IMPORTANT – PLEASE CAREFULLY READ AND UNDERSTAND THESE TERMS AND CONDITIONS OF USE & SALE BEFORE ACCESSING, USING, SUBSCRIBING, OR PLACING AN ORDER ON BESWITFY.COM.

THIS CONTRACT CONTAINS DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITIES INCLUDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS THAT WAIVE YOUR RIGHT TO A COURT HEARING, RIGHT TO A JURY TRIAL, AND RIGHT TO PARTICIPATE IN A CLASS ACTION (SEE MISCELLANEOUS PROVISIONS SECTION 13).  ARBITRATION IS MANDATORY AND IS THE EXCLUSIVE REMEDY FOR ANY AND ALL DISPUTES UNLESS SPECIFIED HEREIN.  THESE TERMS FORM AN ESSENTIAL BASIS OF OUR CONTRACT.

 

GENERAL TERMS AND CONDITIONS

 

1.Grant of License.

 

BY PLACING AN ORDER FOR PRODUCTS OR SERVICES FROM WWW.BESWIFTY.COM (THE “WEBSITE”), YOU (“YOU” OR “YOUR”) ACCEPT AND ARE BOUND BY THESE TERMS AND CONDITIONS WITH BESWIFTY.COM, LLC (THE “COMPANY”).  YOU MAY NOT ORDER OR OBTAIN PRODUCTS OR SERVICES FROM THIS WEBSITE IF YOU (A) DO NOT AGREE TO THIS CONTRACT, (B) ARE NOT THE OLDER OF (I) AT LEAST 18 YEARS OF AGE OR (II) LEGAL AGE TO FORM A BINDING CONTRACT WITH THE COMPANY OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE’S CONTENTS, GOODS OR SERVICES BY APPLICABLE LAW.  

THESE TERMS AND CONDITIONS ARE A LEGALLY BINDING AGREEMENT BETWEEN YOU AND THE COMPANY (THE “CONTRACT”).  THIS CONTRACT APPLIES TO THE PURCHASE AND SALE OF PRODUCTS AND SERVICES THROUGH THIS WEBSITE. THIS CONTRACT IS SUBJECT TO CHANGE BY THE COMPANY WITHOUT PRIOR WRITTEN NOTICE AT ANY TIME, IN THE COMPANY’S SOLE DISCRETION. THE LATEST VERSION OF THIS CONTRACT WILL BE POSTED ON THIS WEBSITE AND YOU SHOULD REVIEW THE CONTRACT BEFORE PURCHASING ANY PRODUCTS OR SERVICES THAT ARE AVAILABLE THROUGH THIS WEBSITE. YOUR CONTINUED USE OF THIS WEBSITE AFTER A POSTED CHANGE TO THIS CONTRACT WILL CONSTITUTE YOUR ACCEPTANCE OF AND AGREEMENT TO SUCH CHANGES OF THIS CONTRACT. 

ALL RIGHTS NOT EXPRESSLY GRANTED TO YOU ARE RESERVED BY THE COMPANY.

 

2.Restrictions on Use.

Your right to use the Company’s products and services offered under the Contract is at all times conditioned on prompt and timely payment of Fees (described below) and on compliance with all other provisions of the Contract.  You may use the Company’s products and services on an unlimited number of devices, provided such use is only for Your internal business purposes.  Your use of the Company’s products and services may not be for any purpose that is illegal or promotes illegal activities, to send unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” or pyramid schemes, or in a manner that might be libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age or is otherwise indecent.  You agree not to (a) license, sublicense, sell, lease, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third-party the software, products or services provided hereunder; (b) modify or make derivative works based upon the Company’s software; (c) attempt, or assist a third-party, to decompile, disassemble or reverse engineer the Company’s software, or otherwise attempt to determine the logic structure, architecture or other internal system design for the Company’s software; or (d) build a product using similar ideas, features, functions or graphics of the Company’s software, or copy any ideas, features, functions or graphics of the Company’s software.

 

FEES

1.Application to Master Pricing Contracts.

If You utilize a Master Pricing Contract for multiple properties and You add an additional property during the year that uses the same pricing, the additional property shall be subject to any annual or other pricing adjustments that apply to the Master Pricing Contract notwithstanding any other provisions of this Contract that provide for fixed prices during the initial term.

2.Sales Tax Policy.

