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The following terminology applies to these Terms and Conditions, “Client”, “You” and “Your” refers to you, the person accessing this website and accepting the Company’s terms and conditions. “The Company”, “Ourselves”, “We”, “Our” and “Us”, refers to our Company. “Party”, “Parties”, or “Us”, refers to both the Client and ourselves, or either the Client or ourselves. All terms refer to the offer, acceptance and consideration of payment necessary to undertake the process of our assistance to the Client in the most appropriate manner, whether by formal meetings of a fixed duration, or any other means, for the express purpose of meeting the Client’s needs in respect of provision of the Company’s stated services/products, in accordance with and subject to, prevailing law of United States. Any use of the above terminology or other words in the singular, plural, capitalisation and/or he/she or they, are taken as interchangeable and therefore as referring to same.
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Republish material from http://www.heinbydesign.com
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We shall have no responsibility or liability for any content appearing on your Web site. You agree to indemnify and defend us against all claims arising out of or based upon your Website. No link(s) may appear on any page on your Web site or within any context containing content or materials that may be interpreted as libelous, obscene or criminal, or which infringes, otherwise violates, or advocates the infringement or other violation of, any third party rights.
Reservation of Rights
We reserve the right at any time and in its sole discretion to request that you remove all links or any particular link to our Web site. You agree to immediately remove all links to our Web site upon such request. We also reserve the right to amend these terms and conditions and its linking policy at any time. By continuing to link to our Web site, you agree to be bound to and abide by these linking terms and conditions.
Removal of links from our website
If you find any link on our Web site or any linked web site objectionable for any reason, you may contact us about this. We will consider requests to remove links but will have no obligation to do so or to respond directly to you.
Whilst we endeavour to ensure that the information on this website is correct, we do not warrant its completeness or accuracy; nor do we commit to ensuring that the website remains available or that the material on the website is kept up to date.
To the maximum extent permitted by applicable law, we exclude all representations, warranties and conditions relating to our website and the use of this website (including, without limitation, any warranties implied by law in respect of satisfactory quality, fitness for purpose and/or the use of reasonable care and skill).
By entering into a project with Hein ByDesign, Inc., you are consenting to be bound by the terms of these policies, procedures and agreement. A copy of the Terms/Agreement is always available to you by request and it is important to read them before beginning work.
This Digital Marketing Services Agreement (“Agreement”) is made and entered into the “Effective Date” set forth below by and between Hein ByDesign, Inc. (“HBD”) and the undersigned customer (“Customer”). This Agreement sets forth the general terms and conditions for the provision of Services (as hereinafter defined) by HBD to Customer. This Agreement shall govern all proposals, engagement letters, or statements of work (each a “Statement of Work”) between HBD and Customer, whether entered into prior to, simultaneously with, or after the Effective Date of this Agreement, and each Statement of Work is hereby incorporated by reference into and becomes part of this Agreement.
In consideration of the mutual terms, covenants and conditions specified in this Agreement, HBD and Customer agree as follows:
1. CERTAIN DEFINITIONS.
a. “Customer Content.” Customer Content shall mean any materials provided by Customer to be incorporated into the Services, including but not limited to, any images, photographs, illustrations, graphics, audio clips, video clips or text.
b. “Deliverables.” Deliverables shall mean those components of the Services that shall be provided to the Customer as a part of the Services, whether in written, electronic, or other form.
c. “Documentation.” Documentation shall mean the documentation for the software, if any, developed by HBD specifically for and which is unique to a website or any component thereof.
a. Services. The Customer hereby engages HBD to perform those services as set for in an applicable Statement of Work (the “Services”) in connection with Customer’s business and authorizes HBD, and its employees, independent contractors and service providers (consultants and other service providers are referred to herein as “Contractors), to perform all work deemed by HBD to be reasonably necessary in connection with the planning, design, and execution of the Services. The Statement of Work shall set forth the necessary specifications and Deliverables provided in connection with the Services.
b. Nature of Services. HBD will use commercially reasonable efforts to perform the Services. It is understood and agreed that the Services provided by HBD may include advice and recommendations, but all decisions in connection with the implementation of such advice and recommendations shall be the responsibility of, and will be made by, Customer. In connection with performing the Services, HBD shall be entitled to rely on all representations of fact, decisions and approvals made by Customer.
3. CUSTOMER CONTENT.
a. Delivery. Customer shall promptly deliver all Customer Content to HBD in an electronic format specified and accessible by HBD (e.g., .txt, .gif) or as otherwise set forth in the Statement of Work. Any services required to convert or input Customer Content not set forth in the Statement of Work may be subject to additional charges.
b. Accuracy. Customer assumes sole responsibility for: (i) acquiring any authorization(s) necessary for hypertext links to third party websites; (ii) the accuracy of materials provided to HBD, including, without limitation, Customer Content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted; and (iii) ensuring that the Customer Content does not infringe, violate, or misappropriate any right of any third party.
c. Representation and Warranty. Customer represents and warrants that Customer has the necessary rights to furnish such Customer Content to HBD and that such Customer Content does not infringe or misappropriate any rights of a third party.
