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Last updated: June 1, 2020

Please read these Terms of Use (“Terms”, “Terms of Use”) carefully before using the https://emphaticdesigns.com website (the “Service”) operated by Emphatic Designs (“us”, “we”, or “our”).

Your access to and use of the Service is conditioned on your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who access or use the Service.

By accessing or using the Service you agree to be bound by these Terms. If you disagree with any part of the terms then you may not access the Service.

Links To Other Web Sites

Our Service may contain links to third-party web sites or services that are not owned or controlled by Emphatic Designs.

Emphatic Designs has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party web sites or services. You further acknowledge and agree that Emphatic Designs shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such web sites or services.

We strongly advise you to read the terms and conditions and privacy policies of any third-party web sites or services that you visit.

Governing Law

These Terms shall be governed and construed in accordance with the laws of United States without regard to its conflict of law provisions.

Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. If any provision of these Terms is held to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect. These Terms constitute the entire agreement between us regarding our Service, and supersede and replace any prior agreements we might have between us regarding the Service.

Changes

We reserve the right, at our sole discretion, to modify or replace these Terms at any time. If a revision is material we will try to provide at least 30 days notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion.

By continuing to access or use our Service after those revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, please stop using the Service.

Summary

As a client of Emphatic Designs, you have the power and ability to enter into this contract on behalf of your company or organization. You agree to provide me with everything that I need to complete the project including text, images, fonts, and other information as and when I need it, and in the format that I ask for. You agree to review my work, provide feedback, and sign-off approval in a timely manner and are bound by any deadlines that we set together. 

I have the experience and ability to perform the services you need and I will carry them out in a professional and timely manner. I will attempt to meet all the deadlines set but am not responsible for a missed launch date or a deadline if you have been late in supplying materials or have not approved my work on time at any stage. I will also maintain the confidentiality of any information that you give me.

In consideration of the mutual obligations specified in this Contract, the parties, intending to be legally bound hereby, agree to the following:

Scope of Services. The Client retains the above Service Provider, and the Service Provider agrees to perform for the Client, certain web development services set forth in Exhibit A to this Agreement (the “Services”). Any Service outside of the scope as defined in Exhibit A to this Agreement will require a new Agreement for other services, including separate promotional or email marketing campaigns agreed to by the Parties. The Parties may also set an optional schedule for service deadlines as set forth in Exhibit B to this Agreement.

The Service Provider agrees to engage in the best and commercially reasonable efforts to provide the Services to Client in accordance with the terms of this Agreement. The Service Provider further agrees to provide the Services in a professional and diligent manner consistent with industry standards and good business practice, using efforts comparable to those customarily used in web development and design or of equivalent value and for similar products or services.

Consideration / Compensation. In exchange for the full, prompt, and satisfactory performance of all Services to be rendered to the Client (as determined by the Client), the Client shall compensate the Service Provider as follows:

Basic Plan: $499.00 Initial Set Up Fee + $99.00 Monthly Subscription Rate/$199.00 Initial Set up Fee  + $59.00 Monthly Subscription Rate for the duration of special “Covid Special Pricing”

Plus Plan: $699.00 Initial Set Up Fee + $119.00 Monthly Subscription Rate /$399.00 Initial Set up Fee + $79.00 Monthly Subscription Rate for the duration of special “Covid Special Pricing”

Addon Services: $99.00/$40.00 +additional $20.00/month depending on selection of addon

The Service Provider will invoice the Client on the 5th day of each month. The invoice will include any and all services performed under this Agreement as well as any pre-approved expenses.

Payment will be due within 7 days of the invoice date. A late charge of $10 per month will be added to any invoice not paid on time.

Payments must be made to the Service Provider by credit card or any other approved method of payment accepted by the Service Provider.

Revisions. The Client will be entitled to a total of 3 revisions. Any revisions in excess of that amount will be charged at a rate of $20.00.

Expenses. From time to time throughout the duration of this Web Development Agreement, the Service Provider may incur certain expenses that are not included as part of the Fee for the Services subject to this Agreement.

The Service Provider agrees to keep an exact record of any and all expenses acquired while performing the Services. The Service Provider will submit an invoice itemizing each expense, along with proof of purchase and receipt, every 5 days upon completion of such Services.

