Terms of Service
This Agreement is made as of the Effective Date on the SOW, by and between H. Creative Group, LLC, having a place of business at 371 17th ST NW, Atlanta, GA 30363 (“HCG”) and Client as defined in the SOW. Client desires for HCG to provide Client with the services as described in the SOW (“Services”).
1. Definitions. “Agreement” means this Agreement, all exhibits, and the SOW. “Confidential Information” means all tangible and intangible confidential and proprietary information and trade secrets (whether or not patentable or copyrightable), owned or possessed by either party, including Client information, business practices, Client’s or HCG’s website, the screen shots, feature sets or programs and all related documentation, cost and pricing, know-how, marketing or business plans, analytical methods, procedures and technology, that is disclosed to the other party or to which the other gains access in connection with this Agreement. “Intellectual Property Rights” means any and all original intellectual property or other proprietary rights in the artwork/files including, copyrights; trademark, trade name and trade dress rights; trade secret rights; patents, rights of publicity; and other intellectual property rights. “Client Content” means any links, text, graphics, data, or materials provided to HCG for use in connection with the Services. “Client Marks” means those trademarks of Client provided to HCG for use with the Services. “Royalty-Free (RF)” means pricing is based solely on the size of the product you need, not the specific use. You don’t have to pay any additional royalties on a use-by-use basis. Once you purchase a royalty-free product, you may use it multiple times for multiple projects without paying additional fees. “Rights-Managed (RM)” means products are licensed on a use-by-use basis. The fee for using the product is calculated from several factors including size, placement, duration of use and geographic distribution. At the time you order a rights-managed product, you will be asked to submit information that will specify the usage rights to be granted. “Stock Media” means photography, motion clips, and sound, whether royalty free (RF) or rights managed (RM). “SOW” means the statement of work. The SOW will control if there is a conflict with this Agreement.
2. Website Development.
A. HCG’s Obligations. If requested, HCG will create a Website with the Client Marks, which will have the specifications and functionality in the SOW. Client agrees to cooperate with HCG and to provide all information and assistance reasonably required by HCG, in order for HCG to develop the Website. Upon full payment, HCG grants Client a perpetual, exclusive license to access and use the Website. HCG retains the right to use the completed project and any preliminary designs for the purpose of design competitions, future publications, educational purposes, marketing materials, on-line posting on HCG’s website and physical portfolio. Where applicable the Client will be given any necessary credit for usage of the project elements.
B. Client’s Obligations. Client agrees that it is responsible for the composition, content and choice of method of distribution of all visual, written or audible communications and obtaining the valid consent of any party whose personal information, data or intellectual property (“Third Party Data and Content”) is used for a project or disclosed to HCG. If applicable, Client will be given personal passwords to access the Website. Client is responsible for maintaining the confidentiality of such password(s) and for all activities conducted on the Website. Client agrees that it will comply with the Acceptable Uses Policy on HCG’s website. Client agrees to indemnify and hold HCG harmless from any liability or expense, and defend HCG against any legal action or proceeding threatened or commenced, that arises from or relates to a breach of this Section.
3. Technical Specifications. Technical specifications relating to the Services will be established in the SOW. Client agrees that if it deviates from the agreed upon technical specifications, then HCG will notify Client of any additional cost.
A. Fees. The fees for the Services are in Exhibit A. Any services or functionality for the Services not contemplated by the SOW are subject to HCG’s current rates. The Website set-up fee is $200 upfront and minimum $199 per month. The fees for the Services are due within 30 days after completion. HCG reserves the right to increase the fees upon notice.
B. Taxes. All amounts are exclusive of any applicable sales, use, excise or withholding taxes or any other taxes or fees.
C. Late Fees. If Client fails to pay any fee when due, HCG will be entitled to assess a late fee of $25 for each month the balance remains outstanding. HCG also reserves the right to suspend the Website or any of the Services, without notice, if Client’s account is more than 30 days past due.
5. Term; Termination.
A. Term. This Agreement will begin on the Effective Date and continue as stated on the SOW (the “Initial Term”). Afterwards, Client may renew this Agreement in writing at any time (each a “Renewal Term” and, together with the Initial Term, the “Term”). Sections 3.B, 4, 5, 6.B, 8, 9, 10.B and 11-15 will survive expiration or termination of this Agreement.
6. Grant of Rights and Ownership.
A. License Grant. Client grants to HCG an exclusive, royalty-free license to use the Client Marks and the Client Content in connection with the Services. HCG grants to Client an exclusive, perpetual, fully paid license to use the work product.
