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Ensemble Consultants, Inc Terms of Service
This Terms of Service Agreement ("
Agreement ") is entered into as of the
date on which the Customer first uses the website,
www.ECSnap.com (as defined below) ("
Effective Date ") by Ensemble
Consultants, Inc (" EC ") and
Customer (" Customer ").
R E C I T A L S
WHEREAS , EC is the website
designer that offers graphic design services and
web page coding (" ECSnap Design Services
") and implementation support to initiate
such services.
WHEREAS , Customer wants to
retain EC to allow Customer to use the ECSnap
Design Services under the terms and conditions set
forth in this Agreement.
WHEREAS , ECSnap.com is the website owned &
operated by EC that offers ECSnap design services
to the Customers.
WHEREAS, The Profiler is a document created by the
Customer for EC's use. This documents includes all
changes & specifications put forth to render
ECSnap Design Services
NOW THEREFORE , in consideration
of the mutual covenants and agreements hereinafter
set forth, and for other good and valuable
consideration, Customer and EC agree to the
foregoing and as follows:
AGREEMENT
This Agreement constitutes the entire and only
agreement between EC and Customer. This Agreement
supersedes all prior or contemporaneous
agreements, representations, warranties and
understandings with respect to EC, the content,
products, and services provided by or through EC
and the subject matter of this Agreement. This
Agreement may be amended at any time by us from
time to time without specific notice to Customer.
Customer should review this Agreement prior to
each use of ECSnap.com.
NON EXCLUSIVITY
The
parties acknowledge and agree that EC is providing
access to multiple customers and that such
services are non-exclusive and non-transferable.
COPYRIGHT
The
products, content, graphics, design, and other
matters related to ECSnap.com are protected under
applicable copyrights. The copying,
redistribution, use or publication of any such
matters or any part of ECSnap.com is strictly
prohibited except by special agreement between EC
and Customer. Customer does not acquire ownership
rights to any content, product or other matters
viewed and delivered through use of ECSnap.com.
All the copyrights for ECSnap.com products as
stated in the Agreement are reserved.
ARCHIVE
Customer agrees to archive all design work
including web pages, logos and other graphic work
created by ECSnap.com Design Services. EC is not
responsible for archiving documents, graphic work,
physical goods or web pages created for client or
documents, graphic work, physical goods or files
which are mailed, email or faxed to EC.
RESTRICTIONS
Customer agrees that Customer will not: (a) sell,
lease, license or sublicense the ECSnap Design
Services; (b) copy or reproduce all or any part of
the ECSnap.com (except as expressly provided for
herein); (c) interfere, or attempt to interfere,
with the ECSnap.com in any way; (d) engage in
spamming, mailbombing, spoofing or any other
fraudulent, illegal or unauthorized use of the
ECSnap.com; (e) engage in or allow any action
involving ECSnap.com that is inconsistent with the
terms and conditions of this Agreement.
DESIGN CONTENT
Customer takes full responsibility for all content
suggested or supplied to EC for inclusion on web
document(s), advertisement(s) or any form of
media. Customer is held legally liable for the
supplied content. Customer agrees to abide by all
local, state, national, and international laws
regarding trademarks, patents and copyrights.
IMPLEMENTATION
EC
is only responsible for implementing the project
as specified in the post order project description
document entitled, “The Profiler”. If the customer
wishes to make additional changes that are not
mentioned in “The Profiler” they should request an
additional quote, otherwise they agree to accept
the delivered result.
CANCELLATION OF ORDER
EC
has a right to cancel the order and refund in the
following cases:
a) The client does not include all the data
necessary for customization in “The Profiler.”
b)
If the content mentioned in “The Profiler” is
deemed unsuitable for any reason whatsoever by the
Company.
c) The client demands
unreasonable revision of the order.
-
Our billing officers suspect the payment to be
fraud.
EXTRA QUOTE
EC
has the right to set an extra price quote if the
client wishes to make additional project changes
which were not stipulated before and were not
stated in the project description.
GUARANTEE OF SCHEDULE
ECSnap Design Service warrants that: (a) EC has
the authority to enter into this Agreement and
perform its obligations under this Agreement; and
(b) ECSnap.com will perform the services required
under this Agreement in a professional and
workmanlike manner.
