Upon Customer's acknowledgement, Customer engages MicroD under the following Terms & Conditions ("Agreement") to construct, design, develop, host, and provide maintenance to a website for Customer's business (the "Website Project") as described on the "Scope of Work" provided to Customer.
- Scope Of Work.
Customer acknowledges that it has separately received the Scope of Work, including a Project Schedule and Fee Schedule. If, following approval, Customer wishes to make changes to the Scope of Work, MicroD will generate a change order amending the Scope of Work and setting forth any additional charges. MicroD shall not be required to perform any work in addition to the Scope of Work without Customer's signed acceptance of change order.
- 1.1 Project Schedule. Customer acknowledges that it has separately received the Project Schedule with the Scope of Work, including a delivery schedule. MicroD shall have no responsibility or liability for delays caused by affiliates, contractors, Customer or other third parties, or delays otherwise beyond the reasonable control of MicroD. To meet Project Schedule:
- Customer shall provide passwords and all secure information within 24 hours of request.
- Customer shall respond within 24 hours to action items that MicroD generates.
- MicroD may treat Customer's failure to respond beyond 30 days as a project pause; Customer shall still be responsible for fees due.
- 1.2 Authorization. Customer authorizes MicroD to take any and all actions MicroD deems necessary or desirable to accomplish the Website Project (including without limitation accessing accounts, directories, intellectual property, databases; submission of the Website Project to web search engines and other directories; and hiring subcontractors to perform services or provide products, etc.) as set forth in Scope of Work. The Customer shall allow or direct its host provider to allow MicroD "write permission" for the Customer's web page directory, cgi-bin directory, and any other directories or programs, which need to be accessed for this project.
- 1.3 Support And Training. MicroD shall provide support and training to Customer in accordance with the Fee Schedule provided with the Scope of Work after the Website Project is live. Customer support and training includes basic updating and coaching/training on items that Customer can access on the website user interface.
By signing this Agreement, Customer agrees an "Initial Term" of this Agreement of 12 months, commencing on the date Customer acknowledges and accepts this Agreement. At the expiration of the Initial Term, this Agreement will automatically renew for successive 1 month Terms, unless one party provides prior written notice of its intent not to renew this Agreement. The Agreement will then terminate at the end of the Term that is current 30 days after the written notice is delivered.
- CUSTOMER RESPONSIBILITY.
Customer shall provide content requested by MicroD in format requested by MicroD in a timely manner in order to fit the Project Schedule. In order for MicroD to launch the Website Project according to the Project Schedule, Customer must approve the designs according to the Project Schedule. If Customer fails to provide content in a timely manner, MicroD may develop content at Customer expense. If Customer causes any delays in the Project Schedule, then (a) MicroD may amend the Project Schedule, including a new delivery date, as determined in MicroD's discretion, and (b) notwithstanding the delay, impose the monthly Recurring Fees described in the Fee Schedule.
- 4.1 Customer acknowledges that it has separately received the Fee Schedule in conjunction with the Statement of Work, which includes both "Initial Fees" and "Recurring Fees." Initial Fees shall be due and payable upon acknowledgement of this Agreement. Recurring Fees, such as monthly license and hosting fees, shall be due and payable upon invoice or on the first business day of the month in advance of the service month. Recurring Fees may be charged to Customer's credit card or drafted from Customer's bank account in advance. Recurring fees shall be pro rated for the first month. All payments under this Agreement will be made in U.S. Dollars.
- 4.2 If Customer fails to make any payments owing to MicroD within 30 days following the due date, or any payment is rejected by the bank or credit card company, MicroD shall be entitled to impose (a) a $35 administrative charge; (b) interest at the lesser of 18% per annum (compounded and charged monthly) on the amount of the late payment(s) or the maximum rate that may be charged under applicable law, and (c) the costs and expenses to collect the payments owed.
- 4.3 MicroD agrees to provide at least 30 days prior notice of material price changes for recurring fees. Any price change shall not take effect until the beginning of the next occurring Term.
- TERMINATION OR SUSPENSION.
