1 TERM AND TERMINATION – This Agreement shall commence as of the Effective Date above, or as described on the “Order Form”, or as described on attached Exhibits; and shall continue for a period of one (1) year, unless modified in writing and executed by both parties. At the expiration of the initial term, this Agreement will automatically renew for successive one-year terms, subject to Customer’s acceptance of Company’s then current fees and terms, unless either party gives notice of non-renewal no less than thirty (30) days and no more than sixty (60) days before expiration of the term. This Agreement may be terminated if the other party breaches any material obligation provided hereunder and the breaching party fails to cure such breach within thirty (30) days of receipt of the notice. This Agreement may be terminated by Company (i) immediately if Customer fails to pay any fees hereunder; or (ii) if Customer fails to cooperate with Company or hinders Company’s ability to perform the Services hereunder.
2 FEES; LIMITATIONS ON REFUNDS AND CANCELLATION FEES – Customer agrees to pay Company any and all fee(s) as billed in accordance with this Agreement. The fee(s) must be received prior to the start of any Services. THE CUSTOMER FURTHER AGREES THAT, IN THE EVENT OF ANY TERMINATION OF THIS AGREEMENT BY CUSTOMER, NO REFUNDS SHALL BE GIVEN UNDER ANY CIRCUMSTANCES WHATSOEVER. THE CUSTOMER FURTHER AGREES TO PAY UPON CANCELLATION THE AMOUNT OF ANY CANCELLATION FEES OR OTHER AMOUNTS DUE TO COMPANY AS PROVIDED IN THE AGREEMENT. COMPANY IS HEREBY AUTHORIZED TO CHARGE CUSTOMER’S CREDIT CARD ACCOUNT OR OTHER PAYMENT MECHANISM FOR ANY AMOUNTS OWED FROM TIME TO TIME BY CUSTOMER TO COMPANY. PROVIDING YOUR BILLING INFORMATION SERVES AS YOUR ELECTRONIC SIGNATURE. ELECTRONIC SIGNATURES ARE LEGALLY BINDING. A RETURNED CHECK CHARGE OF $45.00 WILL BE INCURRED FOR ALL RETURNED CHECKS OR FAILED ELECTRONIC FUNDS TRANSFERS. CUSTOMER IS RESPONSIBLE FOR ALL ATTORNEY AND/OR COLLECTION FEES ARISING FROM EFFORTS TO COLLECT AN UNPAID BALANCE ON A DELINQUENT ACCOUNT. A convenience fee may be added to any invoice paid by customer via any method other than cash or cashier’s check – fee to not exceed 3.5% of transaction total and is charged and collected at company’s discretion. CANCELLATION/TERMINATION FEES are applicable, and may be charged at the discretion of the COMPANY. Failure to charge a CANCELLATION/TERMINATION fee at time of cancellation does not waive COMPANY’s right to collect at a later date. Cancellation fees are calculated based upon the remaining term of the agreement (e.g.: 100% of all fees due under the initial agreement are owed to company in the event of early termination.) Unpaid balances are subject to collection efforts. The company may, at it’s sole discretion, choose to accept a different amount.
3 BILLING TERMS – Customer will be billed monthly, in advance if applicable, for recurring fees for the provision of services; and payment of such charges will be due within fifteen (15) days of the date of each invoice. Partial months may be prorated. In the event Customer fails to pay the fees invoiced within ten (10) days after such payment is due, Customer shall pay a late charge equal to 2.5% of such past due payment, per month until paid in full (30% per annum).
4 ADDITIONAL SERVICES – Additional work performed for the Customer outside the scope of the agreement(s) will be rendered at a rate of $150.00 per hour, unless stated otherwise, in writing, by Company.
5 INDEMNIFICATION – Customer shall indemnify and hold harmless Company (and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) incurred by Company as a result of any claim, judgment, or adjudication against Company related to and/or arising from (a) any photographs, illustrations, graphics, audio clips, video clips, text, data or any other information, content, display, or material (whether written, graphic, sound, or otherwise) provided by Customer to Company (the “Customer Content”), or (b) a claim that Company’s use of the Customer Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, Company must: (i) give Customer prompt written notice of a claim; and (ii) allow Customer to control, and fully cooperate with Customer in the defense and all related negotiations.