4. NO WARRANTY. HBD DISCLAIMS WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, HBD SHALL NOT BE RESPONSIBLE FOR ANY DEFECTS, DISRUPTIONS, NON-FUNCTIONALITY, LOSS OF DATA, DISRUPTION OR HACKING OF HOSTING SERVICES, OR VULNERABILITIES IN THE SERVICES OR DELIVERABLES.
5. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT AND NOTWITHSTANDING THE FORUM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT BY CUSTOMER AGAINST HBD, CUSTOMER AGREES THAT HBD’S LIABILITY, IF ANY, TO CUSTOMER FOR ANY LOSS, DAMAGE, CLAIM, LIABILITY, OR EXPENSES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOSS OF BUSINESS TO CUSTOMER) CAUSED DIRECTLY OR INDIRECTLY BY THE PERFORMANCE OR NONPERFORMANCE OF OBLIGATIONS PURSUANT TO THIS AGREEMENT OR BY THE NEGLIGENCE, ACTIVE OR PASSIVE, OF HBD SHALL BE EXCLUSIVELY LIMITED TO THE AMOUNTS PAID TO HBD UNDER THIS AGREEMENT FOR THE SERVICES WHICH GAVE RISE TO THE CLAIM. UNDER NO CIRCUMSTANCES SHALL HBD BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OR LOST PROFITS, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, LOST DATA, WORK STOPPAGE, TECHNOLOGY MALFUNCTION, THE BREACH OF THIS AGREEMENT OR ANY TERMINATION OF THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EVEN IF THE POSSIBILITY OF SUCH DAMAGES ARE OR MAY BE KNOWN TO HBD.
6. OWNERSHIP AND INTELLECTUAL PROPERTY.
a. Customer Content. HBD acknowledges and agrees that Customer shall retain sole and exclusive ownership of Customer Content, including without limitation all copyrights, trademarks, patents, trade secrets and any other proprietary rights. Nothing in this Agreement shall be construed to grant HBD any ownership rights in, or license to, the Customer Content, except as provided in Section 7(a) hereof.
b. Work Product. Upon payment of all amounts due HBD, the final version (e.g. print file) of custom programming developed or created by HBD during the course of performing Customer’s work (collectively the “Work Product”) shall belong exclusively to Customer and shall, to the extent possible, be considered a work made for hire for Customer within the meaning of Title 17 of the United States Code. HBD automatically assigns, and shall cause its personnel automatically to assign, at the time of creation of the Work Product, without any requirement of further consideration, and right, title or interest it or they may have in such Work Product, including any copyrights or other intellectual property rights pertaining thereto. Upon request of Customer, HBD shall take such further actions, and shall cause its personnel to take such further actions, including execution and delivery of instruments of conveyance, as may be appropriate to give fully and proper effect to such assignment.
c. Third Party Products. In the course of developing this Work Product for Customer, HBD may employ the use of third party software components. Customer shall not own such third-party software but shall be granted the right to use such software subject to any applicable third party licensing restrictions.
d. HBD Rights. Expressly excluded from the Work Product are any preexisting development tool of any kind, the active layers (e.g. layered files), and full history of the Services, which HBD may use or provide. HBD shall retain any and all right, title and ownership it may have to such preexisting tools, materials, and active layers/full history (“HBD Technology”). HBD shall be free to use and employ its general skills, know-how, methods, techniques, or skills gained or learned during the course of providing the Services, so long as it acquires and applies such information without disclosure and of any confidential or proprietary information of Customer and without any unauthorized use or disclosure of Work Product.
Customer acknowledges that HBD is in the business of providing digital marketing services and that HBD shall have the right to provide to third parties services which are the same or similar to the Services provided hereunder, and to use or otherwise exploit HBD Technology in providing such services. HBD does not agree to any terms that may be construed as precluding or limiting in any way its right to: (a) provide services of any kind or nature whatsoever to any person or entity as HBD in its sole discretion deems appropriate; or (b) develop for itself, or for others, materials that are competitive with those produced as a result of the Services provided hereunder, irrespective of their similarity to any Deliverable.
a. Grant of License to HBD. Customer grants to HBD a royalty-free, fully-paid up, worldwide, nonexclusive license for the term of this Agreement to edit, modify, adapt, translate, exhibit, publish, transmit, reproduce, create derivate works from, distribute, perform, display and otherwise use Customer Content to perform the Services hereunder. Customer agrees that it will make available to HBD all existing HTML Codes, software, content, graphics and other property, intellectual or otherwise, within the Customer’s possession or control or within the possession or control of any third-party in connection with any other (past or present) Customer website needed to complete the Services.
b. Grant of License to Customer. Upon full and final payment to HBD hereunder, Customer shall receive a royalty-free, fully-paid up, worldwide, non-exclusive license to use any of the HBD Technology, but only as it is incorporated in Deliverables.
