GENERAL TERMS AND CONDITIONS OF SERVICE
Effective as of February 01, 2017
These Terms and Conditions of Service (the “Terms”) together with any Service Level Agreement, or Service Terms and Conditions signed or agreed to by Client and Online Image®, LLC, a Utah limited liability company (“Online Image®”), constitute a binding legal agreement between Client and Online Image®. By its signature (electronic or otherwise), Client agrees to Online Image®’s ongoing provision of services to Client, as more fully set forth herein. Unless otherwise modified by a Service Level Agreement or the specific Service Terms and Conditions, these General Terms and Conditions shall govern the parties’ relationship.
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby establish a working relationship under the following terms and conditions:
1. Definitions.
b) “Client” shall mean the party designated in a Service Level Agreement or who has otherwise agreed to Online Image®’s provision of services.
c) “Effective Date” shall mean the date indicated as the effective date of the Service Level Agreement.
d) “Service Level Agreement” shall mean that certain agreement which identifies the specific products and/or services purchased by Client.
e) “Service Terms and Conditions” shall mean any specific terms and conditions that apply to specific services or transactions between Client and Online Image®, including, but not limited to, Online Image®’s Partner Program and Partner SEO Services.
f) “Services” shall mean the online related services provided by Online Image® for Client pursuant to and as set forth specifically in the Services Level Agreement and Service Terms and Conditions.
g) “Term” shall mean the period commencing on the Effective Date and ending on the Term End Date as identified in the Service Level Agreement, and each renewal period after the initial Term thereafter.
h) Other specific definitions and industry terms relevant to the Services provided by Online Image® to Client shall have the meaning set forth at bapwil.com/glossary.
2. Services; Deliverables; Service Level Agreements. Subject to all of these Terms and full compliance of Client’s obligations hereunder, Online Image® shall provide to Client the Service(s). The rates for the Services, as well as other terms and conditions shall be set forth in each applicable Service Level Agreement. The Parties may make changes to any Service Level Agreement, provided that both Parties agree to such changes in writing. Online Image®’s performance of Service may include providing certain deliverables (the “Deliverables”) to Customer and its users, as shall be set forth on the applicable Service Level Agreement. Client Responsibilities. Client agrees to cooperate fully and in good faith to allow Online Image® to achieve completion of the Services in a timely and professional manner. Online Image® shall be entitled to rely on all decisions and approvals of Client in connection with the Services.
3. Fees.
b) Chargebacks. We are grateful that fraudulent chargebacks are rare, but we take this issue seriously. Anyone who purchases any product or service from Online Image® and then attempts to chargeback without first trying to remedy the situation is in violation of the Online Image® Chargeback Policy. Fraudulent or unsubstantiated chargebacks may be turned over to a law enforcement or collection agency. The Client agrees that if they violate the Online Image® Chargeback Policy, they will be responsible for all costs and fees associated with disputing the chargeback. These fees include, but are not limited to, attorneys’ fees, administrative and management time spent providing facts, research, and statements, merchant fees and collection fees. If the Client feels that they have attempted to resolve the situation in a reasonable manner yet have not been able to reach an agreement, the Client may contact the President CEO of Online Image®, LLC with the contact information provided below.
4. Default. In addition to all remedies available at law or in equity, the non-defaulting Party hereunder may terminate this Agreement and/or any related Service Level Agreements, in whole or in part, upon the occurrence of a Default. A Party shall be deemed in “Default” of this Agreement upon the occurrence of any one or more of the following events:
b) A Party fails to perform any of its obligations under their agreement and such nonperformance is not remedied within thirty (30) days after notice thereof by the non-defaulting Party. However, notwithstanding the foregoing, in the event of that Client fails to timely make or allow any payment when due, Online Image® reserves the right to stop or delay work on projects when payments have not been received by the applicable due date.
5. Term; Termination.
b) If Client wishes to terminate a Service for any reason, or not to renew such Service, Client shall provide Online Image® with written notice (“Termination Notice”) addressed to Online Image®. Such Termination Notice must specify all necessary identifying details about the Service being terminated and the requested effective date of such termination (which date must not be less than thirty (30) days from the date the Termination Notice is received by Online Image®). Termination of Service by any form of communications or means other than as provided above shall not be effective and Client shall remain obligated to Online Image® for all Services rendered.
