Terms and Conditions
These TERMS & CONDITIONS FOR MARKETING SERVICES (these “Terms“), effective as of the date set forth above (the “Effective Date“), govern the relation between IDOC, LLC, a Connecticut limited liability company having an address of 50 Quality Street, PO Box 110605, Trumbull, CT 06611 (“IDOC“), and the customer (“Customer“) identified on the Package Addendum (as defined in Section 1.1), and IDOC’s provision of certain website design and marketing services (“Services“, as more precisely defined and described in the Package Addendum). Each of IDOC and Customer may be referred to herein individually as a “Party“, and collectively as the “Parties“. Initially capitalized terms used but not otherwise defined in these Terms are defined in Section 10.
1. Package Addendum; Services; Customer Responsibilities
1.1 Package Addendum. Customer may purchase Services by signing a written document which states: (a) the Services to be provided by IDOC; (b) the amounts to be paid to IDOC (the “Fees“); and (c) an intent for such document to be governed by these Terms (such document, the “Package Addendum“). Upon execution by Customer, the Package Addendum will be (and hereby is) incorporated into these Terms by reference. These Terms and the Package Addendum are collectively referred to herein as this “Agreement“. In the event of a conflict between a provision of these Terms and a provision of the Package Addendum, these Terms will control unless the Package Addendum expressly states the intent to supersede such conflicting provision of these Terms
1.2 Services. Subject to the terms of this Agreement, IDOC will use commercially reasonable efforts to perform the Services as set forth in the Package Addendum.
1.3 Customer Responsibilities. Customer acknowledges and agrees that Customer will be solely responsible for the fulfillment of the following responsibilities (“Customer Responsibilities“), and that IDOC will not be responsible or liable or any delay or failure in IDOC’s performance hereunder to the extent caused by Customer’s failure to timely fulfill such Customer Responsibilities:
(a) Customer will obtain, and maintain for the duration of the Term, a website domain name registration, and will allow IDOC to use such website domain name for the Customer Website;
(b) Customer will obtain, and maintain for the duration of the Term, a Google Analytics account attached to the website domain name described in Section 1.3(a), and will provide IDOC with access to such account;
(c) Customer will promptly furnish IDOC with all information, materials, and access to Customer’s personnel and systems as may be reasonably required by IDOC for the performance of IDOC’s obligations hereunder (including keywords, written copy, Customer’s logos, and other materials), and will otherwise cooperate with IDOC’s performance of the Services; and
(d) any other Customer Responsibilities identified in the Package Addendum.
2. Financial Provisions
2.1 Fees; Taxes. The Package Addendum will include a schedule of Fees payable to IDOC. All Fees are non-refundable and exclude all applicable Taxes. Customer acknowledges and agrees that Customer will not be credited or refunded for any prepaid Fees upon termination of this Agreement. Customer will be responsible for any Taxes imposed by Applicable Law on Fees payable to IDOC or otherwise arising from the performance of this Agreement (other than Taxes on IDOC’s net income).
2.2 Payment Terms.
(a) Payment Information. All Fees (and any applicable Taxes) will be charged through the debit card or credit card information provided by Customer in connection with the execution of the Package Addendum, or to such other debit card or credit card information as Customer may provide to IDOC from time to time (the “Payment Information“). IDOC may use Third-Party service providers to process and store Payment Information, and Customer hereby authorizes such processing and storage.
(b) Payment Dates. Upon Customer’s execution of the Package Addendum, IDOC will charge the Payment Information for all Fees (and any applicable Taxes) due for the remainder of then-current calendar month. All Fees (and any applicable Taxes) are due monthly, in advance. Customer agrees that IDOC may charge the Payment Information for all Fees and Taxes due hereunder on a monthly basis (without any further notice to, or consent from, Customer), on or about the first Business Day of each calendar month during the Term.
3. Intellectual Property
3.1 As between Customer and IDOC, all right, title, and interest in and to any and all IDOC IP will be solely owned by IDOC. As between Customer and IDOC, all right, title, and interest in and to any Customer Content, and all intellectual property rights therein, will remain the sole and exclusive property of Customer. Notwithstanding the foregoing, Customer hereby grants to IDOC a non-exclusive, non-assignable, non-transferable, non-sublicensable license, for the duration of the Term, to access, use, and modify Customer Content in connection with IDOC’s performance of its obligations hereunder, and not for any other purpose.
