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This Addendum is hereby made part of the attached Proposal made by Spire Advertising, Inc., ("SPIRE”) and the CUSTOMER named in the Proposal. Each party acknowledges that the following terms and conditions are incorporated in and made a part of the Proposal. The attached Proposal, along with this Addendum and any other written supplements, amendments, exhibits, schedules or addendums thereto, (collectively, the "Agreement”), shall be binding upon the parties, and shall govern the relationship between SPIRE and CUSTOMER for the term of their relationship pursuant to the Proposal.
1) Work: SPIRE agrees to complete the services for the CUSTOMER itemized in the Proposal attached hereto and incorporated herein as Exhibit A (the "Proposal"). Work under the Proposal will be completed in a workmanlike manner in accordance with industry standards. SPIRE shall not be responsible to complete or perform any work other than such work specifically set forth in the Proposal. CUSTOMER acknowledges and agrees that any work in addition to the work outlined in the Proposal (including additional custom features or other changes) collectively “Change Orders”) shall be completed by SPIRE on a time and materials basis. Prior to SPIRE commencing work on any Change Order, SPIRE shall provide CUSTOMER with a cost estimate and, if approved by CUSTOMER, SPIRE shall commence work on the Change Order. All Change Orders, including the work outlined and the cost estimate, shall be in writing.
2) Payment: CUSTOMER shall compensate SPIRE for the services performed pursuant to the Proposal. All payments for services performed pursuant to the Proposal are due within 15 days of CUSTOMER receiving an invoice for such services from SPIRE. Unpaid invoices for website hosting will result in suspension of the website. In the event the CUSTOMER does not pay such invoices in full within 15 days of such invoice, interest at the rate of 12.0% per annum shall accrue on the unpaid balance of such invoice.
3) Email Assistance: In the event CUSTOMER requires assistance with the initial configuration or operation of its email, SPIRE will assist in such service on a time and materials basis pursuant to SPIRE’s standard hourly rates. SPIRE shall not be responsible for the performance of CUSTOMER’s email regardless of whether SPIRE assists with the configuration of CUSTOMER’s email.
4) Customer Delays: In the event SPIRE’s work is complete and SPIRE is awaiting additional information (including but not limited to content, product lists, images) from CUSTOMER in order to complete SPIRE’s work as set forth in the Proposal, SPIRE reserves the right to bill CUSTOMER for the work that has been completed to that point. In the event the training has been completed, SPIRE shall be authorized to require payment in full by CUSTOMER.
5) Additional Charges: CUSTOMER shall be responsible to pay SPIRE recurring charges incurred from time to time on behalf of CUSTOMER for the continued operation of the website as set forth in the Proposal, including annual fees incurred for web hosting, domain names, security certificates, coaching services, advertising expenses, and third-party services or licensing fees. All such recurring charges, if any, will be set forth in the Proposal.
6) Training: Upon the completion of SPIRE’s work, SPIRE and CUSTOMER shall arrange a date for CUSTOMER training as required by the Proposal. At the time of the training, CUSTOMER and SPIRE will identify any additional work to be completed by SPIRE pursuant to the Proposal. In the event any work requested by CUSTOMER at the training constitutes a Change Order, SPIRE shall advise CUSTOMER of that fact and shall provide CUSTOMER with an estimate as soon as practical thereafter of the amount due in order to complete such Change Order. Such Change Order shall be in writing as set forth in Section 1.
7) Customer Representations and Warranties and Indemnity: CUSTOMER represents and warrants to SPIRE that all action on the part of CUSTOMER necessary for the authorization, execution and delivery of, and the performance of all of its obligations under this Agreement has been duly taken; this Agreement constitutes a valid and binding obligation of CUSTOMER, enforceable against it in accordance with its terms, and that the execution and delivery of this Agreement does not violate any law or regulation to which CUSTOMER is subject or by which it is bound. CUSTOMER agrees to indemnify and hold harmless SPIRE form any and all damages, costs, including attorney’s fees, charges, expenses, actions, claims, and demands which may be sustained, made or recovered against SPIRE that arise from or are in any way related to the Proposal or the services and performance by SPIRE or CUSTOMER thereunder. This indemnification shall include indemnity against any claims for advertising injury, infringement, unfair advertising practices, defamation, or any other matter. These representations, warranties, and the indemnity hereunder shall survive termination of the Proposal.
8) Customer Solely Responsible for Content: CUSTOMER shall be solely responsible for any and all claims, civil or criminal liability arising from CUSTOMER provided content on the CUSTOMER'S website or marketing materials, whether posted by SPIRE or CUSTOMER. CUSTOMER represents and warrants to SPIRE that CUSTOMER has the legal right and authority to use all logos, trademarks, symbols, written content, pictures, video, audio, and any and all other content provided to SPIRE by CUSTOMER. CUSTOMER agrees to defend, indemnify and hold harmless SPIRE and its owners, affiliates, agents and employees and their affiliates from and against all damages and/or other liability resulting from or relating to demands, claims, actions or causes of action, assessments or other losses, costs and expenses relating thereto, interest and penalties thereon and attorney’s fees, legal fees and any other expenses in respect thereof in enforcing their rights hereunder, by reason of or resulting from or attributable to its breach of this paragraph, or other breach of this agreement.
9) Force Majeure: From time to time the Project and/or CUSTOMER’s website may be subject to delays or outages beyond the control of SPIRE or any other party. SPIRE shall not be liable to CUSTOMER for any damages for any outage beyond SPIRE’s control or for failure to comply with any terms of this Agreement to the extent such failure is caused by an act of God, war, riot, fire, explosion, flood, strike, lockout, injunction, national defense requirement, electrical outages, server or internet outages, or the inability to obtain fuel, power, raw materials, labor, or any other force majeure event or cause beyond the reasonable control of SPIRE.
