360 Media Co. (“360 Media”) agrees to furnish the client identified above (“Client”) (each, a “Party” and collectively, the “Parties”) certain web site development, hosting and/or other marketing services as identified in the contract hereto (“Order Form”).
This cover page,
, the Order Form and any Change Orders (defined hereinafter) shall constitute the entire agreement between the Parties (this “Agreement”) and replaces all prior oral or written communications between the Parties relating to the subject matter hereof.
Standard Terms and Conditions
These Standard Terms and Conditions shall apply to, govern and be incorporated into each Client Services Agreement (the “Agreement”) entered into by a Client and 360 Media Co., LLC (“360 Media”).
Section 1. SERVICES
1.1 Services. 360 Media agrees to perform and provide to Client certain services for development of a web site (the “Web Design Services”) under the domain name(s) identified in Client’s Order Form (“Site”) and to provide Client with such additional hosting, email marketing and other services as may be set forth in the Order Form (“Additional Services”). The Web Design Services and any Additional Services are collectively referred to herein as the “Services.”
1.2 Site Plan. 360 Media shall use commercially reasonable efforts to design, author and develop the Site in accordance with Client’s reasonable direction. The Site shall incorporate certain materials provided by 360 Media which include, without limitation, computer software (in object or source code form), script, programming code, data, information, HTML code, trademarks, images, illustrations, graphics, multimedia files and/or text (“360 Media Content”). The Site may also incorporate materials, if any, specifically provided by Client, including, without limitation, trade or service marks, images, illustrations, graphics, multimedia files and/or text (“Client Content”). Client Content shall be delivered to 360 Media promptly and in such media and/or electronic file format(s) requested by 360 Media. Client agrees that 360 Media is not responsible for providing any Services or performing any tasks not specifically set forth in the Order Form unless otherwise agreed to in writing by 360 Media. Client agrees by sending Client Content, Client is free and clear to use said content.
Section 2. LICENSE GRANT
2.1 Grant of License to 360 Media. Client hereby grants to 360 Media, and 360 Media accepts from Client, a non-exclusive, worldwide, royalty-free license to edit, modify, adapt, exhibit, publish, transmit, copy, prepare derivative works from, distribute, perform, display and use any Client Content in connection with the development of the Site and/or 360 Media’s performance of the Services under the Agreement.
2.2 Grant of License to Client. In consideration of Client’s timely payment of all fees, costs and expenses owed to 360 Media pursuant to the Order Form and the Agreement, 360 Media hereby grants to Client, and Client accepts from 360 Media, a limited, non-transferable, non-exclusive, worldwide license to use the 360 Media Content included in the Site solely for Client’s business purposes and only during the term of the Agreement. Upon termination of the Agreement for any reason, all licenses granted to Client thereunder to access and/or use the Site or any 360 Media Content shall immediately cease.
Section 3. DEVELOPMENT AND DELIVERY
3.1 Beta Version. Upon 360 Media’s receipt of all requested Client Content and Client’s payment of all initial fees and expenses when due, 360 Media shall commence the Services and prepare a preliminary working copy of the Site for Client’s review (“Beta Version”).
3.2 Change Order. Prior to final delivery of the Site, Client may request reasonable changes to the Beta Version. Such changes must be in a written change order (“Change Order”) agreed to by both Parties, provided that email acceptance of the terms of a Change Order shall be acceptable. The Parties acknowledge that any change in the Site or scope of Services under the Agreement may necessitate an equitable revision in any delivery dates and/or prices previously set forth in the Order Form.
3.3 Revisions and Acceptance. Unless otherwise provided in the Order Form, upon Client’s receipt of the Beta Version, Client shall have five (5) days to review, and request reasonable revisions to, the Beta Version. Upon receipt of such request for revision, 360 Media shall use commercially reasonable efforts to implement the requested revisions. Upon completion of such revisions, Client shall be deemed to have accepted the Beta Version. If Client does not request any revisions during such 5-day period, the Beta Version shall be deemed final and accepted by Client.
Section 4. PROPRIETARY RIGHTS
4.1 360 Media Ownership. Excluding any Client Content, 360 Media shall own and retain all right, title and interest (including copyright and other proprietary or intellectual property rights) in the Site and any modifications to the Site, including all 360 Media Content, all legally protectable elements or derivative works thereto, whether or not paid for wholly or in part by Client, whether or not developed in conjunction with Client, and whether or not developed by 360 Media, Client or any contractor, subcontractor or agent for 360 Media or Client. To the extent that ownership of the Site and/or 360 Media Content does not automatically vest in 360 Media by virtue of the Agreement or otherwise, Client agrees to assign, and hereby irrevocably assigns, to 360 Media all rights, title and interest in the Site, the 360 Media Content and/or all protectable elements or derivative works thereof.
