Please contact us if you have any questions about these Terms of Service.
In making any payment(s) to or by accepting any Statement(s) of Work from Equalize Digital, Inc. (the “Company”), you (the “Client”) agree that you have read, understood, and agreed to be bound by these Terms of Service (the “Agreement”) in their entirety. These Terms of Service along with our Software Terms supersede any prior agreements, whether explicit or implied, between the Client and the Company.
The following terms, when used in this Agreement, shall have the following meanings:
“Affiliate” means an entity controlling, controlled by, or under common control with the specified Party, with control meaning (a) owning directly or indirectly more than 50% of the outstanding voting equity interests of an entity or (b) having the right directly or indirectly to appoint a majority of members of the board or other body which directs the management and policies of an entity.
“Agreement” means these Terms of Service.
“Client” shall mean any person, business, or entity that is seeking Professional Services from Company. May be referred to as “Party” and as part of a collective “Parties”.
“Client Content” shall mean anything provided by Client or its agents for incorporation into the Site or the Deliverables, including, but not limited to, any data, images, programming, computer code, photographs, illustrations, graphics, audio clips, video clips, or text, including all related Intellectual Property rights.
“Confidential Information” shall mean all information marked confidential, restricted or proprietary by the disclosing party and all information provided by the disclosing party regarding its customers and prospective customers, account information, products and services, vendors, financial, technical or marketing information, business or marketing strategies, operating policies and procedures, and similar proprietary information, in whatever form, which could reasonably be expected to be confidential information. Confidential Information does not, however, include information which (a) at the time of disclosure to the receiving party, was in the public domain, (b) after disclosure to the receiving party, has been published or otherwise becomes part of the public domain through no fault of the receiving party, (c) was known to the receiving party either before disclosure by the disclosing party or as a result of a disclosure from a third party who had a lawful right to disclose such information to the receiving party, or (d) was independently developed by the receiving party.
“Custom Content” shall mean anything made, conceived, licensed, or developed by Company after the Effective Date in connection with the performance of Professional Services hereunder, including, but not limited to, any logos, data, images, programming, computer code, photographs, illustrations, graphics, audio clips, text, scripts, applets, procedures, improvements, and other materials, including the Intellectual Property rights therein.
“Company” shall mean Equalize Digital, Inc. which is a Delaware corporation. Equalize Digital, Inc. may elect to do business under other registered names or aliases and may be referred to as “Party” and as part of a collective “Parties”.
“Company Materials” shall mean (i) any data, images, programming, computer code, photographs, illustrations, graphics, audio clips, text, scripts, applets, procedures, improvements, and other materials made, conceived, licensed, or developed by Company prior to the Effective Date and (ii) proprietary software, methodologies, techniques and tools after the Effective Date of this Agreement or outside the scope of this Agreement.
“Deliverables” shall mean any item, software deliverables, documentation, service deliverable, or material provided by Company to Client pursuant to this Agreement or any Statement of Work that are the result of the Professional Services.
“Excusable Delay” shall mean a delay in performance or failure to perform which is due to an event beyond the reasonable control of a Party and shall include, without limitation, (a) acts of God, weather conditions, explosion, flood, earthquake, or fire; (b) war or threat of war, sabotaging, riot, revolution, civil disturbance or requisition; (c) acts, restrictions, regulations, prohibitions or measures of any kind on the part of any governmental authority; (d) import and export regulations or embargos; (e) strikes, lockouts, or other industrial actions, labor disputes, trade disputes, or the unreliability of materials; or (f) interruption of, delay in, or unreliability of telecommunications, third-party services, or other utilities, failure of third-party software or hardware, or inability to obtain materials, supplies, hardware, software, used in the provision of Professional Services.
“Intellectual Property” shall mean all inventions (whether or not protectable under patent laws), works of authorship, information fixed in any tangible medium of expression (whether or not protectable under copyright laws), moral rights, mask works, trademarks, trade names, trade dress, trade secrets, know-how, ideas (whether or not protectable under trade secret laws), concepts, techniques and all other subject matter protectable under patent, copyright, moral right, mask work, trademark, trade secret, or other laws, including without limitation all new or useful art, combinations, discoveries, formulae, manufacturing techniques, business methods, technical developments, artwork, software, programming, applets, scripts, and designs.
