Terms and Conditions
PAPERCUT INTERACTIVE, INC.’S STANDARD TERMS AND CONDITIONS
Unless otherwise stated in writing and signed by Papercut Interactive, Inc. (the "Company") and the other contracting parties, the following Standard Terms and Conditions (the "Terms") apply to and are hereby incorporated in all proposals, contracts, agreements, change orders, and related business or contractual relationships of any kind (each a "Contract") between Company (including its affiliates and divisions) and its customers (each a "Customer") in which these Terms are incorporated by reference.
1. Term and Termination.
A. Term. Except as otherwise expressly set forth in the Contract, the term of the Contract (the "Term") will begin on the date the Contract is executed by the Company and the Customer (the “Effective Date”) and end in accordance with Section 1.E. of these Terms (the "Termination Date"), unless extended or earlier terminated in accordance with these Terms or the Contract.
B. Termination for Convenience. Company may terminate the Contract at any time after the Effective Date without cause upon 30 days' prior written notice to Customer.
C. Termination for Cause. This Agreement may be terminated: (i) by either Party if the other Party has materially breached this Agreement, and the breaching Party fails to cure such material breach within thirty (30) days of receiving written notice of such breach from the non-breaching Party; (ii) by either Party if the other Party makes a general assignment for the benefit of creditors, files a voluntary petition in bankruptcy or for reorganization or arrangement under the bankruptcy laws, if a petition in bankruptcy is filed against the other Party, or if a receiver or trustee is appointed for all or any part of the property or assets of the other Party; (iii) by the Company in the event that Customer has failed to pay the Company any fees and remains delinquent by more than thirty (30) days; or (iv) by a written agreement executed by the parties.
D. Rights Upon Termination. In the event this Agreement is terminated, Customer shall pay Company for all Services and/or work undertaken in performance of its obligations hereunder up to the date of termination.
E. Survival of Certain Provisions. The provisions of the Contract that by their nature should survive any termination of the Contract, including, but not limited to, Sections 4, 5, 6, 7, 8, 14, 15, 17, 19 and 21 shall survive such termination.
A. Company shall provide the custom programming, graphic design, logo design, search engine optimization, development services and such other website design services (the "Services") in accordance with the executed written proposal between Company and Customer (the “Proposal”).
B. Company shall perform the Services, and Customer shall pay Company for the Services, in accordance with the Contract.
C. Company’s performance of the Services may incorporate intellectual property, including but not limited to licenses, images, graphics and text, which are owned by third parties and/or Company. Customer agrees to adhere to and comply with the terms and conditions of such licenses and other intellectual property, as well as all applicable law. The Customer may not make alterations to the intellectual property of Company or of any third party without the expressed written consent of Company. Company may place copyright and/or proprietary notices, including hypertext links, within the Deliverables. Customer may not alter or remove such notices without Company's prior written consent.
D. Customer shall promptly deliver any content to Company as requested by Company in such media and/or electronic formations designated by Company. Customer agrees that Company is not responsible for performing any Services which are not set forth in the Proposal or for which required content has not been promptly delivered to Company. Customer grants to Company, and Company accepts from the Customer, a non-exclusive, worldwide, royalty-free license for the Term to edit, modify, adapt, translate, exhibit, publish, transmit, copy, prepare derivative works from, distribute, perform, display and use any content in connection with the Company's performance of the Services. Customer shall not provide to Company any content that may be obscene, defamatory, harassing, grossly offensive, or malicious, all as determined in the sole discretion of Company, or that actually or potentially infringes or misappropriates the copyright, trademark, or proprietary or intellectual property right of any person or entity.
3. Project Development and Delivery.
A. Review or Beta Version. Upon execution of the Proposal and Company's receipt of all content to be provided by Customer, if any, and upon payment of all Fees in accordance with the Contract, Company shall perform the Services and prepare for the Customer's review and approval a preliminary version of the website and other work product created by the Services (the “Deliverables”) (the preliminary version of the Deliverables being referred to hereafter as the "Beta Version").
B. Revisions. Upon delivery of the Beta Version to the Customer, the Customer shall have thirty (30) days to review and provide a written request for revisions to the Beta Version. Upon receipt of such request for revision, Company shall use commercially reasonable efforts to implement the requested revisions to the Beta Version that are within the scope of the Proposal. If Customer fails to timely provide an appropriate written request for revisions to the Beta Version in accordance with this Section 3.B., then the Company shall submit a notice to the Customer in accordance with Section 3.E. and the Beta Version shall be considered to be accepted by Customer as the final version.
