JDM’s Terms of Service outline general rules for communication, privacy expectations, non-disclosure, non-payment, roles/responsibilities, liability, and more legal stuff we think bears mentioning. If you have any questions, feel free to contact us.
Spell check last run on: 02.22.13.
1. LIMITATIONS OF SCOPE.
JDM will NOT be responsible for work that is beyond the scope of service agreed to in the proposal at the time Client initiates service. Any changes to the scope of service will not be effective unless approved by both parties. A separate proposal/invoice process may be required.
2. MANAGEMENT RESPONSIBILITY.
JDM will provide certain tools, methods and resources to Client that are intended to help Client grow and build its business. However, Client is fully and exclusively responsible for its own business performance and Client satisfaction. In addition, Client has full and exclusive responsibility for understanding and ensuring compliance with any regulatory, legal or contractual obligations related to Client’s business, including without limitation, data held by Client and its Clients, information provided by Client to Clients and/or other third parties and any safeguarding and security measures that may be required.
JDM may participate in implementing needed systems, services and functions, but Client is solely responsible for the final outcomes, actions taken and results produced.
All content produced by JDM within the scope of service including: software and web code, contents, graphics and design, or material developed or licensed by JDM for Client as part of the service is copyrighted by JDM and remains the exclusive property of JDM, unless otherwise negotiated. Upon termination of this Agreement, copyrights shall remain with JDM, unless otherwise agreed upon by both parties.
After six months of service and full payment, if Client chooses to cancel this agreement per the conditions in Section 5 (below) all JDM copyrighted content, EXCEPT software, web code, CMS themes, plug-ins, PSD files and other files or code used to create the Client website, or other deliverable can be used indefinitely by Client for their company. Use will be restricted to the Client company only and Client DOES NOT have any rights to resell, license or otherwise allow 3rd parties use of the content, unless otherwise noted.
In the event JDM ceases business operations and providing the services described in this agreement, all JDM copyrighted content, EXCEPT software, web code, CMS themes, plug-ins, PSD files and other files or code used to create the Client deliverables can be used indefinitely by Client for their company. Use will be restricted to the Client company only and Client does not have any rights to resell, license or otherwise allow 3rd parties use of the content.
Client hereby acknowledges and agrees that JDM shall have the right to use the name of Client, including the Client Web Site, for reference as a customer of JDM services for referral and marketing purposes, unless otherwise agreed (such as in a Non-Disclosure Agreement).
Except for reasons of non-performance by either party, this Agreement shall remain in effect until formally terminated in writing by either party. Termination of this Agreement requires written or email notice delivered thirty (30) days prior to the desired date of termination.
Repeated failure to make payment by the date due during any period gives JDM the option for immediate termination without refund. Upon the expiration or termination of this Agreement for non-payment or non-performance by Client, (i) all licenses granted by JDM to Client hereunder shall automatically terminate and Client shall immediately cease use of the licensed content and other deliverables, and (ii) Client’s right to Services and access to resources afforded to JDM’s Clients (such as myJDM access) shall automatically and permanently be terminated.
In the event a project is terminated by Client for any reason AFTER the initial, Discovery phase is complete and production has begun, the deposit is immediately forfeit and materials produced up to that point remain the intellectual property of JDM and/or its affiliates/partners.
Termination of a project PRIOR to completion of the Discovery phase qualifies for a full or partial refund – determined at the sole discretion of JDM.
6. PAYMENT FOR SERVICES.
Payment terms are on a case-by-case basis. Unless otherwise noted, Client is responsible to pay the full about of each and every invoice within 15 days. Failure to pay or frequent late payments are grounds for immediate and permanent service and copyright termination and may result in destruction of supplied work.
If services are suspended (with 30 days written or emailed notice), there may be a fee up to 5% of total deal value to reinstate.
Payments may be made by check (mailed to 2300 Valley View Lane, STE #360, Irving, TX 75062) or online (via PayPal or Credit Card). There may a $4.00 or a 4% convenience fee added to payments made online (determined case-by-case).