If any one expense if over Plan or Addons listed price, the Service Provider agrees to obtain the Client’s written consent before making the purchase.

Invoice Disputes. The Client shall notify the Service Provider in writing of any dispute with an invoice along with any substantiating documentation or a reasonably detailed description of the dispute within 7 Business Days from the date of the Client’s receipt of such invoice subject to dispute.

Client will be deemed to have accepted all invoices for which the Service Provider does not receive timely notification of a dispute and shall pay all undisputed amounts due under such invoices within the period set forth in this Agreement. The Parties shall seek to resolve all such disputes expeditiously and in good faith.

Term and Termination. This Web Development Agreement shall be effective on the date hereof and shall continue until the expressly agree upon date of the completion of the Services, unless it is earlier terminated in accordance with the terms of this Agreement (the “Term”).

If either Party subject to his agreement fails to follow through with their obligations under this Email Marketing Agreement, the non-breaching Party can terminate this Agreement by providing 7  day written notice to the breaching Party.

The Client understands that the Service Provider may terminate this Agreement at any time if the Client fails to pay for the Services provided under this Agreement or if the Client breaches any other material provision listed in this Web Development Agreement in the manner as defined above. Client agrees to pay any outstanding balances within 14 days of termination.

Time is of the Essence. The Service Provider hereby understands and acknowledges that time is of the essence with respect to the Service Provider’s obligations defined in this Agreement and that prompt and timely performance of all such obligations is strictly required.

Supplies and Equipment. The Service Provider, at their own expense, shall furnish their own supplies and equipment necessary to deliver and complete the Services as defined under this Agreement unless otherwise agreed upon by the parties. Should the Client not furnish the agreed upon supplies, the Client understands they will be responsible for reimbursing the Service Provider for all expenses incurred.

Confidentiality and Property Rights. Throughout the duration of this Agreement, it may be necessary for the Service Provider to have access to the Client’s confidential and protected information for the sole purpose of performing the Services subject to this Agreement.

The Service Provider is not permitted to share or disclose such confidential information whatsoever, unless mandated by law, without written permission from the Client. The Service Provider’s obligation of confidentiality will survive the termination of this Web Development Agreement and stay in place indefinitely.

Upon the termination of this Agreement, the Service Provider agrees to return to the Client any and all Confidential Information that is the property of the Client.

Further, the Service Provider shall promptly return to the Client all copies, whether in written, electronic, or other form or media, of the Client’s Confidential Information, or destroy all such copies and certify in writing to the Client that such Confidential Information has been destroyed. In addition, the Service Provider shall also destroy all copies of any Notes created by the Service Provider or its authorized Representatives and certify in writing to the Client that such copies have been destroyed.

Intellectual Property Rights and Ownership. All Intellectual Property and related materials, including but not limited to, moral rights, goodwill, trade secrets, applications for registrations or relevant registration, rights to any trademark, trade tress, patent, copyright, trade name, and industrial design (“Intellectual Property”) that is produced or developed under this Web Development Agreement. The Client understands that the aforementioned is a “subscription service” and shall be the sole property of the Service Provider.

The Service Provider may not use the Client’s Intellectual Property for any purpose other than contracted for in this Web Development Agreement unless the Service Provider has written consent from the Client. The Service Provider shall be responsible for any damages resulting from any unauthorized use of the Client’s intellectual property.

The Service Provider retains the right to use or display such Deliverables in its portfolio of work, future educational publications, and in the marketing, advertising, or promotion of Service Provider’s services. If for any reason Client does not feel comfortable with having their work included in the Service Provider’s portfolio of work, it is the duty of the Client to notify Company.

Service Provider may include in the work produced for Client under this Agreement pre-existing work or materials owned by or licensed to Company. If such work is used in the work produced for Client, such use shall constitute a license to use and distribute such materials.

All Deliverables provided to, but not used by the Client, shall remain the intellectual property of the Service Provider and cannot be used by Client for any purpose.

