Terms and Conditions
These terms and conditions, together with the proposal to which it is attached and the Web Services Contract entered into between Eyesore, Inc. and client (referred to as “this agreement”) constitute the entire agreement between Eyesore, Inc. and client all previous agreements and any other documents or statements exchanged between Eyesore, Inc. and client and conflicting terms of any purchase orders or other documents that may be issued pursuant to this agreement are superseded. No party hereto has relied on any statement, representation or promise of any other party or of any officer, agent, employee or attorney for the other party in entering into this agreement except as expressly stated herein.
PRICING and PAYMENT:
Projects are billed hourly or by the project, depending on the scope of the work. Specific fees and payment terms will be detailed in your project proposal. Final payment is due within 15 days of invoice date, unless otherwise noted. Interest on past due invoices over 30 days shall be 18% of the total amount past due. Fees are non-refundable. Finished work not yet approved by client beyond 15 days shall be billed. There will be a $28.00 fee on all returned checks, plus any additional bank fees. Client assumes responsibility for all costs of collection, including but not limited to reasonable legal fees necessitated by default in payment.
Invoices will include (and the client shall be obligated to pay) fees or expenses that were orally authorized.
Eyesore, Inc. makes every effort to be as accurate and complete as possible on estimates. To receive a project estimate, you must submit the exact specifications of your job. In some cases, a range estimate will be given, based on knowledge of project at time of estimate. If, upon receipt of all project elements, Eyesore, Inc. determines the scope of the project has been changed from the originally agreed-upon concept, the project may be re-estimated. Minor revisions are anticipated, but major design/content changes may go beyond the scope of the estimate. The client’s approval will be obtained for any increases in fees or expenses that exceed the original estimate by 10%. Final fees and expenses will be shown when invoice is rendered. Estimate is valid for 30 days from date of estimate. All outsourced fees will be estimated separately.
Client is responsible for Eyesore, Inc.’s out of pocket expenses in addition to the amount stated in the estimate. Any out of pocket expenses to be incurred by Eyesore, Inc. will be subject to prior approval from Client.
INDEPENDENT CONTRACTOR RELATIONSHIP:
Eyesore, Inc. acts as an independent contractor in supplying its services and producing its products.
See your quote or estimate to determine the client-specific responsibilities you have to contribute to the success of this project. In addition, you may be asked to complete other responsibilities in the Project Scope document that may be created once the project begins. It is important that these are executed and your signature binds you to fulfilling these objectives in a timely fashion. Client acknowledges that the results of its use of Eyesore, Inc.’s work product are dependent on Client upholding said responsibilities and objectives, and accordingly Client agrees to do so.
The client will be ultimately responsible for final approval of all comps. It is important to make all final corrections before the project goes live to avoid delays and additional fees. Eyesore, Inc. is not liable for any work that has been finally approved by the client and made live.
Any delay in the completion of a project not due to external forces beyond Eyesore, Inc.’s control or actions or negligence of the client shall constitute a breach of this agreement by Eyesore, Inc. Client shall provide Eyesore, Inc. with 30 days to cure the breach prior to declaring a default. If a default is validly declared after the cure period has elapsed, Eyesore, Inc. shall credit client with one- sixtieth (1/60th) of the total compensation to be paid to Eyesore, Inc. pursuant to this agreement for each day after the end of the cure period that Eyesore, Inc. has failed to deliver the completed project as liquidated damages; provided, however, that in no event will Eyesore, Inc. be responsible to make total payments and/or credits pursuant to this paragraph in excess of the total compensation previously paid to Eyesore, Inc. pursuant to this agreement. Upon completion of the project and the delivery of all items required to be provided under the project proposal, client shall have thirty days from such completion to inspect, test and evaluate the project to determine whether it satisfies the criteria set forth in the project proposal. If the project does not satisfy the criteria, client shall give Eyesore, Inc. written notice stating why the project is unacceptable. Eyesore, Inc. shall have ten days from the receipt of such notice to correct the deficiencies. Client shall then have ten days to inspect, test and reevaluate the project. If the project still does not satisfy the acceptance criteria, client shall have the option of either: (1) repeating the procedures set forth above; or (2) terminating this agreement under the terms set forth in the section labeled “Cancellation.” If and when the acceptance tests establish that the project complies with the acceptance criteria, client shall notify Eyesore, Inc. that it accepts the project. The date of such notification shall be the date on which client shall be obligated to make the final payment specified in the schedule set forth in the project proposal. If client does not give Eyesore, Inc. written notice that the project is unacceptable within ten days after delivery of all items required to be provided under the project proposal, client will be conclusively deemed to have accepted the project.