4. Confidentiality
4.1 Definition of Confidential Information. “Confidential Information” means all confidential or proprietary information disclosed during the Term by or on behalf of a Party (the “Disclosing Party“) to the other Party (the “Receiving Party“) (whether in written, visual, oral, electronic, or other form), which is clearly marked or identified as confidential at the time of disclosure. Notwithstanding the foregoing, the term”Confidential Information” will not include any information that the Receiving Party can establish: (a) is or becomes part of the public domain, other than by breach of this Agreement by the Receiving Party; (b) was in the Receiving Party’s or any of its Representatives’ possession at the time of disclosure by the Disclosing Party, without any obligation of confidentiality or restriction on use; (c) is provided to the Receiving Party without any obligation of confidentiality or restriction on use by a Third Party; or (d) is independently developed or acquired by the Receiving Party without use of the Confidential Information of the Disclosing Party.
4.2 Confidentiality, Nonuse, and Nondisclosure Obligations. With respect to any Confidential Information of the Disclosing Party, the Receiving Party will: (a) use such only in connection with the performance of this Agreement, and not for any other purpose without the prior written consent of the Disclosing Party; (b) not disclose such Confidential Information except as permitted under Section 4.3; and (c) take reasonable security measures to prevent any use or disclosure of the Disclosing Party’s Confidential Information in violation of this Section 4.
4.3 Permitted Disclosures. The Receiving Party may only disclose the Disclosing Party’s Confidential Information to the Receiving Party’s Representatives who: (a) have a need to know such Confidential Information in connection with the Receiving Party’s performance of this Agreement; and (b) are bound by obligations of confidentiality and non-use with respect to such Confidential Information. Notwithstanding the foregoing, the Receiving Party may also disclose the Disclosing Party’s Confidential Information to the extent that such disclosure is required by Applicable Law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party (as permitted by Applicable Law): (x) promptly notifies the Disclosing Party of such required disclosure; and (y) reasonably cooperates with the Disclosing Party, at the Disclosing Party’s request and expense, in any lawful action to contest such required disclosure.
4.4 Destruction of Confidential Information. If requested by the Disclosing Party in writing at the end of the Term, the Receiving Party will destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control. Notwithstanding the foregoing, the Receiving Party will not be required to delete or destroy any electronic back-up files that have been created by the archiving or back-up procedures of the Receiving Party or its Representatives. In addition, the Receiving Party will be entitled to retain one (1) copy of the Disclosing Party’s Confidential Information solely for archival purposes.
5. Representations, Warranties, and Covenants; Disclaimer
5.1 Mutual. Each Party hereby represents and warrants that: (a) it has full power and authority to enter into and perform this Agreement; and (b) the Person signing the Package Addendum on such Party’s behalf has been duly authorized and empowered to enter into this Agreement.
5.2 By Customer. Customer hereby represents, warrants, and covenants to IDOC that:
(a) Customer owns or otherwise has, and will have, all necessary rights and consents in and relating to the Customer Content so that, as received and used by IDOC accordance with this Agreement, such Customer Content does not and will not infringe, misappropriate, or otherwise violate any intellectual property rights, privacy rights, or other rights of any Third Party or violate any Applicable Law; and
(b) Customer will utilize the Deliverables, Customer Website, and all Personal Information collected by or on behalf of Customer through the Customer Website in compliance with all Applicable Laws.
5.3 Disclaimers.
(a) ALL SERVICES AND THE CUSTOMER WEBSITE ARE PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS, AND IDOC MAKES NO WARRANTIES WHATSOEVER THAT: (I) THE SERVICES WILL BE PROVIDED, OR THAT THE CUSTOMER WEBSITE WILL BE AVAILABLE, IN A MANNER THAT IS UNINTERRUPTED, SECURE, COMPLETE, ACCURATE, OR ERROR-FREE; OR (II) THE SERVICES OR CUSTOMER WEBSITE (OR ANY CONTENT THEREIN) WILL BE SUITABLE FOR ANY PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, IDOC MAKES NO OTHER WARRANTIES, AND HEREBY DISCLAIMS ANY AND ALL SUCH OTHER WARRANTIES (WHETHER WRITTEN, ORAL, EXPRESS, OR IMPLIED) INCLUDING ANY SUCH OTHER WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
(b) CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER IS SOLELY RESPONSIBLE FOR PROMPTLY REPORTING ANY ADVERSE EVENT (E.G., END-CUSTOMER COMPLAINTS, PRODUCT DEFECTS, ADVERSE REACTIONS) RELATING TO ANY PRODUCT MARKETED ON THE CUSTOMER WEBSITE OR THROUGH CUSTOMER’S SOCIAL MEDIA ACCOUNTS TO THE APPLICABLE MANUFACTURER OR REGULATORY AUTHORITY. EXCEPT AS SET FORTH IN SECTION 6.1, IDOC WILL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER FOR ANY LOSSES INCURRED BY ANY PERSON TO THE EXTENT ARISING OUT OF ANY SUCH MARKETING OR ADVERSE EVENTS.