The Company is required to collect sales tax on purchases shipped to any state in which the Company has business operations. For orders shipped to such states, tax is calculated based on the printing and finishing product subtotal.

3.Lien.

All materials or property belonging to You, as well as work performed, may be retained as security until all just claims against You are satisfied.

4.Miscellaneous.

All amounts shown are in U.S. Dollars. No refunds shall be made unless expressly authorized in writing by the Company. All prices posted on this Website are subject to change without notice. The price charged for a product or service will be the price in effect at the time the order is placed and will be set out in Your Order Confirmation and Shipping Confirmation. Price increases will only apply to orders placed after the Company makes such pricing changes. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to Your shopping cart total on this Website and will be reflected in Your Order Confirmation and Shipping Confirmation. 

 

The Company accepts VISA, Master Card, and AMEX for all purchases. You represent and warrant that (i) the credit card information You supply is true, correct, and complete, (ii) You are duly authorized to use such credit card for the purchase, (iii) charges incurred by You will be honored by Your credit card company, and (iv) You will pay charges incurred by You at the posted prices, including all applicable taxes and shipping and handling costs, if any.

In the event of a suspension of services, the Company reserves the right to impose a reinstatement fee. The Company reserves the right to switch the method of payment to automatic charges to a credit card or bank account that You authorize or to another approved payment method with thirty (30) days’ notice to You.

Pricing and Fee Structure

 

Product Subscription Fees: 

• Google Ads Management:
  • The Company utilizes a third-party media buying service to manage Google Ads accounts. The third party charges a fee equal to twenty percent (20%) of the total media spend, payable directly to the third party.
  • In addition to the third-party fee, the Company charges a management fee of two hundred dollars ($200) per month and a one-time setup fee of two hundred and fifty dollars ($250).
• Website Pricing:
  • A one-time setup fee of five hundred dollars ($500) applies to all website packages.
  • Monthly subscription fees are based on unit count as follows:
    • 0-32 units: $99 per month
    • 33-125 units: $149 per month
    • 126-399 units: $199 per month
    • 400+ units: $299 per month
• HiveSites Pricing:
  • Base Fees:
    • Garden Buildings: Start with a base price of $500.
    • Midrise Buildings: Start with a base price of $1500
    • Highrise Buildings: Start with a base price of $2500
  • Unit-Based Charges:
    • Garden Buildings:
      • The first 200 units cost $2 per unit.
      • The following 200 units (201-400) are discounted at $1.50 per unit.
      • Every unit beyond 400 costs $1.
    • Midrise Buildings:
      • The base price includes a minimum of 4 floor plates. For any additional floor plates, there’s a charge of $250 per floorplate.
    • Highrise Buildings:
      • The base price includes a minimum of 10 floor plates. For any additional floor plates, there’s a charge of $250 per floorplate.
• Google Business Management:
  • A one-time setup fee of two hundred and fifty dollars ($250) applies.
  • Monthly management fee: two hundred and seventy-five dollars ($275).
• All fees are subject to applicable taxes.
• The Company reserves the right to modify pricing at any time. Notice of pricing changes will be provided to clients in advance.
• Clients are responsible for all media spend costs associated with Google Ads campaigns, in addition to management and third-party fees.

 

OWNERSHIP OF CONTENT

1.The Company Content.

The Company alone (and its licensors, where applicable) shall own all right, title and interest in the intellectual property rights, including in the Company’s software (including, without limitation, the underlying code), all documentation, materials and information furnished by the Company, and all graphical, printed or electronic content furnished or provided through any website the Company creates (“Site”), including all subsequent modifications, changes, corrections or enhancements thereto, whether or not such modifications were made or authorized by the Company.  The Contract is not a sale and does not convey to You any rights of ownership in or related to the Company’s software, products or services except as specifically provided. “BeSwifty.com”, “HiveSite.io”, and any and all other marks appearing on this Site are trademarks of the Company in the United States and other jurisdictions (“Trademarks”).  You may not use, copy, reproduce, republish, upload, post, transmit distribute or modify the Company’s software, Site content or Trademarks in any way, including in advertising or publicity pertaining to distribution of materials on this Site, without the Company’s prior written consent.  The use of Trademarks on any other website or network computer environment is prohibited. The Company prohibits the use of Trademarks as a “hot” link on, or to, any other website unless establishment of such a link is pre-approved by the Company in writing.  If You are purchasing website development services from the Company, additional provisions concerning ownership of content are set forth in the section entitled “ADDITIONAL TERMS FOR WEBSITE CONTENT DEVELOPMENT” below.

