Although there is also some unavoidable standardized legalese at various places in the document which our attorney required, in this document we try to write everything in plain English. To do this, we frequently use terms like “we” and “you.” “We,” “us,” “our,” and “the Company” means ALL PHASE MEDIA, INC (“APM”), a corporation registered in the State of NEW YORK. “You,” “your,” “Customer” or “Client” in this document is you, our (“Customer”).
2. Current Hourly Rate
Throughout this document, reference is made to our current hourly rate. This rate is defined as our hourly rate that is in place at the time a service is requested, not at the time this agreement is signed. We will provide you with our current hourly rate upon request.
3. Engagement of APM
Customer hereby engages APM to develop a website (the “Website”) on the APM Hosting Environment (hereinafter defined), as described more fully herein, and to perform any other services purchased by Customer (collectively, the “Services”), in accordance with this Agreement. If APM determines, in its sole discretion, that any services Customer requests are not covered by the existing Services, including by any existing monthly package, then APM reserves the right to charge Customer its hourly rates for any such additional Services. APM may in its discretion engage third parties to perform the Services (each, a “Subcontractor”). APM may include in the Website, and the Website’s operation may require the use of, Third-Party Materials. “Third-Party Materials” means materials and information, in any form or medium, including any software (including open source software), documents, data, content, specifications, products, equipment, or components of or relating to the Website that are not proprietary to APM. All right, title, and interest in and to Third-Party Materials will remain with their respective owners, subject to any express licenses granted to Customer in this Agreement.
4. Customer Resources and Cooperation
Customer will be responsible for, on a timely basis: (a) providing all materials and information, including documents, data, specifications, software, content (including any logo, text, images, link(s) to social media, and credentials), technology and any other information that APM may request, and in the format APM requires; (b) participating in any meetings scheduled by APM; (c) providing all consents, approvals, exception notices and communications; and (d) provide all cooperation and assistance that APM may request to enable APM to exercise its rights and/or perform its obligations under this Agreement. If Customer fails to perform any of its obligations in this Agreement on a timely basis, any timelines and due dates herein may be extended by APM. APM is not responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement.
4.1 Website Content
“Website Content” shall mean any audio, visual, and audiovisual content, including illustrations, graphics, photographic images, music, sound effects, lyrics, narration, text, film, video, animation, and characters on the Website. As between APM and Customer, Customer is and will remain, the sole and exclusive owner of all right, title, and interest in and to the Website Content, including all Intellectual Property Rights therein. Customer has sole responsibility for the Website Content. APM has the right and license to use any Website Content during the Term of the Agreement to the extent necessary to provide the Services to Customer. Customer shall not include, or allow to be included, in the Website Content, any materials that: (a) infringe or otherwise violate any Intellectual Property Right of any third party (“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights Laws, and all similar or equivalent rights or forms of protection, in any part of the world”, “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction); (b) are libelous or otherwise defamatory or invade any right of publicity or privacy of any third party; or (c) contain any virus, trojan horse, worm, backdoor, or other software or hardware devices the effect of which is to permit unauthorized access to, or to disable, erase, or otherwise harm, any computer, systems, or software (collectively, “Harmful Code”). “Hosting Environment” means all servers, server software (including source code), hosting platforms, storage space, telecommunications connectivity and equipment, and other hardware, technology, and other materials APM uses, provides, or provide access to as part of the Website and Services, including the UnionCoded platform, but excluding the Website Content (as determined by APM in its sole discretion). As between APM and Customer, APM is and will remain, the sole and exclusive owner of all right, title, and interest in and to the Hosting Environment, including all Intellectual Property Rights therein. APM hereby grants to Customer a nonexclusive, revocable right and license during the Term to access and use the Hosting Environment in connection with Services and consistent with this Agreement. Upon termination of this Agreement for any reason, Customer’s license to access and use the Hosting Environment shall end.
5. Fees and Payment
Customer shall pay APM the fees (“Fees”) for the Services as set forth for the plan or package for the services Customer selected. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder. Customer shall pay all Fees upon receipt of the invoice therefor, payable in U.S. dollars by credit card, ACH, check or wire transfer. If Customer fails to make any payment when due then, in addition to all other remedies that may be available: (a) APM may charge interest on the past due amount at the rate of 2% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law; (b) Customer shall reimburse APM for all costs incurred by APM in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (c) if such failure continues for thirty (30) days following Customer’s receipt thereof, APM may suspend performance of the Services, including but not limited to suspending all hosting services for the Website, until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other individual or entity by reason of such suspension. APM DOES NOT OFFER ANY REFUNDS FOR ANY FEES PAID BY CUSTOMER. APM reserves the right to increase its Fees, including but not limited to any monthly package Fees and/or its hourly rates for any additional Services, at any time.
