Terms, Conditions, and Use Policy applicable to the provision of Internet services by WYSIWYG.
WYSIWYG Marketing 2, LLC. & WYSIWYG Marketing, LLC is referred to in the remainder of this document as (WYSIWYG).
CLIENT is referred to as the customer that has previously, or is currently business relationship with (WYSIWYG).
Website Administrator is referred to as the (ADMIN) which has been granted access to one or more portions of the Content Management System. Each client may be granted multiple (ADMIN) each will adhere to these rules and regulations.
1. Services Provided
WYSIWYG provides Website Design, Website Development and Website Marketing Services, based around but not limited to our proprietary Back End - Information Content Solution (CMS) and Website Hosting space, to its customers on its dedicated VPS servers, allowing them to store data, files, etc., and the provision of tools to maintain their website content and product/service information.
1.1 Engagement. Client engages WYSIWYG to perform the services (“Services”) as set forth in any Proposals that may be executed from time to time by and between WYSIWYG and Client. Such Proposals shall be in the form attached hereto, or as otherwise agreed by the parties (each, a “Proposal”).
1.2 Term. Client agrees WYSIWYG will perform the said services (“Services”) as set forth in any Proposals that may be executed from time to time by, and between, WYSIWYG and Client-such Proposals to be in the form attached hereto or as otherwise agreed by the parties (each, a “Proposal”). The response to these terms and conditions are designated as 2016 Annual Terms & Conditions. Any modifications, amendments and/or individual modifications can be agreed and set forth in amendments thereof. These terms will automatically renew for an additional annual term unless cancelled within 45 days of said renewal.
1.3 Method of Performing Services. WYSIWYG is an independent contractor and nothing in this Agreement shall create any employment or other relationship between WYSIWYG and Client. As an independent contractor, WYSIWYG shall have the right to determine the method, details, and means of performing the Services. Client shall, however, be entitled to exercise general powers of supervision and control over the results of work performed by WYSIWYG, including the right to inspect, the right to make suggestions or recommendations as to the details of the Services, and the right to propose modifications to the Services. Unless otherwise noted in a Proposal, WYSIWYG may perform the Services for Client at: (i) WYSIWYG’s premises; (ii) Client’s premises; or (iii) any other location as mutually agreed by the parties.
1.4 Access Provided by Client. Unless otherwise noted in a Proposal, Client shall provide WYSIWYG access to and permission to use all information, materials, internal resources, facilities and personnel as necessary to complete any and all Services set forth in a Proposal.
1.5 Client Acknowledgements. Client acknowledges the following: (i) WYSIWYG has no direct control over and does not own any search engines; (ii) algorithms used by search engines to index and rank websites based on queries are complex and can be changed at any given time by those who run the search engines, which may adversely affect Client’s website ranking resulting from certain keyword searches; (iii) WYSIWYG offers consultation on the best practices to implement which allow for search engines to better analyze and index Client’s content contained on Client’s website, but WYSIWYG cannot, and expressly does not, guarantee results; (iv) search engine optimization is a process involving incremental yet systematic changes to Client’s website; (v) the results of search engine optimization affect only organic search results (i.e., those results based solely on the analysis of website content, and not paid search listings—which is advertising space sold by search engines that appears when certain keywords are used in queries); and (vi) if any WYSIWYG optimized pages accepted by the Client are overwritten, taken down, not implemented, or otherwise removed or made ineffectual by Client or as a result of Client’s actions, the search engine optimization strategies are less likely to succeed.
2. Use of Services
The services provided by WYSIWYG shall not be used in any manner or form by any of its customers who shall not allow or cause third parties to use those services for any unlawful illegal or immoral purpose such as the infringement of Federal or state copyright laws or the violation of any other Federal, state, or city law: fraud, money laundering, or trafficking, prostitution, pornography and other obscene material threatening, causing, or allowing violence and/or bodily harm or damage to others or their property. Nor shall any customer allow others to use the services in breach or in contravention of any of the generally accepted rules, regulations, and conventions regarding the use of the internet or world wide web, nor carry out or encourage, in any manner, involvement in or permit email spamming, mailbombing, spoofing, trolling, hacking, subscribing some third party to a mailing list without that person’s permission, newsgroup flooding, posting information that is defamatory or infringes or violates another’s rights, promoting and/or distributing viruses, ping floods, spawning unnecessary unwarranted processes, posting adverts on any chat room, actual or likely, abuse, misuse, or overuse of any of the system resources. In the event that any customer engages in, or permits knowingly or otherwise, or uses WYSIWYG`S servers as the source intermediary or destination address for spamming, bulk e-mail, hacking or use of wares, WYSIWYG reserves to itself the right, without prior notice to the customer, to impose a penalty of $1500 on the offending customer whose account could be forthwith terminated. No leniency shall be shown by WYSIWYG in respect of the above.