“Price Estimate” shall mean any estimate, quote, or price provided by the Company to the Client as part of a Statement of Work.
“Professional Services” shall mean the Website Accessibility Consulting and Remediation Services, Website Accessibility Monitoring and Maintenance Services, Website Design and Development Services, or other Services as defined and outlined in this Agreement and any applicable Statement(s) of Work.
“Site” shall mean the graphics, data, HTML code, and other content and code of the World Wide Web that was either (1) described in a related Statement of Work and delivered by Company OR (2) an existing website identified by Client as belonging to them.
“Statement of Work” shall mean any formal document provided by the Company to the Client that either separately or as part of a packet establish the scope and cost of Professional Services with a high level of detail. Emails, phone conversations, sales proposals, or other more informal documents are excluded from this definition.
“Training” shall mean the training with respect to Website Accessibility or Website Use and Maintenance, as more particularly described in a Statement of Work.
“Laws” shall mean all applicable local, state, federal and international laws and regulations related to accessibility.
“WCAG ” shall mean the Web Content Accessibility Guidelines developed by the World Wide Web Consortium.
Price Estimate Validity. Price Estimate(s) are valid for 30 days from the date they are issued. Such Price Estimate(s) supersede all prior representations of price and/or cost that may have been made, and are finalized only after being electronically signed by all required parties.
Price Estimate Modification. After 30 days, invalid and/or expired Price Estimates may be altered or re-issued at the sole discretion of Company.
Agreement For Professional Services
Scope of Professional Services. Client contracts to receive, and Company contracts to provide Professional Services, including Website Accessibility Consulting and Remediation Services, Website Accessibility Monitoring and Maintenance Services, Website Design and Development Services, or other Services as described in any Statement of Work agreed to by both Parties during the term of this Agreement. Each Statement of Work may include such additional terms and conditions as the Parties may wish to include. In the event of a conflict between the terms of this Agreement and a Statement of Work, the terms of this Agreement shall govern, unless the applicable Statement of Work specifically states that such provision shall govern. Each Statement of Work agreed to by the Parties shall attach to and become a part of this Agreement.
Hosting and Authorization. Client is responsible for acquiring hosting and domain through an approved provider or may inquire into a separate hosting agreement with Company. Prior to implementation, Client agrees to provide Company with access to hosting and domain accounts.
Service Changes. Company or Client may deem it necessary or appropriate from time to time to add other services or increase, reduce, or change the Professional Services (a “Service Change“). Either Party may make a proposal for a Service Change, whereupon the Company shall provide Client with a modified Statement of Work that reflects the agreed upon changes (a “Service Change Order”). A Service Change shall not be implemented unless and until Client has electronically signed the Service Change Order. Once signed, the Service Change Order shall be implemented by Company within a reasonable amount of time.
Development of Deliverables. Development of the Deliverables, if any, shall proceed according to the Statement of Work, provided that Client delivers all necessary information, equipment and materials, identified in a Statement of Work as being provided by Client in a timely fashion, and if not, then Company’s obligations which are dependent on such shall be extended to reflect such delay. A delay by Client to deliver the necessary materials in a timely manner will result in a $400.00 rescheduling fee. Notwithstanding the foregoing, Company has the right to terminate this Agreement and any related Statement of Work if Client fails to deliver all necessary information, equipment and materials, identified in a Statement of Work within thirty (30) days of request by Company.
Testing and Acceptance of Deliverables. Upon Company’s delivery of the Deliverables, Client shall have ten (10) business days to review and/or test the Deliverables (the “Testing Period“) and either provide comments to or confirm acceptance of the deliverables; provided, however, that Client will be deemed to have accepted the Deliverables in all respects if Client neither provides comments nor confirms acceptance within ten (10) business days. For the avoidance of doubt, any work performed by Company in response to comments or requests received by Company after the end of the Testing Period is beyond the scope of the applicable Statement of Work and shall be separately billed to the Client pursuant to this Agreement.
Training. As outlined in or required by a Statement of Work, Company will provide Training, as needed, to the Client. Training will not include support or maintenance services for problems arising out of modification, alteration, or additions to hardware or software not authorized by Company or software, programs, or hardware supplied by Client.
