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The following are the “Terms and Conditions” which govern the delivery of the education and strategy services provided by Phired Up Productions, LLC, a limited liability company organized and existing under the laws of the State of Indiana, with its head office located at 695 Pro-Med Lane #205, Carmel, Indiana 46032 (“Phired Up”), to the customer noted in the applicable Services Agreement (“Customer”) which is executed by and between the parties and references these Terms and Conditions.
Section 1: Services
The “Services” provided under these Terms and Conditions will be those set forth in any mutually agreed Services Agreement, order form, statement of work or other document executed by Phired Up and Customer referencing these Terms and Conditions (each, a “Services Agreement”). The Services may include (a) configuration, implementation, training, or other consultation related to a Phired Up product or service that Customer has received rights to use under a separate agreement, and/or (b) strategic, advisory, classroom, training and/or other consulting services related to the fraternity/sorority industry. Each Services Agreement shall be governed by these Terms and Conditions. Customer warrants that the individual executing the Services Agreement is a duly authorized representative of Customer.
Section 2: Payment for Services
Services fees are invoiced in full upon receipt of an order, with payment terms of Net 30, except as otherwise specified on the applicable Services Agreement. The fees specified in the Services Agreement are the total fees and charges for the Services and will not be increased during the term of the Services Agreement except as the parties may agree in writing. Customer is responsible for all applicable federal, state and local sales, use or other taxes due on the Services rendered hereunder, except for taxes based on Phired Up’s income. If any change affects the time or cost of performance under the applicable Services Agreement, an adjustment in the time and/or compensation to be paid thereunder shall be agreed to in writing by the parties before such modification shall be effective. If dates Phired Up is scheduled to be onsite are changed or cancelled by Customer within fourteen (14) days of the scheduled date, Customer shall be assessed a cancellation fee in addition to any travel related fees and penalties. If dates Phired Up is scheduled to be virtually delivering education are changed by Customer within 72 hours of the schedule date,, Customer shall be assessed a cancellation fee and/or will forfeit those virtual training hours without reimbursement.
All programming/training dates must be confirmed by both parties in writing (E-mails with confirmation of receipt are acceptable) thirty (30) days prior to delivery, and dates are available to all Phired Up customers on a first-come first-served basis. All programming will be delivered by a Phired Up representative, and representatives may need to be changed based on availability.
Section 3: Term and Termination
These Terms and Conditions shall remain in effect from the effective date specified in the Services Agreement through the completion of the Services contemplated in the Services Agreement. Each Services Agreement, with respect to the Services, shall become effective on the effective date specified in the applicable Services Agreement and shall expire on the date that Services are completed thereunder (“Services Completion Date”). Either party may terminate the Services Agreement upon written notice given to the other party, if the other party materially breaches the Services Agreement and fails to cure such breach within sixty (60) days following receipt of notice describing the breach. Upon termination by Customer for Phired Up’s material breach, Customer shall be liable only for payment for the Services rendered through the termination date, and shall receive from Phired Up a pro-rata refund of any unused, prepaid fees for Services.
Section 4: Provision of Services
Phired Up will perform Services based on a schedule mutually agreed to by the parties. Services will expire unless the Services are scheduled within the dates specified in the Services Agreement OR delivered within twelve (12) months from the date they were ordered if no such dates are specified.
Section 5: Access
Customer shall provide Phired Up with access to data, materials, software and hardware as reasonably required for Phired Up to perform the Services (“Customer Materials”). Customer hereby grants Phired Up a limited right to use such Customer Materials solely for the purpose of performing Services hereunder. Customer represents and warrants that it has all rights necessary in the Customer Materials to provide them to Phired Up for such purpose. Customer shall provide Phired Up with safe access to Customer’s premises as reasonably required for Phired Up to perform the Services, if onsite performance of Services is needed and agreed to by Customer. Phired Up personnel shall comply with the reasonable written rules and regulations of Customer related to use of its premises, provided that such written rules and regulations are provided to Phired Up prior to commencement of the Services. Phired Up shall not be responsible for failures or delays in performing Services due to Customer’s failure or delay to provide access to Customer Materials or Customer premises or due to Customer-imposed or government-imposed security requirements.
