Octane

Terms of Service

1. FORMATION OF THE AGREEMENT AND DEVELOPMENT OF THE PROJECT.
   These Terms of Service (these "Terms") constitute a contract between the client organization (the "Client") whose website is being designed or hosted by DynamiX Web Design, LLC. ("Company")
   If the Client and the Company have previously signed a written agreement (the "Prior Agreement") with respect to the design and development of the Client website (the "Website") then (a) such Prior Agreement governs the Client and the Company with respect to the design and development of the Website and (b) these Terms will control with respect to the obligations of the parties after the Website has been delivered and accepted and with respect to the hosting of the Website by the Company thereafter.
   With respect to any Website for which there is no Prior Agreement, (a) these Terms will control and (b) the website development services to be performed by the Company will be those set forth in a written proposal (as applicable, the "Proposal") for such development (as described in the Proposal or in any other written agreement with the Company, the "Project"), and (c) the deliverables to be provided by the Company are those set forth in the Proposal (the "Deliverables") and the details applicable to the Proposal and the Deliverables are collectively referred to herein as the "Project Specifications." The Proposal and these Terms comprise the parties' agreement (the "Agreement") and the parties shall work together in a joint effort to accomplish the tasks and objectives set forth in the Project Specifications.
   With respect to every Client (regardless of whether there was a Prior Agreement), the Company will host the Project on the Company's Octane Content Management System (the "System"). So long as the Client pays the applicable recurring fees specified in the Agreement, the Company will provide Client a perpetual right to gain access to and use the System for the sole purpose of hosting the Deliverables and updating or modifying the Deliverables using the System's accessible tools. If the Company creates a substantial upgrade or modification of the System, the Client may be required to pay an additional amount for access to such upgraded or modified version of the System.
2. ACCEPTANCE OF PROJECT. Client shall execute a written Project approval upon Company's delivery of the Deliverables in accordance with the Project Specifications. Company shall rely on such written approval as Client's acceptance of the Deliverables, including, but not limited to, acceptance of its design, content, layout, color, format, navigation, and functionality, except for material latent defects. Client will not unreasonably withhold or delay such approval and acceptance. If Client has not provided Company with written notice of rejection of the Deliverables within thirty (30) days after Company has delivered the Deliverables to Client in a form identified by Company as complete, the Project will be deemed accepted and completed in accordance with the Project Specifications. The date of such written Project approval or expiration of such thirty (30)-day period shall be referred to as the date of "Project Acceptance."
3. CLIENT RESPONSIBILITIES. Client agrees to provide all assistance and cooperation to Company in order to complete timely and efficiently the Project. Company shall not be deemed in breach of this Agreement if any delay or failure in delivering the Deliverables is caused by Client's failure to meet (or delay in) its responsibilities and time schedules set forth in the Project Specifications or this Agreement.
4. MARKETING. Client hereby grants Company the right to add a link and logo within the footer of the Project to Company, and to use the name of Client in its marketing materials or other oral, electronic, or written promotions, which shall include naming Client as a client of Company and a brief scope of services provided. Client may require the Company logo to be removed for a fee equal to 10% of the project fee.
5. FEES, EXPENSES, AND PAYMENT.
   5.1 Project Fee. If there is a Prior Agreement, the applicable fees are specified therein. If there is no Prior Agreement, the applicable fees are set forth either (a) in the Client's online order, or (b) the Company's standard retailing pricing for the services selected by the Client (if there is no online order for the Client) and Client's payment of an invoice therefor will constitute Client's agreement to such fees.
   5.2 Payment. Client must pay all invoices within ten (10) days after receipt. Payments not made when due shall be subject to late charges equal to the lesser of (a) one and one-half percent (1.5%) per month of the overdue amount and (b) the maximum amount permitted under applicable law. Client shall pay all costs of collection, including reasonable attorneys' fees, if Company consults with an attorney. Company may suspend all services on seven (7) days' written notice until the past due amounts outstanding are paid in full.
6. INTELLECTUAL PROPERTY RIGHTS AND LICENSE.
   6.1 Intellectual Property Rights Ownership. Company reserves all worldwide right, title, and interest in and to all intellectual property contained in the System and used in connection with the Project, including all rights in and to its trademarks, patents, processes, copyrights, trade secrets, software, source code, tools and techniques (collectively, the "System IP"). Company shall further be the exclusive owner of all intellectual property rights generated by Company in connection with performance of the Project and creation of Deliverables. Client shall be responsible for researching, obtaining, and filing all trademark, copyright, patent, or other intellectual property protections for any logos, "tag lines," content, data, documentation, photographs, illustrations, graphics, audio clips, video clips, text, display, information or material (whether written, graphic, sound, or otherwise) provided by Client ("Client Content") for use in connection with the System. As between Company and Client, Client shall have all worldwide right, title, and interest in and to the Client Content. Each party agrees to execute and deliver any assignment or other document that may be necessary to bring into full effect the foregoing ownership of any intellectual property rights.
