Brand Muffins, LLC, a division of Darci Creative, LLC provides a wide range of marketing products and services for large and small businesses.  By Building Your Project as set out above, proceeding to Checkout, and clicking your acceptance of these Terms & Conditions, you agree you are entering into a Binding Contract (the “Contract”) for the branding and marketing services being purchased, the scope of those services, the costs for those services, the payment method, and other relevant details as set out in this website.  Moreover, you specifically acknowledge these Terms & Conditions are incorporated by reference into the Contract, and govern the relationship between you and Brand Muffins, when you Build Your Own Project and then proceed to Checkout.

1. Payment Terms 

a. Manner of Payment.  You shall pay all amounts payable pursuant to the Contract by credit card (the “Credit Card”). 

b. Timing of Payment.  You agree that your Credit Card will be automatically billed each month in advance of services being provided, and Brand Muffins shall have the right to charge your Credit Card for fees due in accordance with the Contract.  YOU UNDERSTAND AND ACKNOWLEDGE THAT ALL AMOUNTS OWED MUST BE PAID IN ADVANCE, FAILING WHICH, IN ADDITION TO BEING IN BREACH OF YOUR CONTRACTUAL OBLIGATIONS, THE BRANDING SERVICES BEING PROVIDED BY BRAND MUFFINS MAY BE SUSPENDED OR TERMINATED IF TIMELY PAYMENT IS NOT RECEIVED.

2. Term/Termination

a. Term.  The Contract shall commence upon Building Your Project, proceeding to Checkout, clicking to accept these Terms & Conditions, and making your first payment.  The Contract shall continue thereafter, pursuant to its terms, for a period of ten (10) months.

b. Termination.  You and/or Brand Muffins may cancel the Contract at any time, for any reason, upon the conclusion of any monthly cycle upon which payment has been received, on the condition that notice is provided consistent with Section 9(d) below.

c. No Refunds.  You understand and agree that under no circumstances will you be entitled to any refund of amounts previously paid to Brand Muffins.

3. Intellectual Property Matters

a. License to Brand Muffins.  You hereby grant to Brand Muffins and its agents, employees, and subcontractors a non-exclusive, royalty-free worldwide license to use, copy, modify, publicly perform, display, broadcast and transmit during the term of this Contract any text, images, logos, trademarks, service marks, promotional materials, product or service information, comments, reviews, photos, audio and video clips, and any other information you provide in connection with the Contract.  You further agree that Brand Muffins may, during the term of the Contract or thereafter, include your name (including any trade name, trademark, service mark and logo) in its marketing materials, sales presentations, and any online sites.

b. Brand Muffin Creative Services.  You remain fully responsible for any content you provide to Brand Muffins.  With respect to any content created by Brand Muffins, as between you and Brand Muffins, Brand Muffins shall retain ownership of the design elements of such content, excluding any of your trade names, trademarks, service marks or logos, or any other proprietary elements that may be included within such content but that predates the creation of the content.

4. Representations, Warranties & Covenants

You represent and warrant that you have all necessary rights and authority to enter into the Contract with Brand Muffins.  You further represent, warrant and covenant that any content or materials that you provide to Brand Muffins does not: (i) infringe on any third party’s copyright, patent, trademark, trade secret, moral right or other proprietary right or rights of publicity or privacy; (ii) violate any law, statute, ordinance or regulation, including, without limitation, laws and regulations governing false or misleading advertising or unfair competition; (iii) is defamatory or libelous; (iv) be pornographic or obscene; or (v) contain viruses, Trojan horse, worms, time bombs, kancelbots or other similar harmful or deleterious programming routines.  You further represent, warrant and covenant the product or service that is being promoted through the Contract is lawful and is not the subject of any ongoing investigation, any local, state or federal regulatory or quasi-regulatory authorities.