10) Disclaimer of Warranties: SPIRE makes no representations or warranties regarding CUSTOMER’s location or appearance on internet search engines, or the success, results, or outcome of any advertising or marketing campaign, traffic campaign, sales or other content work done by SPIRE. SPIRE does not guarantee that SPIRE’s work pursuant to the Proposal will generate a specific volume of visits, business or new sales for CUSTOMER. THERE ARE NO IMPLIED WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, FREEDOM FROM ERROR, OR SPECIFIC RESULTS OF ANY KIND.
11) Entire Agreement: CUSTOMER agrees that no representations of any kind have been made to CUSTOMER by SPIRE or by any of its agents other than as set forth herein, and that no understanding or other agreement has been entered into other than as set forth herein. This Proposal represents the entire agreement between CUSTOMER and SPIRE.
12) Limitation of Liability: CUSTOMER agrees that in the event that SPIRE is found to be in breach of this Proposal, the maximum liability of SPIRE to CUSTOMER for any claim, whether such claims arise by contract, tort, legal, equitable, or otherwise, shall be limited to the amount of compensation due to SPIRE under the Proposal. CUSTOMER waives all incidental, consequential and punitive damages against SPIRE that may arise from the Proposal.
13) Remedies Cumulative: The remedies available to SPIRE hereunder are cumulative and no delay in exercising any remedies hereunder shall constitute a waiver of the same.
14) Independent Contractor: SPIRE will perform work pursuant to the Proposal as an independent contractor. Nothing in the Proposal will be construed to create or imply a joint venture, partnership, principal-agent, or employment relationship between the parties. SPIRE retains the sole and exclusive right to control and direct the manner that the work in the Proposal is accomplished, including but not limited to the right to subcontract the work in the Proposal.
15) Venue and Jurisdiction: CUSTOMER and SPIRE agree and consent to jurisdiction of any dispute that may arise under the Proposal being in the Ashland County Court of Common Pleas. CUSTOMER and SPIRE further agree that any legal action arising under the Proposal shall be limited in venue to either the state or federal court serving Ashland County, Ohio. Ohio law, without reference to choice of law provisions, shall apply to the Proposal.
16) Promotion by Spire: CUSTOMER hereby grants SPIRE the right to feature CUSTOMER’s website, or other marketing work done pursuant to the Proposal, in any advertisement, marketing or promotional material of SPIRE.
17) Confidentiality: CUSTOMER and SPIRE shall take reasonable precautions not to disclose to any third party any confidential information regarding the other party. This includes without limitation, information regarding SpireCMS, marketing data, product data, or any other intellectual property or process of either SPIRE or CUSTOMER. This confidentiality agreement does not apply to: 1) information which is or becomes part of the public domain through no act or omission by either party; 2) information for which the other party has authorized in writing may be disclosed; or 3) disclosures to legal counsel or disclosures reasonably believed to be required by law.
18) Non-Solicitation: CUSTOMER agrees that it will not hire, solicit, or otherwise encourage or facilitate any employee or independent contractor of SPIRE to leave employment with SPIRE for a period of 3 years after SPIRE has completed providing the services in the Proposal to CUSTOMER.
19) Notices: Any notice or other communication required or permitted under the Proposal shall be given in writing by either personal service or by U.S. Mail or by a nationally recognized commercial overnight delivery service. Notice shall be deemed served upon written confirmation of receipt. Addresses for notice are as follows: Spire Advertising, Inc., 1181 E. Main Street, Ashland, Ohio 44805; CUSTOMER: ____________________________________________.
Additional Website Terms and Conditions
If CUSTOMER’s Proposal includes SPIRE building a website for CUSTOMER, the following terms and conditions will also apply in addition to the above:
1) Content Management License: SPIRE hereby grants CUSTOMER a license to use SPIRE's content management system, SpireCMS. In no event shall CUSTOMER have any rights to access or use any source code of SpireCMS, nor shall CUSTOMER attempt to emulate, duplicate or re-create any of the functions of SpireCMS.
2) Down Time: SPIRE shall have no liability for, and no credit shall be issued to CUSTOMER, for down time suffered by CUSTOMER’s website. CUSTOMER acknowledges that routine maintenance and repair may at times result in down time for CUSTOMER’s website. SPIRE makes every reasonable effort to minimize these disruptions and to schedule such outages on non-peak hours. CUSTOMER authorizes SPIRE to perform such maintenance as SPIRE deems necessary.
3) Browser Compatibility: SPIRE periodically tests to verify compatibility of typical website features with most browsers. SPIRE will work to correct any confirmed errors that are found on supported browsers, but cannot guarantee compatibility with or proper performance of all plug-ins, toolbars, non-supported browsers or other software.
4) Server Compatibility: If CUSTOMER hosts its website on a server that is not recommended in the Proposal, it shall be considered a Change Order and will be subject to additional charges to be approved by Customer.
5) Additional Pages/Content: CUSTOMER’s ability to add or change the information may be limited by the type of work or services purchased by CUSTOMER pursuant to the Proposal and by the server space available to CUSTOMER. CUSTOMER acknowledges that the certain changes may require CUSTOMER to purchase additional server space and bandwidth from SPIRE at a cost in addition to the cost set forth in the initial Proposal.
6) Failure to Pay: CUSTOMER's failure to deliver content or other information necessary to permit the website to go "live” shall not alter CUSTOMER's payment obligation under this paragraph. CUSTOMER acknowledges that SPIRE has the right not to launch or allow any website to go “live” until final payment is made by CUSTOMER.
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