Terms and Conditions

DEFINITIONS

As used herein and throughout this Agreement:

Agreement means the entire content of this Basic Terms and Conditions document, the Proposal document(s), together with any other Supplements designated below, together with any appendixes, exhibits, schedules or attachments hereto.

Client Content means all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.

Copyrights means the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under U.S. Copyright Law.

Deliverables means the services and work product specified in the Proposal to be delivered by Agency to Client, in the form and media specified in the Proposal.

Agency Tools means all design tools developed and/or utilized by Agency in performing the Services, including without limitation pre-existing and newly developed software including source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.

Final Art means all creative content developed or created by Agency, or commissioned by Agency, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables, including and by way of example, not limitation, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Client Content, and Agency’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.

Final Deliverables means the final versions of Deliverables provided by Agency and accepted by Client.

Landing Page (hereafter referred to as a “website”) means a page on the World Wide Web regarded as a single entity, usually maintained by one person or organization and devoted to a single topic or several closely related topics.

Preliminary Works means all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Agency and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Art.

Project means the scope and purpose of the Client’s identified usage of the work product as described in the Proposal.

Services means all services and the work product to be provided to Client by Agency as described and otherwise further defined in the Proposal.

Third Party Materials means proprietary third party materials which are incorporated into the Final Deliverables, including without limitation stock photography, illustration, and any other tools or software.

Trademarks means trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of Clients.

Website means a connected group of pages on the World Wide Web regarded as a single entity, usually maintained by one person or organization and devoted to a single topic or several closely related topics.

PROPOSAL

The terms of the Proposal shall be effective for no more than 30 days after presentation to Client. In the event this Agreement is not executed by Client within the time identified, the Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.

FEES AND CHARGES

Fees. In consideration of the Services to be performed by Agency, Client shall pay to Agency fees in the amounts and according to the payment schedule set forth in the Proposal, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.

Expenses. Client shall pay Agency’s expenses incurred inconnection with this Agreement as follows: (a) incidental and out-of-pocket expenses including but not limited to costs for overnight courier, service bureaus, typesetting, blueprints, models, presentation materials, photocopies (b) travel expenses including transportation, meals, and lodging, incurred by Agency with Client’s prior approval.

Additional Costs. The Project pricing includes Agency’s fee only. Any and all outside costs including, but not limited to, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses and online access or hosting fees, will be billed to Client unless specifically otherwise provided for in the Proposal.

Invoices. All invoices are payable within fifteen (15) days of receipt. A monthly service charge of 1.5 percent (1.5%) is payable on all overdue balances. Payments will be credited first to late payment charges and next to the unpaid balance. Client shall be responsible for all collection or legal fees necessitated by lateness or default in payment. Agency reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses, and Fees, Charges, or the costs of Changes.

CHANGES

General Changes. Unless otherwise provided in the Proposal, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and materials basis, at Agency’s standard hourly rate of $175 per hour. Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein. Agency may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such Changes.

Substantive Changes. If Client requests or instructs Changes that amount to a revision in or near excess of 25 percent (25%) of the time required to produce the Deliverables, and or the value or scope of the Services, Agency shall be entitled to submit a new and separate Proposal to Client for written approval. Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by Agency.

Timing. Agency will prioritize performance of the Services as may be necessary or as identified in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Agency. The Agency shall be entitled to request written clarification of any concern, objection or correction. Client acknowledges and agrees that Agency’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Client’s performance or Changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables. Any such delay caused by Client shall not constitute a breach of any term, condition or Agency’s obligations under this Agreement.

Testing and Acceptance. Agency will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client. Client, within five (5) business days of receipt of each Deliverable, shall notify Agency, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change or amendment, and Agency will undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement. In the absence of such notice from Client, the Deliverable shall be deemed accepted.

CLIENT RESPONSIBILITIES

Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner: (a) coordination of any decision-making with parties other than the Agency; (b) provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparation, unless otherwise expressly provided in the Proposal; and (c) final proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors.

ACCREDITATION/PROMOTIONS

Agency retains the right to reproduce, publish and display the Deliverables in Agency’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purposes of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses. Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project and, if applicable, the services provided to the other party on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website.

