User’s Acknowledgment and Acceptance of Terms

 

These Terms and Conditions, set forth the terms and conditions pursuant to which brandiD (“Company”,“we”, “us”, or “our”) will provide the Services to you (“Agreement”).  We may update this Agreement from time-to-time. In the event of a material change to this Agreement, we will provide you with written notice. Your continued use of the Services following such updates constitutes your acceptance of the same. If you do not agree to the terms of any modification, you may terminate this Agreement in accordance with the Termination section below.

 

1. SCOPE OF SERVICES

   (a) Client hereby retains Company to provide hosting and maintenance services in connection with project. The details of service are reflected in the attached Scope of Work. The terms of the Scope of Work are incorporated into this Agreement by reference.

2. CLIENT DUTIES

   (a) Compensation: In consideration for the services provided by Company to Client as set forth in section 1 above, Client agrees to pay Company an annual upfront fee of $575.00 per website that falls into the Tier 1 category or $775 per website that falls into the Tier 2 category. Company’s obligation to render services on a monthly basis hereunder is conditioned upon Client’s payment of said fee on a timely basis. The project fee shall be paid in full. Company reserves the right not to continue work or deliver work product until all outstanding penalty payments have been made. Payments shall be made via our online payment system.

3. Termination

   Client may cancel this Agreement for any reason by providing a minimum of 30 days written notice to Company. Cancellation of this Agreement by Client will not extinguish Client’s obligation to pay the project fees specified in Paragraph 2(a). Company may cancel this Agreement at any time for any reason by providing written notice to Client. In the event that Company cancels this Agreement, Company will provide a prorated refund of any unearned fees paid.

4. NO GUARANTEES

   Company cannot guarantee the outcome of hosting and maintenance services and Company’s comments about the outcome are expressions of opinion only. Company makes no guarantees other than that the services described in Paragraph 1(a) shall be provided to Client in accordance with the terms of this agreement. Due to the changing nature of technology, Company reserves the right to replace any existing technology with another technology of similar look and function at its discretion.

5. CONFIDENTIALITY

   (a) Client Information: Any and all Client information and data of a confidential nature, including, but not limited to any and all design, creative, marketing, sales, operating, performance, know how, business and process information (hereinafter referred to as “Confidential Information”), shall be treated by Company in the strictest confidence and not disclosed to third parties or used by Company for any purpose other than for providing Client with the services specified hereunder without Client’s express written consent, other than to comply with law. Confidential Information shall not include any information which (a) becomes available to the public through no breach of confidentiality by Company, (b) was in Company’s possession prior to receipt from the disclosure, (c) is received by Company independently from a third party free to disclose such information, or (d) is independently developed by Company without use of the Client’s Confidential Information. Upon request, Company hereto will promptly return or destroy all documents containing Confidential Information and delete all electronic records of or containing the same.

   (b) Non-Disparagement: Client shall, during and after the participation in and use of the Company’s services, refrain from making any statements or comments of a defamatory or disparaging nature to any third party regarding Company, or any of Company’s officers, directors, employees, personnel, agents, policies, services or products, other than to comply with law.

6. WARRANTIES

   (a) Company’s Warranties: Company represents, warrants and covenants that, Company has full authority to enter into this Agreement and all of the services, whether performed by Company or any of its subcontractors, will be rendered using sound, professional practices and in a competent and professional manner by knowledgeable and qualified personnel.

   (b) Client’s Warranties: Client represents, warrants and covenants that Client has full authority to enter into this Agreement and has or will obtain, during all times relevant hereunder, all of the necessary consents, rights, licenses, clearances, releases or other permissions to lawfully consummate the transactions and lawfully discharge, in all material respects, each and every of Client’s obligations or duties set forth hereunder, whether performance is due now or hereafter during the Term.

   (c) EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED THROUGHOUT THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED.

7. LIMITATION OF LIABILITY

   (a) IN NO EVENT SHALL COMPANY HAVE ANY LIABILITY TO CLIENT FOR ANY LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, MULTIPLE, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; AND

   (b) IN NO EVENT SHALL COMPANY’S LIABILITY TO CLIENT EXCEED THE FEES PAID UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY.

   (c) THE FOREGOING LIMITATIONS IN THIS SECTION 11 SHALL NOT APPLY TO A BREACH OF CONFIDENTIALITY BY A PARTY HEREUNDER OR THE OBLIGATIONS UNDER PARAGRAPHS 6, 9 AND 19.

8. EFFECT OF HEADINGS

   The subject headings of the paragraphs and subparagraphs of this Agreement are included for convenience only and shall not affect the construction or interpretation of any of its provisions.

