General Terms & Conditions

ARTICLE I
DEFINITIONS

1.1       “Agreement” shall mean the entire content of this Basic Terms and Conditions document, the Proposal document(s), Schedule A, together with any other Supplements as maybe designated below, together with any other exhibit(s), schedule(s) or attachment(s) hereto.

1.2       “Client Content” shall mean all materials, information, photography, writings and other creative content provided by Client for use in the preparation of and/or incorporation in the Deliverables.

1.3       “Company Tools” shall mean all design tools developed and/or utilized by Company in performing the Services, including but not limited to pre-existing and newly developed software, by way of example, not limitation, source code, Web authoring tools, type fonts, and application tools, together with any other software, or other inventions whether or not patentable, and general non-copyrightable concepts such as website design, architecture, layout, navigational and functional elements.

1.4       “Copyrights” shall mean the property rights in original works of authorship, expressed in a tangible medium of expression, as defined and enforceable under U.S. Copyright law.

1.5       “Deliverables” shall mean the services and work product specified in the Proposal to be delivered by Company to Client, in the form and media specified in the Proposal.

1.6       “Final Art” shall mean all creative content developed or created by Company, or commissioned by Company, exclusively for the Project and incorporated into and delivered as part of the Final Deliverables. “Final Art” shall include but is not limited to, any and all visual designs, visual elements, graphic design, illustration, photography, animation, sounds, typographic treatments and text, modifications to Client Content, and Company’s selection, arrangement and coordination of such elements together with Client Content and/or Third Party Materials.

1.7       “Final Deliverables” shall mean the final versions of Deliverables provided by Company and accepted by Client.

1.8       “Preliminary Works” shall mean all artwork including, but not limited to, concepts, sketches, visual presentations, or other alternate or preliminary designs and documents developed by Company and which may or may not be shown and or delivered to Client for consideration but do not form part of the Final Art.

1.9       “Project” shall mean the scope and purpose of the Client’s identified usage of the work product as described in the Proposal.

1.10     “Services” shall mean all services and the work product to be provided to Client by Company as described and other further defined in the Proposal, as may be amended from time to time.

1.11     “Third Party Materials” shall mean proprietary third party materials which are incorporated into the Final Deliverables, including but not limited to stock photography or illustration.

1.12     “Trademarks” shall mean trade names, words, symbols, designs, logos or other devices or designs used in the Final Deliverables to designate the origin or source of the goods or services of Client.

ARTICLE II

PROPOSAL

2.1       The terms of the Proposal shall be effective for 14 days after presentation to Client. In the event this Agreement is not executed by Client within the time identified, the Proposal, together with any related terms and conditions and deliverables, may be subject to amendment, change or substitution.

 

ARTICLE III

FEES AND CHARGES

3.1              Fees.  In consideration of the Services to be performed by Company, Client shall pay to Company fees in the amounts and according to the payment schedule set forth in the Proposal, and all applicable sales, use or value added taxes, even if calculated or assessed subsequent to the payment schedule.

3.2              Expenses.  Client shall pay Company’s expenses incurred in connection with this Agreement as follows:  (a) incidental and out-of-pocket expenses including but not limited to costs for telephone calls, postage, shipping, overnight courier, service bureaus, typesetting, blueprints, models, presentation materials, photocopies, computer expenses, parking fees and tolls, taxis at cost plus Company’s standard markup of Ten percent (10%), and, if applicable, a mileage reimbursement at 60 cents per mile; and (b) travel expenses including transportation, meals, lodging, incurred by Company with Client’s prior approval.

3.3              Additional Costs.  The Project pricing includes Company’s fee only.  Any and all outside costs, including, but not limited to, equipment rental, photographer’s costs and fees, photography and/or artwork licenses, prototype production costs, talent fees, music licenses and online access or hosting fees, will be billed to Client unless otherwise provided for in the Proposal.

3.4              Invoices.  All invoices are payable within thirty (30) days of receipt.  A monthly service charge of 1.5 percent (or the greatest amount allowed by state law) is payable on all overdue balances.  Payments will be credited first to late payment charges and next to the unpaid balance. Company reserves the right to withhold delivery and any transfer of ownership of any current work if accounts are not current or overdue invoices are not paid in full.

3.5              Fees & Costs.  Client shall be responsible for all legal fees, including reasonable attorney’s fees, court costs, and expert witness fees, if any, incurred by Company as a result of Company exercising any of the rights granted to Company hereunder, including, but not limited to, any legal action initiated by Company for the collection of outstanding fees due Company under the terms of this Agreement. All grants of any license to use or transfer of ownership of any intellectual property rights under this Agreement are conditioned upon receipt of payment in full which shall be inclusive of any and all outstanding Additional Costs, Taxes, Expenses, and Fees, Charges or the costs of Changes.

