Terms Of Service

Terms and Conditions

1 Marketing Services.

1.1 Generally. The method and process of rendering the Marketing Services shall be at the sole discretion and business judgment of Company. Subject to Customer timely and fully fulfilling its obligations hereunder, Company anticipates substantial completion of the Specific Deliverables portions of the Marketing Services, if selected, in accordance with the delivery schedule(s) set forth in Exhibit A (the “Delivery Schedule”).

1.2 Change Orders. Unless otherwise agreed to in writing, the Fee shall be adjusted for each Change Order (as defined below) in the amount of the current hourly billing rate(s) charged by Company multiplied by the number of productive hours spent on work for such Change Orders or the Fee specifically set forth in such Change Order. Increases in the Fee as a result of Change Orders shall be due and payable ten (10) days after presentation of Company’s invoice therefore. Except as set forth herein, Change Orders shall be deemed part of the Marketing Services for purposes of this Agreement. “Change Order” means services that: (A) are rendered as a revision to, or change in the scope of, the Marketing Services, excluding only revisions made in accordance with the Implementation Services Description Notice; and (B) Customer has requested or otherwise directed or agreed to have Company perform.

2 Customer’s Duties. To enable Company to render the Marketing Services, Company requires, and Customer agrees to provide, Customer’s prompt and timely assistance and cooperation, including, but not limited to, meeting with Company’s employees (telephonically and otherwise) during normal business hours to discuss the Marketing Services and Customer’s business matters pertaining thereto, promptly providing Company with information, responses to inquiries, content and such other tangible and intangible property Company reasonably requests or requires to perform the Marketing Services (the “Customer Materials”) and which Company is not obligated to provide as part of the Marketing Services. Company may, from time to time, also request that Customer make decisions about various matters relating to the Marketing Services, and Customer agrees to promptly respond to Company’s requests and Company shall be entitled to rely on decisions made by, and responses from, Customer’s staff. If Customer is an entity, Customer shall appoint (and notify Company of) a contact person with whom Company may communicate. If Customer fails to respond to Company’s request in a reasonable time (never more than five business days), then: (A) Company may: (1) in good faith, make the decision for Customer without liability or obligation; or (2) deem the Delivery Schedule no longer applicable; and (B) Customer shall pay applicable overtime, priority overtime and expedite charges. Customer agrees to deliver the Customer Materials to the location(s) Company designates. Company is not responsible for, and the Delivery Schedule will in all cases be revised to reflect, delays arising from, non-compliances and delays caused by, Change Orders, vendors and contractors selected by Customer. Company shall not be obligated to return any of the Customer Materials to Customer. If website development or modification is included in the Marketing Services, then, for so long as all or any portion of the Company Copyright Intellectual Property (as defined in Section 9) is utilized by Customer, Customer shall: identify Company as the developer on the website so that it is visible at the bottom of each page of the website (not within the content of the website, but in such size and font as to make it visible to the ordinary viewer), as a hyperlink to Company’s website, with the exact hyperlink URL to be determined by Company, from time to time, on notice to Customer; and set forth all copyright notices required by third party Licensors for content, applications and components used on or in the website in accordance with Section 9(B).

3 Fees, Expenses, Taxes and Payments.

3.1 Fees. In exchange for the Marketing Services, Customer shall pay Company the fees set forth on Exhibit A hereto (subject to amendment in accordance with this Agreement) (the “Fee”), plus, if applicable, amounts due for Change Orders and the Postponement Fee. Company will reserve time and allocate resources to render the Marketing Services. Delays resulting from Customer’s failure to timely meet its obligations hereunder will result in additional costs and expenses to Company. Therefore, if Customer fails to timely provide Company with all of the Customer Materials or meet its other obligations that are required by Company for the rendition of the Marketing Services on or within ten (10) days of the later of Company’s request, time being of the essence, Customer shall immediately pay Company the Postponement Fee set forth above. The parties agree that the Postponement Fee reflects their best estimate of Company’s costs and expenses that would be incurred as a result of Customer’s delay.

3.2 Expenses. Customer shall reimburse Company for the out-of-pocket expenses and other non-overhead costs incurred or suffered by Company in rendering the Marketing Services, including, but not limited to, printing, color layouts, photography, videography, laminating, illustrating, courier services, freight and postage and pre-authorized travel costs, meals, lodging, mileage and parking. Expenses shall be due and payable upon Company’s presentation of an invoice therefore.

