WALK YOUR PLANS MADISON (“MSN”)
STANDARD TERMS & CONDITIONS OF SERVICE
ALL SERVICE AGREEMENTS ARE GOVERNED BY WALK YOUR PLANS MADISON
(MSN) STANDARD TERMS & CONDITIONS OF SERVICE. ANY PROPOSAL THAT
INCLUDES DIFFERENT OR ADDITIONAL TERMS OR CONDITIONS THAT VARY
FROM WALK YOUR PLANS MADISON (MSN) STANDARD TERMS & CONDITIONS
OF SERVICE ARE OBJECTED TO AND DISALLOWED. NOTWITHSTANDING THE
FOREGOING, ANY SUCH COUNTERPROPOSALS BY CLIENT SHALL NOT
OPERATE AS A REJECTION OF THE SERVICE AGREEMENT, BUT AS A
REJECTION OF THE ADDITIONAL OR DIFFERENT TERM(S) OR CONDITION(S).
1. Service.
(a) Walk Your Plans Madison (“MSN”), shall provide to the client (“Client”) access to
MSN’s projection surface (the “Service”) located at 6630 Watts Road, Suite A, Madison,
WI 53719. (the “Projection Space”) as designated on the corresponding Service
Agreement (which, together with these Standard Terms & Conditions of Service, is
herein collectively called the “Agreement”). During the term of the Agreement, as
described in Section 3(a) below, the Service may be modified and/or expanded from
time to time as mutually agreed upon by both MSN and Client (herein collectively called
the “Parties” and individually, a “Party”).
(b) In connection with the Service, MSN offers three (3) packages (collectively, the
“Membership Packages” or singly, a “Membership Package”) that allow for an allotted
amount of time to use the Projection Space. By executing the Service Agreement, Client
is bound to purchase one (1) of the Membership Packages. The Membership Package
to be purchased may be mutually agreed upon by MSN and Client at a later time after
the effective date of the Service Agreement.
2. Payment.
(a) As full consideration for the Membership Package, Client shall pay MSN a fee (the
“Fee”) in the amount specified for the accompanying Membership Package as
referenced in Section 2(a)(i)-(iii) in the Service Agreement.
(b) Client shall be responsible for all costs and expenses, including without limitation
legal fees, with respect to the collection of any outstanding balances contemplated by
this Section 2. MSN reserves the right to cancel the rendering of any future Service if
any past-due invoice is not paid in full.
3. Term and Termination.
(a) The term of the Agreement shall commence upon the effective date indicated on the
Service Agreement and shall remain effective until the Service to be provided under the
accompanying Membership Package is completed or twelve (12) calendar months from
the date of commencement, whichever comes first, except as otherwise provided
herein.
(b) Subject to Section 3(c) below, the Agreement may be terminated if any Party: (a)
becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of
its creditors; or (b) breaches any of its material responsibilities or obligations under the
Agreement, which breach is not remedied within ten (10) days from receipt of written
notice by the non-breaching Party of such breach. Termination of the agreement does
not constitute refund of any unused Service, as any unused Service is forfeited.
(c) MSN may terminate the Agreement at any time with or without cause by giving Client
thirty (30) days prior written notice.
(d) Termination of the Agreement for any reason shall not discharge either MSN or
Client’s liability for obligations incurred hereunder and amounts unpaid at the time of
such termination. Client shall pay MSN for the Service rendered under the
accompanying Membership Package prior to the effective date of termination.
4. Damage to Projection Space.
Space. Client shall pay for the cost of any repairs or damage
to the Projection Space resulting from the negligence or the unlawful or willful acts of
Client or its employees, representatives, customers, agents, officers, directors,
shareholders, members, managers, partners, owners, or visitors immediately upon
receipt of invoice therefor.
5. Proprietary Information.
All information provided by MSN during the course of its
relationship with Client should be considered confidential and proprietary, and Client
agrees it will not misappropriate or disseminate to any third party any of MSN’s trade
secrets (as such may be defined by Wisconsin law), business processes, publications
(current and prospective), best practices, or any other information which Client has
acquired or may acquire via the rendering of Service under the Agreement or otherwise,
unless such information shall become public knowledge as a result of some action other
than Client’s breach hereof.
6. Indemnification.
(a) Client agrees to indemnify, save, defend, and hold MSN harmless from and against
any and all actions, causes of actions, liability, damage, penalties, costs, expenses and
judgments (including, but not limited to, court costs and attorneys’ fees) arising from
injury to one or more persons or property sustained by anyone in and about the
Projection Space, resulting from any acts or omissions of Client or Client’s owners,
officers, agents, employees, contractors, or customer, or arising out of any breach of
Client’s responsibilities or obligations, representations, or warranties under the
Agreement. Not in limitation of the foregoing, Client shall defend, indemnify, and save
MSN harmless from and against any all actions, causes of action, claims, demands,
liabilities, costs, expenses, fines, or penalties due to any act or omission of Client or any
owner, officer, agent, employee, contractor, or customer of Client or with respect to any
noncompliance with or violation of any Federal, State or local law.
