Terms and conditions, included here, are applicable to and incorporated in any agreement, contract, or statement-of-work, or any future (the “Agreement”) services provided by 1230MEDIA including, but not limited to, web consulting services for website design, website development, website hosting, website maintenance, website updates, and graphic design services. For the performance of all services, unless otherwise agreed in writing, the Agreement is made and entered into the date of execution (“Effective Date”) by and between “Client” and “Vendor”. Client and Vendor may also be referred to individually as a “Party” and collectively as the “ Parties.” Vendor desires to provide for Client, and Client desires to receive from Vendor, certain services subject to the terms of the Agreement.
The parties agree as follows:
Definitions. The following terms used in the Agreement shall have the following meanings:
“Vendor Content” means (i) any materials developed by or provided by the Vendor and (ii) any third-party audio/visual materials or content acquired by the Vendor, which are intended to be incorporated into the content of the website.
“Client Content” means the materials, if any, provided by Client, including, without limitation, trade or services marks, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages, metatags, domain names, software and/or text copy. Client shall be solely responsible for providing, updating, uploading, and maintaining the website and any and all files, pages, data, works, information, and/or materials on, within, displayed, linked or transmitted to, from or through the website, including all Client Content, unless otherwise agreed in writing. The Client Content shall also include any registered domain names provided by Client or registered on behalf of Client in connection with the services.
1. Vendor Services
Design & Development services. If applicable, Vendor agrees to perform and provide for Client, services for design & development of a website, web application, or mobile application, or graphics design as a work made for hire. Vendor shall provide services in accordance with the specifications and the customary industry standards. Vendor may leverage third-party service providers, technology platforms and frameworks, software, etc. to fulfill obligations under the Agreement. The final work product of services performed may incorporate Vendor Content and Client Content.
Maintenance & Hosting services. If applicable, Vendor agrees to perform and provide for Client, through an acceptable, based on customary industry standards, third-party provider, services to make desired website or application available on demand by users of the Internet.
Unless otherwise agreed in writing, any updates and/or maintenance services are limited to minor changes (such as adding/replacing text copy, adding/replacing image(s), adding a blog post, performing security patch update, etc.) during the term of the Agreement. Requests beyond this scope may incur additional fees.
Vendor shall use commercially reasonable efforts to maintain the systems and software required for the operation of the services provided under the Agreement. Client acknowledges Vendor made no guarantees about the outcome of service performed.
Backups. Vendor shall arrange for backup servers to maintain daily backups of content. Vendor may deploy backups to address any error or disruption of services. Client may request deployment of such backup through support requests, to alleviate any errors or disruption of services, to be completed within 24-hours of the request.
Availability. Subject to the terms and conditions of the Agreement, Vendor shall contract with acceptable, based on customary industry standards, third-party provider(s) to provide on-going website hosting services, for the desired website or application, 24 hours a day, 7 days a week, on a monthly basis (“Uptime”). Client acknowledges that all terms and policies of the third-party provider(s) are applicable to the services provided to the Client. Client agrees that from time to time, the website or application may be inaccessible or inoperable for various reasons, including but not limited to, (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Vendor or the third-party provider may undertake; or (iii) causes beyond the control of Vendor or the third-party provider or which are not reasonably foreseeable by Vendor or the third-party provider, including but not limited to, interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures (collectively “Downtime”). Vendor shall use commercially reasonable efforts to minimize any disruption, inaccessibility and/or inoperability of the website or application in connection with Downtime, whether scheduled or not. In the event of any Downtime experiences is greater than 1% of monthly Up-time, Client shall be entitled to a pro-rata reduction of any payments, for the days affected, due and payable to Vendor, if any, for such period. All hosting related support services request must be submitted through the support request form available at https://1230media.com/support and are based on standard response time of two-business days or less; typically, 24 hours.
In the event of any loss or interruption of services solely due to Vendor controlled activities, other than resulting from cancellation, termination, suspension, ordinary performance of maintenance or updates, Client’s sole and exclusive remedy and Vendor’s sole and exclusive liability shall be that any such loss or interruption of services that exceeds a continual period of one (1) hour, Client shall receive a credit against future services equal to one-thirtieth (1/30) of the monthly fees for the services for each cumulative hour, up to a maximum total of the fees charged for services for the applicable month of the affected services.
2. Client Responsibilities
Unless otherwise indicated in writing, Client shall provide all content, copy, documents, media files, graphics, images, account(s) access, and conduct review in a reasonable timeframe to meet project milestones/deadlines and/or services time requirements.
License. Client grants to Vendor, and Vendor accepts from Client, a nonexclusive, worldwide and royalty free license to copy, display, use and transmit on and via the Internet all website content in accordance with Vendor’s performance or enforcement of the Agreement.
Client shall retain all right, title and interest (including copyright and other proprietary or intellectual property rights) in the Client Content and all legally protectable elements. Except for third-party content, all final deliverables including designs, graphics, and code or programming works shall be works made for hire and the property of Client. Client shall own all rights, title, and interest (including copyright and other proprietary or intellectual property rights) in the Works and all legally protectable elements, contributions, collective works thereof or derivative works thereto. Client acknowledges that full and timely payment must be made for services provided and all outstanding balance must be paid in full and timely before Client may assert any claim for ownership rights.
Vendor Credit. Any offer of discount in consideration of Vendor’s right to (i) reasonably publicize its affiliation as the provider, maintainer, designer, and/or developer and (ii) maintain visible & legible developer credit to 1230MEDIA in the footer of every page of the web site (generally stated as “Site by 1230MEDIA“), at the election of the Vendor. This credit to the Vendor may be removed, upon request by Client and full payment of discounted amount. Unauthorized removal of developer credit is likely to cause negative impact on Vendor’s reputation. Upon notice, Client shall have 30-day to take corrective measures or submit full payment of discounted amount.