Each customer accepts and agrees that the list above is not exhaustive, and that WYSIWYG is the final and sole arbiter of what constitutes a breach or violation of any of its services and that each customer indemnifies and holds harmless WYSIWYG, its employees, servants, agents, and the like, from any and all costs, claims, expenses, damages, or lawsuits, which may arise or be suffered by anyone from the provision of services by WYSIWYG used by the customer. The customer acknowledges and agrees that there are limitations to the hardware/system of WYSIWYG and, accordingly, if any customer uses more than 10% of the system resources, or if 26% or more of a customer’s site’s monthly traffic is from file downloads, or if any such customer, for whatever reason, such as archival storage of data and CGI scripts, causes the hardware/system of WYSIWYG to malfunction, perform slowly, poorly, or experience other problems, WYSIWYG reserves to itself the right, in its sole discretion, to take whatever steps are necessary to ensure that the system operates at an efficient level and that the other customers of WYSIWYG receive a reliable and stable service and are not adversely affected by a particular customer. The above said percentages are subject to account type, class and proposed terms per individual account.
Section 3. Fees, Expenses & Payment
3.1 Fees. In consideration of the Services performed, WYSIWYG shall be entitled to compensation in the amount, and payable at the times and in the manner, set forth in this Agreement and any Proposals. Any additional fees for services not contemplated or outside the scope of this Agreement or any Proposal shall be at WYSIWYG’s then-current rates for such services.
3.2 Reimbursement of Expenses. Unless otherwise noted in a Proposal, Client shall be obligated to reimburse WYSIWYG for all reasonable out-of-pocket expenses incurred by WYSIWYG in performing its obligations hereunder.
Section 4. Proposed Work Agreements
4.1 Generally. Proposals may only be submitted during the term of this Agreement and will become effective only upon acceptance in email notification of approved tasks with associated fees, by WYSIWYG. All Proposals shall be subject to the terms and conditions set forth in this Agreement and or special amendments in said work order. In the event any provisions contained in a Proposal expressly conflict with any terms, conditions, or clauses contained in this Agreement, the provisions of the applicable Proposal shall govern.
4.2 Personnel and Rates. WYSIWYG shall have the sole right to designate the appropriate personnel necessary to accomplish the Services to be performed under a Proposal. WYSIWYG reserves the right to substitute personnel for any reason in its discretion, provided that, the rates, if any, charged for the substituted personnel may not exceed the rates agreed to in the Proposal.
4.3 Activation of Proposals. The following procedure will be followed to initiate and activate a Proposal: (i) WYSIWYG will prepare a Proposal and submit it, together with all appropriate technical attachments, to Client for approval; (ii) upon Client’s acceptance of the Proposal, Client will acknowledge its acceptance by executing the Proposal and returning one fully executed copy to WYSIWYG; and (iii) WYSIWYG will then acknowledge its acceptance by executing the Proposal and returning a fully executed copy to Client. Prior to WYSIWYG’s acknowledgement of acceptance, WYSIWYG is under no duty or obligation pursuant to any Proposal.
Section 5. Termination Upon Breach
Either party may terminate this Agreement immediately upon written notice to the other party. In the event that the other party: (i) violates any provision of this Agreement and fails to cure such violation within thirty (30) days after receiving written notice of such violation; (ii) is the subject of a voluntary or involuntary bankruptcy, reorganization or liquidation proceeding, is insolvent, makes an assignment for the benefit of creditors or admits in writing its inability to pay debts when due; or (iii) dissolves or otherwise ceases operation of its business.
Section 6. Confidentiality & Ownership
6.1 Confidentiality. Either party (“Disclosing Party”) may from time to time disclose Confidential Information (as defined below) to the other party (“Recipient”). As used herein, “Confidential Information” shall mean: (i) all nonpublic information concerning the business, technology, products, services and strategies of the Disclosing Party, specifically including any WYSIWYG Materials (as defined below), intellectual property, concepts, methodologies, inventions, developments, or procedures provided by WYSIWYG to Client; (ii) all such information clearly labeled by the Disclosing Party in writing as “confidential” prior to its disclosure; and (iii) all such information that, by its nature, a reasonable party would consider to be confidential or proprietary. Recipient shall keep in confidence and trust and will not disclose, disseminate or use, or permit any employee, agent or other person working under Recipient’s direction to disclose, disseminate or use, the existence, source, content or substance of any Confidential Information to any other person or for any purpose other than those set forth in this Agreement. The following information will not be considered Confidential Information: (a) information which was in the public domain prior to its disclosure; (b) information which becomes part of the public domain by any means other than through violation of this Agreement; (c) information which was independently developed by a party without reference to the Disclosing Party’s Confidential Information; or (d) information produced in compliance with any court or administrative order; provided, however, that the Recipient gives the Disclosing Party reasonable notice that such Confidential Information is being sought by a third party, so as to afford the Disclosing Party the opportunity to limit or prevent such disclosure.