CONFIDENTIAL INFORMATION

Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation Preliminary Works (“Confidential Information”). Each party, its agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Proposal except as may be required by a court or governmental authority. Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.

RELATIONSHIP

Independent Contractor. Agency is an independent contractor, not an employee of Client or any company affiliated with Client. Agency shall provide the Services under the general direction of Client, but Agency shall determine, in Agency’s sole discretion, the manner and means by which the Services are accomplished. This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Agency and the work product or Deliverables prepared by Agency shall not be deemed a work for hire as that term is defined under Copyright Law. All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.

Agency Agents. Agency shall be permitted to engage and/or use third party Agencys or other service providers as independent contractors in connection with the Services (“Design Agents”). Notwithstanding, Agency shall remain fully responsible for such Design Agents’ compliance with the various terms and conditions of this Agreement.

No Solicitation. During the term of this Agreement, and for a period of six (6) months after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any Agency, employee or Design Agent of Agency, whether or not said person has been assigned to perform tasks under this Agreement. In the event such employment, consultation or work-for-hire event occurs, Client agrees that Agency shall be entitled to an agency commission to be the greater of, either (a) 25 percent of said person’s starting salary with Client, or (b) 25 percent of fees paid to said person if engaged by Client as an independent contractor. In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date. In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for Client. Agency, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law and equity.

No Exclusivity. The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Agency, and Agency shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Agency.

WARRANTIES AND REPRESENTATIONS

By Client. Client represents, warrants and covenants to Agency that (a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content, (b) to the best of Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties, (c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and (d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.

By Agency.
(a) Agency hereby represents, warrants and covenants to Client that Agency will provide the Services identified in the Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.
(b) Agency further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Agency and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Agency, Agency shall have secure agreements from such contractors granting all necessary rights, title, and interest in and to the Final Deliverables sufficient for Agency to grant the intellectual property rights provided in this Agreement, and (iii) to the best of Agency’s knowledge, the Final Art provided by Agency and Agency’s subcontractors does not infringe the rights of any party, and use of same in connection with the Project will not violate the rights of any third parties. In the event Client or third parties modify or otherwise use the Deliverables outside of the scope or for any purpose not identified in the Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Agency shall be void.
(c) EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, AGENCY MAKES NO WARRANTIES WHATSOEVER. AGENCY EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE PROJECT.

INDEMNIFICATION/LIABILITY

By Client. Client agrees to indemnify, save and hold harmless Agency from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement. Under such circumstances Agency shall promptly notify Client in writing of any claim or suit; (a) Client has sole control of the defense and all related settlement negotiations; and (b) Agency provides Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section. Client will reimburse the reasonable out-of-pocket expenses incurred by Agency in providing such assistance.

By Agency. Subject to the terms, conditions, express representations and warranties provided in this Agreement, Agency agrees to indemnify, save and hold harmless Client from any and all damages, liabilities, costs, losses or expenses arising out of any finding of fact which is inconsistent with Agency’s representations and warranties made herein, except in the event any such claims, damages, liabilities, costs, losses or expenses arise directly as a result of gross negligence or misconduct of Client provided that (a) Client promptly notifies Agency in writing of the claim; (b) Agency shall have sole control of the defense and all related settlement negotiations; and (c) Client shall provide Agency with the assistance, information and authority necessary to perform Agency’s obligations under this section. Notwithstanding the foregoing, Agency shall have no obligation to defend or otherwise indemnify Client for any claim or adverse finding of fact arising out of or due to Client Content, any unauthorized content, improper or illegal use, or the failure to update or maintain any Deliverables provided by Agency.

Limitation of Liability. THE SERVICES AND THE WORK PRODUCT OF AGENCY ARE SOLD “AS IS.” IN ALL CIRCUMSTANCES, THE MAXIMUM LIABILITY OF AGENCY, ITS DIRECTORS, OFFICERS, EMPLOYEES, DESIGN AGENTS AND AFFILIATES (“AGENCY PARTIES”), TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO THE NET PROFIT OF AGENCY. IN NO EVENT SHALL AGENCY BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY AGENCY, EVEN IF AGENCY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

TERM AND TERMINATION

This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.