6. Hosting, Maintenance and Support
APM shall host Customer’s Website on the APM Hosting Environment as part of a monthly package, such as the Basic, Premium or Ultimate plan. The Website and Services are only available on APM’s Hosting Environment, and accordingly, APM does not create or provide Websites or Services into Customer-hosted or any other hosting environments, does not provide any migration services to any other hosting environments, and shall not transfer the Website outside of the Hosting Environment, including to any other hosting service. Upon termination of this Agreement for any reason, Customer shall be solely responsible to copy and/or transfer any Website Content outside of the Hosting Environment, shall have no right to transfer the Website itself or the Hosting Environment, and APM shall not be responsible to provide any migration services for the Website Content.
APM shall make reasonable efforts to provide Customer with maintenance and support Services to the extent covered under the applicable package purchased by Customer. Such maintenance and support Services shall be specifically comprised of support for Website errors, bug fixes and security updates. APM is available via email 7 days a week from 8 A.M. to 8 P.M. EST, other than any holidays. APM’s normal response time is one business day, although response times may vary and are not guaranteed. APM does not receive maintenance and support Services requests or other communications related to this Agreement via telephone call to a mobile phone number, text message, social media, or instant/private messaging and any such requests or communications shall be invalid.
On the Premium and Ultimate Plans, or any other plan where the Customer also has an active and valid subscription for Web Assistance , Customer also receives reasonable assistance with Website management, including all functions included with Customer’s Website at launch, including Website Content updates. For any monthly package other than Premium or Ultimate package, where the Customer doe not have an active and valid subscription for any Web Assistance Addon, Customer has the sole responsibility to administer and manage the Website, including to add, modify, and delete Website Content. For any Website, Customer shall provide all Website Content. Creation of custom functions, hosting Services or maintenance and support Services beyond the scope covered by Customer’s monthly package, will be subject to an hourly rate and such Fees shall be billed to Customer as part of the next applicable invoice. It is Customer’s sole responsibility to immediately notify APM if the Website requires maintenance or support services. To the extent that Customer utilizes a third party to modify the Website, such as a search engine optimization professional or content creator, such modifications to the Website are solely Customer’s responsibility. APM cannot be responsible for third-party services. To the extent Customer requests Services from APM in connection with any third party work performed on the Website, such Services are extra and shall be billed by APM at its hourly rate. APM reserves the right to reject any request for services beyond those covered under an existing monthly package.
7. Term and Termination
The term of this Agreement commences as of the date the order form was submitted and, unless terminated earlier pursuant to any of the Agreement’s express provisions, will continue in effect until terminated by either party as provided herein (the “Term”). Either party may terminate this Agreement at any time, upon ten (10) days’ written notice to the other party; Customer shall remain liable for all Fees for all Services received before the effective date of such termination. Either party may terminate this Agreement, effective on written notice to the other party, if the other party breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured ten (10) days after the non-breaching party provides the breaching party with written notice of such breach. The provisions set forth in the following Sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Sections 11, 12, 13, 14, 15, 16 and 17.
In connection with the Website, Customer shall receive access credentials to log in to the Website, edit the Website and perform other functions to the extent applicable. Customer shall be solely responsible for maintaining the security of its Website, including through the use of reasonable security software, keeping its browser software up-to-date (including downloaded recommended patches), by using a strong password for its Website and by not sharing its password with any third party.
9. Email, SMS Service and Deliverability
The Website may include functionality that sends email when certain events occur such as the completion of a contact form, product sale, password reset, etc. Such emails may be flagged as spam (or not delivered at all) by email providers such as Google, Microsoft, Yahoo and others. APM SHALL NOT BE RESPONSIBLE FOR ANY EMAILS THAT ARE NOT DELIVERED TO CUSTOMER FOR ANY REASON. IT IS CUSTOMER’S RESPONSIBILITY TO REGULARLY CHECK SPAM FOLDERS AND OTHER LOCATIONS AND INTERFACES FOR ANY EMAILS AND/OR NOTIFICATIONS. The Website may also include SMS text messaging functionality through an integration with a third party SMS text message provider, Twilio. The Hosting Environment simply provides an interface to interact with any such third party service from the Website. APM SHALL NOT BE RESPONSIBLE FOR ANY SMS MESSAGES THAT ARE NOT DELIVERED TO THEIR INTENDED RECIPIENT(S) FOR ANY REASON. Customer shall be responsible to create and maintain a Twilio account in connection with the SMS text message service.