c) Except as set forth herein, each Service Level Agreement is non-cancelable by Client once accepted by Online Image® and shall remain in effect until (i) the Services specified have been completed by Online Image®, and (ii) full payment has been made in accordance with the provisions of this Agreement. Except as otherwise set forth herein, either Party may terminate ana Service Level Agreement for breach by the other party of any of such party’s obligations contained herein upon thirty (30) days’ prior written notice, provided that the breaching party does not cure the breach within such thirty (30) day notice period. Such notice shall be in writing and shall set forth in reasonable detail the nature of the asserted breach.
d) Upon termination of the parties’ agreement, Online Image® shall complete the Services under all Service Level Agreements in process as of the effective date of termination. These Terms, and Cconditions shall continue to apply to all ongoing Service Level Agreements.
e) Notwithstanding anything to the contrary in the foregoing, Online Image® may impose limits on all or any of the Services or restrict Client’s access to parts or all of the Services without notice, liability, or otherwise being deemed to have terminated this Agreement or any Service Level Agreement. Specifically, such action may include, but not be limited to, shutting off any website that it designs and develops for Client (each, a “Website”), with or without notice, and Client acknowledges and agrees that Online Image® shall bear no liability to Client for alleged damages resulting from such stoppage.
6. Confidential Information; Means of Disclosure and Identification; Exclusions. “Confidential Information” as used in this Agreement shall also mean any proprietary, confidential and/or trade secret information concerning or relating to the property, business and affairs of the party disclosing such information (the “Disclosing Party”) to the other party (the “Receiving Party”) under this Agreement. All disclosures of information by the Disclosing Party to the Receiving Party pursuant to this Agreement shall be made by or under the supervision of the “Principal Contacts” listed on the signature page to this Agreement. Each party may change its Principal Contact at any time and from time to time during the term of this Agreement by notifying the Principal Contact of the other party in writing at the designated address. Information considered to be Confidential Information by the Disclosing Party may be disclosed orally or in writing. Oral disclosures of Confidential Information shall be noted as such at the time of disclosure and shall, within thirty (30) days after disclosure, be summarized in a writing provided to the Principal Contact for the Receiving Party. Written disclosures of Confidential Information, and written summaries of Confidential Information which have previously been disclosed orally, shall be marked “Confidential Information of the Disclosing Party.” Regardless of any designation or marking, Confidential Information shall include project proposals, technological processes, product forecasts, trades secrets, product designs, pricing information, software designs, hardware or system designs, technology specifications, source code, object code, graphic designs, report templates, systems architecture, and systems functionalities, and any information which, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential. For purposes of this Agreement, Confidential Information shall not include, and the obligations herein shall not apply to, information that: (i) is now or subsequently becomes generally available to the public through no fault of Receiving Party; (ii) Receiving Party can demonstrate was rightfully in its possession prior to disclosure to Receiving Party by Disclosing Party; (iii) is independently developed by Receiving Party without the use of any Confidential Information provided by Disclosing Party; (iv) Receiving Party rightfully obtains from a third party who has the right, without obligation to Disclosing Party, to transfer or disclose such information. Disclosing Party warrants that it has the right to disclose the Confidential Information to Receiving Party. Each Party agrees that, in the event of any breach of the obligations contained in this Section 4, the non-breaching Party will not have an adequate remedy in money or damages. Each Party therefore agrees that, in such event, the non-breaching Party shall be entitled to obtain injunctive relief against such breach, without the necessity of posting a bond even if otherwise normally required. Such injunctive relief will in no way limit the right of the non-breaching Party to obtain other available remedies.
7. Warranties. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT OR IN AN APPLICABLE SERVICE LEVEL AGREEMENT, ONLINE IMAGE® MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY SERVICES, RELATED DELIVERABLES OR DOCUMENTATION. ONLINE IMAGE® SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS. However, notwithstanding the foregoing, Online Image® represents and warrants to Client that (a) the Services will be provided in a professional and workman-like manner, in accordance with industry standards, and (b) there are no agreements, contracts or understandings to which Online Image® is a party which would prevent Online Image® from providing the Services under this Agreement in accordance with the terms hereof (and Online Image® hereby covenants to Client that it will not enter into any such agreement, contract or understanding during the Term (as hereafter defined) of this Agreement.
8. Limitation of Liability. Neither party shall be liable for any consequential, indirect, special or incidental damages, such as damages for lost profits, business failure or loss arising out of use of the Deliverables or the Services, whether or not advised of the possibility of such damages. Except for actions by Online Image® for payment, no action or proceeding arising out of the agreement may be brought more than two years after the events giving rise thereto. THE ENTIRE LIABILITY OF ONLINE IMAGE®, AND CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR CLAIMS ARISING UNDER OR IN ANY WAY RELATED TO THIS AGREEMENT, SHALL BE LIMITED TO THE LESSER OF DIRECT DAMAGES OR THE TOTAL AMOUNT PAID BY CLIENT TO ONLINE IMAGE® FOR THE SERVICE(S). The foregoing limitations apply to all causes of action and claims of any kind arising out of or related to this Agreement and/or any Service Level Agreement, including, without limitation, breach of contract, breach of warranty, strict liability, negligence, misrepresentation, or any other tort.