This Agreement may be terminated at any time by either party upon ten (10) days notice, or the mutual agreement of the parties, or if any party: (a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or (b) breaches any of its material responsibilities or obligations under this Agreement, which breach is not remedied within ten (10) days from receipt of written notice of such breach.

In the event of termination, Agency shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by Agency or Agency’s agents as of the date of termination, whichever is greater; and Client shall pay all Expenses, fees, out of pockets together with any Additional Costs incurred through and up to, the date of cancellation.

In the event of termination by Client and upon full payment of compensation as provided herein, Agency grants to Client such right and title as provided for in the Statement of Work (SOW) with respect to those Deliverables provided to, and accepted by Client as of the date of termination.

Upon expiration or termination of this Agreement: (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.

GENERAL

Modification/Waiver. This Agreement may be modified by the parties. Any modification of this Agreement must be in writing, except that Agency’s invoices may include, and Client shall pay, expenses or costs that Client authorizes by electronic mail in cases of extreme time sensitivity. Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.

Notices. All notices to be given hereunder shall be transmitted in writing either by facsimile or electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the addresses identified below, unless notification of change of address is given in writing. Notice shall be effective upon receipt or in the case of fax or email, upon confirmation of receipt.

No Assignment. Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party.

Force Majeure. Agency shall not be deemed in breach of this Agreement if Agency is unable to complete the Services or any portion thereof by reason of fire, earthquake, labor dispute, act of God or public enemy, death, illness or incapacity of Agency or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Agency’s control (collectively, “Force Majeure Event”). Upon occurrence of any Force Majeure Event, Agency shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.

Governing Law and Dispute Resolution. The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and the state of North Dakota without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction. In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the American Arbitration Association, or other forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. In all other circumstances, the parties specifically consent to the local, state and federal courts located in the state of North Dakota. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that Agency will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that Agency shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.

Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.

Headings. The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.

Integration. This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement. In the event of a conflict between the Proposal and any other Agreement documents, the terms of the Proposal shall control. This Agreement comprises this Basic Terms and Conditions document, the Proposal, Schedule A, and the following documents as indicated by the parties’ initials:

By entering into an agreement with Agency, the parties hereto have agreed to all of the terms and conditions of this Agreement effective as of the last date of signature on the Proposal Sign-off sheet, and each signatory represents that it has the full authority to enter into this Agreement and to bind her/his respective party to all of the terms and conditions herein.

Appendix 1: Advertising

Appendix 2: Website Development

Appendix 3: Website Hosting

Appendix 4: Website Maintenance

Appendix 5: Social Media Campaigns

Appendix 1: Advertising

DURATION OF CONTRACT

Contract length shall be specified in the Insertion Order via the line item dates. Contract shall become valid once valid receipt is confirmed by the Agency and payment has been made.

ADVERTISEMENT PREPARATION

It is the responsibility of the Client to provide Agency with all advertising collateral necessary for the placement of the requested advertisement. All material must be received by the deadlines provided within the Insertion Order. In the event that collateral is not timely received by Agency for a scheduled advertisement date, the Client authorizes Agency to charge Client for the placement on the dates specified in the agreement. The Advertiser will be charged under normal billing procedures whether or not the collateral is present and Agency will not extend the length of advertisement dates.

REFUSAL OF ADVERTISING

Agency reserves the right to refuse any advertisement that is not in accordance with its publishing guidelines. Client will be notified of refused advertisement collateral. If Client is replacing an already approved advertisement then Agency will continue to substitute the last advertisement published until acceptable material is received.

BILLING/PAYMENT

Client must submit payment for the first month of the insertion upfront. Client shall be charged each concurrent month at the first of the month. In the case of a refused advertisement, the Client agrees to authorize Agency to charge Client on dates outlined in the Insertion Order regardless of if advertisement is published. No advertisements shall be published until receipt of payment in full for the first month.

CANCELLATION OF CONTRACT

It is agreed that this contract may be cancelled by either party at any time for any reason. Cancellations are only valid with written notification 10 days prior to the insertion order due date and will take effect immediately upon receipt by either party. A multiple-insertion Client who cancels this contract will be liable for half of the amount of the amount due. Upon cancellation of this contract, Agency is no longer obligated to publish the Client’s advertisement(s). Cancellation of this contract does not absolve the Client from paying outstanding amounts owed from previously published or current advertisements if payment have not been made.

