Terms
Representations and title
Illumine8 hereby represents, warrants and covenants to the Client that Illumine8 will perform the Scope of Work in a professional and workmanlike manner and in accordance with all reasonable professional standards for such services. Illumine8 does not warrant in any form the results or achievements of the services provided or the resulting work product and deliverable.
THE WARRANTY SET FORTH IN THIS SECTION IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE SERVICES WORK PRODUCT OR DELIVERABLES PROVIDED UNDER THIS AGREEMENT OR AS TO THE RESULTS WHICH MAY BE OBTAINED THEREFROM. ILLUMINE8 DISCLAIMS ANY AND ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST INFRINGEMENT. ILLUMINE8 SHALL NOT BE LIABLE FOR ANY SERVICES OR WORK PRODUCT OR DELIVERABLES PROVIDED BY THIRD PARTY VENDORS IDENTIFIED OR REFERRED TO THE CUSTOMER BY ILLUMINE8 DURING THE TERM OF THIS AGREEMENT PURSUANT TO ANY SOW OR OTHERWISE. THE EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY IS REPERFORMANCE OF THE SERVICES OR IF REPERFORMANCE IS NOT POSSIBLE OR CONFORMING, REFUND OF AMOUNTS PAID UNDER THIS AGREEMENT FOR SUCH NON-CONFORMING SERVICES.
Expressly conditioned upon payment in full by Client, Illumine8 assigns to Client all ownership rights, title, and interest, including any copyrights, (only to the extent Illumine8 has the legal right to make such assignments of its services and/or work products) in and to the work products provided by Illumine8 pursuant to this Scope of Work, any modifications maintenance, artworks or designs provided as part of this Scope of Work by Illumine8 for use by Client as a trademark. Notwithstanding the foregoing, Illumine8 shall be permitted to use all works in its professional portfolio after such works have been made public by Client. All intellectual property rights in all pre-existing works and derivative works of such pre-existing works and other deliverables and developments made, conceived, created, discovered, invented, or reduced to practice in the performance of the services hereunder are and shall remain the sole and absolute property of Illumine8, subject to a worldwide, non-exclusive license to Client for its internal use as intended under this agreement. This agreement does not grant Client any license to any of Illumine8’s products, which products must be licensed separately.
The parties expressly acknowledge that this contract does not create an exclusive relationship between the parties. Client is free in the future to engage others to perform services of the same or similar nature to those provided by Illumine8, and Illumine8 shall be entitled to offer and provide marketing, HubSpot and web development services to others, solicit other clients and otherwise advertise the services offered by Illumine8.
Upon cancellation or termination of this Contract, provided that Client has made all required payments due hereunder, Illumine8 shall transfer all right, title, interest, ownership, and control of the Client website and other electronic assets to Client or to an alternative web host of Client’s choosing. Such website transfer(s) shall end Illumine8’s obligation to perform any additional services hereunder. After such transfer, Illumine8 shall retain any liabilities arising under this agreement prior to such transfer but shall have no liabilities arising with respect to the website thereafter.
Client Access
Client agrees to comply with all reasonable requests of Illumine8 and shall provide Illumine8’s personnel with access to all documents, systems, and facilities as may be reasonably necessary for the performance of the services under the agreement. Client agrees to furnish without charge adequate space at Client's premises for use by Illumine8’s personnel while performing the services.
Confidential Information
The parties acknowledge that by reason of their relationship to the other hereunder, each may disclose or provide access (the "Disclosing Party") to the other Party (the "Receiving Party") certain Confidential Information. "Confidential Information" shall mean (i) information concerning a Party's products, business and operations including, but not limited to, information relating to business plans, financial records, customers, suppliers, vendors, products, product samples, costs, sources, strategies, inventions, procedures, sales aids or literature, technical advice or knowledge, contractual agreements, pricing, price lists, product white paper, product specifications, trade secrets, procedures, distribution methods, inventories, marketing strategies and interests, algorithms, data, designs, drawings, work sheets, blueprints, concepts, samples, inventions, manufacturing processes, computer programs and systems and know-how or other intellectual property, of a party and its affiliates that may be at any time furnished, communicated or delivered by the Disclosing Party to the Receiving Party, whether in oral, tangible, electronic or other form; (ii) the terms of any agreement, including this Agreement, and the discussions, negotiations and proposals related to any agreement; (iii) information acquired during any tours of or while present at a party's Facilities; and (iv) all other non-public information provided by the Disclosing Party hereunder. In no event shall Illumine8’s use or disclosure of information regarding or relating to the development, improvement, or use of any of Illumine8’s products be subject to any limitation or restriction. All Confidential Information shall remain the property of the Disclosing Party.
The Receiving Party shall maintain the Confidential Information in strict confidence and disclose the Confidential Information only to its employees, subcontractors, consultants, and representatives who have a need to know such Confidential Information in order to fulfill the business affairs and transactions between the parties contemplated by this Agreement. The Receiving Party shall at all times remain responsible for breaches of this Agreement arising from the acts of its employees, subcontractors, consultants, and representatives. Receiving Party shall use the same degree of care as it uses with respect to its own similar information, but no less than a reasonable degree of care, to protect the Confidential Information from any unauthorized use, disclosure, dissemination, or publication. Receiving Party shall only use the Confidential Information in furtherance of its performance of its obligations under this Agreement and agrees not to use the Disclosing Party's Confidential Information for any other purpose or for the benefit of any third party, without the prior written approval of the Disclosing Party. The Receiving Party shall not decompile, disassemble, or reverse engineer all or any part of the Confidential Information.
