These Terms and Conditions of Use were last modified on June 8, 2021
Access to portions of the Site may require that you agree to additional terms (“Specific Terms”) that, together with these Terms will govern your use of the relevant Site portions. Any relevant Specific Terms will be provided to you before you will be granted first access. Your continued access shall constitute your continued acceptance to any relevant Specific Terms.
IMPORTANT! THESE TERMS AND ANY RELEVANT SPECIFIC TERMS GOVERN YOUR USE OF THE SITE AND OUR INTERNET-BASED MARKETING AND WEB DESIGN SERVICES (“Services”). THESE TERMS AND ANY RELEVANT SPECIFIC TERMS ARE SUBJECT TO CHANGE AT ANY TIME IN COMPANY’S DISCRETION AND YOU ARE ENCOURAGED TO REVIEW THE MOST CURRENT TERMS AND ANY RELEVANT SPECIFIC TERMS EACH TIME YOU VISIT. YOUR USE OF THE SITE AFTER SUCH CHANGES ARE IMPLEMENTED CONSTITUTES YOUR ACKNOWLEDGMENT AND ACCEPTANCE OF THE CHANGES. IF YOU DO NOT WISH TO BE BOUND BY THESE TERMS, DO NOT USE OR ACCESS THE SITE OR USE OUR SERVICES.
OWNERSHIP & LIMITED LICENSE
For so long as you are our customer and paying the Fees required by these Terms, Department 14 Marketing grants to you a non-exclusive right to use the Site and our Services, subject to the restrictions set forth in these Terms and any other restrictions communicated by us in writing. Nothing in these Terms shall prohibit Department 14 Marketing from furnishing our Services to others, including your competitors.
Subject to the limited rights expressly granted hereunder, we reserve all rights, title and interest in and to the Site and our Services, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein. You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Services, use of the Services, or access to the Services without our express written consent. The look and feel of the Site and our Services is copyright © 2016 Department 14 Marketing, LLC. All rights reserved. You may not duplicate, copy or reuse any portion of the visual design elements without our express written consent.
RESTRICTIONS ON USE
You may use the Site only for purposes expressly permitted by the Site. You may not use the Site for any other purpose, including any other commercial purpose, without Company’s express prior written consent. For example, you may not (and may not authorize any other party to) co-brand the Site or frame the Site without the express prior written permission of an authorized representative of Company.
To obtain access to our Services, you will be required to complete a subscription registration. You will be asked to (i) provide certain registration details or other information; (ii) to establish an account specific to you (“Your Account” or “Account”) by choosing the Service plan to be provided by us under the terms and pricing set forth. By signing up for Your Account, you agree to pay the fees (“Fees”) designated for the Service you selected.
To create Your Account, Log-In and/or to participate in any services offered by the Site, you must qualify and agree to the conditions set forth below. Failure to qualify and continuously abide by any of the following conditions constitutes a breach of these Terms. Specifically, you agree that:
You are either (i) the age of legal consent or (ii) you are a minor over the age of thirteen (13) years old and have obtained your parent’s (or your legal guardian’s) permission, for accessing the Site under the laws of any jurisdictions that apply to you. We expressly reserve the right (but do not have the obligation) to request proof of age, at any time;
All information that you provide in your registration form for the purposes of establishing Your Account is true and correct and you will promptly notify us of any changes to such information;
Your Account is for your sole use only and must not be used by any third party. You shall not allow any third party to use Your Account, password, Log-In or User ID to access or use the Site to arrange, enter, and/or participate in services, or for any other purposes. We take no responsibility for any third party access to Your Account. You shall notify us promptly of any unauthorized use of your password and identification and/or breach. You accept responsibility for all activities that occur under Your Account, User ID or password and such use shall be deemed to be use by you;
You have verified and determined that your use of the Site does not violate any law or regulation in any jurisdiction that applies to you. It is your sole responsibility to ensure that this is the case;
You will not use the Site for fraudulent or otherwise illegal purposes;
You understand that we may monitor your Internet access location, without creating an obligation to do so, and may use techniques which are intended to block or restrict access from a jurisdiction in which participation in the Site is illegal or restricted;
You will not mask your identify in any way, including without limitation, IP masking by accessing the Site over any type of Proxy Server, through IP masking software or the like; and
You will ensure that all use of Your Account fully complies with these Terms. We may suspend your access to the Site without notice to you in the event that you do not use the Site for an extended period of time.