6. Indemnification
6.1 Indemnification by IDOC. IDOC will indemnify, defend, and hold harmless Customer and its Representatives, successors, and permitted assigns (collectively, “Customer Indemnified Parties”) from and against any and all liabilities, losses, damages, penalties, awards, settlements, costs, or expenses (including attorneys’ fees and other expenses of litigation) (collectively, “Losses“) incurred by or imposed upon any Customer Indemnified Party in connection with any claims, suits, actions, or other proceedings asserted by a Third Party (each, a “Claim“), to the extent arising out of any gross negligence, willful misconduct, or violation of Applicable Law by any IDOC Indemnified Party in connection with this Agreement. Notwithstanding the foregoing, IDOC’s indemnification obligations under this Section 6.1 will not apply to the extent any Claims arise out of subject matter with respect to which Customer is obligated to indemnify IDOC under Section 6.2.
6.2 Indemnification by Customer. Customer will indemnify, defend, and hold harmless IDOC and its Representatives, successors, and permitted assigns (collectively, “IDOC Indemnified Parties“) from and against any and all Losses incurred by or imposed upon any IDOC Indemnified Party in connection with any Claims, to the extent arising out of: (a) IDOC’s use of Customer Content in compliance with this Agreement; (b) Customer’s material breach of this Agreement; or (c) any gross negligence, willful misconduct, or violation of Applicable Law by any Customer Indemnified Party in connection with this Agreement. Notwithstanding the foregoing, Customer’s indemnification obligations under this Section 6.2 will not apply to the extent any Claims arise out of subject matter with respect to which IDOC is obligated to indemnify Customer under Section 6.1.
7. Limitation of Liability
7.1 Exclusion of Indirect Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY HEREUNDER FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. NOTWITHSTANDING THE FOREGOING, THIS SECTION 7.1 WILL NOT APPLY TO: (A) BREACHES OF SECTION 4 (CONFIDENTIALITY); (B) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 6 (INDEMNIFICATION); OR (C) EITHER PARTY’S LIABILITY ARISING OUT OF ANY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
7.2 Liability Cap. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER ARISING UNDER STATUTE, CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY) EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER DURING THE NINETY (90)-CALENDAR DAY PERIOD PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS ARE CUMULATIVE AND NOT PER INCIDENT AND WILL APPLY EVEN IF THE NON-BREACHING PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. NOTWITHSTANDING THE FOREGOING, THIS SECTION 7.2 WILL NOT APPLY TO: (A) BREACHES OF SECTION 4 (CONFIDENTIALITY); (B) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 6 (INDEMNIFICATION); (C) EITHER PARTY’S LIABILITY ARISING OUT OF ANY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR (D) CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER.
8. Term; Termination; Survival
8.1 Term. The term of this Agreement will commence upon the date of Customer’s execution of the Package Addendum, and will continue thereafter unless and until terminated as set forth in Section 8.2.
8.2 Termination. Either Party may terminate this Agreement, for any reason or no reason, effective upon thirty (30) calendar days’ prior written notice to the other Party.
8.3 Survival. The provisions of Sections 2 (Financial Provisions), 3 (Intellectual Property), 4.4 (Destruction of Confidential Information), 5 (Representations, Warranties, and Covenants; Disclaimer), 6 (Indemnification), 7 (Limitation of Liability), 8 (Term; Termination; Survival), 9 (Miscellaneous); and 10 (Definitions; Interpretation) (to the extent used in other surviving provisions) will survive any expiration or earlier termination of this Agreement.
9. Miscellaneous
9.1 Publication; Use of Name. Neither Party will use the other Party’s name or logo in any publications or public statements without such other Party’s prior written consent. Notwithstanding the foregoing, this Section 9.1 will not be deemed to prohibit IDOC’s use of Customer’s name and logo in IDOC’s marketing and promotional materials to describe Customer as a customer of IDOC, or in connection with IDOC’s performance of its obligations hereunder.
