Last updated: August 08, 2024

The Platinum Gem Group, LLC, DBA JoyFlux Studios (“JoyFlux Studios,” “we,” “us,” or “our”), provides businesses with digital marketing and creative services. The following outlines the terms and conditions, in connection with our Services.

1. Introduction 

1.1 These Terms and Conditions together with the service agreement to which they may be attached (the “Master Service Agreement”) will form a binding contract between the Client named on the Master Service Agreement (“Client”) and The Platinum Gem Group, LLC DBA JoyFlux Studios of 9984 Scripps Ranch Blvd, Suite 1019, San Diego, CA 92131 which shall constitute the entire agreement between Client and JoyFlux Studios and apply to any Services performed hereunder by JoyFlux Studios and all terms agreed upon in connection therewith between Client and JoyFlux Studios (the “Agreement”).

1.2 These Terms and Conditions apply to the exclusion of all other terms or conditions of contract the Client may propose and shall not be varied unless agreed in writing and signed by JoyFlux Studios. For the avoidance of doubt, the terms of the Master Service Agreement shall supersede any conflicting provision in these Terms and Conditions.

2. Master Service Agreement 

2.1 Each Master Service Agreement shall come into force on the Commencement Date when executed by both Parties. All previous written or oral undertakings and promises relating to the Services shall be superseded by the content in the Master Services Agreement. Each statement of services shall continue, unless terminated earlier in accordance with these Terms and Conditions or by law, until the expiration of the Term set out in the Master Service Agreement.

2.2 This Agreement is structured so that individual statement of services may be entered into by the Parties. All statement of services are governed by and shall be subject to the terms of this Agreement, except for any Special Conditions set out on the Master Service Agreement, which shall take precedence.

 

2.3 The termination or expiration of any statement of services shall not affect this Agreement or any other active Master Service Agreement. On the termination or expiration of this Agreement in accordance with Section 10, any Master Service Agreement shall also automatically terminate upon the effective date of termination of this Agreement.

3. Services

3.1 In consideration of the payment by Client to JoyFlux Studios of the Fees as set out in the Order Form, JoyFlux Studios agrees during the Term to perform the Services described in the Order Form in accordance with and subject to these Terms and Conditions.

4. Client Obligations

4.1 Client will cooperate with JoyFlux Studios and, where necessary, provide as set out on an applicable Order Form, such materials listed in the Order Form (“Client Materials”), for JoyFlux Studios to incorporate as required into the Services or carry out its obligations.

5. Fees; Change Control 

5.1 Client shall pay JoyFlux Studios the Fees without deduction or set-off (with VAT) within fifteen (15) days of receipt of a valid invoice, or otherwise in accordance with the payment terms set out in the Order Form. 

5.2 JoyFlux Studios shall be entitled to charge interest on any overdue payment at the rate of the lesser of (a) twenty percent (20%) of the overdue amount or (b) the maximum amount permitted under applicable law. 

5.3 JoyFlux Studios may charge additional Fees in accordance with its standard rates in the event of: 

       5.3.1 delays or additional Services caused or required by Client, including its failure to properly or timely provide JoyFlux Studios with such information, Client Materials, instructions, media or approvals as are reasonably required for the supply of the Services; 

       5.3.2 changes to the cost of Services and other circumstances outside of JoyFlux Studios’ reasonable control; 

       5.3.3 Client requiring the supply of goods and services in addition to those described in the Order Form or any variations to the Services; or 

       5.3.4 agreed third party expenses. 

5.4 In the event that Client requires any change or alteration to the Services (“Change(s)”), JoyFlux Studios and Client shall, prior to implementing such Change, agree upon: 

        5.4.1 the nature of the Change; 

        5.4.2 the procedures for implementation of such Change; and 

        5.4.3 the variation to the Fees. 

5.5 Until any such Change is agreed in writing by the Parties, JoyFlux Studios will continue to perform and be paid for the Services as if the Change had not been proposed, unless otherwise presented in an Order Form requested by Client and approved in writing by JoyFlux Studios. 

