Origin Eight, Inc., a Minnesota Company (the "Provider"), provides services to you, The Client, under the following terms:
Of the Provider. The Provider agrees to do each of the following:
(i) Devote as much productive time, energy, and ability to the performance of its duties hereunder as may be necessary to provide the required Services in a timely and productive manner.
(ii) Perform the Services in a workmanlike manner and with professional diligence and skill, using fully-trained, skilled, competent, and experienced personnel.
Of the Client. The Client agrees to do each of the following:
(i) Engage the Provider to develop its Website as further detailed in Exhibit A to this Agreement.
(ii) Provide all assistance and cooperation to the Provider in order to enable the Provider to ensure the Website remains functional and up to date.
Any projected timeline is based on the responsiveness of the Client. If the Client is not reasonably responsive, the timeline may be affected.
The Client shall not unreasonably deviate from the terms set in the original proposal. An unreasonable deviation must be discussed by both parties.
If the Origin Eight team is affected by sickness, disaster or other such unforeseeable circumstances, the projected timeline may be affected. In the event of illness of key team members on your project, timelines may be effected as we ramp up other team members.
If the timeline falls during the annual North American Drupal conference "DrupalCon", we will have more limited availability during this week-long, annual conference that is important for our company to attend. Any requests deemed as urgent will still be handled as usual.
Any portfolio usage by Origin Eight must first be approved by The Client. Any case studies will be passed by the client for review before publishing, and will be written as to not degrade the image or brand of The Client in any way.
We will only support the following desktop/PC browsers unless otherwise agreed upon in writing:
Google Chrome (30.0.1599+)
Internet Explorer (9+)
Any additional browser support should be agreed upon via email or as an addendum to a formal contract.
Warranty of Originality
Origin Eight warrants and represents that, to the best of our knowledge, the work assigned hereunder is original and has not been previously published, or that consent to use has been obtained on an unlimited basis; that all work or portions thereof obtained through the undersigned from third parties is original or, if previously published, that consent to use has been obtained on an unlimited basis; that Origin Eight has full authority to make this agreement; and that the work prepared by Origin Eight does not contain any scandalous, libelous, or unlawful matter. This warranty does not extend to any uses that the Client or others may make of Origin Eights product that may infringe on the rights of others. The Client expressly agrees that it will hold Origin Eight harmless for all liability caused by the Client’s use of Origin Eights product to the extent such use infringes on the rights of others.
Limitation of Liability
The services and the work product of Origin Eight are sold “as is.” In the event that Origin Eight’s liability insurance does not cover damages, the maximum liability of Origin Eight, its director(s), officer(s), employees, agents and affiliates (“business parties”), to the Client for damages for any and all causes whatsoever, and the Client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the net profit of Origin Eight. In no event shall Origin Eight be liable for any lost data or content, lost profits, business interruption or for any indirect, incidental, special, consequential, exemplary or punitive damages arising out of or relating to the materials or the services provided by origin eight, even if origin eight has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.
Default in Payment
The Client shall assume responsibility for all collection of legal fees necessitated by default in payment.
Acceptance of Terms
This agreement is valid as soon as you check any checkbox stating that you agree to these Terms of Service, or sign any contract that references these Terms of Service.
Permission and Copyright
Once billed hours are paid in full to Origin Eight, any elements of text, graphics, photos, contents, trademarks, or other artwork furnished to The Client for inclusion in website are owned
by The Client. The grant of any license or right of copyright is conditioned on receipt of full payment.
Origin Eight assumes The Client has permission from the rightful owner to use any images or design elements that are provided by The Client for inclusion in the website, and will hold harmless, protect, and defend Origin Eight from any claim or suit arising from the use of such elements.
Term: This terms of this agreement is effective immediately upon acceptance of terms, and renews under the same terms and conditions for consecutive monthly periods. Either party may cancel this agreement at any time without cause upon 30 days written notice to the other party.
Effects of Termination: The Client will be responsible for paying the Provider for all work completed and delivered to The Client as of the date of termination. Origin Eight will maintain a copy of all related code and files for 30 days, after which we may dispose of and delete these files.
The total compensation for the estimated Services shall be as set forth in The Client's chosen pricing plan or other formal contract.