C. Additional Revisions. Customer agrees that requests by Customer for revisions to the Beta Version that exceed the scope of the Proposal shall be deemed a request for amendment of the Proposal ("Proposed Revisions"). Upon submission of detailed, written Proposed Revisions to Company, Company may evaluate such Proposed Revisions and submit to the Customer for the Customer's acceptance a revised Proposal or other written price quote that shall specify all Fees inclusive of time and materials for such Proposed Revisions. If Customer agrees to Company's revised Proposal or other written price quote, the Proposed Revisions shall be amended to and incorporated by reference into the Proposal. Upon Company’s completion of any Proposed Revisions agreed upon by Customer and Company, Company shall deliver the revised Deliverables (“Revised Beta Version”) to Customer, and Customer shall have ten (10) days to provide a written request for revisions to such Revised Beta Version. Any changes that are outside the scope of such revised Proposal shall be deemed additional Proposed Revisions.
D. Delivery. The Company shall use commercially reasonable efforts to deliver the Beta Version and Proposed Revisions thereof substantially in accordance with the Proposal, as may be amended.
E. Acceptance. Upon Company’s completion of any requested changes to the Beta Version (and Revised Beta Version, if any) that are within the scope of the Proposal, Company shall provide written notice to Customer that the Deliverables and the Services are complete. Such notice of completion constitutes acceptance by the Customer of the Deliverables without further action by either party. Any further desired changes to the Deliverables by the Customer shall be considered Proposed Revisions subject to Section 3.C. and shall not alter Customer’s acceptance of the Services and Deliverables.
4. Payment Terms.
A. All payments to Company by Customer (the “Fees”) shall be made within ten (10) days of the date provided for payment in the Proposal and, if applicable, within thirty (30) days of the date of any invoice by Company to Customer. Thereafter, Customer agrees that amounts of any unpaid Fees shall accrue interest at the lesser of one and one half percent (1.5%) per month or the maximum applicable interest rate permitted by law. Further, any Fees that remain unpaid after thirty (30) days shall be subject to a collection charge of $100.00. Customer shall pay all costs of collection, including but not limited to all attorney's fees and expenses, in the event any Fees require collection efforts.
B. Customer shall pay all fees (including but not limited to hosting fees, licensing fees, copyright and related third party charges), taxes, duties and levies of any government entity associated with the provision of Services or the completion of the Deliverables, excluding taxes on the income of the Company. Customer agrees to additionally pay Company at a rate of $150.00 per hour to set up e-mail addresses, if requested.
C. If Customer in good faith disputes any portion of any invoice of Company, Customer shall submit to Company within ten (10) days of the date thereof full payment of the undisputed portion of the invoice and written notice and documentation identifying and substantiating the disputed amount. If Customer does not report a dispute within ten (10) days of the date of Company's invoice, Customer shall have waived its right to dispute such invoice. Company and Customer agree to use their best efforts to resolve any dispute within thirty (30) days after Company receives written notice of the dispute from Customer. Any disputed amounts resolved in favor of Customer shall be credited to Customer on the next invoice following resolution of the dispute. Any disputed amounts determined to be payable to Company shall be due within ten (10) days of the resolution of the dispute.
5. No Warranties/Limitation of Liability.
A. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE DELIVERABLES OR THE SERVICES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTIBILITY, PERFORMANCE, FUNCTIONALITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR INFRINGEMENT, AND CUSTOMER ACCEPTS THE DELIVERABLES AND THE SERVICES “AS IS” AND “WITH ALL FAULTS”. The Customer is expected to use the process described in Section 3 of these Terms to make any requested changes to the Services and Deliverables.
B. NO ACTION UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY AGAINST THE OTHER PARTY MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION ARISES. IN NO EVENT SHALL THE COMPANY BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED LOSS OF REVENUE, PROFIT AND/OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR ITS SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE COMPANY'S TOTAL LIABILITY FOR DAMAGES SHALL BE LIMITED TO THE TOTAL FEES PAID BY CUSTOMER TO THE COMPANY HEREUNDER.
C. Customer represents and warrants to Company that: (i) Customer has the power and authority to enter into and perform its obligations under this Agreement; (ii) Customer provided content does not and shall not contain any content, material, link, advertising or services that actually or potentially violate any applicable law or regulation or infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person; and (iii) Customer owns or has a valid, assignable license regarding any content provided to Company, and all proprietary or intellectual property rights therein, or has express written authorization from the owner to copy, use and display the content on and within any Deliverable.