2.Your Content.

You shall remain the owner of all information, documents, data and materials that You either create, originate or legally furnish or use from a third-party source (including, without limitation, social media) in connection with Your use of the Site (“Your Content”).  The Company does not acquire ownership of Your Content, provided, however, that You authorize the Company to host, copy, reproduce, transmit, display, modify and adapt  Your Content, solely as necessary for the Company to: (1) furnish the services set forth in the Contract or as necessary in connection with the Company’s monitoring of Your account for quality control, error correction and compliance with the Company’s legal obligations; and (2) investigate any existing or suspected breach of the Contract, or if deemed necessary to protect the Company’s obligations to other subscribers.  The Company will have no liability of any kind as a result of the deletion of, correction of, destruction of, damage to, loss of or failure to store or encrypt any of Your Content.

3.Your Obligations Regarding Your Content.

You are solely responsible for the nature, quality and accuracy of Your Content. The Company will provide functions that allow You to control who may access Your Content.  You represent and warrant that You have all rights necessary to use Your Content and to grant rights to the storage, transmission or use of the software as contemplated in the Contract.  You agree to promptly handle and resolve any notices and claims relating to Your Content, including any notices sent to You by any person claiming that any of Your Content violates any person’s rights, such as take-down notices pursuant to the Digital Millennium Copyright Act and any other notices, and to maintain appropriate security, protection and backup copies of  Your Content, which may include Your use of additional encryption technology to protect  Your Content from unauthorized access.  You must immediately notify the Company in writing of any unauthorized use of any existing or suspected unauthorized use of or access to Your Content and will take all steps necessary to terminate such unauthorized use.

4.The Company’s Rights of Use and Retention Policy.

If printing or other implementation is done through Your vendors, You agree to provide the Company with printed samples of each such project.  The Company reserves the right to photograph and/or distribute or publish for the Company’s promotional and marketing needs any work the Company creates for You, including but not limited to mockups and comprehensive presentations, as samples for the Company portfolio, company newsletter, brochures, and similar media.  The Company agrees to store electronic files for a period of six (6) months beyond the delivery of a job.  Thereupon, The Company reserves the right to discard them.

5.Joint Marketing.

You agree that the Company may use your name and logo in a customer list on its Website or in its marketing materials.  You may advise the Company at any time with thirty (30) days’ notice to cease using Your name, logo, and any other information that clearly identifies You in the Company’s marketing.

 

 

CONFIDENTIAL INFORMATION

1.Confidential Information Defined.

As used herein, “Confidential Information” shall mean any technical or business information furnished, in whatever form or medium, disclosed or made accessible by one party to the other (including, but not limited to, product/service specifications, prototypes, computer programs, models, drawings, marketing plans, financial data, personnel statistics), which, if disclosed in writing or otherwise, is marked as confidential or proprietary, which, if disclosed in writing, orally, or otherwise, is information that the disclosing party clearly indicates to the receiving party at the time of disclosure is of a confidential or proprietary nature, or any other information which, if disclosed in writing, orally, or otherwise, is received or obtained under conditions such that the receiving party reasonably should understand that such information is considered confidential by the disclosing party.

2.Restrictions on Use of Confidential Information.

Each party agrees to hold Confidential Information of the other party in strictest confidence and shall use the same solely for the purposes of the Contract unless otherwise authorized in writing by the disclosing party. The receiving party shall not copy such Confidential Information without express written permission, or disclose such Confidential Information to anyone except employees, consultants, and subcontractors of the receiving party to whom disclosure is necessary for the purposes set forth in the Contract.  The receiving party shall appropriately notify each such employee that the disclosure is made in confidence and must be kept in confidence in accordance with the Contract.  The obligations set forth herein shall be satisfied by each party through the exercise of at least the same degree of care used to restrict disclosure and use of its own information of like importance.

3.Return of Confidential Information.

All copies of such Confidential Information fixed or stored in written, graphic, electronic, optical, magnetic or other tangible form shall be returned to the disclosing party upon expiration, termination or cancellation of the Contract or upon the disclosing party’s request, unless otherwise agreed.

