General

Atomic Interactive will carry out work only where an agreement is provided either by email, telephone, mail or fax. Atomic Interactive will carry out work only for clients who are 18 years of age or above. An ‘order’ is deemed to be a written or verbal contract between Atomic Interactive and the client, this includes telephone, fax and email agreements.

Website Design

While every endeavor will be made to ensure that the website and any scripts or programs are free of errors, Atomic Interactive cannot accept responsibility for any losses incurred due to malfunction, the website or any part of it.

The website, graphics and any programming code remain the property of Atomic Interactive until all outstanding accounts are paid in full. Any scripts, applications, php scripts, custom functionality, source files, or software (unless specifically agreed) written by Atomic Interactive remain the copyright of Atomic Interactive and may only be commercially reproduced or resold with the permission of Atomic Interactive.

Atomic Interactive cannot take responsibility for any copyright infringements caused by materials submitted by the client. We reserve the right to refuse any material of a copyrighted nature unless adequate proof is given of permission to use such material.

Any additions to the scope provided will be carried out at the discretion of Atomic Interactive and where no charge is made by Atomic Interactive for such additions, Atomic Interactive accept no responsibility to ensure such additions are error free and reserve the right to charge an according amount for any correction to these or further additions.

The client agrees to make available as soon as is reasonably possible to Atomic Interactive all materials required to complete the site to the agreed standard and within the set deadline.

Atomic Interactive will not be liable for costs incurred, compensation or loss of earnings due to the failure to meet agreed deadlines.

Atomic Interactive will not be liable or become involved in any disputes between the site owner and their clients and cannot be held responsible for any wrongdoing on the part of a site owner. eg. Any disputes re content/images that have been provided to us for inclusion on the site.

Atomic Interactive will not be liable for any costs incurred, compensation or loss of earnings due to the work carried out on behalf of the client or any of the clients appointed agents.

Atomic Interactive will not be liable for any costs incurred, compensation or loss of earnings due to the unavailability of the site, its servers, software or any material provided by its agents.

A non-refundable deposit of 50% is required with all of our projects before any planning, design or development work will be carried out.

Once a website has been designed and completed the final balance of payment is then due in accordance with our payment terms. There are no exceptions to this, i.e If the client decides they no longer want the site, as they have commissioned the work and paid a deposit they are still obliged to pay for the work that has been done. Non payment will result in legal action being taken if necessary. Once full payment is received for a website, it is assumed that the project has been completed to the clients satisfaction and no refunds can be offered. We do offer free maintenance for one month following the completion to allow for any final amendments (bug fixes) that may be required.

Database, Application and E-Commerce Development

Atomic Interactive cannot take responsibility for any losses incurred by the use of any software created for the client. Whilst every care has been taken to ensure products are problem free and accurate, the ultimate responsibility lies with the client in ensuring that all software is functioning correctly before use.

Any scripts, applications or software (unless specifically agreed) written by Atomic Interactive remain the copyright of Atomic Interactive and may only be commercially reproduced or resold with the permission of Atomic Interactive.

Where applications or sites are developed on servers not recommended by Atomic Interactive, the client is expected to provide or seek any information, additional software, support or co-operation pertaining to the server required in order for the application to be correctly developed. Where large applications are to be developed, it is the clients responsibility to provide a suitable testing environment which is identical to the final production environment.

The client is expected to test fully any application or programming relating to a site developed by Atomic Interactive before being made generally available for use. Where “bugs”, errors or other issues are found after the site is live, Atomic Interactive will endeavor (but is not obliged to) to correct these issues to meet the standards of function outlined in the brief

Compatibility

Atomic Interactive will endeavor to ensure that any developed/designed site or application will function correctly on the server it is initially installed in and that it will function correctly when viewed with the latest 2 stable versions of the following web browsing software (Internet Explorer, Firefox, Chrome and Safari). Since browsers are created by third party companies Atomic Interactive can offer no guarantees of correct function with all browser software available.

Website Hosting

Whilst Atomic Interactive recommends hosting companies to host websites, no guarantees can be made as to the availability or interruption of this service by Atomic Interactive cannot accept liability for losses caused by the unavailability, malfunction or interruption of this service, or for loss of turnover, sales, revenue, profits or indirect, consequential or special loss.