4. Services Fee
Client shall meet the all financial responsibilities for services provided and for the continuation of uninterrupted services; including but not limited to on-time payment of Vendor. Client acknowledges that initial payment or any partial payment for services is non-refundable.
Late fee at the rate of 1.5% (minimum: $25.00) per month will be charged on amounts which are not paid within 30-days of the due date. Any recurring or subscription service is subject to cancellation, within 30-days, if fee for the service is not received by the payment due date.
Vendor shall provide a 60-day notice to any client impacted by services rate increase. Clients shall have the option to opt-out of services or continue services at the new rate.
5. Term & Termination
The term of the Agreement shall commence on the effective date and continue thereafter until terminated.
The Agreement may be terminated, upon receipt of written notice of termination, from one party to the other party. If for any reason, services are terminated prior to completion of term, project, or tasks , then Client will be invoiced for any unbilled performed services. Such invoices are also expected to be paid on-time as well. Client acknowledges that services and/or any account activity may be suspended or terminated until payment is received for any outstanding balance.
Upon request and full and timely payment of any outstanding balance, Vendor shall, in a reasonable time, deliver to Client final copies of files of the work performed, in manner that is customary standard in the industry. Beyond this, Vendor offers to assist in transferring the final deliverables to the third-party chosen by Client (additional fees may apply) after full and timely payment of any outstanding balance. Return shall include the administration right to any domains registered by the Vendor on behalf of the Client.
It is the policy of Vendor to respect Client’s privacy. Unless authorized, Vendor will not disclose any information in connection with Client’s use of the Vendor services, apart from reasonably publicizing, displaying, showing, or referencing work as part of Vendor’s portfolio, without Client’s prior consent, unless Vendor has a good faith belief that such action is necessary to: (i) comply with legal process or other legal requirements of any court, governmental authority or agency; (ii) protect or defend rights, interests or property of the Vendor; (iii) transfer company assets; or (iv) enforce the Agreement.
7. Confidential Information
Parties may provide to the other party, certain confidential proprietary information, trade secret, business, financial, or technical information in connection with performance of the Agreement (“Confidential Information”). All such information shared shall be deemed Confidential Information. Parties agree to preserve the confidentiality of all Confidential Information that is provided by the other party in connection with the Agreement. Parties shall not, without the prior written consent of the other party, disclose or make available to any person, or use for its own or any other person’s benefit, other than as necessary in performance of its obligations under the Agreement, any Confidential Information of the other party. At a minimum, parties shall exercise a reasonable level of care, at least the same degree of care as the party exercises for its own confidential information, to safeguard Confidential Information of the other party against improper disclosure or use.
Client agrees to indemnify, hold harmless and defend Vendor and its directors, officers, employees and agents from and against any action, claim, demand or liability, including reasonable attorney’s fees and costs, arising from or relating to any allegation that the Client Content infringes a third-person’s copyright or trademark right, or misappropriates a third person’s trade secrets. Client agrees that Vendor shall have the right to participate in the defense of any such claim through counsel of its own choosing.
EXCLUSIVE OF LIABILITY UNDER INDEMNIFICATION, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THE AGREEMENT BETWEEN THE PARTIES AND/OR ITS SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, OR OTHERWISE EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
In the event of any dispute arising out of the Agreement, the parties agree to use their best efforts to negotiate with each other in good faith for a period of 90 days, or a longer period on which they agree, to resolve the dispute amicably. If the parties cannot resolve the dispute through negotiation, they shall refer the dispute to binding arbitration proceedings. The panel shall be selected within 90-days in good faith for arbitration proceedings in Harris County, Texas. The arbitration proceedings shall not exceed 180-days from the day a matter is referred to arbitration to the day the arbitration panel renders its judgment. The arbitration judgement shall be final and binding on the parties. The cost of arbitration shall be borne by either party or both parties, as the arbitration panel may determine.
Independent Contractor. The Vendor shall be independent contractor and Client by virtue of Agreement shall not have any right, power or authority to act or create any obligation, express or implied, on behalf of the Vendor.
Assignment. Vendor may assign its duties or obligations under Agreement to any person or entity, in whole or in part.
Waiver. No waiver of any provision hereof or of any right or remedy here-under shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy here-under shall constitute a waiver of any other right or remedy, or future exercise thereof.
Severability. If any provision of the Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
Notice. All notices shall be in writing and shall be deemed to be delivered when received by certified mail or when sent by e-mail to the email address used in the course of ordinary business communication.
Law. The Agreement shall be governed in all respects by the laws of the State of Texas, without regard to its conflicts of law and/or choice of law rules or provisions.
Survival. The respective rights and obligations of the parties under the Agreement shall survive any termination or expiration of the Agreement.
Time. The parties agree that time is of the essence in the performance of the respective obligations under the Agreement.
Amendment. Vendor reserves the right to reasonably modify these terms and conditions, at any time (generally done annually on the 1st of January). Any such modification will be made available here, at https://1230media.com/terms, and effective immediately. Vendor agrees to provide notice to Client of any material changes. Client agrees that continued use of Vendor services following any such reasonable or material modification constitutes acceptance of all terms including the modifications. No other amendment, change, waiver, or discharge hereof shall be valid unless specified in writing in any agreement for services provided by Vendor or in writing signed by both parties.
Entire Agreement. The Agreement constitutes the complete and exclusive statement of all mutual understandings between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written, unless specified in writing in any agreement for services provided by Vendor or in writing signed by both parties.