Consent * I agree to the terms of service.
These General Terms and Conditions are incorporated into and expressly made part of all contracts between Vibrandt Media, LLC and its clients. The terms "Developer," "Host," or "Developer/Host" as used herein shall refer to Vibrandt Media, LLC and the term "Client" shall refer to the person or entity with whom Vibrandt Media, LLC has entered into a Web Site Development and Hosting Agreement or similar agreement ("Agreement").
WEB SITE PROJECT DEVELOPMENT AND LAUNCH
1.1 Payment Terms.
On all new projects, the Client shall pay the Developer in accordance with the Agreement. The site will not be transferred as described below in section 1.2.3 until all sums due under the Agreement have been paid by the Client.
Upon the parties' execution of this Agreement, the Developer shall commence tasks associated with the development of the website as detailed below in this Section 1.2. Developer shall use such combinations of technology as Developer, in consultation with the Client, deems appropriate to develop the website.
After payment of the Initial Deposit in accordance with the Agreement, the Developer shall begin work on the homepage Mock-up of the site. Upon delivery to the Client of the Mock-up of the site, the Client shall have 30 days to request changes to the Mock-up. Changes to the Mock-up shall be requested in writing. Upon completion of the changes timely requested or upon prior acceptance of the Mock-up by the Client, the Developer shall begin work on the Preview of the site. Any changes to the Mock-up requested more than 30 days after delivery and any changes requested after acceptance of the Mock-up shall be considered additional services not within the scope of the Agreement and shall therefore be subject to the Change Order provisions described below in Paragraph 1.3, including applicable additional charges.
Upon delivery to the Client of the Preview of the site, the Client shall have 30 days to request changes to the non-graphical elements of the Preview. Changes to the Preview shall be requested in writing. Upon completion of the changes timely requested or upon prior acceptance of the Preview by the Client, final payment of all sums payable under the Agreement shall be due and payable. Any changes to the Preview requested more than 30 days after delivery of the Preview, changes to graphical elements of the Preview, and any changes requested after acceptance of the Preview shall be considered additional services, not within the scope of the Agreement and shall therefore be subject to the Change Order provisions described below in Paragraph 1.3, including applicable additional charges.
Upon acceptance of the website and payment of all fees due to the Developer under the parties' Agreement Developer shall transfer the project from the staging environment to the live servers. Changes requested more than 10 days after the transfer of the site, changes to graphical elements of the site, changes in programming or functionality, and changes requested after the first written request for changes shall be considered additional services not within the scope of the Agreement and shall therefore be subject to the Change Order provisions described below in Paragraph 1.3, including
applicable additional charges.
1.3 Change Orders.
Changes beyond the scope of the Agreement (“Change Orders”) shall be subject to additional fees. Change Orders shall be submitted in writing and include a detailed description of the requested changes. Developer shall then evaluate the Change Order and submit to Client for its written acceptance a proposal for undertaking the applicable tasks and a price quote reflecting all fees associated with Client's Change Order. The client shall have thirty (30) days from receipt of such proposal to accept or reject the Developer's proposal in writing. If Client accepts Developer's proposal to undertake the work necessitated by the Change Order, Developer shall proceed to implement such revisions. Developer shall have the discretion, but not the duty, to negotiate changes orally or in a manner different from that specified above if Developer believes it necessary or appropriate to do so due to time constraints or other factors and such forbearance shall not be construed as a waiver of any rights or procedures herein. All charges for Change Orders will become due at the completion of the work subject to the Change Order and must be paid in full prior to the Developer continuing development of the site.
PROPRIETARY RIGHTS AND LICENSE
2.1 Proprietary Rights of Client.
As between Client and Developer/Host, Client content shall remain the sole and exclusive property of Client, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights. Except as provided in Section 4.1, nothing in this agreement shall be construed to grant Developer/Host any ownership right in, or license to, the Client Content provided by Client to Developer/Host.