(b) The obligation to indemnify under this Section 6 is contingent upon: (i) MSN
promptly notifying Client in writing of any claim subject to such indemnity obligation; (ii)
Client having sole control over the defense and settlement of the claim; (iii) MSN
reasonably cooperating during defense and settlement efforts; (iv) the claim not arising,
in whole or in part, out of the action or inaction of MSN; and (v) MSN not making any
admission, concession, consent judgment, default judgment, or settlement of the claim or any part thereof. Client will reimburse the reasonable out-of-pocket expense incurred by MSN in providing such cooperation.
7. Limitation of Liability.
(a) In no event shall MSN be liable under the Agreement to Client for any incidental,
consequential, indirect, statutory, special, exemplary, or punitive damages, including,
but not limited to, lost profits, loss of use, loss of time, inconvenience, lost business
opportunities, damage to good will or reputation, and costs of cover, regardless of
whether such liability is based on breach of contract, tort, strict liability or otherwise, and
even if advised of the possibility of such damages or such damages could have been
reasonably foreseen. MSN’s entire aggregate liability for any claims relating to the
Service or the Agreement shall not exceed the Fees paid or payable by Client to MSN
under the Agreement in the twelve (12)-month period immediately preceding the
event(s) giving rise to such liability. This Section 7 shall survive the termination of the
Agreement. No action shall be brought for any claim relating to or arising out of the
Agreement more than one (1) year after the accrual of such cause of action, except for
money due on an open account.
(b) Except for intentional, malicious torts and not in limitation of any other limitations or
exculpations of liability of MSN set forth in this Section 7, MSN shall not be responsible
or liable for any damage, loss, theft, or injury to or of any property or to any person or
persons, at any time at the Projection Space, including any damage or injury to Client or
to any of Client’s owners, officers, agents, employees, contractors, or customers.
8. Compliance With Laws. Client
Client shall at all times comply with all Federal, State and
local laws, statutes, ordinances, rules, regulations, and requirements and the orders of
all duly authorized governmental officials with respect to the use of the Services and/or
Projection Space, and Client shall cause the Services and/or Projection Space to
conform to such governmental requirements at all times.
9. Miscellaneous.
(a) The Agreement is intended to create a contractual arrangement between the Parties
whereby MSN provides the Service to Client as an independent contractor. Therefore,
the Agreement (and any provisions contained therein) shall not be deemed or construed
to create an agency, partnership, fiduciary, employment, or any other relationship
between MSN and Client.
(b) The Agreement constitutes the entire agreement between the Parties regarding the
subject matter hereof. All prior or contemporaneous oral or other written agreements,
negotiations, representations, and arrangements regarding the subject matter hereof
are hereby merged into and superseded by the Agreement.
(c) All provisions of the Agreement are severable and neither the Agreement nor any
provision contained therein shall be affected by the invalidity or inapplicability of any
other provision of the Agreement.
(d) The Agreement may be amended, altered, or changed only by a written document
signed by both Parties and clearly designated as an amendment to the Agreement.
(e) These Standard Terms & Conditions of Service may be amended, altered, or
changed at any time upon written notice to Client. Such written notice to Client may be
sent via email with the modified terms and conditions of service. Client’s continued use
of Service after the date that notice is sent shall constitute an acceptance of any such
modified terms.
(f) No course of dealing between the Parties, no waiver by MSN, and no refusal or
neglect of MSN to exercise any right hereunder or to enforce compliance with the terms
and conditions of the Agreement shall constitute a waiver of any provision contained
therein, unless such waiver is expressed in writing by MSN and is clearly designated as
a waiver to a specific provision(s) of the Agreement.
(g) In the event of a dispute regarding the Service or any terms or conditions of the
Agreement, each Party agrees to provide written notice to the other Party of any
perceived breach and to work in good faith to achieve a mutually satisfactory resolution
prior to filing any suit or engaging in litigation of any sort.
(h) The Agreement is not transferable by either Party without the prior written consent of
the other Party, except that MSN may assign the Agreement without Client’s consent if
the assignment is to an affiliate of MSN or if the assignment is carried out as part of a
merger, restructuring, reorganization, sale, or transfer of all or substantially all of MSN’s
assets.
(i) Neither MSN nor Client shall be liable for any failure or delay in the performance of
such Party’s obligations under the Agreement if such failure or delay is on account of
causes beyond the Party’s reasonable control, including civil commotion, war, fires,
floods, accident, earthquakes, inclement weather, telecommunications line failures,
electrical outages, network failures, pandemics, epidemics, local disease outbreaks,
public health emergencies, governmental regulations or controls, casualty, strikes or
labor disputes, terrorism, acts of God, or other similar or different occurrences beyond
the reasonable control of either MSN or Client so defaulting or delaying in the
performance of the Agreement, for so long as such force majeure event is in
effect. Each of MSN and Client shall use reasonable efforts to notify the other Party of
the occurrence of such an event within five (5) business days of its occurrence. Should
MSN or Client experience a force majeure event, it shall take reasonable measures to
mitigate any impact that such event has on its performance of the Agreement, and shall
take all reasonable steps to perform despite such event.
10. Jurisdiction and Venue.
Wisconsin’s laws shall govern all disputes, controversies
and litigation arising under the Agreement. For all disputes, controversies, and litigation
arising under the Agreement, MSN and Client hereby (jointly and individually) submit to
the personal jurisdiction of the State Courts of Dane County, Wisconsin.