B. Ownership. All Intellectual Property Rights in and to the Client Content and the Client Marks are and will remain the sole and exclusive property of Client and its licensors. All Intellectual Property Rights n and to the Services or any other intellectual property used by HCG in providing any Services, whether developed prior to, whether preliminary concepts or final visual presentation during or after the Effective Date, are and will remain the sole and exclusive property of HCG and may not be used by the Client without the written permission of HCG.
7. Use of Stock Media.
A. HCG may use Stock Media to provide or achieve a certain look and feel in a project. All approved Stock Media must be purchased by the Client before the project is completed for print production, delivery or web publishing. Client will assume responsibility and ownership of all purchased Stock Media, including any additional fees incurred. Client has the right to refuse to purchase any Stock Media with the full understanding that removal may alter the aesthetics of a project. In addition, HCG has the right to remove all unapproved or un-paid Stock Media. Pornographic, defamatory, libelous or otherwise unlawful use of any Stock Media is prohibited. A written explanation may be given to Client addressing the changes caused by the removal of all unapproved and/or un-paid Stock Media.
B. Responsibility for Alterations. After the project has been delivered for production or to the Client, HCG will not be held liable or responsible for any unlawful use/alteration of Stock Media if such use/alterations are executed by another party or individual. It is the Client’s responsibility to maintain and uphold the rules and regulations that pertain to any used Stock Media.[/sixcl] [sixcl]
A. Each party agrees (i) to hold the other’s Confidential Information in strict confidence, (ii) not to disclose such Confidential Information to any third party, and (iii) not to use any Confidential Information of the other party, without written permission, except as reasonably required to exercise its rights or perform its obligations under this Agreement.
B. Exclusions. The obligations to preserve Confidential Information will not apply to information that (i) was previously known to the receiving party free of any obligation to keep it confidential; (ii) is or becomes generally known to the public or is obtainable from public sources other than as a result of a breach, (iii) is independently developed by or on behalf of the receiving party without use of or reference to the other party’s confidential information or (iv) the receiving party is compelled to disclose by a governmental agency or a court of law having proper jurisdiction. If disclosure is compelled, the receiving party will give the disclosing party reasonable notice to enable such party to try to protect the Confidential Information.
C. Injunctive Relief. The remedies at law may be inadequate to protect against a breach and the parties agree to grant injunctive relief in favor of the other without proof of actual damages.
9. Third Party Content/Functionality. Various third party suppliers may provide content (“Third Party Content and Functionality”) and/or special functionality (such as email services). Special terms applicable to such Third Party Content and Functionality may be available to Client as click through agreements (“Third Party Agreements”). Client agrees to be bound by and to comply with the terms of such Third Party Agreements. Any terms in such Third Party Agreements that are inconsistent with, or in addition to, the terms of the rest of this Agreement will control with respect to the Third Party Content and Functionality.
A. HCG agrees to perform the Services in a professional and workmanlike manner and in accordance with the Agreement.
B. Except as expressly stated in this Agreement, HCG makes no other warranties, express or implied, including any warranty of merchantability or fitness for a particular purpose with respect to the services provided. HCG makes no representation or warranty with respect to Third Party Content and Functionality. HCG’s sole obligation with respect to such Third Party Content and Functionality will be to make commercially reasonable efforts to assist Client to enforce the warranties extended by the third party supplier.
11. Limitation of Liability.
A. In no event will HCG be liable to Client or any third party for any damages, direct or otherwise, whether at law or equity, in excess of the amounts paid by Client.
B. Under no circumstances will HCG be liable to Client or any other third party, whether at law or equity, for any incidental, indirect, consequential or special damages incurred (including damages for lost business, lost profits or damages to business reputation), regardless of how such damages arise and regardless of whether or not HCG was advised such damages.
12. Independent Status of Parties. Nothing contained in this Agreement, nor in the relationship created, will be interpreted to evidence a joint venture, partnership or principal-agent relationship between HCG and Client. Neither party will have any right or authority to act on behalf of, or incur any obligation for the other.
13. Governing Law. This Agreement will be governed and interpreted by the laws of the State of Georgia, without regard to its conflict of laws provisions.
14. Miscellaneous Provisions.
A. Assignment. In no event may Client assign its rights or obligations hereunder or subcontract any portion of its performance hereunder without HCG’ prior written consent.