3.3 Taxes. All amounts due and payable to Company: (A) do not include sales, use or other taxes, except for taxes on the net income of Company, and Customer shall pay all such taxes and fees at the time payment of the underlying amounts is made; and (B) shall be received by Company at the address set forth above (or such other address as Company may notify Customer of in writing) on the due date.

3.4 Payments. Payments of amounts due Company shall be made: (A) for the Specific Deliverables Services as set forth in Exhibit A; (B) for the Recurrent Services, in advance on the first day of each calendar month (Company will endeavor to provide an invoice at least 20 days before such amount becomes due) for the Recurrent Services to be rendered during such calendar month; and (C) on or within ten (10) business days after presentation of Company’s invoice therefore for any amount not set forth on Exhibit A (e.g., the Postponement Fee, and amounts due for Change Orders, expenses and taxes, etc.). Payments received by Company more than ten (10) days after the due date shall be subject to a late fee of 5% of the amount due, which the parties agree reflects a reasonable estimate of Company’s costs for such late payment, and all amounts due and unpaid shall bear interest from the date due until paid at the lesser of 1.5% per month or the highest rate permitted by applicable law. If any check is returned or refused for any reason Customer shall pay Company on demand $25.00 per returned, rejected or declined transaction. If any payment is not made, in full on or within fifteen (15) days after the due date, then at Company’s option on written notice to Customer, the full amount of all fees set forth on Exhibit A shall be immediately due and payable.

3.5 Credit Card Payments. Customer and, by their signature on the credit card authorization sheet provided, the cardholder agree that Company may automatically charge the credit or debit card identified on the authorization sheet (each being a “Credit Card”) and any others provided to Company, from time to time, for the amounts due Company no sooner than five (5) days before such amounts become due and payable to Company. The cardholder may withdraw any Credit Card on notice to Company and Customer shall immediately provide a replacement Credit Card for future billings with the failure to do so being a breach by Customer. If any Credit Card transaction is rejected or refused for any reason Customer shall pay Company on demand $25.00 per returned, rejected or declined transaction. Customer shall pay Company all of its costs and expenses arising in connection with any unsuccessful “charge back” claim by the cardholder. Company is responsible for incorrect charges to any Credit Card or debits to any bank account only if they are reported to Company in writing within 60 days of the date a disputed charge first appears on cardholder’s bill. Company is not responsible for bank or other fees charged to the cardholder in connection with the billing hereunder. Time is of the essence concerning the provisions of this Section 3.

4 Termination. If the Marketing Services include Recurrent Services, then, during the time when the Company is rendering the Recurrent Services Customer may terminate this Agreement on sixty (60) days written notice to the Company if, and only if, all amounts due for other Marketing Services are or have been paid in full. Company may terminate this Agreement: (A) in accordance with Section 18; or (B) on five (5) business days written notice to Customer if Customer fails to timely make any payment or otherwise breaches this Agreement, including, without limitation, the failure to respond to requests and inquiries in accordance with Section 2; provided, however, no such termination shall occur if Company’s notice was the first termination notice for such breach or non-payment and, within such notice period, Customer pays Company all amounts then due and payable Company or otherwise cures such breach. If the Marketing Services only include Specific Deliverables Services, then this Agreement shall terminate upon the completion of the Specific Deliverables Services. No termination shall affect the parties’ rights accruing prior thereto, including, without limitation, the obligation to pay amounts due the Company.

5 Delivery and Notice of Completion. If the Marketing Services include Specific Deliverables Services, then when the results of the Specific Deliverables Services are substantially complete and available for Customer’s inspection and review, Company shall: (A) provide such results to Customer (electronically or physically, at Company’s option unless otherwise set forth on Exhibit A); and (B) provide e-mail notice (the “Completion Notice”) to Customer at the e-mail address set forth in the signature block above.