Hours of Operation. The Company operates from 9:00 AM to 5:00PM CST, Monday through Friday, except in observance of United States Federal Holidays (the “Business Hours”).
Support. Client may report errors or abnormal occurrences related to the Site or Deliverables by contacting Company. Client agrees to follow Company’s policies for requesting support and to provide information and cooperation to Company as reasonably required for Company to provide support. Professional Services related to support are subject to hourly fees unless covered under a Statement of Work or Company’s warranty. Company will have no obligation to provide support to the extent that an incident arises from: (a) misuse of the Site or Deliverables in a manner not authorized in Company’s terms; (b) any infrastructure, software, or hardware that belongs to the Client or a third party; (c) third party systems, acts, or omissions; or (d) general Internet problems, force majeure events, or other factors that Company can not reasonably control. Company will advise Client in the event an exclusion applies to their support request.
Support Response. Company will assign a priority level to each support request and endeavor to provide an appropriate resolution in a timely manner based on the request priority level. If the originally assigned priority level does not satisfy the support request, the request will be escalated to the next level. Company does not provide on-site support. Table of support response levels:
|Lvl 0||Basic Q&A, documentation, or self-help resources||5 Business Days|
|Lvl 1||Simple content changes, password resets, or status updates||4 Business Days|
|Lvl 2||Performance issues, minor glitches, or help with a feature||3 Business Days|
|Lvl 3||Serious glitches adversely impacting user experience||2 Business Days|
|Urgent||Site offline, security breach, or core functionality broken||Same Day|
Third Party Software. Client is responsible for acquiring and maintaining licenses for all third party software, with the exception of the following licenses which are maintained by Company:
- WP 101
- Gravity Forms
- WP Smush Pro (Hosting Clients Only)
- Instagram Feed Pro
- Advanced Custom Fields Pro
- Backup Buddy
- WP All Import Pro
- WP All Export Pro
- Admin Columns Pro
- Relevanssi Premium
Payment For Professional Services
Project Fees. For Professional Services that are considered a one-time project, Client agrees to pay company in advance for each major phase of the project as set forth in the related Statement of Work. Prior to the commencement of any Professional Services, Client shall pay in advance to Company the total Service Fees for the first phase of the project (the “Deposit“), including projects with just one phase. Following the Deposit, any subsequent phase-based payments shall be due on the start date of the related project phase. For the avoidance of doubt, the Deposit is not refundable under any circumstance, including termination for cause pursuant to this Agreement.
Recurring Service and License Fees. Company requires advance payment for all recurring service and license fees. Company prefers automated monthly payments or 12-month advance retainer for such items. Any lapse in payment gives Company the immediate right to discontinue any related services or software licenses. Company is not responsible for any damages as a result of Client’s failure to make prompt payment.
Payments. Client agrees to pay all unpaid and outstanding Service Fees to Company no later than twenty-one (21) business days from the date of the invoice. In the event Client fails to pay the entire invoiced amount within twenty-one (21) business days from the date of the invoice, Client acknowledges and agrees to pay an additional $25.00 fee. (the “Late Fee“) Should the due date on the Client’s invoice conflict with the payment term listed herein, the due date on the Client’s invoice shall take precedence in any and all cases. Notwithstanding the foregoing, if Client fails to pay the entire invoiced amount within thirty (30) calendar days past the due date of the invoice, then in addition to the Late Fee, Client agrees that:
- The balance due shall be immediately subject to a 1.00% monthly finance charge.
- Thirty (30) calendar days past the due date of the invoice, Company has the immediate right to remove any Deliverables resulting from the unpaid work made available on the Internet, until all unpaid and outstanding Service Fees and Late Fees are paid in full.
- Ninety (90) calendar days past the due date of the invoice, Company has the immediate right to sell all unpaid and outstanding Service Fees and Late fees as debt to a 3rd party collections agency.
Payment Notices. Prior to complete and full payment, all Deliverables are the property of the Company. Company has the right to posession of all materials and Client must cease and desist use of materials created by Company for Client. Upon Company’s discretion, they may withhold deliverables until final and full payment is made.
Method of Payment. All payments shall be made via (1) credit card, (2) a bank or cashier’s check made payable to Road Warrior Creative, LLC or (3) another payment method mutually agreed upon by the Parties.
