Terms herein are incorporated in all agreements and/or statement-of-work (the “Agreement”) provided by Consultant (Consultant). For the performance of all services, the Agreement is made and entered into the date of execution (“Effective Date”) by and between the “Client” and the “Consultant“. Client and Consultant may also be referred to individually as a “Party” and collectively as the “ Parties.” Consultant desires to provide for Client and Client desires to receive from Consultant, 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:
“Consultant Content” means (i) any materials developed by or provided by the Consultant and (ii) any third-party audio/visual materials or content acquired by the Consultant, which are intended to be incorporated into any project.
“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 any and all files, web pages, databases, 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. Consultant Services
Design & Development services. If applicable, Consultant agrees to perform and provide for Client, services for design & development as a work made for hire. Consultant shall provide services in accordance with the specifications and the customary industry standards. Consultant 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 Consultant Content and Client Content.
Maintenance & Hosting services. If applicable, Consultant agrees to perform and provide for Client, through an acceptable, based on customary industry standards, third-party service provider, to make desired website and/or application available on demand by users of the Internet. Unless otherwise agreed in writing, any associated support, care, and/or maintenance services are limited to minor changes (such as adding/replacing text copy and/or 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.
Consultant shall use commercially reasonable efforts to maintain the systems and software required for the operation of the services provided under the Agreement. Client acknowledges Consultant made no guarantees about the outcome of service performed.
Backups. Consultant shall arrange for backup servers to maintain daily backups of content. Consultant 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 forty-eight (48) hours of the request.
Availability. Subject to the terms and conditions of the Agreement, Consultant shall contract with acceptable, based on customary industry standards, third-party provider(s) to provide on-going hosting services, for the desired website and/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 and/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 Consultant or the third-party provider may undertake; or (iii) causes beyond the control of Consultant or the third-party provider or which are not reasonably foreseeable by Consultant 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”). Consultant shall use commercially reasonable efforts to minimize any disruption, inaccessibility, and/or inoperability of the website and/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, actually paid to Consultant, 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 (2) business days or less; typically, twenty-four (24) hours.
In the event of any loss or interruption of services solely due to Consultant controlled activities, other than resulting from cancellation, termination, suspension, ordinary performance of maintenance or updates, Client’s sole and exclusive remedy and Consultant’s sole and exclusive liability shall be that any such loss or interruption of services that exceeds a continual period of one (1) hours, 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, and account(s) access. Client shall conduct reviews of work performed in a reasonable timeframe to meet project milestones/deadlines and/or services time requirements.
License. Client grants to Consultant, and Consultant accepts from Client, a nonexclusive, worldwide and royalty free license to copy, display, use and transmit on and via the Internet all client content in accordance with Consultant’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 such 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.
Consultant Credit. Consultant may (i) reasonably publicize its affiliation as the provider, maintainer, designer, and/or developer and (ii) maintain visible & legible developer credit to Consultant (generally stated as “by 1230MEDIA“), at the election of the Consultant. Such credit to the Consultant may be removed, upon request by Client, and if applicable, upon full payment of the value of discount offered for such credit. Unauthorized removal of credit is likely to cause negative impact on Consultant’s reputation.
4. Services Fee
Client shall meet the all financial responsibilities for services provided and for the continuation of services; including but not limited to on-time payment to Consultant. Client acknowledges that any partial payment for services is non-refundable. Consultant 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 30-day 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 to be paid on-time. Client acknowledges that services and/or any account activity may be suspended or terminated until payment is received for any outstanding balance.
Upon payment in full of any outstanding balance, Consultant shall, in a reasonable time, deliver to Client final deliverables of the work performed, in manner that is customary standard in the industry. Such return shall include the administration rights to any domains registered by the Consultant on behalf of the Client.
It is the policy of Consultant to respect Client’s privacy. Unless authorized, Consultant will not disclose identifying information in connection with Client’s use of the Consultant services, apart from reasonably publicizing, displaying, showing, or referencing work as part of Consultant’s portfolio, without Client’s prior consent, unless Consultant 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, and/or agency; (ii) protect or defend rights, interests, and/or property of the Consultant; (iii) transfer 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”). 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 and/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 Consultant 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 Consultant 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 ninety (90) days, or a longer period on which they agree in writing, to resolve the dispute amicably. If the parties cannot resolve the dispute through negotiations, they shall refer the dispute to binding arbitration proceedings. The panel shall be selected within the following ninety (90) day period in good faith for arbitration proceedings in Harris County, Texas. The arbitration proceedings shall not exceed the following one-hundred-eighty (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 Consultant 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 Consultant.
Assignment. Consultant 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 hereunder 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 hereunder 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. Consultant 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. Consultant agrees to provide notice to Client of any material changes. Client agrees that continued use of Consultant 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 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, except written agreements signed by both parties, where additional terms of such agreements shall supplement and in the event of a conflict, supersede.