Acceptance by Customer (as named on the signature page) of any proposal, quotation or invoice (a “Proposal”) issued by Bright Orange Thread, LLC (“BOT”), to which these Terms and Conditions (“Terms”) are attached or by reference made a part of, shall constitute an agreement between Customer and BOT with respect to the responsibilities of BOT and Customer pursuant to the Proposal (the “Agreement”).
The Proposal and these Terms, together with any modifications made in accordance with the terms hereof, comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, negotiations, representations and warranties, and communications, both written and oral. If there is a conflict between these Terms and the Proposal, these Terms shall govern, unless the Proposal expressly states that the terms and conditions of the Proposal shall control. No terms or conditions, other than those stated herein, and no agreement or understanding in any way modifying these Terms, shall be binding upon BOT unless made in writing and signed by BOT's duly authorized officer. Written or verbal acceptance of any Proposal and/or the acceptance of deliverables or services by Customer shall constitute Customer's assent to these exclusive Terms with respect to such Proposal.
These Terms prevail over any of Customer's general terms and conditions regardless whether or when Customer has submitted its request for proposal, order, or such terms. Provision of services to Customer does not constitute acceptance of any of Customer's terms and conditions and does not serve to modify or amend these Terms.
All matters arising out of or relating to the Agreement are governed by and construed in accordance with the internal laws of the State of Pennsylvania without giving effect to any choice or conflict of law provision or rule (whether of the State of Pennsylvania or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Pennsylvania.
- Scope of Service. BOT shall provide those services and/or products specified in the Proposal (the “Work”) in accordance with these Terms. Customer understands and agrees that, unless listed in the Proposal, BOT is not responsible for any other work or scope or supply or any disclosure, notifications or reports that may be required to be made to third parties, including appropriate governmental authorities.
- Out of Scope Services. If either party wants to change the scope of the Work or performance of the Work, it shall submit details of the requested change to the other party in writing. BOT will provide a written estimate to Customer of: (i) the likely time required to implement the change; (ii) the change to the Work and the deliverables; and (iii) the change to the fees. If Customer agrees in writing to the estimate, then the Work, the time required, and the fees will be changed according to BOT’s estimate. When there is a change request, a written estimate, or an acceptance of an estimate under this section, each may be delivered by a message on BOT’s online project management site, which will satisfy the requirement that they be in writing.
If Customer requests and BOT agrees to perform any services that are in addition to or outside the scope of Work identified in the Proposal, and the preceding procedure has not been followed, Customer still shall promptly pay BOT for such services, and it shall do so in accordance with the terms and rates shown in the Proposal or, if no such terms or rates are shown in the Proposal, in accordance with BOT’s standard terms and rates for the services performed.
- Performance Dates. BOT shall use reasonable efforts to meet any goals, measurements of success, and performance dates specified in the Proposal, but the goals and measurements are not guaranteed, and any performance dates are estimates only.
- Fees. Customer shall pay BOT for the Work based upon the price or the rates shown in the Proposal. Customer will be responsible for and will pay in full, in addition to the fees set forth in the Proposal, all sales, use, excise and other taxes and similar fees now in force or enacted in the future imposed on the transaction and/or the delivery of services or supplemental services, except for taxes on BOT net income.
- Payment Terms. If Customer fails to make payment in full within the time period set forth in the Proposal, such failure to pay on time constitutes a material breach of contract by Customer permitting BOT to suspend its performance hereunder and to have and exercise all other remedies permitted to BOT by law, equity and the Agreement.
Past due invoices shall bear interest at the rate of one-half percent (1-1/2%) per month, or the highest rate allowed by applicable law, whichever is lower and, if Customer has provided BOT with a credit card authorization, BOT shall be entitled to charge the invoice amount and interest against such card. If BOT takes or becomes involved in legal action to collect any amount due hereunder, Customer shall pay all court costs plus attorney's fees incurred by BOT in such legal action.
- Standard of Care and Warranty. The Work shall be carried out by BOT in a manner consistent with that level of care and skill ordinarily exercised by others currently providing similar services under similar circumstances at the time the services are performed.
Customer’s sole remedy for a breach of the foregoing warranty is to require BOT to correct or replace, at BOT’s election, the affected service if the breach of warranty is made known to BOT in writing within 6 months from the date the affected services were provided.