ARTICLE IV

CHANGES

4.1              General Changes.  Unless otherwise provided in the Proposal, and except as otherwise provided for herein, Client shall pay additional charges for changes requested by Client which are outside the scope of the Services on a time and material basis, at Company’s standard hourly rate of $120 per hour unless otherwise noted.  Such charges shall be in addition to all other amounts payable under the Proposal, despite any maximum budget, contract price or final price identified therein.  Company may extend or modify any delivery schedule or deadlines in the Proposal and Deliverables as may be required by such changes.

4.2              Substantive Changes.  If Client requests or instructs changes that amount to a revision in or near excess of Five percent (5%) of the time required to produce the Deliverables, and or the value or scope of the Services, Company shall be entitled to submit a new and separate Proposal to Client for written approval.  Work shall not begin on the revised services until a fully signed revised Proposal and, if required, any additional retainer fees are received by Company.

4.3              Timing.  Company will prioritize performance of the Services as may be necessary or as identified in the Proposal, and will undertake commercially reasonable efforts to perform the Services within the time(s) identified in the Proposal.  Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve the Deliverables in writing or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Company.  Company shall be entitled to request written clarification of any concern, objection or correction.  Client acknowledges and agrees that Company’s ability to meet any and all schedules is entirely dependent upon Client’s prompt performance of its obligations to provide materials and written approvals and/or instructions pursuant to the Proposal and that any delays in Client’s performance or changes in the Services or Deliverables requested by Client may delay delivery of the Deliverables.  Any such delay caused by Client shall not constitute a breach of any term, condition or Company’s obligations under this Agreement.

4.4              Testing and Acceptance.  Company will exercise commercially reasonable efforts to test Deliverables requiring testing and to make all necessary corrections prior to providing Deliverables to Client.  Client, within five (5) business days of receipt of each Deliverable, shall notify Company, in writing, of any failure of such Deliverable to comply with the specifications set forth in the Proposal, or of any other objections, corrections, changes or amendments Client wishes to be made to such Deliverable.  Any such written notice shall be sufficient to identify with clarity any objection, correction, change or amendment, and Company will undertake to make the same in a commercially timely manner.  Any and all objections, corrections, changes or amendments shall be subject to the terms and conditions of this Agreement.  In the absence of such notice from Client, the Deliverable shall be deemed accepted.

ARTICLE V

CLIENT RESPONSIBILITIES

5.1       Client acknowledges that it shall be responsible for performing the following in a reasonable and timely manner:

(a)                coordination of any decision-making with parties other than Company;

(b)               provision of Client Content in a form suitable for reproduction or incorporation into the Deliverables without further preparations, unless otherwise expressly provided in the Proposal; and

(c)                final proofreading and in the event that Client has approved Deliverables but errors, such as, by way of example, not limitation, typographic errors or misspellings, remain in the finished product, Client shall incur the cost of correcting such errors.

ARTICLE VI

ACCREDITATION/PROMOTIONS

6.1       All displays or publications of the Deliverables shall bear accreditation and/or copyright notice in Company’s name in the form, size and location as incorporated by Company in the Deliverables, or as otherwise directed by Company.  Company retains the right to reproduce, publish and display the Deliverables in Company’s portfolios and websites, and in galleries, design periodicals and other media or exhibits for the purpose of recognition of creative excellence or professional advancement, and to be credited with authorship of the Deliverables in connection with such uses.  Either party, subject to the other’s reasonable approval, may describe its role in relation to the Project and, if applicable, the services provided to the other party on its website and in other promotional materials, and, if not expressly objected to, include a link to the other party’s website.

ARTICLE VII

CONFIDENTIAL INFORMATION

7.1       Each party acknowledges that in connection with this Agreement it may receive certain confidential or proprietary technical and business information and materials of the other party, including without limitation:  Shared Assets, Protected Information or Preliminary works (hereinafter referred to in the collective as “Confidential Information”).  Each party, including each party’s agents and employees shall hold and maintain in strict confidence all Confidential Information, shall not disclose Confidential Information to any third party, and shall not use any Confidential Information except as may be necessary to perform its obligations under the Proposal except as may be required by a court or governmental authority.  Notwithstanding the foregoing, Confidential Information shall not include any information that is in the public domain or becomes publicly known through no fault of the receiving party, or is otherwise properly received from a third party without an obligation of confidentiality.

ARTICLE VIII

RELATIONSHIP OF THE PARTIES

8.1       Independent Contractor.  Company is an independent contractor, not an employee of Client or any company affiliated with Client.  Company shall provide the Services under the general direction of Client, but Company shall determine, in Company’s sole discretion, the manner and means by which the Services are accomplished.  This Agreement does not create a partnership or joint venture and neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Company and the work product or Deliverables prepared by Company shall not be deemed a work for hire as that terms is defined under Copyright Law.  All rights, if any, granted to Client are contractual in nature and are wholly defined by the express written agreement of the parties and the various terms and conditions of this Agreement.

8.2       Company Agents.  Company shall be permitted to engage and/or use any third party service provider as an independent contractor in connection with the Services (“Company Agents”).  Company shall not be responsible for such Company’s Agents’ compliance with the various terms and conditions of this Agreement.