9. Indemnification. Online Image® shall defend and indemnify Client, its employees, directors, officers and agents, from and against any suit, proceeding or other claim brought by an entity (not a party to or an affiliate of a party to this Agreement) that is caused by, arises from, or relates to damage to real or tangible personal property or personal injuries (including death) arising out of the gross negligence, willful act or omission, or illegal act of Online Image® in the provision of Service by Online Image®. Client shall defend and indemnify Online Image®, its employees, directors, officers and agents, from and against any suit, proceeding or other claim brought by anyone not a party to or an affiliate of a party to this Agreement that: (i) alleges that any materials furnished by Client to Online Image® in connection with this Agreement or any Service Level Agreement infringes upon any patent, copyright, trademark, trade secret or other right of a third party, or (ii) relates to: (a) damage to real or tangible personal property, personal injuries (including death) arising out of the gross negligence or willful misconduct, act or omission of Client in the use of the Service(s); or (b) representations regarding the nature of Client and any use, operation or resale of the Service(s) by Client in contravention of this Agreement, including without limitation, claims of libel, slander, unauthorized use of copyright or trademark by Client or the business activities and practices of Client arising from Client’s use of the Service(s). However, notwithstanding the foregoing, Online Image® will have no obligation to defend or indemnify Client, and Client will defend, indemnify and hold harmless Online Image® for any suit, proceeding or claim arising out of Client’s combination of Client hardware or software, or other materials, services or methods with the Services in a way or manner that is either unauthorized or unanticipated by Online Image® or otherwise not a customary use of the Services, or use, operation or resale of the Service in contravention of its obligations and responsibilities. If a claim is made against either Party, the Party in receipt of such claim (the “Indemnified Party”) shall promptly notify the other Party (the “Indemnifying Party”) in writing no later than ten (10) days after receipt of such notification of a potential claim. The Indemnifying Party may assume sole control of the defense of such claim and all related settlement negotiations. The Indemnified Party will provide the reasonable assistance, information and authority necessary to assist the Indemnifying Party in its obligations, at the Indemnifying Party’s expense. Neither Online Image® nor Client may settle any such matter without the consent of the other as to any settlement that imposes an obligation on, or requires any admission by, the other Party. Failure of the Indemnified Party to promptly notify the other will not relieve the Indemnifying Party of its obligations except to the limited extent such delay prejudices the Indemnifying Party.
10. Advertising and/or Publicizing. Unless otherwise agreed to in writing, Online Image® shall be permitted to make any news, releases, publicity or advertising by Online Image® through any media intended to reach the general public which refers to the parties’ agreement and Online Image®’s provision of Services. Client agrees that it will cooperate with any such news, releases, publicity or advertising, including, but not limited to issuing a statement for a press release, offering a review of Online Image®’s skill and competency, and Client being used as a reference as evidence of Online Image®’s capabilities.
11. Force Majeure. Any delay in or failure of performance by either party under this Agreementt( (other than a failure to comply with payment or surety obligations) shall not be a breach of this Agreement if and to the extent caused by events beyond the reasonable control of the party affected, including without limitation, acts of God, embargoes, governmental restrictions or actions, strikes (other than those only affecting Client), riots, wars or other military action, civil disorders, rebellion, acts of terrorism, fires, floods, vandalism, or sabotage. Market conditions and/or fluctuations (including a downturn of Client’s business) shall not be deemed force majeure events. The party whose performance is affected by such events shall promptly notify the other party, giving details of the circumstances surrounding the force majeure events, and the obligations of the party giving such notice shall be suspended to the extent caused by the force majeure events and so long as the force majeure events continue, and the time for performance of the affected obligation hereunder shall be extended by the time of the delay caused by the force majeure events. Notwithstanding the foregoing, however, in the event that a force majeure event continues for sixty (60) continuous days, then either party may terminate this Agreement without liability to the other party.