NO OTHER WARRANTY, EXPRESS OR IMPLIED, WHETHER CONTAINED IN MATERIALS PROVIDED OR STATEMENTS MADE BY BOT OR OTHERWISE, IS MADE BY BOT WITH RESPECT TO THE QUALITY, RESULT, EFFECTIVENESS OR OUTCOME OF THE WORK, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. ANY SUCH ADDITIONAL WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED.
BOT does not provide any warranty or guaranty with respect to third party software or hardware (such as the software platform of any website) and, accordingly, (a) BOT has no responsibility to correct, or pay for the correction of, errors or problems arising from or caused by third party software or hardware, and (b) BOT DOES NOT WARRANT THAT THE SERVICES OR OPERATION OF ANY WEB SITE WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. Customer assumes all risks related to processing of transactions related to electronic commerce.
- Limitations of Liability. In no event shall BOT or any of its owners, members, managers, officers or employees be liable to Customer, or anyone claiming by, through or under Customer, for any loss of use, revenue or profit or loss of data or diminution of value, or for any special, incidental, indirect, exemplary, punitive, or consequential damages whatsoever arising out of or relating in any way, directly or indirectly, to the Work or the acts or omissions of BOT’s employees or agents, whether or not any such losses or damages are caused by negligence, professional errors or omissions, strict liability, breach of contract, breach of express or implied warranty or otherwise, and regardless of whether such damages were foreseeable and whether or not BOT has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose.
Without limiting the generality of the foregoing, BOT shall not be liable for a breach of the warranty unless Customer gives written notice of the defective Work, reasonably described, to BOT within 6 months of the time when Customer discovers or ought to have discovered that the Work was defective.
In no event shall BOT's aggregate liability arising out of or related to this Agreement, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed the aggregate amounts paid to BOT pursuant to this Agreement in the 12 month period preceding the event giving rise to the claim.
- Intellectual Property.
- Ownership. The Agreement does not transfer from BOT to Customer any right, title or interest in or to BOT Technology except for the limited license granted below, and all right, title and interest in and to BOT Technology will remain solely with BOT. Customer agrees that it will not, directly or indirectly, distribute, reproduce, disclose, sell, reverse engineer, de-compile, disassemble or otherwise attempt to derive source code or other trade secrets from BOT Technology, BOT personnel or materials, and/or BOT’s third party vendor-provided materials. Customer is solely responsible for the compliance with the Agreement by its employees, agents, representatives and Web Site users. “BOT Technology” means BOT's proprietary technology, including any and all software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic, other than marketing materials delivered to Customer), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by BOT or licensed to or through BOT from a third party), and specifically including any derivatives, improvements, enhancements or extensions thereof conceived, reduced to practice, or developed during the term of the Agreement by either BOT or Customer that are not uniquely applicable to Customer or that have general applicability in the art.
- Limited Right to Use License. BOT agrees to grant Customer a limited, personal, non-transferable, and non-exclusive right to use license for BOT Technology developed by BOT and its contractors for delivery to or use by Customer pursuant to the Agreement, subject to the following conditions: This license shall be for Customer’s internal use only and Customer is expressly prohibited from assigning, sub-licensing, selling or otherwise exploiting such right to use in any manner at any time. This license is non-exclusive meaning that BOT reserves all right, title and interest in and to such BOT Technology, including the right to use, sell, license, transfer, assign or otherwise exploit the same. This license is also subject to the provisions below relating to Third Party Vendors (defined below).
- Third Party Products. BOT may provide Customer access to other third party software and/or services ("Third Party Products") through reseller relationships or other service agreements or end-user licenses BOT has established with certain commercial vendors, including without limitation, Microsoft Corporation ("Third Party Vendors").
- Third Party Licenses. Customer acknowledges and agrees that it shall be bound by the terms of any agreement entered into by BOT with Third Party Vendors (including shrink wrap or other standard licenses and agreements) for hardware or software provided by BOT for use as specified in the Proposal. In certain cases, the Third Party Vendor may require Customer to execute a separate instrument evidencing Customer’s agreement to be bound by the terms and conditions issued by such Third Party Vendor. If the Agreement is terminated for any reason, BOT reserves the right to also terminate any such licenses with Third Party Vendors obtained through BOT.