4.2 Client Ownership. Client shall retain all right, title and interest (including copyright and other proprietary or intellectual property rights) in the Client Content and the domain name(s) listed in the Order Form.
4.3 Notices. 360 Media may place copyright and/or proprietary notices, including hypertext links within the 360 Media Content as incorporated within and on the Site. Client may not alter or remove such notices without 360 Media’s written permission.
4.4 Limitations. Client shall not provide to 360 Media or otherwise post on the Site any Client Content that may be obscene, defamatory, harassing, grossly offensive, malicious, related in any way to sex or illegal activities, that may contain destructive elements or destructive programming, or that actually or potentially infringes or misappropriates the copyright, trademark, or proprietary or intellectual property right of any person. Client shall not reverse engineer or cause others to reverse engineer any part of the Site or any 360 Media Content.
Section 5. PAYMENT TERMS
5.1 Payment Terms. Client shall pay 360 Media all fees in the amount, at the times and in the manner set forth in the Agreement and the Order Form.
5.2 Taxes. Client shall pay all sales taxes, use taxes, duties and levies of any governmental entity on the Services, excluding taxes on 360 Media’s net income. If Client claims exemption from any taxes arising out of the Agreement, Client shall provide 360 Media with documentation to support an exemption.
5.3 Late Fees. Client shall pay a late charge of 1.5% per month, or the maximum rate permitted by law, whichever is less, on any unpaid amount for each calendar month or fraction thereof that any payments are in arrears to 360 Media. Any declined credit card payment shall be subject to a reprocessing fee of $35. Client shall pay all costs of collection, including reasonable attorney’s fees and expenses, in the event any past due payment requires collection efforts.
Section 6. WARRANTIES AND DISCLAIMERS
6.1 360 Media Warranty. In the event Client pays all fees and expenses when due under the Agreement or Order Form, 360 Media warrants to Client that: (i) 360 Media has the right and authority to enter into and perform its obligations under the Agreement; and (ii) that the Site, excluding any Client Content, does not to 360 Media’s knowledge, violate the intellectual property rights of any third party. The liability of 360 Media under this warranty, and Client’s sole remedy, is limited to 360 Media’s modification of the Site such that it materially conforms to the foregoing warranties.
6.2 Client Warranty. Client represents and warrants to 360 Media that: (i) Client has the power and authority to enter into and perform its obligations under the Agreement; (ii) the Client Content does not and shall not contain any content, materials, link, advertising or services that violate any applicable law or regulation or infringe or misappropriate any intellectual property right of any third party; and (iii) Client owns the Client Content and all proprietary or intellectual property rights therein, or has express written authorization from the owner to copy, use and display the Client Content on and within the Site.
6.3 Disclaimer. EXCEPT AS EXPRESSLY STATED IN SECTION 6.1, 360 MEDIA MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE, CONCERNING THE SITE, THE SERVICES OR OTHER SUBJECT MATTER OF THE AGREEMENT.
Section 7. LIMITATION ON LIABILITY
NO ACTION UNDER THE AGREEMENT OR ANY ORDER FORM MAY BE BROUGHT BY EITHER PARTY AGAINST THE OTHER PARTY MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION ARISES. IN NO EVENT SHALL 360 MEDIA BE LIABLE TO CLIENT OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THE AGREEMENT AND/OR ITS SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE EVEN IF 360 MEDIA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 360 MEDIA’S TOTAL LIABILITY FOR DAMAGES IN THE EVENT DAMAGES ARE AWARDED DESPITE THE SOLE REMEDY PROVIDED IN SECTION 6.1 SHALL BE LIMITED TO THE TOTAL FEES PAID BY CLIENT TO 360 MEDIA UNDER THE AGREEMENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM OR EVENT GIVING RISE TO SUCH DAMAGES, WHICH BOTH PARTIES AGREE IS A REASONABLE LIMITATION.
Section 8. INDEMNIFICATION
8.1 By Client. Client agrees to indemnify, hold harmless and defend 360 Media and its managers, members, 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 Client’s breach of the Agreement.
8.2 By 360 Media. Subject to Section 7 above, 360 Media agrees to indemnify, hold harmless and defend Client and its directors, managers, members, officers, employees and agents from and against any action, claim, demand or liability, including reasonable attorneys’ fees and costs, arising from or relating to 360 Media’s breach of the Agreement.