Payments shall be made according to the payment schedule set forth in The Client's chosen pricing plan or other formal contract.
The Provider agrees, during the Term and thereafter, to hold in strictest confidence and not to use, except for the benefit of the Client or as required by law, or to disclose to any person, firm, or corporation without the prior written authorization of the Client, any Confidential Information of the Client. “Confidential Information” means any of the Client’s proprietary information, technical data, trade secrets, or know-how, including, but not limited to, research, product plans, products, services, customer lists, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances, or other business information disclosed to the Provider by the Client either directly or indirectly. The Provider may use the Confidential Information to the extent necessary for negotiations, discussions, and consultations with the Client’s personnel or authorized representatives or for any other purpose the Client may hereafter authorize in writing. At the request of the Client, the Provider must promptly return all copies of Confidential Information received from the Client, and must promptly destroy all other Confidential Information prepared by the Provider, including, without limitation, any notes, reports, or other documents.
Parties’ representations and warranties
The Parties each represent and warrant as follows:
Each Party has the full power, authority, and right to perform its obligations under the Agreement.
This Agreement is a legal, valid, and binding obligation of each Party, enforceable against it in accordance with its terms (except as may be limited by bankruptcy, insolvency, moratorium, or similar laws affecting creditors’ rights generally and equitable remedies).
Entering into this Agreement will not violate the charter or bylaws of either Party or any material contract to which that Party is also a party.
The Provider hereby represents and warrants as follows:
The Provider has the sole right to control and direct the means, details, manner, and method by which the Services required by this Agreement will be performed.
The Provider has the experience and ability to perform the Services required by this Agreement.
The Provider has the right to perform the Services required by this Agreement at any place or location, and at such times as the Provider shall determine.
The Services shall be performed in accordance with and shall not violate any applicable laws, rules, or regulations, and the Provider shall obtain all permits or permissions required to comply with such laws, rules, or regulations.
The Provider is responsible for paying all ordinary and necessary expenses of its staff.
The Client hereby represents and warrants as follows:
The Client will make timely payments of amounts earned by the Provider under this Agreement and as detailed in Exhibit A hereto.
The Client shall notify the Provider of any changes to its procedures affecting the Provider’s obligations under this Agreement at least fifteen (15) days prior to implementing such changes.
The Client shall provide such other assistance to the Provider as it deems reasonable and appropriate.
NATURE OF RELATIONSHIP
1. Independent Contractor Status. The Provider agrees to perform the Services hereunder solely as an independent contractor. The Parties agree that nothing in this Agreement shall be construed as creating a joint venture, partnership, franchise, agency, employer/employee, or similar relationship between the Parties, or as authorizing either Party to act as the agent of the other. The Provider is and will remain an independent contractor in its relationship to The Client. The Client shall not be responsible for withholding taxes with respect to the Provider’s compensation hereunder. The Provider shall have no claim against The Client hereunder or otherwise for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind. Nothing in this Agreement shall create any obligation between either Party and a third party.
2. Indemnification of Client by Provider. The Client has entered into this Agreement in reliance on information provided by the Provider, including the Provider’s express representation that it is an independent contractor and in compliance with all applicable laws related to work as an independent contractor. If any regulatory body or court of competent jurisdiction finds that the Provider is not an independent contractor and/or is not in compliance with applicable laws related to work as an independent contractor, based on the Provider’s own actions, the Provider shall assume full responsibility and liability for all taxes, assessments, and penalties imposed on or against the Provider and/or The Client resulting from such contrary interpretation, including but not limited to taxes, assessments, and penalties that would have been deducted from the Provider’s earnings had the Provider been on The Client’s payroll and employed as an employee of The Client.
NO CONFLICT OF INTEREST; OTHER ACTIVITIES
The Provider hereby warrants to The Client that, to the best of its knowledge, it is not currently obliged under any existing contract or other duty that conflicts with or is inconsistent with this Agreement. During the Term, the Provider is free to engage in other website work activities; provided, however, the Provider shall not accept work, enter into contracts, or accept obligations inconsistent or incompatible with the Provider’s obligations or the scope of Services to be rendered for The Client pursuant to this Agreement.
