Decker Media Services Agreement
|last updated June 30, 2015
This Services Agreement ("Agreement") is made as of the date on which you request services provided by Decker Media, receive electronic disclosure or select the option agreeing to these terms and conditions (the "Agreement Date"), by and between Welloria, Inc., a Texas corporation, d/b/a Decker Media, with its principal place of business located in Pinehurst, Texas ("Decker Media"), and you, as the Customer ("Customer"). Decker Media and Customer are collectively referred to in this Agreement as the "Parties," and singly as a "Party." In consideration of the mutual covenants and agreements set forth below, Customer and Decker Media agree as follows:
Services Provided by Decker Media
Decker Media will provide Customer with services related to website development and/or editing, programming services, consulting services, and/or design services, that are specifically requested by Customer. Customer and Decker Media agree that the Customer's exact needs or wants may not be reasonably or practically possible. Decker Media cannot control or be responsible for the lack of cooperation by Customer or by third parties necessary to complete the services requested by Customer. Decker Media agrees to use reasonable efforts to accomplish Customer's requested services. Due to the complex natural and wide possibilities of function and design for even the most basic features, Decker Media will make the ultimate determination for the depth or scope and feasibility of any given feature. Decker Media will use reasonable efforts to accommodate Customer’s requests, and Customer understands and agrees to this limitation. Services will be provided on an hourly basis with no specific completion date. Time/cost estimates for services or groups of services may be provided in advance. However, the actual cost or time may be adjusted at any time for reasons including but not limited to additional design or development work requested or required for completion of the requested services, or according to adjustments to the estimate of time/cost for the services as the project(s) progress.
Price and Payment Terms
Customer agrees to pay Decker Media for services rendered under this Agreement as follows:
||Customer shall pay Decker Media its current hourly rate per the schedule provided by Decker Media for Services rendered by Decker Media as and when invoiced by Decker Media. “Services” performed by Decker Media shall include, but shall not be limited to: any and all (1) application development; (2) web design creation; (3) data entry and/or coordination; (4) software programming; (5) any and all bug fixes, compatibility fixes, corrections, adjustments, changes to the application, changes to the software, changes to the web design, and/or changes to the functionality; and/or (6) any other professional services that are required for Decker Media to complete the work requested by the Customer.
||Payment is due upon Customer's receipt of Decker Media’s invoice or escrow release request via email, and payment is considered late if not received by Decker Media on or before the fifth calendar day after the date of the invoice or escrow release request. Customer is deemed to have received the invoice within thirty minutes after it is sent via email by Decker Media if it is sent to the email address provided by Customer for billing purposes.
||Customer may make payment by company check or credit card. If payment is not received within five calendar days after the invoice date, a late fee of $45.00 will be automatically due and owing by Customer to Decker Media to compensate Decker Media for its time and reasonable expenses incurred in the event of a late payment by Customer. In addition this late fee, finance charges will accrue on all past due amounts from the due date of each invoice or request until paid at the rate of 18% per annum.
||If any payment made by Customer to Decker Media is rejected or returned by Customer’s or Decker Media’s financial institution for any reason other than an error on the part of Decker Media’s or Customer’s financial institution (signed proof of fault from Customer’s authorized financial institution representative is required), Customer shall pay Decker Media a Payment Rejection Fee in the amount of $55.00 to compensate Decker Media for its time and reasonable expenses incurred that are related to the rejected payment. This fee is in addition to any bank rejection or return of payment fees. If payment is rejected or returned as a result of an error by Customer’s financial institution, Customer is required to reimburse Decker Media for bank charges paid as a result of payment rejection or return.
||Decker Media reserves the right to cease providing services to Customer if Customer does not comply with the payment requirements contained in this Agreement.
||All payments are non-refundable.
TERMS AND CONDITIONS/DECKER MEDIA
1. Term of Agreement: The term of this Agreement shall be as long as Customer requests Decker Media to perform services for Customer, or until either Party terminates this Agreement.
2. Customer's Obligations: Customer shall provide Decker Media access to any and all software and information, including but not limited to content write-ups, image files, software, and hosting access that Decker Media needs to perform its obligations under this Agreement at those times that Decker Media requests. This includes, but is not limited to, proprietary information to be placed into a database or otherwise manipulated for the performance of Decker Media's obligations. If Customer fails to perform its obligations under this Agreement, then Decker Media is relieved of all of its obligations under this Agreement.
3. Decker Media Logo and Link: Customer agrees that Decker Media has the right to place on Customer’s website, software, or in Customer’s code, as applicable, Decker Media’s logo and, if possible, a link to Decker Media’s website, and to otherwise place on Customer’s materials a notation that the materials were created or developed by Decker Media. Customer agrees to maintain Decker Media’s logo, link, and/or notation until the materials are substantially changed by Customer as determined by Decker Media in its sole discretion. This provision shall survive the termination of this Agreement, regardless of the reason, or no reason, for termination.