9.2 Independent Contractors. The Parties acknowledge and agree that the relationship between the Parties is that of independent contractors, and that neither Party, nor any of their respective representatives, is an employee, agent, or partner of the other Party. Neither Party will have any authority to bind or act on behalf of the other Party, and neither Party will represent to any Third Party that it has such authority.
9.3 Force Majeure. Any failure or delay in a Party’s performance of its obligations hereunder (other than payment obligations) will be excused to the extent caused by a Force Majeure Event, provided that the affected Party: (a) promptly notifies the other Party of the occurrence of such Force Majeure Event; and (b) keeps the other Party reasonably informed regarding the status of any actual or anticipated delay in such performance.
9.4 Assignment; Successors. Neither Party may assign this Agreement or its rights or obligations hereunder without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may, without such consent, assign this Agreement and its rights and obligations hereunder: (a) in connection with the transfer or sale of all or substantially all of its business or assets (or such portion thereof as relates to the subject matter of this Agreement), or in the event of its merger, consolidation, change in control or similar transaction; or (b) to one of its Affiliates, provided that the assigning Party will remain jointly and severally liable with such Affiliate for the performance of this Agreement. This Agreement will be binding upon and inure to the benefit of the successors and permitted assigns of each Party. Any purported assignment in contravention of this Section 9.4 will be null and void ab initio.
9.5 Dispute Resolution; Governing Law; Forum Selection. This Agreement and any action related thereto will be governed by, construed, and interpreted in accordance with the laws of the State of Connecticut, USA, without regard to any choice of law principle that would dictate the application of the law of another jurisdiction. The Parties hereby irrevocably consent to the exclusive jurisdiction and venue of the state and federal courts sitting in Bridgeport Connecticut, which will be the sole forum regarding any actions, suits, or other legal proceedings relating to this Agreement. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING RELATING TO THIS AGREEMENT.
9.6 Notices. All notices related to this Agreement must be in writing, and addressed (if to IDOC) to the address set forth in the preamble to these Terms, or (if to Customer) to the address set forth on the Package Addendum, or to such other address as either Party may instead reasonably designate by written notice to the other Party. All notices related to this Agreement must be delivered in person, by nationally recognized overnight courier (e.g., FedEx), or by registered or certified mail (postage prepaid, return receipt requested). Notices sent in accordance with this Section 9.5 will be deemed to have been properly given: (i) if delivered in person, when actually delivered; (ii) if delivered by nationally recognized overnight courier, one (1) Business Day after the date sent; or (iii) if delivered by registered or certified mail, postage prepaid, return receipt requested, three (3) Business Days after the date postmarked.
9.7 Entire Agreement; No Waiver; Amendment. This Agreement constitutes the entire agreement between the Parties with respect to its subject matter, and supersedes all prior agreements, understandings, or representations (whether oral or written) between the Parties with respect to such subject matter. Any waiver or failure to enforce a provision of this Agreement on one occasion will not be deemed a waiver of such provision (or any other provision) on any other occasion. Except as expressly stated herein, the remedies described in this Agreement are cumulative, and are in addition to any other remedies that either Party may have at law or in equity. This Agreement (including, for the avoidance of doubt, the Package Addendum) may not be amended or modified except by the written consent of both Parties.
9.8 Construction; Interpretation; Severability. This Agreement will be interpreted in accordance with its terms, without any strict construction against or in favor of the drafting Party. The descriptive headings of this Agreement are for convenience only, and will be of no effect in construing or interpreting any provision. As used in this Agreement, the term “including” (or “includes”) will be deemed to mean “including without limitation” (or “includes without limitations”), and the word “or” will be deemed to be disjunctive but not necessarily exclusive. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then: (a) such invalidity or unenforceability will not affect the other provisions of this Agreement; and (b) such invalid or unenforceable provision will be reformed as necessary to make it valid and enforceable, in a manner that most closely approximates the original intent of such provision.
9.9 Signatures; Counterparts. The Package Addendum (or any other documents related to this Agreement) may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Counterparts may be delivered via email in “PDF” form with any electronic signature complying with the U.S. federal ESIGN Act of 2000 (e.g., DocuSign), or via other transmission method.
