), but excluding Client-Provided Material contained therein.

1.10 Kush Media Systems: This term covers all computer servers, networks, and systems owned, controlled, or operated by Kush Media and/or its corporate affiliates in connection with the rendering of the Services, including, without limitation, those associated with the Kush Media Website.

 

1.11 User: This term covers any person who visits or uses the Client Website but excludes each of the Parties and anyone who uses the Client Website on behalf of a Party.

 

1.12 User-Produced Material: This term covers any content or material uploaded, posted, submitted, or transmitted by a User on or via the Client Website.

 

1.13 Excused Outage: This term covers any outage, unavailability, interruption, delay, or degradation of the Services or the Client Website resulting from or caused by any of the following: (i) scheduled downtime, maintenance or repair; (ii) any act or omission by Client or anyone acting under its authority or on its behalf; (iii) any Client-Provided Material; (iv) any User-Produced Material (as defined below); or (v) Force Majeure (as defined below).

 

1.14 Force Majeure: This term covers a cause or event that is beyond the reasonable control of Kush Media and could not reasonably have been foreseen or avoided, including, without limitation, third-party network or system outage, hacking, virus attack, or another form of sabotage, Acts of God, acts of government, strikes, lockouts, riots, insurrection, civil commotion, war, and terrorist attacks.

 

1.15 Services: The definition of this term can be found in Section 2.1 of this Agreement.

 

1.16 Service Fee: The definition of this term can be found in Section 3.1 of this Agreement.

 

1.17 Term: The definition of this term can be found in Section 4.1 of this Agreement.

 

  1. Services.

 

2.1 Services: Subject to the terms and conditions of this Agreement, Kush Media may provide the following services to Client: (a) providing tools for Client to design and construct a Client Website for distribution to desktop and mobile devices; (b) hosting the Client Website during the Term; (c) updating and suggesting content and design changes enhance the Client Website’s ranking in search engines; (d) setting up listings for Clients on certain Location-Based Sites; (e) setting up and administering accounts for Client on certain Social Media Sites; (f) setting up and administering any and all branding, graphic design — included but not limited to logos, promotional materials, packaging design, and any or all services not explicitly mentioned that Kush Media is contracted to provide (g) any other service offered by Kush Media for which the Client is paying a fee (collectively the ‘Services’). Kush Media will provide the applicable Services to the Client based upon the package selected by the Client at registration. In addition, Kush Media reserves the right to add, modify, or discontinue Services from time-to-time in its sole discretion. However, Kush Media shall provide Client thirty (30) days prior written notice in the event Kush Media discontinues any Service. Kush Media agrees to use commercially reasonable efforts to ensure that during the Term, the Client Website will be operational and accessible to Users on a 24/7 basis, except during any Excused Outage. 

 

2.2 Subcontractors: Client acknowledges and agrees that Kush Media may, in its sole discretion, use one or more third-party contractors (each, a ‘Subcontractor’) to provide some portions of the Services and/or other services related to the operations of the Kush Media Website and/or the Client Properties, which may include, without limitation, data processing and storage, data security, technical support, purchase and payment processing, order fulfillment, and other e-commerce related functions.

 

2.3 Reservation of Right: Notwithstanding anything herein to the contrary, Client acknowledges and agrees that Kush Media shall have the absolute right, at any time and with or without notice to Client, to (a) suspend, disable, block, restrict or limit access to the Client Website or any portion thereof and/or (b) take down and remove any content or material (including, without limitation, any Client-Provided Material, any User-Produced Material, or any Kush Media-Provided Material) from the Client Website, if doing so, in Kush Media’s sole judgment, is necessary or advisable in order to comply with any applicable law or regulation or to protect Kush Media or its corporate affiliates from actual or potential claims or liabilities, or for any content or material which Kush Media determines is offensive (including any pornographic images, any foul language, disparaging remarks, derogatory remarks regarding the religion, sexuality, politics, appearances or other characteristics or beliefs of any other person or entity, etc.), or infringes, misappropriates or violates any IP or other right of any person or entity.

 

2.4 Kush Media-Provided Material: Subject to the terms and conditions of this Agreement, Kush Media with this grants to Client a non-exclusive, non-transferable, non-sublicensable, limited right and license to use Kush Media-Provided Material solely to receive the Services from Kush Media and operate the Client Properties during the Term. 