5. Indemnification

You will indemnify, defend and hold harmless Brand Muffins, its affiliates and parent companies, their directors, officers, agents and employees, and each of their successors and assigns from and against any and all claims, liabilities, damages, losses, costs, expenses, and fees of any kind, including, but not limited to, attorney fees and expenses incurred in connection with any claim, action or proceeding in any way related to the Contract. 

6. Disclaimer of Warranties

Brand Muffins provides all branding and services as called for under the Contract on an “as is” basis without any warranty of any kind and without any guarantee of continuous or uninterrupted availability.  Brand Muffins disclaims all warranties of any kind, whether express or implied, including, but not limited to, the implied warranty of merchantability or fitness for a particular purpose, and Implied Warranties arising from Course of Dealing or Course of Performance.  Without limiting the generality of the foregoing, Brand Muffins makes no guarantees with respect to the performance of any campaign or any product or service.

7. Limitations of Liability

a. No Consequential Damages.  To the maximum extent permitted by applicable law, neither party shall be liable for any special, indirect, incidental, punitive or consequential damages (including, without limitation, for breach of contract or warranty, negligence or strict liability) or for interrupted communications, loss of use, lost business, lost data, or lost profits arising out of or in connection with this Contract.   

b. Limitation on Damages.  To the maximum extent permitted by applicable law, under no circumstances shall Brand Muffins’ cumulative or aggregate liability to you or any third party exceed the amounts received by Brand Muffins during the ten-month period immediately prior to the incident giving rise to such liability.

8. Dispute Resolution

a. Informal Dispute Resolution.  You and Brand Muffins agree that with respect to any matter, dispute or claim arising from or related to the Contract, you and Brand Muffins shall negotiate in good faith to informally resolve the problem or dispute.  If the problem or dispute is not resolved satisfactorily within sixty (60) days of written notice of a claim by either party, the matter will be submitted to binding arbitration as set out in Section 9(b) below.

b. Arbitration.  Any claim, dispute or controversy between you and Brand Muffins in any way relating to the Contract, that remains unresolved after the parties attempt to informally resolve such claim or dispute, shall be resolved by binding arbitration, and pursuant to the rules of the American Arbitration Association in Rockingham County, New Hampshire.  The parties may also mutually agree in writing to submit any claim or controversy to a single arbitrator chosen by the parties.

9. Miscellaneous

a. Governing Law.  This Agreement shall be governed and construed in accordance with the laws of the State of New Hampshire without giving effect to conflict of law principles.

b. Jurisdiction.  The parties agree that jurisdiction for any and all claims in any way related to this Contract shall be brought exclusively within the State of New Hampshire.

c. Entire Agreement.  The Contract sets forth the entire Agreement of the parties and supersedes any and all prior oral or written agreements or understandings and may only be changed by a separate written agreement signed by both parties.

d. Notices.  Any written notices to Brand Muffins required pursuant to the Contract shall be provided by registered mail with proof of delivery to John E. Lyons, Jr. Esq., Lyons Law Offices, One New Hampshire Avenue, Suite 235, Portsmouth, NH 03801, and by email to jlyons@lyonslaw.net.  Brand Muffins may provide you with notices at the email you provide as part of the Checkout process.

e. Severability.  If any provision of the Contract is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.

f. Assignment.  You may not assign the Contract without prior written consent of Brand Muffins.

g. Independent Contractors.  The parties to the Contract are independent contractors, and no agency, partnership, joint venture or employee/employer relationship is intended or created by the Contract. 

h. Third Party Services.  Some of the branding services called for in the Contract may involve third parties, and Brand Muffins may use third parties to provide those services without your consent provided that Brand Muffins remains primarily liable for the performance of its obligations as called for in the Contract.

i. Force Majeure.  Neither party shall have any liability for the failure of or delay (other than with respect to payment obligations) resulting from any governmental action, fire, flood, insurrection, earthquake, power failure, riot, explosion, embargo, strikes, whether legal or illegal, labor or inventory shortage, transportation interruption of any kind, work slowdown, or any other condition affecting the delivery of services as called for in the Contract in any manner beyond the reasonable control of such party.