This General Terms and Conditions and the Client’s referenced Customization Order, Proposal, Implementation Worksheet (where applicable) and Fenix Rise Customer Portal Licensing Agreement (collectively, the “Agreement”) set forth the entire agreement between Fenix Net Solutions and the Client (and, if applicable, Client’s Agency) supersede any previous agreements or understandings between the parties with respect to their subject matter. In the event of any conflict between the terms set forth in the Customization Order, Fenix Rise Customer Portal Licensing Agreement and the General Terms and Conditions, the terms set forth in the Insertion Order shall control.
The Agreement between Fenix Net Solutions (“FNS”) and Client as indicated on Client’s Customization Order is made on the day of the Client’s signed Customization Order. Any proposal not accepted via an approved Customization Order within thirty (30) days of proposal delivery is subject to Company revision.
If no Customization Order is required, The Agreement between Fenix Net Solutions (“FNS”) and Client shall consist of Fenix Rise Customer Portal Licensing Agreement and all applicable Terms and Conditions
In consideration of the mutual covenants set forth in this Agreement, Client and FNS hereby agree as follows:
FNS agrees to provide the services pursuant to the specifications outlined on Client’s Proposal, Customization Order, and Implementation Worksheet. Any changes in specifications shall require a revised Customization Order.
2. Delivery Dates and Milestones.
FNS will use reasonable diligence in the completion of services and endeavor to deliver to Client all deliverables and milestones as defined on Client’s Implementation Worksheet. Client acknowledges, however, that delivery deadlines and other payment milestones listed on Client’s Customization Order are estimates, and are not required delivery dates.
Client agrees to designate in writing a Contact Person to whom all requests and approvals, if required, concerning the work and costs shall be submitted and approved. If no Contact Person is designated by Client, FNS shall not be responsible for obtaining any such approvals. Approval delays may delay final date of completion and delivery.
For all of FNS’s services under this Agreement, Client shall compensate FNS, in cash, check, or credit card, pursuant to the terms outlined on Client’s Customization Order. In the event Client fails to make any of the payments referenced in Client’s Customization Order by the deadline set forth in Exhibit A, FNS has the right, but is not obligated, to pursue any or all of the following remedies: (1) terminate the Agreement, (2) remove equipment, software, services or resources owned by FNS, whether leased to Client by FNS or not and any company personnel or staff from Client location(s), (3) bring legal action.
Client authorizes FNS to purchase the hard deliverables identified and requested under this proposal, be they print, media, or otherwise for Client and/or its assigns and to obligate Client contractually or otherwise for payment of such procurement. Charges for all fees and hard costs represented on proposals (and the miscellaneous charges for costs such as FedEx, couriers, presentation materials, etc.) are considered approved with Client’s signature, or email approval. These costs are not estimated, but Client may ask for a “not to exceed” cost before approving the proposal. If no request is made, Client agrees to pay costs incurred. Client also has a right to request documentation of said costs before paying. This does not postpone Client’s obligation to pay all other invoice charges, as agreed upon under this proposal.
Once payment has been made to FNS, FNS assumes full financial responsibility for remitting payment to vendor in a timely manner. If, however, Client fails to remit payment to FNS, then financial responsibility for payment to vendors is transferred to Client. This agreement shall remain in effect until such time that Client notifies the vendor that Client/FNS relationship has been discontinued.
Customization Orders may not reflect applicable sales tax that will be included on invoices.
Client and FNS acknowledge and agree that the Specifications and all other documents and information related to the project (the “Confidential Information”) will constitute valuable trade secrets of FNS. Client shall keep the Confidential Information in confidence and shall not, at any time during or after the term of this Agreement, without FNS’s prior written consent, disclose or otherwise make available to anyone, either directly or indirectly, all or any part of the Confidential Information.
6. Limited Warranty and Limitation on Damages
FNS warrants that products and services provided will conform to the Specifications for a period of 30 days from the date of acceptance by Client. If products and services provided do not conform to the Specifications, FNS shall be responsible to correct without unreasonable delay, at FNS’s sole expense and without charge to Client, to bring products and services into conformance with the Specifications. This warranty shall be the exclusive warranty available to Client. Client waives any other warranty, expressed or implied. Client acknowledges that FNS does not warrant that products and services provided will work on all platforms. Client acknowledges that FNS will not be responsible for the results, productivity or any other measurable metric not specified in Client’s Customization Order. Client waives any claim for damages, direct or indirect, and agrees that its sole and exclusive remedy for damages (either in contract or tort) is the return of the consideration paid to FNS as set forth in Exhibit A and in Client’s Customization Order.
Client agrees to make available to FNS, for FNS’s use in performing the services required by this Agreement, such items of hardware and software as Client and FNS agree are reasonably necessary for such purpose. Client agrees to make available any access to services, hosting, ftp or other resources deemed necessary by FNS to fulfill its obligations under this Agreement.
“Fenix Net Solutions” and FNS’s various logos used or displayed on the Service are trademarks of FNS and You may only use these trademarks or logos for promotional purposes to identify Yourself as a customer or user of the FNS products and services, provided You do not attempt to claim ownership of the marks by incorporating any of them within Your names or offerings.
9. General Provisions
9.1 Entire Agreement.
This Agreement contains the entire Agreement between the parties relating to the subject matter hereof and supersedes any and all prior agreements or understandings, written or oral, between the parties related to the subject matter hereof. No modification of this Agreement shall be valid unless made in writing and signed by both parties hereto.