6 Inspection and Acceptance. Customer shall inspect the results of the Specific Deliverables Services on or within five (5) business days of each Completion Notice (the “Inspection Period”). In the event there is a material non-compliance of the results of the Specific Deliverables Services with the specification in Exhibit A, Customer shall provide written notice to Company (the “Non-Compliance Notice”) within the Inspection Period specifically detailing the nature and circumstances of the non-compliance. If no Non-Compliance Notice is received by Company during the Inspection Period or if Customer utilizes any of the results of the Marketing Services, Customer shall be deemed to have accepted the results of the Specific Deliverables Services and Company shall be deemed to have satisfied and complied with all of its obligations concerning the Marketing Services. Company shall use its commercially reasonable efforts to correct all non-conformance(s) timely reported in the Non-Compliance Notice. No inspection shall be applicable to the Recurrent Services. Company’s election to correct non-conformance(s) outside the Inspection Period shall not be deemed to modify the provisions of this Section 6 concerning Company’s satisfaction of its obligations.

7 LIMITED WARRANTY. Company warrants only that: (A) the final result of the Specific Deliverables Services will substantially conform to the specification as set forth in Exhibit A for a period of thirty (30) days from the date of the Completion Notice; and (B) it has the right and power to grant the license set forth in section 9. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, FOR THE MARKETING SERVICES OR THE RESULTS THEREOF, OR CONCERNING ANY INTELLECTUAL PROPERTY INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER OR NOT COMPANY KNOWS OF OR HAS REASON TO KNOW OF CUSTOMER’S USE OF THE MARKETING SERVICES OR THE RESULTS THEREOF, THE INTELLECTUAL PROPERTY OR ANY COMPONENTS THEREOF. WITHOUT LIMITING THE FOREGOING, COMPANY DOES NOT WARRANT THAT ANY THE MARKETING SERVICES OR THE RESULTS THEREOF, OR THE INTELLECTUAL PROPERTY PURCHASED OR LICENSED FROM COMPANY OR ANY THIRD PARTY WILL MEET CUSTOMER’S BUSINESS NEEDS.

8 Customer Representations and Warranties. Customer warrants and represents to Company that: (A) Customer is the owner, in all respects, of all intellectual property contained in the Customer Materials and other content provided by Customer to Company for, or which Customer directs or requires Company to use for or in connection with the Marketing Services; (B) the Customer Materials and such other content: (1) does not, alone or as utilized in connection with the Marketing Services, infringe the intellectual property rights of any third party; and (2) will not injure, harm or cause damage to Company or any third party as a result of its utilization for or in connection with the Marketing Services; and (C) the Marketing Services are being utilized for a business that Customer owns and operates, and that it has operated prior to the Effective Date.

9 Transfer of Intellectual Property to Customer. On and subject to the terms and conditions set forth in this Agreement, including, but not limited to, Customer’s full and complete satisfaction of all of its obligations hereunder, such as, for example, payment of the amounts due and which will become due to Company, Company:

(A) Transfers to Customer all of Company’s right, title and interest (except as set forth herein below) in and to the Company Copyright Intellectual Property; and

(B) assigns to Customer, to the extent permitted by Company’s license rights, a license to use the third party content, applications and components required to make the website available via the Internet solely for Customer’s normal internal business purposes and solely on one website; and

(C) Transfers to Customer the Internet Uniform Resource Locator for the Customer’s website.

Except for the above assignment, Company does not grant Customer any license in or to any third party intellectual property. All third party intellectual property shall be and remain the property of the applicable third party, as the case may be, and no part thereof shall be deemed to have been transferred or assigned to Customer by virtue of the arrangements set forth in this Agreement. Customer shall retain all rights in and to Customer Materials. “Company Copyright Intellectual Property” means the Company created copyrightable subject matter that arises from the Marketing Services, as a whole; provided that Copyright Intellectual Property shall not, in any event, include the underlying elements, components and subroutines utilized by Company to create the results of the Marketing Services and Company shall be entitled to utilize, transfer, create derivative works of and license any or all such elements, components and subroutines at any time hereafter.

10 Publicity. Customer agrees to permit Company, at its option, to utilize Customer’s name, website URL and any other matters relating to the Marketing Services and the relationship between Customer and Company in Company’s business, marketing and sales materials.