Payment
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Any payment received later than 30 days from receipt will incur a 1.5% per month finance charge. If payment in full is not received by Illumine8 within thirty (30) calendar days of the due date, invoices shall bear interest at one-and-one-half (1.5) percent (or the maximum rate allowable by law, whichever is less) of the PAST DUE amount per month, which shall be calculated from the invoice due date. Payment thereafter shall first be applied to accrued interest and then to the unpaid principal. Illumine8 may at its option and without further notice withhold further services until all invoices have been paid in full, and such withholding of services shall not be considered a breach or default of any of Illumine8’s obligations under this agreement.
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If the Client fails to make payments when due and Illumine8 incurs any costs in order to collect overdue sums from the Client, the Client agrees that all such collection costs incurred shall immediately become due and payable to Illumine8. Collection costs shall include, without limitation, legal fees, collection agency fees, and expenses, court costs, collection bonds, and reasonable Illumine8 staff costs at standard billing rates for Illumine8’s time spent in efforts to collect. This obligation of the Client to pay Illumine8’s collection costs shall survive the term of this Contract or any earlier termination by either party.
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Payment of invoices shall not be subject to any discount or set-offs by the Client, unless agreed to in writing by Illumine8. Payment to Illumine8 for services rendered and expenses incurred shall be due and payable regardless of any subsequent suspension or termination of this Contract by either party.
- The contract can be terminated for convenience by either party with 60 days written notice. Either party may also terminate this agreement at any time in the event of a breach of the other party of a material covenant, commitment or obligation under this agreement immediately upon written notice thereof. Written notice shall be delivered electronically to: clmay@illumine8.com and cc'd to admin@illumine8.com. Termination shall not discharge either party’s liability for obligations incurred hereunder and amount unpaid at the time of such termination.
- Illumine8 will accept cash, check, electronic transfers and major credit cards (Visa, Mastercard, American Express). Payments by check should be made out to the order of Illumine8, LLC. All returned checks will be subject to a charge of $45.00. All payments are non-refundable. Credit Card payments are subject to an additional 4% service fee.
- Any extra materials approved by the Client, such as media, ad placement, stock photography, fonts, or shipping, will be billed directly to Client.
Non-Solicitation
During the term of this agreement and for one year following the expiration or termination date of the Agreement, Client agrees not to directly solicit or induce any Illumine8 employee that has interacted with Client or has been involved, directly or indirectly, in the performance, review and/or acceptance of the services, to consider or accept employment with Client.
Liabilities
- Client shall indemnify and hold harmless Illumine8, LLC from any and all costs, expenses and/or damages on account of any and all manner of claims, demands, actions, and/or proceedings that may be instituted against Illumine8 on the grounds alleging that the work contracted hereby violates any copyright or proprietary right of any person or that it contains any matter that is libelous, scandalous, or invading of any person’s right to privacy. Client’s indemnity shall not apply to any infringement, which is due to services, content or designs provided by Illumine8 and Illumine8 shall indemnify and hold harmless Client from any and all costs, expenses and/or damages on account of any and all manner of claims, demands, actions, and/or proceedings that may be instituted against Client on the grounds alleging that the services, content or designs provided by Illumine8 violates any copyright or proprietary right of any person or that it contains any matter that is libelous, scandalous, or invading of any person’s right to privacy.
- Illumine8 may not be held liable for any and all damage or claims resulting from hardware or software failure or loss of data on a computer that an Illumine8 agent worked on for Client. Illumine8 shall be held harmless for any downtime or hosting issues; it being understood the hosting provider will provide support as detailed in the hosting agreement. Client websites may be pulled down by the hosting provider for non-payment by Client, such service interruptions being the sole responsibility of Client.
- EXCEPT FOR THE ILLUMINE8’s CONFIDENTIALITY OBLIGATIONS AND INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL ILLUMINE8 BE LIABLE UNDER THIS AGREEMENT TO CLIENT FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS DUE TO DELIVERY DELAYS OR LOSS OF WEBSITE AVAILABILITY, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, AND COSTS OF COVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. NO ACTION SHALL BE BROUGHT FOR ANY CLAIM RELATING TO OR ARISING OUT OF THIS AGREEMENT MORE THAN ONE YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION, EXCEPT FOR MONEY DUE ON AN OPEN ACCOUNT.
Cancellations
- Should the work be canceled in progress, Client will be liable for paying for any completed work and effectuated expenses. Upon payment, Illumine8 will transfer all completed in-progress work through the cancellation date. Should Client fail and/or refuse to take delivery of the work, the total remaining balance will become immediately due and payable. Illumine8 will retain all materials or properties until all applicable payments of this contract have been satisfied.
Governing Law
This agreement will be governed by and interpreted in accordance with the laws of the State of Maryland, without giving effect to the principles of conflicts of Law of such state. The parties hereby agree that any action arising out of this Agreement will be brought solely in any state or federal court located in Frederick County, Maryland. Both parties hereby submit to the exclusive jurisdiction and venue of any such court.
Survival
Each term and provision of this agreement that should by its sense and context survive any termination or expiration of this agreement shall so survive, regardless of the cause and even if resulting from the material breach of either party to this Agreement.