Your Account must be registered under your current full legal name, your e-mail address, and your current business address. It is your responsibility to keep your e-mail address current. If you need to update your e-mail address, please contact email@example.com.
To access all or some of the Site, You must have previously established a valid Account as provided herein. Further, you must meet all the conditions described throughout these Terms. You agree and understand that we collect data relating to your Log-In, your use of the Site, and Your Account activity and that some of this information may be made public.
VERIFICATION OF ACCOUNT INFORMATION
We reserve the right (but do not undertake the obligation) to conduct a review, at any time, to validate Your Account information, to ensure that your participation in the Site does not breach these Terms and/or any applicable law. You authorize us and our agents to make any inquiries of you and for us to use and disclose to any third party we consider necessary to validate this information. To facilitate the foregoing validation, you agree to provide sufficient information or documentation as we, in our discretion, may request. If you do not provide such information within thirty (30) days of our request, your responses are incomplete or otherwise insufficient, or we cannot verify the information applicable to Your Account, Your Account may be terminated.
All payments to Company for Fees for Your Account must be made using means of payment that we may approve from time to time. We currently require payments be made by a major credit card (i.e., VISA & MasterCard). All payments must be made from a payment source on which you are the named Account holder. All payments are not refundable, for any reason.
You will be charged in advance for the Services at the beginning of each billing period (“Billing Date”). If we do not receive the full amount of your Fees within 15 days of the Billing Date, a late payment charge of 1.5% per month may be added to your bill and immediately become due and payable. You agree to pay us all reasonable attorney’s fees and costs incurred by us to collect any past due amounts. Your account will be deactivated without further notice if payment is past due, regardless of the dollar amount. You agree to pay any outstanding balance in full within 30 days of cancellation or termination of the Services. We may change our fee structure at any time with thirty (30) days notice.
Here’s How Recurring Payments Work: You authorize regularly scheduled charges to your credit card. You will be charged the amount indicated on the payment page or as outlined by your agreement. A receipt for each payment will be emailed to you and the charge will appear on your credit card statement. You agree that no prior-notification will be provided unless the date or amount changes, in which case you will receive notice from us at least 10 days prior to the payment being collected.
You agree that we will not be liable for any loss caused by any unauthorized use of your credit card or any other method of payment by a third party in connection with the Site.
Any attempt to defraud the Site through the use of credit cards or other methods of payment, or any failure by you to honor charges or requests for payment will result in immediate termination of Your Account and civil and/or criminal prosecution.
In the case of suspected or fraudulent payment, including use of stolen credentials, by anyone, or any other fraudulent activity, we reserve the right to block Your Account. We shall be entitled to inform any relevant authorities or entities (including credit reference agencies) of any payment fraud or other unlawful activity, and may employ collection services to recover payments.
PROCESSING OF ACCOUNT PAYMENTS
Company may use third party electronic payment processors and/or financial institutions (“ESPs”) to process financial transactions. You irrevocably authorize us, as necessary, to instruct such ESPs to handle such transaction and you irrevocably agree that Company may give such instructions on your behalf in accordance with your requests as submitted on the Site. You agree to be bound by the terms and conditions of use of each applicable ESP, and in the event or conflict between these Terms and the ESP’s terms and conditions then these Terms shall prevail.
CANCELLATIONS & REFUNDS
When your paid service begins, you will receive an e-mail receipt. You may cancel Your Account at any time, and you will not be charged further; however, you will not receive a refund for payments that have already processed. Directions for canceling are below.
DIRECTIONS FOR CANCELING YOUR ACCOUNT
Log in to your Department 14 Marketing Account by visiting https://subscriptions.zoho.com/portal/dept14marketing/login.
Click “Subscriptions,” then select the appropriate service(s).
In the upper lefthand corner, click “Cancel Subscription.”
After reading the notes there, click “Cancel Immediately”.
Your Account will be deactivated immediately.
You may also click here to cancel via email.
MODIFICATION & TERMINATION OF THESE TERMS
We may modify these Terms from time to time. When we do, we will post the updated Terms and will note the date it was last revised. When you use the Site after those updates are posted, you are deemed to accept and agree to be bound by those changes. These Terms will continue to apply until terminated by either you or Department 14 Marketing as described below. If you choose to terminate your legal agreement with Department 14 Marketing, you may do so by canceling Your Account on the Site.