11 Hosting Services. The provisions of this Section 11 shall be applicable if, and for so long as, the Recurrent Services include hosting services for any of a website, blog or other Internet accessible content or files (“Hosting Services”). Company will subcontract the provision of Hosting Services to one or more third parties (each being the “Hosting Provider”) with the stated capabilities to provide the Hosting Services Parameters set forth on Exhibit A. Company’s sole obligation concerning the Hosting Services shall be to interface with each applicable Hosting Provider concerning or relating to the hosting of Company Copyright Intellectual Property and the Recurrent Services. Company may on thirty days written notice to Customer change the Hosting Provider(s) and may select such Hosting Providers as it, in its sole discretion in good faith, deems capable of providing Hosting Services in accordance with the Hosting Services Parameters set forth on Exhibit A. If a change of Hosting Providers is made other than as a result of Customer’s needs or requests, then Company shall provide reasonable assistance with such change of Hosting Provider without a fee becoming due therefore. Customer shall agree and adhere to the usage policies and hosting contracts of the Hosting Provider(s), from time to time, on written notice from Company. Company may, by notice to Customer at Company’s website or via e-mail to Customer, provide for additional terms and conditions relating to Hosting Services and Hosting Providers other than an increase in the costs thereof and Customer agrees to be bound by and comply with same.

12 Advertising Purchases and Escrow Account. If the Services include advertising placement for the benefit of Customer, such as, for example, pay-per-click advertising, then Customer: (A) shall prepay amounts to be spent at the direction of the Company; (B) shall: (1) provide Company with access to funds through an escrow account; or (2) provide Company with the ability to access and make payments from Customer owned accounts; and (3) hereby authorizes and grants to Company the right to purchase, place and undertake such advertisements for and on behalf of Customer. Company’s sole obligation to Customer in connection with the foregoing shall be to act in good faith; and no such arrangement shall, in any event, create a fiduciary relationship or other duty of Company to Customer, except solely for the duties expressly set forth in this Agreement.

13 Further Assurances. If, in the reasonable opinion of the Company, it becomes necessary or advisable for Customer to execute and deliver one or more authorizations or consents to third parties to enable Company to undertake the Services, then, upon the written request of Company, from time to time, Customer agrees to promptly execute and deliver any such authorization or consent at the direction of Company.

14 Referrals and Recommendations. Company may, from time to time, make referrals and recommendations for products and service providers who are not subcontractors of Company. Customer acknowledges and agrees that its use of any product or service provider recommended by Company shall be at Customer’s sole risk. Customer shall undertake such due diligence as it deems appropriate prior to purchasing any product or engaging any service provider and agrees that it is solely and completely responsible for the determination of whether to purchase or contract with any third party whether referred by Company or not.

15 Indemnification. Customer shall hold harmless and, at Company’s option, defend, Company, its officers, directors, employees, agents, successors and assigns, from and against, any and all obligations, claims, losses, damages of any type, nature and amount, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees, pretrial, trial and appellate, and court costs) arising out of or suffered by Company on account of any breach of any provision of this Agreement by Customer.

16 LIMITATION OF LIABILITY. EXCEPT FOR INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF BUSINESS OR OTHER ECONOMIC DAMAGE, OR INJURY TO PROPERTY, AS A RESULT OF THE BREACH OF ANY WARRANTY, REPRESENTATION, COVENANT OR OTHER TERM OF THIS AGREEMENT, REGARDLESS OF WHETHER THE PARTY ALLEGEDLY LIABLE WAS ADVISED, HAD REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. IN ADDITION, IN NO EVENT WILL DAMAGES PAYABLE BY COMPANY TO CUSTOMER ON ACCOUNT OF ANY CAUSE OF ACTION ARISING OUT OF THE WEBSITE, MARKETING SERVICES, SPECIFICATION, OR ARISING ON ACCOUNT OF ANY CLAIM BY CUSTOMER ON ACCOUNT OF BREACH OF CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE EXCEED THE AMOUNT PAID TO COMPANY FOR THE MARKETING SERVICES.

17 Relationship of Parties. The relationship of the parties shall be that of independent contractors. Nothing contained in this Agreement shall authorize, empower or constitute any party as agent of any other party in any manner; authorize or empower one party to assume or create any obligation or responsibility whatsoever, express or implied, on behalf of or in the name of any other party; or authorize or empower a party to bind, or hold themselves out as having the power to bind, any other party in any manner or make any representation, warranty, covenant, agreement or commitment on behalf of any other party.