EC
does not guarantee to complete modification to
schedule specified in the Profiler. Breaks in
production may happen because of customer's
activity (i.e. the Customer doesn't give us all
the data necessary for customization or gives
false contacts).
AUTHENTICATION
EC
has a right to request authentication of the
cardholder (such as a scanned image of the credit
card without its numbers and credit card
statement) if our billing officers suspect the
payment to be fraud.
APPLICATION & USE FEE
All
rates and prices quoted herein are in U.S.
Dollars. Any and all charges will appear on your
credit card statement. You understand and agree
that the service provided is billed in advance. A
Twenty Dollar ($20) collection fee will be charged
for all dishonored checks.
LATE PAYMENTS
If
Customer fails to pay any fees by the applicable
due date, EC will have the right to: (a) assess
late charges in an amount equal to the greater of
five percent (5%) per month or the maximum
allowable under applicable law; and/or (b) suspend
access to any or all of the ECSnap Design Services
and/or performance of the services provided by
ECSnap.com Design Service hereunder and/or
terminate this Agreement. Any such suspension or
termination will not relieve Customer from paying
any outstanding fees plus interest and late
charges. Customer will be responsible for any
costs associated with collecting such fees
including, without limitation, legal costs,
attorneys' fees, court costs and collection agency
fees.
CUSTOMER WARRANTY
Customer represents and warrants to EC that: (a)
Customer has the authority to enter into this
Agreement and perform its obligations under this
Agreement; (b) Customer and its Authorized Users
will only use the ECSnap.com for lawful purposes
and will not violate any law of any country or the
intellectual property rights of any third party;
and (c) Customer warrants that it is not located
in a country where export or re-export of the
contents of information received via the Internet
is prohibited. Should Customer receive notice of
any claim regarding the EC, Customer shall
promptly provide EC with a written notice of such
claim.
PROJECT DELIVERY
As soon as the Customer
receives the download link and accepts the result
the project is considered to be implemented
successfully and isn't to be reviewed or revised.
CANCELLATION FEE
In
consideration of the necessary set-up requirements
and billing costs associated with our design
services, a cancellation fee amounting to 10% of
the total project cost is standard procedure. This
fee is allocated only after a project has been
billed and is independent of any other charges
associated with the canceled project.
LICENSE
Our
website grants you non-exclusive limited license
to use the web templates and other products sold
through ECSnap.com by independent content
providers (the "products") in accordance with
these Terms and Conditions (the "license") issued
by our company.
LIMITED USAGE GRANTED
You may use each individual product on a single
website only, belonging to either you or your
client. You have to purchase the same product once
more in order to make another project with the
same design
MODIFICATIONS
You are authorized to make any necessary
modification(s) to our products to fit your
purposes.
UNAUTHORIZED USE
You may not place any of our products, modified or
unmodified, on a diskette, CD, website or any
other medium and offer them for redistribution or
resale of any kind without prior written consent
from our company.
ASSIGN ABILITY
You may not sub-license, assign, or transfer this
license to anyone else without prior written
consent from EC
OWNERSHIP
You may not claim intellectual or exclusive
ownership to any of our products, modified or
unmodified. All products are property of
independent content providers. Our products are
provided "as is" without warranty of any kind,
either expressed or implied. In no event shall our
juridical person be liable for any damages
including, but not limited to, direct, indirect,
special, incidental or consequential damages or
other losses arising out of the use of or
inability to use our products.
REFUNDS
Since EC is offering non-tangible irrevocable
goods we do not issue refunds after the product is
downloaded once, which you are responsible for
understanding upon purchasing any article at our
site. We only make exceptions with this rule when
the product appears to be not-as-described on a
case by case basis in agreement of the parties
concerned. The deadline for any refund claim is
one week after the delivery date
INDEMNIFICATION
Customer agrees to indemnify, defend (at EC's sole
option and at Customer's sole expense) and hold
harmless EC, its managers, directors, officers,
employees, independent contractors and agents, and
defend any action brought against same with
respect to any claim, demand, cause of action,
debt or liability, including reasonable attorneys'
fees, to the extent that such action is based upon
a claim arising out of or relating to Customer's
use of and/or access to the ECSnap or services
provided hereunder. Customer specifically
acknowledges that EC shall not be liable to
Customer for losses, if any, incurred as a result
of fraudulent or unauthorized misuse of ECSnap.com.