   6.2 License. Client hereby grants to Company and its vendors a perpetual, worldwide, royalty-free, non-exclusive license to use, copy, adapt, distribute, perform and display the Customer Content in connection with the Project and the Services rendered hereunder. Client represents and warrants that it has all rights necessary to grant the foregoing license and that such license and Company's use of the Client Content in accordance with this Agreement will not violate the intellectual property rights of any third party.
7. TERM AND TERMINATION.
   7.1 Term. If there is a Prior Agreement, this Agreement shall be effective as of the Effective Date specified in the Proposal (the "Effective Date"). If there is no Prior Agreement, this Agreement shall be effective when Client clicks "I Accept" on these terms. In either event, this Agreement shall continue in effect until terminated in accordance with Subsection 7.2 below.
   7.2 Termination Rights. This Agreement may be terminated by either party upon default by the other. No party will be in default until it has been given written notice of its breach of a material provision of the Agreement and such breaching party fails to cure the breach within ten (10) days after such written notice. Upon the first anniversary of the Effective Date, each party shall have the right to terminate this Agreement at any time without cause by giving the other party thirty (30) days' prior written notice.
   7.3 Effect of Termination. Client shall pay Company for all services rendered and work performed up to the effective date of termination. Company shall provide Client with an invoice for the foregoing fees within ten (10) days of the effective date of the termination. Client shall pay the invoice within ten (10) days of receipt.
8. LIMITED WARRANTIES.
   8.1 Project. If there is a Prior Agreement, there are no warranties with respect to the Deliverables except as set forth in the Prior Agreement. If there is no Prior Agreement, Company warrants that for a period of thirty (30) days from delivery of the Deliverables to Client, the Deliverables shall perform in accordance with all the material terms of the Project Specifications. All warranty claims not made in writing within such period shall be deemed waived. As the sole and exclusive remedy of Client for breach of the foregoing warranty, Company shall, at its option, either correct the nonconformity or refund to Client the dollar amount attributable to the number of actual hours Company spent developing the defective portion of the Project. Company shall not be liable for failures of Deliverables resulting from the errors, negligence or willful misconduct of third parties, or the errors, negligence or willful misconduct of Client
   8.2 Performance of Professional Services. Company warrants that all services provided pursuant to this Agreement will be performed in a workmanlike manner by appropriately qualified personnel.
   8.3 Accessibility. The Deliverables will conform to the Project Specifications with respect to any web accessibility standard specified therein. Company does not warrant that the Deliverables will satisfy any web accessibility standards not expressly set forth in the Project Specifications.
9. DISCLAIMER OF OTHER WARRANTIES. EXCEPT AS SET FORTH IN SECTION 8 OF THIS AGREEMENT, THE SERVICES, DELIVERABLES AND THE SYSTEM ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND, AND COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
10. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR LIKE DAMAGES OF ANY KIND ARISING OUT OF OR CONNECTED IN ANY WAY WITH THIS AGREEMENT OR THE PROJECT, OR FOR ANY CLAIM BY ANY THIRD PARTY CLAIMING THROUGH CLIENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. THE MAXIMUM AGGREGATE LIABILITY OF COMPANY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE PROJECT PRICE (AS DEFINED IN THE "PRICING" SECTION OF THE PROPOSAL). THIS LIMITATION OF LIABILITY SHALL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL IN THEIR ESSENTIAL PURPOSE.
11. THIRD PARTY PRODUCT DISCLAIMER. COMPANY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY SERVICES, DELIVERABLES, PRODUCTS, SOFTWARE, LICENSES, CONTENT OR LABOR OBTAINED FROM THIRD PARTIES.
12. INDEMNIFICATION OBLIGATIONS.
    12.1 Client Indemnity. Client shall defend, indemnify and hold harmless Company (and its subsidiaries, affiliates, officers, agents, vendors 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 any Client Content, including, without limitation, a claim that Company's use of the Client Content infringes the intellectual property rights of a third party.
    12.2 Company Indemnity. Company shall defend, indemnify and hold harmless Client (and its subsidiaries, affiliates, officers, agents, 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 Client as a result of any claim, judgment, or adjudication against Client arising from a claim that Client's use of the System or Company Content, as permitted under this Agreement, infringes intellectual property rights of a third party.
    12.3 Indemnification Procedure. The indemnified party's obligations under this Section 12 shall be conditioned upon the indemnified party having (a) given the indemnifying party prompt notice, in writing, of any claim or threat of claim of such alleged infringement, and (b) permitted the indemnifying party, by its counsel, to control the defense and settlement of such claim. If any of the Client Content, the Company Content or the System is finally adjudged to so infringe, the indemnifying party shall at its option, either (a) procure for indemnified party the right to continue using the infringing product or (b) modify or replace it to make it non-infringing. Notwithstanding the foregoing, the indemnifying party will have no obligation to defend or indemnify under this Section 12 to the extent such claim is based solely on fulfillment of the indemnified party's requirements as specified in the Project Specifications. The foregoing states the exclusive remedy for any indemnified claim of infringement arising under this Agreement.