Either party may terminate this Agreement for material breach, including without limitation Customer's non-payment, by providing 5 days written notice to the breaching party. Notwithstanding the termination of this Agreement, the non breaching party shall have all rights and remedies available under this Agreement and applicable law. Customer may terminate this Agreement without cause prior to the initial 12 month term by (a) providing MicroD 30 days prior written notice; (b) payment in full of all amounts due to MicroD through a lump sum all fees due during the Initial Term.
In addition, MicroD reserves the right to cease development, design, maintenance, hosting, or any other service with respect to the Website Project until all past due payments are paid in full. In addition to all other rights and remedies available to it, MicroD shall have the right to terminate this Agreement upon Customer's failure to pay any amount owed under this Agreement and collect all Initial Fees and Recurring Fees unpaid or due during the then current Term.
- INTELLECTUAL PROPERTY.
- 6.1 Customer represents and warrants that it has obtained, and is otherwise responsible for securing, all necessary licenses, permits, and permissions, as applicable, for any copyright, trademark, or other intellectual property that is supplied to or gathered by MicroD from vendors, manufacturers, distributors, suppliers and any other parties (collectively "Suppliers") whose items, logos, narrative and product content Customer wishes to display, and intends to use, on its Website Project. Customer shall inform MicroD in writing of any changes required to conform to these rights. MicroD's implementation of those changes may be subject to additional charges, as determined by MicroD in its discretion. In the event MicroD is contacted by a Supplier requesting the removal of any item (e.g., SKUs, Logos, pictures, etc.) from Customer's Website Project, MicroD will promptly notify Customer and may, in MicroD's discretion, immediately and temporarily remove the item. Customer shall have 5 business days to resolve the dispute with the Supplier and cause Supplier to withdraw or modify Supplier's request to MicroD. Without written resolution from the Supplier, MicroD will permanently remove the items(s) in dispute.
- 6.2 All material, including without limitation, texts, graphics, photos, designs, trademarks, and artwork, gathered and implemented by MicroD in the Website Project shall become part of the MicroD platform and, except for Customer-specific images, may not be removed by Customer upon termination of this Agreement.
- 6.3 All intellectual property content and materials provided by MicroD, including without limitation any code, programming, software, graphics, photographs, designs, artwork, images and text, is and will remain the property of MicroD. All intellectual property rights to the completed Website Project and the webpages produced in connection therewith are and will remain owned solely by MicroD. Customer shall have a non-transferable limited license to use the Website Project for the duration of this Agreement and Customer shall not reproduce or reuse this material in any manner whatsoever without the express written consent of MicroD. If this Agreement terminates, MicroD shall have continuing rights to all intellectual property and material placed on the design platform, except for Customer-specific images.
- 6.4 CUSTOMER AGREES AND ACKNOWLEDGES THAT IT SHALL BE SOLELY RESPONSIBLE, AND MICROD SHALL NOT BE RESPONSIBLE OR LIABLE WHATSOEVER, FOR ERRONEOUS OR INACCURATE INFORMATION OR CONTENT (INCLUDING WITHOUT LIMITATION PRICING INFORMATION FOR PRODUCTS OR SERVICES DISPLAYED ON THE WEBSITE PROJECT), AND CUSTOMER HEREBY AGREES TO INDEMNIFY, PROTECT, DEFEND, AND HOLD HARMLESS MICROD, ITS SHAREHOLDERS, AGENTS, REPRESENTATIVES, AND EMPLOYEES, FROM ANY LIABILITY WHATSOEVER (INCLUDING WITHOUT LIMITATION ATTORNEY'S FEES AND COURT COSTS), INCLUDING ANY CLAIM OR SUIT, THREATENED OR ACTUAL, ARISING FROM MICROD'S RELIANCE ON CUSTOMER'S WARRANTY OR USE OF ANY INFRINGING, ERRONEOUS OR INACCURATE INFORMATION OR CONTENT.