Hourly Fees. In the absence of any adjustment to the Service Fees, any work performed beyond the scope of the Statement of Work will incur fees to be invoiced at an hourly rate with a 1 hour minimum, billed in 15 minute increments after the first hour. Any such hourly fees shall be invoiced to the Client on a monthly basis at a rate of $150 per hour.
Urgent Requests. Any requests made by Client that either implicitly or explicitly require Company to perform Professional Services outside of Business Hours (an “Urgent Request”) shall incur fees to be invoiced at 1.5x Company’s normal rate for the work being performed. Company will in its sole discretion determine whether or not a request qualifies as an Urgent Request, and will proceed accordingly. Any hourly fees resulting from Urgent Request(s) shall be invoiced to the Client on a monthly basis. Client is advised to submit Urgent Request(s) both electronically and over the phone by calling 512-942-5858 and following the emergency prompts.
Taxes. The Retainer Fee, and any other charges, do not include any taxes, duties or other governmental charges (collectively “Taxes“), such as, but not limited to sales, use, excise, and value added taxes. Client shall pay all Taxes levied or imposed by any governmental authority in connection with the Services, but excluding Taxes which are imposed on Company’s net income.
Refunds. Due to the nature of the Professional Services, Company shall not issue refunds to Client for any reason.
Compliance With Laws
Not a Law Office. Client understands that Company is not a law office, Company’s employees are not attorneys, and Company does not practice law. Client should not use Company as their sole source of information related to compliance with Laws and should always retain their own legal counsel.
Compliance Standards. The Parties recognize that Laws governing web accessibility are numerous and the regulatory environment is changing rapidly. The Parties further agree that the accessibility of any Site or Deliverable will be measured against WCAG (Web Content Accessibility Guidelines). Due to the rapidly changing legal landscape, Company can not guarantee that conforming with WCAG equates to compliance with the Americans with Disabilities Act (ADA), Section 508, or any other applicable Laws. Not withstanding the foregoing and absent more concrete regulatory guidance in the future, Company believes that WCAG is the best accessibility standard for most organizations to adhere to.
Term And Termination
Term. This Agreement is in effect unless and until terminated by either Company or Client, or otherwise updated, amended or supplemented by Company.
Termination for Cause. Either Party may terminate this Agreement or any Statement of Work immediately upon the occurrence of any one or more of the following events: (i) the other Party fails to pay when due any amounts required to be paid under this Agreement; (ii) the other Party breaches any material term or provision of this Agreement, and if capable of cure, such breach remains uncured thirty (30) days after the non-breaching Party gives written notice thereof to the breaching Party; or (iii) the other Party becomes insolvent, makes an assignment for the benefit of its creditors, institutes or becomes subject to any proceeding under any bankruptcy or similar laws for the relief of debtors, or seeks the appointment of, or becomes subject to the appoint of, any trustee or receiver for all or any portion of such Party’s assets.
Termination for Convenience. Either Party may terminate this Agreement without cause upon thirty (30) days written notice to the other Party (“Termination for Convenience“).
Termination for Excessive Delay. Delays for a period of greater than one (1) year due to Client’s failure to meet obligations under a Statement of Work (an “Excessive Delay”) will result in AUTOMATIC TERMINATION of the Agreement on the anniversary date of the incident giving rise to the Excessive Delay.
Effect of Termination. Upon termination of this Agreement for any cause or reason whatsoever, neither Party shall have any further rights or obligations under this Agreement, except as expressly set forth herein. The provisions of this Agreement listed below (Survival) shall survive the expiration or termination of this Agreement for any cause or reason whatsoever, and, notwithstanding the expiration or termination of this Agreement, the Parties shall each remain liable to the other for any charges, indebtedness, or other liability theretofore arising under this Agreement. Termination of this Agreement and retention of pre-paid fees and charges shall be in addition to, and not be in lieu of, any other legal or equitable rights or remedies to which Company may be entitled.
Reinstatement Fee. In the event of Termination, Client may pay a reinstatement fee to Company in order to re-enter into this Agreement. The standard reinstatement fee shall be $400.00, made payable in accordance with this Agreement. Company reserves the right to refuse requests for reinstatement.