Section 6: Intellectual Property Rights
Customer has and will retain sole and exclusive right, title and interest in and to all Customer Confidential Information and Customer Materials (collectively, “Customer Property”), including any and all intellectual property rights therein. Phired Up has and will retain sole and exclusive right, title and interest in and to all Phired Up Confidential Information, products, services, and all Phired Up technology, platforms, methodologies, processes, techniques, ideas, concepts, designs, tools, trade secrets and know-how, and any modifications, improvements or derivative works of the foregoing, including any and all intellectual property rights therein, (collectively, “Phired Up Property”). However, Phired Up’s ownership rights do not extend to Customer Property embedded or incorporated in the foregoing items.
Unless expressly stated otherwise in Services Agreement, Phired Up will retain all right, title and interest in and to all deliverables, work product, designs, methodologies, processes, techniques, ideas, concepts, designs, tools, trade secrets and know-how, and any modifications, improvements or derivative works of the foregoing resulting from or used in providing the Services of the type described in Section 1(a) above, excluding any and all Customer Property, including any and all intellectual property rights therein (“Services Results”).
Upon full and final payment of all fees and expenses owing to Phired Up under the applicable Services Agreement, Phired Up hereby grants to Customer the same rights to use the Services Results as the rights granted to Customer under the Phired Up agreement with respect to the Phired Up education or strategy services to which such Services Results pertains.
Section 7: Exclusion of Warranties
THE SERVICES ARE PROVIDED “AS IS”. PHIRED UP EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, DESIGN OR SUITABILITY, OR QUALITY OF SERVICE. WITH RESPECT TO THE SERVICES OR ANY GOODS, SERVICES OR OTHER MATERIALS DELIVERED BY PHIRED UP, PHIRED UP DOES NOT GUARANTEE IN ANY WAY THAT THE RESULTS OF ANY ANALYSIS AND REPORTS IT PRODUCES ARE ACCURATE. NO WARRANTIES SHALL ARISE UNDER THESE TERMS AND CONDITIONS FROM COURSE OF DEALING OR USAGE OF TRADE. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, NONE OF PHIRED UP’S REPRESENTATIONS, WARRANTIES OR OBLIGATIONS UNDER THESE TERMS AND CONDITIONS SHALL APPLY WITH RESPECT TO THIRD PARTY DATA OR THIRD-PARTY PLATFORMS. PHIRED UP MAKES NO WARRANTIES OR REPRESENTATIONS AND WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY THIRD-PARTY DATA, INCLUDING THE ACCURACY OR LEGALITY OF ANY THIRD-PARTY DATA. ALL SERVICES WITH RESPECT TO THIRD PARTY PLATFORMS AND THIRD-PARTY DATA ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND MAY BE DISCONTINUED AT ANY TIME BY PHIRED UP.
Section 8: Limitation of Liability
NOTWITHSTANDING ANYTHING IN THESE TERMS AND CONDITIONS TO THE CONTRARY, THE ENTIRE LIABILITY OF EITHER PARTY TO THE OTHER ARISING OUT OF THESE TERMS AND CONDITIONS FOR THE SERVICES PERFORMED HEREUNDER SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY CUSTOMER TO PHIRED UP UNDER THE APPLICABLE SERVICES AGREEMENT. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS OR DATA) WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION 9 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS AND CONDITIONS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. Phired Up is willing to enter into these Terms and Conditions and the Services Agreement and perform Services for Customer only in consideration of and in reliance upon the provisions of these Terms and Conditions limiting Phired Up’s exposure to liability, including but not limited to the provisions contained above. Such provisions constitute an essential part of the bargain underlying these Terms and Conditions and the Services Agreement and have been reflected in the consideration specified therein.
