Terms and Conditions

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WebSpark and/or any of its subsidiaries, parent and/or affiliates, (“WebSpark”) is a Digital Marketing and Software Provider supplying Marketing, Web and Software services and products to our clients as they choose from our offerings. The following General Standard Service Terms and Conditions apply to all of WebSpark’s Agreements. Due to the nature of services provided by WebSpark, Standard Supplementary Terms and Conditions may be incorporated as applicable for (1) Web, Software and Apps design, development and services; (2) Marketing and Consulting Services, including outsourced marketing and communication services, advisory, search engine optimization (SEO), public relations, content marketing, social media management, e-mail, marketing automation and customer relationship management (CRM) support services, branding and creative / graphic design; and (3) Other Products & Services, including online commerce, software product licensing, hosting, training and other custom services.

 

  1. Acceptance. Acceptance by Customer (as named on the signature page) of any agreement, proposal, quotation or invoice (a “Proposal”) issued by WebSpark, LLC (“WebSpark”), to which these terms and conditions are attached or by reference made a part of (including reference to online version of these terms and conditions), shall constitute an Agreement between Customer and WebSpark with respect to the responsibilities of WebSpark and Customer pursuant to the Proposal (the “Agreement”). The Agreement shall consist of the Proposal and these terms and conditions, together with any modifications made in accordance with the terms hereof. No terms or conditions, other than those stated herein, and no agreement or understanding in any way modifying the terms and conditions stated herein, shall be binding upon WebSpark unless made in writing and signed by WebSpark’s duly authorized officer. Written or verbal acceptance of any Proposal and/or the acceptance of deliverables or services by Customer shall constitute Customer’s assent to these exclusive terms and conditions with respect to such Proposal. This order and contract shall be governed exclusively by, and be construed in accordance with, the laws of the State of North Carolina (except the conflicts of laws provisions thereof).

 

  1. Scope of Service. WebSpark shall provide only those professional services and/or products specified in the Proposal (the “Work”). Quotations are valid for 30 days from date of issue. Customer understands and agrees that, unless listed in the Proposal, WebSpark is not responsible for any other work or scope of supply or any disclosure, notifications or reports that may be required to be made to third parties, including appropriate governmental authorities. If Customer requests and WebSpark agrees to perform any services that are in addition to or outside the scope of Work identified in the Proposal, Customer shall promptly pay WebSpark for such services in accordance with the terms and rates shown in the Proposal or, if no such terms or rates are shown in the Proposal, in accordance with WebSpark’s standard terms and rates for the services performed.

 

  1. Fees. Customer shall pay WebSpark for the Work based upon the price or the rates shown in the Proposal. Unless stated in Proposal, no allowance is included for sales and use taxes, VAT, governmental or third party licenses and fees, or any board, lodging, travel or delivery/shipping expenses. Customer shall pay or otherwise reimburse WebSpark for any such taxes, fees or expenses imposed upon or incurred by WebSpark in the providing of services and products under this Agreement.

 

  1. Payment Terms. In the event Customer fails to make payment in full within the time period set forth in the Proposal, such failure to pay on time constitutes a material breach of contract by Customer permitting WebSpark to suspend its performance hereunder, and WebSpark shall have all other remedies permitted to WebSpark by law, equity and these terms. If terms are excluded from the proposal all invoices are deemed due net upon receipt. Past due invoices shall bear interest at the rate of one and one-half percent (1-1/2%) per month, or the highest rate allowed by applicable law, whichever is lower and, if Customer has provided WebSpark with a credit card authorization, WebSpark shall be entitled to charge the invoice amount and interest against such card. If WebSpark must take legal action to collect any amount due hereunder, Customer shall pay all court costs plus attorney’s fees incurred by WebSpark in bringing such legal action.

 

  1. Standard of Care and Warranty. WebSpark shall carry out the Work in a manner consistent with that level of care and skill ordinarily exercised by others currently providing similar services under similar circumstances at the time the services are performed. NO OTHER WARRANTY, EXPRESS OR IMPLIED, WHETHER CONTAINED IN MATERIALS PROVIDED OR STATEMENTS MADE BY WEBSPARK OR OTHERWISE, IS MADE BY WEBSPARK WITH RESPECT TO THE QUALITY, RESULT, EFFECTIVENESS OR OUTCOME OF THE WORK, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY AS TO NON-INFRINGEMENT, AND ANY SUCH ADDITIONAL WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. Customer’s sole remedy for a breach of the foregoing warranty is to require WebSpark to correct or replace, at WebSpark’s election, the affected service if the breach of warranty is made known to WebSpark in writing within 6 months from the date the affected services were provided.