6 DISCLAIMER OF ALL OTHER WARRANTIES – COMPANY DOES NOT WARRANT THAT THE SERVICES WILL MEET THE CUSTOMER’S EXPECTATIONS OR REQUIREMENTS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE IS WITH CUSTOMER. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, COMPANY PROVIDES ITS SERVICES “AS IS” AND WITHOUT WARRANTY OF ANY KIND. THE PARTIES AGREE THAT (A) THE LIMITED WARRANTIES SET FORTH IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY EACH PARTY, AND (B) EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THIS AGREEMENT, PERFORMANCE OR INABILITY TO PERFORM UNDER THIS AGREEMENT, THE CONTENT, AND EACH PARTY’S COMPUTING AND DISTRIBUTION SYSTEM. IF ANY PROVISION OF THIS AGREEMENT SHALL BE UNLAWFUL, VOID, OR FOR ANY REASON UNENFORCEABLE, THEN THAT PROVISION SHALL BE DEEMED SEVERABLE FROM THIS AGREEMENT AND SHALL NOT AFFECT THE VALIDITY AND ENFORCEABILITY OF ANY REMAINING PROVISIONS.
7 LIMITED LIABILITY – IN NO EVENT SHALL COMPANY BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, LOST PROFITS, WHETHER OR NOT FORESEEABLE OR ALLEGED TO BE BASED ON BREACH OF WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY, ARISING UNDER THIS AGREEMENT, LOSS OF DATA, OR ANY PERFORMANCE UNDER THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. THERE SHALL BE NO REFUNDS. COMPANY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD-PARTIES.
8 CUSTOMER REPRESENTATIONS – Customer makes the following representations and warranties for the benefit of Company:
8.1 Owned by Customer, or that Customer has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Company and its subcontractors from any claim or suit arising from the use of such elements furnished by Customer.
8.2 Customer guarantees any elements of text, graphics, photos, designs, trademarks, or other artwork provided to Company for inclusion in the website are owned by Customer, or that Customer has received permission from the rightful owner(s) to use each of the elements, and will hold harmless, protect, and defend Company and its subcontractors from any liability or suit arising from the use of such elements.
8.3 From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. Customer agrees that they are solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend Company and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Customer’s exercise of Internet electronic commerce. Customer is responsible for all taxes as may be required by law.
8.4 Customer is responsible for all attorney and/or collection fees arising from efforts to collect an unpaid balance on a delinquent account.
9 CONFIDENTIALITY – The parties agree to hold each other’s Proprietary or Confidential Information in strict confidence. “Proprietary or Confidential Information” shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third-party; (iii) is independently developed by the receiving party; or (iv) is subject to disclosure under court order or other lawful process. The parties agree not to make each other’s Proprietary or Confidential Information available in any form to any third-party or to use each other’s Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party’s proprietary or confidential information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, Company and Customer acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of twelve (12) months from the effective date.
10 FORCE MAJEURE – Either party will be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control. Force Majeure Events means any failure of performance due to causes beyond Company’s reasonable control, including but not limited to labor disputes, civil disturbance, war, war-like operations, invasions, rebellion, hostilities, acts of terror, military or usurped power, sabotage, governmental regulation or controls, fires, power fluctuations or outages, telecommunication fluctuations, telecommunication outages, telecommunication delays, failure or degradation in telecommunications services, hostile attacks, public network or Internet congestion, mechanical defects, or other casualty, hurricanes, tornadoes or like adverse weather of unusual amount, intensity or duration, or acts of God.
10.1 Additional Force Majeure Events – Although unlikely, additional Force Majeure Events mean any failure of performance due to causes beyond Company’s reasonable control, which may include rogue mercenary groups, pirates, alien invasions, meteorite or asteroid collisions, black holes, dark matter explosions, The Apocalypse or general fulfillment of prophecy, shifting of the time space continuum, accidental or intentional destruction of the galaxy and/or any other occurrences beyond its immediate control.
11 RELATIONSHIP OF PARTIES – Company, in rendering performance under this Agreement, shall be deemed an independent contractor and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership. Customer does not undertake by this Agreement, or otherwise, to perform any obligation of Company, whether by regulation or contract. In no way is Company to be construed as the agent or to be acting as the agent of Customer in any respect, any other provisions of this Agreement notwithstanding, unless otherwise agreed to in writing.
12 PROMOTIONAL USE – The Company may reproduce any design, artwork, development, or layout in other projects, promotional materials such as brochures, mailers, and websites for the purpose of future works, design competitions, future publications on design, educational purposes and the marketing of the Company, unless otherwise separately agreed to in writing.
13 NOTICE AND PAYMENT – Any notice required to be given under this Agreement shall be in writing and delivered personally to the other designated party, mailed by certified, registered, or Express mail, return receipt requested or by Federal Express, or published on Company’s website. Either party may change its address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.