Of Client by Provider. The Provider shall indemnify and hold harmless The Client and its officers, members, managers, employees, agents, contractors, sublicensees, affiliates, subsidiaries, successors, and assigns from and against any and all damages, liabilities, costs, expenses, claims, and/or judgments, including, without limitation, reasonable attorneys’ fees and disbursements (collectively, the “Claims”) that any of them may suffer from or incur and that arise or result primarily from (i) any gross negligence or willful misconduct of the Provider arising from or connected with the Provider’s carrying out of its duties under this Agreement, or (ii) the Provider’s breach of any of its obligations, agreements, or duties under this Agreement. The Provider shall maintain liability insurance to satisfy the foregoing obligations to The Client.
Of Provider by Client. The Client shall indemnify and hold harmless the Provider from and against all Claims that it may suffer from or incur and that arise or result primarily from (i) its development or usage of The Client’s Website in connection with the carrying out of its duties under this Agreement or (ii) The Client’s breach of any of its obligations, agreements, or duties under this Agreement; provided, however, none of the foregoing result from or arise out of the actions or inactions of the Provider.
No Intellectual Property Infringement by Provider. The Provider hereby represents and warrants that the use and proposed use of any software, programs, or applications to maintain, repair, or update the Website does not and shall not infringe, and the Provider has not received any notice, complaint, threat, or claim alleging infringement of, any trademark, copyright, patent, trade secrets, industrial design, or other rights of any third party. To the extent the software, programs, or applications used to maintain, repair or update the Website infringe on the rights of any such third party, the Provider shall obtain a license or consent from such third party permitting the use of such items.
No Intellectual Property Infringement by Client. The Client represents to the Provider and unconditionally guarantees that all text, graphics, photos, designs, trademarks, hyperlinks, or other content on the Website are owned by The Client, or that The Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, indemnify, and defend the Provider and its subcontractors from any liability (including attorneys’ fees and court costs), including any claim or suit, threatened or actual, arising from the use of such elements furnished by The Client. The Client further represents to the Provider that its domain names or URL listing does not infringe, dilute, or otherwise violate third party rights or trademarks.
Client Property Rights. All text, graphics, photos, designs, trademarks, hyperlinks, or other content on the Website are the property of The Client and the Provider has no ownership
rights or other intellectual property rights to such items.
LAWS AFFECTING ELECTRONIC COMMERCE
From time to time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. The Client agrees that it is solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend the Provider and its subcontractors from any claim, suit, penalty, tax, or tariff arising from the Client’s exercise of Internet electronic commerce.
A Party shall be not be considered in breach of or in default under this Agreement on account of, and shall not be liable to the other Party for, any delay or failure to perform its obligations hereunder by reason of fire, earthquake, flood, explosion, strike, riot, war, terrorism, or similar event beyond that Party’s reasonable control (each a “Force Majeure Event”); provided, however, if a Force Majeure Event occurs, the affected Party shall, as soon as practicable:
notify the other Party of the Force Majeure Event and its impact on performance under this Agreement; and
use reasonable efforts to resolve any issues resulting from the Force Majeure Event and perform its obligations hereunder.
NO IMPLIED WAIVER
The failure of either Party to insist on strict performance of any covenant or obligation under this Agreement, regardless of the length of time for which such failure continues, shall not be deemed a waiver of such Party's right to demand strict compliance in the future. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation under this Agreement shall constitute a consent or waiver to or of any other breach or default in the performance of the same or any other obligation.
This Agreement shall be governed by the laws of the state of Minnesota. In the event that litigation results from or arises out of this Agreement or the performance thereof, the Parties agree to reimburse the prevailing Party’s reasonable attorneys’ fees, court costs, and all other expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing Party may be entitled.
For purposes of this Agreement, clicking on any sort of checkbox on a digital form acknowledging the acceptance of these Terms of Service shall have the same force and effect as an original signature or other means of authorizing agreement to these Terms of Service.
DUTIES, COMPENSATION, AND SERVICES
In exchange for the Fee(s), as defined in Section 2 below, the Provider will provide the in-scope services, or services selected by The Client on an Origin Eight service or pricing plan.
2. ADDITIONAL FEES.
Additional work requested or authorized by The Client that falls outside the scope of the Services will be billed to The Client at an agreed-upon hourly rate.