HOLD HARMLESS

The Client will assume all responsibility for any and all advertisements published by Agency on behalf of the Client and will hold Client harmless for any and all claims relating to their advertisement including, but not limited to, tort, copyright, photographic or trademark actions.

Appendix 3: Website Hosting

SERVICES PROVIDED

Client is contracting Agency to provide web site hosting and maintenance retainer. This includes hosting environment and necessary security and functionality updates to scripts, templates, installed plug-ins, applications and databases. Any content or site change requests by the Client are billed as detailed in Additional Charges.

SERVICES EXCLUDED

Unless previously agreed to in writing web site maintenance retainer does not include website redesign, custom images or artwork, custom script design or other custom code. Also excluded are e-commerce related services or fees, including but not limited to credit card processing fees or shopping cart purchase or rental, SSL certificate costs, domain name registration and services provided by any 3rd party.

ADDITIONAL CHARGES

Client is responsible for license fees for any 3rd party images, programs or scripts. Client can pay for these directly or with Client approval Agency can license them and bill the cost + 10% to Client.  Sales tax or other state fees may apply for all purchased licenses. Client is responsible for and agrees to pay all local, state and federal sales taxes due for these additional fees.

Upgrades to hosting environment such as resources for advanced server space with high levels of bandwidth and memory allocations for complex websites will increase the Website Hosting fee as of the date of upgrade.

Additional web services, such as changes to, or adding content, pages, plugins, scripts, databases or other service as requested by client can be estimated prior to execution and will be billed at regular Agency rates.

RETAINER PLAN

No refunds or credits will be issued for services requested and/or provided. All website maintenance and/or updates have a minimum billing charge of 1 hour and a maximum of 3 hours in a single month. Any necessary website maintenance and/or updates beyond 3 hours in a single month will not be performed without prior written consent by Client. Retainer plan will be billed at the rate specified in this agreement. A log of time spent will be provided to Client by Agency upon written request.

DURATION OF CONTRACT

Client agrees to a contractual term of six (6) months with a beginning date defined in the Statement of Work (SOW). This contract will automatically renew for successive six (6) month terms unless canceled in writing by Client at least 30 days prior to the ends of the term renewal date. Cancelation notice must be given in writing via email, fax or regular mail.

RENEWALS

Renewal prices are subject to change based upon traffic, storage, and hardware requirements. Renewal payments will be automatically invoiced to the Client’s account.

SUPPORT

Agency will provide support related to problems with the Hosting functions of its services free of charge during regular business hours. Support not related to core Hosting function problems will be charged to Client at applicable maintenance rates as defined in the General Contract.

LIABILITY; NO WARRANTY; LIMITATION OF DAMAGES

Client expressly agrees that use of Services provided by Agency is at Client’s sole risk.

Agency does not guarantee a percentage of uptime but will make all best efforts to ensure support to issue resolution. Agency shall have no liability of any kind for any damages or loss arising as a consequence of such downtime or unavailability.

Agency, its agents, affiliates, licensors or the like, do not represent or warrant, expressly or impliedly, that their services will not be interrupted or error free; nor do they make any warranty as to the results that may be obtained from the use of their services or as to the accuracy, reliability, or content of any information service or merchandise contained in or provided through their services, unless otherwise expressly stated in this Agreement.

Agency, its officers, agents, or anyone else involved in providing services shall not be liable for any direct, indirect, incidental, special, or consequential damages that result from the use or inability to use services; or for any damages that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission, or any failure of performance, whether or not limited to acts of god, communication failure, theft, destruction, or unauthorized access to Agency’s records, programs, or services.

Agency will exercise no control over the content of the information passing through Agency’s network except those controls expressly provided herein.

Agency makes no warranties or representations of any kind, express or implied, for the services it is providing. Agency also disclaims any warranty of merchantability or fitness for a particular purpose and will not be responsible for any damages that may be suffered by Client, including loss of data resulting from delays or non-deliveries.

CENSORSHIP

Agency will exercise no control whatsoever over the content of the information passing through the network, email or web site.