18 Entire Agreement, Waiver and Modification, Captions and Partial Invalidity. This Agreement sets forth the entire understanding of the parties concerning the subject matter of this Agreement and incorporates all prior negotiations and understandings. There are no covenants, promises, agreements, conditions or understandings, either oral or written, between them relating to the subject matter of this Agreement other than those set forth herein. No purported waiver by any party of any default by another party of any term or provision contained herein shall be deemed to be a waiver of such term or provision unless the waiver is in writing and signed by the waiving party. No such waiver shall in any event be deemed a waiver of any subsequent default under the same or any other term or provision contained herein. Except as set forth below, no alteration, amendment, change or addition to this Agreement shall be binding upon any party unless in writing and signed by the party to be charged. In the event Company is providing Recurrent Services or Specific Deliverables Services and the Postponement Fee has become due and payable, Company may, by not less than sixty days written notice to Customer, modify or amend the terms and conditions of the rendition of such portions of the Marketing Services (a “Terms Modification”). On or within thirty (30) days of Company’s written notice of a Terms Modification, the Customer may reject such Modification and, in such event, Company may continue to provide the Marketing Services in accordance with the terms and condition in effect immediately prior to such notice, or terminate this Agreement on fifteen (15) days written notice to Customer. The captions and paragraph letters appearing in this Agreement are inserted only as a matter of convenience. They do not define, limit, construe or describe the scope or intent of the provisions of this Agreement. If any term or provisions of this Agreement, or the application thereof to any person or circumstance, shall be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances, other than those as to which it is held invalid, shall both be unaffected thereby and each term or provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.

19 Notices. Except for Implementation Services Description Notice and the Completion Notice(s) and general business communications concerning the Marketing Services, which may be sent via e-mail to the e-mail address for the party set forth above (which may be changed in accordance herewith), any consent, waiver, notice, demand, request or other instrument required or permitted to be given under this Agreement shall be in writing and deemed to have been properly given upon: (A) actual delivery if hand delivered; (B) the next business day after: (1) transmission by overnight express courier service (e.g., Federal Express), freight prepaid to the address for such party set forth herein; or (2) transmission by e-mail to: (a) Company at This email address is being protected from spambots. You need JavaScript enabled to view it.; or (b) Customer at the e-mail address set forth above on the signature block (or if no address is set forth therein, such e-mail address as Company reasonably selects)’ or (C) three (3) business days after being sent by certified United States mail, return receipt requested, postage prepaid, to the address for such party set forth herein. Either party may change its address for notices in the manner set forth herein.

20 Applicable Law, Jurisdiction, Venue and Forum. This Agreement shall be construed and governed under and by the laws of the State of Florida for contracts entered and to be performed within Florida. The parties agree that, except for third party actions, exclusive venue for any legal action authorized hereunder shall be in Orange County, Florida, and jurisdiction shall be vested in the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida, or the United States District Court for the Middle District of Florida, Orlando Division, as the case may be. As part of the consideration for the entry of this Agreement by Company, Customer agrees not to contest the venue set forth herein and not to contest the exercise of personal jurisdiction over Customer by any of the foregoing courts. The parties hereby waive all rights concerning the exercise of personal jurisdiction of them by the foregoing courts.

21 WAIVER OF JURY TRIAL. CUSTOMER HEREBY KNOWINGLY AND VOLUNTARILY WAIVES ALL OF CUSTOMER’S RIGHTS TO A TRIAL BY JURY ON ANY AND ALL ISSUES PERTAINING TO OR ARISING OUT OF THIS AGREEMENT, THE CUSTOMER MATERIALS AND THE RESULTS OF THE MARKETING SERVICES.

22 Attorney’s Fees. In the event of any litigation, arbitration or other controversy between the parties hereto arises out of or relates to this Agreement or the Marketing Services, the prevailing party shall be entitled to recover from the other all of the prevailing party’s reasonable attorneys' fees, expenses and suit costs, including those associated with pre-trial, trial, appellate and post-judgment collection proceedings.

23 Survival. Sections 3, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 18, 19 and 20 shall survive the termination, cancellation or expiration of this Agreement by whatever means for whatever reason.

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