14 JURISDICTION/DISPUTES – This Agreement shall be governed in accordance with the laws of the State of Colorado. All disputes under this Agreement shall be resolved by litigation in the courts of the State of Colorado including the federal courts therein and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.
15 AGREEMENT BINDING ON SUCCESSORS, ASSIGNABILITY – The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and/or assigns. Customer may not assign this Agreement or the rights and obligations thereunder to any third-party without the prior express written approval of Company. Company reserves the right to assign subcontractors as needed to ensure delivery of services.
16 WAIVER – No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same or other provisions of this Agreement.
17 NON-SOLICITATION – If within one year of termination of this agreement the Customer hires or contracts with any employee or Independent Contractor of Company, the Client will agree to pay Company, a finder’s fee of 50% of the annual salary or contract fees offered to the contractor or employee, whichever is greater. Said payment will be rendered within 30 days of hiring or contracting the contractor or employee, or within 30 days of receiving demand for payment.
18 SEVERABILITY – If any term, clause, or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.
19 NO INFERENCE AGAINST AUTHOR – No provision of this Agreement shall be interpreted against any Party because such Party or its legal representative drafted such provision.
20 DEFAULT, REMEDIES AND DISPUTES –
20.1 Customer and Company agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation.
20.2 The occurrence of any of the following will be a “Default” by Company: (i) Company fails to perform or observe any of its obligations under this Agreement after a period of thirty (30) days after receiving notice from Customer of such failure; or (ii) Company’s insolvency or liquidation as a result of which Company ceases to do business for a continuous period of at least one (1) month.
20.3 The occurrence of any of the following will be a “Default” by Customer: (i) Customer fails to pay within thirty (30) days, any fees or charges owing to Company under this Agreement; or (ii) Customer fails to perform or observe its obligations under this Agreement after a period of fifteen (15) days after receiving notice from Company of such failure; or (ii) Customer’s insolvency or liquidation as a result of which Customer ceases to do business for a continuous period of at least one (1) month.
20.4 Customer’s Remedies for Default by Company. If Company commits a Default, Customer will be entitled, at its election, to terminate this Agreement or seek any available remedies at law or in equity. Customer’s right of recovery for any such Default will be limited as elsewhere provided in this Agreement, including, without limitation, Sections 6 and 7 above. Notwithstanding anything to the contrary in this Agreement, Company’s maximum aggregate liability to Customer related to or in connection with this Agreement will be limited to the total amount paid by Customer to Company hereunder for the prior one (1) month time period.
20.5 Company’s Remedies for Default by Customer. If Customer commits a Default, Company will be entitled, at its election, to exercise any one, or more, of the following remedies, then or at any time thereafter: (i) First, to deactivate Customer’s Services until such time, not to exceed thirty (30) calendar days past the first notice, that the default is remedied or terms to cure the default have been agreed to in writing; (ii) to exercise any remedy for such Default set forth elsewhere in this Agreement; (iii) to pursue any remedy available at law or in equity; (iv) to terminate this Agreement; (v) to suspend Services; (vi) to refer any past due amount to a third-party agency for collection, in which case Customer will be responsible for all additional fees or service incurred by such an action and during such a collection process. Customer is responsible for all attorney and/or collection fees arising from efforts to collect an unpaid balance on a delinquent account. Notwithstanding the foregoing, Company shall provide Customer with written notice of the breach and fifteen (15) days to cure said breach prior to any action.
20.6 Cancellation/Termination Liability. If prior to the end of the Term of this Agreement, or any other service, or any Service Change, (i) Company terminates the Agreement, a Service Change agreement is entered, or a service is terminated because of Customer’s breach or default, or (ii) if Customer terminates the Agreement or service provided under a Service Change agreement or an Attachment for reasons other than a material breach by Company, then Customer will be responsible for paying Company a minimum termination charge equal to (a) any and all costs or charges which have been incurred by Company in directly providing Customer with Services, plus (b) one hundred percent (100%) of all agreed upon charges and/or monthly charges for the services to be rendered, multiplied by the number of months remaining in the Term of the applicable Agreement, or Service Change agreement, if any. Company may, entirely at its sole discretion and without limitation, choose to hold Customer liable for an amount less than stated above; should such a change in liability occur, Company and Customer must reduce such an understanding to writing in a Termination & Settlement Agreement. Termination charges do not apply to services purchased by Customer on a month-to-month or one-time basis.