2.2 Proprietary Rights of Developer/Host.
Subject to Client's ownership interest in Client Content, all materials, including, but not limited to, any computer software (in object code and source code form), data or information developed or provided by Developer/Host or its suppliers under this Agreement (with the exception of original elements of audiovisual displays created hereunder specifically for Client, which shall be deemed to be part of Client Content), and any trade secrets, know-how, methodologies, equipment, or processes used by Developer/Host to provide the Services to Client, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto (collectively "Developer/Host Materials") shall remain the sole and exclusive property of Developer/Host or its suppliers. To the extent, if any, that ownership of the Developer/Host Materials
does not automatically vest in Developer/Host by virtue of this Agreement or otherwise, Client hereby transfers and assigns to Developer/Host all rights, title, and interest which Client may have in and to the Developer/Host Materials. The client acknowledges and agrees that the Developer/Host is in the business of designing and hosting websites and that Developer/Host shall have the right to provide to third parties services which are the same or similar to the Services and to use or otherwise exploit any Developer/Host Materials in providing such services.
Each party agrees that during this Agreement, information that is confidential or proprietary may be disclosed to the other party, including, but not limited to software, technical processes and formulas, source codes, product designs, sales, cost, and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, and marketing data ("Confidential Information"). Confidential Information shall not include information that the receiving party can demonstrate (a) is, as of the time of its disclosure, or thereafter becomes part of the public domain through a source other than the receiving party, (b) was known to the receiving party as of the time of its disclosure, (c) is independently developed by the receiving party, or (d) is subsequently learned from a third party not under a confidentiality obligation to the providing party. Except as provided for in this Agreement, each party shall not make any disclosure of the Confidential Information to anyone other than its employees who need to know in connection with this Agreement. Each party shall notify its employees of their confidentiality obligations concerning the Confidential Information and shall require its employees to comply with these obligations. The confidentiality obligations of each party and its employees shall survive the expiration or termination of this Agreement.
2.4 Developer Notices.
Unless otherwise agreed to in writing by the Parties, Developer/Host shall have the right to place proprietary notices of Developer/Host and its suppliers (including hypertext links related thereto) on the Developer/Host Materials and the website, including developer attribution and hypertext links to Developer/Host's websites, and to change or update such notices from time to time upon notice to Client. In no event may Client remove or alter any Developer/Host proprietary notice from the Developer/Host Materials or the website without Developer/Host's prior written consent.
2.5 Grant of License - Client.
Client hereby grants to Developer/Host a non-exclusive, worldwide, royalty-free license for the Initial Term and any Renewal Term (as those terms are hereinafter defined) to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display, and otherwise use Client Content as necessary to render the Services to Client under this Agreement.
2.6 Grant of License - Developer.
Developer/Host hereby grants to Client a limited, non-exclusive, non-transferable license solely for the Initial Term and any Renewal Term (as those terms are defined in the parties' Agreement) to make use of Developer/Host Materials which are incorporated in the website and which are required for the operation of the web site solely to operate the web site on the Host Server. Developer/Host hereby reserves for itself all rights in and to the Developer/Host Materials not expressly granted to Client in the immediately foregoing sentence. In no event shall Client use any trademarks or service marks of Developer/Host without Developer/Host's prior written consent. Unless otherwise agreed to in writing by Developer/Host, the transfer or attempted transfer of the website to any host server other than the Host Server shall automatically terminate the foregoing license.
3.1 Client Content.
"Client Content" shall mean any materials provided by Client for incorporation in the website, including, but not limited to, any images, photographs, illustrations, graphics, audio clips, video clips or text. Client shall deliver the Client Content to Developer in an electronic file format specified and accessible by Developer (e.g. .txt, .gif), or as otherwise specified by the Developer. Any services required to convert or input Client Content not set forth in the Specifications shall be charged as Additional Services. Client shall promptly deliver all Client Content to Developer as required by the Developer. Client assumes sole responsibility for (a) acquiring any authorization(s) necessary for hypertext links to third party websites; and (b) the accuracy of materials provided to Developer/Host, including, without limitation, Client Content, descriptive claims, warranties, guarantees, nature of business, and address where business is conducted, and (c) ensuring that the Client Content does not infringe or violate any right of any third party. Notwithstanding the foregoing, Developer/Host reserves the right, in its sole discretion, to exclude or remove from the website any hypertext links to third party websites, any Client Content on the web site, or other content not supplied by Developer/Host which, in Developer/Host's sole reasonable discretion may violate or infringe the developer's Acceptable Use Policy, any law, or third party rights or which otherwise exposes or potentially exposes Developer/Host to civil or criminal liability or public ridicule, provided that such right shall not place an obligation on Developer/Host to monitor or exert editorial control over the web site.