4. Content and User Conduct: By providing content and data for Decker Media to use for the purpose of completing the project ("User Content"), Customer represents and warrants to Decker Media that (a) Customer has all necessary rights to distribute such content, either because Customer is the author of the content and has the right to distribute the same, or because Customer has the appropriate distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owner of the content, and (b) Customer does not violate the rights of any third party. As used herein, "content" shall include without limitation any text, widgets, API, illustrations, images, graphics, audio, and video (and the trademarks, service marks and logos contained therein) that is provided to Decker Media or created by Customer. Customer may customize or modify the appearance, data, or features of the Project as provided and allowed by the Administration Control Panel. Customer must not otherwise alter or modify the Project. Decker Media grants Customer a license in the use of the Project (as "Software as a Service"). Customer must not copy, modify, host, sublicense, resell, reverse engineer, or use for other businesses, in whole or in part, the Project or the results of the Project. Customer cannot make public, share, or discuss features or functionality related to any password protected sections of the Project. This provision shall survive the termination of this Agreement for any reason.
5. Decker Media Content: Except for User Content, the content on this Site and the Services, including without limitation the text, software, scripts, source code, database, data, API, graphics, photos, sounds, music, videos and interactive features and the trademarks, service marks and logos contained therein ("Decker Media Content"), are owned by or licensed to Decker Media in perpetuity, and are subject to copyright, trademark, and/or patent protection in the United States and foreign countries, and other intellectual property rights under United States and foreign laws. Decker Media Content is provided to you "as is", "as available" and "with all faults" for your information and personal, non-commercial use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any purposes whatsoever without the express prior written consent of Decker Media. No right or license under any copyright, trademark, patent, or other proprietary right or license is granted by this Agreement. Decker Media reserves all rights not expressly granted in and to the Decker Media Content, this Site and the Services, and this Agreement do not transfer ownership of any of these rights. This provision shall survive the termination of this Agreement for any reason.
6. Confidential Communications: Customer understands that any information conveyed by Decker Media to Customer and all communication, including but not limited to email, fax, messaging, and phone conversations between Decker Media and Customer are confidential and intended solely for the Customer. Customer is strictly prohibited from disseminating, distributing, announcing, discussing, or communicating in any way the information communicated between Decker Media and Customer before, during, or after Decker Media renders services without written permission, unless required by law. This provision shall survive the termination of this Agreement, regardless of the reason, or no reason, for termination.
7. Decker Media's Obligations: Decker Media shall fulfill its obligations to Customer according to reasonable industry standards. Decker Media shall provide the services requested by Customer under this Agreement, except as excused, pursuant to the section entitled “Delays” below. The Parties may agree to extend the duration of providing application programming services without waiving any rights under this Agreement.
8. Cancellation or Termination of Agreement: This Agreement may be terminated at any time by Decker Media without cause. Either Party may terminate this Agreement at any time for cause; that is, failure of the other Party to fulfill or comply in some material way with their obligations set forth in this Agreement, if the Party desiring to terminate gives written notice to the other Party of the breach and fifteen days to cure the breach before the termination becomes effective. Failure of Customer to (a) cooperate with Decker Media, (b) provide requested information in a timely manner, or (c) make payment to Decker Media timely or in the amounts set forth in this Agreement each are examples of events that constitute “cause” for Decker Media to terminate this Agreement.
9. Cancellation Fee: If this Agreement is terminated for any reason other than without cause by Decker Media, Customer shall pay the following cancellation fee to Decker Media (unless otherwise agreed by the Parties in writing signed by both Parties). Customer shall pay to Decker Media (A) $150.00, (B) multiplied by the total number of hours worked by Decker Media for the Customer, then (C) subtracting from that figure the amount already paid by Customer [(A x B) - C = total cancellation fee due], within five days after the date of termination. If Decker Media terminates this Agreement without cause, then no cancellation fee shall be due from Customer.
10. Default and Remedies: Either Party claiming a default by the other Party (including but not limited to a default by Customer in making payment) must give written notice of the default to the other Party at the Party’s active email address provided to that Party by the other Party, and then allow fifteen days from the date of the notice for the other Party to cure the default. Failure to give notice and allow time for cure shall preclude the failing Party from exercising its remedies under this Agreement. If Customer fails to timely pay Decker Media according to the terms set forth in this Agreement and Customer fails to cure this breach within fifteen days after written notice of the breach is given to Customer by Decker Media, then Decker Media is relieved from performing any and all of its obligations under this Agreement. Decker Media may, at its option, continue to perform its obligations under this Agreement without re-assuming the obligations it was relieved from performing. Decker Media may also proceed to enforce its rights under this Agreement by any lawful means and/or in equity.