6.2 Ownership of Work Product. Unless otherwise set forth in a Proposal and upon payment in full by Client to WYSIWYG of all fees and expenses due under the applicable Proposal, all Work Product (defined below) for a particular Proposal shall be considered work(s) made for hire by WYSIWYG for Client and shall belong exclusively to Client. Unless otherwise set forth in a Proposal, if by operation of law any Work Product related to a particular Proposal is not owned in its entirety by Client immediately upon creation thereof, then upon payment in full by Client to WYSIWYG of all fees and expenses due under the applicable Proposal, WYSIWYG agrees to assign to Client, and hereby assigns, the ownership of such Work Product, including all related intellectual property rights and goodwill associated therewith. As used herein, “Work Product” shall mean all tangible deliverables identified in a properly executed Proposal. Notwithstanding the foregoing, Client acknowledges that WYSIWYG is a content developer and consultant, and as such, WYSIWYG shall retain ownership of, and Work Product shall not include, the CMS Service and WYSIWYG Materials. “CMS Service” shall mean WYSIWYG’s proprietary content management system provided on a web-based platform. “WYSIWYG Materials” shall mean any content, documentation, software, tools, ideas, concepts, modules, algorithms, techniques, methods, processes, methodologies, libraries, and know-how conceived, developed, or reduced to practice by WYSIWYG prior to this Agreement (“Pre-Existing Materials”), any modifications, revisions, or enhancements made to the Pre-Existing Materials by WYSIWYG concurrently with or subsequent to this Agreement (excluding Client Content and Client Confidential Information), and any materials developed by WYSIWYG as a utility routine, generalized content, a generalized interface or platform, or otherwise not developed solely and exclusively for Client, and including any and all intellectual property rights and goodwill associated therewith. WYSIWYG shall be entitled to use the WYSIWYG Materials for itself or other clients provided that WYSIWYG does not disclose or disseminate Client’s Confidential Information. Unless otherwise provided in a Proposal, and conditioned upon payment in full of all fees and expenses due under the applicable Proposal, WYSIWYG grants to Client a non-exclusive, non-transferable, perpetual, limited license to use the WYSIWYG Materials in executable format solely in conjunction with the Work Product and solely for Client’s internal purposes. Under no circumstances may Client modify, decompile, disassemble, or reverse engineer any executable code, content or materials owned by WYSIWYG without the advance written consent of WYSIWYG.
6.3 Client Content. Client may provide WYSIWYG with certain text, graphics, photos, images, illustrations, designs, trademarks, works of authorship and other content (collectively, “Client Content”) to be included in Work Product created by WYSIWYG pursuant to this Agreement or dictate to WYSIWYG that certain Client Content be so included. Client shall provide such Client Content at the times and according to the formats and specifications set forth by WYSIWYG. Client understands and agrees that it is solely responsible for the necessary licenses, rights and permissions to use the Client Content in conjunction with the Work Product. Client represents and warrants that it either owns the Client Content or has secured sufficient licenses, rights or permissions from the owners of such Client Content to use the Client Content, including, without limitation, all intellectual property rights, rights of publicity and/or privacy, and any other similar or equivalent rights. Client hereby grants to WYSIWYG a non-exclusive, sub licensable, perpetual, fully-paid, irrevocable, worldwide right and license to use, reproduce, modify, edit, adapt, translate, create derivative works upon and compilations containing the Client Content (or modified Client Content) for purposes of performing the Services.
6.4 Third Party Products & Services. The Work Product may contain third party products and services (e.g., third party software, third-party website hosting) as set forth in a Proposal. Client acknowledges that such third party products may be licensed pursuant to separate terms and conditions. Client is responsible for complying with the terms and conditions governing its use of any third party products, and nothing contained in this Agreement shall vary such terms and conditions.
Section 7. Warranty Disclaimer; Limitation on Liability & Indemnity.
7.1 Limited Warranty. WYSIWYG is being engaged only to provide those Services as described in any Proposals. WYSIWYG warrants that it will provide the Services in a quality and professional manner according to industry standard procedures and utilizing qualified personnel.
