Make It Zing

Terms of Service

Make It Zing
Terms of Service

Effective: May 1, 2021

The www.makeitzing.com website is owned and operated by New Boston Creative Group, LLC, a KS limited liability company doing business as Make It Zing, together with its affiliates, subsidiaries and partners (“Make it Zing”, “we”, “our”, or “us”). This Terms of Service Agreement (“Agreement” or “Terms”) is intended to make you aware of the terms and conditions of your use of our website(s) and any mobile applications we have (the “Sites”) and the products and services offered through the Sites (collectively, the “Services”). This Agreement applies to any Sites where this Agreement is referenced or linked to. We reserve the right to update and modify these Terms at any time without prior notice. Any modifications to these Terms will be effective immediately upon posting of the updated Terms on the Site. Your continued use of this Site following a notice of updated Terms constitutes your acceptance to be bound by any changes.

PLEASE READ THIS AGREEMENT CAREFULLY. BY CREATING, REGISTERING, USING OR ACCESSING AN ACCOUNT OR THE SITES AND SERVICES, POSTING OR DOWNLOADING CONTENT OR ANY OTHER INFORMATION TO OR FROM THE SITES OR SERVICES, OR MANIFESTING YOUR ASSENT TO THESE TERMS OF SERVICE IN ANY OTHER MANNER, YOU HEREBY UNEQUIVOCALLY AND EXPRESSLY AGREE TO BE BOUND BY, AND SHALL BE SUBJECT TO, THESE TERMS OF SERVICE. IF YOU DO NOT UNEQUIVOCALLY AGREE TO THESE TERMS OF SERVICE, YOU MAY NOT USE OR OTHERWISE ACCESS THE SITES OR SERVICES, CREATE, REGISTER OR ACCESS AN ACCOUNT OR POST OR DOWNLOAD CONTENT OR ANY OTHER INFORMATION TO OR FROM THE SITES. 

  1. Services. 
    1. Service Description. We provide pre-set packages of advertising, branding, marketing and design Services so you can grow your personal business, non-profit, brand or image (a “Package”). Each Package contains detailed descriptions of what is included, including the finalized, approved versions of the physical and digital deliverable items that result from our Services (the “Deliverables”), the limited number of revisions to such Deliverables, and the pricing for the Deliverables (“Package Description”). For the avoidance of doubt, all working files, raw files, or native files in any format created by us, our employees, or any third party providers are not considered Deliverables. You will find the Package Description under the tab of each Package on our Sites. As each Package is pre-set, no changes or modifications can be made to the Packages, including but not limited to, the Deliverables or number of revisions. If you seek more customized marketing and design services, please see our other site www.newbostoncreative.com.
    2. Payment and Fees. In consideration for the Services, you will be required to pay the fees as set forth in the Package Description. Payment is due at the commencement of the Project (defined below) and must be received in full by us before we provide you with any Services. Suspension of Services will not relieve you from your obligation to pay any expenses or costs that have been invoiced or incurred as of the date of suspension. Fees are exclusive of sales, use, excise, personal property and all other taxes. You are responsible for paying any and all taxes that apply to you or your purchase and ownership of the Deliverables. If you purchase a Package that includes a custom designed website, you are solely responsible for any costs or fees associated with hosting the website. We will not be responsible for the cost of hosting your website.
    3. Provision of Services; Acceptance. Upon receipt of payment, you will be matched with a Project Manager who will work directly with you and manage the provision of the Services and Deliverables to you (the “Project”). Your Project Manager will send an information form that must be completed before the consultation call can be scheduled. Following the consultation call, your Project Manager will begin to produce the Deliverables. We strive to provide our Services and Deliverables as quickly as possible; however, we make no guarantee as to timeline of the Project, as it can be influenced by a number of factors including but not limited to the Package selected, your response time to any requests by us, and outside forces. 
    4. Acceptance. While we make every reasonable effort to proof materials and Deliverables, you are ultimately responsible for proofing. We make no effort to review your request for Services or the Deliverables for any purpose, including but not limited to your ability to own or use it, its legality or non-infringement. You are ultimately responsible for ensuring the Services and Deliverables you have requested from us are in compliance with all applicable federal, state, local and other laws and regulations. Before we transfer the final Deliverables to you, your Project Manager will notify you by email periodically, requiring you to confirm your interim and final approvals of the design and/or materials with an email response. If you do not respond to said notifications within ten (10) calendar days, such interim and final approvals will be deemed accepted and we will proceed to the next phase of the project or transfer the final Deliverables to you. After transfer of the final Deliverables, you will not be able to make or request any changes or modifications to the design and/or materials, unless we approve of additional requests in writing and additional fees are charged. Further, all revisions or modifications must be made within the number of rounds of revisions as specified in the Package.
    5. Updates/Modifications. We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Sites or Services with or without notice. If you do not agree to the changes to the Services, you may stop using the Services. You agree that we will not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.
    6. Your Ability to Contract. You may not use our Services and you may not accept this Agreement if you are not at least 18 years of age and, in any event, of a legal age to form a binding contract with us. If you accept this Agreement, you represent that you have the capacity to be bound by it, or if you are acting on behalf of another person, company or entity that you have the authority to bind such entity. 