8. CONFIDENTIAL INFORMATION.
a. Definition. Each party may provide to the other, and each party may come into possession of information relating to the other party’s business which is considered confidential (the “Confidential Information”). Confidential Information shall include, without limitation, all HBD Technology and all information marked confidential, all trade secrets of the parties (as defined under the applicable state trade secret law), and all information relating to each party’s business plans and op¬erations, products, costs, marketing statistics, all customer information, statistics, reports, data, lists, security assessments and analysis, future plans, business affairs, process information, technical information, finances, marketing plans and pricing strategy. Notwithstanding the foregoing, the term Confidential Information shall not include information that (a) is publicly known at the time of its disclosure, (b) is lawfully received by the receiving party from a third party not under an obligation of confidentiality to the disclosing party, (c) is published or otherwise made known to the public by the disclosing party, or (d) was generated independently by the receiving party before disclosure by the disclosing party.
b. Restrictions. Except for disclosure within each Party only as necessary, neither party shall disclose any of the other party’s Confidential Information to any person, or permit any person to use, examine or reproduce Confidential Information without the prior written consent of the other party, unless such Confidential Information has become public knowledge through means other than breach of this Agreement or unless disclosure is required by a valid subpoena, court order or applicable law. Each party shall exercise at least the same degree of care to protect the confidentiality of the other party’s Confidential Information which it exercises to protect the confidentiality of its own similar confidential information, but in no event less than reasonable care. As long as a party meets this standard of care, that party shall have no additional obligations or liability regarding confidentiality.
c. Injunctive Relief. Each party acknowledges that any violation of the provisions of this Section 10, may result in irreparable harm to the other party and that such other party may have no adequate remedy at law. The parties agree that in addition to a right to terminate this Agreement upon a breach of confidentiality each party shall have the right to seek equitable relief by the way of injunction to restrain such violation and to such further relief it may be entitled at law or in equity.
9. FEES AND PAYMENT TERMS.
a. Fee. Customer agrees to pay HBD the fee for the Services in accordance with the amount and schedule of payments outlined in the Statement of Work. Unless otherwise provided in the Statement of Work, fees may be modified by HBD upon thirty (30) days written notice to Customer. For Services provided where no Statement of Work sets forth the pricing and payment terms, Customer agrees to pay HBD in accordance with the standard rates and payment terms most recently published by HBD.
b. Late Payment. Payment of invoices delivered by HBD is due promptly upon receipt thereof. If payment is not paid within thirty (30) days from the date of an invoice, (1) late charges will accrue at a rate equal to the lesser of (i) 1.5% each month or (ii) the highest rate allowable by law, in each case compounded monthly to the extent allowable by law, and (2) the Services may be suspended or terminated, at HBD’s discretion. Notwithstanding such suspension or termination of services, Customer will continue to be obligated under this Agreement to pay the remaining balance for services provided and fees incurred by HBD and the remaining balance of the net total fee that would be due upon Launch of the Web Site.
10. TERM AND TERMINATION.
a. Term. The term of this Agreement shall commence upon the Effective Date and shall expire upon Customer’s payment of the remaining balance of all fees dues hereunder and HBD’s delivery of the Deliverables.
b. Termination. Upon termination of this Agreement for any reason Customer will continue to be obligated under this Agreement to pay the remaining balance for Services provided and fees incurred by HBD through the date of termination. All provisions of Sections 4, 5, 6, 7(b), and 12 shall survive the termination of this Agreement.
c. Cancellation. Customer may cancel this Agreement for any reason within seventy-two (72) hours of execution of this Agreement. In the event of Cancellation, Customer shall receive a refund of amounts paid pursuant to a SOW, minus actual expenses incurred by HBD, including but not limited to, HBD research time (billed at the rate specified in the applicable SOW), securing a domain name, and arranging third party plug-ins.
d. Abandonment. The Deliverables and Services shall be considered abandoned if submitted to Customer for final approval and Customer does not respond to HBD within thirty (30) days commenting on the Deliverables, Services, and Work Product. In the event of abandonment, all amounts under this Agreement shall be immediately due and payable to HBD. In the event of abandonment no right, title, or interest in the Deliverables, Services, or Work Product shall pass to the Customer.