8.3       No Solicitation.  During the term of this Agreement, and for a period of Sixty (60) months after expiration or termination of this Agreement, Client agrees not to solicit, recruit, engage or otherwise employ or retain, on a full-time, part-time, consulting, work-for-hire or any other kind of basis, any employee or Company Agent of Company whether or not said person has been assigned to perform tasks under this Agreement.  In the event such employment, consultation or work-for-hire event occurs, Client agrees that Company shall be entitled to an agency commission to be the greater of, either (a) 35 percent of said person’s starting salary with Client, or (b) 35 percent of fees paid to said person if engaged by Client as an independent contractor.  In the event of (a) above, payment of the commission will be due within 30 days of the employment starting date.  In the event of (b) above, payment will be due at the end of any month during which the independent contractor performed services for Client.  Company, in the event of nonpayment and in connection with this section, shall be entitled to seek all remedies under law and equity.

8.4       No Exclusivity.  The parties expressly acknowledge that this Agreement does not create an exclusive relationship between the parties.  Client is free to engage others to perform services of the same or similar nature to those provided by Company and Company shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Company.

ARTICLE IX

WARRANTIES AND REPRESENTATIONS

9.1       By Client.  Client represents, warrants and covenants to Company that:

(a) Client owns all right, title, and interest in, or otherwise has full right and authority to permit the use of the Client Content,

(b) to the best of Client’s knowledge, the Client Content does not infringe the rights of any third party, and use of the Client Content as well as any Trademarks in connection with the Project does not and will not violate the rights of any third parties,

(c) Client shall comply with the terms and conditions of any licensing agreements which govern the use of Third Party Materials, and (d) Client shall comply with all laws and regulations as they relate to the Services and Deliverables.

 

9.2       By Company.

(a) Company hereby represents, warrants and covenants to Client that Company will provide the Services identified in Agreement in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services.

(b) Company further represents, warrants and covenants to Client that (i) except for Third Party Materials and Client Content, the Final Deliverables shall be the original work of Company and/or its independent contractors, (ii) in the event that the Final Deliverables include the work of independent contractors commissioned for the Project by Company, Company shall have secure agreements from such contractors granting all necessary rights, title and interest in and to the Final Deliverables sufficient for Company to grant the intellectual property rights provided in this Agreement, and (iii) to the best of Company’s knowledge, the Final Art provided by Company and Company’s subcontractor(s) does not infringe the rights of any party, and use of the same in connection with the Project will not violate the rights of any third parties.  In the event Client or third parties modify or otherwise use the Deliverables outside the scope or for any purpose not identified in the Proposal or this Agreement or contrary to the terms and conditions noted herein, all representations and warranties of Company shall be void.

(c) EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, COMPANY MAKES NO WARRANTIES WHATSOEVER.  COMPANY EXPLICITLY DISCLAIMS ANY OTHER WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS OF A PARTICULAR PURPOSE OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS APPLICABLE TO THE PROJECT.

ARTICLE X

INDEMNIFICATION/LIABILITY

10.1     By Client.  Client agrees to indemnify, defend, save and hold harmless Company from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Agreement.  Under such circumstances Company shall promptly notify Client in writing of any claim or suit that, (a) Client has sole control of the defense and all related settlement negotiations; and, (b) Company will provide Client with commercially reasonable assistance, information and authority necessary to perform Client’s obligations under this section.  Client will reimburse the reasonable out-of-pocket expenses incurred by Company in providing such assistance.

10.2     Limitations on Liability.  THE SERVICES AND THE WORK PRODUCT OF COMPANY ARE SOLD “AS IS” IN ALL CIRCUMSTANCES.  THE MAXIMUM LIABILITY OF COMPANY, ITS DIRECTORS, OFFICIERS, EMPLOYEES, COMPANY AGENTS AND AFFILIATES (“DESIGNER PARTIES”), TO CLIENT FOR DAMAGES FOR ANY AND ALL CAUSES WHATSOEVER, AND CLIENT’S MAXIMUM REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO 30% OF COMPANY’S GROSS BILLINGS FOR SERVICES RENERED PURSUANT TO THIS AGREEMENT.  IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTIAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVEV DAMAGES ARISING OUT OF OR RELATING TO THE MATERIALS OR THE SERVICES PROVIDED BY COMPANY, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

ARTICLE XI

TERM AND TERMINATION

11.1     This Agreement shall commence upon the Effective Date and shall remain effective until the Services are completed and delivered.

11.2     This Agreement may be terminated at any time by either party effective immediately upon notice, or the mutual agreement of the parties, or if any party:

(a) becomes insolvent, files a petition in bankruptcy, makes an assignment for the benefit of its creditors; or

(b) breaches any of its material responsibilities or obligations under this Agreement which breach is not remedied within ten (10) days from receipt of written notice of such breach.

