TERMS & CONDITIONS
Acceptance by Client of an agreement issued by AND ONE Marketing Group (“AND ONE”), to which these terms and conditions are attached or by reference made a part of, or AND ONE’s commencing work, shall constitute acceptance of these Standard Terms and Conditions(collectively referred to as the “Agreement”), which is agreed to supersede any Client provided agreement or terms and conditions. Client represents and warrants that: (1) it has the full authority to enter into the Agreement and to perform the acts or obligations required of it in the Agreement; (2) the execution of the Agreement and the performance of its obligations do not and will not violate (and trump) any other agreement that it is a party to; (3) the Agreement will constitute the legal, valid and binding obligation of each party, enforceable against each party in accordance with its terms. The formation, construction, performance and enforcement of the Agreement shall be in accordance with the laws of the State of Virginia without regard to its conflict of law provisions.
Scope of Service
AND ONE shall provide only those professional services and/or products specified in the Agreement (the “Work”). Client understands and agrees that, unless listed in the Agreement, AND ONE is not responsible for any other work or scope of supply or any disclosure, notifications or reports that may be required to be made to third parties, including appropriate governmental authorities. If Client requests and AND ONE agrees to perform any services that are in addition to or outside the scope of Work identified in the Agreement, Client shall promptly pay AND ONE for such services in accordance with the terms and rates shown in the Agreement or, if no such terms or rates are shown in the Agreement, in accordance with AND ONE’s standard terms and rates for the services performed.
Client represents and warrants to AND ONE that: (1) it owns, or has acquired the express written authority to use all of the content Client gives to AND ONE, (“Client Content”); (2) Client Content does not contain any obscene, threatening, harassing, vulgar, defamatory, libelous, infringing or unlawful content; (3) Client Content does not infringe upon nor violate the rights of any third party, including copyrights and trademarks; (4) there are no claims against Client regarding Client Content; and (5) Client will at all times ensure that it is in compliance with the terms and conditions of any licensing contracts between Client and a third party.Client will defend, indemnify and hold harmless AND ONE for breach of any of these warranties.
Client’s Ownership and AND ONE’s Ownership
Once payment is received, AND ONE grants all rights to content produced for Client exclusively to Client, excluding third party components. Notwithstanding the foregoing, AND ONE retains the right to display graphics and other Web content elements as examples of AND ONE’s work. AND ONE shall own, and retain all intellectual property rights in all preexisting material, information, know-how and data created.
Access to Site & Information
Client will provide for right of entry and access to all relevant sites, equipment and other information in its control or possession as is necessary for AND ONE to timely and fully complete the Work. AND ONE is not responsible for the quality or accuracy of data or information, nor for the methods from which the data was developed, where such information or data is provided by or through Client or others that are not agents or AND ONE, and AND ONE has no obligation to investigate facts or conditions not disclosed to it by Client.
In addition to any pre-payment, and unless some other schedule is agreed in writing, payment shall be due within 30 days of Agreement or provision of services, whichever is earlier. Client’s failure to pay on time constitutes a material breach of contract by Client permitting AND ONE to suspend its performance hereunder; additionally, AND ONE shall have all other remedies permitted to AND ONE by law, equity and these terms. AND ONE is entitled to interest charges of 1.5% for each delinquent month. If Client has provided AND ONE with a credit card authorization, AND ONE shall be entitled to charge the invoice amount and interest against such card. Client agrees to pay all collections costs, including reasonable attorney’s fees, incurred by AND ONE expended in an effort to collect fees or otherwise as a result of Client’s breach.