Atomic Interactive reserve the right to refuse to handle in any way, material which may be deemed offensive, illegal or in any way controversial, and also to terminate the free hosting service should the necessity arise.

Website Optimization

Due to external factors, such as changes to the way search engines rank websites, we cannot offer any guarantees regarding the position we will achieve for websites. The process of optimizing websites itself will bring in more traffic and hits and you’ll see visits increase to your site naturally. We cannot accept liability for any change in rankings, or drop off in the position of your website due to changes in the algorithms of the search engines or the factors that they use to rank websites.

We use ‘white hat techniques’ when optimizing websites and always aim to achieve a top ten ranking for your website within six months of undertaking the optimization process. Due to the work involved payment is generally required in advance and we are unable to offer a refund of any money to clients in relation to this type of work.

Atomic Interactive reserve the right to refuse to handle in any way, material which may be deemed offensive, illegal or in any way controversial.

Payment of Accounts

A deposit is required from any new client before any work is carried out. It is the Atomic Interactive policy that any outstanding accounts for work carried out by Atomic Interactive or its affiliates are required to be paid in full, no later than 30 days from the date of the invoice unless by prior arrangement with Atomic Interactive.

Once a deposit is paid and work completed you are obliged to pay the balance of payment in full. We will contact clients via email and telephone to remind them of such payments if they are not received when due.

If accounts are not settled or Atomic Interactive have not been contacted regarding the delay, access to the related website may be denied and web pages removed, we will then pass such cases to Advanced Financial Services to pursue payment, non payment can result in being added to the clients credit rating.

Atomic does not offer refunds if a project is discontinued by the client for any reason. Atomic will fulfill all obligations of the contract presented in the scope of work.

Following consistent non payment of an invoice our Solicitors will contact the client in question, with a view to taking the matter further and if need be to seek payment through legal procedures, and if necessary court summons.

Your Privacy

We do not share or sell any of your details with third party companies, without your express permission and we will only email you or contact you about work related matters.

Complaints Procedure

Anyone who experiences a problem with their web service provided by Atomic Interactive should raise the matter directly the assigned project manager, giving sufficient information to locate the material (such as an url) and clearly outlining the grounds for complaint. Atomic Interactive will approach the individual responsible for the material in question with a view to resolving the matter to the satisfaction of the complainant.

A formal complaint should be made in writing to Atomic Interactive, who will acknowledge receipt and ensure that the matter is looked into as soon as possible. An initial response to any complaint can be expected within seven days of its receipt; a full and considered response to the complaint should be completed within 30 days and any subsequent remedy implemented with the minimum of delay.

Notice of modification

The Professional Services Agreement was last modified July 4th, 2018

Professional Services Agreement

This WEBSITE DEVELOPMENT AGREEMENT (“Agreement”) is an agreement between Atomic Interactive (“Company”) and the party set forth in the related order form (“Customer” or “you”) incorporated herein by this reference (together with any subsequent purchases submitted by Customer, the “Order”) and applies to the purchase of all services ordered by Customer on the Order (collectively, the “Services”).  The parties understand, acknowledge and agree that this is an online agreement which is being entered into in conjunction with the Order.

PLEASE READ THIS AGREEMENT CAREFULLY.

BY SIGNING UP FOR THE SERVICES CREATES A CONTRACT BETWEEN CUSTOMER AND COMPANY, CONSISTING OF THE ORDER, THE APPLICABLE SERVICE DESCRIPTION AND THIS AGREEMENT AND YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL TERMS AND CONDITIONS INCORPORATED BY REFERENCE IN THIS AGREEMENT, INCLUDING COMPANY’S USAGE POLICIES.  YOUR USE OF THE SERVICES CONSTITUTES ACCEPTANCE OF THIS AGREEMENT. YOUR AGREEMENT TO THE TERMS HEREOF ALSO CONSTITUTES YOUR AGREEMENT TO THE USER AGREEMENT AND OTHER “TERMS OF SERVICE” LOCATED AT: https://atomicinteractive.com/terms-conditions/

TERM AND TERMINATION

Term of Agreement. This Agreement shall be effective as of the date set forth on the Order and shall remain in force until seven (7) days after the last (“Coordination Step” or ”Phase”) as set forth in the applicable Order, which shall take place not later than one hundred twenty days (120) after the Order (“Delivery Date”).  Company cannot guarantee the Delivery Date but will use commercially reasonable efforts to perform the Services in an efficient and timely manner.

