MEDIASHINE NY LLC TERMS AND CONDITIONS

1. DEFINITIONS AND INTERPRETATION

1.1. In these terms and conditions the following definitions apply unless otherwise stated:

‘Agreement’ means the agreement between the Company and the Client for the supply of Services governed by these Terms and the Order.

‘Client’ means the individual or business entity who purchases Services from the Company and whose details are set out in the Order.

‘Company’ means MediaShine NY LLC a company incorporated in the USA, New York, having an address at 2430 St. Raymond Ave Bronx, NY 10461 Email: [email protected].

‘Services’ means the services the Company will provide to the Client as specified in the Order and as revised on the MediaShine MY website from time to time, as needed to comply with applicable laws or to more effectively produce business results for our clients.

‘Order’ means the order placed by the Client through online Credit Card purchase or by email instruction that an order is to be placed. Together with these terms and conditions the order shall form a binding agreement.

‘Specification’ means the description or specification of the Services in the Order, which will usually be as displayed on the Company website and visible to the Client at the time of order.

‘Quotation’ means the written quotation prepared by the Company which contains its proposals for providing Services to the Clients. Unless a bespoke quotation Is prepared, this quotation will be those services and prices displayed on the Company website and visible to the Client at the time of order.

‘Intellectual Property Rights’ means all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

‘Force Majeure Event’ means an event beyond the reasonable control of either party, including but not limited to strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.

‘Terms’ means these terms and conditions as updated from time to time by the Company.

‘VAT’ means value added tax chargeable under the USA law and any similar additional tax payable on the services provided.

1.2. Where these Terms use words in their singular form, they shall also be read to include the plural form of the word and vice versa. Where these Conditions use words which denote a particular gender, they shall be also read to include all genders and vice versa.

1.3. The headings in this document are inserted for convenience only and shall not affect the construction or interpretation of these Terms.

1.4. A reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.

2. TERMS AND CONDITIONS

2.1. These Terms shall apply to all agreements concluded between the Company and the Client to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or in the course of dealings between the Company and the Client.

2.2. These Terms and the Order may only be varied by express written agreement between the Company and the Client.

3. THE AGREEMENT

3.1. The Order constitutes an offer by the Client to purchase the Services in accordance with these Terms. The Client shall ensure that the terms of the Order and any relevant Specification are complete and accurate.

3.2. The Agreement sets forth the terms and conditions whereby the Company agrees to produce certain Campaigns, as described below, for the Client. The Company will be engaged solely and exclusively for the limited purpose of provision of the Campaigns. Neither party is, by virtue of the Agreement, authorized as an agent, employee, or legal representative of the other. Except as specifically set forth herein, neither party shall have the power to control the activities and operations of the other and its status at all times will continue to be that of an independent contractor relationship.

3.3. By accepting Terms and conditions and making a payment the Client automatically by default signs the Agreement with the Company.

3.4. The Client acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Any samples, drawings, descriptive matter, or advertising issued by the Company and any descriptions or illustrations contained in the Company’s brochures, website or advertisements are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or any other contract between the Company and the Client for the supply of Services.

3.5. A Quotation for the supply of Services given by the Company shall not constitute an offer. A Quotation shall only be valid for a period of 30 Days from its date of issue.

4. COMPANY OBLIGATIONS AND WARRANTIES

4.1. The Company warrants that it will provide the Services as stipulated in the Order using reasonable care and skill to conform in all material respects with the Specification.

4.2. The Company shall use all reasonable endeavors to meet any performance dates specified in the Order but any such dates shall be estimated only and time shall not be of the essence for the provision of the Services. The Company shall not be liable for any delay in delivery of the Services caused by a Force Majeure event or the Client’s failure to provide the Company with adequate delivery instructions or any other instructions relevant to the supply of the Services.

4.3. The Company shall have the right to make any changes to the Services which are necessary to comply with any applicable law.

4.4. The Company shall be entitled to use subcontractors or other third party services for the provision of the Services.

5. CLIENT’S OBLIGATIONS AND INDEMNITIES

5.1. The Client shall provide assistance and technical information to the Company, as reasonably required by the Company in sufficient time to facilitate the execution of an Order in accordance with any estimated delivery dates or milestones. The Client shall have sole responsibility for ensuring the accuracy of all information provided to the Company and warrants and undertakes to the Company that the Client’s employees assisting in the execution of an Order have the necessary skills and authority.

5.2. The Client shall be obliged as quickly as possible and within the agreed deadline to comment on and or approve materials provided under the Services, including (without limitation) profile copy, target website readerships and graphic material submitted by the Company. In addition, the Client shall be obliged as quickly as possible and within the agreed deadline to implement changes on websites, in IT systems or where it may otherwise be required by the Company.