 

  1. Content.
    1.  Information You Provide. You may provide to us your own data, information, files, images, videos, communications, personalization settings and other information, including Account Information (collectively, your “Content”). We make no effort to review your Content for any purpose, including but not limited to your ownership of it or its accuracy, legality or non-infringement. We cannot always foresee or anticipate technical service interruptions or other difficulties in uploading your Content to the Sites or loss of your Content during upload or once on the Site. We do not assume responsibility, and are not in any way liable, for the timeliness, accuracy, deletion, non-delivery or failure to store any Content. You should always keep backup copies of your Content. We reserve the right to refuse our Service to any client or project in our sole discretion. We may refuse Service for reasons including, but not limited to, your Content (i) violating the rights of third parties; (ii) encouraging or facilitating illegal activities; (iii) being reasonably deemed as offensive, abusive, or discriminatory; or (iv) otherwise being insulting or violating human dignity.
    2.  Third Party Access to your Content. In our provision of the Services, you allow us to share your Content with third parties that we have relationships with (“Authorized Third Parties”). Your Content in the possession of an Authorized Third Party, and their use of that Content, will be governed by the privacy policies and other applicable policies of that Authorized Third Party.
    3. Destruction of Content. We will not keep your Content or any other information related to your account within the Sites if you close your account with us or if you remove the Content from your account. We will delete all information and Content associated with your account when you close that account in accordance with Section 15 of this Agreement or if your account has been inactive for more than two years.

 

  1. Your Account Information.
    1.  Verifying Your Identity. In order to use the Services, you will need to sign up for an account through one of our third party providers. We may verify your identity. You authorize us to make any inquiries, including but not limited to asking you for further information or verifying information you provided against third party databases, that we consider necessary to validate your identity. If you do not provide this information or we cannot verify your identity, we can refuse to allow you to use the Services.
    2.  Confidentiality of Your Log-In. You agree and understand that you are responsible for maintaining the confidentiality of your password which, together with your log-in credentials and e-mail address, allows you to access the Sites and Services. Your log-in credentials and e-mail address, together with any mobile number or other information you provide, form your “Account Information.” By providing us with your e-mail address, you agree to receive all required notices electronically, through the Services by displaying links to notices generally on the Sites, to that e-mail address.
    3.  Unauthorized Use & Fraud. If you become aware of any unauthorized use of your account or Account Information for the Services, you agree to notify us immediately at admin@makeitzing.com. If you believe that your Account Information or device that you use to access the Services has been lost or stolen, that someone is using your account without your permission, or that an unauthorized third party may be accessing your account information, you must notify us immediately in order to minimize your possible losses.
  1. Your Use of the Services.
    1.  True & Accurate Information. You are only entitled to access and use the Sites and Services for lawful purposes. You represent that you will not misrepresent your account or Account Information. You represent that you are a legal owner of, and that you are authorized to provide us with, all Account Information and other information necessary to facilitate your use of the Services. 
    2.  No Reselling of Services/Deliverables. Your right to access and use the Sites and Services is personal to you and is not transferable by you to any other person or entity. You may not use the Services to create Deliverables for resale to other third parties. You may not use the Services or resulting Deliverables to provide service bureau-type offerings to any third parties.
    3.  Representations by You. For any Content and/or information that you provide via the Sites or Services, you hereby represent and warrant that: (i) you will reply promptly to any communication or request for information or Content by us; (ii) the information provided by you is truthful, accurate and complete; (iii) you are owner of such information and Content or otherwise have the right to grant us the licenses granted pursuant to this Agreement; (iv) you have secured any and all consents necessary to provide the Content and to grant the foregoing licenses; (v) the Content does not violate the rights of any third party, including, without limitation, the intellectual property, privacy or publicity rights of any third party, and such information does not contain any personally identifiable information about third parties in violation of such parties’ rights; (vi) we will have the ability to use, copy and otherwise manipulate and create derivative works with and from such Content as necessary for us to perform the Services you request; (vii) you will not introduce or expose us to any type of computer viruses, Trojan horses or any other malicious, destructive, disabling code or programs designed to interrupt, permit unauthorized access, destroy or limit the functionality of any computer software, hardware, system or telecommunications equipment, through your Content or otherwise; and (viii) the use of the information and/or Content will not result in harm or personal injury to any third party.