We may terminate these Terms, terminate your access to all or part of the Site or our Services, or suspend any user’s access to all or part of the Site or our Services, at any time, without notice to you, if we believe, in our sole judgment, that you have breached or may breach any term or condition of these Terms, if we believe it is required by law, or otherwise. If we terminate your service, or you terminate the service, you will not be entitled to any refund of any sum you have paid us, and we may delete any User Material or other materials relating to your use of the Site and/or our Services on Company’s servers or otherwise in its possession. You acknowledge that Company shall not be liable to you or any third party for any termination of your access to the Site and/or our Services.
You agree that termination will not relieve you of any obligation to pay any accrued charges. You shall be charged the full amount of the fee for the month in which our Services were terminated. All sections which by their nature should survive the expiration or termination of these Terms shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this agreement.
SERVICE USE & LIMITATIONS
We will make reasonable efforts to keep the Services operational except for: (i) planned downtime (for which we will provide at least 8 hours prior notice); or (ii) any unavailability caused by circumstances beyond our control, including but not limited to, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or Internet service provider failures or delays.
NO WARRANTY; DISCLAIMER & LIMITATION OF LIABILITY
We have no obligation to check whether users are using the Site in accordance with these Terms or any other agreement.
You understand that we cannot and do not guarantee or warrant that files available for downloading from the Internet will be free of viruses, worms, Trojan horses or other code that may manifest contaminating or destructive properties. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for accuracy of data input and output, and for maintaining a means external to the Site for the reconstruction of any lost data. We do not assume any responsibility or risk for your use of the Internet.
OUR SERVICES AND ALL MATERIALS ON THE SITE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY, COMPLETENESS, OR SUITABILITY OF ANY OF THE MATERIAL ON THE SITE, OR ON ANY WEBSITE OR WEBSITES “LINKED” TO THE SITE. COMPANY MAKES NO WARRANTY THAT THE SITE AND OUR SERVICES WILL BE AVAILABLE, UNINTERRUPTED, ERROR FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL COMPANY OR ITS AFFILIATES, CONTRACTORS, OR THEIR RESPECTIVE EMPLOYEES HAVE ANY LIABILITY TO YOU FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) (WHETHER BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, THE FAILURE OF ANY LIMITED REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SITE OR OUR SERVICES OR YOUR INABILITY TO USE THE SITE, OUR SERVICES, SITE CONTENT, OR ANY PRODUCTS OR SERVICES, OR ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, EFFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, LINE SYSTEM FAILURE, LOSS OF DATA, OR LOSS OF USE RELATED TO THE SITE, OUR SERVICES, OR ANY WEBSITE OPERATED BY ANY THIRD PARTY.
IF YOU ARE DISSATISFIED WITH US, THE SITE, OUR SERVICES, OR THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE YOUR USE OF THE SITE AND OUR SERVICES.
You agree that Company shall not be responsible or liable for any loss or damage of any sort incurred as the result of your use of the Site or our Services. You hereby release Company, its officers, employees, agents and successors in rights from claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to our Site or our Services.
You agree to defend, indemnify and hold Company, its subsidiaries, affiliates, licensors, content providers, service providers, employees, agents, officers, directors, and contractors (the “Indemnified Parties”) from and against any and all liability, loss or damage, cost or expense, including but not limited to court costs, attorneys’ fees, and any awards or damages caused by, relating to or incident to: (a) your use of our Services; (b) the Site; (c) claims by your customers or payment gateway service provider; or (d) the products and/or services offered through the Site.
THIRD PARTY WEBSITES
We may provide links and pointers to Internet sites maintained by others who are independent from Company (“Third Party Sites”). We have not reviewed all of the Third Party Sites linked to the Site and are not responsible for the content of or any products or services offered on such Third Party Sites. Company makes no representation or warranty as to the accuracy, completeness or authenticity of the information contained in any such website. Your linking to any other website is at your own risk.