11. Limited Liability: Decker Media shall not be liable for any damage to Customer's hardware, software, applications, or other systems and property directly or indirectly caused by or related to the work done by Decker Media. Additionally, regarding services provided pursuant to the terms of this Agreement, Decker Media makes no warranty, express or implied, and Decker Media disclaims any implied warranty of merchantability or fitness for a particular purpose. This provision shall survive the termination of this Agreement, regardless of the reason, or no reason, for termination. Decker Media cannot and shall not be held responsible for internet security threats such as third party vendors, Customer’s employees, and third party software programs that access, reside in, or are in any way connected to the website or software developed by Decker Media. Decker Media also cannot and shall not be held responsible if Customer allows any third party to make any changes to any finished products provided by Decker Media that cause any of those finished products to experience problems or to no longer function properly. Decker Media cannot and shall not be held responsible for any hack attempts, hackers accessing or stealing credit card or other data, standard usage problems, fraudulent activity, breach of data security, transaction errors, system errors, or any other security issues related in any way to any finished products provided by Decker Media.
Customer is solely responsible for any and all business and transaction process rules. If any finished product provided by Decker Media to Customer is fully operational at completion, but later experiences problems or fails to work or to work properly, Decker Media shall not be responsible for the “break” unless the failure is caused by the gross negligence of Decker Media in developing that product.
In no event will Decker Media be liable for any lost profits or other damages, including direct, indirect, incidental, special, consequential, or any other type of damages, arising out of this Agreement or related to any work done by Decker Media, even if Decker Media has been advised by Customer of the possibility of these damages. The Parties acknowledge that the price for application programming services would be much greater if Decker Media undertook more extensive liability.
12. Indemnity: Customer agrees to indemnify and hold harmless Decker Media of and from any and all claims, demands, losses, causes of action, damage, lawsuits, and judgments (including but not limited to attorneys' fees, court costs, and expenses of collection) that arise from or are related to the work or services performed by Decker Media. This provision shall survive the termination of this Agreement for any reason.
13. General Provisions:
a. Assignment: Neither Party can assign this Agreement or and of the rights or obligations in it without approval of the other Party, and this approval will not be unreasonably withheld.
b. Delays: Decker Media's obligation to perform under this Agreement shall be excused without liability when prevented by strike, terrorism, act of God, governmental action, accident, acts of third parties outside Decker Media’s control, acts of Customer, or any other condition beyond Decker Media's reasonable control. Decker Media agrees to resume performance as soon as practicable following cessation of the condition, unless resumption is determined by Decker Media in its reasonable discretion to be impossible or impracticable.
c. Notices: All notices required in this Agreement shall be sent to the following email addresses: Customer Email: at the email address provided by Customer to Decker Media Decker Media Email: firstname.lastname@example.org These contact addresses and emails may be changed by providing the new contact information to the other Party via email.
d. Entire Agreement: This Agreement constitutes the final, complete, and exclusive statement of the terms of the Agreement between the Parties pertaining to the services to be provided by Decker Media, and supersedes all prior and contemporaneous understandings or agreements of the Parties, including any discussions or exchanges via email, instant messages, text message, or phone. No Party has been induced to enter into this Agreement by, nor is any Party relying on, any representation or warranty outside those expressly set forth in this Agreement.
e. Attorney's Fees and Court Costs: If any dispute arises between the Parties to this Agreement regarding this Agreement or the rights and/or obligations of either Party under this Agreement, the prevailing Party in that dispute shall be entitled to reasonable attorneys' fees and court costs.
f. Governing Law and Venue: This Agreement shall be governed by and construed under the laws of the State of Texas. If any action is commenced regarding this Agreement, the Parties agree that venue shall be proper only in a court of competent jurisdiction located in Montgomery County, Texas.
g. Illegality: If any provision of this Agreement is held to be void, invalid, unenforceable, or illegal by a court of competent jurisdiction, then that provision shall be removed and this Agreement shall be interpreted as if that provision had not been included, and all other provisions of this Agreement shall remain valid and in full force and effect.
h. Waiver: Failure of a Party to enforce any provision of this Agreement does not constitute and should not be construed as a waiver of the provision or of the right to enforce that provision or any other provision of this Agreement.
i. Modification: Decker Media may modify the terms of this Agreement, including its rates, from time to time and may do so by posting news of the updates and changes on its website via the “Terms” or “Services Agreement” page. Customer shall have thirty days from the date any updates or changes are posted on Decker Media’s website to cancel this Agreement without penalty. If Customer fails to cancel this Agreement within thirty days from the date on which the updates or changes are posted, then Customer is deemed to have accepted and to have agreed to be bound by the updates and/or changes to this Agreement posted by Decker Media.
By requesting services provided by Decker Media, or checking the box "Accept," Customer has submitted his/her/its electronic signature to this Agreement and Customer agrees to be bound by the terms of this Agreement for any and all services rendered on Customer’s behalf pursuant to this Agreement by Decker Media.