 

  1. Prohibited Uses.

            You are solely responsible for any and all acts and omissions that occur under your account or password. The Site and Services cannot be used (i) in a manner that will infringe the copyright, trademark, trade secret, patent, or other intellectual property rights of others or violate the privacy, publicity or other personal rights of others; (ii) to transmit, distribute or store material that is defamatory, obscene, threatening, abusive or hateful; (iii) for any illegal purpose or manner that would subject us to liability; (iv) to interfere, disrupt or attempt to gain unauthorized access to other accounts on the Sites, to restricted portions of the Sites, to Services, to or any other computer network or equipment; (v) to collect any information about other users, including but not limited to contact information of other users; (vi) to post, store or disseminate any type of computer viruses, Trojan horses or any other malicious, destructive, disabling code or programs designed to interrupt, permit unauthorized access, destroy or limit the functionality of any computer software, hardware, system or telecommunications equipment; (vii) to post, store or disseminate any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or other fraudulent schemes, or any other form of solicitation; (viii) to gain competitive intelligence about us or to otherwise compete with us or our affiliates, resell or use the Sites or Services for the benefit of any other entity other than you or use the information in the Sites or Services to create or sell a similar product or information; (ix) modify, translate, alter, disassemble, decompile, manipulate, or reverse engineer any portion of the Site or Services; (x) to engage in any activity that, in our sole discretion, violates these Terms or any applicable laws or regulations. Further, you may not (a) use any manual or automated software, devices or other processes to “crawl” or “spider” any web pages contained in the Sites or Services (including, without limitation, the use of robots, bots, spiders, scrapers or any other means to extract pricing, product, service or other data from the Sites or Services); or (b) use anything intended to damage or interfere with the proper functioning of the Sites or Services and the systems to which they connect or do anything that interferes with any other person’s use of the Sites or Services including framing or otherwise simulating the appearance or functions of the Sites or any portion thereof.

 

  1. Links to Third Party Sites.
    1. Third Party Providers. We use third party providers to help deliver our Service to you. Thus, our Sites and Services may contain links to third-party websites that are not owned or controlled by us. We assume no responsibility for the content, terms and conditions, privacy policies, or practices of any third-party websites nor do we censor or edit the content of third-party sites. By using our Sites or Services, you expressly release us from any and all liability arising from your use of any third-party website. We strongly encourage you to review the terms and conditions, privacy policies, and any other governing documents of any other website that you may visit.
    2.  Third Party Offers. Some parts of the Services may, from time to time, be supported by sponsored links from advertisers and display offers that may be custom matched to you based on information stored in the Services, queries made through the Services or other information. In connection with offers, the Site may provide links to other websites belonging to advertisers. We do not endorse, warrant or guarantee the products or services available through any Third Party Offer (or any other third-party products or services advertised on or linked from our Sites), whether or not sponsored, and we are not an agent or broker or otherwise responsible for the activities or policies of those websites. If you elect to use or purchase services or products from any third party or elect to provide, or grant access to, your information to any third party, you and your information are subject to their terms and conditions and privacy policy. We are not responsible for the products and services offered by any third party.

 

  1. Your Intellectual Property Rights. 
    1.  Trademarks. We acknowledge that all trademarks, service marks, and trade names of yours (“Your Marks”) are solely your intellectual property, and that we will not acquire any rights in Your Marks except as set forth in Section 8, below.
    2.  Deliverables. We acknowledge you are the exclusive owner of all right, title and interest in and to all final Deliverables and hereby irrevocably assign to you any right, title or interest we have in the final Deliverables; this also includes any transformations, improvements and derivate works you may make to the final Deliverables, and we will not acquire any rights in the final Deliverables, except as set forth in Sections 8 and 9, below. 