Termination. This Agreement may be terminated by either party upon written notice to the other, if the other party breaches any material obligation provided hereunder and the breaching party fails to cure such breach within thirty (30) days of receipt of the notice.  This Agreement may be terminated by Company (i) immediately if Customer fails to pay any fees hereunder; or (ii) if Customer fails to cooperate with Company or hinders Company’s ability to perform the Services hereunder.
COMPANY’S AND CUSTOMER’S RESPONSIBILITIES

Scope of Work.

Customer hereby retains the services of Company to design the Web Site for Customer in accordance with the Order.

Customer’s Responsibilities. Customer agrees to perform all tasks assigned to Customer as set forth in this Agreement or a (“Change Order”), and to provide all assistance and cooperation to Company in order to complete timely and efficiently the Web Site.  Company shall not be deemed in breach of this Agreement, the Services, a Change Order, or any milestone in the event Company’s failure to meet its responsibilities and time schedules is caused by Customer’s failure to meet (or delay in) its responsibilities and time schedules set forth herein, a Change Order, or this Agreement.  In the event of any such failure or delay by Customer (i) all of Company’s time frames, milestones, and/or deadlines shall be extended as necessary; and (ii) Customer shall continue to make timely payments to Company as set forth in this Agreement and any Change Order(s) as if all time frames, schedules, or deadlines had been completed by Company.  Customer shall be responsible for making, at its own expense, any changes or additions to Customer’s current systems, software, and hardware that may be required to support operation of the Web Site. Unless otherwise contracted with Company or reflected in a Change Order, Customer shall be responsible for initially populating and then maintaining any databases on the Web Site as well as providing all content for the Web Site, unless contracted through Company. With the execution of a Change Order specifically asking Company to assesses the Customer’s systems, software and hardware from time to time, Company may agree to perform this function at normal

Company rates.

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 materials basis, at Company’s standard hourly rate per hour. 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.

Substantive Changes. If Client requests or instructs Changes that amount to a revision of at least 15% 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.

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. The 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.

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 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 made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or 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.

WEB SITE DESIGN

Design. The design of the Web Site shall be in substantial conformity with the material provided to Company by Customer.  Web Site consultation will be provided according to the number of coordination steps outlined for the plan purchased in the Order.  Customer will provide direction to Company by communicating the known marketing information and providing clear responses to our questions.  Web Site text will be supplied by the Customer unless copywriting services have been purchased. Web Site images will be supplied by the Customer unless photography or stock photography budgets have been purchased.  Development of web pages will take place on the Customer’s established web hosting service with

Company. All server technical issues are to be handled by Company unless otherwise noted amongst all parties. Minor updates and changes include any minor modifications and modifications to work out backend database issues and functionality. This does not include adding features beyond the scope of the Order. Company shall not include, as determined in its sole discretion, any of the following in the Web Site or in Customer’s directory on Company’s Web Server: text, graphics, sound, or animations that might be viewed as obscene or any illegal activities; links to other web sites that might be viewed as obscene or related in any way to any illegal activities; impressionistic or cartoon-like graphics (unless provided by Customer); invisible text, metatags (i.e., text that is present only when a “Webcrawler” or other Web indexing tool accesses the Web Site), or any other type of hidden text, hidden information, hidden graphics, or other hidden materials; or destructive elements or destructive programming of any type.

Coordination Steps. Customer understands that submissions for Web Site development are limited to the number of coordination steps or phases as detailed in the Order.  Customer is encouraged to provide as much instruction and direction as possible during each step of the project.
Accessibility of Web Site During Construction. Throughout the construction of the prototype and the final Web Site, the Web Site shall be accessible to Customer. Until Customer has approved the final Web Site, none of the Web Pages for Customer’s Web Site will be accessible to end users.

Completion Date. Company and the Customer shall work together to complete the Web Site in a commercially reasonable manner. Customer must supply Company complete text and graphics content all web pages contracted for within two (2) weeks of the date of the Order unless otherwise noted.