Intellectual Property Rights And License
Acknowledgement of Company Materials. Client further acknowledges and agrees that the Company Materials are a valuable asset to Company and which (together with all enhancements and modifications thereto) are and shall remain the sole and exclusive property of Company. Notwithstanding the foregoing, and subject to Client’s payment of the fees for services set forth in this Agreement and any applicable Statement of Work, Company grants to Client a non-exclusive, worldwide, royalty free, license exercisable, to use any Company Materials incorporated into Deliverables solely for purposes of utilizing and/or operating Deliverables for their intended purpose. Client may not use the Company Materials for any purpose other than accessing and using Company’s Professional Services, the Deliverables, or the Site. Except for the rights expressly granted above, this Agreement does not transfer from Company to Client any Company Materials or other intellectual property of Company, and all rights, titles and interests in and to the same shall remain solely with Company. Client shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the Company Materials.
Acknowledgement of Company Skill and Methods. Client acknowledges that Company, in the normal conduct of business, may use ideas, concepts, methodologies and techniques (or modifications, enhancements, and extensions of any of the foregoing) developed by Company while serving other clients, which may benefit Client.
Ownership of Company IP. Company’s trademarks, trade names, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of Company.
Ownership of Custom Content. Subject to full payment under this Agreement and any applicable Statement of Work and subject to Company’s retention of all right, title, and interest in and to the Company Materials, upon completion of Professional Services and delivery of any Deliverables, all Intellectual Property rights to the Site, any Custom Content on the Site, and any Deliverables developed by Company pursuant to a Statement of Work shall belong to Client. The Deliverables ownership is only vested with Client when full payment is received by Company. Company is the owner of all materials created for Client, until final and full payment is received. Company has the right to every appropriate remedy under the law to protect their ownership rights to their created content.
Without limiting the generality of the foregoing, the Parties acknowledge and agree that all Intellectual Property rights in and to any part of the Deliverable that is conceived, designed, practiced, prepared, produced or developed by Company: (i) during the course of a Statement of Work; (ii) based upon knowledge or information learned or gained from Client; or, (iii) resulting from the use of Client’s facilities, personnel, or materials, shall be deemed to be a “work made for hire” (as defined in Section 101 of Title 17 of the United States Code).
To the extent any such Custom Content or Deliverable is (for any reason whatsoever) determined not to be “work made for hire,” Company hereby irrevocably and exclusively assigns, transfers and conveys to Client all Intellectual Property rights, in and to any and all such Custom Content or Deliverable. Company acknowledges that neither it nor its personnel will retain any Intellectual Property rights in the Custom Content or Deliverable. Company acknowledges and agrees that the assignment to Client of the Custom Content, Deliverables, and the Intellectual Property rights therein shall extend throughout the world, shall be in perpetuity and shall not require any further payment from Client other than payment required by Client to Company under the Agreement and any applicable Statement of Work. Company has no obligation to assist Client in securing Intellectual Property rights in the Custom Content or Deliverables.
Company’s Rights in Deliverables. Company retains the right to:
- all preliminary works that are not incorporated into the Custom Content or Deliverables;
- reproduce, publish and display the Deliverables in Company’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the sole purposes of recognition or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses;
Express Warranty. Company warrants that the Professional Services and any Deliverables will be performed or completed under each Statement of Work in a professional and workmanlike manner using generally accepted industry standards and practices and in compliance with any specifications set forth in the applicable Statement of Work.
LIMITATION OF WARRANTY. THE EXPRESS WARRANTY ABOVE AND ADDITIONAL WARRANTY LANGUAGE IN ADDENDUM(S) TO THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES OR PRODUCTS PROVIDED UNDER THIS AGREEMENT, THE PERFORMANCE OF MATERIALS OR PROCESSES DEVELOPED OR PROVIDED UNDER THIS AGREEMENT, OR AS TO THE RESULTS WHICH MAY BE OBTAINED THEREFROM, AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE HEREBY DISCLAIMED. COMPANY SHALL NOT BE LIABLE FOR ANY SERVICES OR PRODUCTS PROVIDED BY THIRD-PARTY VENDORS, COMPANIES OR CONSULTANTS. CLIENT’S REMEDY FOR BREACH OF THIS WARRANTY IS REPERFORMANCE OF SERVICES OR DELIVERY OF DELIVERABLES AT NO ADDITIONAL CHARGE TO CLIENT.