JDM reserves the right to assess and collect late-payment charges of 2% per month on past due balances. If the matter is not resolved within 90-days AFTER the invoice due date, Client may be sent to a debt collection agency and/or the CSS Kill Switch may be used (see section 6.5).
6.5 UNDERSTANDING THE CSS KILL SWITCH
In rare cases, JDM may complete delivery of a project prior to it being completely paid for. Under these circumstances, clients agree JDM has the option of implementing a CSS Kill Switch. A CSS Kill Switch is a hidden piece of code which allows JDM to remotely and temporarily disable a client’s website for partial or non-payment as per the terms of the agreement. Per this term, clients forfeit any future legal claims of (but not limited to) business damages, tampering or intrusion because of the use of the CSS Kill Switch.
Of course, once the project has been fully paid, the CSS kill switch will be removed immediately and permanently. As a side note, we’ve never had to actually use the kill switch.
JDM shall provide its services and meet its obligations under this Agreement in a timely and professional manner, using knowledge and skills consistent with generally acceptable industry standards, and will provide a standard of care based on commercially reasonable efforts.
Services and all products provided as part of the services are provided “as is” and JDM disclaims, and client waives, any warranties, express or implied, as to the merchantability, fitness for a particular use or purpose, title, non-infringement or any other warranty, condition, guarantee or representation related to the services. JDM DOES NOT warrant that the software or any products or services provided hereunder will be uninterrupted or error-free. Under no circumstances, including negligence, shall JDM be liable for any direct, incidental, special or consequential damages or otherwise, including any damages that result from the use of or inability to use the Website or deliverable. JDM shall NOT be responsible for any damages whatsoever that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation or transmission, or any failure of performance.
8. LIMITATIONS OF LIABILITY.
Except to the extent finally determined to have resulted from the gross negligence or intentional misconduct of JDM, JDM’s liability to pay damages for any losses incurred by Client as a result of breach of contract, negligence or other tort committed by JDM, regardless of the theory of liability asserted, is limited to no more than the total amount of the most recent three (3) months of active services under this agreement. In any case, JDM and its partners will not be liable for lost profits or any consequential, indirect, punitive, exemplary or special damages.
In addition, JDM shall have no liability to Client arising from or relating to any third party hardware, software, information or materials. JDM is also not liable for direct or indirect damages created by viruses, hackers or other malicious or accidental destruction of systems or data, though JDM will attempt to prevent or minimize exposure to such risks.
Subject to the provisions hereof, Client shall indemnify, defend and hold harmless from and against any and all amounts payable under any judgment, verdict, court order or settlement for third party claims brought against JDM and its partners arising from products or services related to this Agreement.
Conversely, JDM shall indemnify, defend and hold harmless from and against any and all amounts payable under any judgment, verdict, court order or settlement for third party claims brought against Client arising from the gross negligence or intentional misconduct by JDM.
10. QUALITY RESPONSIBILITIES.
The biggest obstacle to a smooth and efficient creative approval process is clearly defined roles and responsibilities. It is the policy of JDM that we take full responsibility for the quality (defined here as free of errors, miss-spellings, configuration issues, etc.) of our work during development. However, once approved by Client, Partner or others with right of approval (RoA), the responsibility is no longer that of JDM’s. Modifications (no matter how small, important, or who is responsible for the error) made AFTER the approval has been given, can carry a “change-order” fee.
It is the sole responsibility of the Client, Partner or others with RoA authority to pay careful attention to errors PRIOR to final approval.
If you actually read through all that legal mumbo-jumbo and your eyes aren’t bleeding, you’re our kind of client! We’d like to apologize for the boring and often scary stuff and offer you a discount for your diligence. Just mention “Term 11″ of our Terms of Service and a one-time discount will be added to your next proposal. We hated writing this almost as much as we’re sure you hated reading it…