PRIVACY POLICY
EC pledges that the information you enter will not
be shared with any outside party for commercial or
personal gain, except for in fraud cases & cases
involving civil & criminal inquiry of the
Customer.
LIABILITY
EC's LIABILITY UNDER THIS AGREEMENT FOR
ANY DIRECT DAMAGES OF ANY KIND WILL NOT EXCEED AN
AMOUNT EQUAL TO THE AMOUNT PAID BY CUSTOMER TO EC
THROUGH THE DATE EC LIABILITY TO CUSTOMER ACCRUES.
IN NO EVENT SHALL EC BE LIABLE FOR INCIDENTAL OR
CONSEQUENTIAL DAMAGES OR LOST PROFITS.
DISCLAIMER
EC
is marketing & technology company focused on web
design and application development. ECSnap Design
Services through ECSnap.com or otherwise are
executed by EC and its vendors.
EXCEPT AS OTHERWISE
SET FORTH HEREIN, EC MAKES NO REPRESENTATIONS OR
WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY
REGARDING OR RELATING TO ANY OF THE SERVICES
AND/OR ACCESS TO OR USE OF THE ECSnap.com PROVIDED
TO CUSTOMER UNDER THIS AGREEMENT. EC SPECIFICALLY
DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE
AND NONINFRINGEMENT.
CONFIDENTIAL
INFORMATION
" Confidential
Information " will include the terms of this
Agreement, any software and services provided by
EC under this Agreement, the prices and fees
charged under this Agreement, any other materials
marked confidential by Customer or EC and any
other information conveyed under this Agreement
that is identified in writing as confidential at
the time of its conveyance. Each party
acknowledges and agrees that: (a) the Confidential
Information constitutes valuable trade secrets of
the party owning such Confidential Information;
(b) it will use Confidential Information solely in
accordance with the provisions of this Agreement;
and (c) it will not disclose, or permit to be
disclosed, the Confidential Information of the
other party to any third party without the
disclosing party's prior written consent. Each
party will take all reasonable precautions
necessary to safeguard the confidentiality of the
other party's Confidential Information including,
at a minimum, those precautions taken by a party
to protect its own Confidential Information, which
will in no event be less than a reasonable degree
of care. Confidential Information will not include
information that is: (d) publicly available; (e)
already in the other party's possession and not
subject to a confidentiality obligation; (f)
obtained by the other party from any source
without any obligation of confidentiality; (g)
independently developed by the other party without
reference to the disclosing party's Confidential
Information; or (h) required to be disclosed by
order of a court or other governmental entity;
provided no less than ten (10) days written notice
is given to the party owning such Confidential
Information so that such party may obtain a
protective order or other equitable relief.
RIGHTS
No right (except for
the license granted in ), title or interest of
intellectual property or other proprietary rights
in and to EC and/or other products or services
made available under this Agreement is transferred
to Customer hereunder. EC and its third party
licensors retain all right, title and interests,
including, without limitation, all copyright,
intellectual property and other proprietary rights
in and to the EC. Customer will retain all right,
title and interest to the documents created by EC
once payment has been received in full.
TERMINATION
EC shall have the
right, upon written notice to Customer, to
terminate this Agreement if: (a) Customer fails to
timely pay EC any amount due to EC under this
Agreement; (b) Customer materially breaches any
term or condition this Agreement, provided such
breach is not cured by Customer within thirty (30)
calendar days following EC's notice to Customer of
such breach; or (c) Customer (i) terminates or
suspends its business activities; (ii) becomes
insolvent, makes an assignment for the benefit of
creditors, or becomes subject to direct control of
a trustee, receiver or similar authority; or (iii)
becomes subject to any bankruptcy or insolvency
proceeding under federal or state statutes.