5.6 All and any Changes to the Services shall be reflected and accompanied by appropriate amendments to the Order Form and Fees.

6. Relationship of Parties & Rights

6.1 The Parties understand that JoyFlux Studios is an independent contractor with respect to Client, and this Agreement creates no agency, partnership or joint venture relationship between the Parties. Neither Party shall have express or implied authority to act, or make any representations whatsoever, on behalf of the other. Client understands that JoyFlux Studios has other clients and that JoyFlux Studios may offer the same or similar Services or any other services to any third party.

7. Confidentiality

7.1 The Parties may disclose to each other and their designated agents, confidential and proprietary information and trade secrets, including without limitation, software and hardware designs and specifications, equipment, software (including not by way of limitation source and binary code), plans, drawings, data, prototypes, discoveries, know-how, research, developments, processes, procedures, intellectual property and information relating to customers, marketing plans and future products, business data, internal organizational structure, methods of operations, business processes, forecasts, and financial information and such other information disclosed pursuant to conditions of confidentiality, whether disclosed prior to, upon or after execution of this Agreement (“Proprietary Information”).

7.2 Each Party undertakes that it will keep confidential the terms of this Agreement and any Proprietary Information supplied by either Party in connection with this Agreement or in connection with the business of the other and in connection with the Services and shall only disclose such information or part thereof (except to its own employees and advisers and then only on a need to know basis) with the other Party’s prior written consent, provided however that this Section 7 shall not extend to information which has previously become or is generally known to the public, unless through a breach of this Agreement or a similar confidentiality agreement; was previously rightfully known by the receiving Party; has been or is hereafter rightfully received by the Receiving Party from a third person (other than the disclosing Party) without restriction or disclosure and without breach of a duty of confidentiality to the disclosing Party; or has been independently developed by the receiving Party.

8. Intellectual Property

8.1 All “IPR” defined as patents, rights to or unpatented inventions, patent applications, patents, design rights, copyrights (including related rights and future copyright), trademarks, service marks, trade names and domain names or rights, rights in designs, database rights, mask work rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property or proprietary rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world, in each case whether registered or unregistered, and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world of whatever nature in material devised, created or commissioned by JoyFlux Studios, in supplying the Services under this Agreement (“Works”) will vest in and belong solely and exclusively to JoyFlux Studios, unless otherwise agreed in writing on the Order Form and signed by both Parties.

8.2 Subject to payment of the Fees, Client shall have the License Rights set out in the Order Form. Such License Rights shall apply only to those ideas, concepts, proposals and parts of the Works which JoyFlux Studios is specifically requested to proceed with and not to any original ideas, concepts or proposals pitched or suggested to Client but not further explored by JoyFlux Studios for Client hereunder, all of which shall be retained by JoyFlux Studios. Where no such rights are specified, Client is granted a non-exclusive license to use the Works for the purpose expressly described in the Order Form. Further uses shall be subject to additional terms and Fees to be agreed in writing by the Parties.

8.3 Client grants JoyFlux Studios a non-exclusive, royalty-free, worldwide license to use the Client Materials for all purposes relating to this Agreement and warrants that it is fully entitled to grant JoyFlux Studios these rights and that the Client Materials are free of any infringing, defamatory, obscene or other legally restricted material.

9. Disclaimers and Warranties

9.1 Except as expressly set forth herein, the Works and all Services are provided “as is” and “as-available” without warranty or representation of any kind, express, implied, oral, written, statutory or otherwise, including any warranty of merchantability, fitness for any particular purpose or non-infringement; or for the use, sufficiency, timeliness, quality, security, suitability, availability, completeness or accuracy of any of the foregoing. JoyFlux Studios disclaims liability for Client’s or any party’s act or omission in use of or reliance upon the Works and Services, or that the quality of any information, data, results or material obtained through any of the foregoing will meet Client’s needs, requirements or expectations.

10. Termination

10.1 This Agreement shall commence on the Commencement Date, and continue on a month-to-month basis, provided that either party may terminate the Agreement after giving 14 days written notice and subject to this Section 10.