4.Exceptions.

The obligations imposed in this section relating to CONFIDENTIAL INFORMATION shall not apply to any information that: (a) is already in the possession of or is independently developed by the receiving party without violation of any obligation of nondisclosure; (b) is or becomes publicly available without violation of any obligation of nondisclosure; (c) is obtained by the receiving party from a third person without violation of any obligation of nondisclosure; or (d) is clearly stated to be without restriction by the disclosing party.

 

 

PRIVACY

We respect your privacy and the use and protection of your non-public, personal information. Your submission of personal information through the Website is governed by our Privacy Policy. Our Privacy Policy is not intended to be incorporated into or agreed upon as part of this Contract. Our Privacy Policy may be viewed here and the Company reserves the right to modify the Privacy Policy in its sole discretion from time-to-time. 

DATA SECURITY

The Company utilizes security procedures to protect the information You share with us. While the Company makes reasonable efforts to protect this information, the Company cannot and does not warrant or guarantee the absolute safety and security of this information.

**GENERAL LIMITATION OF LIABILITY**

EXCEPT WHERE OTHERWISE STATED IN THESE TERMS OR PROHIBITED BY LAW, IN NO EVENT SHALL THE COMPANY OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, INDEPENDENT CONTRACTORS, TELECOMMUNICATIONS PROVIDERS, AND/OR AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR ANY OTHER DAMAGES, FEES, COSTS OR CLAIMS ARISING FROM OR RELATED TO THESE TERMS, THE PRIVACY POLICY, THE SERVICES OR PRODUCTS, OR YOUR OR A THIRD-PARTY’S USE OR ATTEMPTED USE OF THIS WEBSITE OR PRODUCTS, REGARDLESS OF WHETHER THE COMPANY HAS HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES, FEES, COSTS, OR CLAIMS. THIS INCLUDES, WITHOUT LIMITATION, ANY LOSS OF USE, LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL, COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR PRODUCTS, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR OTHER DAMAGES.  THIS SECTION SHALL APPLY REGARDLESS OF THE MANNER IN WHICH DAMAGES ARE ALLEGEDLY CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, OR OTHERWISE. 

If, notwithstanding the above, the Company is found liable to You for any loss or damage relating to Your use of any the Company’s products or services, You agree that such liability shall in no event exceed the fee or charge to You assessed by the Company for the product or service in question.

 

WARRANTY AND INDEMNIFICATION

1.The Company Warranty.

The Company warrants and represents that it owns or has acquired the necessary rights to operate the Site, display the Site content and grant the licenses to You set forth herein. The Company will at all times reasonably attempt to achieve the highest possible availability of the Site, but no warranty is made with regard to specific availability or time of access.  The Company makes no warranty with respect to recovering or restoring any of Your Content that is lost, and You acknowledge having been advised to secure separate backup services for all of Your Content. Your use of the Site and the Company’s software is at Your sole risk, and You acknowledge that the Site and software and associated documentation may contain defects, fail to comply with applicable specifications, any may produce unintended or erroneous results either alone or when operated in combination with other products or programs.  You accept the software and the Site, and all products and services of the Company “as is” without any other warranty whatsoever. The Company may at various times provide You with links to websites operated by third parties, and You acknowledge that the Company makes no warranty or representation as to the content, goods or services, or their accuracy or effectiveness, provided on such third-party websites.

2.The Company’s Indemnification of You

The Company shall indemnify and defend You, Your officers, directors, affiliates, agents and employees from any and all third-party claims, demands, litigation, expenses and liabilities (including costs and reasonable attorneys’ fees) arising from or incident to any claims that the Company’s software or Site content, or any content specifically developed for use on Your website, infringes any trade secrets, trademark, copyright or patent rights of any third-party.  This shall not apply to the extent that any such claim is the result of Your misuse of the Company’s software or Site content or relates to any content specifically designed for You according to Your specifications, or to a combination of such elements with components, content or software not furnished by the Company, use of a superseded version of the Company’s software or Site content or unauthorized modification of such elements.  You agree to cooperate with the defense of any such claims, at the Company’s expense.  The Company may, at its sole option, and in addition to any other rights, respond to such claims by modifying the Company’s software or Site content or Your website content so as to remove the infringing component, procuring from the claimant the right to continue to use the Company’s software or Site content under the Contract, or terminating the Contract.