 

To the extent assignable, WebSpark assigns to the customer any and all warranties made by the manufacturer of a product or software that is furnished but not designed or developed by WebSpark.  Webspark does not provide any warranty or guaranty with respect to third party software or hardware (such as the software platform of any website) and, accordingly, (a) Webspark has no responsibility to correct, or pay for the correction of, errors or problems arising from or caused by third party software or hardware, and (b) Webspark does not warrant that the services or operation of any web site will be uninterrupted, error-free, or completely secure. Customer assumes all risks related to processing of transactions related to electronic commerce.

 

  1. Limitations of Liability. In no event shall WebSpark or any of its owners, officers, employees or contractors (agents) be liable to Customer, or anyone claiming by, through or under Customer, for any special, incidental, indirect or consequential damages whatsoever arising out of or resulting in any way, directly or indirectly, from the Work or the acts or omissions of WebSpark’s agents, whether or not any such losses or damages are caused by negligence, professional errors or omissions, strict liability, breach of contract, breach of express or implied warranty or otherwise. In no event shall WebSpark be liable to Customer for negligence, professional errors or omissions, strict liability, breach of contract, breach of express or implied warranty or otherwise unless Customer provides WebSpark with written notice of the claim within six months of the date the service or deliverable was provided to Customer. WebSpark’s liability for any claim relating to the Work shall be limited to the amount paid to WebSpark by Customer pursuant to the Proposal.

 

  1. Access to Site and Information. Customer will provide for right of entry and access to all relevant sites, equipment and other information in its control or possession as is necessary for WebSpark to timely and fully complete the Work. WebSpark is not responsible for the quality or accuracy of data or information, nor for the methods from which the data was developed, where such information or data is provided by or through Customer or others that are not agents or WebSpark, and WebSpark has no obligation to investigate facts or conditions not disclosed to it by Customer. All communications between WebSpark and Customer shall be by telephone, email, e-communications or postal mail, except where agreed at WebSpark’s discretion.

 

  1. Indemnification. The Customer agrees to defend, indemnify, save and hold WebSpark harmless from any and all demands, liabilities, costs, losses and claims, including legal fees, against WebSpark or its agents that may arise directly or indirectly from any service provided or agreed to be provided or any product or service sold by the Customer or its third parties or which arise out of or result from the negligence or intentional misconduct of the Customer including but not limited to infringement of proprietary rights, misinformation, infringement of copyright or trademark, delivery of defective services or products that are harmful to any company, person, business, or organization.

 

  1. Nondisclosure. The Customer and WebSpark or any agents, employees or representatives of either shall not, without the prior written consent of the other Party, at any time directly or indirectly use for its own benefit or disclose or make available to any third party (a) any trade secrets or other business, financial, technical, or confidential information of or relating to either Party, or (b) any information, methods, ideas, drawings, notes, records, or other work product arising out of the Work. All such trade secrets, information, methods, ideas, drawings, notes, records, and other work product by WebSpark shall be and remain the sole and exclusive property of WebSpark. It is agreed that this Agreement, Quotation and all drafts and data hereof shall be considered WebSpark’s Confidential Information at all times. The Customer and WebSpark agree that, in addition to any other legal or equitable remedies available to one another upon a breach of this paragraph by the other Party, this paragraph shall be enforceable by injunctive relief. Exception. Confidential Information does not include (a) any information that is in the public domain, (b) becomes publicly known through no fault of the receiving party, or (c) is otherwise known by the receiving party before obtaining access to it under this Agreement or properly received from a third party without an obligation of confidentiality.