From time to time, Company may display or otherwise make available promotions, advertisements and/or offers provided by third parties (“Third Party Promotions”). You understand and agree to hold Company harmless and agree that Company shall have no liability whatsoever for such Third Party Promotions. If you participate in, click on, or otherwise link to such Third Party Promotions you do so solely at your own risk. Your sole remedy in connection with such Third Party Promotions will be with the third party.
UNITED STATES ONLY
All materials on the Site are provided solely for the purpose of promoting our operations and products in the United States and its territories. We make no representation that the products and services on the Site are appropriate or available for use in other locations. If, despite these conditions, you use the Site or our Services from outside the United States, you are solely responsible for compliance with any applicable local laws.
YOU AGREE THAT, EXCEPT AS MAY OTHERWISE BE PROVIDED IN REGARD TO SPECIFIC THIRD PARTY MATERIALS ON THE SITE IN ANY SPECIFIC TERMS APPLICABLE TO THOSE THIRD PARTY MATERIALS, THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THESE TERMS, THE SITE, THE USER CONTENT, SITE CONTENT, AND THIRD PARTY MATERIALS (INCLUDING YOUR VISIT TO OR USE OF THE SITE) SHALL BE FINAL AND BINDING ARBITRATION, except that, to the extent that either of us has in any manner infringed upon or violated or threatened to infringe upon or violate the other party’s patent, copyright, trademark, or trade secret rights, or you have otherwise violated any of the user conduct rules set forth above, then the parties acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought before, during, or after the pendency of any arbitration proceeding brought pursuant to these Terms, or in lieu of such proceedings.
Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association (the “AAA”) under its Commercial Arbitration Rules (collectively the “AAA Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
The arbitration shall be held in Fredericktown, Missouri, at a locale to be proposed by Company, and the allocation of costs and fees for the arbitration shall be determined in accordance with the AAA Rules and shall be subject to the limitations in these Terms. In rendering a decision, the arbitration panel shall follow the law of the United States and of the State of Missouri, and shall not use equitable or other principles which would permit the panel to ignore these Terms or the law. The arbitration panel’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction, provided, however, that errors of law may be appealed to a court of competent jurisdiction for review. Any award in arbitration shall be subject to all dollar and other limitations set forth in these Terms.
To the fullest extent permitted by applicable law, NO ARBITRATION OR CLAIM UNDER THESE TERMS SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SITE, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. In no event shall any claim, action, or proceeding by you related in any way to the Site (including your visit to or use of the Site) be instituted more than one (1) year after the cause of action arose.
These Terms shall be governed by the laws of the State of Missouri without giving effect to any choice or conflict of law or rule (whether of the State of Missouri or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Missouri, provided, however, that disputes concerning patent, federal trademark, or federal copyright matters shall be governed by federal law. You consent to jurisdiction and venue in the state or federal courts of the State of Missouri.
TRADEMARKS, TRADE NAMES, AND SERVICE MARKS
Unless otherwise indicated, all logos, names, package designs, and marks on the Site are trademarks or service marks owned or used under license by us or our business partners. The use or misuse of any of these marks or other information is strictly prohibited.
We grant you permission to print individual pages from the Site, unless otherwise expressly noted, for your noncommercial use in learning about and evaluating the services or products offered on the Site. No other permission is granted to you to print, copy, reproduce, distribute, license, transfer, sell, transmit, upload, download, store, display in public, alter, modify, or create derivative works of these materials.
This grant of permission is not a transfer of title, and under this permission you may not: use the materials for any commercial purpose, or for any public display (commercial or noncommercial); remove any copyright, trademark, or other proprietary notations from the materials; or transfer the materials to another person or “mirror” the materials on any other server, except as permitted by law.
We make no warranties or representations to you that your use of any materials displayed on the Site will not infringe the rights of third parties. In addition, you may not remove or alter, or cause to be removed or altered, any copyright, trademark, trade name, service mark, or any other proprietary notice or legend appearing on any of the content. Modification or use of this content except as expressly provided in these Terms violates Company’s intellectual property rights. Neither title nor intellectual property rights are transferred to you by your access to the Site.
COPYRIGHT & INTELLECTUAL PROPERTY
Company understands the value and importance of intellectual property rights and makes every effort to respect the legitimate intellectual property rights of others. Company does not review all of the material posted on or submitted through the Site and has no responsibility for any content that you may find or access when using Company’s Site, products or services.