3.Your Indemnification of the Company

You shall indemnify and defend the Company and its officers, directors, affiliates, agents and employees from any and all claims, demands, litigation, expenses and liabilities (including costs and reasonable attorney’s fees) arising from any claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) asserted by a third-party regarding Your use of the Company’s software or Site content, Your use or disclosure of Your password, Your use, transmission, storage, access to or modification of Your Content, the design of Your website content in accordance with specifications You provided, or any other act or omission in violation of the law or of the terms of the Contract or related contract.

 

 

MISCELLANEOUS PROVISIONS

1.Independent Contractor.

Each party hereunder is acting as an independent contractor and not as an agent, employee, representative or affiliate of the other. Neither party shall have authority to act on the other’s behalf, to bind or incur any debts or liabilities in the name of or on behalf of other, or to control or answer for the acts of the employees of the other.

2.Authority.

You warrant that, by signing the Contract, You have the full and necessary authority and capacity to bind the party represented by Your signature to each and every obligation set forth in the Contract.

3.Assignment and Delegation.

No rights or interests in the Contract shall be assigned by You without written permission of the Company, and any attempted assignment without written permission of the Company shall be void.  The Company shall be free to assign the Contract, and all rights and interests thereunder, to an acquirer of all or substantially all of the Company’s business or assets, without Your permission.  The Contract shall be binding on both parties’ successors and permitted assigns.

4.Use of Third Parties and Cloud Services.

The Company may employ or subcontract with any third-party in connection with the performance of the services under the Contract, including the use of Cloud-based data storage services.

5.Force Majeure.

Neither party shall be liable for failure to perform solely caused by unforeseeable circumstances beyond their control.  Without limiting the generality of the foregoing, such causes shall include acts of God or the public enemy, fires, floods, storms, tornadoes, earthquakes, riots, strikes, blackouts, wars or war operations, restraints of government, or other causes which could not with reasonable diligence be controlled or prevented by the parties. 

6.Waivers; Remedies.

The delay or failure of either party to exercise any right shall not be construed to be a waiver unless agreed upon in writing.  An agreed waiver of non-performance by either party shall not be construed to be a waiver of any subsequent non-performance.  Remedies under the Contract are cumulative and in addition to and not in lieu of other remedies available to a party, either at law, in equity, or otherwise.

7.Notices and Consent to Electronic Communications.

All notices permitted or required under the Contract shall be in writing and shall be directed to the email addresses furnished by You.  By registering as a Company subscriber, You understand and acknowledge that the Company may send You communications or data regarding the Company’s software or services or the Contract via email using the address information that You provide.  You consent to this and to receiving billings and other notices from the Company via email.  You acknowledge that failure to maintain current contact information with the Company means that You may not receive proper, current or accurate notices and that You are solely responsible for such occurrences.

8.Modification.

The Company reserves the right to modify or replace the terms, conditions, and policies of or referenced in the Contract at any time in the Company’s sole discretion and without prior written notice.  Any modifications to the Contract will be effective upon the date such changes are posted on the Website. Your continued use of this Website after a posted change to this Contract will constitute Your acceptance of and agreement to such changes of this Contract. 

9.Review by Attorneys.

You agree that You have had an opportunity to consult with Your own legal counsel regarding Your contracts with the Company, the Contract, and all related documents and agreements, and You represent that You fully and completely understand and accept all terms and conditions set forth these documents and agreements and intend to be fully bound by the same.

10.Entire Agreement.

The Contract contains the entire agreement between the parties hereto with respect to the matters covered herein and supersedes all prior or contemporaneous agreements, understandings and representations, both oral and written.

11.Severability.

If any clause or provision of Your contracts with the Company, the Contract, or any related document and agreement is held invalid, illegal or unenforceable under present or future laws, such determination will not affect the remaining portions of the Contract, and the parties agree that the affected provisions shall be amended to the extent necessary to render them enforceable so as to carry out the intent of the Contract.  In the event an arbitrator or court enters an award, judgment, or order declaring that any material provision of the Contract is invalid or unenforceable, the remainder of the Contract shall continue in full force and effect.

12.Injunctive Relief.