Copyright to Web Site. Customer acknowledges, understands and agrees that Company may use its own and/or may purchase third party licenses for products or services that are necessary for Company to design and develop the Web Site.  Such products may include, but are not limited to server-side applications, clip art, “back-end” applications, music, stock images, or any other copyrighted work (“Outside Content”) which Company deems necessary to purchase on behalf of Customer to design and develop the Web Site.  Customer further acknowledges and understands that any Outside Content used to design and develop the Web Site is owned by Company and/or such third parties and cannot be transferred to Customer and is hereby specifically not transferred to Customer and shall remain the property of Company and/or such third parties.  Outside Content which is owned and/or purchased by Company may be used in the design and/or development of other web sites separate from Customer. Customer and Company agree that upon payment in full of the fees associated with the design and development of the Web Site, Customer shall own a worldwide right, title, and interest in and to the Web Site (including, its source code and documentation) (the “Custom Programming”).  Customer and Company agree that Company shall retain a worldwide, royalty-free, non-exclusive, transferable, and perpetual right and license to the Custom Programming including, but not limited to, the right to modify, amend, create derivative works, rent, sell, assign, lease, sublicense, or otherwise alter or transfer the Custom

Programming. Customer and Company also agree that the design and development of the Web Site may include source code, documentation, and/or application programs that were previously written or developed by Company and modified to meet Customer’s specific requirements (the “Code Content”).  Company shall own all worldwide right, title, and interest in and to the Code Content, but shall provide Customer (upon payment in full of the fees associated with the design and development of the Web Site) a worldwide, royalty-free, non-exclusive, transferable and perpetual right and license to use the Code Content. Company and its subcontractors retain the right to display graphics and other web design elements of the Web Site as examples of their work in their respective portfolios.

MAINTENANCE

This Agreement does not provide Web Site maintenance unless a Web Site maintenance or retainer plan is purchased.  If the Customer or an agent other than Company attempts updating Customer’s site, time to repair site will be assessed at an hourly rate.  Changes requested by the Customer beyond those limits will be billed at the hourly rates set forth in the Order. This rate shall also govern additional work authorized beyond the maximums specified in the Order for such services as web page design, editing, modifying product pages and databases in an online store, and art, photo, graphics, or any other services.

FEES

Project Fee. The total price for all of the work set forth in the Agreement (excluding post-approval modifications not implemented by Customer) shall be set forth in the Order (the “Project Fee”).  This price covers all work for the Order (excluding post-approval modifications not implemented by Customer). Unless otherwise stated in the Order, the Project Fee to Company is due and payable upon placing the Order and Company shall have no obligation to perform any work until payment is received and such funds are cleared from the relevant financial institution. Company’s services are “AS-IS, WHERE-IS, WITH ALL FAULTS” and refunds may not be provided for Company’s services hereunder.

Project abandonment. If after repeated attempts to begin, continue, or finalize the delivery of services, Customer fails to participate, or becomes otherwise unresponsive to Company requests for a period of three (3) months, the project may be considered abandoned, and Company may reduce any refund the Customer may otherwise be entitled to hereunder to zero, and Customer will have forfeited all rights to receive any refund for services purchased online or as described in the original Order Form.

INDEMNIFICATION

Company Indemnity. In performing services under this Agreement, Company agrees not to design, develop, or provide to Customer any items that infringe one or more patents, copyrights, trademarks or other intellectual property rights (including trade secrets), privacy, or other rights of any person or entity. If Company becomes aware of any such possible infringement in the course of performing any work hereunder, Company shall immediately so notify Customer in writing. Company agrees to indemnify, defend, and hold Customer, its officers, directors, members, employees, representatives, agents, and the like harmless for any such alleged or actual infringement and for any liability, debt, or other obligation arising out of or as a result of or relating to (a) the Agreement, (b) the performance of the Agreement, or (c) the Deliverables, other than Customer’s responsibilities and Customer Content. This indemnification shall include attorney’s fees and expenses, unless Company defends against the allegations using counsel reasonably acceptable to Customer. Company’s total liability under this Agreement shall not exceed the amount of the Development Fee derived by Company under this Agreement.