11.3     In the event of termination, Company shall be compensated for the Services performed through the date of termination in the amount of (a) any advance payment, (b) a prorated portion of the fees due, or (c) hourly fees for work performed by Company or Company’s agents as of the date of termination, which ever is greater; and Client shall pay all Expenses, fees, together with any Additional Costs incurred through and up to the date of cancellation.

11.4     In the event of termination by Client and upon full payment of compensation as provided herein, Company grants to Client such right and title as provided for in Schedule A of this Agreement with respect to those Deliverables provided to, and accepted by Client as of the date of termination.

11.5     Upon expiration or termination of this Agreement:  (a) each party shall return or, at the disclosing party’s request, destroy the Confidential Information of the other party, and (b) other than as provided herein, all rights and obligations of each party under this Agreement, exclusive of the Services, shall survive.

 

 

ARTICLE XII

INTELLECTUAL PROPERTY PROVISIONS

12.1     RIGHTS TO DELIVERABLES OTHER THAN FINAL ART

Client Content. Client Content, including all pre-existing Trademarks, shall remain the sole property of Client or its respective suppliers, and Client or its suppliers shall be the sole owner of all rights in connection therewith.  Client hereby grants to Company a nonexclusive, nontransferable license to use, reproduce, modify, display and publish the Client Content solely in connection with Company’s performance of the Services and limited promotional uses of the Deliverables as authorized in this Agreement.

12.2     Third Party Materials.

12.2.1  All Third Party Materials are exclusive property of their respective owners.  Company shall inform Client of all Third Party Materials that may be required to be licensed and perform the Services or otherwise integrated into the Final Art.  Under such circumstances Company shall inform Client of any need to license, at Client’s expense, and unless otherwise provided for by Client, Client shall obtain the license(s) necessary to permit Client’s use of the Third Party Materials consistent with the usage rights granted herein.  In the event Client fails to properly secure or otherwise arrange for any necessary licenses or instructs the use of Third Party Materials, Client hereby indemnifies, saves and holds harmless Company from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand or action by a third party arising out of Client’s failure to obtain copyright, trademark, publicity, privacy, defamation or other releases or permissions with respect to materials included in the Project.

12.2.2  Client shall not copy any software provided by Company for Client’s use unless expressly permitted by the Agreement. Client shall not remove, modify or obscure any copyright, trademark or other proprietary rights notice that may appear on any software Company provides for Client’s use. Unless permitted by the terms of an open source software license and applicable law, Client may not reverse engineer, decompile or disassemble any software provided by Company for Client’s use. In the event the terms of an open source software license and the applicable law permits Client to reverse engineer, decompile or disassemble software provided Company for Client’s use, Client shall give Company written notice of its intention to perform such action at least ten (10) days prior to performing such action.

12.2.3  In the event Company agrees to install, patch otherwise manage software in reliance on Client’s license with a vendor of such software, then Client represents and warrants that Client has the requisite license agreement, in writing, with the software vendor that permits Company to perform the services requested by Client. Client shall provide Company with the written software license agreement prior to any services Company may perform for Client using such software. In the event Client fails to provide the required written software license Company may, (i) suspend any services to Client that require use of such software until the written software license is provided to Company, (ii) provide Client the services that require the use of such software, in reliance of any software licensing agreement Company may have with such software vendor and charge Client a fee for use of the software until Client provides its license agreement with such software vendor, or (iii) terminate the Agreement.

12.3     Preliminary Works.  Company retains all rights in and to all Preliminary Works.  Client shall return all Preliminary Works to Company within thirty (30) days of completion of Services and all right in and to any Preliminary Works shall remain the exclusive property of Company.

12.4     Original Artwork.  Company retains all rights and title in and to any original artwork comprising Final Art, including all rights to display or sell such artwork.  Client shall return all original artwork to Company within thirty (30) days of completion of the Services.

12.5     Trademarks.  Upon completion of the Services and expressly conditioned upon full payment of all fees, costs and out-of-pocket expenses due, Company assigns to Client all ownership rights, including any copyrights, in and to any artworks or designs comprising the works created by Company for use by Client as a Trademark.  Company shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence such assignment.  Client shall have sole responsibility for ensuring that any proposed trademarks or Final Deliverables intended to be a Trademark are available for use in commerce and federal registration and do not otherwise infringe the rights of any third party.  Client hereby indemnifies, saves and holds harmless Company from any and all damages, liabilities, costs, losses or expenses arising out of any claim, demand, or action by any third party alleging any infringement arising out of Client’s use and/or failure to obtain rights to use or use of the Trademark.

12.6     Company Tools.  All Company Tools are and shall remain the exclusive property of Company.  Company hereby grants to Client a nonexclusive, nontransferable (other than the right to sublicense such uses to Client’s web hosting or internet service providers), perpetual, worldwide license to use the Company Tools solely to the extent necessary with the Final Deliverables for the Project.  Client may not directly or indirectly, in any form or manner, decompile reverse engineer, create derivative works or otherwise disassemble or modify any Company Tools comprising any software or technology of Company.