You agree that any breach of the Contract by You would cause the Company to suffer severe, irreparable and incalculable injury, not compensable through monetary damages, and that in the event of any such existing or threatened breach, the Company shall be entitled, in addition to any other remedies, to injunctive or other equitable relief without the necessity of posting an undertaking, which requirement is hereby expressly waived.

 

13.Arbitration.

PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS UNDER THESE TERMS.  EXCEPT WHERE PROHIBITED BY LAW, YOU AGREE THAT ANY CLAIM THAT YOU MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH FINAL AND BINDING CONFIDENTIAL ARBITRATION.  YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY. THE RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST.  YOU AGREE THAT YOU MAY ONLY BRING A CLAIM IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF (LEAD OR OTHERWISE) OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.

THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.  HOWEVER, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES) AND MUST FOLLOW THESE TERMS AS A COURT WOULD.

If You have a complaint, dispute, or controversy, You agree to first contact the Company at customerservice@beswifty.com to attempt to resolve the dispute or controversy informally. Any controversy or claim arising out of or related to any product, service, this Contract, or the Privacy Policy that cannot be resolved through such informal process or through negotiation within one hundred and twenty (120) days shall be resolved by binding, confidential arbitration administered by the American Arbitration Association (“AAA”), and judgment on the award rendered may be entered in any court having competent jurisdiction thereof.  The parties agree that any claim that the Company may have against You will also be subject to this Section 13, except as provided in the Warranty and Indemnification section above. The arbitration will be conducted by a single neutral arbitrator in the English language in Dallas County, Texas, unless the parties both agree to conduct the arbitration by telephone or other communication technology or written submissions. The arbitrator shall be selected by agreement of the parties or, if the parties cannot agree, chosen in accordance with Rules of the AAA. The arbitration will be conducted in accordance with the provisions of the AAA’s Consumer Arbitration Rules, in effect at the time of submission of the demand for arbitration.  The AAA’s Rules are available at www.adr.org or by calling 1-800-778-7879. The arbitrator shall have the exclusive and sole authority to resolve any dispute relating to the interpretation, construction, validity, applicability, or enforceability of this Contract, the Privacy Policy, this arbitration provision, and any other terms incorporated by reference into this Contract. The arbitrator shall have the exclusive and sole authority to determine whether any dispute is arbitrable. 

Payment of all filing, administration and arbitrator fees shall be governed by the AAA’s Rules.  In all other respects, the parties shall each pay their own additional fees, costs, and expenses, including, but not limited to, those for any attorneys, experts, documents, and witnesses, except as conditioned under Section 14 below.

Any award rendered shall include a confidential written opinion and shall be final, subject to appeal under the Federal Arbitration Act, 9 U.S.C. §§ 1-16, as amended.  Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

Failure or any delay in enforcing this arbitration provision in connection with any particular claim will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other claims except that all claims must be brought within one (1) year after the claim arises (the 1 year period includes the one hundred and twenty (120) day informal resolution procedures described above). 

This provision survives termination of Your relationship with the Company, bankruptcy, assignment, or transfer.  If the class action waiver is deemed unenforceable (i.e., unenforceability would allow arbitration to proceed as a class or representative action), then this entire arbitration provision shall be rendered null and void and shall not apply.  If a portion of this arbitration provision (other than the class action waiver) is deemed unenforceable, the remaining portions of this arbitration provision shall remain in full force and effect.

14.Governing Law, Venue, Costs and Fees.

This Contract and any issue or dispute arising out of or otherwise related to this Contract, our Privacy Policy, or any matter concerning the Company, including Your purchase and use or attempted use of any service or product, shall be governed exclusively by the laws of State of Texas without regard to its conflicts of laws principles.  To the extent that any claim or dispute is found by the arbitrator or (if proper) a court of competent jurisdiction to be excluded from the arbitration agreement in Section 13 above, the parties agree any such claim or dispute shall be exclusively brought in and decided by the state or federal courts located in Dallas County, Texas, and You hereby irrevocably consent to the exclusive personal jurisdiction of, and exclusive venue in, such courts, and forever waive any challenge to said courts’ exclusive jurisdiction or venue.  All such claims must be brought on an individual and non-class, non-representative basis, and You forever waive any right to bring such claims on a class-wide or representative basis. In the event of any dispute, claim, or action commenced by either the Company or You against the other, then the arbitrator or court presiding over such dispute, claim, or action shall award costs and attorneys’ fees to the prevailing party.