Client’s Representation and Warranty. Client represents and warrants that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished by Client to Company are either owned by the Client or that the Client has obtained all necessary permission from the rightful owner to use each of these elements.
Limitation Of Liability
LIABILITY LIMIT. IN NO EVENT WILL COMPANY’S LIABILITY IN CONNECTION WITH THE PROFESSIONAL SERVICES, ANY SOFTWARE PROVIDED HEREUNDER OR ANY ORDER, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE SERVICE FEES PAID TO COMPANY BY CLIENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
EXCLUSION OF CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER PARTY BY LIABLE TO THE OTHER PARTY HEREUNDER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS) REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, OR STRICT LIABILITY.
Applicability. The limitations contained in this Section apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability), other than claims based on fraud or willful misconduct. The limitations contained in this Section shall not apply to Client’s indemnification obligations under this Agreement.
Client’s Obligation to Indemnify. Client shall defend, indemnify and hold harmless Company, its affiliates and their respective present, former and future officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns (collectively the “Company Indemnitees”), from and against any and all losses, damages, costs, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys’ fees) which any of the Company Indemnitees may suffer, incur or sustain resulting from or arising out of (i) Client’s breach of any representation, warranty, or covenant contained in the Agreement, (ii) the Client Content, the Client site or any end user’s use of the Client Content or the Client Web site, (iii) violation by Client or any of its officers, directors, employees or agents of any applicable law, (iv) claims or actions of third parties alleging misappropriation of trade secrets or infringement of patents, copyrights, trademarks or other intellectual property rights arising from the use, display or publication of Client’s domain names, the Client site, the Client Content, or the use of the Deliverables in combination with hardware, software or content not provided by Company, (v) claims or actions by third parties relating to or arising out of Client’s use of the Deliverables, (vi) any failure of the Client Content or any aspect of the Client site to be compatible with the hardware or software used by Company to provide the Services, including any damage to Company’s servers or other hardware caused thereby and (vii) claims or actions by third parties alleging death, bodily injury or damage to property arising out of any products or services sold or otherwise distributed over the Client’s site.
Non-Disclosure. Each Party shall safeguard and hold as confidential all Confidential Information disclosed by the other Party. Each Party shall use the Confidential Information of the other Party solely for the purposes contemplated by this Agreement and shall not disclose such information to persons other than those employees, agents and subcontractors of such Party having a need to know the information in order to perform such Party’s obligations under this Agreement or to enforce this Agreement or as required by law. If a Party is required by law to disclose the other Party’s Confidential Information (such as pursuant to a subpoena, discovery document, search warrant or similar legal process), such Party shall promptly deliver written notification to the other Party upon receipt of such legal process and reasonably cooperate with the other Party (at the other Party’s expense) in any attempt to quash such legal process or to seek a protective order or other appropriate relief requested by the other Party. Upon expiration or termination of this Agreement for any reason, upon request each Party shall promptly return to the other Party all of the other Party’s Confidential Information which is within its custody or control. Legal remedies may be insufficient for a breach of this Section so the Parties agree that an injured Party shall be entitled to injunctive relief in addition to any other legal or equitable remedies.
Time For Completion And Excusable Delay
Time for Completion. The Professional Services shall be commenced on the beginning date and completed by the completion date (the “Completion Date“) specified in each Statement of Work. Company will not be responsible for delays caused by Client’s obligations under a Statement of Work or this Agreement. When delays are caused by the Client’s failure to provide the necessary content and/or material, Company will charge a $400.00 rescheduling fee for delays in this manner.
Excusable Delay or Non-Performance. Neither Party shall be liable to the other Party or be deemed to be in breach of this Agreement (other than Client’s obligation to pay Service Fees and charges owed Company pursuant to this Agreement) by reason of any Excusable Delay. A Party experiencing an Excusable Delay in its performance shall immediately notify the other Party in writing within three (3) calendar days after the inception of the Excusable Delay and shall describe in reasonable detail the circumstances causing such Excusable Delay. The Party experiencing Excusable Delay shall be excused from performance of such obligations so affected by the Excusable Delay event for the period during which the Excusable Delay event continues and for such time thereafter as is reasonably necessary to overcome the effects of such Excusable Delay. Both Parties shall use all reasonable efforts to overcome or work around the Excusable Delay event as soon as reasonably practicable.