9.2 Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio. Exclusive jurisdiction and venue shall be in the Franklin County, Ohio Superior Court.
9.3 Binding Effect, Cancellation Policy and Renewal.
This Agreement shall be binding to the benefit of Client and FNS and their respective successors and assigns, provided that FNS may not assign any of their obligations under this Agreement without Client’s prior written consent. This Agreement is binding for the term shown on said Agreement, under Exhibit A and in Client’s Proposal. Client may not cancel Agreement during said term. Agreement renews on month to month basis after the conclusion of the Client’s contract terms and requires 30 day written notice to end services during month to month term.
The waiver by either party of any breach or failure to enforce any of the terms and conditions of this Agreement at any time shall not in any way affect, limit, or waive such party’s right thereafter to enforce and compel strict compliance with every term and condition of this Agreement.
9.5 Good Faith.
Each party represents and warrants to the other that such party has acted in good faith, and agrees to continue to so act, in the negotiation, execution, delivery, performance, and any termination of this Agreement.
9.6 No Right to Assign.
Client has no right to assign, sell, modify or otherwise alter this Agreement, except upon the express written advance approval of FNS, which consent can be withheld for any reason.
9.7 Right to Remove Resources.
In the event Client fails to make any of the payments set forth on Exhibit A and in Client’s Customization Order within the time prescribed in Exhibit A and in Client’s Implementation Worksheet, FNS has the right to remove any resources under FNS control until payment is paid in full, plus accrued late charges of 1.5% per month.
Client warrants that everything it provides FNS to employ in the production of the agreed-upon products and services as outlined in the Customization Order is legally owned or licensed to Client. Client shall indemnify and hold FNS harmless from any and all claims brought by any third party relating to any aspect of products and services provided, including, but without limitation, any and all demands, liabilities, losses, costs, and claims including attorney’s fees arising out of injury caused by Client’s products/services, material supplied by Client, copyright infringement, and defective products sold by Client. Client agrees to indemnify FNS from responsibility for problems/disruptions caused by third-party services that Client may use such as merchant accounts, shopping carts, shipping, hosting services, real time credit card processing and other services that relate to the ownership and operation of SEO or multimedia project.
Client shall indemnify and hold FNS harmless from any and all claims brought by any third party relating to loss, cost, expense, and damages (including court costs and reasonable attorney’s fees) on account of any and all manner of claims, demands, actions and proceedings that may be instituted against FNS on grounds alleging that FNS violated any copyrights or proprietary right of any person, or that work produced by FNS contains any matter that is libelous or obscene or scandalous, or invades any person’s right to privacy or other personal rights, except to the extent FNS contributed to the matter. Client also agrees to hold FNS harmless for any errors, oversights, omissions or other issues that may subsequently arise during the course of completion of this project. Client accepts responsibility for final approval of all materials produced, including accuracy of information, use of logos and copyrights, etc.
9.9 Use of Material for Promotional Purposes.
Client grants FNS the right to use its work in producing products/services for promotional purposes and/or to cross-link it with other advertising developed by FNS. Client grants FNS the right to list, reference or otherwise identify Client as a client of FNS in FNS’s advertising and marketing.
9.10 No Responsibility for Loss.
FNS will have no responsibility for any third-party disrupting, intruding or otherwise copying files in part or in whole on all or any part of the work performed. FNS is not responsible for any down time, lost files, improper links or any other loss that may occur in the operation of web-related marketing conducted under this Agreement.
9.11 Right to Make Derivative Works.
FNS will have the exclusive rights in making any derivative works from any of its work, practices, coding, programming or other work in regards to products/services completed in this Agreement.
9.12 Attorney’s Fees.
In the event any party to this Agreement employs an attorney to enforce any of the terms of the Agreement, the prevailing party shall be entitled to recover its actual attorney’s fees and costs, including expert witness fees.
9.13 Identification of FNS.
Client agrees that FNS identification may be annotated, and remain, within the code or on the Web Site as the authors. Client also agrees to put FNS’s copyright notices on SEO and the relevant content therein.
9.14 Transfer of Rights.
In the event FNS is unable to continue maintenance of services, non-exclusive rights to the content will be granted to Client. Transfer of Rights does not apply to non-transferable third-party licenses and proprietary Material owned by the Developers.
9.15 Domain Name.
Any domain name registered on Client’s behalf will be made in Client’s name for both the billing and administrative contacts. The technical contact is generally required to be the hosting ISP or Domain Registrar. FNS will not register domain names in FNS name. Client is responsible for renewing Client’s domain name.
Client represents and warrants that the person signing the Insertion Order has full authority on behalf of Client to enter into and execute this Agreement.
EXHIBIT A: PAYMENT TERMS
1. Client agrees to pay FNS the monthly fee agreed upon in Client’s Customization Order and / or Fenix Rise Customer Portal Licensing Agreement according to the following terms:
• A. 100% of the fee upon due on the first of every month.
• B. Fee is to be credited one month in advance for service rendered in Agreement.
2. Client agrees to pay FNS fee and all expenses, as set forth above, within 15 days of invoice. All unpaid balances shall accrue interest at 1 ½% per month.
3. Contract length and terms are stated in Client’s Customization Order. Agreement will renew on a month-to-month basis after the conclusion of the Client’s Customization Order contract terms, as applicable. See Cancellation requirements under 9.2 Binding Effect, Cancellation Policy and Renewal