 

  1. Rights You Grant to Us. 
    1.  License to Use. By submitting Content to us through the Site and/or Services, you are licensing that Content to us for the purpose of providing the Services. We may use and store the Content in accordance with this Agreement. You represent that you are entitled to submit the Content to us and have the authority to allow us to retrieve the Content, for use for this purpose, without any obligation by us to pay any fees or be subject to any restrictions or limitations.
    2.  License to Display. You further agree that by submitting Content to us through the Site and/or Services and by requesting our Services, you grant us a license to display, reproduce, distribute and perform your Content and Your Marks and the resulting Deliverables which we have created for you on our Sites, our marketing and publicity materials, our client lists and any other media we use to market and promote our business.
    3.  License to Feedback. You hereby grant us a royalty-free, worldwide, perpetual, irrevocable license to use or incorporate into the Services any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you relating to the Services. For the avoidance of doubt, this does not include any feedback, revisions to, or suggestions relating to the specific Deliverables we create for you. 

 

  1. Our Intellectual Property Rights.
    1.  Trademarks. “Make It Zing,” the Make It Zing logo, “New Boston Creative Group,” the New Boston Creative Group logo and all of our product names are trademarks or service marks of New Boston Creative Group or its affiliates (collectively, “Our Marks”). No right or license to use Our Marks is granted under this Agreement.
    2.  Raw Files. Subject to your ownership rights in Your Content, we retain all rights in any working files, raw files, or native files. You will not receive any rights to any raw files, working files, or native files that we create for you.
    3. Prior Inventions. If we use any pre-existing inventions, discoveries, original works of authorship, developments, improvements, trade secrets, concepts or other proprietary information or intellectual property right owned by us, our agents, employees, third party licensors or providers, or others (“Prior Inventions”), we grant to you a royalty-free, perpetual, irrevocable, transferrable, sublicenseable, license to such Prior Inventions as it is contained within the Deliverables. You do not receive any other rights to the Prior Inventions and you agree not to disassemble, decompile, manipulate or reverse engineer any portion of the Deliverables in order to access the Prior Inventions or for any other purpose.

 

  1. Confidentiality.

            In provision of our Services to you, you may provide us with information about your business or brand that is confidential and proprietary. We shall treat as confidential all information provided by you to us in connection with the Services and the performance of this Agreement and will not use such information for any purposes other than to facilitate our obligations under this Agreement and in our provision of the Services. This may include providing such confidential information to our Authorized Third Parties who have need to know. We, and any Authorized Third Parties, will take reasonable efforts to prevent disclosure of such confidential information, except for information that (i) is publicly known (other than through our unauthorized disclosure) prior to the date of disclosure; (ii) was in our lawful possession prior to disclosure; (iii) was independently developed outside the scope of this Agreement; or (iv) was lawfully obtained from a third party. Notwithstanding the foregoing, we may disclose such confidential information as required by applicable law or by proper legal or governmental authority.

 

  1. Privacy.

            You can view our Privacy Policy here: Privacy policy link. You agree to the terms of the applicable Privacy Policy, and any changes published by us from time to time. You agree that we may use and maintain your personal and non-personal information according to our Privacy Policy, as part of the Services. You give us permission to combine information you enter or upload for the Services with that of other users of the Services and/or other services. For example, this means that we may use your and other users’ non-identifiable, aggregated data to improve the Services or to design promotions.

 

  1. Warranty Disclaimers.

            We use reasonable efforts to maintain the Sites and Services, but we are not responsible for any defects or failures associated with the Sites or Services, any part thereof, any Content contained within the Sites or Services, your information or any damages (such as lost profits or other consequential damages) that may result from any such defects or failures. The Sites or Services may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment or software malfunctions; (ii) periodic maintenance procedures, upgrades or repairs which we may undertake from time to time; or (iii) causes beyond our control or which are not foreseeable. We will not be liable for failure to provide access to the Sites or Services for any reason whatsoever.