Company takes all concerns related to intellectual property seriously and it is our policy, at our discretion and in appropriate circumstances, to cancel, disable or terminate any user’s Account who infringes or appear to infringes the intellectual property rights of others.
If you believe that any material on this website infringes a copyright, or any valid intellectual property right, please provide the following information to our DMCA Agent.
A physical or electronic signature that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works on our website;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Please provide this information to Company’s DMCA Agent, who can be reached as follows:
C/O Department 14 Marketing, LLC
1137 Madison 519
Fredericktown, MO 63645
By E-Mail: firstname.lastname@example.org
Due to IT concerns, attachments cannot be accepted on notices sent via e-mail. Accordingly, any notification of infringement submitted electronically with an attachment will not be received or processed.
Website Maintenance and Support Agreement & Terms
You agree to be bound by and accept these terms as applicable to your purchase of website support and maintenance services from Department 14 Marketing, LLC (Agency). These terms and conditions are subject to change without prior written notice at any time, at the sole discretion of Department 14 Marketing, LLC.
Once a payment card has been secured for payment of a support, training or maintenance request for a problem you’re inquiring about, your project will be put in the Department 14 Marketing work queue and responded to within 2-3 business days. Work will commence on your project based on Priority and chronological order of paid ticket submission.
Monthly Support Subscription Plans
Customers may submit requests for small tasks which can be completed within 30 minutes or less as a part of their monthly maintenance and support subscription.
The time allotted for small tasks may not be spread out over multiple projects, or accrued. Task requests must be included in the list of items in this document for which website maintenance can be used, and must be included as a part of the service plan to which you subscribed. Customers subscribed to the monthly plan must submit all tickets via our support center or via our help desk email at email@example.com. Support request correspondence will be conducted via email.
Non-Subscriber Support Response Time
If you do not wish to purchase a website maintenance plan, you can still submit service requests by posting a ticket within our support center. At that time your support request will be flagged as a ‘Non-Subscriber Request’ and your ticket will be placed at the end of our support work queue. Most non-maintenance support tickets requests are reviewed within 3-5 business days. This does not mean once we respond, your issue will be resolved. Every Non Maintenance Support Request will receive ONE RESPONSE from a support technician within 5-7 business days.
Department 14 Marketing, LLC does not offer emergency support options at this time.
Phone support will be provided at the sole discretion of Department 14 Marketing. Phone support is billed a minimum of 30 minutes at our current hourly rate of $175/hour. For questions email firstname.lastname@example.org
Website maintenance can be used for:
- Backing up files and databases
- Restoring files and database backups
- Managing the files and databases on the server (includes freeing up space, deleting old databases, etc.)
- Managing domain settings (if registrar credentials are provided)
- Managing email settings (includes forwarding options, setting up MX records, setting up new accounts, etc.)
- Managing SSL certificates
- Fixing any bugs related to hosting upgrades
- Installing plugins
- Installing additional themes
- Adjusting any WordPress or plugin configuration
- Applying minor version updates
- Updating or adding site content (static pages, product information, company information, personal information, uploading banner images, language variables, etc.)
- All troubleshooting and bug investigation
- Prevention and/or removal of malware and other security threats
- Fixing any bugs related to hosting upgrades
- Additional WordPress or WooCommerce module training
Minor Content Updates (only if included in your subscription plan):
- Adding new content (text, images, banners) provided by the client
- Promotional updates
- News, offers, and special announcements
- Seasonal content updates
- Creating promotions, coupons or discounts
- Linking social media to your store
Website maintenance cannot be used for:
- Emergency support, custom features and application development.
- Projects that require more than 30 minutes to complete.
- Design Updates (unless included in your plan)
- Content creation or graphics design (unless included in your plan)
- Search engine optimization.
- Customer is responsible for (i) hardware, (ii) internal operating systems and software, (iii) internal network setup, (iv) internal network maintenance and (v) setup and use of any internal file access control systems.
- Customer is responsible for ensuring that its personnel have sufficient training to attain and maintain competence in the operation of the website.
- Customer is responsible for ensuring that all support requests are posted in a support ticket to Department 14 Marketing’s help desk via email@example.com. Our staff will only post tickets when absolutely necessary when our customers are unable.
- Customer is responsible for delivering any images, text, promotional messages, or special parameters for tasks to Department 14 (if applicable under your plan subscription).
