These Standard Terms and Conditions (the “Terms”) set forth the terms and conditions that govern purchases by any purchaser (the “Client”) of website search engine optimization services and other related services (the “Services”) from Orrigem, (“Orrigem”). The Terms and any purchase orders, scopes of work and other agreements regarding the Services shall be referred to as the “Agreement.”
1. OFFER FOR SALE.
All agreements between the Client and Orrigem to purchase the Services shall be governed by the terms and conditions herein. The Client and Orrigem agree that any modifications, changes, alterations of the terms and conditions herein with respect to any specific proposal must be in writing and signed by the Client and Orrigem. Orrigem hereby objects to any additional or different terms which may be contained in any of the Client’s purchase orders, acknowledgements or other documents or any communications received from the Client, and the Client and Orrigem hereby agree that any such attempts shall be null and void and not deemed a part of the terms and conditions hereunder or any resulting order.
Any offer hereunder shall expire thirty (30) days following its date, unless the Client executes and returns to Orrigem that proposal for the applicable Services within such thirty (30) day period. No order may be cancelled, modified or altered by the Client, without written consent of Orrigem, which may be withheld in its sole discretion.
2. FEES AND PAYMENT.
The fees for the Services are set forth in the applicable proposal provided by Orrigem and otherwise are based on Orrigem’s current fees, in effect at the time of order, for the Services. For purposes of clarity, Orrigem may increase the applicable fees for the Services by two percent (2%) for each renewal term of this Agreement following the initial Term of this Agreement. The Client acknowledges and agrees that, if it purchases Services with a minimum period for the Services, such amounts shall be due and payable if this Agreement is terminated sooner.
Orrigem shall provide the Client with invoices, no more frequently than monthly, for the fees due from the Client under the Agreement. All payments for the Services are payable in only United States Dollars. The Client shall make payment for any and all monthly fees on or before the first day of the applicable month for Services. Unless Orrigem requires payment in advance or upon different terms, for any other services, the Client shall make payment for all fees within seven (7) days following the date of invoice.
Subject to the limitations above, payments may be made only in Cash/Cheque and Bank Transfer or by wire transfer or by certain credit cards provided that Client provides credit card authorization satisfactory to Orrigem.
Charges will be assessed on past due accounts as follows: (i) a late charge at a rate equal to the lesser of one and one-half percent (1.5%) each month or the highest rate permitted by applicable law and (ii) reasonable collection costs and expenses, including attorneys’ fees and court costs.
The Client’s failure to pay in accordance with the provisions of this Section 2 shall entitle Orrigem, without prejudice to its rights to damages, to suspend or cancel any outstanding orders or Services or require further assurance of payment from the Client.
3. TERM AND TERMINATION.
The term of this Agreement shall commence on the effective date set forth in the applicable proposal (and if not specified, the date that the Agreement is signed) (the “Effective Date’) and shall continue in effect, until terminated in accordance with the terms and conditions set forth in this Agreement, until the date that is the time period specified in the applicable proposal following the Effective Date (and if not specified for twelve (12) months following the Effective Date), and shall automatically renew for additional terms of equal period unless either party provides sixty (60) days’ prior written notice to the other party of its intention not to renew this Agreement (the “Term”).
Either party may terminate this Agreement for a material breach of any provision of this Agreement by the other party upon fourteen (14) days’ prior written notice to the other party, such notice to set forth in detail such breach, and the breaching party’s failure to cure such breach. Either party may terminate this Agreement immediately without breach or penalty by written notice to the other party in the event the other party: (i) institutes or has instituted against it proceedings for bankruptcy (which, in the case of proceedings against it, shall remain for ninety (90) days undismissed), (ii) shall consent to the appointment of a receiver for all or substantially all of its property, (iii) shall make a general assignment for the benefit of its creditors, or shall admit in writing its inability to pay its debts as they become due; or (iv) shall be adjudged a bankrupt or insolvent by a court of competent jurisdiction.
At Orrigem’s sole discretion, the Services may be immediately terminated or suspended if the Client violates any part of this Agreement.
Upon termination of Orrigem’s engagement hereunder, the Client shall pay to Orrigem the fees payable to Orrigem for the Services rendered through the date of termination in accordance with Section 2 hereof.
4. LIMITED WARRANTY.
Orrigem warrants to the Client that the Services shall meet the requirements of the applicable proposal and industry standards for a period of sixty (60) days from the date of delivery of the Services to the Client.
Orrigem shall comply with all Federal, state and international laws in connection with data security and privacy of personal data of any identifiable natural person if and when such personal data is shared with or accessible to Orrigem within the scope of the Orrigem’s Services hereunder.