5.3. The Client shall be obliged to inform the Company immediately of changes of domain names, websites, passwords, technical setup and any other material information regarding the technical infrastructure which may affect the Services delivered by the Company.

5.4. In the event that the Client fails to undertake those acts or provide those materials required under this clause 5 within any agreed deadline (and at least within 15 Business Days of the date requested by the Company) the Company shall be entitled to invoice for the Services that it has supplied and the remaining Services specified in the Order whether or not the Company has been able to deliver them.

5.5. The Client shall indemnify and keep the Company indemnified fully against all liabilities, costs and expenses whatsoever and howsoever incurred by the Company in respect of any third parties as a result of the provision of the Services in accordance with the Order, Specification, or the content of the Client’s advertising or web pages which result in claims or proceedings against the Company for infringement of any Intellectual Property Rights or other proprietary rights of third parties, or for breach of confidentiality or contract or for defamation.

5.6. The Client undertakes to comply with all applicable rules, regulations, codes of practice and laws relating to its use of the Services and to keep the Company indemnified in respect of any and all costs, claims or proceedings whatsoever brought against the Company by any third party in connection with any breach of the same by the Client.

5.7. The Company requires that prior notice be given for any alterations relating to the Client’s social media profile(s) that may affect the services supplied by the Company. If alterations are made by the Client or a third party to the Client’s profile(s) then performance and brand integrity may be affected and the Company cannot be held responsible.

5.8. It is the Client's sole and exclusive responsibility to ensure that the requirements for Client's business are met, as well as ensuring claims on advertising and graphics are true, accurate. The Company shall not be responsible for any legal, technical, or regulatory specifications.

6. PRICES

6.1. All Social Media Plans (Basic / Daily + / Shine with Ads) are provided on a monthly, or annual subscription basis in that case the Client acknowledges that subscriptions will be automatically renewed by the Company at the end of each term to avoid any interruption to service. The Client may terminate its subscription to the Services in writing giving no less than 10 business days’ notice of the termination. Services will continue to be provided until such time as the existing service subscription has been provided in full to the Client (ie. until the end of the month or year for which the services have already been invoiced or been pre-paid by the client).

6.2. Facebook/Instagram or LinkedIn advertising cost is not included in the "Shine with Ads" plan price and to any Custom plans which include Facebook/Instagram or LinkedIn targeting advertising. The Client should pay extra for targeting advertising. The "Shine with Ads" plan price includes Social Media posts and creation of Facebook or Instagram targeting advertising, meanwhile the Client should pay extra to Facebook/Instagram or LinkedIn in order to display this advertising. The recommended extra cost for Facebook/Instagram or LinkedIn advertising is starting from $200.00 depending on the frequency of displaying ads. The company can recommend to the Client how much to spend on targeting advertising, but it depends on the Client's paid advertising budget.

7. PAYMENT

7.1. The Client will be billed through an invoicing system from the Company’s website monthly in the amount of the Order/the Plan. The work will begin at the execution of this Agreement as well as when the Company receives the payment from the Client. Billing will be assessed against the retainer until it has been used up. Client agrees to reimburse pre-approved expenses and costs as indicated on invoices. Such expenses and costs shall be accompanied by receipts and reasonable supporting documentation. The Parties will agree on the expenses prior to the expenses being incurred.

7.2. In case of a monthly or annual subscription the Company shall invoice for services monthly or annually in advance of services being delivered. Where the order is placed with a Credit Card, payment shall automatically be taken on the date of each subscription renewal.

7.3. For "Shine with Ads" plan and any Custom plans which include Facebook/Instagram or LinkedIn targeting advertising the Client pays: the price of the Plan + the amount of advertising budget.

7.4. The Client will need to transfer the amount of advertising budget to the Company’s bank account and the Company will pay to Facebook or LinkedIn, or the Client will need to pay the amount of advertising budget directly to Facebook or LinkedIn. The amount which the Client spends on advertising, the advertising budget, is not included in the price of the Plan. In case the Client decides to transfer the amount of advertising budget to the Company’s account, the Client needs to send a confirmation of the transaction to the Company.

7.5. The Client shall pay each invoice submitted by the Company within the shorter of 7 Days of the date of the invoice and in cleared funds in accordance with clause 7.6 below. For past due invoices, a late fee of the following will apply: 10% of the original invoice.

7.6. The Client shall pay all amounts due under the Agreement in full without any deduction or withholding and the Client shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company may, without limiting its other rights or remedies, set off any amount owing to it by the Client against any amount payable by the Company to the Client.

