Terms and Conditions
PLEASE REVIEW THESE TERMS CAREFULLY. ONCE ACCEPTED, THESE TERMS BECOME A BINDING LEGAL COMMITMENT BETWEEN YOU AND BRUTAL NACHO, LLC. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT ACCEPT THESE TERMS OR USE OUR SERVICES (AS DEFINED BELOW).
Effective date: July 13, 2023
In these Terms and Conditions (referred to as these “Terms” or this “Agreement”), the terms “you”, “your”, or “Customer” refer to you. If you are signing on behalf of an organization, then you are agreeing to these Terms for that organization and promising to us that you have the authority to bind that organization to these Terms (and, in which case, the terms “you”, “your”, or “Customer” refer to that organization). The exception to this is if that organization has a separate written agreement with us covering the use of the Services, in which case that agreement will govern such use. The terms “we”, “us,” “our” or “Brutal Nacho” refer to Brutal Nacho, LLC, a Wyoming corporation with corporate offices registered at 30 N Gould Ste S, Sheridan, WY 82801. Brutal Nacho or Customer may also be referred to individually as “party” and together as “parties” in these Terms. By purchasing our Services, signing this document, or using our Services, you are agreeing that you have fully read, understood, and agreed to comply with all the Terms herein. When we refer to the “Services” in these Terms, we mean all products, consulting, training, design, development, production, hosting, support, or other services provided by us or our Partners, as applicable, that are used by you, including, without limitation, products and services that are purchased for a fee, on a trial basis, or otherwise free of charge. For Services that are provided according to a defined scope of work, the Services are defined in our document entitled “Statement of Work” and "Work Order" are collectively referred to herein as “SOW”. The SOW defines the quantifiable goods and services that will be provided during the project “Deliverables”. The SOW also amends these Terms with project-specific information such as project scope and limitations, additional payment terms, and resources that are required to be provided by you. When we refer to a “Partner” or “Partners” in these Terms, we mean any entity that provides products or services that is contracted with us to assist us in providing our Services.
Agreement to Terms and Conditions
By signing this contract, you agree to be bound by the terms and conditions set forth in this document. If you do not agree to these terms, you should not sign this contract.
Changes to the Terms and Conditions
We may modify these Terms at any time by providing notice to you. Your continued use of our Services after such notice constitutes your acceptance of the modified terms and conditions. If you do not agree to the modified terms and conditions, you must notify us in email at fineprint@brutalnacho.com within 30 (thirty) days of receiving notice, and we will work with you to reach a mutually agreeable resolution.
Terms of Service
Availability and Liability
We make every reasonable effort to ensure that the Services are available to you for the Deliverables, but we cannot guarantee uninterrupted access to the Services. We are not liable for any outages, downtime, or disruptions to the Services caused by events outside of our reasonable control, including but not limited to acts of God, power failures, or other unforeseen events.
The availability and performance of the Services may be dependent on various software applications, tools, and services provided by our Partners. We do not guarantee the availability or functionality of any Partner. We are not liable for any outages, downtime, or disruptions to the Services caused by our Partners.
If for any reason we are unable to provide the Services as scheduled, we will work with you to reschedule the Services for a mutually agreed upon date and time. However, if the Services are not rescheduled within 180 (one-hundred eighty) days of the original scheduled date, your right to reschedule the Services will expire. You understand that there may be costs or additional time associated with rescheduling the Services and you agree to reimburse us for these costs and our time. If the Services rescheduling expires, you agree to reimburse us for any costs or time spent on your Services for preparatory work related to the Services.
We will make reasonable efforts to provide you with notice of any scheduled downtime or expected disruptions to the Services caused by us or our Partners.
Suspension of Services
We reserve the right to suspend or terminate the Services at any time, for any reason, including but not limited to your breach of these Terms, any illegal or inappropriate use of the Services, or any outages, downtime, or disruptions caused by events outside of our control. If we in good faith determine that you are using the Services in violation of these Terms or causing harm to us, our Partners, or other users of the Services, we reserve the right to immediately suspend or terminate your access to the Services without notice.
If the issue leading to suspension is not resolved within a reasonable time frame, we may terminate your access to the Services.
Your Responsibilities
As a user of our Services, you are responsible for: (a) for communicating with us in a prompt, professional, and clear manner, and providing us with accurate and complete information; (b) providing us with all necessary materials required for us to provide the Services, including but not limited to logos, images, and videos, failure to provide us with the necessary materials may delay or prevent us from providing the Services; (c) ensuring that any content you provide to us or use in connection with the Services is not infringing on the intellectual property rights of any third party and is used in compliance with all applicable laws and regulations; (d) and taking all necessary measures to protect your data and ensuring the security of any login credentials or other access information provided to you in connection with the Services. We are not liable for any unauthorized use or disclosure of any information, data or materials provided by you in connection with the Services, including but not limited to any theft or hidden use of such information. You agree to indemnify and hold us harmless from any and all claims, damages, and expenses arising out of any use of the content in violation of these Terms or applicable laws and regulations.