For purposes of clarity, this warranty shall not be applicable to: (a) technical and other issues related to the Client’s website, hardware, software or data that are not related to the Services, including without limitation, development, creation and enhancement of the Client’s website, or (b) technical and other issues resulting from any third party’s services regarding the Client’s website; or (c) technical or other issues related to Client’s compliance with data security and other privacy laws that are not within the scope of the Orrigem Services hereunder.
Orrigem’s sole responsibility shall be, at its option, during the warranty period either: (i) to repair any warranty issues related to the Services or (ii) to refund to the Client the amounts paid during the warranty period, less a reasonable allowance for use, for such Services with warranty issues.
THIS WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY ORRIGEM WITH RESPECT TO THE SERVICES PROVIDED BY ORRIGEM. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ORRIGEM DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED, STATUTORY OR COMMON LAW, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND TITLE. SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OR EXCLUSION OF SOME WARRANTIES SO THEY MAY NOT APPLY. IF THIS EXCLUSION IS HELD TO BE UNENFORCEABLE BY A COURT OF COMPETENT JURISDICTION, THEN ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES SHALL BE LIMITED IN DURATION TO A PERIOD OF SIXTY (60) DAYS FROM THE DATE OF PROVISION OF EACH PORTION OF THE SERVICES, AND NO WARRANTIES SHALL APPLY AFTER THAT PERIOD.
5. LIMITATION OF LIABILITY.
THE CLIENT EXPRESSLY UNDERSTANDS AND AGREES THAT ORRIGEM SHALL NOT BE LIABLE TO THE CLIENT OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, EVEN IF ORRIGEM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER SUCH LIABILITY IS BASED UPON CONTRACT, TORT, NEGLIGENCE OR OTHER LEGAL THEORY. THE CLIENT EXPRESSLY UNDERSTANDS AND AGREES THAT ORRIGEM’S CUMULATIVE LIABILITY TO THE CLIENT UNDER THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE AMOUNT PAID TO ORRIGEM UNDER THIS AGREEMENT DURING THE FOUR (4) MONTH PRIOR TO ANY CLAIM.
The Client acknowledges that all delivery dates are approximate. In no event shall Orrigem be liable for any delays in delivery of the Services.
6. INTELLECTUAL PROPERTY.
Orrigem agrees that the Client shall own all right, title and interest in and to any pre-existing works of Client, including without limitation, content owned by Client that is provided to Orrigem (the “Pre-Existing Works”). In the event that any Pre-Existing Works are incorporated into or are used in conjunction with the Services under this Agreement, then during the Term, the Client hereby grants to Orrigem a fully paid up, non-exclusive, non-transferable, non-sub licensable license to use the Pre-Existing Works solely to provide the Services hereunder.
Upon payment in full for all Services rendered under this Agreement, Orrigem hereby transfers and assigns to the Client all right, title and interest in and to all work performed in conjunction with the Services, but not including the Licensed IP. For purposes of this Agreement, “Licensed IP” shall mean any and all photographs, artwork and other content and materials that were licensed (not purchased by Orrigem) for the Services. During the Term, Orrigem hereby grants to the Client a fully paid up, non-exclusive, non-transferable, non-sub licensable license to use the Licensed IP solely in connection with the Services.
The Client acknowledges that Orrigem retains all right, title and interest in and to any and all processes, procedures, methods and know-how related to the performance of the Services and any and all related copyrights, trademarks, patents, trade secrets and other intellectual property and proprietary rights.
Orrigem’s name and logo, and all related service names, marks and slogans are the trademarks, service marks or registered trademarks of Orrigem and may not be used or modified in any manner without the prior written consent of Orrigem.
At all times during the term of this Agreement and for two (2) years thereafter, the receiving party shall keep confidential and not disclose, directly or indirectly, and shall not use for the benefit of itself of any other third party any Confidential Information of the disclosing party, except that the receiving party may disclose Confidential Information of the disclosing party to its employees and subcontractors to the extent necessary to enable each party to exercise its rights hereunder. “Confidential Information” means any trade secrets or information whether in written, digital, oral or other form which is confidential or proprietary to the disclosing party, including, but not limited to, software, inventions, customer lists, financial information, business methods and processes, and any other materials or information related to any aspect of the business or activities of the disclosing party which are not generally known to others engaged in similar businesses or activities. Notwithstanding the foregoing, Confidential Information does not include information which: (i) was publicly known or generally known within the trade at the time of disclosure; (ii) becomes public knowledge or generally known within the trade without breach of this Agreement by either party or any of its directors, officers or employees; (iii) was information already known by the receiving party at the time of disclosure without a duty of confidentiality, or information independently developed by the receiving party’s personnel who did not have access to the information disclosed by the disclosing party; (iv) is required to be disclosed by law; or (v) is obtained by a party, its officers or employees from third parties who are under no obligation of confidentiality with respect to the information. If the receiving party is required to disclose any Confidential Information by a court order or other specific governmental action, the receiving party may comply with such disclosure requirement, unless the disclosing party, at its own expense, is successful in having the effect of such requirement stayed pending an appeal or further review thereof, or revised, rescinded or otherwise nullified. In all events, the receiving party agrees to notify the disclosing party promptly if at any time a request or demand of any kind is made to the receiving party to disclose any of the disclosing party’s Confidential Information. The disclosing party shall have the right, at its cost, to intervene in any proceeding in which the receiving party is being asked to disclose any of the disclosing party’s Confidential Information.