12.7     RIGHTS TO FINAL ART

12.7.1  License for limited usage, no modification rights:

12.7.2  Upon completion of the Services, and expressly subject to full payment of all fees, costs and out-of-pocket expenses due, Company grants to Client the rights in the Final Art as delivered.  Any additional uses not identified herein require an additional license and may require an additional fee.  All other rights are expressly reserved by Company.  The rights granted to Client are for the usage of the Final Art in its original form only. Client may not crop, distort, manipulate, reconfigure, mimic, animate, create derivative works or extract portions or in any other manner, alter the Final Art.

With respect to such usage, Client shall have nonexclusive rights.

12.8     Liquidation for unlicensed use:

Client’s use of the Final Art shall be limited to the usage rights granted herein for the Project only.  Use of the Final Art Deliverables or any derivative works thereof by client at any other time or location, or for another project or outside the scope of the rights granted herein require an additional fee and Company shall be entitled to further compensation equal to Thirty percent (30%) of the original Project fee unless otherwise agreed in writing by both parties.  In the event of non-payment, Company shall be entitled to pursue all remedies under law and equity.

ARTICLE XIII

GENERAL

13.1     Modification/Waiver.  This Agreement may be modified by the parties.  Any modification of this Agreement must be in writing, except that Company’s invoices may include, and Client shall pay, expenses or costs that Client authorizes by electronic mail in cases of extreme time sensitivity.  Failure by either party to enforce any right or seek to remedy any breach under this Agreement shall not be construed as a waiver of such rights nor shall a waiver by either party of default in one or more instances be construed as constituting a continuing waiver or as a waiver of any other breach.

13.2     Notices.  All notices to be given hereunder shall be transmitted in writing either by facsimile or electronic mail with return confirmation of receipt or by certified or registered mail, return receipt requested, and shall be sent to the addresses indentified below, unless notification of change of address is given in writing.  Notice shall be effective upon receipt or in the case of fax or email, upon confirmation of receipt.

13.3     No Assignment.  Neither party may assign, whether in writing or orally, or encumber its rights or obligations under this Agreement or permit the same to be transferred, assigned or encumbered by operation of law or otherwise, without the prior written consent of the other party.

13.4     Force Majeure.  Company shall not be deemed in breach of this Agreement if Company is unable to complete the Services or any portion thereof by reason of fire, earthquake, labor dispute, act of God or public enemy, death, illness or incapacity of Company or any local, state, federal, national or international law, governmental order or regulation or any other event beyond Company’s control (collectively “Force Majeure Event”).  Upon occurrence of any Force Majeure Event, Company shall give notice to Client of its inability to perform or of delay in completing the Services and shall propose revisions to the schedule for completion of the Services.

13.5     Governing Law and Dispute Resolution.  The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and the state of Maryland without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction.  In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. Client agrees and consents that any action or proceeding arising out of or brought to enforce any provision of this Agreement shall be brought, at the Company’s discretion, in either the District Court for Wicomico County or the Circuit Court for Wicomico County, Maryland. Client consents to service of process by mail.  Client acknowledges that Company will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that Company shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.

13.6     Severability.  Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement shall nevertheless remain in full force and effect and the invalid or unenforceable provision shall be replaced by a valid or enforceable provision.

13.7     Headings.  The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.

13.8     Integration.  This Agreement comprises the entire understanding of the parties hereto on the subject matter herein contained, and supersedes and merges all prior and contemporaneous agreements, understandings and discussions between the parties relating to the subject matter of this Agreement.  In the event of a conflict between the Proposal and any other Agreement documents, the terms of the Proposal shall control.   This Agreement comprises this Basic Terms and Conditions document, the Proposal, and Schedule A.

Acceptable Use Police (AUP)

This AUP is incorporated by reference in your hosting services agreement with Matice Interactive.

Your services may be suspended or terminated for violation of this AUP in accordance with your hosting services agreement with Matice Interactive.

Capitalized terms used in this AUP shall have the meaning given in your hosting services agreement.

Inquiries regarding this policy should be directed to abuse@MaticeInteractive.com.

Abuse

You may not use Matice Interactive's network or services to engage in, foster, or promote illegal, abusive, or irresponsible behavior, including:

* Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network;

* Monitoring data or traffic on any network or system without the express authorization of the owner of the system or network;

* Interference with service to any user of the Matice Interactive or other network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks;

* Use of an Internet account or computer without the owner's authorization;

* Collecting or using email addresses, screen names or other identifiers without the consent of the person identified (including, without limitation, phishing, Internet scamming, password robbery, spidering, and harvesting);

* Collecting or using information without the consent of the owner of the information;

* Use of any false, misleading, or deceptive TCP-IP packet header information in an email or a newsgroup posting;

* Use of the service to distribute software that covertly gathers information about a user or covertly transmits information about the user;

* Use of the service for distribution of advertisement delivery software unless: (i) the user affirmatively consents to the download and installation of such software based on a clear and conspicuous notice of the nature of the software, and (ii) the software is easily removable by use of standard tools for such purpose included on major operating systems; (such as Microsoft's "ad/remove" tool); or

* Any conduct that is likely to result in retaliation against the Matice Interactive network or website, or Matice Interactive's employees, officers or other agents, including engaging in behavior that results in any server being the target of a denial of service attack (DoS).