THIRD PARTY HARDWARE/SOFTWARE

Agency uses third party hardware and/or software services to provide hosting services.

Agency reserves the right to modify, change, or discontinue any Third-Party Hardware/Software at any time, and you agree to cooperate in performing such steps as may be necessary to install any updates to the Third-Party Hardware/Software. The Third-Party Hardware/Software is neither sold nor distributed to you, and you may use the Third-Party Hardware/Software solely as part of the Services. You may not use the Third-Party Hardware/Software outside of the Services. Agency may provide your personal information to third-party providers as required to provide the Third-Party Hardware/Software. You acknowledge and agree that your use of the Third-Party Hardware/Software is subject to our agreement(s) with the third-party providers. In addition, if the Third-Party Hardware/Software is accompanied by or requires consent to a service or license agreement from the third-party provider, your use of the Third-Party Hardware/Software is subject to such service or license agreement. You may not download, install, or use any Third-Party Hardware/Software that is accompanied by or requires consent to a service or license agreement from a third-party provider unless you first agree to the terms and conditions of such service or license agreement. You may not remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that are contained in or on the Third-Party Hardware/Software. You may not reverse engineer, decompile, or disassemble the Third-Party Hardware/Software, except and only to the extent that such activity is expressly permitted by applicable law. You acknowledge and agree that the third-party providers (and their affiliates and suppliers) make no representations or warranties about any Third-Party Hardware/Software offered in connection with the Services, and expressly disclaim any liability or damages (whether direct, indirect, or consequential) arising from the use of the Third-Party Hardware/Software.

VIOLATIONS OF NETWORK SECURITY

Client is prohibited from violating or attempting to violate the security of the network. Violations of system or network security may result in civil or criminal liability in addition to immediate termination of Client’s agreement. Host will investigate occurrences, which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Clients who are involved in such violations. These violations include, without limitation:

Accessing data not intended for the Client or logging into a server or account that the Client is not authorized to access.

Attempting to probe, scan, or test the vulnerability of a system or network, or to breach security or authentication measures without proper authorization.

Attempting to interfere with service to any Client, host or network, including, without limitation, via means of overloading, “flooding,” “mail bombing,” or “crashing”.

Forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting.

Taking any action in order to obtain services to which the Client is not entitled.

WARRANTY AGAINST UNLAWFUL USE

Client warrants and represents that Client shall use Services only for lawful purposes and in accordance with all valid federal, state, and local laws and regulations governing use of e-mail and the Internet, whether or not specifically prohibited elsewhere in this Agreement. Failure to abide by the terms of this paragraph shall be grounds for immediate termination of Client’s account for cause.

Appendix 5: Social Media Campaigns

DURATION OF CONTRACT

Contract length shall be specified in the Statement of Work (SOW) via the line item dates. Contract shall become valid once valid receipt is confirmed by the Agency and payment has been made.

SOCIAL MEDIA PREPARATION

It is the responsibility of the Client to provide Agency with all social media collateral necessary for the placement of the requested campaigns. All material must be received by the deadlines provided within the Proposal. In the event that collateral is not timely received by Agency for a scheduled campaign date, the Client authorizes Agency to charge Client for the placement on the dates specified in the agreement. The Advertiser will be charged under normal billing procedures whether or not the collateral is present and Agency will not extend the length of the campaigns.

REFUSAL OF CAMPAIGNS

Agency reserves the right to refuse any campaigns that is not in accordance with its publishing guidelines or those of Third Party Social Networks. Client will be notified of refused campaign collateral.

CANCELLATION OF CONTRACT

It is agreed that this contract may be cancelled by either party at any time for any reason. Cancellations are only valid with written notification 10 days prior to the campaign start date and will take effect immediately upon receipt by either party. A multiple-insertion Client who cancels this contract will be liable for half of the amount of the amount due. Cancellation of this contract does not absolve the Client from paying outstanding amounts owed.

HOLD HARMLESS

The Client will assume all responsibility for any and all campaigns published by Agency on behalf of the Client and will hold Client harmless for any and all claims relating to their campaign including, but not limited to, tort, copyright, photographic or trademark actions.