Ownership
All content produced by us in connection with the Services, including but not limited to videos, images, audio, text, and software, will be owned exclusively by you. However, you grant us a perpetual, irrevocable, non-exclusive, transferable, sub-licensable license to use, reproduce, modify, distribute, display, and perform the content for any purpose, including but not limited to marketing and promoting our Services. You agree that we may sublicense our rights to the content to any of our partners or affiliates without any additional consent from you.
You acknowledge and agree that we may use your name, logo, and description of the Services for marketing and promotional purposes, including but not limited to featuring your name and logo on our website, social media accounts, and other marketing materials.
DISCLAIMER
WITHOUT LIMITING A PARTY’S EXPRESS WARRANTIES AND OBLIGATIONS UNDER THESE TERMS, THE SERVICES ARE PROVIDED “AS IS,” AND WE MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT TO THE FULLEST EXTENT PERMITTED BY LAW.
Limitation of Liability
LIMITATION ON INDIRECT, CONSEQUENTIAL, AND RELATED DAMAGES. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, LOST DATA, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
LIMITATION OF LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE AMOUNTS PAID OR PAYABLE BY YOU UNDER THESE TERMS FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS PURSUANT TO THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH IN THIS SECTION IN DETERMINING WHETHER TO ENTER INTO OR OTHERWISE ACCEPT THESE TERMS. THIS LIMITATION OF LIBIALITY SURVIVES INDEFINITELY BEYOND THE TERMINATION OF THIS AGREEMENT.
Relationship
Each party is an independent contractor in the performance of each and every part of these Terms. Nothing in these Terms is intended to create or will be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. Each party will be solely responsible for all of its respective employees and agents and its respective labor costs and expenses arising in connection with its respective employees and agents. Each party will also be solely responsible for any and all claims, liabilities, damages, or debts of any type that may arise on account of each of its respective activities, or those of its respective employees and agents, in the performance of these Terms. Neither party has the authority to commit the other party in any way and will not attempt to do so or imply that it has the right to do so.
Severability
If any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary to make it enforceable and, in any event, the rest of these Terms will continue in full force and effect.
Notices
Notices to us under these Terms will be provided via email to fineprint@brutalnacho.com. Notices to you under these Terms will be provided via email to the email address you have provided us.
Dispute Resolution
In the event of a dispute, claim, or controversy arising out of or in connection with these Terms or the breach, termination, enforcement, interpretation, or validity thereof (other than for disputes, claims, or controversies related to the intellectual property of a party) (collectively, “Disputes”), each party’s senior representatives agree to engage in good faith negotiations to amicably resolve a Dispute. If parties are unable to resolve a Dispute within thirty (30) days after the first request to engage in good faith negotiations or within such other time period as the parties may agree to in writing, then either party may commence binding arbitration.
The parties will share equally the fees and expenses of the arbitrator. The arbitration will be conducted by a sole arbitrator chosen by mutual agreement of the parties. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The arbitrator will have the authority to grant specific performance or any other equitable or legal remedy, including provisional remedies. Each party will be responsible for its own incurred expenses arising out of any dispute resolution procedure. Any arbitration proceedings will take place in Salt Lake City, Utah.
Governing Law and Venue
These Terms will be governed by and interpreted in accordance with the laws of the state of Utah, without regard to conflicts of laws and principles that would cause the laws of another jurisdiction to apply.
Acceptable Use Policy
No Inappropriate Content or Users: Do not use the Services to transmit or store any content or communications (commercial or otherwise) that is illegal, harmful, unwanted, inappropriate, objectionable, confirmed to be criminal misinformation, or otherwise poses a threat to the public. This prohibition includes use of the Services by a hate group or content or communications that originate from a hate group or are exploitive, abusive, or hate speech.
Prohibited Activities: Do not use the Services to engage in or encourage any activity that is illegal, deceptive, harmful, violating others’ rights, or harmful to Brutal Nacho’s business operations or reputation, including:
Violations of Laws. Violating laws, regulations, governmental orders, or industry standards or guidance in any applicable jurisdiction (collectively, “Applicable Laws”). This includes violating Applicable Laws requiring (a) consent be obtained prior to transmitting, recording, collecting, or monitoring data or communications or (b) compliance with opt-out requests for any data or communications.
Interference with the Services. Interfering with or otherwise negatively impacting any aspect of the Services or any third-party networks that are linked to the Services.
Reverse Engineering. Reverse engineering, copying, disassembling, or decompiling the Services.
Falsification of Identity. Creating a false identity or any attempt to mislead others as to your identity.
No Service Integrity Violations. Do not violate the integrity of the Services, including:
Bypassing Service Limitations. Attempting to bypass, exploit, defeat, or disable limitations or restrictions placed on the Services.
Security Vulnerabilities. Finding security vulnerabilities to exploit the Services or attempting to bypass any security mechanism or filtering capabilities.