 

2.5 Client-Provided Material: Subject to the terms and conditions of this Agreement, Client hereby grants to Kush Media a non-exclusive, non-transferable, non-sublicensable (except to a Subcontractor), limited right and license to use, reproduce, post, display, exhibit, transmit, publish and/or distribute (as the case may be) Client-Provided Material solely to provide the Services to Client during the Term in connection with the Client Properties. Client represents and warrants that: (a) it has the right to furnish and authorize use of Client-Provided Material by Kush Media in accordance with this Agreement; and (b) no Client-Provided Material will infringe upon or violate any right of any third party.

 

2.6 Domain Names: Client may select the domain name for the Client Website, which Kush Media shall register (if available) in the Client’s name and maintain and manage for the Client during the Term. To the extent Client has already registered the Client Website domain name, Client shall, promptly after the Effective Date, give Kush Media full access to the domain name account and authorize Kush Media to maintain and manage the account during the Term. Upon the expiration or termination of this Agreement, Kush Media shall turn over the control of the Client Website domain name to Client.

 

2.7 Legal Notices: Client agrees to adopt and adhere to (a) the Client Website Standard Terms of Use substantially in the form set forth in Exhibit 1 hereto (Click Here) and (b) the Client Website Standard Privacy Policy substantially in the form set forth in Exhibit 2 hereto (Click Here). Client shall not alter or modify the Client Website Standard Terms of Use or the Client Website Standard Privacy Policy without the express prior written consent of Kush Media.

 

2.8 User Personal Information: To the extent Users can register, open an account, make a purchase, or otherwise disclose their personal information (i.e., information that is personally identifiable of a User, which may include name, email address, phone number, mailing address, date/year of birth, and credit card or other payment account information) (collectively ‘User Personal Information’) on the Client Website, the Parties acknowledge and agree that all User Personal Information collected on or from the Client Website shall be owned jointly by the Parties and may be used by each Kush Media and Client in accordance with the Client Website Standard Privacy Policy outlined in Exhibit 2 (Click Here). Client acknowledges and agrees that: (a) it shall assume full responsibility for the safeguarding of the security of all User Personal Information in its possession or control, and (b) it shall comply with the Client Website Standard Privacy Policy outlined in Exhibit 2 (Click Here) and all applicable laws and regulations pertaining to the privacy or security of User Personal Information and shall cause all those acting under its authority or on its behalf to do the same.

 

2.9 User Aggregate Data: Client acknowledges and agrees that Kush Media may (whether directly or through one or more Subcontractors) collect and derive aggregate data (i.e., information that does not identify any User individually, such as site traffic data and anonymous demographic information about Users) from the Client Properties, and that all such aggregate data shall become the property of Kush Media and may be freely used by Kush Media and its corporate affiliates for any and all lawful purposes.

 

2.10 Restrictions on Use: Client (including all those acting under its authority or on its behalf) may not use the Services or the Client Properties or any Kush Media-Provided Material, other than for Client’s own legitimate and lawful business purposes and in a manner that complies with this Agreement and all applicable laws and regulations. Without limiting the generality of the foregoing, Client (including all those acting under its authority or on its behalf) shall not:

 

    • (a) use any of the Services or the Client Properties or any Kush Media-Provided Material to engage in fraudulent, deceptive or misleading activities or practices;
    • (b) use any of the Services or the Client Properties or any Kush Media-Provided Material to engage in infringement, misappropriation or violation of any IP or other rights of any person or entity;
    • (c) use any of the Services or the Client Properties or any Kush Media-Provided Material to engage in spam or transmission or distribution of unsolicited commercial messages in violation of applicable laws or regulations;
    • (d) use or handle any User Personal Information in violation of the published Privacy Policy for the Client Website or any applicable law or regulation pertaining to the privacy or security of User Personal Information;

Client acknowledges and agrees that, in the event of any breach or violation of this Section 2.10 by Client or anyone acting under its authority or on its behalf, Kush Media shall be entitled to immediately terminate this Agreement pursuant to Term & Termination 4.3(a) Section of this Agreement.

 

2.11 Monitoring: Client acknowledges and agrees that Kush Media shall have the right to electronically and remotely monitor Client’s use of the Services, the Client Properties, and Kush Media-Provided Material to verify Client’s compliance with the terms of this Agreement.

 

2.12 Passwords: The client shall safeguard all usernames, passwords, and other account access information for any Client Property (collectively ‘Passwords’). Client shall be fully responsible for all activities that occur under its Passwords and shall promptly notify Kush Media of any unauthorized use of its Passwords of which it becomes aware.