Independent Contractor Relationship. Company is serving as an independent contractor to Client under this Agreement. Nothing in this Agreement shall be deemed or construed to create the relationship of partnership or joint venture between the Parties, it being understood that neither the method of computing compensation nor any other provision contained in this Agreement shall be deemed to create any relationship between the Parties other than the relationship of independent Parties contracting for services. Neither Party has, and shall not hold itself out as having, any authority to enter into any contract or create any obligation or liability on behalf of, in the name of, or binding upon the other Party. Company shall determine the method and manner of providing the Professional Services to Client.
Assignment. Neither Party may assign this Agreement; provided, however, each Party shall have the right to assign this Agreement to an Affiliate of such Party as well as to any successor to a substantial part of the business or assets of such Party; provided that any such assignment shall not relieve the assigning Party of its obligations under this Agreement. Company shall have the right to utilize the services of subcontractors in performing the Services, provided that Company shall retain responsibility under this Agreement for all subcontracted Services.
Non-Exclusivity. This Agreement does not in any way obligate either Party to perform or acquire any services (including services of the same nature as the Professional Services), exclusively for or from the other Party.
Amendment or Waiver. No amendment or modification of this Agreement (as it is posted on this web page) or any Statement of Work shall be valid unless it is in writing and signed by both Parties. No waiver of any provision of this Agreement shall be valid unless it is in writing and signed by the Party who is asserted to have made the waiver; any waiver of a breach or observance of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach.
Headings; Captions. The headings and captions of this Agreement are included for convenience only and shall not be considered in construction of the provisions hereof.
Governing Law. This Agreement shall be construed according to, and the rights of the Parties shall be governed by, the laws of the State of Texas, without regard to its conflicts of laws principles. All legal proceedings relating to the subject matter of this Agreement shall be maintained in the state or federal courts of Travis County, Texas and each Party consents that jurisdiction and venue for any such legal proceedings shall lie exclusively with such courts.
Mediation. All claims, disputes, and controversies arising out of or in relation to the performance, interpretation, application, or enforcement of this agreement, including but not limited to breach thereof, shall be referred to mediation before, and as a condition precedent to, the initiation of any adjudicative action or proceeding.
Survival. The provisions of Sections covering Warranty, Limitation of Liability, Indemnification, and Confidentiality shall survive any expiration or termination of this Agreement for a period of two (2) years thereafter. The provisions of Payment for Services, Intellectual Property, and Governing Law shall survive any expiration or termination of this Agreement indefinitely.
Severability. If any provision of this Agreement shall be determined by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the remainder of this Agreement, which shall be construed as if such invalid or unenforceable provision had never been a part of this Agreement but in a manner so as to carry out as nearly as possible the Parties’ original intent.
Binding Effect. This Agreement shall be binding upon and shall benefit the Parties and their respective successors and permitted assigns.
No Third-Party Beneficiaries. There are no third-party beneficiaries of this Agreement.
Counterparts. This Agreement may be executed simultaneously in several counterparts, each of which shall be deemed an original but which together shall constitute one and the same instrument. The counterparts of this Agreement may be executed and delivered by facsimile or other electronic signature and each Party may rely on such signature as if the original had been received.
Entire Agreement. This Agreement, together with any Statements of Work entered into pursuant to this Agreement, constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes any letters of intent, memorandums of understanding, confidentiality agreements, and other agreements and communications, oral or written, between the Parties regarding such subject matter.
Terms Of Service Changes
Modification of Agreement. Company reserves the right to modify this Agreement at any time without notice. Changes and clarifications will take effect immediately upon their posting. In the event that material changes are made to this Agreement, we will notify you of the last modification date in this section. Under certain circumstances, we may also elect to notify you of changes or updates to our policies by additional means.
This agreement was last modified on August 23, 2023.
End of Service Agreement.
Change Log — Displays the most recent two changes only
August 23, 2023 – Under the Software Terms addendum, removed references to a discontinued service (Priority Support). Under main Terms of Service, minor change to asterisk subtext below the support tier table.
September 30, 2022 – Added a specific clause under Term & Termination that clearly establishes Company’s policy in the event of an Excessive Delay.