Bulk Email

You may not use a Matice Interactive Mail Service (such as Matice Interactive Email or Matice Interactive's Microsoft Exchange) to send bulk mail. Please see the applicable Product Terms and Conditions for those services. You may use your dedicated hosted system to send bulk mail, subject to the restrictions in this Acceptable Use Policy.

Mail Requirements

You must comply with the CAN-SPAM Act of 2003 and other laws and regulations applicable to bulk or commercial email. In addition, your bulk and commercial email must meet the following requirements:

* Your intended recipients have given their consent to receive email from you via some affirmative means, such as an opt-in procedure;

* Your procedures for seeking consent include reasonable means to ensure that the person giving consent is the owner of the email address for which consent is given;

* You retain evidence of each recipient's consent in a form that can be promptly produced on request, and you honor recipient's and Matice Interactive's requests to produce consent evidence within 72 hours of receipt of the request;

* You have procedures in place that allow a recipient to revoke their consent - such as a link in the body of the email, or instructions to reply with the word "Remove" in the subject line; you honor revocations of consent within 48 hours, and you notify recipients that the revocation of their consent will be implemented in 48 hours;

* You must post an email address for complaints (such as abuse@yourdoman.com) in a conspicuous place on any website associated with the email, you must register that address at abuse.net, and you must promptly respond to messages sent to that address;

* You must have a Privacy Policy posted for each domain associated with the mailing;

* You have the means to track anonymous complaints;

* You may not obscure the source of your email in any manner, such as omitting, forging, or misrepresenting message headers or return addresses. Your email must include the recipients email address in the body of the message or in the "TO" line of the email;

* The subject line of the email must clearly describe the subject matter contained in the email, and the message must include valid contact information; and

* You must not attempt to send any message to an email address if 3 consecutive delivery rejections have occurred and the time between the third rejection and the first rejection is longer than fifteen days.

These policies apply to messages sent using your Matice Interactive services, or to messages sent from any network by you or any person on your behalf that directly or indirectly refer the recipient to a site or an email address hosted via your Matice Interactive service. In addition, you may not use a third party email service that does not practice similar procedures for all its customers. These requirements apply to distribution lists prepared by third parties to the same extent as if the list were created by you.

Matice Interactive may test and otherwise monitor your compliance with its requirements. Matice Interactive may block the transmission of email that violates these provisions. Matice Interactive may, at its discretion, require certain customers to seek advance approval for bulk and commercial email, which approval will not be granted unless the customer can demonstrate that all of the requirements stated above will be met.

Unsolicited Communications

You may not use your service to send email or any other communications to a person who has indicated that they do not wish to receive it. If the communication is bulk mail, then you will not be in violation of this section if you comply with the 48 hour removal requirement described above.

Vulnerability Testing

You may not attempt to probe, scan, penetrate or test the vulnerability of a Matice Interactive system or network, or to breach Matice Interactive's security or authentication measures, whether by passive or intrusive techniques, without Matice Interactive's express written consent.

Newsgroup, Chat Forums, Other Networks

You must comply with the rules and conventions for postings to any bulletin board, chat group or other forum in which you participate, such as IRC and USENET groups including their rules for content and commercial postings. These groups usually prohibit the posting of off-topic commercial messages, or mass postings to multiple forums.

You must comply with the rules of any other network you access or participate in using your Matice Interactive services.

Offensive Content

You may not publish, transmit or store on or via Matice Interactive's network and equipment any content or links to any content that Matice Interactive reasonably believes:

* Constitutes, depicts, fosters, promotes or relates in any manner to child pornography, bestiality, or non-consensual sex acts;

* is excessively violent, incites violence, threatens violence, or contains harassing content or hate speech;

* is unfair or deceptive under the consumer protection laws of any jurisdiction, including chain letters and pyramid schemes;

* is defamatory or violates a person's privacy;

* creates a risk to a person's safety or health, creates a risk to public safety or health, compromises national security, or interferes with a investigation by law enforcement;

* improperly exposes trade secrets or other confidential or proprietary information of another person;

* is intended to assist others in defeating technical copyright protections;

* infringes on another person's copyright, trade or service mark, patent, or other property right;

* promotes illegal drugs, violates export control laws, relates to illegal gambling, or illegal arms trafficking;

* is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to Matice Interactive; or

* is otherwise malicious, fraudulent, or may result in retaliation against Matice Interactive by offended viewers or recipients, or is intended to harass or threaten.

Content "published or transmitted" via Matice Interactive's network or equipment includes Web content, email, bulletin board postings, chat, tweets, and any other type of posting or transmission that relies on the Internet.