ABONDENED PROJECT
During any stage of
the design process, EC's designer or project
manager will be working with Customer to gather
information to start, feedback to revise, or
approval to complete your project. Prompt response
will be necessary for the project to move forward
in a timely manner. If a response is not received
from the client for more than 60 days, the design
project is considered “abandoned” and payment is
surrendered to EC in full.
Customer will have the
right, upon written notice to ECSnap.com, to
terminate this Agreement if ECSnap.com is in
material breach of this Agreement and ECSnap.com
fails to remedy such material breach within thirty
(30) calendar days of its receipt of such written
notice.
NOTICES
Any written notice
required or permitted to be delivered pursuant to
this Agreement will be in writing and will be
deemed delivered: (a) upon delivery if delivered
in person; (b) three (3) business days after
deposit in the United States mail, registered or
certified mail, return receipt requested, postage
prepaid; (c) upon transmission if sent via
telecopier, with a confirmation copy sent via
overnight mail; (d) one (1) business day after
deposit with a national overnight courier; (e)
upon transmission if sent via e-mail with a
telecopy sent the same day, in each case
addressed, in the case of Customer, the address
listed in EC' records, or in the case of EC, to
Ensemble Consultants, Inc, 212 East Tomarus Avenue
Savoy, IL 61874 (or to such other address
as may be specified upon notice).
ASSIGNMENT
Customer will not
assign or otherwise transfer this Agreement, in
whole or in part, nor delegate or subcontract any
of its rights or obligations hereunder, without
ECSnap.com' prior written consent, which consent
may be withheld, delayed or conditioned in
ECSnap.com' discretion. ECSnap.com will have the
right to assign this Agreement, in whole or in
part, to a third party at any time upon written
notice to Customer.
FORCE MAJEURE
Neither party shall
have any liability to the other or to third
parties for any failure or delay in performing any
obligation under this Agreement due to
circumstances beyond its reasonable control
including, without limitation, acts of God or
nature, actions of the government, fires, floods,
strikes, civil disturbances or terrorism, or
power, communications, satellite or network
failures.
WAIVER
Any waiver or
modification of this Agreement will not be
effective unless executed in writing and signed by
an authorized representative of EC and Customer.
The parties expressly disclaim the right to claim
the enforceability or effectiveness of: (a) any
amendments to this Agreement that are not executed
by an authorized representative of EC and
Customer; (b) any oral modifications to this
Agreement; and (c) any other amendments that are
based on course of dealing, waiver, reliance,
estoppal or similar legal theory. The parties
expressly disclaim the right to enforce any rule
of law that is contrary to the terms of this
Section. The failure of either party to enforce,
or the delay by either party in enforcing, any of
its rights under this Agreement will not be deemed
to be a waiver or modification by such party of
any of its rights under this Agreement.
SEVER ABILITY
If any provision of
this Agreement is held to be unenforceable, in
whole or in part, such holding will not affect the
validity of the other provisions of this
Agreement, unless EC in good faith deems the
unenforceable provision to be essential, in which
case EC will have the right to terminate this
Agreement.
PUBLIC ANNOUNCEMENTS
Customer grants EC the
right to use Customer's name in press releases,
product brochures and financial reports indicating
that Customer is a customer of EC.
COUNTERPARTS
This Agreement may be
executed in counterparts, each of which so
executed will be deemed to be an original and such
counterparts together will constitute one and the
same agreement.
VENDORS
Third Party
Beneficiaries . Customer acknowledges that some
ECSnap Design Services may be provided by Third
Party Licensors. Third Party Licensors are third
party beneficiaries to this Agreement.
LAW
Jurisdiction; Dispute
Resolution with Third Party Licensors . This
Agreement will be interpreted and construed in
accordance with the laws of the State of Illinois,
without regard to conflict of law principles. All
disputes arising out of this Agreement shall be
brought only in the district and federal courts
located in or for Savoy County, Illinois. EACH
PARTY CONSENTS TO THE EXCLUSIVE PERSONAL
JURISDICTION AND VENUE OF THE COURTS, STATE AND
FEDERAL, LOCATED IN OR FOR Savoy, ILLINOIS .
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