    12.4 Exclusions. Notwithstanding anything contained in this Agreement to the contrary, the indemnifying party shall not be obligated to indemnify the indemnified party in respect of any claims or damages arising from: (a) the indemnified party's use of the applicable materials or systems other than as contemplated by this Agreement; (b) the indemnified party's failure to use updates or modifications to such materials or systems made available by the indemnifying party if such corrections or modifications would have prevented the infringement; (c) the indemnified party's use of such materials or systems in combination with any product or information not provided by the indemnifying party if there would not have been such infringement without the combination; or (d) any indemnification claim, suit or proceeding that is initiated more than twenty-four (24) months after Project Acceptance.
13. CONFIDENTIALITY. For purposes of this Agreement, "Confidential Information" means any non-public information designated by the disclosing party in writing as confidential at the time of disclosure, including (without limitation) the System IP, or which given the circumstances surrounding its disclosure, ought to reasonably be understood by the receiving party to be confidential, provided, that, "Confidential Information" will not include information that (a) is or becomes generally known to the public not as a result of a disclosure by the receiving party, (b) is rightfully in the possession of the receiving party prior to disclosure by the disclosing party, (c) is received by the receiving party in good faith and without restriction from a third party, not under a confidentiality obligation to the disclosing party and having the right to make such disclosure, or (d) is developed by receiving party independently of any Confidential Information of disclosing party. It shall not be a violation of this Section 13 for the receiving party to disclose the disclosing party's Confidential Information to the extent the receiving party is compelled to do so by a court or governmental agency of competent jurisdiction. The parties agree to hold each other's Confidential Information in strict confidence. The parties agree not to make each other's Confidential Information available in any form to any third party or to use each other's Confidential Information for any purpose other than performance of the Project and providing the services to Client hereunder. Each party's 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 Client acknowledge and agree that their obligations of confidentiality with respect to Confidential Information shall continue in effect (y) with respect to business Confidential Information, for a total period of two (2) years from the Effective Date, and (z) with respect to trade secrets, for so long as such Confidential Information remains a trade secret under applicable law.
14. CHOICE OF LAW; VENUE; LIMITATION OF ACTIONS. This Agreement shall be governed and construed in accordance with the laws of the United States and the State of Georgia, and the parties consent to the sole and exclusive jurisdiction of the state courts and U.S. federal courts having jurisdiction in Fulton County, Georgia for any dispute arising out of this Agreement. Neither party shall have any liability to the other for any claim, suit or proceeding that is initiated more than twenty-four (24) months after the applicable Project Acceptance.
15. INDEPENDENT CONTRACTOR STATUS; NON-SOLICITATION. Client and Company agree that each is independent of the other and neither party has authority to direct the other's actions or bind the other to any agreement with any third party. Each of Company and Client agrees not to solicit the employees of the other party to leave their employment.
16. NOTICES. Any written notice or demand required or permitted by this Agreement shall be sent by registered or certified mail (return receipt requested), personal delivery, overnight commercial carrier, or other recognized delivery service to the other party at the address set forth in the Proposal. The notice shall be effective (a) as of the date of delivery if the notice is sent by personal delivery, overnight commercial courier or other recognized delivery, and (b) as of five (5) days after the date of posting if the notice is transmitted by registered or certified mail.
17. ENTIRE AGREEMENT. This Agreement, sets forth the entire agreement between the parties with regard to the subject matter hereof. No other prior or contemporaneous agreements, representations, or warranties have been made by either party to the other with respect to the subject matter of this Agreement. This Agreement may be amended only by a written agreement signed by both parties.
18. DISPUTES. Client 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, the parties may pursue any remedies, whether based in law, equity or otherwise, in accordance with this Agreement.
19. SEVERABILITY. In the event that a court finds any provision of this Agreement invalid and/or unenforceable, the parties agree that the remaining provisions shall remain valid and in force.
20. WAIVER. Neither party shall be deemed by mere lapse of time (without giving notice or taking other action hereunder) to have waived any breach by the other party of any of the provisions of this Agreement. Further, the waiver by either party of a particular breach of this Agreement by the other party shall not be construed as, or constitute, a continuing waiver of such breach, or of other breaches of the same or other provisions of this Agreement.
21. HOSTING. For so long as Client pays the applicable recurring fees required by this Agreement, Company will continue to host the completed Deliverables on the System. The Client may not, under any circumstances, migrate the Deliverables to a different hosting provider.
22. PATIENT DATA; HIPAA. Client agrees that it will not use the Services to receive, collect, store or process the personally identifiable information of any patients of a health care provider. Accordingly, Client agrees that Company has no obligations under the Health Insurance Portability and Accountability Act of 1996 (as amended, "HIPPA") with respect to any of Client's data and Client will not request Company to execute a business associate agreement with respect to Client.