12. Intellectual Property/Ownership. The content on the Website is subject to copyright and other intellectual property rights under local and international laws. To the best of its knowledge, Online Image® uses only content which is allowed and permitted for use by the owners of any such related copyrights and other intellectual property rights therein. Content provided to Client is “AS-IS” only and it may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners of such content. Client expressly agrees not to circumvent or have any third party circumvent, disable, or otherwise interfere with security related features on the Website or features that prevent or restrict use or copying of any content or enforce limitations on use of the Online Image® content therein. In addition, CLIENT UNDERSTANDS AND AGREES THAT, UNLESS EXPRESSLY AGREED TO BY ONLINE IMAGE® IN WRITING ALL CUSTOM AND PROPRIETARY SOFTWARE, TOOLS AND PLUGINS DEVELOPED AND PRODUCED BY ONLINE IMAGE®, INCLUDING THOSE DEVELOPED EXCLUSIVELY IN CONNECTION WITH THE SERVICES PROVIDED TO CLIENT UNDER THIS AGREEMENT, ARE OWNED EXCLUSIVELY BY ONLINE IMAGE® AND ARE NOT AVAILABLE FOR PRIVATE LICENSING. No works conducted by Online Image® shall be deemed “works made for hire” under applicable law except as expressly agreed to by Client and Online Image® in writing. In addition, Client understands and agrees that (i) the Website and stat pages, items gathered by Online Image®’s systems and displayed as review, analytics, ranking reports, local analytics, or any other custom work are exclusively owned maintained and operated by Online Image® and that Online Image® has simply granted Client a non-exclusive license to use the Website, which license may be revoked at any time by Online Image® for any or no reason; and (ii) Client’s ownership rights are restricted to that of images, trademarks, and text authored by client and provided by Client to Online Image®.
13. Third Party Services. Client acknowledges and agrees that Online Image®’s provision of the Services hereunder depend, in part, on services, products, offers and promotions provided by third parties, and not by Online Image® (such services hereinafter referred to as “Third Party Services”). Client acknowledges and agrees that Client shall be solely responsible for reviewing and understanding the terms and conditions, as well as any fees, if any, governing any Third Party Services. Client authorizes Online Image® to use and disclose its contact information, including name and address, for the purpose of making the Third Party Services available to Client. Client agrees that any such third party, and not Online Image®, is responsible for the performance of the Third Party Services. In no event will Online Image® be responsible for the information contained in any third party website or for any inability to use such third party website or Third Party Services. Access to any third party website is at your own risk, and you acknowledge and understand that links to third party websites might contain terms and privacy policies as well as fees that are different from those of Online Image®. Online Image® is not responsible for such provisions, and expressly disclaims any liability for use of such Third Party Services and third party websites.
14. Reciprocal Employee Recruitment. It is agreed that the employees of the Parties are highly trained individuals whose talents are important and valuable to the Parties. Accordingly, neither party shall approach, solicit, recruit, or hire employees of the other party without the prior, express written consent of the other.
15. Independent Contractors. The relationship of the parties is that of independent contractors. Each party, its employees and agents, shall not be deemed to be employees, agents, joint ventures or partners of the other and shall not have the authority to bind the other. Each party shall have sole responsibility for the supervision and payment of its personnel and, except as agreed in writing, all other costs and expenses required to perform its obligations hereunder.
16. Amendments/Controlling Document. Online Image® may, from time to time, amend these Terms by providing written notice to Client.
17. Governing Law; Venue; Attorney Fees. The agreement between Client and Online Image® shall be governed by and construed in accordance with the laws of the State of Utah, without reference to conflict of law principles. The Parties agree that the exclusive venue for any legal action or proceeding arising out of, in connection with, or to enforce any part of this Agreement, shall be brought in the federal and state courts of competent jurisdiction located in Salt Lake County, Utah and the Parties consent and agree to such jurisdiction, and waive any objection that such venue is inconvenient. In any such action or proceeding, the prevailing Party shall be entitled to recover from the non-prevailing Party, in addition to any other remedies under this Agreement, at law, or in equity, all reasonable costs, fees, and expenses, including, without limitation, reasonable attorneys’ fees and court costs.
18. Survival. Sections 2-8, 10, and 12-15 shall survive any expiration or termination of this Agreement.
19. Notices. All notices required or permitted shall be in writing and sent by: (i) electronic mail, or (ii) hand delivery, courier or certified mail, return receipts requested, to the other party’s address set forth below. Notices shall be effective upon receipt acknowledged by the recipient in the case of email, or actual receipt in the case of hand delivery, courier or certified mail. A party may change its address by giving written notice to the other party in accordance with this section. Additionally, any writing required hereunder need not be signed by either Party.
20. Counterparts and Electronic Signatures. Any Service Level Agreement may be executed online electronically in accordance with State and Federal law, or in one or more counterparts and transmitted via facsimile or other electronic transmission (e.g. pdf), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.