10.2 Either party shall be entitled to terminate this Agreement upon the other party’s material breach (including without limitation non-payment of any sum due) unless the breaching party remedies such breach within fifteen (15) days of its occurrence.

10.3 Neither party will be liable in any amount for failure to perform any obligation hereunder if such failure is caused by the occurrence of any unforeseen contingency beyond the reasonable control of such party including without limitation Internet outages, communications outages, fire, flood, war, act of God.

10.4 Client may not cancel its order of the Services or otherwise terminate this Agreement at any time without payment of the Fees in full.

11. Liability

11.1 Neither JoyFlux Studios nor any of it’s employees or contractors will have any liability to Client for any loss of profits, sales, trading losses, business, data, or other indirect, incidental, consequential, or special loss or damage, including exemplary and punitive, of any kind or nature resulting from or arising out of this Agreement, including use of, delay, loss of use or inability to use the Works or Services, defective or unavailable data or information. The total liability of JoyFlux Studios to Client arising out of this Agreement or use of or inability to use the Works in connection with any claim or type of damage (whether in contract or tort, including negligence) will not exceed the total Fees invoiced to Client under this Agreement.

11.2 Nothing in this Agreement is intended and nor shall it be construed as an attempt by either party to exclude or limit its liability: (i) for willful misconduct or gross negligence; (ii) for fraud; or (iii) to the extent such limitation or exclusion is not permitted by applicable law.

12. Applicable Law

12.1 Client shall comply with, and be responsible for and notify JoyFlux Studios of, all and any Applicable Laws relating to its use and operation of the Services. “Applicable Law” means in respect of either party, all Advertising Regulations, and all federal, state, or local laws, rules or regulations, as may be amended from time to time during the Term, including but not limited to data protection regulations under the General Data Protection Regulation (“GDPR”) to which that party is subject which is relevant to that party’s rights or obligations under this Agreement. “Advertising Regulations” means any applicable federal, state, lottery, promotional or advertising laws, the Advertising Standards Authority (ASA), British Code of Advertising and Sales Promotions, the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (http://ftc.gov/os/2009/10/091005revisedendorsementguides.pdf) (“FTC Endorsement Guides”) and any other relevant law, rule or regulation, applicable to the display or publication of advertisements from time to time.

12.2 JoyFlux Studios gives no warranty, representation or undertaking in relation to any third party materials or Client Materials provided by Client and Client agrees that it is responsible for its selection and use of Services.

13. General

13.1 Except as specifically set forth herein, this Agreement may be amended or terminated only by a written instrument executed by an authorized officer of JoyFlux Studios and Client.

13.2 If at any time any part of this Agreement is or becomes unenforceable, such part will be construed as far as possible to reflect the Parties’ intentions and the remainder of the provisions will remain in full force and effect.

13.3 Client shall not assign transfer or subcontract any of its rights and obligations under this Agreement without the prior written consent of JoyFlux Studios and with notice.

13.4 During the term of this Agreement and for the six (6) month period following its termination, and exclusive of responses to postings to the general public, neither party shall directly or indirectly solicit, offer employment, employ or retain as a consultant any employee or former employee of the other party who has participated directly in the Services without the prior written consent of the other party.

13.5 During the term of the Agreement and for the six (6) month period following its termination, Client shall not at any time directly or indirectly solicit, attempt to solicit, negotiate or enter into any agreement or contract with any contractor introduced by JoyFlux Studios and/or who has participated in the Services under any Order Form and/or Agreement, without the prior written consent of JoyFlux Studios.

13.6 This Agreement shall be governed and construed in all respects in accordance with the laws of the State of Delaware, without regard to the conflicts of law provisions of that State and each Party irrevocably agrees that any action hereunder shall be brought solely before the competent courts in Delaware, Delaware and irrevocably submit to the exclusive jurisdiction of any such court and waive any objection that such Party may now or hereafter have to the venue of any action or proceeding in any such court or that such action or proceeding was brought in an inconvenient court and agree not to plead or claim the same.