3.2 Ownership of Client Content.
Client represents to Developer and unconditionally guarantees that the Client Content, including any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Developer for inclusion in the site are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend the Developer from any claim or suit arising from the use of such elements furnished by the client.
3.3 Limitations on Client Content.
Client shall not place nor cause to be placed on the web site Client Content that contains any content or materials which are obscene, threatening, malicious, which infringe on or violate any applicable law or regulation or any proprietary, contract, moral, privacy, or another third party right, or which otherwise expose Developer/Host to civil or criminal liability. Any such materials placed on the website which do not satisfy the foregoing requirements shall be deemed to be a material breach of this Agreement.
FEES AND TAXES
4.1 Hosting Services Fees.
Client shall pay Developer/Host all fees for the Hosting Services in accordance with the terms of the parties' Agreement. Developer/Host expressly reserves the right to adjust the rate it charges for its services during any Renewal Term (as defined in the parties' Agreement).
4.2 Additional Services Fees.
Unless otherwise agreed in writing, Client shall pay to Developer/Host all fees for Additional Services on a time and materials basis as invoiced by Developer/Host.
4.3 Late Payment.
Client shall pay to Developer/Host all applicable fees within thirty (30) days of the date of invoice. If Client fails to pay any fees within thirty (30) days of the date of invoice, where applicable, late charges of the lesser of one percent (1.5%) per month or the maximum allowable under applicable law shall also
become payable by Client to Developer/Host. In addition, the failure of the Client to fully pay any fees within thirty (30) days of the date of invoice shall be deemed a material breach of this Agreement, justifying suspension of the performance of the Services by Developer/Host, and will be sufficient cause for immediate termination of the Agreement at the discretion of Developer/Host. Any such suspension does not relieve Client from paying past dues fees plus interest and in event of collection enforcement, Client shall be liable for any costs associated with such collection, including, but not limited to, legal costs, attorneys' fees, court costs, and collections agency fees.
Client shall pay or reimburse Developer/Host for all sales, use, transfer, privilege, excise, and all other taxes and all duties, whether international, national, state or local, however, designated, which are levied or imposed by reason of the performance by Developer/Host under this Agreement; excluding, however, income taxes on profits which may be levied against Developer/Host.
5.1 Developer/Host Warranties.
Developer/Host represents and warrants that (a) Developer/Host has the power and authority to enter into and perform its obligations under this Agreement, and (b) Developer/Host's Services under this Agreement shall be performed in a workmanlike manner.
5.2 Client Warranties.
Client represents and warrants that (a) Client has the power and authority to enter into and perform its obligations under this Agreement, (b) Client Content does not and shall not contain any content, materials, advertising, or services that are inaccurate or that infringe on or violate any applicable law, regulation or right of any third party, including, without limitation, export laws, or any proprietary, contract, moral, or privacy right or any other party right, (c) Client owns the Client Content or otherwise has the right to place the Client Content on the web site, and (d) Client has obtained any authorization(s) necessary for hypertext links from the web site to other third-party web sites. Should The client receive notice of a claim regarding the website, the Client shall promptly provide Developer/Host with written notice of such claim.
5.3 DISCLAIMER OF WARRANTY.
EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 5.1, DEVELOPER/HOST MAKES NO WARRANTIES HEREUNDER AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Client agrees to indemnify, defend, and hold harmless Developer/Host, its directors, officers, employees, and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt, or liability, including reasonable attorneys' fees, to the extent that such action is based upon a claim that: (i) if true, would constitute a breach of any of Client's representations, warranties, or agreements hereunder; (ii) arises out of the negligence or willful misconduct of Client; or (iii) any of the Client Content to be provided by Client hereunder or other material on the web site infringes or violates any rights of third parties, including, without limitation, rights of publicity, rights of privacy, patents, copyrights, trademarks, trade secrets and/or licenses.