- Ownership and Transfer of Data and Files. If the Work includes creation of a Web Site, or content for a Web Site, Customer shall own the publicly viewable content of the Web Site such as text, graphic images and logos (including those designed for Customer by BOT), news articles, blogs, frequently asked questions, community forums, and streaming media files subject to the license(s) and restrictions imposed by third parties for any of the Web Site content; provided, however, Customer shall not have any ownership rights in any BOT Technology. If Customer chooses to transfer this data to another server for hosting or other purposes, Customer may request assistance from BOT in the transfer process (at additional service charges). In the event of termination of the Agreement by either party or a permanent disruption in service due to the cancellation or dissolution of any of the third party hosting providers under contract by BOT to provide the services under the Agreement, upon transfer of any data or files from the Web Server(s) to any other server, any and all BOT responsibilities for security, reliability or performance of that data or files are thereafter null and void. BOT will no longer be responsible for maintaining that data or files on the server or server(s) identified for the hosting and publication of the Web site(s) and will have the right to delete it after 30 days following the transfer without any liability or obligation to Customer.
- Copyrights and Trademarks. Each party does hereby represent to the other and unconditionally guarantee that any elements of text, graphics, photos, designs, trademarks, or other artwork furnished by such providing party or by third parties on behalf of such party for inclusion in the Customer Web site are owned by the providing party, or the providing party has permission from the rightful owner to use each of these elements, and the providing party will indemnify, hold harmless, protect, and defend the other party from any claim or suit arising from the use of such materials. Whichever party creates or modifies the Web site content containing such elements will label it with Copyright information and include any Legal/Privacy statements requested by the owner thereof. Customer unconditionally guarantees that it will not use Copyrighted or Trademarked materials or content without first notifying BOT and receiving the necessary permissions.
- Control and Ownership of IP Addresses. BOT shall maintain and control ownership of all IP numbers and addresses that may be assigned to Customer, and BOT reserves, in its sole discretion, the right to change or remove any and all IP numbers and addresses.
- Access to Site and Information. Customer will provide for right of entry and access to all relevant sites, equipment and other information in its control or possession as is necessary for BOT to timely and fully complete the Work. BOT is not responsible for the quality or accuracy of data or information, nor for the methods from which the data was developed, where such information or data is provided by or through Customer or others that are not agents or BOT, and BOT has no obligation to investigate facts or conditions not disclosed to it by Customer.
- Customer's Acts or Omissions. If BOT's performance of its obligations under the Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, BOT shall not be deemed in breach of its obligations under the Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
- Indemnification. Customer agrees to indemnify, defend and hold harmless BOT, its affiliates and their respective members, managers, officers, directors, employees, and agents against any losses, costs, expenses (including, but not limited to, reasonable attorneys' fees), claims, damages, liabilities, penalties, actions, proceedings or judgments which arise out of or relate to:
- any content provided by Customer or the users of the Web Site or the breach of any of the terms and conditions of the Agreement by Customer; or
- any breach or violation of the Agreement by Customer.
- Confidential Information. “Confidential Information” means any material, data, or information in whatever form or media of a party to the Agreement that is provided or disclosed to the other, except for any information that is: (a) publicly available or later becomes available other than through a breach of the Agreement; (b) known to the Receiving Party (defined below) or its employees, agents, or representatives prior to such disclosure or is independently developed by the Receiving Party or its employees, agents, or representatives subsequent to such disclosure; or (c) subsequently lawfully obtained by the Receiving Party or its employees, agents, or representatives from a third party without obligations of confidentiality. Confidential Information shall include the following categories of information, whether disclosed orally or in writing and whether or not marked as confidential: financial and operational information and other matters relating to the operation of the parties’ business, customer usage or requirements, business and customer usage forecasts and projections, accounting, finance or tax information, pricing information, and the BOT Technology and all components of the Web Site other than the publicly viewable content of the Web Site (which are Confidential Information of BOT only). The party that has received Confidential Information (the “Receiving Party”) shall exercise the same degree of care and protection with respect to the Confidential Information of the other party (the “Disclosing Party”) that it exercises with respect to its own Confidential Information and shall not directly or indirectly use (for purposes other than permitted herein), disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Disclosing Party. Notwithstanding the above, either party may disclose Confidential Information if so required by law (including court order or subpoena), provided that such party affords the Disclosing Party with reasonable prior notice and opportunity to oppose such disclosure or seek a protective order regarding such Confidential Information. Notwithstanding the foregoing: (a) BOT will not be precluded by the Agreement from rendering services or developing or supplying work products to others that are competitive with, or functionally comparable to, the services rendered and BOT Technology provided hereunder; and (c) BOT shall not be restricted in its use of ideas, concepts, know-how, methodologies, and techniques acquired or learned in the course of its activities hereunder.