10. Certain Definitions; Interpretation
When used in this Agreement (other than in Section headings), the following initially capitalized terms will have the meanings assigned to them in this Section 10, and include the plural as well as the singular, and all participles of each such term, as applicable. Certain other initially capitalized terms are be defined elsewhere in this Agreement.
10.1 “Affiliate” means, with respect to a Person, any other Person which (directly or indirectly through one (1) or more intermediaries) controls, is controlled by, or is under common control with, such Person. For purposes of the preceding sentence only, the term “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”) means the power to direct a Person (or to cause the direction of the management of such Person), whether through ownership of more than fifty percent (50%) of the voting securities of such Person, by contract, or otherwise.
10.2 “Applicable Law” means all laws, ordinances, rules, and regulations of any governmental authority (or any administrative or regulatory body thereof) that apply to the activities contemplated under this Agreement, including all privacy, data security, and data protection laws, directives, regulations, and rules.
10.3 “Agreement” means the body of this Subscription Services Agreement, together with all Exhibits or other attachments hereto (including the Package Addendum).
10.4 “Business Day” means any calendar day, other than any: (a) Saturday; (b) Sunday; or (c) U.S. legal public holiday, as set forth in 5 U.S.C. § 6103.
10.5 “Customer Content” means information or materials supplied by or on behalf of Customer to IDOC for use in connection with IDOC’s performance hereunder.
10.6 “Customer Website” means a website for the promotion of Customer’s business to be developed, hosted, and maintained by IDOC during the Term in accordance with this Agreement.
10.7 “Deliverables” means any deliverables or work product resulting from IDOC’s performance hereunder and delivered to Customer by IDOC pursuant to this Agreement. For the avoidance of doubt, Deliverables excludes the Customer Website.
10.8 “Developments” means, except to the extent constituting Client’s Confidential Information: (a) any Technology, whether or not patentable, which is conceived, reduced to practice, developed, generated, or otherwise made by or behalf of IDOC in connection with the performance of this Agreement; and (b) any and all intellectual property rights in and to such Technology.
10.9 “Force Majeure Event” means, with respect to a Party, any events or circumstances preventing or delaying such Party’s performance hereunder and which are outside of such Party’s reasonable control, including any: (a) acts of God; (b) natural disasters (e.g., floods, earthquakes); (c) acts of war, terrorism, or civil unrest; (d) quarantine, embargo, or other similar unusual action by a governmental authority; or (e) power outage, loss of Internet service, or other similar infrastructure failure or unavailability.
10.10 “IDOC IP” means any: (a) Technology which is owned or controlled by IDOC or its Affiliates as of the Effective Data; (b) Technology which becomes owned or controlled by IDOC or its Affiliates after the Effective Date, independent the performance of this Agreement and without use of or reliance upon any Customer Confidential Information; (c) Developments; (d) Deliverables; and (e) any intellectual property rights in and to the foregoing ((a)–(d)). For the avoidance of doubt, IDOC IP excludes Customer Content.
10.11 “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other legal or business entity.
10.12 “Personal Information” means: (a) any information about an identified or identifiable individual; and (b) information that is not specifically about an identifiable individual but, when combined with other information, may identify an individual. By way of example and for the avoidance of doubt: (x) Personal Information includes names, email addresses, postal addresses, telephone numbers, government identification numbers, financial account numbers, payment card information, credit report information, biometric information, IP addresses, network and hardware identifiers, and geolocation information; and (y) Personal Information does not include the Parties’ business contact information (specifically, business addresses, phone numbers, and email addresses) or the names of the Party’s respective contact persons, provided such information is used solely to facilitate the Parties’ communications for administration of this Agreement.
10.13 “Representatives” means, with respect to a Party, such Party’s Affiliates, and its and their employees, officers, directors, board observers, trustees, agents, contractors, consultants, or advisors (including accountants, legal counsel, and financial advisors).
10.14 “Taxes” means any and all federal, state, local, or foreign sales, use, excise, value-added or other similar taxes, charges, fees, levies, or imposts.
10.15 “Technology” means any and all algorithms, computer software or code (including any and all annotations, applets, application programming interfaces, assemblers, comments, compilers, design tools, firmware, net lists, object code, source code, and user interfaces), data, designs, diagrams, discoveries, documentation, drawings, flow charts, formulae, inventions (whether or not patentable or reduced to practice), know-how, materials, methods, network configurations or architectures, protocols, or works of authorship.
10.16 “Third Party” means any Person other than the Parties or their Affiliates. “Third-Party” has the corresponding meaning.