Section 9: Independent Contractor
Phired Up is, and throughout the term of these Terms and Conditions and the Services Agreement shall be, an independent contractor, and not an employee, partner or agent, of Customer. Phired Up shall not be entitled to nor receive any benefit normally provided to Customer’s employees such as, but not limited to, vacation payment, retirement, health care or sick pay. Customer shall not be responsible for withholding income or other taxes from the payments made to Phired Up employees or authorized representatives.
Section 10: Customer Indemnification
Customer agrees to indemnify, defend, and hold harmless Phired Up and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, arising from or relating to: (a) Customer’s use or misuse of the Services or Customer’s breach of these Terms and Conditions; or (b) gross negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer or any third party on behalf of Customer, in connection with these Terms and Conditions.
Section 11: Confidentiality
Each party may have access to information that is confidential and proprietary to the other party (“Confidential Information”). “Confidential Information” shall include any and all technical and non-technical information of each party, including but not limited to (a) patent and patent applications, (b) trade secrets, and (c) proprietary information–mask works, ideas, samples, media, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, algorithms, software programs, software source documents, and formulae related to the current, future, and proposed products and services of each of the parties, and including, without limitation, their respective information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising, marketing plans and any other information of a similar nature. Each party agrees not to make Confidential Information available in any form to any third party except to such party’s employees, contractors, agents or service providers who are required to know to allow such party to exercise its rights or perform obligations under these Terms and Conditions or to use the Confidential Information for any purpose other than in the performance of these Terms and Conditions. Each party agrees to take all reasonable steps to ensure that Confidential Information is secure and not disclosed or distributed by such party’s employees or agents in breach of this Section 11. Upon request of the disclosing party, the receiving party will destroy the disclosing party’s Confidential Information, other than archival back-up copy. The obligations of this provision shall not apply to any such Confidential Information which, after the date hereof, becomes publicly available without a breach of these Terms and Conditions, or is disclosed to a third party without similar restriction on the third party’s rights, or is already known in the relevant industry. This Section 11
will survive termination of these Terms and Conditions and the applicable Services Agreement.
Section 12: Assignment
Neither party may assign or delegate its rights and obligations under these Terms and Conditions and the Services Agreement to any third party without the prior consent of the other party to these Terms and Conditions (which consent shall not be unreasonably withheld); provided, however, that a “change of control” transaction shall not be deemed assignment or delegation under these Terms and Conditions.
Section 13: Force Majeure
Neither party shall be deemed in default or otherwise liable under these Terms and Conditions and the Services Agreement due to its inability to perform its obligations by reason of any fire, earthquake, flood, snowstorm, epidemic, accident, explosion, casualty, strike, lockout, labor controversy, riot, civil disturbance, act of public enemy, embargo, war, act of God, or any municipal, county, state or national ordinance or law, or any executive, administrative or judicial order (which order is not the result of any act or omission which would constitute a default hereunder), or any failure or delay of any transportation, power, or communications system or any other or similar cause beyond that party’s reasonable control. Should any Services need to be postponed due to a Force Majeure event, the Customer is responsible for rescheduling and a new date for Services must be rescheduled within one (1) year of the original scheduled date. If any on-site or in-person Services are required to be changed to digital delivery due to health and safety concerns or travel restrictions or obstacles, invoicing will be revised to reflect an appropriate reduction in cost in compliance with company policies.
Section 14: Governing Law and Venue
These Terms and Conditions shall be governed by and construed under the laws of the State of Indiana, exclusive of its choice of law rules, as such law applies to agreements between Indiana residents entered into and to be performed within Indiana, except as governed by federal law. Any controversy or claim arising out of or in any way connected with these Terms and Conditions or the Services Agreement, or the alleged breach thereof shall be brought in the state and federal courts located in the State of Indiana. Each party waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this paragraph.
Section 15: Entire Agreement
These Terms and Conditions, together with all applicable Services Agreement executed by the parties constitute the entire agreement between the parties, and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment or waiver of any provision of these Terms and Conditions shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of these Terms and Conditions, and all such terms or conditions shall be null and void. If any provision of these Terms and Conditions is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable.
Last Updated: March 12, 2024