10. Domain Names
It shall be Customer’s sole responsibility to register a domain name for any Website, including payment of applicable fees (including renewal fees) for such domain name. For an additional Fee at APM’s hourly rate, APM can assist Customer in the process of registering a domain name and pointing said domain name to the Website. APM shall not be responsible for loss of or lack of access to any domain name, whether due to billing issues or for any other reason.
11. Disclaimer of Warranties
ALL SERVICES (INCLUDING BUT NOT LIMITED TO ANY WEBSITES) ARE PROVIDED “AS IS” AND APM DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND APM SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, APM MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR ANY WEBSITE OR ANY RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
Customer shall indemnify, defend, and hold harmless APM and its subcontractors and service providers, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, an “Indemnitee”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of any kind, including reasonable attorneys’ fees, incurred by any Indemnitee in connection with any claim, action, cause of action, demand, lawsuit, arbitration, audit, notice, proceeding, litigation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or otherwise, whether at law, in equity, or otherwise (an “Action”) by a third party arising out of or relating to: (a) Website Content or APM’s use thereof in accordance with this Agreement; (b) APM’s compliance with any specifications or directions provided by or on behalf of Customer; or (c) any allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement. APM will promptly notify Customer of any Action for which it is entitled to be indemnified hereunder and cooperate with Customer at Customer’s sole cost and expense. Customer shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at Customer’s sole cost and expense. Customer shall not settle any Action in a manner that adversely affects APM’s rights without APM’s prior written consent. APM’s failure to perform any obligations under this Section 10 will not relieve Customer of its obligations under this Section 10 except to the extent that Customer can demonstrate that it has been materially prejudiced as a result of such failure.
13. Limitation of Liability
13.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL APM OR ANY OF ITS SUBCONTRACTORS OR SERVICE PROVIDERS, BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT, OR LOSS OF DATA OR DIMINUTION IN VALUE, OR (b) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
13.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF APM, ITS SUBCONTRACTORS AND SERVICE PROVIDERS, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL FEES PAID BY CUSTOMER TO APM IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR ONE THOUSAND DOLLARS ($1,000.00), WHICHEVER IS LESS. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
14. Confidential Information
In connection with this Agreement, a party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other (as the “Receiving Party”). “Confidential Information” means information in written or electronic form that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential”. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to it being disclosed or made available to the Receiving Party under this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall for a period of three (3) years from the date of disclosure: (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations in accordance with this Agreement; (ii) not disclose or permit access to Confidential Information other than to its officers, directors, employees and agents (collectively, “Representatives”) who need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations in accordance with this Agreement and have been informed of the confidential nature of the Confidential Information; (iii) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and (iv) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 12. If the Receiving Party is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, it shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party of such requirement so that the Disclosing Party can seek a protective order or other appropriate remedy or waive its rights under this Section 12; and (b) provide reasonable assistance to the Disclosing Customer (at the Disclosing Party’s expense) in opposing such disclosure or seeking a protective order or other limitations on disclosure.
The parties’ relationship is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement have binding legal effect only if in writing and addressed to a party at their respective address at the beginning of this Agreement (or to such other address or such other person that such party may designate from time to time in accordance with this Section 13). Notices sent in accordance with this Section 13 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; or (b) when received, if sent by a nationally recognized overnight courier, signature required. This Agreement constitutes the entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, whether written or oral, with respect to such subject matter. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without APM’s prior written consent. Any purported assignment, delegation, or transfer in violation of this Section 13 is void. This Agreement is binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other individual or entity any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other electronic transmission shall have the same legal effect as delivery of an original signed copy of this Agreement.
16. Governing Law; Submission to Jurisdiction
This Agreement is governed by and construed in accordance with the internal Laws of the State of New York without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in Suffolk County, New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding.
17. Attorneys’ Fees
In the event that any legal suit, action, or proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.