 

2.13 Advertising: Client acknowledges and agrees that during the Term: (a) the Client Website shall prominently display the phrase ‘Copyright (2020) Kush Media Co.’ and/or such other expression(s) determined by Kush Media that identify the Client Website as designed and hosted by Kush Media; and (b) Kush Media shall have the right to place and display Kush Media-branded links and advertisements (e.g., banner and button ads) on the Client Website.

 

2.14 Ownership: As between the Parties: (a) all Kush Media-Provided Material and all IP rights associated therewith shall remain the sole property of Kush Media, and all use thereof by Client shall inure to the sole benefit of Kush Media; and (b) all Client-Provided Material and all IP rights associated therewith shall remain the sole property of Client, and all use thereof by Kush Media shall inure to the sole benefit of Client.

 

2.15 Client Information: By submitting Client information (including, without limitation, Client’s name, address, email, telephone, and other contact information, billing and payment information, Passwords, and other Client-related information as provided by Client (collectively ‘Client Account Information’) to Kush Media, Client expressly represents and warrants that all Client information submitted is Client’s own information and is truthful, current and accurate, and Client further expressly acknowledges and agrees as follows:

 

    • (a) Kush Media may collect, store, retain, and use Client Account Information for all purposes related to Kush Media’s performance and enforcement of this Agreement, as well as to comply with applicable laws and regulations. Client billing and payment information (e.g., credit card information) will only be used for payment processing and collection purposes related to the Client’s account and agreement with Kush Media and will not be used or stored for any other purposes (except as expressly otherwise stated).
    • (b) Kush Media does not knowingly share Client Account Information with any non-affiliated third party for such third party’s direct marketing use unless the Client elects to opt-in (whether on the Kush Media Website or otherwise) to receive marketing communications directly from such third party.
    • (c) Kush Media may disclose Client Account Information (including Client billing and payment information, if applicable) to Subcontractors who need to access such information to perform services for Kush Media, the Kush Media Website, and/or the Client Properties; it being understood that Kush Media will require its Subcontractors to limit their use of Client Account Information solely to the purposes for which the information was disclosed by Kush Media and to maintain the confidentiality, security, and integrity of the information and not make any further disclosure to others.
    • (d) Kush Media may disclose Client Account Information (including Client billing and payment information, if applicable) to others if doing so is required by law or, in Kush Media’s good faith belief, is reasonably necessary to: (1) comply with legal process (including a court order or subpoena); (2) cooperate with law enforcement; (3) enforce this Agreement or the Legal Notices for the Client Properties; (4) respond to an emergency; or (5) protect the rights, property or safety of Kush Media, Users, and/or the public.
    • (e) If Kush Media is sold or transferred to, merged with, or acquired by a third party, Client Account Information may be transferred to such third party as part of the transaction, in which event the privacy policy of such third party may govern further use and disclosure of Client Account Information.
    • (f) When Client uses the Kush Media Website, the site servers automatically generate log files that may contain data linked to the Client, such as IP addresses, ISP domain names, browser types, operating systems, referring/exit pages, date/time stamps, clickstream data, etc. Also, to the extent Client has enabled ‘cookies’ in its browser, Kush Media may use ‘cookies’ to collect session information about the Client’s visits and activities on the Kush Media Website. Kush Media collects and uses log file data and cookie session information for its operational purposes, including for purposes of improving Client experience on the Kush Media Website, collecting and analyzing traffic and activity data related to the Kush Media Website, managing Client relations, etc.
    • (g) Kush Media may collect and generate aggregate and group information based on Client and others’ visits and activities on the Kush Media Website, or by combining Client-related information with information about Kush Media’s other clients. Such aggregate information is anonymous and does not identify the Client individually. Kush Media shall be free to use and share with others such as aggregate information for market research/analysis, marketing and advertising, and other business purposes.
    • (h) Kush Media will use commercially reasonable measures to safeguard Client Account Information, but absolute security cannot be guaranteed. No data transmission over the Internet and no data storage can be 100% secure. Consequently, Kush Media does not warrant or guarantee the security of any information Client transmits to, from, or on the Kush Media Website. Kush Media will endeavor to notify the Client in the event Kush Media becomes aware of a breach or suspected breach of the security of Client Account Information as stored by Kush Media. However, it is expressly understood and agreed that Kush Media shall not be liable for any breach of security of Client Account Information resulting from causes or events that are beyond Kush Media‘s control, including, without limitation, Client’s own act or omission, corruption of storage media, defects in third-party data security products or services, power failures, natural phenomena, riots, acts of vandalism, hacking, sabotage, or terrorism.