Section 9. TERM AND TERMINATION
9.1 Term. The term of the Agreement shall commence on the Effective Date (as set forth on the front cover of the Agreement) and shall continue thereafter for the term set forth in the Order Form.
9.2 Termination. The Agreement may be terminated: (i) by either Party upon thirty (30) days written notice to the other Party, in the event of a material breach of the Agreement by the other Party that remains uncured; (ii) by 360 Media in the event Client makes a general assignment for the benefit of creditors, files a voluntary petition in bankruptcy or for reorganization or arrangement under the bankruptcy laws, if a petition in bankruptcy is filed against Client, or if a receiver or trustee is appointed for all or any part of the property or assets of Client; or (iii) by a written agreement executed by the Parties.
9.3 Rights Upon Termination. In the event the Agreement is terminated for reasons other than a material breach by the Client, Client shall promptly pay 360 Media for all Services and/or work undertaken in performance of its obligations thereunder up to the effective date of termination. In the event the Agreement is terminated due to a material breach by the Client (including Client’s non-payment or attempt to terminate the Agreement or the Order Form prior to expiration of the term selected in the Order Form), Client shall pay 360 Media for the entire amount of all Services identified in the Order Form for the remainder of the then current term of such Order Form. Such payment is due immediately upon such termination or attempted termination.
Section 10. GENERAL PROVISIONS
10.1 Independent Contractors. The Parties and their respective personnel are and shall be independent contractors, and neither Party by virtue of the Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other Party.
10.2 Survival. Sections 4, 6 – 8, 9.3 and 10 hereof shall survive termination or expiration of the Agreement.
10.3 Binding Nature of Agreement; Assignment. Except as otherwise provided herein, all the terms and provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns, except that Client may not assign or transfer its rights or obligations under or interest in the Agreement without the prior written consent of 360 Media. 360 Media may, in its sole discretion, assign the Agreement or subcontract its obligations thereunder.
10.4 Governing Law; Jurisdiction & Venue. The Agreement shall be governed by and shall be construed, interpreted, and enforced in accordance with the laws of the State of Missouri, without reference to principles of conflicts of law. The Parties agree that the sole and exclusive jurisdiction and venue for any disputes arising hereunder shall be in the state or federal courts serving Johnson County, Missouri and the Parties hereby irrevocable submit to the personal jurisdiction of such courts.
10.5 Notices. All notices, demands, or other communications given under the Agreement shall be in writing and shall be deemed to have been duly given if delivered personally, if delivered via nationally recognized overnight courier or if mailed via registered mail, postage prepaid, to the addresses on the front cover of the Agreement.
10.6 Counterparts. The Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument. The Parties agree that the Agreement (including any Order Form) may be executed and delivered by any Party by facsimile signature or electronic/digital signature (e.g., DocuSign).
10.7 Entire Agreement. The Agreement, the Order Form, any Change Orders and these Standard Terms and Conditions shall be the entire agreement among the Parties with respect to the transactions contemplated among them and, except as otherwise provided, supersede all previous negotiations, commitments, and writings whether written, oral, expressed or implied. In the event that the terms of these Standard Terms and Conditions and the Order Form conflict, the terms of the Order Form will supersede such conflicting terms.
10.8 Severability. If any provision of the Agreement or these Standard Terms and Conditions is found to be void or unenforceable, that provision will be enforced to the maximum extent possible, and the remaining provisions of the Agreement and these Standard Terms and Conditions will remain in full force and effect.
10.9 Alteration. No alteration, modification, amendment or change of the Agreement shall be valid unless made in a writing executed by the Parties hereto.
10.10 Force Majeure. If the performance of any part of the Agreement by 360 Media is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, terrorist attack, labor disputes, act of God or any other causes beyond the reasonable control of 360 Media, it shall be excused from such performance to the extent that it is prevented, hindered or delayed by such causes.
10.11 Client Identification. 360 Media may use the name of and identify Client as a 360 Media client, in advertising, publicity, or similar materials distributed or displayed to prospective clients. Client expressly allows 360 Media to place 360 Media’s information and logo at the bottom of every web page contained in the Site, and Client shall not remove or cause the removal of such information from the Site without 360 Media’s prior written approval.
10.12 Attorney’s Fees. The prevailing Party shall be entitled to its reasonable attorneys’ fees and other costs and expenses incurred in prosecuting or opposing the prosecution of any such action, in addition to any relief granted by a court of law.
10.13 No Waiver. No failure or delay by any Party hereto in exercising any right, power, or privilege hereunder (and no course of dealing between the Parties) shall operate as a waiver of any right, power, or privilege. No waiver of any default on any one occasion shall constitute a waiver of any subsequent or other default.