B. Force Majeure. HCG will not be responsible for, or in breach of this Agreement because of, any delays or failure to launch the Website that is caused by Client. Except for a party’s payment obligations, neither party will be responsible for delays or failure in performance resulting from acts beyond the control of such party, including without limitation, acts of God, acts of war, acts of terrorism, epidemics, fire, general internet or communication line failures, power surges or failures or other disasters. If such event(s) occur, it will entitle HCG to extend the completion/delivery date, by the time equivalent to the period of such delay.
C. Entire Agreement. This Agreement constitutes the complete agreement between the parties with regard to its subject matter. Neither party will be subject to any other provisions, purchase order, acknowledgment, or other similar form.
D. Amendments. No amendment to this Agreement will be effective unless it is in writing signed by both parties.
E. Waiver. Failure or delay by either party to enforce compliance with any term of this Agreement will not constitute a waiver.
F. Severability. If any provision of this Agreement, or portion thereof, is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision will be severed and the remaining provisions of the Agreement will remain in full force.
G. Notices. All notices must be given in writing and will be deemed given 5 days after mailing to the other party’s business address by certified mail or overnight delivery.
ACCEPTABLE USES POLICY
Client agrees to use Website only for lawful purposes, in compliance with all applicable law. Specific activities that are prohibited include, but are not limited to:
- Using the Website to communicate any message or material that is harassing, libelous, threatening, obscene, would violate the intellectual property rights or privacy rights of any party or is otherwise unlawful, that would give rise to civil liability, that constitutes or encourages conduct that could constitute a criminal offense, under any applicable laws, rules, ordinances, regulation or regulatory and self-regulatory codes and standards.
- Sending unsolicited mail or email outside the Client’s organization in violation of applicable laws.
- Misrepresenting or fraudulently representing products/services.
- Transmission, distribution or storage of any material in violation of any applicable law or regulation.
- Transmission, distribution or storage of any material protected by copyright, trademark, trade secret or other intellectual property right without proper authorization, and material that is obscene, defamatory, an invasion of privacy or constitutes an illegal threat, or is otherwise illegal.
- Facilitating, aiding, or encouraging any of the above activities, whether using HCG’s network or service by itself or via a third party’s network or service.
- Interference with a third party’s use of HCG’s network or service, or ability to connect to the Internet or provide services to Internet users.
Sending unsolicited email messages, including, without limitation, commercial advertising and informational announcements, is explicitly prohibited. Client cannot use another site’s mail server to relay mail without the express permission of the site. It is strictly forbidden to send out unsolicited email from any other network that advertises, promotes or in any way points to a location inside HCG network. It is also strictly forbidden to be involved in the distribution of tools designed for the aiding of Unsolicited Bulk Email (UBE). Client’s connectivity may be terminated without delay if the Client has been documented on a recognized SPAM abuse list or if the Client has previously been denied access from another provider due to AUP violations.
System and Network Security
Client is prohibited from utilizing the Website to compromise the security or tamper with system resources or accounts on computers at HCG’ premises or at any third party site. Specific activities that are prohibited include, but are not limited to:
- Use or distribution of tools designed for compromising security.
- Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network.
- Unauthorized monitoring of data or traffic on any network or system without express authorization of the owner of the system or network.
- Deliberate attempts to overload a system and broadcast attacks.
- Forging of any TCP-IP packet header or any part of the header information in an email or a newsgroup posting.
- Intentionally or negligently transmitting files containing a computer virus or corrupted data.
HCG, in its sole discretion, will determine what action will be taken in response to a violation on a case-by-case basis. Violation of this AUP could also subject Client to criminal or civil liability. HCG may block access at the router level to Client’s equipment involved. If HCG believes, in its sole discretion, that a violation of this AUP has occurred, such action may also include, but is not limited to, the suspension or termination of Client’s services under this Agreement. HCG may involve and will also fully cooperate with law enforcement authorities in investigating suspected lawbreakers.
HCG reserves the right to modify this AUP at any time.
The parties acknowledge and agree that the fees and deadlines set forth in this SOW are based upon: (i) the requirements of Client communicated to HCG as of the Effective Date and (ii) the scope of the Services agreed upon between the parties. Accordingly, to the extent that HCG, in its sole opinion, determines that there is a change in either Client’s requirements or the scope of the Services agreed upon such that HCG is required to: (A) perform additional work, (B) perform additional services or (C) extend predetermined deadlines, Client agrees to hold HCG harmless for any losses that may result from such change and pay HCG for such additional work, or services, as applicable, at HCG’s then-current rates; provided, however, before performing any additional work or services, or extending any predetermined deadlines, HCG will first seek Client’s approval.