A. The sole and exclusive venue for any and all litigation arising out of or related to a Contract shall be the state and federal courts located in Hamilton County, Tennessee. Customer waives any and all arguments that it may have that such lawsuit must be brought in an inconvenient forum. Customer consents to the personal jurisdiction of the state and federal courts located in Hamilton County, Tennessee as well as any other venue in which Company must bring suit in order to obtain an injunction or take collection actions.
B. Subject to Section 4.A., in the event of any litigation between the parties arising out of or related to the Contract, the prevailing party, in addition to such other relief that it may be entitled, shall be entitled to payment of all of its attorneys' fees by the other party.
A. Indemnification by Customer. Customer will, at its expense, indemnify, defend and hold harmless Company, and its owners, employees, successors and assigns (the "Indemnitees"), from and against all damages, losses, claims, liabilities and expenses (including all of Company's attorneys’ and other professional fees, settlements and judgments (collectively, “Losses”)) claimed by any third party in any claim, demand, suit or proceeding arising out of or in connection with any of the following: i) the breach of the Contract or misrepresentation by Customer of its obligations or warranties to Company under the Contract; or ii) the violation of any intellectual property laws, or any agreements related to any intellectual property provided by Customer to the Company or related to any licenses or intellectual property provided by Company to Customer.
B. Indemnification Procedures. The following procedures will apply to all claims for indemnification under this Section 7:
i. Promptly after receipt by Company of written notice of the commencement or threatened commencement of any civil, criminal, administrative or investigative action or proceeding involving a claim for which an Indemnitee may be entitled to indemnification, written notice of such claim will be conveyed to Customer. However, no failure so to notify the Customer will relieve the Customer of its obligations under the Contract.
ii. Each Indemnitee will have the right to select its own legal counsel and experts and to control its own defense in any negotiations or litigation pertaining to a claim covered by this Section 7 (notwithstanding that Customer is bearing the cost of the defense for the Indemnitees). However, to the maximum extent possible permitted by the circumstances and ethical considerations, counsel for Customer and counsel for the Indemnitees will work together to avoid duplication of effort or expense, in attorney fees or otherwise. In addition, Customer and the Indemnitees will make good faith efforts to coordinate their activities so as to take consistent positions in the course of negotiations or litigation.
iii. Customer will obtain the prior approval, which approval will not be unreasonably delayed or withheld, from Company in respect of any proposed settlement of any claims before entering into any settlement of such claims or ceasing to defend such claims.
iv. If Customer does not participate in the defense of a claim covered by this Section 7, the Indemnitees will have the right to defend the claim in such manner as they may deem appropriate, at Customer's cost and expense. Customer shall promptly reimburse the Indemnitees for all such costs and expenses, demand for which may be made periodically.
8. Notices. Whenever notice shall be given by either party to the other, such notice shall be in writing addressed to the party being notified at the address set forth in the Proposal or to such other address as a party may from time to time designate by notice to the other party. Notice may be given by hand delivery, express service, electronic means (including but not limited to electronic mail), or by postage paid certified mail with return receipt requested. Notice given by hand delivery, express service or electronic means shall be deemed to have been given upon receipt by the party being notified. Notice given by certified or registered mail shall be deemed to have been given at the time return receipt is signed for, provided, however, that if delivery is refused, notice shall be deemed received five (5) days after the same shall have been deposited in the mail.
9. Assignment. The Contract will be binding upon and inure to the benefit of each party and its successors and permitted assigns, but neither the Contract nor any of the rights, interests or obligations under the Contract may be assigned by either party without the prior consent of the other party.
10. Approvals and Similar Actions. Where agreement, approval, acceptance, consent or similar action by Customer is required by any provision of the Contract, such action will not be unreasonably delayed or withheld.
11. Modification; Waiver. Except as otherwise provided in Section 13, a Contract may be modified only by a written instrument duly executed by the parties. No delay or omission by either party to exercise any right or power under a Contract will impair such right or power or be construed to be a waiver of the right or power. A waiver by either party of any of the obligations to be performed by the other party or any breach thereof will not be construed to be a waiver of any succeeding breach thereof or of any other obligation contained in the Contract.
12. No Third-Party Beneficiaries. Each Contract is for the sole benefit of the parties and is not intended to, and shall not, confer any rights or benefits on any third person.
13. Amendment of these Terms. These Terms may be amended from time to time. Amendments will be posted on http://www.papercutinteractive.com/terms-and-conditions and will be effective 30 days after posting. No other notice will be given or is required to be given. Customer is encouraged to go to the above website on a monthly basis.