Live Events

You may not use your Matice Interactive services to stream live sex acts of any kind, even if the content would otherwise comply with the AUP. Matice Interactive may prohibit you from streaming other live events where there is a special risk, in Matice Interactive's reasonable discretion, that the event may violate the Offensive Content section above.

Copyrighted Material

You may not use Matice Interactive's network or services to download, publish, distribute, or otherwise copy or use in any manner any text, music, software, art, image, or other work protected by copyright law unless:

* you have been expressly authorized by the owner of the copyright for the work to copy the work in that manner; or

* you are otherwise permitted by established copyright law to copy the work in that manner.

It is Matice Interactive's policy to terminate in appropriate circumstances the services of customers who are repeat infringers.

Shared Systems

You may not use any shared system provided by Matice Interactive in a way that unnecessarily interferes with the normal operation of the shared system, or that consumes a disproportionate share of the resources of the system. For example, we may prohibit the automated or scripted use of Matice Interactive Mail Services if it has a negative impact on the mail system, or we may require you to repair coding abnormalities in your Cloud-hosted code if it unnecessarily conflicts with other Cloud customers' use of the Cloud. You agree that we may quarantine or delete any data stored on a shared system if the data is infected with a virus, or is otherwise corrupted, and has the potential to infect or corrupt the system or other customers' data that is stored on the same system.

Other

* You must have valid and current information on file with your domain name registrar for any domain hosted on the Matice Interactive network.

* You may only use IP addresses assigned to you by Matice Interactive in connection with your Matice Interactive services.

* You agree that if the Matice Interactive IP numbers assigned to your account are listed on an abuse database like Spamhaus, you will be in violation of this AUP, and Matice Interactive may take reasonable action to protect its IP numbers, including suspension and/or termination of your service, regardless of whether the IP numbers were listed as a result of your actions:

SLA

No credit will be available under a Matice Interactive service level guaranty or agreement for interruptions of service resulting from AUP violations.

©2010 Matice Interactive

April 5, 2010 revision

HIPAA Business Associate Agreement

This HIPAA Business Association Addendum (this "HIPAA Addendum") is an addendum to the General Terms and Conditions. This HIPAA Addendum defines the rights and responsibilities of each of us with respect to Protected Health Information as defined in the Health Insurance Portability and Accountability Act of 1996 and the regulations promulgated thereunder, as each may be amended from time to time (collectively, "HIPAA"). This Agreement shall be applicable only in the event and to the extent Matice Interactive meets, with respect to you, the definition of a Business Associate set forth at 45 C.F.R. §160.103, or applicable successor provisions.
1. Defined Terms. For the purposes of this HIPAA Addendum, capitalized terms shall have the following meanings:

"Agreement" shall mean the Service Description, the General Terms and Conditions, the Product Terms and Conditions, any Matice Interactive Addendum to the General Terms and Conditions (including this HIPAA Addendum), and the AUP, collectively, as each of those terms is defined in the General Terms and Conditions.

"Business Associate" shall mean Matice Interactive US, Inc., d/b/a Matice Interactive.

"CFR" shall mean the Code of Federal Regulations.

"Individual" shall have the same meaning as the term "individual" in 45 CFR § 164.501 and shall include a person who qualifies as a personal representative in accordance with 45 CFR § 164.502(g).

"Privacy Rule" shall mean the Standards for Privacy of Individually Identifiable Health Information at 45 CFR part 160 and part 164, subparts A and E.

"Protected Health Information" shall have the same meaning as the term "protected health information" in 45 CFR § 164.501, limited to the information received by Business Associate from or on behalf of Customer.

"Required By Law" shall have the same meaning as the term "required by law" in 45 CFR § 164.501.

"Secretary" shall mean the Secretary of the Department of Health and Human Services or his or her designee.

2. Obligations and Activities of Business Associate.

(a) Business Associate shall not use or disclose Protected Health Information other than as permitted or required by this HIPAA Addendum or as permitted or Required by Law.

(b) Business Associate agrees to provide those physical, technical, and administrative safeguards described in the General Terms and Conditions and the other parts of the Agreement including those safeguards selected by you and described in the Service Description. You acknowledge that you are solely responsible for selecting appropriate safeguards as required to comply with the Privacy Rule.

(c) Business Associate agrees to mitigate, to the extent reasonably practicable, any harmful effect that is known to Business Associate of a use or disclosure of Protected Health Information by Business Associate or its agents or subcontractors in violation of the requirements of this HIPAA Addendum.

(d) Business Associate agrees to report to you any impermissible acquisition, access, use or disclosure of Protected Health Information of which it becomes aware without unreasonable delay, and in no case later than sixty (60) calendar days after discovery of the acquisition, access, use or disclosure.

(e) Business Associate agrees to obtain from any agent, including a subcontractor to whom it provides Protected Health Information, reasonable assurances that it will adhere to the same restrictions and conditions that apply to Business Associate under this HIPAA Addendum with respect to such information.