9. ENTIRE AGREEMENT; MODIFICATION; WAIVER

   This Agreement constitutes the entire agreement between the parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations, and understandings of the parties. No supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by all the parties. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.

10. NEUTRAL CONSTRUCTION

    This Agreement was prepared by Company and/or Company’s legal counsel. It is expressly understood and agreed that this Agreement shall not be construed against Company merely because it was prepared by its counsel; rather, each provision of this Agreement shall be construed in a manner which is fair to both parties.

11. COUNTERPARTS

    This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

12. ASSIGNMENT

    This Agreement shall be binding on, and shall inure to the benefit of, the parties to it and their respective heirs, legal representatives, successors, and assigns; provided, however, that Client may not assign any of its rights under this Agreement, except to a wholly owned subsidiary entity of Client. No such assignment by Client to its wholly owned subsidiary shall relieve Client of any of its obligations or duties under this Agreement.

13. NOTICES

    All notices, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed to have been duly given on the date of service if served personally on the party to whom notice is to be given, or on the day after mailing if mailed to the party to whom notice is to be given, by first class mail, registered or certified, postage prepaid, and properly addressed as follows:

    To Company at: 4017 Washington Road, PMB #202, McMurray, PA 15317

    Any party may change its address for purposes of this paragraph by giving the other parties written notice of the new address in the manner set forth above.

14. GOVERNING LAW; VENUE; MEDIATION

    This Agreement shall be construed in accordance with, and governed by, the laws of the Pennsylvania as applied to contracts that are executed and performed entirely in Pennsylvania. The exclusive venue for any court proceeding based on or arising out of this Agreement shall be Allegheny County. The parties agree to attempt to resolve any dispute, claim or controversy arising out of or relating to this Agreement by mediation, which shall be conducted under the then current mediation procedures of The CPR Institute 9 for Conflict Prevention & Resolution or any other procedure upon which the parties may agree. The parties further agree that their respective good faith participation in mediation is a condition precedent to pursuing any other available legal or equitable remedy, including litigation, arbitration or other dispute resolution procedures.

15. RECOVERY OF LITIGATION EXPENSES

    If any legal action or any arbitration or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default, or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party or parties shall be entitled to recover reasonable attorneys’ fees and other costs incurred in that action or proceeding, in addition to any other relief to which it or they may be entitled.

16. SEVERABILITY

    If any term, provision, covenant, or condition of this Agreement is held by an arbitrator or court of competent jurisdiction to be invalid, void, or unenforceable, the rest of the Agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated.

INCLUSIONS

EXCLUSIONS

Please note that this hosting and maintenance scope of work does not include:

• Changes to text, images, or other website content that was not impacted by an update.
• Updates to plugins or themes not installed by your brandiD team.
• Corrective action in the event that the site is damaged due to user error, malicious code, malware, or other factors beyond our control.
• Domain name renewals – brandiD will aid the client in configuring the DNS settings to point to our hosting environment and to an appropriate email service, but brandiD is not responsible for renewing or maintaining the client’s third party domain name hosting.  

 

FINE PRINT

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PREMIUM PLUGINS AND TOOLS  – we provide hosting approved third-party plugins for clients that host and maintain their website with us. The hosting provider allows certain verified plugins to be installed onto your website. Installing third-party plugins that have not been verified by the Hosting Provider may result in your site getting hacked or disabled. SECURITY  – we are not responsible for any damage done to a clients’ website after launch; this includes, but is not limited to, any investigation and/or corrective action taken in the event that the site is damaged due to user error, malicious code, malware, or other factors beyond our control. In the event of such error or attack, you will be notified as soon as possible, we will engage a verified 3rd party malware expert and begin the cleanup and restoration process. You will be updated throughout the restoration process. NOTE – fees incurred for repair, restoration and resubmission to Google are not included in this annual agreement. They will be assessed separately and are typically billed on an hourly basis. UPDATES – we will perform updates and maintenance to your website on a monthly schedule. If for any reason you would not like your site updated please notify Nicole, info@thebrandid.com by the 1st of the month.  CANCELLATIONS – termination of this agreement will result in a handling fee that will be assessed at the point of cancellation.  If needed, we are be able to package your website to be moved to another host or install your site on a new host if you choose. The client will also be responsible for any additional expenses incurred due to the cancellation such as project management and/or communication.  Please submit your request via email to Billing – Billing@thebrandiD.com.  COMMUNICATION – if you have any questions or concerns while hosting with us you may contact Nicole, info@thebrandid.com. Please be sure that we have an updated email address for one point of contact in case we need to reach out at any point.