14. Severability. If any term of the Contract is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, the term will be deemed reformed or deleted, as the case may be, but only to the extent necessary to comply with applicable law. The remaining provisions of the Contract will remain in full force and effect.
15. Governing Law. The Contract will be governed by the laws of the State of Tennessee and the United States of America.
16. Entire Agreement. Except as otherwise expressly provided in a writing signed by both parties, the Contract, together with the attachments, exhibits, supplements or other terms of Company specifically referenced therein, constitute the final, entire, and exclusive agreement between the parties with respect to the subject matter hereof. In the event of a conflict between these Terms and another provision of the Contract, the other provision of the Contract shall control, but such control shall be limited to the greatest extent possible.
17. Battle of the Forms Not Applicable. The parties have agreed and it is their intent that the battle of the forms described in Section 2-207 of the Uniform Commercial Code or its equivalent law or statute shall not apply to these Terms or to any invoice or acceptance form of Customer relating to these Terms. It is the parties’ intent that these Terms shall exclusively control the relationship of the parties, and in the event of any inconsistency between any invoice or acceptance form sent by Customer to Company and these Terms, these Terms shall control.
18. Remedies Cumulative. Each of the rights and remedies reserved to Company in these Terms shall be cumulative and the assertion of any party of any right or remedy shall not preclude the assertion by such party of any other rights or the seeking of any other remedies.
A. All information typically regarded as confidential and proprietary that has been or may hereafter be disclosed or discovered in any form, whether in writing, orally, electronically, visually or otherwise, including but not limited to any and all technical information, data, patents, copyrights, inventions, designs, discoveries, improvements, processes, trade secrets, customer lists, contacts, customer quantity and technical requirements, pricing information, geographic and sales data, financial information and business strategy information furnished to Customer hereunder or otherwise acquired by Customer and pertaining to the Company (the "Confidential Information") shall remain the property of Company, shall be held in confidence and shall be returned at Company’s request. Such Confidential Information shall be used in complying with the Contract and may only be used for other purposes upon such terms as may be agreed upon by Company in writing. Customer agrees that it shall not disclose or use the Confidential Information in any other form or manner, including but not limited to produce, manufacture, package or sell any products, to compete with Company, or to aid any other company in competing in Company, so long as such Confidential Information is not generally known to the public. The Customer shall be responsible for any violation of this Section 19 by any third parties that the Customer provides Confidential Information to. Customer shall obtain a confidentiality agreement, in a form acceptable to Company, from any third party receiving Confidential Information.
B. As promptly as practicable (and in any event within ten (10) days) after the earlier of the completion of the Customer’s obligations under, or the termination of, the Contract, the Customer will return or, with the consent of Company, destroy, all of the Confidential Information, except for business records required by law to be retained by the Customer, and upon request of the Company shall deliver an affidavit signed by an officer of the Customer attesting to the destruction of the Confidential Information.
C. If the Customer is requested, as part of an administrative or judicial proceeding, to disclose any of the Company’s Confidential Information, the Customer will, to the extent permitted by applicable law, notify the Company of such request as promptly as practicable (and in any event within five (5) Business Days after receiving the request) and cooperate with the Company, at the Customer’s expense, in seeking a protective order or similar confidential treatment for such Confidential Information.
D. The covenants of Customer under this Section 19 shall survive the expiration or termination of this Agreement, are unconditional, and do not depend on the performance or nonperformance of any other provision of this Agreement. Since damages for violation of this Section 19 may be difficult to ascertain, and since violation of this Section 19 may result in irreparable injury to Company for which money damages alone may not adequately compensate Company, Company shall be entitled to injunctive relief to prevent any breach of this Section 19, or any continuing breach of this Section 19, as well as any other relief available to it at law or in equity.
20. Force Majeure. If the performance of any part of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
21. Non-Solicitation. During the Term of this Agreement and for a period of one (1) year after the expiration or termination of this Agreement, Customer shall not, and shall ensure that its affiliates do not, directly or indirectly, solicit or attempt to solicit for employment any employees, officers, directors, agents, contractors, or personnel of Company without the prior written consent of Company, which, notwithstanding any provision of this Agreement to the contrary, may be withheld for any reason or no reason. The parties agree that the remedy at law for any breach of this provision shall be inadequate and that, in addition to any remedy it might have, the aggrieved party shall be entitled to injunctive relief without proof of irreparable injury and without posting bond.
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