7.7. The work will begin at the execution of this Agreement as well as when the Company receives the following retainer: the price of Plan and the amount of adverting budget. Billing will be assessed against the retainer until it has been used up.

8. TAXES

8.1 The Company herein acknowledges that they will receive an IRS Form 1099-MISC from the Client. The client shall not withdraw any applicable tax funds from any fees paid to the Company. The Company and the Client shall each be solely responsible for all of the federal, state, and local taxes applicable to them.

9. NONEXCLUSIVITY

9.1. The Client and the Company hereby acknowledge and agree that nothing contained herein is to establish an exclusive relationship between the Parties. The Company shall be free to continue working for and taking on new clients, without regard to the Client. The Company does not need the Client approval for any such work. The Client is also free to hire additional marketers for any of Client's work and does not need Company's approval to do so.

10. LIABILITY

10.1. The Company shall have no liability to the Client for any loss or damage whatsoever arising from or in connection with the provision of the Services or for any claim made against the Client by any third party.

10.2. Without prejudice to the generality of Clause 10.1 above, the Company shall have no liability for any losses or damages which may be suffered by the Client whether the same are suffered directly or indirectly or are immediate or consequential which fall into the following categories:

a) Any indirect or consequential loss arising under or in relation to the Contract even though the Company was aware of the circumstances in which such loss could arise;

b) Loss of profits; loss of anticipated savings; loss of business opportunity or goodwill;

c) Loss of data; Loss of search engine rankings; Loss of website traffic; Loss of followers; Loss of access to social media profiles.

10.3. The Company, the Company’s owners, the Company’s employees shall not be liable under any legal theory for any issues suffered in connection with the Client’s reputation, the Client’s brand recognition, or any other damage in connection with the Client’s business. The Company, the Company’s owners, the Company’s employees shall not be liable of loss of profit. The Company, the Company’s owners, the Company’s employees shall not be liable of data.

10.4. The Company shall not be liable to anyone, any company, any business, or any organization for content which the Company posts in terms of any religious, sexual or other rights and disputes. The company respects the rights of everyone and has no intention to infringe on the interests of others.

10.5. The Company provides Services without prejudice to the interests of other companies, or other businesses, or individuals. The Company shall not be liable to any company or any business in terms of their business interests.

10.6. To the extent such liability is not excluded by sub-clauses 10.1, 10.2 and clause 11 below, the Company’s total liability (whether in contract, tort (including negligence or otherwise)) under or in connection with the Contract or based on any claim for indemnity or contribution (including for damage to tangible property) or otherwise will not in any event exceed the total sum invoiced for the Services.

11. OTHER LIMITATIONS OF LIABILITY

11.1. The Company shall not be liable for downtimes, interference in the form of hacking, virus, disruptions, interruptions, faulty third-party software, search engines or websites on which a service is dependent or other deliveries from a third party. The Company shall use its reasonable efforts to assist in remedial efforts if so requested by the Client. Any work connected with remedial efforts as described above shall be charged to the Client separately in accordance with these Terms or (at the Company’s discretion) the Company’s price list applicable from time to time.

11.2. The Company shall not be liable for any changes made without notice by the Client or a third party employed by the Client to domain names, websites, content, links, technical setup etc. and affecting the Services delivered by the Company. Preceding or subsequent work connected with any adjustments required as a result of such changes shall be charged to the Client in accordance with these Terms or on the basis of the Company’s price list applicable from time to time at the Company’s discretion.

11.3. The Company shall use all reasonable endeavors to deliver Services relating to social media marketing, content sharing, blogging and user engagement in accordance with the guidelines applicable to the relevant websites and social media platforms. However, the Company shall not be liable for delays or deteriorating performance due to changes made to standard terms, algorithms, account functionality, account availability, search results, viewing policy, prices or other matters beyond the Company’s control and reserves the right to make changes to Services as a result of the same. In addition, the Company shall not be liable for other changes or discontinuation of social media platforms’ services or third party services.

11.4. The Company shall not be liable for Services that lead to a certain volume of traffic, number of clicks, likes, follows, registrations, purchases or the like.

11.5. The Company shall not be responsible for profiles or their content streams dropped or excluded by a search engine or social media site for any reason.

11.6. If the Client does not implement some or all of the Company’s recommendations, the Company shall not bear any liability for any lack of success experienced by the Client relating to the Services.

12. INTELLECTUAL PROPERTY RIGHTS

12.1. It is the responsibility of the Client to ensure that they have the right to use any Intellectual Property Rights when they provide any text, image or representation (“Materials”) to the Company for incorporation into the Services and the Client hereby grants or agrees to procure the grant of (as applicable) an irrevocable license to the Company to use such Materials for the purposes of providing the Services for the duration of the Contract.