Website maintenance plans will automatically renew without notice at the updated current rate and subject to the updated current terms unless the customer notifies Department 14 Marketing in via email thirty (30) days in advance to discontinue a maintenance subscription renewal. Upon notice Department 14 Marketing will deactivate maintenance and support subscription and future support requests will be billable at our full hourly rate of $175/hour.
Errors & Liability
We can’t guarantee that our work will be error-free (we’re human!) so we can’t be liable to you or any third-party for damages, including lost profits, lost savings or other incidental, consequential or special damages, even if you’ve advised us of them. The services and the work product of Department 14 Marketing are sold “as is.” In all circumstances, the maximum liability of Agency, its directors, officers, employees, design agents and affiliates (“Agency Parties”), to client for damages for any and all causes whatsoever, and client’s maximum remedy, regardless of the form of action, whether in contract, tort or otherwise, shall be limited to the gross profit of the Agency’s work associated with this agreement for the client. In no event shall Agency 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 Agency, even if Agency has been advised of the possibility of such damages.
Client Agreement to Pay
You agree to pay our monthly invoice upon receipt which will act as a deposit for the project. Every invoice after that will have 15 day payment terms. In the event payment is not made within 15 days, Department 14 Marketing will charge a late payment fee of 5% per month on any overdue and unpaid balance not in dispute, to cover the manpower, interest, and other costs Department 14 Marketing pays for carrying overdue invoices. In addition Department 14 Marketing also reserves the right to immediately stop work until payment is received.
The formation, construction, performance and enforcement of this Agreement shall be in accordance with the laws of the United States and the State of Missouri without regard to its conflict of law provisions or the conflict of law provisions of any other jurisdiction.
In the event of a dispute arising out of this Agreement, the parties agree to attempt to resolve any dispute by negotiation between the parties. If they are unable to resolve the dispute, either party may commence mediation and/or binding arbitration through the American Arbitration Association, or other forum mutually agreed to by the parties. The prevailing party in any dispute resolved by binding arbitration or litigation shall be entitled to recover its attorneys’ fees and costs. In all other circumstances, the parties specifically consent to the jurisdiction and venue of the Circuit Court of Madison County, Missouri. The parties hereby waive any jurisdictional or venue defenses available to them and further consent to service of process by mail. Client acknowledges that Agency will have no adequate remedy at law in the event Client uses the deliverables in any way not permitted hereunder, and hereby agrees that Agency shall be entitled to equitable relief by way of temporary and permanent injunction, and such other and further relief at law or equity as any arbitrator or court of competent jurisdiction may deem just and proper, in addition to any and all other remedies provided for herein.
Waiver of Breach
The waiver by a party of a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of any other or subsequent breach by the party in breach.
If any provision of this Agreement is held to be illegal, invalid, or unenforceable under any present or future law, then that provision will be fully severable. In such instance, this Agreement will be construed and enforced as if the illegal, invalid, or unenforceable provision had never comprised a part of this Agreement, and the remaining provisions of this Agreement will remain in full force and effect.
This Agreement may not be assigned by either party without the prior written consent of the other party; provided, however, that the Agreement shall be assignable by the Client without the Agency’s consent in the event the Client is acquired by or merged into another corporation or business entity. The benefits and obligations of this Agreement shall be binding upon and inure to the parties hereto, their successors and assigns.
The numbering and captions of the various sections are solely for convenience and reference only and shall not affect the scope, meaning, intent or interpretation of the provisions of this Agreement nor shall such headings otherwise be given any legal effect.
Compliance with Laws
Agency shall use commercially reasonable efforts to ensure that all Final Deliverables shall be designed to comply with the known relevant rules and regulations. Client, upon acceptance of the Deliverables, shall be responsible for conformance with all laws relating to the transfer of software, technology, and data privacy laws or regulations.
The Agency warrants and represents that it will not willfully violate the intellectual property rights of any third party in its performance of the Services. The Client warrants and represents that any content provided to the Agency to facilitate the performance of the Services shall not violate the intellectual property rights of any third party and shall indemnify the Agency against any claim that results from the provision of such allegedly infringing content.
Representations and Warranties
The parties each individually represent and warrant that each has full power and authority to enter into this Agreement and to perform all of their obligations hereunder without violating the legal or equitable rights of any third party.