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A) GENERAL
1) “Service Provider” or “Axis
Creative Group” or “us” or “we” shall
mean Axis Creative Group, LLC., whose registered office
is 255 Butler Avenue, Suite 202, Lancaster, PA 17601.
2) “Client” or “You” shall
mean any person or entity that enters into any contract
or agreement with Service Provider for products and/or
services to be provided by Service Provider, including
without limitation ordering any products or services
through the Service Provider’s website or signing
up as a client. If Client is an entity, Client
warrants that the individual executing these Terms
and conditions on its behalf is duly authorized to
do so.
3) You hereby agree to abide by, comply with and be
legally bound by the policies, terms and conditions
hereinafter set forth (these “Terms and Conditions”).
4) For purposes of these Terms and Conditions, references
to the products and/or services provided by Service
Provider shall include, without limitation, logos,
designs, names, graphics or similar materials or information,
whether or not protectable, printing services, web
design, stationery, brochures, marketing materials,
search engine marketing, other design services, application
development, custom programming applications, and related
services offered by Service Provider, and any and all
future product or service offerings of Service Provider.
B) SCOPE
1) Service Provider agrees to provide products and/or
services for Client (“Work”) in accordance
with all current and future proposals and quotations.
Service Provider and Client (“Parties”)
agree that the policies of these Terms and Conditions
will apply to any proposal or quotation as though incorporated
therein, unless specifically contradicted therein.
It is the Parties’ intent that these Terms and
Conditions be a standing agreement affecting all work
done by Service Provider for Client at any time.
2) The performance by Service Provider of its duties
under these Terms and Conditions will be as an independent
contractor, and nothing in these Terms and Conditions
or any Proposal or Quotation will create or
imply a relationship of regular employment, agency,
joint venture, partnership or other business relationship
between Service Provider and Client.
3) Client may request additional services not
covered by a given proposal or quotation. Service
Provider reserves the right to, at Its sole discretion,
modify the existing proposal or quotation incorporating
the additional services, or create a separate and new
proposal or quotation for the additional services.
C) CONFIDENTIAL INFORMATION
1) All information relating to Client that is known
to be confidential or proprietary, or which is clearly
marked as such, will be held in confidence by Service
Provider and will not be disclosed or used except to
the extent necessary to the performance of Service
Provider’s duties under these Terms and Conditions
and any proposal or quotation with Client.
2) All information relating to Service Provider that
is known to be confidential or proprietary, or which
is clearly marked as such, will be held in confidence
by Client and will not be disclosed or used except
to the extent necessary to the performance of Client’s
duties under these Terms and Conditions and any proposal
or quotation.
3) These obligations of confidentiality do not apply
to the extent necessary to conform with lawful demands
made by any law enforcement agency of the United States
or its subdivisions.
4) These obligations of confidentiality apply indefinitely
despite completion or termination of these Terms and
Conditions or any proposal or quotation, and are binding
upon the Parties and their legal representatives, successors,
and assigns.
D) WARRANTY
1) Service Provider warrants that the Work will be
provided in a workmanlike manner, in conformity with
generally prevailing industry standards.
2) Client acknowledges that web design, application
development and custom programming solutions are inherently
complex and ongoing tasks. Thus, although Service Provider
will thoroughly test its Work before delivery, Service
Provider does not guaranty that the Work will be bug-free.
If Client or Service Provider can identify any application
bugs, deficiencies or other application defects, and
Service Provider is able to reproduce the problems
and determine that they are caused by Service Provider’s
error, Service Provider will make every effort to remedy
these problems. In most cases these fixes are performed
within a forty-eight (48) hour period, though this
time period cannot be guaranteed. This bug-fixing warranty
shall apply for sixty (60) days after Client’s
final acceptance of the Work. Notwithstanding
anything herein to the contrary, the bug-fixing warranty
shall become immediately null and void If anyone other
than a duly authorized agent of Service Provider modifies,
alters or otherwise performs maintenance on the programming
code designed by Service Provider.
3) Notification of Service Provider by Client of any
defects in the Work must be made in writing (e-mail
or letter), and should if possible include all the
information necessary to find and reproduce the problem,
so that it can be solved as quickly as possible.
4) In the absence of notice by Client that defects
remain, the Work will be deemed accepted by Client
after sixty (60) days from the Work’s delivery.
5) THESE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, AND INCLUDING ANY ORAL OR WRITTEN REPRESENTATIONS
MADE ON OR PRIOR TO THE DATE OF THIS AGREEMENT.