12.2. The Client shall be responsible for ensuring that the contents of Materials which the Client has contributed or approved are not in contravention of legislation, decency, marketing rules or any other third-party rights. The Company shall be entitled to reject and delete such material without incurring any liability. In addition, the Company shall be entitled to cancel the Order.

12.3. The Client shall indemnify the Company against all damages, losses and expenses suffered or incurred by the Company as a result of the Materials which the Client has contributed or approved being in contravention of legislation, decency, marketing rules or any action that any such Materials infringe any Intellectual Property Rights of a third party.

12.4. The parties shall be obliged to notify the other party without undue delay of any claims raised against a party as described above.

12.5. Unless expressly stated otherwise in these Terms or in an Order, the Intellectual Property Rights created, developed, subsisting or used in connection with the Services and whether in existence at the date hereof or created in the future shall vest in and be the property of the Company or the relevant third party from whom the Company has acquired a right of use with a view to executing the Order. The Client agrees to execute and deliver such documents and perform such acts as may be necessary from time to time to ensure such Intellectual Property Rights rest in the Company.

12.6. The Intellectual Property Rights as mentioned in Clause 12.2 shall not be used, assigned, distributed, copied, forwarded to online or offline activities by the Client without a separate, express written agreement.

12.7. If the Company makes software subscriptions, processes or content available to the Client as part of the execution of an Order, the Client shall only acquire a non-exclusive personal non-transferable license to use such material until the Services under this agreement cease.

12.8. The Client hereby irrevocably licenses the Company to use and display the Client’s name, figure, logo etc. as a reference on the Company’s website, other marketing materials or types of media whilst they are a Client of the Company and for 18 months after the Contract terminates. The Client agrees to send the Company its most recent logo or figure as and when it is amended from time to time.

13. CONFIDENTIALITY AND PERSONAL DATA

13.1. A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause shall survive termination of the Contract.

13.2. During the term of the Contract the Company shall take the same care as the Company uses with its own confidential information, to avoid, without the Client’s consent, the disclosure to any third party (except a subcontractor working on the Services who is subject to similar undertakings of confidentiality) of any of the Client’s business or operational information which the Client has designated as confidential.

13.3. The obligation in Clause 13.2 shall not apply to any information which is or becomes publicly available otherwise than through a breach of this agreement, is already or rightly comes into the Company’s possession without an accompanying obligation of confidence, is independently developed by the Company, or which the Company is required to disclose by law.

13.4. During the term of the Contract the Client will not disclose to any persons within its organization that do not have a need to know, or to any third party, any information and non Client materials provided by the Company concerning the method or approach the Company uses in providing the Services.

13.5. The Client shall be obliged to indemnify the Company for any loss, including costs incidental to legal proceedings, suffered by the Company as a result of the processing of personal data which the Client has contributed being in contravention of any law. The parties shall be obliged to notify the other party without undue delay of any claims raised against a party as described in the present clause.

14. PORTFOLIO USE

14.1. Notwithstanding the specific rights of intellectual property outlined by this Agreement, Marketer shall be permitted to use all work in Marketer's professional portfolio, after such work has been made public by the Client. Nothing contained herein shall limit Marketer's such right.

15. TERM, TERMINATION AND ASSIGNMENT

15. 1. The Parties may terminate this Agreement prior to the specified end date by giving notice in writing. Notice shall be given at least the following amount of time before termination: 1 week.

15.2. If the Client finds the Company's work unsatisfactory, the Company shall be given the following amount of time for one revision to cure: 10 days. After this cure period, if the Client still finds the work unsatisfactory, the Company shall not be under any additional obligations. The Client shall still be responsible to pay the Company all due fees and the Parties may then terminate this Agreement.

15.3. This agreement will also immediately terminate upon the death of the Company or the Client, the inability of the Company to perform the services because of a sudden and medically documented physical or mental disability, the liquidation, dissolution or discontinuance of the business of the Client or the Company in any manner, or the filing of any petition by or against the Client or the Company under federal or state bankruptcy or insolvency laws.

15.4. Upon termination for any reason, all fees and reimbursements shall be paid and provided to the Company as they have accrued up to the date of termination.

15.5. Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if the other party:

a) commits a material breach of the Contract and (if such breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing of the breach; or

b) becomes or is insolvent or is unable to pay its debts or (except for the purposes of a genuine amalgamation or reconstruction) a petition is presented or meeting convened or resolution passed for winding up the defaulting party or the defaulting party enters into liquidation whether compulsorily or voluntarily or compounds with its creditors generally or has a receiver, administrator, or administrative receiver appointed over all or any part of its assets or the defaulting party ceases to carry on all or a substantial part of its business.