- 6.5 For product demonstrations as well as during Website Project implementation, MicroD may use certain images for illustration purpose. Such imagery used on a demonstration site or on Customer's site is for illustrative purposes only, and MicroD makes no representation or warranty that imagery used on a demonstration site or Customer's site is available for Customer's use without proper written authorization from the owner or supplier of image or images. MicroD retains the right, even after termination of this Agreement, to display graphics and other intellectual property content and material as examples of its work in its portfolios and other marketing materials.
MicroD shall use reasonable efforts to ensure that the Website Project pages it designs will display in current compliant browsers, under the standard moderated by the World Wide Web Consortium automatic validation tools for HTML, XHTML and their variants. Notwithstanding the foregoing sentence, MicroD shall not be responsible or liable for pages that do not display well in newer versions of browsers or other specific browsers. Customer understands and agrees that no website will look and function identically in all browsers and operating systems.
- SEARCHING ON THE INTERNET.
MicroD shall use reasonable efforts to create online exposure of the Website Project on the Internet. Customer acknowledges that no party or parties have control of the Internet, its search algorithms, or results based on Internet search engine practices, services or procedures. CUSTOMER ACKNOWLEDGES THAT MICROD AND ITS AGENTS AND REPRESENTATIVES DISCLAIM ANY WARRANTY OR GUARANTEE, EXPRESSED OR IMPLIED, REGARDING THE WEBSITE PROJECT SEARCH ENGINE RANKING, TRAFFIC RESULTS, REVENUE FROM SEARCH OR ADVERTISING RESULTS, OR TIMING OR DURATION OF RESULTS. MicroD makes no representations or warranties as to the amount of traffic to or interest in the Project Website, any increase or change in Customer's sales or profits, or the accessibility to the Project Website by all browsers or operating systems.
Each party agrees not to disclose, copy or use for any purpose other than the performance of this Agreement, and to treat as confidential and proprietary, all information which relates to the other's technology, content, data, research and development, business affairs, pricing or the other terms of this Agreement ("Confidential Information"). Each shall protect the Confidential Information of the other with the same degree of care it exercises to protect its own confidential information and to prevent such information's unauthorized disclosure. In no event, however, shall less than a reasonable standard of care be used. The foregoing shall not apply to information that is (a) publicly available, (b) rightfully obtained from a third party, or (c) required to be disclosed by a regulatory or governmental action, provided that the party subject to that action promptly provides advanced written notice to the other of any such disclosure requirement. The terms of this Section shall survive termination of this Agreement.
MicroD shall is not responsible for security breaches or for security flaws by the designers, software creators or other third parties whose products or services are used in connection with the Website Project. MicroD is not responsible for patching any software that has been installed to the Website Project without MicroD's knowledge.
- WARRANTY LIMITATIONS.
MICROD REPRESENTS AND WARRANTS THAT IT SHALL MAKE REASONABLE EFFORTS TO CORRECT ERRORS IN THE SERVICES PROVIDED BY MICROD. EXCEPT AS SET FORTH IN THE IMMEDIATELY PRECEDING SENTENCE, MICROD MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF ANY KIND (TO THE EXTENT ALLOWED BY APPLICABLE LAW), INCLUDING WITHOUT LIMITATION WARRANTIES OF NON INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MICROD DOES NOT WARRANT THAT THE OPERATION OF THE WEBSITE PROJECT AND SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. CUSTOMER ASSUMES RESPONSIBILITY TO TAKE ADEQUATE PRECAUTIONS AGAINST DAMAGES TO ITS OPERATIONS WHICH COULD BE CAUSED BY DEFECTS OR DEFICIENCIES IN THE SERVICES DESCRIBED HEREIN. THE TERMS OF THIS SECTION SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
- LIMITATION OF DAMAGES.