Indemnification and Release. The Service Provider agrees to take all necessary precautions to prevent injury to any persons or damage to property during the term of this Agreement, and shall indemnify, defend and hold harmless the Client, its officers, directors, shareholders, employees, representatives and/or agents from any claim, liability, loss, cost, damage, judgment, settlement or expense (including attorney’s fees) resulting from or arising in any way out of injury (including death) to any person or damage to property arising in any way out of any act, error, omission or negligence on the part of the Service Provider or any of the Service Provider’s employees in the performance or failure to fulfill any Services or obligations under this Agreement.

No Exclusivity. The Parties subject to this Agreement understand and acknowledge that this Agreement is not exclusive. Each Party respectively agree that they are free to enter into other similar Agreements with other parties.

Independent Contractor. Nothing in this Agreement creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the parties. The Service Provider is an independent contractor pursuant to this Web Development Agreement. Neither party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement, or undertaking with any third party.

Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (“Notice”) shall be in writing and addressed to the parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this section). All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile, or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid).

Dispute Resolution and Governing Law. Parties to this Agreement shall first attempt to settle any dispute through good-faith negotiation. If the dispute cannot be settled between the parties via negotiation, either Party may initiate mediation or binding arbitration in the State of New York.

If the Parties do not wish to mediate or arbitrate the dispute and litigation is necessary, this Agreement will be interpreted based on the laws of the State of New York, without regard to the conflict of law provisions of such state. The Parties agree the dispute will be resolved in a court of competent jurisdiction in the State of New York.

Legal Fees. Should a dispute between the named Parties arise lead to legal action, the prevailing Party shall be entitled to any reasonable legal fees, including, but not limited to attorneys’ fees.

Further Assurances. Upon a party’s reasonable request, the other party shall, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, necessary to give full effect to this Agreement.

Public Announcements. Neither party shall make any statement (whether oral or in writing) in any press release, external advertising, marketing, email marketing, or promotion materials regarding the other party or its business unless: (a) it has received the express written consent of the Other Party; or (b) is required to do so by Law.

Force Majeure. The Service Provider and any of its employees or agents shall not be in breach of this Web Development Agreement for any delay or failure in performance caused by reasons out of its reasonable control. This includes, but is not limited to, acts of God or a public enemy; natural calamities; failure of a third party to perform; changes in the laws or regulations; actions of any civil, military or regulatory authority; power outage or other disruptions of communication methods or any other cause which would be out of the reasonable control of the Service Provider.

Warranties and Representations. The Parties to this Agreement fully represent that they are authorized to enter into this Web Development Agreement. The obligations and performance of either the Service Provider or the Client shall not infringe upon or violate the rights of any third party or violate any other agreement between the Service Provider or Client or, any other individual, business entity, or formal organization, or interfere with any law and or governmental regulation.

No Assignment. This Agreement shall inure to and be binding upon the undersigned and their respective heirs, representatives, successors and permitted assigns. This Agreement may not be assigned by either party without the prior written consent of the other party.

Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

No Waiver. No waiver of or failure to act upon any of the provisions of this Agreement or any right or remedy arising under this Agreement shall be deemed or shall constitute a waiver of any other provisions, rights or remedies (whether similar or dissimilar).

Amendment. This Agreement may be amended only by a writing signed by all of the Parties hereto.

Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement.

Captions for Convenience. All captions herein are for convenience or reference only and do not constitute part of this Agreement and shall not be deemed to limit or otherwise affect any of the provisions hereof.

Entire Agreement. This Agreement constitutes the sole and entire agreement of the Parties regarding the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each Party hereto.


EXHIBIT A

SERVICE(S)

The Service Provider agrees to provide the following web development service(s):
Basic Plan for a website that includes:

Up to 10 pages plus any addon services selected by the client, responsive, managed and hosted

Plus Plan for a website that includes:

Up to 20 pages plus any addon services selected by the client, responsive, managed and hosted

 

EXHIBIT B

SERVICE SCHEDULE

The Parties subject to this Web Development Agreement agree to the following schedule:

Initial Payment: Startup fee paid in full prior to the creation of the website

Subscription Fee: First Payment due 30 days from “launch” of the website

Money-Back Guarantee: Full money-back guarantee of the “Startup Fee” provided within 30 days after “launch” of the website

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