            WE, NOR OUR THIRD PARTY PROVIDERS OR AUTHORIZED THIRD PARTIES, MAKE NO WARRANTIES ABOUT THE SITES, SERVICES, AND DELIVERABLES. TO THE MAXIMUM EXTENT ALLOWED BY LAW, THE SITES, SERVICES, AND DELIVERABLES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” WE MAKE NO COMMITMENTS ABOUT THE RELIABILITY, AVAILABILITY, OR SECURITY OF THE SITES AND SERVICES RELATED TRANSMISSION OF YOUR INFORMATION. WE DISCLAIM ALL WARRANTIES, REPRESENTATIONS, CONDITIONS, UNDERTAKINGS OR OTHER OBLIGATIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF THAT PURPOSE IS KNOWN TO US), NON-INFRINGEMENT, TITLE OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE.

            YOU AGREE THAT WE DO NOT WANT, NOR DO THE SERVICES OR DELIVERABLES REQUIRE, ANY SENSITIVE, PROPRIETARY OR OTHER HIGHLY CONFIDENTIAL INFORMATION FROM YOU. AS SUCH, WE ASK THAT YOU NOT PROVIDE US WITH ANY SUCH HIGHLY CONFIDENTIAL INFORMATON. WE WILL NOT BE LIABILE FOR SUCH INFORMATION IF YOU DO PROVIDE IT TO US IN THE EVENT OF ANY BREACH OF CONFIDENTIAL INFORMATION, REGARDLESS OF THE PARTY RESPONSIBLE FOR SUCH BREACH. 

            WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE MAKE NO WARRANTY (I) THAT THE SITES, SERVICES OR DELIVERABLES WILL MEET YOUR EXPECTATIONS, REQUIREMENTS, OR SATISFACTION, INCLUDING BUT NOT LIMITED TO EXPECTATIONS RELATED TO PROJECT TIMELINES; (II) THAT USE OF THE SITES, SERVICES, OR DELIVERABLES WILL PROVIDE ANY SPECIFIC RESULT RELATING TO INCREASED BUSINESS OR PROFITS; (III) THAT USE OF THE SITES, SERVICES OR DELIVERABLES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; OR (IV) AS TO THE ACCURACY, COMPLETENESS, CURRENCY OR RELIABILITY OF THE SITES, SERVICES OR DELIVERABLES, AND EXPRESSLY DISCLAIM ANY LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS OR DAMAGE CAUSED BY ANY SUCH ISSUES, WHETHER SUCH ISSUES RESULT FROM NEGLIGENCE, ACCIDENT OR OTHER CAUSE.

            ANY MATERIAL YOU DOWNLOAD OR OTHERWISE OBTAIN THROUGH THE USE OF THE SITES OR SERVICES IS DONE AT YOUR SOLE RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

 

  1. Limitation of Liability.

            OUR TOTAL LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER OR RELATED TO THIS AGREEMENT IS LIMITED TO DIRECT MONEY DAMAGES NOT EXCEEDING THE AMOUNT PAID BY YOU TO US FOR SUCH PROJECT WHICH GAVE RISE TO SUCH CLAIM. THIS LIMIT IS CUMULATIVE AND ALL PAYMENTS UNDER THIS AGREEMENT ARE AGGREGATED TO CALCULATE SATISFACTION OF THE LIMIT. THE EXISTENCE OF MULTIPLE CLAIMS DOES NOT ENLARGE THE LIMIT. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE, OUR AUTHORIZED THIRD PARTIES, NOR ANY PROVIDER OF INFORMATION OR SERVICES WE USE IN PREPARING OR PROVIDING THE SERVICES, BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, LOST PROFITS OR REVENUE OR LOST OR DAMAGED DATA, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF WE ARE AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.

            SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

 

  1. Indemnification.

            You agree to release us, our members, managers, officers, employees, agents, Authorized Third Parties and Third-Party Providers, from any and all liability and obligations whatsoever in connection with or arising from your use of the Sites or Services. If at any time you are not happy with the Sites or Services or object to any material within them, your sole remedy is to cease using them. You agree to defend, indemnify and hold us, our officers, members, directors, employees, Third Party Providers, Authorized Third Parties and agents harmless from and against any and all claims, liabilities, damages, losses or expenses, including attorneys’ fees and costs and expenses, arising out of or in any way connected with (i) your access to or use of the Sites, Services or Deliverables or any part thereof; (ii) any account information, Content and other information you provide to us, to which you provide us access or you post via the Sites; (iii) a breach or alleged breach by you of any of your representations, warranties, covenants or obligations under this Agreement; (iv) infringement or misappropriation of any intellectual property or other rights of ours or third parties by you; (v) any negligence or willful misconduct by you; (vi) any other claim related to your performance under this Agreement; or (vii) your use of any Deliverable provided by us.