Customer Indemnity. Customer shall indemnify and hold harmless Company (and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and all related costs and expenses) incurred by Company as a result of any claim, judgment, or adjudication against Company related to or arising from (a) any photographs, illustrations, graphics, audio clips, video clips, text, data or any other information, content, display, or material (whether written, graphic, sound, or otherwise) provided by Customer to Company (the “Customer Content”), or (b) a claim that Company’s use of the Customer Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, Company must: (i) give Customer prompt written notice of a claim; and (ii) allow Customer to control, and fully cooperate with Customer in, the defense and all related negotiations.

REPRESENTATIONS AND WARRANTIES

Company makes the following representations and warranties for the benefit of Customer:

No Conflict. Company represents and warrants that it is under no obligation or restriction that would in any way interfere or conflict with the work to be performed by Company under this Agreement and the Order. Customer understands that Company is currently working on one or more similar projects for other clients. Provided that those projects do not interfere or conflict with Company’s obligations under this Agreement, those projects shall not constitute a violation of this provision of the Agreement.

Conformity, Performance, and Compliance. Company represents and warrants that (1) all Deliverables shall be prepared in a workmanlike manner and with professional diligence and skill; (2) all Deliverables will function under standard HTML conventions; (3) all Deliverables will conform to the specifications and functions set forth in this Agreement; and (4) Company will perform all work called for by this Agreement in compliance with applicable laws. Company will repair any Deliverable that does not meet this warranty within a reasonable period of time if the defect affects the usability of Customer’s Web Site, and otherwise will repair the defect within 48 hours during business hours, said repairs to be free of charge to

Customer. This warranty shall extend for the life of this Agreement. This warranty does not cover links that change over time, pages that become obsolete over time, content that becomes outdated over time, third party software or other changes that do not result from any error on the part of

Company.
Disclaimer of All Other Warranties. COMPANY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN ITS WEB PAGES OR THE WEB SITE WILL MEET THE CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE WEB PAGES WILL BE UNINTERRUPTED OR ERROR-FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE WEB PAGES AND WEB SITE IS WITH CUSTOMER. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, DEVELOPER PROVIDES ITS SERVICES “AS IS” AND WITHOUT WARRANTY OF ANY KIND.  THE PARTIES AGREE THAT (A) THE LIMITED WARRANTIES SET FORTH IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED BY EACH PARTY, AND (B) EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THIS AGREEMENT, PERFORMANCE OR INABILITY TO PERFORM UNDER THIS AGREEMENT, THE CONTENT, AND EACH PARTY’S COMPUTING AND DISTRIBUTION SYSTEM.  IF ANY PROVISION OF THIS AGREEMENT SHALL BE UNLAWFUL, VOID, OR FOR ANY REASON UNENFORCEABLE, THEN THAT PROVISION SHALL BE DEEMED SEVERABLE FROM THIS AGREEMENT AND SHALL NOT AFFECT THE VALIDITY AND ENFORCEABILITY OF ANY REMAINING PROVISIONS.
Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE, LOST PROFITS, WHETHER OR NOT FORESEEABLE OR ALLEGED TO BE BASED ON BREACH OF WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY, ARISING UNDER THIS AGREEMENT, LOSS OF DATA, OR ANY PERFORMANCE UNDER THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.  THE MAXIMUM REMEDY AVAILABLE TO EITHER PARTY IS ANY AMOUNT PAID BY CUSTOMER HEREUNDER. COMPANY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES.

Customer makes the following representations and warranties for the benefit of Company:
Customer represents to Company and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Company for inclusion in the Web Site are owned by Customer, or that Customer has permission from the rightful owner to use each of these elements, and will hold harmless, protect, and defend Company and its subcontractors from any claim or suit arising from the use of such elements furnished by Customer.

From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce.  Customer agrees that the client is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend Company and its subcontractors from any claim, suit, penalty, tax, or tariff arising from Customer’s exercise of Internet electronic commerce.
Confidentiality.  The parties agree to hold each other’s Proprietary or Confidential Information in strict confidence.  “Proprietary or Confidential Information” shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, notes, or financial information. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the receiving party; (ii) was previously known to the receiving party or rightly received by the receiving party from a third party; (iii) is independently developed by the receiving party; or (iv) is subject to disclosure under court order or other lawful process.  The parties agree not to make each other’s Proprietary or Confidential Information available in any form to any third party or to use each other’s Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each party’s proprietary or confidential information shall remain the sole and exclusive property of that party. The parties agree that in the event of use or disclosure by the other party other than as specifically provided for in this Agreement, the non-disclosing party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, Company and Customer acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the Effective Date.