E) LIMITATION OF LIABILITY
1) In no event will Service Provider be liable for
any loss of profit or revenue by Client, or for any
other consequential, incidental, indirect or economic
damages suffered by Client, whether in contract, in
tort or otherwise, arising because of or related to
the Work . This limitation applies even if Client has
warned Service Provider of the possibility of such
harm. The total liability of Service Provider for all
claims of any kind arising from or related to these
Terms and Conditions, or due to any act or omission
by Service Provider, will not exceed the amount actually
paid by Client to Service Provider during the twelve
(12) month period before the date the claim arises,
however, there shall be no liability of service provider
for Work that had been previously reviewed and approved
by Client regardless of any subsequently discovered
errors.
2) Client will indemnify and hold Service Provider
harmless against any claims by third parties, including
all costs, expenses and attorneys’ fees incurred
by Service Provider therein, arising out of or in conjunction
with Client’s performance under or breach of
these Terms and Conditions.
3) Client warrants and represents that it is the rightful
owner or licensee of all content that it may provide
to Service Provider for use in the Work. Client will
indemnify and hold Service Provider harmless against
any claims, known or unknown, for infringement of intellectual
property, including but not limited to infringement
of any copyright, trademark, patent or trade secret
made against Service Provider by any third party.
4) Service Provider may make recommendations for third-party
products or services such as a domain name registrar
or Web hosting service, but cannot guarantee the quality
of such products/services or those who provide them.
Service Provider therefore assumes no liability for
such recommendations.
5) Client acknowledges that Service Provider is in
no way responsible for the substantive content, including
but not limited to information conveyed or communications
expressed, of the product resulting from the Work. Client
will indemnify and hold Service Provider harmless from
any claims arising from all current and future substantive
content of the product resulting from the Work.
F) WEB & EMAIL HOSTING
1) Unsolicited Electronic Mail. You are expressly
prohibited from sending unsolicited bulk mail messages
("junk mail" or "spam"). This
includes, but is not limited to, bulk-mailing of commercial
advertising, information announcements, and political
tracts. Such material may only be sent to those who
have specifically requested it. Malicious or threatening
email is also prohibited. We reserve the right to immediately
deactivate your use of our service if we discover such
activity. Further, you agree to indemnify and hold
us harmless from any claim resulting from your use
or distribution of electronic mail services through
the service provided through this Agreement. Anyone
using our services for spamming will be immediately
subject to a $250 cleanup/network abuse fee.
2) Service Provider's hosting servers are not to be
used for the purpose of hosting scripts or images for
data collection or any other purpose to reduce the
load on another Web host, or for any other reason.
Servers are not to be used for the hosting or serving
of file downloads. Any site with traffic or disk usage
consisting more than 33% of file downloads (non html
traffic) may be suspended. Customers are not permitted
to open connections to the server at a rate of more
than 3,000,000 connections/month. Customers are not
permitted to run scripts on their account with us,
to monitor connections and status's of other servers
(gaming servers for example). Customers are not permitted
to get multiple accounts with Service Provider, for
the purpose of getting extra bandwidth only, to avoid
bandwidth overage charges. Customers are not permitted
to host multiple separate domains (not referring to
parked domains) on one account unless this is a feature
of they account they have ordered. Service Provider
can and will terminate accounts of people using our
servers not to host their domain but only scripts.
3) Guaranteed Uptime - The Service Provider network
of computers, will have a guaranteed aggregate average
uptime of 99.5% over the course of three months (90
days). This does not include scheduled downtime for
maintenance on servers, which will be minimal, and
necessary. This also doesn't include mass-network problems
such as major backbone problems.
4) Service Fees - All payments are due on time, without
exception. Accounts with any past due invoices are
at risk of suspension and late fees. Any account suspended
for more than a 30 day period are terminated without
backup.
5) Cancellation - All cancellations must be made in
writing, requests should be sent to support@axiscg.com.
In the event you cancel your service, you will be charged
in full for the entire month in which you canceled
your service. Account cancellations for accounts with
a negative balance will be passed on to collections,
and all services rendered to the party with the negative
balance will be terminated, including domain registrations.
In the event you have elected to prepay subsequent,
additional months' Service Fees, we retain the right
to charge you an administrative fee of 50% and deduct
the administrative fee from the subsequent, future
months' Service Fees before refunding them to you.
There is a $50 administrative fee for any illegitimate
chargebacks placed against us. Any illegitimate chargebacks
or threatened illegitimate chargebacks are grounds
for immediate account cancellation.