(f) All Protected Health Information maintained by Business Associate for you will be available to you in a time and manner that reasonably allows you to comply with the requirements under 45 CFR § 164.524. Business Associate shall not be obligated to provide any such information directly to any Individual or person other than you.

(g) All Protected Health Information and other information maintained by Business Associate for you will be available to you in a time and manner that reasonably allows you to comply with the requirements under 45 CFR § 164.526.

(h) Business Associate agrees to make internal practices, books, and records available to the Secretary, in a time and manner designated by the Secretary, for purposes of the Secretary's determining your compliance with the Privacy Rule; provided, however, that time incurred by Business Associate in complying with any such request that exceeds its normal customer service parameters shall be charged to you at Business Associate's then current standard hourly rate for Supplemental Services.

(i) You acknowledge that Business Associate is not required by this HIPAA Addendum to make disclosures of Protected Health Information to Individuals or any person other than you, and that Business Associate does not, therefore, expect to maintain documentation of such disclosure as described in 45 CFR § 164.528. In the event that Business Associate does make such disclosure, it shall document the disclosure as would be required for you to respond to a request by an Individual for an accounting of disclosures in accordance with 45 CFR §164.528, and shall provide such documentation to you promptly on your request.

3. Permitted Uses and Disclosures by Business Associate. Except as otherwise limited in this HIPAA Addendum or other portion of the Agreement, Business Associate may use or disclose Protected Health Information to perform functions, activities, or services for, or on behalf of, you as specified in the Agreement, provided that such use or disclosure would not violate the Privacy Rule if done by you.

4. Specific Use and Disclosure Provisions. Except as otherwise limited in this HIPAA Addendum or other portion of the Agreement, Business Associate may:

(a) use Protected Health Information for the proper management and administration of Business Associate or to carry out its legal responsibilities;

(b) disclose Protected Health Information for the proper management and administration of Business Associate, provided that disclosures are (i) Required By Law, or (ii) Business Associate obtains reasonable assurances from the person to whom the information is disclosed that it will remain confidential and used or further disclosed only as Required By Law or for the purpose for which it was disclosed to the person, and the person will notify Business Associate of any instances of which it is aware in which the confidentiality of the information has been breached; and

(c) use Protected Health Information to report violations of law to appropriate Federal and State authorities, consistent with §164.502(j)(1).

5. Your Obligations. You shall notify Business Associate of:

(a) any limitations(s) in your notice of privacy practices in accordance with 45 CFR § 164.520 to the extent that such changes may affect Business Associate's use or disclosure of Protected Health Information;

(b) any changes in, or revocation of, permission by Individual to use or disclose Protected Health Information, to the extent that such changes may affect Business Associate's use or disclosure of Protected Health Information; and

(c) any restriction to the use or disclosure of Protected Health Information that you have agreed to in accordance with 45 CFR § 164.522, to the extent that such restriction may affect Business Associate's use or disclosure of Protected Health Information.

You agree that you will not request Business Associate to use or disclose Protected Health Information in any manner that would not be permissible under the Privacy Rule if done by you.

6. Term and Termination.

(a) The term of this HIPAA Addendum shall continue for the term of the Agreement and following termination of the Agreement until all Protected Health Information is destroyed or returned to you or your designee.

(b) Breach of this HIPAA Addendum shall be a material breach of this Agreement giving rise to a right of termination under the Master Services Agreement.

(c) Upon termination of the Agreement for any reason Business Associate shall destroy all Protected Health Information. This provision shall apply to Protected Health Information that is in the possession of subcontractors or agents of Business Associate as well as Business Associate itself. Business Associate shall retain no copies of the Protected Health Information. In the event that Business Associate determines that destroying the Protected Health Information is infeasible, Business Associate shall promptly provide you notification of the conditions that make return or destruction infeasible. Business Associate shall extend the protections of this Agreement to such Protected Health Information and limit further uses and disclosures of such Protected Health Information to those purposes that make the destruction infeasible, for so long as Business Associate maintains such Protected Health Information. You shall bear the cost of storage of such Protected Health Information for as long as storage by Business Associate is required. This Section does not require Business Associate to segregate any Protected Health Information from other information maintained by you on Business Associate's servers and Business Associate may comply with this requirement by returning or destroying all of the information maintained on its servers by you.

7. Miscellaneous.

(a) Amendment. Each of us agrees to take such action as is reasonably necessary to amend this HIPAA Addendum from time to time as is necessary for you to comply with the requirements of HIPAA as they may be amended from time to time; provided, however, that if such an amendment would materially increase the cost of Business Associate providing service under the Agreement, Business Associate shall have the option to terminate the Agreement on thirty (30) days advance notice.

(b) Survival. Our respective rights and obligations under this HIPAA Addendum shall survive the termination of the Agreement.

(c) Interpretation. Any ambiguity in the Agreement shall be resolved to permit you to comply with HIPAA and the Privacy Rule.

January 31, 2010 revision

©2011 Matice Interactive