In the event of cancellation of a project, the ownership of all copyrights and original artwork, including sketches, PDF files of layouts, and any other mockups, shall be retained by Eyesore, Inc. Any usage by the client of any of the project elements will result in appropriate legal action. A cancellation fee for work completed shall be paid by the client. The cancellation fee is as follows: 50% of total project fee for preliminary work, concepts, or comps, 75% of total project fee after preliminary work but before completion, 100% of total project fee for completed work regardless of final approval.
Eyesore, Inc. and client represents and warrants that no content provided by it will violate or infringe upon the copyright, patent, literary, privacy, publicity, trademark, service mark, trade secret or any other personal, moral or property right of any person, or constitute a libel or defamation of any person whatsoever. Each of Eyesore, Inc. and client represents and warrants that all content provided by it will at all times be free from viruses and destructive elements. Each of Eyesore, Inc. and client agrees that it shall indemnify the other and any of the other’s officers, directors, employees or agents against all claims, liabilities, costs, damages, fees and expenses (including reasonable attorneys fees) arising from any breach or alleged breach of the representations and warranties in this paragraph.
Upon completion of the project, Client will obtain ownership of the original artwork pieces created for the Client. Client shall own the final product/implementation (i.e. website). All code parts produced during the work relationship may be reused by Eyesore, Inc. in future projects, although the actual implementation (website, web app, etc.) of that code is solely the Client’s, and Eyesore, Inc. shall not reproduce that same final implementation elsewhere. Upon receipt of final payment by Eyesore, Inc. the client reserves the right to reuse, modify, transfer, or sell their implementation, although client agrees that it shall not decompile, reverse compile, reverse engineer, reverse assemble or otherwise seek to duplicate the code itself, and agrees that the code itself cannot be copied, resold, licensed or sublicensed without consent from Eyesore, Inc. If the client wishes to make uses of the work not specified in this agreement, client shall seek permission from Eyesore, Inc. and pay an additional fee to be agreed upon. The work product produced by Eyesore, Inc. shall not be considered a “work made for hire” under applicable laws.
Client acknowledges that the code, algorithms, routines, schematics, base technology and know-how used by Eyesore, Inc. (the “Proprietary Information”) constitutes and contains confidential and proprietary information of Eyesore, Inc. Client hereby agrees to hold the Proprietary Information in strict confidence. Information shall not be considered Proprietary Information if: (i) it was publicly known prior to the date of this agreement, other than through unauthorized disclosure by client, or (ii) client can prove it was known to client prior to the date of this agreement.
Eyesore, Inc. may reproduce any design, artwork, or layout in promotional materials such as brochures, mailers, and websites. Eyesore, Inc. may use the completed project and any preliminary designs for the purpose of design competitions, future publications on design, educational purposes, and the marketing of itself. Where applicable, the client will be given any necessary credit for usage of the project elements.
WARRANTIES/LIMITATION OF LIABILITY:
Subject to limitations set forth in this agreement, each of Eyesore, Inc. and client is liable for personal injury and property damage caused by its negligence. Other than liability for personal injury and property damage caused by a party’s negligence, NEITHER PARTY IS IN THE AGGREGATE LIABLE FOR ANY REASON FOR MORE THAN THE TOTAL PRICE OF PRODUCTS AND SERVICES ORDERED HEREUNDER. NEITHER PARTY IS LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THEIR POSSIBILITY. Eyesore, Inc. warrants that work product substantially conforms to specifications in the proposal of which these terms and conditions are a part. EYESORE, INC. MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ITS WORK PRODUCT OR THE SERVICES PROVIDED BY EYESORE, INC. OR THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE THEREOF. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, EYESORE, INC. DOES NOT WARRANT THAT ITS WORK PRODUCT, THE WEB SITE OR THE SERVICES PROVIDED OR THE OPERATION THEREOF ARE OR WILL BE ACCURATE, ERROR-FREE OR UNINTERRUPTED OR MEETS OR WILL MEET CUSTOMER’S REQUIREMENTS. THESE WARRANTIES ARE INSTEAD OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. EYESORE’ INC.’S ENTIRE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR ANY DAMAGES CAUSED BY WORK PRODUCT OR SERVICE DEFECT OR FAILURE, FOR OTHER CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT, WILL BE NO MORE THAN AS FOLLOWS: (1) FOR A SERVICE DEFECT OR FAILURE, THE AMOUNT OF THE CHARGES PAID TO EYESORE, INC. FOR THE PORTION OF THE SERVICE THAT PERFORMED IMPROPERLY OR FAILED TO PERFORM. (2) FOR A DEFECT OR FAILURE OF WORK PRODUCT, EYESORE, INC.’S CHOICE OF (A) REFUND OF THE AMOUNT PAID BY CLIENT TO EYESORE, INC. FOR THE WORK PRODUCT OR (B) REPAIR OF THE WORK PRODUCT. (3) FOR BODILY INJURY OR DEATH TO ANY PERSON NEGLIGENTLY CAUSED BY EYESORE, INC., CLIENT’S RIGHT TO PROVEN DIRECT DAMAGES. (4) FOR CLAIMS OTHER THAN THOSE SET FORTH ABOVE AND NOT EXCLUDED ELSEWHERE IN THIS AGREEMENT, EYESORE, INC.’S LIABILITY WILL BE LIMITED TO PROVEN DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE LESSER OF (A) THE FEES AND CHARGES ACTUALLY PAID TO EYESORE, INC. HEREUNDER FOR NO MORE THAN SIX (6) MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM AROSE; OR (B) U.S. $10,000.00 IN THE AGGREGATE FOR ALL SUCH CLAIMS. CLIENT HAS SOLE RESPONSIBILITY FOR ADEQUATE PROTECTION AND BACKUP OF THE CONTENT AND/OR THE DATA USED OR GENERATED IN CONNECTION WITH THE SERVICES OR THE WEB SITE. EXCEPT AS MAY BE EXPRESSLY SET FORTH HEREIN, CLIENT WILL HAVE NO CLAIM AGAINST EYESORE, INC. FOR INTERRUPTED COMMUNICATIONS, LOST DATA, RE-RUN TIME, INACCURATE INPUT, WORK DELAYS OR LOST REVENUES OR PROFITS RESULTING FROM THE USE OF THE WEB SITE OR THE SERVICES. For purposes of this paragraph, each reference to “Eyesore, Inc.” will be deemed to include Eyesore, Inc., its parents, subsidiaries, affiliates and the employees, officers, directors, shareholders, licensors, agents, interconnection service providers and suppliers and the successors and assigns of each of them, and “damages” will be deemed to refer collectively to any and all injury, damage, loss or expense. Any action arising out of this agreement or the matters contemplated hereby must be commenced within one year after the cause of action has accrued.
Client shall bear all costs, expenses, and reasonable attorney’s fees in any action brought to recover payment under this contract or in which Eyesore, Inc. may become a party by reason of this contract.
Each of Eyesore, Inc. and client represent and warrant that the execution, delivery and performance of this agreement have been duly authorized and that this agreement is a legal, valid and binding agreement of it, enforceable in accordance with its terms. Each of Eyesore, Inc. and client further represent and warrant that this agreement does not breach or violate any agreement to which it is a party or by which it is bound. Written approval or a signature on this document or a Web Services Contract from client or payment of an invoice issued as a result of a quote or estimate, indicate authorization from client to proceed with the project described within this agreement.
Modifications of the project agreement must be written, except the invoice may include, and the client shall pay, fees/expenses that were verbally authorized. No failure or delay to enforce a provision of this agreement will be deemed a waiver thereof or of any prior, concurrent or subsequent breach of the same or any other provision of this agreement. The invalidity of any provision of this agreement will not affect the validity of any other provision. This agreement is governed by Georgia law and all questions with respect to this agreement will be determined by the laws of the State of Georgia applicable to contracts entered into and wholly to be performed within the State of Georgia. Except as otherwise provided herein, any controversy or claim arising out of or relating to this agreement, or the breach thereof, will first be subject to good faith efforts between the parties to resolve the controversy or claim between themselves and if unsuccessful then the controversy or claim will be settled by arbitration in Atlanta, Georgia in accordance with the Commercial Arbitration Rules of the American Arbitration Association by an arbitrator or arbitrators, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. All disputes, arbitrations and suits related to this agreement shall be brought exclusively in the city of Atlanta, Georgia notwithstanding above, matters involving collection of fees owed to Eyesore, Inc. may be brought directly in a court of law. No party shall be considered a third party beneficiary of this agreement. This agreement may be signed in counterparts. In resolving any dispute or construing any provision hereunder, there will be no presumptions made or inferences drawn (1) because one of the parties drafted this agreement, or (2) because of the drafting history of this agreement. In the event of any controversy concerning or related to this agreement or the performance of this agreement, the prevailing party shall be entitled to recover its reasonable expenses (including reasonable attorneys fees) incurred in resolving such controversy, in addition to any other relief that may be available.