Notice and Notice of Cancellation
Either party may cancel this Agreement by delivering written Notice of Cancellation at least 45 days prior to next billing cycle. Any notice (“Notice”) shall be deemed sufficient if addressed in writing and mailed to the Client’s address or emailed to an authorized representative.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, AND ONE’S SERVICES ARE PROVIDED “AS IS.” AND ONE EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. AND ONE DOES NOT WARRANT THAT THE SERVICES WILL MEET CLIENT’S SPECIFIC REQUIREMENTS OR THAT THE SERVICES WILL BE COMPLETELY ERROR-FREE, COMPLETELY SECURE OR UNINTERRUPTED. AND ONE SHALL NOT BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY UNAVAILABILITY OR INOPERABILITY OF TELECOMMUNICATIONS SYSTEMS, THE INTERNET, SEARCH ENGINES, SOCIAL MEDIA SITES, TECHNICAL MALFUNCTION, COMPUTER ERROR, CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND BEYOND THE REASONABLE CONTROL OF AND ONE. CLIENT ASSUMES ALL RISKS RELATED TO PROCESSING OF TRANSACTIONS RELATED TO ELECTRONIC COMMERCE. Client’s sole remedy for a breach of the foregoing warranty is to require AND ONE to correct or replace, at AND ONE’s election, the affected service if Client gives Notice to AND ONE of such breach within 6 months from the date the affected services were provided.
Limitation of Liability
IN NO EVENT WILL AND ONE, IT’S OWNERS, OFFICERS, OR EMPLOYEES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF USE, DATA, BUSINESS OR PROFITS OR COSTS OF COVER) ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR AND ONE’S PROVISION OF WORK, OR PROFESSIONAL ERRORS OR OMISSIONS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON AGREEMENT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. AND ONE, IT’S OWNERS, OFFICERS, OR EMPLOYEES’ CUMULATIVE LIABILITY TO CLIENT, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO AND ONE BY CLIENT DURING THE PREVIOUS THREE MONTHS OF THE AGREEMENT. AND ONE SHALL NOT BE LIABLE TO CLIENT OR CLIENT’S REPRESENTATIVES FOR ANY HARM RESULTING FROM ANY USE OF CONFIDENTIAL INFORMATION UNLESS SPECIFICALLY AGREED IN WRITING.
Client agrees to defend, indemnify and hold harmless AND ONE from and against any and all claims, liabilities, suits, actions, proceedings, demands, damages, losses, costs, and expenses, including reasonable attorney’s fees, based upon a third party claim arising, directly or indirectly, out of the Client Content or otherwise resulting from Client’s actions.
Resolution of Legal Disputes
AND ONE’s home is in Virginia. Therefore, the formation, construction, performance and enforcement of the Agreement shall be in accordance with the laws of the State of Virginia without regard to its conflict of law provisions. Any action or proceeding arising from a claimed breach of this Agreement shall only be brought in the the Circuit Court for the City of Virginia Beach, or the United States District Court for the Eastern District of Virginia (Norfolk Division). Client consents to the jurisdiction of such Virginia courts (and appellate courts) and by agreeing waives the right to object to Virginia venues or jurisdiction. Client also consents to in personal jurisdiction (personal jurisdiction) and agrees that service by registered mail, return receipt requested, is sufficient. If AND ONE prevails in any way in any dispute arising out of this Agreement, AND ONE will be entitled to reimbursement for its expenses and costs (including attorneys’ fees), regardless of whether any legal action is filed. Any action or proceeding arising out of this Agreement against AND ONE must be instituted within two (2) years after such cause of action has accrued. Client acknowledges that if the remedy at law for any breach, or threatened breach, of this Agreement is by its nature inadequate to compensate AND ONE for the damages that are certain to result then AND ONE may seek temporary and/or permanent injunctive relief, and any other available equitable relief and/or damages, without any requirement to obtain a bond or prove monetary damages.
AND ONE shall not be liable for any default or delay in the performance of its obligations under this Agreement to the extent such default or delay is caused, directly or indirectly, by reason of fire, earthquake, labor dispute (other than labor disputes of such party or its independent contractors and its employees), act of God, acts of terrorism, or any local, state, federal, national or international law, governmental order or regulation or any other event beyond a AND ONE’s reasonable control.
Each provision of the Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision is held invalid or unenforceable, the remainder of the Agreement shall remain in full force and effectIn the event of a conflict and more than one agreement has been signed, this Agreement governs.
For questions regarding our Standard Terms and Conditions, please email us at [email protected]
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