 

ADDITIONAL TERMS AND CONDITIONS FOR PRINT SERVICES

If You elect to use the Company’s print services, the following additional provisions will apply:

1.Color Accuracy.

The Company will reproduce color as accurately as possible.  However, please note that the Company accepts no responsibility for color variations between on-screen color and final printed product.

2.Printing Turnaround Time.

Printing turnaround time begins once Your order has been placed and Your print-ready files have been approved via Your account and approved for printing.  For printing jobs that do not have complete digital source files provided, printing turnaround begins when the Company has Your print-ready files for Your print job, not from when the order is first submitted.  If Your job or proof is approved by 6:00 P.M. PT (9:00 P.M. ET), printing turnaround time begins that business day.  Please note that the Company offices are closed Saturdays, Sundays and Holidays.  As a result, these days are not considered when calculating printing turnaround time.  In addition, printing turnaround time does not include shipping transit time, and You should allow additional business days for delivery based on the shipping method You selected.  The remedy for failing to meet a deadline is limited to a refund of any rush charges or a courtesy rush on Your next order, at the Company’s discretion.

3.Property and Supplier’s Performance.

The Company will take reasonable precautions to safeguard the property You entrust to the Company.  In the absence of gross negligence on the Company’s part, however, the Company is not responsible for loss, destruction, or damage or unauthorized use by others of such property.  The Company will endeavor to ensure quality and timely delivery of all printed (offset, silk-screened, embossed, or otherwise reproduced) pieces.  Although the Company will attempt to guard against loss to You through the failure of vendors, media, or others to perform in accordance with their commitments, the Company is not responsible for failure on their part.  If You select Your own vendors, other than those recommended by the Company, You may request that the Company coordinate such vendors’ work.  If at all possible, the Company will attempt to do so, but the Company cannot in any way be held responsible for such vendors’ quality, price, performance, or delivery.

4.Shipping.

All shipping is currently done via FedEx or UPS. Shipping transit times vary, and the Company assumes no responsibility for delays caused by shipping carriers, weather or any damage resulting from the failure to receive a job on time.  Your order may arrive late due to unforeseen delays in delivery service, the breakdown of equipment, etc.  All shipments are f.o.b. from the Company’s place of shipment.

5.Complaints and Errors.

All complaints regarding final print content must be registered within twenty-four (24) hours of receipt of Your final printing job. Should Your job contain manufacturing errors and/or defects (as determined by the Company), the Company will rerun Your job at no charge.  All materials the Company creates in producing Your printed product are the property of the Company.  The Company reserves the right to distribute free samples of Your printed product.  Please note that Your printed product or images used for Your printed product will not be used in any national advertising without Your prior written consent.  Once a print job has been approved by You and “sent to press”, no changes are allowed to the artwork files, job characteristics, or printing turnaround time.

6.Payments.

After a print job has been sent to the Company’s press vendor, You are responsible for paying the entire amount of that print job along with applicable taxes and shipping/handling fees, unless otherwise noted.  Please note that no work will proceed on any print job in Your order until full payment or appropriate authorization is received by the Company.  All sales are final, unless otherwise noted.  No refunds are given once the Company begins working on Your order, which means the Company has received Your necessary materials (i.e., digital files and payment authorization) and started work on Your job (i.e., Your job is in production).  In some cases, a partial or full refund may be extended to the customer if no work has been completed by the Company for a specific order.  Please note that such refund will be adjusted to cover any fees charged for proofs or other services associated with that order.  In some cases, an order may be voided the same day the order was placed as long as no work has been completed by the Company for that order.

7.Sales Tax Policy.

The Company is required to collect sales tax on purchases shipped to any state in which the Company has business operations. For orders shipped to such states, tax is calculated based on the printing and finishing product subtotal.

 

**ADDITIONAL TERMS WEBSITE DEVELOPMENT SERVICES**

If You elect to use the Company’s website development services, the following additional provisions will apply:

1.Website Coding.

The Web Pages shall be coded:

• in HTML or in any other language generally accepted by the industry;
• in such a way that they may be accessed on the Internet;
• using modems of 56,600 kbps or faster;
• supported browsers: the Company supports current versions of Chrome, Firefox and Internet Explorer as well as their previous versions backdated 12 months from each individual browser’s most current release; and
• there may be slight variations of the design depending on which web browser the website is viewed.