11. CUSTOMER COOPERATION. Customer shall cooperate with HBD in the performance of its Services hereunder, including, without limitation, providing HBD with reasonable facilities and timely access to data, information and personnel of Customer and furnishing HBD with all relevant information concerning Customer’s business and the substance that is to become part of the Deliverables. Customer shall be responsible for the performance of its personnel and agents and for the accuracy and completeness of all data and information provided to HBD for purposes of the performance by HBD of the Services.
Customer agrees to defend, indemnify, and hold harmless HBD and its directors, officers, its employees and agents from and against all third party claims, defense costs (including reasonable attorneys’ fees as they are incurred), judgments and other expenses arising out of the breach of the following covenants and warranties: (a) Customer possesses full power and authority to enter into this Agreement and to fulfill its obligations hereunder, (b) the performance of the terms of this Agreement and of Customer’s obligations hereunder shall not breach any separate agreement by which Customer is bound, and (c) the use, public display, public performance, reproduction, distribution, or modification of Customer Content does not and will not violate (i) the rights of any third parties including, but not limited to, copyrights, trade secrets, trademarks, publicity, privacy, and patents, or (ii) any provision of law. Further, Customer agrees to defend, indemnify, and hold harmless HBD and its directors, officers, it employees and agent from and against all third party claims arising from any data breach of Customer, loss of Customer’s data, any disruption or hacking of Customer’s website, or other breach of Customer’s system, website, or security infrastructure. Customer’s obligation to indemnify requires that HBD notify Customer promptly of any claim as to which indemnification will be sought and provide Customer reasonable cooperation in the defense and settlement thereof.
13. NO THIRD PARTY BENEFICIARY. This Agreement is for the sole and exclusive benefit of the parties hereto, and their respective successors and permitted assigns. The parties do not intend to create any third party beneficiaries or other incidental beneficiaries and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
14. FORCE MAJEURE: Neither party shall be liable for any delays or non-performance resulting from circumstances or causes beyond its reasonable control that could not have been avoided despite its use of commercially reasonable efforts to prevent undue delay, including, without limitation, acts or omissions or the failure to cooperate by the other party, acts or omissions or the failure to cooperate by any third party, fire or other casualty, act of God, strike or labor dispute, war or other civil unrest, or any law, order or requirement of any governmental agency or authority.
15. ENTIRE AGREEMENT, AMENDMENT AND NOTICES: This Agreement is the entire agreement between HBD and the Customer with respect to this engagement. It supersedes all other oral and written representations, understandings or agreements relating to this engagement, and may not be amended except by written agreement signed by the parties. In the event of any conflict between this Agreement and a Statement of Work, the Statement of Work shall govern and control. All notices hereunder shall be (i) in writing, (ii) delivered to the representatives of the parties at the addresses first set forth in the Agreement, unless changed by either party by notice to the other party, and (iii) effective upon receipt.
16. GOVERNING LAW AND SEVERABILITY: This Agreement shall be governed by the laws of the State of Nebraska (without regard to its conflict of law principles). The parties agree that any cause of action or litigation involving the alleged breach or enforcement of this Agreement or any claim arising hereunder shall be filed exclusively in federal or state court in Douglas County, Nebraska, and Customer hereby irrevocably consents to the jurisdiction of any federal or state court in Douglas County, Nebraska. If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable, such provision shall not affect the other provisions, but such unenforceable provision shall be deemed modified to the extent necessary to render it enforceable, preserving to the fullest extent permissible the intent of the parties set forth herein.
17. INDEPENDENT CONTRACTOR: It is understood and agreed that each of the parties hereto is an independent contractor and that neither party is, nor shall be considered to be, an agent, distribu¬tor, partner, fiduciary or representative of the other. Neither party shall act or represent itself, directly or by implica¬tion, in any such capacity in respect of the other or in any manner assume or create any obligation on behalf of, or in the name of, the other.
18. ASSIGNMENT. Customer shall not assign its rights under this Agreement to any third-party without the prior written consent of HBD. HBD may assign this agreement or engage third-party Contractors to assist in providing services hereunder without the consent of Customer.
19. STATUTE OF LIMITATIONS. No action (including arbitration), regardless of form, arising out of transactions under this Agreement, shall be brought by either party more than one (1) year after the cause of action has accrued. This limitation shall not apply to any action brought by HBD for collection of any accrued amounts owed by Customer to HBD.
20. AMENDMENTS AND WAIVER: No waiver, amendment, or modification of any provision of this Agreement shall be effective unless consented to by both parties in writing. No failure or delay by either party in exercising any rights, power, or remedy under this Agreement shall operate as a waiver of any such right, power, or remedy. Any changes to this Agreement will be made in writing and subject to mutual agreement as to content and equitable adjustment to contract price, if applicable.