15.6. The Company shall, in addition to all other rights and remedies under these Terms be entitled to terminate this Contract without notice in the event that any of its charges for the Services are not paid in accordance with these Terms.

15.7. Upon termination, for whatever reason, the parties shall be obliged to return all materials received from the other pursuant to the Contract without undue delay and the Client shall cease to use any content, subscriptions, processes or codes provided during the provision of the service. If the Client fails to do so, the Company shall be entitled to invoice the Client in line with its then current terms and conditions for subsequent Services without such invoicing amounting to a waiver of the Company’s right to terminate the Contract.

16. FORCE MAJEURE

16.1. The Company is not liable for any failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, acts of nature and natural disasters, and other acts which may be due to unforeseen circumstances.

16.2. If a party believes that a Force Majeure Event has occurred, such party shall immediately inform the other party of the start and end of the Force Majeure Event.

16.3. Notwithstanding the other provisions of the present Terms, each party shall be entitled to terminate the Contract without liability to the other by written notice to the other party in the event that the performance of the Contract is impeded for more than 6 months due to a Force Majeure Event.

17. DISPUTE RESOLUTION

17.1. In case of a dispute between the Parties relating to or arising out of this Agreement, the Parties shall first attempt to resolve the dispute personally and in good faith. If these personal resolution attempts fail, the Parties shall then submit the dispute to binding arbitration. The arbitration shall be conducted in the county and state noted in the governing law provision of this Agreement. The arbitration shall be conducted by a single arbitrator, and such arbitrator shall have no authority to add Parties, vary the provisions of this Agreement, award punitive damages, or certify a class. The arbitrator shall be bound by applicable and governing federal law as well as the law of New York. Each Party shall pay their own costs and fees. Claims necessitating arbitration under this section include, but are not limited to: contract claims, tort claims, claims based on federal and state law, and claims based on local laws, ordinances, statutes or regulations. Intellectual property claims by Marketer will not be subject to arbitration and may, as an exception to this sub-part, be litigated. The Parties, in agreement with this sub-part of this Agreement, waive any rights they may have to a jury trial in regard to arbitral claims.

18. GOVERNING LAW

18.1. This Agreement shall be governed by and construed in accordance with the internal laws of New York without giving effect to any choice or conflict of law provision or rule. Each party irrevocably submits to the exclusive jurisdiction and venue of the federal and state courts located in the following county in any legal suit, action, or proceeding arising out of or based upon this Agreement.

19. NOTICES

19.1. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement. All notices shall be delivered by email or at the address which the parties may designate to each other through personal delivery, nationally recognized overnight courier (with all fees prepaid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only if (a) the receiving party has received the Notice and (b) the party giving the Notice has complied with the requirements of this Section.

20. MISCELLANEOUS

20.1. The Company reserves the right to modify or discontinue, temporarily or permanently, the Services with or without notice to the Client and the Company shall not be liable to the Client or any third party for any modification to or discontinuance of these Services save for the return of any prepaid sums in connection with the provision of the Services which are subsequently not provided.

20.2. The Company shall be free to provide its Services to third parties whether during or following the provision of the Services to the Client.

20.3. The failure of either party to enforce or to exercise at any time or for any period of time any right pursuant to these Terms does not constitute, and shall not be construed as, a waiver of such terms or rights and shall in no way affect that party’s right later to enforce or to exercise it.

20.4. The Company may from time to time make any valid alteration to or variation of these Terms by publishing the revised Terms on its website and informing the Client by electronic mail that the Terms have been modified. Continued use of the services constitutes acceptance of the revised Terms by the Client.

20.5. All notices must be in writing to MediaShine NY LLC: 430 St. Raymond Ave Bronx, NY 10461, or such address as is advised by the Company, or to e-mail: [email protected].

21. HEADINGS

21.1. Headings to this Agreement are for convenience only. Headings shall in no way affect the provisions themselves and shall not be construed in any way that would limit or otherwise affect the terms of this Agreement.

22. ENTIRE AGREEMENT

22.1. The parties acknowledge and agree that the Agreement supersedes any prior agreement, understanding or arrangement between the parties, whether made orally or in writing and constitutes the entire agreement between the Company and the Client relating to these Services. Therefore, except as expressly provided, all other conditions and warranties (implied, statutory or otherwise) are hereby excluded to the fullest extent permitted by law. This Agreement may be changed, modified or discharged only if agreed to in writing by both parties.

MEDIASHINE NY LLC TERMS AND CONDITIONS

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