FORCE MAJEURE

Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.

RELATIONSHIP OF PARTIES

Independent Contractor. Company, in rendering performance under this Agreement, shall be deemed an independent contractor and nothing contained herein shall constitute this arrangement to be employment, a joint venture, or a partnership. Company shall be solely responsible for and shall hold Customer harmless for any and all claims for taxes, fees, or costs, including but not limited to withholding, income tax, FICA, and workers’ compensation.

No Solicitation. During the term of this Agreement, and for a period of six (6) 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 Company, employee or contractor, 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) 25 percent of said person’s starting salary with Client, or (b) 25 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.

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.

No Agency. Customer does not undertake by this Agreement, the Order or otherwise to perform any obligation of Company, whether by regulation or contract. In no way is Company to be construed as the agent or to be acting as the agent of Customer in any respect, any other provisions of this Agreement notwithstanding.

NOTICE AND PAYMENT

Any notice required to be given under this Agreement shall be in writing and delivered personally to the other designated party at the addresses listed in the Order mailed by certified, registered or express mail, return receipt requested or by Federal Express.
Either party may change its address to which notice or payment is to be sent by written notice to the other under any provision of this paragraph.

JURISDICTION/DISPUTES

This Agreement shall be governed in accordance with the laws of the State of Ohio. All disputes under this Agreement shall be resolved by litigation in the courts of the State of Ohio including the federal courts therein and the Parties all consent to the jurisdiction of such courts, agree to accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to it.

AGREEMENT BINDING ON SUCCESSORS

The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns.

ASSIGNABILITY

Customer may not assign this Agreement or the rights and obligations thereunder to any third party without the prior express written approval of Company.  Company reserves the right to assign subcontractors as needed to this project to ensure on-time completion.

WAIVER

No waiver by either party of any default shall be deemed as a waiver of prior or subsequent default of the same of other provisions of this Agreement.

SEVERABILITY

If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.

INTEGRATION

This Agreement constitutes the entire understanding of the Parties, and revokes and supersedes all prior agreements between the Parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the Parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents which may conflict with this Agreement.

NO INFERENCE AGAINST AUTHOR

No provision of this Agreement shall be interpreted against any Party because such Party or its legal representative drafted such provision.

DISPUTES

Customer and Company agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation. Should the parties fail to resolve any such disagreement within ten (10) days, any controversy or claim arising out of or relating to this Agreement, including, without limitation, the interpretation or breach thereof, shall be submitted by either party to arbitration in Montgomery County, Ohio and in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The arbitration shall be conducted by one arbitrator, who shall be (a) selected in the sole discretion of the American Arbitration Association administrator and (b) a licensed attorney with at least ten (10) years experience in the practice of law and at least five (5) years experience in the negotiation of technology contracts or litigation of technology disputes. The arbitrator shall have the power to enter any award that could be entered by a judge of the state courts of Ohio sitting without a jury, and only such power, except that the arbitrator shall not have the power to award punitive damages, treble damages, or any other damages which are not compensatory, even if permitted under the laws of the State of Ohio or any other applicable law. The arbitrator must issue his or her resolution of any dispute within thirty (30) days of the date the dispute is submitted for arbitration. The written decision of the arbitrator shall be final and binding and enforceable in any court having jurisdiction over the parties and the subject matter of the arbitration. Notwithstanding the foregoing, this Section shall not preclude either party from seeking temporary, provisional, or injunctive relief from any court.

READ AND UNDERSTOOD

Each Party acknowledges that it has read and understands this Agreement and agrees to be bound by its terms and conditions.

DULY AUTHORIZED REPRESENTATIVE

If this Agreement is executed then each Party warrants that their representative whose signature appears on such signature pages is the duly authorized by all necessary and appropriate corporate actions to execute this Agreement.