- Termination. [BOT/Either Party], in its sole discretion, may terminate this Agreement at any time, without cause, by providing at least 30 days' prior written notice to the [Customer/other party]. In addition to any other rights it may have under the Agreement or applicable law, BOT may immediately terminate the Agreement or suspend service, effective without notice, if:
Customer may terminate the Agreement if BOT materially breaches any material term or condition of the Agreement and fails to cure such breach within ten (10) days after receipt of written notice of same.
- Customer fails to make any payment within 10 days of the due date, or
- Customer's breach or failure to comply with any other obligation of Customer under the Agreement and its failure to cure such breach within ten (10) days after receipt of written notice of same.
- Customer (A) becomes insolvent, (B) is generally unable to pay, or fails to pay, its debts as they become due, (C) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency Law, (D) makes or seeks to make a general assignment for the benefit of its creditors, or (E) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property or business.
- Effect of Termination. The expiration or termination of the Agreement, for any reason, shall not release Customer from any obligation or liability to BOT, including any payment obligation, that: (i) has already accrued under the Agreement; (ii) comes into effect due to the expiration or termination of the Agreement; or (iii) otherwise survives the expiration or termination of the Agreement.
- Force Majeure. BOT is not liable for any failure to perform, or delay in performance, due to circumstances beyond its reasonable control, including but not limited to, riots, wars, fires, floods, explosions, strikes, acts of nature, and acts of government. If BOT’s services are interrupted due to any such force majeure cause, Customer and BOT shall negotiate a reasonable extension of time for BOT’s performance and payment of any additional costs to be incurred by BOT as a result thereof.
- Title and Risk of Loss. Title to goods shall pass upon payment in full therefor, and risk of loss shall pass to Customer upon delivery to Customer.
- General Provisions.
- No Third Party Rights. BOT and Customer agree that, except as otherwise expressly provided in the Agreement or the terms and conditions of use of any Third Party Products, there shall be no third party beneficiaries to the Agreement, including but not limited to the insurance providers for either party or the clients of either party.
- Protection of Personnel. BOT makes every effort to hire and retain the best and brightest personnel. If Customer hires any personnel of BOT during a contract or within 6 months of the end of a contract, then the Customer agrees to pay 50% of the employee’s previous annual compensation, or 50% of the employee’s future annual compensation, whichever is greater, to BOT. Customer agrees that damages for hiring such personnel would be extremely difficult to calculate, and that the preceding provision is a reasonable estimate and shall serve as liquidated damages for such a hiring. Customer also hereby agrees to grant access to BOT for any and all financial or payroll information necessary to ascertain the employee’s future annual compensation within the first year of employment with Customer.
- GOVERNING LAW; VENUE. THE AGREEMENT IS MADE UNDER AND WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF PENNSYLVANIA AND SPECIFICALLY EXCLUDING FROM APPLICATION TO THE AGREEMENT THAT LAW KNOWN AS THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS LOCATED IN CHESTER COUNTY, PENNSYLVANIA, AND EACH PARTY IRREVOCABLY CONSENTS TO SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
- Severability. In the event any provision of the Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of the Agreement will remain in full force and effect.
- Waiver. The waiver of any breach or default of the Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.
- Assignment. Customer may not sell, assign or transfer its rights or delegate its duties under the Agreement either in whole or in part without the prior written consent of BOT (which may be withheld for any reason), and any attempted assignment or delegation without such consent will be void. BOT may freely assign this Agreement and its rights under it, and BOT may delegate the performance of certain Services or the provisions of certain deliverables to third parties, including BOT's wholly owned subsidiaries. The Agreement will apply to, be binding in all respects upon, and inure to the benefit of the successors and permitted assigns of the parties.
- Relationship of Parties. BOT and Customer are independent contractors and the Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between BOT and Customer. Neither BOT nor Customer will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent, except as otherwise expressly provided herein.
- Miscellaneous. The Agreement, including all documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. The Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument. Once signed, any reproduction of the Agreement made by reliable means (e.g., photocopy, facsimile) is considered an original. Except as expressly provided in the Agreement, the Agreement may be changed only by a written document signed by authorized representatives of both parties. All notices and other communications hereunder will be in writing and will be sent either by (a) certified mail, postage prepaid, return receipt requested; (b) an overnight express courier service that provides written confirmation of delivery; or (c) facsimile with written confirmation by the sending machine or with telephone confirmation of receipt, addressed to the last address provided by such party.