 

2.16 Cookies and Similar Devices: By entering into this Agreement, Client expressly acknowledges and agrees:

 

    • (a) The Kush Media Website may send cookies, which are small pieces of data, to the Client’s web browser to facilitate the Client’s use of the Kush Media Website. Cookies help Kush Media deliver content specific to the Client’s interests and permit our servers to recall information from the Client’s prior visits to the Kush Media Website. Kush Media may use information collected from cookies in conjunction with other information collected from the Client. However, Kush Media does not use cookies to access information on the Client’s computer or mobile device. The client may choose whether to accept cookies by adjusting the settings of the Client’s browser. If the Client’s browser is set to reject cookies, the Client may still enter the Kush Media Website, but the Client may not have full access to all areas of the Kush Media Website.
    • (b) The Kush Media Website may use other industry standard technologies like pixel tags and web beacons to track the Client’s use of the Kush Media Website and may also allow Subcontractors to use these devices on Kush Media’s behalf. Pixel tags and web beacons are tiny graphic images placed on certain pages on the Kush Media Website or in Kush Media emails that allow Kush Media to determine whether the Client has performed a specific action. When Clients access these pages or open or click an email, pixel tags and web beacons generate a non-personally identifiable notice of that action. Pixel tags allow Kush Media to measure and improve understanding of visitor traffic and behavior on the Kush Media Website and measure Kush Media’s promotions and performances. Kush Media may also utilize pixel tags and web beacons provided by others for the same purposes.

 

  1. Fees and Payment.

 

3.1 Service Fee: In consideration of the Services, Client shall pay Kush Media in advance the listed monthly fee for the Service package selected by the Client commencing on the Launch Date (the ‘Service Fee’). The Service Fee is NON-REFUNDABLE. The initial Service Fee shall be paid on the Date of Effect. After that, the monthly Service Fee shall become due on the monthly anniversary of the Launch Date. The client may cancel the Services and terminate this Agreement and its account pursuant to Term and Termination Section 4.2 of this Agreement. 

 

3.2 Billing and Contact Information: The client shall provide Kush Media with current and accurate billing and contact information and shall promptly notify Kush Media of any change in such information. If the billing or contact information provided by Client is incorrect or incomplete or becomes outdated, Kush Media shall have the right to immediately suspend the Services and access to the Client Properties without any liability to Client, until current and correct billing and contact information is provided by Client. If Client does not provide its updated billing and contact information within a reasonable time period after Kush Media makes a request, Kush Media shall have the right to terminate this Agreement with immediate effect with or without notice to Client, upon which Kush Media will, without any liability to Client, cease all of the Services, permanently deactivate and terminate the Client Properties, and permanently delete the Client account and all Client-Provided Material from the Kush Media Website and the Kush Media Systems.

 

3.3 Timely Payment: Client acknowledges and agrees that: (a) timely payment of the Service Fee for each billing period is essential to the continuation of the Services and the Client Properties; (b) Client’s failure to pay the Service Fee on time for a given billing period shall entitle Kush Media to immediately suspend the Services and access to the Client Properties without any liability to Client; and (c) if Client’s account is delinquent for thirty (30) days or more, then in addition to its other rights and remedies, Kush Media shall have the right to terminate this Agreement with immediate effect upon notice to Client, upon which Kush Media will, without any liability to Client, cease all of the Services, permanently deactivate and terminate the Client Properties, and permanently delete the Client account and all Client-Provided Material from the Kush Media Website and the Kush Media Systems.

 

3.4 Taxes: The Parties agree that Client shall pay the full amount of the Service Fee, exclusive of any sales, use, excise, value-added, or other similar taxes, all of which shall be the responsibility of Client.

 

3.5 Cancellation and Kill Fees: Projects that are canceled by the client for reasons beyond Kush Media Company’s control are subject to fees for the loss of expected revenue. Kill fees never exceed the original agreed amount.  Your initial deposit of 50% of the project total, or in the case of website and social media agreements, first-month payment is a non-refundable deposit for services rendered.  Projects killed after the first two phases are delivered will be subject to pay 75% of the total contract, and projects killed after the Development phase are subject to pay 90% of the original agreement. Clients will be notified before incurring kill fees on canceled projects. In addition, Kush Media Company retains the right to cancel the project for lack of decisiveness on the clients’ part in selecting a creative direction – but this only applies after 3 versions of creative work are presented to the client for review and feedback. In the exceedingly rare case of contractor cancellation, the client has no rights to the creative work previously rejected, and Kush Media Company retains 50% of the total project fees for the time spent to create and design initial deliverables.”