7.2 Warranty Pass Through: Disclaimer. Third-party products and services may be covered by the respective manufacturers or providers, and WYSIWYG makes no warranties regarding said products and service. Any such third-party product or service warranties pass through to Client in accordance with such warranties to the extent allowed. WYSIWYG will provide reasonable assistance if Client requests warranty assistance, with the exception of the foregoing limited warranty, WYSIWYG expressly disclaims all warranties of any kind relating to the services or the work product, whether express or implied, including, without limitation, the implied warranties of merchantability, fitness for a particular use or purpose, title, and non-infringement. Without limiting the generality of the foregoing, WYSIWYG makes no warranty that the services, including the CMS, or any work product will meet Client’s requirements, that the results obtained from the use of the foregoing will be accurate or error-free, or that services or work product will meet Client’s expectations. WYSIWYG further disclaims any warranty or condition with respect to the quality, performance, or functionality of the services and work product, or with respect to the quality or accuracy of any information obtained from or available through use of the services and work product, or that the services and software will be uninterrupted, error-free, or free of viruses or other harmful components. The services and work product may contain errors. WYSIWYG’s agents have no authority to give any warranties on behalf of WYSIWYG.
7.3 Limitation on Liability. In no event shall WYSIWYG be liable to Client or to any third party for any indirect, special, consequential, incidental, punitive, or non-contractual damages or lost profits arising out of or related to this agreement or any proposal, even if WYSIWYG has been advised of the possibility thereof. WYSIWYG’s liability, if any, to client or any third party shall not exceed fees paid by Client to WYSIWYG over the prior twelve (12) months. In no event shall WYSIWYG be liable to Client or to any third party for any damages resulting from or related to any failure or delay of WYSIWYG in the delivery of the services or the work product under this agreement or any proposals due to causes beyond the reasonable control of WYSIWYG, including without limitation, delays caused by acts of God, telecommunications, internet, or other computer systems disruptions, fire, war, riots, strikes, quarantines, or embargoes.
7.4 Indemnity. Client agrees to indemnify, defend, and hold WYSIWYG and its directors, officers, employees, members, agents, parents, subsidiaries, and affiliated companies (“Indemnified Parties”) harmless from and against all claims, actions, liabilities, losses, expenses, damages, and costs (including reasonable attorneys’ fees) that may at any time be incurred by such parties and that arise out of or relate to: (i) any breach of this Agreement by, and any negligence or willful misconduct of, Client, its agents, employees, or representatives; (ii) the use or modification of any Work Product by Client, its employees or its agents; (iii) WYSIWYG’s use of the Client Content in conjunction with its obligations pursuant to any Proposal; (iv) WYSIWYG’s creation of Work Product or provision of Services according to Client’s specifications; or (v) Client’s infringement or misappropriation of any intellectual property rights, defamation, libel, slander, obscenity, pornography, violation of rights of privacy or publicity, spamming or any other offensive, harassing, or illegal conduct, or violation of the Laws.
Section 8. General Provisions.
8.1 Status; Due Authorization; Validity of Agreement. Client hereby represents and warrants to WYSIWYG that it: (i) is duly organized, validly existing and in good standing under the laws of its state of domicile; (ii) has the power and authority to execute and perform under this Agreement; and (iii) this Agreement constitutes a valid and binding obligation enforceable in accordance with its terms.
8.2 Binding Nature of Agreement; Assignment. Except as otherwise provided herein, all the terms and provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns, except that Client may not assign or transfer its rights or obligations under or interest in this Agreement without the prior written consent of WYSIWYG. WYSIWYG may, in its sole discretion, subcontract its obligations under any Proposal, provided that WYSIWYG will be primarily responsible for the completion of any Services.
9. Intellectual Property Rights of This License Agreement
The website design, development, code, and methodology used in development the WYSIWYG platform is owned by "WYSIWYG". You must not attempt to reverse engineer or attempt to interfere with the operation of any part of the Site unless expressly permitted by applicable law. The Site and any portion of the Site may not be reproduced, duplicated, copied, sold, resold, or otherwise exploited for any commercial purpose that is not expressly permitted by WYSIWYG. WYSIWYG and our partners, investors and stockholders retain all of their respective right, title, and interest in and to all patent rights, inventions, copyrights, knowhow, and trade secrets relating to the website, the design, and methodology. Logos and name are trademarks of Client and are subject to our Mark Use Guidelines. All other product names, company names, marks, logos, and symbols on the Site may be the trademarks of their respective owners. Except as expressly stated in this Agreement, nothing in this Agreement confers any license under any of WYSIWYG`s or any third party’s Intellectual Property Rights, whether by estoppel, implication, or otherwise.
10. Payment Policy
All invoices are expected to be paid within a net/15 day time period. All late payments for design, development or proactive website marketing services will have a 15% addition applied every 7 days that the funds are not received either by United States Postal Mail, Credit Card Authorization or PayPal debit.