6) Hosting Liability - SERVICE PROVIDER MAKES NO WARRANTIES
OF ANY KIND, EXPRESS OR IMPLIED. In no event will Service
Provider be liable for any loss of profit or revenue
by Client, or for any other consequential, incidental,
indirect or economic damages suffered by Client, whether
in contract, in tort or otherwise. You assume all risk
and liability resulting from the use or functionality
of the service, whether used solely or in combination
with other goods and/or services. Service Provider
neither assumes nor authorizes any person to assume
any other liability in connection with the sale or
use of the service. Service Provider will not be held
liable in any capacity for any service failures including
any acts or omissions related to data. In the event
of data loss or a service interruption, Service Provider
will not be held responsible and will have no liability.
G) LIMITED GUARANTEE
1) If Client is not satisfied with the initial drafts
provided by Service Provider, and has paid the full
fee up-front or fifty-percent (50%) of the full fee,
Client may request a refund from Service Provider in
writing within three (3) business days of Client's
receipt of the initial drafts. Upon timely receipt
of the refund request, Service Provider will review
your request and if Service Provider’s management
deems they have not delivered services in an efficient,
effective and workmanlike manner pursuant to the proposal
or quotation, a refund will be issued in the amount
of your total payment, less any out of pocket expenses. Notwithstanding
anything to the contrary herein, no refund shall be
available for Clients who contract our services on
behalf of another person or entity. Furthermore, if
Client requests revisions to any of the initial drafts
Client may still be entitled to a refund, however Service
Provider reserves the right to deduct $100 for each
re-draw/draft after the first, and $50 for each revision
thereafter.
H) NON-ASSIGNMENT
Graphic design, Web design, search engine marketing,
application development and custom programming are
tasks involving the use of personal skill and style
to suit a client’s needs. For this reason neither
Party may assign these Terms and Conditions or any
Proposal in whole or in part without the prior written
consent of the other Party. This Agreement, with the
continued restriction on assignment, is binding upon
the Parties and their legal representatives, successors,
and assigns.
I) WORK PROPERTY OWNERSHIP
1) Ownership, with all right, title and interest
of any work product created as part of the Work shall
reside with Service Provider while the Work is being
performed and shall only pass to Client upon acceptance
by Service Provider of final payment in full for all
such Work.
2) Notwithstanding any provision to the contrary herein,
Service Provider reserves the right to use, display
or demonstrate its Work to current or prospective clients
in a businesslike and prudent manner for purposes of
showing competency and/or capabilities unless otherwise
specifically stated in a Proposal. Any and all confidential
or proprietary information shall be protected as stated
herein. Further, Client agrees to allow Service
Provider to use the Work in advertising and promotional
materials intended for the public at large as Service
Provider may determine. Service Provider will
notify Client of such advertising and promotional plans.
If Service Provider does not receive written instruction
from Client within 72 hours of such notice indicating
that Client does not wish such use of likenesses and
information by Service Provider, Service Provider may,
at its sole discretion, proceed with such use in advertising
and promotional materials.
J) TERMINATION
1) Unless terminated as provided elsewhere in these
Terms and Conditions, any proposal or quotation will
extend to and terminate upon final completion and acceptance
of the Work specified in that proposal or quotation.
2) Client may terminate any Proposal and/or these Terms
and Conditions without cause upon thirty (30) days’ written
notice. In the event of termination without cause,
Client agrees to pay Service Provider for all Work
performed up to the date of termination.
3) Either party may terminate these Terms and Conditions
or any proposal or quotation for material breach on
twenty-one (21) days’ written notice, provided
that opportunity has been given to cure the breach.
Termination for breach will not preclude the terminating
party from exercising any other remedies for breach.
4) Because these Terms and Conditions contains necessary
terms for proposals and quotations, termination of
these Terms and Conditions will be deemed a termination
of all proposals and quotations as well.
5) Neither Party will be held responsible for any delay
or failure in performance of its duties to the extent
that such delay is caused by events or circumstances
beyond the delayed party’s reasonable control.
6) Unless otherwise terminated pursuant to these Terms
and Conditions, these Terms and Conditions shall automatically
terminate on the last day of the continuous two (2)
year period following the last day any Work is performed
on behalf of Client.
7) If these Terms and Conditions are terminated for
any reason, Service Provider will not perform any Work
on behalf of Client unless Client executes new Terms
and Conditions with Service Provider, it being understood
that the provisions of the new Terms and Conditions
may be materially different than these Terms and Conditions. This
provision shall survive the termination of these Terms
and Conditions.
K) ENFORCEMENT & ARBITRATION
1) This Agreement will be governed by and construed
in accordance with the laws of the State of Pennsylvania.
2) If any term of these Terms and Conditions if found
to be unenforceable or contrary to law, it will be
modified to the least extent necessary to make it enforceable,
and the remaining portions of these Terms and Conditions
will remain in force.