 

  1. Term and Termination.

 

4.1 Term: The initial term (the ‘Initial Term’) of this Agreement (unless otherwise specified in Client Statement of Work) shall commence on the Date of Effect and end on the one (1) month anniversary of the Launch Date. Thereafter, the term shall automatically renew on a month-to-month basis on each monthly anniversary of the Launch Date. The Initial Term and any monthly renewal thereafter shall be referred to herein as the ‘Term.’ 

 

*Please refer to the Client agreed upon Statement of Work for individual clarification.

4.2 Termination by Client: Following the Initial Term, Client may terminate this Agreement for any reason by calling Kush Media at (207) 558-3189 between the operating hours of 9:00 a.m. EST and 6:00 p.m. EST, Monday through Friday (excluding federal holidays). The client, must submit its notice of cancellation no later than 6:00 p.m. EST on the day before the next billing date to avoid further charges; provided, that if such day is a Saturday or Sunday or a federal holiday, then no later than 6:00 p.m. EST of the last business day immediately prior to the start of the next billing cycle. 

4.3 Termination by Kush Media: Kush Media shall have the right to terminate this Agreement with immediate effect with or without notice to Client as follows: (a) pursuant to Fees and Payment Section 3.2 0r 3.3 of this Agreement; (b) upon a breach of this Agreement, including, without limitation, the Services 2.10 Section, by Client (including anyone acting under its authority or on its behalf); (c) if Client becomes insolvent, files for bankruptcy, or is adjudicated as bankrupt or insolvent, or makes an assignment for the benefit of creditors, or makes an arrangement pursuant to any bankruptcy law, or if a receiver, liquidator, custodian, trustee or the like is appointed for its business; or (d) if Client winds down, liquidates, or otherwise ceases or discontinues its business for any reason. Notwithstanding the foregoing, Kush Media shall have the right to terminate this Agreement with thirty (30) days prior written notice to Client for any reason or no reason.

 

4.4 Effect of Termination: Upon any termination of this Agreement:

 

    • (a) All unpaid and accrued Service Fee and Miscellaneous Costs amounts (including interest thereon, if any) owed by Client hereunder shall become immediately due and payable to Kush Media;

 

    • (b) All rights and licenses granted by each Party to the other Party under this Agreement shall automatically cease and terminate;
    • (c) Kush Media will cease all of the Services, permanently deactivate and terminate the Client Properties, and permanently delete the Client account and all Client-Provided Material from the Kush Media Website and the Kush Media Systems;

 

    • (d) Client shall have no further right or permission to access or use, except for the Client-Published Materials: (1) the Client Website, including any templates, designs or look-and-feel contained therein; (2) Kush Media Website; (3) any of the Kush Media-Provided Material; (4) any of the Services; and (5) any of the Kush Media Systems;

 

    • (e) To the extent Client is in possession of any Kush Media-Provided Material (including any copies thereof), Client shall promptly return the same to Kush Media or, if so requested by Kush Media, promptly destroy the same;

 

    • (f) To the extent Client is in possession or control of any confidential information of Kush Media, it shall promptly return the same (including all copies thereof) to Kush Media or, if so requested by Kush Media, promptly destroy the same; and

 

    • (g) Notwithstanding anything herein to the contrary, all of the provisions of Sections 2.8, 2.9, 2.15, 4.4, 5, 6, 7 and 8 (including all definitions pertaining thereto) of this Agreement shall specifically survive any termination of this Agreement.

 

  1. Indemnification: Client shall indemnify, defend and hold harmless Kush Media and its affiliates and their respective directors, officers, employees, agents and representatives (collectively ‘Kush Media Indemnitees’) from and against all third-party claims, demands, actions, suits and proceedings, as well as all associated liabilities, judgments, awards, damages, settlements, penalties, fines, costs and expenses (including, without limitation, attorneys’ fees) (collectively ‘Third-Party Claims’), which result from or are caused by: (i) use or misuse, storage, or handling of any User Personal Information by Client or anyone acting under its authority or on its behalf; (ii) violation by Client or anyone acting under its authority or on its behalf, of the published Privacy Policy for the Client Website or any applicable law or regulation pertaining to the privacy or security of User Personal Information; (iii) the registration or use of the Client Website Domain Name; (iv) any Client-Provided Material; (v) use of the Client Properties, or any activity conducted on or via the Client Properties, by Client or anyone acting under its authority or on its behalf; (vi) violation of any applicable law or regulation by Client or anyone acting under its authority or on its behalf; and/or (vii) any breach of this Agreement by Client or anyone acting under its authority or on its behalf.