2.Graphic Elements.

 Any graphic element:

• shall be designed or converted, as the case may be, in JPG, GIF, PNG or in any other format generally accepted by the industry; and
• shall have a constant appearance (size and color) independently from the hardware and software platforms, operating systems and Web Browsers as stated in the specifications.

3.Software Components.

• shall be programmed according to the rules generally accepted by the industry; and
• shall run as efficiently as possible, subject to the software and hardware limitations.

4.Additional Services.

If, during the performance of the Contract and before final approval of the services performed by the Company, You request any revisions, corrections, additions, substitutions or other modifications this request shall be considered to be a request for additional services, and the Company shall not be required to perform such work unless the parties agree on additional fees and amendments to the specifications as shall be required, provided that the foregoing shall not apply if the request is the result of an error or omission on the part of the Company.

5.Ownership of Graphic Elements.

Except as reserved to the Company in these terms and the Contract, including in (i) the section titled “Ownership of Content” in the main body of these terms, (ii) the section titled “Ownership of Site Content” in the Contract (including the subsection titled “Photography”), and (iii) below in the section titled “Ownership of Background Technology” in these additional terms, You shall own intellectual property rights in and to the graphic elements and other functionality designed for Your website by the Company to Your specifications.

6.Ownership of Background Technology.

In addition to the rights reserved to the Company in these terms and the Contract, including in the section titled “Ownership of Content” in the main body of these terms and in the section titled “Ownership of Site Content” in the Contract (including the subsection titled “Photography”), the Company shall own and retain all intellectual property rights in and to all software developed for operation of the website, including the right to keep, use and reuse modules or portions of the software for other clients, and the right to keep, use and reuse the knowledge, techniques, processes, know-how, expertise, skills, ideas, talents and other elements acquired before or during the performance of the Contract.

 

**ADDITIONAL TERMS FOR THE COMPANY’S HOSTING SERVICES**

If You have a Company Site, You will use the Company website hosting services and the following additional provisions will apply:

1.Registration, Installation and Hosting of Your Website.

As part of the Company’s hosting services, and subject to Your performance of all terms and conditions of the Contract, the Company will: (a) register with the appropriate organization, on behalf of the Licensee, the domain name indicated in Your specifications, or if unavailable such other alternative and available domain name that is proposed by You; (b) install, operate and host Your website on the Company’s web server in accordance with generally accepted industry practices; (c) maintain the accessibility of Your website on a continuous basis to the level of volume and capacity as detailed in the specifications, excepting such time periods as are needed for planned server maintenance, for network downtime not attributable to or under the control of the Company or due to the Company’s exercise of its rights under the Contract; (d) load, install, configure and implement Your website according to the specifications; (e) provide You with all necessary information and documentation respecting the access and operation of Your website and with ongoing technical support as set forth in the specifications; (f) address and attempt to resolve problems with Your website provided that You report such problems with sufficient detail as to allow the problem to be examined; and (g) maintain, in a manner equal to industry standards and to the Company’s own internal procedures, a security firewall to protect against hacking, viruses, identity theft and other security breaches.

2.Your Obligations Regarding Registration, Installation and Hosting of Your Website.

In addition to all other obligations set forth in the Contract, You shall be solely responsible for each of the following requirements and agree that failure to adhere to these requirements shall constitute a material breach of the Contract: (a) You shall furnish all information and specifications required or requested by the Company with respect to the implementation and operation of the Your website; (b) You shall take all appropriate measures to prevent the unauthorized disclosure or use of any usernames, passwords or other authorizations associated with the operation or use of the Your website; (c) You shall promptly report to the Company any problem concerning the operation or content of the Your website with sufficient detail as to enable the Company to examine the problem; (d) You shall provide, at the Company’s request, proof of title or interest in any copyright, trademark or in any other intellectual property right respecting Your Content; (e) None of Your Content shall be so created as to allow the display, within a frame, of the content, in whole or in part, of one or several pages from another website without the owner’s consent; (f) You shall appropriately display all notices and symbols signifying ownership of a copyright, trademark, patent or other intellectual property right where required; and (g) You shall not, for any reason whatsoever, directly or indirectly, use Your website to cause damage to a third-party; gain unauthorized access to information, computer systems or websites; damage the content of another party’s website or commit an illegal offense.