IN NO EVENT SHALL MICROD – DEFINED FOR PURPOSES OF THIS SECTION TO INCLUDE ANY AFFILIATE COMPANY OR ANY OF ITS OR THEIR OFFICERS, DIRECTORS, REPRESENTATIVES, SHAREHOLDERS, EMPLOYEES, AGENTS, OR SUBCONTRACTORS – BE LIABLE FOR ANY FORM OF DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR SAVINGS, LOSS OF USE OF THE SERVICES, COST OF CAPITAL, COST OF SUBSTITUTE SERVICES, DOWNTIME COSTS AND THIRD PARTY CLAIMS, ARISING IN CONNECTION WITH THIS AGREEMENT, THE SERVICES PROVIDED HEREUNDER, AND/OR THE USE THEREOF, UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL THEORY, EVEN IF MICROD HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ANY DAMAGES WHICH MAY BE ASSESSED AGAINST MICROD FOR ANY REASON EXCEED THE PRICE PAID TO MICROD BY CUSTOMER FOR THE SPECIFIC SERVICES WHICH ARE THE BASIS FOR THE CLAIM.
- APPLICABLE LAW AND VENUE.
This Agreement has been entered into in North Carolina and shall be governed by and interpreted and enforced in accordance with the laws of North Carolina, without reference to rules governing choice of laws. Any action or dispute relating to or arising out of this Agreement shall be brought exclusively in North Carolina, and Customer hereby consents to the personal jurisdiction of the federal and state courts of North Carolina.
- LAWS AFFECTING ELECTRONIC COMMERCE; TAXES.
Customer is solely responsible for complying with all laws, taxes and tariffs enacted by any governmental authority that affect Internet and electronic commerce, and that Customer will indemnify, protect, defend and hold harmless MicroD from any claim, suit, penalty, tax or tariff arising from Customer's use of Internet or electronic commerce. Customer shall be responsible for all sales and use taxes in connection with this Agreement.
Any notice, direction or other communication given under this Agreement shall be in writing and sent via e-mail or via regular mail. In the case of e-mail, valid notice shall have been deemed to have been given only when an electronic confirmation of delivery has been obtained by the sender. E-mail notice to MicroD shall be sent to email@example.com or an authorized representative. E-mail notice to Customer shall be sent to the e-mail address provided by Customer in this Agreement, in Customer's WHOIS record for the Website Project domain name, or as updated from time to time so long as MicroD is given written notice of such change. Regular mail shall be sent to MicroD at MicroD, 1985 Tate Blvd. SE, Ste 301, Hickory, NC 28602. Regular mail shall be sent to Customer at the mailing address provided in this Agreement or as updated in writing and delivered to MicroD. Any e-mail communication shall be deemed to have been validly and effectively given on the date such communication was delivered, provided such date is a business day and such delivery was made prior to 4:00 p.m. Eastern Standard Time, and otherwise on the next business day. Any communication sent via regular mail shall be deemed to have been validly and effectively given 15 business days after the date of mailing. MicroD shall not be responsible or liable for not responding to lost or stolen mail and respectfully requests that Customer call, e-mail or fax MicroD one business day after the date of mailing to ensure MicroD is aware of any inbound mail.
During the term of this Agreement, including any renewals thereof, and for a period of one year following termination of this Agreement, neither Customer nor any of Customer's personnel will employ, or solicit or offer employment to, any of MicroD's employees or contractors, directly or indirectly, on a full-time, part-time or temporary basis, or hire as a contractor any such person's services without prior written consent of MicroD.
If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid for any reason, such invalidity shall not affect any other provision of this Agreement. Such remaining provisions shall be fully severable, and this Agreement shall be construed and enforced as if such invalid provision had never been inserted in this Agreement.
The headings of paragraphs are solely for convenience of reference, and the text shall control in the event of any conflict between the headings and the text of this Agreement.
This Agreement shall be binding upon the parties, their successors, and assigns. Customer shall not assign this Agreement without the express written consent of MicroD.
- SOLE AGREEMENT.
This Agreement including the referenced Statement of Work, Project Schedule and Fee Schedule, constitutes the sole agreement between Customer and MicroD regarding the Website Project, and any additional work not specified in this Agreement or any other amendment or modification to this Agreement must be authorized in accordance with this Agreement.
Last Updated: 2/15/2018