3) Any dispute arising under these Terms and Conditions
will be subject to binding arbitration by a single
Arbitrator, through the American Arbitration Association,
in accordance with its relevant industry rules if any.
This arbitration is to take place in Lancaster County,
Pennsylvania. The Arbitrator will have the authority
to grant injunctive relief and specific performance
to enforce the terms of these Terms and Conditions.
Judgment on any award rendered by the Arbitrator may
be entered in any court of competent jurisdiction.
4) If any litigation is needed to enforce the terms
of these Terms and Conditions, the prevailing party
will be entitled to reasonable attorneys’ fees
and costs., and Client hereby consents to the jurisdiction
and venue of the Court of Common Pleas of Lancaster
County, Pennsylvania and/or the United States District
Court for the Middle District of Pennsylvania in any
and all actions or proceedings arising from these Terms
and Conditions, proposals or quotations.
5) A waiver of any breach by either Party will not
be considered a waiver of any succeeding breach or
serve to deny either party any remedy it may have for
further breaches. Any waiver must be in writing and
signed by the waiving party.
L) PRICE & PAYMENT
1) The amount due for any specific project will be
stated in the proposal or quotation.
2) The quoted price in a Proposal does not include
costs of travel or necessary out-of-pocket expenses
such as photocopying, long-distance telephone calls, mailing
or applicable taxes. All such costs are to be
paid by Client In addition to the amount of the proposal
or quotation
3) The quoted price in a Proposal might not include
recurring costs such as, maintenance costs, web hosting
costs, third-party licensing fees. All such costs
are to be paid by Client In addition to the amount
of the proposal or quotation.
4) Charges based on proposals or quotations will be
billed by invoice on a monthly basis. Additional
costs will be billed to Client by invoice thirty (30)
days after such charges are incurred. Payment
may be made by check, money order, wire transfer or
by credit card. Credit card payments will only be accepted
for payment through our website. Credit card transactions
may include a 3% processing fee.
5) Client agrees to review invoices promptly upon receipt,
and to make any requests for explanation or corrections
promptly. Any invoice shall be deemed accepted in full,
seven (7) days after the invoice date unless Service
Provider receives written notice in the form of an
e-mail or letter.
6) All invoices are payable within fourteen (14) days
of receipt. Invoices not paid within thirty (30) days
of receipt will be considered overdue and will be charged
a service fee of 2% per month. Failure to submit payment
within sixty (60) days will result in suspension of
services and the commencement of collection proceedings.
Service Provider does not transfer intellectual property
rights to its work to Client until final payment for
a project is accepted (see below). Client may not use
any portion of Service Provider’s work before
payment has been received and accepted in full. Any
such uses is an infringement of federal copyright law
and may be subject to accompanying penalties.
7) Service Provider reserves the right to change these
payment terms based on clients credit history.
8) The performance of the Work my rely on activity
by or feedback from Client. Client agrees that
if a portion of the Work has been delayed by a period
of at least sixty (60) days because of client's inactivity
or lack of feedback, Service Provider may send Client
an invoice for services rendered, such invoice being
subject to the payment requirements of these Terms
and Conditions.
9) If a proposal or quotation contains an internet
marketing commitment for a designated period of time
with monthly payments, Client agrees that if the Work
related to those proposals or quotations is terminated
by Client prior to the expiration of such designated
period of time, Service Provider may deem the remaining
amounts to be paid under the commitment to be immediately
due and payable by Client. Client shall pay such
amount within thirty (30) days of cancellation, beyond
which time the amounts will be subject to the late
fees as described in these Terms.
M) MERGER
These Terms and Conditions together with any Proposal(s)
or Quotation(s) signed by the Parties constitute the
complete agreement between the Parties with respect
to their subject matter, and supersedes all contracts,
writings or other communications made on or before
the date of signing. No other agreements are part of
the contract. Any change to these Terms and Conditions
or any Proposal(s) must be made mutually in writing.
N) CLIENT'S OBLIGATIONS
1) Client shall provide Service Provider with
one individual contact person who is authorized to
carry out and is responsible for all interactions with
Service Provider regarding the Work.
2) Unless otherwise specified in a proposal or
quotation, Client shall deliver to Service Provider
in electronic form (in any mutually agreeable program
format) the content for use in performing the Work
in a timely manner. Client is solely responsible
for obtaining all required licenses and permissions
to provide and use the content as contemplated in the
proposal or quotation.
Your acceptance of these terms and conditions is presumed unless you communicate otherwise via letter or email.
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