 

  1. Termination and Suspension. (a) In the event this Agreement is canceled by Customer, WebSpark shall be entitled to payment in proportion to the Work or Service completed as of the date of cancellation, including work in progress related to the Agreement, allowances for overhead and profit, and reasonable costs of winding up the work, terminating subcontracts, and closing out the project. WebSpark shall be entitled to terminate the Agreement or to suspend any shipment or services if Customer is in breach of the Agreement or is overdue in any payment to WebSpark under the Agreement or any other agreement or order.  (b) In the event an occasion arises to terminate for cause, either WebSpark or Customer must allow seven (7) days after receipt of written notice to cure or correct such cause; if cure or correction is not made, the aggrieved party may terminate the Agreement by providing thirty (30) days advance written notice of same and be entitled to recover damages.  Conditions that arise for cause are when WebSpark or Customer:  (1) breach the Agreement; (2) are declared bankrupt, insolvent or enter into receivership; (3) disregards laws, ordinances, rules, regulations or orders of a public authority having jurisdiction; (4) endanger the life or welfare of persons or property at Customer’s site; or if Customer (1) fails to pay or becomes delinquent in the payment for work; (2) self-performs or engages any third party to perform services covered under this Agreement without the express written consent of WebSpark; or if WebSpark shall fail to perform the work in accordance with the Agreement.  In any event, any of the above mentioned causes shall allow both parties to immediately suspend the Agreement, except for the reasonable allowances to cure or correct the default.

 

  1. WebSpark Personnel. Without the express written consent of WebSpark, Customer or any agents, employees or representatives of Customer shall be precluded from employing or contracting with WebSpark’s current and former employees, agents or representatives, including current and former WebSpark contract and freelance personnel performing regular services for WebSpark under an Independent Contractor Agreement, altogether deemed “WebSpark Personnel” or engaging any third party providers who employ WebSpark Personnel for a period not to exceed one (1) years from the end of any past or present Agreement with customer, including completion of work, or the termination date of the subject WebSpark Personnel, whichever occurs first, herein referred to as Recovery Period.  Customer shall pay WebSpark an amount equivalent to one year of WebSpark Personnel’s compensation while last employed or engaged by WebSpark in the event Customer hires or employs WebSpark’s Personnel or engages third party providers who employ WebSpark’s Personnel during the Recovery Period.

 

  1. Setoff. Customer shall have no rights to any setoffs, abatements, or withholdings of any kind under this Agreement.

 

  1. Delivery & Schedule. WebSpark will use commercially reasonable efforts to perform the Services within the schedule outlined in the Statement of Work. WebSpark’s delivery timeframe depends upon the Client’s prompt response to any questions or requests for Client materials. WebSpark may hire third party service providers as independent contractors; however, WebSpark is responsible for compliance with this Agreement. The Client shall promptly review all deliverables, and must notify WebSpark of any failure to conform to the Statement of Work within 5 business days of receipt. If WebSpark does not receive a timely notification, the Deliverable will be deemed accepted. The Client’s notification must clearly identify the problems with the Deliverable. Client must promptly: (a) coordinate any decision-making activities with 3rd parties; (b) provide Client Content in a form suitable for reproduction or incorporation into the Deliverables; and (c) proofread deliverables.

 

  1. Rights in Deliverables. Upon completion of the Services and full payment of all invoices, WebSpark shall assign IP rights to the Client. These IP rights include all ownership rights, including any copyrights/trademarks, in any final artwork, designs and software created by the WebSpark and incorporated into a Final Deliverable, except as otherwise noted in this Agreement. WebSpark retains the rights to all Preliminary Works that are not incorporated into a Final Deliverable. WebSpark may display the Deliverables in WebSpark’s portfolios and websites, and in galleries, design periodicals and other exhibits for the purposes of professional recognition. Likewise, WebSpark may publicly describe its role in the Project.

If WebSpark incorporates credits into the Deliverables, any use of the Deliverables shall continue to bear the credits in the same form, size and location.

 

  1. Force Majeure. WebSpark is not liable for any failure to perform, or delay in performance, due to circumstances beyond its reasonable control, including but not limited to acts or results of acts of God, nature and governments, foreign and domestic acts of social disturbance, strikes, riots, wars, terrorism, interference and hacks, any fires, floods, or explosions, any acts, omissions, failures or problems from third party services or products, such as telecommunications, internet, hardware or software. If WebSpark’s services or products are interrupted due to any such force majeure cause, Customer and WebSpark shall negotiate a reasonable extension of time for WebSpark’s performance and payment of any additional costs to be incurred by WebSpark as a result thereof.

 

  1. Title and Risk of Loss. Title to goods shall pass upon payment in full therefor, and risk of loss shall pass to Customer upon delivery to Customer.

 

  1.  Headings in this Agreement. The headings in this Agreement are for convenience only, confirm no rights or obligations in either party, and do not alter any terms of this Agreement.

 

  1.  Severability. If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.
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