 

  1. Term and Termination.
    1.  Term. This Agreement will remain in full force and effect until the earlier of: (i) the completion of the Project; and (ii) the date of effective termination in accordance with this Section. For the avoidance of doubt, the Project is completed when the Deliverables, as described in the purchased Package, are delivered in their final form to you.
    2. Termination by You. You may terminate your legal agreement with us and your access to our Services by closing your account by emailing us at admin@makeitzing.com. Once we receive your email requesting that your account be cancelled, we will cancel your account and delete your information through our third-party provider.
    3.  Termination by Us. We may at any time, terminate our legal agreement with you and your access to the Services: (i) if you have breached any provision of this Agreement; (ii) if we, in our sole discretion, believe it is required to do so by law; (iii) for any reason and at any time with or without notice to you; or (iv) immediately upon notice, to the e-mail address provided by you as part of your Account Information.
    4.  Effects of Termination. Upon termination pursuant to this Agreement, neither party shall have any further obligations under these Terms, with the exception of your obligation of payment to us. Further, we may immediately deactivate or delete your account, all related information and files in your account, and/or prohibit any further access to all files and the Services by you. Further, you agree that we shall not be liable to you or any third party for any termination of your access to the Services.

 

  1. Miscellaneous.
    1. Independent Contractors. The parties are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other.
    2. Waiver/Severability. No waiver of any term, provision or condition of this Agreement shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver. If any provision of this Agreement is determined to be illegal or unenforceable, then such provision will be enforced to the maximum extent possible and the other provisions will remain fully effective and enforceable.
    3. Notice. Unless otherwise provided in this Agreement, all notices shall be in writing and shall be deemed to be delivered when sent by first-class mail, postage prepaid, or when sent by facsimile or email to either party’s last known post office, facsimile or email address, respectively.
    4. Law/Forum. This Agreement is governed by and construed in accordance with the laws of the State of Kansas, without giving effect to its principles of conflicts of law. Any litigation arising out of this Agreement shall be brought by either party in a court of competent jurisdiction located in Riley County, Kansas, and each party hereby waives any defenses it may have before such courts based on a lack of personal jurisdiction or inconvenient forum. Each party hereby expressly and irrevocably waives the right to a jury trial. The prevailing party shall be awarded its reasonable attorneys’ fees and costs in any proceeding arising out of or related to this Agreement. No action arising under this Agreement may be brought by you more than one (1) year after the cause of action has accrued, unless prohibited by law.
    5. Equitable Relief / Fees. The parties agree that breach of the provisions of this Agreement, including, but not limited to, the unauthorized use of the Services, would cause irreparable harm and significant injury to us which would be difficult to ascertain and which would not be compensable by damages alone. As such, the parties agree that we have the right to enforce the provisions of this Agreement by injunction (without necessity of posting bond), specific performance, or other equitable relief without prejudice to any other rights and remedies we may have for your breach of this Agreement. If any action in law or in equity is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable fees of attorneys, accountants, and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled.
    6. Force Majeure. If the performance of any part of this Agreement by either party (other than the payment of money) is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, earthquake, tornado, judicial or governmental action, pandemic/epidemic and any resulting governmental order, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
    7. Survival. In addition to any obligation for the payment of Services, the following sections shall survive any termination or expiration of this Agreement: 1b (Payment and Fees), 4c (Representations by You), 7 (Your Intellectual Property Rights), 8 (Rights You Grant to Us), 9 (Our Intellectual Property Rights), 10 (Confidentiality), 12 (Warranty Disclaimers), 13 (Limitation of Liability), 14 (Indemnification), 15 (Term and Termination), and 16 (Miscellaneous).
    8. Assignment. You shall not assign or transfer this Agreement or any rights or obligations under this Agreement. Any unauthorized assignment or transfer shall be void and constitutes ground for immediate termination of this Agreement by us. This Agreement binds and inures to the benefit of us and our respective permitted successors and permitted assigns.
    9. Entire Agreement. This Agreement constitutes the complete and exclusive statement of the agreement between the parties with respect to the Services and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning the Services. The captions and headings of this Agreement are included for ease of reference only and will be disregarded in interpreting or construing this Agreement.
    10.  Contact. The Sites are operated by New Boston Creative Group, LLC. All inquiries may be directed to Make It Zing at: admin@makeitzing.com.