Disabling the Services. Any denial of service (DoS) attack on the Services or any other conduct that attempts to disrupt, disable, or overload the Services.
Harmful Code or Bots. Transmitting code, files, scripts, agents, or programs intended to do harm, including viruses or malware, or using automated means, such as bots, to gain access to or use the Services.
Unauthorized Access. Attempting to gain unauthorized access to the Services.
Billing Policies
Payment Terms
The Services are provided on an hourly-basis, project-basis, or other mutually agreed terms as defined in the SOW. Payment for Services is due every thirty (30) days or upon completion of the work, whichever occurs first. Additional payment terms including pre-payment deposits and alternative payment schedules are defined in the SOW. We reserve the right to require a deposit or partial payment upfront for all projects prior to beginning Services. Payment is due within 14 (fourteen) days of invoice date or date of Services delivery, whichever occurs first.
Payment failure: In the event of a payment failure, we reserve the right to immediately stop Services and retain any Deliverables until payment is successfully restored. In the event that we choose to allow you to continue to access the Services in good faith while payment is restored, you agree to work with us expeditiously to successfully complete payment retroactively to the payment failure date. At any time while your account is in default, we reserve the right to immediately terminate your access to our Services.
Late Fees: Any past due amounts are subject to late fees at a rate equal to the lesser of: (i) one and one-half percent (1.5%) per month; or (ii) the maximum interest rate allowed by applicable law.
Collections Fee: In the event your account is submitted to a third-party collections service, a $35.00 (thirty-five dollars) processing fee may be added to your existing account balance. This fee is in addition to any other fees previously assessed on your account.
Chargebacks: If you initiate a chargeback, we may assess a $50.00 (fifty dollars) processing fee for each individual chargeback.
Payment Methods
Most of our Services are paid through our online platform provider, Kartra by Genesis Digital, and our integrated payment processors, Stripe and/or PayPal. You understand that Brutal Nacho relies on these service providers for all online payment transactions and that Brutal Nacho has no access to your specific credit card, debit, card, or PayPal account information. You agree to work directly with these service providers if there is ever an issue regarding the safety and security of your payment information.
For larger purchases or for if you prefer to pay directly with a bank transfer, contact us at support@brutalnacho.com to request our bank ACH information.
Additional Fees
In the event that you request Services that require travel, you shall be responsible for all additional fees associated with such Services, including but not limited to travel, lodging, and per diem. Reasonable estimates of these additional fees are provided on the SOW and you will be notified immediately if these additional fees substantially exceed the SOW estimates.
Refund Policies
Services that are performed and delivered in real-time (such as live streams or live events) are non-refundable. Services that are not delivered in real-time and are defined as Deliverables in an approved SOW (examples include but are not limited to videos, audio tracks, or software) may be eligible for a refund of up to 50% (fifty percent) of the total fees associated with that Deliverable minus any expenses incurred by us related to that Deliverable. To be eligible for a refund, you must notify us in email at support@brutalnacho.com within 30 (thirty) days of receiving the Deliverable. To be considered for a refund, the email request must include specific details of the Deliverable’s non-conformance to the specifications defined in the SOW. If you receive a refund, you forfeit all ownership rights to the content, and we retain full ownership of the Deliverables. If you receive a refund, you also forfeit all income that has been or will be generated from the Deliverables. We reserve the right to refuse a refund if we believe that you have violated our terms and conditions or if we have reason to believe that the request is fraudulent.
Billing Disputes
If you notice we have charged you in a way that seems inconsistent with the Terms for the Services, you agree to file a support ticket describing the details of the billing issue via email at support@brutalnacho.com and to work with us for at least 30 (thirty) days to attempt settlement of any billing dispute before disputing with any third-party credit/debit card company or bank. If we receive a chargeback from a third-party credit/debit card company or bank on your behalf before we have been given a chance to resolve the issue, we have the right to charge you for our time spent in resolving such disputes and any associated fees we incurred, in addition to the $50 (fifty dollar) chargeback fee mentioned above. Regardless of the outcome of the chargeback, we retain the right to collect on any fees that are due. If we have received a chargeback related to your account, we have the right to suspend your account until the matter is resolved.
Cancellation Process
Either party may cancel this agreement for any reason by providing written notice to the other party. If you choose to cancel, you will be billed for any Services provided up to the date of cancellation, and any remaining Deliverables will be turned over to you within a reasonable time period. If we choose to cancel, you will be refunded for any prepaid Services not yet provided, and any remaining Deliverables will be turned over to you within a reasonable time period. This cancellation policy is subject to other terms and conditions specified in this Agreement. If any terms and/or conditions are broken, this cancellation policy shall be deemed invalid.
Effect of Addendum
All of the Terms shall continue in full force and effect except as modified by an addendum executed by duly authorized representatives of both parties. In the event of any conflict between the Terms and a SOW addendum, the Terms of this agreement shall govern, unless and solely to the extent that the parties expressly state in a fully executed SOW that they intend to override specific Terms. Termination of any SOW hereto shall have no effect on the validity of the Terms.