8. TAXES AND OTHER CHARGES.
The Client shall pay, in addition to the prices as set forth herein, any and all occupation tax, use tax, property tax, sales tax, excise tax, value-added tax, goods and services tax, duty, custom, inspection or testing fee, or any other tax, fee or charge of any nature whatsoever, except for taxes on Orrigem’s income, imposed by any governmental authority on or measured by the transaction between Orrigem and the Client. The Client shall indemnify, defend and hold harmless Orrigem against all claims, losses, damages, liabilities, costs and expenses, including reasonable attorneys’ fees; to the extent such claims arise out of any breach of this Section.
The Client represents and warrants to Orrigem that: (i) he is at least 18 years old; (ii) in the event that the Client is an entity, that it has the full right, power and authority to enter into this Agreement; (iii) the performance by the Client of its obligations and duties hereunder, do not and will not violate any agreement to which the Client is a party or by which the Client is otherwise bound; and (iv) the Client’s use of the Services complies in all respects with all applicable laws, statutes, regulations, ordinances and other rules, including without limitation, all Federal, state and international laws in connection with data security and privacy of personal data of any identifiable natural person.
The Client further represents and warrants that the Client shall ensure that privacy notices posted on Client’s website shall inform users of their rights under all applicable laws.
The Client further represents and warrants to Orrigem that the Client shall not violate, misappropriate or infringe upon any patent, copyright, trademark, trade secret and/or other intellectual property or proprietary rights of any third party.
The Client shall indemnify, defend and hold harmless Orrigem and its directors, officers, employees and agents from and against any and all claims, losses, damages, liabilities, costs and expenses, including reasonable attorneys’ fees, that arise out of, result from or are related to (i) a breach by the Client of any warranty, representation or covenant set forth herein, (ii) the Client’s negligence or willful misconduct, and (iii) violation, misappropriation or infringement upon any patent, copyright, trademark, trade secret and/or other intellectual property or proprietary rights of any third party.
During the Term and for a one (1) year period after the termination of this Agreement, the Client shall not, directly or indirectly, on its or his own behalf, or as a partner, member, stockholder, principal, agent, consultant, employee, or in any other capacity, without the prior written consent of Orrigem, hire any employee, sales representative or consultant of Orrigem or solicit, cause or induce any employee, sales representative or consultant of Orrigem to terminate or otherwise change their relationship or employment with Orrigem.
12. GOVERNING LAW.
THE PARTIES AGREE THAT THIS AGREEMENT AND THE RELATIONSHIP BETWEEN THE PARTIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND OF THE UNITED STATES OF AMERICA, WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAWS AND WITHOUT REGARD TO THE UNIFORM COMPUTER INFORMATION TRANACTIONS ACT. THE PARTIES AGREE THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY TO THIS AGREEMENT. THE PARTIES AGREE TO SUBMIT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE FEDERAL AND/OR STATE COURTS IN THE STATE OF MARYLAND FOR THE RESOLUTION OF ANY DISPUTES AMONGST THE PARTIES UNDER THIS AGREEMENT.
Any notice provided pursuant to this Agreement shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if mailed, two (2) days after deposit in the U.S. mails, postage prepaid, certified mail return receipt requested, or (iii) if sent via overnight courier, upon receipt.
14. GENERAL INFORMATION.
This Agreement constitutes the entire agreement between the parties with respect to the subject matter herein, superseding any prior agreements between the parties. The Client further acknowledges and agrees that the Client may not assign any part of this Agreement without Orrigem’s prior written consent, which may be withheld at its sole discretion. This Agreement shall inure to the benefit of each party’s successors and assigns. Orrigem shall not be deemed to be in breach of the Agreement and thereby liable to the Client or any third party for any delays in the performance of its obligations hereunder caused by fire, explosion, act of God, strikes, war, riot, government regulation, inability to obtain necessary labour, materials or manufacturing facilities or any other act or cause beyond the reasonable control of Orrigem. The failure of Orrigem to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement shall remain in full force and effect.
15. CONTACTING ORRIGEM.
If the Client has any questions about this Agreement, or any question or problem regarding the Services, the Client can contact Orrigem by mail at: email@example.com
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