In claiming any indemnification hereunder, the indemnified party shall promptly provide the indemnifying party with written notice of any claim that the indemnified party believes falls within the scope of the foregoing paragraphs. The indemnified party may, at its own expense, assist in the defense if it so chooses, provided that the indemnifying party shall control such defense and all negotiations relative to the settlement of any such claim and further provided that any settlement intended to bind the indemnified party shall not be final without the indemnified party's written consent, which shall not be unreasonably withheld.
LIMITATION OF LIABILITY
8.1 DEVELOPER/HOST SHALL HAVE NO LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT, OR DESTRUCTION OF, THE WEBSITE OR CLIENT'S DATA FILES, PROGRAMS, OR INFORMATION, WHETHER THROUGH ACCIDENT, NEGLIGENCE, OR FRAUDULENT MEANS OR DEVICES. DEVELOPER/HOST SHALL HAVE NO LIABILITY WITH RESPECT TO DEVELOPER/HOST'S OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF DEVELOPER/HOST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE MAXIMUM LIABILITY OF DEVELOPER/HOST TO CLIENT FOR ANY REASON, AND UPON ANY CAUSE OF ACTION, RELATING TO THE SERVICES PERFORMED (OR NOT PERFORMED) BY THE DEVELOPER/HOST SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID TO THE DEVELOPER/HOST BY THE CLIENT FOR THE HOSTING SERVICES UNDER THIS AGREEMENT DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM ACCRUED. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. BECAUSE SOME TATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
8.1 Termination and Payment.
Upon any termination or expiration of the parties' Agreement, the Client shall pay all unpaid and outstanding fees through the effective date of termination or expiration of the Agreement.
Each Client shall designate one person who will act as the primary liaison for all communications regarding the services.
The parties acknowledge and agree that successful completion of the Services shall require the full and mutual good faith cooperation of each of the parties.
8.4 Independent Contractors.
Developer/Host and its personnel, in performance of the parties' Agreement, are acting as independent contractors and not employees or agents of Client.
No amendment, change, waiver, or discharge of the parties' Agreement (including these General Terms and Conditions) shall be valid unless in writing and signed by the party against which such amendment, change, waiver, or discharge is sought to be enforced.
8.6 Client Identification.
Developer/Host may use the name of and identify Client as a Developer/Host Client, in advertising, publicity, or similar materials distributed or displayed to prospective clients unless specifically prohibited in writing by the Client prior to the completion of services with the Developer.
8.7 Force Majeure.
Except for the payment of fees by Client, if the performance of any part of this Agreement by either party is prevented, hindered, delayed, or otherwise made impracticable by reason of any flood, riot, fire, judicial or government action, labor dispute, an act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
Any notice provided pursuant to this Agreement, if specified to be in writing, shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt thereof, (ii) if by mail, three (3) days after deposit in the United States mails, postage prepaid, certified mail, return receipt requested, (iii) if by facsimile transmissions, upon electronic confirmation thereof, or (iv) if by next day delivery service, upon such delivery. All notices to Client shall be addressed to the Client Address set forth in the parties’ Agreement (or such other address as Client may specify in writing). All notices to Developer/Host shall be addressed as follows: P.O. Box 30, Youngsville, LA 70592.
The waiver or failure of either party to exercise any right in any respect provided for in the Web Site Development and Hosting Agreement (including these General Terms and Conditions) shall not be deemed a waiver of any further right thereunder .
If any provision of the Web Site Development and Hosting Agreement (including these General Terms and Conditions) is determined to be invalid under any applicable statue or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
The section headings used herein and in the Web Site Development and Hosting Agreement are for reference and convenience only and shall not enter into the interpretation hereof.
8.12 Approvals and Similar Actions.
Where agreement, approval, acceptance, consent or similar action by either party hereto is required by any provision of the Web Site Development and Hosting Agreement (including these General Terms and Conditions), such action shall not be unreasonably delayed or withheld.
All provisions of the Web Site Development and Hosting Agreement (including these General Terms and Conditions) relating to Client warranties, confidentiality, non-disclosure, proprietary rights, nonsolicitation, limitation of liability, Client indemnification obligations and payment obligations shall survive the termination or expiration of this Agreement.