 

  1. DISCLAIMERS:

 

EXCEPT AS EXPRESSLY OTHERWISE STATED HEREIN, ALL OF THE SERVICES, THE KUSH MEDIA WEBSITE, AND THE CLIENT PROPERTIES ARE PROVIDED ON AN ‘AS IS’ BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. WITHOUT LIMITING THE GENERALITY OF THE PRECEDING SENTENCE, KUSH MEDIA HEREBY SPECIFICALLY DISCLAIMS, WITH RESPECT TO THE SERVICES, THE KUSH MEDIA WEBSITE, AND THE CLIENT PROPERTIES, ANY AND ALL (I) IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, (II) WARRANTIES OF TITLE AND NON-INFRINGEMENT, (III) WARRANTIES ARISING FROM ANY COURSE OF DEALING, USAGE OR TRADE PRACTICE, AND (IV) WARRANTIES THAT THE SERVICES, THE KUSH MEDIA WEBSITE AND THE CLIENT PROPERTIES WILL BE UNINTERRUPTED, ERROR-FREE AND SECURE.

 

  1. Limitations of Liability:

 

7.1 No Consequential Damages: IN NO EVENT SHALL KUSH MEDIA BE LIABLE HEREUNDER TO CLIENT FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST REVENUE, LOST PROFITS, LOSS OF BUSINESS OR OPPORTUNITY, OR LOSS OF USE OR DATA, EVEN IF KUSH MEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.

 

7.2 Maximum Liability: IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF KUSH MEDIA HEREUNDER TO CLIENT, REGARDLESS OF THE FORM OF CLAIM OR ACTION, EXCEED A SUM EQUAL TO THE TOTAL AMOUNT OF SERVICE FEES ACTUALLY PAID BY CLIENT TO KUSH MEDIA DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE ARISING OF THE RELEVANT CLAIM OR ACTION.

 

  1. Miscellaneous:

 

8.1 Publicity: Neither Party shall issue any press release or public announcement about this Agreement or the relationship of the Parties hereunder unless such press release or announcement is issued jointly by the Parties.

 

8.2 Marketing Use of Client’s Name: Client acknowledges and agrees that, during the Term, Kush Media and its corporate affiliates may mention and use Client’s name in sales, marketing, advertising, and promotional materials (including, without limitation, sales/marketing pitches and presentations, and client/customer lists) for the purpose of identifying Client as a customer of Kush Media.

 

8.3 Relationship of the Parties: The relationship of the Parties hereunder is that of independent contractors. Nothing in this Agreement shall be deemed or construed to constitute an agency, partnership, or joint venture between the Parties. 

 

8.4 No Assignment: Client may not assign this Agreement, in whole or in part, without the prior written consent of Kush Media.

 

8.5 Notices: Except with respect to the cancellation notice set forth in Section 4.2, all notices and other communications required or permitted under this Agreement shall be in writing and sent by courier or via e-mail or facsimile.

 

8.6 Entire Agreement: This Agreement (including all of the Exhibits hereto) constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior understandings, communications, and agreements, written or oral, between them with respect thereto. This Agreement may not be amended or modified except by a written instrument executed by both Parties.

 

8.7 Severability: If any provision or any portion of any provision of this Agreement is held to be illegal, invalid or unenforceable, such shall be deemed stricken and deleted from this Agreement to the same extent and effect as if never incorporated herein, but all other provisions of this Agreement and any remaining portion of any provision which is not deemed illegal, invalid or unenforceable shall continue in full force and effect.

 

8.8 No Waiver: No failure or delay by a Party to exercise any remedy in the event of a breach of this Agreement by the other Party will in any way operate as a waiver of such remedy, nor will any single or partial enforcement of any remedy for breach preclude the further enforcement of such remedy or the enforcement of any other remedy.

 

8.9 Governing Law: This Agreement, including all disputes and controversies between the Parties arising from or connected to this Agreement, shall be governed by and construed in accordance with the laws of the State of Maine, without giving effect to its conflict of laws rules.